Docket:
T-2084-13
Citation: 2014 FC 242
Toronto, Ontario, March 12, 2014
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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KEITH ROBERT BALLANTYNE
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Plaintiff
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and
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HER MAJESTY THE QUEEN
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Defendant
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REASONS FOR ORDER AND ORDER
[1]
This decision concerns an appeal by the Plaintiff,
the Applicant herein, Keith Robert Ballantyne, pursuant to Rule 51 of the Federal
Courts Rules, SOR/98-106 (Rules) of the Order by Prothonotary Milczynski
dated January 31, 2014.
[2]
The Applicant commenced this action on December
19, 2013. The Minister brought a motion to strike pursuant to Rules 369 and
221(2) on the basis that the Statement of Claim did not disclose a reasonable
cause of action, was scandalous, frivolous or vexatious and was otherwise an abuse
of process. The Applicant did not respond to the motion.
[3]
By her Order, the Prothonotary struck out the
Statement of Claim in whole without leave to amend and dismissed the action
without costs.
[4]
She acknowledged that on a review of the
Statement of Claim it was evident that the Applicant felt wronged by the manner
in which he was treated by the Minister of National Revenue (Minister) and the
Canada Revenue Agency (CRA). However, she found that the cause or causes of
action that the Applicant asserted entitled him to a remedy were unclear and
that there were insufficient material facts pled with sufficient particularity
to understand them. Faced with this, the Respondent could not prepare a
responsive and intelligible Statement of Defence.
[5]
The grounds of the Applicant’s appeal motion are
that he did not understand the Rules or their requirements and believed
that a Statement of Claim was meant to be a general summary or synopsis of
his claim to be followed by documentation of cause and evidence. He asserts
that the term “simplified action” is confusing and refers to a Vancouver Sun article which apparently concerns the difficulties that self-represented
litigants face in navigating court processes. He claims that he has been
stereotypically designated and discriminated against as a “tax protester” and
not afforded due process by the Minister and CRA which has caused him great
financial hurt and harm.
[6]
No affidavit evidence was filed in support of
the appeal motion. The Applicant attached to his Notice of Motion a further
Statement of Claim, in the form that he says he should have originally
submitted, along with other pages of submissions that appear to relate to his
dealings with the Minister and CRA.
[7]
The Respondent submits that because the
Prothonotary’s discretionary Order was vital to the final issue of the case,
the Court must consider de novo the issue of whether the Statement of
Claim should be struck (Merck & Co v Apotex Inc, 2003 FCA 488 paras
18-19). I agree with that submission (see also AYC Pharmacy Ltd v Canada, 2009 FC 554 at para 9; Chrysler Canada Inc v Canada, 2008 FC 1049 at para
4).
[8]
The Respondent submits that the test for
striking out pleadings under Rule 221(1) is whether it is plain and obvious,
assuming the facts to be true, that the claim discloses no reasonable cause of action
(Hunt v Carey Canada Inc, [1990] 2 S.C.R. 959 at p 980; Knight v
Imperial Tobacco Canada Ltd, 2011 SCC 42, [2011] 3 S.C.R. 45 at paras 17, 22)
and that the Applicant’s Statement of Claim does not meet this test.
[9]
Further, that the Statement of Claim failed to
conform to Rules 174, 181 and 182 which require a concise statement of the
facts, particulars relevant to any allegations made and specifics as to relief
sought. While paragraph 2 included a claim of negligence and misfeasance, no
facts were alleged to formulate either tort; paragraph 3 referred to the
Constitution but was entirely unclear as to what wrong the Applicant was
alleging; paragraphs 4-6 appeared to allege misfeasance but, again, no facts
were pled to make out the elements of that tort.
[10]
The Respondent also submits that no rational
argument was made, based in law and evidence, and that the claim was so
factually deficient as to preclude response (Ceminchuk v Canada, [1995] FCJ No 914 (QL) at para 10 (TD)). The claim was clearly futile,
confusing and difficult to understand. For those reasons it was scandalous,
vexatious and frivolous (Pfizer Inc v Apotex Inc, [1999] FCJ No 959
(QL) at paras 30-32 (TD); Borsato v Basra, 2000 BCSC 28 at para 24; Kisikawpimootewin
v Canada, 2004 FC 1426 at para 12) and the Prothonotary correctly struck it.
On a de novo hearing, the same result should occur.
[11]
I am mindful, as was the Prothonotary, that the
Applicant is a self-represented litigant who lacks the benefit of experience or
advice on the Court process. However, while the Court generally shows
flexibility and openness to self-represented parties, this alone does not
exempt a party of its obligation to discharge its burden under Rule 51 (Barkley
v Canada, 2014 FC 39 at para 18).
[12]
Even on a generous reading of the Statement of Claim
I must agree with the Respondent and the Prothonotary that it provides
insufficient facts to enable the cause(s) of action to be ascertained and that
it is confusing and difficult to understand. It does not permit the Respondent
to prepare a responsive defence. In that regard, I refer to and adopt the
reasons contained in the Respondent’s written representations filed in this
appeal. The Applicant’s appeal must be dismissed.
[13]
I have also reviewed the revised Statement of Claim
submitted by the Applicant which he submits is in the form that he should
have filed originally. This does not assist the Applicant. It is comprised
primarily of definitions, a statement of what comprises equality guarantees under
section 15 of the Charter and a list of statutes. It does not elaborate on
the factual basis of his claim or clarify his cause(s) of action. Similarly,
the written representations that he has filed in support of his appeal do not
provide a coherent or intelligible explanation of his claim.
[14]
As to costs, the Minister seeks a lump sum award
of $500. Recognizing both that the Applicant is elderly, self-represented and was
the unsuccessful party, and that the appeal, while in writing, still required a
response by the Respondent, I am awarding costs in the amount of $200 in favour
of the Respondent.
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