A-361-97
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
ROBERTSON J.A.
BETWEEN:
WILLIAM
SCOTT SIM
Appellant
AND:
HER
MAJESTY THE QUEEN
Respondent
REASONS
FOR JUDGMENT
DÉCARY J.A.
On
January 16, 1997, the appellant filed an Amended Statement of Claim against the
respondent for "MANAGERIAL NEGLIGENCE in Administrative Neglect of
duty, years 1988-1992 and 1992-1994" (Tab 1). On February 14, 1997, the
respondent filed a Motion to strike out the Statement of Claim pursuant to Rule
419 of the Federal Court Rules ("the Rules"). The grounds of the
motion were the following:
THE GROUNDS OF THE
MOTION ARE that:
(a)the Statement of Claim is:
(i)frivolous and vexatious;
(ii)likely to prejudice,
embarrass or delay the fair trial of the action;
(iii)otherwise an abuse
of the process of the Court;
(iv)does not comply with
the Federal Court Rules governing pleadings;
(v)does not sufficiently
reveal the facts on which the Plaintiff has based his cause of action to make
it possible for the Defendant to know the case which has to be met or to answer
the claim, and for the Court to regulate the proceedings in the action;
(vi)is fundamentally
defective, inadequate and unintelligible.
(b)the Defendant is unable to
effectively plead to the Plaintiff's Statement of Claim in its present form;
(c)the Defendant has reasonable
grounds for challenging the propriety of the Plaintiff's Statement of Claim;
(d)a similar action was struck out
in Federal Court No. T-664-95;
(e)Federal Court Rules
C.R.C. 1978, c. 663, in particular Rules 407 to 410, 412, 415, 419(1), (a),
(b), (c), (d),(f), 420.
[Tab
13]
On
March 18, 1997, the Motions Judge struck out the appellant's Statement of Claim
"as it discloses no reasonable cause of action, it is vexatious and
constitutes an abuse of process of the court for the same reasons given by
Prothonotary Hargrave in his decision dated 31 May 1995" (Tab 18).
On
March 27, 1997, the appellant filed a Notice of motion for reconsideration of
judgment pursuant to Rule 337(5).
On
May 8, 1997, the Motions Judge dismissed the reconsideration motion in the
following terms:
Considering that the Applicant has
not raised any valid ground for reconsideration of my judgment dated March 18,
1997, the motion is dismissed.
[Tab
5]
On
May 9, 1997, the appellant filed an appeal with respect to the reconsideration
decision. No appeal was ever filed with respect to the original decision to
strike out the Statement of Claim made on March 18, 1997.
The
within appeal, therefore, relates solely to the reconsideration decision dated
May 8, 1997. The jurisprudence of the Court is to the effect that unless the
initial decision has also been appealed, that decision cannot be challenged
collaterally through an appeal of the reconsideration decision. The only decision which
is before us is therefore the reconsideration decision, and the appellant has
failed to demonstrate that the Motions Judge erred in a reviewable way in
exercising her discretion under Rule 337(5).
The
appellant at the hearing sought leave to amend his Notice of Appeal in order to
direct his attack also on the initial decision dated March 18, 1997. We deny
his motion, the effect of which would have been to substantially alter the
issues raised in the appeal and to do so in a most untimely manner.
The
appeal should be dismissed.
"Robert Décary"
J.A.
"I agree
Gilles Létourneau J.A."
"I agree:
J.T. Robertson J.A."
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