Judgments

Decision Information

Decision Content

T-1838-87
Jerilynn Prior (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: PRIOR V. CANADA
Trial Division, Addy J.—Vancouver, January 28 and February 2, 1988.
Constitutional law — Charter of Rights — Fundamental freedoms — Plaintiff seeking declaration not required to pay percentage of income tax equal to percentage of federal budget allocated to military expenditures — Plaintiff, Quaker, alleg ing requirement of paying full amount of income tax infringing freedom of conscience and religion — No nexus between taxes paid and government expenditures — Plaintiffs freedom of religion not affected as not participating in military expenditures.
Constitutional law — Charter of Rights — Limitation clause — Quaker objecting to paying portion of income tax used for military purposes — Not entitled to withhold per centage of income tax — Even if freedom of conscience infringed, reasonable limit on freedom, demonstrably justified in free and democratic society.
Constitutional law — Charter of Rights — Equality rights — No discrimination in taxing plaintiff same as other Canadi- an taxpayers, notwithstanding objections to how tax dollars spent.
Constitutional law — Distribution of powers — Quaker withholding percentage of income tax equal to percentage of federal budget spent on defence — Declaration requiring pay ment of moneys to such peaceful purposes as Court directs usurpation of Parliament's powers to tax for defence.
Income tax — Quaker seeking to withhold percentage of income tax equal to percentage of federal budget spent on defence — That amount paid into trust fund for peace move ment — No nexus between taxes payable by plaintiff and federal expenditures — Income tax payments and other receipts paid into Consolidated Revenue Fund — Expendi tures under Financial Administration Act unconnected with source — While taxes enable government programmes, gov ernment decides how money spent.
Judicial review — Equitable remedies — Declarations — Granting declaration percentage of plaintiffs income tax pay able to Peace Tax Fund or for such peaceful purpose as Court directs constituting usurpation of Parliament's right to tax Statement of claim struck as disclosing no cause of action.
This was an application to strike out the statement of claim as disclosing no reasonable cause of action. The plaintiff, a Quaker, objected as a matter of conscience, to the payment of taxes which would be used for military or war purposes. She withheld the percentage of her net federal tax which approxi mately equalled the percentage of the federal budget used for military purposes, and paid this amount to the Peace Tax Fund operated by Conscience Canada Inc. The plaintiff sought a declaration that requiring her to pay the full amount of her income tax would infringe her rights guaranteed by paragraph 2(a) and section 15 of the Charter, and a declaration that she was not required to pay that amount of tax proportional to the federal military expenditures, but could pay it for such peaceful purpose as the Court saw fit. The defendant argued that there was no nexus between the amount of taxes payable and the expenditures made by the Federal Government.
Held, the application should be allowed.
The plaintiff was not entitled to withhold tax moneys. Pursu ant to the Financial Administration Act, all moneys collected by the Federal Government on its own account are paid into and form part of the Consolidated Revenue Fund, which Par liament appropriates to various proposed items of expenditure. There was no connection between the payments of income tax into and the payments out of such Fund. When the state spends money collected as taxes, it spends part of a general public fund, not the citizen's money. While the taxpayer's money enables the government to embark on programmes, the govern ment alone is responsible for the programmes on which money is spent. If every taxpayer who objected to a certain policy (i.e. abortion) was entitled to withhold a percentage of income tax, complete chaos would result and government would break down.
With regard to the application of the Charter, although the Constitution overrides any conflicting legislation, no part of the Constitution can be prevented from operating by any other section. The Charter, as part of the Constitution, does not enjoy priority over the other provisions of the Constitution. Under Head 7 of section 91 of the Constitution Act, 1867, the Parliament of Canada has exclusive authority over "Militia, Military and Naval Service and Defence". This does not mean defence by non-violent means in light of the clear meaning of the words themselves, and the view of the majority of Canadi- • ans and the three major political parties that the defence of Canada by force of arms is one of the very important roles of the Federal Government. The right of Parliament to tax for military purposes, as clearly provided for in the Constitution, would be frustrated in so far as conscientious objectors are concerned if plaintiff could secure the relief sought.
Charter, subsection 15(1) did not apply because there was no discrimination in requiring the plaintiff to pay the same taxes as any other resident taxpayer with the same taxable income.
The impugned legislation, in the cases relied on by the plaintiff, imposed actual restraints on the normal rights of citizens. Here, the plaintiff's freedom to practice her religion was not affected since she does not participate in the spending of moneys for military purposes. Even if the plaintiff's freedom of conscience was being infringed, it could probably be demonstrably justified in a free and democratic society pursu ant to section 1 of the Charter.
The Court did not have jurisdiction to order that the moneys be paid to the Peace Tax Fund or for another peaceful purpose as it would be contrary to the division of powers, and would constitute an usurpation of the powers of Parliament to appro priate funds.
The test in Twinn v. Canada had been met. It was patently clear to the judge hearing the motion that the claim was without legal justification.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(a), 15.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti tution Act, 1982, Item 1), s. 91(3),(7).
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52.
Federal Court Rules, C.R.C., c. 663, R. 419(1)(a). Financial Administration Act, R.S.C. 1970, c. F-10, ss. 2, 11(1), 24(1).
CASES JUDICIALLY CONSIDERED:
APPLIED:
Re MacKay et al. and Government of Manitoba ( 1985), 23 C.R.R. 8 (Man. C.A.); Autenrieth v. Cullen, 418 F.2d 586 (9th Cir. 1969); Barton v. C.I.R., 737 F.2d 822 (9th Cir. 1984); Buckley v. Valeo, 96 S.C. 612 (1976); Refer ence Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Penikett v. R., [1988] 2 W.W.R. 481 (Yukon Territory C.A.); Twinn v. Canada, [1987] 2 F.C. 450 (T.D.).
DISTINGUISHED:
R. v. Big M Drug Mart Ltd., et al., [ 1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [ 1986] 2 S.C.R. 713.
REFERRED TO:
Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; Winterhaven Stables Ltd. v. Attorney-General of Canada (1986), 29 D.L.R. (4th) 394 (Alta. Q.B.).
COUNSEL:
David H. Vickers and C. L. Vickers for plaintiff.
Eric A. Bowie, Q.C. and I. E. Lloyd for defendant.
SOLICITORS:
Vickers & Palmer, Victoria, and Schroeder & Company, Vancouver, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order ren dered in English by
ADDY J.: The defendant applies, pursuant to Rule 419(1)(a) [Federal Court Rules, C.R.C., c. 663] to have the statement of claim of the plaintiff struck out and the action dismissed on the ground that the statement of claim discloses no reasonable cause of action.
In an application of this kind, the Court must assume that all of the allegations of fact in a statement of claim would be conclusively estab lished at trial. In addition to the identification of the plaintiff, the facts as pleaded in the various paragraphs of the statement of claim are as follows:
3. The Plaintiff is a member of the Society of Friends or Quakers. It is a matter of the Plaintiffs conscience and a living expression of her religion and faith that she refuse to partici pate in any expenditures for military or war purposes, including the payment of tax which will be used for military or war purposes whether for defense or otherwise, providing such defense involves the intent to use or actual use of violence (hereinafter referred to as "military expenditures").
5. At all material times, the Defendant, represented by the Government of Canada, was engaged in military expenditures, particulars of which are known to the Defendant.
6. The Peace Tax Fund is operated by Conscience Canada Inc., a body corporate, incorporated pursuant to the laws of Canada. All tax money paid into the fund is held in trust for the payees and the Defendant. It is the objective of the fund, subject to lawful approval, to expend money for peaceful purposes, including inter alia financial support for persons or
organizations engaged in the promotion of peace by peace research, education and development projects.
7. The Plaintiff says and the fact is that the payment of tax to the Peace Tax Fund, as hereinbefore pleaded and the refusal to pay tax for military expenditures is an exercise of her conscience and religious beliefs, ...
9. Throughout Canadian history and, in particular, during World War I and World War II, consciencious objection to military service has been permitted by Canadian law, and Canadians have in fact exercised their freedom of conscience not to engage in military service.
10. The Plaintiff says and the fact is that the money allocat ed in the Canadian budget for military expenditures could be allocated in the development of strategies for peace and spent in alternate ways to promote peace and Canadian security.
In paragraph 4 the plaintiff states that the entire tax has been paid to the Receiver General except the percentage of - her net federal tax which would be approximately equal to the percentage of the federal budget used for military purposes, this last-mentioned amount having been paid in trust to the above-mentioned Peace Tax Fund of Con science Canada Inc. It necessarily follows as a question of fact from the above that the plaintiff is not in any way seeking to avoid the payment of monies, since she has divested herself of the full amount she would have had to pay.
The above constitutes all of the facts which are to be taken into account on this application. The other matters mentioned in the statement of claim pertain to the pleading of law or of conclusions which it is claimed should be drawn from certain facts in the light of common law principles and various statutory or constitutional provisions.
The claim of the plaintiff is for declaratory relief to the effect firstly that to require her to pay the full amount of her income tax to the Federal Government infringes her rights guaranteed by paragraph 2(a) and subsection 15 (1) of the Chart er [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] and secondly, that she is not required to pay that part of her income tax which is proportional to the part of the federal budget allocated to military expenditures, but that she may pay it instead to the Peace Tax Fund or for such other peaceful purpose as the Honourable Court may deem fit.
The defendant cannot succeed on this present application unless it is clear that there can be no arguable case in favour of the plaintiff. Otherwise the motion will have to be dismissed and the matter will have to proceed to trial.
The first point raised by the defendant is that there is no nexus of any kind between the amount of taxes payable by the plaintiff and the expendi tures made by the Federal Authority.
The following provisions of the Financial Administration Act, R.S.C. 1970, c. F-10 are ap plicable to this issue. In section 2 "appropriation" is defined as:
2....
... any authority of Parliament to pay money out of the Consolidated Revenue Fund;
"Consolidated Revenue Fund" is defined as:
2....
... the aggregate of all public moneys that are on deposit at the credit of the Receiver General;
the term "public money" [as am. by S.C. 1980-81- 82-83, c. 170, s. 2] is defined as:
2....
"public money means all money belonging to Canada received or collected by the Receiver General or any other public officer in his official capacity or any person authorized to receive or collect such money and includes
(a) duties and revenues of Canada,
(b) money borrowed by Canada or received through the issue or sale of securities,
(c) money received or collected for or on behalf of Canada, and
(d) money received by Canada for a special purpose;
Subsection 11(1) provides that:
11. (1) ... all public money shall be deposited to the credit of the Receiver General.
Finally, subsection 24(1) provides, and I quote:
24. (1) At the commencement of each fiscal year or at such other times as the Treasury Board may direct, the deputy head or other person charged with the administration of a service for which there is an appropriation by Parliament or an item included in estimates then before the House of Commons shall, unless otherwise directed by the Board, prepare a division of such appropriation or item into allotments in the form detailed in the estimates submitted to Parliament for such appropriation or item, or in such other form as the Board may prescribe.
It seems clear, on a fair reading of those provi sions, that not only moneys received from income
tax assessments but all moneys collected by the Federal Government on its own account are paid into and form part of the Consolidated Revenue Fund which Parliament appropriates to various proposed items of expenditure. It seems equally clear that the expenditures authorized under sec tion 24 are quite unconnected with the source.
As Twaddle J.A. stated when expressing the judgment for the majority of the Court of Appeal of Manitoba in the case of Re MacKay et al. and Government of Manitoba (1985), 23 C.R.R. 8, at page 12:
The citizen pays a tax: the state uses it not as the citizen's money, but as part of a general public fund. As the Supreme Court of the United States pointed out in Buckley v. Valeo, supra, at p. 669 "... every appropriation made by Congress uses public money in a manner to which some taxpayers object". The notion of a taxpayer "paying for" government programmes is not strictly in accord with the fact that, whilst the taxpayer pays some of the money that enables the govern ment to embark on programmes, the government alone is responsible for the programmes on which the money is spent.
Monetary support by the state for the expression of minority views, however distasteful to the majority or to another minori ty group, cannot offend the conscience of those opposed to the viewpoint. No one is compelled to agree with the minority view nor forbidden to espouse or express a contrary one. To borrow the words of Dickson C.J.C. in R. v. Big M Drug Mart, supra, "No one is ... forced [by the impugned sections of the Elec tions Finances Act] to act in a way contrary to his beliefs or his conscience".
The Constitution does not guarantee that the state will not act inimically to a citizen's standards of proper conduct: it merely guarantees that a citizen will not be required to do, or refrain from doing, something contrary to those standards (subject always, of course, to the reasonable limitations recog nized by s. 1 of the Charter).
Two other American cases were decided on the same principle, namely: Autenrieth v. Cullen, 418 F.2d 586 (9th Cir. 1969) and Barton v. C.I.R., 737 F.2d 822 (9th Cir. 1984). Notwithstanding the obvious differences in our systems of government and in the statutes which govern appropriations, I find that the views expressed by the Supreme Court of the United States in the Buckley case [Buckley v. Valeo, 96 S.C. 612 (1976)], and by the Ninth Circuit Court of Appeals in the other two American cases, are fully applicable and quite persuasive. Medhurst J. of the Alberta Court of Queen's Bench also came to the same decision in
Winterhaven Stables Ltd. v. Attorney-General of Canada (1986), 29 D.L.R. (4th) 394.
The argument whether moneys expended for military purposes are quite unconnected with the source is really one of law and must, for the above reasons, be decided against the plaintiff. Any money withheld by the plaintiff is not withheld from military expenditures but from the sum of all of the moneys in the Consolidated Revenue Fund, from which all Government expenditures are financed by reason of the operation of the Finan cial Administration Act and of our very system of government.
The plaintiff's case of necessity, because of the relief claimed, centers on paragraph 2(a) and sub section 15(1) of the Charter. They are reproduced hereunder for the sake of convenience:
2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion;
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
With regard to the application of the Charter of Rights, counsel for the defendant argues in the first instance that no part of the Constitution can be prohibited or prevented from operating by any other section. He also states that the Charter of Rights, as part and parcel of the Constitution, does not enjoy, over the other provisions of the Consti tution, the overriding priority which it does over each and every one of the other laws of Canada. One cannot say that by reason of the Charter any other section of the Constitution becomes uncon stitutional or inoperative.
I find that these assertions by counsel for the defendant constitute valid statements of the law.
The Charter of Rights and Freedoms is found in the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]. Section 52 under "PART VII, GENERAL" provides that "The Consti tution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions
of the Constitution is, to the extent of the incon sistency, of no force or effect." Subsection 52(1) does not state that the Charter of Rights and Freedoms is the only part of the Constitution which enjoys that overriding power. Subsection (2) of section 52 clearly states that all of the Constitu tional Acts and amendments as well as the Consti tution Act, 1982, which includes the Charter, form the Constitution of Canada.
Heads 3 and 7 of section 91 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.) Schedule to the Consti tution Act, 1982, Item 1)] provide that the Parlia ment of Canada has exclusive authority over:
91....
3. The raising of Money by any Mode or System of Taxation.
7. Militia, Military and Naval Service and Defence.
In the case entitled Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, Madam Justice Wilson of the Supreme Court of Canada had this to say (refer page 1197):
This does not mean, however, that such rights or privileges are vulnerable to attack under ss. 2(a) and 15 of the Charter. I have indicated that the rights or privileges protected by s. 93(1) are immune from Charter review under s. 29 of the Charter. I think this is clear. What is less clear is whether s. 29 of the Charter was required in order to achieve that result. In my view, it was not. I believe it was put there simply to emphasize that the special treatment guaranteed by the constitution to denominational, separate or dissentient schools, even if it sits uncomfortably with the concept of equality embodied in the Charter because not available to other schools, is nevertheless not impaired by the Charter. It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confedera tion compromise. Section 29, in my view, is present in the Charter only for greater certainty, at least in so far as the Province of Ontario is concerned. [Emphasis added.]
In the unreported decision of the Court of Appeal of the Yukon in the case of Penikett v. R., [1988] 2 W.W.R. 481 (Yukon Territory C.A.), the Court had this to say, at page 488:
We agree with the view adopted by the majority of the Court of Appeal of Ontario where, in another context, they observed that no part of the Constitution is made by virtue of s. 52 paramount over another. Each provision, they noted, must be read in light of the other provisions, unless otherwise specified: ... Ref re an Act to Amend the Education Act (1986), 53 O.R. (2d) 513, 23 C.R.R. 193, 25 D.L.R. (4th) 1 at 54, 13 O.A.C. 241 (sub nom. Ref. re R.C. Separate High Sch. Fund ing), appeal dismissed by the Supreme Court of Canada 25th June 1987 [now reported [1987] 1 S.C.R. 1148 (sub nom. Ref. re Bill 30, an Act to Amend the Education Act), 40 D.L.R. (4th) 18, 20 O.A.C. 321, 77 N.R. 241].
This important factual distinction applies even more emphatically to counter another of the argu ments of counsel for the plaintiff to the effect that the relief sought should be granted because in both World War I and World War II the Canadian Government recognized the status of conscientious objectors by exempting them from actual military service. The conscription laws from which these people were being exempted would have forced them to actually participate in the violent acts of war and in the killing of other human beings. Needless to say the situation before me is an entirely different one.
I simply cannot accept the argument of counsel for the plaintiff that, because the Constitution is to be considered as a living, breathing instrument subject to variations in interpretation as the nation progresses and attitudes change, Head 7 of the Constitution Act, 1867 above-cited should now be interpreted somehow to mean defence by strictly non-violent means. The proposition is absurd, not only because of the clear and unambiguous mean ing of the words themselves but also because the great majority of Canadians as well as the three major political parties obviously still consider the military defence of Canada by force of arms to be one of the very important roles of the Federal Government as mentioned in the Constitution.
It follows that, if one attempts to attain by means of paragraph 2(a) or of subsection 15(1) of the Charter the result sought by the plaintiff, the right of the Parliament of Canada to tax for military purposes, as clearly provided for in the Constitution, would be frustrated, at least in so far as any conscientious objectors are concerned.
I fail to see how subsection 15(1) could apply in any event: requiring the plaintiff to pay the same taxes as any other Canadian resident taxpayer with the same taxable income cannot constitute discrimination. The only section which can in any way be considered relevant to the issue is para graph 2(a).
Counsel for the plaintiff relied on and quoted extensively from the reported case of R. v. Big M Drug Mart Ltd., et al., [1985] 1 S.C.R. 295 and from R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. I have carefully read the cases and particularly the passages on which the counsel for the plaintiff relies. I shall refrain from quoting them as there is nothing therein which, in my view, in any way binds me or even might persuade me to adopt the conclusion which he urges upon me. As to the subject-matter of the cases both were con cerned with the constitutionality of ordinary legis lation and not with other portions of the Constitu tion itself. The Big M case dealt with the constitutionality of the Lord's Day Act [R.S.C. 1970, c. L-13] which was judged to be unconstitu tional. The Edwards Books case dealt with the constitutionality of the Retail Business Holidays Act [R.S.O. 1980, c. 453] of the Province of Ontario. The Act was held to be constitutional and to not infringe either sections 2, 7 or 15 of the Charter. In neither case is there a question of attempting to use one part of the Constitution to nullify or infirm another part. What is really important however is that in both cases the legisla tion imposed actual restraints on the normal rights of individuals in a free society to do business or to carry on with their normal legitimate activities. Such is certainly not the case here. As previously stated, the plaintiff is merely being taxed for gen eral federal purposes and the expenditures for military purposes are made entirely by the Federal Authority without any personal participation by the plaintiff in any way. Her freedom to practice the tenets of her religion cannot reasonably be held to be affected since she neither directly nor in directly participates in the expending for military purposes of the moneys collected by the Receiver General.
