Date: 20160125

Docket: T-1557-15

Citation: 2016 FC 93

Toronto, Ontario, January 25, 2016

PRESENT: The Honourable Mr. Justice Southcott

BETWEEN:

DAVID RAYMOND AMOS

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

ORDER AND REASONS

[1] This is a motion by the Plaintiff, appealing an Order of Prothonotary Richard Morneau

dated November 12, 2015, which struck out the Plaintiffs Statement of Claim on the basis that it

disclosed no cause of action and was vexatious.

[2] For the reasons that follow, this motion is allowed in part.
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I. Preliminary Matter

[3] At the beginning of the hearing of this matter, the Plaintiff raised the question whether I

would be in a conflict of interest in hearing his motion. He advised that some of the evidence,

which he considers to support his action, was previously provided to members of my former law

firm and that he had discussed jurisprudence related to cyberbullying with some of these

individuals. He raised the possibility of communication between me and my former colleagues

on this evidence. The Plaintiff confirmed that, while he was raising this for my consideration, he

was not asserting that I was in a conflict of interest or asking me to recuse myself but was

leaving this decision to my discretion. The Defendant confirmed that it did not have concerns

regarding any conflict of interest arising from the circumstances described by the Plaintiff.

[4] I advised the parties that I did not have concerns about conflict of interest arising from

the circumstances the Plaintiff had described and that I would proceed to hear his motion. For the

record, I confirm that I have had no discussions about the Plaintiff or any of the above-

mentioned evidence with any former colleagues and that I had no prior knowledge of that

evidence. The relevant test is whether the circumstances described by the Plaintiff create a

reasonable apprehension of bias, taking into account what an informed person would conclude,

viewing the matter realistically and practically and having thought the matter through (see

Justice de Grandpres dissenting judgment in Committee for Justice and Liberty et al v National

Energy Board et al, [1978] 1 SCR 369 at page 394). I am unable to identify an apprehension of

bias based on these circumstances.

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II. Background

[5] The Plaintiff has filed a 53-page Statement of Claim against Her Majesty the Queen,

claiming $11 million in damages and a public apology from the Prime Minister and provincial

Premiers, for being illegally barred from access to parliamentary properties, and seeking a

declaration from the Minister of Public Safety that the Canadian government will no longer

allow the RCMP and the Canadian forces to harass him and his clan.

[6] The Defendant filed a motion seeking an Order striking out the Statement of Claim

without leave to amend. In granting the Defendants motion on the basis that the Statement of

Claim disclosed no cause of action and was vexatious, the Prothonotary indicated that he agreed

with the analysis contained in the following paragraphs of the Defendants written

representations:

17. Within the 96 paragraph Statement of Claim, the Plaintiff

addresses his complaint in paragraphs 14-24, inclusive. All but
four of those paragraphs are dedicated to an incident that occurred
in 2006 in and around the legislature in New Brunswick. The
jurisdiction of the Federal Court does not extend to Her Majesty
the Queen in right of the Provinces. In any event, the Plaintiff
hasnt named the Province or provincial actors as parties to this
action. The incident alleged does not give rise to a justiciable cause
of action in this Court.

()

21. The few paragraphs that directly address the Defendant

provide no details as to the individuals involved or the location of
the alleged incidents or other details sufficient to allow the
Defendant to respond. As a result, it is difficult or impossible to
determine the causes of action the Plaintiff is attempting to
advance. A generous reading of the Statement of Claim allows the
Defendant to only speculate as to the true and/or intended cause of
action. At best, the Plaintiffs action may possibly be summarized
as: he suspects he is barred from the House of Commons.
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[footnotes omitted]

III. Plaintiffs Position

[7] In his written representations filed in support of this motion, the Plaintiff explained that,

in response to the Defendants motion to strike, he had requested an oral hearing before a judge.

He also takes the position that the Prothonotary did not have the authority under Rule 50 of the

Federal Court Rules, SOR/98-106 to render a final judgment in this matter without the consent

of the parties.

[8] On the merits of his claim, the Plaintiff takes issue with the Prothonotarys conclusion

that his Statement of Claim discloses no reasonable cause of action. The Plaintiff argues that he

is still barred today from access to parliamentary properties and public records buildings and that

the Queen of England rules over every jurisdiction in Canada. He also takes the position that due

process of law prevents summary dismissal of his Statement of Claim without an opportunity for

him to present evidence in support. He includes in his Motion Record an affidavit and exhibits

upon which he wishes to rely.

[9] While the Plaintiffs Notice of Motion raises only his appeal of the Prothonotarys Order,

his written representations also seek an order that the Defendant be found in default and that 11

million dollars plus costs of the motion before the Prothonotary and this motion be awarded to

the Plaintiff.
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IV. Defendants Position

[10] The Defendant argues that the Prothonotary had the authority under Rule 50 to dismiss

the Statement of Claim and to do so without an oral hearing. It is also the Defendants position

that, under Rule 221(2), no evidence shall be heard on a motion to strike a claim for disclosing

no reasonable cause of action.

[11] The Defendants position is that it is plain and obvious that the Plaintiffs claim cannot

succeed. The arguments in support of this position are summarized in the paragraphs quoted

above that the Prothonotary recited from the Defendants written representations. The Defendant

also notes that the claim appears to rely on Section 24(1) of the Canadian Charter of Rights and

Freedoms as the basis for the relief sought and submits that the allegations of Charter violations

are so vague and deficient that his causes of action cannot be maintained as pleaded.

[12] The Defendant also takes the position that the Plaintiffs claim is statue-barred as the

exclusion from legislative properties allegedly occurred in 2004 and 2006, is frivolous as it is

based on no rational argument supported by the evidence or law, and is vexatious as the

Statement of Claim refers to the Plaintiff bringing this action to see if he will be barred from

parliamentary property before polling day in the recent federal election.

[13] In the Defendants submission, the defects in the Statement of Claim cannot be cured by

amendment, as there is no basis in law to support a cause of action even if the Plaintiff were to

provide more detail surrounding his factual allegations.

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[14] In the alternative, if the appeal were to be allowed, the Defendant seeks an extension of

time to file a Defence to the claim.

V. Issues and Standard of Review

[15] The Federal Court of Appeal in Merck & Co v Apotex Inc, 2003 FCA 488, formulated as

follows at paragraph 19 the test for the standard of review by Federal Court judges of

prothonotaries decisions:

Discretionary orders of prothonotaries ought not be disturbed on

appeal to a judge unless:

a) the questions raised in the motion are vital to the final issue of
the case, or

b) the orders are clearly wrong, in the sense that the exercise of
discretion by the prothonotary was based upon a wrong
principle or upon a misapprehension of the facts.

[16] If the questions raised in the motion are vital to the final issue of the case, then the judge

must exercise his or her discretion de novo. The Defendant has acknowledged that, as the

Prothonotarys decision disposed of the action, it was vital to the final disposition of the case,

and this appeal should therefore be conducted as a review de novo.

[17] This motion raises the following issues:

A. Whether the Plaintiff is entitled to rely on his affidavit evidence in support of this

motion;

B. Whether the Statement of Claim fails to disclose a reasonable cause of action;

C. Whether the Statement of Claim is frivolous or vexatious; and

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D. Whether the Plaintiff is entitled to default judgment.

VI. Analysis

A. Evidentiary Ruling

[18] I ruled at the hearing that I would not consider the new evidence which the Plaintiff

wished to introduce in support of his motion. While the appeal before me is to be conducted as a

review de novo, the law is clear that, barring exceptional circumstances, such review is to be

conducted based on the evidence that was before the Prothonotary when he made his Order (see

Hung c Canada (Procureur Gnral), 315 FTR 67 [Hung], affirmed, 2007 FCA 17).

[19] Exceptional circumstances permitting introduction of new evidence would require that

the evidence could not have been made available earlier, its introduction will serve the interests

of justice, it will assist the Court, and it will not seriously prejudice the other side (see Mazhero v

Canada (Industrial Relations Board), 2002 FCA 295). There are no exceptional circumstances in

the present case that would warrant departing from the principle in Hung. The evidence could

have been made available in response to the motion before the Prothonotary, and the decision

under appeal turns on the allegations in the Statement of Claim, not on the availability of

evidence to support such allegations.

B. Jurisdiction of Prothonotary

[20] The Plaintiffs argument that the Prothonotary did not have the authority to issue the

Order under appeal is based on Rule 50(1)(c)(i), which provides that a Prothonotary cannot hear
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a motion for summary judgment or summary trial, other than in an action where the amount

claimed does not exceed $50,000. However, the Defendants motion was not a motion for

summary judgment or summary trial, for which Rule 213 provides, but rather a motion to strike

under Rule 221. It was therefore within the Prothonotarys jurisdiction and this argument must

fail.

C. Requirement for Oral Hearing

[21] The motion heard by the Prothonotary was filed in writing under Rule 369. While Rule

369(2) allows a respondent to a motion in writing to object to the motion being disposed of in

writing, Rule 369(4) then allows the Court either to dispose of the motion in writing or to fix a

time and place for an oral hearing. The Prothonotary referred in his Order to being satisfied that

the Court could adjudicate the motion without an oral hearing and was entitled by the Rules to

reach this conclusion.

D. Failure to Disclose Cause of Action

[22] I agree with the Defendants assertion in its written representations that the Plaintiffs

Statement of Claim is repetitive and contains numerous irrelevant and extraneous allegations.

However, as noted in those representations, in the Prothonotarys Order, and in the Plaintiffs

oral submissions before me, the claim focuses significantly on allegations that the Plaintiff has

been barred from the legislature in New Brunswick. The Prothonotary adopted the Defendants

position that the jurisdiction of the Federal Court does not extend to Her Majesty the Queen in

right of the Provinces. This is of course correct.

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[23] However, as I raised with the Defendants counsel at the hearing, the Statement of Claim

alleges that the actors, who barred the Plaintiff from the New Brunswick legislature in 2004,

included the Royal Canadian Mounted Police [RCMP]. Under Section 17 of the Federal Courts

Act, RSC 1985, c F-7 [Act], the Federal Court does have jurisdiction over claims against the

federal Crown based on liability of servants of the federal Crown such as the RCMP. I would

therefore have difficulty in striking out the Statement of Claim on the basis adopted by the

Prothonotary and have accordingly considered, as I must on a hearing de novo, whether the other

arguments raised by the Defendant warrant the action being struck.

[24] Focusing on the final paragraph of the Statement of Claim in which the Plaintiff sets out

the relief he seeks, I am aware of no basis on which the Court would have authority to order

either (i) a public apology by the Prime Minister and each Premier for the illegal barring of a

citizen from parliamentary properties or (ii) a declaration from the Minister of Public Safety that

the Canadian government will no longer allow the RCMP and the Canadian forces to harass him.

Therefore these claims for relief should be struck as failing to disclose a reasonable cause of

action.

[25] I also agree with the Defendant that much of the Statement of Claim does not conform to

the rules of pleading, which require a concise statement of the material facts upon which the

party relies and not including evidence by which such facts are to be proven (see Rule 174). As

argued by the Defendant, this makes it difficult for the Defendant to know the intended cause of

action to which it must respond. Other than in relation to the allegation of having been barred

from the New Brunswick legislature in 2004, this conclusion extends to the claims related to
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being barred from legislative properties. I do not consider these claims to be capable of

benefiting from amendment.

[26] I also note that the allegation of having been barred from the New Brunswick legislature

in 2006 does not allege involvement of any servants of the federal Crown, and the Statement of

Claim expresses uncertainty related to the Plaintiff being barred from the House of Commons.

[27] My conclusion is that, other than in relation to the allegation of having been barred from

the New Brunswick legislature in 2004, the claims related to being barred from legislative

properties should be struck as failing to disclose a reasonable cause of action. However, I cannot

reach this same conclusion with respect to the Plaintiffs claim for damages (in some amount) for

what appears to be his principal complaint, that he was barred from the New Brunswick

legislature in 2004 for political rather than legal reasons. The Statement of Claim does contain

some precision in relation to the Plaintiffs principal complaint, as paragraph 14 of the Statement

of Claims identifies the date on which he alleges he was barred from the New Brunswick

legislature and identifies, although not by name, the alleged participants in this event, including

the RCMP officer acting as Aide-de-Camp to the Lieutenant Governor of New Brunswick.

[28] I must therefore consider whether this event, as pleaded by the Plaintiff, is capable of

supporting a cause of action. As acknowledged by the Defendant, in considering this question I

must give the Statement of Claim a generous reading (Paradis Honey Ltd v Canada (Minister of

Agriculture and Agri-Food), 2015 FCA 89). This is particularly so, given that the Plaintiff is

self-represented. I am unable to conclude that the Defendant has met the high burden necessary
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to have this component of the action struck. Although the Plaintiff has not articulated a specific

legal theory for the cause of action upon which he bases his claim for damages arising from

being barred from the New Brunswick legislature, this does not preclude a cause of action being

supported by his stated allegations. As an example, I raised with the Defendants counsel during

the hearing the tort of misfeasance in public office addressed in Meigs v Canada, 2013 FC 389

[Meigs], one of the cases cited by the Defendant on this motion. At paragraph 13 of that case,

this Court identified the elements of that tort as follows:

[13] As in both the cases of Odhavji Estate v Woodhouse, 2003

SCC 69 [Odhavji] and Lewis v Canada, 2012 FC 1514 [Lewis], I
must determine whether the plaintiffs statement of claim pleads
each element of the alleged tort of misfeasance in public office:

a) The public officer must have engaged in deliberate and unlawful

conduct in his or her capacity as public officer;

b) The public officer must have been aware both that his or her
conduct was unlawful and that it was likely to harm the plaintiff;
and

c) There must be an element of bad faith or dishonesty by the

public officer and knowledge of harm alone is insufficient to
conclude that a public officer acted in bad faith or dishonestly.

Odhavji, above, at paras 23, 24 and 28

[29] In Meigs, the Statement of Claim was struck out as failing to disclose material facts

necessary to meet the elements of this test related to the public officers statement of mind.

However, in the case at hand, the Plaintiff has alleged that those who barred him from the

legislature in 2004, including the police (which the Plaintiff states includes the RCMP), did so

for political reasons. I am of course reaching no conclusion as to the truth of these allegations or

the damages claimed by the Plaintiff. However, reading the Statement of Claim generously and

with the presumption of truth required on this motion, I cannot conclude that, were the
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allegations true, it is plain and obvious that such allegations could not support a cause of action

which sounds in some measure of damages, nominal or otherwise.

E. Limitation Period

[30] The Defendant notes that the allegations involving the RCMP and the New Brunswick

legislature occurred in 2004 and therefore argues any resulting claim is barred by the six year

federal limitation period prescribed by section 39(2) of the Act. However, as acknowledged by

the Defendant at the hearing, other than in exceptional circumstances, a statute of limitations is

not a basis for a motion to strike but rather should be raised in a defence and argued after the

plaintiff has had an opportunity to reply (see Kibale v The Queen (1990), 123 NR 153 (FCA) and

Byer v Canada, 2002 FCT 684).

[31] I do not consider exceptional circumstances to apply to this case that would warrant

departing from the usual practice of waiting until after pleadings are closed to raise the

application of a limitation period. In reaching this conclusion, I note in particular that the Court

has not yet had the benefit of argument on whether the applicable limitation period is one

applicable under the laws of New Brunswick as contemplated by section 39(1) of the Act, as

opposed to the federal period under section 39(2) of the Act relied on by the Defendant, or on the

potential for extension of the applicable period.

F. Frivolous and Vexatious

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[32] Finally, I cannot agree with the Defendants arguments that the allegations surrounding

the Plaintiff being barred from the New Brunswick legislature are frivolous and vexatious. The

Defendant argues the claim is frivolous, as there is a scarcity of law pleaded. However, in my

view, the analysis should focus on the facts that have been pleaded and, as noted above, I cannot

conclude that it is plain and obvious that the facts pleaded are not capable of supporting a cause

of action.

[33] The Defendant also argues the claim is vexatious, as the Statement of Claim refers to the

Plaintiff wanting to see if he will be barred from parliamentary property before polling day in the

recent federal election. While this does suggest mixed motives in filing the action, the Plaintiff

has also claimed damages, such that it cannot be said that the claim cannot lead to any practical

result.

G. Default Judgment / Extension of Time to File Defence

[34] In summary, the Plaintiffs appeal is allowed in part, as my conclusion is that the

Statement of Claim cannot be struck in its entirety. The Plaintiffs allegations related to having

allegedly been barred from the New Brunswick legislature in 2004 by actors including the

RCMP survive the motion to strike. When filing its original motion to strike which was heard by

the Prothonotary, the Defendant indicated an intention to defend this action if its motion was not

successful. It is therefore not appropriate to grant default judgment as requested by the Plaintiff

but rather is appropriate to grant the Defendant a suitable period of time to file a Statement of

Defence. I will afford the Defendant 30 days from the date of my Order or the date of any

decision resulting from any appeal of my Order.

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[35] Without the benefit of argument from the parties as to the effect, on a paragraph-by-

paragraph basis in the Statement of Claim, of a decision that preserves a portion of the Plaintiffs

claim, my Order will reflect that the claims for relief in the final paragraph of the Statement of

Claim are struck except for the claim for monetary relief for allegedly being barred by the RCMP

from the New Brunswick legislature in 2004. However, I recognize that, before filing a

Statement of Defence, the Defendant may wish to present a motion arguing which specific

paragraphs of the Statement of Claim should be struck in order to accord with my decision. As

such, my Order will provide that the Defendant is at liberty to do so and that the time for filing a

Statement of Defence will also take any such motion into account.

H. Costs

[36] Given the divided success on this appeal, no costs will be awarded.
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ORDER

THIS COURT ORDERS that:

1. the Plaintiffs appeal is allowed in part;

2. the Order of Prothonotary Morneau dated November 12, 2015 is set aside;

3. the claims for relief in the final paragraph of the Plaintiffs Statement of Claim are

struck without leave to amend, with the exception of the claim for monetary relief

for allegedly being barred by the RCMP from the New Brunswick legislature in

2004;

4. the Defendant is at liberty to present a motion, to be filed within 30 days of the

date of this Order or any decision resulting from any appeal of this Order, arguing

which specific paragraphs of the Statement of Claim should be struck in order to

accord with my decision;

5. the time for the Defendant to file a Statement of Defence is extended to 30 days

from the later of the date of this Order, the date of any Order resulting from a

motion by the Defendant arguing which specific paragraphs of the Statement of

Claim should be struck in order to accord with my decision, and the date of any

decision resulting from any appeal of either such Order; and

6. No costs are awarded on this motion.

"Richard F. Southcott"
Judge
 FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: T-1557-15

STYLE OF CAUSE: DAVID RAYMOND AMOS v HER MAJESTY THE

QUEEN

PLACE OF HEARING: FREDERICTON, NEW BRUNSWICK

DATE OF HEARING: JANUARY 11, 2016

ORDER AND REASONS: SOUTHCOTT J.

DATED: JANUARY 25, 2016

APPEARANCES:

David Raymond Amos FOR THE PLAINTIFF

(SELF-REPRESENTED)
Jill Chisholm FOR THE DEFENDANT

SOLICITORS OF RECORD:

William F. Pentney FOR THE DEFENDANT

Deputy Attorney General of
Canada