Date: 20011018
Docket: T-942-00
Neutral citation: 2001 FCT 1132
BETWEEN:
THE HONOURABLE ROBERT H. NELSON
FOUNDER PRESIDENT OF PUBLIC DEFENDERS
FOR HIMSELF AND AS REPRESENTATIVE OF
ALL THOSE IMPROPERLY DENIED BENEFITS
Plaintiff
and
HER MAJESTY THE QUEEN
AS REPRESENTED BY THE HONOURABLE MARTIN CAUCHON
MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY
Defendant
REASONS FOR ORDER
Rouleau J.
[1] This is a motion to strike the Plaintiff's Amended Statement of Claim. The application is made pursuant to Rule 221 of the Federal Court Rules, 1998.
[2] This matter had been set down for trial at Vancouver for three days commencing October 16, 2001. Upon my arrival in Vancouver and after a careful review of the Amended Statement of Claim and the contents of the file, and having been made aware that the matter had not been sufficiently perfected in order to proceed as scheduled, I issued, on October 3, 2001, the following Direction which was served on both parties:
(1) Plaintiff has not filed a proper trial record.
(2) There remain outstanding costs totalling $7,000.00 which the Plaintiff has not yet paid to the Defendant.
(3) Allegations of fraud and forgery under the Canadian Criminal Code as well as certain sections of the Income Tax Act may not be within the jurisdiction of this Court.
(4) There remain eight outstanding appeals of which requirements for hearings had been filed on four of the matters but not yet entertained by the Federal Court of Appeal. I then went on to suggest that the Defendant was at liberty to file a Rule 221 motion together with any other applications he may deem appropriate and which shall be heard on October 16.
[3] On October 11, 2001 the Defendant Her Majesty the Queen filed and served a motion record, the motion being for an Order that the Amended Statement of Claim dated November 24, 2000 be struck as it discloses no reasonable cause of action, is scandalous, frivolous and vexatious and otherwise an abuse of the process of this Court; in the alternative, that certain paragraphs of the Amended Statement of Claim be struck as disclosing no reasonable cause of action, being immaterial or redundant, scandalous, frivolous or vexatious, and may prejudice or delay the fair trial of the action or otherwise an abuse of the process of this Court. The relief was sought pursuant to Rules 221(1)(a) and 221(1)(c) and (f) of the Federal Court Rules.
[4] This action was commenced by way of Statement of Claim dated May 29, 2000. In it the Plaintiff, a lay litigant acting on his own behalf, describes himself "the honourable Robert H. Nelson founder president of public defenders for himself and as representative of all those improperly denied benefits". From the outset he attributes a title to himself which in no way can be substantiated.
[5] A comprehensive review of the Amended Statement of Claim, which is somewhat difficult because of the wandering nature of its composition, appears to arise from reassessment of income tax by Canada Customs and Revenue Agency for the taxation years 1985, 1986 and 1987. The reassessments were issued in June 1989 indicating that the Plaintiff and perhaps also his wife, owed Revenue Canada in excess of $90,000.00. It was not until July 1996 that collection proceedings were seriously undertaken by the Defendant. None of the reassessments were challenged before the Tax Court of Canada.
[6] After describing the parties, the paragraphs 7 to 14 make allegations of theft, forgery on the part of officials of Revenue Canada. The remaining paragraphs make brief references to decisions in the Supreme Court of British Columbia, to all the Plaintiff's previous employers, and allegations that his right to a fair trial or treatment have been denied. Finally he alleges that he has generallybeen unfairly treated by the agents acting for Canada Customs and Revenue Agency. The prayer for relief which is at pages 9 and 10 of the initiating document are enumerated in paragraphs (a) through (w). The Plaintiff is seeking both declaratory relief and damages.
[7] A brief history of the proceedings that were initiated by the Plaintiff can be found in the affidavit in support of the motion to strike and which I have taken the liberty of reproducing herein as they relate to the allegations of the proceeding being scandalous and frivolous:
2. By Statement of Claim dated February 1, 2000, the Plaintiff commenced action no. T-174-00 in the Federal Court for damages and for various declarations arising out of various alleged actions of the Canada Customs and Revenue Agency.
3. By motion in writing dated March 2, 2000, and prior to the filing of the Statement of Defence, the Plaintiff applied in action T-174-00 for a pre-trial conference and for the setting down of the matter for a two week trial in Kelowna, B.C. commencing on August 7, 2000. The Plaintiff's motion was dismissed by Order dated May 3, 2000.
4. By motion in writing dated May 15, 2000, the Plaintiff applied in action T-174-00 for various relief including the managing of the proceeding as a specially managed proceeding and the holding of a dispute resolution conference. The Plaintiff's motion was dismissed by Order dated July 26, 2000, with costs of $300 payable to the Defendant forthwith.
5. The Plaintiff filed his Statement of Claim in action T-942-00 (the within action) on May 29, 2000. Certain of the allegations and relief claimed overlapped with that of action T-174-00.
6. On the same day he filed his Statement of Claim in action T-942-00, the Plaintiff made a motion in writing for various relief including the managing of the proceeding as a specially managed proceeding and the holding of a dispute resolution conference. The Plaintiff's motion was dismissed by Order dated July 26, 2000, with costs payable forthwith to the Defendant in the amount of $300.
7. Pursuant to an Order made at the pre-trial conference of action T-942-00 on September 28, 2000, the Plaintiff was granted leave to file an amended motion for an order to amend the statement of claim in action T-942-00 so as to include the issues covered by action T-174-00, subject to the withdrawal of proceedings in T-174-00.
8. By Order dated November 16, 2000, in response to a motion in writing dated October 10, 2000, the Plaintiff was granted leave to amend his Statement of Claim in action T-942-00 subject to withdrawal of action T-174-00. The Plaintiff was denied his motions to complete examinations for discovery within 4 weeks and for interlocutory injunctions. The Registry was directed to file the Plaintiff's Notice of Discontinuance in T-174-00.
9. By motion in writing dated October 17, 2000, the Plaintiff again applied for a dispute resolution conference in action T-942-00. The Plaintiff's motion was dismissed by Order dated November 16, 2000.
10. The Plaintiff filed an Amended Statement of Claim dated November 24, 2000, in action T-942-00 which requested all the relief outlined in action T-174-00 and the original Statement of Claim in action T-942-00 and added several other prayers for relief.
11. By direction of the Court dated December 15, 2000, the Registry was directed not to accept any further documents from the Plaintiff that were not in compliance with the Federal Court Rules.
12. By motion in writing dated November 24, 2000, the Plaintiff applied for various relief including an order that the Defendant was guilty of contempt regarding the September 28, 2000 order of this Court and for an Order requiring the Honourable Martin Cauchon, Minister of National Revenue, to attend a pre-trail settlement conference. The Plaintiff's motion was dismissed with respect to these requests by Order dated January 3, 2001, with taxable costs payable to the Defendant.
13. By motion in writing dated December 14, 2000, the Plaintiff applied for an order that the Defendant committed forgery and was in contempt of the Federal Court Rules, 1998. The Plaintiff's motion was dismissed by Order dated April 26, 2001.
14. By motion in writing dated January 4, 2001, the Plaintiff appealed the order dated January 3, 2001, and requested various other relief including an order that the Defendant was guilty of contempt regarding the September 28, 2000 order and for an Order requiring the Honourable Martin Cauchon, Minister of National Revenue, to attend a pre-trial settlement conference. Aside from scheduling the pre-trial conference for May 15, 2001, the Plaintiff's motion was dismissed by Order dated April 26, 2001.
15. By motion in writing dated March 15, 2001, the Plaintiff applied for an order that the pre-trial conference be held on April 16, 2001, and that the Honourable Martin Cauchon be required to attend a dispute resolution conference on April 16, 2001. By Order dated April 26, 2001, the Plaintiff's motion was dismissed.
