Sylvain v. Canada (Attorney General), 2004 FC 1610

Date: 20041117

Docket: T-1079-04

Citation: 2004 FC 1610

Ottawa, Ontario, the 17^th day of November 2004

Present: The Honourable Mr. Justice Blais

BETWEEN:

GASTON J. SYLVAIN

Plaintiff

and

ATTORNEY GENERAL OF CANADA in right of

AGRICULTURE AND AGRI-FOOD CANADA

-and-

ATTORNEY GENERAL OF CANADA in right of

THE CANADIAN FOOD INSPECTION AGENCY

-and-

ATTORNEY GENERAL OF CANADA in right of

THE DEPARTMENT OF HEALTH (HEALTH CANADA)

Defendants

REASONS FOR ORDER AND ORDER

[1]        In the case at bar Gaston J. Sylvain (the plaintiff) brought an action against the Attorney General of Canada in right of Agriculture and Agri-Food Canada, in right of the Canadian Food Inspection Agency and in right of the Department of Health (Health Canada) and against the Attorney General of Quebec in right of the Ministère de l'Agriculture, des Pêcheries et de l'Alimentation.

[2]        In a separate decision delivered on October 22, 2004 the Attorney General of Quebec in right of the Ministère de l'Agriculture, des Pêcheries et de l'Alimentation du Québec was relieved from the contestation and therefore is no longer a party to this decision.

[3]        The plaintiff alleged he was the subject of food poisoning when he consumed poultry on various occasions, once in 1993, that is 11 years ago, and on three other occasions between 1995 and 2002. The time, place and circumstances of this poisoning were in no case indicated.

[4]        The plaintiff attributed responsibility for this food poisoning to the defendants, who he said by their inaction had not adequately monitored the quality of the food and had also concealed the facts regarding the contamination of poultry products. He alleged that the defendants had also knowingly allowed the circulation of foodstuffs contaminated by pathogens which were highly detrimental to health.

[5]        The plaintiff claimed damages for himself and eventually for everyone who might also have been victims of poisoning caused by contaminated poultry products. The plaintiff put himself forward as representative of such persons, which makes the subject of the "proposed" class action which is the subject of the proceeding at bar.

[6]        The motion at bar is a motion by the Attorney General of Canada in right of the two Departments and the Agency concerned in the instant action asking the Court to dismiss the action. The grounds given are the following:

            -           the matter is res judicata;

            -           the statement of claim discloses no cause of action;

            -           there is no fault attributable to the defendants indicated in the statement of claim in connection with the alleged damage;

            -           the action is frivolous and vexation and constitutes an abuse of process.

APPLICABLE LEGISLATION

[7]        Federal Court Rules (1998) (SOR/98-106) (the Rules):

ANALYSIS

[8]        The plaintiff proposes a class action but has not yet sought leave pursuant to subsection 299.17(1) of the Rules.

Res judicata

[9]        Counsel for the defendants alleged that the principle of res judicata applies in the case at bar.

[10]      To this end, counsel for the defendants referred to a whole series of proceedings brought by the plaintiff or the company Terra Nova Systèmes Inc., of which he is president. First, in February 2004 the plaintiff sought a remedy in the Federal Court against the Canadian Food Inspection Agency (T-223-04), namely two applications for interim interlocutory injunctions and an application for judicial review in mandamus. In addition, there is an appeal from the decision dismissing the mandamus application, and that appeal is currently in the Federal Court of Appeal (A-376-04).

[11]      The first application for an interim interlocutory injunction was dismissed, and the second of the same kind has not been heard; the application for judicial review supported by a mandamus was dismissed and appealed to the Federal Court of Appeal.

[12]      As indicated by counsel for the defendants, the essential allegations of these proceedings are that the Canadian Food Inspection Agency failed to apply a number of measures concerning the avian flock. The injunction proceedings sought to compel the Agency to exercise its discretion in food inspection.

[13]      On December 27, 2003 Terra Nova Systèmes Inc., represented by the plaintiff, brought an action for damages of over $1,200,000 in the Quebec Superior Court against Olymel, which is a large poultry slaughterhouse in Quebec (Terra Nova Systèmes inc. v. Olymel, S.E.C./L.P., docket No. 200-17-004210-043).

[14]      The allegations of that action were that an agreement to purchase a system for cleaning crates to transport poultry to be supplied by Terra Nova Systèmes Inc. had not been observed.

[15]      On May 27, 2004 the Honourable Mr. Justice Bernard Godbout of the Superior Court dismissed the application, following a motion by the defendant Olymel based both on the style of cause of the motion and the absence of opposition.

