Docket: T-1116-16
Citation:
2017 FC 48
[ENGLISH TRANSLATION]
Montréal, Quebec, January 13, 2017
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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BENOIT BOSSÉ
AND
LES IMMEUBLES
ROBO LTÉE
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Applicants
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and
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HER MAJESTY THE
QUEEN
Respondent
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JUDGMENT AND REASONS
[1]
Following a motion under Rule 51 of the Federal
Courts Rules, SOR/98-106 [the Rules], the applicants Mr. Benoît Bossé and
Les Immeubles Robo Ltée [hereinafter collectively referred to as Mr. Bossé] are
appealing two orders issued on October 5, 2016 and November 16, 2016, by
Prothonotary Morneau.
[2]
Citing Rules 221(1)(a) and (c), the October 5
order struck the statement of claim that Mr. Bossé filed with the Court in
July 2016 on the grounds that it did not reveal a reasonable cause of action
and was scandalous, frivolous or vexatious. In his order, Prothonotary Morneau
struck the entire statement, without leave to amend, and dismissed Mr. Bossé’s
action with costs. The November 16 order dismissed Mr. Bossé’s application for
reconsideration of the October 5 order on the grounds that it was plain and
obvious that the letter filed by Mr. Bossé in that regard was an indirect
appeal of the October 5 order.
[3]
Both in her written submission and at the
hearing before this Court, counsel for the respondent Her Majesty the Queen
[the Crown] argued that only the order on November 16, 2016, could be the
subject of an appeal motion under Rule 51, as the 10-day period for appealing
the October 5 order had passed and Mr. Bossé had not filed a motion seeking
extra time.
[4]
Like the Prothonotary, I am aware that Mr. Bossé
is not represented by counsel and that he does not have the benefit of
experience or of receiving advice regarding the legal process. However,
although the Court usually shows some flexibility and openness to parties not
represented by counsel, that fact alone does not exempt a party from the
obligation to respect the Rules and thus discharge the burden set out in Rule
51 within the required time (Cotirta v Missinnipi Airways, 2012 FC 1262,
at para 13, confirmed in 2013 FCA 280). This could therefore be sufficient to
dismiss Mr. Bossé’s appeal of the October 5 order, and counsel for the Crown is
correct on this point.
[5]
However, given the interests of justice and to
respond to all efforts by Mr. Bossé before this Court, I will nonetheless, in
my decision, address both Mr. Bossé’s appeal of the October 5 order by
Prothonotary Morneau and his appeal of the November 16 order.
[6]
The Federal Court of Appeal recently held in Hospira
Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 [Hospira],
that the standard of review applicable to discretionary decisions by
prothonotaries is now the standard set out by the Supreme Court of Canada in Housen
v Nikolaisen, 2002 SCC 33 [Housen] (Hospira at paras 28, 79). That
decision by the Federal Court of Appeal is in the wake of the decision in Decor
Grates Incorporated v Imperial Manufacturing Group Inc., 2015 FCA 100, in
which the Court had also retained the Housen standard for the same type of decisions
by trial judges. Under the Housen standard, “discretionary
orders of prothonotaries should only be interfered with when such decisions are
incorrect in law or are based on a palpable and overriding error in regard to
the facts” (Hospira, at para 64). Thus, the standard of correctness
applies to question of law, while the standard of palpable and overriding error
applies to questions of fact or mixed fact and law.
[7]
Prothonotary decisions regarding either a
request for reconsideration or a motion to strike are discretionary decisions
that raise questions of mixed fact and law. I therefore can only set aside the
October 5 and November 16 orders if Mr. Bossé convinces me that Prothonotary
Morneau committed a palpable and overriding error. After reading the record and
considering the written and oral submissions by the parties, I find that that
is clearly not the case for the November 16 order or the October 5 order. Mr.
Bossé’s motion must therefore fail.
