IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Fidler v. Burns Lake (Village), |
| 2013 BCSC 921 |
Date: 20130527
Docket: 15991
Registry:
Smithers
Between:
Andrew
Fidler
Plaintiff
And
Corporation of the
Village of Burns Lake, Jordan MacKellar,
Brodie
Ferris, Michael Esson, Tom Wamsteeker and Bob Purslow
Defendants
Before:
The Honourable Mr. Justice R. Punnett
Reasons for Judgment
Andrew Fidler: | In Person |
Counsel for the Corporation Counsel for the individual Defendants: | R. E.L. |
Place and Date of Hearing: | Smithers, B.C. February Written Written submissions |
Place and Date of Judgment: | Smithers, B.C. May 27, 2013 |
[1]
The plaintiffs claim is against the Corporation of the Village of Burns
Lake (Burns Lake) and five members of the Royal Canadian Mounted Police (RCMP).
[2]
The notice of civil claim fails to comply with the Supreme Court
Civil Rules relating to pleadings but it appears that the claim is
for injuries arising from an alleged unlawful arrest and detention.
[3]
Burns Lake applies for summary judgement pursuant to Rule 9-6(4) to have
the claims against it dismissed on the basis that the claim is without merit in
that it lacks any basis in law.
[4]
The individual co-defendants apply to have the claims against them
dismissed but for different reasons. Their application is threefold: first that
the pleadings disclose no cause of action and are unnecessary, scandalous,
frivolous or vexatious, second that there is no genuine issue for trial, and finally
that almost all of the claims of the plaintiff are statute barred. Their
application is brought pursuant to Rule 9-5(1) (Scandalous, frivolous or vexatious
matters), Rule 9-6 (Summary Judgment), Rule 9-7 (Summary Trial) and the Limitation
Act, R.S.B.C. 1996, c. 266.
[5]
While there are two separate applications are before me I propose to
deal with both in these reasons.
Background
[6]
The plaintiff was arrested on October 19, 2006 and charged as follows:
a) Count 1: that he
committed aggravated assault of George Betemps, contrary to s. 268(2) of the Criminal
Code;
b) Count 2: that in
committing the assault he used a weapon, to wit, a pellet pistol, contrary to
s. 267(a) of the Criminal Code;
c) Count 3:
that in committing the assault he used a weapon, to wit, a stick, contrary to
s. 267(a) of the Criminal Code, and
d) Count 4: that he
did carry or have in his possession a weapon, a pellet pistol, for a purpose
dangerous to the public peace or for the purpose of committing an offence
contrary to s. 88(1) of the Criminal Code.
[7]
He was acquitted of all charges on June 2, 2009 on the basis of
self-defence. He now makes numerous claims related to his arrest. At the outset
I note the difficulty of characterizing some of the allegations due to the
improperly pleaded claims. I am satisfied however that the characterization
that follows accurately reflects what the plaintiff intended to allege and
advance in law.
[8]
The plaintiff claims assault and/or battery, sexual assault, kidnapping,
forceful confinement (false imprisonment), Charter breaches (violation
of the right to liberty, to be free from cruel and unusual punishment, and to
equal protection and due process of the law), unreasonable search and seizure,
trespass, malicious prosecution, defamation, abuse of process and theft.
[9]
He further alleges that Burns Lake is vicariously liable for these
actions.
[10]
I will address the application of Burns Lake and then the application of
the five individual RCMP officers.
Application of Burns Lake
[11]
The plaintiffs claims are against Burns Lake as the employer of the
officers, responsible for their training, supervision, discipline, hiring and
conduct. He also alleges that Burns Lake is liable for a tacit and implicit
authorization, adoption, ratification, approval and acquiescence in the acts
of the defendant officers.
[12]
Burns Lake applies pursuant to Supreme Court Civil Rules 9-6(4)
and 14-1 for dismissal of the plaintiffs claim against the corporation. It
states that it is not the employer of the co-defendant officers nor does it
have a role in their hiring, training, supervision, discipline or conduct. It also
states that because its population is less than 5000 people, it is policed by
the RCMP pursuant to an agreement between the federal and provincial
governments, an agreement that Burns Lake is not party to.
[13]
The plaintiff does not contradict the defendants evidence that the
population of Burns Lake in 2006 was approximately 3,649, or the evidence that
Burns Lake never had a role in training, supervising, disciplining or hiring
the co-defendants. There is no agreement alleged nor is there an agreement between
Burns Lake and the provincial or federal government giving Burns Lake any role
in the RCMPs policing of Burns Lake.
Law and Discussion
[14]
Pursuant to the Police Act, R.S.B.C. 1996, c. 367, since Burns
Lake had at all material times less than 5,000 people, the provincial
government was responsible for providing policing
and law enforcement services in Burns Lake and the surrounding area:
3 (1) The government must provide
policing and law enforcement services for the following:
(b) municipalities with a
population of up to 5,000 persons;
[15]
Section 14 of the Police Act gives authority for the RCMP
to be the provincial police force if the provincial and federal government
enter into an agreement whereby the RCMP is
deemed to be the provincial police force and its members are deemed to
be provincial constables.
[16]
On April 1, 1992 the British Columbia government entered into an
agreement with the federal government making the RCMP the provincial police
force.
[17]
This agreement places no
control over policing in the hands of municipalities with a population
of less than 5,000. Article 3.1 of the agreement provides that the internal
management of the provincial RCMP shall remain under the control of Canada. It further states that the minimum standard of
policing shall be set by the Commissioner of the RCMP, in consultation
with the provincial Minister responsible for policing services within the Province.
[18]
Section 15 of the Police Act states that a municipality with a population greater than 5,000 must
provide policing and law enforcement in the municipality. The municipality is
jointly and severely liable for torts committed by any of its municipal
constables if the tort is committed in the performance of that persons duties
(Police Act, s. 20).
[19]
However, there is
no similar requirement for municipalities with a population under 5,000 people
to provide policing. Given Burns Lake is a community of less than 5000
individuals; the constables named as co-defendants are provincial constables
not municipal constables. As a result the
corporation is not vicariously liable for the actions of provincial
constables. Such liability lies with the Province (Police Act s. 11); (Quinn v. Dubnyk, 2011 BCSC
792; Roy v. British Columbia (Attorney General), 2005 BCCA 88).
[20]
I conclude the plaintiff has no basis for a claim against Burns
Lake and the action against it is dismissed.
[21]
I now turn to the application of the individual police officers.
Application of the Individual Defendants
[22]
As noted earlier, the individual defendants advance three challenges to
the notice of civil claim. The first seeks to have the application struck due
to deficient pleadings, the second seeks summary dismissal of the claim and the
third to have the majority of the claims dismissed as having been commenced
outside the limitation period.
[23]
In my view as the limitation issue is determinative of the majority of
the claims I will address it first.
Limitation Act
[24]
The defendants submit that all of the claims except that of malicious
prosecution are statute barred by virtue of the Limitation Act. They
submit as well that the two-year limitation period is not postponed pursuant to
s. 6(4) of the Limitation Act.
[25]
The running of time for the two-year limitation period under the Limitation
Act generally starts on the date the injury or damage was sustained (Levitt v.
Carr (1992), 66 B.C.L.R. (2d) 58 (C.A.) at para. 82). The cause of action
accrues when the plaintiff is aware that damage has occurred and knows who the
tortfeasor is (Craig v. Insurance Corporation of British Columbia, 2005
BCCA 275).
[26]
In this case there is no issue regarding discoverability. That is, it
was clear to the plaintiff when his claim arose. The limitation period
therefore began to accrue on the dates of the incident in question, namely
October 19 and 20, 2006.
[27]
The allegations of assault, kidnapping, forceful confinement, trespass,
illegal search and seizure, defamation and cruel and unusual punishment are all
subject to a two-year limitation period (Limitation Act, s. 3(2)(a),
(b), (d) and (f)) as are the Charter breaches alleged including those relating
to s. 7 and 9 of the Charter (Bush v. City of Vancouver et al,
2006 BCSC 1207). The specific paragraphs raising these allegations are paras.
8-22, 23-32 and 33-45 of the notice of civil claim.
