Date: 20160512

Docket: T-1748-15

Citation: 2016 FC 539

Vancouver, British Columbia, May 12, 2016

PRESENT:    The Honourable Mr. Justice Hughes

BETWEEN:

DAVID M. SHEBIB, DAVID ARTHUR JOHNSTON, LOUIS LESOSKY

Plaintiffs

and

HER MAJESTY THE QUEEN, MINISTER OF JUSTICE, ATTORNEY GENERAL OF CANADA, LEADER OF THE GOVERNNMENT IN THE HOUSE OF COMMONS, CHIEF ELECTORAL OFFICER OF CANADA, VICTORIA BEACON HILL RIDING RETURNING OFFICER

Defendants

JUDGMENT AND REASONS

[1]               There are two motions before the Court, one brought by the Defendants Margot Briggs misidentified as the Defendant “Victoria Beacon Hill Riding Returning Officer” and The Chief Electoral Officer of Canada, to have the action against them dismissed. The remaining Defendants have brought a motion to strike the Statement of Claim and the action or to grant an extension of time to file a Defence. I will strike the action as against all Defendants for the reasons set out below.

[2]               The Plaintiffs are three individuals residing in British Columbia. They are self-represented. At the hearing before me only the Plaintiff Shebib appeared. He is not a lawyer, but is entitled to represent himself and speak on his own behalf. Shebib said that he was “authorized” to speak on behalf of the other two Plaintiffs but, since he is not a lawyer, he cannot do so in this Court. I heard Shebib speak on his own behalf and presume that, if the other two Plaintiffs were to have been present, they would have made the same submissions.

[3]               I have read the materials filed on behalf of each party. The Defendants were represented by lawyers at the hearing and made brief submissions as I indicated that, having heard the Plaintiff Shebib, I would be prepared to rely upon the evidence and materials filed on behalf of each group of Defendants.

[4]               The Amended Statement of Claim filed by the Plaintiffs as well as the other material filed by them on these motions are unconventional in form and, in many respects, difficult to understand and follow. As best as can be understood the three Plaintiffs intended to stand as candidates for election in the federal election held in the fall of 2015. One of them, Shebib, presented himself for that purpose to the returning officer for the federal electoral district of Victoria in British Columbia. The officer was Margot Briggs who is presumably misidentified in the Statement of Claim as “Victoria Beacon Hill Riding Returning Officer”. Shebib’s nominating papers were refused. He was accompanied by an “agent” but did not have an auditor as required to be appointed, nor did he have the names, addresses and signatures of at least 100 persons entitled to vote in the riding, nor did he pay or offer to pay a deposit of $1000.00 or any other amount, all as required by the Canada Elections Act, SC 2000, c. 9. There is no submission in the Amended Statement of Claim that either of the other two Plaintiffs, Johnston or Lesosky, had also presented themselves to be accepted as candidates. With respect to the Plaintiff Johnston, paragraph 2(e) of the Amended Statement of Claim says:

e) Plaintiff David Arthur Johnston’s belief and practice has been for the past 12 years to not use money, he never uses money, so the mandatory requirement for payment of an auditor violates his ‘rights’ section 2. Everyone has the following fundamental freedoms: (a) freedom of conscience… (b) freedom of thought, belief, opinion…

[5]               Nothing specific is stated in the Amended Statement of Claim with respect to the remaining Plaintiff, Lesosky.

[6]               The Relief sought in the Amended Statement of Claim is stated in paragraphs 4 (a) through (d):

4 Relief sought

(a) The Plaintiffs are applying to the court for leave to challenge the Canada Election Act governing the 2015 election. The Plainiffs have freedom of speech and no requirement for money can be made of them without compromising that freedom. The Plaintiffs believe that this election is false and that we were denied our constitutional rights and that our lives are now threatened by a governing system that has excluded us from our free say.

(b) Further, to ask the court to stay the results of this election. It is within the power the Act section 17-1 of Office of the Chief Election Officer to make lawful change to the act.

(c) A method provided by the Chief Electoral Officer to apply for federal Candidacy without funds. Such a Candidate be exempt from the audit requirement.

(d) Eliminate the 100 signature requirement entirely.

