Docket: T-217-22
Citation: 2024 FC 1250
Ottawa, Ontario, August 9, 2024
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
R. MAXINE COLLINS |
Plaintiff/Responding Party |
and |
THE ATTORNEY GENERAL OF CANADA |
Defendant/Moving Party |
ORDER AND REASONS
I. Overview
[1] The Attorney General of Canada [Defendant or AGC] brings this motion in writing pursuant to rule 369 of the Federal Courts Rules, SOR/98-106 [Rules] for an order:
removing the action from the operation of rules 294-299 of the Rules, to allow the AGC to bring a motion to strike;
directing that the Statement of Claim [SOC] be struck out in its entirety without leave to amend and that the action be dismissed;
alternatively, directing that the SOC be stuck in its entirety with leave to amend the named Defendant within 30 days;
granting costs in the amount of five hundred dollars ($500.00) to the AGC; and
such further and other relief as this Honourable Court may deem just and appropriate.
[2] R. Maxine Collins [Plaintiff or Ms. Collins] opposes the motion and requests an oral hearing.
[3] Having considered the parties’ motion records carefully, including their written submissions, I find that the principal issue at stake on this motion – whether the Plaintiff properly named the AGC as the Defendant in this action that claims relief against Canada Post Corporation [Canada Post] or, more specifically, its employees – is a legal question. Resultingly, as explained below, I determine that an oral hearing is not warranted.
[4] As I also determine and explain, the action will be removed from the operation of rules 294-299 of the Rules (i.e. the simplified action rules) to draw this matter to conclusion. I find it is plain and obvious that the SOC discloses no reasonable cause of action against the AGC. The AGC’s motion thus will be granted. The SOC will be struck without leave to amend.
[5] See Annex “A”
for relevant legislative provisions.
II. Background
[6] The AGC’s motion arises after four years of litigation punctuated with procedural complexity. Some of the more salient aspects of this matter’s history are summarized below.
[7] In 2020, Ms. Collins, filed a statement of claim against Canada Post in Court File No. T‑663-20. She also filed two motions, one for default judgment and the other to add evidence in support of the first motion. Both motions were dismissed on July 29, 2020. Justice Anne Marie McDonald determined there was no evidence that the statement of claim had been served on Canada Post. Further, Justice McDonald ordered the Plaintiff to refile the statement of claim in compliance with paragraph 171(a) of the Rules.
[8] In making this order, Justice McDonald observed that the claim was made “pursuant to 17(1), 2(d) and 48 of the Federal Courts Act.”
Because it was not an action against Her Majesty the Queen, however, Justice McDonald stated that section 48 of the Federal Courts Act, RSC 1985, c F-7, does not apply.
[9] In response to the July 29, 2020 order, Ms. Collins commenced the instant action as a simplified action, naming the Attorney General of Canada as the Defendant, instead of Canada Post. This is evident from the first sentence of the SOC which reads: “Pursuant to the Order of Justice McDonald issued July 29, 2020, on File T-663-20, the Plaintiff refiles the Statement of Claim filed June 22, 2020, for the purpose of correcting with respect to section 48 of the Federal Courts Act.”
Ms. Collins later discontinued the claim in Court File No. T-663-20 on consent.
[10] In brief, Ms. Collins alleges in the refiled SOC that Canada Post, through its employees, unlawfully has interfered with mail delivery; disclosed her personal information to third parties; and discriminated against her, resulting in asserted violations of sections 48-49 of the Canada Post Corporation Act, RSC 1985, c C-10 [CPCA], section 7 of the Privacy Act, RSC 1985, c P‑21, and subsection 15(1) of the Canadian Charter of Rights and Freedoms respectively. She also claims that certain third parties influenced Canada Post personnel. Ms. Collins seeks declaratory and monetary relief solely against Canada Post.
