Docket: T-431-16
Citation:
2016 FC 1356
Ottawa, Ontario, December 8, 2016
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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DAN PELLETIER
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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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ORDER AND REASONS
[1]
The Court is being asked, on a motion in writing
by the Defendant (the Federal Crown) under rule 221 of the Federal Courts
Rules, SOR/98-106 (the Rules), to strike the Plaintiff’s Statement of Claim,
without leave to amend, on the basis that it discloses no reasonable cause of
action and it is “scandalous, frivolous or vexatious”.
[2] The Plaintiff’s
Statement of Claim was filed on March 11, 2016 as a “Proposed
Class Proceeding” within the meaning of part 5.1 of the Rules. The
Plaintiff is seeking various declaratory and injunctive relief as well
as compensatory damages against the Federal Crown in relation to the discharge of
allegedly “trails of white particulate like matter”
comprised of toxic “minute particles” (Arial
Discharges) into Canadian airspace which, by dissipating in lower altitudes, affect
the environment, including the air he and his family, as well as potential
members of the Proposed Class, breathe.
[3]
The Plaintiff alleges that Aerial Discharges can
easily be absorbed by the human body and the environment and are therefore
dangerous to both. He blames the Federal Crown and/or its agents or
instrumentalities for performing Aerial Discharges over Canadian air space while
knowing - or supposed to be knowing - that they are dangerous. The Plaintiff
claims that the liability of the Federal Crown is engaged as its actions – or
inactions – with respect to Arial Discharges contravene the Canadian
Environmental Protection Act, SC 1999, c 33 [CEPA] as well as the Canadian
Charter of Rights and Freedoms [the Charter], amount to negligence
and trespass and impede on the quiet enjoyment of his property and that of the
potential members of the Proposed Class.
[4]
As indicated previously, the Defendant moves to
strike out the Plaintiff’s Statement of Claim. It contends that the causes of
action alleged by the Plaintiff either do not exist at law or are unaccompanied
by the necessary material facts to disclose a cause of action. It further contends
that the Applicant’s claim is scandalous, frivolous and vexatious as it is so
replete with vague assertions and conclusions and is so devoid of factual
material that it remains impossible to meaningfully plead a defence.
[5]
The test applicable on a motion to strike for
not disclosing a reasonable cause of action is well known: a claim will only be
struck if it is plain and obvious, assuming the facts pleaded to be true, that
the pleading discloses no reasonable cause of action or, put it another way, that
it has no reasonable prospect of success (R. v Imperial Tobacco Canada Ltd,
[2011] 3 S.C.R. 45, at para 17 [Imperial Tobacco]; Hunt v Carey Canada
Inc., [1990] 2 S.C.R. 959, at p. 980; Sivak v Canada, 2012 FC 272,
at para 15 [Sivak]).
[6]
As is well-settled too, no evidence outside the
pleadings may be considered on such motions and although allegations that are
capable of being proven must be taken as true, the same does not apply to
pleadings which are based on assumptions and speculation and to those that are
incapable of proof (Imperial Tobacco, at para 22; Operation Dismantle
v The Queen, [1985] 1 S.C.R. 441, at p. 455 [Operation Dismantle]; AstraZeneca
Canada Inc. v Novopharm Ltd., 2009 FC 1209 at paras 10-12).
[7]
In this regard, while the Statement of Claim
must be read as generously as possible with a view to accommodating any
inadequacies due to drafting deficiencies (Operation Dismantle, at p.
451), it is incumbent on the claimant to clearly plead the facts at the basis
of its claim:
[22] […] It is incumbent on the
claimant to clearly plead the facts upon which it relies in making its claim. A
claimant is not entitled to rely on the possibility that new facts may turn up
as the case progresses. The claimant may not be in a position to prove the
facts pleaded at the time of the motion. It may only hope to be able to prove
them. But plead them it must. The facts pleaded are the firm basis
upon which the possibility of success of the claim must be evaluated. If they
are not pleaded, the exercise cannot be properly conducted”. (Imperial
Tobacco) (My emphasis)
[8]
Recently, in dismissing the appeal of a Judgment
of this Court granting a motion to strike, the Federal Court of Appeal stressed
the fundamental importance to the trial process that a claimant “plead material facts in sufficient detail to support the
claim and relief sought” (Mancuso v Canada (Minister of National Health
and Welfare), 2015 FCA 227 at para 16 [Mancuso]). In that case, the Plaintiffs,
who were consumers, distributors and producers of natural health products, were
challenging Parliament’s legislative authority, or in the alternative, Health
Canada’s statutory authority under the Food and Drugs Act, RSC, 1985, c
F-27 to regulate these types of products. They were also claiming that the
regulation of these products was violating a number of provisions of the Charter
and that those in charge within the Government of Canada of implementing
and enforcing this regulatory scheme had committed various torts in relation to
the exercise of state authority (Mancuso at paras 5-7).