[7]               At the hearing the Plaintiff Shebib was asked whether he wished to pursue the Claim against the individually named Defendants rather than just name the Queen or Attorney General of Canada as Defendants. He maintained that he wanted to pursue the claim as against these individuals which he said have a duty to uphold his Charter and constitutional rights. Also Shebib was asked whether he was asking the Court to stay the results of the election just in the Victoria riding or the whole of Canada. He said the whole of Canada.

[8]               Turning first to the motion to strike brought by the Defendants except the Defendants “Victoria Beacon Hill Riding Returning Officer” (Briggs) and The Chief Electoral Officer of Canada (both of whom support the motion by the remaining Defendants) the remaining Defendants submit that the Amended Statement of Claim should be struck out on any one or more of three grounds:

1)     the Claim lacks the necessary clarity to enable the Defendants to respond to it properly;

2)     the Plaintiffs are seeking relief that cannot be granted; or

3)     the Plaintiffs have not pled the material facts necessary to support their Charter arguments.

General Considerations in Respect of Striking Pleadings

[9]               Rule 221(1) of this Court provides that a pleading may be struck out for numerous reasons:

[10]           The Supreme Court of Canada in decisions such as R v Imperial Tobacco Canada Ltd., 2011 SCC 42, at paragraph 17 and, Hunt v. Carey Canada Inc., [1990] 2 SCR 959, at paragraph 33 has set out the manner in which the Courts should approach a motion to strike under a Rule such as Rule 221 (1). I repeat paragraph 17 of R v Imperial Tobacco Canada Ltd. without the intervening citations:

A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial.

[11]           I temper these remarks with the later decision of the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, as considered by the Federal Court of Appeal in The Queen in Right of Manitoba v The Queen in Right of Canada et al., [2015] FCA 57. Both cases were concerned with summary judgment, thus are different from a motion to strike. However, the Courts are sensitive to the fact that not every case needs to “proceed to a trial” where, having regard to justice to all parties and proportionality, the case may fairly be disposed of without the necessity of a trial.

A.                Ground #1: the Claim lacks the necessary clarity to enable the Defendants to respond to it properly;

[12]           In this regard consideration must be given to sub Rule 221(1)(c) of this Court that permits an action or pleading to be struck out if it is scandalous, frivolous or vexatious. Justice Snider commented on this provision in her decision kisikawpimootewin v Canada, [2004] FC 1426, in citing Ceminchuk v Canada, [1995] FCJ. No. 914, at paragraph 8 of her Reasons:

A scandalous, vexatious or frivolous action may not only be one in which the claimant can present no rational argument, based upon the evidence or law, in support of the claim, but also may be an action in which the pleadings are so deficient in factual material that the defendant cannot know how to answer, and a court will be unable to regulate the proceedings, is an action without reasonable cause, which will not lead to a practical result.

[13]           This does not mean that a pleading that is structured in an unconventional way or that is somewhat garbled should be struck out for these reasons alone. Where there can be a reasonable understanding of the claim made, a proper remedy may well be to strike out the claim with leave to amend.

[14]           In the present case, some understanding can be given to the claims made and, were it not for my other findings herein, I would simply strike the pleading with leave to amend. However, my findings on other grounds serve to strike the claim in its entirety.

B.                 Ground #2: the Plaintiffs are seeking relief that cannot be granted;

[15]           The precise claim for relief sought by the Plaintiffs has previously been set out in these Reasons. To recast this claim for relief, the Plaintiffs want:

1)    removal of the requirement to pay money, $1000.00 or any other amount, in order to submit themselves as candidates in a federal election

2)    removal of the requirement to furnish 100 signatures, names and addresses from persons entitled to vote in the riding, before a person can submit themselves as a candidate in a federal election

3)    eliminate the requirement that the person seeking to be a candidate in a federal election have an auditor

4)    stay the fall 2015 federal election in its entirety

5)    require the Chief Electoral Officer exercise power under section 17 of the Canada Elections Act, SC 2000, c. 9 to make changes to that Act to effect the forgoing

[16]           The Chief Electoral Officer is given only limited powers under the Canada Elections Act, section 17:

[17]           That power must be exercised within 30 days after the election period and only if an emergency, an unusual or unforeseen circumstance or error makes it necessary. The 30 day period has long since passed and no such circumstance or error has been pleaded.

[18]           The Supreme Court of Canada has considered similar language in predecessor legislation respecting the powers of the Chief Electoral Officer in Haig v Canada; Haig v Canada (Chief Electoral Officer), [1993] 2 SCR. 995 where an individual claiming his right to vote in a referendum was denied because of certain residency requirements. He sought a mandamus to compel the Officer to make provisions for him to vote. L’Heureux-Dubé, for the majority wrote that the Officer’s power was contained by the provisions of the statute and did not extend to authorize fundamental departure from the legislative scheme. She wrote at pages 1025 to 1027:

According to s. 7(3) of the Referendum Act (Canada), the Chief Electoral Officer may “adapt the Canada Elections Act in such a manner as [he] considers necessary for the purposes of applying that Act in respect of a referendum”. Clearly, the discretion accorded the Chief Electoral Officer may be exercised only where adaptations of the Canada Elections Act are deemed necessary to facilitate the holding of a specific referendum. Though the Chief Electoral Officer is given a discretionary power to adapt the legislation, this power does not extend to authorize a fundamental departure from the scheme of the Referendum Act (Canada). In exercising his discretion, he must remain within the parameters of the legislative scheme.

…

Although the text of this section seems very broad, it only contemplates situations where the provisions of the legislation do not accord with particular needs arising out of any "mistake, miscalculation, emergency or unusual or unforeseen circumstance". The appellants argue that their situation, falling in the gap between the provisions of a provincial and a federal referendum, was just such an unusual and unforeseen occurrence. Clearly, it could not fall within the terms "mistake, miscalculation [or] emergency". In my view, Mr. Haig's situation is neither an unusual nor an unforeseen circumstance. The Referendum Act (Canada) expressly states that a referendum may be directed at the electors of specific provinces. The exclusion of electors not resident in those provinces on the enumeration date is the clear and unambiguous consequence of the legislative scheme adopted. It is entirely foreseeable and in no way unusual that those people who do not meet the minimal requirements set out in the legislation will not be entitled to vote, whether in a referendum or in an election.

[19]           Procedurally, any claim requiring the Chief Electoral Officer to take such action should proceed by way of an application under section 18 or 18.1 of the Federal Courts Act, RSC, 1989, c. F-7 for mandamus. Even if the Plaintiffs were to correct their procedure and make such an application they would have to show that there was a public duty owed to them by the Officer under the Canada Elections Act or other statute or at common law, to exercise that duty. No such duty has been shown to exist. The remedies sought by the Plaintiffs cannot be provided by the Officer under that Act nor any other statue on common law to which this Court has been directed. There simply is no basis for this Court to order that the Officer exercise a duty that does not exist.

[20]           Similarly, with respect to a request for a stay of the election result, that could only be addressed through a Charter challenge or under s. 52(1) of the Constitution Act, see R v Ferguson, [2008] 1 SCR. 96 at paragraphs 58 to 66. The Chief Electoral Officer has no power to stay the results of the election. I will turn to Charter and Constitutional challenges next.

C.                 Ground #3: The Plaintiffs have not pled the material facts necessary to support a Charter argument

[21]           The Plaintiffs have not specifically invoked the Charter of Rights and Freedoms in their Amended Statement of Claim; however they do speak of “rights” in terms of sections 2 and 3 of the Constitution Act. In oral submissions the Plaintiff Shebib spoke broadly as to the rights and the duty of every Canadian, including those named as Defendants, to ensure that his rights and freedoms and those of other Plaintiffs, to run as candidates in a federal election, were not thwarted, for instance by requiring an auditor, or money or 100 signatures.

[22]           A Plaintiff who relies upon the Charter must plead sufficient material facts to support the plea. Justice Rennie of the Federal Court of Appeal wrote in Mancuso v Canada (Minister of National Health and Welfare), 2015 FCA 227, at paragraph 21:

[21] There are no separate rules of pleadings for Charter cases. The requirement of material facts applies to pleadings of Charter infringement as it does to causes of action rooted in the common law. The Supreme Court of Canada has defined in the case law the substantive content of each Charter right, and a plaintiff must plead sufficient material facts to satisfy the criteria applicable to the provision in question. This is no mere technicality, “rather, it is essential to the proper presentation of Charter issues”: Mackay v Manitoba, [1989] 2 S.C.R. 357 at p. 361.

[23]           Charter cases cannot be considered in a factual vacuum. Charter cases must be carefully prepared and presented on a solid factual basis as stated by Justice Cory of the Supreme Court of Canada in Mackay v Manitoba, [1989] 2 S.C.R. 357 at p. 361-2:

The Essential Need to Establish the Factual Basis in Charter Cases

Charter cases will frequently be concerned with concepts and principles that .are of fundamental importance to Canadian society. For example issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individual will have to be considered by the courts. Decisions on these issues must be carefully considered as they wl11 profoundly affect the lives of Canadians and all residents of Canada. In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts.

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a "proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.

[24]           The Supreme Court of Canada in Figueroa v Canada (Attorney General), [2003] 1 SCR 912, at paragraphs 25 and 26 stated that section 3 of the Charter served to ensure that each citizen has the right to play a meaningful role in the electoral process. I would extend that concept to a right to offer oneself as a candidate for election.

[25]           In the present case, the Plaintiffs claim that the requirement to secure an auditor, to post money whether $1000 or otherwise, and to provide supporting signatures from 100 qualified voters impedes their right to run as candidates. They have not pleaded, however, that such requirements prevented them from placing their names as candidates only that, presumably, they find it to be inconvenient. Only the Plaintiff Johnston offers a basis upon which he says that he is prevented from running, which is, as set out in paragraphs 2(e) and 5(b) of the Amended Statement of Claim that his practice and belief for the last 12 years is not to use money so that the mandatory requirement to pay money violates his section 2 Charter rights.

[26]           As stated by the Supreme Court of Canada in Trinity Western University v College of Teachers (British Columbia), 2001 SCC 31 at paragraph 36, it is proper to draw the line between belief and conduct, the freedom to hold beliefs is broader than the freedom to act upon them. As held by Justice Brown of the Provincial Court of Alberta in R v Locke, 2004 ABPC 152 at paragraphs 22 to 27 in relying on Trinity Western, Charter protection does not extend to allowing a person to act on their individual beliefs or thoughts irrespective of otherwise valid legislation.

[27]           As to the Plaintiffs Shebib and Lesosky, they have not pleaded that they have any particular individual beliefs or thoughts that they say would preclude them from complying with the requirements of the Canada Elections Act, nor have they pleaded that it is impossible for them to do so. Section 3 of the Charter provides that every citizen has a right to vote in a federal election and to be qualified for membership in the House of Commons; section 1 of the Charter provides that such a right is subject to reasonable limits.

[28]           As stated by Professor Hogg in his book, Constitutional Law, 5^th edition, Carswell, at paragraph 38.4, the burden of proof initially lies on the person alleging a breach of Charter rights to plead that limitations are unreasonable or arbitrary.

38.4 Burden of proof

Who bears the burden of proof of factual issues in Charter litigation? At the first stage of Charter review, the court must decide whether a Charter right has been infringed. This issue is subject to the normal rules as to burden of proof, which means that the burden of proving all the elements of the breach of a Charter right rests on the person asserting the breach. In the case of those rights that are qualified by their own terms, for example, by requirements of unreasonableness or arbitrariness, the burden of proving the facts that establish unreasonableness or arbitrariness, or whatever else is part of the definition of the right, rests on the person asserting the breach.

[29]           The Plaintiffs have not pleaded that the limitations respecting an auditor, or payment of money (subject to Johnston discussed above) or 100 signatures present unreasonable limitations nor is it self-evident that they do so.

[30]           I find that, to the extent that the Amended Statement of Claim can be understood to allege breach of Charter rights, it fails to set out a proper cause of action and must be struck out.

II.                Claims against Margot Briggs misidentified as “Victoria Beacon Hill Riding Returning Officer” and Chief Electoral Officer of Canada

[31]           The Amended Statement of Claim simply alleges that the “Victoria Beacon Hill Riding Returning Officer” is a Defendant. Margot Briggs has candidly come forward and identified herself as the person probably meant to be this person. She is the acting returning officer for the federal electoral district of Victoria, British Columbia.

[32]           Ms. Briggs and the Chief Electoral Officer are separately represented from the other Defendants in the motion before me although they support and adopt the arguments of the other Defendants. Having struck out the claim on the basis of the motion of the other defendants, it is unnecessary for me to proceed to the motion of Ms. Briggs and the Chief Electoral Officer; however, I will make some comments.

[33]           For a civil servant to be named properly as an individual defendant in actions such as this, it must be pleaded that such person acted beyond or outside the scope of their duties as mandated by their office, in other words, that there has been a misfeasance of public office. It must be shown that there was deliberate unlawful conduct in the exercise of public functions and an awareness that the conduct is unlawful and likely to injure the plaintiff. Iacobucci J. wrote, for the Supreme Court of Canada in Odhavji Estate v Woodhouse, [2003] 3 SCR 263 at paragraph 32:

32        To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.

[34]           It simply has not been shown in this claim that either Ms. Briggs or the Chief Electoral Officer engaged in any conduct that would constitute a basis for a claim of misfeasance of public office. Thus, even if I were not to strike out the action entirely, I would certainly strike it out as against them.

III.             CONCLUSION AND COSTS

[35]           In conclusion, the action will be struck out in its entirety and, in any event, as against Ms. Briggs and the Chief Electoral Officer.

[36]           As to costs, I find that the Plaintiffs have been careless and even reckless in those whom they chose to name as Defendants. The Plaintiffs, in particular Shebib at the hearing, have been vocal in expressing what they view as their “rights” and those who stand in their way in their attempt to exercise those “rights”. To do so is to forget that all Canadians have rights and all Canadians, including the Plaintiffs, have obligations. We live in a structured society founded on peace, order and good government. Care must be taken in who we challenge to protect our rights; challenges are directed against the Government, not its individual public servants. When challenges are made, they must be properly articulated and presented on solid facts and evidence. In this case the Court has little more than an emotional rant by the Plaintiffs directed at whoever has come to their mind.

[37]           I appreciate that the Plaintiffs are self-represented and are probably of limited means. Nevertheless they should be made cognizant that challenges such as this should not be lightly made nor directed at whomsoever. I will award each group of Defendants costs in the sum of $5000 to be paid by the Plaintiffs jointly and severally.

JUDGMENT

FOR THE REASONS PROVIDED, THE COURT ADJUDGES that:

1.                  The Amended Statement of Claim is struck out.

2.                  The Defendants Margot Briggs and Chief Electoral Officer are to be paid costs in the sum of $5000 by the Plaintiffs jointly and severally.

3.                  The remaining Defendants are to be paid costs in the sum of $5000 by the Plaintiffs jointly and severally.

"Roger T. Hughes"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1748-15
STYLE OF CAUSE:	DAVID M. SHEBIB, DAVID ARTHUR JOHNSTON, LOUIS LESOSKY v HER MAJESTY THE QUEEN, MINISTER OF JUSTICE, ATTORNEY GENERAL OF CANADA, LEADER OF THE GOVERNNMENT IN THE HOUSE OF COMMONS
PLACE OF HEARING:	Vancouver, British Columbia
DATE OF HEARING:	May 11, 2016
JUDGMENT AND REASONS:	HUGHES J.
DATED:	May 12, 2016

APPEARANCES:

David Shebib	For The Plaintiff DAVID SHEBIB ON HIS OWN BEHALF
Robert Danay Kayla Baldwin	FOR THE DEFENDANTS HER MAJESTY THE QUEEN, MINISTER OF JUSTICE, ATTORNEY GENERAL OF CANADA, LEADER OF THE GOVERNNMENT IN THE HOUSE OF COMMONS
Martin W Bühler	For The Defendants THE CHIEF ELECTORAL OFFICER AND MARGOT BRIGGS

SOLICITORS OF RECORD:

William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia	FOR THE DEFENDANTS HER MAJESTY THE QUEEN, MINISTER OF JUSTICE, ATTORNEY GENERAL OF CANADA, LEADER OF THE GOVERNNMENT IN THE HOUSE OF COMMONS
Fraser Litigation Group Barristers and Solicitors Vancouver, British Columbia	FOR THE DEFENDANTS THE CHIEF ELECTORAL OFFICER AND MARGOT BRIGGS