TURMEL: Crown wants Strike Motion Timetable to August!! JCT: It's almost as if the Crown doesn't remember how Rules for motions work. Notice in Michel Ethier's Appeal Motion, he filed, Crown had 10 days to respond and we have 4 days to Reply (by Monday). But Case Management Judge Prothonotary Mandy Aylen has asked he and I to come up with a timetable for the next steps in their Strike Motion. Notice how he could answer that it's in the Rules but look at what he does differently because he's just done it right and now gets to do it wrong. Department of Justice Canada Ontario Regional Office National Litigation Sector Via E-mail to johnturmel@yahoo.com Our File Number: LEX-500040961 April 30, 2021 Dear Mr. Turmel: Re: TURMEL, John v HMQ (Court File No.: T-130-21) CR: Further to the Court's April 26, 2021, Direction in the above-noted matter, I am writing to propose the following deadlines for Canada's motion to strike and for security for costs under Rule 369: - Service and filing of Canada's Notice of Motion and Affidavits: May 25 (+20 days from May 5) - Service and filing of the Plaintiff's Affidavits: June 14 (+20 days) - Cross-examinations on affidavits: June 24 (+10 days) - Service and filing of Canada's Motion Record: July 9 (+15 days) - Service and filing of the Plaintiff's Responding Record: July 26 (+15 days) - Service and filing of Canada's Reply Submissions: August 2 (+7 days) Please let me know if this timetable is acceptable to you, and if not, your proposed changes. If we are able to come to an agreement on next steps, I can write to the Court advising of our agreed upon timeline. Sincerely, Benjamin Wong Counsel JCT: Sure looks a lot more complicated that what's in the Rules, right? - Service and filing of Canada's Notice of Motion and Affidavits: May 25 (+20 days from May 5) JCT: They've had 3 months but need another 20 days. I'm going to offer them 3 days. - Service and filing of the Plaintiff's Affidavits: June 14 (+20 days) - Cross-examinations on affidavits: June 24 (+10 days) JCT: Affidavits and examinations don't happen until after and if their Motion to Strike is dismissed. Justice Henry Brown explained how a motion to strike works in the Crown's medpot motion to strike at http://johnturmel.com/delcn2j.pdf [14] In Lee v Canada, 2018 FC 504, at para 7, Heneghan J stated the following in respect of the test for motions to strike: The test upon a motion to strike a pleading is set out in the decision in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, that is whether it is plain and obvious that the pleading discloses no reasonable cause of action According to the decision in Berube v. Canada (2009), 348 F.T.R. at paragraph 24, a claim must show the following three elements in order to disclose a reasonable cause of action i. Allege facts that are capable of giving rise to a cause of action ii. Indicate the nature of the action which is to be founded on those facts, and iii. Indicate the relief sought, which must be of a type that the action could produce and that the court has jurisdiction to grant [15] The moving party bears the onus of meeting the test set out by the Supreme Court of Canada in Hunt v Carey Canada Inc, [1990] 2 SCR 959 [Hunt]: Al Omani v Canada, 2017 FC 786 per Roy J. at paras 12-16: [12] The test to strike a claim under Rule 221 sets a high bar. First, it is assumed that the facts stated in the statement of claim can be proven. The Court must be satisfied that it is plain and obvious that the pleading discloses no reasonable cause of action assuming the facts pleaded are true: R v Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45 at para 17; Hunt v Carey Canada Inc, [1990] 2 SCR 959 [Hunt] at p 980. The Defendant bears the onus of meeting this test: Sivak v Canada, 2012 FC 272, 406 FTR 115 [Sivak] at para 25. [13] In Hunt, the Supreme Court sided with the articulation of the rule in England to the effect that "if there is a chance that the plaintiff may succeed, then the plaintiff should not be "driven from the judgment seat"" (p. 980). A high bar indeed to succeed on a motion to strike. Some chance of success will suffice or, as Justice Estey said in Att. Gen. of Can. v Inuit Tapirisat et al, [1980] 2 SCR 735, "(o)n a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt"" (p.740). [14] To show a plaintiff has a reasonable cause of action, the statement of claim must plead material facts satisfying every element of the alleged causes of action: Mancuso v Canada (National Health and Welfare), 2015 FCA 227, 476 NR 219 [Mancuso] at para 19; Benaissa v Canada (Attorney General), 2005 FC 1220 [Benaissa] at para 15. The plaintiff needs to explain the "who, when, where, how and what" giving rise to the Defendant's liability (Mancuso, para 19, Baird v Canada, 2006 FC 205 at paras 9-11, affirmed in 2007 FCA 48). [15] Thus, there appears to be a balance. On one hand, a chance of success is enough for the matter to proceed. On the other, the material facts must be pleaded in sufficient detail such that the cause of action may exist. The purpose of pleadings is to give notice to the opposing party and define the issues in such a way that it can understand how the facts support the various causes of action. As the Court of Appeal put it in Mancuso, "(i)t is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought" (para 16). The Plaintiffs note that pleadings can still proceed despite being "far from models of legal clarity" (Manuge v Canada, 2010 SCC 67, [2010] 3 SCR 672 at para 23). But it remains that adequate material facts must be pleaded. Parties cannot make broad allegations in their statement of claim in the hope of later going on a "fishing expedition" to discover the facts: Kastner v Painblanc (1994), 176 NR 68, 51 ACWS (3d) 428 (FCA) at p.2. [16] On motions to strike, no evidence outside the pleadings may be considered (except in limited instances that do not apply here). This is expressly enacted by Rule 221(2) and confirmed by the authorities: Pelletier v Canada, 2016 FC 1356 [Pelletier] per Leblanc J. at para 6: [6] As is well-settled too, no evidence outside the pleadings may be considered on such motions and although allegations that are capable of being proven must be taken as true, the same does not apply to pleadings which are based on assumptions and speculation and to those that are incapable of proof (Imperial Tobacco, at para 22; Operation Dismantle v The Queen, [1985] 1 SCR 441, at p. 455 [Operation Dismantle]; AstraZeneca Canada Inc. v Novopharm Ltd., 2009 FC 1209 at paras 10-12). JCT: What a great judge. And here we have the Crown asking for more affidavit evidence and examinations when "no evidence outside the pleadings may be considered on such motions." They have to show we have no hope presuming the allegations are taken as true. CR: - Service and filing of Canada's Motion Record: July 9 (+15 days) - Service and filing of the Plaintiff's Responding Record: July 26 (+15 days) JCT: Notice that he says 15 days but the Rules say 10. CR: - Service and filing of Canada's Reply Submissions: August 2 (+7 days) JCT: Notice that he says 7 days but the Rules say 4. So I'm going to tell him to submit to the Court that I want their motion in 3 days and to follow the Rules for the 10- day response and 4-day Reply. And see what she says. Will it be decided in May or in August with people dying during the delay?