Date: 20000817
Docket: T-2652-89
Between:
GUILLAUME KIBALE
Plaintiff
-and-
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
PROTHONOTARY ARONOVITCH
[1] In this written motion the defendant is asking the Court to strike out the statement of claim of the plaintiff Guillaume Kibale, dated March 12, 1990.
[2] On November 23, 1989 the plaintiff brought an action in the Court against the defendant for damages for the latter's refusal to hire him in the Public Service.
[3] Following the filing of the statement of claim, consisting of 23 pages and over 73 paragraphs, the defendant at that time filed a motion to strike allegations contained in the statement of claim and obtain particulars about the latter. On March 6, 1990 Addy J., as he then was, made an order in respect of this motion. I reproduce the more relevant passages of the reasons rendered:
| [TRANSLATION]* |
| Except when certain details are set out by particular rules, such as Rules 407, 408(2) and (5) and 409, and so on, a statement of claim must so far as possible be limited to the allegations or conclusions of fact on which the plaintiff relies in seeking the relief requested. These allegations must in due course be proven by the filing of documents, the examination for discovery and finally the evidence submitted at trial. |
| In the case at bar the statement of claim consisted of 23 pages, including 73 paragraphs, and appeared to relate to a case which seemed to the Court to be straightforward. Instead of containing only allegations on which the plaintiff sought to base his claim for damages, the statement of claim was filled with a large number of incidents, unnecessary or non-evidentiary details, comments, arguments and speculative and interrogatory statements, which should not form part of a statement of claim. |
| Most of the paragraphs in the said statement of claim could be struck out pursuant to Rule 419 (b), (c), (d) and (f) on the ground that they are immaterial or redundant, scandalous, frivolous or vexatious, might prejudice, embarrass or delay the fair trial of the action or are an abuse of process. However, the statement of claim could not be amended without further complicating the already overly complex proceedings. It will therefore have to be completely struck out pursuant to Rule 419(1)(a). |
| . . . . . |
| Attempting to resolve the sufficiency or insufficiency of the statement of claim in the present circumstances would only serve to needlessly prolong the proceedings and occasion a loss of time and additional expense for both parties without good reason. |
| For these reasons, I have dismissed both motions without costs and struck out ex proprio motu the statement of claim without prejudice to the plaintiff's right to file a new statement of claim in this case if he sees fit. |
| [My emphasis.] |
[4] In accordance with the ruling in the order, the plaintiff filed a new statement of claim in the record of the Court on March 12, 1990: it is this statement of claim which is the subject of the instant motion to strike, filed following a status review.
[5] Though very short, this new statement of claim essentially repeated the same material as the one struck out. In particular, the plaintiff alleged that the Public Service Commission systematically rejected his candidacy when he applied in a job competition. Further, the plaintiff alleged breaches of s. 10 of the Public Service Employment Act, R.S.C. 1985, c. P-33, and s. 15 of the Canadian Charter of Rights and Freedoms ("the Charter").
PARTIES' ARGUMENTS
Defendant (applicant in the instant motion)
[6] To begin with, the defendant argued that the instant action is res judicata since the statement of claim filed following the order by Addy J. only restated the allegations contained in the preceding statement of claim, which was struck out as disclosing no valid cause of action.
[7] The second argument made by the defendant to justify striking the plaintiff's statement of claim is that it disclosed no valid cause of action and should therefore be struck pursuant to Rule 221(1)(a) of the Federal Court Rules, 1998 ("the Rules"), which reads as follows:
| 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
and may order the action be dismissed or judgment entered accordingly. (2) No evidence shall be heard on a motion for an order under paragraph (1)(a). [Emphasis mine] |
221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :
Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence. (2) Aucune preuve n'est admissible dans le cadre d'une requête invoquant le motif visé à l'alinéa (1)a). [Mes soulignés] |
[8] The defendant maintained that the plaintiff was unable to establish the basis of his action in fact and in law, namely a systematic refusal by the defendant to consider his employment applications. Further, the defendant argued that a mere allegation of a systematic refusal cannot as such be a cause of action.
[9] Further, the defendant alleged that the plaintiff's statement of claim did not set out the material facts on which he based his action for damages and so did not meet the requirements of Rule 174 of the Rules. It was argued that the statement of claim contained no fact establishing the existence of a systematic refusal to consider the plaintiff's employment applications, a breach of the rules laid down in s. 10 of the Public Service Employment Act, R.S.C. 1985, c. P-33, and a breach of s. 15 of the Charter. Rule 174 reads as follows:
| 174. Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved. |
174. Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l'appui de ces faits. |
|
[10] Finally, the defendant opposed the motion to amend the statement of claim filed by the plaintiff in response to the instant motion, on the ground that this was an abuse of process by the latter since the amendments sought required him to have alleged further facts when filing the statement of claim in question. Additionally, the defendant argued that the amendments suggested by the plaintiff in his reply were in fact the same allegations that had been struck out by Addy J.
The plaintiff (respondent in the instance motion)
[11] The plaintiff admitted that he filed an incomplete statement of claim as it did not in fact set out all the material facts giving rise to a cause of action, and asked the Court for leave to amend his statement of claim and add allegations regarding certain facts.
[12] In order to explain the irregularities in his statement of claim and demonstrate why the amending motion should be allowed, the plaintiff maintained that at the time the statement of claim was filed he was suffering from an emotional illness which he said resulted from the actions of the defendant's representatives toward him.
ANALYSIS
Striking out of plaintiff's statement of claim filed on March 12, 1990
[13] As I mentioned above, to justify striking the statement of claim the defendant relied on the fact that the new statement of claim, filed on March 12, 1990, is in reality only a summary of the previous one that was struck out by Addy J. as disclosing no valid cause of action. The defendant accordingly suggested that the Court strike the statement of claim on the ground that these were the same arguments, the same issues and hence the same case. In her view, the new statement of claim cannot be admitted in light of the rule of res judicata.
[14] However, I cannot attach any value to this argument since the Court, per Addy J., authorized the plaintiff to file a new statement of claim if he saw fit. Addy J. did not consider the issues and did not make a decision on their merits. The new statement of claim must therefore be considered as a new pleading, as it claims to be. Accordingly, I conclude that the rule of res judicata does not apply here.
[15] I note that the essential argument made by the defendant to justify striking the statement of claim is the lack of a valid cause of action. The gist of the rule of law applicable on this point was set out by the Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at 980:
| . . . assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? |
[16] After analysing the statement of claim, and assuming that the facts alleged are true, I am obliged to conclude that there is in fact no valid cause of action and so there is no justification for proceeding with the action, since it has no chance of being allowed. The statement of claim, which contains 12 allegations in all, is just a statement of facts, devoid of the material facts which could be the basis for a cause of action either pursuant to the Public Service Employment Act or on account of a breach of the plaintiff's rights under the Charter. I therefore conclude that the statement of claim should be struck out for this reason (Vojic v. M.N.R., [1987] 2 C.T.C. 203, 87 D.T.C. 5384 (F.C.A.)).
Amendment of plaintiff's statement of claim filed on March 12, 1990
[17] Having concluded that it would be proper to strike the statement of claim, should the Court allow Mr. Kibale's application asking it to again authorize the filing of a new statement of claim? In this connection, the applicant did not even file a draft of the amended pleading, so the Court could assess the requested amendments and the opposing party could consider them. On the contrary, in support of his motion to amend his statement of claim the plaintiff filed a series of somewhat incoherent allegations, which did not necessarily constitute material facts and which also recalled the deficiencies noted earlier by Addy J.
[18] We may feel sympathy for the plaintiff, who by his own admission was ill and confused when he tried to amend his statement of claim to comply with the order of Addy J. However, by acting in this way, that is by attempting to assert his rights again by himself and under such circumstances, Mr. Kibale wasted an exceptional opportunity offered by this Court without taking into account the consequences of his action. Such opportunities will not be offered indefinitely. In fact, allowing the plaintiff's motion at this advanced stage simply on the basis of a series of vague allegations would in my opinion be an abuse of process. Consequently, I cannot allow the plaintiff to file a new statement of claim along the lines he proposes.
CONCLUSION
[19] For all these reasons, the motion to strike the statement of claim is allowed. The motion to amend is dismissed and the action is dismissed. Costs were not requested and the Court awards none.
Roza Aronovitch
Prothonotary
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-2652-89 |
| STYLE OF CAUSE: GUILLAUME KIBALE v. HER MAJESTY |
| THE QUEEN |
WRITTEN MOTION CONSIDERED WITHOUT APPEARANCE BY PARTIES
| REASONS FOR ORDER BY: PROTHONOTARY ARONOVITCH |
| DATED: AUGUST 17, 2000 |
WRITTEN SUBMISSIONS BY:
GUILLAUME KIBALE FOR HIMSELF
GREG MOORE FOR THE DEFENDANT
SOLICITORS OF RECORD:
GUILLAUME KIBALE FOR HIMSELF
NEPEAN, ONTARIO
MORRIS ROSENBERG FOR THE DEFENDANT
DEPUTY ATTORNEY GENERAL
OF CANADA
OTTAWA, ONTARIO
__________________* No translation of quotation available when judgment translated - TR.