Docket: T-1276-15
Citation:
2016 FC 475
Ottawa, Ontario, April 27, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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STU PEARCE
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Plaintiff
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and
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HER MAJESTY THE
QUEEN
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Defendant
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JUDGMENT AND REASONS
[1]
Mr. Stu Pearce (the “Plaintiff”) appeals from
the Order dated October 14, 2015 by which Prothonotary Morneau granted the
motion brought by Her Majesty the Queen (the “Defendant”) to strike the
Statement of Claim issued on July 30, 2015. In his Order, Prothonotary Morneau
struck out the Statement of Claim without leave to amend.
[2]
Mr. Pearce is a resident of Port Aux Basques,
Newfoundland and Labrador. He commenced this action on July 30, 2015, seeking
the following relief:
a) An
Order that the defendant honour Her obligations to the applicant, inter alia,
as outlined in Article 7 of Schedule B of the Constitution Act, 1982.
b) An Order that the defendant arrange for the return of care and
control of the applicant’s security to him and it is the applicant, not the Constructive
Registered Holder, who is “entitled to vote, to receive notices, to
receive any interest, dividend or other payment in respect of the security”.
[the bold text is taken from Section 93(1) of the Bank Act.]
c) An Order that the defendant arrange for the transfer of care
and control over the applicant’s patrimony, the remaining portion of the
Consolidated Revenue Fund that represents the “interest, dividend or other
payment in respect of the (applicant’s) security”.
d) An Order that the defendant pay damages to the applicant in the
amount of $50,000,000.00.
e) An Order that the defendant pay the applicant $50,000,000.00 in
punitive damages.
f) An Order to cease and desist hindering the applicant in his
expression and operation of his individual rights and fundamental freedoms by
allowing the applicant to use Promissory Notes without interference of any
representative of the defendant’s Bank OR the defendant.
g) An order that the defendant safeguard the applicant’s rights, inter
alia, as expressed in Article 7 of the Charter, “Everyone has the right
to life, liberty and security of the person”. The applicant, a Human Being,
has the right to the security of his person and no one can deprive him of this
right.
[3]
The Defendant submitted its Notice of Motion on
August 31, 2015, for consideration without personal appearance pursuant to Rule
369 of the Federal Courts Rules, SOR/98-106 (the “ Rules”), relying on
Rule 221(1)(a) and 221(1)(c). The Prothonotary granted the motion on the basis
that the Statement of Claim does not disclose a reasonable cause of action and
is scandalous, frivolous and vexatious.
[4]
By Notice of Motion dated October 25, 2015, the
Plaintiff appealed against that Order, setting out the following grounds of
appeal:
…
8. The Federal Courts Act, inter alia,
Sections 3, 4, and 20(2), confirms that the Federal Courts have law and
equitable jurisdiction and the act of striking the applicants’ Claims
was an absolutely inequitable act and when law and equity conflict, equity is
to prevail.
9. Prothonotary “Morneau’s” Order is
inequitable because the applicant’s Statements of Claim does indeed
plead material facts and disclose several reasonable causes of
action. The applicant is not a lawyer and cannot be held to the same
standard of “form” as a lawyer and if the Claim is deficient in any manner of
form, leave to amend ought to be the route to take, not striking the Claim.
10. The Claim was “heard and struck”
without the applicant having any opportunity to argue the “Merits” (cause of
action), inter ilia, of his claim as Counsel for the Defendant SARAH
DRODGE, in her letter to the applicant, dated Sept. 15, 2015, wrote; “Moreover
there is no reason to permit the Plaintiff to be present evidence in response
to the Defendants motion”, “ To strike the claim” .
11. Thus rendering the applicant voiceless
and denying the applicant, “Access To The Courts” and in doing so by her
actions, is “Perverting the course of Justice”.
12. Maxim: “Equity will not suffer a
wrong to be without a remedy”.
13. The decision of Prothonotary Morneau is
aimed at the destruction of the applicants’ fundamental rights and freedoms, inter
alia, denying access to a Court of Law to obtain remedy pursuant to Article
24 of the Charter.
14. The actions of Prothonotary “Morneau”
brings the administration of justice into disrepute and creates
reasonable apprehension of bias on the part of Prothonotary “Morneau”.
15. The actions of Prothonotary “Morneau”,
are “Subverting the course of Justice”.
16. The foundation cause of action contained
in the applicant’s Claim can be summarized as follows:
a. There can be no
argument that the land and natural wealth and resources of this land mass
belongs, speaking only for himself, to the applicant. [the Royal Law
establishes this fact]
b. There can also
be no argument that the applicant does not possess and control those resources
and that the defendant does.
c. There can be no
argument that the defendant then, must be managing those resources for the
applicant, and that results in a Trust, with the defendant as Trustee and the
applicant as Beneficiary.
d. There can also
be no argument that the defendant is selling those resources (royalties) for
money and keeping the money.
e. That is a big,
big, problem because do we not have criminal activity here, such as unjust
enrichment or theft?
17. Whatever it may be called, this little
summary reveals the foundation of the applicant’s Claim and there can be
no argument that the applicant does indeed have a reasonable cause of action
against the defendant.
18. The defendant either wittingly or
unwittingly changed the style of the spelling of the applicant’s name from the
way it was presented in the Style of Cause of the applicant’s Claim
from upper and lower case letters (e.g. Stu Pearce) to ALL CAPS (e.g. STU
PEARCE).
19. This act changes the status of the
applicant from a human being to that of an artificial person and the venue of
the court from non-statutory to statutory.
20. The applicant has been patient and
extended sufficient time to allow the Court to do the just and equitable thing,
but the Court has failed to do so.
21. The applicant claims the Trust.
22. Therefore, the applicant, private person
(human being) with full capacity and beneficiary of the Trust, respectfully
demand s that this file be sealed and move in exclusive equity in the High
Court of Chancery (in Chambers) where the defendant, or Her appropriate
agent, such as the Public Guardian and Trustee, as Trustee, will provide a
complete accounting of the value of the instant private Trust and all other
Trusts created in the applicants’ names dating back to, inter alia, February
24, 1954 (the dated of registration of the birth of the applicant).
[5]
The Plaintiff supported his Notice of Motion by
a motion record dated October 26, 2015. On January 12, 2016, he filed a further
motion record including his affidavit sworn on January 8, 2016.
[6]
The Defendant filed a responding motion record
on November 5, 2015 and a further responding motion record on January 18, 2016.
The matter was heard in St. John’s, Newfoundland and Labrador on January 20,
2016.
[7]
The Defendant argues that the Plaintiff has
failed to show any error of law on the part of the Prothonotary or any error
upon which this appeal could be allowed. The Defendant also raises an argument
about the timeliness of the appeal.
[8]
The Defendant argues that the appeal was not
filed within the time limited under the Rules, that is 10 days from the date of
the order appealed against. The Prothonotary’s Order is dated October 14, 2015
and the Plaintiff’s Notice of Motion was filed on October 26, 2015. The
Defendant raises this argument about timeliness in both her original response
to the Plaintiff’s motion and in oral submissions.
[9]
In my opinion, this argument cannot succeed. The
motion was before the Prothonotary without personal appearance, that is
pursuant to Rule 369 of the Rules. His Order was made on October 14, 2015 and
according to the entries in the “A” file, the Order was sent out by registered
mail on the same day. There is nothing on the file, such as a signed receipt,
to indicate when it was received by the Plaintiff.
[10]
Surely, the time did not begin to run against
the Plaintiff for the filing of his appeal until he had received the Order.
This point was addressed by the Newfoundland Court of Appeal in City of St.
John’s v. F.W. Woolworth Co. Limited (1980), 130 D.L.R. (3d) 171.
