Date: 20040921
Docket: T-827-03
Citation: 2004 FC 1289
Ottawa, Ontario, this 21st day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
NORMAN A. MINTZER
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion for summary judgment by the Crown. At the hearing before me on June 14, 2004, the Crown modified the relief requested to exclude that portion of Mr. Mintzer's claim embodied in para. 69(d) of the Statement of Claim which reads as follows:
d) A declaration that the defendant is responsible for the unlawful search and seizure of the plaintiff's income tax records and litigation files on April 9, 2003, in breach of the Charter of Rights.
[2] The Crown says that all other components of the claim are res judicata and/or out of time.
[3] Having reviewed the materials filed by the parties and heard their oral arguments, I am of the view that the motion should succeed in part. Some of the issues raised in the claim are matters of fact or law which could have been raised in previous litigation between the parties in T-1768-94 and T-1909-95 and are res judicata within the extended definition of that term established by the jurisprudence. See, for example, Canada v. Chevron Canada Resources Ltd., [1999] 1 F.C. 349 (C.A.) at paras. 36 - 37. In other words, Mr. Mintzer is seeking to raise some matters of fact or law directly related to the subject matter of previous litigation and that could have been, with reasonable diligence, raised in earlier actions. Res judicata is not confined to the issues which the court is actually asked to decide, but also covers issues and facts that are clearly part of the subject matter of prior litigation and so could have been raised. Hence, it would be an abuse of the process of the Court to allow a new proceeding on those issues or facts.
[4] Issues now raised by Mr. Mintzer in his claim concerning the death of Victor R. Bernard and the mental incapacity of Edith Bernard are matters that were referred to and/or could have been raised in T-1768-94 and T-1909-95.
[5] As regards Mr. Mintzer's own heart condition, para. 10 of T-1768-94, says that "the Plaintiff was forced to cease taking a portion of his prescribed heart medication because of the said seizure of his Canada Pension Plan Benefits by the defendant, and his life has been thereby endangered ... ." But his by-pass surgery did not take place until September 2003. So he could have raised his heart condition and, in fact, did in the earlier action; but now he wishes to make the Crown responsible for his by-pass surgery.
[6] In Kanematsu GmbH v. Acadia Shipbrokers Ltd. (2000), 259 N.R. 201, the Federal Court of Appeal held that on a motion for summary judgment both sides must file such evidence as is reasonably available to them which could assist the Court in determining if there is a genuine issue for trial. The responding party cannot rest on its pleadings and must provide specific facts showing there is a genuine issue for trial.
[7] Numerous cases have established that, while the burden lies with the moving party to establish that there is no genuine issue for trial, both parties must put their best foot forward. See, for instance, F. Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology Inc. (1999), 1 C.P.R. (4th) 88. The parties cannot simply rely upon their pleadings.
[8] On the issue of his heart condition and by-pass surgery, there is nothing on the record that would disclose to the Court that there is a serious reason to send this matter to trial. But the Crown does not assert this in its motion or Memorandum of Law. It is true that, in the motion, the Crown cites Rules 213 - 219, Federal Court Rules, 1998 as a ground for the motion. But in its Memorandum of Fact and Law the Crown is quite specific in asserting that the action should be dismissed for reasons of res judicata and time limitations only.
[9] As regards Mr. Mintzer's request in his claim for a "declaration that the Defendant is responsible in whole or in part for Mr. Mintzer's heart condition and the resulting by-pass surgery," I must conclude that the issue of Mr. Mintzer's by-pass surgery has not been raised and could not have been raised in previous actions although Mr. Mintzer has certainly raised issues of heart medication and the threat to his life because of the seizure by the Crown of his Canada Pension Plan Benefits.
[10] The release executed by the Plaintiff in relation to T-1909-95 on February 29, 2000, relates to "all claims and demands set out in the Statement of Claim in said action No. T-1909-95."
[11] The problem with this is that T-1909-95 has a Statement of Claim dated September 11, 1995, which, in para. 24 again refers to his heart problems, and an Amended Statement of Claim dated January 2, 1999 which makes no mention of his heart condition. The release is poorly drafted.
[12] I can only take the release to refer to the Amended Statement of Claim in T-1909-95 so that the conclusion of this action with a release does not preclude an action in relation to by-pass surgery. The release is very narrow and, by its terms, refers to only the specific claims set out in T-1909-95.
[13] The declaration sought by Mr. Mintzer in para. 69(e) of his Statement of Claim concerning the extinguishment of any income tax debt on May 30, 1991 and monies taken or retained by the Crown after that date once again raises matters of fact and law related to the previous actions in T-1768-94 and T-1909-95 and, as such is res judicata.
[14] In paras. 69(f), (g) and (h) of his claim Mr. Mintzer asks for general, special and punitive damages but there is no indication what any head of damage relates to. Once again, however, the Crown only objects to these claims in so far as they relate to matters that are res judicata or out of time.
[15] The Crown also claims that paras. 69(a), (b), (c) and paras. 69(f), (g) and (h), in so far as they relate to res judicata issues, are beyond any applicable limitation period and should be struck for this reason as well. I agree with the Crown in this regard except that I do not regard para. 69(b) as out of time in so far as it relates to the by-pass surgery.
[16] This leaves para. 69(c), which the Crown concedes was not raised in the previous litigation but, nevertheless, refers to matters that are out of time.
[17] Mr. Mintzer has put forward no facts or evidence that would enable the Court to determine if there is a genuine issue that could go to trial in relation to 69(c) that is not well beyond any applicable standard of limitations and I have to agree with the Crown that 69(c) should not be allowed to proceed on this basis.
[18] This leaves Mr. Mintzer with the claim set out in 69(c), the claim set out in 69(b) - but only in so far as it relates to his by-pass surgery - the claims set out in 69(f), (g) and (h) (but not as regards anything excluded by either res judicata or time limitation), and the claims set out in 69(i) and (k).
[19] Mr. Mintzer seeks to answer the Crown's motion in various ways but he graciously conceded at the hearing that his Statement of Claim in this action could use some improvements.
[20] He says that the Crown is unable to bring this motion because of its previous application to strike which was dealt with by Prothonotary Tabib in her order of July 14, 2003.
[21] There is nothing in the order of Prothonotary Tabib or in the jurisprudence concerning res judicata that would preclude this motion for summary judgment. Mr. Mintzer's argument is essentially that the Crown could have raised issues of res judicata and expiry of limitation periods in its application to strike but did not do so. Hence, the Crown should not now be allowed to come back to the Court and, in effect, have claims struck under an order for summary judgment. The different purposes of a motion to strike and a motion for summary judgment suggest to me that Mr. Mintzer cannot use the doctrine of res judicata in this way.
[22] Mr. Mintzer also says that res judicata is only available where there has been an adjudication by a court on the merits and that it does not apply to matters settled by agreement, discontinuance, status review or want of prosecution. He says that T-1768-94 was not judicially determined on the merits but was dismissed on status review because the court would not give leave to discontinue with costs. T-1768-94 was replaced by T-1909-95 which, in turn, was settled by agreement between the parties.
[23] I do not read the doctrine of res judicata as being confined in this way.
[24] Mr. Mintzer has raised various other objections which I have considered but I do not believe are relevant to, or prevent, the Crown from seeking and obtaining the relief to which I believe it is entitled.
[25] On the issue of costs, the Crown has only been partially successful and I do not believe that any order should be made.
[26] Mr. Mintzer has asserted in his Memorandum of Fact and Law and in his oral presentation that he believes his action is "inter alia, for damages for breach of a settlement agreement."
[27] That assertion plays no role in this decision, but I believe that it might be worth mentioning in passing that his Statement of Claim is seriously defective if breach of a settlement agreement is part of the action.
ORDER
THIS COURT ORDERS that
1. The Crown's motion for summary judgment is granted in part;
2. Only the following issues shall proceed to trial in the usual way:
a) the issue of whether, under paragraph 69(b) of the Claim, Mr. Mintzer is entitled to a declaration that the Crown is responsible in whole or in part for Mr. Mintzer's by-pass surgery;
b) the issue of whether, under paragraph 69(d), Mr. Mintzer is entitled to a declaration that the Crown is responsible for the unlawful search and seizure of his income tax records and litigation files on April 9, 2003, in breach of the Charter of Rights;
c) the issues concerning damages raised in paragraphs 69(f), 69(g) and 69(h), but not as regards any issues upon which the Crown has been granted summary judgment in accordance with this Order and Reasons for Order;
d) the issues raised in paragraphs 69(i) and 69(k) of the Statement of Claim.
3. No order is made as to costs.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-827-03
STYLE OF CAUSE: NORMAN A. MINTZER V. HER MAJESTY THE QUEEN
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 14th, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Russell
APPEARANCES:
Mr. Norman Mintzer FOR PLAINTIFF
Ms. Tamara Sugunasiri FOR DEFENDANT
Mr. Joel Oliphant FOR DEFENDANT
SOLICITORS OF RECORD:
Norman A. Mintzer
2 Brownstone Lane
Toronto, ON M8X 2Z6
FOR APPLICANT
Department of Justice
Exchange Tower
130 King Street West
Toronto, ON M5X 1K6 FOR RESPONDENT