Date: 20091201
Docket: T-95-08
Citation: 2009 FC 1233
Vancouver, British Columbia, December 1, 2009
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
JOHN FREDERICK CARTEN AND
KAREN AUDREY GIBBS
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, JEAN CHRETIEN,
EDDIE GOLDENBERG, SERGIO MARCHI, LLOYD
AXWORTHY,
PIERRE PETTIGREW, JOHN MANLEY, BILL
GRAHAM, JIM PETERSON,
PAUL MARTIN, DAVID EMERSON, TIM MURPHY,
HER MAJESTY THE QUEEN IN RIGHT OF BRITISH COLUMBIA,
MICHAEL HARCOURT, GLEN CLARK, UJJAL
DOSANJH, GORDON CAMPBELL, ATTORNEY GENERAL FOR CANADA,
ALLAN ROCK, ANNE MCLELLAN, MARTIN
CAUCHON, IRWIN COTLER,
ATTORNEY GENERAL FOR BRITISH COLUMBIA,
COLIN GABLEMAN, GEOFF PLANT, WALLY OPPAL,
CANADIAN JUDICIAL COUNCIL, JEANNIE
THOMAS, NORMAN SABOURIN,
ANTONIO LAMER, deceased, BEVERLEY
MCLACHLIN,
ALLAN MCEACHERN, deceased, PATRICK DOHM,
DONALD BRENNER,
BRYAN WILLIAMS, JEFFERY OLIPHANT, JOHN
MORDEN, JOSEPH DAIGLE,
THEMIS PROGRAM MANAGEMENT AND CONSULTING
LTD.,
THE LAW SOCIETY OF BRITISH COLUMBIA, THE
LAW SOCIETY OF ALBERTA, DAVID VICKERS, ROBERT EDWARDS, deceased, JOHN BOUCK,
JAMES SHABBITS, HOWARD SKIPP, CRYIL ROSS LANDER, RALPH HUTCHINSON,
MICHAEL HALFYARD, HARRY BOYLE, SID CLARK,
ALLAN GOULD,
ROBERT METZGER, BRIAN KLAVER, JOHN MAJOR,
JOHN HORN,
BARBARA ROMAINE, ADELE KENT, SAL
LOVECCHIO, DONALD WILKINS,
ROY VICTOR DEYELL, TIMOTHY LEADEM,
WILLIAM PEARCE,
LISA SHEUDROFF, ANN WILSON, RICHARD
MEYERS, GILLIAN WALLACE,
MAUREEN MALONEY, BRENDA EDWARDS, STEPHEN
OWEN, DON CHIASSON,
CRAIG JONES, JAMES MATTISON, MCCARTHY
TETRAULT LLP,
HERMAN VAN OMMEN, STEVE KLINE, LANG
MICHENER LLP,
THE CORPORATION OF THE CITY OF VICTORIA, JOHN DOE AND JANE DOE
Defendants
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1]
On
January 21, 2008, the Plaintiffs, John Frederick Carten (Carten) and Karen
Audrey Gibbs (Gibbs), commenced an action for compensatory and punitive damages
against Her Majesty the Queen in Right of Canada (the Federal Crown), as the
primary Defendant, and against a number of other Defendants alleged to be
either officers, employees, agents, or sub-agents of the Federal Crown.
[2]
The
Statement of Claim alleges widespread conspiracy and collusion among those in
power, including past, present, and deceased members of both the British
Columbia
and federal governments and the judiciary, to personally injure Carten and to protect
allegedly secret information related to bulk water export policies of the
Governments of Canada and British Columbia. The Plaintiffs claim
that the Defendants committed various torts and statutory breaches calculated
to cause them harm, including obstructing the course of justice in various
legal proceedings involving the Plaintiffs and intermeddling in police
investigations arising from complaints filed by Carten. The Plaintiffs further
allege that the Defendants’ actions had the effect of violating the Plaintiffs’
rights as guaranteed by the Charter of Rights and Freedoms (Charter)
and the International Covenant of Political and Civil Rights (ICPCR).
[3]
The
Defendants have moved to strike the Statement of Claim under Rule 221 of the Federal
Courts Rules (FCR) on the grounds that the pleading does not
disclose a reasonable cause of action (Rule 221(a)), that the allegations made
by the Plaintiffs are scandalous, frivolous or vexatious (Rule 221(c)), that
the claims are beyond this Court’s jurisdiction and the proceeding constitutes
an abuse of process (Rule 221(f)).
[4]
For
the following reasons, I conclude that the Statement of Claim should be struck
as against all the Defendants, without leave to amend.
Motions
before the Court
[5]
Six
separate motions to strike were filed by the following moving parties:
(a) Her Majesty the Queen in Right of Canada, Jean
Chrétien, Eddie Goldenberg, Sergio Marchi, Lloyd Axworthy, Pierre Pettigrew,
John Manley, Bill Graham, Jim Peterson, Paul Martin, the Honourable David
Emerson, Tim Murphy, the Attorney General of Canada, Allan Rock, Anne McLellan,
Martin Cauchon and Irwin Cotler (Federal Crown Defendants);
(b) the Defendants, Michael Harcourt,
Glen Clark, Ujjal Dosanjh, Gordon Campbell, Attorney General for British
Columbia, Colin Gableman, Geoff Plant, Wally Oppal, Allan McEachern, deceased,
Patrick Dohm, Donald Brenner, Bryan Williams, David Vickers, Robert Edwards,
deceased, John Bouck, James Shabbits, Howard Skipp, Cyril Ross Lander,
Ralph Hutchinson, deceased, Michael Halfyard, Harry Boyle, Sid Clark, deceased,
Allan Gould, Robert Metzger, Brian Klaver, John Major, John Horn, Timothy
Leadem, William Pearce, Lisa Shendroff, Ann Wilson, Richard Meyers,
Gillian Wallace, Maureen Maloney, Brenda Edwards, Stephen Owen, Don Chiasson,
Craig Jones and James Mattison (BC Crown Defendants);
(c) the Canadian Judicial Council (CJC),
Jeannie Thomas, Norman Sabourin, Antonio Lamer, deceased, Beverley
McLachlin, Jeffery Oliphant, John Morden, Joseph Daigle, Barbara Romaine, Adele
Kent, Sal LoVecchio, Donald Wilkins and Roy Victor Deyell (Judicial
Defendants);
(d) the Law Society of British
Columbia
(LSBC), McCarthy Tetrault LLP (McCarthy Tetrault) and Herman Van Ommen;
(e) Lang
Michener LLP (Lang Michener); and
(f) the Law
Society of Alberta (LSA).
[6]
The
Plaintiffs brought a motion for default judgment as against Themis Program
Management and Consulting Ltd. (Themis), the only Defendant that did not file a
statement of defence or move to strike on a timely basis. The Plaintiffs’ motion was adjourned
because no evidence had been adduced to support their claim against Themis: Chase
Manhattan Corp. v. 3133559 Canada Inc., 2001 FCT 895. The Plaintiffs were
granted leave to file additional affidavit evidence and supplementary written
representations.
[7]
Before
the parties’ motions could be disposed of, the Plaintiffs appealed the Order of
the Chief Justice appointing a prothonotary as case management judge of the
proceeding. Out of deference to the appeal process, the motions were held in
abeyance pending a decision on the Plaintiffs’ appeal. In the interim, Themis
moved for leave to file its Statement of Defence.
[8]
The
Federal Court of Appeal dismissed the Plaintiffs’ appeal on October 6, 2009.
The Plaintiffs wrote to the Chief Justice of the Federal Court on October 7,
2009 to advise that they did not intend to appeal the decision of the Federal
Court of Appeal and requested that directions be issued to the prothonotary to
“forthwith deliver reasons for judgment in respect of the two matters that have
been before [the Court] since July, 2008”.
[9]
I
shall deal firstly with the motions to strike because, in my view, they
materially affect consideration of the Plaintiffs’ motion for default judgment
against Themis and Themis’ motion for extension of time to file a statement of
defence. As stated earlier in these reasons, the Defendants have raised
numerous grounds why the Statement of Claim should be struck without leave to
amend. I propose to briefly review the allegations made in the Statement of
Claim and the principles applicable on a motion to strike, and then deal with
each of the four grounds in turn.
Claims
Alleged in the Statement of Claim
[10]
The
Statement of Claim consists of 56 pages and contains 311 single-spaced
paragraphs. For the purpose of these reasons, it is not necessary to examine in
detail all of the allegations set out in the pleading. It should be remembered
that on a motion under Rule 221(a), the facts set out in the pleading are to be
taken as true for the purpose of determining whether the claim discloses a
reasonable cause of action.
[11]
Carten
was retained by Sun
Belt Water Inc. (Sun Belt) and Snowcap Waters Ltd. (Snowcap) back in 1992
to act as legal counsel for a lawsuit claiming compensation for business losses
relating to a change in bulk water export policy by the Her Majesty the Queen
in Right of British Columbia (BC Crown). The proceedings were commenced in the Supreme
Court of British Columbia (BCSC) in January 1993.
[12]
According
to the Plaintiffs, information came to their attention during the discovery
process and as a result of private investigations conducted both during and
after the conclusion of the BCSC proceedings. They claim to have uncovered evidence
that employees and officers of the Federal Crown and BC Crown had been secretly
conferring illegal favours to “friends of the former government”, using a
corporation called W.C.W. Western Canada Water Enterprises Ltd. (WCW). Carten was informed that
WCW was
organized by Chicago mafia families and that several members of the sitting
House of Commons in Ottawa had been investors in WCW.
[13]
The
Plaintiffs allege that there exists a September 1989 Agreement between the
Federal Crown and WCW that proves that these two parties conspired to
circumvent the Canada–United
States Free Trade Agreement, the Water Act and the General Agreement on Tariffs and Trade. The
Agreement is said to have exempted WCW from paying Water Act charges in
relation to bulk water.
[14]
The
pivotal allegations in the Statement of Claim are that individuals at the
highest levels of the Federal Crown approved and participated in a strategy of
fraud and concealment of fraud with other Defendants to personally injure
Carten in order to protect the supposedly secret information. Dozens of
individuals and entities are said to have collectively caused the Plaintiffs
harm through various acts of misconduct and omission over a period spanning 15
years. The Statement of Claim is replete with allegations of conspiracies
between various Defendants, including provincial court and superior court judges
and members of the CJC (¶ 3, 32, 38,
46, 71, 75, 77, 78, 83, 84, 135, 148, 151, 176, 178, 180, 184, 185, 194, 206,
218, 219, 223, 229, 235, 239, 243, 244, 246, 252, 260, 261, 301 and 311), and
“intermeddling” by the Defendants in various judicial, quasi-judicial and
police investigations (¶
4, 5, 6, 8, 12, 28, 32, 39, 40, 65, 66, 69, 71, 73, 135, 148, 151, 153, 157,
161,163, 168, 169, 170, 171, 174, 178, 184, 186, 194, 196, 213, 245, 269, 277,
278, 285, 286, 292 and 302).
[15]
After
the Snowcap litigation was resolved in July 1996 by a payment of $335,000.00,
the Plaintiffs allege that the BC Crown withdrew from discussions to negotiate
a settlement of Sun Belt’s claim, despite representations that they would enter
into good faith negotiations. The BC Crown Defendants are alleged to have resumed
litigation and adopted a defensive strategy that involved a “fraud on the court”. The
allegations of misconduct include:
(a) the suppression of evidence, the concealment of
documents, the use of false and perjured testimony, both on discovery and by
way of false affidavits, and the making of false and misleading submissions to
the presiding judge during interlocutory applications that took place in the
Sun Belt proceedings;
(b) improper and secret influencing of judicial
officers appointed to preside at various hearings in the Sun Belt proceedings;
and
(c) a covert attack on Carten by improper and secret
influencing of judicial officers in private family litigation involving Carten.
[16]
The
Plaintiffs allege that the BC and Federal Crowns improperly and secretly
influenced judicial officers in litigation between Rain Coast Water Corp.,
formerly known as Aquasource Ltd. (Aquasource) and the BC Crown, in respect of
an application by Aquasource under the BC Freedom of Information and
Protection of Privacy Act and a claim by Aquasource for compensation arising
from the change in bulk water export policy. By way of background, Aquasource
made a request for information related to the decision to execute
Order-In-Council 331 dated March 18, 1991. In response, the BC Crown released a
redacted version of a document known as a Cabinet Submission in which several
pages were severed or blacked out. Aquasource applied to have these pages
released. Carten alleges the application was dismissed because agents of the
Federal Crown intermeddled and conspired with various judges to render
decisions preventing Aquasource from making full and proper pre-trial discovery.
Carten claims that from 2000 to 2004, the BC Crown withheld documents in the
Aquasource Bulk Water Export proceedings because they knew that Carten provided
strategic advice to Aquasource and wanted to prevent him from gaining
information that would be useful in the Sun Belt proceedings.
[17]
The
Plaintiffs also allege that the Federal Crown covertly attacked Gibbs by
improper and secret influencing of judicial officers in private family
litigation and private property litigation involving Gibbs. The Plaintiffs
claim that the Federal Crown appointed various judges to hear matters in the
Gibbs’ custody proceedings and conspired with them and influenced them to render
unfavourable decisions to Gibbs and, by extension, to Carten himself. Carten
alleges that Federal Crown agents intermeddled in Gibbs’ private property
proceedings, resulting in unfavourable decisions to Gibbs and himself. The
Federal Crown agents are said to have done this with the intention of harming
Gibbs because of her association with Carten.
[18]
The
Sun Belt proceedings were dismissed in 1999 by the BCSC. In November 1999, Sun
Belt served a Notice of Claim and Demand for Arbitration under Chapter 11 of the North American
Free Trade Agreement (NAFTA). The NAFTA proceedings have not moved
forward due to lack of resources on the part of Sun Belt.
[19]
Carten
filed complaints with the RCMP and the Vancouver Police Department requesting a
police investigation of improper conduct by public officials. The Plaintiffs
claim that agents of the Federal Crown intermeddled with and obstructed the investigations
in 2002 and 2005.
[20]
The
Federal Crown is alleged to have attempted to have Carten disbarred in order to
hinder him from continuing to act for Sun Belt by employing its agents
to intermeddle in the affairs of the Defendants, LSBC and LSA. At paragraph 100
of the Statement of Claim, the Plaintiffs state that “particulars of the
misconduct of the [Federal Crown Defendants] are not fully known to the
Plaintiffs and will become plain and evident upon completion of discovery
procedures.”
[21]
The
Plaintiffs claim that a number of superior court judges, including the Chief
Justices of British Columbia and the Supreme Court of Canada, acted in breach
of their duties in office and obstructed the course of justice in the Sun Belt
proceedings and related litigation. The Plaintiffs allege that matters were
rescheduled, judges were re-assigned, and orders were rendered against them as a
result of actions of agents of the Federal Crown, who intermeddled with the
judiciary.
[22]
By
way of example, the Plaintiffs claim at paragraph 71 of the Statement of Claim
that agents of the Federal Crown conspired with a judge of the BCSC “to deliver
reasons for judgment that were perverse and contrary to the law and that were
intended to force Sun Belt to make general pre-trial disclosure of its evidence
and arguments of law prior [to] completion of discovery procedures.”
[23]
Another
example of judicial intermeddling relates to custody proceedings initiated by
Gibbs’ ex-husband in Alberta in 1995. The Plaintiffs
claim that the Alberta Court should not have taken jurisdiction in the matter
and that various decisions by the Alberta and BC Courts to the
contrary are wrong. Carten alleges that agents of the Federal Crown
intermeddled in the custody proceedings in order to prevent Gibbs from
providing assistance to Carten in the Sun Belt proceedings.
[24]
Carten
complained to the CJC numerous times to investigate alleged misconduct of
judges in the Sun Belt proceedings. Various members and employees of the CJC
are alleged to have breached their duties by failing to investigate Carten’s
complaints and covering up wrongdoing and illegal conduct. The conduct
of the officers of the CJC are said to be “tantamount to obstruction of justice
and a violation of the Criminal Code of Canada.”
[25]
Carten
alleges that the LSBC acted contrary to its statutory duties and obligations by
failing to investigate complaints filed by Carten against various lawyers
representing the Federal and BC Crowns. The LSBC is alleged to have “corruptly
and in breach of its statutory duties” required Carten to undergo a psychiatric
assessment and adopted a strategy of “character assassination by psychiatry”.
The Plaintiffs claim that the LSBC secretly induced the LSA to intermeddle in a
proceeding brought against Carten under the Family Maintenance Enforcement
Act (FMEA) by covertly arranging to cancel the hearing on June 30, 2006.
The Plaintiffs claim that the LSBC secretly persuaded the presiding judge in
the FMEA proceeding to issue a court order preventing Carten from calling
witnesses without the judge’s consent.
[26]
The
Plaintiffs allege that agents of the LSA, as sub-agents of the Federal Crown,
sent threatening letters to him in 1999 or 2000 as a result of a secret contact
between the LSBC and the LSA. They claim that the LSA refused to investigate
complaints made by Gibbs relating to lawyers who had represented her in Alberta. They
further allege that the LSA sent two investigators in an attempt to carry out
unlawful and improper investigation of Gibbs’ personal residence in Calgary in 1999 or
2000.
[27]
The
Plaintiffs allege that the Federal Crown intermeddled in the operations of
Themis and induced the company to take aggressive, abusive and illegal actions
against Carten, including garnishment proceedings in relation to accumulated
child support arrears payable by Carten, suspension of his driving license, and
engaging in a campaign of fraudulent defamation against Carten by advising
government officials in Alberta that Carten had a history of violence.
[28]
The
specific allegations against Lang Michener are contained at paragraphs 292 to
295 of the Statement of Claim. The Plaintiffs claim that Lang Michener intermeddled
in Carten’s solicitor-client relationship with Sun Belt, that the law firm was
secretly acting as agent of the Federal Crown and that it disclosed private
information obtained from Carten and Sun Belt to unidentified third parties, in
breach of Lang Michener’s professional duties.
[29]
Carten
states that, in 1997, McCarthy Tetrault agreed to prepare a legal opinion on
the possibility of initiating NAFTA proceedings with respect to Sun Belt. In
doing so, they misconducted themselves because they had a conflict of interest
due to their previous work for WCW and the Federal Crown, and their failure to
disclose the conflict. They further breached their professional obligations
when McCarthy Tetrault partner, Van Ommen, accepted a retainer from the LSBC in
Carten’s 2005 application for LSBC re-entry even though Carten had previously
been a client. The Plaintiffs further claim that Van Ommen induced a
psychiatrist to write a letter that stated Carten may suffer from an “unrecognized
and untreated major mental disorder”.
Principles Applicable
on a Motion to Strike
[30]
On a motion to strike out a pleading under Rule 221(a) of the FCR,
the applicable test is whether it is “plain and obvious” that the claim
discloses no reasonable cause of action: see Hunt v. Carey, 1990 CanLII 90 (S.C.C.),
[1990] 2 S.C.R. 959, [1990] S.C.J. No. 93 at paragraph 32 (QL). The fact
that the claim is a novel or difficult one is not a sufficient ground to strike the claim. The burden on the defendant is very high and
the Court should exercise its discretion to strike only in the clearest of cases. The pleading should be read generously with
allowance for inadequacies due to drafting deficiencies.
[31]
On a
motion to strike a pleading on the grounds that it does not disclose a
reasonable cause of action, those allegations that are capable of being proved
must be taken as true: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.
This rule does not apply, however, to allegations based on assumptions and
speculation: Operation Dismantle Inc. v. The Queen (1985), 18 D.L.R.
(4th) 481 (S.C.C.) at 486-487 and 490-491. Moreover, the Court need not
accept at face value bare allegations, factual allegations which may be regarded
as scandalous, frivolous or vexatious, or legal submissions dressed up as
factual allegations.
Whether the
Statement of Claim Discloses No Reasonable Cause of Action
[32]
As
a preliminary observation, Rule 221(2) of the FCR provides that no
evidence shall be heard on a motion for an order under paragraph (1)(a). Consequently,
the affidavit of John Carten sworn June 23, 2008, was not considered for the
purpose of determining whether the Statement of Claim fails to disclose a
reasonable cause of action.
[33]
At
paragraph 3 of the Statement of Claim, the Plaintiffs provide an overview of
their claim as follows:
“…the Defendants caused harm
to the Plaintiffs by acting in violation of the principles of tort law
including the torts of abuse of office, conspiracy, wrongful imprisonment,
intentional infliction of mental suffering, intentional interference with
economic relations, intentional violation of privacy rights, fraud, deceit,
concealment of fraud by public office holder and a strategy of fraud on the
court and its officers..”
[34]
Typical
examples of allegations of misconduct by the Defendants can be found in Part 5
of the Statement of Claim entitled “INTERMEDDLING WITH THE JUDICIARY - CARTEN
PROCEEDINGS”. The allegations at paragraphs 196 to 207 are reproduced below in
their entirety to illustrate the manner in which the claims are pleaded.
196. The [Plaintiff’s] claim that
agents of GovCan intermeddled in the [functionning] of the independent
judiciary in Carten's private [matrimnial] proceedings.
197. In or about February 1996,
Vickers, a former Deputy Attorney General with AGBC agreed, in breach of his
duties in office, with agents of GovCan to preside and a pre trial conference
[invloving] Carten and his wife as part of the strategy to destroy the forward motion
in the Sun Belt Proceedings by undermining Sun Belt's legal counsel, Carten.
198. In May 1996, agents of GovCan
appointed the Defendant, Robert Edwards, deceased, herein "Edwards",
a former Deputy Attorney General [wth] AGBC during the period from 1989 to 1993
to preside at a hearing of certain issues between Carten and his ex-wife as a
continuation of GovCan strategy to destroy the forward motion in the Water
Exprot Proceedings by undermining Sun Belt's legal counsel, Carten.
199. The Plaintiffs claim that agents
of GovCan or agents of GovBC, acting without authority of GovCan, secretly
influenced Edwards, a GovCan officer, to mis-conduct himself in office and
deliver reasons for judgment that were contrary to the established law in order
to deny Sun Belt full and normal discovery process that would have [asssited]
Sun [belt] to prove that GovBC bulk water export policies and GovBC favours for
WCW were contrary to the GATT and the Canada US Free Trade Agreement.
200. In or about June 1998, agents of
GovCan, appointed the Defendant, Sid Clark, herein Sid Clark, to preside at a
hearing of an application by AGBC to set aside subpoenas issued by Carten to
compel Shendroff, Clark and Dosanjh to appear as witnesses at a [heaing]
201. The Plaintiffs claim that agents
of GovCan secretly influenced Sid Clark to mis-conduct himself in office and
deliver reasons for judgment that were contrary to the established law in order
to deny Carten the right to make full answer and [defence]
202. In or about June of 1998, agents
of GovCan, appointed the Defendant Harry Boyle, herein "Boyle", to
preside at a hearing of an appeal by Carten of the decision of Sid Clark
hereinbefore referred to.
203. The Plaintiffs claims that
agents of GovCan secretly influenced Boyle to mis-conduct himself in office and
deliver reasons for judgment that were contrary to the established law in order
to deny Carten the right to make full answer and [defence]
204. In or about August 1998, agents of
GovCan, appointed the Defendant, Donald Brenner, herein "Brenner" to
preside at a hearing of an application by Carten's ex-wife to [incease] the
quantum of child support.
205. The Plaintiffs claims that
agents of GovCan secretly influenced Brenner to mis-conduct himself in office
and deliver reasons for judgment that were contrary to the established law in
order to cause further financial hardship for Carten so he would be unable to
[contiue] to act for Sun Belt in the Sun Belt Proceedings.
206. In or about October 1998, agents
of GovCan, conspired with the Defendant, Robert Metzger, then the Chief judge
of the Provincial Court of British Columbia, herein "Metzger" to
[appointed] the Defendant, Allan Gould, herein "Gould" to preside at
a hearing of an application by AGBC and Themis in relation to accumulated
arrears of child support owing by Carten.
207. The Plaintiffs [claims] that
agents of GovCan secretly influenced Gould to mis-conduct himself in office and
deliver reasons for judgment that were contrary to the established law in order
to imprison Carten and further hinder his ability to continue to act for Sun
Belt in the Sun Belt Proceedings.
208. In or about March 2000, Carten
complained to Metzger that Gould had misconducted himself and asked for an
investigation but Metzger, in breach of his duties, refused to carry out a
competent investigation of Gould and covered up for Gould. In June of 2000,
agents of GovCan rewarded Metzger with a promotion to a position as judge of
Supreme Court of British Columbia.
209. In or about September 2001,
agents of GovCan, appointed James Taylor, a former long term employee of AGBC
and an officer of GovCan, to preside at a hearing of an application by Carten
to reduce the quantum of child support to comply with the Parliamentary
Guidelines and cancel arrears of child support.
210. Taylor
was appointed to judicial office by Chretien in 1995 and had also been a law
partner with Hutchinson, Shabbits and Horn.
211. The Plaintiffs claims that
agents of GovCan secretly influenced Taylor to mis-conduct himself in office
and deliver reasons for judgment that were contrary to the established law in
order to prevent Carten from continuing his work for Sun Belt and to prevent
Carten from further exposing the criminality behind the arrangements between
WCW and GovBC which involved members or former members of the House of Commons
and officers of GovCan.
212. In addition, the Plaintiff
claims that Taylor, as agent for GovCan, seized himself of Carten's file so
that Taylor would be in a position to block any
application by Carten for relief and further carry out the objective of agents
for GovCan of preventing Carten from exposing their criminal conduct.
[35]
Rule
174 of the FCR requires that every pleading must contain a concise
statement of the material facts on which the party relies. Rule 181 provides
that a pleading must also contain particulars of every allegation contained
therein. Rule 182 states that every statement of claim must specify the nature
of damages claimed.
[36]
These
rules impose an obligation on a plaintiff to plead material facts that disclose
a reasonable cause of action, which can be broken down into four basic
requirements: (a) every pleading must state facts and not merely conclusions of
law; (b) it must include material facts; (c) it must state facts and not
the evidence by which they are to be proved; and (d) it must state facts
concisely in a summary form.
[37]
The
Plaintiffs’ Statement of Claim breaches the rules of pleading in every
respect. Instead of stating material facts establishing a reasonable cause of
action, the Statement of Claim consists of bare assertions, bald statements,
argument, and conclusions. The allegations in the Statement of Claim are so wide ranging
and all encompassing as to be impossible to understand or respond to in any
meaningful way. It is equally impossible to address in these reasons each and
every deficiency in the Statement of Claim. My analysis will therefore focus on
the main allegations made by the Plaintiffs.
Agency
[38]
Subsection
17(5)(b) of the Federal Courts Act confers jurisdiction on the Federal
Court where a claim involves agents of the Federal Crown. Whether or not an agency
relationship arises out of the factual context is a matter of law.
[39]
Although
the Plaintiffs have alleged generally that a number of Defendants were acting
as agents or sub-agents of the Federal Crown, there are no material facts or
any facts or particulars to support such a relationship. An allegation of the
bare conclusion of law is a bad pleading: Paradis v. Vaillancourt et al.,
[1943] O.W.N. 359. I can find nothing in the Statement of Claim which, if
proven, would establish that the Defendants, either in their collective
official role or individually, were acting as officers, servants or agents of
the Crown.
[40]
No
facts are pleaded by the Plaintiffs so as to support the conclusion of law
alleged that the Judicial Defendants, BC Crown Defendants, LSBC, LSA, Defendant
law firms, or Themis were agents or sub-agents of the Federal Crown.
Consequently, the pleading insofar as it alleges an agency relationship as a
basis for the Plaintiffs’ claim is deficient. The claims against the Defendants, other than the Federal
Crown Defendants, cannot stand because they are based on an improper pleading
that they were acting as an agent or sub-agent for
the Federal Crown without detailing the facts giving rise to an agency
relationship.
Intermeddling
[41]
At
paragraph 196, the Plaintiffs allege that agents of the Federal Crown
intermeddled in the functioning of the independent judiciary in Carten’s private matrimonial
proceeding.
The
Plaintiffs make similar allegations elsewhere in the Statement of Claim that
Federal Crown agents influenced judges to misconduct themselves and to issue
decisions contrary to the law with the intention of personally injuring the
Plaintiffs (¶
65, 71, 77,
78, 135, 176-179, 184, 199, 201, 203, 205, 207, 211, 229, 234 and 237).
[42]
The
plea of intermeddling is deficient since it is not a cause of action known at
law. Even if such a cause of action existed, the Plaintiffs offer no facts to make out a
case of judicial tampering, other than the existence of a proceeding, vague
allegations of “intermeddling” by unknown persons, and the subsequent
disposition of the proceeding. The connection between the disposition of the
various proceedings and the alleged wrongdoing is merely unprovable
speculation.
[43]
To
the extent that the Plaintiffs’ claim is based on intentional economic
interference, I conclude that it has not been made out, as three essential elements of
the tort must be plead with particularity: see Canada Steamship Lines Inc.
v. Elliott, 2006 FC 609; Lineal Group Inc. v. Atlantis Canadian
Distributors Inc. (1998), 42 O.R. (3d) 157 (Ont. CA). The elements are:
1. an
intention to injure the plaintiff;
2. interference with another's method of
gaining its livelihood or business by unlawful or illegal means; and
3. economic loss caused thereby.
[44]
The
allegations are simply not capable of supporting a claim of intentional
economic interference. In particular, the requisite intention and economic loss
have not been pleaded.
Unlawful Imprisonment
[45]
At
paragraph 207 of the Statement of Claim, the Plaintiffs allege that agents of the
Federal Crown secretly influenced a judge to deliver unlawful reasons for
judgment in order to imprison Carten. Similar allegations are made at paragraph 32 where
the Plaintiffs allege that the BC Crown, acting as agent for the Federal Crown,
“intermeddled and conspired” with certain judges and other employees of
the BC Crown and Themis “to deny Carten the fundamental right
to call witnesses and to unlawfully imprison Carten in jail for 40 days.”
[46]
False
imprisonment is the intentional confinement or restriction of a person,
contrary to his or her will, and is done without lawful authority or
justification. To succeed in an action for false imprisonment, the defendant’s conduct
must be intentional and it must cause the confinement. Second, the plaintiff’s
confinement must be total. Third, the detainee’s compliance
with the defendant’s demands must be without his or her consent.
Finally, even if the above three elements are present, the imprisonment is only
wrongful if the defendant’s intentional conduct is unlawful or
unauthorized.
[47]
On
the facts as pleaded, Carten’s imprisonment was not brought about by the direct
act of any Defendant, but was caused by the intervention of the judicial
process: Foth v. O’Hara et al, (1958), 24 W.W.R. 533 (Alta.
S.C.). There are no facts pleaded regarding the nature of
Carten’s confinement, or his lack of consent. Further, the allegation that the
imprisonment was unlawful is a conclusion, not a fact.
Judicial Immunity
[48]
The
Plaintiffs acknowledge that the doctrine of judicial immunity applies to all
judges acting in the course of their judicial duties: Morier and Boily v.
Rivard, [1985] 2 S.C.R. 716 (Morier). They submit, however, that if
they can prove that the named judges were acting as agents for the executive
branch of government, contrary to their oaths of office, and they are punished
with an appropriate award in punitive damages, such a result will send a strong
message to the executive branch of government and the judiciary that they both
have the obligation to preserve and protect the principle of judicial independence.
The Plaintiffs maintain that if a judge takes a bribe, submits to blackmail, or
agrees to render a decision that he or she knows is not in compliance with the
law, the party has a right to redress in the courts.
[49]
There
are no allegations of bribery or blackmail in the Statement of Claim. Accordingly,
the only issue to be determined is whether judicial immunity does not apply in
circumstances where a judge knowingly renders a decision contrary to the law.
In Morier, the Supreme Court of Canada concluded that so long as a judge
completes his or her work in the honest belief that the matter is within his or
her jurisdiction, then the judge cannot be held liable for his or her actions,
even if acting out of malice. The Plaintiffs have failed to plead any material
facts that any of the judges who rendered unfavourable decisions were not
acting judicially and knowing that they had no jurisdiction to act.
[50]
Judicial
immunity cannot be circumvented by merely pleading bald allegations of
misconduct:
Baryluk
(Wyrd Sisters) v. Campbell, 2008 CanLII 55134 (ON S.C.). The same should
apply to bare assertions that judges were acting as agents of the Federal
Crown. Judges should not be placed in the position of having to defend the
manner in which they have discharged their judicial duties in subsequent legal
proceedings commenced by disaffected litigants. The proper recourse is an
appeal of the decision, not an action against the judicial officer.
[51]
I
adopt and make mine the conclusion of Mr. Justice Hackland when he stated in Baryluk
that: “..there is no air of reality and indeed no basis whatsoever on any
material facts pleaded or by way of information otherwise put before this
Court, to justify the [Plaintiffs’] scurrilous allegations…” On the facts as
pleaded, no reasonable cause of action is disclosed as against any of the
judges named as Defendants.
Conspiracy
[52]
The
Plaintiffs’ attempt to buttress their allegations of misconduct by alleging
various conspiracies between the Defendants. An allegation of conspiracy consists
of an imputation of misconduct and dishonesty and must be pleaded with special
particularity and care: Pellikaan v. Canada, 2002 FCT 221 (CanLII),
[2002] 4 F.C. 169 (Pellikan). In Canada Cement LaFarge Ltd. v.
British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452 at pp.
471-472, the Supreme Court of Canada concluded that the tort of conspiracy is
made out if:
(a) whether the means used by the
defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is
to cause injury to the plaintiff; or,
(b) where the conduct of the defendants
is unlawful, the conduct is directed towards the plaintiff (alone or together
with others), and the defendants should know in the circumstances that injury
to the plaintiff is likely to and does result.
[53]
The
Statement of Claim fails to set out the circumstances of the alleged
conspiracies, the identity of some of the alleged conspirators and, more
importantly, the existence of an agreement between any of the Defendants to
injure the Plaintiffs. Nor are there any allegations specifying the nature of
the damages claimed, or any causal connection between the damages and the
alleged actions of the Defendants.
Misconduct in
Office and Breach of Duty
[54]
In Part 3E of the Statement of Claim (paragraphs
123 to 151), it is alleged that Carten complained 21 times to
the CJC that some judges of the SCBC had acted inappropriately between
1998 and 2007. The Plaintiffs claim that various officers and members of
the CJC refused to carry out investigations or dismissed complaints with the express
purpose of injuring the Plaintiffs and protecting government secrets. According
to the Plaintiffs, the failure to properly investigate the complaints amounted
to misconduct in office, and a breach of duty. It is also alleged that the
Judicial Defendants conspired with members of the judiciary in order to
co-ordinate judicial attacks on the Plaintiffs by influencing the outcome of
legal proceedings.
[55]
A
failure to investigate a complaint is not a cause of action known at law. In
any event, subsection 63(1) of the Judges Act, R.S.C. 1985, c. J-1
expressly provides that the CJC is not required to investigate any complaint,
except by order of the Minister of Justice. Moreover, there are no material
facts linking the failure to investigate any loss suffered by the Plaintiffs.
[56]
Other
allegations of lying, concealment and fraud against the Judicial Defendants
consist of bare assertions unsupported by any material facts and are not linked
to damages suffered by the Plaintiffs.
[57]
The
same can be said about allegations against McCarthy Tetrault and Van Ommen. The
mere fact that McCarthy Tetrault may have been in a conflict of interest by
acting for Sun Belt in 1997, despite having previously acted for WCW, does not
disclose a reasonable cause of action. First, the Plaintiffs do not have any
standing to complain about the alleged conflict of interest. Second, there is
no link between the alleged misconduct and the damages claimed by the
Plaintiffs.
[58]
Stripped
of the allegations against other Defendants, it is clear and beyond doubt that
the Plaintiffs cannot succeed against the Federal Crown, for there is no
independent cause of action against it.
Whether the
Federal Court Lacks Jurisdiction
[59]
The
moving parties submit that the Federal Court does not have jurisdiction over
the Plaintiffs’ claim. The Plaintiffs respond that this Court has jurisdiction
to deal with cases involving the better administration of the laws of Canada, including
the Charter and the ICPCR. The Plaintiffs claim that their
constitutional rights have been violated by corrupt judicial officers of the
British Columbia and Alberta superior courts and
that those courts are not competent to hear this case. The Plaintiffs submit
that the only court in Canada that is competent to hear the case is the Federal
Court.
[60]
I
do not agree with the Plaintiffs that the Federal Court somehow acquires jurisdiction
by default. In order to found jurisdiction in this Court, a three-part test
must be met: ITO-International Terminal Operators Ltd. v. Miida Electronics Inc.
1986 CanLII 91 (S.C.C.), [1986] 1 S.C.R. 752. First, there must be a
statutory grant of jurisdiction by the federal Parliament. Second, there must
be an existing body of federal law which is essential to the disposition of the
case and which nourishes the statutory grant of jurisdiction. Third, the law on
which the case is based must be “a law of Canada” as the
phrase is used in s. 101 of the Constitution Act, 1867.
[61]
This
Court clearly does not have jurisdiction over the Defendants, except for the
Federal Crown Defendants (assuming, of course, that a reasonable cause of
action is disclosed). Broad and unsubstantiated allegations that the Defendants
were acting as agents of the Federal Crown does not confer jurisdiction on this
Court.
[62]
In
addition, section 86 of the British Columbia Legal Profession Act,
SBC 1998, c. 9 protects the LSBC from liability for anything done or not done
in good faith. Section 115(1) of the Alberta Legal Professions Act, RSA
2000, c. L-8 states that no action lies against the LSA, a person who conducts
an investigation of a member lawyer, or a person acting on the instructions of
the LSA or a person conducting an investigation in respect of anything done by
any of them in good faith.
Whether the
Allegations Made by the Plaintiffs are Scandalous, Frivolous and Vexatious
[63]
In
determining whether a claim should be struck as disclosing no reasonable cause
of action, the test is whether, assuming the plaintiff proves everything
alleged in his claim, there is nevertheless no reasonable chance of success.
Striking out an entire claim on the ground that it is frivolous, vexatious or
an abuse of process of the Court under Rule 221(1)(c) is based on an entirely
different footing. Instead of considering merely the adequacy of the pleadings to
support a reasonable cause of action, it may involve an assessment of the
merits of the claim, and the motives of the plaintiff in bringing it.
[64]
In Pellikan,
the late Prothonotary John Hargarve concluded that a proceeding which the Court
would have difficulty controlling could be struck on the grounds that it is
vexatious. He stated:
Where a statement of claim is exceedingly
general and bereft of specifics so as to present the defendant from either
proper investigation or proper response, it may well be struck out … such
statements of claim (are) fundamentally vexatious for they reveal insufficient
facts to demonstrate the basis for the claim, thus making it impossible for the
defendant to answer the claim or, indeed for a court to regulate the proceedings.
Such a general and all encompassing statement of claim that is so bereft of
particulars that a defendant would be unable to draft an answer, is
fundamentally vexatious and will not lead to any practical result.
[65]
The
Plaintiffs’ Statement of Claim is overly long and asserts broad conspiracies by
dozens of individuals and intentional and dishonest wrongs against the
Plaintiffs personally and the Canadian public generally. The allegations begin
with the assumption that a conspiracy exists among the members of the Canadian
and British
Columbia
governments and the judiciary to personally injure the Plaintiffs.
[66]
The
factual matrix of each case should be considered broadly, employing a common
sense approach. The Court’s challenge is to look beyond how a claim is
legally framed in order to determine its essential character.