[16]      On February 17, 2004 the plaintiff filed a motion for an interim interlocutory injunction against the municipality of Saint-Damase and the Quebec Ministère de l'Environnement (Gaston Sylvain v. Municipalité de Saint-Damase et Ministère de l'Environnement du Québec, docket No. 200-17-004324-042). Once again, this motion was supported by allegations that the municipality of Saint-Damase had not complied with certain provisions of the Act regarding the environment and had not imposed certain requirements for the control of pathogens in the process of cleaning and disinfecting crates used to transport poultry in the territory of the municipality of Saint-Damase. Once again, Madam Justice Danielle Blondin of the Superior Court dismissed the application for an injunction, since it was not made in accordance with the provisions of the Code of Civil Procedure or the provisions of the Environment Quality Act.

[17]      Clearly, there is nothing against a party instituting proceedings against various defendants on different grounds. There is also nothing to stop a plaintiff filing actions against various defendants if he is able to show that there is some mutual responsibility between the said defendants.

[18]      It appeared that the plaintiff Mr. Sylvain, either himself or through his business Terra Nova Systèmes Inc., brought various actions against various defendants, which have to do with serious allegations of failure to comply with environmental measures or a failure to apply regulations dealing with the cleanliness of equipment or the health of the avian flock and of human beings and with poultry transportation.

[19]      As most of these actions to date have petered out and it seems difficult to clearly identify their complaints and to whom they were addressed, it is somewhat difficult to conclude that the matter is res judicata. The only case that is still currently active is that of the decision rendered recently by Beaudry J., which was appealed and apparently is at present pending through the plaintiff's failure to file his documents within the specified deadlines.

[20]      It is true, from reading various motions or proceedings previously filed by the plaintiff for himself and for his company, which were all dismissed, that there is a great similarity with the action at bar filed on June 1, 2004, as in fact the plaintiff's last action in mandamus was also filed in June 2004 and for essentially the same purpose.

[21]      It appeared that as Mr. Sylvain filed an application for mandamus in the Federal Court to compel the government to apply stricter methods of food inspection in the avian sector, he filed another action in the Federal Court based on the same alleged laxity by the same federal government agencies.

[22]      It is my duty to consider the order by Beaudry J., which dismissed the mandamus, and the said decision is currently the subject of an appeal. If Mr. Sylvain were ever to win his case as a result of his application, it seems clear that a proceeding for essentially the same purposes would currently be pending in the same Court, namely the Federal Court. If the appeal were dismissed, it is possible that the principle of res judicata should be applied. If on the other hand the appeal were to be allowed, there would be a case of lis pendens, which would make it necessary to stay one of the actions pending the outcome of the other.

[23]      The multiplication of actions against various defendants, the lack of precision by the plaintiff that could establish either similarity or difference between one or other of the actions brought and the dismissal of most of the actions at a very preliminary stage for grounds having to do more with the form than with the substance of the arguments made by the plaintiff makes it impossible at this stage to have a conclusive answer regarding application of the principle of res judicata. However, for the reasons given below it will not be necessary to make a definite decision in that regard.

No reasonable cause of action

[24]      The action to strike at bar is based on Rule 221. It is worth noting that paragraph (1)(a) of Rule 221 gives as the first ground for striking out pleadings "that it . . . discloses no reasonable cause of action or defence"; the first condition for authorizing a class action, found in paragraph 299.18(1)(a), specifically provides that certification of the class action will be granted if, inter alia, "the pleadings disclose a reasonable cause of action".

[25]      The test to be met at this stage is the same, as Hugessen J. noted in Le Corre v. Canada (Attorney General), [2004] F.C.J. No. 212 (F.C.), the only difference being the party who has the burden of proof. The threshold for satisfying the test of whether a reasonable cause of action exists is quite low, as the rule is that the right of action must be protected in the courts (Edwards v. Law Society of Upper Canada (1995), 40 C.P.C. (3d) 316 (Ont. C.J., Gen. Div.). In fact, the Court is not required to make a decision on the merits but to determine whether a reasonable cause exists. The application will be struck out or the class action denied "when it is 'plain and obvious'" that the plaintiff has no reasonable cause of action and his action is doomed to failure (Le Corre, supra, paragraph 22).

