TURMEL: CMJ Aylen lets Crown not follow timeline in Rule 369 JCT: Once again, Case Management Judge Prothonotary Mandy Aylen has granted the Crown dispensation from following the Rules. First time, she made it easier on the Crown and harder on us by granting them dispensation from serving the other plaintiffs with documentation in the motion to strike their actions and permission to file just one motion to strike the Lead Plaintiff Action. Then she refused to oblige the Crown to CC: the other plaintiffs a copy of the documentation to strike the Lead Plaintiff's Action while making them submit why their actions should continue if mine is struck despite not easily getting the information. Michel Ethier has appealed being cut out of the loop. Now again, she granted the Crown dispensation from following the timeline in Rule 369 to allow the Crown to waste more time. Date: 20210506 Docket: T-130-21 Ottawa, Ontario, May 6, 2021 PRESENT: Case Management Judge Mandy Aylen BETWEEN: JOHN C. TURMEL Plaintiff and HER MAJESTY THE QUEEN Defendant ORDER CMJ: UPON DIRECTION of the Court issued April 26, 2021 requiring that the parties confer regarding the timetable for next steps in this proceeding and, by no later than May 5, 2021, provide the Court with a jointly-proposed timetable and the availability of the parties for a case management conference (in the event that the Court determines that one is required); JCT: Remember, I pointed out that the timetable is already in the Rule 369 and so she had to give the Crown dispensation to not follow the rule. Why would she ask for a timetable when the timetable is already in Rule 369 unless she wanted something different, longer, to waste time. Keep in mind that every suicide during the stall can be laid on her desk. It's been 4 months since I filed and they managed to waste all that time with the question of cutting the stayed actions out of the info loop. And now more time wasted on a timetable that takes longer than in the Rules. There will be blood on her hands even if she doesn't know yet. CMJ: CONSIDERING the correspondence from the parties advising that they were unable to agree on a proposed timetable and providing the Court with their individually- proposed timetables for the Defendant's motion to strike and for security for costs (in the event that the action is not struck); JCT: What does timetables for the motion to strike in the event the action is not struck mean? If the action is not struck, why do you need a timeline for the motion to strike after it's over? CMJ: CONSIDERING that the Court is satisfied that a case management conference is not required at this time; CONSIDERING that it is within the Court's discretion to depart from the timelines prescribed by Rule 369 for motions in writing where the Court is satisfied that such a departure is warranted. In that regard, the present motion anticipates possible cross-examinations, which are not contemplated in the timelines prescribed by Rule 369; JCT: Sadly, I don't think our Case Management Judge knows how motions to strike work. Here's is how Justice Brown explained it in the Delay Damages motion to strike: From http://johnturmel.com/delcn2j.pdf Date: 20180720 Docket: T-1379-17 Citation: 2018 FC 765 Ottawa, Ontario, July 20, 2018 PRESENT: The Honourable Mr. Justice Brown BETWEEN: ALLAN J. HARRIS Plaintiff and HER MAJESTY THE QUEEN Defendant ORDER AND REASONS I. Introduction [1] This is a motion by the Defendant for an Order striking the Plaintiff's Amended Statement of Claim, i.e., his action, which may also result in the Court striking some 200 similar case-managed actions. These actions are in most cases identical and are copied from a website on the internet. [2] The motion is brought on the basis that it is plain and obvious that the claim fails to disclose a reasonable cause of action. In addition it is alleged that the Plaintiff's action is frivolous and vexatious... Because I am not persuaded the Defendant has established her case, the motion to strike must be dismissed. There is no merit to the argument that the pleadings are frivolous and vexatious... [3] The Defendant's motion is brought pursuant to Rule 221(1)(a) of the Federal Courts Rules, SOR/98-106 [Rules]. Rule 221 of the Rules permits the Court to strike a claim on certain grounds: 221(1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be,.. (c) is scandalous, frivolous or vexatious,.. (2) No evidence shall be heard on a motion for an order under paragraph (1)(a) III. Law on a motion to strike [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). [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: Got that. If no evidence outside the Statement of Claim may be considered, what are we doing with examinations? They have to prove there is no cause of action even if the facts are true. [17] In Pelletier, Leblanc J. also stated that while a Statement of Claim must be read as generously as possible with a view to accommodating any inadequacies due to drafting deficiencies, the claimant must plead the facts upon which he makes his claim and is not entitled to rely on the possibility of new facts turning up as the case progresses: [7] In this regard, while the Statement of Claim must be read as generously as possible with a view to accommodating any inadequacies due to drafting deficiencies (Operation Dismantle, at p. 451), it is incumbent on the claimant to clearly plead the facts at the basis of its claim: [22] [.] It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted". (Imperial Tobacco) (My emphasis) JCT: So nothing other than the Statement of Claim may be used as evidence so she has no right to let the Crown seek more evidence outside of the Statement of Claim presumed to be true. CMJ: CONSIDERING that the Court is satisfied that the timetable proposed by the Defendant is reasonable in the circumstances; THIS COURT ORDERS that the following timetable shall apply to the Defendant's motion to strike and for security for costs (in the alternative): 1. The Defendant shall serve their Notice of Motion and affidavit(s) by no later than May 21, 2021. 2. The Plaintiff shall serve any responding affidavit(s) by no later than June 7, 2021. 3. Cross-examinations, if any, shall be completed by no later than 10 days following the date the Plaintiff serves his responding affidavit(s). JCT: That's June 17th. CMJ: 4. The Defendant shall serve and file their complete motion record by no later than 15 days from the expiration of the time to conduct cross-examinations, or, if the Plaintiff does not intend to serve an affidavit or conduct cross-examinations, 15 days from the date that the Plaintiff so advises the Defendant. JCT: That's July 2nd. CMJ: 5. The Plaintiff shall serve and file his complete motion record within 15 days of service of the Defendant's motion record. JCT: That's July 17th. CMJ: 6. The Defendant shall serve and file their reply motion record within seven days of service of the Plaintiff's responding motion record. "Mandy Aylen" Case Management Judge JCT: That's July 24th. 11 weeks to develop more evidence outside of the pleadings that cannot be used. What another complete waste of time with people dying while she stalls. Over 6 months since I filed to get the information before the court. Lots of dead people in 6 months of stress. Remember, they should have filed their motion to strike right away, except time was wasted staying a first group then a second group and now more months wasted examining evidence that cannot be used. Imagine CMJ Aylen explaining, like Justice Brown, how no evidence outside out pleadings may be considered but she decided to spend time getting some to not be considered anyway. Har har har har har har. This looks like it needs to be appealed by May 16. But if I do, watch the Crown claim they can't file their motion by May 21 in case I win. It's bullshit but they'll take any extra time possible to maximize the number of dead people they can cause. Like I said earlier, I pity the Crown and the Judge for what they're going to have to do.