Mennes v. Simpson, 2003 FC 923

                                                                                                                                           Date: 20030729

                                                                                                                                           Docket: T-97-03

                                                                                                                                 Citation: 2003 FC 923

Ottawa, Ontario, Tuesday, this 29^th day of July, 2003

PRESENT:      MADAM PROTHONOTARY MIREILLE TABIB

BETWEEN:

EMILE MENNES

                                                                                                                                                       Applicant

                                                                              - and -

ROBERT SIMPSON, YVAN THIBAULT,

LUCY McCLUNG, and

THE CORRECTIONAL SERVICE

OF CANADA

Respondents

ORDER AND REASONS FOR ORDER

TABIB P.:

[1]                 The Court is seized of a motion, made in writing pursuant to Rule 369 of the Federal Court Rules, 1998, brought by the Respondents for an order striking out the Applicant's notice of application.

[2]                 The grounds for the Respondents' motion are:

-            that the Respondents named are not proper respondents to the application and ought to be removed and substituted with the Attorney General;

-            that the application is directed at more than a single order or decision, contrary to Rule 302 of the Federal Court Rules, 1998;

-            that the Applicant has failed to serve and file supporting affidavits within the time limits prescribed by Rule 316;

-            that the application improperly requests injunctive relief against the Crown; and

-           that the application is bereft of any possibility of success and is an abuse of process.

[3]                 Alternatively, the Respondents seek an order requiring the Applicant to provide security for costs.

[4]                 In response to this motion, the Applicant filed his own affidavit, dated May 23, 2003. The Respondents, as a preliminary matter, take issue with that affidavit, especially with paragraphs 50 through 64 thereof, which they characterize as scandalous, false and defamatory statements made in respect of two Department of Justice lawyers. The Respondents also attack the affidavit as a whole as containing opinion, unjustified hearsay and arguments of law.

[5]                 Having perused the affidavit of the Applicant, I consider that the greater parts of the affidavit are entirely irrelevant. The only allegations of fact which have any bearing on the motion before the Court are found in paragraphs 1, 4 to 6, 11 to 13 and 46. Paragraphs 14 to 18, 20, 21, 51 and 65 could be characterized as permissible arguments on the motion, and will be allowed even though they are improperly included in an affidavit. The remainder of the affidavit will be struck out from the record.

[6]                 That part of the Respondents' motion which requests that the Respondents be struck out from the style of cause and replaced with the Attorney General will be dealt with at a later point in these reasons. The Respondents' argument on that issue relies on the ground that they are not directly affected by the orders sought, when in fact the orders sought would indeed affect the Respondents directly, if they were permissible. One of the main problems with the application (and by no means the only one) is precisely that it seeks inappropriate remedies and orders. I will therefore begin by addressing the issue of the propriety of the relief sought.

[7]                 The relief claimed in paragraphs 3 to 12, 21 and 22 is in the form of declarations that the Respondents, or some of them, committed certain criminal acts or infractions, defined by precise reference to the Criminal Code and to the Correctional Service of Canada Code of Discipline.    Paragraphs 13 to 19 seek declarations that certain actions taken by the Respondents or some of them constitute defined torts against the Applicant and/or a third party. Paragraph 20 seeks a declaration of entitlement to compensation in the amount of $50,000 for alleged breach of the Applicant's Charter rights. Paragraph 23 seeks an injunction against the Respondent the Correctional Service of Canada and/or its servants from "ever again" seizing, opening, searching or reading mail between the Applicant and the Speaker of the Alberta Legislative Assembly.

[8]                 An application seeking a declaration from this Court that a person or persons have committed criminal acts or any penal infraction is clearly improper and bereft of any possibility of success. Similarly, this Court has no jurisdiction to issue an injunction against any servant or agent of the Crown (s. 22 of the Crown Liability and Proceedings Act R..S. 1985, c. C-50). Even if it did, the relief sought is clearly over broad, as the Correctional Service of Canada does have regulatory powers to intercept communications between an inmate and a member of the legislature where the conditions set out in the Corrections and Conditional Release Regulations SOR/92-620 (the "Regulations") are met. As for a declaration that torts have been committed against the Applicant or that the Applicant is entitled to compensation, such remedies must properly be sought by way of action, and not by way of application for judicial review.

[9]                 While striking out an application or parts thereof on a preliminary motion must be very exceptional (David Bull Laboratories (Can.) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588), the relief sought by the Applicant in these paragraphs is so clearly improper, the number of decisions under review so numerous and the allegations in support of these claims for relief so disjointed, irrelevant, confusing and malicious that they would, in my view, constitute an abuse of process if allowed to proceed in their current form. Paragraphs 3 to 23 of the notice of application stating some of the relief sought by the Applicant will therefore be struck out, as will be paragraph 24, seeking an order that the balance of the application be treated as an action. All paragraphs of the notice of application that relate to these remedies are also struck out.

[10]            There remain of the Applicant's prayers for relief those contained in paragraphs 1, 2, 25 and 26 of the notice of application. Paragraphs 1 and 2 seek declarations that the grounds stated by the Correctional Service of Canada for intercepting correspondence from the Speaker of the Alberta Legislative Assembly are insufficient under the Regulations, and that the interception of that correspondence by the Correctional Service of Canada violated the Applicant's rights under s. 8 of the Canadian Charter of Rights and Freedoms. Paragraph 25 seeks costs of the application, while paragraph 26 is the usual request for "such further or other order" as the Court may provide.