[11] The AGC brought a motion to strike the SOC just a little over one month after the SOC was filed but outside the time for doing so under the simplified action rules. Consequently, Associate Judge Molgat dismissed the motion, noting also that the motion record was incomplete. Before Associate Judge Molgat took this step, Ms. Collins brought a motion under rule 210 for default judgment. Pursuant to rule 51, Ms. Collins also subsequently appealed Associate Judge Molgat’s order dismissing the AGC’s motion.
[12] Both of Ms. Collins’ motions were dismissed: Collins v Canada (Attorney General), 2023 FC 863 [Collins FC 2023]. She appealed the Court’s order in Collins FC 2023 to the Federal Court of Appeal, which in turn dismissed the appeal: Collins v Canada (Attorney General), 2024 FCA 6 [Collins FCA 2024 No. 2]. The Federal Court of Appeal also dismissed the Plaintiff’s motions for recusal (Collins v Canada (Attorney General), 2024 FCA 5 [Collins FCA 2024 No. 1]) and reconsideration (unreported).
III. Issues
[13] Against the above backdrop and with regard to the parties’ motion material, I determine that the issues on this motion are:
[14] The ensuing analysis deals with each issue in turn.
IV. Analysis
A. No oral hearing
[15] In support of her request for an oral hearing, Ms. Collins points to her earlier action under Court File No. T-663-20 in respect of which Canada Post’s counsel “scheduled an oral hearing on the motion to strike.”
She also mentions the fact that the Court has not considered the issue yet. The Plaintiff further relies on this Court’s order in Collins v Canada Post Corporation, 2020 FC 969 [Collins FC 2020] at paras 31-33. In addition, Ms. Collins describes several outstanding issues including the AGC’s default status and allegations of systemic bias.
[16] I agree with the AGC that the Plaintiff’s reasons for requesting an oral hearing are insufficient. I am unaware of the context or reasons why an oral hearing was scheduled in Court File No. T-663-20. None has been provided by Ms. Collins. In addition, the Court often is called upon to determine issues in writing, including complex issues, that it previously has not addressed. Further, I note that paragraphs 31-33 in Collins FC 2020 deal with the reluctance of Ms. Collins to participate in a case management conference. The latter is not analogous or parallel to a motion in writing under rule 369 and, in my view, cannot be relied on for guidance as to whether the Court should schedule an oral hearing under subrule 369(4).
[17] Ms. Collins’ written submissions also appear to take issue with the Court’s order in Collins FC 2023 as it relates to the interpretation of rules 221 and 298, and the interaction between these two rules. The Federal Court of Appeal concluded, however, that the Court made no reversible error in this regard: Collins FCA 2024 No. 2, above at para 10. It is not open to Ms. Collins to revisit these determinations on this motion.
[18] I acknowledge Ms. Collins’ belief that as a self-represented litigant her arguments are not being considered. She provides no basis for this assertion, however. Indeed, decisions of this Court and the Federal Court of Appeal where Ms. Collins is a party demonstrate the opposite conclusion. As Collins FCA 2024 No. 1 notes (at para 12), “[t] here is a strong presumption that judges will obey their judicial oaths and act impartially.”
I add this includes considering a party’s material and submissions carefully without bias or prejudgment.
[19] Further, perceived defects, such as “gaps, imprecise wording or phrases that may seem wrong when read literally and in isolation,”
often are indicative of the result of the judicial officer’s distillation and synthesizing of data into reasons, whether brief or otherwise, as opposed to reversible errors: Millennium Pharmaceuticals Inc v Teva Canada Limited, 2019 FCA 273 at para 9.
[20] In the end, I find that the issues on this motion are well defined in the parties’ written material, thus obviating the need for an oral hearing. Ms. Collins’ submissions acknowledge that the motion involves legal questions (“the first step in addressing the Defendant’s motion is to decide the relevant questions of law”
). In other words, I consider the motion apt for disposition in writing. In keeping with the principles enunciated in rule 3, including proportionality, I thus decline the Plaintiff’s request for an oral hearing: Bernard v Canada (Attorney General), 2019 FCA 144 at para 14; Sibomana v Canada, 2016 FC 943 [Sibomana] at para 8.
