Innocente v. Canada (Attorney General), 2012 NSSC 309

SUPREME COURT OF NOVA SCOTIA Citation: Innocente v. Canada (Attorney General) 2012 NSSC 309 Date: 20120822 Docket: Hfx No. 311509 Registry: Halifax Between: Daniel Innocente Plaintiff v. Attorney General of Canada Defendant LIBRARY HEADING Judge : The Honourable Justice Michael J. Wood Heard: August 9, 2012, Halifax, Nova Scotia Decision: August 10, 2012 (Orally) Written Release of Decision: August 22, 2012

Subject: Civil Procedure - Striking out Pleadings; Abuse of Process

Summary: The plaintiff filed an amended statement of claim following a decision of the Court of Appeal to uphold an order for

summary judgment on the pleadings with respect to an earlier version of the claim. The defendant alleged that many of the claims should be struck out as an abuse of process in light of the Appeal decision. Issue: Was the amended statement of claim an attempt to re-litigate claims disposed of by the Court of Appeal and, if so, should they be struck out as an abuse of process? Result: The Court concluded that many of the allegations in the amended statement of claim were ones which had been struck out by the Court of Appeal.

It would be an abuse of the Court ’ s process to allow the plaintiff to pursue them and so the defendant ’ s motion was granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Innocente v. Canada (Attorney General), 2012 NSSC 309 Date: 20120822 Docket: Hfx No. 311509 Registry: Halifax Between: Daniel Innocente Plaintiff v. Attorney General of Canada Defendant

Judge: The Honourable Justice Michael J. Wood Heard: August 9, 2012, in Halifax, Nova Scotia Decision: August 10, 2012 (Orally) Written Release of Decision: August 22, 2012 Counsel: Daniel Joseph Innocente, plaintiff, self-represented Sarah Drodge, for the defendant By the Court : (Orally) [ 1 ] This is my decision in response to the motion brought by the defendant, Attorney General of Canada, to strike out portions of the second amendment statement of claim pursuant to Civil Procedure Rule 88 which is the abuse of process rule and, alternatively, under Rule 13 dealing with

summary judgment. [ 2 ] The motion is based on the assertion that certain paragraphs in the second amended statement of claim relate to matters that have already been decided against Mr. Innocente by the Court of Appeal. The defendant says that including these provisions in the second amended statement of claim represents an abuse of the court process. [ 3 ] A brief review of the procedural history of this matter is needed in order to put this motion in context. [ 4 ] Mr. Innocente ’ s original notice of action and statement of claim was filed on May 21, 2009.

At that time, he claimed against the Attorney General of Canada for the improper withholding of his real and personal property pursuant to a warrant and restraint order issued under the provisions of the Criminal Code of Canada in 1996. The defendant made a motion for

summary judgment on the pleadings on the basis that this statement of claim did not disclose a cause of action as drafted. [ 5 ] By decision dated March 25, 2010, Justice LeBlanc of this Court granted the motion and struck out Mr. Innocente ’ s statement of claim, with leave to file an amended document. [ 6 ] On December 20, 2010, Mr. Innocente filed an amended statement of claim which provided more particulars of his claims against the Attorney General. The Attorney General made another motion for

summary judgment on the pleadings and by decision dated May 12, 2011, Justice Coady of this Court granted the motion and struck out the statement of claim in its entirety. [ 7 ] Mr. Innocente appealed this decision and on April 11, 2012, the Nova Scotia Court of Appeal allowed the appeal, in part. The Court upheld the

summary judgment decision which struck out the claim, with the exception of the personal property claim which

was described as follows: [57] I would permit Mr. Innocente to further amend his Amended Statement of Claim to (1) identify the items of his personal property that he alleges were damaged or lost while in the care of the Crown, and (2) give the particulars of the damage or loss involving those items. ... [ 8 ] The primary claim which was discussed by the Court of Appeal in its decision was for the diminution in value of Mr. Innocente ’ s real property and the alleged loss from the forced sale at a distressed price.

The Court of Appeal clearly said that this claim should not proceed due to the absence of a causal connection to the cause of action which was found to exist. That cause of action, as described by both the Court of Appeal and in the earlier decision of Justice Coady, is for breach of the Crown ’ s undertaking and the failure to take reasonable care of Mr.

Innocente ’ s property while it was subject to seizure. [ 9 ] The Attorney General says that any claims encompassed by the first amended statement of claim have now been disposed of and cannot be re-litigated with the exception of the damage to personal property referred to by the Court of Appeal. [ 10 ] Ms. Drodge did not go so far as to say that the Court of Appeal decision precluded any further amendments to the statement of claim, only amendments with respect to claims found in the amended statement of claim which were considered by Justice Coady and the Court of Appeal are ones which she says Mr.

Innocente is precluded from proceeding with. [ 11 ] Mr. Innocente agreed that he should not be able to re-litigate issues decided by the Court of Appeal; however, in his view, he was not precluded from including the claims set out in the second amended statement of claim. He feels that the Court of Appeal concluded that he needed to provide more particulars of his allegations, and that is what he has attempted to do. [ 12 ] This motion is based upon the doctrine of abuse of process.

This is an inherent power of the court to prevent misuse of its procedure in any way that would bring the administration of justice into disrepute. An example would be the re-litigation of claims that have already been determined by the Court. It is that aspect of the doctrine which is triggered by this motion. [ 13 ] To the extent that the Court of Appeal has disposed of an issue in its earlier decision, neither party is entitled to ask this Court to reconsider it.

As a trial court, we are bound by decisions of the Court of Appeal and must follow them. [ 14 ] In this case, the statement of claim which was amended on December 20, 2010 was struck out by Justice Coady as disclosing no cause of action. That was upheld by the Court of Appeal with the exception of the claims described in para. 57 of the decision, i.e, those relating to personal property and damage or loss arising out of those items. Both the Court of Appeal and Justice Coady agreed that Mr. Innocente had plead a cause of action that existed in law.

That cause of action was described in para. 32 of the Appeal decision, which reads: [32] The chambers judge issued

summary judgment because Mr. Innocente’s Statement of Claim did not plead sufficient facts to connect the cause of action - the Crown’s alleged failure to take reasonable care, under s. 462.32(4) (

a) of the Criminal Code , or the Crown’s alleged breach of its undertaking under ss. 432.32(6) and 462.33(7) - causally to the alleged losses of Mr. Innocente’s property value and the “dilapidation” of his personal property. [ 15 ] The difficulty with the earlier statement of claim was that some of the allegations made did not fall within the scope of that cause of action according to the Court of Appeal.

In the case of the alleged diminution in property value, the Court concluded that there was no causal connection between that claim and the permitted cause of action. [ 16 ] The Court of Appeal did not conclude that Mr. Innocente was prevented from amending his statement of claim in accordance with Rule 83 . He has as much right as any litigant to the benefit of those provisions.

The only limitation which is imposed by the Appeal decision is that any subsequent amendments cannot include claims from the December 20, 2010 statement of claim, which was struck out, with the exception of those previously described relating to personal property and damages flowing from the loss or damage to it.

[ 17 ] Of particular relevance to this motion is para. 20 from the December 20, 2010 amended statement of claim, which reads: 20. Mr. Innocente claims damages and costs relating to the improper withholding of his real and personal property from him. [ 18 ] This was struck out and not within the scope of the claims which were permitted to continue. [ 19 ] I will now review the paragraphs of the statement of claim which the defendant alleges should be struck out, and for purposes of this I am going to review the draft order which Ms.

Drodge provided which summarizes the paragraphs. [ 20 ] The first group of paragraphs which the defendant challenges relate to allegations regarding alleged loss of business profits and income tax debt. These allegations in the statement of claim, and this was confirmed by Mr. Innocente in his submissions, relate to the loss of income resulting from the seizure of his personal property. [ 21 ] I note that para. 15 of Justice Coady ’ s original decision said as follows when referring to the position of the respondent plaintiff: [15] Mr.

Innocente acknowledges that the charges laid against him may sustain a seizure and restraint order under the Criminal Code . He further acknowledges, for the purpose of this action, that the 1999 seizure and warrant were properly obtained and does not challenge the process by which they were authorized. [ 22 ] This means that the initial seizure is not challenged by Mr. Innocente and, because of the allegation in para. 20 of the December, 2010 statement of claim, the improper withholding cannot be the subject of an ongoing action by Mr.

Innocente. [ 23 ] I am satisfied that as a result of these two comments, it would be an abuse of process to allow this aspect of the claim to proceed and so I will strike out the paragraphs as requested. These are paras. 10, 11, 14, 15, 16, 17, 18, 51(b)(i), 51(b)(ii). [ 24 ] The next paragraphs which are challenged by the defendant are paras. 24 and 26(d).

These relate to the liquidation of the antiques because of their withholding and the resulting personal expenses and legal fees which could not be paid. [ 25 ] I am satisfied that the improper withholding aspect of the claim cannot proceed and, therefore, strike out para. 24. Paragraph 26(

d) has two aspects to it - one is the claim for losses due to the withholding of the antiques, but the other aspect is a claim based upon selling the antiques at a lower price as a result of the damages, and that aspect of the claim is permissible to continue. In para. 26(d), only the latter portion of it relating to the requirement to liquidate antiques to pay personal legal expenses will be struck out, and the balance will remain. [ 26 ] The next group of paragraphs relate to allegations concerning the diminution in the plaintiff ’ s real property. I have reviewed these.

Many of them are found in identical terms in the December 20, 2010 statement of claim. In any event, I am satisfied that any claim for the forced sale of the property at a reduced price have been dealt with by the Court of Appeal and cannot continue as a result of being an abuse of process. Therefore, I would strike out paras. 32, 33, 34, 35, 36, 37, 38 and 51(b)(iv). [ 27 ] Similarly, paras. 43 and 45 include allegations for diminution in the value of the property as a result of having to sell it at a sale and also with improper withholding of personal property.

I would strike out paras. 43 and 45 as being an abuse of process. Paragraph 46 includes allegations with respect to both personal and real property, and I would only strike out the reference to real property in para. 46. The balance of the claims in that paragraph can continue.

[ 28 ] Paragraph 41 deals with the alleged diminution in Mr. Innocente ’ s net worth. I note that this paragraph appears in essentially the same terms in the December 20, 2010 amended statement of claim which was struck out, and so I would also strike out para. 41. [ 29 ] The final paragraph challenged by the defendant is the claim in para. 51(

a) for general damages. I will not strike that out. Mr. Innocente is entitled to pursue a claim for general damages based upon the causes of action which remain in the statement of claim. [ 30 ] By concluding that the defendant has satisfied me that these allegations should be struck out as an abuse of process, I want to be clear that I have not concluded that Mr. Innocente was acting in bad faith.

I am satisfied that he is genuinely attempting to comply with the directions of the courts and deal with these somewhat complex rules and requirements for drafting pleadings. [ 31 ] Having dealt with the issue and allowed a substantial portion of the relief sought by the Crown, I will award the Crown costs of $500.00 in any event of the cause. _______________________________ Wood, J.