Ayangma v. Prince Edward Island, (2005) 249 Nfld. & P.E.I.R. 34 (PEITD)

• Judge: Taylor, J.
• Case Date: January 11, 2005
• Jurisdiction: Prince Edward Island
• Citations: (2005), 249 Nfld. & P.E.I.R. 34 (PEITD);2005 PESCTD 25

Ayangma v. P.E.I. (2005), 249 Nfld. & P.E.I.R. 34 (PEITD);

    743 A.P.R. 34

MLB headnote and full text

Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. AP.016

Noël Ayangma (plaintiff) v. The Government of Prince Edward Island and the Attorney General of Prince Edward Island (defendants)

(S1-GS-20652; 2005 PESCTD 25)

Indexed As: Ayangma v. Prince Edward Island

Prince Edward Island Supreme Court

Trial Division

Taylor, J.

April 14, 2005.

Summary:

The plaintiff sued the Prince Edward Island government and the Attorney General of Prince Edward Island, seeking damages for defamation and a declaration that the defendants infringed the plaintiff's s. 7 and s. 15 Charter rights, together with damages arising therefrom; alleging conspiracy, negligence, interference with economic relations and abuse or misfeasance of public office; and requesting an apology. The defendants moved to strike out all or part of the statement of claim and to obtain summary judgment or for security for costs. The plaintiff moved for partial summary judgment and to strike out part of the statement of defence.

The Prince Edward Island Supreme Court, Trial Division, struck the statement of claim on two independent grounds: (1) violations of the rules of pleadings and (2) disclosing no reasonable cause of action (Civil Procedure Rule 21.01(1)(b)). The first ground carried with it the right to file a new statement of claim. However, that right was subject and secondary to the ruling under rule 21.01(1)(b) and to the plaintiff paying costs.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - A plaintiff sued the Prince Edward Island government, claiming damages for, inter alia, malice - The malice related to applications to have the plaintiff declared a vexatious litigant, numerous motions for security for costs and various set-offs and garnishees over costs - The Prince Edward Island Supreme Court, Trial Division, dismissed the claim as disclosing no cause of action - There was nothing wrong with the government seeking what the plaintiff asserted was excessive security for costs - Ultimately, the courts had decided what security was appropriate and those decisions were res judicata - The plaintiff had not suffered any loss as a result of various set-offs and garnishment - See paragraphs 88 to 93.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - A plaintiff sued the Prince Edward Island government, claiming damages for, inter alia, interference with economic relations - The plaintiff asserted that the government (1) brought two applications to have him declared a vexatious litigant for the predominant purpose of injuring him; (2) garnished his bank account; (3) helped bodies corporate to set off certificates for costs issued in favour of the plaintiff against the government and other bodies corporate; (4) submitted unsolicited documentation in a human rights complaint in a mischievous manner; (5) sought extremely high amounts for security for costs; and (6) refused to come to an agreement on costs when the plaintiff needed money to help with the costs of another action - The Prince Edward Island Supreme Court, Trial Division, stated that the first, second, third, fifth and sixth grounds were ruled on in prior actions and were res judicata - As to the fourth ground, the plaintiff had already brought unsuccessful court proceedings in that matter - There was nothing in the pleading to suggest unlawful means - The plaintiff had confused "unsuccessful" with "unlawful" and "financial consequences" with "economic relations" - The facts that he asserted about garnishees, set-offs, costs and security were among the possible financial consequences of litigation - See paragraphs 100 to 103.

Libel and Slander - Topic 2861

Defences - Justification or truth - General - A plaintiff sued the Prince Edward Island government, claiming damages for, inter alia, defamation respecting comments made by the Director of Legal Services during an interview with CBC - The director stated that "When you get somebody who over a four-year period is going to court 46 times, I would suggest to you that no one is wronged that much". The plaintiff asserted that, inter alia, the comment was calculated to harm him and brand him forever with the stigma of being a litigious and vexatious person - The plaintiff admitted that he had been unsuccessful in many of the 46 proceedings - The Prince Edward Island Supreme Court, Trial Division, held that no reasonable cause of action was disclosed - Assuming that the Director's words were a pointed comment about the plaintiff, it was justified because it was true - It was also a fair comment, i.e., a statement of opinion based on true facts on a matter of public interest - See paragraphs 79 to 84.

Libel and Slander - Topic 2928

Defences - Absolute privilege - Statements made in the course of judicial, quasi-judicial or legal proceedings - A plaintiff sued the Prince Edward Island government, claiming damages for, inter alia, defamation - The defamation related to the government's s. 61 application to have the plaintiff declared a vexatious litigant - The Prince Edward Island Supreme Court, Trial Division, held that no reasonable cause of action was disclosed - To the extent that the claim related to pleadings filed in court or statements made in court hearings, it was not sustainable - Also, there could be no claims against the government concerning reports in the media - The government had no control of non-parties referring to its s. 61 proceedings as precedents were subject to absolute privilege - See paragraphs 68 to 78.

Libel and Slander - Topic 3114

Defences - Fair comment - What constitutes fair comment - [See Libel and Slander - Topic 2861 ].

Practice - Topic 1002

Parties - Parties unrepresented by counsel - Duty of court - The Prince Edward Island Supreme Court, Trial Division, ruled that an unrepresented plaintiff's statement of claim was frivolous, vexatious, scandalous, an abuse of the court's process, embarrassing, would prejudice and delay the fair trial of the action and was in general a wholesale violation of the rules of pleading - The court considered striking discrete portions and directing the plaintiff to amend the remainder, but the entire claim required redrafting and such a course of action would put the court in the position of redrafting the claim - Redrafting would involve removing one defendant, deleting all the verbatim repetition, all the near verbatim and paraphrased repetition, all the unnecessary evidence, all the argument, opinion and rhetoric, all scandalous allegations and 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 - The amount of damage would have to be specified, the defendant properly identified and particulars of malice provided - This was not the court's job - The extra consideration which was to be given to self-represented litigants did not extend so far as to forgive the plaintiff's repeated and wholesale disregard of the rules of pleading and override the defendants' rights - See paragraphs 50 to 62.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The Prince Edward Island Supreme Court, Trial Division, stated that there was a different standard for motions under Civil Procedure Rule 21.01(1)(b) (no reasonable cause of action) than for motions under rules 21.01(3)(d) and 25.11 (frivolous, vexatious, abuse of process and prejudice or delay of fair trial) because the consequences were different - The difference was the ability to start again - When a pleading was struck out in its entirety for violating rules of pleading, the courts commonly gave the plaintiff the right to start over, subject to amending, paying costs and other terms - In a s. 21.01(1)(b) motion, the action was over - See paragraph 38.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - [See Practice - Topic 1002 and Practice - Topic 2230 ].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The Prince Edward Island Supreme Court, Trial Division, stated that: "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; 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." - See paragraph 49.

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - [See Libel and Slander - Topic 2928 ].

Practice - Topic 2234

Pleadings - Striking out pleadings - Grounds - Unnecessary, irrelevant, immaterial or redundant - [See Practice - Topic 1002 ].

Practice - Topic 2238

Pleadings - Striking out pleadings - Grounds - Prejudice, embarrass or delay fair trial - [See Practice - Topic 1002 and Practice - Topic 2230 ].

Practice - Topic 2238

Pleadings - Striking out pleadings - Grounds - Prejudice, embarrass or delay fair trial - Civil Procedure Rule 25.11(a) permitted a court to strike out or expunge all or part of pleading on the ground that "it may prejudice or delay the fair trial of the action" - The Prince Edward Island Supreme Court, Trial Division, stated that "may prejudice or delay the fair trial of the action" was not a term of art - Rather, it described a fact based assessment of the pleading or other document - If the court were to strike all of a statement of claim on this basis, there would be no trial unless the statement of claim were re-drafted and re-filed - Accordingly, the clause was not to be employed to strike all of the statement of claim unless the claim was irretrievably bad, it could not be remedied through amendments and leave was granted to re-file an amended claim - See paragraphs 26 and 27.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Practice - Topic 1002 and second Practice - Topic 2238 ].

Torts - Topic 5021

Interference with economic relations - Elements of liability - General - [See second Estoppel - Topic 386 ].

Cases Noticed:

MacCallum v. Charlottetown (City) (1995), 127 Nfld. & P.E.I.R. 300; 396 A.P.R. 300 (P.E.I.C.A.), refd to. [para. 14].

Lenentine v. Robichaud et al. (1996), 140 Nfld. & P.E.I.R. 270; 438 A.P.R. 270 (P.E.I.C.A.), refd to. [para. 14].

Reichel v. Magrath (1889), 14 App. Cas. 665 (H.L.), refd to. [para. 20].

R. v. Mills (1983), 3 C.R.R. 63 (Ont. H.C.), refd to. [para. 20].

R. v. Osborn, [1969] 1 O.R. 152 (C.A.), refd to. [para. 20].

Haggard v. Pelicier Frères, [1892] A.C. 61 (P.C.), refd to. [para. 20].

Margem Chartering Co. v. Cosena S.R.L. et al., [1997] 2 F.C. 1001; 127 F.T.R. 161 (T.D.), refd to. [para. 22].

ATL Industries Inc. v. Han Eol Industry Co. (1995), 36 C.P.C.(3d) 288 (Ont. Gen. Div.), refd to. [para. 22].

House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 (C.A.), refd to. [para. 22].

McIlkenny v. Chief Constable of West Midlands Police, [1982] A.C. 529 (H.L.), refd to. [para. 22].

Hunter v. Chief Constable of West Midlands Police - see McIlkenny v. Chief Constable of West Midlands Police.

Foy v. Foy (No. 2) (1979), 26 O.R.(2d) 220 (C.A.), refd to. [para. 22].

George Estate v. Harris et al., [2000] O.T.C. Uned. 404 (Sup. Ct.), refd to. [para. 22].

Winkler v. Winkler (1990), 70 Man.R.(2d) 47 (Q.B. Fam. Div.), refd to. [para. 24].

Canada Metal Co. et al. v. Heap et al. (1975), 7 O.R.(2d) 185 (C.A.), refd to. [para. 24].

London (Mayor) v. Horner (1914), 111 L.T. 512 (C.A.), refd to. [para. 24].

Keddie v. Dumas Hotels Ltd. (Cariboo Trails Hotel) (1985), 62 B.C.L.R. 145 (C.A.), refd to. [para. 24].

Bush v. Saskatchewan (Minister of Environment and Resource Management), [1996] S.J. No. 534 (Q.B.), refd to. [para. 24].

Meyers and Lee v. Freeholders Oil Co. and Canada Permanent Trust Co. (1956), 19 W.W.R.(N.S.) 546 (Sask. C.A.), refd to. [para. 24].

Rogers v. Clark (1900), 13 Man. R. 189 (K.B.), refd to. [para. 24].

Gittings v. Caneco Audio-Publishers Inc., [1988] B.C.J. No. 531 (C.A.), refd to. [para. 24].

Amendt v. Canada Life Assurance Co. et al., [1999] Sask.R. Uned. 141 (Q.B.), refd to. [para. 24].

Orme v. Law Society of Upper Canada et al., [2003] O.T.C. Uned. 207 (Sup. Ct.), refd to. [para. 24].

General Foods Ltd. v. Struthers Scientific and International Corp. (1971), 4 C.P.R.(2d) 97 (S.C.C.), refd to. [para. 25].

Brodie v. Thomson Kernaghan & Co. et al., [2002] O.T.C. Uned. 362 (Sup. Ct.), refd to. [para. 26].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321; [1990] 6 W.W.R. 385; 4 C.C.L.T.(2d) 1; 43 C.P.C.(2d) 105; 49 B.C.L.R.(2d) 273, refd to. [para. 28].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481; 13 C.R.R. 287; 12 Admin. L.R. 16, refd to. [para. 28].

Paterson and Hidson v. Livingstone, [1931] 1 D.L.R. 386 (S.C.C.), reving. [1929] 1 D.L.R. 608 (Alta. C.A.), refd to. [para. 29].

McCarten et al. v. Prince Edward Island (1990), 83 Nfld. & P.E.I.R. 159; 260 A.P.R. 159 (P.E.I.C.A.), affing. (1989), 79 Nfld. & P.E.I.R. 271; 246 A.P.R. 271 (P.E.I.T.D.), refd to. [para. 35].

Ayangma v. Prince Edward Island et al. (1998), 168 Nfld. & P.E.I.R. 1; 517 A.P.R. 1 (P.E.I.T.D.), refd to. [para. 36].

Kuhn v. American Credit Indemnity Co., [1992] B.C.J. No. 953 (S.C. Master), refd to. [para. 39].

Lo v. Russell et al., [1999] O.T.C. Uned. 450 (Gen. Div.), refd to. [para. 39].

Prescott v. O'Brien et al., [1999] O.T.C. Uned. 199 (Gen. Div.), refd to. [para. 39].

Whitford et al. v. Fullowka et al., [1996] N.W.T.J. No. 95 (C.A.), leave to appeal refused (1997), 222 N.R. 320 (S.C.C.), refd to. [para. 39].

Tweel v. Charlottetown Area Development Corp. et al. (1980), 32 Nfld. & P.E.I.R. 122; 91 A.P.R. 122 (P.E.I.S.C.), refd to. [para. 41].

Clow v. MacNevin and Smith (No. 1) (1987), 60 Nfld. & P.E.I.R. 358; 181 A.P.R. 358 (P.E.I.S.C.), refd to. [para. 43].

Morin v. Prince Edward Island et al. (1989), 78 Nfld. & P.E.I.R. 88; 244 A.P.R. 88 (P.E.I.T.D.), refd to. [para. 44].

Pitre et al. v. MacNutt et al. (1994), 123 Nfld. & P.E.I.R. 18; 382 A.P.R. 18 (P.E.I.T.D.), refd to. [para. 45].

Fobes v. University of Prince Edward Island, [1997] Nfld. & P.E.I.R. Uned. 41 (P.E.I.T.D.), refd to. [para. 46].

