T-2587-95
BETWEEN:
WILLIAM BRUCE MCFARLANE,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
LUTFY J.:
In my view, the motion to strike the Statement of Claim pursuant to Rule 419(1)(c) must be dismissed.
The defendant's negligence is alleged in paragraph 27 of the Statement of Claim as follows: "This complete lack of respect for the rules and regulations governing the Canadian Armed Forces by the defendant, denied a choosen (sic) career to the plaintiff through gross negligence on the defendant's part." If the allegation is too broadly pleaded and not consistent with the requirements of Rule 408(1), the remedy may be the seeking of particulars. Any such deficiency in the pleading does not necessarily mean that the action is frivolous. The defendant's reliance on Saskatchewan Wheat Pool v. Government of Canada, [1983] 1 S.C.R. 205, is inapplicable, at least with respect to this motion, in light of the plaintiff's allegation of negligence.
The defendant also urges that the action be struck as not disclosing a reasonable cause of action and, therefore, "frivolous" within the meaning of Rule 419(1)(c). However, the defendant has relied on affidavit evidence to assert this argument. Rule 419(2) stipulates that no evidence shall be admissible on an application to strike a Statement of Claim on the ground that it discloses no reasonable cause of action. It would be inappropriate to circumvent the prohibition in Rule 419(2) by characterizing an action as "frivolous" when in reality the absence of a reasonable cause of action is being asserted. I am not prepared to draw a distinction on the ground that the affidavit is the plaintiff's, in support of one of his own motions, and not the affidavit of a person answerable to the defendant.
For the defendant, this action is either "frivolous" or discloses no reasonable cause of action. The motion to strike, however, is based on Rule 419(1)(c) and relies on affidavit evidence. In the circumstances, the interests of the administration of justice may be better served through the adjudication of a motion for summary judgment pursuant to Rule 432.1 than upon reliance on Rule 419.
There will be no order as to costs.
Judge
Ottawa, Ontario
April 28, 1997
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2587-95
STYLE OF CAUSE: William Bruce McFarlane - and -
Her Majesty The Queen
PLACE OF HEARING: Halifax
DATE OF HEARING: April 8, 1997
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LUTFY
DATED: April 28, 1997
APPEARANCES:
William Bruce McFarlane
PLAINTIFF ACTING ON
HIS OWN BEHALF
Michael Donovan
FOR THE DEFENDANT
SOLICITORS OF RECORD:
William Bruce McFarlane
PLAINTIFF ACTING ON
HIS OWN BEHALF
George Thomson
Deputy Attorney General
FOR THE DEFENDANT
of Canada