[8]
If I look at the November 16 order dismissing
Mr. Bossé’s request for reconsideration, I see that Mr. Bossé’s letter on
October 11, 2016 asking Prothonotary Morneau to reconsider his October 5
decision did not include any criteria to justify reconsideration. However, Rule
397 is clear: an order by the Court can only be reconsidered if the order does
not accord with any reasons given for it or if a matter that should have been
dealt with has been overlooked or voluntarily omitted. In his order, the
prothonotary stated that it was “plain and obvious”
that Mr. Bossé’s letter “was an indirect appeal of
the October 5 order”. There is no doubt, as noted by counsel for the
Crown, that a request for reconsideration of an order is not a new opportunity
to reargue the merits of the appeal (Georgoulas v Canada (Attorney General),
2016 FCA 245, at para 8).
[9]
I therefore find no palpable and overriding
error in Prothonotary Morneau’s conclusions. I am instead of the view that, in
his order on November 16, the prothonotary did not commit any error by
dismissing Mr. Bossé’s request for reconsideration.
[10]
In his notice of motion on November 23, 2016,
Mr. Bossé also did not mention any grounds or identify any errors, and
certainly not a palpable and overriding error, in the November 16 order by the
prothonotary. Here again, I must note, as did Prothonotary Morneau before me,
that, in his motion, Mr. Bossé clearly sought to reargue the merits of the
statement that he filed with the Court. Indeed, even the conclusions of his
notice of motion are not related to the prothonotary’s decision, but instead
ask the Court to rule on his constitutional rights, the recusal of judges, the
immunity of agents of the executive who do wrong, and questions of criminal
procedure and limitations. The conclusions included in Mr. Bossé’s written
claims are similar in nature: among other things, they seek a stay of current
proceedings before another court in Canada, a ruling on other judgments or
decisions made against Mr. Bossé, and jurisdiction for another federal
organization to conduct a criminal investigation. Mr. Bossé’s oral submissions
before this Court are in the same vein: they ask that the Court order that his
cases be referred to the appropriate bodies, that other proceedings be stayed,
that judges be removed, or that a warrant of committal be executed.
[11]
Clearly, Mr. Bossé’s appeal does not raise any
palpable and overriding error in the November 16 order dismissing his request
for reconsideration. The documents filed by Mr. Bossé in support of his
appeal and the remedies sought in his motion more or less reiterate most of
what was said in the statement of claim and reflect an indirect attempt to
appeal the striking of his statement by the prothonotary in his October 5
order.
[12]
If I now examine the October 5 order striking
Mr. Bossé’s statement, the prothonotary concluded, after examining the
statement, that it did not in any way present any causes of action that respect
the rules of writing and the text of Rule 174 and that, even if such a cause of
action were identified, it was [translation]
“clear that it would not be within the jurisdiction of
the Federal Court even if the applicants tried, inter alia, to denounce
the actions of judges appointed by the federal government”.
[13]
Once again, nowhere in his notice of motion on
November 23, 2016 or in his written or oral submissions does Mr. Bossé invoke
or identify an error, and even less so a palpable and overriding error, in the
October 5 order striking his statement. In fact, as I stated above, even the
conclusions in his notice of motion and the arguments in his written and oral
claims are not related to the prothonotary’s decision, but instead ask the
Court to rule on various questions that are in or arise from his statement of
claim. Like the November 16 order, Mr. Bossé’s appeal raises no palpable and
overriding error in the October 5 order and instead reflects an indirect
attempt to appeal the striking of his statement by the prothonotary.
[14]
Indeed, the motion by Mr. Bossé and the
documents and arguments submitted in support of it instead confirm that his
statement does not raise any reasonable cause of action, does not include facts
in support of a cause of action against the Crown, and seeks remedies that are
not within the jurisdiction of the Federal Court.
[15]
The issue that I must decide in the motion filed
by Mr. Bossé in appeal of the October 5 and November 16 orders by Prothonotary Morneau
is whether the prothonotary committed a palpable and overriding error in his
decisions. Mr. Bossé alleges none in his submissions, and I am of the view that
he has not demonstrated any.
[16]
For these reasons, I must dismiss the appeal
motion by Mr. Bossé. Regarding costs, given that Mr. Bossé is not represented
by counsel and that he was not successful, I order costs of $200 against him.
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