16. The pre-trial conference in this action was rescheduled from May 15, 2001 and was held on May 17, 2001. By Order dated May 17, 2001, arising out of the pre-trial conference, this action was set down for three days commencing October 16, 2001 and dates were set for final Affidavits of Documents and for examinations for discovery and undertakings arising therefrom.
17. By motion in writing dated May 17, 2001, the Plaintiff appealed the May 17, 2001, order denying the Plaintiff's application for a dispute resolution conference on June 15, 2001, which resulted from the pre-trial conference and further requested that there be a dispute resolution conference on June 15, that the trial take place on July 17 in Ottawa and for an Order that a subpoena be issued for Martin Cauchon to attend as a witness at the trial. By Order dated June 14, 2001, the Plaintiff's motion was dismissed in its entirety and costs were awarded in the amount of $300 payable forthwith.
18. By motion in writing dated May 24, 2001, the Plaintiff applied for an order that a subpoena be issued for Martin Cauchon to attend as a witness in the trial of this action, that the attendance allowance and transportation allowance to be paid to Mr. Cauchon be set at $20 daily and for an order moving the trial from Vancouver to Ottawa. By Order dated June 14, 2001, the Plaintiff's motion was dismissed in its entirety and costs were awarded in the amount of $300 payable forthwith.
19. By motion in writing dated June 21, 2001, the Plaintiff applied for an order that subpoenas be issued for Robert Carvalho, Martin Cauchon, J. McKenzie, J. McNally, Michael Zuber, Selinder Pandher, Jane Stewart, Chief of Appeals, Herb Dhaliwal, Morris A. Rosenberg, Paul Martin, Anne McLellan and Jean Chretien. In dismissing the Plaintiff's motion by Order dated July 30, 2001, and awarding costs in the amount of $900 payable forthwith, Prothonotary Hargrave referred to the history of previous motions wherein the Plaintiff attempted to compel the Minister of National Revenue to attend at the trial or examination for discovery and stated:
[9] Given the history of this file and particularly its recent history, I accept the Defendant's contention that this motion is an attempt to harass the Honourable Martin Cauchon. As such it is an abuse.
[10] The conduct by the Plaintiff in this matter has been abusive. The harassment of the Crown, by attempting to subpoena witnesses who do not only have no connection to the cause of action but also who appear not to be required to prove or produce documents or to answer relevant questions, is scandalous and even outrageous conduct, particularly where at least one of the subpoenas has been specifically denied in the past.
(See Schedule "A")
20. By direction dated July 6, 2001, the Plaintiff's request for issuance of a subpoena in blank was dismissed by Prothonotary Hargrave. In dismissing the Plaintiff's request, Prothonotary Hargrave states in his direction "The dissemblance by Mr. Nelson as to the residences of some of the 32 named witnesses constitutes an abuse of the process of the Court". In ordering that the Plaintiff be required to give notice to the Defendant of any motion for a subpoena, Prothonotary Hargrave stated that "... Mr. Nelson has not been forthright in his request for a subpoena ..."
21. Upon appeal of the Direction dated July 6, 2001, Prothonotary Hargrave reconsidered the matter but refused to alter the direction and denied the request for reconsideration by Order dated July 30, 2001, with costs in the amount of $700 payable forthwith.
22. By motion in writing dated July 6, 2001, and made ex parte the Plaintiff applied for an ex parte order causing the issuance of a subpoena for the Honourable Martin Cauchon to attend the trial of this action. In dismissing the Plaintiff's motion by Order dated July 26, 2001, Prothonotary Hargrave noted that "this motion is res judicata" as a result of the June 14, 2001, Order denying this same request for relief. Further, Prothonotary Hargrave noted that his direction dated July 6, 2001, required the Plaintiff to give the Defendant notice of any application for a subpoena to compel appearance of a witness who resided more than 800 kilometres from Vancouver.
23. By motion in writing dated July 17, 2001, the Plaintiff applied for an order for various relief as follows:
h) that the Defendant was in contempt as a result of Mr. Cauchon not appearing at an examination for discovery;
i) that Mr. Cauchon be examined for discovery;
j) that the public TV news cameras be permitted at the examination for discovery and trial;
k) that the Defendant pay costs of $1,000 to the Plaintiff forthwith; and
l) that no judge appointed by the Honourable Martin Cauchon be the trial judge in this action, including the Honourable Judges Douglas R. Campbell, Pierre Blais, Francois Lemieux, J.D. Denis Pellier, John O'Keefe, Elizabeth Heneghan, Delores Hansen, Elenor R. Dawson and Edmond F. Blanchard
24. In dismissing the motion in its entirety by Order dated August 7, 2001, and in ordering costs in the amount of $900 payable forthwith, Prothonotary Hargrave stated "... it would appear that the Plaintiff, in purporting to schedule an examination for discovery of the Honourable Martin Cauchon, by sending a direction to attend an Examination for Discovery, is attempting to avoid previous Orders of this Court denying a subpoena in the name of the Honourable Martin Cauchon. This, in part, leads to the vexatious, frivolous and abusive nature of the present motion ...". Prothonotary Hargrave goes on to state that "this motion, as a whole, is vexatious, frivolous and abusive". Prothonotary Hargrave further ordered the Plaintiff was not permitted to file any further documents with this Court, except as to any appeal of this Order and in connection with any outstanding appeals, until the costs of this motion had been paid.
25. By motion in writing dated July 19, 2001, the Plaintiff applied for an Order that the Defendant pay $50,000 punitive damages to the Plaintiff for refusing to provide 74 documents allegedly requested in various Privacy Act and Access to Information Act applications. In dismissing the Plaintiff's motion by Order dated August 7, 2001, with costs of $700 payable forthwith, Prothonotary Hargrave, stated "The Plaintiff has brought a substantial number of unsuccessful motions on this file. Some of those motions have been frivolous, vexatious or abusive. Portions of the present motion are also frivolous, vexatious and abusive". Prothonotary Hargrave, further ordered the Plaintiff was not permitted to file any further documents with this Court, except as to any appeal of this Order and in connection with any outstanding appeals, until the costs of this motion had been paid.
26. By motion in writing dated July 25, 2001, the Plaintiff applied for an Order that the Defendant pay $50,000 punitive damages to the Plaintiff on various bases and for various other relief. In dismissing the motion in its entirety by Order dated August 16, 2001 with costs in the amount of $800 payable forthwith, Prothonotary Hargrave noted that much of the relief sought was moot and that the motion was "abusive and vexatious".
27. By motion in writing dated July 30, 2001, the Plaintiff appealed the Order of Prothonotary Hargrave dated July 26, 2001, and requested various other relief including an order that a subpoena issue for the attendance of Martin Cauchon at the trial of this action, that the Defendant and/or Minister attend an examination for discovery and for $50,000 punitive damages on various bases. The Plaintiff's motion was dismissed in its entirety by Order dated August 27, 2001, and costs in the amount of $700 payable forthwith were ordered.
28. By motion in writing dated August 1, 2001, the Plaintiff appealed the Order of Prothonotary Hargrave dated July 30, 2001, denying the Plaintiff's right to subpoena Martin Cauchon and requested that a dispute resolution conference, a mediation and a mini-trial be conducted in this action. The Plaintiff's motion was dismissed in its entirety by Order dated August 27, 2001.
29. By motion in writing dated August 1, 2001, the Plaintiff appealed the Order of Prothonotary Hargrave dated July 30, 2001, denying the Plaintiff's right to subpoena 32 witnesses and requested that a dispute resolution conference, a mediation and a mini-trial be conducted in this action. The Plaintiff's motion was dismissed in its entirety by Order dated August 27, 2001, with costs in the amount of $700 payable forthwith.
30. By motion in writing dated August 13, 2001, the Plaintiff appealed the Order of Prothonotary Hargrave dated August 7, 2001, denying the Plaintiff's right to subpoena and examine for discovery Martin Cauchone and requested that a dispute resolution conference, a mediation and a mini-trial be conducted in this action. The Plaintiff's motion was dismissed in its entirety by Order dated August 27, 2001, with costs in the amount of $700 payable forthwith.
31. By motion in writing dated August 13, 2001, the Plaintiff appealed the Order of Prothonotary Hargrave dated August 7, 2001, denying the Plaintiff's request for 74 documents from the Defendant and requested that a dispute resolution conference, a mediation and a mini-trial be conducted in this action. The Plaintiff's motion was dismissed in its entirety by Order dated August 27, 2001, with costs in the amount of $700 payable forthwith.
32. By motion in writing dated August 27, 2001, the Plaintiff appealed the Order of Prothonotary Hargrave, dated August 16, 2001. The Plaintiff's motion was dismissed in its entirety by Order dated September 25, 2001, with costs in the amount of $300 payable forthwith.
33. To date, none of the costs awarded that were payable forthwith have been paid by the Plaintiff.
34. The Plaintiff has appealed the following eight of the interlocutory Orders to the Federal Court of Appeal: April 26, 2001 (Plaintiff's motion dated December 14, 2000), April 26, 2001 (Plaintiff's motion dated March 15, 2001), June 14, 2001 (Plaintiff's motion dated May 17, 2001), June 14, 2001 (Plaintiff's motion dated May 24, 2001), August 27, 2001 (Plaintiff's motion dated July 30, 2001), August 27, 2001 (Plaintiff's motion dated August 13, 2001), August 27, 2001 (Plaintiff's motion dated August 13, 2001) and September 25, 2001 (Plaintiff's motion dated August 27, 2001). None of the appeals are set down for hearing and no motion to expedite any of the appeals has been made.
[8] The preceding paragraphs outline the numerous motions that this Plaintiff submitted to the Court; they were filed in writing by fax; Her Majesty's representative had to respond to some 20 matters. They required the undivided attention of Prothonotary Hargrave who was also obligated to write decisions; this task undoubtedly became frustrating in light of the continued and repetitious demands that were being submitted by this Plaintiff. More particularly, Prothonotary Hargrave summarises his views quite succinctly in the Reasons for Order that he wrote on July 30, 2001 in response to the motion outlined in application 19 which reasons I have attached and marked as schedule "A" to this Order.
[9] As indicated above, the Plaintiff had brought 20 motions in writings requesting various remedies and/or relief all of which were dismissed in their entirety by Prothonotary Hargrave. Notices of appeal were filed by this Plaintiff also in writing by fax relating to 10 of the decisions rendered by the Prothonotary. All were dismissed by presiding judges on rota in Vancouver; eight of which are now under appeal to the Federal Court of Appeal.
[10] A review of motions no. 9, 15, 17, 19, 20, 22, 24 and 26 reveals that the relief sought was almost identical in each of these motions. The Plaintiff was seeking dispute resolution conferences and pre-trial conferences which were all dismissed. In addition, most of these motions as outlined were seeking to subpoena the honourable Martin Cauchon, the Minister. In a number of the motions which were dismissed by Prothonotary Hargrave specific reasons given related to abuse of the process.
[11] It should also be noted that in a total of 11 motions before Prothonotary Hargrave and the appeals before motion judges at Vancouver, a sum of$7,000.00 was awarded by way of costs payable forthwith; none of those obligations have been discharged.
[12] Section 221(1) of the Federal Court Rules provide as follows:
[13] In order to provide the remedy being sought by the Defendant, the Court must be satisfied when striking a pleading that it is plain and obvious that the claim discloses no reasonable cause of action and the Court should allow the remedy only if satisfied; that there is not the slightest chance of success.
[14] The allegation that his rights has been violated because of what he terms as forgery and theft by officials from the Defendant Ministry must be real and not hypothetical. None of these allegations contained in paragraphs 7 to 14 are supported by any facts to substantiate the actions complained of. In Vojic v. The Minister of National Revenue, [1987] 2 C.T.C. 203 the Federal Court of Appeal wrote:
The appellant relies on bear assertions and did not produce the material facts necessary to permit an answer to his complaints. Accordingly, his statement of claim did not disclose a reasonable cause of action. It was properly struck out...
[15] Unless the facts in the statement of claim can be proved, it is indisputable that the Plaintiff's Amended Statement of Claim discloses no reasonable cause of action. Generally material facts in the statement of claim must be taken as true and in determining whether a reasonable cause of action is disclosed, cannot be based on assumptions and speculations and they cannot be taken as true simply because they are bold statements unless there is substantive facts to support the allegation. None are apparent from careful reading of the pleading.
[16] The Defendant submits there are so many allegations in the Plaintiff's Amended Statement of Claim which are so scandalous, frivolous, vexatious, immaterial or redundant, the whole Amended Statement should be struck.
[17] In Sweet et al. v. Canada (2000), 249 N.R. 17, Federal Court of Appeal wrote at page 26 paragraph 21:
It is not the duty of a judge to redraft pleadings. It is his or her duty, however, to closely examine a proceeding before determining that it cannot be saved through proper amendments
...
[a motions judge] must decide whether the document is so defective that it cannot be cured by simple amendment...
I am satisfied that this document cannot be cured by simple amendment. The allegations are totally unacceptable and devoid of any supporting facts.
[2] Turning my mind to 221(c), whether the action is scandalous, frivolous or vexatious, and under (f) the matter of abuse of the process of the Court; there is absolutely no doubt that the Plaintiff throughout this entire process has abused and harassed the Registry staff at Vancouver. As an example, since October 4 of this year he has directed to the Registry at Vancouver eight memoranda by facsimile transmission. Similarly eight to the Administrator's Office at Ottawa to the attention of Pat Levac; none of which in any way were directed to rectifying defects.
[18] Turning to the prayer for relief (a) and (b) refer the Criminal Code of Canada, section 366(1)(a), Forgery, and section 342, Theft. He suggests that the Court should uphold or enforce them. I am at a loss to comprehend unless the Plaintiff wishes the Court to find officials of the Ministry guilty of theft or forgery; there is no evidence to that effect or facts within the pleadings that would allow the Court to make such a determination; I doubt very much the Court has the jurisdiction to even entertain such a remedy; (d) through (n) refer to Orders in which the Plaintiff then describes as trust agreements to be upheld and enforced. There are no apparent agreements particularized in the Amended Statement of Claim and nothing would allow this Court to uphold or enforce any such allegation. In paragraphs (o) and (p) he seeks an interlocutory injunction to prevent the garnishee instituted by the Minister against himself and his wife. There is no authority for this Court to grant such an injunction based on the evidence that is before the Court or pleaded in the Amended Statement of Claim. Under paragraphs (q) and (r) he seeks relief against third parties who were former employers of himself and his wife.
[19] There are no allegations of facts within the Amended Statement of Claim with respect to these third parties nor can they be subjected to any possible form of remedy or obligation; they received no notice nor are they parties to these proceedings. Under paragraph (s) he seeks the return of his family home as well as sums garnished from his Old Age Pension as well as the Canada Pension Plan. There is no jurisdiction or any facts pleaded in the Amended Statement of Claim that can support this prayer for relief.
[20] Under (t) and (u) he seeks damages. Punitive damages of $50,000,000,000.00 against Canada Customs and Revenue Agency as well as general damages. There is no harm alleged within the pleadings justifying the unrealistic demands. The entire prayer for relief is obviously frivolous and vexatious.
[21] In this particular action we have a Plaintiff who initiated some 20 Rule 369 motions which required a reply by the Defendant in turn the Prothonotary had to entertain and provide written decisions; 10 motions were appealed to the Trial Division of this Court which were rejected out of hand; 8 of which have been appealed to the Federal Court of Appeal; costs have been awarded totalling $7,000.00 against the Plaintiff; he has continued to harass the Registry of the Federal Court in Vancouver as well as the Administrator in Ottawa on a number of occasions since my arrival on October 3.
[22] Undoubtedly a pleading can be found to be frivolous and vexatious where it is so clearly futile that it does not have the slightest chance of success. The jurisprudence enunciates, a pleading that has no rational basis and does not provide evidence is frivolous; no doubt the continued harassment of the Registry, the demands on counsel of the Defendant and the rejection by Mr. Hargrave as well as rota judges satisfy me that it is clearly vexatious.
[23] This Amended Statement of Claim is void of rationale, discloses no reasonable cause of action; there is not the slightest chance of success; it is clearly frivolous and vexatious and the motion to strike is hereby allowed.
[24] At the opening of the session I admonished counsel for the Defendant. It was clear to me that an application to strike should have been brought by the Defendant many months ago. He caused the Registry both in Vancouver and the Administrator's Office in Ottawa to be harassed by innumerable filings and complaints; he put himself in a position to have to reply in writing to 20 Rule 369 motions as well as 10 appeals before judges of this Court; caused Prothonotary Hargrave to respond in writing to at least 20 motions which were repetitious and frivolous and were without merit.
[25] Among a number of his arguments, counsel for the Defendant argued that this whole proceeding was frivolous and vexatious; if it was his submission and argument, I am at a loss as to why he had not sought leave of the Attorney General of Canada pursuant to section 40 of the Federal Court Act and seek to have this Plaintiff determined to be a vexatious and frivolous litigant. I allowed him 60 days to consider this direction and recommendation. I also indicated to Mr. Nelson that he should not file any further proceedings in this Court for a period of 60 days save and except he could file an appeal to this Order as well as provide any defence if an application is brought pursuant to section 40(2) of the Federal Court Act.
(Sgd.) "P. Rouleau" Judge
Vancouver, British Columbia
October 18, 2001
Schedule "A"
Date: 20010730
Docket: T-942-00
Neutral citation: 2001 FCT 843
BETWEEN:
THE HONOURABLE ROBERT H. NELSON
FOUNDER PRESIDENT OF PUBLIC DEFENDERS
FOR HIMSELF AND AS REPRESENTATIVE OF ALL
THOSE ALSO IMPROPERLY DENIED BENEFITS
Plaintiff
- and -
HER MAJESTY THE QUEEN
AS REPRESENTED BY THE HON. MARTIN CAUCHON
MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY
Defendant
HARGRAVE, P.
[1] These reasons arise out the Plaintiff's 21 June 2001 motion to subpoena a number of witnesses, well-known persons, ranging from counsel for the Defendant, through The
Honourable Martin Cauchon, Minister of National Revenue, to the Prime Minister of Canada and more specifically:
Robert Carvalho
Honourable Martin Cauchon, Minister of National Revenue
J. McKenzie
J. McNally
Michael Zuber
Selinder Pandher
Jane Stewart, Chief of Appeals
Herb Dhaliwal
Morris A. Rosenberg
Paul Martin
Anne McLellan
Jean Chretien
The subpoenas requested for these twelve witnesses are apparently in connection with the 16 October 2001 trial in this action, which deals with tax matters going back to perhaps 1984.
[26] I have considered the Plaintiff's 94 page motion record, and his reply containing affidavits, documents and argument. Many of the documents are familiar, having appeared in support of the Plaintiff's previous motions; some of the material is new; and little if any of the material is remotely relevant. Indeed, while Mr. Nelson makes bold unsupported statements in his written arguments as to the need for the twelve witnesses, none of the facts deposed to by Mr. Nelson support the granting of any of the subpoenas requested.
[27] By way of further background, the Plaintiff, by motion dated 15 March 2001, applied to have a pre-trial conference set down for 16 April 2001 and for an order that the Minister of National Revenue, The Honourable Martin Cauchon, attend. That motion was dismissed by Mr. Justice Campbell, by order of 26 April 2001. That order was appealed, the Plaintiff requesting the Federal Court of Appeal to require that Mr. Cauchon attend a dispute resolution conference on 15 May 2001. The appeal is still outstanding.
[28] By order of 17 May 2001, an order which arose out of a pre-trial conference that day, I set the trial in this matter for 16 October 2001 and provided various notification requirements which the Plaintiff was to follow should he wish leave to issue a subpoena against The Honourable Martin Cauchon, to require him to attend at the trial. This order was appealed to Mr. Justice MacKay, who dismissed the appeal on 14 June 2001, with costs against the Plaintiff.
[29] By yet another notice of motion, this one dated 24 May 2001, the Plaintiff again applied for a subpoena of The Honourable Martin Cauchon, to require him to attend at the trial, a motion which was dismissed by Mr. Justice MacKay, again by order of 14 June 2001 and again with costs against the Plaintiff.
[30] Both of Mr. Justice MacKay's orders of 14 June 2001 are under appeal.
[31] A party seeking a subpoena for a witness must establish that the witness is required in order to prove or produce a document or to answer relevant questions. Indeed, a subpoena must be issued in good faith for the purpose of obtaining relevant evidence: see for example The King v. Baines [1909] 1 K.B. 258, at 261 and 262. A subpoena ought not to be issued where the result is oppression, and indeed as set out in Senior v. Holdsworth, Ex parte Independent Television News Ltd. [1976] 1 Q.B 23, a decision of the Court of Appeal, a subpoena will be set aside where it is oppressive or an abuse of the process of the Court: see Senior v. Holdsworth at page 40 where Lord Justice Scarman considers the impropriety of issuing a subpoena for some purpose other than to obtain relevant evidence, for example to cause political embarrassment or where the intended witness has no relevant evidence to give.
[32] There is no evidence in Mr. Nelson's material that any of the persons for which he wishes subpoenas issued were involved in any of the events giving rise to the action. Nothing in Mr. Nelson's affidavit material satisfies the onus of establishing that any of the witnesses are required in order to prove or produce a document or to answer relevant questions. Moreover, subpoenas have already been the subject of unsuccessful motions by the Plaintiff including, specifically, motions to subpoena The Honourable Martin Cauchon.
[33] Given the history of this file and particularly its recent history, I accept the Defendant's contention that this motion is an attempt to harass The Honourable Martin Cauchon. As such it is an abuse.
[34] The conduct by the Plaintiff in this matter has been abusive. The harassment of the Crown, by attempting to subpoena witnesses who not only have no connection to the cause of action but also who appear not to be required to prove or produce documents or to answer relevant questions, is scandalous and even outrageous conduct, particularly where at least one of the subpoenas has been specifically denied in the past.
[35] Awarding costs against a party bringing an unsuccessful motion is not only a means to indemnify the successful litigant, to one degree or another, but also a means of deterring frivolous or outrageous conduct. However I must also keep in mind that, even in special circumstances which suggest a substantial award of costs, I should keep costs within limits so as not to deter a party from bringing uncertain but meritorious claims. This was all neatly put by Madam Justice McLaughlin of the B.C. Court of Appeal, as she then was, in Houweling Nurseries v. Fisons Western Corporation (1989) 37 B.C.L.R. (2d) 2, at 25:
...Costs in our system of litigation serve the purpose, not only of indemnifying the successful litigant to a greater or lesser degree, but of deterring frivolous actions or defences. Parties, in calculating the risks of proceeding with a particular action or defence, should be able to forecast with some degree of precision what penalty they face should they be unsuccessful. Moreover, there is a sound reason for keeping costs within relatively modest limits. The possibility of high costs may unduly deter a party from bringing an uncertain but meritorious claim or defence.
[36] Taking all the circumstances into consideration, and particularly the tenacity with which the Plaintiff has pursued the subpoena issue in the face of past unfavourable orders and directions, an appropriate lump sum for costs, payable by the Plaintiff to the Defendant, is the maximum amount under Column Four of Tariff B, $900.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
30 July 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-942-00
STYLE OF CAUSE: Nelson v. HMTQ et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 16, 2001
REASONS FOR ORDER OF THE COURT BY: Rouleau J.
DATED: October 18, 2001
APPEARANCES:
Robert H. Nelson PLAINTIFF
Robert Carvalho FOR DEFENDANT
SOLICITORS OF RECORD:
- FOR PLAINTIFF
Deputy Attorney General of Canada FOR DEFENDANT
Vancouver, British Columbia