Date: 20020828
Docket: T-2185-01
Neutral citation: 2002 FCT 917
Vancouver, British Columbia, Wednesday, the 28th day of August 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
H. JOANNE JOHNSON
Plaintiff
- and -
"HER MAJESTY THE QUEEN" ROYAL CANADIAN
MOUNTED POLICE (R.C.M.P.)
THE ASSISTANT COMMISSIONER W. SWEENY
Defendants
[1] These reasons arise from two motions brought before the Court at its general sitting in Edmonton, Alberta on August 6, 2002.
[2] The first motion is brought on behalf of the defendants and seeks an order extending the time for filing the amended statement of defence (or what more properly appears to be a statement of defence to the amended statement of claim), summary judgment dismissing the claim set out in the statement of claim and, alternatively, an order striking the pleading in that it discloses no reasonable cause of action and does not contain a concise statement of material facts on which the plaintiff relies.
[3] The second motion is brought on behalf of the plaintiff and seeks an order for default judgment on the terms sought in the amended statement of claim.
[4] A review of both the procedural history and the substantive claims asserted in this action is necessary in order to place these motions in their proper context.
(i) The Nature of the Claim and Procedural History
[5] Ms. Johnson, who is self-represented, commenced this action on December 13, 2001. In her statement of claim she sued the Royal Canadian Mounted Police, the Assistant Commissioner, R.C.M.P. "K" Division, an individual said to be the present Assistant Commissioner of the R.C.M.P., and John Doe. The gist of her claim is found in paragraphs 5, 6, 9, 10, 11, 12, 13 and 14 of the claim which are as follows:
(5) On or about April 1983 the Plaintiff was approached and offered to render some confidential services covered by the Witness Protection Act Chapter 15 Statute of Canada (Witness Act).
(6) "Inter alia" the Representation made to the Plaintiff by the Defendant Corporal Douglas MacDonald that the Plaintiff should be protected and covered by the Rights and Privileges under the "Witness Act".
[...]
(9) The representation of the Servant/Agent of the R.C.M.P. for the purpose of the Plaintiff to participate in the witness program are "inter alia" the following:
(a) Protection - From those whom would seek retribution against the Plaintiff's "ex-husband" for acting as an "informant". Because the Plaintiff was his "wife" this protection would be extended to the Plaintiff as the retribution might be deemed "guilt" by association even though the Plaintiff was no "informant" or criminal.
(b) Relocation - when and as often as deemed necessary because of (a).
(c) Responsibility for all existing debts and encumbrances under our name of Hinton. No paper trail of any kind was to be left. This was a security measure.
(d) New I.D. including health care, drivers license, S.I.N., birth certificates and marriage license to accommodate our new identities, etc.
(e) The financial responsibility for accommodation, food, health care, clothing, education, transportation, and entertainment while part of the program.
(f) A final payout of cash upon contingency of the project to be accomplished.
(g) A Queen's Pardon for any existing criminal charges for my ex-husband by striking all charges against him and burying his criminal record and applying for a Queen's Pardon (i.e. H. Joanne Johnson had no criminal record at this 1983 time.)
(h) Any and all existing necessities as they "occurred" to ensure health, safety, quality of life, livelihood, and "creating a normal life" as much as possible, including stability.
(10) At all material times the Plaintiff believed the aforesaid representation was true, correct and done in good faith just to discover it was intended to beguiled me.
(11) By entreaties both oral and written the herein Plaintiff requested/demanded from the herein Defendants to comply with the terms and conditions as provided by the "Witness Act" which proves futile.
(12) As a consequence of the breach of fiduciary duties and the terms and conditions of the representation the herein Plaintiff suffered damages to the amount of $378,000.00 more or less to be proven during Trial.
(13) Further there was infringement of the equality provision guaranteed by the Charter particularly Section 15 by the Defendants intentional and wanton disregard for equal treatment as compared to "Leon" and others in this same Witness Program or in the alternative willful negligence causing damages to the Plaintiff to the amount of $15,000.000.00.
(14) The Defendants R.C.M.P., Assistant Commissioner W. Sweeny, Corp. MacDonald and Corp. Lynch (et al) are liable for any damages which the Plaintiff sustains as a result of their acts as aforementioned
[6] By way of relief, the plaintiff seeks substantial damages, an order of mandamus requiring the Assistant Commissioner to pay to her financial support of at least $3,000.00 per month, interest and costs.
[7] One week after filing the claim, the plaintiff attempted to move ex parte for an order of mandamus but a direction was issued by a judge of this Court that, because no justification was shown for the Court to proceed ex parte, the motion should be served in the normal course and be heard at the January general sitting of the Court in Edmonton.
[8] On January 22, 2002, a statement of defence was filed to the claim which, among other things, denied the existence of any agreement or duty. The defence did admit the existence of a letter of understanding entered into with the plaintiff's husband to provide protective services to the plaintiff and her husband effective July 13, 1983, but asserted that all the terms and conditions of the letter of understanding were met and that the agreement was terminated on December 7, 1984.
[9] At the January general sitting of the Court in Edmonton, the plaintiff's motion for mandamus was adjourned to the February general sitting, the defendants were directed to serve and file their intended motion for summary judgment by a specified day to be returnable at the February general sitting, and the Court ordered the appointment of a case management judge if the motion for summary judgment failed.
[10] The defendants did serve and file their motion materials in respect of their motion for summary judgment, and the plaintiff moved ex parte for an order compelling the cross-examination of the witness who swore the affidavit in support of the defendants' motion for summary judgment. This motion was not apparently set down for hearing as the notice of motion contained no proposed hearing date.
[11] At the general sitting of the Court in February, the plaintiff's motion for mandamus and the defendants' motion for summary judgment were adjourned sine die to enable the plaintiff to seek proper representation and to amend the statement of claim. The plaintiff says she did not seek that adjournment.
[12] On May 21, 2002, the plaintiff filed an amended statement of claim although neither leave nor consent was given to the filing of the document. The amended statement of claim named as defendants "Her Majesty The Queen", Royal Canadian Mounted Police ("R.C.M.P."), and the Assistant Commissioner W. Sweeny. The gist of the claim, as amended, is as follows:
4. On July 13th 1983 a "Letter of Understanding" (Contract) was entered into by the Defendant "Her Majesty The Queen" through its servant Corporal G.F. Lynch of The Royal Canadian Mounted Police (R.C.M.P.) and "Leon" representing himself on behalf of the Plaintiff.
5. Evidenced by Exhibit "B" of the Affidavit of Constable Begg, an employee of the (R.C.M.P.) and dated February 01st 2002 and contained in a document known as "Acknowledgement and Unconditional Release" "Inter Alia" the following facts material to this matter are crystallized to wit:
A. The parties were Mr. and/or Mrs. H. Joanne Johnson (The herein Plaintiff) and "Her Majesty The Queen" as represented by the R.C.M.P., the herein Defendant.
B. By reason of the involvement in the matter of certain investigations by the R.C.M.P., the life, safety, and property of the herein Plaintiff was already threatened or endangered; going back to February 01 1983.
C. That the R.C.M.P. had further acknowledged and agreed that it remained responsible and liable for any debts that have incurred or may be occurring in the future.
D. That the signatory to the "Acknowledgement and Unconditional Release were:
1. The husband of the herein Plaintiff
2. Corporal T.G. Sommerfeld, of the R.C.M.P.
E. That the herein Plaintiff never signed the aforesaid "Acknowledgement and Unconditional Release" dated December 07th 1984.
6. In the interim, the herein Plaintiff was approached by Corporal Douglas MacDonald of the R.C.M.P. Amongst others, the following matters were proposed by the aforesaid Corporal MacDonald and was agreed by the herein Plaintiff.
A. Relocation
B. New Identity including: Health Care, Drivers License, Social Insurance Number, Birth Certificate and Marriage License
C. Financial Support for: Accommodation, Food, Health Care, Clothing, Education and other Sundry Expenses.
D. Any and all existing necessities as they occurred to ensure the Plaintiff's: Health, Safety, Maintenance of Qualify of Life and Furtherance of a Normal Life.
7. Despite entreaties by the herein Plaintiff demanding/requesting compliance from the Defendant to comply with the terms and conditions entered into by the Plaintiff and the Defendant, the Defendant refused and continued to refuse the Demand and as a consequence, the herein Plaintiff suffered a pecuniary loss, the sum of $378,000.00 more or less which will be proven during the trial.
8. FURTHER to the 1983 Witness Protection Program, in June 20th 1996, the "Witness Protection Program" was passed and assented to, which in essence was a continuing protection of persons who have been involved in providing assistance in law enforcement, matters of which the herein Plaintiff, was still in this status.
9. Further, the Defendants, and each of them, owed a Fiduciary Duty of Care to the herein Plaintiff, to ensure that all material facts relating to the execution of the Release Agreement by the Plaintiff's husband was clearly never disclosed to the Plaintiff. The details of the actual document were never discussed until the Affidavit of Constable Stewart Begg was served on Feb. 01st 2002.
10. "Inter Alia" the Witness Protection Program Act Elizabeth II Chapter 15. Reiterated the statutory obligation of the herein defendant, the R.C.M.P. and Assistant Commissioner to provide financial and legal support to persons like the herein Plaintiff, involved in providing assistance in law enforcement matters.
[...]
