Digests

Johnson v. Canada (Royal Canadian Mounted Police)

T-2185-01

2002 FCT 917, Dawson J.

28/8/02

15 pp.

Defendants moving for order extending time for filing amended statement of defence, summary judgment dismissing claim or order striking pleading for failure to disclose reasonable cause of action; plaintiff moving for default judgment--Plaintiff, self-represented, alleging RCMP offered her protection under Witness Protection Program if provided information--Alleging breach of fiduciary duty, representations--Seeking damages, mandamus--Naming as defendants Royal Canadian Mounted Police, Assistant Commissioner, RCMP, "K" Division, John Doe--Statement of defence denying existence of agreement, duty, admitting existence of letter of understanding entered into with plaintiff's husband to provide protective services to plaintiff, husband effective July 13, 1983, but terminating in 1984--Subsequently plaintiff filing amended statement of claim, although neither leave nor consent given--Naming as defendants "Her Majesty the Queen", Royal Canadian Mounted Police, Assistant Commissioner W. Sweeny--(1) Federal Court Rules, 1998, r. 75 permitting Court on motion to allow party to amend document--Although leave not given for amendment of statement of claim, r. 56 providing non-compliance with any of rules not rendering step in proceeding void--Instead treated as irregularity to be addressed under rr. 58 to 60--No motion to attack irregularity brought, and Court ordering defence be filed to amended statement of claim--Amended pleading not void--(2) Statement of defence filed to claim--No authority or rule providing failure to file defence to amended version of claim entitling defendant to default judgment--Default judgment discretionary--In circumstances, where plaintiff failed to give 14 days' clear notice of motion for default as required by Crown Liability and Proceedings Act, s. 25, motion for default dismissed--(3) No valid cause of action pleaded against Assistant Commissioner, who is not "W. Sweeny"--No entity in law known as "`Her Majesty the Queen' Royal Canadian Mounted Police (R.C.M.P.)"--In proceedings before Federal Court, Crown may be named as "`Her Majesty the Queen in Right of Canada"--Amended statement of claim struck without leave to amend against all of defendants except Her Majesty the Queen as not even scintilla of cause of action against them--Balance of amended statement of claim struck with leave to apply to Court for order amending claim against Her Majesty the Queen in Right of Canada, on ground disclosing no cause of action and may prejudice, delay fair trial of action--To extent defendants, Court left to speculate as to plaintiff's claim, fair trial would be prejudiced, delayed--Also impossible for Court to properly control process--Had claim not been struck, requested extension would have been granted as reasonable explanation provided for failure to file document on timely basis--Motion for summary judgment premature as may be genuine issue as to whether existing agreement with continuing breaches--Also, appears plaintiff's request to cross-examine witness ignored, and no proof of service of request to admit upon which defendants relying--Federal Court Rules, 1998, SOR/98-106, rr. 56, 58, 59, 60, 75--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 25 (as am. by S.C. 1990, c. 8, s. 31).