PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION. Noël Ayangma

Transcription

1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: Ayangma v. Gov. of PEI & Ors PESCTD 25 Date: Docket: S1-GS Registry: Charlottetown Between: Noël Ayangma And: Plaintiff The Government of Prince Edward Island and The Attorney General of Prince Edward Island Defendants BEFORE: The Honourable Justice Benjamin B. Taylor Appearances: Noël Ayangma, acting on his own behalf Paul D. Michael, Q.C., solicitor for the defendants Place and Date of Hearing Place and Date of Decision Charlottetown, Prince Edward Island January 11, 2005 Charlottetown, Prince Edward Island April 14, 2005

2 Citation: Ayangma v. Gov of PEI & Ors PESCTD 25 Docket: S1-GS Between: Noël Ayangma Plaintiff The Government of Prince Edward Island and The Attorney General of Prince Edward Island Prince Edward Island Supreme Court - Trial Division Before: Taylor, J. (In Chambers) Date of Hearing: January 11, 2005 Date of Decision: April 14, 2005 [27 Pages] Defendants PRACTICE - Rule 20.01(3) - Summary Judgment - onus on moving party to establish a basic case. PRACTICE - Rules 21.01(3)(d) and and Inherent Jurisdiction - striking out pleadings - Rule rules of pleading - scandalous, frivolous, vexatious, may prejudice or delay the fair trial of the action, abuse of the process of the court - whether court may strike out claim for violation of pleadings. PRACTICE - Self-represented Litigant - consideration to be extended to parties not represented by counsel. PRACTICE - Rule 21.01(1)(b) - Striking out pleadings - no reasonable cause of action - general. DEFAMATION - Absolute Privilege - fair comment. CHARTER OF RIGHTS - s. 7 and 15 - not claimed that s. 61 of Supreme Court Act (vexatious litigant) violates Charter. MALICE - Elements of Tort - general. CONSPIRACY - Elements of Tort - general. NEGLIGENCE - Basic Elements. INTERFERENCE WITH ECONOMIC RELATIONS - elements of tort - general. ABUSE OF PROCESS - elements of tort - general. ABUSE OR MISFEASANCE OF PUBLIC OFFICE - elements of tort - general. Cases Considered: MacCallum v. Charlottetown (City) (1995), 127 Nfld. & P.E.I.R. 300 (PEISCAD); Lenintine v. Robichaud et al. (1996), 140 Nfld. & P.E.I.R. 270 (PEISCAD); Reichel v. Magrath (1889), App. Cas. 665; R. v. Mills (1983), 3 C.R.R. 63 (Ont. H.C.); R. v. Osborn, [1969] 1 O.R. 152; Haggard v. Pelicier Freres, [1892] A.C. 61; Margem Chartering Co. v. Cosena S.R.L., [1997] FC 1001 (Fed. T.D.), (1997) 127 FTR 161; ATL Industries Inc. v. Han Eol Ind. Co., [1995], 36 C.P.C. (3d) 288 (Ont. Gen. Div.); House of Spring Gardens Ltd. v. Wait, [1990] 3 W.L.R. 347 (C.A.); McIlKenny v. Chief Constable of West Midlands Police (sub nom. Hunter v. Chief Constable of West Midlands Police), [1982] A.C. 529; Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220 (C.A.); George v. Harris, [2000] O.J. No (S.C.J.).; Winkler v. Winkler (1990), 70 Man. R. (2d) 47 (Q.B.); Re Canada Metal Co. Ltd. et a. and Heap et al. (1975), 7 O.R. (2d) 185 (C.A.); Mayor of London v. Horner (1914), 111 L.T. 512 (C.A.); Keddie v. Dumas Hotels Ltd. (Cariboo Trails Hotel) (1985), 68 B.C.L.R. 145 (C.A.); Bush v. Saskatchewan (Minister of Environment & Resource Management), [1996] S.J. No. 534 (Sask. Q.B.); Meyers and Lee v. Freeholders Oil Company Limited and Canada Permanent Trust Co. (1956), 19 W.W.R. (N.S.) 546; Rogers v. Clark (1900), 13 Man. R. 189 (K.B.); Gittings v. Caneco Audio-Publishers Inc., [1988] B.C.J. No. 531 (B.C.C.A.); Amendt v. Canada Life Assurance Co., [1999] S.J. No. 157 (Sask. Q.B.); Orme v. Law Society of.../ii

3 - ii - Upper Canada, [2003] O.J. No. 887 (S.C.J.); General Foods Ltd. v. Struthers Scientific and International Corp. (1971), 4 C.P.R. (2d) 97; Brodie v. Thomson Kernaghan & Co., [2002] O.J. No (S.C.J.); Hunt v. Carey Canada Ltd. (1990), 74 D.L.R. (4 th ) 321; Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441; Paterson & Hidson v. Livingstone (1930), [1931] 1 D.L.R. 386 (S.C.C.), reversing (sub nom. Mason v. Livingston [1929] 1 W.W.R. 295, 24 Alta. L.R. 69. (sub nom. Mason v. Livingstone) [1929] 1 D.L.R. 608 (C.A.); McCarten v. Prince Edward Island, [1990] P.E.I.J. No. 26 (PESCAD); McCarten v. Prince Edward Island, [1989] P.E.I.J. No. 84 (PESCTD); Ayangma v. Government of Prince Edward Island et al. (1998), 168 Nfld. & P.E.I.R. 1 (PESCTD); Kuhn v. American Credit Indemnity Co., [1992] B.C.J. No. 952; Lo v. Russell, [1999] O.J. No. 814; Prescott (Litigation guardian of) v. O Brien, [1999] O.J. No. 815; Followka v. Whitford, [1996] N.W.T.J. No. 95 (N.T.C.A.), [1997] S.C.C.A. No. 58; Tweel v. Charlottetown Area Development Corp. (1980), 32 Nfld. & P.E.I.R. 122 (PESCTD); Clow v. MacNevin and Smith (1986), 60 Nfld. & P.E.I.R. 358; Morin v. Prince Edward Isalnd et al. (1990), 78 Nfld. & P.E.I.R. 88 (PESCTD); Fobes v. University of Prince Edward Island (1997), P.E.I.J. No. 78 (PESCTD); Kay Aviation b.v. v. Rofe, [2001] P.E.I.J. No. 48 (PESCAD); Meyers and Lee v. Freeholders Oil Co. Ltd. and Canada Permanent Trust Co. (1956), 19 W.W.R. (N.S.) 546 (Sask. C.A.); Barrick Gold Corporation v. Lopehandia, [2004] O.J. No. 2329; Ayangma v. Prince Edward Island (Human Rights Commission), [2001] P.E.I.J. No. 126, [2001] PESCTD 100; Pitre v. Law Society of Prince Edward Island (2000), 187 Nfld. & P.E.I.R. 44 (PESCAD); Ayangma v. Prince Edward Island (2000), 187 Nfld. & P.E.I.R. 150 (PESCAD); Baziuk v. BDO Dunwoody Ward Malletti (1997), 13 C.P.C. (4 th ) 156; Ayangma v. Prince Edward Island Eastern School Board, [2000] PESCAD 12; Ayangma v. Prince Edward Island, [1998] P.E.I.J. No. 86; Leadbeater v. Ontario (2001), 16 C.P.C. (5 th ) 119 (S.C.J.); Carom v. Bre-x Minerals Ltd. (1998), 20 C.P.C. (4 th ) 163 (Ont. Ct. Jus. Gen. Div.);Bank of Montreal v. Charlottetown, [2004] P.E.I.J. No. 96 (PESCTD); Gallant v. Prince Edward Island (Workers Compensation Board), [2002] P.E.I.J. No. 94 (PESCTD);Oliver v. Severance, [2005] P.E.I.J. No. 16 (PESCTD); Dale v. The Guardian, Southam Inc. and ors., [1999] P.E.I.J. No. 18 (PESCTD); Fabian v. Margulies, [1985] 53 O.R. (2d) 380 (Ont. C.A.); Hung v. Gardiner, [2003] B.C.J. No (B.C.C.A.); Dechant v. Stevens, [2001] A.J. No. 172 (Alta. C.A.); Ayangma v. NAV Canada, [2001] P.E.I.J. No. 5 (PESCAD); Roncarelli v. Duplessis, [1995] S.C.R. 121; H.V.K. v. Childrens Aid Society of Haldimand-Norfolk, [2003] O.J. No (S.C.J.);Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 155 D.L.R. (4 th ) 627 (C.A.); Simmonds v. Murphy, [1996] P.E.I.J. No. 13 (PESCTD); Cavendish Promotions Inc. v. Tourism Industry Assn. of P.E.I., [1998] P.E.I.J. No. 63 (PESCTD); Cheticamp Fisheries Co-operative Ltd. v. Canada, [1995] N.S.J. No. 127 (N.S.C.A.); Ontario Ltd. v. Magna International Inc., [2001] O.J. No (C.A.); Canadian Community Reading Plan Inc. v. Quality Service Programs Inc., [2001] O.J. No. 205 (C.A.); Duks v. Puts, [2004] S.J. No. 60 (Sask. C.A.); Gerrard v. Manitoba, [1992] M.J. No. 524 (Man. C.A.); Stenner v. British Columbia (Securities Commission), [1993] B.C.J. No (B.C.S.C.). Statutes Considered: Supreme Court Act, RS 1985, c. S-26; Crown Proceedings Act, R.S.P.E.I. 1988, C-32, ss. 4(1)(a) and 9; Defamation Act, R.S.P.E.I. 1988, Cap. D-5, s. 12. Rules Considered: Prince Edward Island Supreme Court Rules of Civil Procedure, Rules 20.01(3), 21.01(1)(b), 21.01(3)(d), 25.07(7), and 25.11; Rules of Civil Procedure (White Book Service) (Sweet & Maxwell Limited). Charter: The Canadian Charter of Rights and Freedoms, Being Part I of the Constitution Act, 1982, ss. 7, 15 and 61. Texts Considered: Casson, Odgers on High Court Pleading and Practice (1991); Fleming, The Law of Torts, 9 th ed. (1998); Garner, Blacks Law Dictionary, 8 th ed. (Thomson/West, 2004). Noël Ayangma, acting on his own behalf Paul D. Michael, Q.C., solicitor for the defendants

4 Page: 2 Taylor J.: [1] This is a motion by the defendants to strike out all or part of the statement of claim, grant summary judgment, or order security for costs; and a motion by the plaintiff to grant partial summary judgment and strike out part of the statement of defence. BACKGROUND [2] The plaintiff s action claims damages against the defendants arising from: defamation; a declaration that the defendants infringed the plaintiff s s. 7 and 15 Charter rights, together with damages arising therefrom; conspiracy; negligence; interference with economic relations; abuse or misfeasance of public office; and an apology. [3] The plaintiff s claim appears to arise from four events: a) the action of the defendant Government in seeking on two occasions to have the plaintiff declared a vexatious litigant. The first attempt failed; the second succeeded before the Trial Division in 2003, but lost on appeal in August, 2004; b) the action of an employee of the defendant Government in giving a media interview following the defendant Government s success in the 2003 Trial Division decision (later overturned), in which she said words which the plaintiff asserts branded him as a litigious and vexatious person because he had been involved in 46 court proceedings between 1997 and 2003 (per paragraph 248 of the claim); (c) (d) the actions of the defendant Government in seeking and receiving security for costs against the plaintiff, and in garnishing funds of the plaintiff. The plaintiff asserts that this has hurt him economically in a number of ways; and the defendant Government was awarded costs against the plaintiff on some occasions and vice versa. The plaintiff claims the defendant wrongly set off his awards against the largest of their awards, rather than allowing the smaller of their awards to be paid off. Had the Government done as the plaintiff wished, he would have had fewer judgements against him (but he would still owe the same amount).

