Docket: A-135-14
Citation: 2014 FCA 175
Present: SHARLOW
J.A.
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BETWEEN:
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LARRY PETER KLIPPENSTEIN
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Appellant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR ORDER
SHARLOW J.A.
[1]
The appellant Larry Peter Klippenstein has
brought five motions within his appeal of the order of Justice Boivin confirming
an order striking Mr. Klippenstein’s statement of claim in T‑874-13. For
the reasons that follow, four of the motions will be dismissed and one will be
allowed only in part. No costs will be awarded.
Background
facts
[2]
Mr. Klippenstein filed his statement of claim in
T-874-13 in 2013 to challenge what he considered to be an injustice relating to
the requirements imposed on him with respect to an affidavit he submitted in
support of a prior proceeding in the Federal Court (T-1744-12). That prior proceeding was an application for judicial review
filed by Mr. Klippenstein to challenge the dismissal of a human rights
complaint. He submitted an unsworn affidavit in support of his application,
explaining to the Registry staff that that he could not swear his affidavit on
the Bible provided by the Court because it was not an undefiled Bible, and he
could not affirm the affidavit because that would be an offence to his
conscience as a person of the Mennonite faith. The record before me does not
disclose the basis upon which Mr. Klippenstein could be satisfied that a
particular Bible or a particular edition of the Bible is undefiled.
[3]
The Registry sought the direction of a judge regarding the unsworn
affidavit. Justice Gleason directed Mr. Klippenstein to obtain access to an
undefiled Bible and swear on it, or to affirm the affidavit. Mr. Klippenstein
did not follow that direction. In
April of 2013, Chief Justice Crampton issued a notice of status review
requiring Mr. Klippenstein to explain why his application should not be
dismissed for delay. Mr. Klippenstein filed nothing in response. On April 30,
2013, Justice Manson dismissed the application for delay.
[4]
Mr. Klippenstein subsequently notified the Federal Court that he had not
received the notice of status review. Justice Manson directed Mr. Klippenstein
either to bring a motion to set aside the April 30, 2013 order, or to appeal
the order to the Federal Court of Appeal. Mr. Klippenstein did neither, but
instead filed an application to the Supreme Court of Canada for leave to appeal
the judgment dismissing his application for judicial review (Supreme Court File
35436). That application was dismissed on October 17, 2013.
[5]
Meanwhile, on May 16, 2013, Mr. Klippenstein filed a new statement of
claim commencing an action against the Crown. That is the action underlying the
present appeal. In that statement of claim, Mr. Klippenstein sought among other
things an order declaring the Registry in Winnipeg to be in contempt of court,
and an interim order providing a means by which his affidavit could be sworn or
affirmed in a manner that is consistent with his religious beliefs and
conscience.
[6]
On June 17, 2013, the Crown filed a motion to strike the statement of
claim. That motion was granted by a Prothonotary. His order was confirmed by
Justice Boivin in the order under appeal in this proceeding. This appeal has
progressed to the point where a requisition for hearing has been filed.
The present motions
[7]
Before me are the following motions of Mr.
Klippenstein:
(a)
motion submitted May 12, 2014 for interim relief
from the requirement to pay rent;
(b)
motion submitted May 14, 2014, to challenge a
direction of Pelletier J.A. and for an order prohibiting Pelletier J.A. from
further involvement in this proceeding;
(c)
motion submitted May 14, 2014 for an oral
hearing of his motions;
(d)
motion submitted May 16, 2014 for directions on
the procedure for filing of motions by Mr. Klippenstein; and
(e)
motion submitted June 5, 2014 for an order
setting aside the memorandum of fact and law of the Crown and prohibiting the Crown
from serving documents on Mr. Klippenstein in any manner not specifically
described in the Federal Courts Rules.
[8]
By letter to the Court dated June 4, 2014,
counsel for the Crown advised the Court that the Crown takes no position on the
first four motions. The Crown has not filed a motion record in response to the
fifth motion.
(a) Interim relief from the requirement to pay rent
[9]
It appears from the material filed by Mr.
Klippenstein that he is involved in a controversy over his right to occupy a certain
residence in Winnipeg. The record indicates that he has been advised that in
order to keep his claim alive he must continue to pay the rent, but he does not
have the means to do so, and he is seeking relief from this Court.
[10]
After reviewing the record, I am unable to
discern any basis upon which I can reasonably conclude that this Court has the
jurisdiction to make the order sought by Mr. Klippenstein. There is nothing in
the record to suggest there is any federal law that could possibly govern the
matter of Mr. Klippenstein’s occupation or use of the residence in issue. It
would appear that Mr. Klippenstein’s residential tenancy dispute is governed by
the laws of Manitoba, and is a matter for the appropriate Manitoba court or
tribunal.
[11]
I observe as well that Mr. Klippenstein’s
residential tenancy dispute is not legally connected to the appeal now before
this Court or the proceeding in the Federal Court to which it relates. It may
be that residential tenancy dispute is relevant to the human rights complaint
that led Mr. Klippenstein to file his first application for judicial review in
the Federal Court, but that proceeding is now finished. And, as far as I can
determine from the material before me, there is no proceeding now pending in
the Federal Court in which the residential tenancy dispute is legally relevant.
Accordingly, this motion will be dismissed.
(b) Direction of Pelletier J.A. and his further
involvement in this proceeding.
[12]
The background facts relating to this motion are
as follows. By letter to the Court dated April 1, 2014, Mr. Klippenstein asked
for directions because the Manitoba Court of Queen’s Bench had declared him to
be under a legal disability, but he had no one to act as his litigation
guardian in the present appeal. He did not say at that time, but says in
support of the present motion, that the committee or substitute decision maker who
has the right to conduct litigation on his behalf has declined to act in this
matter, and he has no means of obtaining other legal assistance. Justice
Pelletier directed as follows on April 14, 2014:
Mr. Klippenstein
seeks directions from the Court, having regard to the fact that he has, it
seems, been declared to be a person under a handicap by the Manitoba Court of
Queen’s Bench. That determination is not binding on this Court though it is
factor to be taken into account if events show that Mr. Klippenstein lacks the
capacity to conduct litigation.
While it does appear that Mr. Klippenstein
has no understanding at all of the functioning of the Court system, this is not
evidence of lack of capacity. Furthermore, the issues in the litigation
currently pending before the Court are not such that they would justify the
appointment of a litigation guardian.
Mr. Klippenstein will have to carry on as
best he can under the circumstances.
[13]
Mr. Klippenstein submits that, contrary to
Justice Pelletier’s conclusion, this Court is bound by the determination of the
Manitoba Court of Queen’s Bench that he is under a legal disability. He relies
on Rules 7.01 and 15.01(1) of the Manitoba Court of Queens Bench Rules,
Man. Reg. 553/88, subsection 39(1) of the Federal Courts Act, R.S.C.
1985, c. F-7, and Rule 121 of the Federal Courts Rules. SOR/98-106.
[14]
I respectfully disagree with Mr. Klippenstein.
In my view, the direction of Justice Pelletier is not based on an error of law
or a misunderstanding of the legal effect of the declaration of the Manitoba
Court of Queen’s bench. Before this Court may grant any relief in respect of
the legal disability of a litigant, it must be satisfied, on the basis of
evidence, that the relief is justified. In this case, the fact that the Manitoba Court of Queen’s Bench had declared Mr. Klippenstein to be under a legal
disability does not, by itself, permit or require this Court to take any
particular steps to ensure that he has legal representation in this appeal.
Accordingly, this motion will be dismissed.
(c) Oral hearing of motions
[15]
In this Court, motions are normally dealt with
under Rule 369 of the Federal Courts Rules on the basis of documents in
motion records submitted by the parties. Oral hearings on a motion are rare,
and are permitted only when a judge determines that oral submissions would be
of assistance to the Court because of unusual complexity or other special
circumstances. In this case, I have no reason to conclude that an oral hearing
is required for Mr. Klippenstein’s motions. Accordingly, this motion will be dismissed.
(d) Procedure for filing of motions
[16]
Mr. Klippenstein has filed this motion because,
despite his best efforts to understand the relevant provisions of the Federal
Courts Rules, it appears to him that the procedure followed with respect to
the receipt and filing of his motions, and the failure to set a date for an
oral hearing of his motions, is inconsistent with the Federal Courts Rules.
He also complains that he has not been properly informed about the payment of
fees on the filing of a motion.
[17]
It appears to me that there are three problems
underlying this motion. The first problem is that the Registry received Mr.
Klippenstein’s motion records but did not formally file them on the same day
and Mr. Klippenstein does not understand why. The answer is that the Registry
sought the direction of a judge (which happened to be me) as to whether the
motion records should be filed. The Registry has the discretion to seek such directions
in any number of situations, but in this case it appears that the directions
were sought because the motion records submitted by Mr. Klippenstein sought
relief that was unusual. I directed the motion records to be filed on June 3,
2014, and that is the date on which they were filed.
[18]
The second problem is that Mr. Klippenstein was
not aware that the usual practice in this Court, as explained above, is that oral
hearings on motions are the exception and not the rule.
[19]
The third problem is that Mr. Klippenstein is
not familiar with the tariff of fees in the Federal Courts Rules. For
most motions, there is no filing fee. However, there is a filing fee for some
motions (for example, a motion for an extension of time to start a proceeding,
a motion for leave to commence a proceeding, a motion for summary judgment or
summary trial), but none of the motions of Mr. Klippenstein required a filing
fee.
[20]
With this explanation, it appears to be that no
directions are required with respect to the filing of motions by Mr.
Klippenstein. Accordingly, this motion will be dismissed.
(e) Motion to set aside the
Crown’s memorandum of fact and law and directing the method of service of
documents on Mr. Klippenstein.
[21]
The complaint underlying this motion is that the
Crown served its memorandum of fact and law on Mr. Klippenstein by slipping it
under his door, when they knew or should have known that service in that manner
was upsetting to him.
[22]
I have no reason to doubt Mr. Klippenstein’s
assertion that he suffered distress at the manner in which the Crown served the
memorandum of fact and law on him. However, the rules for non-personal service
permit a document to be “left at the party’s address for service”, which on its
face would appear to permit slipping it under the door of the party’s address
for service. Since Mr. Klippenstein has received the memorandum of fact and
law, there is in my view no reason to strike the Crown’s memorandum of fact and
law.
[23]
That said, it seems to me that in light of Mr.
Klippenstein’s personal circumstances, there is no reason why the Crown should not
accommodate him in future by avoiding a method of service that he finds
distressing, as long as he is not shown to be avoiding service. I will make an
order to that effect. In all other respects this motion will be dismissed.
"K. Sharlow"
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