Date: 20011219
Docket: T-593-00
Neutral citation: 2001 FCT 1415
BETWEEN:
ARJEN PELLIKAAN
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
[1] These reasons arise out of directions which I gave as case management prothonotary and with which the Plaintiff now takes issue.
[2] The directions dealt with various procedural matters, including a motion which the Defendant might bring to strike out portions of the Statement of Claim, depending upon what was set out in particulars to come from the Plaintiff and various steps leading to a pre-trial conference in June, 2002, at which time, the parties being ready for trial, a trial duration might be agreed upon and a trial date set.
[3] Directions are neither orders nor judgments: see Drapeau v. Canada (1997) 119 F.T.R. 146 at 149. Rather than an order or a judgment, a direction is a guiding instruction, albeit an authoritive instruction, as to interlocutory procedural steps. Directions cannot be appealed, for there is no applicable rule nor, to my knowledge, is there either any implied jurisdiction to hear the appeal of a direction or a need for an appeal mechanism. I make this latter observation because the Court may vary or revoke a direction. I believe that is what Mr. Justice Richard, as he then was, had in mind when he noted, in the Drapeau case, the view of Mr. Justice Wetston, at pages 148 and 149, to the effect that if counsel had any difficulty with a certain direction, they should bring a motion. That is what has occurred in the present instance.
[4] The Plaintiff's motion, filed 12 December 2001, is for an Order that:
(a) that a date be set for trial;
(b) that any motions to restrict the statement of claim, etc. be put before a judge; and
(c) that the defendant provide a copy of particulars in relation to an application for a federal licence to produce cheese in provinces in Canada and BC in particular.
Coupled with that motion and heard first was an oral motion to allow a lay person, Mr. Stromotich, to act as agent or as representative of the Plaintiff, to put the Plaintiff's case to the Court, from time to time, as would a lawyer acting as counsel. I denied both of the motions. However, before considering the merits of the motions and my analysis, some background material is in order.
BACKGROUND
[4] In setting down this background I have relied upon what the parties have said, upon the Statement of Claim and upon the 12 December 2001 affidavit of Mr. Pellikaan, together with attached exhibits, including a letter of 10 December 2001 addressed to the Court.
[5] As I understand it, during part of 1990 and for some time before that, Mr. Pellikaan had a substantial dairy farm consisting of some 400 dairy cows and a cheese making operation, producing products for the East Indian market. The farm and cheese manufacturing operation, which were located near Chilliwack, on leased land, were called both Khalistan Dairy Cooperative of British Columbia and Meadow Lea Farms.
[6] It appears that the Attorney General and the Ministry of Health for the Province of British Columbia commenced proceedings against Mr. Pellikaan sometime before 25 July 1990, for on that date the B.C. Supreme Court issued an interim order restraining Mr. Pellikaan from selling milk or other dairy products which had not been pasteurized. On 19 October 1990 Mr. Justice Collver, of the B.C. Supreme Court, issued a consent order permanently restraining Mr. Pellikaan and his dairy farm operation from selling, distributing or supplying dairy products which had not been processed and pasteurized in accordance with the Milk Industry Act R.S.B.C. 1979 c. 258 and Regulations.
[7] The Plaintiff, Mr. Pellikaan, commenced the present action 23 March 2000. This action is similar to the Plaintiff's earlier action T-1283-97, which was, some time ago, dismissed for delay. The present single-spaced Statement of Claim is a little difficult to read and to understand, however its thrust is that the Canadian Dairy Commission and the British Columbia Milk Marketing Board have discriminated against the Plaintiff, contrary to the Canadian Charter of Rights and Freedoms, shutting down his operation which had sales in excess of five million dollars per month. The Statement of Claim also contains allegations against the Attorney General of British Columbia, the Provincial Ministry of Health, the City of Vancouver, Vancouver City Police Department, East Chilliwack Coop Association, a Vancouver law firm, the Law Society of British Columbia and a testing laboratory, many of whom are linked together by claims of conspiracy. There is much more in the Statement of Claim however, as I say, it is not easy either to read or to understand: it is also difficult to summarize. The Crown filed a pro forma defence 13 April 2000.
[8] The action came up for status review in April of this year. Mr. Pellikaan wrote to the Court indicating that he had recently suffered a serious stroke, but was well on the way to recovery and could, within 45 days of advice from the Court that he might proceed, serve a notice of application for a pre-trial conference.
[9] By case management Order of 5 July 2001 the Federal Court required that counsel, jointly or separately, file a schedule setting out the steps remaining to be taken, by the end of that month. The Plaintiff filed nothing, however counsel for the Defendant submitted a schedule leading to an application for a pre-trial conference on or before 21 September 2001. The Plaintiff, having ignored the schedule, I set a pre-trial conference for 6 December 2001, as a case management direction. That direction was sent out by telefax and immediately evoked a response from Mr. Pellikaan, estimating that he would need until about the 21st of November 2001 to "complete my submissions".
[10] At the 6 December 2001 pre-trial conference it soon became apparent that setting a trial date was premature, for neither production of documents nor examinations for discovery had taken place. Moreover, the Defendant had recently served a request for particulars which the Plaintiff, by letter, had refused to answer. Both sides were still considering procedural motions. The pre-trial conference was therefore adjourned to 18 June 2002, with a schedule being agreed upon and set out in my letter of 6 December 2001 to counsel and to Mr. Pellikaan as follows:
1. The Plaintiff to serve and file particulars, in response to the 7 November 2001 request for particulars, by close of Registry 11 January 2002.
2. The Defendant to serve and file any motions record dealing with particulars, jurisdiction, want of a cause of action or similar procedural matters by close of Registry 8 February 2002.
3. The Plaintiff's motion record, in response, to be served and filed by close of Registry 20 February 2002.
4. The hearing of the Defendant's motion or motions will be as a special sitting at 10:30 a.m. on 26 February 2002. During our meeting I may have mentioned a 9:30 a.m. time, however I now see that I have a case management conference set for 9:00 a.m. on the 26 of February, thus the time for your motion must be 10:30 a.m.
5. Production of documents by the parties to take place by close of business 29 March 2002, but with liberty to apply.
6. Any motions by the Plaintiff, for documents from non-parties, to be served and filed by 31 May 2002.
7. Examinations for discovery to be completed by close of business 31 May 2002.
8. Undertakings to be dealt with by close of business 14 June 2002.
As I say, this schedule itself was agreed upon by Mr. Pellikaan, by his friend and advocate, Mr. Stromotich, and by counsel for the Crown. There was, however, one major disagreement not touched upon in the directions. The Plaintiff felt that a trial date ought to be set immediately for seven days. Counsel for the Defendant felt that setting a trial date was premature, but that her best estimate was five days. However, the Federal Court Rules are quite adamant that the parties must be ready for trial and then a trial date will be set at the pre-trial conference: see Rules 258 through 264.
[11] During the case management conference I permitted Mr. Stromotich to, in effect, act as an advocate for Mr. Pellikaan. It seemed a sensible approach in that Mr. Stromotich was able to assist the Court with getting the action onto a realistic schedule.
[12] On 10 December 2001 the Court received a six-page letter signed by Mr. Pellikaan as Plaintiff and by Mr. Stromotich as agent, but clearly drafted by Mr. Stromotich.
[13] The 10 December 2001 letter overall was irrelevant, however it was also objectionable and in poor taste. Its topics and comments range from the mildly scurrilous, "Justice Colver . . . was nothing less than psychopathic . . . God rest his evil hand", through to the abusive, referring to fascist tactics on the part of the Department of Justice and in poor taste, with references to the Royal Canadian Mounted Police as the "the Canadian SS" and to Kristallnacht tactics brought down upon Mr. Pellikaan by "the cabal of ‘officers of the court' and their operatives". The letter being, as I say, objectionable and in poor taste, but most important, irrelevant, I required it be returned by a written direction of 12 December 2001:
DIRECTION
[15] I have been referred to a 10 December 2001 letter, signed by Mr. Stromotich, as agent for Mr. Pellikaan and by Mr. Pellikaan himself, with a copy to the Department of Justice counsel. The letter, through its reference to Mr. Pellikaan in the third person, has been written by Mr. Stromotich on behalf of Mr. Pellikaan.
[16] Overall I do not see the letter as apropos of anything, unless it is an attempt to revisit the 6 December 2001 conference which was downgraded, from a pre-trial conference leading to a trial date, to a case management conference, for neither side had advanced to a procedural state from which to proceed directly to trial.
[17] More specifically, the letter, which contains abusive elements, which is in part argumentative, which makes references which are in particularly poor taste and are scurrilous, is overall irrelevant. Further, those who would act as counsel must realize that it is improper for counsel to attack one another on a personal level.
[18] The letter is to be returned to Mr. Pellikaan at his new address for service.
[19] The letter, as I say, has been written by Mr. Stromotich "as agent". The Federal Court Rules recognize individuals appearing and acting for themselves, or lawyers appearing as counsel. Agents, who are not lawyers, may generally not appear before the Court. From time to time, when opposing counsel have raised no objection, the Court has looked to agents in special circumstances where it might be reasonable and of assistance to all concerned.
[20] In the present instance, at the 6 December 2001 case management conference, after obtaining the agreement of counsel for the Defendant, after considering Mr. Pellikaan's situation and abilities and after listening to preliminary remarks from Mr. Stromotich, all of which gave me some trust in the worth of having Mr. Stromotich participating, I exercised my discretion and allowed Mr. Stromotich to assist and to speak for Mr. Pellikaan. During the proceeding Mr. Pellikaan, in turn, added comments and observations. The arrangement was productive in that the parties reached an agreed schedule for getting Mr. Pellikaan's delayed proceeding, a proceeding which had been subject to a case management Order by reason of the Plaintiff's delay, back on track.
[21] By reason of the 10 December 2001 letter my trust in Mr. Stromotich to act in a reasonable way and to be of assistance to the Court no longer exists. Mr. Stromotich has shown himself to be disruptive beyond reason.
[22] Mr. Stromotich may, like any other member of the public, who is neither a party nor counsel, attend on motions as a spectator. However, to avoid disruption, Mr. Stromotich may not in the future attend either case management conferences or pre-trial conferences.
[23] Please forward a copy of this Direction to Mr. Pellikaan at his new address for service and also to Crown counsel.
It is this direction which resulted in the Plaintiff's motion filed 12 December and the concomitant oral motion that Mr. Stromotich, a lay person, be allowed to represent Mr. Pellikaan. This brings us to the setting for the motion.
[24] Motions in the Federal Court are heard either as special sittings or on a regular motions day in a courtroom. On the morning of 17 December, all being ready in a courtroom, the Registrar was advised that Mr. Stromotich, while able to attend on the third floor in the Registry proper, his fear of heights prevented him from attending in a seventh floor courtroom. I therefore asked that the motions day hearings take place in a boardroom on the third floor. This was an error on my part, for it exposed Crown counsel to unnecessary abuse at short range and placed counsel, court reporter, Registrar and ushers in an uncomfortable and stressful position, all of which ought to have been unnecessary.
CONSIDERATION
[25] Unfortunately the objectionable and irrelevant letter of 10 December, 2001, has made its way back into the Court record as an exhibit in support of Mr. Pellikaan's motion. Once Mr. Pellikaan's motion was called I said to him:
Now I see, Mr. Pellikaan, you've brought Mr. Stromotich with you. He's neither a party nor a lawyer. As I set out in my direction of the 12th of December, Mr. Stromotich may, like any other member of the public, sit with the public as a spectator. However, Mr. Stromotich has behaved in such a manner so as to be disruptive and to bring justice into disrepute. As such, Mr. Stromotich may not sit at the counsel table, nor may he make representations on the present motion.
However, a direction can't be appealed, and that was what I made on the 12th of December, a direction. And I'm going to therefore allow Mr. Stromotich, if he wishes, to make an oral motion that he be allowed to represent you and speak to that motion. And then Ms. Parks will have a chance to reply, and then I will make a ruling on it.
I took this approach because I felt that Mr. Pellikaan was incapable of representing himself and I wished to see if Mr. Stromotich might redeem himself. Moreover, the matters of representation and of the trial date, obviously being important to the Plaintiff, I wished to give the Plaintiff both every opportunity to make his case and, if necessary, to have an order, as opposed to a direction which, if it seemed to the Plaintiff to be improper, might be appealed.
[26] It is unfortunate, that the Plaintiff, Mr. Stromotich and the Plaintiff's son left the hearing room before the hearing of the motion was accomplished and before counsel for the Defendant had completed her presentation. They left despite a caution that to do so might be prejudicial to Mr. Pellikaan's position.
Permission for a Lay Person to Act as Advocate
[27] In support of an oral motion, that he be allowed to act as an advocate for Mr. Pellikaan, Mr. Stromotich referred to a letter which was to be prepared by Mr. Pellikaan's doctor and submitted that Mr. Pellikaan, having suffered a severe stroke, was not capable of acting for himself. Mr. David Pellikaan, son of the Plaintiff, advised that his father was not capable of raising funds to pay for legal counsel and indeed that he could not get legal counsel. Mr. Pellikaan advised that he had had three lawyers, but had canvassed other lawyers and that no one wanted the case. Mr. Stromotich, on rather flimsy evidence, suggested that I might be biassed and that I should recuse myself from acting and indeed should not sit on a motion to reconsider or to vary my direction. Much else of what Mr. Stromotich said was also irrelevant to whether or not he might act as advocate.
[28] Dealing first with the allegation of bias, the affidavit material in this instance, alleging prejudice, is thin. Bias is "an inclination to decide an issue influenced by consideration other than its merits": The Oxford Companion to Law, D.M. Walker, Clarendon Press, 1980 and see also Franklin v. Minister of Town and Country Planning [1948] A.C. 87 at 103 and following (H.L.). In alleging bias it is not generally necessary to establish the presence of actual bias. However the mere fact that a party has lost a motion, or has had a direction go against him, is not an indication that a court is either being less than evenhanded or is showing that it is not indifferent as between the parties. Here Mr. Pellikaan's material stops well short of the recognized test for bias, which has been enunciated a number of times by the Supreme Court of Canada, for example in Newfoundland Telephone Company v. Newfoundland (Public Utilities Board) [1992] 1 S.C.R. 623 at 636 and at more length in Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369 at 394:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. . . .the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly".
While Mr. Justice DeGrandpré wrote for only three of the judges, that test was, in effect,
adopted by the majority in the case and was used in the Newfoundland Telephone Company case and in Baker v. Canada (1999) 174 D.L.R. (4th) 193 at 221 (S.C.C.). Certainly, all of us
have predilections, or mental preferences, that may require discipline to make certain that such does not become a bias which impairs the ability to function judicially and here I would refer to Beno v. Létourneau (1997) 126 F.T.R. 241 at 266, where Mr. Justice Campbell refers to a then recent statement by Chief Justice Bayda of the Saskatchewan Court of Appeal:
Every judge knows, and every reasonably informed person not a judge who approaches the issue objectively ought to know, that like every other member of the human species all judges have certain predilections. Judges are not - and society does not want them to be - intellectual eunuchs devoid of any philosophy of life, of society, of government or of law and a judge's world is the same as the public's - a world of realism rather than a world of idealism. The critical question is not: Does the judge have a predilection? Rather the critical question is: Is the judge able and prepared to set the predilection aside and not put it to work in the exercise of his or her judicial functions?
The Beno case was reversed on appeal, (1997) 212 N.R. 357, however this passage remains valid.
[29] Mr. Pellikaan does not come near to satisfying the test as to bias nor to establish that I am unable to put any predilection which I might have, arising out of the conduct of Mr. Stromotich or otherwise, aside and exercise my judicial function properly.
[30] I return now to the real issue of whether Mr. Stromotich may act as advocate for Mr. Pellikaan. As I said during the hearing it was commendable that Mr. Stromotich sought to assist Mr. Pellikaan. However, Rule 119 provides that "Subject to Rule 121, an individual may act in person or be represented by a solicitor in a proceeding.". Rule 121 makes it mandatory that a person who is under a legal disability be represented by a solicitor. The case law makes it clear that there is no alternative which would to allow someone who is not a lawyer to be represented by an individual. Here I would refer to two cases. First, in Giagnocavo v. Minister of National Revenue (1996) 189 N.R. 225, Chief Justice Isaac, speaking for the Court of Appeal, denied the appellant leave to represent his wife on the basis of the predecessor rule to present Rule 119, both being similar rules.
[31] Madam Justice Reed elaborated on the issue in Morrisroe v. Canada (1997) 119 F.T.R. 276 at 276 - 277:
[2] Unfortunately, the Federal Court Rules do not allow for "lay representation". Rule 300 provides that an individual may either represent himself or herself or be represented by a solicitor. There is clear jurisprudence that a person may not be represented by a non-lawyer; see generally: Giagnocavo v. Minister of National Revenue (1995), 189 N.R. 225 (F.C.A.); Vojic v. Minister of National Revenue (F.C.A., A-252-86, March 31, 1987).
[3] I recognize that in some circumstances, this rule has not always been complied with. Sometimes, particularly in cases where the opposing side consents to the lay representation, matters have proceeded, informally, with a lay representative acting. See, for example, the Vojic decision mentioned above and Bishay v. Minister of National Revenue, [1996] 1 C.T.C. 2286; 103 F.T.R. 6 (F.C.T.D.). These are not precedents, however, for the granting of a formal order authorizing a lay representative to act on behalf of a party before this Court.
[32] The informal recognition of lay representation proves useful in special circumstances. What I had hoped for in the present instance was that Mr. Stromotich might rise to the occasion and, Crown counsel consenting, this action might have proceeded, on a less formal basis, with a lay representative acting, for Mr. Pellikaan clearly needs assistance in presenting his case. However, given both the antics and attitude of Mr. Stromotich and the absence of any reasonable approach on his behalf, Mr. Stromotich is not the person to act as advocate to assist Mr. Pellikaan. Mr. Stromotich may neither act as agent for nor appear as advocate for Mr. Pellikaan. I now turn to the second issue in the Plaintiff's motion, that of placing motions before only a judge.
Who May Hear Motions
[33] Mr. Pellikaan asks that any motions to restrict his Statement of Claim be put before a judge. Mr. Pellikaan is, I believe, referring to the possibility that the Defendant may bring a motion to strike out the Statement of Claim, or least portions of it. Counsel for the Defendant, quite properly, says that her course of action will depend upon what she learns from the particulars which are presently outstanding.
[34] If there is a motion to strike out the Statement of Claim, or indeed any other motion in this matter, it is for the Court to assign such motions to the prothonotaries and to the judges, not for a litigant to require that a matter be heard by someone else, in the absence of a cogent reason. Here I take it that there may be three reasons for the request.
[35] First, with only minimal comment, I shall deal with the argument that prothonotaries do not have jurisdiction to hear motions on matters in actions which involve more than $50,000. A proper reading of Rule 50 of the Federal Court Rules makes it clear that the $50,000 ceiling applies only to the hearing of an action, not in relation to a motion during the course of the conduct of an action involving more than $50,000. The former is beyond the jurisdiction of a prothonotary, while the latter is not.
[36] I have already dealt with the issue of bias. Certainly Mr. Pellikaan, in his affidavit evidence and in his letter of 10 December 2001, makes many allegations, in all directions, as to bias. These allegations are neither of substance nor do they satisfy the test for bias, enunciated in the Committee for Justice and Liberty case and set out above.
[37] Mr. Pellikaan and Mr. Stromotich seemed under the impression that it was the right of a party, perhaps even a constitutional right, to have their cases heard by a judge. I know of no such right. Rather, the jurisdiction of prothonotaries and of judges is set out in the Federal Court Act and the Federal Court Rules. As I have already said, it is for the Court to allocate matters as between judges and prothonotaries, always keeping in mind the jurisdiction of the latter and the limited resources of the Court. The request for an order, that motions which might restrict the Statement of Claim be put before a judge, is denied.
Particulars Sought by the Plaintiff
[38] The Plaintiff also seeks particulars, from the Defendant, setting out what is required in order to obtain a federal licence to produce cheese in British Columbia. I do not see this as in any way arising out of the pleadings as they presently stand. Moreover, there is nothing in Mr. Pellikaan's evidence or in the representations made by him or on his behalf to indicate that such particulars are necessary either for pleading or for the purposes of the trial. Here I have in mind various principles from the established case law.
[39] Generally particulars function so that a party may know the nature of the case to be met, to prevent surprise at trial, to assist in the gathering of appropriate evidence, to limit the generality of pleadings, to limit and decide the issues to be tried and to prevent a party, without leave, from proceeding into matters not pleaded or included in the particulars: see for example Gulf Canada Ltd. v. The "Mary Mackin" [1984] 1 F.C. 884 at page 889. Moreover, particulars will not be ordered unless the party requesting them establishes that they are necessary for pleading and not within that party's knowledge and unless the pleadings are, on their face, inadequate: see Windsurfing International Inc. v. Novaction Sports Inc. (1987) 15 F.T.R. 302 at 308. In the present instance pleadings are, for the time being closed, however if the Plaintiff, once examinations for discovery have been completed and before trial, still does not know the defence that it has to meet, the Plaintiff then may bring a further demand for particulars: see for example Smith Kline & French Laboratories Ltd. v. Lek Trovarna Farmacevtskih in Kemichnih Izdelkov M. Sol O. (1985) 4 C.P.R. (3d) 257 (F.C.T.D.). However, particulars are not granted when they are requested not to delineate an issue, but rather where the particulars sought are in the nature of evidence as to how an issue in litigation might be proved: McMillan v. Canada (1996) 108 F.T.R. 32 at 39 (F.C.T.D.) approved (1999) 237 N.R. 8 at 10 (F.C.A.): here is the main barrier against the particulars as requested by the Plaintiff, for they neither add anything to nor luminate the defence, but at best could go to what the Plaintiff might have to show to establish his case. Thus the request for particulars is denied.
CONCLUSION
[40] Both the oral motion that Mr. Stromotich might act as advocate or as some species of agent for Mr. Pellikaan and the motion filed 12 December, 2001 are dismissed.
[41] As Mr. Pellikaan was absent from the hearing room when I dismissed both the oral motion and the motion as filed, I did not deal with costs. Counsel for the Defendant may arrange to speak to costs should the Defendant so desire.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
19 December 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-593-00
STYLE OF CAUSE: Arjen Pellikaan v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 17, 2001
REASONS FOR ORDER: HARGRAVE P.
DATED: December 19, 2001
APPEARANCES:
Mr. Arjen Pellikaan FOR PLAINTIFF
Ms. Shirley Parks FOR DEFENDANT
SOLICITORS OF RECORD:
Mr. Arjen Pellikaan FOR PLAINTIFF
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada