T-2749-78
Franz Giacomelli Colet (Plaintiff)
v.
The Queen, David L. Hierlihy, Lavinia D. Finni-
gan, Frank Easton, Henry L. (Gail) Jensan
(Defendants)
Trial Division, Collier J.—Vancouver, January 15
and 18; Ottawa, February 21, 1979.
Practice — Motion to strike pleadings — Application to
strike out granted, but application by way of ordinary notice of
motion, for order that plaintiff not institute action in this
Court except with leave, dismissed — Second motion to be
brought by way of originating application or action because
motion without relevance to issue between parties, and hence
dismissed on procedural grounds — Further, power to make
order requested not conferred on Court by Federal Court Act.
APPLICATION.
COUNSEL:
No one appearing for plaintiff.
H. J. Wruck for defendant the Queen.
SOLICITORS:
Deputy Attorney General of Canada for
defendant the Queen.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiff resides in Prince
Rupert, British Columbia. This matter arises in
one of the many actions brought by the plaintiff
against Her Majesty the Queen and other defend
ants. I am unable to summarize the plaintiff's
statement of claim or the relief he requests. The
pleading is incomprehensible.
The defendant, Her Majesty the Queen (Feder-
al), and for the remainder of these reasons "the
Crown", brought a motion in this action. The
order sought is as follows:
... pursuant to Rule 5 of the Federal Court Rules and Section
84 of the Supreme Court Act of British Columbia R.S.B.C.
1960 Chap. 374 that no legal proceedings shall, without leave
of the Court, be instituted by the plaintiff, Franz Giacomelli
Colet, in either that name or any other name against Her
Majesty the Queen in the Federal Court of Canada on the
grounds that the plaintiff has habitually and persistently and
without any reasonable ground instituted vexatious legal pro
ceedings against Her Majesty the Queen in the Federal Court
of Canada, Trial Division, and for an Order that the Statement
of Claim filed herein be struck out pursuant to Rule 419 of the
Federal Court Rules on the grounds that it discloses no reason
able cause of action; it is immaterial and redundant; it is
scandalous, frivolous or vexatious; it may prejudice, embarrass
or delay the fair trial of this action; and it is otherwise an abuse
of the process of the Court or on any of these grounds and for
costs.
I permitted the Crown to delete, from the fifth
and sixth lines above, the words
against Her Majesty the Queen in the Federal Court of
Canada.
The Crown filed two affidavits. The substance
of those documents is that the plaintiff, under
various names, has commenced in this Court,
beginning in 1971, over 90 actions. Seventy-six
have been, at various times and pursuant to Rule
419, struck out.
The plaintiff has been barred from suing, except
with leave, in the Supreme Courts of Alberta and
British Columbia.
The plaintiff did not appear when this motion
was heard.
At the conclusion of argument on behalf of the
Crown I said the motion would be dismissed on
two grounds, and written reasons would follow.
These are the reasons.
The first ground for dismissal is procedural.
The Crown seeks the order, barring the plaintiff
from instituting any legal proceedings in this
Court (except with leave), by way of ordinary
notice of motion in this one action. The motion is
pursuant to Rule 319(1).
Rule 319. (1) Where any application is authorized to be made
to the Court, a judge or a prothonotary, it shall be made by
motion.
The Crown justifies proceeding by way of applica
tion in this action, as distinguished from a separate
originating application or an action for a declara
tion, because of Federal Court Rule 5 and section
84 of the British Columbia Supreme Court Act.' I
reproduce those two provisions:
Rule 5. In any proceeding in the Court where any matter
arises not otherwise provided for by any provision in any Act of
the Parliament of Canada or by any general rule or order of the
Court (except this rule), the practice and procedure shall be
determined by the Court (either on a preliminary motion for
directions, or after the event if no such motion has been made)
for the particular matter by analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar pro
ceedings in the courts of that province to which the subject
matter of the proceedings most particularly relates,
whichever is, in the opinion of the Court, most appropriate in
the circumstances.
84. If, on an application made by any person under this
section, the Court is satisfied that any person has habitually
and persistently and without any reasonable ground instituted
vexatious legal proceedings, whether in the Supreme Court or
in any other Court, and whether against the same person or
against different persons, the Court may, after hearing that
person or giving him an opportunity of being heard, order that
no legal proceedings shall, without leave of the Court, be
instituted by him in any Court.
Counsel says the practice and procedure in Brit-
ish Columbia, in a matter of this kind, is to make
an "application"; in this Court applications can be
made by notice of motion in an action; the Crown's
procedure here is, therefore, authorized.
I cannot agree. That is too giant a step, even for
the gap rule.
The Crown seeks here to take from the plaintiff
an untrammeled right accorded to all: the right to
bring suit, without permission, in this Court. It
seems to me the proceeding to establish such a
ruling must emerge from a lis, directed to that
issue only, between the Crown and the plaintiff.
The motion before me, in this particular action,
has no relevance to the issue between the parties
(assuming the plaintiff to have a reasonable cause
of action).
' R.S.B.C. 1960, c. 374, as amended by S.B.C. 1967, c. 53, s.
3 and S.B.C. 1976, c. 33, s. 148.
If this Court has the power to make the order
sought, then a proceeding by way of originating
application, or an action, must be brought by the
Crown against this plaintiff. The parties would
then be entitled to all the pre-trial procedures the
Rules of Court contemplate. If a judgment were
obtained, it would operate in rem against the
plaintiff in all present and attempted future litiga
tion. An order, or declaration, in the present law
suit could not, in my opinion, have that legal
effect.
Further, I do not see how an order made in the
present action could be enforced against the plain
tiff, in other present actions, or in future attempt
ed actions.
The second ground for dismissal is that this
Court does not have, in my view, the power to
make the order requested.
Counsel again goes to the gap rule and section
84 of the Supreme Court Act of British Columbia.
I do not subscribe to the submission that section 84
is "practice and procedure in force for similar
proceedings" in B.C. The section is, to my mind,
not a matter of practice and procedure. It is a
matter of substantive law. The cases cited by
counsel 2 uphold the inherent right and jurisdiction
of a court to stay or dismiss proceedings which are
an abuse of the process, quite apart from specific
rules such as Rule 419 in this Court. But none of
those cases holds that a court has the right, in the
absence of empowering authority, to refuse a
person, except with leave, access, in the first place,
to the court processes.
The power of this Court to grant the order
sought, must, in my opinion, be found in statute.
Only the legislators have the right to make sub
stantive law authorizing a court to forbid a would-
be litigant from commencing action. The Federal
2 Attorney-General v. Vernazza [1960] A.C. 965 (H.L.).
Royal Typewriter Agency v. Perry [1928] 3 W.W.R. 173.
Marconi Wireless Telegraph Company of Canada, Limited v.
Canadian Car and Foundry Company, Limited (1918) 18 Ex.
C.R. 241. Lord Kinnaird v. Field [1905] 2 Ch. 306. Grepe v.
Loam (1888) 37 Ch.D. 168.
Court Act does not have any provision akin to
section 84 of the British Columbia Act. 3
I add this. If I had found this Court to have the
power to grant the remedy asked for, I would, on
the material before me, have made the barring
order.
The Crown is, however, entitled to the alterna
tive order requested. The plaintiff's action against
the defendant Her Majesty the Queen, is, there
fore, pursuant to Rule 419, dismissed, with costs.
3 For similar staturory powers, see:
In Alberta, The Judicature Act, R.S.A. 1970, c. 193, s. 22.1
(as enacted by S.A. 1975, c. 43, s. 3(5)).
In England, the Supreme Court of Judicature (Consolida-
tion) Act, 1925, 15 & 16 Geo. 5, s. 51.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.