Docket:
T-874-13
Citation: 2014 FC 174
Ottawa, Ontario, February 25, 2014
PRESENT: The
Honourable Mr. Justice Boivin
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BETWEEN:
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LARRY PETER KLIPPENSTEIN
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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 is an appeal of
an order made by Prothonotary
Lafrenière dated July 8, 2013, wherein
the statement of claim of Larry Peter
Klippenstein was struck out without leave to amend and costs were awarded
to the defendant.
[2]
Larry Peter Klippenstein was self-represented at
the hearing before the Court.
Factual
background
[3]
On September 20, 2012, Larry Peter Klippenstein
(the plaintiff) initiated an application for judicial review of the Canadian
Human Rights Commission’s decision not to hear his complaint (Court File no.
T-1744-12).
[4]
On October 3, 2012, the plaintiff attempted to
file evidence with unsworn affidavits. The plaintiff refused to swear his
affidavit on the Bible that was provided by this Court’s Registry in Winnipeg because it was not an “undefiled” Bible. Being of Mennonite faith, he stated that
acting otherwise would be an offence to his conscience. The Registry sought
directions from the Court regarding the unsworn affidavit evidence.
[5]
On October 5, 2012, Justice Gleason of this
Court issued directions in which she directed the plaintiff, pursuant to rules
363 and 80 of the Federal Courts Rules, SOR/98-106 (the Rules) and to
section 15 of the Canada Evidence Act, RSC 1985, c C-5, to either obtain
access to an “undefiled” Bible and swear on it, or to make a solemn affirmation
to affirm his affidavit.
[6]
The plaintiff attempted to appeal this order for
directions directly to the Supreme Court of Canada. The appeal was rejected by
the registrar.
[7]
On April 11, 2013, Chief Justice Crampton of
this Court issued a Notice of Status Review asking the plaintiff to submit
representations explaining why his application should not be dismissed for
delay. The plaintiff made no submission concerning the delay.
[8]
On April 30, 2013, Justice Manson of this Court
issued an order dismissing the application for judicial review for delay.
[9]
On May 6, 2013, the plaintiff sent a letter to
Court explaining that he never received the Notice of Status Review.
[10]
On May 8, 2013, Justice Manson of this Court
issued directions directing the plaintiff to either bring a motion pursuant to Rule
399 to set aside the April 30, 2013 order, or to appeal the order to the Federal
Court of Appeal. The plaintiff did neither and Justice Manson issued an order
dismissing the judicial review application in the T-1744-12 proceeding.
[11]
On May 16, 2013, the plaintiff filed a statement
of claim commencing an action against the Crown and initiating the present file
(Court File no. T-874-13). In his statement of claim, he sought inter alia
an order declaring the Federal Court Registry in Winnipeg in contempt of Court,
an order directing a “Court who has the Jurisdiction” to hear his application,
and an interim order providing a means of affirming or swearing his affidavit
evidence that does not offend his conscience and an award of costs.
[12]
On May 23, 2013, the plaintiff applied for leave
to appeal the April 30, 2013 Order in the T-1744-12 proceeding directly to the
Supreme Court of Canada. After initially rejecting the application, the Supreme
Court of Canada Registry accepted the application although it appeared to be
premature.
[13]
On June 17, 2013, the defendant filed a motion
to strike the plaintiff’s statement of claim in the T-874-13 proceeding
pursuant to Rule 221(1).
[14]
On July 8, 2013, Prothonotary Lafrenière of this
Court issued an order in which he struck out the applicant’s statement of claim
in the T-874-13 proceeding without leave to amend and awarded costs in the
amount of $300.00 to the defendant (Prothonotary’s Order in Plaintiff’s Motion
Record at p 50).
[15]
On July 15, 2013, the plaintiff applied to
appeal the order to this Court.
[16]
On October 17, 2013, the Supreme Court of Canada
dismissed the appeal of the Court order dated April 30, 2013 in the T-1744-12
proceeding.
Impugned
decision: the Order of Prothonotary Lafrenière dated July 8, 2013
[17]
In his Order, Prothonotary Lafrenière concluded
that the plaintiff’s statement of claim disclosed no reasonable cause of action
and constitutes an abuse of process.
[18]
The Prothonotary stated that the test to strike
out a statement of claim is if it is “plain and obvious” that the claim
discloses no reasonable claim (Hunt v Carey Canada Inc, [1990] 2 SCR
959, 74 DLR (4th) 321 [Hunt]). The Prothonotary recalled that the “burden
on the defendant is very high and the Court should exercise its discretion to
strike only in the clearest of cases” (Plaintiff’s Motion Record at p 51).
[19]
The Prothonotary determined that the statement
of claim was “fundamentally flawed” in that its “allegations are
incomprehensible and consist of bald statements, arguments, and conclusions”.
He also noted that it contained no material facts indicating who interfered
with the plaintiff’s rights, what exactly was done to interfere with his rights
and when and where the interference took place (Plaintiff’s Motion Record at p 52).
[20]
The Prothonotary also concluded that the
statement of claim should be struck out as an abuse of this Court’s process.
The Prothonotary insisted that the issues contained in the statement of claim
are the same as those that were before the Court in the related T-1744-12
proceeding. In that proceeding, the plaintiff failed to act diligently and his
claim was dismissed for delay. Since the plaintiff is attempting to re-litigate
issues that were raised or could have been raised during those proceedings and
to collaterally attack Justice Gleason’s directions, the Prothonotary found
that the present proceedings were “a waste of judicial resources, vexatious and
an abuse of the Court’s process” (Plaintiff’s Motion Record at p 52-53).
Issues
[21]
The Court is of the view that this appeal raises
the issue of whether the Prothonotary erred in striking out the plaintiff’s
statement of claim on the grounds that it lacked a reasonable cause of action
or that it constituted an abuse of process.
Relevant
provisions
[22]
The following provisions of the Federal
Courts Act, RSC 1985, ch F-7 (the Act) are relevant to the case at hand:
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JURISDICTION OF FEDERAL COURT
Relief against the Crown
17. (1)
Except as otherwise provided in this Act or any other Act of Parliament, the
Federal Court has concurrent original jurisdiction in all cases in which
relief is claimed against the Crown.
…
How proceeding against Crown instituted
48. (1) A
proceeding against the Crown shall be instituted by filing in the Registry of
the Federal Court the original and two copies of a document that may be in
the form set out in the schedule and by payment of the sum of $2 as a filing
fee.
…
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COMPÉTENCE DE LA COUR FÉDÉRALE
Réparation contre la Couronne
17. (1) Sauf
disposition contraire de la présente loi ou de toute autre loi fédérale, la
Cour fédérale a compétence concurrente, en première instance, dans les cas de
demande de réparation contre la Couronne.
[…]
Acte introductif d’instance contre la
Couronne
48. (1) Pour
entamer une procédure contre la Couronne, il faut déposer au greffe de la
Cour fédérale l’original et deux copies de l’acte introductif d’instance, qui
peut suivre le modèle établi à l’annexe, et acquitter la somme de deux
dollars comme droit correspondant.
[…]
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[23]
The following provisions of the Federal
Courts Rules are also applicable to the present appeal:
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PRELIMINARY OBJECTIONS
Motion to object
208. A
party who has been served with a statement of claim and who brings a motion
to object to
(a) any
irregularity in the commencement of the action,
(b) the
service of the statement of claim,
(c) the
Court as not being a convenient forum, or
(d) the
jurisdiction of the Court,
does not thereby attorn to the
jurisdiction of the Court.
STRIKING OUT PLEADINGS
Motion to strike
221. (1)
On motion, the Court may, at any time, order that a pleading, or anything
contained therein, be struck out, with or without leave to amend, on the
ground that it
(a)
discloses no reasonable cause of action or defence, as the case may be,
(b) is
immaterial or redundant,
(c) is
scandalous, frivolous or vexatious,
(d) may
prejudice or delay the fair trial of the action,
(e)
constitutes a departure from a previous pleading, or
(f) is
otherwise an abuse of the process of the Court,
and may order the action be dismissed or
judgment entered accordingly.
DISPUTE RESOLUTION SERVICES
Order for dispute resolution conference
386. (1) The
Court may order that a proceeding, or any issue in a proceeding, be referred
to a dispute resolution conference, to be conducted in accordance with rules
387 to 389 and any directions set out in the order.
