Date: 20011018
Docket: T-1119-01
Neutral citation: 2001 FCT 1128
Montreal, Quebec, October 18, 2001
Present: Richard Morneau, Esq., Prothonotary
BETWEEN:
STEPHEN M. BYER
Plaintiff
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion in writing on behalf of the Defendant under rule 221(1)(a) of the Federal Court Rules, 1998 (the rules) for an order striking out the Plaintiff's Statement of Claim (the claim) on the ground that it discloses no reasonable cause of action.
[2] Alternatively, the Defendant requests that, should her motion be dismissed, she be granted an additional thirty (30) days for service and filing of her Statement of Defence.
[3] It is trite law that on a motion under rule 221(1)(a), all the facts and allegations in the Statement of Claim must be deemed to have been proven.
[4] Additionally, as indicated by Decary, J.A. in Sweet et al. v. Canada (1999), 249 N.R. 17, at 23:
Statements of claim are struck out as disclosing no reasonable cause of action only in plain and obvious cases and where the court is satisfied that the case is beyond doubt (see Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R. (3d) 1, at 740 [S.C.R.]; Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R. (4th) 481; 12 Admin. L.R. 16 and Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 49 B.C.L.R. (2d) 273; 74 D.L.R. (4th) 321).
[4] In the case at bar, the Defendant submits that the Plaintiff has not provided in his claim a statement of the facts upon which his action is based and that there is no indication therein as to the nature of the damages suffered by the Plaintiff.
[5] I cannot agree with the Defendant's submission for I think that she misunderstands in her motion the approach taken by the Plaintiff in his claim.
[6] According to my understanding of the Defendant's central arguments, she argues that it was not sufficient for the Plaintiff to refer in paragraph 3 of his claim to a document he sent to her (the Liability Claim document) allegedly containing all the facts supporting his claim but that he should have detailed in the text per se of his claim all the facts or events on which he bases his claim.
[7] However, as I read the Plaintiff's claim, it is based not on acts of the Defendant which had allegedly occurred within the Government operations and which were allegedly described in his Liability Claim document but on the intentional failure on the part of the Defendant to assess in accordance with her policy on claims the Liability Claim document submitted by the Plaintiff.
[8] The failure to assess appears to be the driving ground of the Plaintiff's claim. As I read the Plaintiff's claim, most of the paragraphs contained therein describe or refer to that said failure.
[9] Therefore, I cannot conclude based on the approach adopted by the Defendant in her motion that it is clear and obvious that the Plaintiff's claim discloses no reasonable cause of action.
[10] Whether the allegedly failure on the part of the Defendant to assess the Plaintiff's Liability Claim document in accordance with her policies is an actionable tort is not an argument which has been advanced by the Defendant in the within motion. Therefore, I shall refrain from coming to any conclusion on this point.
[11] Consequently, the Defendant's motion to strike out the Plaintiff's claim is dismissed, with costs in the cause.
[12] The Defendant shall have thirty (30) days from the date of the present Reasons for Order and Order to serve and file a Statement of Defence.
Richard Morneau
Prothonotary
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-1119-01
STEPHEN M. BYER
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
WRITTEN MOTION EXAMINED IN MONTREAL WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ORDER OF:Richard Morneau, Esq., Prothonotary
DATED:October 18, 2001
WRITTEN OBSERVATIONS BY:
| Mr. Stephen M. Byer |
for the Plaintiff |
|
| Mr. Daniel Latulippe |
for the Defendant |
|
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg Deputy Attorney General of Canada |
for the Defendant |
|