[9]
Quoting from the motion judge’s decision, the
Federal Court of Appeal first endorsed the principle that “pleadings play an important role in providing notice and defining
the issues to be tried and that the Court and opposing parties cannot be left
to speculate as to how the facts might be variously arranged to support various
causes of action” (Mancuso at para 16). Reminding that this
requirement is embodied in Rule 174 of the Rules, it then discussed the
underpinnings of the obligation on a party to plead sufficient material facts
in support of a claim:
[17] The latter part of this requirement
– sufficient material facts – is the foundation of a proper pleading. If a
court allowed parties to plead bald allegations of fact, or mere conclusory
statements of law, the pleadings would fail to perform their role in
identifying the issues. The proper pleading of a statement of claim is
necessary for a defendant to prepare a statement of defence. Material facts
frame the discovery process and allow counsel to advise their clients, to
prepare their case and to map a trial strategy. Importantly, the pleadings
establish the parameters of relevancy of evidence at discovery and trial.
[10]
Acknowledging that there is “no bright line between material facts and bald allegations,
nor between pleadings of material facts and the prohibition on pleading of
evidence”, the Federal Court of Appeal held that what constitutes a
material fact is determined “in light of the cause of
action and the damages sought to be recovered”, a matter for the motion
judge to assess. Ultimately, the claimant “must plead,
in summary form but with sufficient detail, the constituent elements of each
cause of action or legal ground raised” so as to ensure that the
pleadings “define the issues with sufficient precision
to make the pre-trial and trial proceedings both manageable and fair”. In
sum, the pleading must tell the defendant “who, when,
where, how and what gave rise to its liability” (Mancuso at paras
18-19).
[11]
The requirement for adequate material facts is therefore
mandatory and is applicable as much to pleadings of Charter infringement
than it is to causes of action rooted in common law. In other words, whatever
the basis of the claim, “Plaintiffs cannot file
inadequate pleadings and rely on a defendant to request particulars, nor can
they supplement insufficient pleadings to make them sufficient through
particulars” (Mancuso, at para 20-21).
[12]
It is with these principles in mind that the Defendant’s
motion to strike and the Plaintiff’s pleadings must be assessed in the present
case.
[13]
In my view, the core of the Plaintiff’s claim
holds in the following three allegations:
- On various
dates, Arial Discharges comprised of minute toxic particles have been
discharged in Canadian airspace by certain aircrafts;
- As Arial
Discharges dissipate in lower altitudes, they affect the air the
Plaintiff, as well as potential members of the Proposed Class, breathe and
are therefore dangerous to both the human body and the environment,
something the Federal Crown and/or its agents or instrumentalities knew or
ought to have known;
- In such context,
to the extent the Federal Crown and/or its agents or instrumentalities were
engaged in “performing” the Aerial
Discharges over the Canadian airspace, their liability is engaged for
statute and Charter breach and for common law torts, namely
negligence, nuisance and trespass.
[14]
The Plaintiff claims he is entitled in these
circumstances to various forms of remedy, namely, (i) statute and Charter
infringement declarations, (ii) interlocutory and permanent injunction
directing the Federal Crown to comply with the Charter and the CEPA and
appurtenant regulations as well as to cease and desist the ongoing Arial
Discharges, (iii) general damages, including pecuniary and non-pecuniary damages
for serious injury, including death, emotional and psychological trauma and loss
of income; (iv) punitive, aggravated and exemplary damages; and (v) costs,
including the costs of administrating the plan of distribution of the action.
[15]
I agree with the Defendant that the Plaintiff’s Statement
of Claim only consists of bald allegations and mere conclusory statements of
law and falls well short, as a result, of pleading with sufficient detail the
constituent elements of each cause of action raised. In particular, it fails to
tell the Defendant “who, when, where, how and what gave
rise to its liability” and to define the issues with sufficient
precision to make the trial process both manageable and fair (Mancuso at
paras 18-19).
[16]
The allegations of statute and Charter
infringement are as bald, general and vague as they can be: they (i) do not
specify which Charter rights or which provision(s) of the CEPA have been
infringed; (ii) do not tell the Defendant who, how and what gave rise to the
alleged infringement; (iii) remain vague as to where and when exactly the
alleged infringement took place; (iv) do not tell the Defendant in what way the
Federal Crown or its agents and/or instrumentalities “perform”
Arial Discharges in Canadian airspace so as to trigger the application of the CEPA
and the Charter; and (v) are silent on the identity of the Federal Crown’s
agents and/or instrumentalities which are allegedly infringing the CEPA and the
Charter.
[17]
As indicated previously, there are no separate
rules of pleadings for Charter cases. The requirement of material facts
applies in the same way it does for other causes of actions (Mancuso, at
para 21). In Mancuso, in what was otherwise found to be inadequate
pleadings, there was at least reference to the Charter provisions that
had been allegedly infringed. Again, here, there is no such reference. With
respect to the alleged breach of the CEPA not only is the Plaintiff’s pleading
devoid of any supporting material facts but that particular claim is bound to
fail as it is now firmly established that no action lies against a public
authority for negligent breach of statute (Holland v Saskatchewan,
[2008] 2 S.C.R. 551, at para 8-9).
[18]
The same pleading deficiencies affect the common
law causes of action raised by the Plaintiff, which are based on the exact same
bald allegations and conclusory statements of law. As stated in Mancuso,
a properly pleaded tort claim “identifies the
particular nominate tort alleged and sets out the material facts needed to
satisfy the elements of that tort” (Mancuso, at para 26). The
essential elements of the tort of negligence include a duty of care, a specific
breach of that duty, a causal connection between the breach of the duty and the
injury, and an actual loss. A Statement of Claim need therefore to include
sufficient facts providing details about each of these elements (Sivak,
at para 26).
[19]
In matters involving the Federal Crown’s
liability, it must also be bore in mind that liability, as per sections 3 and
10 of the Crown Liability and Proceedings Act, RSC 1985 c C-50, can only
be vicarious, which requires the claimant to identify, as a material fact, the
particular individuals who have allegedly engaged in tortious actions, or, when
this is not possible, to identify at least a particular group of individuals, an
organizational branch or even job positions which dealt with the actionable matter
(Merchant Law Group v. Canada (Revenue Agency) 2010 FCA 184 at paras
36-38 [Merchant Law Group]). Also, as the Court indicated in Sivak,
the requirement to plead sufficient material facts in such matters is
particularly important to ground negligence claims since key issues such as
whether the conduct in question constitute (non-actionable) policy or (actionable)
operational decisions often arise (Sivak, at para 48).
[20]
As the Defendant correctly points out, the
Plaintiff’s Statement of Claim merely recites the steps in a generic negligence
analysis: it does not identify the individuals, group of individuals or
organizational branch involved in the alleged negligent conduct, let alone, as
indicated previously, the Crown agents and/or instrumentalities allegedly
responsible for such conduct; it does not provide either any type of details of
the alleged negligent conduct itself - the “performance
of Arial Discharges” - as it does not tell anything about the who, how
and what gave rise to the Defendant’s liability in this regard or about the
link between the Federal Crown, its agents and/or instrumentalities and the aircrafts
that are actually discharging the Arial Discharges; also, it is vague as to
when and where such conduct may have occurred to a point where it does not give
fair notice to the Defendant of the case to be met.
[21]
All of this equally applies to the Plaintiff’s
claim for nuisance and trespass. There are no supporting material facts to
establish a non-trivial, substantial and unreasonable interference with the use
or enjoyment of the Plaintiff’s land due to the alleged performance of Arial
Discharges (Antrim Truck Center Ltd v Ontario (Transportation), [2013] 1
SCR 594 at para 19). There are no such facts either capable of establishing a
claim for trespass, that is a direct and physical intrusion onto land in
possession of the Plaintiff resulting from the alleged misconduct. In
particular, the Plaintiff has failed in both instances to plead material facts
capable of establishing the nature of the interference or intrusion.
[22]
For these reasons, I find that the Plaintiff has
failed to plead facts in sufficient details to support the claim and relief
sought. Both the Defendant and the Court are left to speculate as to what might
support, from a material factual standpoint, the causes of action raised by the
Plaintiff (Mancuso at para 16). As the Supreme Court of Canada stated in
Imperial Tobacco, at paragraph 22, “[t]he facts pleaded
are the firm basis upon which the possibility of success of the claim must be
evaluated. If they are not pleaded, the exercise cannot be properly conducted”.
That is the case here.
[23]
The Plaintiff’s Statement of Claim simply does
not meet the minimum threshold of an adequate pleading. In other words, in its
current configuration, it fails to disclose the constituent elements of each
cause of action and to define the issues with sufficient precision to make the
pre-trial and trial proceedings both manageable and fair. In sum, it does not
provide the essential facts grounding the causes of action. As we have seen,
this is sufficient basis to strike the Plaintiff’s claim as not disclosing a
reasonable cause of action. It is also sufficient basis to strike the
Plaintiff’s claim as being “scandalous, frivolous or
vexatious” within the meaning of Rule 221(1)(c) of the Rules since a
pleading replete with bare allegations and mere conclusory statements of law,
as is the case here, will normally also amount to a scandalous, frivolous or
vexatious pleading (Kisikawpimootewin v Canada, 2004 FC 1426 at para 9; Ceminchuk
v Canada, [1995] FCJ No 914 at para 10).
