Date: 20050317
Docket: T-1680-04
Citation: 2005 FC 382
Montréal, Quebec, March 17, 2005
Present: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
DIANE GAUDREAULT
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] This case concerns the defendant’s motion in writing to strike the plaintiff’s amended statement of claim (the statement) and to dismiss the action in accordance with paragraph 221(1)(a) of the Federal Courts Rules (the Rules) on the ground that the statement discloses no cause of action.
[2] As indicated in subsection 221(2) of the Rules, no evidence shall be heard on a motion under paragraph 221(1)(a). Ever since Attorney General of Canada v. Inuit Tapirisat, [1980] 2 S.C.R. 735, it has been trite law that before a statement can be struck, it must be plain and obvious from merely reading it that the statement discloses no cause of action.
[3] Having chosen to proceed only under paragraph 221(1)(a) of the Rules, the defendant must now live with that approach, which in the case at bar becomes a kind of constraint, since only the statement can be considered.
[4] I am not persuaded that it is plain and obvious from merely reading the statement that it discloses no cause of action. The defendant seeks to achieve this result essentially by analysing details provided by the plaintiff based on documents provided by the plaintiff and more comprehensive documents apparently possessed by the defendant. Here, we are slipping into an evidentiary exercise that goes beyond the procedure allowed under paragraph 221(1)(a) of the Rules.
[5] Turning now to the argument based on prescription — and while it is extremely interesting, since the actions ascribed to the defendant relate to the breach of duty of an employee of the defendant concerning an insurability investigation conducted by that employee around May 1996 — it cannot be clearly established from the statement alone that the plaintiff was aware of the breach of duty at the time and not more recently, which would mean that the action would not be prescribed. The plaintiff’s examination on discovery could provide additional information on that point. If this is the case, the defendant may in future wish to refile a summary motion for dismissal of the plaintiff’s action, in whole or in part .
[6] As for the defendant’s contention that the statement should be struck because the defendant finds it incomprehensible and impossible to respond to, the defendant’s own motion now under review and the representations contained therein demonstrate that, when all is said and done, the defendant understands the plaintiff’s action sufficiently. Therefore, the defendant is capable of producing a defence here, even though the statement filed by the plaintiff (who is representing herself) is far from a masterpiece of writing.
[7] Apart from the motion to strike relating to the closure of files 97-332(UI) and 97-333(UI) discussed below, the defendant’s present motion is accordingly dismissed without costs. However, the Court strikes the remedy drafted by the plaintiff in the following terms on the last page of her statement: [TRANSLATION] “(a) To close the dockets bearing the numbers 97‑332‑(UI) and 97-333-(UI) respectively”, as this remedy falls within the jurisdiction not of this Court, but of the Tax Court of Canada.
[8] The plaintiff should, however, note that the present decision by this Court does not imply support for the merit of the plaintiff’s action in any way and that it will be up to the plaintiff to establish eventually that the defendant really was at fault through its employees and that, if it was at fault, the plaintiff’s damages really were in the amount of $2,187,349.41.
[9] The parties shall, within twenty (20) days of the date of this order, submit to the Court — jointly if possible — a schedule in the form of a draft order outlining subsequent measures to be taken in this case. Any schedules proposed by the parties shall be limited to essential measures.
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Richard Morneau |
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Prothonotary |
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-1680-04
DIANE GAUDREAULT
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
MOTION IN WRITING CONSIDERED AT MONTRÉAL WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: March 17, 2005
WRITTEN SUBMISSIONS BY:
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Diane Gaudreault |
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FOR THE PLAINTIFF |
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Pauline Leroux |
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FOR THE DEFENDANT |
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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FOR THE DEFENDANT |
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