…
CONTEMPT ORDERS
Contempt
466.
Subject to rule 467, a person is guilty of contempt of Court who
(a) at a
hearing fails to maintain a respectful attitude, remain silent or refrain
from showing approval or disapproval of the proceeding;
(b)
disobeys a process or order of the Court;
(c) acts
in such a way as to interfere with the orderly administration of justice, or
to impair the authority or dignity of the Court;
(d) is an
officer of the Court and fails to perform his or her duty; or
(e) is a
sheriff or bailiff and does not execute a writ forthwith or does not make a
return thereof or, in executing it, infringes a rule the contravention of
which renders the sheriff or bailiff liable to a penalty.
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CONTESTATIONS PRÉLIMINAIRES
Requête en contestation
208. Ne
constitue pas en soi une reconnaissance de la compétence de la Cour la
présentation par une partie :
a) d’une requête
soulevant une irrégularité relative à l’introduction de l’action;
b) d’une requête
contestant la signification de la déclaration;
c) d’une requête
remettant en question la qualité de forum approprié de la Cour;
d) d’une requête
contestant la compétence de la Cour.
RADIATION D’ACTES DE PROCÉDURE
Requête en radiation
221. (1) À tout
moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie
d’un acte de procédure, avec ou sans autorisation de le modifier, au motif,
selon le cas :
a) qu’il ne
révèle aucune cause d’action ou de défense valable;
b) qu’il n’est
pas pertinent ou qu’il est redondant;
c) qu’il est
scandaleux, frivole ou vexatoire;
d) qu’il risque
de nuire à l’instruction équitable de l’action ou de la retarder;
e) qu’il diverge
d’un acte de procédure antérieur;
f) qu’il
constitue autrement un abus de procédure.
Elle peut aussi ordonner que l’action soit
rejetée ou qu’un jugement soit enregistré en conséquence.
SERVICES DE RÈGLEMENT DES LITIGES
Ordonnance de la Cour
386. (1) La Cour
peut ordonner qu’une instance ou une question en litige dans celle-ci fasse
l’objet d’une conférence de règlement des litiges, laquelle est tenue
conformément aux règles 387 à 389 et aux directives énoncées dans
l’ordonnance.
[…]
ORDONNANCES POUR OUTRAGE
Outrage
466. Sous
réserve de la règle 467, est coupable d’outrage au tribunal quiconque :
a) étant présent
à une audience de la Cour, ne se comporte pas avec respect, ne garde pas le
silence ou manifeste son approbation ou sa désapprobation du déroulement de
l’instance;
b) désobéit à un
moyen de contrainte ou à une ordonnance de la Cour;
c) agit de façon
à entraver la bonne administration de la justice ou à porter atteinte à
l’autorité ou à la dignité de la Cour;
d) étant un
fonctionnaire de la Cour, n’accomplit pas ses fonctions;
e) étant un
shérif ou un huissier, n’exécute pas immédiatement un bref ou ne dresse pas
le procès-verbal d’exécution, ou enfreint une règle dont la violation le rend
passible d’une peine.
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Analysis
[24]
As a preliminary matter, the Court notes that the
plaintiff filed a new affidavit in reply. As a general
rule, evidence on appeal should be limited to what was before the Prothonotary
and new evidence is only admissible when it could not have been made available
earlier, it will serve the interests of justice, it will assist the court, and
it will not seriously prejudice the other side (Shaw v Canada, 2010 FC
577 at paras 8-9, [2010] FCJ No 684 (QL)). Upon hearing the parties on this
issue, the Court is of the view that the plaintiff’s affidavit can be
considered by the Court.
[25]
The test setting out the
standard of review for discretionary orders of Prothonotaries was outlined by
the Federal Court of Appeal in Canada v Aqua-Gem Investments Ltd., (CA)
[1993] 2 FC 425, 149 NR 273. This test was subsequently affirmed by the Supreme
Court of Canada in Z.I. Pompey Industrie v ECU-Line N.V., 2003 SCC 27,
[2003] 1 S.C.R. 450, and was then reformulated by the Federal Court of Appeal in Merck
& Co. v Apotex Inc., 2003 FCA 488 at para 19, [2004] 2 FCR 459:
[19] … Discretionary orders of prothonotaries ought not be disturbed on
appeal to a judge unless:
(a) the questions raised in the motion are vital to
the final issue of the case, or
(b) the orders are clearly wrong, in the sense that
the exercise of discretion by the prothonotary was based upon a wrong principle
or upon a misapprehension of the facts.
[26]
When the Court is reviewing a discretionary
decision by a Prothonotary dealing with questions that are vital to the final
issue of the case, it must conduct a de novo review (Sauvé v Canada, 2012 FCA 280, [2012] FCJ No 1415 (QL)). In the present case, the appeal from
the decision of the Prothonotary striking out the plaintiff’s statement of
claim raises an issue vital to the case and should, therefore, be assessed
de novo.
[27]
Rule 221(1) provides that, on motion, the Court
may order that a pleading, or a part of a pleading, be struck out, with or
without leave to amend. The defendant claims that the plaintiff’s statement of
claim can be struck out pursuant to paragraph (b) because it discloses
no reasonable cause of action, and (f) because it constitutes an abuse
of process.
[28]
The jurisprudence clearly states that a pleading
must not be struck if, assuming that the facts pleaded are true, there is a
reasonable prospect that the claim will succeed. In doing so, courts must adopt
a generous approach and err on the side of permitting a novel but arguable
claim to proceed to trial (R v Imperial Tobacco Canada Ltd, 2011 SCC 42
at para 21, [2011] 3 S.C.R. 45). The test to apply is, as established in Hunt,
above, whether it is “plain and obvious” that the plaintiff’s statement of
claim discloses no reasonable claim.
[29]
When assessing if a statement of claim contains
a reasonable cause of action, a court must look at the presence of material
facts linking the defendant to the allegations made or the relief sought (Chavali
v Canada, 2001 FCT 268 at para 21, 202 FTR 166, aff’d Chavali v Canada,
2002 FCA 209, 237 FTR 318).
[30]
The plaintiff raised a number of issues at
hearing before this Court.
[31]
The plaintiff submits that the Federal Court
Registry in Winnipeg is in contempt of court for failing to provide a suitable
Bible for the purpose of swearing affidavits. The plaintiff relies on Rule 466
which provides a list of situations when an individual may be in contempt of
court.
[32]
However, the Court agrees with the defendant
that Rule 466 only applies to the conduct of individuals during the course of
existing proceedings, and cannot form the basis of a cause of action (Johnson
v Canada (Attorney General), 2008 FC 119 at para 5, [2008] FCJ No 144 (QL)).
Furthermore, this Court has ruled that contempt proceedings are not available
against Her Majesty the Queen or federal departments (Ayangma v Canada, 2002 FCT 79 at para 18, 215 FTR 26). Accordingly, the plaintiff’s argument must
fail.
[33]
Also, although the plaintiff brought a statement
of claim before this Court, he now alleges that this Court does not have
jurisdiction to hear the claim and, hence, it should go to another court or
another body pursuant to Rule 386. However, Rule 386 allows the Court to refer
a matter to a dispute resolution conference, it cannot be used to transfer a
proceeding to another jurisdiction. The plaintiff could no more rely on Rule
208, which deals with preliminary objections available to the party served with
a statement of claim, and not the one initiating the proceedings.
[34]
In addition, the statement of claim is very
vague and is entirely devoid of material facts clearly linking the defendant to
the relief sought by the plaintiff. More particularly, the statement of claim
does not identify a cause of action against the Crown, allege any tortious act
on the part of a Crown servant or allege that it is vicariously liable for a
tort committed by a servant of the Crown.
[35]
On that basis, the Court is therefore of the
view that the Prothonotary did not err by finding that the statement of claim
did not disclose a reasonable cause of action.
[36]
Finally, upon reading the statement of claim,
the claims made by the plaintiff are almost identical to the claims related to
the T-1744-12 proceeding, which was dismissed for delay. The plaintiff is
merely attempting to re-litigate what appear to be the same issues that were
before this Court, and that were eventually appealed to the Supreme Court of
Canada and dismissed. In these circumstances, it constitutes an abuse of this
Court’s process.
[37]
For all of these reasons, the Court is of the
view that the Prothonotary did not err in striking out the plaintiff’s
statement of claim.
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