KASIRYE KABALA Plaintiff v. HER MAJESTY THE QUEEN, 2019 FC 913

Date: 20190710 Docket: T-2194-18 Citation: 2019 FC 913 Ottawa, Ontario, July 10, 2019 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:KASIRYE KABALAPlaintiffandHER MAJESTY THE QUEENDefendant ORDER AND REASONS [1] By Notice of Motion in writing filed on April 18, 2019, pursuant to the Federal Courts Rules, SOR/98-106 (the "“Rules”"), Mr.Kasirye Kabala (the "“Plaintiff”") seeks an extension of time within which to appeal from the Order of Prothonotary Milczynski,dismissing his Second Amended Statement of Claim without leave to amend. [2] Her Majesty the Queen (the "“Defendant”") opposes the motion, on the grounds that the Plaintiff has failed to meet the test for anextension of time and that it would not be in the interests of justice to grant the motion. [3] By Order dated March 1, 2019, Prothonotary Milczynski granted a motion brought by the Defendant and struck out the Plaintiff’sSecond Amended Statement of Claim without leave to amend.

Her Order provides in part as follows: The Second Statement of Claim sets out the Plaintiff’s concerns regarding how his applications were dealt with and how hewas treated by the Human Rights Tribunal of Ontario. There are no material facts alleged against the Government ofCanada, the Queen in Right of Canada or any federal body.

As the Defendant notes, the claim also appears to be an attemptto re-litigate a dispute already adjudicated by the Human Rights Tribunal and Federal Court (Court File T-1738-18), wherethe Plaintiff’s claim against the Human Rights Tribunal of Ontario and a named Vice-Chair was dismissed, for thefollowing reasons: The Federal Court is a statutory court established by

section 101 of the Constitution Act. For the Federal Courtto have jurisdiction, the claim must be founded upon existing and applicable federal law and the Federal Courtmust have jurisdiction over the parties. The Human Rights Tribunal and its Vice-Chair are not such parties andthe subject matter of the claim is not a claim that this Court can adjudicate. In the within action, simply naming Her Majesty the Queen as defendant, making references to the Canadian Charter ofRights and Freedoms or federal statutes do not bring the action within the jurisdiction of the Federal Court.

The substance ofthe within claim is essentially the same as that in Court File T-1738-18. The Plaintiff seeks to claim for damages for how hewas treated by the Human Rights Tribunal of Ontario, its staff and adjudicators, and CanLII for the on-line publication of theTribunal’s decisions. Accordingly, the action must be dismissed. As for costs, having regard to the circumstances of thismotion, I am satisfied that some amount should be awarded to the Defendant. [4] The Plaintiff filed an affidavit, dated April 18, 2019.

He deposed that he only received the Order on April 18, 2019. [5] For her part, the Defendant filed the affidavit of Ms. Theresa Bennett, dated April 29, 2019. Ms. Bennett deposed that according tothe Court records, the Order of March 1, 2019 was sent to the Plaintiff by email on March 1, 2019 and he acknowledged receipt. [6] In her written submissions, the Defendant argues that the Plaintiff has not met the test for an extension of time as discussed in the decision of the Federal Court of Appeal in Alberta v.

Canada (2018), 2018 FCA 83 , 425 D.L.R. (4th) 366 (F.C.A.). [7] The Defendant further submits that it would not be in the interests of justice to allow an extension of time since there is no merit inthe Plaintiff’s proposed grounds of appeal in light of the standard of review applicable to an appeal from the decision of a prothonotaryas discussed in Hospira Healthcare Corporation v.

Kennedy Institute of Rheumatology (2016), 2016 FCA 215 , 487 N.R. 208(F.C.A.). [8] The Defendant argues that the Prothonotary did not err in striking the Second Amended Statement of Claim. [9] In his Second Amended Statement of Claim, the Plaintiff advanced a claim against the Defendant for allegedly wrongful acts carriedout by the Human Rights Tribunal of Ontario. He claimed damages in the amount of $15,500,500.00. [10] In Alberta, supra, at paragraph 44, the Federal Court of Appeal referred to the test for an extension of time as discussed in Canada(Attorney General) v.

Hennelly (1999), (FCA), 244 N.R. 399 (F.C.A.) as follows: In Canada (Attorney General) v. Hennelly (1999), (FCA), 244 N.R. 399 (F.C.A.) (Hennelly), this Courtlisted four questions relevant to the exercise of discretion to allow extension of time under Rule 8:

(1) Did the moving party have a continuing intention to pursue the proceeding?

(2) Is there some merit to the proceeding?

(3) Has the defendant been prejudiced from the delay?

(4) Does the moving party have a reasonable explanation for the delay? [11] I agree with the submissions of the Defendant about the failure of the Plaintiff to show why the time should be extended for filingan appeal from the Order of Prothonotary Milczynski. [12] The Plaintiff has not provided a reasonable explanation for his delay in filing his Notice of Appeal within the time limited by theRules. [13] The evidence shows that the Order was sent to the Plaintiff on March 1, 2019 and further, the Index of Recorded Entries shows thathe acknowledged receipt of the Order. [14] The Plaintiff has not shown that there is any merit to his appeal. [15] The Prothonotary properly exercised her discretion, pursuant to the Rules, to strike the Second Amended Statement of Claim.

Thetest upon an appeal from the Order of a prothonotary is set out in the decision in Hospira, supra. [16] According to the decision in Hospira, supra, an Order of a Prothonotary will not be reversed unless there is palpable and overridingerror with respect to factual conclusions or for questions of law or mixed fact and law; and where a legal principle is in issue, thestandard of corrections will apply. [17] The test upon a motion to strike a pleading is set out in the decision in Hunt v.

Carey Canada Inc., (SCC), [1990] 2S.C.R. 959, that is whether it is plain and obvious that the pleading discloses no reasonable cause of action. According to the decision inBérubé v. Canada (2009), 348 F.T.R. at paragraph 24, a claim must show the following three elements in order to disclose a reasonablecause of action: i. Allege facts that are capable of giving rise to a cause of action ii. Indicate the nature of the action which is to be founded on those facts, and iii.

Indicate the relief sought, which must be of a type that the action could produce and that the court has jurisdiction togrant. [18] The Prothonotary applied the applicable principles of law in striking out the Plaintiff’s Second Amended Statement of Claim. [19] The Prothonotary noted that the Plaintiff appears to be trying to re-litigate a matter that has been heard before the Human RightsTribunal and by the Federal Court in cause number T-1738-18. [20] An attempt to re-litigate the same matter is an abuse of process: see the decision in Oleynik v.

Canada (Attorney General) (2014),2014 FC 896 , 464 F.T.R. 114. [21] In my opinion, there was no error in the Order made by Prothonotary Milczynski and there is no basis for judicial intervention. [22] The motion is dismissed with costs to the Defendant in the amount of $250.00. ORDER THIS COURT ORDERS that the motion is dismissed with costs to the Defendant in the amount of $250.00. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: T-2194-18 STYLE OF CAUSE: KASIRYE KABALA v HER MAJESTY THE QUEEN MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTSRULES

ORDER AND REASONS: HENEGHAN, J. DATED: July 10, 2019 APPEARANCES : Kasirye Kabala For The PLAINTIFF (ON HIS OWN BEHALF) Marilyn Venney For The DEFENDANT SOLICITORS OF RECORD : Attorney General of Canada Toronto, Ontario For The DEFENDANT