[11]            It appears that the relief claimed in paragraphs 1 and 2 of the notice of application relate to a single instance where a letter addressed by the Speaker of the Legislative Assembly of Alberta to the Applicant was intercepted. The second ground for the Respondent's motion therefore does not apply. While one might question whether the remedy sought will be useful, whether the notice of application was filed in a timely manner and whether the Applicant's failure to go through the grievance procedure provided in the Regulations could constitute a bar to judicial review, these grounds have properly not been raised by the Respondents as they are normally to be argued at the hearing on the merits of the application (see: Hamilton-Wentworth (Regional Municipality) v. Canada (2000) 187 F.T.R. 287; Lazar v. Canada (A.G.) [1998] F.C.J. No. 867 ). Accordingly, the Respondents have not established that the application in respect of these two prayers for relief is so obviously devoid of any possibility of success that it ought to be struck out.

[12]            Limited as it is to the single instance of the interception of a letter from the Alberta Legislative Assembly, the application for judicial review clearly does not affect the Respondents, as provided in Rule 303 (1) (a) of the Federal Court Rules, 1998. The Respondents are consequently improperly named as Respondents to this proceeding and will be struck out. Pursuant to Rule 303 (2), the Attorney General of Canada shall be substituted as a Respondent.

[13]            Turning now to the issue of whether the application should be struck out by reason of the Applicant's failure to serve and file supporting affidavits within the time provided in the Rules, I note that the Court record herein discloses that the Applicant's affidavit, dated January 31, 2003, was filed on the same day, accompanied by an affidavit of service of the said affidavit by mail on the Deputy Attorney General of Canada.

[14]            I have no reason to doubt that, whatever happened to the mailing destined to the Respondents, the Applicant did intend and take appropriate steps to serve his affidavit on the Respondents within the time allowed to do so. This ground of the Respondents' motion therefore fails.

[15]            As a result of the above, the application for judicial review will be allowed to proceed, but on the sole decision of the Correctional Service of Canada to intercept the letter addressed to the Applicant by the Speaker of the Legislative Assembly of Alberta, and for the specific relief claimed in paragraphs 1, 2, 25 and 26 of the original notice of application. The notice of application would also need extensive amendments so as to remove any and all allegations which do not specifically and exclusively relate to the decision under review and the grounds for claiming the relief sought. As mentioned above, the allegations of the notice of application are generally disjointed, irrelevant, confusing and malicious. Where they have relevance, it is often in relation to the claims for relief that are being struck out by the present order. It is therefore impossible for this Court to surgically remove irrelevant allegations so that a coherent and complete notice of application can be pieced together. The notice of application shall therefore be struck out, as a whole, with leave to amend in compliance with these reasons for order.

[16]            The Respondents' motion seek, as an alternative remedy in the event the application is allowed to proceed: an extension on time to take various steps, which will not be necessary in view of the need for the Applicant to file an amended notice of application, and an order requiring the Applicant to provide security for costs.

[17]            Pursuant to Rules 415 and 416 (1) (f) of the Federal Court Rules, 1998, an applicant may be ordered to file security for costs where there exists an unsatisfied order for costs against the applicant in favour of the respondent in the same or another proceeding. There exists such an unsatisfied award of costs in Court file A-408-00.

[18]            An order for security for costs is a discretionary measure. Rule 417 sets out some of the factors that may be considered in exercising this discretion: that the applicant is impecunious and that the Court is of the opinion that the case has merit. The Applicant has certainly demonstrated impecuniosity. However, and as set out above, I am far from convinced of the merits of the application. That in itself would be sufficient grounds for me to exercise my discretion in granting the Respondent's motion for security for costs in spite of the Applicant's impecuniosity. I am however further persuaded by the fact that the Registry of the Court reveals the existence of at least nine proceedings instituted by the Applicant in this Court within the last five years, together with eight appeal proceedings which have been either dismissed or discontinued. The Respondents' motion being successful for the most part, and the Applicant's contestation being for the most part irrelevant and abusive, I will further award costs of this motion to the Respondents. As a result, I conclude that it is appropriate and necessary for the Applicant to be required to file security for the Respondent's costs. However, considering the Applicant's impecuniosity, security shall be given in stages pursuant to Rule 416 (2).

IT IS HEREBY ORDERED THAT:

1.          The Respondents' motion is granted in part;

2.          The Respondents, Robert Samson, Yvan Thibault, Lucy McClung and the Correctional Service of Canada are removed as Respondents, and the Attorney General of Canada is substituted as Respondent. The style of cause is to be amended as follows:

Between:

Emile Mennes

Applicant

and

The Attorney General of Canada

Respondent

3.          The notice of application is struck out, with leave to amend in accordance with paragraph [15] of these reasons for order. The Applicant is to serve and file its amended notice of application no later than thirty days following the filing of the security for costs provided by this order.

4.          The Applicant shall, within 90 days from the date of this order, file an initial amount of $750.00 as security for costs.

5.          The Applicant shall take no further steps in this proceeding, other than an appeal from this order, until security for costs has been filed.

6.          The Respondent may move for an order that further security for costs be provided as costs are incurred.

7.          The Respondent shall have its costs of this motion.

                                                                                                                                              "Mireille Tabib"         

Prothonotary             

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                                     T-97-03

STYLE OF CAUSE:                                                                  EMILE MENNES v. ROBERT

SIMPSON ET AL

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                                 MADAM PROTHONOTARY MIREILLE TABIB

DATED:                                                                                        JULY 29, 2003

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: