ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-17-13
DATE: 2014-06-13
B E T W E E N:
TERESA HAZEL
Self-represented
Plaintiff
- and -
RAINY RIVER FIRST NATIONS
Derek E. Zulianello, for the Defendant
Defendant
**HEARD:**11 March, 2014,
at Thunder Bay, Ontario
Mr. Justice J. deP. Wright
Decision On Motion
[1] This is a motion by the defendant to strike the plaintiff’s pleadings under rule 21 and rule 25.
[2] This is not a motion for summary judgment under rule 20.
Plaintiff's claim:
[3] The plaintiff claims damages for harm to her reputation caused by a continuing defamation resulting from the issue of a Band Council Resolution by the defendant on the 24 July 2013 which purported to deny her the right to be on the land of the defendant.
[4] The plaintiff argues that the natural inference or innuendo of the Band Council Resolution is that she has been guilty of misconduct and that because her work is normally with native bands the existence of this BCR and the uncertainty of its extent geographically results in financial loss to her.
[5] She asks that the defendant retract the Band Council Resolution and issue a public apology to her. She asks that she be given damages until this is done.
[6] The plaintiff also claims clarification of the land ostensibly covered by the Band Council Resolution dated 24 July 2013 which deemed the plaintiff a trespasser if she entered Rainy River First Nation's territory.
Defendants claim:
[7] The defendant moves to strike out the statement of claim or portions of it, specifically: paragraphs 1 (second), two, four, five (second sentence), 10 and 12 [reference to Dean Wilson]:
under Rule 21 on the grounds that the statement of claim is contrary to the doctrine of res judicata, is an abuse of process by re-litigation and is an impermissible collateral attack,
under Rule 25(6) on the grounds that the rules of pleading have not been followed, and
under Rule 26(11) on the grounds that these pleadings may prejudice or delay the fair trial of the action, are scandalous, frivolous or vexatious, or an abuse of the process of the court.
FACTS
[8] On 23 April 2012 the plaintiff was interviewed for the position of Communications Director of the defendant. Subsequently an agreement was reached between the parties and the plaintiff apparently fulfilled the requirements of the position to the satisfaction of the defendants up to the point of her termination.
[9] On 28 February 2013 the plaintiff was experiencing stress as a result of a matrimonial separation and called a representative of the defendant to ask for some time off.
[10] On 7 March 2013 she sent an e-mail to two representatives of the defendant repeating her request for time off. Not having heard anything against the request she accompanied relatives on a spontaneous vacation.
[11] On her return, on 21 March 2013 she called the representatives of the defendant but got no satisfaction from them. Later that day a brusque e-mail terminating her employment was sent to her. She read it on 25 March.
[12] On 28 March 2013 the plaintiff initiated an action in the Small Claims Court for damages for wrongful dismissal. In that claim she sought aggravated damages for the bad faith with which the defendants had acted.
[13] On 24 July 2013 the defendants passed a Band Council Resolution declaring the plaintiff to be a trespasser on the Rainy River First Nation Territory should she enter that territory.
[14] The Small Claims Court action was heard Sept. 25, October 9 and Oct 18.
[15] On 24 October 2013 the small Claims Court judge released his reasons for judgment. Damages for wrongful dismissal were awarded in the amount of $15,924. The trial judge had found that she was entitled to additional notice since the defendant had acted in bad faith. The judge specified six acts of bad faith, one of which was passing the Band Council Resolution denying her access four months after termination.
ISSUES
Rule 21:
[16] Should the plaintiff’s claim for a retraction of the BCR be struck out under R 21.01 (3) (a) on the grounds that the jurisdiction to strike down the BCR lies with the Federal Court?
[17] Should the plaintiff’s statement of claim be struck under R. 21.01(3)(d) as being frivolous, vexatious or otherwise an abuse of the process of the court?
[18] The defendant argues that the plaintiff has already been compensated for the issuance of the Band Council Resolution.
[19] The defendant argues that the law discourages fragmented litigation, that it bars not only the same issue being tried again but also bars claims that properly belonged to the subject matter of the previous litigation. (C.P.U. Options Inc v. Milton (2006) 2006 1670 (ON SC), 79 O.R. (3d) 365 ¶16)
[20] The defence notes some of the numerous mechanisms cited by the courts to avoid multiplicity of proceedings, for example:
• Issue estoppel which bars an issue which has actually been decided in the first proceeding.(p.11)
• issue estoppel under the rule in Henderson, which bars an issue which could have been brought in the first proceeding (p.11)
• Cause of action estoppel, the true res judicata, which bars a cause that has actually been decided in the first proceeding". (p.11)
• Cause of action estoppel under the rule in Henderson which bars a cause which could have been brought in the first proceeding. (p.11)
• Abuse of process by re-litigation which bars a second a proceeding when the integrity of the judicial decision-making process in the first proceeding will be undermined. (Lange: The Doctrine Of Res Judicata in Canada (3rd ed.) p. 11)
ANALYSIS:
[21] R. 21.01 (3)(a)
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(a) the court has no jurisdiction over the subject matter of the action;
[22] Even if the Federal Court has exclusive jurisdiction to strike down an action of an Indian Band (which I do not rule upon) the plaintiff in this case does not ask the court to strike down the BCR. The plaintiff asks the Council to retract the Resolution and apologize. The plaintiff asks the Court to order the Band to pay damages for failure to do so. (Claim ¶16)
[23] R. 21.01(3)(d)
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
[24] The Small Claims Court action was one in contract. This proceeding is one in tort. The tort action was not determined in the first action. Nor could it have been brought in the first action because it had not yet arisen as a cause of action when the Small Claims Court action was commenced. In addition to this, the tort action is a continuing cause of action so long as the offending document, the Band Council Resolution, is in effect. To the extent that damages may have been calculated after considering publication of that BCR as an instance of a breach of faith, the damages considered were the damages prior to 24 October.
[25] This is not a case where a litigant is attempting to establish a new and fresh cause of action by advancing a new legal theory in support of a claim based upon essentially the same facts.(C.P.U. Options v. Milton (2006) 2006 1670 (ON SC), 79 O.R. (3d) 365 ¶17)
[26] The action should not be struck under R 21.
[27] R25.06:
25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
(9) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where damages are claimed,
(a) the amount claimed for each claimant in respect of each claim shall be stated; and
(b) the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before trial
Conclusion
[28] The defendant asks that the documents appended to the claim be removed. This should be done. They are basically evidence, not pleadings.
[29] In addition, the following should be struck out: (Dean Wilson is not a party to this litigation):
• Para. 2; reference to attachment 2 in ¶ 3; ¶ 4; “Dean Wilson requested the banishment” in ¶ 5; “Dean Wilson and” in ¶ 9; reference to Dean Wilson in ¶12;
[30] The plaintiff shall have 30 days within which to deliver a proper Statement of Claim.
“Original Signed By”
The Hon. Mr. Justice J. deP. Wright
Released: June 13, 2014
COURT FILE NO.: CV-17-13
DATE: 2014-06-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TERESA HAZEL
Plaintiff
- and –
RAINY RIVER FIRST NATION
Defendant
DECISION ON MOTION
J.de.P. Wright, J.
Released: June 13, 2014
/nf