[11]
There is nothing on the record to show that the
Plaintiff was out of time in filing his notice of appeal.
[12]
At the beginning of the hearing, the Plaintiff
asked that he be sworn in. This request was refused since the hearing was an
appeal from an order of a prothonotary and the Plaintiff, who was self-represented,
had no right to present evidence pursuant to Rule 221(2) of the Rules.
[13]
In the course of the hearing, the Plaintiff
sought leave to file a “bill of equity”. This request was also refused, on the
grounds that no evidence was admissible upon the hearing of an appeal.
[14]
The Plaintiff also sought an order sealing the
file. That request was refused because there was no basis to seal the file and
the request is contrary to the fundamental principle in Canadian law about open
courts and public hearings.
[15]
The Plaintiff further indicated that he had
planned to bring a motion excluding Counsel for the Defendant from the hearing.
No such motion was presented. In any event, the Defendant was entitled to be
represented by Counsel of her choice and there was no apparent ground for
granting such a request.
[16]
Pursuant to Rule 119, the Plaintiff was allowed
to represent himself. He sought standing as the representative for Mr. James H.
Ford, the Plaintiff in cause T-1275-15. This request was also refused, since
the Rules do not provide that one self-represented party may act on behalf of
another self-represented party. However, Mr. Ford was invited to speak and
asked if he was satisfied that the representations made by the Plaintiff would
also apply to his appeal, since the two appeals are virtually mirror images of
each other. Mr. Ford was also given the opportunity to speak on his own behalf.
[17]
In both his written and oral submissions, the
Plaintiff argued that he was invoking the equitable jurisdiction of this Court
to recognize his claim against Her Majesty, on the basis of a trust created
between him and Her Majesty relative to his ownership of the natural resources of
the earth which are managed by the Defendant. The Plaintiff characterized this
as a taking of his property, in trust, for which Her Majesty must account.
[18]
In his submissions on the equitable jurisdiction
of this Court, the Plaintiff referred repeatedly to the Judicature Act of
Newfoundland, R.S.N.L. 1990, c. J-4, in particular those provisions dealing
with the Supreme Court of Newfoundland and Labrador’s jurisdiction to grant equitable
relief.
[19]
In response, the Defendant submitted that the Plaintiff
had failed to identify any error in the Order of the Prothonotary which would
justify the intervention of this Court.
[20]
The Prothonotary described the Plaintiff as an “Organized Pseudolegal Commerical Argument” litigant
(“OPCA”). In the course of his submission, the Plaintiff said that he did not
know what this term means.
[21]
The Plaintiff acknowledged that he had received
the Motion Record of the Defendant. The Record includes a Memorandum of Fact
and Law in which reference is made to the “OPCA” litigants, as discussed at length
in the decision in Meads v. Meads, [2013] 3 W.W.R. 419.
[22]
According to the decision in Meads, supra
at paragraph 4, an OPCA litigant is one who expresses:
a general rejection of court and state
authority … . Arguments and claims of this nature emerge in all kinds of legal
proceedings and all levels of Courts and tribunals. This group is unified by:
1. a characteristic set of strategies
(somewhat different by group) that they employ,
2. specific but irrelevant formalities and
language which they appear to believe are (or portray as) significant, and
3. the commercial sources from which their
ideas and materials originate.
This category of litigant shares one other
critical characteristic: they will only honour state, regulatory, contract,
family, fiduciary, equitable, and criminal obligations if they feel like it.
And typically, they don’t.
[23]
A discretionary order of a prothonotary ought
not be disturbed on appeal unless the issue raised in the motion is vital to
the final issue of the case, or the order is clearly wrong in the sense that
the exercise of discretion was based upon a wrong principle or a
misapprehension of the facts; see the decision in Merck & co. v. Apotex
Inc. (2003), 315 N.R. 175.
