Date: 20030618
Docket: T-546-03
Citation: 2003 FCT 754
BETWEEN:
GLEN E. P. KEALEY
Plaintiff
and
HER MAJESTY THE QUEEN,
THE JUSTICE MINISTER OF CANADA, JOHN VAISSI NAGY,
THE ATTORNEY GENERAL OF CANADA, MORRIS ROSENBERG,
THE MINISTER HUMAN RESOURCES DEVELOPMENT CANADA, PAUL MIGUS,
SUSAN WILLIAMS, THE PRIVACY COMMISSION OF CANADA,
GEORGE RADWANSKI and GERALD NEARY
Defendants
REASONS FOR ORDER AND ORDER
TABIB P.:
[1] The Court is seized with a motion brought by the Defendants Her Majesty the Queen, The Justice Minister of Canada, John Vaissi Nagy, The Attorney General of Canada, Morris Rosenberg, The Minister of Human Resources Development Canada, Paul Migus and Susan Williams for an order striking out the statement of claim, without leave to amend.
[2] The Defendants' motion is based on the following grounds:
- That the Attorney General is not a proper defendant in an action against the Crown in the Federal Court of Canada;
- That Ministers of the Crown cannot be sued in their representative capacity;
- That the Court has no jurisdiction against the individually named Defendants; and
- As against all the Defendants, that this statement of claim discloses no reasonable cause of action, is scandalous, frivolous and vexatious.
The Attorney General of Canada as a Defendant
[3] On the authority of Kealey v. Canada, [1992] 1 F.C. 195, I am satisfied that, having named Her Majesty the Queen as a defendant herein, it is improper and redundant for the Plaintiff to have also named the Attorney General as a defendant.
The Ministers in their representative capacity
[4] The Plaintiff's statement of claim is unclear as to whether the Ministers are being sued in their personal or representative capacities, although paragraphs 5 and 8 of the statement of claim setting out the responsibilities of the Ministers within the cabinet and as head of their respective departments tends to indicate that they are being sued in their representative capacity. Accordingly, and as determined by this Court in Cairns v. Farm Credit Corp., [1992] F.C.J. No. 1143 and Federation of Newfoundland Indians v. Canada, [2003] F.C.J. No. 537, I find that the Minister of Justice and the Minister of Human Resources Development are not proper defendants in this action.
The jurisdiction of the Court over the individual Defendants
[5] The Supreme Court of Canada in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752 has set out the three conditions that must be met for this Court to have jurisdiction over any matter brought before it:
" 1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in section 101 of the Constitution Act, 1867."
[6] The first part of the test is satisfied by the application of section 17 (5)(b).
[7] The cause of action asserted by the Plaintiff against the individual Defendants fails, however, to meet the second and third parts of the jurisdictional test. The Plaintiff's statement of claim makes broad allegations to the effect that the individual Defendants entered into a conspiracy to falsify the Plaintiff's medical records in order to libel and discredit the Plaintiff. The cause of action is therefore based on the common law torts of conspiracy and/or libel, which are neither the subject of any federal statutory framework nor within the legislative jurisdiction of the federal Parliament. Accordingly, whilst such allegations might properly be brought against these Defendants in a provincial Court, they are not within the jurisdiction of this Court.
Statement of claim disclosing no reasonable case of action or being frivolous or vexatious
[8] The Defendants also submit that the Plaintiff's statement of claim as a whole should be struck out pursuant to Rule 221(a), (c) and (f) of the Federal Court Rules,1998 on the basis that it discloses no reasonable cause of action, is frivolous or vexatious. This part of the Defendants' argument would apply equally to Her Majesty the Queen and to the other Defendants.
[9] The Plaintiff's statement of claim alleges the following facts and circumstances: The Plaintiff had made and application for a permanent disability pension due to rheumatoid arthritis, which was initially rejected by Human Resources Development Canada. Prior to a hearing before the Pension Appeals Board, the Plaintiff was notified that HRDC had changed its position and was now satisfied that the Plaintiff was entitled to a disability pension, but for psychiatric reasons rather than for rheumatoid arthritis. Having been unsuccessful in ascertaining the basis for the psychiatric diagnosis, the Plaintiff concludes that the Defendants conspired with each other to falsify his medical records to support their decision as to the grounds for his pension and in order to libel and discredit him. The Plaintiff therefore claims damages for "breach of constitutional rights, abuse of process, and malicious libel" in the amount of $54,000,000.00 for "theft of the privileges due to a citizen's birthright", "theft by taxation and interest by a foreign agent", "losses suffered in the MICOT PROJET", and "current abuse of process and malicious libel" plus unspecified punitive, exemplary, and special damages, interest and costs. No indications appear in the statement of claim as to the actual nature of these losses or as to any causal connection between the damages claimed and the alleged actions of the Defendants. Nor are there any allegations setting out the circumstances of the alleged conspiracy, such as the existence of an agreement between any of the Defendants to injure the Plaintiff or the means used by them to carry out the alleged conspiracy.
[10] These elements are essential to making out a case of conspiracy, as decided in [1983] 1 S.C.R. 452">Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452. Allegations of conspiracy, consisting of an imputation of misconduct and dishonesty, must be pleaded with special particularity and care. (See Pellikaan v. Canada, [2002] 4 F.C. 169). Here, based on the mere fact that he was granted a pension for psychiatric reasons without having been able to ascertain the basis for this diagnosis, the Plaintiff leaps to the conclusion that all those connected to this decision, even peripherally, together with their superiors, must necessarily be involved in a wide ranging conspiracy against him. The statement of claim does not begin to approach the degree of specificity required of allegations of conspiracy.
[11] It is therefore appropriate that the Plaintiff's statement of claim be struck out. This Court reached a similar result on an earlier motion in this case, brought by the Privacy Commissioner of Canada, George Radwanski and Gerald Neary, who had also been named as Defendants in
this action (See Reasons for order and order of Mr. Justice Simon Noël, May 23, 2003, 2003 FCT 645).
[12] I should mention here that at the hearing of this motion, I asked the Plaintiff, who represents himself, whether he understood that his pleadings did not meet the Rules and requirements for pleading, but that the Court could, within its discretion, allow him to amend his
pleadings as against Her Majesty the Queen so that his claim could have a chance of proceeding before this Court. The Plaintiff recognized that his pleadings did not meet the requirements for pleading, stated that he was not a lawyer, and indicated that he had no intention of consulting a solicitor nor of attempting to understand the Rules of the Court so that he may produce complying pleadings. Indeed, the Plaintiff appeared more interested in obtaining a decision from this Court striking out his statement of claim so that he could publish same as further evidence of the existence of a conspiracy against him and the citizens of Canada.
[13] As a result, the statement of claim will be struck out without leave to amend.
[14] The Defendants shall have their costs on this motion, in the fixed amount of $500.00.
IT IS HEREBY ORDERED THAT:
1. The Plaintiff's statement of claim herein is struck out, without leave to amend.
2. The Plaintiff is to pay the Defendants' costs on this motion, in the amount of $500.00.
"Mireille Tabib" Prothonotary
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-546-03
STYLE OF CAUSE: GLEN E.P. KEALEY v. HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: OTTAWA
DATE OF HEARING: JUNE 12, 2003
REASONS FOR ORDER
AND ORDER: MADAM PROTHONOTARY MIREILLE TABIB
DATED: JUNE 18, 2003
APPEARANCES:
MR. GLEN E.P. KEALEY FOR PLAINTIFF ON HIS OWN BEHALF
MS. SUZANNE PEREIRA FOR DEFENDANTS - HER MAJESTY THE QUEEN AND OTHERS
SOLICITORS OF RECORD:
MR. GLEN E.P. KEALEY FOR PLAINTIFF ON HIS
Kemptville, Ontario OWN BEHALF
MORRIS ROSENBERG FOR DEFENDANTS - HER
Deputy Attorney General of Canada MAJESTY THE QUEEN AND
OTHERS
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