B. No violation of rule 359 and subrule 47(2) by seeking “further and other relief”
[21] I cannot agree with Ms. Collins’ contention that these specific rules operate to preclude a party from seeking “further and other relief.”
Parties routinely request “such further and other relief”
as the Court may deem appropriate. As well, this Court previously has held that “the Court has the jurisdiction to control the proceedings before it and to dispense with the Rules in appropriate circumstances[; …i]ts powers include acting on its own motion”
[citations omitted]: In re motion for reconsideration of the Court’s Order in Peshdary v AGC (2018), 2020 FC 137 at para 17.
C. Systemic bias allegations cannot be considered on this motion
[22] The same issue arises here as in Collins FCA 2024 No. 2 where the Federal Court of Appeal notes (at para 12) “that the Appellant has not followed the proper procedural channels to raise a systemic discrimination claim[; t]herefore, this Court cannot rule on this claim.”
[23] On the present motion, the Court is limited to the grounds invoked by the AGC in the Notice of Motion, which are whether the proceeding should be removed from the operation of the simplified action rules and whether SOC should be struck: Arora v Canada (Minister of Citizenship and Immigration), 2001 CanLII 22038 (FC) at para 9. I turn to these issues next.
D. Proceeding will be removed from simplified action rules
[24] Ms. Collins argues that rule 292 is mandatory and cannot be overridden by rule 385. She submits that this relief should be denied because it does not have the purpose of moving an otherwise simplified action forward. For this proposition, Ms. Collins relies on the Court’s decision in DE Rodwell Investigative Services Ltd v Enoch Cree Nation Indian Band, 2003 FCT 509 (CanLII) [DE Rodwell]. I do not agree on both counts.
[25] First, rule 292 is prefaced with the words, “Unless the Court orders otherwise.”
It is inherent in the rule itself that the Court has discretion to order that an action not proceed under the simplified action rules. Further, paragraph 298(3)(a) of the Rules specifically provides that a motion may be brought at any time to remove an action from the operation of rules 294-299. It is the converse of paragraph 292(d) which permits the Court, on motion, to order that an action be conducted as a simplified action. Notwithstanding these particular rules, the Federal Court of Appeal guides that subrule 385(1) operates alongside rules 53 and 55. This means that a case management judge, who has very broad powers, “can vary any Rules in the Federal Courts Rules, dispense with compliance with them, make additional orders that are just, and attach terms to any orders”
: Mazhero v Fox, 2014 FCA 219 at para 3.
[26] Second, in my view, DE Rodwell is distinguishable from the issue presently before me. In DE Rodwell, the defendants sought to remove the proceeding from the simplified action rules to pursue summary judgment which was prohibited by reason of rule 297. The Prothonotary determined that doing so was not essential to advancing the proceeding. I add that there have been decisions of this Court in the years subsequent to DE Rodwell where the Court has granted motions to remove an action from the simplified action rules so that summary judgment could be pursued. See, for example, Source Enterprise Ltd v Canada (Public Safety and Emergency Preparedness), 2012 FC 966; Lepage v Canada, 2017 FC 1136.
[27] In any event, the Prothonotary correctly noted (at para 2) that, “[i]n each case removal from the ambit of the simplified action rules depends upon the circumstances and is discretionary”
[emphasis added]. A motion to strike a claim is essential to whether an action will proceed at all or in part and, as also noted by the Prothonotary (at para 2), such a motion should be entertained prior to the pre-trial conference. He noted the same thing in his earlier decision on which he relied in DE Rodwell, namely, Grinshpun v University of British Columbia, 1999 CanLII 9154 (FC) [Grinshpun]. In particular, the Prothonotary observed in Grinshpun (at para 6), and I agree, that a want of cause of action is basic to any proceeding.
[28] Ms. Collins argues that the Defendant is not bringing the matter forward (which would be permissible in her view) but seeks to end the matter entirely before the Plaintiff has presented evidence (which is impermissible according to Ms. Collins). In other words, she draws a distinction between instances where she is entitled to bring evidence (as in the case of a motion for summary judgment) and where she is not (on a motion to strike).