Kay Aviation b.v. v. Rofe (2001), 199 Nfld. & P.E.I.R. 339; 600 A.P.R. 339 (P.E.I.C.A.), refd to. [para. 47].

Pitre et al. v. Law Society of Prince Edward Island et al. (2000), 187 Nfld. & P.E.I.R. 44; 566 A.P.R. 44 (P.E.I.C.A.), refd to. [para. 56].

Ayangma v. Prince Edward Island et al. (2000), 187 Nfld. & P.E.I.R. 150; 566 A.P.R. 150 (P.E.I.C.A.), refd to. [para. 56].

Baziuk v. BDO Dunwoody Ward Mallette et al. (1997), 34 O.T.C. 53; 13 C.P.C.(4th) 156 (Gen. Div.), refd to. [para. 56].

Leadbeater v. Ontario et al., [2001] O.T.C. 661; 16 C.P.C.(5th) 119 (Sup. Ct.), refd to. [para. 63].

Carom et al. v. Bre-X Minerals Ltd. et al. (1998), 62 O.T.C. 192; 20 C.P.C.(4th) 163 (Gen. Div.), refd to. [para. 63].

Bank of Montreal v. Charlottetown (City) (2004), 248 Nfld. & P.E.I.R. 175; 741 A.P.R. 175 (P.E.I.T.D.), refd to. [para. 64].

Gallant v. Workers' Compensation Board (P.E.I.) et al. (2002), 218 Nfld. & P.E.I.R. 297; 653 A.P.R. 297 (P.E.I.T.D.), refd to. [para. 64].

Oliver v. Severance et al. (2005), 245 Nfld. & P.E.I.R. 332; 730 A.P.R. 332 (P.E.I.T.D.), refd to. [para. 64].

Dale v. The Guardian et al. (1999), 175 Nfld. & P.E.I.R. 18; 537 A.P.R. 18 (P.E.I.T.D.), refd to. [para. 71].

Fabian v. Margulies (1985), 53 O.R.(2d) 380 (C.A.), refd to. [para. 77].

Hung v. Gardiner et al. (2003), 184 B.C.A.C. 4; 302 W.A.C. 4 (C.A.), refd to. [para. 77].

Dechant v. Stevens et al. (2001), 281 A.R. 1; 248 W.A.C. 1 (C.A.), refd to. [para. 77].

Ayangma v. NAV Canada et al. (2001), 197 Nfld. & P.E.I.R. 83; 591 A.P.R. 83 (P.E.I.C.A.), refd to. [para. 77].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 88].

H.V.K. et al. v. Children's Aid Society of Haldimand-Norfolk et al., [2003] O.T.C. 347 (Sup. Ct.), refd to. [para. 94].

Normart Management Ltd. v. West Hill Redevelopment Co. et al. (1998), 113 O.A.C. 375; 155 D.L.R.(4th) 627 (C.A.), refd to. [para. 94].

Simmonds v. Murphy (1996), 137 Nfld. & P.E.I.R. 332; 428 A.P.R. 332 (P.E.I.T.D.), refd to. [para. 100].

Cavendish Promotions Inc. v. Tourism Industry Association (P.E.I.) et al., [1998] Nfld. & P.E.I.R. Uned. 35 (P.E.I.T.D.), refd to. [para. 100].

Cheticamp Fisheries Co-operative Ltd. et al. v. Canada (1995), 139 N.S.R.(2d) 224; 397 A.P.R. 224 (C.A.), refd to. [para. 100].

1175777 Ontario Ltd. v. Magna International Inc. et al. (2001), 145 O.A.C. 364 (C.A.), refd to. [para. 100].

Canadian Community Reading Plan Inc. et al. v. Quality Service Programs Inc. et al. (2001), 141 O.A.C. 289 (C.A.), refd to. [para. 100].

Duke et al. v. Puts (2004), 241 Sask.R. 187; 313 W.A.C. 187 (C.A.), refd to. [para. 100].

Gerrard et al. v. Manitoba and Muirhead (1992), 81 Man.R.(2d) 295; 30 W.A.C. 295 (C.A.), refd to. [para. 104].

Stenner v. British Columbia Securities Commission, [1993] B.C.J. No. 2359 (S.C.), refd to. [para. 104].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (9th Ed. 1998), pp. 687, 688 [para. 106].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (2 nd Ed. 2002), p. 875 [para. 104].

Odgers, Blake W., High Court Pleading and Practice (23 rd Ed. 1991), generally [para. 20].

Counsel:

Noël Ayangma, acted on his own behalf;

Paul D. Michael, Q.C., for the defendants.

Taylor, J., of the Prince Edward Island Supreme Court, Trial Division, heard these motions at Charlottetown, Prince Edward Island, on January 11, 2005, and delivered the following decision on April 14, 2005.