Grinshpun v. Canada, 2001 FCT 1252

                                                                 Date: 20011114

                                                 Court File No.: T-647-01

                                       Neutral Citation: 2001 FCT 1252

Ottawa, Ontario, this 14^th day of November, 2001

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:                                           

                              LEON GRINSHPUN

                                                                Plaintiff

                                 - and -

                         HER MAJESTY THE QUEEN

                                                                Defendant

                         REASONS FOR ORDER AND ORDER

[1]                 The defendant brings this motion for an order pursuant to Rule 221(1) of the Federal Court Rules, 1998, SOR/98-106, (the "Court Rules") seeking an order striking out the plaintiff's statement of claim without leave to amend, and dismissing the within action with costs; and in the alternative, an order extending the time for filing the statement of defence in the matter under rule 204. The defendant states that the plaintiff's statement of claim discloses no reasonable cause of action, is scandalous, frivolous and vexatious and is an abuse of the process of the Court.

[2]                 In the underlying action, the plaintiff claims against Mr. Steven Dorfman, a Registry Officer with the Federal Court of Canada, naming Her Majesty the Queen as defendant. This claim arises out of a Federal Court action No. T-2433-98, wherein Mr. Leon Grinshpun, as plaintiff, brought an action against the University of British Columbia ("UBC") for copyright infringement.

[3]                 It is useful to reproduce briefly the facts in action T-2433-98:

•           In July of 1995, the plaintiff, a physical education teacher and boxing coach, met with an employee of UBC's department of athletics to discuss employment opportunities as a boxing instructor.

•          The plaintiff states that during this meeting he had a binder with him containing, among other things, a description of two unique programs he claims to have invented.

•          The plaintiff was hired by UBC and claims to have consented to have his two programmes publicized in the UBC's Sport and Recreation brochure for the academic year 1995-1996, a claim disputed by UBC.

•          On August 25, 2000, Prothonotary Aronovitch dismissed the plaintiff's action and noted in her reasons for judgment that since Mr. Grinshpun was a self-represented lay litigant, substantial latitude had been allowed to him in adducing evidence. The Prothonotary found that the evidence did not support the plaintiff's allegations that he was the author of the programmes described in the UBC brochure. She also found that the boxing programmes that were offered by UBC after the plaintiff left were not similar to the plaintiff's programmes nor were they modelled after the ones taught by the plaintiff.

[4]                 On September 29, 2000, a motion by the plaintiff to have Prothonotary Aronovitch's order set aside, pursuant to Rule 399(2) of the Court Rules, was dismissed by Prothonotary Hargrave.

[5]                 On October 13, 2000, costs and disbursements incurred by the defendant in the simplified action process followed by the plaintiff (action T-2433-98) were awarded by Prothonotary Aronovitch to UBC in the amount of $17,800.

[6]                 On October 19, 2000, the plaintiff served and filed a notice of motion appealing to the Federal Court Trial Division both the order dismissing the action and the order as to costs.

[7]                 On November 15, 2000, the plaintiff filed a notice of motion seeking to introduce new evidence on appeal pursuant to Rule 351 of the Court Rules.

[8]                 On November 21, 2000, Nadon J. denied the plaintiff's motion to admit new evidence on appeal, since the evidence that he was seeking to introduce was not new evidence within the meaning of Rule 351 of the Court Rules. On that same day, Nadon J. ordered that the sum of $7,000 paid into Court by the plaintiff as security for costs be paid out in favour of UBC, pursuant to Rule 456(1).

[9]                 On November 27, 2000, Campbell J. granted a stay of the plaintiff's appeal pending payment of costs pursuant to paragraph 50(1)(b) of the Federal Court Act, R.S.C. 1985, c. F-7.

[10]            On December 7, 2000, Campbell J. directed the Registry to refuse to accept any further filings with respect to the appeal of Prothonotary Aronovitch's orders. On December 5, 2000, the plaintiff filed a notice of motion requesting that all exhibits adduced as evidence at the trial be marked and numbered on the file pursuant to Rule 276 of the Court Rules. On December 11, 2000, Pinard J. dismissed the plaintiff's motion finding that the documents in question could not be found in the Court file.

[11]            On January 18, 2001, Rouleau J. provided directions to the Registry not to accept any further filings with respect to the appeal of Prothonotary Aronovitch's decision. Rouleau J. also directed the Registry to return a "Request to Admit" pursuant to Rule 255 of the Court Rules to the plaintiff since it was improperly presented.

