Docket: T-1066-16
Citation:
2016 FC 976
Ottawa, Ontario, August 29, 2016
PRESENT: Prothonotary Mandy Aylen
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BETWEEN:
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ZOLTAN ANDREW
SIMON AND
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ZUANHAO ZHONG
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(REPRESENTED BY
HER HUSBAND ZOLTAN A. SIMON)
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA REPRESENTED BY THE ATTORNEY GENERAL OF CANADA
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AND THE
MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
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(NONE OF THEM
IS ACTING IN A PERSONAL CAPACITY, ONLY AS REPRESENTATIVE)
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Defendants
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REASONS FOR ORDER AND ORDER
[1]
This is a motion in writing dated August 4, 2016
on behalf of the Defendants, pursuant to Rule 369 of the Federal Courts
Rules, for:
(a)
an Order pursuant to Rule 221(1)(a),(c), or (f)
that the Statement of Claim be struck out, without leave to amend;
(b)
an Order requiring the Plaintiffs to pay to the
Defendants elevated costs associated with this motion; and
(c)
in the alternative, if the Statement of Claim is
not struck, an Order extending the time for service and filing of the
Defendants’ Statement of Defence, to 30 days from the date of the Order.
[2]
The Plaintiffs have opposed the motion.
I.
Facts
[3]
On July 5, 2016, the Plaintiffs, who are
self-represented, filed a 155 page Statement of Claim naming as a Defendant Her
Majesty the Queen in Right of Canada represented by the Attorney General of
Canada and the Minister of Immigration, Refugees and Citizenship.
[4]
I have reviewed the Statement of Claim very
carefully and attempted to discern the material facts and any reasonable causes
of action. It is clear that the Plaintiffs’ claims are rooted in a decision
made by Citizenship and Immigration Canada [CIC] to refuse the sponsorship
application filed by the Plaintiff, Zoltan Simon, to sponsor the other
Plaintiff, Zuanhao Zhong, who is his current wife. The sponsorship application
was refused on the basis that Mr. Simon was found by CIC to be in default of
his previous undertaking to sponsor his previous wife, Ms. Reyes.
[5]
The undertaking that Mr. Simon had signed in
relation to his sponsorship of Ms. Reyes included a provision that if the
sponsored individual received social assistance, the social assistance would
become a debt owed by Mr. Simon and a default of the undertaking would mean
that Mr. Simon could not sponsor another individual in the future.
[6]
Between 2000 and 2005, Ms. Reyes received approximately
$38,000.00 in social assistance from the government of British Columbia.
[7]
In 2008 and again in 2009, the Province of
British Columbia garnished funds standing to Mr. Simon’s credit in his tax
account with Revenue Canada to partially satisfy his indebtedness arising from
the sponsorship of Ms. Reyes.
[8]
CIC’s refusal of Mr. Simon’s sponsorship
application for Ms. Zhong resulted in the commencement of a series of court
actions by Mr. Simon in various jurisdictions.
[9]
On October 1, 2007, Mr. Simon brought an action
in the Federal Court (T-1758-07) alleging wrongdoing in relation to the CIC’s
sponsorship forms, the government of British Columbia’s provision of social
benefits to Ms. Reyes and the CIC’s treatment of his application to sponsor Ms.
Zhong. By order of Madam Justice Anne Mactavish dated November 7, 2007, the
statement of claim was struck as Mr. Simon had not exhausted his remedies at
the Immigration Appeal Division of the Immigration and Refugee Board [IAD].
[10]
On May 31, 2007, Mr. Simon appealed the
sponsorship refusal to the IAD. By decision dated November 17, 2009, the IAD
upheld the refusal, finding that Mr. Simon understood the terms of the
sponsorship undertaking and that the debt was still owing. By order of Mr.
Justice Luc Martineau dated March 30, 2010, the Federal Court dismissed Mr.
Simon’s application for leave to appeal the decision of the IAD (IMM-6265-09).
[11]
In October 2009, Mr. Simon brought an action in
the Supreme Court of British Columbia (S-097926) with allegations similar in
nature to those made in Federal Court action T-1758-07. Mr. Simon ultimately
discontinued that action in May 2010.
