T-593-00
2002 FCT 221
Arjen Pellikaan (Plaintiff)
v.
Her Majesty the Queen (Defendant)
Indexed as: Pellikaan v. Canada (T.D.)
Trial Division, Hargrave P.--Vancouver, February 25 and 27, 2002.
Practice -- Pleadings -- Motion to Strike -- Dairy farm, cheese-making operation closed down for failure to process and pasteurize in accordance with B.C. Milk Industry Act -- Plaintiff alleging discrimination, contrary to Charter, conspiracy, breaches of contract, misrepresentation, trespass, illegal seizures -- Case law on striking out pleadings reviewed -- Deficient pleading -- Lack of material facts -- Inability to provide particulars -- Proceeding fundamentally vexatious, displaying no reasonable cause of action -- No possibility of curative amendment.
The plaintiff operated a substantial dairy farm and cheese- making operation near Chilliwack, B.C. His enterprise was closed down in 1990 for failure to process and pasteurize his milk and dairy products in accordance with the Milk Industry Act of British Columbia. In essence, the plaintiff alleges that the Canadian Dairy Commission and the British Columbia Milk Marketing Board have discriminated against him, contrary to the Charter, the laws of Canada, international laws and the Free Trade Agreement. He also alleged conspiracy, breaches of contract, misrepresentation, trespass and illegal seizures. The present motion to strike out the statement of claim arises out of deficient pleading, an inability to provide particulars and a Trial Division order of January 2002 concluding that, in the absence of further and better particulars, counsel for the Minister should bring the present application.
Held, the action should be struck out, without leave to amend, and should be dismissed.
The defendant did not move to strike out the proceeding by reason of a breach of the order requiring those particulars. Instead, the defendant tackles the propriety of the action on its merits, largely on the basis of a lack of particulars, which might allow the action to be understood and properly defended.
Some British Columbia Supreme Court cases set out clear basic principles on proper pleading, and provides useful, interesting and relevant perspective from outside Federal Court case law. It is a perspective completely applicable in considering rule 174 of the Federal Court Rules, 1998 (every pleading shall contain a concise statement of the material facts on which the party relies) and proper pleading. The idea that a pleading must contain material facts is fundamental to the law of pleading: Homalco Indian Band v. British Columbia (1998), 25 C.P.C. (4th) 107 (B.C.S.C.). The rules governing pleading are designed not only to enable the defendant to understand the claim, but also to allow him to make a reasoned and intelligent response.
Throughout the statement of claim, the plaintiff failed to specify the Charter provision, or any other statutory provision, or international law, which he says was breached or relied upon. He also failed, especially with respect to the claim of conspiracy, to state material facts on which he relied, or to provide the necessary particulars.
In sum, the statement of claim is so general and all-encompassing, yet so bereft of particulars, that the defendant would be unable to draft any useful and instructive answer, in short, a vexatious proceeding, a proceeding which even the Court would have difficulty controlling. It is therefore a fundamentally vexatious proceeding. Also, the statement of claim contains so many varied allegations, without specifics, that it would be near impossible for a court either to properly regulate a trial or to transmute the various allegations into remedies. As such it is an abuse of the system and should be struck out. Finally, it does not set out any reasonable causes of action.
Here, the statement of claim is so broad and so general that no amendment would seem to be of any assistance. This is all the more so in that the plaintiff has been unable to particularize any of the broad assertions. Thus the statement of claim is struck out without leave to amend.
The action should be dismissed. Here, in a sense, the particulars detract from the statement of claim because the plaintiff was unable, despite a specific direction and a court order, to provide any particulars at all. That being the case, the defendant ought not to be left exposed to the possibility of the plaintiff bringing a similar general and unfounded action in the future. This is all the more the case given that this matter has already been litigated, in one form or another, in the B.C. Supreme Court.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15(1).
| Federal Court Rules, 1998, SOR/98-106, r. 174. |
| Milk Industry Act, R.S.B.C. 1979, c. 258. |
| North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, December 17, 1992, [1994] Can. T.S. No. 2. |
cases judicially considered
applied:
Apotex Inc. v. Hoffman-La Roche Ltd. (1985), 6 C.P.R. (3d) 117 (F.C.T.D.); Chalet Bar B-Q (Canada) Inc. v. Foodcorp Ltd. (1982), 47 N.R. 172 (F.C.A.); Nourhaghighi v. Canada, [1998] F.C.J. No. 1727 (F.C.A.); Guetta v. The Queen (1974), 17 C.P.R. (2d) 31 (F.C.T.D.); Bruce v. Odhams Press Ld., [1936] 1 K.B. 697 (C.A.); Homalco Indian Band v. British Columbia (1998), 25 C.P.C. (4th) 107 (B.C.S.C.); Kelly Lake Cree Nation v. Canada, [1998] 2 F.C. 270; (1997), 140 F.T.R. 9 (T.D.); Murray v. Public Service Commission of Canada (1978), 21 N.R. 230 (F.C.A.); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Glaxo Canada Inc. v. Department of National Health & Welfare (1987), 15 C.P.R. (3d) 1; 111 F.T.R. 121 (F.C.T.D.); Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452; (1983), 145 D.L.R. (3d) 385; [1983] 6 W.W.R. 385; 21 B.L.R. 254; 24 C.C.L.T. 111; 72 C.P.R. (2d) 1; 47 N.R. 191; Temperton v. Russell and Others (1893), 9 T.L.R. 319 (C.A.).
authors cited
Fraser, Peter G. and John W. Horn. The Conduct of Civil Litigation in British Columbia. Vancouver: Butterworths, 1994.
MOTION to strike out the statement of claim arising out of a deficient pleading, an inability to provide particulars and a January 15, 2002 order of Mr. Justice Rouleau inviting counsel for the Minister, if further and better particulars were not provided, to bring the present motion. The action is struck out and dismissed, without leave to amend.
appearances:
No one appearing on behalf of plaintiff.
Shirley Parks for defendant.
solicitors of record:
Deputy Attorney General of Canada for defendant.
The following are the reasons for order rendered in English by
[1]Hargrave P.: The present motion to strike out the statement of claim arises out of a deficient pleading, an inability to provide particulars and the 15 January 2002 order of Mr. Justice Rouleau. In that order Mr. Justice Rouleau, in the absence of further and better particulars, invited counsel for the Minister to bring the present application.
[2]On hearing counsel for the Minister and on considering the material and the circumstances, the plaintiff having advised the Court through an intermediary that he would not participate, the action is struck out and dismissed, without leave to amend.
BACKGROUND
[3]By way of background the plaintiff, who sets out that he operated a substantial dairy farm and cheese- making operation near Chilliwack, had his enterprise closed down in 1990. At that time the Attorney General and the Minister of Health for the Province of British Columbia, obtained interim and permanent restraining orders, in B.C. Supreme Court proceedings, preventing Mr. Pellikaan from selling, distributing and supplying milk and dairy products which had not been processed and pasteurized in accordance with the Milk Industry Act, R.S.B.C. 1979, c. 258 and related regulations.
[4]This action, commenced 23 March 2000, is similar to an earlier Federal Court action of the plaintiff, T-1283-97 which was, several years ago, dismissed for delay. The present statement of claim is difficult to read and to understand, however its thrust seems to be that the Canadian Dairy Commission and the British Columbia Milk Marketing Board have discriminated against the plaintiff, contrary to the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], the laws of Canada, international laws and the Free Trade Agreement [North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, December 17, 1992, [1994] Can. T.S. No. 2]. This generalization does not take into account claims of discrimination and conspiracy on the part of the City of Vancouver, the City of Vancouver Police Department, the Provincial Ministry of Health, East Chilliwack Co-op Association, a Vancouver law firm, the Law Society of British Columbia and a testing laboratory: the Court, in this instance, has no jurisdiction over those entities who are not parties to the action and thus I do not need to consider the allegations against them.
[5]This action came up for status review in April of 2001. At that time Mr. Pellikaan was ill but indicated that he could, within 45 days of the request, serve a notice of application for a pre-trial conference. By case management order of 5 July 2001, Mr. Pellikaan and Crown counsel were, by the end of July, to file a schedule. Only counsel for the Crown submitted a schedule, which lead to a pre-trial conference requisition not later than 21 September 2001. The schedule having been ignored by the plaintiff, I set a pre-trial conference for 6 December 2001. On the 6th of December it became apparent that setting a trial date was premature, for neither production of documents nor examination for discovery had taken place. Moreover, the defendant had requested particulars, but the plaintiff had refused to respond. By a direction, arising out of the 6 December 2001 conference, the plaintiff was to file and serve particulars by close of Registry 11 January 2002.
[6]On 17 December 2001 I heard a motion, on behalf of the plaintiff, to set a trial date, to have future motions put before a judge and to require the defendant to provide particulars in relation to a future application for a federal licence to produce cheese in British Columbia, coupled with a motion to allow a lay person, Mr. Stromotich, to represent the plaintiff, from time to time, as would a lawyer acting as counsel. Those motions were denied. That order was apparently not appealed. However the plaintiff did appeal, among other matters, the 6 December 2001 Direction. Mr. Justice Rouleau, who heard that application, advised that directions were not appealable. He went on to consider the particulars which the plaintiff had delivered 11 January 2002 and wrote as follows:
I noted in the Direction that the Plaintiff was to produce particulars to the defendant in order for the Minister to be able to produce a Statement of Defence. This Direction was to be complied with by the 11th day of January 2002.
A copy of the "Particulars" was provided to the Minister on Friday the 11th day of January 2002 as directed.
The Crown produced the document referred to as "Particulars". I reviewed the document and am satisfied that it does not meet the requirements that would sufficiently enlighten counsel for the Minister to adequately prepare a Statement of Defence. It is merely an altered repetition of the Statement of Claim.
Primarily the Plaintiff is alleging breaches of the Charter but nowhere are the sections of the Statute or Regulations governing the Canadian Dairy Commission, the subject matter of the challenge, referred to or disclosed. These are essential in order to allow defence counsel sufficient knowledge to adequately prepare a Statement of Defence. On two occasions before the Prothonotary this requirement was raised by counsel for the defendant and, I am advised, the Plaintiff was so instructed.
It is hereby ordered that further and better particulars be provided by the 31st day of January 2002. Failure to comply I invite counsel for the Minister to bring an application to strike the action.
The gist of all of this is that the plaintiff was to provide further and better particulars by 31 January 2002, failing which counsel for the Minister was invited to bring an application to strike out the action. No further and better particulars were provided. Here I do not believe that the plaintiff was unwilling to provide further and better particulars, for not only did he agree, quite readily at an earlier case management conference to provide the initial set of particulars, but also I do not attribute to him any perverse intent to ignore the order for further and better particulars. Rather the circumstances are consistent with an inability to provide particulars.
[7]There is one further piece of background information which I ought to touch upon. On 22 February 2002 the Department of Justice, in Vancouver, received a copy of a letter from a Mr. Stromotich, the letter being addressed to the Administrator of the Federal Court of Appeal in Ottawa. The Department of Justice provided the Federal Court in Vancouver with a copy of that letter. Previously Mr. Stromotich had, by a direction of 12 December 2001, reflected in an order of 19 December 2001, been denied permission to act as advocate for Mr. Pellikaan. Mr. Stromotich wrote, on 22 February 2002, to say many things, including that Mr. Pellikaan would not be appearing on the present motion. Mr. Stromotich also sought to determine whether the Court of Appeal wished him to file a motion, on behalf of Mr. Pellikaan, to stay proceedings in the Federal Court Trial Division. This gives rise to two relevant points. First, it is for a party to protect his or her interests in any litigation by taking part in the litigation process. All the more so in the case of a plaintiff, properly served with a motion to strike out the statement of claim, it being no answer to ignore the motion, or to write informally to the Appeal Division for relief. If Mr. Pellikaan had wished a stay of the present motion, he could either have applied for a stay in a timely manner, or even sought an adjournment of this motion, in order to obtain time within which to apply for a stay. As it is he has failed to take any reasonable steps to protect his action. Counsel for the Crown is thus entitled to proceed with her motion. Second, there is the pending notice of appeal of Mr. Justice Rouleau's 15 January 2002 order. An appeal of an interlocutory order does not automatically stay a proceeding in the Trial Division, but rather it is for the applicant to establish an entitlement to a stay: see for example Apotex Inc. v. Hoffman-La Roche Ltd. (1985), 6 C.P.R. (3d) 117 (F.C.T.D.), at pages 119-120. However, there is also a matter of the propriety and utility of proceeding with a motion to strike out the statement of claim in the face of a pending appeal, a point to which I will now turn.
[8]I do not wish to seem to trench upon the territory of the Appeal Division. However the territory of the Court of Appeal, on any given matter is, subject to its discretion, generally limited to matters either mentioned in the pleadings, or which were before the Trial Division: see for example Chalet Bar B-Q (Canada) Inc. v. Foodcorp Ltd. (1982), 47 N.R. 172 (F.C.A.), at page 175, a decision of Chief Justice Thurlow.
[9]The present notice of appeal is an appeal of the 15 January 2002 interlocutory order of Mr. Justice Rouleau, the notice of appeal being filed 15 February 2002. Mr. Justice Rouleau's order dealt only with a request for the production of the court reporter's tape, upon which he declined to order production, there being no evidence of dishonesty or conspiracy; with an attempt by Mr. Stromotich to intervene as counsel; with an attempt to appeal a direction; and with further and better particulars. The pending appeal of Mr. Justice Rouleau's order touches upon some of these issues, but does not challenge Mr. Justice Rouleau's order either as to further and better particulars, or his invitation to Crown counsel to bring an application to strike out the action. I now turn to the merits of the present motion.