[29] Motions to strike, however, must be considered without evidence. There is a high threshold to succeed on a motion to strike. The facts are assumed to be true, meaning that if Ms. Collins cannot succeed against a motion to strike, then logically she also would not succeed against a motion for summary judgment. Giving Ms. Collins an opportunity to present evidence, as she advocates, would lead in this instance to a waste of scarce court resources, in my view, and would be contrary to the principles described in rule 3 that the Rules be interpreted and applied to secure the just, most expeditious and least expensive outcome, bearing in mind proportionality.
E. SOC will be struck pursuant to rule 221
[30] The AGC argues the SOC could be struck under paragraphs 221(1)(a), (c) and (f) of the Rules. While I find that the determinative issue is whether the SOC discloses a reasonable cause of action, which in my view it does not, I briefly consider paragraphs 221(1)(c) and 221(1)(f) for completeness.
(1) Paragraph 221(1)(a) of the Rules
[31] Generally, a statement of claim will be struck only if it is plain and obvious, assuming the pleaded facts are true (unless they are manifestly incapable of being proven), that the claim discloses no reasonable cause of action or is lacking any reasonable chance of success in the context of the applicable law and the litigation process: R v Imperial Tobacco Canada Ltd, 2011 SCC 42 [Imperial Tobacco] at paras 17, 21-22 and 25. Imperial Tobacco guides (at para 21) that this valuable tool must be used with care; the approach must be generous, erring on the side of allowing a novel but arguable claim to proceed to trial. That said, the principle that pleaded facts are to be taken as true does not apply to allegations based on speculation and assumptions: Burke v Canada, 2021 FC 634 at para 34.
[32] To succeed here, the AGC must establish that the SOC is “so clearly improper as to be bereft of any possibility of success,”
i.e. that it is so fatally flawed it strikes at the heart of the Court’s ability to entertain it: Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at para 47 [JP Morgan]; Murphy v Canada (Attorney General), 2022 FC 146 at para 9. The focus is on the real essence of the SOC, read holistically and taking the pleaded facts as true: Oleynik v Canada (Attorney General), 2023 FC 303 at para 6, aff’d 2023 FCA 162.
[33] In essence, the SOC entails an action against Canada Post or, more specifically, its employees who are unnamed. It avers in the first paragraph that the SOC is filed, pursuant to Justice McDonald’s July 29, 2020 order on Court File No. T-663-20, “for the purpose of correcting with respect to section 48 of the Federal Courts Act.”
Further, the SOC states that, pursuant to subsection 23(1) of the Crown Liability and Proceedings Act, RSC 1985, c C-50, the AGC is the correct Defendant because the CPCA “does not contain a provision authorizing proceedings to be taken in the name of the agency.”
The SOC also states that, pursuant to paragraph 5(d) of the Department of Justice Act, RSC 1985, c J-2, the AGC “shall represent in this action.”
The pleading next claims that the “within action against Canada Post Corporation is pursuant to 17(1), and 2(d) of the Federal Courts Act, 24(1), subsection 15(1) of the Charter of Rights and Freedoms, and 7 of the Privacy Act.”
[34] The SOC continues with details of the asserted “acts of misfeasance in public office by employees of Canada Post who must have been aware both that his or her conduct was unlawful and that it was likely to harm the Plaintiff through interfering with postal services including those related to litigation.”
According to the SOC, Canada Post did not benefit from these acts, was not a party to them or a person of interest, nor did Canada Post have an independent motive, unlike its employees. Rather, the SOC alleges that “employees of Canada Post discriminated against the Plaintiff as a Federal Government Whistleblower in July 2006.”
[35] The SOC describes the Plaintiff’s presumption that Canada Post would not interfere in mail delivery at the request of a corporation or private practice law firm. It does allege, however, that there are certain named and unnamed third parties who have a litigation or other interest in discrediting the Plaintiff and are capable of influencing Canada Post personnel directly or indirectly.
