Doe v. Canada (Attorney General), 2003 FCT 181

Date: 20030217

Docket: T-1114-02

Neutral citation: 2003 FCT 181

Vancouver, British Columbia, Monday, the 17^th day of February, 2003

Present:           THE HONOURABLE MR. JUSTICE LEMIEUX

BETWEEN:

                                                   MARK DOE and (OMITTED) INC.

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 The plaintiffs, in this action initiated against the defendant on September 11, 2002, seek substantial damages from the Federal Crown based on several categories of tortious conduct alleged against a Crown agent.

[2]                 A statement of defence has been filed and the defendant produced an affidavit of documents in which he claimed privilege on nine documents based on section 38 of the Canada Evidence Act (the "Act).

[3]                 On February 5, 2003, the Federal Crown filed a motion to strike the statement of claim, a motion set down for hearing on March 26, 2003.

[4]                 In a recently filed affidavit, the individual plaintiff, a self-represented litigant, admitted the statement of claim was defective and should be amended, but to do so he required experienced counsel to assist him with his pleadings. This he cannot do, he asserts, because he has no funds but has an appeal to the Federal Court of Appeal, which will hopefully be heard in March 2003, from an order of the Associate Chief Justice denying him his application for funding.

[5]                 He further identified his amended pleadings are likely to contain information triggering section 38 of the Act, and the procedures provided there for a determination of questions of privilege.

[6]                 Counsel for the defendant seeks the following orders:

1.          That this action be specially managed by a judge who is also a designated judge able to handle section 38 Canada Evidence Act issues.

2.          The fixing of a date for filing the plaintiffs' amended statement of claim.

3.          Fixing the first case management conference.

[7]                 On consent, pursuant to Rule 384 of the Federal Court Rules, 1998 (the "Rules"), I order that this action be managed as a specially managed proceeding by a judge, who is also a designated judge, to be assigned by the Associate Chief Justice.

[8]                 I agree that the next step in the procedure should be the filing by the plaintiffs of an amended statement of claim. I am not prepared to fix a time by which that amendment should be served and filed because of the uncertainty surrounding the ability of the plaintiffs to retain counsel.

[9]                 However, I am concerned any amendment of the statement of claim filed will contain information covered by section 38 of the Act before the procedures provided for in that section can be invoked. I therefore order the sealing of any such amendment on filing in order that the procedures contemplated by section 38 can be invoked.

[10]            In the circumstances, the defendant's motion to strike the plaintiffs' statement of claim should be adjourned sine die.

                                                                            ORDER

THIS COURT ORDERS that:

1.          This action shall be managed as a specially managed proceeding by a judge, who is also a designated judge for section 38 Canada Evidence Act matters, to be assigned by the Associate Chief Justice.

2.          The next procedural step in this action is the filing of the plaintiffs' amended statement of claim on or before a date to be fixed by the case management judge at a case management conference to be held at the request of either party.

3.          Any amended statement of claim filed by the plaintiffs shall be sealed and not be placed on the public file until further order of the Court.

4.          The defendant's motion to strike dated February 4, 2003 and filed February 5, 2003, scheduled for hearing on March 26, 2003, is adjourned sine die.

(Sgd.) "F. Lemieux"

Judge

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-1114-02

STYLE OF CAUSE:                           MARK DOE and (OMITTED) INC.

v. THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     Vancouver, B.C.

DATE OF HEARING:                       February 17, 2003

REASONS FOR ORDER AND ORDER:                           LEMIEUX J.

DATED:                                                                                       February 17, 2003

APPEARANCES:

Mr. Brad Kempo                                                                           on his own behalf

Mr. Jan Brongers

Mr. Glenn Rosenfeld                                                                       for Defendant

SOLICITORS OF RECORD:

Morris Rosenberg                                                                           for Defendant

Deputy Attorney General of Canada