Date: 20031028
Docket: A-642-02
Citation: 2003 FCA 401
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
RICHARD LAMONTAGNE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Hearing held at Montréal, Quebec, October 23, 2003.
Judgment delivered at Ottawa, Ontario, October 28, 2003.
REASONS FOR JUDGMENT: NADON J.A.
CONCURRING: LÉTOURNEAU J.A.
PELLETIER J.A.
Date: 20031028
Docket: A-642-02
Citation: 2003 FCA 401
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
RICHARD LAMONTAGNE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] The appellant attacks a decision by Mr. Justice Pinard of the Federal Court, dated November 7, 2002, which dismissed his motion to reconsider filed under rule 397 of the Federal Court Rules, 1998, SOR/98-106.
[2] The relevant facts are quite simple. The appellant sued the respondent in damages for various reasons which, as the respondent notes in her memorandum, are not easily comprehensible. The appellant's statement of claim, filed October 12, 2000, was amended several times to increase the amount claimed.
[3] On January 9, 2002, the respondent filed a notice of motion for summary judgment dismissing the appellant's action. She argued that since the appellant's statement of claim contained only vague allegations that failed to indicate any valid cause of action, it should be dismissed.
[4] On October 15, 2002, Pinard J. allowed the respondent's motion and dismissed the appellant's action with costs. At paragraphs 7, 8 and 9 of his reasons, Pinard J. stated:
[7] Having reviewed the plaintiff's amended statement of claim (bearing in mind the increased amount claimed of $50,000,000), the transcript of his examination for discovery and the parties' submissions, I find that there is no reasonable cause of action, and therefore the action has no chance of succeeding. The plaintiff's pleadings are full of allegations that are confused, vague, incoherent and imprecise, often consisting of nothing more than a mere opinion devoid of material and relevant allegations that could be the basis of a cause of action. At his examination for discovery, the plaintiff took issue with the government for refusing to apply the "Travel Expenses Act". There is no such statute.
[8] Lastly, the plaintiff does not provide any details about the damages of $50,000,000 that he is seeking; he merely indicated at his discovery that he can no longer live within the law. The plaintiff's allegations do not set out any specific facts that could link any fault whatsoever by the defendant or her agents to the considerable and imprecise damages that are claimed.
[9] For these reasons, the motion for summary judgment is granted and the plaintiff's action is dismissed with costs.
[5] Dissatisfied with this decision, the appellant filed a notice of motion under rule 397 asking Pinard J. to reconsider his order.
[6] On November 7, 2002, Pinard J. dismissed the appellant's request for reconsideration, saying that in his opinion the conditions for applying rule 397 were not fulfilled. The rule, which reads as follows:
| 397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion in request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
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397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
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| (2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
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(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour.
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provides that a reconsideration can take place only when an order does not accord with the reasons given by the judge in support of his order or when a matter that the judge should have dealt with has been overlooked.
[7] In my opinion, this appeal must be dismissed since, as Pinard J. concluded, there is no possible doubt that the conditions for opening for reconsideration are not fulfilled in this instance. One need only read the appellant's notice of motion for the order of reconsideration to be persuaded of this.
[8] A careful reading of the notice of appeal filed by the appellant, and his memorandum, clearly discloses that the appeal before us is in fact a disguised appeal of the decision of Mr. Justice Pinard of October 15, 2002, dismissing his action. In his memorandum, filed May 16, 2003, the appellant, after a brief discussion of the judgment of October 15, 2002, states unequivocally that he is "[translation] appealing this partial judgment and requesting reparation". Needless to say, a motion under rule 397 and a resulting appeal are not the appropriate vehicle for such a challenge. If the appellant wished to challenge the decision delivered by Pinard J. on October 15, 2002, he should have filed a notice of appeal, which he failed to do.
[9] Since I am of the opinion that Pinard J. did not err when he dismissed the appellant's motion for reconsideration, I would dismiss the appeal with costs.
"M. Nadon"
J.A.
"I concur.
Gilles Létourneau J.A."
"I concur.
J.D. Denis Pelletier J.A."
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-642-02
STYLE: RICHARD LAMONTAGNE v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 23, 2003
REASONS FOR JUDGMENT: Nadon J.
CONCURRING: Létourneau J.A.
Pelletier J.A.
DATE OF REASONS: October 28, 2003
APPEARANCES:
Richard Lamontagne FOR THE APPELLANT
Raymond Piché FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa ON
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