[36] The SOC claims that “Canada Post has delayed and obstructed the Plaintiff’s mail delivery [to the Supreme Court of Canada] with respect to time sensitive litigation documents”
as early as 2011. The SOC also alleges that, among other incidents implicating Canada Post or its personnel, Canada Post shared the Plaintiff’s personal information, including a change of address, with a third party. The SOC levels a pattern of harassment against Canada Post.
[37] I add that, in addition to the asserted whistleblowing, the root of the current proceeding (leaving aside the alleged late delivery to the Supreme Court of Canada), is landlord and tenant disputes involving air quality in rental units and the Plaintiff’s efforts to obtain, service, and use carbon dioxide [CO2] and nitrogen dioxide [NO2] monitors. Canada Post or its employees are implicated in the SOC in a cascade of events described in detail related to the landlord and tenant disputes and the CO2 and NO2 monitors.
[38] Most of the declaratory and monetary relief Ms. Collins seeks in this action names Canada Post specifically. Ms. Collins also seeks costs of the action, as well as a monthly sum “for each month after leaving Ontario that the Plaintiff has been deprived of the security of the person.”
None of the relief names the Crown specifically.
[39] Starting with the relief sought for having left Ontario, I determine it is plain and obvious that that claim has no chance of success before the Federal Court because it is, in effect, a disguised attempt to achieve before this Court a result that otherwise is unachievable.
[40] The SOC describes (at paragraph 35) that Ms. Collins left Ontario because she feared “alleged harassment by landlords [who] would continue without any protection before the LTB [Landlord and Tenant Board] under the Residential Tenancies Act.”
The SOC fails to provide any material facts from which I can conclude that the Federal Court has the requisite jurisdiction to entertain such a claim, given that, at the very least, the admitted cause of the Plaintiff’s departure from Ontario is not the Defendant nor Canada Post. I add that the Plaintiff’s conclusion (at paragraph 51 of the SOC) that government lawyers were involved is wholly speculative and lacking any reasonable foundation to ground a claim against the AGC. On this point, I agree with the AGC.
[41] Consequently, I find it unnecessary in respect of this specific relief claimed (concerning the Plaintiff’s move from Ontario) to engage in a more formulaic ITO analysis of the Court’s jurisdiction. (See, for example, this Court’s decision in Van Sluytman v Canada, 2022 FC 545 [Van Sluytman] at paragraphs 16-17, citing ITO-International Terminal Operators Ltd v Miida Electronics Inc, 1986 CanLII 91 (SCC) [ITO] and Windsor (City) v Canadian Transit Co, 2016 SCC 54, respectively.) As noted in Van Sluytman (at para 15), the Federal Court “does not have broad supervisory powers over businesses, provincial governments and agencies, or provincial law enforcement[; r]ather, the Federal Court is a statutory court with limited and specific jurisdiction.”
[42] I turn next to a consideration of the remaining relief sought against Canada Post in the context of the Federal Court’s jurisdiction, as derived in large measure from the Federal Courts Act and applicable jurisprudence.
[43] As a starting point, I note that, contrary to the Plaintiff’s submissions, subsections 17(1) and (2) and section 48 of the Federal Courts Act do not apply to Canada Post. These provisions apply only to the Crown eo nomine, or “under that name”
: Lavigne v Canada Post Corporation, 2006 FC 1345 at paras 44-49, aff’d 2007 FCA 123 [Lavigne]; Van Sluytman, above at para 57.
[44] Lavigne draws a distinction between an action under section 17 of the Federal Courts Act and a judicial review under section 18.1. While Canada Post falls within the definition of a “federal board, commission or tribunal”
(pursuant to subsection 2(1) of the Federal Courts Act) whose decisions can be reviewed judicially, section 17 is more restrictive and contemplates relief only against the Federal Crown: Lavigne, above at paras 45-46, citing Varnam v Canada (Minister of National Health and Welfare), 1988 CanLII 9346 (FCA).
[45] Recent cases of this Court confirm that by virtue of section 17 of the Federal Courts Act, the Court’s jurisdiction applies only to the Crown eo nominee (i.e. by that name), and not to a statutory corporation acting as an agent for the Crown, including Canada Post: Van Sluytman, above at paras 56-58; Albert v Canada Post Corporation, 2024 FC 420 [Albert] at para 52.
[46] Both Van Sluytman and Albert refer to this Court’s decision in Committee for Monetary and Economic Reform v Canada, 2014 FC 380 at paras 87‑88; aff’d 2015 FCA 20, which in turn relies on the Federal Court of Appeal decision in Rasmussen v Breau, 1986 CanLII 6851 (FCA) [Breau], for the above proposition about the Court’s jurisdiction in respect of the Crown.
[47] The decision in Breau refers to yet another decision of the Federal Court of Appeal issued contemporaneously with Breau, namely, Brière v Canada Mortgage and Housing Corporation, 1986 CanLII 6895 (FCA) [Brière]. Brière holds that section 17 of the Federal Courts Act (formerly, the Federal Court Act) does not authorize an action against an agency of the Crown but only against the Crown eo nomine.
[48] Further, Brière holds that a Crown corporation can be found liable, not only for its own wrongful acts but also for those of its servants or employees who are not Crown servants. Like the Canada Housing and Mortgage Corporation Act that was in issue in Brière, the CPCA here provides (sections 12 and 13) that Canada Post may employ officers and employees who are deemed not to be employed in the federal public administration (i.e. they are not Crown servants), except for a narrow, inapplicable exception described in subsection 13(4).
[49] In addition, the Federal Court of Appeal has determined that the CPCA “removed employment in the Post Office from the public service”
: Canada Post Corp v CUPW, 1987 CanLII 8970 (FCA). As the authors of the Federal Courts Practice (Toronto: Carswell, 2024) observe at §1:3, “[i]n the situation of actions alleging vicarious liability for the torts of a Crown agent corporation's employees where a statute provides that they are not servants of the Crown, the Crown agent corporation can only be sued in the appropriate provincial court.”
[50] The Court of Queen’s Bench of Alberta (as it then was, now the Court of King’s Bench of Alberta), notes that the CPCA does not provide expressly that Canada Post can sue or be sued: Thomas v Canada (Attorney General), 2006 ABQB 730 [Thomas] at para 20. I do not accept Ms. Collins’ contention, however, that this means Canada Post cannot sue or be sued in its own name. As the Court in Thomas further notes (at para 20), there also is no declaration stating that the corporation cannot sue or be sued. I also do not take the July 29, 2020 order of Justice McDonald as meaning that Canada Post cannot be sued in its own name.
[51] Subsection 16(1) of the CPCA states that “in carrying out its object and duties under this Act, the Corporation has the capacity, and subject to this Act, the rights, powers and privileges of a natural person.”
As observed in Thomas (at para 26), “Canada Post Corporation is an incorporated entity that is capable of litigating in its own name. There are numerous examples where it has done so. Canada Post Corporation has even been involved in litigation against the Attorney General of Canada.”
[52] While the court in Thomas acknowledges that Canada Post could be represented by the AGC by virtue of its status as a Crown agent, the court nonetheless was “reluctant to accept the proposition that the Attorney General can represent Canada Post without their direction or consent[; …] Canada Post is operated as a separate entity from the Crown”
: Thomas, above at para 23.
[53] As this Court previously has held, “[a]lthough Parliament was not overly zealous in clarifying Canada Post’s occasional role as agent, it does not seem reasonable to me to draw a general conclusion to the effect that Canada Post is at all times an agent of the [Crown]”
[emphasis added]: Transport Ronado Inc v Canada, 2007 FC 166 at para 45. In my view, this determination is consistent with the Federal Court of Appeal’s findings in Brière. Further, it is seemingly reinforced by section 24 of the CPCA which provides that Canada Post may enter into contracts with the Crown as though it were not an agent of the Crown.
[54] Absent material facts that aver to wrongdoing on the part of the Crown specifically, I conclude that the SOC as pleaded has no possibility of success against the AGC. Similarly to Associate Judge Horne’s determination in Van Sluytman (at para 83), I am not persuaded that the Plaintiff before me could draft a pleading, based on the asserted facts taken as true, in any manner that would require the AGC, whether in his own right or on behalf of the Crown, to respond to an action for the alleged wrongful acts of Canada Post or, more particularly, Canada Post’s employees who are not Crown servants.
(2) Paragraphs 221(1)(c) and (f) of the Rules
[55] That said, while I am satisfied that the action is frivolous and vexatious, I am not persuaded that it is otherwise an abuse of process, as argued by the AGC.
[56] Here, I ascribe to the words “frivolous”
and “vexatious”
the meaning of a proceeding that lacks, as pleaded, a reasonable cause of action in this Court: kisikawpimootewin v Canada, 2004 FC 1426 at para 8, citing Ceminchuk v Canada, [1995] F.C.J. No. 914 at para 10. This meaning is consistent, in my view, with my determination above regarding paragraph 221(a) of the Rules and, thus, supports the conclusion that the action is frivolous and vexatious.
[57] The AGC submits that the claim is frivolous and an abuse of process because the SOC was refiled naming a different defendant, with the earlier action discontinued on consent. In other words, Ms. Collins took these steps without complying in the earlier action with paragraph 171(a) of the Rules, as ordered by Justice McDonald. The AGC, however, has not provided any cases holding that a claim, such as a subsequent or refiled claim that names a different defendant, is an abuse of process. Further, I am not persuaded that the issues of res judicata or issue estoppel apply here, as submitted by the AGC, when there was no final decision by the Court in the earlier action.
[58] The AGC states that there is “no rational argument to support the naming of the AGC.”
As the above reasons show, however, the principal-agent relationship is complicated. A self-represented litigant, acting alone and without the assistance of counsel, should not be blamed unduly for the state of the claim: Sibomana, above at para 9.
[59] Ms. Collins argues that the Notice of Motion did not provide supporting grounds for the allegation that the SOC was frivolous, vexatious, or an abuse of process. I note that on page 3 of the Notice of Motion, the Defendant claims that “[t]he Statement of Claim is frivolous and an abuse of process.”
While elaboration is lacking, this is not a case where the Notice of Motion does not raise the issues at all; in fact it does. Further, the AGC’s written representations in the motion record provide details. In my view, nothing turns on the state of the Notice of Motion insofar as these issues are concerned.
F. No leave to amend the SOC
[60] As alluded above in paragraph 54 of these reasons, I determine that an amendment would not cure the issues with the SOC. The facts as pleaded simply do not disclose a cause of action against the Crown, or the AGC on behalf of the Crown, neither of which can be vicariously liable for the acts of Canada Post’s employees. Further, there is no allegation that Canada Post has authorized or given consent to the AGC to act on its behalf. The decision in Geophysical Service Inc v Canada, 2018 FC 670, which involves a claim alleging that Crown servants had acted beyond the scope of their authority, is thus distinguishable.
V. Conclusion
[61] For the above reasons, the AGC’s motion will be allowed and the SOC will be struck without leave to amend. The Plaintiff asserts that she can sue the AGC as the principal of Canada Post, a Crown corporation. Canada Post, however, routinely conducts its own affairs and can be sued in its own name. Further, the AGC, either on his own behalf or on behalf of the Crown, cannot be sued for vicarious liability stemming from the actions of Canada Post’s employees, because the employees are not Crown servants. Accordingly, the SOC does not disclose a reasonable cause of action against the AGC and does not involve, in any manner, a claim against the Crown eo nomine.
VI. Costs
[62] The AGC has requested costs for this motion. Relying on my discretion pursuant to rule 400, I award the AGC the lump sum costs in the amount of $500 payable by the Plaintiff.
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