[1] This is an appeal from an order of Mr. Justice Blais of the Trial Division of this Court dated February 12, 2001. Blais J. dismissed the appellant’s motion to appeal an order of Prothonotary Aronovitch dated August 17, 2000, striking his statement of claim filed on March 12, 1990, on the ground that it disclosed no valid cause of action, and therefore had no chance of success.

[2] It is important to note that on March 6, 1990, Mr. Justice Addy, as he then was, ordered that the appellant’s statement of claim, filed on November 23, 1989, be struck. That statement of claim, which was similar to the one filed in this case, sought damages against the respondent on account of her refusal to hire him to work in the public service.

[3] The appellant raised the same issues before us as he did before Blais J.:

1. Whether Prothonotary Aronovitch had jurisdiction to make the order of August 17, 2000;

2. Whether Prothonotary Aronovitch erred in not granting leave to the appellant to amend his statement of claim filed on March 12, 1990.

[4] First, Blais J. found that the prothonotary had jurisdiction to make the order of August 17, 2000. In so doing, Blais J. dismissed the appellant’s argument that the prothonotary had exceeded her jurisdiction by quashing the order of Addy J. dated March 6, 1990, which, according to the appellant, was res judicata.

[5] In support of his argument, the appellant referred to paragraph 50(1)(g) of the Federal Court Rules, 1998, which provides as follows:

50. (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion [emphasis added] . . .		50. (1) Le protonotaire peut entendre toute requête présentée en vertu des présentes règles – à l’exception des requêtes suivantes – et rendre les ordonnances nécessaires s’y rapportant : [le souligné est le mien] [...]

(g) to stay, set aside or vary an order of a judge, other than an order made under paragraph 385(a), (b) or (c).		g) une requête pour annuler ou modifier l’ordonnance d’un juge ou pour y surseoir, sauf celle rendue aux termes des alinéas 385a), b) ou c);

[6] Blais J. was of the view that the order of Addy J. governed only the statement of claim filed on November 23, 1989, and, moreover, there was no doubt in his mind that under Rule 50 a prothonotary has jurisdiction to order that a statement of claim be struck.

[7] In my view, Blais J. properly found that the decision of Addy J. was not res judicata. He also properly held that the prothonotary had the necessary jurisdiction to dispose of a motion to strike a pleading.

[8] With respect to the second issue raised by the appellant, Blais J. found that the prothonotary had applied the correct test for striking a statement of claim, and had made no flagrant error in assessing the facts relevant to the motion to strike.

[9] In addition, Blais J. agreed completely with the prothonotary’s finding that the statement of claim was devoid of material facts. At paragraph 39 of his reasons, Blais J. stated:

[39] . . .The statement of claim is only a series of vague allegations and opinions of the applicant which provide no basis for a valid cause of action.

[10] With respect to the prothonotary’s refusal to allow the appellant to amend his statement of claim, after a thorough and careful review of the order of the prothonotary and of the evidence before her, Blais J. found that the prothonotary’s conclusion was clearly not a flagrant error that required his intervention. At paragraph 47 of his reasons, Blais J. stated:

[47] In these circumstances, the prothonotary Aronovitch’s conclusion that allowing the applicant to amend his statement of claim simply on the basis of a series of vague allegations would be an abuse of process could not be regarded as a flagrant error that requires this Court’s intervention.

[11] In addition to finding that the prothonotary’s conclusion was not a flagrant error, Blais J. himself found that allowing the appellant to amend his statement of claim dated March 12, 1990, would constitute an abuse of process. Blais J. concluded at paragraph 45 of his reasons:

[45] The plaintiff was unable to explain why he never asked the Court for leave to amend his statement of claim so as to add the relevant points or why he waited until the defendant again applied to dismiss the statement of claim before asking the Court for leave to amend.

[12] Unfortunately for the appellant, he has not succeeded in convincing me that this Court should intervene. Blais J. considered all the relevant facts, and did not commit any error in his assessment of those facts. In addition, Blais J. did not base his decision on a wrong principle.

[13] On September 17, 2002, the eve of his appeal hearing, the appellant filed a motion asking the Court for leave to file an amended statement of claim. The motion must be dismissed, because the appeal by the moving party deals precisely with the refusal by both the

prothonotary and Blais J. to allow him to amend his statement of claim. It goes without saying that to grant the appellant’s motion would mean allowing his appeal in this case.

[14] Accordingly, I am of the view that the appeal should be dismissed with costs.

J.A.

“I concur.

J. Richard C.J.”

“I concur.

Marc Noël J.A.”

Certified true translation

Mary Jo Egan, LLB

FEDERAL COURT OF CANADA

APPEAL DIVISION

SOLICITORS OF RECORD

DOCKET: A‑150‑01

STYLE OF CAUSE:

GUILLAUME KIBALE

Appellant

- and -

HER MAJESTY THE QUEEN

Respondent

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: September 18, 2002

REASONS FOR JUDGMENT: Nadon J.A.

CONCURRED IN BY: RICHARD C.J.

NOËL J.A.

DATE OF REASONS: October 4, 2002

APPEARANCES:

Guillaume Kibale FOR HIMSELF

Marie Crowley FOR THE RESPONDENT

SOLICITORS OF RECORD :

Guillaume Kibale

Nepean, Ontario FOR HIMSELF

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, Ontario FOR THE RESPONDENT

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Kibale v. Canada, 2002 FCA 354

Citations2002 FCA 354

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2002 FCA 354