[67]
The
pleading makes numerous unfounded allegations against the judiciary, those
holding public office and others implicated in a conspiracy so broad and so
complete that, if there were any truth to it, would result is a complete
failure of the justice system in Canada. It is apparent, on the
face of the pleading, that the Plaintiffs disagree with the results of several
judicial decisions. The Plaintiffs leap to the conclusion that all those
connected to any negative decision, even peripherally, must necessarily be
involved in a wide ranging conspiracy against him. A pleading that contains
unfounded and inflammatory attacks on the integrity of a party, and speculative
and unsupported allegations of defamation will be struck as scandalous and
vexatious.
[68]
In
my view, the Statement of Claim as a whole, lacks rationality is ill-founded,
and fundamentally vexatious. The Plaintiffs are, in essence, challenging and
attempting to re-litigate decisions rendered by various courts and
administrative tribunals. These decisions could have been appealed and cannot now be
attacked collaterally.
Whether the
Proceeding Constitutes an Abuse of Process
[69]
Repeated
attempts to litigate the same dispute by naming slightly different parties, or
applying in different capacities and relying on somewhat different statutory
provisions, may also constitute an abuse of process: Black v. Creditors of
The Estate NsC Diesel Power Inc. (2000), 183 F.T.R. 301 (FCTD).
[70]
The
Statement of Claim includes allegations that are very similar to allegations
previously considered and dismissed by the BCSC. In Carten v. Canada (Attorney
General),
2008 BCSC 7, Mr. Justice Curtis described Carten’s claim as follows:
Mr. Carten who once practised as a lawyer
on Vancouver Island has accumulated child support arrears in
excess of $325,000 under a divorce order. His petition alleges that, as a
result of his representation of two companies seeking compensation for business
losses brought about by changes the Province of British Columbia made in its
bulk water export policy, the Attorney General of British Columbia, (and
others) intermeddled in his divorce proceedings, attempted to have him
disbarred, appointed “regime-friendly judges” to make unfavourable rulings and
influences the judges of the Provincial Court of British Columbia to the extent
that that court should be prohibited from any further dealings with his
case. The complete particulars of Mr. Carten’s claim are set out in detail
in the Petition.
[71]
Carten’s
petition named the following parties as defendants: Her Majesty the Queen in
Right of Canada, the Attorney General for Canada, Her Majesty the Queen in
Right of the Province of British Columbia, the Attorney General for British
Columbia, the Director of Family Maintenance Enforcement Program, Themis
Program Management and Consulting Limited, the Law Society of British Columbia,
Kavia Carten, Tim McGee, Allan Gould, John Horn and Brian Klaver. The
proceeding was dismissed on the grounds that no reasonable claim was disclosed against
any of the named defendants.
[72]
It
is clear that the Plaintiffs are now trying to re-litigate many of the same
issues raised and dismissed in Carten’s BCSC action. Pleadings that are
designed to use the judicial process for an improper purpose are an abuse of
process. This would include harassment and oppression of parties by
multifarious proceedings, the re-litigation of issues previously decided and
the litigation of matters that have been concluded.
[73]
I
adopt and make mine the following eloquent submissions of counsel for the BC
Crown Defendants:
93. Section
17(1) of the Federal Courts Act clearly establishes that the Federal Court has
jurisdiction only over matters where relief is sought against the Federal
Crown. The Plaintiffs have not plead any material facts that any of the
Provincial Defendants were acting as an agent of the Federal Crown. The
allegations, as set out by the Plaintiffs, that the actions of the Federal
Crown and various Provincial Defendants are so intertwined that they confer
jurisdiction on the Federal Court would be well beyond the intentions of the
Section 17 of the Federal Courts Act. The Plaintiffs rely on presumption and
theories to conclude that the Federal and Provincial Crown acted in collusion
to cause harm to the Plaintiffs. Even if this were fact, which is specifically
denied, it would not create jurisdiction. The Federal Crown was never a party
to any of the litigation matters involving the Plaintiffs, nor was there any issues
related to those litigations which fell under statutes which would provide
jurisdiction. The mere fact that the Federal Crown appoints judicial officers
to the Supreme Court of British Columbia does not accord the Plaintiffs the
ability to commence an action in the Federal Court.
94. At
their core, the allegations of wrongdoing contained in the Statement of Claim
are a theoretical construct of the Plaintiffs and are without any basis in
material fact. The mortar that binds this construct is the Provincial
Defendants lawful exercise of legal and professional obligations that run
contrary to the wishes, views and perceptions of the Plaintiffs. To the
Plaintiffs, the refusal of the various Provincial Defendants to adapt their
position and view stands as the material fact that underpins the allegations;
non compliance with the Plaintiff is itself evidence of conspiracy, collusion,
fraud and wrongdoing. This approach is presumptive and is, at the very least,
an abuse of process contrary to Rule 221(1)(f) of the Federal Courts Rules,
1998 and is scandalous, frivolous and vexatious contrary to Rule 221(1)(c) of
the Federal Courts Rules, 1998.
Conclusion
[74]
For
the reasons above, I conclude that the Statement of Claim should be struck out
and the action dismissed, with costs. The Plaintiffs have not offered any
amendments that would cure the radical defect in the pleading. Leave to amend
is therefore denied.
[75]
In
light of the dismissal of the action, the Plaintiffs’ motion for default
judgment and Themis’ motion for extension of time to file a statement of
defence have been rendered moot. The two motions will accordingly be
dismissed, without costs.
ORDER
THIS COURT
ORDERS that:
1.
The
Statement of Claim is struck out, without leave to amend.
2.
The
action is dismissed, with costs payable by the Plaintiffs to the Defendants,
other than the Defendant, Themis Program Management and Consulting Ltd.
3.
The
Plaintiffs’ motion for default judgment against the Defendant, Themis Program
Management and Consulting Ltd., is dismissed.
4.
The
motion on behalf of the Defendant, Themis Program Management and Consulting
Ltd., for an extension of time to serve and file a statement of defence is
dismissed.
“Roger R. Lafrenière”
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