CONSIDERATION
[10]While the plaintiff was ordered to produce further and better particulars by 31 January 2002, the defendant does not move to strike out the proceeding by reason of a breach of the 12 January 2002 order requiring those particulars. Instead, the defendant tackles the propriety of the action on its merits, here largely on the basis of a lack of the particulars which might allow the action to be understood and properly defended. This requires a consideration of principles and law.
Some Applicable Law
[11]Striking out a pleading is discretionary: see, for example, Nourhaghighi v. Canada, [1998] F.C.J. No. 1727 (C.A.) (QL). However the procedure of striking out is also governed by exceedingly strict and formal requirements, for a party ought not easily be denied his or her day in court. From this observation I would proceed to point out two things. First, an order striking out a pleading is never automatic, any more is a judgment in default, for the moving party must establish its case. Second, it is for the defendant to establish that it is plain, obvious and beyond doubt that the action cannot succeed. This has been phrased in various ways, including that where the pleading fails to contain enough concise material facts, so as to prevent the responding party from making any reasonable defence and leave the Court without ability to control a proceeding, the action is vexatious and ought to be struck out. Alternately, where a pleading is without a supporting factual basis, such a pleading may be found plainly and obviously not to have disclosed a reasonable cause of action. In such instances an action may also be characterized as one that is so clearly futile that it has not the slightest chance of success. In those instances the statement of claim will be struck out.
[12]In the present instance some of the cases brought to my attention by counsel and to which I will refer are from the British Columbia Supreme Court. Not only do those cases set out clear basic principles, but also they provide a useful, interesting and relevant perspective from outside of the Federal Court jurisprudence. It is a perspective completely applicable in considering rule 174 of the Federal Court Rules, 1998 [SOR/98-106] and proper pleading. Crown counsel takes as her point of departure that the statement of claim is a nullity by reason of a breach of rule 174 which provides that:
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.
This idea, that a pleading must contain material facts is, in the view of the editors of The Conduct of Civil Litigation in British Columbia, Mr. Justice Fraser and Master Horn, published by Butterworths, 26 February 1994 issue, fundamental to the law of pleading [at page 225]:
The concept of "material facts" is fundamental to the law of pleading. The adjective "material" may be read as equivalent to "essential".
The lack of material facts was something which Mr. Justice Kerr, of the Federal Court Trial Division faced in Guetta v. The Queen (1974), 17 C.P.R. (2d) 31. He remarked at page 33, that:
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.
In Guetta Mr. Justice Kerr found the pleading in the statement of claim "so defective and inadequate and contains so much irrelevant matter that it should be struck out, rather than amended". He reached this conclusion after noting, at an earlier stage, the lack of material facts. Indeed, the courts have taken a very strict view when a pleading, by reason of a want of material facts, places a defendant at a disadvantage and here I would refer to the Court of Appeal decision in Bruce v. Odhams Press Ld., [1936] 1 K.B. 697, at page 712, there referring to the contemporary version of our rule 174:
The cardinal provision in r. 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". . . .
That the Court of Appeal made these observations many years ago does not mean that the niceties of pleading may be disregarded on the basis that any perceived wrong deserves a remedy if there are enough facts mixed into the plea. This was the approach which the plaintiff took in Homalco Indian Band v. British Columbia (1998), 25 C.P.C. (4th) 107 (B.C.S.C.). There counsel for the plaintiff submitted that it was [at paragraph 9] "enough if the material facts can be found in the statement of claim and a plaintiff cannot be compelled to prepare it in the conventional form." The Judge disagreed [at paragraph 9]:
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.
In Homalco, on the basis that the statement of claim was an embarrassing pleading, containing much that was unnecessary, Justice Smith found the statement of claim to be [at paragraph 11] "constructed in a manner calculated to confuse the defendants and to make it extremely difficult, if not impossible, to answer. As a result, it is prejudicial." There the proceeding was stayed, pending the filing of a fresh statement of claim. However, in that instance, there was clearly enough material in the statement of claim, as it existed, to indicate to the Court that the proceeding might be salvaged.
[13]Counsel refers to Homalco, supra, for an apt summarization of pleading a cause of action. I have set this out at length because it is instructive both to counsel, to lay litigants, and to me. There Mr. Justice Smith was concerned that the prolix and convoluted pleadings violated the rules of procedure and the case law. He pointed out that the defining of a cause of action required, for each cause, that the material facts be stated clearly in order to define the issues of fact and law. He began with a discussion of the ultimate function of pleadings [at paragraphs 5-6]:
The ultimate function of pleadings is to clearly define the issues of fact and law to be determined by the court. The issues must be defined for each cause of action relied upon by the plaintiff. That process is begun by the plaintiff stating, for each cause, the material facts, that is, those facts necessary for the purpose of formulating a complete cause of action: Troup v. McPherson (1965), 53 W.W.R. 37 (B.C.S.C.) at 39. The defendant, upon seeing the case to be met, must then respond to the plaintiff's allegations in such a way that the court will understand from the pleadings what issues of fact and law it will be called upon to decide.
A useful description of the proper structure of a plea of a cause of action is set out in J.H. Koffler and A. Reppy, Handbook of Common Law Pleading, (St. Paul, Minn.: West Publishing Co., 1969) at p. 85:
| Of course the essential elements of any claim of relief or remedial right will vary from action to action. But, on analysis, the pleader will find that the facts prescribed by the substantive law as necessary to constitute a cause of action in a given case, may be classified under three heads: (1) The plaintiff's right or title; (2) The defendant's wrongful act violating that right or title; (3) The consequent damage, whether nominal or substantial. And, of course, the facts constituting the cause of action should be stated with certainty and precision, and in their natural order, so as to disclose the three elements essential to every cause of action, to wit, the right, the wrongful act and the damage. |
If the statement of claim is to serve the ultimate purpose of pleadings, the material facts of each cause of action relied upon should be set out in the above manner. As well, they should be stated succinctly and the particulars should follow and should be identified as such: Gittings v. Caneco Audio-Publishers Inc. (1988), 26 B.C.L.R. (2d) 349 (C.A.) at 353.
[14]The effect of a pleading, which lacks material facts, may be that it will be struck out, but in some cases with a right to amend. This was a situation which Mr. Justice MacKay faced in Kelly Lake Cree Nation v. Canada, [1998] 2 F.C. 270 (T.D.), where there were bare conclusions, but no supporting factual basis for the claim. He observed at paragraph 19 that:
Nevertheless, where bare conclusions are set out without a supporting factual basis, a claim has been found not to disclose a reasonable cause of action (Vojic (L.) v. M.N.R., [1987] 2 C.T.C. 203 (F.C.A.)). In this regard, I note Mr. Justice Rouleau's decision in Glaxo Canada Inc. v. Department of National Health & Welfare ((1987), 15 C.P.R. (3d) 1 (F.C.T.D.), at p. 11)) where he sets out the basic rules of pleading as follows:
The rules governing pleadings establish the fundamental rule that the plaintiff is under an obligation to plead material facts that disclose a reasonable cause of action. This very basic rule of pleadings involves four separate elements: (1) every pleading must state facts and not merely conclusions of law; (2) it must include material facts; (3) it must state facts and not the evidence by which they are to be proved; and (4) it must state facts concisely in a summary form see Odgers, Principles of Pleading and Practice (21st ed.), p. 94.
These four rules, governing pleadings, as set out by Mr. Justice Rouleau, are, in his words, very basic and are relevant in the present instance, not only so that the defendant may understand the claim, but also so that the defendant may make a reasoned and intelligent response.
[15]Where a statement of claim is exceedingly general and bereft of specifics so as to prevent a defendant from either proper investigation or proper response, it may well be struck out. The Federal Court of Appeal was faced with several statements of claim which exhibited these characteristics in Murray v. Public Service Commission of Canada (1978), 21 N.R. 230 (F.C.A.). The Court of Appeal observed that such statements of claim were fundamentally vexatious, for they revealed insufficient facts to demonstrate the basis for the claim, thus making it impossible for the defendant to answer the claim or, indeed, for a court to regulate the proceedings (at page 236). Such a general and all-encompassing statement of claim, that is so bereft of particulars that a defendant would be unable to draft an answer, is fundamentally vexatious and will not lead to any practical result. This again is a ground for striking out such a statement of claim. I now turn to an application of some of this to the present statement of claim.
Analysis
[16]I propose to examine the statement of claim together with such particulars as were provided by the plaintiff on 11 January 2002. The particulars begin with a caveat referring Crown counsel to a paraphrased principle from Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, a principle which appears in the headnote at page 145:
. . . the Charter requires a two-step approach to s. 15(1). The first step is to determine whether or not an infringement of a guaranteed right has occurred. The second step is to determine whether, if there has been an infringement, it can be justified under s. 1. The two steps must be kept analytically distinct because of the different attribution of the burden of proof; the citizen must establish the infringement of his or her Charter right and the state must justify the infringement.
The plaintiff uses this shifting of burden of proof, in the second step of a subsection 15(1) analysis under the Charter, as a ubiquitous concept by which to answer virtually all of the requests for particulars. Each time the plaintiff says the burden of proof is on the defendant to show that she did not breach the plaintiff's rights. What the plaintiff fails to understand is that it is for him to first establish an infringement of a Charter right under subsection 15(1). Only then does the burden, that of justifying the infringement, shift to the Crown. At this point in the present proceedings we are dealing with only the first aspect, that of the plaintiff dealing with the burden of establishing his case, with no burden, as yet, upon the defendant.
[17]The statement of claim begins with a bare allegation of discrimination by the Canadian Dairy Commission against the plaintiff, discrimination which is said to be contrary to the Canadian Charter of Rights and Freedoms, the Free Trade Agreement and international law. While the plaintiff refers to this in the context of refusals to provide a milk quota and to allow him to make fresh dairy products, apparently a euphemism for unpasteurized and unprocessed products, this paragraph left the defendant wondering as to particulars of the discrimination and the specific provisions of law said to be found in the Charter, the Free Trade Agreement and international law. Here the plaintiff responds to the request for particulars with a rambling answer alleging a well-established business which was shut down. The plaintiff does not refer to any specific Charter provision, or any other statutory provision, or international law, which he says was breached. He basically says that it is for the defendant to show not only why he was denied a right to earn a living, when the defendant encouraged others to enter into the same market, but also to demonstrate why a milk quota was necessary at all. This would seem to have no bearing on either the first paragraph of the statement of claim or the request for particulars. It leaves the defendant none the wiser and indeed totally at a loss as to how to deal with the allegation of discrimination.
[18]The second paragraph of the statement of claim alleges a want of jurisdiction, on the part of the Canadian Dairy Commission and pursuant to the Milk Industry Act, to sanction the formation of the British Columbia Milk Marketing Board, the latter discriminating against the plaintiff contrary to the Charter. Here the defendant wishes to know what provisions of the Milk Industry Act the plaintiff relies upon to say that there is a lack of jurisdiction to form the B.C. Milk Marketing Board. The plaintiff gives a circular answer saying that there is no provision in the Act to permit the formation of the Board, without breaching the plaintiff's rights under the Charter, but that because it is a Charter breach the burden is on the defendant.
[19]Paragraph 3 of the statement of claim, for which particulars were not sought, repeats the allegation in paragraph 2, with a slight elaboration and a bare plea of discrimination on the part of the B.C. Milk Marketing Board, against the plaintiff, preventing him from earning a living, contrary to the Charter. Here there is a clear absence of any material facts, just as there was in paragraph 2, which might give the defendant some idea of where to begin researching and how to answer.
[20]Paragraphs 4 through 7 of the statement of claim deal with provincial matters and thus are not relevant.
[21]Paragraphs 8 and 9 of the statement of claim, taken together, allege an exceeding of jurisdiction by the Department of Agriculture and a conspiracy by some undefined Minister of Health, against the plaintiff. Here the defendant wishes to know facts and particulars surrounding an alleged suspension of rights by the Department of Agriculture, the nature of the rights and what facts, particulars and provisions of law does the plaintiff rely upon to say that the Department of Agriculture has exceeded its jurisdiction. The defendant also wishes to know the facts and particulars of the conspiracy by the Department of Health Canada against the plaintiff, including with whom the Department conspired and what provisions of the laws of Canada and international laws, pleaded as bare propositions, does the plaintiff rely. To all of this the plaintiff replies that as the Department of Agriculture is an agent of the Crown, that it was thus not the actions of the Department of Agriculture which breached the plaintiff's Charter right, said to be a right to pursue a calling but, that overall, including as to conspiracy and specific provisions of the laws of Canada and international law, the burden of proof is on the defendant. None of this can leave the defendant any the wiser, for paragraphs 8 and 9 of the statement of claim consist of bare conclusions, without material facts stated either concisely or otherwise. These two paragraphs, with their lack of particulars, are a prime example of a breach of the fundamental rule as to pleadings referred to by Mr. Justice MacKay in Kelly Lake Cree Nation, supra, which embodied Mr. Justice Rouleau's decision in Glaxo Canada Inc. v. Department of National Health & Welfare (1987), 15 C.P.R. (3d) 1 (F.C.T.D.).
[22]Paragraphs 10 and 11 of the statement of claim deal with discrimination by the City of Vancouver and the Vancouver City Police Department and Police Commission. It would appear that the defendant has concluded that these provisions, while impossible to understand by reason of a want of material facts, are irrelevant.
[23]Paragraph 12 of the statement of claim states that the Attorney General of Canada has granted to "various commissions" authority to enforce the laws of Canada, but has failed or refused to exercise that jurisdiction with regard to fresh milk products. The failure or refusal is alleged to be contrary to the laws and statutes of Canada, international law and the Free Trade Agreement. All of this consists of bare allegations and conclusions of law. It is not a proper pleading. In answer to the request by the defendant for particulars as to the failure to exercise jurisdiction, failure to supervise and specific law and legislation on which the plaintiff relies, the plaintiff merely says that the burden of proof is on the defendant. Without the requested particulars the defendant has no possibility of investigation and drafting a defence.
[24]Paragraph 13 alleges a violation of the "Cooperative Act" and a conspiracy, between the Ministry of Agriculture and the East Chilliwack Co-op Association, which caused the plaintiff's cattle to go without feed, resulting in a drop of milk production and economic loss. As the paragraph is framed it perhaps includes some evidence and some conclusions of law, but no material facts in support. The defendant wishes particulars as to the provisions of law said to be found in the Cooperative Act, which laws of Canada have been violated and particulars as to the alleged conspiracy with the East Chilliwack Co-op Association. In each instance the plaintiff answers "the burden of proof is on the defendant.".
[25]The tort of conspiracy consists of an imputation of misconduct and dishonesty, going beyond mere negligence: thus the facts must be set out with a special particularity and care.
[26]The tort of conspiracy, as pointed out by the Supreme Court of Canada in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452, at page 473, is a commercial anachronism, "the target of much criticism throughout the common law world." Mr. Justice Estey, who wrote the decision for the Court, commented specifically that the tort of conspiracy survived in Canadian law as an anomaly and that the reaction of courts in the future would be to restrict its application (at page 473):
The tort of conspiracy to injure, even without the extension to include a conspiracy to perform unlawful acts where there is a constructive intent to injure, has been the target of much criticism throughout the common law world. It is indeed a commercial anachronism as so aptly illustrated by Lord Diplock in Lonrho, supra, at pp. 188-89. In fact, the action may have lost much of its usefulness in our commercial world, and survives in our law as an anomaly. Whether that be so or not, it is now too late in the day to uproot the tort of conspiracy to injure from the common law. No doubt the reaction of the courts in the future will be to restrict its application for the very reasons that some now advocate its demise.
In that we are considering a cause of action which the Supreme Court of Canada said was an anachronism, it is proper to look at what was required when the plea was a going concern. For example, the Court of Appeal considered the particulars required for a plea of conspiracy in Temperton v. Russell and Others (1893), 9 T.L.R. 319 (C.A.) where, I think influenced by the need to plead with certainty when alleging such a cause of action, it said that the defendants were entitled to particulars including the name of each person involved in the conspiracy, the kind of threats used and when and by whom each such threat was made, whether verbally or in writing and, if in writing, the identity of the document.
[27]Returning to Cement LaFarge, there the Supreme Court of Canada set out the elements required to be established in order to show a claim for conspiracy being [at pages 471-472]:
(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,
(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.
This may be broken down more simply by saying that first, Mr. Pellikaan must establish an agreement between two or more persons; second, if the means to the discrimination are lawful, an agreement the real and predominant purpose of which is to injure Mr. Pellikaan or, alternatively, where the means are lawful, an agreement, one purpose of which is to injure Mr. Pellikaan; and, third, that the result was damage to Mr. Pellikaan.
[28]In the case of paragraph 13, the plaintiff is left with no idea as to the breaches of statute and the laws of Canada and nothing to go on, as to conspiracy, other than an economic loss of "several thousand dollars" as a result of Mr. Pellikaan's cattle having gone hungry. Again, a defendant is entitled to far more in the way of particulars, in order to be able to understand and to answer the claim: paragraph 13 is a good example of a breach of the elements of pleading set out by Mr. Justice MacKay in Kelly Lake Cree Nation, supra.
[29]In paragraph 14 the plaintiff alleges that the Attorney General's department had direct authority over the Milk Marketing Board and thus "Dairyland" refused to allow the plaintiff to sell his fresh milk, all of this resulting in discrimination contrary to the Charter, costing the plaintiff in excess of $50,000 per month. This is a puzzling plea indeed. In order to shed some light on it the defendant requests facts, particulars and provisions of law, relied upon by the plaintiff in that paragraph, to allow the plaintiff to say that because Dairyland refused to buy his milk, the Attorney General discriminated against him. The plaintiff, perhaps as baffled as the defendant, merely says that the burden of proof is on the defendant.
[30]Paragraphs 15, 17 and 18 alleged various conspiracies involving a well-known Vancouver law firm, the Law Society of British Columbia and a testing laboratory and while these paragraphs do not contain enough particulars so that any reader may understand them, they are, in all likelihood, irrelevant.
[31]Paragraph 16 alleges that the Attorney General directed the Royal Canadian Mounted Police to search and seize the plaintiff's fresh milk without a warrant. Here we have some bare facts, but no particulars. The defendant looks for particulars as to the direction by the Attorney General and the search and seizure without a warrant. The plaintiff responds that the burden of proof is on the defendant.
[32]Paragraph 19 sets out alleged consequences of discrimination and, for the first time, mentions fraudulent or negligent misrepresentation. Again, what is set out, is short on particulars, however that section could perhaps be explored were there to be production of documents and examination for discovery.
[33]In paragraph 20 the plaintiff refers to agreements made by the "defendants", whoever they are, that the defendant, apparently through the Ministry of Agriculture, rescinded an "agreement" and that the plaintiff had relied upon various agreements as if they were true. That bare statement is all the paragraph says. Clearly the plaintiff refers to agreements in both the singular and the plural, but does not identify them. The defendant wishes to know what agreements were rescinded by the Ministry of Agriculture and what facts and particulars the plaintiff relies upon to say that he relied on the agreements. Again, the plaintiff responds that the burden of proof is on the defendant.
[34]Paragraphs 21 and 22 allege various breaches and consequences, including breaches of contract, misrepresentations and wrongful actions, including trespass, illegal seizure of equipment and products and a resulting inability to pursue normal business activities, which have resulted in irreparable loss and damage. Again these are bare assertions which would give the defendant a good deal of difficulty to understand and to answer.
[35]I would also observe that the whole of the statement of claim is such that the Court would find it difficult both to understand what is sought and control a trial. Indeed, the statement of claim is so general and all-encompassing, yet so bereft of particulars, that the defendant would be unable to draft any useful and instructive answer, in short, a vexatious proceeding, a proceeding which even the Court would have difficulty controlling. This leads to the fact that the statement of claim suffers from three broad deficiencies. First, it is a fundamentally vexatious proceeding, such as was dealt with by the Court of Appeal in the Murray case, supra, in which the pleading reveals insufficient facts to show the basis for the claim, thus making it impossible for the defendant to answer, or for the court to regulate. A vexatious proceeding such as this will not lead to any practical result. As I have indicated the situation is that the statement of claim is so general and so all-encompassing, yet so bereft of particulars, that the defendant would be unable to draft any concise and useful answers. The second defect, again a fatal defect, is that the statement of claim contains so many varied allegations, without specifics, many of which are difficult to connect, it would be near impossible for a court either to properly regulate a trial or to transmute the various allegations into remedies. As such it is an abuse of the system and should be struck out. Finally, I do not see that the statement of claim sets out any reasonable causes of action.
Amendment
[36]At this point I must consider whether the statement of claim might be saved by an amendment, for it ought not to be struck out if there is a scintilla of a legitimate cause of action. In this instance the statement of claim is so broad and so general that no amendment would seem to be of any assistance. This is all the more so in that the plaintiff has been unable to particularize any of the broad assertions. Thus, taking the statement of claim and the particulars, such as they are, there is not a scintilla of a possibility of the plaintiff raising a reasonable cause of action. Thus the statement of claim is struck out without leave to amend.
Dismissal of the Action
[37]Finally, I should decide whether to dismiss the action. The statement of claim, taken by itself, perhaps suggests that I ought not to dismiss the action, for surely there must be one or two incidents which, if properly pleaded in a fresh action, might give rise to a cause of action. However, particulars are a pleading, a pleading which adds to the statement of claim. Here, in a sense, the particulars detract from the statement of claim because the plaintiff is unable, despite a specific direction and a court order, to provide any particulars at all. That being the case, the defendant ought not to be left exposed to the possibility of the plaintiff bringing a similar general and unfounded action in the future. This is all the more the case given that this matter has already been litigated, in one form or another, in the B.C. Supreme Court. The action will therefore be dismissed.
CONCLUSION
[38]Mr. Pellikaan has produced a misguided statement of claim, which consists almost entirely of a selection of bare, vague and sometimes seemingly unconnected allegations, together with conclusions of breaches of unspecified sections of legislation and law, both domestic and international. The statement of claim breaches the fundamental precepts of pleading. To allow such a proceeding, which not only displays no reasonable cause of action on which it could possibly succeed, which is fundamentally vexatious and an abuse of the system such as to be completely futile without the slightest chance of success, would be improper. There being neither a possibility of a curative amendment, nor any indication that the action might be begun again in an acceptable form, Mr. Pellikaan's action is struck out, without leave to amend, and is dismissed.
[39]The defendant does not, in her motion, seek costs. Thus each side will bear their own costs.