R. v. Edgelow, 2003 FC 1118

                                                                                                                                           Date: 20030930

                                                                                                                                     Docket:    T-1089-03

                                                                                                                              Citation: 2003 FC 1118

Ottawa, Ontario, this 30^th day of September, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                                 SCOTT EDGELOW

                                                                                                                                                       Applicant

                                                                              - and -

                                                THE QUEEN IN RIGHT OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

Introduction

[1]                 Mr. Scott Edgelow (the "applicant"), brings a motion pursuant to Rule 51(1) of the Federal Court Rules SOR/98-106 (the "Rules") to appeal the August 12, 2003, decision of Prothonotary Hargrave striking out the applicant's statement of claim for not disclosing a cause of action. Rule 51(1) provides that an order of a prothonotary may be appealed by motion to a judge of the Federal Court Trial Division.

Background

[2]                 The applicant filed a statement of claim on June 26, 2003. On July 14, 2003 the Queen in right of Canada (the "respondent"), brought a motion to have the statement of claim struck out pursuant to Rule 221(1)(a) for not disclosing a cause of action.

[3]                 By order dated August 12 , 2003, Prothonotary Hargrave granted the motion and issued an Order striking out the statement of claim for not disclosing a cause of action. In so doing the Prothonotary found that the statement of claim made many bare assertions, referred to much legislation, both Canadian and foreign, alleged injury, discrimination and abuse of power and process. In his Order striking the statement of claim, the Prothonotary reasoned as follows:

The statement of Claim provides absolutely no factual material either to put the bare statements into a context bearing on the Plaintiff and by which the Plaintiff might have any semblance of a claim, or to give the Defendant some scintilla of an idea of what the claim is about.

[4]                 The Prothonotary also struck the statement of claim because he found it to be a vexatious and embarrassing proceeding and did not contain any facts which would enable the Court to regulate the proceedings or allow the Defendant to react to and deal with those assertions and conclusions.

[5]                 Finally, the Prothonotary concluded that since there was not "a scintilla of a cause of action" set out in the Statement of claim, there was no apparent amendment that could assist the Plaintiff.

Standard of Review

[6]                 Discretionary orders of prothonotaries ought not to be disturbed on appeal unless they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the law, or they raise questions vital to the final issue of the case. In such circumstances, the judge ought to exercise his own discretion de novo: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425. The decision under appeal raises questions that are clearly vital to the final issue of the case. I will therefore exercise my discretion de novo.

Analysis

[7]                 In his written and oral submissions the applicant argues that the materials contained in his statement of claim are sufficient to set out a cause of action. He argues that the respondent could have requested better particulars if necessary. He produced copies of certain documents, among other, the "Bagley Report", which deals with Sexual Offences against Children and Youths. As with the statement of claim, the applicant fails in his submissions to put the facts presented through these reports into a context bearing on the plaintiff by which he could make out a claim. The applicant fails to address the specific concerns raised by the Prothonotary in his order striking the statement of claim. He appears not to appreciate the distinction between pleading material facts and making bare assertions. In paragraph 2 of the statement of claim, the plaintiff alleges that "the defendant was negligent in dealing with sexual abuse." The statement of claim otherwise fails to provide any particulars with respect to the alleged abuse.

[8]                 I have carefully reviewed the statement of claim and have carefully considered both the oral and written submissions of the applicant. I find that the statement of claim contains no material facts upon which a cause of action could be founded. I am of the view that it is plain and obvious that the plaintiff's statement of claim discloses no reasonable cause of action. I am also satisfied that the statement of claim is so deficient that no apparent amendment would cure it. I am in agreement with the Order of Prothonotary Hargrave. I am of the view that the Prothonotary applied the correct principles of law and properly applied these principles to the circumstances before him in reaching his decision to strike the statement of claim.

Conclusion

[9]                 For the reasons set out above, the motion appealing the August 12, 2003, Order of Prothonotary Hargrave will be dismissed.

                                                                            ORDER

THIS COURT ORDERS that:

1.        The applicant's motion pursuant to Rule 51(1) of the Federal Court Rules, 1998, SOR/98-106, to appeal the August 12, 2003, decision of Prothonotary Hargrave is dismissed.

                                                                                                                                 "Edmond P. Blanchard"            

                                                                                                                                                               Judge                 

                        FEDERAL COURT OF CANADA

             Names of Counsel and Solicitors of Record

DOCKET:                                              T-1089-03

STYLE OF CAUSE:              Scott Edgelow v. The Queen in Right of Canada

PLACE OF HEARING:                         Calgary, Albert

DATE OF HEARING:                           Thursday, September 18, 2003

REASONS FOR ORDER BY:             BLANCHARD, J.

DATED:                                                    September 30, 2003

APPEARANCES BY:                             

Mr. Scott Edgelow                                                         For the applicant

Calgary, Alberta                                                            

Mr. Barry Benkendorf                                                   For the respondent

Edmonton, Alberta

SOLICITORS OF RECORD:                

Mr. Scott Edgelow,                                                        For the applicant

Litigant in Person

Morris Rosenberg                                                           For the respondent

Deputy Attorney General of Canada

Edmonton, Alberta

FEDERAL COURT OF CANADA

             Docket:    T-1089-03

BETWEEN:

             SCOTT EDGELOW

Applicant

                   - and -

     THE QUEEN IN RIGHT OF CANADA

                                  Respondent

     REASONS FOR ORDER AND ORDER