Date: 20030520
Docket: T-2048-01
Neutral citation: 2003 FCT 635
BETWEEN:
SELLADURAI PREMAKUMARAN
and NESAMALAR PREMAKUMARAN
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
[1] These reasons deal primarily with the Defendant's motion to strike out a further amended statement of claim and peripherally with the Plaintiffs' motion for general, but unspecified directions, for default judgment as to damages, with the balance of declaratory relief sought to go onward to trial and an order that the Crown, again generally, receive no extensions of time. I turn first to some relevant background.
BACKGROUND
[2] The Plaintiffs, who act for themselves, emigrated to Canada in 1998 from England. On 16 November 2001 they filed a Statement of Claim seeking, among other things, damages against the Crown arising out of alleged fraudulent representations by Crown officials during the immigration process, a misleading entry point system, the giving out of false immigration information, and using false advertising as to Canadian employment opportunities. While the initial Statement of Claim had many faults, on reading it generally and making many assumptions it would seem that their expectations of life in Canada were not met and as a result they suffered unspecified losses.
[3] The Statement of Claim was, to a substantial degree, struck out, but with leave to amend, by an Order of 23 January 2002 which specifically referred to various shortcomings. The Order set out that if the Statement of Claim were substantially amended, it might both conform to the Federal Court Rules and demonstrate a reasonable cause or causes of action.
[4] The Plaintiffs filed an Amended Statement of Claim on 16 February 2002. The Crown was of the view that the Amended Statement of Claim did not comply with the facilitating Order of 23 January 2002. Crown counsel provided a useful critique and suggested a Further Amended Statement of Claim, there still not only being time left within which to amend pursuant to the Order, but also no defence had been filed to curtail Rule 200 amendment as a right. The Plaintiffs provided a second "Amended Statement of Claim" on 18 March 2002, which I will call the Further Amended Statement of Claim.
[5] As I have indicated, these reasons arise as a result of two motions. The first motion in time is that of the Defendant, seeking to strike out the Further Amended Statement of Claim. The second is the response of the Plaintiffs to the Crown's motion, by way of a motion for directions, for default judgment for damages, but with a hearing on the balance of the relief sought and a request that the Court deny the Defendant any further extensions of time. While the Plaintiffs' material filed with the motion is very extensive and largely irrelevant at this stage, the Plaintiffs' memorandum of fact and law does address the Defendant's motion to strike out the Further Amended Statement of Claim.
[6] Pursuant to a subsequent enquiry from the Court counsel for the Defendant provided a letter by way of response to the Plaintiffs' motion. In that response Crown counsel submits that the Defendant's motion to strike out be dealt with first, dealing with the Plaintiffs' motion only if necessary, for were the Further Amended Statement of Claim to be struck out at this point, the Plaintiffs' motion would be rendered moot.
CONSIDERATION
[7] The Defendant's submission is to the effect that the form and content of the Further Amended Statement of Claim, now expanded from a four-page pleading to a 15-page pleading, are such that the Defendant is not able to file a proper and coherent defence. Certainly, the Further Amended Statement of Claim is not easy to read. While it contains some additional necessary particulars, the Further Amended Statement of Claim becomes cluttered with evidence, much of which is irrelevant at this stage and which detracts from the requirement that a statement of claim contain a precise statement of material facts which progresses in a logical fashion to practical conclusions. Bare assertions of conclusions are insufficient to constitution material facts, for such do not provide fair and adequate notice of a party's position. Depending upon the circumstances, there is some leeway in the concept of material facts. This was pointed out by Lord Chancellor Selbourne in Millington v. Loring (1880) 6 QBD 190 at 194 where, commenting upon the equivalent of our Rule 174, requiring that a pleading contain a statement of material facts on which the party relies, he said:
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If those words, "material facts," are to be confined to matters which are material to the cause of action, that is to say, facts which must be proved in order to establish the existence of the cause of action, then no doubt the facts in this paragraph were not properly pleaded. But in my opinion those words are not so confined, and must be taken to include any facts which the party pleading is entitled to prove at the trial. |
Lord Selbourne went on to elaborate on the concept that material facts included any facts which a party is entitled to prove at trial by discussing examples. However, there is no suggestion that either material facts or particulars go so far as to include evidence and that is certainly made clear in our Rule 174, which I will set out in due course.
In Cercast Inc. v. Shellcast Foundries Inc., [1973] F.C. 28 (F.C.T.D.) Mr Justice Walsh observed that particulars should stand by themselves, without reference to the evidence supporting them.
[9] A lay litigant and indeed some of us in the profession, can become uncertain about dividing particulars from evidence. Broadly speaking, particulars are to explain what one party is going to try to prove against the other: how a party intends to prove his or her case is a matter of evidence. Justice of Appeal McQuaid, writing for the court in Kay Aviation b.v. v. Rofe (2001), 202 D.L.R. (4th) 683 at 687 (P.E.I. C.A.) said 'It is not always easy to distinguish between what constitutes "material facts", evidence" and "particulars" in the context of pleadings.'. He then went on to refer to what Master Sandler had to say in Copland v. Commodore Business Machines Ltd. (1985), 52 O.R. (2d) 586 (S.C.)at 588:
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Material facts must be pleaded; evidence must not be pleaded. In between the concept of "material facts" and the concept of "evidence", is the concept of "particulars". These are additional bits of information, or data, or detail, that flesh out the "material facts," but they are not so detailed as to amount to "evidence". |
He then went on to note that it was -
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... necessary, in any specific type of action, to determine the minimum level of material fact disclosure required for any particular pleading, in order to determine if the pleading is or is not regular. This is not an easy task by any means, and much common sense must be brought to bear in this endeavour. As well, the purpose and function of pleadings in modern litigation must be kept constantly in mind. It is often difficult to differentiate between, and articulate the difference between material facts, particulars, and evidence. |
Here Master Sandler highlights the difficulty in differentiating and explaining the difference between material facts, particulars and evidence. I would refer to Evans v. Canada (1986), 4 F.T.R. 247 (F.C.T.D.), a decision of Mr Justice Strayer, as he then was, which offers some practical assistance. In that proceeding which, as in the present instance, included allegations of prejudicial treatment, Mr Justice Strayer noted that the statement of claim was unusual in that it gave evidence rather than a precise statement of material facts, as then required by Rule 408 and is now required by Rule 174 which provides that:
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Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved. |
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Tout acte de procédure contient un exposéconcis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l'appui de ces faits. |
In Evans Mr Justice Strayers struck out the statement of claim but did give leave to amend. He said that the plaintiff should clearly set out the nature of the activities complained of, who committed the acts, when and where they were committed and whether they were negligent or intentional. In examining the Further Amended Statement of Claim I have kept both the general general concept expressed in Rule 174 and the surrounding case law in mind, together with some additional applicable concepts.
[10] To begin, "The rules of pleading are designed to ensure that the parties to litigation have adequate notice of the case they have to meet and are not taken by surprise." (Keleher v. Canada (Minister of Fisheries and Oceans), (1989) 26 F.T.R. 161 (F.C.T.D.) at 178). Mr Justice of Appeal Stone reinforced this concept in Weatherall v. Canada (Attorney General), (1988) 86 N.R. 168 (F.C.A.) at 174, there referring to both Williston and Rolls, The Law of Civil Procedure, Vol. 2, Toronto: Butterworths, 1970 at page 637 and to Esso Petroleum Co. Ltd. v. Southport Corporation [1956] A.C. 218 (H.L.), at page 241:
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It is elementary that two of the principal functions of pleadings are "To define with clarity and precision the question in controversy between litigants" and to "give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them." |
In Weatherall Mr Justice of Appeal Stone has reduced a good deal of case law into two propositions, first, the controversy must be clearly and precisely defined in a pleading and second, a pleading should be drafted to give fair notice of the case to be met so that the other side may direct his or her evidence to the appropriate issues.
[11] I have kept in mind the view of the Plaintiffs, that their case is unique and is a first in the history of the legal world (page 2 of the Notice of Motion). I am not convinced of the novelty of the claim, but that is not an issue for if there is a reasonable cause of action, properly founded in law, novelty of is no concern: see Jane Doe v. Metro Toronto (Municipality) Commissioners of Police (1990), 72 D.L.R. (4th) 580 (Ont. H.C.)at 583. To this acceptance of novelty I would add that a reasonable cause of action may be founded on clearly evolving law.
[12] The concept of a novel claim, as set out in the Metro Toronto is accompanied by other principles which I have found useful to keep in mind and which are significant in examining a statement of claim in a context of a motion to strike it out:
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(1) The pleadings must disclose a cause of action founded in law. So long as this criterion is met, the novelty of the cause is of no concern: see Johnson v. Adamson (1981), 128 D.L.R. (3d) 470, 34 O.R. (2d) 236, 18 C.C.L.T. 282 (C.A.).
(2) In determining whether a cause of action exists, the material facts pleaded are to be taken as proved. However, this principle does not apply where the alleged facts are based on assumptive or speculative conclusions which are incapable of proof: see Operation Dismantle Inc. v. Canada (1985), 18 D.L.R. (4th) 481, [1985] 1 S.C.R. 441, 13 C.R.R. 287.
(3) If the facts, taken as proved, disclose a reasonable cause of action, that is, one with some chance of success, then the action may proceed: see Operation Dismantle Inc., supra.
(4) The statement of claim must be read as generously as possible, with a view to accommodating any inadequacies in the form of the allegations due to drafting deficiencies: see Operation Dismantle Inc., supra.
(Pages 583 - 584) |
The Court of Appeal in Metro Toronto referred to Operation Dismantle for the concept that if an action has some chances of success, then it may proceed. However I would put the test in more definite terms: to strike out an action, thus denying a litigant a day in court, it must be plain, obvious and beyond doubt that the claim cannot succeed and if it is not clear that the claim is doomed to fail, it must be allowed to proceed: see for example the decision of Mr Justice Hugessen in Martel v. Omeasoo and the Samson Band of Indians, an unreported 28 November 2000 decision in action T-2391-88 and the cases upon which that concept is based, for example Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 972, Operation Dismantle, [1985] 1.S.C.R. 441 at 449 and Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at 740.
[13] In the present instance the Defendant says that not only does the Further Amended Statement of Claim discloses no reasonable cause of action, but also that it constitutes an abuse of process and is scandalous, frivolous or vexatious. A frivolous plea includes one so palpably bad that it requires no real argument to convince the court that it is bad and it includes a plea indicative of bad faith. Frivolous and vexatious pleas are those which are brought or carried on by a plaintiff who is not bona fide and indeed constitute a proceeding which will not lead to practical result. The terms frivolous and vexatious define an obviously unsustainable claim and include proceedings which are an abuse of process. In turn an abusive action is a proceeding which misuses or perverse a procedure of the Court and again is an action which can lead to no possible good. For further explanation of and authorities dealing with this proposition see Larden v. Canada, [1998] 145 F.T.R. 140 (F.C.T.D.). When an action is alleged to be scandalous, frivolous and vexatious or an abuse of process, under Rule 221(1)(c) and (f) the test for striking out is as stringent as, or even more stringent than, that which applies under Rule 221(1)(a) when testing for a reasonable cause of action: see for example Waterside Ocean Navigation Co. v. International Navigation Ltd., [1977] 2 F.C. 257 at page 259 (F.C.T.D.), a decision of Associate Chief Justice Thurlow.
[14] The mere fact that there may be surplus material in the statement of claim is not a ground for striking out: see Radil Bros. Fishing Co. v. Canada (Department of Fisheries and Oceans, Pacific Region), 2002 FCT 1237, an unreported 28 November 2002 decision in file T-82-99, at paragraph 17, upheld on appeal 6 May 2003.
[15] In the present instance, when dealing with the argument of want of a reasonable cause of action, I have, as I must, disregarded the affidavit evidence. Indeed, I must regard all of the facts pleaded in the Further Amended Statement of Claim as deemed to have been proven, except to the extent based on assumption or speculation (see Metro Toronto (Municipality) Commissioners of Police (supra) Operation Dismantle [supra] at page 455),and except where the facts pleaded are patently ridiculous or incapable of proof (see Martel Building Ltd. v. Canada (1994), 71 F.T.R. 281 (F.C.T.D.) at 284).
[16] I have looked at the re-amended statement of claim carefully and, as I say, in the light of the relevant case law which is, for the most part, referred to above. I have taken into account that the pleading was not prepared by counsel, but by lay litigants. With all of this in mind I have tested the Further Amended Statement of Claim for the bare essentials of a judiciable claim, and in the course of that examination have disallowed material which is clearly evidence, as opposed to being particulars, and which has no place in a pleading.
[17] The Plaintiffs, by their Further Amended Statement of Claim, claim damages for "mental injury", loss of earnings and loss of savings of $1,000,000 and various immigration and living expenses of $125,000. The Plaintiffs also seek unspecified damages for violation of Charter Rights, unnecessary stress and time lost from their family. To go with all of this the Plaintiffs claim "an open public apology". A coerced apology has been called an unjust humiliation with little of the value of an apology freely given: see The Queen v. Northwest Territories Power Corp. (N.W.T.S.C.), [1990] N.W.T.R. 125 (NWT S Ct.) at 131 - 132. The Federal Court of Appeal pointed out in Ranjit Perera v. The Queen, [1998] 3 F.C. 381 (F.C.A.), that to require a letter of apology would contravene section 2(b) of the Charter and that such relief could be granted if justifiable under section 1 of the Charter, thus the section of the statement of claim seeking an apology should stand.
[18] The Plaintiffs also seek what might be characterized as declaratory relief concerning immigration procedure, general recognition of foreign credentials and skills, "federally and provincially and proper management of High Commission officials in London". This declaratory relief, while perhaps altruistic, particularly in that it would be of no direct benefit to the Plaintiffs, also has political overtones and perhaps touches upon the provincial sphere, or should be sought by judicial review as provided for in sections 18(1) and (3) of the Federal Court Act. However the material is surplusage and may remain.
[19] The complaints set out in the Further Amended Statement of Claim, which are interspersed with much evidence, may be summarized as follows:
(i) that the Crown, through false advertising and through representations by the Canadian High Commissioner in London, knowingly, recklessly and negligently misled and deceived the Plaintiffs into believing their qualifications, skills, expertise and English language ability would be in high demand in Canada;
(ii) the Plaintiffs, on immigrating, were encouraged to severe their ties with England, including as to sale of their home, which they say proved to be bad advice;
(iii) that the Crown, again by way of the Canadian High Commissioner in London, misled the Plaintiffs as to business opportunities in Canada;
(iv) that the Canadian High Commissioner in London misled the Plaintiffs as to the quality of life they might expect in Canada, including as to absence of any discrimination.
(v) that the misleading statements made on behalf of the Crown were made knowingly and intentionally;
(vi) that the Crown used a fraudulent and misleading points system in order to defraud immigrants, which in the specific case of the Plaintiffs was an abuse and "a process of wilfully robbing of our future";
(vii) that the Plaintiffs' Charter rights have been violated, but without any specific reference to sections of the Charter;
(viii) that the Defendant obtained financial gain from fees charged the Plaintiffs and that the Plaintiffs have suffered "severe financial loost [sic] that had triggered stress and poor health", the resulting health problems being catalogued.
The Defendant says that in setting all of this out the Plaintiffs have gone beyond the scope and intent of the Order requiring amendment. However, I must keep in mind that no defence having as yet been filed it is open for the Plaintiffs to make amendments as of right under Rule 200.
[20] One of the difficulties with the Further Amended Statement of Claim is that it is not a narration keeping the action within a defined scope. Nor does it seem to go forward to a distinct and defined conclusion. In the result, and this is in part because of the inclusion of evidence which breaks up the narrative flow of the Further Amended Statement of Claim, it does not proceed onward to define the scope of the action or to lead to a defined conclusion and a practical result.
[21] Paragraphs 2 through 6 of the initial Statement of Claim, which lacked explicitness and particularization were struck out by Order of 23 January 2002, with leave to amend. Those paragraphs now appear in part as paragraphs 3, 4 and 5 of the Further Amended Statement of Claim. As redrafted they set out the background as to how the Plaintiffs gained entry to Canada and that they were knowingly misled by the Canadian High Commission, Grosvenor Street, London, England into believing certain things. There may be some superfluity in paragraphs 3, 4 and 5, but nothing objectionable or which should raise any confusion which might hamper the response: indeed, the three paragraphs give fair overall notice of the case by explaining the position of the Plaintiffs and setting out that they were knowingly misled.
[22] Paragraph 6 refers to an advertising campaign to the effect that Canada was seeking skilled professional immigrants. The specifics as to where the advertising appeared are those which the Defendant might otherwise seek by way of an order for particulars in order to plead to the allegation of misrepresentation in paragraph 5. Paragraph 6 may remain.
[23] Paragraph 7 begins by establishing that the Plaintiffs, relying upon the advertisement, attended at the Canadian High Commission in London. Then, rather than merely stating that the Plaintiffs were misled, the paragraph sets out verbatim what the Plaintiffs were told by the Canadian High Commission by way of misrepresentations. These two examples could be either particulars or evidence:
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If Canada needs you, your present job description will be on the Occupational Listing.
If your present job description fits our Occupational List, then Canada needs your expertise. |
While these two passages tend to establish or lay the ground work in order to show how the allegation of being misled is to be proven, they are also particulars in that a Defendant would likely asked about such as a request for particulars. Moreover, in that the Plaintiffs eventually go on to allegations of fraud, this paragraph is consistent with the need for complete particularization in the case of a claim for fraud. Paragraph 7 may therefore remain.
[24] Paragraph 8 through 14 of the Further Amended Statement of Claim move on to additional specific statements which are said to be misrepresentations, misleading or deceiving. The Plaintiffs have already pleaded that they were knowingly misled, by way of the Canadian High Commission in London. This allegation of a cause of action in some form of negligent misrepresentation is broad enough to encompass any causes of action which might be set out as evidence in paragraphs 8 through 14. This evidence is better left for examination for discovery where it may properly be explored, for it goes beyond particulars. Paragraphs 8 through 14 are struck out.
[25] Paragraph 15 sets out that the Plaintiffs have discovered that a statement about immigration processing fees contained in a self-assessment guide is false and misleading. It then contains a quote, which is clearly evidence. It includes the statement that the Plaintiffs had not received any of the benefits mentioned. The quote in paragraph 15 is struck out. The balance may remain.
[26] Paragraphs 16 and 17 are purely evidence which might, at best, go to support a earlier plea of negligent misrepresentations, but which also contains irrelevant allegations. As to visiting job centres in Alberta and Ontario and 3,482 applications for employment. These paragraphs are struck out.
[27] Paragraph 18 sets out the hopes which the Plaintiffs have had as a result of what they were told by the Canadian High Commission in London. The hopes and impressions that the Plaintiffs had, after speaking with the Canadian High Commission in London, are purely evidence. Paragraph 18 is struck out.
[28] Paragraph 19 deals with discrimination that the Plaintiffs have faced in Canada, contrary to what they believe would be the situation. To the extent that the incidence described in paragraph 19 are relevant, they are again pure evidence. Paragraph 19 is struck out.
[29] Paragraph 20 sets out the Plaintiffs' belief that the Department of Immigration had been intentionally and knowingly misleading skilled professional workers. It goes on to set out shortcomings of the Canadian High Commission in London, which the Plaintiffs believe is unaware of the situation faced by immigrants coming to Canada. The Plaintiffs feel they ought to have been warned. However, no duty on the part of the Crown is alleged. This area is something which might be explored by the Crown on examinations for discovery and is evidence which the Plaintiffs might be able to use at trial. However, what is set out in paragraph 20 is neither material facts nor particulars. Paragraph 20 is struck.
[30] Paragraph 21 starts out with what is probably a material fact, that the Canadian immigration system is fraudulently and negligently using a misleading points system in order to defraud. The paragraph then turns to documentary evidence, the experience of the Plaintiffs in Canada, the general effect of a misleading immigration points system vis-a-vis professionally skilled immigrants, an unspecific allegation that the Defendant has violated the Canadian Charter of Rights and Freedoms and concludes that the Department of Immigration is using professionally skilled immigrants as "cash cows". Paragraph 21then leads back to the difficulties faced by the Plaintiffs, including lack of employment in their fields and concludes that while the Crown gained financial income from processing Plaintiffs as immigrants, the Plaintiffs have suffered financial loss, stress and poor health. Almost the entire paragraph might be, on one view, evidence, however it does include allegations of fraud and negligence in using a misleading points system, an intent to defraud and concludes with a plea of financial loss, stress and poor health. The other view is that what is set out is not evidence, but either particulars of fraud, for allegations of fraud must be expressly pleaded, or facts, matters and circumstances on which the Plaintiffs rely in order to support the allegation. The proper practice is that the facts alleged to be fraudulent should be set out and then should be stated that those acts were done fraudulently: see for example in R. Rica Gold Washing Co. (1879) 11 Ch. D. 36 at 33 (F.A.) as pointed out by Odgers on High Court Pleading and Practice, Sweet & Maxwell, 22nd edition, 1991, at page 138:
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Each party must state his whole case. He must plead all facts on which he intends to rely, otherwise he cannot strictly give any evidence at trial. |
Odgers goes on to refer to Wrights v Cooke [1908] 1 Ch. D. 789 at 799 for the proposition that "... the plaintiffs are not entitled to relief at the trial, except in regard to that which is alleged in the pleadings and proved at trial.". I have misgivings about the way in which fraud is set out and pleaded in paragraph 21, however on balance it should remain because it does set out particulars which the Plaintiffs will attempt to prove at trial when they come to what they believe to have been intentional fraud. Paragraph 21 should remain. However the Plaintiffs should keep in mind that there are dangers in pleading fraud, for there may be an enhanced award of costs against those who plead fraud and do not succeed.
[31] In considering paragraph 22 I have kept in mind that the drafting of the Further Amended Statement of Claim is by lay litigants and that I should test the draft to see if it contains the bare essentials of a judicial claim. In paragraph 22 the Plaintiffs say that as a result of the misrepresentations and false advertising of the Crown and, giving as broad an interpretation as I am able, the absence of care by the Crown, the Plaintiffs, who are skilled professionals, are now in fact cleaners and caretakers. Paragraph 22 then goes on to set out the education of the Plaintiffs, their former employment, their present employment and their situation after coming to Canada. All of this, to the extent that it constitutes material facts, have been pleaded earlier in the Further Amended Statement of Claim. Paragraph 22 adds nothing outside of evidence. It is also struck out.
[32] Paragraph 23, paraphrasing what is set out, is to the effect that the Plaintiffs came to Canada with funds to invest but now have to use those funds as living expenses. This may be evidence. It is not a cause of action which has any chance of success. It is struck out as a futile plea.
[33] In paragraphs of 1 and 2 of the Further Amended Statement of Claim the Plaintiffs seek damages for, among other things, mental agony and unnecessary stress. Mental agony and unnecessary stress are not causes of action in themselves, however they do suggest some form of a psychological tort. In order to succeed in this sort of plea the courts have insisted upon physical symptoms or some form of recognisable psychiatric problem such as morbid depression: see for example Linden on Canadian Tort Law, 1993 edition, Butterworths, at page 367. This is by way of leading into paragraph 24 of the Further Amended Statement of Claim.
[34] Paragraph 24 sets out that the Plaintiffs came to Canada in good health but now have failing health problems and goes on to set out specifics. From these specifics what the Plaintiffs may be alleging is the tort of infliction of nervous shock, an area considered by Mr Justice Noël, as he then was, in Boothman v. Canada, (1993) 63 F.T.R. 48 (F.C.T.D.). At page 68 he sets out the requirements establishing the tort, adopting requirements as set out in Timmermans v. Buelow (1984), 38 C.C.L.T. 136 (Ont. H.C.) at 140 which requirements are first, an overt act by the defendant; second, an intention by the defendant; third, circumstances which would lead to a reasonable person in the position of the defendant to foresee, as a reasonable likelihood the effect on the plaintiffs; and fourth, actual harm going beyond emotional upset. Paragraph 24 is borderline. It might be looked upon as evidence. I believe the better view is that it sets out particulars which, taken with other surviving portions of the Further Amended Statement of Claim, may go to establishing liability for tort on the part of the Crown and to some degree the special damages which the Plaintiffs seek in paragraph 1. Paragraph 24 should remain.
[35] Legal consequences flowing from facts can be presented in argument. However there is no bar to such conclusions being set out in the pleading itself, but by the same token, to give the result by setting it out in pleading, is more of a convenience, for party is not bound by or limited to what has been set out: see Maple Leaf Lumber Co. v. Canada, (1983) 52 N.R. 206 at 216 - 217 (F.C.A.), leave to appeal refused (1984) 8 D.L.R. (4th) 676n.
[36] At paragraph 25 the Plaintiffs set out the legal results said to flow "from material facts" in the Further Amended Statement of Claim. Certainly the general rule is that one must plead the material facts upon which conclusions of law are based, although there is no requirement that the result be set out. The first three sections of paragraph 25 may fall within the category of results flowing from what is set out in the Further Amended Statement of Claim: the balance does not. The first three sections of paragraph 25, designated as xii, xiii and xiv, may remain. The balance of paragraph 25 is struck out as attributing nothing to a reasonable cause of action which has any possibility of success.
[37] Paragraph 26 again sets out the result of the material facts which the Plaintiffs have pleaded. Paragraph 26 may remain.
Additional Relief Sought by the Plaintiffs
[38] The Plaintiffs ask for directions, but do not specify the nature of those directions. It is too vague a request to be dealt with. However, the present refusal does not bar the Plaintiffs from seeking specific directions at the later date, keeping in mind that it is the place of the Court to assist the litigants, mutually, to resolve their litigation, but not to lead a litigant through basic steps in litigation.
[39] As to default judgment for damages, the Plaintiffs do not have as strong a case as they would like to believe. Indeed, perhaps they have somewhat narrowly escaped having their action struck out, for the Further Amended Statement of Claim, even as it now stands, while not an abuse, will present a difficult challenge to the Crown to clearly understand and to plead to intelligently.
[40] Time extensions are dealt with as they are requested. While the time limits set out in the Rules must be taken seriously and the liberty to seek leave for time extension must not be abused, there is no indication that the Crown ought to be censured in the present proceedings. There will be no overall order that the Crown have no time extensions in the future.
CONCLUSION
[41] The Plaintiffs may have 21 days within which to file and serve a Third Amended Statement of Claim, which is to come clearly within these reasons. The usual time for filing a defence will begin to run against the Defendant as of date of service.
[42] Success being mixed, costs will be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
20 May 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-2048-01
STYLE OF CAUSE: Selladurai Premakumaran and Nesamalar Premakumaran v. HMTQ
REASONS FOR ORDER OF: Hargrave P.
DATED: 20 May 2003
WRITTEN REPRESENTATIONS BY:
Selladurai and Nesamalar Premakumaran PLAINTIFFS
Kerry A Franklin FOR DEFENDANT
SOLICITORS ON THE RECORD:
Selladurai and Nesamalar Premakumaran PLAINTIFFS on their own behalf
Edmonton, Alberta
Morris A Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta