Date: 20040730
Docket: T-859-04
Citation: 2004 FC 1051
BETWEEN:
ROY HARRIS
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA,
THE ATTORNEY GENERAL OF BRITISH COLUMBIA,
THE CITY OF VANCOUVER (VPD), BERT RAINEY ET AL,
and GARY SNARCH
Defendants
[1] By this action Mr. Harris claims various relief against a number of people, including against Mr. Gary Snarch, a lawyer who practises in Vancouver. Mr. Snarch represented a defendant in a 1988 action brought by Mr. Harris, which was dismissed as against Mr. Snarch's client in 1989. The present claim against Mr. Snarch, by Mr. Harris, going back to that 1988 action, is that:
3. The Defendant, GARY STEVEN SNARCH, (herein called "SNARCH") is responsible for Theft of Copyright and Intellectual property of the Plaintiff HARRIS and fraud as well as Defamation of Character and Libel of the Plaintiff in this action and the DEFENDANT GARY STEVEN SNARCH has filed a claim with the Legal Insurance fund of British Columbia file No. 02-231 because of his negligence against the Plaintiff HARRIS.
In paragraph 4 of the present Statement of Claim there is mention of Mr. Snarch, but not in the context of a claim against him.
[2] Counsel for Mr. Snarch moves to strike out the claim as against his client on several grounds. The claim as against Mr. Snarch is struck out and dismissed, without leave to amend. I now consider this in more detail, beginning with some pertinent background.
BACKGROUND
[3] In 1988 Mr. Harris and two of his companies commenced an action against Forstar Trading Inc., Pocock Industries Ltd., Larry Pocock and Y.C. Trading Corporation. Central to this B.C. Supreme Court action was a business proposal, said to have been put to Forstar Trading Inc. and to Pocock Industries Ltd., involving a custom cutting and sale of yellow cedar lumber, some of which was accomplished. At issue in that 1988 action were claims for, among other things, damages and an injunction to prevent the defendants from "continuing to appropriate the corporate opportunity." Mr. Snarch acted for Forstar Trading Inc., with Mr. Harris appearing on his own behalf and on behalf of his companies.
[4] On 29 June 1989 Mr. Justice Catliff, of the B.C. Supreme Court, dismissed the claim as against Mr. Snarch's client. It was this successful defence of Forstar Trading Inc., by Mr. Snarch, and advice which Mr. Harris believes that Mr. Snarch gave to Forstar Industries which gives rise to the present action.
CONSIDERATION
[5] Counsel moves to strike out the claim as against his client, Mr. Snarch, on the grounds that
1. the Statement of Claim lacks the particulars required by Rule 174;
2. the Statement of Claim does not set out a reasonable cause of action as against Mr. Snarch;
3. the Statement of Claim is scandalous, frivolous, vexatious and an abuse of process;
4. the Federal Court does not have the jurisdiction to entertain the action; and
5. the claim is statute-barred pursuant to section 3 of the British Columbia Limitation Act.
Some General Principles
[6] I will begin with several general observations on the grounds relied upon for striking out a portion of the Statement of Claim. First, a pleading which does not contain sufficient material facts, that is sufficient particulars, is fundamentally vexatious and will not lead to any practical result: see for example Pellikean v. The Queen [2002] 4 F.C. 169 at paragraphs 15 and 35. Second, in testing for want of a reasonable cause of action I must accept what is set out in the Statement of Claim as if it were proven and then only strike out if it is plain, obvious and beyond doubt that the claim will not succeed as set out in Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959, Operation Dismantle Inc. v. The Queen [1985] 1 S.C.R. 441 and Canada v. Inuit Tapirisat of Canada [1980] 2 S.C.R. 735. Third, the standard for striking out a scandalous, frivolous or vexatious pleading is at least as stringent as that for striking out for want of a reasonable cause of action, as in Waterside Ocean Navigation Co. Inc. v. International Navigation Ltd. [1977] 2 F.C. 257 and that same standard applies in the case of an abuse of the process of the Court. Fourth, an objection to a pleading by way of want of jurisdiction may be brought either under Rule 221(1)(a), want of reasonable cause of action, or under the inherent powers of the Court, however unlike the situation of want of reasonable cause of action, it may be supported by affidavit evidence as set out in Mil Davie Inc. v. Hibernia Management and Development Co. (1998) 26 N.R. 369 (F.C.A.) and indeed there is no need to invoke Rule 208, which deals with preliminary objections to jurisdiction for Rule 208 is merely to ensure that there is no implication that a party has attourned to jurisdiction. Fifth, the general case law is to the effect that a pleading ought not to be struck out on the basis of a time bar, for such a limitation is a defence, either to be raised as a stated case or at trial and here I would refer to BMG Music Canada Inc. v. Vogiatzakis (1996) 67 C.P.R. (3d) 27 at 33 and following and Watt v. Canada, an unreported 21 January 1998 Federal Court of Appeal action, A-448-97, leave to appeal to the Supreme Court of Canada refused (1998) 231 N.R. 396.
[7] There are also two preliminary points, one dealing with the fact that Mr. Snarch has filed a defence and the other with some affidavit evidence provided by Mr. Snarch which is relevant, but which may technically be inadmissible. Dealing with the first point, once a pleading has itself been pleaded to, here a Defence to a statement of claim, it is not permissible to move to strike out, except as to jurisdiction or want of a reasonable cause of action, unless there is a reservation, for example where the Defence raises the same ground as the motion to strike out and here I would refer to Olmstead v. Canada (1998) 156 F.T.R. 111. In this instance the defence of Mr. Snarch sets out that not only does the Statement of Claim disclose no reasonable cause of action and that the claim is beyond the jurisdiction of the Court, but also, that the Statement of Claim is scandalous, frivolous, vexatious and an abuse of process. Thus the defence presents no bar to the present motion.
[8] The second point concerns paragraphs 10, 11 and 12 of the affidavit in support of the motion, and related exhibits. This material is relevant, involving a non-client complaint lodged by Mr. Harris, against Mr. Snarch, with the Law Society between about 1998 and 2001, apparently involving the 1988 B.C. Supreme Court action. Section 87(2) of the Legal Profession Act, Statutes of British Columbia 1998, chapter 9, provides that:
If a person has made a complaint to the society respecting a lawyer, neither the society nor the complainant can be required to disclose or produce the complaint and the complaint is not admissible in any proceeding, except with the written consent of the complainant.
I have considered whether Mr. Harris, by raising the issue of the denial of his complaints to the Law Society about Mr. Snarch in this present motion, may have waived the right to non-disclosure and inadmissibility provided by section 87(2) of the Act. However I do not have to decide that point for while the material is certainly not helpful to Mr. Harris in the present instance, I can decide the present motion without the need to consider the material, the correspondence between Mr. Harris and the Law Society, which is granted privilege by section 87(2) of the Legal Profession Act.
Lack of Particulars
[9] Federal Court Rule 174 provides that:
| Material facts
174. 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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Exposé des faits
174. Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l'appui de ces faits. |
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This concept, that a pleading must contain material facts, is fundamental. The reference to a material fact is the equivalent to an essential fact. Indeed, it is essential that a litigant pleading a claim must go beyond the bare allegation of a right or an obligation, but must set out the facts giving rise to that right or obligation in an intelligible form. Here I would refer to Guetta v. The Queen (1975) 17 C.P.R. (2d) 31 (F.C.T.D.) at 33:
Upon sound principles of pleading it is necessary to allege what must be a cause of action, it is not sufficient to allege that there is a right or an obligation without setting out the facts giving rise to the right or obligation, and a defendant is entitled to have a plaintiff's case presented in an intelligible form.
Unlike the situation in Guetta, where the statement of claim contained not only inadequate material, but also much irrelevant material, the present Statement of Claim, as it concerns Mr. Snarch, contains so little by way of material facts that a defendant would have difficulty understanding the approach of Mr. Harris and a Court would have a near impossible task in regulating the matter at trial. As I have suggested a want of material facts, a point on which the courts have taken a very strict view, places a defendant at a disadvantage. This is a long standing concept and here I would refer to Bruce v. Odhams Press Ltd. [1936] 1 K.B. 697 at 712, the Court of Appeal referring to their contemporary version of Federal Court Rule 174:
The cardinal provision in rule 4 is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is omitted, the statement of claim is bad; it is "demurable" in the old phraseology and in the new is liable to be "struck out" ...".
This observation, in the Bruce case, was made a number of years ago, but age does not detract from the rule that one may not disregard the niceties of pleadings by failing to provide enough particulars. Indeed, that was the view taken by the B.C. Supreme Court in Homalco Indian Band v. British Columbia (1999) 25 C.P.C. (4th) 107, in which counsel for the plaintiff submitted that if enough material facts might be found in the whole of the statement of claim, it need not be prepared in a conventional way. The response to this from the Court was that:
A statement of claim must plead the causes of action in the traditional way so that the defendant may know the case he has to meet to the end that clear issues of fact and law are presented for the court.
[Paragraph 9]
In Homalco the statement of claim was a lengthy one. There the judge was able to find enough material to indicate that by amendment, to plead in a proper manner, the statement of claim might be salvaged. In contrast, in the present situation, even though Mr. Harris submits that all of the material in the Statement of Claim is interrelated, there are not enough particulars, pointing to any cause of action, to indicate that any amendment might assist.
[10] In the present instance the situation is close to that faced by the Court of Appeal in Vojic v. Canada (1987) 41 D.T.C. 5384, the Court referring to part of the statement of claim as "purely scurrilous", to allegations of theft and fraud and to the fact that, in their view, Mr. Vojic was unable to grasp the concept that bare assertions of conclusions, without sufficient material facts, resulted in an action which ought to be struck out: all of this is very apropos paragraph 3 in the Statement of Claim of Mr. Harris in which he refers to his claim against Mr. Snarch.
[11] Mr. Harris tries to expand the plea against Mr. Snarch by asserting that everything in the Statement of Claim was interrelated, including false statements said to be made by Mr. Snarch to the Vancouver Police Department and to the Royal Canadian Mounted Police, numerous attempts on his life including the cutting through of the brake lines of his minivan and, an unfortunate incident, "a suspicious death of the plaintiff's mother in South Africa in 1995.": none of this is the least bit relevant in finding particulars to either assist Mr. Snarch in defending or to provide Mr. Harris with a basis for amendment to the Statement of Claim. Indeed, what we have here is a statement of claim bereft of particulars to the extent that Mr. Snarch could not properly investigate nor properly respond to it and thus it ought to be struck out as fundamentally vexatious: see for example Pellikean v. Canada [2002] 4 F.C. 169 at 182.
[12] To summarize, paragraph 3 of the Statement of Claim must be struck out and the claim against Mr. Snarch dismissed, for it is so bereft of particulars as to be fundamentally vexatious. It is plain, obvious and beyond doubt that paragraph 3 will not lead to any practical result. Yet there are other reasons why the Statement of Claim ought to be struck out and which should be dealt with at this time: I therefore turn to whether there is a reasonable cause of action set out against Mr. Snarch.
Reasonable Cause of Action
[13] Accepting paragraph 3 at face value, as I must, that is as if proven, it begins by alleging theft of copyright and intellectual property. This is not a plea of copyright infringement, nor is there anything in the Statement of Claim, taken as a whole, to indicate an infringement or a using by Mr. Snarch of whatever copyright and intellectual property Mr. Harris claims. Nor, on the pleading, is it a conversion in the sense of willful and unjustified interference with property, or the depriving of Mr. Harris of any property: that is just not in the pleadings. As to the allegation of theft itself, that was never a civil cause of action nor even a common law crime, except perhaps in Scotland. Certainly in Canada it is a statutory crime dealt within the Criminal Code. It is not something upon which a cause of action, between individual defendants in a civil proceeding, might be founded. The portion of paragraph 3 alleging theft of copyright and intellectual property does not constitute a cause of action. Plainly, obviously and beyond doubt it will not succeed and should be struck out.
[14] The plea of fraud, defamation of character and libel is so incomplete and so bereft of particulars that it does not constitute a reasonable cause of action. Again it is a plea that plainly, obviously and beyond doubt cannot succeed.
[15] Mr. Harris goes on in the Statement of Claim to refer to a claim which he alleges was filed by Mr. Snarch with the Legal Insurance Fund of British Columbia, No. 02-231, relating to negligence vis-a-vis Mr. Harris. The material to refute that is not caught by the privilege claim in the Legal Profession Act, for that is outside of the Law Society proceedings. From the material before me it appears to be a claim, subsequent to a rejection of a similar claim by the Law Society, to the Insurance Fund by which lawyers in British Columbia are insured, initiated by Mr. Harris. In a letter of 27 May 2002, to the Insurance Fund of the Law Society of British Columbia, Mr. Harris alleges that he was defrauded of more than $30 million. Mr. Harris also refers to theft under the Criminal Code and to the matter as being an indictable offence giving rise to a term of incarceration not exceeding ten years. Again this lead to no reasonable cause of action whatsoever.
[16] In summary, paragraph 3 of the Statement of Claim is struck out for want of a reasonable cause of action, for it is plain, obvious and beyond doubt that the allegations in paragraph 3 of the Statement of Claim will not succeed.
Frivolous and Vexatious
[17] I have already observed that paragraph 3 of the Statement of Claim is fundamentally vexatious by reason of a lack of particulars. However the plea may be not only vexatious, but also frivolous, in its own right, leading to the claim being struck out.
[18] The case of Larden v. Canada (1998) 145 F.T.R. 140, at page 150, ties together the concepts of frivolousness and vexatiousness. A frivolous and vexatious claim is one that is obviously unsustainable and so palpably bad that it requires no real argument to convince a court that it will not lead to a practical result and ought to be struck out. To reach this determination I may, in contrast with the process of looking for a reasonable cause of action, consider affidavit material. This approach suggests a situation similar to that giving rise to the following passage from Larden (supra), at page 150:
A frivolous plea is one which is so palpably bad that it requires no real argument to convince the Court, indeed it is a plea indicative of bad faith. A frivolous and vexatious action includes a proceeding which is brought or carried on by a plaintiff who is not acting bona fide: it is a proceeding which will not lead to a practical result. The words frivolous and vexatious define a claim which is obviously unsustainable: Attorney General of the Duchy of Lancaster v. London and North Western Railway Company [1892] 3 Ch. 274 at 277 (C.A.). The expression frivolous and vexatious includes proceedings which are an abuse of process: Ashmore v. British Coal Corp., [1990] 2 Q.B. 338 at 347 (C.A.). An abusive action is one which misuses or perverts the procedure of the Court. It has been characterized as an action which can lead to no possible good, one where the defendants are to be dragged through long and expensive litigation for no possible benefit: see Lord Justice Bowen's Judgment in Willis v. Earl Beauchamp (Earl) (1886) 11 P.D. 59 at 63 (C.A.).
[19] This passage involves concepts of bad faith, misuse and perversion of the justice system and the dragging of a defendant through costly litigation for no possible benefit. In the present instance it is clear that paragraph 3 of the Statement of Claim is not the product of a plaintiff acting in a bona fide manner, but rather is a plea indicative of bad faith. All the more so when one considers the scurrility, vulgarity and maliciousness contained in material generated by Mr. Harris and contained both in the exhibits attached to the affidavit of Mr. Snarch, the written representations provided by Mr. Harris and the material referred to by Mr. Harris in his submissions, including the affidavit of Mr. Harris filed 29 April 2004 in a companion Federal Court action, Harris v. Attorney General of Canada, T-483-04. While the latter document is not determinative, I may consider it, even if it was used in an earlier interlocutory proceeding in another matter, on the basis of James v. Minister of National Revenue (1996) 115 F.T.R. 277, a decision of Mr. Justice Rothstein as he was then.
[20] From the point of view of being a frivolous, vexatious and abusive plea, paragraph3 of the Statement of Claim is one which plainly, obviously and beyond doubt is unsustainable and will not lead to a practical result. It misuses and perverts the procedure of the Court to the extent that it can lead to no possible good or benefit. All of this is also a ground upon which paragraph 3 of the Statement of Claim is struck out.
Jurisdiction
[21] I now turn to the final segment of this consideration, the submission of counsel for Mr. Snarch that the claim set out in paragraph 3 of the Statement of Claim is beyond the jurisdiction of the Federal Court.
[22] Paragraph 3 of the Statement of Claim begins with the allegation of theft of copyright and here I note, on the affidavit material, that the involvement of Mr. Snarch with Mr. Harris was not one of solicitor and client but rather that of a barrister acting for a party who successfully opposed Mr. Harris in litigation commenced in 1988 and concluded in 1989. The reference to theft of copyright and intellectual property has all the earmarks of an attempt by Mr. Harris to disguise the proceeding as a copyright matter. This is unsuccessful for theft is not a part of any copyright jurisdiction of the Federal Court. More basic is the fact that the Federal Court does not have jurisdiction over claims between subjects, where the cause of action is said to be, as in this instance, defamation, libel, fraud and negligence.
[23] To elaborate, the Federal Court is a statutory court. The Supreme Court of Canada has set out a three-part test for the determination of the jurisdiction of the Federal Court in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. [1986] 1 S.C.R. 752 at 766:
The general extent of the jurisdiction of the Federal Court has been the subject of much judicial consideration in recent years. In Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and in McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential requirements to support a finding of jurisdiction in the Federal Court were established. They are:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.
All three of these requirements must be established before the Federal Court may claim jurisdiction.
[24] In this instance I need go no farther than the first branch of the Miida Electronics test. I am unaware of any applicable statutory grant of jurisdiction, between subject and subject, in either the Federal Courts Act or elsewhere. Moreover, there is applicable analysis on this point in Kane v. Hooper (1996) 68 C.P.R. (3d) 267. In that instance at issue was whether the action was one primarily concerned with copyright, or primarily concerned with contractual and partnership arrangements. Thus Kane is analogous to the present situation in which paragraph 3 of the Statement of Claim, while alluding to copyright, is in reality a claim founded in defamation, libel, fraud and negligence. In Kane v. Hooper the starting point was Titan Lankebit Corp. v. S.E.E. See Electronic Engineering Inc. (1992) 44 C.P.R. (3d) 469, a decision of Associate Chief Justice Jerome. After referring to the Miida Electronics test Associate Chief Justice Jerome wrote:
There is no question therefore, that in so far as an action pertains to the infringement of a patent, copyright or trade mark, the federal legislation embodied in the Patent Act, R.S.C. 1985, c. P-4; the Copyright Act, R.S.C. 1985, c. C-42; the Trade-marks Act, R.S.C. 1985, c. T-13, and the Federal Court Act, R.S.C. 1985, c. F-7, confer jurisdiction on this court. It is equally clear that the court has no jurisdiction to entertain a dispute which is based solely on a contract between citizen and citizen.
Intellectual property disputes which include contractual disagreements are not unusual. It will not preclude the court's jurisdiction, provided the subject- matter of the action primarily concerns a patent, trade mark or copyright.
[Page 472]
While Associate Chief Justice Jerome was writing in the context of a contractual matter as an adjunct to a copyright action, the same principle applies where torts, such as defamation, libel, fraud or negligence, are involved. In Titan Lankebit the contractual aspect was only an incidental matter. In contrast, in the present action by Mr. Harris, the claim in paragraph 3, in reality, contains not even a bona fide vestige of a copyright claim which might bring the action within section 20 of the Federal Courts Act.
[25] In summary, the Federal Court does not have a statutory grant of jurisdiction to deal with claims between subject and subject, involving tort. As a statutory court it must, as a first step in claiming jurisdiction, have a statutory grant of jurisdiction. The claim is therefore struck out for want of jurisdiction.
CONCLUSION
[26] The claim against Mr. Snarch put forward in the Statement of Claim filed by Mr. Harris on 3 May 2004 is struck out so far as it makes allegations against or seeks relief against Gary Steven Snarch. It is one which plainly, obviously and beyond doubt cannot succeed. Nor is there in paragraph 3 of the Statement of Claim a scintilla of a cause of action which might, by amendment, be parlayed into a viable claim. Indeed, the whole proceeding by Mr. Harris against Mr. Snarch smacks of mala fides. That sounds in costs. The situation is compounded by the fact that Mr. Harris, before this motion was heard, was denied the joinder of a large number of defendants, several of whom were lawyers, who had acted for someone else and were only candidates for adding as parties because they had successfully representative their clients against Mr. Harris. The action against Mr. Snarch should never have been commenced. This motion should never have been required.
[27] Costs are assessed, on this motion, on the basis of Tariff B, Column V, in the lump sum of $1,500, payable forthwith.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-859-04
STYLE OF CAUSE: ROY HARRIS v.
THE ATTORNEY GENERAL OF CANADA et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 26, 2004
REASONS FOR ORDER AND ORDER: HARGRAVE, P.
DATED: July 30, 2004
APPEARANCES:
Mr. Roy Harris on his own behalf
Mr. Vince Critchley for Defendant Gary S. Snarch
SOLICITORS OF RECORD:
Quinlan, Abroux for Defendant Gary S. Snarch
Vancouver, British Columbia