[12]
On April 23, 2010, Mr. Simon commenced an action
in the Federal Court (T-639-10) seeking a declaration that he did not owe a
debt to the government of British Columbia under the sponsorship agreement for
Ms. Reyes and seeking visas for Ms. Zhong and her son. By order of Mr. Justice
Russell Zinn, the action was struck out, without leave to amend, on the basis
that Court did not have jurisdiction to determine the claims made.
[13]
Mr. Simon appealed the order of Justice Zinn,
which was allowed in part by the Federal Court of Appeal (A-237-10) by way of a
grant of leave to Mr. Simon to file an amended statement of claim. In granting
Mr. Simon leave, the Federal Court of Appeal provided very precise direction to
Mr. Simon regarding any proposed amendment to his pleading. Specifically:
a)
Failure to comply with all of the Federal
Courts Rules governing pleadings would likely lead to the claim being
struck;
b)
Each constituent element of each cause of action
must be pleaded with sufficient particularity, a requirement that is not
satisfied with a narrative of the events;
c)
Materials relating to the propriety of the claim
to reimbursement advanced by authorities in British Columbia will not likely
fall within the jurisdiction of the Federal Court; and
d)
Certain relief sought against federal entities
may only be claimed through an application for judicial review.
[14]
On February 17, 2011, Mr. Simon filed an amended
statement of claim in T-639-10. By order dated May 19, 2011, Madam Justice
Judith Snider struck out the amended statement of claim without leave to amend.
Justice Snider found that Mr. Simon's claim was lengthy and incomprehensible
and suffered from various defects, including the same defects that the Federal
Court of Appeal required Mr. Simon to correct.
[15]
Mr. Simon appealed the order of Justice Snider
to the Federal Court of Appeal (A-232-11). On February 13, 2012, the Federal
Court of Appeal dismissed the appeal. Mr. Simon sought leave to appeal the
Federal Court of Appeal’s decision from the Supreme Court of Canada, which
application was refused on October 4, 2012 (see Simon v. Canada, [2012]
S.C.C.A. No. 199).
[16]
On May 25, 2012, Mr. Simon commenced an action
in the Federal Court (T-1029-12) for damages and declaratory relief against Her
Majesty the Queen in Right of Canada, the Ministry of the Attorney General, the
Ministry of Human Resources and Skills Development, the Honourable Diane Finley
(Minister of Human Resources and Skills Development), Sharon Shanks (Director
General of the Canada Pension Plan/Old Age Security Division), Roger Bilodeau,
Q.C. (Registrar of the Supreme Court of Canada), and Mary Ann Achakji (Registry
Officer of the Supreme Court of Canada), as well as against the Registry of the
Supreme Court of Canada and “the federal authority that approved the [Supreme
Court of Canada] web site” in relation to the Supreme Court of Canada’s refusal
to accept for filing a notice of appeal in a proceeding Mr. Simon claimed was
an appeal as of right to the Supreme Court of Canada. Mr. Simon also claimed
damages on the basis that the authorities have been “unwilling
to issue any official document regarding a guaranteed amount of his future
pension benefits”.
[17]
By orders dated July 20, 2012, Madam Justice
Danièle Tremblay-Lamer struck the statement of claim in its entirety, without
leave to amend, on the basis that the pleading was vexatious, an abuse of
process and disclosed no reasonable cause of action. In doing so, Justice
Tremblay-Lamer held that Mr. Simon had no appeal as of right to the Supreme
Court of Canada and that the Federal Court lacked jurisdiction to grant that
type of relief.
[18]
Mr. Simon appealed the orders of Justice
Tremblay-Lamer to the Federal Court of Appeal (A-367-12). On February 18, 2014,
the Federal Court of Appeal dismissed Mr. Simon’s appeal in its entirety.
[19]
On April 14, 2014, Mr. Simon sought leave of the
Supreme Court of Canada to appeal the decision of the Federal Court of Appeal
in A-367-12 and filed a “unwilling to issue any
official document regarding a guaranteed amount of his future pension benefits”.
The motion was dismissed on October 23, 2014 and the application for leave to
appeal was dismissed on February 26, 2015.
[20]
In 2015, the Plaintiffs commenced an action in
the Supreme Court of British Columbia against the Attorney General of Canada
and the Attorney General of British Columbia with allegations similar in nature
to those made in the current action. On February 27, 2015, Madam Justice S.A.
Donegan struck out of the Plaintiffs’ pleading, without leave to amend (see Simon
v. Canada (Attorney General), 2015 BCSC 924). In doing so, Justice Donegan
stated at para 100:
In my view, it is plain and obvious that the
plaintiffs’ claims must be struck under Rule 9-5(1)(b) as well. These claims, I
find, are frivolous, vexatious and scandalous. The pleadings are without
substance, fanciful, groundless, and will waste the time of the court. They are
so prolix and confusing that it is difficult, if not impossible, for the
defence to understand the case to be met in court. The notice of civil claim
does not meet any standard which enables a proper response to be filed by the
defendants. The pleadings are vague, over-inclusive, and contain a great deal of
irrelevant information. The pleadings run afoul of Rule 3-1(2) and Rule 3-7(1),
(9) and (14). The plaintiffs’ lengthy legal arguments, which include case law,
hypothetical scenarios, reference to irrelevant statutes, and diagrams, are
incapable of supporting proof of any cause of action.
[21]
The Statement of Claim at issue on this motion
contains 54 paragraphs of requested relief based on at least twenty causes of
action in relation to the alleged conduct of various government entities and
agents, including the Minister of Immigration, Refugees and Citizenship, the
Minister of National Revenue, the Minister of Foreign Affairs, the Standing
Committee on Citizenship and Immigration, unnamed Canadian visa officers,
officers and employees of the Information Commissioner of Canada and the
Registrar and Deputy Registrar of the Supreme Court of Canada.
[22]
The causes of actions, as framed by the
Plaintiffs, include fraud, conspiracy, misrepresentation of the Immigration and
Refugee Protection Act [IRPA] and Regulations, false pretences, misfeasance of
public office, breach of trust, fraudulent conversion, contravening various
acts of Parliament, interference and failure to deliver monies, fraudulent
conspiracy and attempted conspiracy, mental torture and pressuring of the re-victimized
sponsors, corruption, fraud on government, designing and carefully maintaining
a cruel nationwide money extortion scheme, facilitating terrorist activity
against the re-victimized sponsors, possession and laundering of the proceeds
of crime from a money extortion scheme, unjust enrichment, and defrauding the
public.
II.
Analysis
[23]
Rule 221(1) of the Federal Courts Rules [Rules]
provides, in part, 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,
(b) is immaterial or redundant,
(c) is scandalous, frivolous or vexatious,
(d) may prejudice or delay the fair trial of the action,
(e) constitutes a departure from a previous pleading, or
(f) is otherwise an abuse of the process of the Court,
and may order the action be dismissed or judgment entered
accordingly.
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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;
b) qu’il n’est pas pertinent ou qu’il est redondant;
c) qu’il est scandaleux, frivole ou vexatoire;
d) qu’il risque de nuire à l’instruction équitable de l’action ou
de la retarder;
e) qu’il diverge d’un acte de procédure antérieur;
f) qu’il constitue autrement un abus de procédure.
Elle peut aussi ordonner que l’action soit rejetée ou qu’un
jugement soit enregistré en conséquence.
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[24]
The test to be applied on a motion to strike a
pleading under Rule 221(1)(a), (c) or (f) of the Rules is whether it is plain
and obvious that the claim cannot succeed (see Hunt v. Carey Can. Inc.,
1990 CanLII 90 (S.C.C.), [1990] 2 S.C.R. 959). In applying this test, all
allegations of fact, unless patently ridiculous or incapable of proof, must be
accepted as proved (see Edell v. Canada, 2010 FCA 26).
[25]
The Statement of Claim should be read as
generously as possible, in a manner that accommodates any inadequacies in the
allegations that are merely the result of deficiencies in the drafting of the
document (see Operation Dismantle Inc. v. R, [1985] 1 S.C.R. 441 at para
14).
[26]
A claim found not to be within the jurisdiction
of the Court in which it is filed will be struck out as being frivolous, as
having no reasonable cause of action or as being an abuse of process (Canada
v. Roitman, 2006 FCA 266 at para 15).
[27]
Notwithstanding the length and lack of
intelligibility of the Statement of Claim, it is clear that the key elements of
the Plaintiffs’ claims are the denial of Mr. Simon’s sponsorship application
for Ms. Zhong, the enforceability of the sponsorship agreement executed by Mr.
Simon in relation to his sponsorship of Ms. Reyes, the liability owed by Mr.
Simon to the government of British Columbia in respect of social assistance
benefits received by Ms. Reyes, and the Supreme Court of Canada’s refusal to
grant his applications for leave to appeal.
[28]
Although the Plaintiffs are now attempting to
characterize their claims in a different manner, I find that the majority of
the Plaintiffs’ claim have been heard by a court or tribunal and dismissed or
struck out. The defaulted sponsorship agreement and consequent inability to
sponsor Ms. Zhong was heard by the IAD and this Court then denied leave to
appeal. This Court has also previously found that it does not have jurisdiction
to determine the claims related to Mr. Simon’s sponsorship debt to the government
of British Columbia and claims against the Registrar of the Supreme Court of
Canada.
[29]
Through this latest proceeding, the Plaintiffs
are improperly attempting to re-litigate claims that were already struck by
this Court in previous proceedings on the basis that they were abusive,
frivolous, vexatious, res judicata and/or beyond the jurisdiction of this
Court. Such conduct amounts to an abuse of process (see Mazhero v. Fox,
2014 FCA 219 at para 34).
[30]
Moreover, I find that the Plaintiffs are
continuing to plead numerous causes of action that are not known in law and
that were confirmed by the Supreme Court of British Columbia as unknown at law,
such as the tort of interference and failure to delivery monies, the tort of
contravening several acts of Parliament, the tort of mental torture, and the
tort of defrauding the public by deceit. Continuing to assert such claims is
both abusive and vexatious.
[31]
Rule 181 requires that a pleading must contain
particulars of every allegations contained therein, including particulars of
any alleged misrepresentation, fraud, breach of trust, wilful default or undue
influence. Bald allegations of such allegations cannot stand. The majority of
the claims asserted by the Plaintiffs, including newly formulated claims, are
of this nature, yet the Plaintiffs fail to provide sufficient, or any,
particulars as required by the Rules.
[32]
Moreover, the Statement of Claim is so
unintelligible and devoid of material facts that it is difficult, if not
impossible, for the Defendants to understand the case to be met. On this basis,
I find that the entirety of the pleading is frivolous and vexatious.
[33]
In addition, I find that the Statement of Claim
is replete with legal argument, references to irrelevant statutes, hypothetical
scenarios and case law, all of which are improper.
[34]
For certain elements of the relief sought by the
Plaintiffs, such as the issuance of a visitor visa to Ms. Zhong and her son,
there is simply no basis for the Court to grant such relief. There is nothing
discernable in the record that indicates that any application for a visitor
visa has been made, let alone denied. Accordingly, although a remedy might well
be available in this Court if the visa applications are denied, there is
currently no foundation for the remedy sought.
III.
Conclusion
[35]
I find that the Statement of Claim discloses no
reasonable cause of action, is scandalous, vexatious and an abuse of process.
It is therefore plain and obvious that the Plaintiffs’ claims cannot succeed
and the pleading should be struck out in its entirety.
[36]
Given the nature of the serious deficiencies in
the Statement of Claim and given Mr. Simon’s past conduct in refusing to heed
the direction offered by the Federal Court of Appeal on how to prepare a proper
pleading, I find that the deficiencies in the Statement of Claim cannot be
cured by amendment and leave to amend will therefore not be granted.
[37]
I find that a heightened award of costs is
warranted. The amount requested by the Defendants, namely $1,540.00 inclusive
of disbursements and taxes, is entirely reasonable in the circumstances.
ORDER
THIS
COURT ORDERS that:
- The Statement of
Claim is struck out, without leave to amend.
2.
Costs of the motion, hereby fixed in the amount
of $1,540.00, inclusive of disbursements and taxes, shall be paid by the
Plaintiffs to the Defendants.
“Mandy Aylen”
FEDERAL
COURT
SOLICITORS
OF RECORD
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