[24]
In this case, the effect of the Order is to
dismiss the Plaintiff’s action. Accordingly, it is a final Order and subject to
a de novo review; see the decisions in R. v. Aqua-Gem Investments
Ltd., [1993] 2 F.C.R. 425 and Sauvé v. Canada, 2011 FC 1074.
[25]
In the within proceeding, the Prothonotary dealt
with a motion pursuant to Rules 221(1)(a) and 221(1)(c) of the Rules. Since I
am considering the appeal on a de novo basis, I must consider the
initial basis for the Defendant’s motion to strike the Statement of Claim.
[26]
Rules 221(1)(a) and (c) of the Rules provide as
follows:
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221. (1) On motion, the Court may, at any time, order that a
pleading, or anything contained therein, be struck out, with or without leave
to amend, on the ground that it
(a) discloses no reasonable cause of action or defence, as the
case may be,
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221. (1) À tout
moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie
d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon
le cas :
a) qu’il ne
révèle aucune cause d’action ou de défense valable;
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(c) is scandalous,
frivolous or vexatious,
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c) qu’il est
scandaleux, frivole ou vexatoire;
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[27]
Upon a motion to strike out a pleading pursuant
to Rule 221(1)(a), the applicable test is whether it is “plain and obvious”
that the claim discloses no reasonable cause of action; see Hunt v. Carey
Canada Inc., [1990] 2 S.C.R. 959.
[28]
The allegations which are capable of being
proved must be accepted as true. According to the decision in Bérubé v.
Canada (2009), 348 F.T.R. 246 at paragraph 24, in order to disclose a
reasonable cause of action, a claim must show the following three elements:
i. allege
facts that are capable of giving rise to a cause of action;
ii. disclose
the nature of the action which is to be founded on those facts; and
iii. indicate
the relief sought, which must be of a type that the action could produce and
that the Court has jurisdiction to grant.
[29]
The Plaintiff broadly complains in his Statement
of Claim that the Defendant has breached his fundamental rights. He alleges the
Defendant has breached his right to security of the person, his right to an
adequate living, his freedom of expression and his liberty, specifically his
right to gain his living by work. In this regard, the Plaintiff relies upon
section 7 of the Canadian Charter of Rights and Freedoms, Part 1,
Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11 (the “Charter”), International Covenant on
Economic, Social and Cultural Rights, (1976) 993 U.N.T.S. 13., and the International
Covenant on Civil and Political Rights, (19 December 1966), 999 U.N.T.S.
171.
[30]
The Plaintiff also alleges that the Defendant is
a trustee and constructive registered holder pursuant to the Bank Act,
S.C. 1991, c. 46. He argues that the Defendant is improperly holding his
security.
[31]
In striking out the Statement of Claim without
leave to amend, the Prothonotary properly followed the applicable principles
and jurisprudence. Since this appeal is a review de novo, where I
can decide the issues myself, I will follow and apply the same principles and
the case law, in particular the decision of the Alberta Court of Queen’s Bench
in Meads, supra.
[32]
The Charter challenges made by the Plaintiff do
not, by themselves, disclose a reasonable cause of action. The Plaintiff has
not set out a sufficient factual foundation or context to adjudicate the claims
which he makes.
[33]
The Plaintiff appears to be making a generalized
challenge to the application, to him, of unnamed statutes. In these
circumstances, his claim appears to fall within the circumstances described in
Meads, supra at paragraph 379 as “common OPCA litigation”.
[34]
The Plaintiff’s arguments about the Judicature
Act are not relevant. That Act governs proceedings in the Supreme Court of
Newfoundland, it has no application to proceedings in the Federal Court. As noted
by Counsel for the Defendant, the Plaintiff chose to bring his action in this Court.
He could equally have brought his action in the Supreme Court of Newfoundland
and Labrador where reliance on the Judicature Act alone would be no guarantee
that his action could proceed.
