Date: 20120515
Docket: A‑31‑12
Citation:
2012 FCA 146
CORAM: LÉTOURNEAU J.A.
GAUTHIER J.A.
TRUDEL J.A.
BETWEEN:
RICHARD TIMM
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montréal, Quebec, on May 15, 2012)
TRUDEL J.A.
[1]
This is an appeal of a Federal Court decision
(2012 FC 83) by which Mr. Justice Scott dismissed the appeal of the
appellant, Richard Timm, from an order by Prothonotary Richard Morneau.
[2]
The Prothonotary had allowed the motion of the
respondent (then the defendant) to strike and dismiss Mr. Timm’s action
without giving Mr. Timm the opportunity to amend his originating pleading.
This order thus put an end to the $2‑million action in damages instituted
by Mr. Timm against Her Majesty the Queen, in which he contended that
two lawyers representing the Attorney General of Canada and three
Correctional Service of Canada employees had committed perjury and deliberately
attempted to obstruct justice in a previous action commenced between the same
parties (file T‑1110‑10 settled out of Court a few days before
the hearing date).
[3]
The perjury referred to by Mr. Timm
consists of the arguments made by counsel for the respondent on a motion to
quash subpoenas, filed in T‑1110‑10, and of the sworn statements of
the witnesses called by Mr. Timm, in which they stated that they were not
tendered their attendance fees in accordance with section 42 of the Federal
Courts Rules, SOR/98‑106.
[4]
Section 42 reads as follows:
Personal service of
subpoena
42. No witness is required to
attend under a subpoena unless the subpoena has been personally served on the
witness in accordance with paragraph 128(1)(a) and witness fees
and travel expenses have been paid or tendered to the witness in the amount
set out in Tariff A.
[Emphasis added.]
|
Signification à
personne
42. Un témoin ne peut être
contraint à comparaître aux termes d’un subpoena
que si celui-ci lui a été signifié à personne conformément à l’alinéa 128(1)a)
et qu’une somme égale à l’indemnité de témoin et aux frais de déplacement
prévus au tarif A lui a été payée ou offerte.
[Je souligne.]
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[5]
On appeal before this Court, Mr. Timm has
raised a number of arguments, including three of greater importance. First,
Mr. Timm argues that he tendered the witness fees to the persons required
to appear using the preprinted subpoena form. According to Mr. Timm, this
form, which sets out the attendance money that each person who testifies is
entitled to receive, constitutes the tender referenced by Rule 42
(Appellant’s examination, November 22, 2011, Appeal Book, Volume 1,
Tab D, at page 73, lines 12ff). Thus, the prosecuted lawyers and
witnesses who state that he failed to tender the prescribed attendance money
are committing a fault that incurs their liability.
[6]
The appeal cannot succeed on this point.
Form 41, which prescribes the contents of a subpoena, clearly states that
the attendance money for the number of days indicated “is served with this
subpoena, calculated in accordance with Tariff A of the Federal Courts Rules”.
[7]
The evidence clearly shows that the appellant
did not give the prescribed amounts to the persons summoned in order to ensure
their attendance at the hearing. What is more, the prosecuted counsel did not
sign any affidavits or make any sworn statements. No allegations of perjury can
be made against them.
[8]
Second, Mr. Timm contends that the Prothonotary
lacked jurisdiction to rule on the facts of his case because the amount at
stake exceeds that of a simplified action, that is, $50,000.
[9]
This argument must also fail. The Federal Court
judge was right to conclude as he did, relying on First Canadians’
Constitution Draft Committee the United Korean Government (Canada) v. Canada,
2004 FCA 93, 238 DLR (4th) 306, in which this Court stated “that a prothonotary
has jurisdiction under Rule 50(1) to decide a motion to strike an action
made under Rule 221 whatever the amount claimed in the action”.
[10]
Third, Mr. Timm argues that the judge and
the Prothonotary erred in declaring that his action was purely vexatious. This
conclusion is at best a question of mixed fact and law, which is not reviewable
unless a palpable and overriding error has been made. To the contrary, the very
nature of the proceedings could support this conclusion.
[11]
Regarding the other arguments raised by
Mr. Timm, we agree with the Federal Court judge and the Prothonotary that
they are without merit and that the action in support of which they are raised
has no chance of succeeding.
[12]
Consequently, the appeal will be dismissed with
costs.
“Johanne Trudel”
Certified true
translation
Sarah Burns
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A‑31‑12
STYLE OF CAUSE: Richard
Timm v.
Her Majesty the Queen
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 15,
2012
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU
J.A.
GAUTHIER J.A.
TRUDEL
J.A.
DELIVERED FROM THE BENCH BY: TRUDEL
J.A.
APPEARANCES:
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Richard Timm
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SELF‑REPRESENTED
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Jacques Savary
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
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