[28]
Unless the running of time for these causes of action was postponed they
are statue barred by the Limitation Act. Section 6(3) provides:
6
(3)
limitation periods set
by this Act for any of the following actions is postponed as provided in
subsection (4):
(a) for personal injury;
(b) for damage to property;
(c) for professional negligence;
(d) based on fraud or deceit;
(e) in which material facts
relating to the cause of action have been wilfully concealed;
(f) for relief from the consequences of a mistake;
(g) brought under the Family Compensation Act;
(h) for breach of trust not within subsection (1).
[29]
Since the claims for trespass, forceful confinement and defamation are
not referred to in s. 6(3) they are not capable of postponement. In light of my
conclusions in this matter I need not address whether the claims for unlawful
arrest and unreasonable search and seizure are capable of postponement.
[30]
The plaintiff submits that the limitation period was postponed due to
events related to his mental health and a period of incarceration occurring
after the fall of 2006. He asserts the postponement was of sufficient length
that this proceeding was commenced in time.
[31]
Rule 9-6(5)(c) of the Supreme Court Civil Rules provides that on
a summary judgment application, the court if satisfied that the only genuine
issue is a question of law, may determine the question and pronounce judgment
accordingly,
. The initial issue therefore is whether the question of whether
an action is statute barred is a question of law.
[32]
In Sime v. Jupp, 2009 BCSC 1154, a claim that was statute barred
was dismissed pursuant to now Rule 9-6(4) because the relevant facts were clear
on the issue of postponement. It was not however held to be a question of law.
[33]
In Foote v. Canada (Attorney General), 2012 BCSC 177 at paras.
25-26, Mr. Justice Savage said:
[25] On an application under Rule 9-6(4), matters of
fact cannot be weighed and inferences from the facts must be viewed in a light
most favourable to the Plaintiffs: Carnahan v. Coates (1990), 71 D.L.R.
(4th) 464, 47 B.C.L.R. (2d) 127. Arguably, it is a question of fact in each
case whether the Plaintiffs’ circumstances justify the application of the
postponement provisions: Bush v. City of Vancouver et al., 2006 BCSC
1207 at para. 40. Matters of fact or mixed fact and law are more properly dealt
with by applications under Rule 9-7, if they are to be dealt with on a summary
basis.
[26] In the circumstances, I
am unable to conclude, as a matter of law that there is no bona fide
triable issue on the question of whether the limitation period for the
misfeasance in office claim is postponed.
[34]
In Walsh v. BDO Dunwood LLP, 2013 BCSC 392 at para. 27:
[27] I start by recognizing
that the question of whether a limitation period has been postponed is largely
a fact-based inquiry; see Sun-Rype Products Ltd. v. Archer Daniels Midland
Company, 2008 BCCA 278, 81 B.C.L.R. (4th) 199; Weldon v. Agrium Inc.,
2012 BCCA 53 at para. 24, 27 B.C.L.R. (5th) 101; Ferrara at para. 38.
[35]
In this instance the application cannot be disposed of under Rule 9-6 as
it is not limited to a question of law. Issues of fact are at play.
[36]
Rule 9-7(5) permits a party on a summary trial application to tender
evidence in a number of ways. Under a summary trial application matters of fact
or mixed fact and law can be dealt with on a summary basis.
[37]
The question is whether, unlike in Foote and Walsh, the
materials filed in this instance permit the necessary factual findings required
to consider the postponement issue.
[38]
As noted earlier the actions of the defendants that are the subject of
this action occurred on October 19 and 20, 2006. The notice of civil claim was
filed on April 29, 2011.
[39]
Section 6(4) of the Limitation Act provides that the time does
not begin to run until, as summarized by Mr. Justice Tysoe (as he then was) in Ounjian
v. St. Pauls Hospital, 2002 BCSC 104 at para. 21:
[21]
1. The identity of the defendant is known to the
plaintiff.
2. The plaintiff has certain facts
(including the facts set out in s. 6(5)(b)) within her means of knowledge.
3. A reasonable person, knowing
those facts and having taken the appropriate advice a reasonable person would
seek on those facts, would regard the facts as showing that an action would
have a reasonable prospect of success.
4. A reasonable person, knowing
those facts and having taken the appropriate advice a reasonable person would
seek on those facts, would regard the facts as showing that the plaintiff
ought, in her own interests and taking her circumstances into account, to be
able to bring an action.
All
four of these components must be satisfied before the running of time with
respect to the limitation period begins running. Thus, if a plaintiff is able
to demonstrate that any one of the four components had not been satisfied
before two years prior to the commencement of the action (in the case of a two
year limitation period), the action will not be statute barred. …
[40]
The onus is on the plaintiff to establish that if at least one of these
conditions is not made out in order to succeed on the issue of postponement (Limitation
Act, s. 6(6)).
[41]
While the plaintiff alleges he did not know who the individual officers
were (arguing they failed to identify themselves at the time of his arrest and
were not identified until trial), he provides no rational explanation for
failing to take reasonable steps and advice to determine who the arresting
officers were. Clearly a simple inquiry of the RCMP or the Crown would have
produced the information.
[42]
I note that on November 2, 2006 he commenced action S067095 out of the
Vancouver Registry of this Court against the Burns Lake RCMP, John Doe #1 and
John Doe #2. The statement of claim in that action relates to the incident in
question in this action and advances claims that appear to mirror the claims in
this action. In addition on December 22, 2008 he commenced a second action,
S068381 also out of the Vancouver Registry, in which he was the plaintiff and
the defendant was the Ministry of Public Safety and Solicitor General. That writ
of summons describes the claim as follows: abuse of process, aggravated
assault, robbery, trespass, slander, reckless disregard, mental anguish, pain
and suffering, torture, immoral conduct [and] injuries apparently relating to
the same incident as the first action and this action.
[43]
With respect to the first action, S067096, the Department of Justice
wrote to the plaintiff on November 14, 2006 advising him that the RCMP was not
a legal entity, referring him to case authorities for that proposition, and
recommending that he seek legal advice if he wished to pursue the matter noting
the tort or torts alleged were unclear. The letter also suggested that he
review the Police Act.
[44]
It appears the plaintiff took no further steps with respect to either
action. I make no findings respecting any remedies the plaintiff may or may not
have in those proceedings.
[45]
As noted earlier the plaintiffs primary submission respecting the limitation
issue is that the time was postponed.
[46]
The plaintiff submits the postponement was due to a period of
incarceration at the Forensic Psychiatric Hospital in Port Coquitlam, British
Columbia in the spring of 2007 and the fall of 2008 as well as a period of custody,
the reasons for and when, where and for how long are not in evidence although
in oral submissions the plaintiff stated it was for a period of 10 months. He says
as well that the resulting after effects of the medication administered to him
while under treatment rendered him incapable of dealing with his claims against
Burns Lake and the RCMP officers. He also refers to being forced to flee his
home for several months due to alleged actions of the RCMP. However, other than
limited documentation showing his time at the Forensic Psychiatric
Hospital he presented no admissible evidence relating to these explanations in
order to justify the postponement of the limitation period. In particular,
there is no expert evidence addressing his mental capacity in 2007 and 2008. Indeed
even if he was incapacitated or incarcerated during the periods he alleges such
that the limitation period was postponed, commencement of the action in 2011
would still be outside the applicable limitation period for the causes of
action in issue.
[47]
The Courts approach to the test for extending a limitation period is
set out by Madam Justice McLachlin (as she then was), for the Court in Novak
v. Bond, [1999] 1 S.C.R. 808:
39 The
scheme and purpose of the Act leads me to conclude that the appropriate test is
a variant of the second approach. Leaving aside the requirement that the
identity of the defendant must be known to the plaintiff and that the
provisions of s. 6(4)(a) must also be satisfied before the running of time is
postponed, it is my view that the proper interpretation of s. 6(4)(b) may be
summarized as follows:
Section 6(4)(b) requires the court to adopt the perspective
of a reasonable person who knows the facts that are within the plaintiff’s
knowledge and has taken the appropriate advice a reasonable person would seek
on those facts. Time does not begin to run until this reasonable person would
conclude that someone in the plaintiff’s position could, acting
reasonably in light of his or her own circumstances and interests, bring an
action. The question posed by s. 6(4)(b) therefore becomes: "in light of
his or her own particular circumstances and interests, at what point could the
plaintiff reasonably have brought an action?" The reasonable person would
only consider that the plaintiff could not have brought an action circumstances
were serious, significant, and compelling. Purely tactical concerns have no
place in this analysis.
40 This
approach recognizes the special problems injured persons may encounter and the
intense stresses and strains involved in litigation. It recognizes that in some
cases, the plaintiff’s own circumstances and interests may be so compelling
that it cannot be reasonably said that he or she could bring an action
within the prescribed limitation period. Finally, it makes practical sense.
People ought to be encouraged to take steps short of litigation to deal with
their problems. They should not be compelled to sue when to do so runs counter
to a vital interest, such as the need to maintain their health in the face of a
life-threatening disease.
[48]
The plaintiff does not meet the criteria noted in Ounjian for
postponement of his claims. The claims advanced were all matters within the
knowledge of the plaintiff on October 19, 2006 and the identities of the
defendants were either known or knowable at that time. He was also well aware
he could sue unknown individuals. The plaintiff should have taken the
appropriate advice and did not, despite the Department of Justice having
recommended he do so. I do not accept the plaintiffs written submission for
failing to do so in which he stated at p. 7:
The plaintiff notes that it is not reasonable for the
plaintiff to seek the advice of lawyers when supreme court justices and law
school professors are reporting that ninety percent of them are incompetent. It
is also not reasonable for the plaintiff to seek advice from individuals (i.e.,
lawyers) when the living God has warned him that he ought to avoid them.
The plaintiff was also warned that the local lawyers had been
asked to notify the RCMP if the plaintiff approached them for advice, which
meant another violent attack against the plaintiff.
The plaintiff should not be required to seek out or trust the
advice of individuals who practice a profession that his God is not at all
pleased with, and who makes very negative comments about in His Word.
[49]
As a result the events that the plaintiff alludes to subsequent to the
fall of 2006, even if they were established on the evidence, are irrelevant to
the issue of postponement given the initiation of the Vancouver actions
established that the plaintiff had the requisite knowledge, knew that it was
the RCMP members he was suing, and reasonably should have taken the requisite
advice and either reinitiated or amended one of the Vancouver actions.
[50]
As a result I dismiss the claims for assault, kidnapping, forceful
confinement, trespass, illegal search and seizure, defamation and cruel and
unusual punishment set out in the paras. 8-22, 23-32, and 33-45 of the notice
of civil claim.
[51]
This leaves two remaining claims, those being the allegation of sexual
assault and the allegation of malicious prosecution. With respect to the latter
it is not disputed that the notice of civil claim filed on April 29, 2011 in
this action was filed in time given the criminal proceedings. However it is
disputed that the allegation of malicious prosecution is properly pleaded. The
allegation of sexual assault raises two issues: do the pleadings plead the
issue of a sexual assault and, if they do, what limitation period applies? I
shall address the limitation issue now with the pleading issues to be addressed
later in these reasons.
[52]
With respect to the allegation of assault he alleges they punched him in
the genitals and as a result also committed a sexual assault that he submits is
not subject to the two-year limitation period.
[53]
The Limitation Act provides that a sexual assault is not governed
by a limitation period. (s. 3(4)(k), (D.E. (Guardian ad litem) v. British
Columbia, 2005 BCCA 134).
[54]
As a result the plaintiffs claims for malicious prosecution and sexual
assault were not out of time when this action was commenced. This leads to a
consideration of the pleadings and the defendants application to strike.
Pleadings
[55]
The defendants seek to strike the plaintiffs pleadings pursuant to Rule
9-5(1) as disclosing no reasonable claim or as unnecessary, scandalous,
frivolous or vexatious. Such an application assumes that the facts alleged can
be proven. It is only if no reasonable cause of action is disclosed that the
pleadings should be struck. (Hunt v. Carey Canada Inc., [1990] 2 SCR 959
at p. 980 and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3
S.C.R. 45 at para. 22).
[56]
In Imperial Tobacco the Supreme Court of Canada said this
regarding the striking of claims:
[19] The power to strike out claims that have no
reasonable prospect of success is a valuable housekeeping measure essential to
effective and fair litigation. It unclutters the proceedings, weeding out the
hopeless claims and ensuring that those that have some chance of success go on
to trial.
[20] This promotes two goods — efficiency in the
conduct of the litigation and correct results. Striking out claims that have no
reasonable prospect of success promotes litigation efficiency, reducing time
and cost. The litigants can focus on serious claims, without devoting days and
sometimes weeks of evidence and argument to claims that are in any event
hopeless. The same applies to judges and juries, whose attention is focused
where it should be — on claims that have a reasonable chance of success. The
efficiency gained by weeding out unmeritorious claims in turn contributes to
better justice. The more the evidence and arguments are trained on the real
issues, the more likely it is that the trial process will successfully come to
grips with the parties’ respective positions on those issues and the merits of
the case.
[22] A motion to strike for
failure to disclose a reasonable cause of action proceeds on the basis that the
facts pleaded are true, unless they are manifestly incapable of being proven: Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455. No evidence is
admissible on such a motion: r. 19(27) of the Supreme Court Rules (now
r. 9-5(2) of the Supreme Court Civil Rules). It is incumbent on the claimant
to clearly plead the facts upon which it relies in making its claim. A claimant
is not entitled to rely on the possibility that new facts may turn up as the
case progresses. The claimant may not be in a position to prove the facts
pleaded at the time of the motion. It may only hope to be able to prove them.
But plead them it must. The facts pleaded are the firm basis upon which the
possibility of success of the claim must be evaluated. If they are not pleaded,
the exercise cannot be properly conducted.
[57]
At para. 13 in Sime , Mr. Justice Powers accepted the following
propositions from the defendants submissions:
[13]
19. In Dempsey v. Envision Credit
Union, Madam Justice Garson summarizes the law on Sub-Rules 19(24(b)(c) and
(d) and extracts general propositions from the authorities concerning the
circumstances under which pleadings will be struck. A pleading will be struck
out if:
(a) the pleadings are
unintelligible, confusing and difficult to understand (Citizens for Foreign
aid Reform, supra);
(b) the pleadings do not establish
a cause of action and do not advance a claim known in law (Citizens for foreign
aid Reform, supra);
(c) the pleadings are without
substance in that they are groundless, fanciful and trifle with the Courts
time (Borsato v. Basra);
(d) the pleadings are not bona
fides, are oppressive and are designed to cause the Defendants anxiety, trouble
and expense (Borsato v. Basra, supra);
(e) the action is brought for an
improper purpose, particularly the harassment and oppression of the defendants
(Ebrahim v. Ebrahim, 2002 BCSC 466).
Dempsey v. Envision Credit Union, 2006 BCSC 750 para
17
20. Failure to properly
particularize claims in defamation may amount to a failure to disclose a
reasonable claim under 19(24)(a). Irrelevant allegations against a defendant
may be struck under 19(24)(b) and (c) as unnecessary, scandalous, frivolous or
vexatious.
Strauts v. Harrigan [1992] B.C.J No. 86
21. Sub-Rule 19(24)(d) allows
pleadings to be struck where they are an abuse of the process of the court. Abuse
of process is a flexible doctrine that allows the court to prevent a claim from
proceeding where it violates such principles as judicial economy, consistency,
finality and the integrity of the administration of justice.
Dempsey v. Envision Credit Union, 2006 BCSC 750, para
9, citing Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77
(S.C.C.) para 37
22. Claiming the same relief in two
separate actions is vexatious and an abuse of process.
Great Pacific Contracting Ltd. V. Harwyn Properties,
29 B.C.L.R. 145, 21 C.P.C. 280, paras 11-13
23. Pleadings that are so prolix or
confusing that it is difficult, if not impossible, to understand the case to be
met should be struck, since they prevent the Defendant from knowing the case it
has to meet. Amendment will be permitted for those claims that are capable of
being remedied, but proposed claims which are without legal foundation should
be dismissed.
Extra Gift Exchange Inc. v. Ernest & Twins Ventures
(PP) Ltd., 2007 BCSC 426, paras 18, 19 and 22
[58]
The notice of civil claim filed April 29, 2011 consists of 67 paragraphs
and subparagraphs and 18 pages quoting liberally from the Magna Carta,
the 1689 Bill of Rights, the Petition of Rights 1628 and the Canadian
Charter of Rights and Freedoms. The response of Burns Lake is a mere six pages
yet has prompted the plaintiff to file a reply consisting of 295 pages plus
another 150 or so pages of what he describes as exhibits.
[59]
Some examples from the plaintiffs notice of civil claim are noted by
the defendants and will suffice to establish its deficiencies:
a) Paragraph 9 — wherein the
plaintiff claims the defendants MacKellar and Ferris did "deceptively
sneak" and that they "banged violently and furiously";
b) Paragraph 12 — wherein
the plaintiff describes the defendants MacKellar and Ferris as the "kidnapping
defendants";
c) Paragraph 20 — wherein
the plaintiff describes the defendants MacKellar and Ferris’ employers as
"a standing army known as the Royal Canadian Mounted Police";
d) Paragraph 29 — wherein
the plaintiff refers to the defendant as stating in an evil tone, "Don’t
fucking look at me".
e) Paragraph 29(iv) —
wherein the plaintiff describes his position as "execution style" and
refers to an alleged "murder" not in any way connected to the case at
hand and refers to the defendants as the "terrorist kidnapping
defendants";
f) Paragraph 30 — wherein
the plaintiff again describes the defendants MacKellar and Ferris’ employers as
"a standing army known as the Royal Canadian Mounted Police";
g) Paragraph 34 — wherein
the plaintiff describes the defendants breaching the plaintiffs
"god-given" rights and described the defendants’ offering the plaintiff
a "despicable contract offer";
h) Paragraph 37 — wherein
the plaintiff describes the defendants as "thieves", describes his
right to his property as "granted by God, the Creator of the universe …
alleged to be illegal under de facto law" then guaranteed";
i) Paragraph 38 — wherein
the plaintiff again refers to the defendants employer as a "standing army
known as the Royal Canadian Mounted Police during times of peace in the commonwealth
Dominion of Canada";
j) Paragraph 41 — wherein
the plaintiff describes the defendant Wamsteeker’s request that the plaintiff
stay in his presence at all times as a "disgusting absurdity";
k) Paragraph 45 — wherein
the plaintiff describes the actions of the defendants as a deprivation of
"God-given and constitutionally given rights";
l) Paragraph 46 — wherein
the plaintiff refers to the defendants employers as a "standing army known
as the Royal Canadian Mounted Police during times of peace in the commonwealth
Dominion of Canada";
m) Paragraph 49 — wherein the plaintiff
describes the RCMP "militarily trained and a militarily punished, de
facto ‘police’ presence which resembles and whose actions are those of a
standing army rather than legitimate police", the plaintiff further
describes the RCMP members in Burns Lake as a group of "dumbed down (re: public
school training) and armed individuals who have no knowledge of the laws of
the Dominion of Canada (which recognizes God as the supreme authority), which
constitutes a dangerous threat to the well-being of every individual who
exercises his/her God-given and constitutionally guaranteed rights anywhere
near an R.C.M.P. member", the plaintiff goes on to say that the
"military ‘police’ (R.C.M.P.) members do terrorize on a daily basis in the
name of enforcing de facto and constitutionally invalid law";
n) Paragraph 51 — wherein
the plaintiff states that the defendant, the Village of Burns Lake, is a
"first stop" for RCMP recruits "who arrive untrained [except for
military training], unknowledgable [except for military training], and very
incapable of doing any real police work through their ignorance of the law and
lack of proper training" and that they "cause many more problems than
they ever solve" the plaintiff claims that there is an over abundance of RCMP
officers and that it appears "to be for the use and purpose of continuing
Canada’s theft of land, and the secret [not secret any longer] genocide
of the indigenous peoples of the land whom God gave dominion to, and for the
purpose of proceeding with the protocols agenda for a new world order (one
world government) under the United Nations (which when looking at the facts, is
a satanic cult);
o) Paragraph 52 — wherein
the plaintiff describes the acts of the defendants as carried out under custom,
practice, policy, rules, regulations and colors of (de facto) state and federal law.
[60]
If I am wrong in my findings that the majority of the claims are statute
barred in my view the pleadings suffer from numerous defects. They are
unnecessary and embarrassing in that it is difficult to understand what is
pleaded and much of what is pleaded is irrelevant to the real issues. They are
also prolix and confusing, contain excessive pleading of evidence, argument and
opinion, and require such extensive amendment that complete redrafting is
required. The reply, in addition to similar infringements of the rules of
pleadings, is largely incomprehensible.
[61]
With respect to the allegation of sexual assault the notice of civil claim
simply states that the plaintiff was struck on his stomach, ribs and genitals.
While that is an allegation of assault it is not an allegation of sexual
assault.
[62]
A sexual assault is not established simply by contact with specific
areas of the human anatomy (R. v. Chase (1987), 37 C.C.C. (3d) 97 at p.
102). Mr. Justice McIntyre for the Court at pp. 103-104 said:
… Sexual
assault is an assault within any one of the definitions of that concept in s.
244(1) of the Criminal Code which is committed in circumstances of a
sexual nature, such that the sexual integrity of the victim is violated. The
test to be applied in determining whether the impugned conduct has the
requisite sexual nature is an objective one: "Viewed in the light of all
the circumstances, is the sexual or carnal context of the assault visible to a
reasonable observe[r]?" (Taylor, supra, per Laycraft C.J.A.,
at p. 162 C.C.C., p. 269 C.R.). The part of the body touched, the nature
of the contact, the situation in which it occurred, the words and gestures
accompanying the act, and all other circumstances surrounding the conduct,
including threats which may or may not be accompanied by force, will be
relevant: see S.J. Usprich, "A New Crime in Old Battles: Definitional
Problems with Sexual Assault" 29 Crim. L.Q. 200, at p. 204. The intent or
purpose of the person committing the act, to the extent that this may appear
from the evidence may also be a factor in considering whether the conduct is
sexual. If the motive of the accused is sexual gratification, to the extent
that this may appear from the evidence it may be a factor in determining
whether the conduct is sexual. It must be emphasized, however, that the existence
of such a motive is simply one of many factors to be considered, the importance
of which will vary depending on the circumstances.
[63]
In Ross v. British Columbia (Public Safety), 2009 BCSC 1811, Mr. Justice Schultes
summarized the test for striking a pleading under the then Rule 19(24)(a)
as follows:
[13] A court may only strike a statement of claim
pursuant to Rule 19(24)(a) when it is "plain and obvious" that the
claim cannot succeed: Hunt v. Carey Canada Inc., [1990] 2 S.C.J. No. 93
at paragraph 33. In determining whether this test has been met the court must
assume that the facts in the statement of claim are true and that the case for
the plaintiff is taken at its highest: Canadian Bar Association v. British
Columbia (2008), 76 B.C.L.R. (4th) 48 (C.A.). However, the court is not
required to assume the truth of allegations that are incapable of proof: Operation
Dismantle v. The Queen, [1985] 1 S.C.R. 441 at 455.
[14] As long as the pleadings disclose a triable issue,
either as it exists or as it may be amended, the issue should go to trial: Citizens
for Foreign Aid Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No.
2160 (S.C.) 34. A court is 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: Operation Dismantle,
at page 451. This is particularly important in the case of a self-represented
plaintiff.
[15] Pursuant to Rule
19(27), no evidence is admissible in an application under Rule 19(24)(a).
[64]
The pleadings fail to plead any facts to establish a sexual motive nor
other facts in support of such a plea. Indeed, despite the voluminous
information contained in the materials before the court the material facts are
completely absent. This is not in my view simply a drafting deficiency. The
allegation of sexual assault is therefore struck.
[65]
With respect to the claim for malicious prosecution, at best it only
appears that it is a claim the plaintiff wishes to bring. The pleadings fail to
plead the four elements required for such a claim. That is, the pleadings fail
to state the following:
a) The proceedings
must have been initiated by the defendants;
b) They must have
terminated in favour of the plaintiff;
c) There was
no objectively reasonable and probable grounds to believe that proof beyond a
reasonable doubt could be made out in a court of law;
d) The prosecution
was initiated and/or continued for an improper purpose or actuated by malice.
(Maizga v. Kvello Estate,
2009 SCC 51, [2009] 3 S.C.R. 339, paras. 52, 56, 79-81; Nelles v. Ontario,
[1989] 2 S.C.R. 170)
[66]
As a result I give the plaintiff 60 days to amend the pleadings to
particularize the pleading of malicious prosecution. Given the general state of
the pleadings and the results of this application, amendment must be made by
way of filing of an entirely new notice of civil claim. If he fails to do so
the claim for malicious prosecution is dismissed. If the new pleadings are
deficient the defendants have liberty to apply.
[67]
As requested, if the parties are unable to agree on costs they have
liberty to apply.
Punnett J.