13. AND FURTHER, to the failure of the Defendants to provide the necessary support as aforesaid, the herein Defendant alleged that inasmuch as other persons similarly or akin to the situation of the herein Plaintiff, was provided the necessary support, an infringement of the equality provisions guaranteed by the Charter of Rights, particularly Section 15, was breached, acausing damages to the herein Plaintiff in the amount of $15,000,000.00 more or less.
14. "Her Majesty The Queen" (R.C.M.P.) and Assistant Commissioner W. Sweeny, by their acts, breach of their statutory duties and by their failure to comply as alleged herein, by the Plaintiff are jointly and severally liable to the herein Plaintiff.
[13] Motions were then brought at the Court's general sitting on June 18, 2002. The Court ordered the plaintiff's motion for mandamus adjourned sine die, ordered the defendants' motion for summary judgment to proceed on a peremptory basis at the Court's August sitting, and ordered that the defendants file their defence to the amended claim within 10 days. Through inadvertence, the defence was not filed as required, hence that part of the defendants' motion for an extension of time to file the defence to the amended claim.
[14] With that background, I turn to consideration of the following:
1. The status of the plaintiff's amended statement of claim.
2. The plaintiff's motion for default judgment.
3. The defendants' motion to strike.
4. The defendants' motion for summary judgment.
(ii) The Status of the Amended Statement of Claim
[15] Rule 75 of the Federal Court Rules, 1998, ("Rules") provides that the Court may on motion allow a party to amend a document. In the present case, it is acknowledged that leave was not given for the amendment of the statement of claim. However, Rule 56 provides that non-compliance with any of the rules does not render a step in a proceeding void. Rather, it is an irregularity which may be addressed under Rules 58 to 60.
[16] No motion to attack the irregularity was brought, and the Court ordered that a defence be filed to the amended statement of claim within 10 days of the June general sitting.
[17] In that circumstance, the amended pleading is not void and shall be considered to be the embodiment of the plaintiff's claim for the purpose of these motions.
(iii) The Plaintiff's Motion for Default Judgment
[18] Rule 210(1) of the Rules provides:
| 210.(1) Motion for default judgment - Where a defendant fails to serve and file a statement of defence within the time set out in rule 204 or any other time fixed by an order of the Court, the plaintiff may bring a motion for judgment against the defendant on the statement of claim. |
210.(1) Cas d'ouverture - Lorsqu'un défendeur ne signifie ni ne dépose sa défense dans le délai prévu à la règle 204 ou dans tout autre délai fixé par ordonnance de la Cour, le demandeur peut, par voie de requète, demander un jugement contre le défendeur à l'égard de sa déclaration. |
|
[19] Here the defendants did file a statement of defence to the claim, and that defence remains on file. In circumstances where a defence has been filed to a claim, I am not aware of any authority or rule to the effect that the failure to file a defence to an amended version of the claim entitles a defendant to default judgment. No such rule or authority was cited.
[20] In any event, default judgment is never automatic. It is a discretionary order. See, for example, Audi Aktiengesellschaft v. Hayman Motors Ltd. [1999] F.C.J. No. 530 (Proth.). In the circumstances before the Court, and in the additional circumstance where the plaintiff failed to give 14 clear days notice of its motion for default as required by section 25 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, in the exercise of my discretion I dismiss the plaintiff's motion for default judgment.
(iv) The Defendants' Motion to Strike
[21] There is no valid cause of action pleaded against the Assistant Commissioner who, the evidence establishes, is not "W. Sweeny". There is no entity at law known as ""Her Majesty The Queen" Royal Canadian Mounted Police (R.C.M.P.)". In proceedings before the Federal Court, the Crown may be named as "Her Majesty The Queen in Right of Canada".
[22] Therefore, the amended statement of claim is struck against all of the defendants except Her Majesty The Queen. As I can not see a scintilla of a cause of action against these defendants, nor was one argued, the claim is struck without leave to amend to assert a cause of action against them. See: Larden v. Canada (1998), 145 F.T.R. 140 (Proth.) at pages_ 149 to 150.
[23] The balance of the amended statement of claim is, in the exercise of my discretion, struck, although with leave to apply to the Court for an order amending the claim against Her Majesty The Queen in Right of Canada.
[24] The claim is struck against Her Majesty The Queen on the ground that, as now pleaded, it discloses no cause of action and it may prejudice or delay the fair trial of the action. I so conclude for the following reasons:
1. Paragraphs 4 and 5 appear to plead an agreement, but the relevant terms of that agreement are not alleged, nor is breach of those terms alleged with sufficient material facts so as to give rise to a cause of action. It is not clear which agreement paragraph 7 relates to. It is not sufficient for a claim to contain bare assertions without facts on which to base the assertions. See: Vojic v. Canada, [1987] 2 C.T.C. 203 (F.C.A.).
2. To the extent that paragraph 6 appears to allege the creation of a further agreement, the terms of the alleged agreement giving rise to the claim are not set out as required, nor is the alleged breach properly pleaded in paragraph 7.
3. Paragraphs 8 and 10 as pleaded create no cause of action and are not related to any other allegation or to the plaintiff.
4. Paragraph 9, which asserts a fiduciary duty is incomprehensible as drafted. The material facts alleged to give rise to the existence of the duty and the breach of the alleged duty are not properly pleaded.
5. Paragraph 13 does not properly plead a cause of action under section 15 of the Canadian Charter of Rights and Freedoms.
6. After hearing the plaintiff's submissions, the relief claimed does not appear to correspond to her grievances.
[25] It is not sufficient that the defendants and the Court are left to speculate as to the plaintiff's claim, or to read in or infer missing allegations. To that extent, the claim as drafted would without doubt prejudice or delay the fair trial of the action. It would also be impossible for the Court to properly control its process in proceedings where the issues are defined by the amended statement of claim.
[26] For these reasons, an order will issue striking the amended statement of claim on the terms specified in the order. It is not therefore necessary for me to deal with the request for extension of time for the filing of a defence to the amended claim. However, had the claim not been struck, I would have granted the requested extension as a reasonable explanation was provided for the failure to file the document on a timely basis. I can see no prejudice and the interests of justice favour the granting of the extension.
[27] I did give consideration to the defendants' motion for summary judgment, but consider it premature for the following reasons.
[28] First, the submission that there is no genuine issue for trial because the claim is statute-barred is based on the assertion that the plaintiff had until December 12, 2000 to sue. This is based on the premise that the limitation period began to run from the date the plaintiff is said to have refused to sign a document entitled "Acknowledgment and Unconditional Release". This document, while stated to be from the plaintiff and her husband "collectively and individually, jointly and severally", was only signed by the plaintiff's husband. The document acknowledges certain services provided by the R.C.M.P. and acknowledges that the R.C.M.P. had no further obligations. However, it is the claim of the plaintiff that the initial agreement was entered into by her husband on her behalf (and that is what the document says), and she has made continuing requests for the assistance which the defendants had agreed to provide. The evidence is that the plaintiff never signed the agreement terminating the initial agreement. It seems to me that, in that circumstance, a genuine issue may well exist as to whether there is an existing agreement with continuing breaches. The evidence filed by the defendants is not, in my view, wholly dispositive with respect to all of the plaintiff's claims.
[29] Second, the defendants rely upon the affidavit of Constable Begg. I am concerned that it appears that the plaintiff's request to cross-examine the witness made in correspondence to counsel for the defendants was, in substance, ignored.
[30] Third, the defendants rely upon a request to admit said to have been served upon the plaintiff. However, no proof of service of the request upon the plaintiff was filed.
[31] As to the right of the plaintiff to move for leave to amend the claim against Her Majesty The Queen, the plaintiff has not been represented by a solicitor in the proceeding. While that is her right, if she chooses to apply for leave to amend the statement of claim she would be well advised to, at the least, have a qualified lawyer prepare or review her proposed pleading to ensure that it advances a valid cause of action and so as to avoid to the extent possible further procedural motions and delays.
[32] I am not granting leave for the filing of an amended pleading, but only the right to apply for leave, because to date the plaintiff has filed two versions of a claim which do not meet the requirements of the Rules relating to pleadings. To avoid further procedural motions, the plaintiff should be required to demonstrate that the proposed pleading meets the requirements of the Rules. This may be done by attaching any proposed pleading to the motion for leave to amend.
[33] In oral argument, counsel for the defendants advised that they did not seek costs. Costs are not, therefore, awarded.
[34] For these reasons:
ORDER
1. The plaintiff's motion for default judgment is dismissed.
2. The amended statement of claim, and for greater certainty this includes the statement of claim, is struck against all defendants other than Her Majesty The Queen in Right of Canada without leave to amend.
3. The amended statement of claim, and again for greater certainty this includes the statement of claim, is struck against Her Majesty The Queen with leave to the plaintiff to apply to the Court, on motion properly served upon counsel for the defendants, for leave to amend the pleadings. A draft amended pleading should be attached to any such motion.
4. No costs are awarded in respect of these motions.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2185-01
STYLE OF CAUSE: H. Joanne Johnson v. Her Majesty The Queen, Royal Canadian Mounted Police (R.C.M.P.), the Assistant Commissioner W. Sweeny
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: August 6, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: August 28, 2002
APPEARANCES:
Ms. Joanne Johnson FOR THE PLAINTIFF (self-represented)
Mr. Bruce Hughson FOR THE DEFENDANTS
SOLICITORS ON THE RECORD:
Ms. Joanne Johnson FOR THE PLAINTIFF (self-represented)
Edmonton, Alberta
Mr. Morris Rosenberg FOR THE DEFENDANTS
Deputy Attorney General of Canada