5 Page: 3 [4] The statement of claim was filed on November 10, The statement of defence was filed December 3, It contains a denial of all allegations of negligence, abuse of public office or misfeasance in public office, breach of the Charter of Rights and Freedoms, and libel and slander. It further denies the plaintiff is entitled to any of the remedies claimed, pleads res judicata with respect to certain allegations, and sets out the defendants position on the attempts to have the plaintiff declared a vexatious litigant, and on the economic interference claim. The defence is for the most part a defence of denial. At paragraph 13 it states: 13. With respect to the entirety of the Statement of Claim, the Defendants state that the Plaintiff s Statement of Claim is excessively repetitive, contains numerous irrelevant and extraneous allegations, contains conclusions of law without supporting material facts, repeatedly pleads evidence and argument, fails to concisely plead material facts on which the Plaintiff relies and generally fails to conform with the rules of pleading, all of which constitute an abuse of court process. [5] I do not regard the filing of the statement of defence as an admission by the defendants that they have no difficulty in pleading to the claim. The defence filed is primarily one of denial, and given the fact of an unrepresented plaintiff, the defendants were prudent in filing a defence before bringing this motion. [6] The defendants motion was filed December 21, [7] The defendants and plaintiff s motions were both brought as early in the proceeding as possible, before any significant costs were incurred other than preparation of pleadings. THE PLAINTIFF S MOTION [8] The plaintiff s motion asks for partial summary judgment and an order striking out part of the statement of defence. [9] The plaintiff claims that the statement of defence discloses in part no reasonable defence and is in part an abuse of the process of the court. [10] I have considered the statement of defence, and the plaintiff s affidavit, factum, and written and oral presentation. I find no basis whatsoever to grant partial summary judgment or to strike out part of the statement of defence. The plaintiff did not identify any solid basis for his in part motion, and I cannot imagine any.

6 Page: 4 [11] I therefore dismiss the plaintiff s motion. THE DEFENDANTS MOTION [12] I will deal with the defendants motion in three parts. PART ONE, Rule 20.01(3), Summary Judgment; PART TWO, Rules 21.01(3)(d) and 25.11, striking out all or part of the statement of claim for violation of the rules of pleading; and, PART THREE, Rule 21.01(1)(b), the pleading discloses no reasonable cause of action. I will not deal with the request for security for costs, but give the defendants leave to raise that issue again in a future motion. PART ONE - Rule 20.01(3) Summary Judgment [13] Neither party has met the requirements of Rule 20: Summary Judgment. [14] The defendants have filed two affidavits, but neither one provides any evidence of why summary judgment should be granted. Rule 20.01(3) specifies that there must be supporting affidavit material or other evidence, and the authorities are clear that the onus is on the moving party to establish a basic case (see MacCallum v. Charlottetown (City) (1995), 127 Nfld. & P.E.I.R. 300 (PEISCAD) at p. 303 and Lenintine v. Robichaud et al. (1996), 140 Nfld. & P.E.I.R. 270 (PEISCAD)). [15] In response, the plaintiff has provided a rambling affidavit which provides no sufficient evidence justifying his claims. Unless the plaintiff gambled that the Court would find against the defendants motion for lack of evidence, pursuant to Rule 20.04(1) he should have put his best foot forward (see Lenintine v. Robichaud et al., supra). [16] Rule 20 provides that the court may dispose of a case at an early stage where it is clear on the evidence that there is no genuine issue for trial, notwithstanding that the pleadings claim there is. It is under Rule 21, not Rule 20, that the court may dispose of a case at an early stage where it is clear on the pleadings that there is no cause of action, and on a Rule 21 motion there usually is no evidence admissible. Rule 21 motions do not have an onus which shifts to the responding party, as in Rule 20.04(1), so a Rule 21 motion without evidence cannot also be considered as a Rule 20 motion. [17] I therefore dismiss the summary judgment portion of the defendants motion.

7 Page: 5 PART TWO, Rules 21.01(3)(d) and Striking for Violation of Rules of Pleading [18] The defendants assert that the claim should be struck because it generally fails to conform to the rules of pleading, is frivolous and vexatious, an abuse of the process of the court and may prejudice or delay the fair trial of the action. The rules of pleading are set out in Rule of the Rules of Civil Procedure and will be referred to throughout this part. (i) Law [19] There are two sections of the Prince Edward Island Rules of Civil Procedure which apply to dismissal of actions based on form and content of the statement of claim. Rule 21.01(3)(d) provides that an action may be stayed or dismissed on the ground that it is frivolous or vexatious or is otherwise an abuse of the process of the court. Rule provides that the court may strike out or expunge all or part of a pleading on the ground that it (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court. [20] In addition to the provisions under the Rules of Civil Procedure, the court has an inherent jurisdiction to strike pleadings which are oppressive, frivolous, vexatious, embarrassing or an abuse of the process of the court (see Reichel v. Magrath (1889), App. Cas. 665 referred to in Casson, Odgers on High Court Pleading and Practice, (1991); R. v. Mills (1983), 3 C.R.R. 63 (Ont. H.C.) at p. 78; R. v. Osborn [1969] 1 O.R. 152 at 155, quoting Haggard v. Pelicier Freres, [1892] A.C. 61 at pp ). [21] Frivolous, vexatious, abuse of the process of the court (not to be confused with the tort of abuse of process), and embarrassing are to some extent terms of art in the law. They bear their common usage meanings together with specific meanings attributed to them in the operation of the law. [22] The terms are sometimes used interchangeably, and their meanings are not closed; they often appear to overlap and are fluid and fact based (see Margem Chartering Co. v. Cosena S.R.L., [1997] FC 1001 (Fed. T.D.), (1997) 127 FTR 161 at 169; in ATL Industries Inc. v. Han Eol Ind. Co., [1995], 36 C.P.C. (3d) 288 (Ont. Gen. Div.); Farley J. at p. 314 referring to House of Spring Gardens Ltd. v. Wait, [1990] 3 W.L.R. 347 (C.A.)] at pp ; McIlKenny v. Chief Constable of West Midlands Police (sub nom. Hunter v. Chief Constable of West Midlands Police), [1982] A.C. 529 at 536, and Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220 (C.A.); George v. Harris, [2000] O.J. No (S.C.J.)). [23] Among the meanings attached to all these terms are variations on the theme

8 Page: 6 that the pleading is without merit, or asks for relief that cannot or should not be given, or discloses no reasonable cause of action or defence. If this were all the terms meant, it would not be necessary to include them in the Rules, as Rule 21.01(1)(b) already empowers the court to strike out a pleading that discloses no reasonable cause of action or defence. [24] In addition, however, these terms are used to describe violations of the rules of pleadings and procedural violations. When used in these circumstances, the terms are employed to describe pleadings which: a) violate the rules of pleadings; b) are confused, rambling, ambiguous or difficult to understand; c) contain irrelevant or immaterial facts, or evidence as opposed to facts; d) are redundant or unnecessarily prolix; e) are vindictive or used for an ulterior purpose; f) would involve the parties in a dispute that is wholly apart from the issues; g) contain opinions or argument; h) while technically permissible, are still contrary to the intent of the rules of pleading (see Winkler v. Winkler (1990), 70 Man. R. (2d) 47 (Q.B.) at p. 50 ; Re Canada Metal Co. Ltd. et al. and Heap et al. (1975), 7 O.R. (2d) 185 (C.A.) at 192; Mayor of London v. Horner (1914), 111 L.T. 512 (C.A.) at 514 adopted in Keddie v. Dumas Hotels Ltd. (Cariboo Trails Hotel) (1985), 68 B.C.L.R. 145 (C.A.); Bush v. Saskatchewan (Minister of Environment & Resource Management), [1996] S.J. No. 534 (Sask. Q.B.) and Meyers and Lee v. Freeholders Oil Company Limited and Canada Permanent Trust Co. (1956), 19 W.W.R. (N.S.) 546 at 546; Rogers v. Clark (1900), 13 Man. R. 189 (K.B.) at 196; Gittings v. Caneco Audio-Publishers Inc., [1988] B.C.J. No. 531 (B.C.C.A.); Amendt v. Canada Life Assurance Co., [1999] S.J. No. 157 (Sask. Q.B.); Orme v. Law Society of Upper Canada, [2003] O.J. No. 887 (S.C.J.); George v. Harris, supra). [25] In General Foods Ltd. v. Struthers Scientific and International Corp. (1971), 4 C.P.R. (2d) 97, the Supreme Court of Canada referred to the filing of five patent infringement actions by one plaintiff against one defendant and stated at p. 105:...patent owners and their attorneys should bear in mind that litigants are expected to avoid unnecessary costs and the unreasonable multiplication of proceedings is an abuse of the worst kind that should be discouraged and, if necessary, punished by the use of judicial discretion in matters subject thereto. [26] The clause may prejudice or delay the fair trial of the action, is not a term of

9 Page: 7 art in the law. Rather, it describes a fact based assessment of the pleading or other document. In Brodie v. Thomson Kernaghan & Co., [2002] O.J. No (S.C.J.), Molloy J. stated at paragraph 28:...Striking a pleading on [the ground that it may prejudice or delay the fair trial of the action]...is an exercise of discretion: Prudential America Life Assurance Co. (Canada) v. Bronfman, [2001] O.J. No (Ont. S.C.J). Essentially, the court engages in a balancing progress with the added complexity of the pleading being weighed against the potential probative value of the facts alleged: Garwood Financial Ltd. v. Wallace (1997), 35 O.R. (3d) 280 (Ont. Ct. Gen. Div.). [27] Clearly, if the Court were to strike all of a statement of claim because it would prejudice or delay the fair trial of an action, there could be no trial at all unless the statement of claim were re-drafted and re-filed. I believe, therefore, that this clause should not be employed to strike all of the statement of claim unless the claim is irretrievably bad, it cannot be remedied through amendments, and the Court grants leave to re-file an amended claim. [28] The Supreme Court of Canada has given two decisions which seem at first blush to rule against striking pleadings for repeated violation of the rules of pleadings. In Hunt v. Carey Canada Ltd. (1990), 74 D.L.R. (4 th ) 321, the Court stated that an action should not be struck out unless it is plain and obvious, that it cannot succeed because it discloses no reasonable cause of action. In Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, Dickson. C.J. stated at paragraph 14: I believe that we are obliged to read the statement of claim as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies. [29] On the other hand, in Paterson & Hidson v. Livingstone, [1931] 1 D.L.R. 386 (S.C.C.), the Supreme Court of Canada considered a motion to strike out portions of the statement of claim which consisted of 55 paragraphs on 49 typewritten pages. The Appeal Court has dismissed the entire claim as disclosing no cause of action ([1929] 1 D.L.R. 608). The Supreme Court found the claim contained enough facts to...entitle the plaintiffs to call upon the defendants for their defence..., and set aside the Appeal Court decision. [30] However, the Court found that the statement of claim should be struck out in its entirety for repeated violations of the principles of pleading. Duff, J. speaking for the entire Court stated:...the Court agrees with the contention of the defendants that the statement of claim so repeatedly and so gravely offends against fundamental

10 Page: 8 principles of pleading that the defendants ought not to be obliged to plead in answer to it. In Davy v. Garrett, 7 Ch. D. 473, at p. 486, James, L.J. said:-- But a Defendant may claim ex debito justitiae to have the Plaintiffs case presented in an intelligible form, so that he may not be embarrassed in meeting it. It has not been so presented here. In particular the pleader has not only offended against the rule that requires all pleadings to be as brief as the nature of the case will admit, but he has also flagrantly disregarded the rule, best stated, perhaps, in the judgments in Wallingford v. Mutual Soc., 5 App. Cas. 685, at pp. 697, 701 and 709, that a general allegation of fraud, however strong the words used, where there is no statement of the circumstances relied on a constituting the alleged fraud, is insufficient even to amount to an averment of fraud of which the Court ought to take notice. In the opinion of the Court, therefore, the whole statement of claim should be struck out with leave to the plaintiffs to deliver a proper pleading... [31] In my view, Hunt v. Carey, supra, stands for the principle that mere length,...complex issues of fact and law or...a novel legal proposition... (paragraph 31) should not stop a case from proceeding. Although the case discussed abuse of process, it did not do so in the context of violation of the rules of pleading. [32] The statement at paragraph 14 of Operation Dismantle, supra, was made in reference to the nature of the plaintiff s Charter claim of deprivation of life and security of the person. As pleaded, it could be...the result of actual deprivation of life and security of the person that would occur in the event of a nuclear attack on Canada, or it could be the result of general insecurity experienced by all people in Canada as a result of living under the increased threat of nuclear war [paragraph 12]. A liberal reading of the statement of claim pointed to the first interpretation, while the plaintiffs submissions in their factum pointed to the second. Dickson, C.J. stated at paragraphs 14 and 15 that the Court should read the claim as generously as possible and should accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies. As a result, he was prepared to accept that the plaintiffs intended both of these possible interpretations concerning the nature of the deprivations. [33] This generous interpretation of an ambivalent statement concerning a complex Charter issue is a long way from a wholesale violation of the fundamental rules of pleading. As generously as possible does not mean anything goes, and it would be wrong to send that message. [34] Trial and Appeal Court decisions in this Province have followed Hunt v. Carey and Operation Dismantle, but none of the decisions concerned repeated violation of

11 Page: 9 the rules of pleading. [35] In McCarten v. Prince Edward Island, [1990] P.E.I.J. No. 26 (PESCAD), the Appeal Court upheld the decision of Matheson J. in McCarten v. Prince Edward Island, [1989] P.E.I.J. No. 84 (PESCTD), allowing a statement of claim to stand. Failure to comply with the rules of pleading was not addressed in either decision, and both Courts concluded that the defendant had failed to show that the claim disclosed no reasonable cause of action. [36] In Ayangma v. Government of Prince Edward Island et al. (1998), 168 Nfld. & P.E.I.R. 1 (PESCTD), Matheson J. struck out some of the parties and parts of the pleadings but allowed the claim to stand as it disclosed a reasonable cause of action and was not an abuse of process. There was no mention of the form of the pleadings or any violation of the rules of pleadings. [37] I do not believe that these authorities hold that no statement of claim can ever be struck out due to problems or inadequacies in drafting. If the Rules mean what they say, there must be cases in which the entire statement of claim should be dismissed, not because it fails to disclose a reasonable cause of action, but purely because it is vexatious, frivolous, an abuse of the process of the court, or would prejudice or delay the fair trial of the action. [38] There is a different standard for motions under Rule 21.01(1)(b) (no reasonable cause of action), than for motions under Rules 21.01(3)(d) and (frivolous, vexatious, abuse of process of the court, may prejudice or delay the fair trial of the action), because the consequences are different. The difference is the ability to start again: when a pleading is struck out in its entirety for violation of the rules of pleading, the court commonly gives the plaintiff the right to start over, subject to amending, paying costs and other terms. In a 21.01(1)(b) motion (no reasonable cause of action), the action is over (see Paterson & Hidsen v. Livingstone, supra, Gittings v. Caneco Audio-Publishers Inc., supra). [39] This distinction is accepted explicitly, or implicitly, in many recent Canadian decisions and reconciles the recent Supreme Court of Canada decisions with Paterson & Hidson v. Livingstone, the British tradition and the Canadian decisions (see Kuhn v. American Credit Indemnity Co., [1992] B.C.J. No. 952; Lo v. Russell, [1999] O.J. No. 814; Prescott (Litigation guardian of) v. O Brien, [1999] O.J. No. 815; Followka v. Whitford, [1996] N.W.T.J. No. 95 (N.T.C.A.) at paragraph 50, leave to appeal to Supreme Court of Canada refused [1997] S.C.C.A. No. 58). [40] There is a well established line of cases in Prince Edward Island, which strike out statements of claim in their entirety for repeated violation of the rules of pleading.

12 Page: 10 The rules of pleading are contained in the Prince Edward Island Rules of Civil Procedure, which are made pursuant to the Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10, and follow the Ontario Rules which were in part derived from the British Rules of Civil Procedure (the White Book ). Use of the same phraseology in comparable rules represents a deliberate choice of the British jurisprudence which has developed over the course of a century or more. [41] In Tweel v. Charlottetown Area Development Corp. (1980), 32 Nfld. & P.E.I.R. 122 (PESCTD, Large, J. discussed the antecedents of the present Rules 21.01(3)(d) and At paragraph seven he quoted Rule 14.25, the rule which provided that pleadings could be struck out if they were false, scandalous, frivolous, vexatious or could prejudice or delay the fair trial of the proceeding, or were otherwise an abuse of the process of the court. [42] At paragraphs 8 and 11 he stated: 8 This rule is substantially the same as the English order 18/19 where the similar grounds are stated in alternate form The English... comment on this rule [states]: This Rule...empowers the court... (2) to strike out any pleading...which does not conform with the overriding rule that a pleading must contain only material facts to support a party s claim or defence, and must not therefore be, or contain any matter which is, scandalous, frivolous or vexatious or which may prejudice, embarrass or delay the fair trial of the action or is otherwise an abuse of the process of the court. Not every pleading which offends against the rules will be struck out. The applicant must show that he is in some way prejudiced by the irregularity. Still, the defendant may claim ex debito justitiae to have the plaintiff s case presented in an intelligible form, so that he may not be embarrassed in meeting it (per James, L.J., in Davy v. Garrett, 7 Ch. D. p. 486). [43] In Clow v. MacNevin and Smith (1986), 60 Nfld. & P.E.I.R. 358, the defendant Smith applied to have the statement of claim struck out on the ground that on the face of the pleading no cause of action is shown against Smith. McQuaid J. took the initiative to grant a different and more appropriate remedy, and struck out the entire

13 Page: 11 claim, not just the portions applying to Smith, with leave to the plaintiff to file a new statement of claim against both defendants. The order to strike was based upon the failure of the plaintiff to properly plead her cause of action, nature of injuries and relief sought. McQuaid J. described the claim as fatally flawed. [44] In Morin v. Prince Edward Island et al. (1990), 78 Nfld. & P.E.I.R. 88 (PESCTD) at p. 90, McQuaid, J. stated: [9] What has been filed on behalf of the plaintiff is essentially a long rambling narrative document, outlining the history of differences which are alleged to have arisen between the plaintiff and one or more of the defendants, all in some 54 paragraphs. Much of what is contained therein may possibly be factually true, but nonetheless wholly improperly included in a pleading. It is also, at the best, extremely difficult to ascertain precisely what remedy the plaintiff seeks against which particular defendant, and why. [10] In my opinion, the pleading in question is so defective in form, and in breach of so many of the rules applicable to appropriate pleading, that it would be impossible, by a series of amendments, to bring it within the requirements. The statement of claim must be struck out in its entirety. [45] DesRoches J. followed Morin, supra, in Pitre v. Macnutt, [1994] P.E.I.J. No. 50, in striking out a statement of claim in its entirety, commenting at paragraph 19,...the requested amendments would make of it a completely new and different statement of claim. [46] And in Fobes v. University of Prince Edward Island (1997), P.E.I.J. No. 78 (PESCTD), DesRoches, J. stated: [11] In my opinion, one of the most serious defects of the statement of claim is that it offends the prohibition contained in Rule 25.06(1) against the pleading of evidence. There is much in the nature of evidence included in the statement of claim and while the Court can be lenient in allowing the pleading of evidence other than admissions, the complete neglect of the rules of pleading in that respect cannot be permitted. [12] There is clear jurisprudence that a motion brought pursuant to Rule 21.01(1)(b) of the Rules of Court seeking to strike out in its entirety a statement of claim will be granted only in plain and obvious cases. It may be that any one of the defects in the statement of claim in question in the instant case, standing alone, would not be sufficient to support a conclusion that the entire statement of claim be struck out. However, while the cases do differ I am reminded somewhat of the words of McQuaid J. in Morin v. Prince Edward Island et al (1990)... [the above quote].

14 Page: [14]...I have reached the reluctant conclusion that while certain amendments could be made to the statement of claim to make it clearer, and to bring it into better conformity with the rules of pleading, it would be preferable in the circumstances to send the plaintiff back to the drawing board as it were, and require him to prepare a new statement of claim which will, in the words of Rule 25.06(1), contain a concise statement of the material facts on which the party relies for his or her claim. [47] Our Appeal Court has recently recognized the power to strike out a statement of claim for other than failure to disclose a reasonable cause of action. In Kay Aviation b.v. v. Rofe, [2001] P.E.I.J. No 48 (PESCAD), although he found that the claim did not disclose any cause of action, McQuaid J.A. found as well that an action could also be dismissed as being frivolous or vexatious or otherwise an abuse of the process of the court. [48] McQuaid, J.A. stated at paragraphs 14 and 41: 14 A statement of claim will not be struck on a motion brought pursuant to Rule 21.01(b), unless it is plain and obvious the statement of claim does not disclose a reasonable cause of action against the defendant. See: Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 at pp (S.C.C.), and Hunt v. T.& N plc 43 C.P.C. (2d) 105 at p , paras (S.C.C.). It must be plain and obvious the action cannot succeed Before commencing an action, a plaintiff must have sufficient material facts in his or her possession capable of establishing the cause of action and if not, the action should never be commenced. In this case it is patently obvious the respondent did not have such facts in its possession nor is there any indication from the pleading such facts even exist. Therefore, the statement of claim should also be dismissed as being frivolous or vexatious or otherwise an abuse of the process of the court. [Emphasis added] [49] The problems identified in the Prince Edward Island cases which may lead to having a statement of claim being struck as frivolous, vexatious, an abuse of process, or something which may prejudice or delay the fair trial of the action are: 1) unnecessary length; 2) improper pleading of evidence rather than material facts to support a party s claim; 3) difficulty in ascertaining what the plaintiff seeks;

15 Page: 13 4) repeated breach of the rules of pleading ( plain and obvious ); 5) impossibility of fixing the claim by a series of amendments; 6) whether a series of amendments would make of it a new statement of claim; 7) whether the defendant may be embarrassed or prejudiced in meeting the claim; 8) whether the claim pleads facts which are speculative. (ii) Problems with Statement of Claim [50] The problems with the form and drafting of the statement of claim in this case are as follows: a) It is 53 pages long and consists of 298 numbered paragraphs, plus many unnumbered paragraphs that in some cases may have been intended as titles or introductions for the numbered paragraphs that follow (unnumbered paragraphs occur after paragraphs 26, 29, 31, 37, 137 and 163). The plaintiff makes a point of noting on a number of occasions in his claim that in the past the Appeal Division found his submissions in other cases to be prolix. That is not a term of approval, and I would venture that the Appeal Division intended the term to be a gentle warning, one he has not heeded. His present claim goes far beyond being prolix: it is offensively prolix (see Meyers and Lee v. Freeholders Oil Co. Ltd. and Canada Permanent Trust Co. (1956), 19 W.W.R. (N.S.) 546 (Sask. C.A.) at 547). As Gordon J.A. stated in Meyers, supra, Prolixity can be a ground of embarrassment and solicitors should not compel their opponents to thresh too much chaff to find a few kernels of necessary facts. In Kuhn v. American Credit Indemnity Co., supra, Master Joyce stated at paragraph five:...for the most part [the statement of claim] consists of either irrelevant facts, argument or evidence. I am satisfied that the document is so prolix as to be embarrassing. It would be nearly impossible for the defendants properly to plead in reply to this document other than by bare denial. For this reason alone, I am of the opinion the statement of claim should be struck. b) The statement of claim quotes at length from decisions of the Trial and Appeal Divisions of this Court in which the plaintiff was involved. It also refers to and quotes from Supreme Court of Canada cases not

16 Page: 14 involving the plaintiff (see paragraphs 27, 28, 47, 52, 63, 69, 96, 168, 185, 193). Eleven consecutive paragraphs which discuss defamation and the internet have been lifted without attribution from the decision of Blair, J.A., in Barrick Gold Corporation v. Lopehandia, [2004] O.J. No The only changes to the paragraphs are that all citations to the many authorities referred to by Justice Blair have been deleted (see statement of claim paragraphs and paragraphs of the decision of Blair, J.A.). The statement of claim also contains six consecutive paragraphs which have been lifted without attribution from the decision of Jenkins, J. in Ayangma v. Prince Edward Island (Human Rights Commission), [2001] P.E.I.J. No. 126, [2001] PESCTD 100 (see statement of claim paragraphs and paragraphs 4-9 of the decision of Jenkins J.). There are many other places where single paragraphs have been lifted verbatim without attribution from decisions of our Trial and Appeal Divisions. I did not attempt to count or catalogue all of these but noted paragraphs 17 (part), 18 and 109 (Trial Division) and 177, 178 and 179, 201, 205, 206 and 207 (Appeal Division). None of these excerpts from Court decisions belong in a statement of claim. c) The statement of claim repeatedly quotes from s. 61 of the Supreme Court Act, R.S. 1985, c. S-26, (see paragraphs 50, 68, 83). d) This claim is remarkable for its repetition. On many occasions, a particular paragraph has been re-used at different points in the claim not paraphrased, but identical, even to the typographical errors. On other occasions, a word is added to or deleted from a paragraph, or a sentence is tacked on to the end, but the substance of the paragraph remains the same. Incredibly, there are three instances in the statement of claim where the same string of eleven consecutive paragraphs occurs. The paragraphs in each string are identical in sequence; they are virtually identical in content - a couple have a word or two changed or a sentence added. The substance of the three strings is identical.

17 Page: 15 To summarize on this point, all the duplicate, or near-duplicate paragraphs which I have found are as follows: i) 8, 9 and 112, 113; ii) 20, 22 and 38, 39; iii) 26 and 55; iv) and and ; v) 127 and 182; vi) 128 and 254 and 291; vii) and ; viii) 174 and 202; ix) 176 and 203; x) and ; xi) 238 and 239; xii) 242 and 245; xiii) and ; xiv) and (paragraph 251 contains 275 and 276). This totals 48 paragraphs of useless repetition. I expect there are more duplicate paragraphs which I have missed. Single sentences which are identical, or near identical, appear again and again. I did not attempt to catalogue or count single sentence repetitions. It is not helpful to opposing parties or the Court to repeat large portions of the claim again and again. It creates a barrier to dealing with the claim. The repetition demonstrates the ability and the willingness to use the copy and paste functions on a word processing program, and not much else. e) The entire claim is replete with evidence, argument, opinion and rhetoric. f) There is no paragraph in the claim which identifies the plaintiff. g) The statement of claim contains lengthy histories of the plaintiff s litigation: (i) Paragraphs are a history of the 1998 Government application under s. 61(1) of the Supreme Court Act; (ii) Paragraphs are a mix of history of the plaintiff s actions from 1998 on, and an attempt to have the Court revisit past awards for security for costs;

18 Page: 16 (iii) Paragraphs are a history of the contempt and other proceedings brought by the plaintiff in 2001 and dismissed; (iv) Paragraphs are a history of earlier pleadings struck out in whole or part, included to show that the defendants could have moved to strike parts of every claim he brought rather than attempting to restrict his access to the courts pursuant to s. 61 of the Supreme Court Act. These paragraphs only show that the plaintiff seems to rely on the Supreme Court to edit his pleadings. h) Rule 25.07(8) requires full particulars of any allegation of fraud, misrepresentation, breach of trust, malice or intent. The plaintiff repeatedly asserts malicious conduct but provides no particulars of the malice (see paragraphs 1, 1(b), 1(c), 1(d), 2, 2(e), 2(f), 2(g), 3(j), 3(j) [the second 3(j)], 3(k) and 3(l), after paragraph 26, subparagraph (l) and its boldface introduction, 34, 37(a), 158, 200, 237, 238, 239, 240, 254, 256, 278, 291, 293). i) The amount of damages claimed is not stated - Rule 25.06(9). j) The claim names both the Government of Prince Edward Island and the Attorney General of Prince Edward Island as defendants. The Attorney General should not have been named as no separate claim against the Attorney General as an individual is identified. The Crown Proceedings Act, R.S.P.E.I. 1988, C-32, ss. 4(1)(a) and 9 provides that in a claim against the Crown, its officers or agents, the Crown shall be designated the Government of Prince Edward Island. k) The Court has no power to order one party to apologize to another party. l) The statement of claim is scandalous at many points (Rule 25.11(b)). It accuses the Human Rights Commission (paragraphs 129, 158) and the French and Eastern School Board (paragraph 129) of conspiracy, and the PEI legal community (paragraphs 127, 128, 182, 234, 251, 254, 276, 290, 291) of malice, abuse of court process, and possibly defamation. These bodies are not parties to the action, and the claim is therefore scandalous in the legal sense, meaning that it is both offensive and irrelevant. (m) The pleadings are confused and confusing. Aside from being vexatious in the normal and legal sense, they are frivolous in the sense that the verbatim and paraphrased repetition is a waste of time, vexing, frustrating, difficult to read, and unclear.

19 Page: 17 (iii) Findings General [51] This statement of claim is an abuse of the process of this Court. It is frivolous, vexatious, scandalous and embarrassing in the legal sense. [52] If this statement of claim were allowed to stand, the defendants would have the burden of answering and addressing the claims and all their myriad variations at all in-court and out-of-court stages of the action including document production and examination for discovery; the Trial Division would be obliged to deal with the claim at planning conferences, any motions, pre-trial conference(s) and trial; and the Appeal Division might be asked to review everything that had gone before. The claim would be an onerous and unnecessary burden on the defendants and on the court system, and would lead to considerable additional costs for the defendants at every step. It would prejudice and delay the fair trial of the action. [53] Allowing the claim to stand, and awarding costs to the defendants on this motion and at every stage thereafter because of the unnecessary difficulty which the pleading of the plaintiff has created, would be a poor solution, especially since the plaintiff already has nineteen unsatisfied judgments for costs against him totalling over $145,000. I cannot say whether he owes the full amount of all these judgments, but it certainly appears that awarding costs against the plaintiff might have a minimal deterrent effect. [54] I have considered striking discrete portions of the claim and directing the plaintiff to amend the remainder, but this statement of claim requires top-to-bottom redrafting before it could be even minimally acceptable, and such a course of action would inevitably put the Court in the position of redrafting the claim. Redrafting the claim would involve removing one defendant, deleting all the verbatim repetition, all the near verbatim and paraphrased repetition, all the evidence unnecessary for pleadings, all the argument, opinion and rhetoric, all scandalous allegations, and all the quotes from and references to case law and statutes. It would then be necessary to sort out the numbering problems and bring the related assertions together so that all of the allegations relating to a single issue at least appear close to each other. The amount of damages would have to be specified, the plaintiff properly identified, and particulars of malice provided. [55] This is not the Court s job. It is not up to the Court to do the plaintiff s editing

20 Page: 18 for him to winnow down his verbiage into something comprehensible and acceptable, and compose new pleadings where the present ones are deficient. Better to send the plaintiff back to the drawing board, as DesRoches J. put it in Fobes v. University of Prince Edward Island, supra. Self-Represented Litigant [56] The plaintiff represents himself in this action, and courts must be mindful that a degree of understanding and appreciation should be extended to parties who are not represented by legal counsel. Carruthers, C.J. in Pitre v. Law Society of Prince Edward Island (2000),187 Nfld. & P.E.I.R. 44 (PESCAD) at paragraph six; Ayangma v. Prince Edward Island (2000), 187 Nfld. & P.E.I.R. 150 ( PESCAD) at paragraph 25 referring to Baziuk v. BDO Dunwoody Ward Malletti (1997), 13 CPC (4 th ) 156 at 162. [57] Carruthers C.J. went on to say in Pitre, supra:...courts, however, have to be fair to the other parties as well. As was stated by Mr. Justice Locke of the British Columbia Court of Appeal in Kerlenmar Holdings Ltd. v. Matsqui (District) (1991), 47 C.P.C. (2d) 50, there does come a time when non-compliance becomes embarrassing in a legal sense and does cross the borderline. This appeal is one of those cases....courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to override the rights of a defendant party. [58] The plaintiff has been warned about his violations of the rules of pleading in the past. In Ayangma v. Prince Edward Island Eastern School Board, [2000] PESCAD 12 at paragraph 6, Mitchell C.J.A. stated:...while on the subject of the appellant s pleadings, I would point out that the statements of claim (even after the motion judge ordered certain attachments struck from them) do not comply with the requirements of the Civil Procedure Rules. Rule 25 and Form 14A which govern pleadings and statements of claim are not onerous or complex and should be followed by all plaintiffs regardless of whether or not they are represented by counsel. [59] The extra consideration which should be given to self-represented litigants does not extend so far as to forgive the repeated and wholesale disregard of the rules

21 Page: 19 of pleading and override the defendants rights. (iv) Conclusion re Motion to Strike for Violation of Rules of Pleading [60] The parties have confirmed that no limitation periods would act as a barrier to the recommencement of an action by the plaintiff, or at least no limitation period which had not expired when the present action was started. [61] I conclude that the statement of claim should be struck out in its entirety. Detailed provisions respecting this order appear at the end of this decision. [62] I have made the above ruling on the basis that the statement of claim is frivolous, vexatious, scandalous, an abuse of the process of the court, embarrassing, would prejudice and delay the fair trial of the action, and is in general a wholesale violation of the rules of pleading. PART THREE - Rule 21.01(1)(b) - No reasonable cause of action. [63] A motion to strike out a pleading pursuant to Rule 21.01(1)(b), as disclosing no reasonable cause of action, is not an all or nothing proposition. If there are distinct causes of action, some may be struck and others allowed to continue. In the same fashion, some parties may have the claim against them struck, leaving other parties (see Ayangma v. Prince Edward Island, [1998] P.E.I.J. No. 86; Leadbeater v. Ontario (2001) 16 C.P.C. (5 th ) 119 (S.C.J.); Carom v. Bre-x Minerals Ltd. (1998), 20 C.P.C. (4 th ) 163 (Ont. Ct. Jus. Gen. Div.)). [64] The principles to be applied in a Rule 21.01(1)(b) motion are as set out in Hunt v Carey, supra; Operation Dismantle, supra; Kay Aviation b.v. v. Rofe, supra; Ayangma v. Prince Edward Island, supra; Bank of Montreal v. Charlottetown, [2004] P.E.I.J. No. 96 (PESCTD); Gallant v. Prince Edward Island (Workers Compensation Board), [2002] P.E.I.J. No. 94 (PESCTD); Oliver v. Severance, [2005] P.E.I.J. No. 16 (PESCTD). Briefly, these principles are: a) the facts set out in the statement of claim are to be taken as proven, b) the pleading must be read as generously as possible, and c) the pleading will not be struck out unless it is plain and obvious that it cannot succeed. [65] The plaintiff has re-framed the same events in a number of different ways. Thus, the s. 61 application to have the plaintiff declared a vexatious litigant is variously described as defamation, violation of the plaintiff s s. 7 and 15 Charter rights, malice, abuse of public office, conspiracy, negligence, and interference with