It appears also that none of the remedies requested in the plaintiff's prayer for relief could
legally be granted. The request for a declaration to the effect that the plaintiff is not required to pay the percentage of our net federal tax owing which would be equal to the percentage of the federal budget allocated to military expenditures would have to be denied because, for the reasons previ ously stated, there exists no connection whatsoever between the payment by taxpayers of income tax to the Receiver General to be credited to the Consolidated Revenue Fund and the payment from such fund of whatever sums Parliament might have appropriated for military purposes.
The plaintiff also requests an order to the effect that the moneys be paid to the Peace Tax Fund or for such other peaceful purposes as this Honour able Court may decide. The plaintiff, in effect, is requesting that the Court usurp the powers of Parliament and actually appropriate moneys des tined by law to the Consolidated Revenue Fund for appropriation by Parliament. This would fly directly against one of the most basic tenets of our Constitution namely, the division of powers.
It seems clear that the issue raised, i.e. that the statement of claim discloses no reasonable cause of action, requires for its disposition neither addition al pleadings nor any evidence and may be disposed of at this stage (refer Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735).
Where it is patently clear to the judge hearing the motion that the claim is without legal justifica tion then it should be struck out. This in my view is the case here contrary to that which existed in the case of Twinn v. Canada, [1987] 2 F.C. 450 (T.D.), on which the plaintiff relies. In that case Strayer J. of this Court stated, at page 458:
With respect to the grounds stated in Rule 419(1)(a), it is important to note that it requires that there be "no reasonable cause of action". The significance of this language was clearly explained by Pratte J. in Creaghan Estate v. The Queen, [1972] F.C. 732 (T.D.), at page 736 where he said that the inclusion of the word "reasonable" means that the Court need not decide whether the suit is truly founded in law but instead whether, assuming all the facts alleged in the statement of claim to be true, the plaintiff has an "arguable case". LeDain J. said in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.), at page 138 that to strike out on these grounds it must be "plain and obvious that the action cannot succeed". This statement was approved by the Supreme Court of Canada
in Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, at pages 450, 487. I understand this to mean that a judge hearing such a motion should not strike out a statement of claim just because he does not think the plaintiff's case is sound in law, if it is possible that a trial judge might uphold the claim. [Emphasis added.]
I fully accept those statements of the law and I find that in the case before me the test has been met by the defendant.
There are also very practical obstacles to the remedies requested by the plaintiff being granted. One can easily envisage government actions and policies, both present and proposed, to which cer tain taxpayers and possibly a great number of taxpayers might conscientiously and out of deep and sincere moral and religious convictions, con sider to be totally wrong, reprehensible, unjustified and even evil. One such issue on which public attention is being focused today is the extremely divisive question of whether public moneys should be expended for abortions. If each of those taxpay ers who might be conscientiously objecting to this policy were entitled by law to withhold a percent age of income tax, complete chaos would result and orderly government would break down. If the freedom of conscience of the plaintiff were in fact being infringed, section 1 of the Charter could probably be successfully invoked since it would appear to be a reasonable limit on the plaintiff's freedom, which could be demonstrably justified in a free and democratic society.
The motion will accordingly be allowed, the plaintiffs statement of claim struck out and the action dismissed with costs.
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