KEITH ROBERT BALLANTYNE Plaintiff v. HER MAJESTY THE QUEEN, 2014 FC 242

Date: 20140312 Docket: T-2084-13 Citation: 2014 FC 242 Toronto, Ontario, March 12, 2014 PRESENT: The Honourable Madam Justice Strickland BETWEEN: KEITH ROBERT BALLANTYNE Plaintiffand HER MAJESTY THE QUEEN Defendant REASONS FOR ORDER AND ORDER [1] This decision concerns an appeal by the Plaintiff, the Applicant herein, Keith Robert Ballantyne, pursuant to Rule 51 of theFederal Courts Rules, SOR/98-106 (Rules) of the Order by Prothonotary Milczynski dated January 31, 2014. [2] The Applicant commenced this action on December 19, 2013.

The Minister brought a motion to strike pursuant to Rules 369and 221(2) on the basis that the Statement of Claim did not disclose a reasonable cause of action, was scandalous, frivolous or vexatiousand was otherwise an abuse of process.

The Applicant did not respond to the motion. [3] By her Order, the Prothonotary struck out the Statement of Claim in whole without leave to amend and dismissed the actionwithout costs. [4] She acknowledged that on a review of the Statement of Claim it was evident that the Applicant felt wronged by the mannerin which he was treated by the Minister of National Revenue (Minister) and the Canada Revenue Agency (CRA).

However, she foundthat the cause or causes of action that the Applicant asserted entitled him to a remedy were unclear and that there were insufficientmaterial facts pled with sufficient particularity to understand them. Faced with this, the Respondent could not prepare a responsive andintelligible Statement of Defence. [5] The grounds of the Applicant’s appeal motion are that he did not understand the Rules or their requirements and believedthat a Statement of Claim was meant to be a general

summary or synopsis of his claim to be followed by documentation of cause andevidence. He asserts that the term “simplified action” is confusing and refers to a Vancouver Sun

article which apparently concerns thedifficulties that self-represented litigants face in navigating court processes. He claims that he has been stereotypically designated anddiscriminated against as a “tax protester” and not afforded due process by the Minister and CRA which has caused him great financialhurt and harm. [6] No affidavit evidence was filed in support of the appeal motion.

The Applicant attached to his Notice of Motion a furtherStatement of Claim, in the form that he says he should have originally submitted, along with other pages of submissions that appear torelate to his dealings with the Minister and CRA. [7] The Respondent submits that because the Prothonotary’s discretionary Order was vital to the final issue of the case, theCourt must consider de novo the issue of whether the Statement of Claim should be struck (Merck & Co v Apotex Inc, 2003 FCA 488paras 18-19).

I agree with that submission (see also AYC Pharmacy Ltd v Canada, 2009 FC 554 at para 9; Chrysler Canada Inc vCanada, 2008 FC 1049 at para 4). [8] The Respondent submits that the test for striking out pleadings under Rule 221(1) is whether it is plain and obvious,assuming the facts to be true, that the claim discloses no reasonable cause of action (Hunt v Carey Canada Inc, (SCC),[1990] 2 SCR 959 at p 980; Knight v Imperial Tobacco Canada Ltd, 2011 SCC 42, [2011] 3 SCR 45 at paras 17, 22) and that theApplicant’s Statement of Claim does not meet this test. [9] Further, that the Statement of Claim failed to conform to Rules 174, 181 and 182 which require a concise statement of thefacts, particulars relevant to any allegations made and specifics as to relief sought.

While paragraph 2 included a claim of negligence andmisfeasance, no facts were alleged to formulate either tort; paragraph 3 referred to the Constitution but was entirely unclear as to what

wrong the Applicant was alleging; paragraphs 4-6 appeared to allege misfeasance but, again, no facts were pled to make out the elementsof that tort. [10] The Respondent also submits that no rational argument was made, based in law and evidence, and that the claim was sofactually deficient as to preclude response (Ceminchuk v Canada, [1995] FCJ No 914 (QL) at para 10 (TD)). The claim was clearlyfutile, confusing and difficult to understand.

For those reasons it was scandalous, vexatious and frivolous (Pfizer Inc v Apotex Inc, (FC), [1999] FCJ No 959 (QL) at paras 30-32 (TD); Borsato v Basra, 2000 BCSC 28 at para 24; Kisikawpimootewin vCanada, 2004 FC 1426 at para 12) and the Prothonotary correctly struck it. On a de novo hearing, the same result should occur. [11] I am mindful, as was the Prothonotary, that the Applicant is a self-represented litigant who lacks the benefit of experience oradvice on the Court process.

However, while the Court generally shows flexibility and openness to self-represented parties, this alonedoes not exempt a party of its obligation to discharge its burden under Rule 51 (Barkley v Canada, 2014 FC 39 at para 18). [12] Even on a generous reading of the Statement of Claim I must agree with the Respondent and the Prothonotary that it providesinsufficient facts to enable the cause(

s) of action to be ascertained and that it is confusing and difficult to understand. It does not permitthe Respondent to prepare a responsive defence. In that regard, I refer to and adopt the reasons contained in the Respondent’s writtenrepresentations filed in this appeal. The Applicant’s appeal must be dismissed. [13] I have also reviewed the revised Statement of Claim submitted by the Applicant which he submits is in the form that heshould have filed originally. This does not assist the Applicant. It is comprised primarily of

definitions, a statement of what comprisesequality guarantees under

section 15 of the Charter and a list of statutes. It does not elaborate on the factual basis of his claim or clarifyhis cause(

s) of action. Similarly, the written representations that he has filed in support of his appeal do not provide a coherent orintelligible explanation of his claim. [14] As to costs, the Minister seeks a lump sum award of $500. Recognizing both that the Applicant is elderly, self-represented andwas the unsuccessful party, and that the appeal, while in writing, still required a response by the Respondent, I am awarding costs in theamount of $200 in favour of the Respondent. ORDER THIS COURT ORDERS that: 1. The Applicant is granted leave to file this appeal late; 2. The appeal is dismissed; and 3.

The Respondent shall have its costs in the amount of $200. “Cecily Y. Strickland” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2084-13 STYLE OF CAUSE: KEITH ROBERT BALLANTYNE v HER MAJESTY THEQUEEN MOTION IN WRITING CONSIDERED AT VANCOUVER, BRITISH COLUMBIA, PURSUANT TO RULE 369

REASONS FOR ORDER AND ORDER: STRICKLAND J. DATED: March 12, 2014 WRITTEN REPRESENTATIONS BY: Keith Robert Ballantyne For The Applicant (ON HIS OWN BEHALF) Jason Levine For The Respondent SOLICITORS OF RECORD : Keith Robert Ballantyne Salt Spring Island, British Columbia For The Applicant (ON HIS OWN BEHALF) William F. Pentney Deputy Attorney General of Canada For The Respondent