2019 FC, 2019 FC 1590

Date: 20191210 Docket: T-1494-19 Citation: 2019 FC 1590 Ottawa, Ontario, December 10, 2019 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN: ALBERT D. SMITH Plaintiff and HER MAJESTY THE QUEEN Defendant ORDER AND REASONS I. Overview [ 1 ] This is an appeal from the Order of a Prothonotary rendered on November 4, 2019, in which she struck out the Plaintiff’s Statement of Claim (the “Decision”), as it did not disclose a cause of action against Her Majesty the Queen in Right of Canada (the “Defendant”), and as it is an abuse of process.

The Prothonotary also denied the Plaintiff’s leave to amend the Statement of Claim. [ 2 ] Mr. Albert D. Smith (the “Plaintiff”) appeals the Decision, on the ground that the Prothonotary dismissed the Claim before hearing the tapes that the Plaintiff had recorded. [ 3 ] For the reasons that follow, the Prothonotary’s Decision is upheld. Accordingly, this appeal is dismissed. II. Facts [ 4 ] The Plaintiff, who is self-represented, commenced an action on September 12, 2019 against the Defendant. As the Prothonotary notes, the two-page handwritten Statement of Claim is disjointed and difficult to follow.

The Plaintiff appears to seek the return of certain property including a trailer, water tank, septic tank, propane tank, two power poles, and steps. The Plaintiff also appears to seek the return of land, which he alleges is located at Peerless Lake, Alberta. [ 5 ] The Defendant brought a motion in writing for an order striking out the Statement of Claim, without leave to amend.

It submitted that the Claim failed to disclose a reasonable cause of action, did not contain a sufficient level of material fact, and did not contain particulars of every allegation contained. [ 6 ] The Defendant also submitted that the Plaintiff’s claim appeared to be related to two previous actions in this Court, and it appeared to be a collateral attack on one or more previous decisions of this Court in that related litigation. [ 7 ] One of the previous actions, T-604-18, was struck by Prothonotary Milczynski on May 28, 2018, with leave to amend.

The Plaintiff did not amend his claim in T-604-18. [ 8 ] Both the present claim and T-604-18 appear to be related to a third previous action and order, T-19-18. Justice Elliot struck that claim on January 15, 2018, as the Court had no jurisdiction to hear the allegations. [ 9 ] The Plaintiff now appeals the November 4, 2019 decision. III. Issues [ 10 ] Two issues arise in this appeal: 1 . Did the Prothonotary err by dismissing the Claim before listening to tapes in the Plaintiff’s possession? 2 . Did the Prothonotary otherwise commit a palpable and overriding error or an error in law? IV.

Standard of Review [ 11 ] The standard of review for the appeal of a Prothonotary’s order is correctness on a question of law, or an extricable legal error, and palpable and overriding error for other matters: Hospira Healthcare Corporation v Kennedy Institute of Rheumatology , 2016 FCA 215 at paras 64-69 .

V. Analysis A. The Prothonotary did not err in dismissing the Claim before hearing thePlaintiff’s tapes [12] As correctly noted in the Decision, the court cannot consider any evidence in determining whether to strike a pleading on the basisthat it discloses no reasonable cause of action, subject to a limited exception for jurisdictional facts.

The Court is required by Rule 221(2)of the Federal Court Rules, SOR/98-106 (the “Rules”) to limit its examination to the matters pled in the Statement of Claim itself. [13] The Defendant’s motion to strike was primarily on the ground that the Claim does not disclose a reasonable cause of action againstthe Defendant, pursuant to Rule 221(1) of the Rules. Thus, the Prothonotary could not consider evidence in coming to a decision on thismatter. [14] In addition, the tapes would not have assisted the Court in considering whether the claim was an abuse of process, or if the Courtshould grant leave to amend.

As the Defendant correctly points out, the Plaintiff has repeatedly raised the same issues in this Court. [15] Therefore, the Prothonotary did not err in striking the Claim before hearing the tapes that the Plaintiff had recorded. B. The Prothonotary did not otherwise commit a palpable and overriding error, oran error of law [16] The Prothonotary correctly determined that Rule 221(1)(

a) of the Rules permits the Court to strike a claim if it discloses noreasonable cause of action.

The test for striking out a claim on this basis is whether, assuming the facts pleaded can be proved, it is “plainand obvious” that the claim discloses no reasonable cause of action: Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR959 at para 36; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17. [17] The Prothonotary also correctly determined that on a motion to strike, the statement of claim is to be read as generously as possibleand to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies: OperationDismantle Inc v The Queen, (SCC), [1985] 1 SCR 441 at para 14. [18] A plaintiff must plead, in

summary form but with sufficient detail, the constituent elements of each cause of action or legal groundsraised.

The pleading must tell the defendant who, when, where, how and what gave rise to its liability: Mancuso v Canada (NationalHealth and Welfare), 2015 FCA 227 at para 19. [19] A statement of claim containing bare conclusions without a supporting factual basis may be struck out as disclosing no reasonablecause of action: Amos v Canada, 2017 FCA 213 at para 36; Keremelevski v Ukrainian Orthodox Church of St Mary, 2018 FC 406 atpara 61; Bashi v Canada, 2004 FC 80 at paras 4, 7-8. [20] As the Prothonotary correctly determined, the Statement of Claim does not plead any viable cause of action against the Defendant,even on the most generous of readings.

The Plaintiff does not allege any material facts that would support a claim of wrongdoing by theDefendant or by federal Crown servants. While the Statement of Claim makes reference to the RCMP, it does not tell the Defendant who,when, where, how, and what gave rise to its alleged liability. Therefore, the Prothonotary did not err in determining that the Claimdiscloses no reasonable cause of action against the Defendant. [21] Rule 221(

f) of the Rules provides that the Court may strike out a claim on the ground that the claim is an abuse of the process of theCourt. Repeated attempts to litigate essentially the same dispute constitutes an abuse of the process of the Court: Toronto (City) v CUPE,Local 79, 2003 SCC 63 at para 37. [22] The Prothonotary did not err, or commit any palpable or overriding error, when it found that the Claim is an abuse of the process ofthis Court. The substance of the present claim is essentially the same as that in T-604-18 (“604 Action”).

As in the 604 Action, in thepresent claim, the Plaintiff has sued “Her Majesty the Queen” with respect to a trailer and lot. [23] Furthermore, the Prothonotary did not err in exercising the discretion to strike the Claim without leave to amend. The test forgranting leave to amend is whether the defects in the claim can potentially be cured by amendment: Simon v Canada, 2011 FCA 6 atparas 8, 14. [24] The evidence and written submissions tendered by the Plaintiff suggested that if the Plaintiff did have any claim in respect of hisalleged loss of property, that claim is not against the Defendant.

The affidavit evidence produced by the Plaintiff, on their face, appear toinvolve the Government of Alberta, not the Federal Government. The Prothonotary committed no errors in coming to its Decision. VI. Conclusion [25] This appeal is dismissed. The Prothonotary did not err by dismissing the Statement of Claim before listening to the tapes in thePlaintiff’s possession. The Prothonotary also did not commit a palpable and overriding error, or an error in law. [26] No costs shall be awarded. ORDER in T-1494-19

ORDER in T-1494-19 THIS COURT ORDERS that: 1 . The appeal is dismissed ; 2 . No costs are awarded. "Shirzad A." Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1494-19 STYLE OF CAUSE: ALBERT D. SMITH v HER MAJESTY THE QUEEN MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: AHMED J. DATED: DECEMBER 10, 2018 APPEARANCES : Albert D. Smith self-represented Plaintiff Andrew Lawrence For The Defendant SOLICITORS OF RECORD : Attorney General of Canada Edmonton, Alberta For The Defendant