Byer v. Canada, 2001 FCT 1128

Date: 20011018

Docket: T-1119-01

Neutral citation: 2001 FCT 1128

Montreal, Quebec, October 18, 2001

Present:           Richard Morneau, Esq., Prothonotary

BETWEEN:

                                                                STEPHEN M. BYER

                                                                                                                                                          Plaintiff

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                             IN RIGHT OF CANADA

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY:

[1]                 This is a motion in writing on behalf of the Defendant under rule 221(1)(a) of the Federal Court Rules, 1998 (the rules) for an order striking out the Plaintiff's Statement of Claim (the claim) on the ground that it discloses no reasonable cause of action.

[2]                 Alternatively, the Defendant requests that, should her motion be dismissed, she be granted an additional thirty (30) days for service and filing of her Statement of Defence.

[3]                 It is trite law that on a motion under rule 221(1)(a), all the facts and allegations in the Statement of Claim must be deemed to have been proven.

[4]         Additionally, as indicated by Decary, J.A. in Sweet et al. v. Canada (1999), 249 N.R. 17, at 23:

Statements of claim are struck out as disclosing no reasonable cause of action only in plain and obvious cases and where the court is satisfied that the case is beyond doubt (see [1980] 2 S.C.R. 735">Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R. (3d) 1, at 740 [S.C.R.]; Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R. (4th) 481; 12 Admin. L.R. 16 and Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 49 B.C.L.R. (2d) 273; 74 D.L.R. (4th) 321).

[4]                 In the case at bar, the Defendant submits that the Plaintiff has not provided in his claim a statement of the facts upon which his action is based and that there is no indication therein as to the nature of the damages suffered by the Plaintiff.

[5]                 I cannot agree with the Defendant's submission for I think that she misunderstands in her motion the approach taken by the Plaintiff in his claim.

[6]                 According to my understanding of the Defendant's central arguments, she argues that it was not sufficient for the Plaintiff to refer in paragraph 3 of his claim to a document he sent to her (the Liability Claim document) allegedly containing all the facts supporting his claim but that he should have detailed in the text per se of his claim all the facts or events on which he bases his claim.

[7]                 However, as I read the Plaintiff's claim, it is based not on acts of the Defendant which had allegedly occurred within the Government operations and which were allegedly described in his Liability Claim document but on the intentional failure on the part of the Defendant to assess in accordance with her policy on claims the Liability Claim document submitted by the Plaintiff.

[8]                 The failure to assess appears to be the driving ground of the Plaintiff's claim. As I read the Plaintiff's claim, most of the paragraphs contained therein describe or refer to that said failure.

[9]                 Therefore, I cannot conclude based on the approach adopted by the Defendant in her motion that it is clear and obvious that the Plaintiff's claim discloses no reasonable cause of action.

[10]            Whether the allegedly failure on the part of the Defendant to assess the Plaintiff's Liability Claim document in accordance with her policies is an actionable tort is not an argument which has been advanced by the Defendant in the within motion. Therefore, I shall refrain from coming to any conclusion on this point.

[11]            Consequently, the Defendant's motion to strike out the Plaintiff's claim is dismissed, with costs in the cause.

[12]            The Defendant shall have thirty (30) days from the date of the present Reasons for Order and Order to serve and file a Statement of Defence.

Richard Morneau   

Prothonotary

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-1119-01

STEPHEN M. BYER

                                                                              Plaintiff

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                          Defendant

WRITTEN MOTION EXAMINED IN MONTREAL WITHOUT PERSONAL APPEARANCE OF THE PARTIES

REASONS FOR ORDER OF:Richard Morneau, Esq., Prothonotary

DATED:October 18, 2001

WRITTEN OBSERVATIONS BY:

SOLICITORS OF RECORD: