Date: 19980922
Docket: T-1045-98
BETWEEN:
GUNTHER R. MUNZEL,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
RICHARD, A.C.J.
[1] This is an appeal by the plaintiff, the applicant herein, from the decision of Mr. John A. Hargrave, Prothonotary, dated August 17, 1998, striking out the statement of claim in this action on the ground that the plaintiff, Gunther R. Munzel, has no standing to bring the action. The statement of claim was struck out without leave to amend.
[2] The unrepresented applicant seeks an extension of time to bring the appeal by reason of his failure to comply with Rule 51 of the Federal Court Rules, 1998. This rule requires that a notice of motion appealing an order of a prothonotary be served within 10 days after the day on which the Order under appeal was made. Here, the order was made on August 17, 1998 and the notice of motion was served on September 16, 1998.
[3] Rule 56 gives the Court power to dispense with compliance with a rule by a party. The moving party must demonstrate special circumstances justifying the issuance of such an order.
[4] The applicant states that an extension of time should be granted to him because:
| a) he was not aware of the limitation imposed under Rule 51(a) until September 11 last; |
| b) the plaintiff's difficulty with legal terms, language and procedures; |
| c) the research required to establish solid grounds for this motion; |
| d) he was not given sufficient time to formulate his response to the defendant's motion to strike out the plaintiff's statement of claim, the defendant should demonstrate to the Court that the plaintiff received this motion in the time frame allowed for by the Court; |
[5] With respect to paragraph d) the applicant did not seek an adjournment of the proceeding before the prothonotary and did make submissions which are noted by the prothonotary.
[6] The applicant fully argued the merits of the appeal before me, since I reserved on his motion for an extension of time.
[7] In the present circumstances, I propose to deal with this matter by allowing the extension of time requested by the applicant and by dismissing the appeal itself.
[8] As noted by the prothonotary in the reasons accompanying the order striking out the statement of claim:
| [2] Mr. Munzel's Statement of Claim, while not easy to follow, sets out his view that the Income Tax Act, R.S.C. 1985, c. 1 (5th supp) and the Pension Benefits Standards Act, R.S.C. 1985, c. P-7 improperly and unconstitutionally allow employers not only to withhold their pension fund contributions, but also allow employers to remove actuarial determined surplus money from pension funds. His concern is an under-funding of pension plans by reason of improper actuarial forecasting. While setting out a number of examples, and a good deal of case law in his Statement of Claim, the Plaintiff does touch on his connection to these allegations by pleading that he is a pensioner of a chartered bank. However, he then concedes, by reason of his age and health, that it is unlikely that he will benefit from any declaration, although he submitted, in argument to the Court, that his wife could conceivably be affected. |
[9] In disposing of the defendant's motion to strike, the prothonotary properly outlined the test to be followed and applied that test on the basis of the information which was before the prothonotary at the time the motion was heard. Further, the prothonotary's findings of fact are not disputed by the applicant.
[10] The prothonotary applied the three-fold test for public interest standing enunciated by Mr. Justice Cory in Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236 at page 253:
| It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court? |
[11] In dealing with the first step of the test, the prothonotary concluded:
| [9] In the present instance, Mr. Munzel has perceived an injustice which may result in the under-funding of some pensions. He believes his perception is supported by analysis of pension funding and by existing law. However, I am not prepared to accept that his Statement of Claim raises any serious issue as to the validity of the pension legislation which Mr. Munzel attacks. Rather, what is displayed is a distaste for the legislation and what, in Mr. Munzel's view, it allows employers to accomplish. |
[12] In dealing with the second step of the test, the prothonotary concluded:
| [10] The Statement of Claim indicates that Mr. Munzel is both an old-age pensioner and receives pension benefits from an unidentified bank, presumably under a scheme to which the Pension Benefits Standards Act applies. The difficulty Mr. Munzel faces here is that he does not claim to be personally affected by foregone employer contributions or by surplus funds being taken out of a pension scheme by an employer. Indeed he submits that "... it is unlikely that the plaintiff would benefit from any potential changes discussed in this statement of claim: .... " but that the action is "... for the benefit of those who are unable & /or less capable to fend for their rights and privileges." (paragraph 12 of the Statement of Claim). |
| [11] The Plaintiff does not, in his Statement of Claim, establish a genuine interest. Moreover, there is no reason to believe that there are not other individuals with a genuine interest capable of bringing a similar claim. |
[13] Finally, in dealing with the third step of the test, the prothonotary concluded:
| [12] That there are at least some other individuals who have a genuine interest and who may have been directly affected by the impugned legislation is clear in two ways. First, Mr. Munzel acknowledges that while he has not and will not be directly affected, the same might not be said about his wife, who is younger. Second, pension scheme issues relating to contribution holidays and enabling legislation have been before the Courts. Indeed, Mr. Munzel refers to several in his Statement of Claim, although without citations. Counsel for the Defendant refers to several similar cases, including Schmidt v. Air Products of Canada Ltd. [1994] 8 W.W.R. 305 (S.C.C.) involving the surplus in two private pension plans upon their being wound up; Hockin v. Bank of British Columbia (1990), 46 B.C.L.R. (2d) 382 (B.C.C.A.) concerning the withdrawal of surplus pension funds; and C.U.P.E. - C.L.C. Local 1000 v. Ontario Hydro (1989), 58 D.L.R. (4th) 552 (Ont.C.A.), leave to appeal to Supreme Court of Canada refused (1989), 104 N.R. 320, involving a contribution holiday. While it may be laudatory that Mr. Munzel wishes to bring this claim on behalf of others, whom he speculates may not be able to speak for themselves, there is no evidence to show a complete absence of individuals with standing who are unable to bring there own claims. Indeed, just the opposite is the situation. |
[14] The prothonotary's decision is not clearly wrong, in the sense that it was based upon a wrong principle or misapprehension of the facts.
[15] Insofar as the prothonotary's decision involves an exercise of discretion, that discretion was properly exercised and I confirm it.
[16] The applicant's motion for an extension of time to bring this appeal is granted and the appeal itself is dismissed.
(Sgd.) "J. Richard"
A.C.J.
Vancouver, British Columbia
September 22, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: September 21, 1998
COURT NO.: T-1045-98
| STYLE OF CAUSE: GUNTHER R. MUNZEL |
| v. |
| HER MAJESTY THE QUEEN |
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF RICHARD, A.C.J.
dated September 22, 1998
APPEARANCES:
Mr. Gunther R. Munzel on his own behalf
| Ms. Adrienne Mahaffey for Defendant |
SOLICITORS OF RECORD:
| Mr. Gunther R. Munzel on his own behalf |
| Morris Rosenberg for Defendant |
Deputy Attorney General
of Canada