Date: 20201102

Docket: T-431-16

Citation: 2020 FC 1019

Ottawa, Ontario, November 2, 2020

PRESENT:  The Honourable Mr. Justice Mosley

BETWEEN:

DAN PELLETIER

Plaintiff (Responding Party)

and

HER MAJESTY THE QUEEN

Defendant (Moving Party)

JUDGMENT AND REASONS

I.  Introduction

[1]  This is a motion to strike out the Plaintiff’s Amended Statement of Claim under paragraphs 221(1)(a)(c) of the Federal Courts Rules, SOR/98-106 [Rules] and, in the alternative, a motion for summary judgment on the basis that there is no genuine issue for trial under Rule 215(1).

[2]  The Defendant submits that it is plain and obvious that the claim discloses no cause of action. It further contends that the Plaintiff’s claim is scandalous, frivolous and vexatious as it is so replete with vague assertions and conclusions and is so devoid of factual material that it remains impossible to meaningfully plead a defence. Nor is it likely that the claim could be amended to disclose a cause of action.

[3]  I agree with the Defendant’s submissions. For the reasons that follow, the motion to strike is granted without leave to amend. The reasons also indicate that had it been necessary to do so, the Court would have granted the motion for summary judgment on the basis that there is no genuine issue for trial.

II.  Background

A.  The first Statement of Claim

[4]  The Plaintiff in the underlying action, and Respondent to this motion, Mr. Dan Pelletier, filed a Statement of Claim on March 11, 2016, as a proposed class proceeding, within the meaning of Part 5.1 of the Rules, seeking various declaratory and injunctive relief as well as compensatory damages against the Federal Crown. The Claim alleged that on various occasions, Mr. Pelletier observed aircraft discharging trails of white particulate-like matter (Aerial Discharges) into Canadian airspace. He alleged that the liability of the Federal Crown was engaged as its actions – or inactions – with respect to Aerial Discharges contravened the Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA] as well as the Canadian Charter of Rights and Freedoms Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter], amounted to negligence, trespass and impeded on the quiet enjoyment of his property and that of the potential members of the Proposed Class.

[5]  A motion to strike the claim without leave to amend was brought, in writing, by the Defendant on the basis that it discloses no reasonable cause of action and it was “scandalous, frivolous or vexatious.”

[6]  The motion was determined by Justice LeBlanc on December 8, 2016. In Pelletier v Canada, 2016 FC 1356 [Pelletier I], Justice LeBlanc struck out the Plaintiff’s Statement of Claim on the basis that he had failed to plead facts in sufficient detail to support the claim and relief sought. The Court found that the Plaintiff’s Statement of Claim consisted solely of “bald allegations and mere conclusory statements of law and falls well short, as a result, of pleading with sufficient detail the constituent elements of each cause of action raised.” The Statement of Claim failed to describe “who, when, where, how and what gave rise to its liability and to define the issues with sufficient precision to make the trial process both manageable and fair” (Pelletier I at para 15 citing Mancuso v Canada (Minister of National Health and Welfare), 2015 FCA 227 at paras 18-19 [Mancuso]).

[7]  Additionally, Justice LeBlanc found that the Plaintiff’s Claim amounted to a scandalous, frivolous or vexatious pleading (Pelletier I at para 23 citing Kisikawpimootewin v Canada, 2004 FC 1426 at para 9 and Ceminchuk v Canada, [1995] FCJ No 914 at para 10).

[8]  Leave to amend the pleadings was granted.

(1)  The Amended Statement of Claim

[9]  The Plaintiff filed his Amended Statement of Claim on January 17, 2017. The Amended Statement of Claim, Annex “A” to this Judgment, alleges that the Defendant and/or her agents or instrumentalities are responsible for the alleged Aerial Discharges. Specifically, the Plaintiff claims that the Canadian Military, and parties authorized or contracted by it, perform the alleged Aerial Discharges in Canadian airspace pursuant to various programs and initiatives, such as an alleged joint US-Canadian military operation involving the release of chemicals and particulates into the atmosphere identified by the Plaintiff as “Project Cloverleaf.”

