Date: 20050420
Docket: T-1114-02
Citation: 2005 FC 537
BETWEEN:
MARK DOE and (OMITTED) INC.
Plaintiffs
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER
HARGRAVE P.
[1] This action is one which the Federal Court of Appeal, in reasons of 24 March 2003, 2003 FCA 156, docket A-568-02, summed up as "... seeking damages against the Crown for tortious interference with contractual and economic relations, and for what he says is a novel cause of action, 'cognitive trespass'.". In those reasons the Federal Court of Appeal dealt with and dismissed the appeal of a motion, brought by the Plaintiffs, for costs in advance, which had earlier been dismissed by the Associate Chief Justice. The present motion, as dealt with in these reasons, is again for costs in advance of trial and such costs in advance include the costs of the Plaintiffs for printing and photocopying as also sought in the motion.
SOME PRELIMINARY MATTERS
[2] The motion material for costs includes a motion enclosed in the Motion Record filed 26 March 2003, being document 65 in the Court's files; a supplemental Motion Record, containing a complete replacement motion and a fresh affidavit, filed 28 March 2003, being Court document no. 73, and what is a supplemental Motion Record filed 9 June 2003, being Court document no. 74. A so-called second supplemental Motion Record, filed 6 June 2003, being Federal Court document 73, is not supplemental to any of the above material, but is a separate motion, labelled by the individual Plaintiff as a motion for "Advice and Directions", to be heard at a time to be directed by the case management judge: the motion for Advice and Directions was neither spoken to nor is it deal with in these reasons.
[3] The position of the Defendant is first, that the Federal Court Trial Division on 11 September, 2002, and the Federal Court of Appeal on 24 March, 2003, having decided against the Plaintiffs, on the initial motion for costs in advance, the Plaintiffs are estopped by the principle of res judicata; second, that it is not clear that the Federal Court, and here I will refer to this Court by its present shorter designation, has jurisdiction to order costs in advance; and third, that in any event the Plaintiffs have not established that costs in advance are warranted.
[4] The response of the individual Plaintiff (the "Plaintiff"), acting for himself and for his company, is that he has not been cross-examined on his affidavit material: while a failure to challenge affidavit evidence has ramifications, this is a matter of limited relevance in the context of the present motion. More important is that the Plaintiffs have amended their Statement of Claim to add to what the Plaintiff believes were seven causes of action, so that there are now, on the count of the Plaintiff, forty or fifty causes of action, said by the Plaintiff to include new matters of public importance involving government corruption, and thus, in the view of the Plaintiff, the Statement of Claim cannot attract the principle or doctrine of res judicata.
[5] Certainly a plaintiff ought not to split his or her case, but ought to be diligent in initially bringing forward all that might then be brought forward, for res judicata generally extends to such matters which ought to and could reasonably have been raised initially, but were not. However the doctrine of res judicata is not an absolute and here I would refer to Yat Tung Co. v. Dao Heng Bank 1975 AC 581, a decision in which the Privy Council made two points. First, before shutting out the subject of litigation, on the basis of the doctrine of res judicata, the Court must be scrupulous in its examination of the circumstances: while negligence, inadvertence or accident are not excuses which void the application of res judicata, there may be special circumstances in which, in order to do justice between the parties, what the Privy Council referred to as the rule of res judicata ought not to be applied: see Dao Heng Bank at page 590. Second, the Privy Council commented upon Henderson v. Henderson [1843] 3 Hare 100, 67 E.R. 313, approving the concept that every point belonging to the litigation ought to be brought forward initially, if that could have been done by the application of due diligence, but going on to observe that there might be special circumstances or, as put in Henderson (supra), at page 115, be a special case, giving rise to an exception to the plea of res judicata.
[6] As a result of the question of whether the doctrine of res judicata ought to be strictly applied, or whether there is a special circumstance or a special case mitigating against the application of the doctrine, I have examined the initial Statement of Claim and compared it with the amended Statement of Claim. This examination is all the more a necessity since counsel for the Defendant submits that the amendments have really added nothing of substance and no new causes of action to the claim of the Plaintiff. I now turn to some relevant background.
BACKGROUND
[7] On 11 September 2002, Associate Chief Justice Lutfy, as he then was, had denied a motion by the Plaintiff for costs in advance in a proposed action. The original Statement of Claim, which I will call the "initial Statement of Claim", was then filed on 13 September 2002. The decision 11 September 2002 of the Associate Chief Justice was subsequently upheld by the Federal Court of Appeal, 24 March 2003. However, in the interim, between those two decisions, the Plaintiffs amended their Statement of Claim 18 March 2003. A relevant decision as to costs in advance was subsequently handed down by the Supreme Court of Canada, British Columbia v. Okanagan Indian Band [2003] 3 S.C.R. 371, on 9 June 2003. The present motion was filed, in several installments, beginning in late March 2003, but for various reasons was not heard until the following year.
[8] The initial Statement of Claim referred to the Defendant conspiring with some half-dozen individuals and entities, including CSIS, the RCMP, the City of Vancouver and the Vancouver City Police to force the Plaintiff into inappropriate and indeed unacceptable and perhaps illegal behaviour, all beginning with CSIS apparently approaching the Plaintiff in mid-March 1990 to seek his cooperation in setting up surveillance of a KGB operation in Edmonton.
[9] As I have already observed the initial application for security for costs was dismissed by then Associate Chief Justice Lutfy, that dismissal being upheld by the Federal Court of Appeal, however important here are three observations made by the Federal Court of Appeal: first, the Court of Appeal characterized the matter as follows:
The appellant is seeking damages against the Crown for tortious interference with contractual and economic relations, and for what he says is a novel cause of action, "cognitive trespass".
Second, the Federal Court of Appeal commented on British Columbia decisions allowing costs in advance, including British Columbia (Minister of Forests) v. Okanagan Indian Band (2001) 95 B.C.L.R. (3d) 273 (B.C.C.A.), being the precursor to the 2003 Supreme Court of Canada decision in that case (supra) and then observed, referring to two British Columbia cases:
These cases were found to involve exceptional or unique circumstances, and to be cases of great public importance or test cases. For the purposes of this appeal we are prepared to assume, without deciding, that this Court has the jurisdiction to award costs in advance of trial.
Finally, the Court of Appeal observed:
Having carefully considered the record before us, and the submissions of the appellant, we are not persuaded that the Motions Judge erred in concluding that this is not a case that warrants an order of costs in advance of trial.
The Federal Court of Appeal, in dismissing the appeal of the initial denial of costs in advance, does not explicitly set out the test that it applied, however at the B.C. Court of Appeal level in the Okanagan Indian Band case (supra) Madam Justice Newbury looked upon ordering costs in advance as something narrow and which was restricted to exceptional cases or special cases, of a test nature, containing an element of public importance in the issues to be tried, all bounded by the circumstances of the case. The Supreme Court, in Okanagan Indian Band (supra) elaborated on these concepts and, as we shall see, set out a three-element test.
[10] In the initial Statement of Claim the Plaintiff refers to a conspiracy to injure him, which began in April of 1990, either in Edmonton where he lived at the time, or according to the initial Statement of Claim, also in Vancouver, by the Federal Crown's agent, the City of Vancouver, and to entrap him in compromising situations, including as to the use of illegal drugs. The Statement of Claim refers, in brief, to many things including what I would broadly refer to as tampering with the Plaintiff's mind; to practices and campaigns to both emotionally and professionally destabilize the Plaintiff and to interfere with his contractual and economic relations; to the infliction of mental and physical suffering; to the preventing of the Plaintiff from earning a living; to hundreds of assaults and four batteries; to many defamations, frauds, trespasses and vandalisms; to medical experimentation; to tampering with the witnesses to be called by the Plaintiff in some earlier litigation; and that the Defendant, together with its agents, the City of Vancouver and one Mr. Pulin, his landlord, conspired to
20 ... (a) place 2 small but very sharp pieces of hard plastic in the Plaintiff's trail mix food in an attempt to have him ingest potentially health threatening substances; ...
(d) placing ink in his washing and his clothes got black spots and were unwearable; ...
This episode culminated with the landlord, as agent of the Crown, locking the Plaintiff out of his lodging. Much of this would not be actionable in the Federal Court, for it has the appearance of events occurring between individuals, however where a possible tort or breach of contract or other wrong is said to have been perpetuated, it is always said to have been done by the Queen's agents.
[11] The initial Statement of Claim is eight pages in length, but it is very broad. It has a relationship with the amended Statement of Claim which is similar to the relationship between a writ, by which actions at one time were commenced and the then subsequent Statement of Claim: the former sets out in brief form the elements of and what the action is all about; and the latter elaborates on the writ, setting out the causes of action and a sufficiency of material facts, although not the evidence.
[12] The amended Statement of Claim is one hundred sixty-eight pages in length. It seems to a large degree to be built around the expectations of the Plaintiff, who did well in his studies, had a life-long desire to follow in the footsteps of various members of his family, to become a lawyer and to obtain an appointment to the Bench, all of which he felt were reasonable expectations, but that he was thwarted by the Defendant who, as to these expectations:
... with no reason or justification in law intentionally and in a malicious, high-handed, arbitrary, oppressive, deliberate, vicious, vindictive, brutal, grossly fraudulent, evil, insulting, outrageous, callous, disgraceful, wilful, wanton and in contumelious disregard of ordinary standards of morality or decent conduct and without any consideration of the Plaintiffs' respective legal and constitutional rights and freedoms, initiated and perpetuated the campaign of entrapment and punishment as described herein. The punishment took the general form of the Plaintiff being targeted from June 1987 onwards by CSIS and the RCMP for removal from and isolation within mainstream Canadian professional, social and corporate life through a multitude of criminal and tortious strategies, techniques and tactics and human rights violations as described herein.
[para. 55]
This broad statement as to the alleged actions of the Defendant is an expansion, largely by way of evidence and particulars, of much of what is set out in brief form in the initial Statement of Claim. The amended Statement of Claim runs to five hundred five paragraphs. For the most part this expansion adds nothing new, yet there are elements which are apparently new.
[13] The amended Statement of Claim alleges that the Defendant and its agents, referred to in paragraph 300 as being hundreds of "street-level operatives" engaged in what the Plaintiffs refer to as social engineering, defined in the fifth edition of the Shorter Oxford English Dictionary as "The application of sociological principles to specific social problems.". This was against the interests and wishes of the Plaintiff. While social engineering might be synonymous with interference with economic and contractual relationships, or may be descriptive of some of what was alleged in the initial Statement of Claim, it also may be that this is a new cause of action.
[14] In order to accomplish this social engineering the Plaintiff has enlarged the number of entities said to be specific agents of the Crown, which now include the Law Society of Alberta, the City of Vancouver, the Law Society of British Columbia, the owner of the Roxy Night Club in Vancouver and Canada Post, the total in excess of thirty entities and individuals, together with unnamed employees, agents and co-conspirators.
[15] The amended Statement of Claim refers to what I think is the tort of intentional infliction of mental suffering, called "cognitive manipulation" by the Plaintiff (para. 234), which may be a cause of action in addition to that initially set out. The Plaintiff refers to a highly refined capability for social engineering, coupled with real-time monitoring (para. 299). There are allegations of kidnap and related common law offences at paragraph 355, perhaps new or perhaps a tailoring of the earlier allegations into a different but parallel cause of action. The amended Statement of Claim makes a new allegation at paragraph 409 and following, being that the Defendant has misled the Court and indeed is in contempt of Court: to the extent that such allegations of contempt are in the abstract they are not a civil cause of action; and to the extent the allegations of contempt are tied to orders in this action, the remedy is not by statement of claim.
[16] There is a new element at paragraph 472 and following of the amended Statement of Claim, the Plaintiff there alleging various Charter violations including impingement on his freedoms of expression and mobility, unreasonable search, arbitrary arrest, denial of the right of counsel, cruel and unusual treatment and interference by the Defendant with his entitlement to equality before the law.
[17] The amended Statement of Claim alleges improper joint mind control experiments by the Federal Crown and the CIA: these improprieties are alleged to have occurred before the Plaintiff, now in his mid to late forty's, was of an age to be any interest to the Defendant or to the CIA. However the amended Statement of Claim alleges an ongoing failure on the part of the Defendant to prevent further similar experiments which failure resulted in injury to the Plaintiff. This goes beyond what is set out in the initial Statement of Claim.
[18] The Plaintiff also alleges violation of the International Covenant on Civil and Political Rights, which may be something new, however there is insufficient material by which to determine whether the unparticularized violation gives rise to a civil cause of action. This plea, at paragraph 479, is perhaps parallel to that at paragraph 492 in which the Plaintiffs refer generally to Canadian legislation, a United Nations covenant and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: there are insufficient particulars by which to determine whether any of the allegations based on this legislation gives rise to a civil cause of action in Canada.
[19] Finally, the approach of the Plaintiffs to damages and to injunctive relief goes considerably beyond the $14,030,000 that the Plaintiffs sought in the initial Statement of Claim. In the amended Statement of Claim, a number of paragraphs, 493 through 503, the Plaintiffs set out their general approach to damages. The Plaintiff then claims $389 million in damages, with the corporate Plaintiff claiming $72 million, a total of $461 million.
[20] While the amended Statement of Claim has expanded what is set out in the initial Statement of Claim, into an account of the Plaintiff's unfortunate life history, from childhood, in part it is also a tragic but irrelevant family history. Much of the amended Statement of Claim is irrelevant and adds no new causes of action. However there are clearly some new causes of action. This calls for examination of the extent to which the doctrine of res judicata ought to apply.
CONSIDERATION
[21] The Plaintiff, who also acts as counsel, deposes to many things in his own affidavit material, all of which I weight accordingly. The Plaintiff looks upon this action as beyond being merely meritorious,but as being very special, unique and very exceptional in its nature. The Plaintiff has provided much material, on many topics, both in his affidavit material, his written material and his oral argument. The material ranges from very practical and good legal analysis, through to rather extreme and implausible propositions and affidavit evidence. Here I note that plausibility findings ought to be made with great caution and then, as a general proposition, be made only on occasions when the evidence ranges so far beyond the realm of reasonable expectations that one can safely conclude it to be of little weight or to be untrue. This I have kept in mind throughout and particularly in assessing whether there are grounds for costs in advance.
[22] I have broken my consideration down into four issues:
1. the purpose and nature of the doctrine of res judicata;
2. in the present instance the extension of the doctrine of res judicata to the amended Statement of Claim in the present instance, given the general requirement that a plaintiff initially set out all of the case that he or she is able to determine and record, exercising reasonable diligence;
3. whether there are special circumstances, or whether this is a special case, in which the application of the doctrine of res judicata ought to be avoided or negated because the application of the doctrine would be improper; and
4. assuming, as did the Court of Appeal in its earlier reasons in this case, that the Federal Court has the jurisdiction to award costs in advance, is this an appropriate instance in which to do so.
The Purpose and Nature of Res Judicata
[23] The purpose of estoppel by res judicata is to prevent interminable litigation of a question which has been finally decided between the same parties. The basic requirements of res judicata as an issue estoppel are narrow, being set out by the Supreme Court in [1975] 2 S.C.R. 248">Angle v. Canada (Minister of National Revenue) [1975] 2 S.C.R. 248 at 254, where the Court adopted a passage from Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853 (H.L.) at 935:
The requirements of issue estoppel still remain (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
The Carl Zeiss decision refers to a final decision and in that case the same question had been decided in another action. However interlocutory decisions, such as those on costs in advance in the present instance, also may give rise to issue estoppel.
[24] In Roseau River Anishinabe First Nation v. Atkinson (2001) 208 F.T.R. 304 Mr. Justice Muldoon accepted an interlocutory decision as final, for the purposes of res judicata:
The respondents submit that Mr. Justice Gibson's decision on February 26, 2001, was a final decision for the purposes of an interlocutory injunction. This Court agrees with the statement in Ward v. Dana G. Colson (1994), 24 C.P.C. (3d) 211 (Ont. Gen. Div.) at page 218:
[12] I am satisfied the issue estoppel is not eliminated as an issue because O'Brien J.'s order was made in the context of an interlocutory application. A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time-frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See [1924] S.C.R. 308">David Diamond v. The Weston Realty Company, [1924] S.C.R. 308 (F.C.C).
[pp. 308-309]
Mr. Justice Muldoon's view was elaborated upon by Mr. Justice Rouleau in Benisti Import-Export Inc. v. Modes TXT Carbon Inc. (2002) 20 C.P.R. (4th) 446 at 452-453.
However, it is clear that issue estoppel may arise from a decision which is interlocutory in nature, but which becomes final and binding upon parties in the absence of an appeal: Chingee v. Chingee (1998), 149 F.T.R. 113 (F.C.T.D.) at 116, para. 6-7; Joli-Coeur v. R. [2000] 4 C.T.C. 95 (F.C.A.) at 96, para. 4. Accordingly, the Plaintiff should have appealed the Prothonotary's decision, pursuant to paragraph 27(2)(a) of the Federal Court Act, within ten days of the decision. Since it failed to do so, it is now too late, in my view, for it to challenge the Prothonotary's decision on the merits.
Of great relevance to this question is the decision of Nadon J. (as he then was) in Nordic Laboratories v. Canada (Deputy Minister of National Revenue - M.N.R.) (1996), 113 F.T.R. 168 (F.C.T.D). In that case, Reed J. had rendered a decision wherein she interpreted subsection 68(1) of the Customs Act, R.S.C. (1985) (2nd suppl.), c. 1 as follows: once leave is granted, the decision operated to activate the appeal nunc pro tunc as of the date the leave to appeal application was filed. She concluded that this Court had jurisdiction and leave to appeal was granted. The Respondent in that case, who did not appeal Reed J.'s decision, made the same submissions before Nadon J. as those made before Reed J. concerning a leave application
The earlier decision in Benisti, giving rise to the issue estoppel, dealt with by Mr. Justice Rouleau, was reported (1993) 65 F.T.R. 161. That earlier decision did not, unlike Roseau River, involve an injunction, but rather an interlocutory proceeding seeking leave to appeal from a tribunal. In Nordic Laboratories v. MNR (1996) 113 F.T.R. 168 (F.C.T.D.), referred to by Mr. Justice Rouleau in Benisti, in the quotation set out above, among the issues were the interlocutory interpretation of a section of the Customs Act and the previously granted leave to appeal. In Nordic Laboratories Mr. Justice Nadon (as he then was), relying upon Reebok Canada v. Minister of National Revenue (Customs and Excise) (1995) 179 N.R. 300 (F.C.A.), which involved a decision to grant leave to appeal a decision of a tribunal, was of the view that Madam Justice Reed's interlocutory decision, as to leave to appeal, gave rise to issue estoppel and that the proper approach should not have been a re-litigation, but rather an appeal of the Trial Judge's decision.
[25] It is clear from Roseau River, Benisti and Nordic Laboratories that the application of the principle of res judicata, in the context of issue estoppel, can arise generally in interlocutory matters. I now turn to whether the res judicata principle applies where, as here, the statement of claim has been amended so that additional matters, which existed in the same general context, might be used to justify the re-litigation of an issue, here costs in advance.
Res Judicataand the Amended Statement of Claim
[26] Estoppel may, in some instances, be broader than that set out in the Carl Zeiss case (supra) for it extends to matters and indeed to any points which a party could, using due diligence, have brought forward or raised during an earlier proceeding. Here counsel for the Defendant relies upon Borley v. Fraser River Harbour Commission (1995) 92 F.T.R. 275 (F.C.T.D.). However the basic cases, set out in Borley, are more instructive.
[27] The area of the law, dealing with matters which ought to have been dealt with at an earlier time in a proceeding, thus becoming barred by the principle of res judicata, was considered by the B.C. Court of Appeal in Martelli v. Martelli (1983) 148 D.L.R. (3d) 746. Martelli involved a dispute over family assets and whether the subject matter of an earlier action between husband and wife brought into play the doctrine of res judicata, therefore making the claim for different family assets unsuitable for litigation. At page 748 Mr. Justice of Appeal Hinkson adopted a paragraph from the appellant's factum, which in the view of the Court of Appeal correctly set out the law:
The doctrine of estoppel by matter of record or res judicata has been held to extend to any point whether by assumption or by admission which was in substance the ratio of and fundamental to a previous decision. The doctrine applies not only to matters actually in dispute, but to every point which properly belonged to the subject of a litigation in which the parties by exercising reasonable diligence might have brought forward at the time of the previous hearing. This doctrine is based upon the principle that there must be an end to litigation and that on every triable issue the whole of the case must be put to the court and not be dealt with piece meal in action upon action.
Important here is that every triable issue in the case should, if it is possible through the exercise of reasonable diligence, be brought forward to the Court initially, and not dealt with bit by bit in consecutive proceedings.
[28] The Supreme Court of Canada's decision in Town of Grandview v. Doering (1975) 61 D.L.R. (3d) 455 is instructive. In that instance the plaintiff had brought an initial unsuccessful action for surface flooding damage caused by the defendant's dam. In a second action, commenced before the first action went to trial, the plaintiff put forth a different theory of the cause of the damage, not surface flooding, but rather flooding by way of an underground aquifer, the result of the defendant impounding water behind a dam creating pressure resulting in underground seepage and then flooding. This underground pressure theory was a different view of the circumstances leading to the flooding, but a view which, with reasonable diligence, could have been obtained from an expert so that both theories could be dealt with at once. In Doering Mr. Justice Ritchie, at page 461 of the majority decision, said that the case was not strictly speaking one of issue estoppel, but that it did fit within the res judicata principle and here he seemed to lean toward the concept of cause of action estoppel. However in reaching the conclusion that res judicata applied, Mr. Justice Ritchie used case law applicable both to cause of action estoppel and to issue estoppel.
[29] The Ontario Court of Appeal, in Tsaoussis (Litigation Guardian of) v. Baetz (1998) 165 D.L.R. (4th) 268, considered a relaxation of the res judicata doctrine referring, at pages 276 and 277, to the Doering case (supra) and other cases to the same effect. In Tsaoussis at issue was the setting aside of a judgment for personal injury in which the damages were clearly low, it appearing that former counsel should have arranged for a further medical assessment. The Court considered that there were "... exceptions to the general rule that final judgments mark the end of litigation.", involving a weighing of interests and that there would be situations in which legitimate interests would outweigh finality concerns.
[30] More recently, in Withler v. Canada (Attorney General) [2002] 3 B.C.L.R. (4th) 365 at 379 Mr. Justice Garson observed that when it came to exercising a discretion, as to whether or not the doctrine of res judicata ought to be applied "The factors which influence the exercise of the court's discretion are open and depend on the circumstances of the particular case.". In Withler the judge considered the character of the litigation, inconsistency of results with other litigation and whether all of the issues inherent in the litigation were decided.
[31] Here Brisbane City Council et al. v. Queensland (Attorney General) [1979] A.C. 411 (P.C.) is of interest. One of the issues in that case was whether a party should be shut out from raising, in a later action, an issue which might have been raised in an earlier proceeding, that of the existence of a trust. Lord Wilberforce, who wrote the decision, had this to say:
The second defence is one of "res judicata." There has, of course, been no actual decision in litigation between these parties as to the issue involved in the present case, but the appellants invoke this defence in its wider sense, according to which a party may be shut out from raising in a subsequent action an issue which he could, and should, have raised in earlier proceedings. The classic statement of this doctrine is contained in the judgment of Wigram V.-C. in Henderson v. Henderson (1843) 3 Hare 100 and its existence has been reaffirmed by this Board in Hoystead v. Commissioner of Taxation [1926] A.C. 155. A recent application of it is to be found in the decision of the Board in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581. It was, in the judgment of the Board, there described in these words:
".... there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings." (p. 590)
This reference to "abuse of process" had previously been made in Greenhalgh v. Mallard [1947] 2 All E.R. 255 per Somervell L.J. and their Lordships endorse it. This is the true basis of the doctrine and it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation.
[p. 425]
The Privy Council in Brisbane City Council determined that there was no justification for the application of the doctrine of res judicata because those involved were ignorant of the existence of the trust, could not reasonably have discovered its existence and indeed had been obstructed by the Brisbane City Council, who were denied the use of the res judicata plea on that basis. Also interesting is the tack taken by the Privy Council that the doctrine of res judicata ought to be applied only where what is happening, that is the bringing up of something that should have been litigated in earlier proceedings, would amount to an abuse of process, there recognizing the danger of denying a litigant the ability of "... bringing forward a genuine subject of litigation.".
[32] The test for voiding the application of the doctrine of res judicata involves a scrupulous examination of the circumstances: negligence, inadvertence, or accidental overlooking of an issue or a cause of action are not excuses by which to void the application of res judicata, however there may be special circumstances requiring, in order that justice be done, that the rule ought not to be applied: see Yat Tung Co. v. Dao Heng Bank [1975] A.C. 581 (P.C.) at 590:
The shutting out of a "subject of litigation" - a power which no court should exercise but after a scrupulous examination of all the circumstances - is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless "special circumstances" are reserved in case justice should be found to require the non-application of the rule. For example, if it had been suggested that when the counterclaim in no. 969 came to be answered Mr. Lai was unaware, and could not reasonably have been expected to be aware, of the circumstances attending the sale to Choi Kee, it may be that the present plea against him would not have been maintainable.
Here, in Dao Heng Bank, the Privy Council was building upon Henderson v. Henderson (1843) 3 Hare 100, 67 E.R. 313, which had been referred to by Mr. Justice Ritchie in the Doering case (supra), and the concept that res judicata does not apply in special cases (Henderson at 115). In Dao Heng Bank the exception was that a given individual was unaware and could not reasonably have been expected to be aware of certain circumstances.
[33] The Supreme Court of Canada in Danyluk v. Ainsworth Technologies [2001] 2 S.C.R. 460 at 480 took a slightly broader view in looking at issue estoppel as a two-step analysis involving the well known test for the conditions required for estoppel, followed by the discretionary decision of whether estoppel ought to be applied:
The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in [1975] 2 S.C.R. 248">Angle, supra. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.), at para. 32; Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at paras. 38-39; Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (1999), 176 N.S.R. (2d) 173 (C.A.), at para. 56.
Here Mr. Justice Binnie points to the need, before any final mechanical application of issue estoppel, to balance the public interest as to finality of litigation with the public interest of ensuring justice be done on the facts of any particular case, adding that there are corresponding private interests. Mr. Justice Binnie went on to discuss the open-ended range of factors which might be applicable when exercising discretion as to the applicability of issue estoppel in order to promote "... the orderly administration of justice but not at the cost of a real injustice in the particular case." (p. 494). In passing Mr. Justice Binnie referred to Schweneke v. The Queen in Right of Ontario (2000) 47 O.R. (3d) 97 (O.C.A.) for two propositions. First, the party seeking to have the Court exercise discretion as to the application of issue estoppel has the burden of demonstrating an injustice; and second, that the party seeking to invoke the discretion cannot simply rely upon a potential for injustice, but must demonstrate that what is relied upon actually arose in the particular case (paras. 38 and 43). The purpose of all of this is to prevent any injustice, by requiring that the Court exercise discretion to avoid the unjust application of res judicata and issue estoppel, but contrary to the view of the present Plaintiff, the onus is on him to convince the Court that the application of that doctrine would be inappropriate.
Special Circumstances Negating the Application of Res Judicata
[34] The Plaintiff agrees that he should have pleaded the many additional issues in his initial Statement of Claim, but submits that he could not have done so. I do not accept the Plaintiff's submission that because of the activities of the Crown and its agents he did not have funds with which to retain counsel to assist him: to make that determination would be to decide a somewhat dubious point and perhaps the case at an interlocutory stage.
[35] Of more weight and acceptability is the submission that the Plaintiff was convinced that he had been the victim of a brutal and tortious regime for many years and was physically, psychologically and cognitively severely disadvantaged. In the result he was in no condition to plead properly and indeed could not do so until the first part of 2003, the result being the 18 March 2003 amended Statement of Claim.
[36] This excuse, that the Plaintiff was mentally unable to prepare a full statement of claim, is not one involving negligence, inadvertence or the accidental overlooking of an issue, which the Privy Council pointed out in Dao Heng Bank (supra), are not excuses by which to avoid the application of res judicata. The Plaintiff says that he was mentally impaired. There was no cross-examination on that aspect. This mental impairment argument brings into play the concept of lack of awareness, relied upon by the Privy Council in Dao Heng Bank, as a factor negating res judicata. Moreover, accepting the Plaintiff's material by which he seeks to avoid the res judicata doctrine, there is more than a potential for injustice, a requirement set out by the Supreme Court in Danyluk (supra).
[37] A careful reading of the 13 September 2002 Statement of Claim is indicative, to a layperson, of drafting by a disturbed individual, a person without a clear focus, who reaches illogical or irrelevant conclusions. It is not without some hesitation, however I have reached the conclusion that the Plaintiff could not have produced a full and complete statement of claim in September 2002 and that this is a special circumstance, or a special case, which negates the application of res judicata.
Appropriateness of Costs in Advance
[38] I have assumed, as did the Court of Appeal in their 24 March 2003 decision on costs in advance, that this Court can award costs in advance.
[39] Access to justice is, in broad terms, a fundamental right, however that fundamental access has not led to universal funding so that litigants may pursue their claims utilizing the funds of others: the decision of the Supreme Court of Canada in British Columbia v. Okanagan Indian Band [2003] 3 S.C.R. 371 is an interesting departure from this generalization. Okanagan Band deals with the discretionary powers of courts to grant interim costs in order to provide access to justice in public interest litigation. The object is to ensure that ordinary but impecunious citizens, with prima facie cases of merit, are able to resolve matters which are of importance to the community as a whole. Costs in advance is an extraordinary exercise of the discretionary powers of a court and therefore should be limited to narrow classes of cases exhibiting special circumstances. This and the preconditions to costs in advance are set out in Okanagan Band:
There are several conditions that the case law identifies as relevant to the exercise of this power, all of which must be present for an interim costs order to be granted. The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case. The claimant must establish a prima facie case of sufficient merit to warrant pursuit. And there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate. These requirements might be modified if the legislature were to set out the conditions on which interim costs are to be granted, or where courts develop criteria applicable to a particular situation where interim costs are authorized by statute (as is the case in relation to s. 249(4) of the Ontario Business Corporations Act; see Organ, supra, at p. 213). But in the usual case, where the court exercises its equitable jurisdiction to make such costs orders as it concludes are in the interests of justice, the three criteria of impecuniosity, a meritorious case and special circumstances must be established on the evidence before the court.
[pp. 396-397]
In this passage Justice LeBel, writing for the majority, sets out the general criteria for costs in advance being, first, impecuniosity, second, a meritorious case, and third, special circumstances, all of which must be established, on evidence before the Court, before an interim order as to costs may be granted.
[40] Perhaps the most difficult task here is establishing a balance, on the one hand determining that the case is strong enough to be called meritorious, for the judge or prothonotary must make that determination, in a sense a predetermination in order to award costs, a determination of costs before there is a winning litigant, but on the other hand to determine merit very cautiously, so that the judge who, in due course, will hear the case on its merits, is not fettered. The Supreme Court considered this preliminary threshold issue as follows:
Although a litigant who requests interim costs must establish a case that is strong enough to get over the preliminary threshold of being worthy of pursuit, the order will not be refused merely because key issues remain live and contested between the parties. If the court does decide to award interim costs in such circumstances, it will in a sense be predetermining triable issues, since it will have to decide that one side will receive its costs before it is known who will win on the merits (and since the winner is usually entitled to costs). As a result, concerns may arise about fettering the discretion of the trial judge who will eventually be called upon to adjudicate the merits of the case. This in itself should not, however, preclude the granting of interim costs if the relevant criteria are met. As Macdonald J. noted in Organ, supra, the court's discretion must be exercised with particular caution where it is being asked to predetermine an issue in this sense, but it does not follow that the court would be going beyond the limits of its discretion if it were to grant the order. I therefore disagree with the conclusion of the New Brunswick Court of Queen's Bench in New Brunswick (Minister of Health and Community Services) v. G. (J.) (1995), 131 D.L.R. (4th) 273, that costs cannot be ordered at the commencement of a proceeding in the absence of express statutory authority to award costs regardless of the outcome of the proceeding (p. 283) (this case was eventually overturned by this Court in [1999] 3 S.C.R. 46, but the interim costs issue was a secondary one that was not dealt with on appeal). As I stated above, the power to order costs contrary to the cause is always implicit in the court's discretionary jurisdiction as to costs, as is the power to order interim costs.
[p. 397]
That the case must have merit does not mean that it must be a winning case: this is implicit in Justice LeBel's comment that "... the power to order costs contrary to the cause is always implicit in the court's discretionary jurisdiction as to costs, as is the power to order interim costs." (p. 397).
[41] There is the question of just what is merit and a meritorious case. Justice Andrekson, of the Alberta Queen's Bench, considered the concept of merit in the context of costs, in R. v. Leung [1998] 2 W.W.R. 178 at 197:
"Merit", according to the Concise Oxford Dictionary (8th ed. 1990) means, inter alia, deserving or worthy of consideration.
I would further define merit as being the substantive considerations which are to be taken into account in making a decision and to concepts found in the Shorter Oxford English Dictionary, 2002, that to have merit is to have a quality of deserving well and that it is "A point of intrinsic quality, a commendable quality, an excellence, a good point.". From this it is clear that the case need not be determined, at this stage, in absolutes, but merely that it be well regarded, of commendable quality and of excellence, within the definition of merit.
[42] In the present instance the Plaintiff submits, in an affidavit of 9 June 2003, that the case is of "immense public importance":
I now verily believe that the amended cause of action, beyond being meritorious, is very special, unique as defined in the second ground for the within motion, page 3, therein, and very exceptional in nature. I further believe that the issue raised in the within amended Statement of Claim regarding the Defendant's malicious attack on the independence of the judiciary is of immense public importance.
[Emphasis in original]
The amended Statement of Claim is long and involved, however despite a complete review and several further fairly quick scans of each page, I seem to have overlooked the "malicious attack on the independence of the judiciary". However it may be that the undermining of the independence of the judiciary is either based on the many allegations of interference by the Crown with the appointment of the Plaintiff to the Bench and the resignation of the Plaintiff's mother from the Bench, or allegations at paragraph 409 of the amended Statement of Claim that the Defendant has misled the Court.
[43] The Plaintiff submits that not having been cross-examined on his affidavit material, an adverse inference should be drawn and his evidence preferred, or even "be deemed unquestionably true and accurate": in most instances this latter observation would be going too far. I prefer the approach taken by Justice of Appeal Stone, writing for the Court of Appeal in Feoso Oil Ltd. v. The Ship Sarla (1995) 184 N.R. 307 where, commenting upon an absence of cross-examination on an affidavit, wrote:
In the case at bar neither side elected to cross-examine on the other's affidavit evidence. I do not read the new Rules as placing an absolute obligation on either side to cross-examine, although the failure of a party to do so might perhaps militate against that party's position on the issues because of lack of evidence. It would not mean any non-compliance with the Rules, nor in itself justify the drawing of any adverse inference.
[pp. 315-316]
[44] Perhaps the best that can be said, about a failure to cross-examine on an affidavit, is that it may militate against the position of a party, however that would depend upon the circumstances in each instance. In the present instance, while the Plaintiff forcibly asserts in his affidavit that the case is very important and of immense public importance, in the context of an interim order as to costs, in litigation with which the public is said to be concerned, it is my task to make that assessment. In Okanagan Band (supra) the Supreme Court considered how interim cost principles worked in combination with special considerations coming into play in cases of public importance. At page 398 Justice LeBel observes that where issues are of significance not only to the parties, but also to the broader community, the public interest may be served by facilitating an interim award of costs. He distinguished between ordinary civil disputes and public interest litigation, where the latter may exhibit the special circumstances necessary to justify interim costs, there equating public importance of the issues with interim costs and that:
It is for the trial court to determine in each instance whether a particular case, which might be classified as "special" by its very nature as a public interest case, is special enough to rise to the level where the unusual measure of ordering costs be appropriate.
[pp. 398-399]
Mr. Justice LeBel then noted that he had kept the various considerations, including those set out above, in mind and that being the case:
... I would identify the criteria that must be present to justify an award of interim costs in this kind of case as follows:
1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial -- in short, the litigation would be unable to proceed if the order were not made.
2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.
These are necessary conditions that must be met for an award of interim costs to be available in cases of this type. The fact that they are met in a particular case is not necessarily sufficient to establish that such an award should be made; that determination is in the discretion of the court. If all three conditions are established, courts have a narrow jurisdiction to order that the impecunious party's costs be paid prospectively. Such orders should be carefully fashioned and reviewed over the course of the proceedings to ensure that concerns about access to justice are balanced against the need to encourage the reasonable and efficient conduct of litigation, which is also one of the purposes of costs awards. When making these decisions courts must also be mindful of the position of defendants. The award of interim costs must not impose an unfair burden on them. In the context of public interest litigation judges must be particularly sensitive to the position of private litigants who may, in some ways, be caught in the crossfire of disputes which, essentially, involve the relationship between the claimants and certain public authorities, or the effect of laws of general application. Within these parameters, it is a matter of the trial court's discretion to determine whether the case is such that the interests of justice would be best served by making the order.
[pp. 399-400]
The important points here are that while the three criteria: first, a genuine inability to afford the litigation without costs in advance; second, a prima facie meritorious claim which will not proceed without costs in advance; and third, that the issues raised be of public importance, must all be met, but that does not automatically result in costs in advance, for the "... courts have a narrow jurisdiction to order that the impecunious party's costs should be paid prospectively.". Indeed, the circumstances must be special in order to justify the extraordinary exercise of such a discretionary power. The Supreme Court of Canada went on to observe that such discretionary decisions must be based upon proper assessment of the evidence and moreover, the criteria involved in the exercise of discretion are legal criteria, there Justice LeBel referring to an earlier Supreme Court decision, Pelech v. Pelech [1987] 1 S.C.R. 801 at 814-815.
Impecuniosity
[45] The test here is whether the Plaintiff genuinely cannot afford to pay for litigation, has no other realistic option for bringing the matter to trial and that "... the litigation would be unable to proceed if the order were not made." (Okanagan Band (supra) at 399). At pages 396 and 397 the Supreme Court also introduces the concept of impecuniosity.
[46] On 15 July 2002 Mr. Justice Campbell granted the Plaintiff relief from the filing fee for the Statement of Claim, conditional both on the Plaintiff abandoning the concession, should his economic situation improve and on the Plaintiff providing an affidavit setting out his income and expenses. The order was also explicit in that "... the impecuniosity relief granted hereby does not extend to payment of costs which might be awarded by a Justice or a Prothonotary of this Court.". From this determination by Mr. Justice Campbell I have concluded that I may look in more detail at the financial situation of the Plaintiff.
[47] As nearly as I can determine from affidavit material and cross-examination the Plaintiff's mother pays for his apartment rent, groceries and utilities. The Plaintiff receives social assistance benefits of about $510 per month. He also receives an irregular allowance of between $60 and $120 per month from his mother. He is unemployed. Neither he nor the Plaintiff company have any assets and indeed the company is inactive, with a small bank overdraft. The Plaintiff's outstanding mastercharge and visa accounts stand at about $8,000. There is a $12,000 judgment against him for costs, arising out of Alberta proceedings, $3,000 or $4,000 owed to the Law Society of Alberta and $2,000 or $3,000 owed by way of a judgment to the Law Society of British Columbia. I will turn to whether this renders the Plaintiff impecunious, for that is a term which the Supreme Court of Canada uses in Okanagan Band (supra) however, and I think this is more important, the test that the Supreme Court of Canada applied in that instance was whether the plaintiff "genuinely cannot afford to pay for the litigation, and no other realistic options exist for bringing issues to trial - in short the litigation would be unable to proceed if the order [for costs in advance] were not made." (p. 399).
[48] Dealing first with impecuniosity, the definition set out by Mr. Justice Teitelbaum in Ferguson v. Arctic Transportation Ltd. (1996) 118 F.T.R. 154 at page 158 is based upon dictionary definitions:
After verifying the facts as to the Plaintiff's financial situation, I am satisfied there is no merit to the allegation that the Plaintiff is impecunious. The New Shorter Oxford English Dictionary On Historical Principles (Oxford: Clarendon Press, 1993) defines the word "impecunious" as "in need of money, poor, penniless". The American Heritage Dictionary defines the word "impecunious" as "lacking money - penniless". The word "impecunious" is an adjective to denote someone who is "poor" or "impoverished" or "needy".
This reduces down to someone who is poor, impoverished or needy. In Ferguson the plaintiff owned very substantial assets and had a regular substantial pension. He was not impecunious. Mr. Justice Lemieux adopted this passage from Arctic Transportation in Fortyn v. Canada (2000) 191 F.T.R. 12 and then went on to refer to Smith Bus Lines Ltd. v. Bank of Montreal (1987) 61 O.R. (2d) 688 (Ont. Div. Ct.), for the proposition that once a party seeking security for costs establishes good reason to believe the other side has insufficient assets, the onus then shifts so that the other side may show either sufficient assets to meet costs or alternatively, to establish impecuniosity and injustice if the action were not allowed to proceed: of course, this is in the context of security for costs, not costs in advance. In Smith Bus Lines Justice Sutherland went on to consider impecuniosity in the context of the Ontario rule for security for costs: while the examination was there in the context of a company the comments are pertinent in that to establish impecuniosity the plaintiff must demonstrate that it cannot raise security for costs:
The term "impecuniosity" does not appear in the rule; it is a term introduced as part of the judicial gloss upon the rule in response to the words "as is just" in the part of the rule stating that (upon satisfaction of the stated conditions precedent) "the court ... may make such order as is just". The corporate plaintiff wishing to be allowed to proceed with its action, without either showing sufficient assets or putting up security, must first show "impecuniosity" meaning not only that it does not have sufficient assets itself but also that it cannot raise the security for costs from its shareholders and associates, partly because the courts do not want a successful defendant to be effectively deprived of costs where, for example, wealthy shareholders have decided to carry on business and litigation through a shell corporation. To go the impecuniosity route the plaintiff must establish by evidence that it cannot raise security for costs because, if a private company, its shareholders have not sufficient assets. As expressed by Reid J. in John Wink Ltd. v. Sico Inc. (1987), 57 O.R. (2d) 705 at p. 709, 15 C.P.C. (2d) 187: "If an order for security stops a plaintiff in its tracks it has disposed of the suit." To raise impecuniosity there must be evidence that if security is required the suit will be stopped -- because the amount of the security is not only not possessed by the plaintiff but is not available to it. Here there is simply no evidence to that effect.
[p. 704]
In Fortyn the plaintiff was unable to establish impecuniosity by reason of a lack of evidence establishing that condition on a balance of probabilities a prima facie case.
[49] In the present instance certainly the Plaintiff has a very modest income which, on a rough calculation, established from his cross-examination by the Crown, amounts to about $21,000 per year, including the rent, utilities and food paid for by his mother. This may well be substantially below the poverty line in Vancouver. The $21,000 figure includes between $60 and $120 a month paid as an allowance by his mother and receipt of social assistance of $510 per month. While the Plaintiff may be in need of money, by some standards, he is far from being either impoverished or lacking money to the extent of being penniless. Here I also recognize that he is not in a position to raise money or, apparently, to obtain work. However the more important part of the first branch of the test enunciated by the Supreme Court of Canada is whether the denial of costs in advance would result in the litigation being unable to proceed.
[50] The Plaintiff, who trained as a lawyer and was called to the Bar in Alberta and who sets out in his Statement of Claim, that he remains a member of the Law Society of Alberta, has managed to proceed with his action. While he might be able to proceed more quickly if granted, as requested in his submissions, three Queen's Counsel to assist him, there is nothing in the material to indicate that he would be unable to proceed with the litigation if no order for costs in advance were made.
Whether the Claim is Prima Facie Meritorious
[51] The rationale of the Supreme Court in Okanagan Band is that if the claim is of sufficient merit it would be contrary to the interests of justice if the plaintiff did not have the opportunity to pursue the matter because of a lack of finances. As I have already pointed out earlier the concept of merit means, among other things, a case that is deserving or worthy of consideration. Merit is an intrinsic quality, a commendable quality, excellence and a case generally with good points. However, any finding of merit, at this interlocutory stage, or conversely, a lack of merit, is in no sense a predetermination that the case must either be a winning case or, conversely, a losing case. It is merely a determination of whether the case has intrinsic commendable qualities, not a determination of the issues themselves.
[52] It is certainly open for me to determine the merit of the amended claim, however I should also be guided, to some extent, by the view of the Federal Court of Appeal as to the merit of the claim as initially filed. As I have pointed out the initial Statement of Claim stands, in relation to the amended Statement of Claim, as would a writ, initiating a proceeding, stand in relation to a statement of claim explaining and particularizing the case. Here I observe that Associate Chief Justice Lutfy, as he was then, in denying costs in advance by order of 11 September 2002, noted that:
UPON the Court's satisfaction that the evidence of the proposed Plaintiff in support of this motion, both with respect to his personal and family considerations and the legal and the factual issues he intends to assert in his action, and his written and oral submissions fall far short of meeting the threshold of "exceptional or unique circumstances", "a case of great public importance" or "a test case" as set out in the case law he relies upon: British Columbia (Minister of Forests) v. Okanagan Indian Band (2001), 95 B.C.L.R. (3d) 273 (C.A.), [2001] B.C.J. No. 2279 (QL), 2001 BCCA 647 at paragraphs 14, 37 and 39; and Xeni Gwet'in First Nations v. British Columbia, 2002 BCCA 434, [2002] B.C.J. No. 1652 (QL) at paragraph 32;
It was thus the view of the Associate Chief Justice that the initial Statement of Claim fell short of being an exceptional or unique test case of great public importance. The Court of Appeal, 24 March 2003, in upholding the Associate Chief Justice, wrote in part:
It appears that the British Columbia courts have ordered costs in advance of trial in cases involving the Crown as a party: British Columbia (Minister of Forests) v. Okanagan Indian Band (2001), 95 B.C.L.R. (3d) 273 (C.A.) and Xeni Gwet'in First Nations v. British Columbia, 2002 B.C.C.A. 434. These cases were found to involve exceptional or unique circumstances, and to be cases of great public importance or test cases. For the purposes of this appeal we are prepared to assume, without deciding, that this Court has the jurisdiction to award costs in advance of trial.
Having carefully considered the record before us and the submissions of the appellant, we are not persuaded that the Motions Judge erred in concluding that this is not a case that warrants an order for costs in advance of trial.
Here the Court of Appeal makes it clear that the initial Statement of Claim did not warrant an advance of costs. The views of the Associate Chief Justice and of the Court of Appeal are, in a sense, a blended comment, dealing with merit and with the importance of the case.
[53] Dealing more narrowly with merit, I have read the Statement of Claim carefully, including by referring back and forth among various of the paragraphs in order to assess the intrinsic worth, quality and any indication of excellence or good points. In assessing the Statement of Claim I have ignored clearly irrelevant material, being largely material which does not relate to either the claim of the Plaintiff or his company, but which also includes claims which others might have. Much of the amended Statement of Claim is implausible, beyond what might be reasonably expected and is to be given little weight.
[54] The Plaintiff writes relatively clearly, but good writing cannot raise the claim which is, at least largely, improbable and farfetched, to a claim of merit which is worthy of or deserving of consideration in the context of a request for costs in advance.
Whether the Claim is of Public Importance
[55] The Supreme Court of Canada, in Okanagan Band (supra), instructs that on an application for costs in advance a court ought to consider whether the issues raised go beyond the individual interests of the particular litigant and become issues of public importance that have not been resolved in earlier cases.
[56] I have difficulty with elevating the interests of the Plaintiff to interests of public importance.
[57] The first substantial difficulty I have with the present action, as a matter raising issues transcending those of the Plaintiff and becoming issues of public importance, is that the Plaintiff has gone to great lengths to keep the litigation out of the view of the public. The Plaintiff obtained an order, before the initial Statement of Claim was filed, directing the Registry to keep two separate files, one to contain all of the material, that file to be kept confidential; and a second file, containing duplicate documents not containing information respecting the identity of the Plaintiff. Within the confidential file kept by the Court in a vault, the amended Statement of Claim is further sealed, presumably from the view of curious Court staff. This secrecy, on the part of the Plaintiff, is quite understandable when one considers the content and allegations, against both the Crown and various individuals, made in the amended Statement of Claim by the Plaintiff. Such a secretive proceeding can be of little or no practical benefit, or use, or importance to the public.
[58] Second, the amended Statement of Claim is really of no interest to the public. The amended Statement of Claim itself would likely appeal to uncritical conspiracy minded members of the public, but does not have the merit or the scholarship, to raise issues, important in the mind of the Plaintiff, to issues of public importance.
[59] There do not appear to be any issues of public importance to litigate or to resolve and thus the point raised by the Supreme Court, the need to resolve issues of public importance that have not been previously resolved, does not come into play.
[60] The claim, as set out in the very length Statement of Claim may be very important to and perhaps a consuming interest of the Plaintiff, but goes no further and certainly not into the public arena as being of any public interest or importance.
CONCLUSION
[61] This motion for costs in advance was thoroughly canvassed, both in oral and written argument and by way of material subsequently provided by the Plaintiff.
[62] The motion of the Plaintiffs for costs in advance is dismissed.
[63] Costs, guided by the Federal Court Tariff, but in a lump sum, are set at $2,000, payable by the Plaintiffs to the Defendant.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1114-02
STYLE OF CAUSE: Mark Doe et al. v. HMQ
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 25, 2004
REASONS FOR ORDER : HARGRAVE P.
DATED: April 20, 2005
APPEARANCES:
Mr. Mark Doe FOR PLAINTIFFS
Ms. Keitha Richardson FOR DEFENDANT
Mr. Malcolm Palmer
SOLICITORS OF RECORD:
Mr. John H. Sims, Q.C. FOR DEFENDANT
Deputy Attorney General of Canada
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