Docket: A-237-16
Citation:
2017 FCA 74
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CORAM:
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SCOTT J.A.
DE MONTIGNY J.A.
WOODS J.A.
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BETWEEN:
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JOHN LAUER
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Appellant
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and
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THE ATTORNEY
GENERAL OF CANADA (RCMP)
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Respondent
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REASONS
FOR JUDGMENT
SCOTT J.A.
I.
The Appeal
[1]
In an Order dated May 25, 2016, Annis J. of the
Federal Court (the Judge) dismissed an appeal filed by Mr. John Lauer (the
appellant) against an Order rendered by Prothonotary R. Morneau (the
Prothonotary) dated April 18, 2016, that had struck out the appellant’s entire
amended statement of claim filed on February 29, 2016.
II.
Procedural History
[2]
The appellant was acquitted on appeal in 2011
following a Royal Canadian Mounted Police (RCMP) criminal fraud investigation
against him. The appellant subsequently filed two public complaints. His first complaint
was filed in 2011 internally with the RCMP regarding the wrongful conduct of
certain of its employees during the fraud investigation. In the first
complaint, the RCMP later concluded that the appellant’s complaint was
unfounded.
[3]
The appellant filed a second complaint in 2013 seeking
the review of this decision before the RCMP’s Commission for Public Complaints.
Following its review, the Commission for Public Complaints issued a report overturning
the first decision and found that his complaint regarding the conduct of
certain RCMP employees during the fraud investigation was supported.
[4]
In 2013, the appellant filed a civil action in
the Prince Edward Island Supreme Court against the Attorney General of Canada
and two RCMP employees claiming that he had been the victim of a negligent
investigation, malicious prosecution and breach of trust as a result of the
RCMP’s fraud investigation against him. On April 24, 2015, this claim was
dismissed on the basis that these allegations were unsupported.
[5]
He also filed an initial statement of claim
before the Federal Court in 2013 seeking identical relief, which was
subsequently dismissed the same year by the Prothonotary, since his claim was res
judicata in view of the decision rendered by the Prince Edward Island
Supreme Court.
[6]
In 2015, the appellant filed a new statement of
claim before the Federal Court seeking 14.5 million dollars in damages,
alleging that the RCMP’s conduct during the fraud investigation and the
handling of his two public complaints amounted to negligence, conspiracy,
unlawful conduct, misfeasance in public office, nonfeasance in public office
and breach of trust. It is this statement of claim, which was subsequently
amended, that now lies at the core of this appeal.
[7]
That amended statement of claim had been filed
further to an Order rendered by Mactavish J. of the Federal Court on February
1, 2016, which confirmed on appeal an earlier Order rendered by the Prothonotary
on October 29, 2015, striking out in the appellant’s original statement of
claim allegations against the RCMP, including individual employees, with
respect to their conduct during the fraud investigation.
[8]
Mactavish J. concluded that the appellant was
barred from filing another action related to the conduct of the RCMP during the
fraud investigation, in light of the Prothonotary’s prior direction in this
regard. Mactavish J. concluded that the Prothonotary did not err by striking out
his statement of claim, since his repeated claims and unsupported allegations regarding
the RCMP’s conduct in the fraud investigations were scandalous, frivolous or
vexatious and otherwise amounted to an abuse of process. The appellant was,
however, granted leave by Mactavish J. to file an amended statement of claim
but only with respect to his claims against the RCMP relating to its conduct in
the two public complaints brought against the RCMP by the appellant.
[9]
The appellant filed an amended statement of
claim on February 29, 2016. It was struck out by the Prothonotary on April 16,
2016, for reasons similar to his previous Order, namely on the basis that his
claim did not disclose a reasonable cause of action, was vexatious and amounted
to an abuse of process.
III.
The Decision Under Appeal
[10]
The appellant appeal from the Prothonotary’s
April 16, 2016 Order was dismissed by the Judge. In coming to his decision, the
Judge considered Rule 174 of the Federal Courts Rules S.O.R./98-106 (the
Rules) and relied on the decision of this Court in St. John’s Port Authority
v. Adventure Tours Inc., 2011 FCA 198, 420 N.R. 149 at paragraph 29. He
noted that a plaintiff must plead sufficient particulars and material facts to
support every cause of action pleaded, in this case, misfeasance in public
office, breach of trust and conspiracy. The Judge came to the conclusion that
the appellant’s amended statement of claim did not provide any material facts
to support his claims of misfeasance in public office, breach of trust and
conspiracy, and that it was plain and obvious that it should be struck pursuant
to Rule 221(1)(a) of the Rules because it disclosed no reasonable cause
of action.
[11]
The Judge also found that the appellant’s
amended statement of claim contained allegations regarding the RCMP’s conduct
in the fraud investigation, despite Mactavish J.’s Order, which had found that
these allegations had been properly struck by the Prothonotary’s Order dated
October 7, 2015. He concluded that the appellant was attempting to re-litigate
the matter of the RCMP’s conduct in the fraud investigation and considered this
to be an abuse of process pursuant to Rule 221(1)(f) of the Rules.
IV.
The Standard of Review
[12]
In sitting on an appeal from an order, which
dismissed an appeal from a Prothonotary’s discretionary order striking an
amended claim under Rule 221(1)(a), (c) and (f) of the
Rules, the standard of review established in Housen v. Nikolaisen, 2002
SCC 33, [2002] 2 S.C.R. 235, applies: Hospira Healthcare Corporation v.
Kennedy Institute of Rheumatology, 2016 FCA 215, [2016] F.C.J. No. 943
(QL). The Judge’s decision will stand unless the appellant identifies an
extricable error of law or an overriding and palpable error committed by the
Judge.
V.
The Appellant’s Representations
[13]
At the hearing, the appellant proceeded firstly
to recall the events that have led him to file this appeal, including the allegations
associated with the RCMP’s fraud investigation which had been struck out by Mactavish
J. as an abuse of process.
[14]
He then sought permission to introduce, under
Rule 351 of the Rules and in support of his appeal, the following materials
that had been filed in Federal Court file T-1297-15: i) a briefing note
detailing the risks faced by the RCMP given his 2011 Public Complaint (the Baillie
briefing note); ii) an email confirming that someone had interfered in his 2011
Public Complaint investigation (the Baillie Email) and thus committed Code of Conduct
violations; and iii) a letter sent by Sergeant K.G. MacKay (the Letter of
Disposition). The appellant’s motion was denied at the hearing as it failed to
meet the test set out by this Court in Shire Canada Inc. v. Apotex Inc.,
2011 FCA 10, 414 N.R. 270; and Palmer v. The Queen, [1980] 1 S.C.R. 759,
1979 CanLII 8 (SCC) for the introduction of new evidence and because Rule
221(2) of the Rules specifies that no evidence shall be heard on a motion for
an order under paragraph 221(1)(a).
[15]
Notwithstanding the fact that the appellant’s
Memorandum of Fact and Law had not identified a precise error committed by the
Judge, at the hearing he argued that the Judge erred by considering the matter
as a claim based on the RCMP’s conduct in the fraud investigation, rather than
a claim aimed at the RCMP’s handling of his complaints.
[16]
The appellant also asserted that his pleadings
on the causes of action and the factual bases presented were sufficient on
their own to allow his action to proceed. He also claimed that the Judge should
have reviewed the entire file and taken notice amongst others of the documents
that he tried to introduce before this Court (the Baillie Email, the Letter of
Disposition and the Baillie briefing note) as they established a reasonable prospect
of success at trial.
[17]
The appellant then turned the Court’s attention
to the case law citing Barkley v. Canada, 2014 FC 39, [2014] F.C.J. No.
43 (QL) at paragraph 15, which reaffirms Brazeau v. Canada (Attorney
General), 2012 FC 648, [2012] F.C.J. No. 1489 (QL), affirming the principle
that pleadings must be read generously and that if there is a reasonable
prospect of success, the matter should be allowed to proceed to trial. He also
referred the Court to Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, [1990]
S.C.J. No. 93 (QL) at paragraph 33 [Hunt] where it is stated that it is only
where it is plain and obvious that a statement of claim discloses no reasonable
cause of action that it should be struck. Finally, he relied on Sivak v.
Canada, 2012 FC 272, 406 F.T.R. 115 at paragraph 53 [Sivak] in support
of his claim that he suffered irreparable harm to his reputation, loss of
prestige and severe mental distress as a result of the Respondent’s improper
plan to issue false conclusions in its disposition of his public complaints.
VI.
The Respondent’s Submissions
[18]
In response, counsel for the respondent
underlined that when dealing with a motion pursuant to Rule 221(1)(a) of
the Rules, a judge is confined to the pleadings as written. Consequently, the
Judge could not consider the materials in the Federal Court files the appellant
relied upon. The facts, as pleaded, are to be presumed as true and the Judge is
tasked with evaluating whether the facts as stated reveal a cause of action.
[19]
The respondent also argued that the appellant had
not provided a basis for a cause of action resulting from the complaints
process because he had previously sought and obtained a remedy with respect to
the RCMP’s response to his initial complaint. Since the final report issued by
the Commission for Public Complaints was favourable to the appellant as it
overturned the RCMP’s initial response to the appellant’s complaint, there is
consequently no basis to support a cause of action. In its view, the claim was
properly struck.
VII.
Analysis
[20]
I am of the view that this appeal should be
dismissed for the following reasons.
[21]
I have reviewed the amended statement of claim
filed by the appellant on February 29, 2016. The first 16 paragraphs recall the
factual matrix related to the fraud investigation. I must point out that I
cannot find any error with respect to the Judge’s conclusion that the appellant’s
allegations with respect to the fraud investigation constituted an abuse of
process. At the hearing, the appellant claimed that these paragraphs were
inserted in his amended statement as factual background information. Since
Mactavish J. confirmed the Prothonotary’s October 7, 2015, decision to strike
the paragraphs of the initial statement of claim related to the conduct of the
RCMP in the fraud investigation, I am of the view that it was open to the Judge
to find that they constituted an abuse of process under Rule 221(1)(f)
of the Rules as they could be read as an attempt to re-litigate matters that
had been settled by judgments in previous proceedings.
[22]
I acknowledge, as pleaded by the appellant, the
principle that a motion to strike should only be granted where it is plain and
obvious that the action cannot succeed, assuming the facts advanced in the
statement of claim to be true (see Hunt). It is also well settled that
in considering a motion to strike, the statement of claim should be read as
generously as possible as stated in Operation Dismantle Inc. v. Canada,
[1985] 1 S.C.R. 441, [1985] S.C.J. No. 22 (QL) at paragraph 14. One should
accommodate any inadequacies in the statement of claim that are the result of
deficiencies in the drafting of the document.
[23]
As I turn to paragraph 19 of the appellant’s
amended statement of claim, I note that it recites the elements of a claim for
misfeasance in public office and alleges the existence of a conspiracy, but
fails to provide specific material facts in support thereof. There is no
identification of the public officers who acted improperly, nor are there
specific facts alleged to establish how they would have acted maliciously.
[24]
As stated in Sivak at paragraph 54,
citing Normart Management Ltd. v. West Hill Redevelopment Co., (1998),
37 OR (3d) 97 (CA), and relied upon by the appellant, where the tort of
conspiracy is alleged, the following elements are necessary. All the parties to
the conspiracy must be identified and their relationship to each other must be
described. Overt acts of each of the alleged conspirators in pursuit of the
conspiracy must be pled with clarity including the times and dates of such
acts. The pleadings must also identify the injury and the damage suffered by
the plaintiff and the monetary loss sustained as a consequence thereof.
[25]
In this case, none of these elements are to be
found.
[26]
With respect to the breach of trust claim, it
should at a minimum describe the relationship between the parties and identify
the conduct and the specific facts that can support a breach of the duty owed
to the plaintiff. Here again, the amended statement of claim is deficient.
[27]
In view of the appellant’s failure to bring
forward sufficient material facts for every cause of action asserted, there is
no reviewable error in the Judge’s order. The Judge applied the correct
principles when considering the appellant’s amended statement of claim. He
guided himself correctly by noting that the amended statement of claim needed
to contain sufficient facts to support every cause of action alleged as per
Rule 174 of the Rules.
[28]
I must also reject the appellant’s argument that
the Judge should have considered documents in the file and taken notice,
amongst others, of the documents that he tried to introduce before this Court (the
Baillie Email, the Letter of Disposition and the Baillie briefing note), as
they established his prospect of success at trial to be reasonable. As stated
above, it is well established in jurisprudence that on a motion to strike, no
evidence may be considered to decide whether a claim reveals a reasonable cause
of action. The Judge was confined to assuming that the facts as pleaded are
true and to determine whether they disclosed a cause of action (Hunt).
[29]
Finally, the Judge did not err in denying the
Appellant leave to amend his claim yet again. First, the Appellant failed to
provide material facts to support his bald assertion that his public complaint
was improperly handled at the initial stage. Moreover, it is not clear what cause
of action could lie from the initial decision; the Appellant has already
obtained a remedy, as the Commission for Public Complaints struck the initial
RCMP decision and issued one that was favourable to him.
[30]
Consequently, I conclude that this appeal should
be dismissed with costs and leave to further amend the amended statement of
claim be denied.
"A.F. Scott"
“I agree.
Yves de Montigny J.A.”
“I agree.
J. Woods J.A.”
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