[10]  According to the Plaintiff, the purpose of Project Cloverleaf is to purposefully and intentionally seed and saturate the atmosphere with chemicals and particulates in an effort to:

• (1) facilitate the operations of High Frequency Active Auroral Research Program (HAARP), which has for objective to manipulate the weather;

• (2) possibly engage in biological experimentation without public knowledge, authorization or consent;

• (3) possibly control or influence the viewpoint and reasoning capacity of a domestic or foreign population through chemical and/or electromagnetic means; and

• (4) for other purposes yet unknown.

[11]  The Amended Statement of Claim alleges that the Defendant knows or ought to have known that the Aerial Discharges are toxic and harmful and cause lower levels of awareness and alertness, neurological impairment, respiratory distress and property damages. To the extent the Defendant engages in the release of Aerial Discharges to influence the viewpoint and reasoning capacity of the population, the Plaintiff alleges that the Defendant’s conduct breaches his fundamental rights to freedom of conscience and freedom of thought, belief, opinion and expression guaranteed by section 2 of the Charter and breaches his freedom from threat to his physical integrity guaranteed by section 7 of the Charter. The Amended Statement of Claim alleges that the Aerial Discharges also amount to negligence, nuisance and trespass.

(2)  Preliminary matters

[12]  In the course of case management proceedings, the Defendant filed the present motion to strike and, in the alternative, for summary judgment, on September 21, 2017. A responding motion record was filed on December 8, 2017. A series of motions and case management directions followed in 2018 during which the Plaintiff had the benefit of several extensions of the timetable set out by the Court. The Plaintiff attempted, without success, to file additional affidavit evidence in response to the motion to strike. Additionally, Justice LeBlanc refused to grant leave to the Plaintiff’s counsel, Mr. Tony Vacca, to present arguments on the affidavit he deposed, as there were no exceptional circumstances justifying granting an exception to the principle, enshrined in Rule 82, that an advocate could not also be a witness without leave of the Court.

(a)  The Vander Zalm affidavit

[13]  On April 3, 2018, the Plaintiff filed a motion to allow the late filing of an affidavit of Mr. William Vander Zalm, dated December 29, 2017, with an attached fifty-page exhibit. The three-paragraph affidavit served solely to identify the exhibit which consisted of a letter from Environment Canada dated March 13, 2014, with enclosures released under the Access to Information Act, RSC 1985, c A-1.

[14]  Following a hearing on April 24, 2018, Justice Manson held that the exhibit contained hearsay that was not within the personal knowledge of the affiant. The affidavit was thus an attempt to submit evidence through an affiant who had no ability to speak to the reliability of the material other than stating the source. The documents within the exhibit spoke to potential methods of moderating global warming, as opposed to actual operational activities being conducted by Environment Canada. Moreover, as the exhibit consisted of documents referencing the state of scientific research being conducted, in part, by scientists in Environment Canada and not to the activities of the Canadian military, or the alleged aerial spraying program, it was of marginal relevance. The affidavit was therefore inadmissible as an exception to the hearsay rule and the motion for leave was dismissed with costs.

[15]  No appeal appears to have been taken from Justice Manson’s Order.

[16]  A few days prior to the scheduled hearing of this motion, counsel for the Plaintiff asked the Registry to include a Request to Admit in Form 255 and the Defendant’s response in Form 256 in the Court record. The Request concerned the March 13, 2014 Access to Information response to Mr. Vander Zalm. I directed that the documents could be received and used for the purpose of oral argument at the hearing and instructed that the parties were to provide me with post-hearing written submissions on admissibility of the Access to Information documents through this means. I will deal with that issue below.

(b)  The Herndon Affidavit

[17]  A motion for leave to allow the late filing of the affidavit of Dr. Marvin Herndon as expert evidence was filed on May 14, 2018. Dr. Herndon averred that he is a scientist and corporate executive in San Diego, California. His evidence was intended to establish that the Aerial Discharges, allegedly observed by the Plaintiff, are comprised of toxic materials and constitute an act of deliberate air pollution. Attached to the affidavit as an exhibit were ten articles authored or co-authored by Dr. Herndon.

[18]  In dismissing the motion with costs against the Plaintiff on July 31, 2018, Justice Ahmed held that Dr. Herndon was not properly qualified to provide expert evidence under the test set out by the Supreme Court of Canada in R v Mohan, [1994] 2 SCR 9 and White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23. Justice Ahmed therefore deemed the affidavit inadmissible. In particular, Justice Ahmed was satisfied that Dr. Herndon did not understand his obligations under the Code of Conduct for Expert Witnesses. Justice Ahmed also noted that he was not satisfied of the affidavit’s relevance to the Plaintiff’s claim (Pelletier v Canada, 2018 FC 805).

[19]  An appeal from Justice Ahmed’s decision was dismissed on May 30, 2019. In Pelletier v Canada, 2019 FCA 165, the Federal Court of Appeal determined that Justice Ahmed had not erred in refusing to admit the affidavit. However, the Court held that, as the underlying action was a proposed class action subject to Rule 334.39(1), no award of costs would be made.

[20]  The motion to strike was set down for hearing on May 12, 2020, but adjourned sine die on April 4, 2020, due to the pandemic and general suspension of court operations. On July 29, 2020, by Order of the Chief Justice, it was scheduled for a virtual hearing by Zoom on September 3, 2020.

(c)  The Marquardt affidavit

[21]  On August 31, 2020, three days prior to the scheduled hearing date, the Court was informed that the Plaintiff requested a case management conference to discuss adjournment of the scheduled hearing and leave to file the affidavit of Darwin Marquardt. The Defendant opposed both requests. In the affidavit, Mr. Marquardt stated that he became aware of the proceedings in April 2020 from an online podcast and that he had contacted the Plaintiff’s counsel shortly thereafter. According to Plaintiff’s counsel, the delay between April and late August, without notice to the opposing party or the Court, was attributable to Mr. Marquardt having declined assistance in preparing his affidavit other than for its commissioning. In other words, they did not know what they were going to receive from him.

[22]  In his affidavit, Mr. Marquardt states that he is 81 years old and a resident of the Bonnechere Valley in Ontario. Most of the content describes his life and work experience, personal opinions about the alleged Aerial Discharges and statements allegedly made to him by other persons, likely now deceased, during his working life. The affidavit concludes with his account of statements allegedly made to him by a former American agent, he believes to be now deceased, at a 1998 financial event in Mexico. Mr. Marquardt says the statements caused him “significant psychological and emotional trauma for several years.”

[23]  The Court convened a case management conference by telephone with counsel on September 1, 2020, during which oral submissions were received. At the conclusion of the conference, I refused leave to file the affidavit as it was out of time and because most of it consisted of inadmissible hearsay evidence and statements of Mr. Marquardt’s personal beliefs contrary to Rule 81. Such evidence was neither reliable nor necessary to arrive at a just determination of the issues on the motion. Nor was it capable of being tested on cross-examination. Those portions of the affidavit that did not contain such hearsay evidence, such as Mr. Marquardt’s account of his personal history, were not relevant.

[24]  The form of the affidavit also gave rise to concern. Mr. Marquardt had altered the style of cause to identify the Defendant, Canada, by reference to what appears to be a number issued by the U.S. Securities and Exchange Commission (SEC). He described himself as “a private man and a Friend of the Court”. These are indications that Mr. Marquardt subscribes to what have been aptly described as “pseudo-legal” theories:  see Meads v Meads, 2012 ABQB 571 and AVI v MHVB, 2020 ABQB 489. The content of the affidavit further indicates a belief in conspiracy theories circulating on the Internet. Aside from these concerns, there was no reasonable explanation for why it had been submitted late even taking into account Mr. Marquardt’s claim that he had learned about the action only in April 2020. Proffering such dubious evidence on the eve of the hearing was an indication of the weakness of the Plaintiff’s case.

III.  Issues

[25]  The issues may be summarized as follows:

• A. Is the Vander Zalm Access to Information document admissible as admitted fact?

• Should the Amended Statement of Claim be struck out?

• If the Amended Statement of Claim is struck out, should the Plaintiff be granted leave to amend his pleadings?

• D. If the Amended Statement of Claim is not struck out, should the Defendant be granted summary judgment?

• Should costs be awarded?

  i.  Does the Amended Statement of Claim disclose a reasonable cause of action?

  ii.  Is the Amended Statement of Claim scandalous, frivolous or vexatious?

IV.  Legal Framework

[26]  The following legislative provisions from the Federal Courts Rules are relevant to this motion:

[27]  The following legislative provisions from the Charter are relevant to this motion:

V.  Analysis

A.  Is the Vander Zalm Access to Information document admissible as admitted fact?

[28]  In the Request to Admit dated August 4, 2020, the Plaintiff sought an admission of authenticity from the Defendant in relation to the document received by Mr. Vander Zalm on March 13, 2014, in response to his Access to Information request. As indicated above, the exhibit to Mr. Vander Zalm’s affidavit was one document consisting of a cover letter and 50 pages of reports and memoranda prepared by the Departments of Environment Canada and Natural Resources Canada regarding research studies into climate management related to global warming.

[29]  In its response dated August 24, 2020, the Defendant refused to admit the authenticity of the document on the grounds that it was not relevant to the action and had been determined to be inadmissible by Justice Manson on April 26, 2018.

[30]  The Plaintiff attempted to introduce the document a second time at the cross-examination of the Defendant’s affiant, Colonel Ning Lew, on August 15, 2019. Colonel Lew could not speak to the contents of the document and could not, therefore, provide an evidentiary basis for its inclusion in the record despite the efforts of Plaintiff’s counsel to establish a link with the Department of National Defence. At best, the document indicated that the former Deputy Minister of that Department had attended an interdepartmental meeting at which the topics had been discussed.

[31]  When this issue came up immediately prior to the hearing, I directed that the documents could be received for the purpose of oral argument. At the hearing, I advised the parties that while I would allow them to be used for that purpose, they were to provide me with post-hearing submissions in writing on the issue. Those submissions were received.

[32]  The Plaintiff contends that the Defendant’s Response to the Request to Admit was a comment on relevance or admissibility and not a proper Response. In accordance with Rule 256, the recipient party is therefore deemed to admit the authenticity of the document, the Plaintiff argued. It was contended that once the document is admitted by legal operation of the Rule, its taint of hearsay or reliability is purged, and the document is now in evidence. Justice Manson did not have the benefit of the full record, including the cross-examination of Colonel Lew, the Defendant’s witness. Only this Court can make a completely informed decision as to weight and relevance, the Plaintiff submits.

[33]  There is little jurisprudence on the interpretation of Rules 255 and 256. The parties submit and I accept that Rules 255 and 256 are analogous to Rule 51 of the Ontario Rules of Civil Procedure, RRO 1990, Reg 194 and that decisions interpreting that provision may be of assistance.

[34]  The Plaintiff relies on Canpotext Ltd v Graham, [1985] OJ No 1324 (QL) (HCI) [Canpotext] and an article entitled “Strategic Uses of a Neglected Rule: Rule 51 Requests to Admit” The Advocates' Quarterly, Vol 32, page 247.

[35]  The Defendant argues that the Plaintiff is attempting to do indirectly, that which he could not do directly – that is to introduce the document for the truth of its contents through the Request to Admit. Should it be admitted into the record as an authentic record, the lack of relevance and lack of reliability identified by Justice Manson have not been remedied and the document should be given no weight. Moreover, the question of admissibility falls within the doctrine of issue estoppel.

[36]  The Defendant relies on KD v Peel Children’s Aid Society, 2017 ONSC 7392, in which Justice Patillo noted that there was nothing requiring the party served with a Request to Admit to respond regardless of relevance and that a response of “not relevant” was a proper response.

[37]  There is no dispute between the parties that the document in question was produced by a Crown department, Environment Canada, further to an Access to Information request. However, that does not resolve the controversy as to its use in these proceedings. A document determined to be authentic may be considered by the Court, as long as there are no other evidentiary objections to the document or its content such as relevance and admissibility. Here, there clearly were such objections and Justice Manson dealt with them in his ruling.

[38]  In two decisions relied upon by the Defendant, the Ontario Rule has been interpreted as creating deemed admissions only: Wunsche v Wunsche, [1994] OJ No 816 at para 19; Clarke v R, [2000] FCJ No 475 at para 46. In the context of this case, that would mean that the admission of fact would extend only to the authenticity of the document and not to the facts contained therein. It does not make hearsay evidence admissible. Nor does it permit the Plaintiff to rely on his interpretation of the document without evidence of its reliability or necessity – an interpretation which is effectively immunized from cross-examination by the manner in which the document is introduced. Should the content of the document be admitted as fact, the Court would have no means of evaluating the evidence.

[39]  In this instance, the Request to Admit amounts to a collateral attack on Justice Manson’s ruling and is contrary to the rule that evidence in a summary judgment motion is to be led through affiants with direct knowledge of the matters to which they depose.

[40]  I agree with the Plaintiff that Rules 255 and 256 were not intended to provide a party with the means to circumvent an adverse ruling on relevance and admissibility. They are meant to facilitate the just, most expeditious and least expensive determination of the proceeding on its merits by avoiding the tendering of unnecessary witnesses and evidence. They cannot be used to convert inadmissible hearsay into direct evidence in contravention of Rule 81(1).

[41]  The Plaintiff has argued that this Court is not bound by Justice Manson’s ruling. I disagree. In my view, I am bound by the principles of judicial comity and economy. It is not open to a party dissatisfied with the outcome of a motion in a proceeding to seek a different ruling on the same issue from another judge of the same court.

[42]  While it is not necessary for the disposition of this issue, having read the document and having questioned counsel about its content during the hearing, I see no reason to disagree with Justice Manson’s conclusions. Nor is there anything in the cross-examination of Colonel Lew that could have persuaded Justice Manson, in my view, to arrive at a different conclusion. Notwithstanding the efforts of counsel to get him to agree with the propositions put to him, Colonel Lew held firmly to his evidence that he had found nothing in his search of records and his inquiries among branches of the Department of National Defence that it or the Canadian military are working with other nations or branches of government on the activities alleged to be occurring in these proceedings.

[43]  For these reasons, I will not allow the document attached to the Vander Zalm affidavit to be admitted into evidence on this motion to strike and, in the alternative, for summary judgment.

B.  Should the Amended Statement of Claim be struck out?

[44]  The test for the Defendant to meet on this motion is whether it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action or, put another way, that it has no reasonable prospect of success: R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17 [Imperial Tobacco]; Hunt v Carey Canada Inc, [1990] 2 SCR 959 at p 980; Sivak v Canada, 2012 FC 272 at para 15 [Sivak].

[45]  No evidence outside the pleadings may be considered on a motion to strike, and although allegations that are capable of being proven must be taken as true, the same does not apply to pleadings which are based on assumptions and speculation and those that are incapable of proof: Imperial Tobacco at para 22; Operation Dismantle v The Queen, [1985] 1 SCR 441, at p 455 [Operation Dismantle]; AstraZeneca Canada Inc v Novopharm Ltd, 2009 FC 1209 at paras 10-12. While the claim must be read as generously as possible with a view to accommodating any inadequacies due to drafting deficiencies, it is incumbent on the claimant to clearly plead the facts at the basis of the claim: Imperial Tobacco at para 22.

[46]  As the Federal Court of Appeal highlighted in Mancuso at paras 16-17:

It is fundamental to the trial process that a plaintiff pleads material facts in sufficient detail to support the claim and the relief sought. As the judge noted “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action.”

The latter part of this requirement - sufficient material facts - is the foundation of a proper pleading. If a court allowed parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues. The proper pleading of a statement of claim is necessary for a defendant to prepare a statement of defence. Material facts frame the discovery process and allow counsel to advise their clients, to prepare their case and to map a trial strategy. Importantly, the pleadings establish the parameters of relevancy of evidence at discovery and trial.

[47]  I agree with the Defendant that it is plain and obvious that the Amended Statement of Claim discloses no reasonable cause of action because:

(a)  The narrative of what happened and when it happened is insufficient to meet the requirements of the Rules: Simon v Canada, 2011 FCA 6 at para 18 [Simon];

(b)  The claim continues to lack the material facts to support the allegations against Canada including the Canadian military; and

(c)  The claim is purely speculative and is incapable of objective proof.

[48]  The Plaintiff has failed to put forth material facts to support his claim that the individuals responsible for the alleged Aerial Discharges, an alleged phenomenon which is totally unsubstantiated in the pleadings, are members of the Canadian Military or parties authorized or contracted by it as the Amended Claim alleges. The Plaintiff speculates, without any foundation, that the types of aircraft he has observed from the ground are military aircraft, on the existence of the so-called “Project Cloverleaf” and on the basis for which Canada allegedly engaged in the discharge of substances from the air.

[49]  There is no evidence on the record to support the Plaintiff’s speculation. The photographs, which the Plaintiff has included in his Record, prove nothing in my view other than that, on many days, there are condensation trails (contrails) following aircraft high in the sky over Canada. To jump from that observation to the supposition offered by the Plaintiff requires a leap of faith in the existence of facts which remain entirely in the realm of speculation.

[50]  The allegations of Charter infringement by Canada are based, in the Plaintiff’s own words, on Canada’s “possible” motive for conducting such alleged activities. The Plaintiff is incapable of providing material facts in support of Canada’s “possible” motive and is therefore incapable of providing material facts in support of his Charter infringement claim.

[51]  The alleged common law causes of action also fail by reason of the deficiencies in the pleadings. As stated in Mancuso, a properly pleaded tort claim identifies the particular nominate tort alleged and sets out the material facts needed to satisfy the elements of that tort.

[52]  The Crown Liability and Proceedings Act, RSC 1985, c C-50 requires the Claimant to identify, as a material fact, the particular individuals, group of individuals or organizational branch who have allegedly engaged in tortious actions: Merchant Law Group v Canada (Revenue Agency),  2010 FCA 184 at paras 36-38). As indicated in Sivak (para 48), the requirement to plead sufficient material facts in such matters is particularly important to ground negligence claims since key issues often arise, such as whether the alleged conduct constitutes policy or operational decisions.

[53]  Here, the Plaintiff’s Amended Statement of Claim fails to identify an individual, group of individuals or organizational branch involved in the alleged negligent conduct. It also fails to provide any details of the alleged negligent conduct.

[54]  The Plaintiff has failed to remedy the deficiencies of the original claim with respect to the allegations of negligence. The Amended Claim continues to fail to substantiate the essential elements of negligence. The allegations remain a recitation of the generic steps in a negligence analysis, supplemented by a vague narrative.  The claim for trespass has been reworded but is identical in substance to the one struck by Justice LeBlanc in Pelletier I. The claim for trespass in the Amended Claim remains speculative and unsupported by material facts.

[55]  The Plaintiff lacks standing to bring a claim in public nuisance since the Plaintiff did not suffer a particular and peculiar damage distinct from that of the general public, if one existed. There is no evidence of the presence of particulates or chemicals in the airspace above the Plaintiff’s property or on the property of any other potential class members. The photographs submitted by the Plaintiff do not provide such evidence.

[56]  The Plaintiff has tried to answer the deficiencies in the original claim by disregarding prior court orders and referring to inadmissible evidence in its Fresh as Amended Memorandum of Fact and Law:

• 1) Despite the Herndon affidavit having been declared inadmissible, a ruling upheld by the Federal Court of Appeal, the Plaintiff attempts to rely on recently published articles by Dr. Herndon, which, among other things, rely on these proceedings as support for his theories.

• 2) Notwithstanding the ruling that the Vander Zalm affidavit with its exhibit was inadmissible, the Plaintiff relies heavily on the Access to Information documents from Environment Canada, which were included in that exhibit and are inadmissible on a motion to strike under Rule 221(2).

• 3) In an attempt to improperly introduce new evidence, the Plaintiff relies, in footnotes, on a series of news articles, unpublished articles available online and documentary films.

[57]  Even assuming that the Environment Canada documents are admissible, which as stated above I do not accept, at most they support the existence of a body of scholarly research by scientists into the possible release of aerosols to address global warming. The documents relate to a presentation to senior government officials regarding the state of that research on climate modelling experiments and outlines specific international governance principles which prohibit real world application of such geoengineering techniques. There is nothing in the exhibit to support the Plaintiff’s speculation that this has actually occurred in Canada, let alone that it has been carried out by the Canadian military, as claimed in the Amended Statement. The Plaintiff’s efforts to elicit some modicum of confirmation of this from the cross-examination of Colonel Lew failed completely.

[58]  I also agree with the Defendant that the claim is scandalous, frivolous and vexatious as it has no factual basis and cannot reasonably succeed. It is so speculative and lacking material facts that it would be impossible for the Defendant to respond with anything more than a wholesale denial.

[59]  In the result, I am satisfied that the Amended Statement of Claim should be struck out in its entirety.

C.  Should the Plaintiff be granted leave to amend his pleadings?

[60]  Leave to amend should normally be denied where the defect in the pleading is one that cannot be cured by amendment: Simon at para 8.

[61]  In Baird v Canada, 2006 FC 205 [Baird], this Court found that a statement of claim containing “so many different allegations without specifics, and so many different types of relief, that it would be near impossible for the Court to regulate the trial” needed to be struck out without leave to amend as it was an abuse of process (Baird at para 12 and Pelletier I at para 28). A statement of claim should also be struck out without leave to amend if it is “beyond redemption”: Baird v Canada, 2007 FCA 48.

[62]  I agree with the Defendant that the Amended Statement of Claim is beyond redemption and has no chance of success. Where an amendment would merely result in another successful motion to strike for lack of legal foundation, the amendment should be refused: Carom v Bre-X Minerals Ltd, [1998] OJ No 4496 (QL) (Ont Gen Div).

[63]  The Plaintiff was provided with an opportunity to provide this Court with material facts to support his allegations. Instead, he has chosen to rely on inadmissible evidence and unreliable sources.

[64]  At the heart of the claim is a conspiracy theory fed by social media. The theory is incapable of proof by the evidence upon which the Plaintiff seeks to rely. He is unable to connect the theory to any action by the Canadian military or any other government body through anything other than bald allegations and unfounded speculation based on online materials and personal observations of contrails. Those efforts are doomed to fail, and the courts have expended too much time and effort on them over the past four years to allow the Plaintiff another attempt to do so.

[65]  For these reasons, I decline to grant leave to amend.

D.  If the Amended Statement of Claim is not struck out, should the Defendant be granted summary judgment?

[66]  While my findings above are sufficient to dispose of this motion, for greater certainty I will also set out my views on the Defendant’s alternative request for relief.

[67]  The Court may grant summary judgment if it is satisfied that there is no genuine issue for trial. The test is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial: Milano Pizza Ltd v 6034799 Canada Inc., 2018 FC 1112 at paras 33-40.

[68]  As highlighted in Miller v Canada, 2018 FC 599, the general principles governing summary judgment in the Federal Court were laid out by Justice Tremblay-Lamer in Granville Shipping Co v Pegasus Lines Ltd SA (1996), [1996] 2 FC 853:

1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not to proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants v 1000357 Ontario Inc. et al, [1994] F.C.J. No. 1631, 58 C.P.R. (3d) 221 (TD));

2. there is no determinative test (Feoso Oil Limited v. Sarla) but Stone J. A. seems to have adopted the reasons of Henry J. in Pizza Ltd. v. Gillespie (Pizza Pizza). It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;

3. each case should be interpreted in reference to its own contextual framework (Blyth and Feoso);

4. provincial practice rules (especially Rule 20 of the Ontario Rules) can aid in interpretation (Feoso and Collie);

5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);

6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallman and Sears);

7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde and Sears). The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved (Stokes).

[69]  A party responding to the motion must set out specific facts and adduce the evidence showing that there is a genuine issue for trial (Rule 214). The Court shall grant summary judgment where it is satisfied that there is no genuine issue for trial (Rule 215(1)). The burden rests with the party presenting the motion but both parties must put their best foot forward: MacNeil Estate v Canada (Department of Indian and Northern Affairs), 2004 FCA 50, 316 NR 349.

[70]  If I had not found that the claim should be struck, I would conclude that the Defendant has met its burden for summary judgment. There is no genuine issue for trial, as the allegations in the Amended Statement of Claim are not based on material facts but inadmissible evidence and unreliable sources.

[71]  The Plaintiff’s pleadings do not identify a triable issue concerning the Canadian military or any other agent of the Federal Crown. They do not establish that Canada has engaged in the Aerial Discharge of chemicals, that Canada has ever been involved in a joint US-Canada military operation titled “Project Cloverleaf,” or any other similar projects. Colonel Lew’s evidence, supported by the extensive searches he conducted within the Department of National Defence and his inquiries of personnel, confirms that even if any entity was involved in an aerial spraying program in Canada, which the Plaintiff has been unable to establish, the Canadian military is not engaged in such a program, nor is it aware of such activity having ever taken place in Canada.

[72]  I agree with the Defendant that the allegations put forward by the Plaintiff in his Amended Statement of Claim are based on online conspiracy theories and lack any foundation in verifiable fact or reality. Given that this action discloses no genuine issue for trial and is likely to fail, absent the striking of the claim, summary judgment in favour of the Defendant would be the most just, most expeditious and least expensive determination of this case on the merits.

VI.  Costs

[73]  The Defendant has requested an award of costs pursuant to Tariff B of the Rules and has submitted a Bill of Costs.

[74]  Rule 334.39 displaces the Court’s broad discretion as to costs but has been the subject of little judicial consideration. At the hearing, the Defendant argued that a cost award would be appropriate and fell within the exceptions to the general principle set out in paragraphs 334.39 (1) (b) and (c).

[75]  The general principle is that awards of costs in class proceedings, including preliminary motions and appeals, are to be exceptional. The “no costs” rule applies as soon as the parties to the action are made parties to the certification motion: Campbell v Canada (Attorney General), 2012 FCA 45.

[76]  In Campbell, the Motions Judge had decided that the defendant was entitled to costs up to but not including the motion for certification. The plaintiffs discontinued the action before the certification motion was heard. The Federal Court of Appeal set aside the order below and returned the matter to the Motions Judge for a decision as to whether the appellants’ conduct fell within one of the exceptions to the Rule that would justify an award of costs.

[77]  In Wenham v Canada (Attorney General), 2020 FC 592, Justice Phelan held that the exception provision is important to the class proceeding regime and should be given a fair and liberal interpretation, which serves the purpose of disciplining inappropriate conduct by a party. In the result, Justice Phelan found that there were no exceptional circumstances to justify an award of costs against the defendant.

[78]  Justice Hugessen awarded costs against the plaintiffs in a proposed class action in Always Travel Inc v Air Canada, 2004 FC 675 but that was in respect of their motion to lift a stay of the action against insolvent defendants. That motion, in the Court’s view, was an unnecessary procedural step and should never have been brought.

[79]  In this instance, the Notice of Motion for Certification - Proposed Class Proceeding was accepted for filing by Justice LeBlanc on May 22, 2018 but suspended pending the final outcome of the Defendant’s Motion to Strike and for Summary Judgment. The cost awards by Justices LeBlanc and Manson predated that Order. The hearing before Justice Ahmed occurred a few days later and his decision dismissing the motion for leave to admit the Herndon affidavit with costs was issued on July 31, 2018. It appears that the application of Rule 334.39 was not raised before Justice Ahmed.

[80]  When the appeal of Justice Ahmed’s decision was before the Federal Court of Appeal, the Plaintiff submitted that an award of costs would be contrary to Rule 334.39. The Federal Court of Appeal made no cost award but did not comment further on whether such an award would be within the court’s discretion in the circumstances.

[81]  In my view, the conduct of the Plaintiff has unnecessarily lengthened the duration of the motion to strike and that the efforts to introduce inadmissible evidence were unnecessary. Accordingly, I am satisfied that an award of costs against the Plaintiff is justified as an exception to the general principle in Rule 334.39. Having reviewed the Plaintiff’s Bill of Costs, I will award the lump sum of $3,500.00.

JUDGMENT IN T-431-16

THIS COURT’S JUDGMENT is that:

1. The motion to strike the Plaintiff’s Amended Statement of Claim is granted without leave to amend; and

2. Costs are awarded to the Defendant in the amount of $3,500.00.

“Richard G. Mosley”

ANNEX “A”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-431-16
STYLE OF CAUSE:	DAN PELLETIER V HER MAJESTY THE QUEEN
PLACE OF HEARING:	OTTAWA, ONTARIO
DATE OF HEARING:	SEPTEMBER 3, 2020
JUDGMENT AND REASONS:	MOSLEY J.
DATED:	November 2, 2020

APPEARANCES:

Henry Juroviesky Tony Vacca	For The plaintiff
Jacob Pollice Victor Paolone	For The defendant

SOLICITORS OF RECORD:

Barristers & Solicitors Toronto, Ontario	For The Plaintiff
Attorney General of Canada Toronto, Ontario	For The defendant