Millette v. Canada, 2003 FC 1268

Date: 20031030

Docket: T-721-03

Citation: 2003 FC 1268

BETWEEN:

ÉRIC MILLETTE

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]        This case concerns a motion by the defendant under paragraph 221(1)(a), (e) and (f) of the Federal Court Rules, 1998 ("the Rules") asking the Court to strike allegations from the plaintiff's statement of claim ("the statement of claim").

[2]        This motion by the defendant is the second objecting to the plaintiff's statement of claim. I consider that it is nevertheless permitted by my order of September 16, 2003, and does not duplicate what was decided in that order.

[3]        It is the plaintiff himself who incurred this insistence by the defendant, since the body of the text of his statement of claim continues the approach he took in the earlier argument involving, as in the case at bar, his relations with the defendant about his tax situation (cases T-1096-96 and T-1706-01).

[4]        At paragraph 32 of her written submissions in support of her motion, the defendant stated that she did not seek total deletion of the plaintiff's statement of claim and certain allegations in that statement could stand. The said paragraph 32 reads:

[TRANSLATION]

Without at the same time admitting the merits of this action, the defendant submits that maintaining the allegations contained in paragraphs 1(a) and (b), 2(d), 4 to 12, 16 to 20, 22 to 30 and 99 to 135 of the statement of claim would be quite sufficient for the purposes of an action for damages.

[5]        It appeared from the hearing of this motion in court that the plaintiff admitted that his causes of action were summarized in paragraph 1 of his statement of claim. Paragraph 1(a) and (b) deals solely with a cause of action for damages based on extra-contractual liability, and paragraph 1(c) deals solely with the recovery of an amount of interest which the plaintiff argued was added by the defendant by mistake when collecting the tax balance owed by him.

[6]        The plaintiff also admitted that in his instant action he is not in any way seeking a new ruling on the legality and legitimacy of the recovery and execution measures taken by the Canada Customs and Revenue Agency pursuant to section 225.1 of the Income Tax Act, or asking this Court to review the merits of any assessment.

[7]        The Court also notes that paragraph 2(a) and (c) are related to paragraph 1(a), and that paragraph 2(b) is related to the interest overpayment situation under paragraph 1(c).

[8]        Based on these very specific parameters, paragraphs 1 and 2 of the statement of claim can stand. However, these same parameters require that the Court strike the plaintiff's chief conclusions in paragraph 136(a), (b) and (c). The second paragraph in paragraph 136(e) is also struck out as it is redundant and such a paragraph is inappropriate in the conclusions of a statement of claim.

[9]        Accordingly, paragraph 136(d) and (e) will concern the recovery of interest allegedly collected without justification, while paragraph 136(f) to (j) will concern the action for extra-contractual liability summarized in paragraph 1(a) and (b).

[10]      The other paragraphs in the plaintiff's statement of claim appear to be intended to provide a certain background to the general allegations in paragraphs 1 and 2 of the statement.

[11]      In view of the limits imposed by the parameters stated above, it would appear that most of these paragraphs can remain in the text of the statement of claim since it does not seem that the paragraphs are so embarrassing or abusive that they should be struck out, in whole or in part. As Teitelbaum J. of this Court said in Copperhead Brewing Co. Ltd. v. John Labatt Ltd. et al. (1995), 61 C.P.R. (3d) 317, at 322:

... the jurisprudence is consistent that under Rules 419(1)(b) through (f) it must be established that the pleading is so clearly immaterial, frivolous, embarrassing or abusive that it is obviously forlorn and futile (Burnaby Machine & Mill Equipment Ltd. v. Berglund Industrial Supply Co. Ltd. (1982), 64 C.P.R. (2d) 206 (F.C.T.D.)) and that the court will not strike mere surplus statements where no prejudice flows from them (Pater International Automotive Franchising Inc. v. Mister Mechanic Inc. (1989), 28 C.P.R. (3d) 308, 27 C.I.P.R. 112, [1990] 1 F.C. 237 (T.D.). As I am not entirely satisfied that the defendants will suffer prejudice if para. 9 is not struck, I will allow para. 9 and Sch. "A" to remain in the amended statement of claim.

[12]      However, the following paragraphs, namely paragraphs 45 to 49 and 84 to 86, should be struck out since they deal essentially with allegations affecting the determination of this tax debt of the plaintiff, and further, contain no substantial fact establishing fault.

[13]      The plaintiff will serve and file an amended statement of claim within ten days of the order accompanying these reasons, containing the deletions granted to date, namely those covered by the order of September 16, 2003, and by the order accompanying these reasons. This amended statement of claim will not reflect any other change, unless there is an agreement between the parties - which would be preferable - to file a more appropriate statement.

[14]      As to the future course of this matter, within 20 days of service of the plaintiff's amended statement of claim the defendant will see to the service and filing of her defence or agree to proceed with the plaintiff's examination for discovery, within a reasonable time to be agreed between the parties, or in the absence of agreement between the parties, through a motion to be made by either of them.

[15]      For costs on the motion at bar, although the latter was only allowed in part, I consider that costs amounting to $400 should be awarded to the defendant.

Montréal, Quebec

October 30, 2003

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                                                   T-721-03

STYLE OF CAUSE:                                                   ÉRIC MILLETTE

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

PLACE OF HEARING:                                             Montréal, Quebec

DATE OF HEARING:                                               October 27, 2003

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:                                                                      October 30, 2003

APPEARANCES:

Éric Millette                                                                   for the plaintiff

Linda Mercier                                                                for the defendant

SOLICITORS OF RECORD:

Morris Rosenberg                                                          for the plaintiff

Deputy Attorney General of Canada