[26]      In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, the Supreme Court of Canada indicated the circumstances in which the statement of claim could be struck out: the action came from a proceeding in the British Columbia Supreme Court and the conditions for striking out were stated in the Rules of Court of that province. The conditions are essentially the same as those set out in the Federal Court Rules. In view of the importance of preserving the right to seek judicial relief, the application will only be struck out if the outcome is plain and obvious, namely that even if the facts alleged in the statement of claim are true, the case has no chance of success. The Supreme Court of Canada put it this way, at paragraphs 32 and 33:

The test remained whether the outcome of the case was "plain and obvious" or "beyond reasonable doubt".

. . . As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).

[27]      In the case at bar, the motion to strike the statement of claim must be allowed. The fundamental defect in the statement of claim has to do with the lack of any causal link between, on the one hand, the alleged damage (poisoning), and on the other, the actions attributed to the defendants. Between the government's action, namely the failure to provide food inspection, and the consumption of chicken in the restaurant by the plaintiff, the chain of causation was clearly broken. Consequently, the statement of claim discloses no reasonable cause of action and this is a sufficient basis for striking it out.

[28]      In Vojic v. Canada (M.N.R.), [1987] F.C.J. No. 811 (F.C.A.), the Federal Court of Appeal upheld the striking out of a statement of claim on the ground that the facts alleged were too vague to enable the defendants to mount a defence. In his statement of claim, the plaintiff put his conclusions forward as facts. The same reasoning can be applied to the case at bar.

[29]      The plaintiff alleged that the insufficiency of public services (health, supervision, inspection) and the defendants' laxity in dealing with producers and processors of poultry products caused him psychological and physical damage. The plaintiff blamed the defendants for being unable to guarantee that the poultry products would be free from micro-organisms harmful to his health. There is nothing in the statement of claim from which it can be concluded that even if the facts alleged are accurate - insufficient inspection, the presence of pathogens in the poultry products - it would be possible to make a connection with the food poisoning alleged by the plaintiff. As the causal link is missing, the plaintiff has no chance of success. Under the principles in Hunt v. Carey, supra, the statement of claim should be struck out.

Scandalous, frivolous or vexatious statement of claim

[30]       The defendants also pleaded, as grounds for striking out in addition to the lack of reasonable cause, the fact that the pleading is "scandalous, frivolous and vexatious" and "is otherwise an abuse of the process of the Court", according to the wording in Rule 221(1)(c) and (f).

[31]      Although the plaintiff's statement of claim sets out an extremely serious charge against the federal agencies responsible for food inspection, the allegations remain vague and general. For example, it is strange that the plaintiff mentions poisoning that occurred 11 years ago, followed a few years later by three other instances of food poisoning, the circumstances of which are not explained in any way: it is one thing to make serious charges and suggest poisoning, it is another to put forward a minimum of factual support which could at least establish to some small extent a link between the events that occurred, the alleged poisoning and the responsibility, if any of the various defendants.

[32]      Unfortunately, for the defendant, the statement of claim says nothing about this. Counsel for the plaintiff suggested that there undoubtedly were a number of persons who had suffered food poisoning at various times as well as the plaintiff, Mr. Sylvain, but at this stage it is too soon to determine the nature, number and circumstances of such food poisonings.

[33]      I can understand that it is difficult at this stage to identify the persons who may have been victims of food poisoning; however, I think that at a minimum the principal plaintiff should have provided some information which at least could have established the said poisoning, with a description of the facts and circumstances of this particular situation.

[34]      The plaintiff seemed to suggest that the defendants are required by law to ensure absolute safety in the food chain: when a person consumes chicken as an individual, at home or as a customer in a restaurant, and the said poultry proves to be unfit for consumption, one or other of the three defendants is automatically responsible, whatever the circumstances, the period that has elapsed, the responsibility or negligence of the consumer himself or the responsibility of the other intermediaries in the food chain, between the poultry producer and the table.

[35]      Such a claim is not supported by any precedent or analytical commentary and prima facie appears to run contrary to the established rules as to the causal link that must exist between damage and the party or parties that may have caused the said damage.

[36]      I have no hesitation in concluding that the pleading and the action itself are scandalous, frivolous and vexatious and constitute an abuse of process pursuant to Rule 221(1)(c) and (f).

CONCLUSION

[37]      I have carefully read the statement of claim as well as the argument filed by counsel for the defendants in the case at bar. It is somewhat surprising that counsel for the plaintiff only decided to respond belatedly and very superficially to the sound arguments, supported by ample precedent, in support of the motion to dismiss the action.