[24]
The Plaintiff’s contention that the Defendant is
in reality seeking particulars to an otherwise adequate pleading and that such
request is somehow premature as his claim will only be able to be assessed in
this respect once the common issues to the Class Proceeding have been
determined as those issues speak to the systemic and centralized behavior of
the Defendant and are the ones the Defendant will ultimately be called upon to
defend, cannot stand.
[25]
This approach ultimately suggests that there is
a different standard for pleadings in a Proposed Class Proceeding and that such
pleadings should be looked at as how they could be drafted as opposed to how
they have been drafted. In Merchant Law Group, the Federal Court of
Appeal made it clear that there is not such a different standard, noting that
there was no authority to support such a proposition :
[40] Finally, in an overarching
submission, the appellants suggest that this Court should relax the rules of
pleading whenever it has a proposed class action before it. The appellants
submit that any deficiencies in the amended statement of claim can be addressed
in the motion to certify the action as a class action. Related to this, the
appellants suggest that this Court should view the pleading not as it has been
drafted but rather “as how it might be drafted.” The appellants cite no
authority in support of these propositions. I reject them. A motion to strike
may be brought at any time against a statement of claim in a proposed class
action for failure to comply with the rules of pleading or for failure to state
a viable cause of action: Pearson v Canada, 2008 FC 62, [2008] 4 FCR 373
per Prothonotary Aalto. The launching of a proposed class action is a
matter of great seriousness, potentially affecting many class members’ rights
and the liabilities and interests of defendants. Complying with the Rules is
not trifling or optional; mandatory and essential it truly is.
[26]
As a result, the case of Baroch v Canada
Cartage, 2015 ONSC 40, which was decided in the context of a class
proceeding certification motion, is of no assistance to the Plaintiff. Complying
with the Rules of pleading, even in the context of a Proposed Class Proceeding,
is essential and non-compliance is ample justification for a motion to strike. As
the Defendant points out, it is trite law that a Proposed Class Proceeding
which fails to disclose a reasonable cause of action may be the subject of a
motion to strike, irrespective of the fact that this issue can also be argued
on the certification motion (Merchant Law Group v Canada (Revenue Agency),
2008 FC 1371 at paras 17, 18 and 28).
[27]
Having found that the Plaintiff’s Statement of
Claim should be struck out in its entirety, I must now decide whether leave to
amend should be granted or not, as contemplated by Rule 221(1) of the Rules. Another
option would be to strike out the Statement of Claim without leave to amend but
without prejudice to the Plaintiff instituting a new action, as was done in Baird
v Canada, 2006 FC 205 [Baird FC].
[28]
Leave to amend should normally be denied where
the defect in the pleading is one that cannot be cured by amendment (Simon v
Canada, 2011 FCA 6, at para 8 [Simon]). In Baird v Canada,
2007 FCA 48, the Federal Court of Appeal, in confirming Baird FC, ruled,
at paragraph 3, that amendments to the Statement of Claim were simply not
possible since, as drafted, “it was beyond redemption”.
In that case, the Plaintiff had filed “an 18-page
closely typed statement of claim” claiming damages of over 30
billion dollars from the Federal Crown (Baird FC, at para 2). In
particular, this Court found that another fundamental reason for striking the Statement
of Claim without leave to amend was that it contained “so
many different allegations without specifics, and so many different types of
relief, that it would be near impossible for the Court to regulate the trial”.
In another words, this Statement of Claim was also an abuse of process (Baird
FC, at para 12).
[29]
Is the Plaintiff’s Statement of Claim in the
present case “beyond redemption” as was the case
in Baird FC? I do not believe so. Since the power to strike must be used
with care (Imperial Tobacco, at para21), I would allow the
Plaintiff the opportunity to attempt to salvage his pleading by amending it
within 40 days of the date of this Order, the Christmas Recess within the
meaning of rule 2 of the Rules, being included in the computation of that delay.
In so doing, I would caution the Plaintiff, as did the Federal Court of Appeal
in Simon, that any further pleading will
have to be compliant with all of the Rules governing pleadings and that non-compliance
with those Rules could expose the pleading to the risk of being struck out
again. As the Federal Court of Appeal stated in that case:
[18] The requirement that a pleading contain
a concise statement of the material facts relied upon is a technical
requirement with a precise meaning at law. Each constituent element of each
cause of action must be pleaded with sufficient particularity. A narrative of
what happened and when it happened is unlikely to meet the requirements of the
Rules. […]
[30]
I would also caution the Plaintiff that
allegations of breach of statute as a basis for claiming damages against the
Federal Crown is unlikely to succeed as “the law to date has not recognized an action for negligent
breach of statutory duty” (Holland
v Saskatchewan, above, at para 9).
[31]
Given its outcome, costs of the motion are
awarded to the Defendant.
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