[12]            On February 5, 2001, the Associate Chief Justice provided directions to the Registry to inform the plaintiff that an application for the stay of an order pending appeal is governed by Rule 398 and must be brought by means of a motion with supporting affidavit and be served on the other party.

[13]            This brings us to the case at bar. The plaintiff brought this action concerning alleged wrongdoings by Mr. Steven Dorfman, a Registry Officer with the Federal Court of Canada, naming Her Majesty The Queen as defendant in the style of cause.

[14]            Before proceeding to deal with the plaintiff's claim, it should also be noted that the plaintiff also brought a wrongful dismissal action against the defendant in the Supreme Court of British Columbia. In that action, the defendant claimed that the plaintiff's contract had simply expired and that he was not signed to a new contract. The British Columbia Supreme Court eventually dismissed the action finding that Mr. Grinshpun was hired only for a term certain and the University had no obligation to re-engage him. The British Columbia Court of Appeal agreed with the trial division and the appeal was eventually dismissed for want of prosecution.

[15]            In this action, the plaintiff claims that:

                 (a)           The Defendant falsified the Dates on the Plaintiff's Documents, presented at the Trial Hearing;

                 (b)           The Defendant removed the Plaintiff's Documents from the List of Exhibits attached to Abstract of Hearing;

                 (c)           The Defendant made it up [sic] the Document, presented by the Plaintiff at the Trial Hearing.

                 (d)           The Defendant falsified the sequence of the Plaintiff's Documentary presentation at the Trial Hearing;

                 (e)           The Defendant illegally possesses the Plaintiff's the [sic] only copy of his Corriculum [sic] for 4 years of studies for his Degree in Physical Education, which the Plaintiff presented to the Defendant at the Trial Hearing.

                 (f)            The Defendant violated the Federal Court Rule # 274(1)(c) order of presentation at the Trial Hearing, by refusing the Plaintiff to present his Evidence after the UBC counsel concluded his presentation;

                 (g)           The Defendant violated the Federal Court Rules, Rule # 72(3) by refusing to file the Plaintiff's Documents;

                 (h)           General damages should be awarded in the amount of $ 20,000.00;

[16]            The defendant submits that:

The Claim fails to allege the necessary facts to support a claim of vicarious liability and therefore discloses no reasonable cause of action against Her Majesty the Queen, and therefore this claim should be struck.

The Statement of Claim, as it pertains to Dorfman discloses no reasonable cause of action, is redundant, scandalous, frivolous, vexations [sic] and an abuse of the Courts [sic] process.

Issue

[17]            (i)         Should the statement of claim be struck out in it's entirety?

            (ii)        Should certain paragraphs of the statement of claim be struck?

Analysis

[18]            The threshold for striking a statement of claim is a very high one and the statement of claim must be read as generously as possible. [Perera v. Canada, [1997] F.C.J. No. 199, p. 4 at paragraphs 21-25.] The test is whether it is plain and obvious that the claim discloses no reasonable cause of action. [Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980.] A statement of claim must disclose material facts instead of bare assertions in order to disclose a cause of action. [Vojic v. Canada (M.N.R.) (1987), 87 D.T.C. 5384 at p. 5385.] When there is no rational argument based on evidence, the claim may be struck for being frivolous and vexatious. [Steiner v. Canada (1996), 122 F.T.R. 187, p. 189-191 at paragraphs 7 to 10 and 16.]

[19]            I will deal with the particulars of the plaintiff's several claims with references to portions of the statement of claim.

(i) -      alteration of documents - paragraphs 1(a) and 16 of the statement of claim

The plaintiff claims that Mr. Dorfman intentionally and with malice sought to confuse the Court, by falsifying the dates on the documents that the plaintiff presented as exhibits at the trial before the Federal Court of Canada, by adding 10 years to the years that these documents where issued.

(ii) -     failure to list exhibits - paragraphs 1(b), 11, 12, 13, 14, 15, 22 and 23 of the statement of claim

The plaintiff claims that Mr. Dorfman failed to include exhibits presented at trial, i.e. a copy of his degree and curriculum which were accepted as exhibits P1 and P2, in the List of Exhibits. The plaintiff claims that Mr. Dorfman violated section 25 of the Canada Evidence Act, R.S.C. 1985 c. C-5., by purposely excluding a crucial piece of evidence reflecting his educational background.

(iii) -    inclusion of false documents - paragraphs 1(c) and 17 of the statement of claim

The plaintiff claims that Mr. Dorfman listed a document in the List of Exhibits, that was not in the court material.

(iv) -    altering sequence of exhibits in the list of exhibits - paragraphs 1(d), 18, 19 and 24 of the statement of claim

The plaintiff claims that Mr. Dorfman listed the wrong exhibit in the List of Exhibits.

(v) -     failure to return exhibits to plaintiff - paragraphs 1(e), 55, 56, 57, 58 and 59 of the statement of claim

The plaintiff claims that Mr. Dorfman removed from the court file a copy of his Degree in Physical Education as well as a copy of his Curriculum and failed to return these documents to him. He filed a motion asking that the documents be returned to him. On December 11, 2000, Pinard J. determined that the documents in question did not form part of the court file.

(vi) -    violation of Federal Court Rule 274(1)(c) - paragraphs 1(f), 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37 of the statement of claim

The plaintiff alleges that Mr. Dorfman violated Rule 274(1)(c). The plaintiff argues that in denying his request to file an original document, after counsel for UBC concluded his presentation, Mr. Dorfman allegedly stated that, "Defendant refused the plaintiff to do that" and that "The defendant told the plaintiff: ‘It is too late, you had your chance yesterday' ".

(vii) - failure to accept Exhibits for filing in violation of Federal Court Rule 72(3) - paragraphs 1(g), 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 52 of the statement of claim

The plaintiff claims that Mr. Dorfman violated rule 72(3) by refusing to accept documents for filing. Furthermore, the plaintiff claims that this constitutes professional misconduct.

(viii) - acceptance of documents without proof of service - paragraphs 38, 39, 40 and 41 of the statement of claim

The plaintiff claims that Mr. Dorfman accepted documents from counsel for UBC for filing without proof of service on the plaintiff which enabled UBC to obtain an ex parte order against him and that this constitutes professional misconduct.

(ix) -    negligent misrepresentation - paragraphs 53 and 54 of the statement of claim

The plaintiff claims that Mr. Dorfman sold a two page List of Exhibits to him after he had made a request to obtain such a list. The plaintiff claims that the List of Exhibits was not dated and as a result constitutes proof that Mr. Dorfman was trying to cover things up. The plaintiff alleges negligent misrepresentation on behalf of Mr. Dorfman.

(x) -     lost opportunity to appeal - paragraphs 61 and 62 of the statement of claim

The plaintiff claims that because of Mr. Dorfman's misrepresentation and willfulness he has lost his right of appeal.

[20]            The defendant responds to each and every one of these allegations, varying its response among particularly apt answers generally described as:

(a)        there is no factual basis to support the cause of action;

(b)        the claim is of bare assertions without essential facts;

(c)        Mr. Dorfman's actions were those directed by the Court or by the Federal Court Rules, 1998 and he had no interest in doing otherwise nor is there any factual basis set out for the plaintiff's claim;

            (d)        that the necessary factual elements of professional misconduct or of negligent misrepresentation on the part of Mr. Dorfman are not pleaded; and

(e)        that the claim is frivolous, vexatious, scandalous and an abuse of the Court's process.

[21]            I will firstly deal with the following very serious allegations made by the plaintiff against Mr. Steven Dorfman, a Registry Officer with the Federal Court of Canada, namely that Mr. Dorfman:

(a)        falsified the dates on the plaintiff's documents presented at the Trial Hearing;

            (b)        removed the plaintiff's documents from the list of Exhibits attached to the Abstract of Hearing;

            (c)        made up or modified the plaintiff's documents presented at the Trial Hearing;

            (d)        accepted documents for filing that should not have been filed for the purpose of assisting an adverse party (UBC) against the interest of the plaintiff.

The seriousness of such allegations against a Registry Officer of this Court cannot be overstated. Such alleged conduct, if proven, would certainly justify the harshest of sanctions against a Registry Officer. Given the very serious nature of such allegations that attack not only the integrity of the individual but indeed his very professionalism, it would be expected that anyone bringing such accusations would do so taking care to ensure that there are material facts to substantiate the serious assertions made. A careful review of the sixty-six (66) paragraphs of the statement of claim reveal that no such material facts are pleaded. For the most part, the statement of claim sets forth, in a rather incoherent fashion, a series of bald allegations against Mr. Dorfman without any material facts to support the alleged misconduct of the Registry Officer. To impute such inappropriate motives and conduct against someone is serious business indeed and, in my view, becomes reprehensible behaviour when the allegations are unsubstantiated with material facts. I am of the view that such is the case in this proceeding and I consequently find that these claims, as discussed above, are not only frivolous and vexatious but also constitute an abuse of the Court's process and should be struck.