[35]
As noted by the Plaintiff, this Court enjoys an
equitable jurisdiction, pursuant to section 3 of the Federal Courts Act,
R.S.C., 1985, c. F-7 which provides as follows:
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3. The division
of the Federal Court of Canada called the Federal Court — Appeal Division is
continued under the name “Federal Court of Appeal” in English and “Cour d’appel fédérale” in French. It is continued as an additional court of law, equity
and admiralty in and for Canada, for the better administration of the laws of
Canada and as a superior court of record having civil and criminal
jurisdiction.
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3 La Section
d’appel, aussi appelée la Cour d’appel ou la Cour d’appel fédérale, est
maintenue et dénommée « Cour d’appel fédérale » en français et « Federal Court of Appeal » en anglais. Elle est maintenue à titre de tribunal additionnel
de droit, d’equity et d’amirauté du Canada, propre à améliorer l’application
du droit canadien, et continue d’être une cour supérieure d’archives ayant
compétence en matière civile et pénale.
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[36]
However, that jurisdiction is not exercised in a
vacuum. The decision in Garford Pty Ltd. v. Dywidag Systems International,
Canada, Ltd (2010), 375 F.T. R. 57 (F.C.) at paragraph 8 provides as
follows:
This Court does
have some equitable jurisdiction by virtue of section 3 of the Federal
Courts Act, R.S.C. 1985, c. F-7. This statutory grant allows the Court to
apply the rules of equity in cases in which it otherwise has jurisdiction (as
for example, in admiralty matters), but it does not give the Court a general
jurisdiction in a civil action to consider equitable claims and remedies where
the action is based on a statutory cause of action. See Bedard v. Kellogg
Canada Inc., [2007] F.C. J. No. 714; 325 F.T.R. 79; 2007 FC 516.
[37]
A mere claim for the exercise of equity is not
sufficient to establish a cause of action. The Plaintiff has failed to disclose
a reasonable cause of action in his Statement of Claim and the Statement of Claim
was properly struck by the Prothonotary. The Plaintiff has failed to show any
error of law on the part of the prothonotary and accordingly, this appeal is
dismissed.
[38]
The Defendant also sought to have the Statement
of Claim stuck on the basis of Rule 222(1)(c), that the Statement of Claim is
scandalous, frivolous and vexatious.
[39]
In considering a motion to strike on these
grounds, the Court is required to consider the merits of the claim; see the
decision in Blackshear v. Canada, 2010 FC 590 at paragraph 12.
[40]
A vexatious pleading is one that is so deficient
in factual material that the defendant cannot know how to answer; see the
decision in Kisikawpimootewin v. Canada, 2004 FC 1426.
[41]
In Fiander v. Mills (2015) 1149 A.P.R.
80, Chief Justice Green of the Newfoundland and Labrador Court of Appeal said
at paragraph 40 the following about litigants involved in OPCA litigation:
In this case, this
Court has now declared that arguments relating to opting out of legislation,
the fractionating of human personality to support claims of not being subject
to law and the fanciful use of arguments based on birth certificates to create
notions of estates to advance submissions that would otherwise have no rational
support in the jurisprudence, have no basis in the law of this jurisdiction. It
would therefore be open to a trial court in the future, when made aware of such
submissions in other proceedings, to treat those submissions as presumptively
vexatious and abusive and to act preemptively to prevent such claims from
improperly clogging up the legal system to the cost and prejudice of those who
would otherwise have to face and deal with them.
[42]
I note that the Plaintiff sought to represent a
person in Fiander, supra. That request was refused. Nonetheless,
the fact that the Plaintiff is mentioned by name in that case suggests that he
has some personal knowledge about OPCA litigation and OPCA litigants.
[43]
In any event, the decision in Fiander, supra
supports the conclusion that the Plaintiff’s Statement of Claim in the present
proceeding is vexatious and scandalous, and should be struck without leave to
amend.
[44]
The Defendant seeks elevated costs on this
motion. In the exercise of my discretion, I award costs in favour of the
Defendant in the amount of $750.00, inclusive of fees, disbursements and GST.
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