[38]      I have been unable to identify a real cause of action in the statement of claim filed by the plaintiff. It appears that the plaintiff has brought a number of various actions, systematically citing alleged deficiencies in the methods of monitoring and inspection food quality by the defendants, including the transportation of poultry.

[39]      It also appears that the plaintiff had business dealings with the federal Department of Agriculture for several years, and there is nothing in the record to show that the plaintiff ever raised the question of his own food poisoning during those years, when he was in contact with the federal Department of Agriculture on a contractual basis, and it would appear that there is still a dispute between the two parties arising out of those contractual relations and the plaintiff chose not to respond to the allegations to that effect made in the motion.

[40]      The statement of claim is so vague that one or other of the defendants does not even appear by name in the statement of claim: they are simply mentioned collectively as [TRANSLATION] "the defendants", whereas the latter have responsibilities and procedures quite different from each other.

[41]      There are no details on the times at which the poultry was consumed, no details on the restaurants where the said poultry was allegedly consumed and made available to the public, and no details about the hospitals or physicians who may have been involved or consulted on the food poisoning, and in what way any of the federal bodies mentioned as defendants were supposedly at fault, either by action or omission.

[42]      It is one thing to allow any individual to have recourse to the courts; it is something else to allow a person to file a multiplicity of very similar actions in various courts, supported by extremely serious allegations and charges against Departments and Agencies who have specific responsibilities for public health across Canada. When a plaintiff is unable as a minimum to present at least a minimal factual foundation for his or her allegations, the courts are entitled to find the action frivolous and vexatious. That is clearly the case here.

[43]      In dismissing the instant statement of claim for the reasons explained above, I have no hesitation in also considering that the said action should be dismissed without an opportunity for amendment.

[44]      The defendants asked that in this particular situation the plaintiff be ordered to pay out-of-court costs, or an amount to be determined by the Court.

[45]      This particular application appears in the motion and was the subject of specific comments when oral submissions were made by counsel for the defendants. However, counsel for the plaintiff chose not to respond to this application or to present a valid argument in this regard.

[46]      Based on the submissions made to the Court, and considering the record as it stands, I do not think it is proper to order the plaintiff to pay costs on a solicitor-client basis; however, I think it is proper to award costs to the defendant Attorney General of Canada in an amount set at $3,000, payable forthwith.

O R D E R

THE COURT ORDERS that:

-           the motion to strike the statement of claim is allowed;

-           the statement of claim will be struck with no leave to amend;

-           the action is dismissed;

-           the plaintiff is ordered to pay the defendant Attorney General of Canada costs set at $3,000 forthwith.

Certified true translation

K.A. Harvey

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-1079-04

STYLE OF CAUSE:                                                   GASTON J. SYLVAIN

Plaintiff

and

ATTORNEY GENERAL OF CANADA in right of AGRICULTURE AND AGRI-FOOD CANADA

-and-

ATTORNEY GENERAL OF CANADA in right of THE CANADIAN FOOD INSPECTION AGENCY

-and-

ATTORNEY GENERAL OF CANADA in right of DEPARTMENT OF HEALTH (HEALTH CANADA)

Defendants

PLACE OF HEARING:                                             Québec

DATE OF HEARING:                                               October 13, 2004

REASONS FOR ORDER AND ORDER BY:        The Honourable Mr. Justice Blais

DATED:                                                                      November 17, 2004

APPEARANCES:

Daniel Petit                                                                    FOR THE PLAINTIFF

Guy Lamb                                                                     FOR THE DEFENDANT

Attorney General of Canada

SOLICITORS OF RECORD:

Daniel Petit                                                                    FOR THE PLAINTIFF

4765, 1^ère Avenue, bureau 280

Charlesbourg, Quebec

G1H 2T3

Guy Lamb                                                                     FOR THE DEFENDANT

Attorney General of Canada                                          Attorney General of Canada

Morris Rosenberg

Deputy Attorney General of Canada

Department of Justice

Montréal

SOLICITORS OF RECORD:

Daniel Petit                                                                    FOR THE PLAINTIFF

4765, 1^ère Avenue, bureau 280

Charlesbourg, Quebec

G1H 2T3

Guy Lamb                                                                     FOR THE DEFENDANT

Attorney General of Canada                                          Attorney General of Canada

Morris Rosenberg

Deputy Attorney General of Canada

Department of Justice

Montréal

Alain Tanguay                                                                FOR THE DEFENDANT

Bouchard, Gagnon                                                         Attorney General of Quebec

Justice Québec

300, boul. Jean-Lesage, bureau 1.03

Québec, Quebec