[22]            The remainder of the statement of claim involves allegations the defendant violated the Court Rules or otherwise acted wrongfully. Essentially, the plaintiff alleges that the defendant:

(a)        refused to file the plaintiff's documents;

(b)        falsified the sequence of the Plaintiff's documentary presentation at the Trial Hearing;

(c)        illegally possesses the only copy of his Corriculum [sic] presented at the Trial Hearing;

(d)        refusing evidence at the Trial Hearing, and violating the Rules respecting the order of presentation at the Trial Hearing.

[23]            Paragraph 3 of the statement of claim describes Mr. Steven Dorfman, a Senior Registry Officer, as the defendant. The style of cause of the proceeding identifies Her Majesty the Queen as the defendant. It is therefore unclear if Mr. Dorfman is being sued in his own capacity or whether Her Majesty the Queen is alleged to be vicariously liable for the alleged wrongdoing of Mr. Dorfman. The statement of claim is of little help since vicarious liability is not specifically pleaded by the plaintiff.

[24]            In any event, my decision will not turn on this issue. The remaining allegations in the statement of claim as described in paragraph 22 above all deal with issues arising from directives of the Court given at the hearing of a motion before Prothonotary Aronovitch or other directives issued by the Court. All of the said remaining issues were beyond the discretion or the authority of the Registry Officer, Mr. Dorfman. The Prothonotary had the conduct of the hearing and directions for the conduct of the hearing and the production of documents was entirely within her discretion. Mr. Dorfman was acting at the direction of the Court and carrying out the orders of the Court. In my view, these remaining allegations are improperly brought in the statement of claim since they essentially constitute an appeal of the order of Prothonotary Aronovitch dated August 25, 2000. The plaintiff's appeal of the order of Prothonotary Aronovitch filed on October 19, 2000 was stayed by order of Mr. Justice Campbell dated November 27, 2000, pending payment of costs pursuant to paragraph 50(1)(b) of the Federal Court Act. Both Justices Campbell and Rouleau directed that the Registry refuse to accept any further filings with respect to the appeal of Prothonotary Aronovitch's decision.

[25]            The allegation that Mr. Dorfman illegally possesses his curriculum document is equally without foundation. Documents filed during a hearing are filed on direction of the Court and in possession of the Court and not that of the Registry Officer. In any event, Mr. Justice Pinard dismissed a motion on this very issue finding that the document in question could not be found in the Court file.

[26]            I reiterate my finding that the remaining allegations as set out in paragraph 22 above are not properly brought in the statement of claim since they essentially constitute an appeal of Prothonotary Aronovitch's decision, which appeal has already been stayed by Court order. For these reasons the pleadings containing these allegations will be struck without leave to amend.

[27]            The plaintiff has instigated proceedings in the Federal Court of Canada, the Supreme Court of British Columbia and the Court of Appeal of British Columbia, in the matter of his dispute with UBC. He has brought numerous motions before this Court which have eventually resulted in his appeal being stayed, orders for significant costs against him and two orders directing the Registry not to accept further filing. It is apparent that the plaintiff cannot accept that the Courts have ruled against him and he has decided to turn his frustration on Mr. Dorfman, a Registry Officer of this Court. The allegations made against Mr. Dorfman are very serious and are totally unsubstantiated. No material facts support these bald allegations. It is my view, that the statement of claim as it pertains to these serious allegations of misconduct as outlined above, are clearly futile and do not have the slightest chance of success. It is a pleading that provides no rational basis in fact.

[28]            It is my view that the bald allegations in the statement of claim fail to allege the material facts necessary to support a claim of professional misconduct or negligent misrepresentation by Mr. Dorfman or vicarious liability attributable to Her Majesty the Queen. The statement of claim will therefore be struck on the grounds that the claim is frivolous and vexatious and constitutes an abuse of the Court's process.

                                                                            ORDER

THIS COURT ORDERS that:

1.         The statement of claim is struck without leave to amend.

2.         The within action is dismissed with costs assessed against the plaintiff.

                                                                                                                                                               Judge