ANTON OLEYNIK Plaintiff v. THE ATTORNEY GENERAL OF CANADA, 2014 FC 896

Date: 20140919 Docket: T-1383-14 Citation: 2014 FC 896 Ottawa, Ontario, September 19, 2014 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: ANTON OLEYNIKPlaintiffand THE ATTORNEY GENERAL OF CANADADefendant ORDER AND REASONS [1] By Notice of Motion dated July 4, 2014, the Attorney General of Canada (the “Defendant”) seeks an Order pursuant to Rules221(1)(a), 221(1)(

c) and 221(1)(

f) of the Federal Courts Rules, SOR/98-106 (the “Rules”) striking out the Statement of Claim of AntonOleynik (the “Plaintiff”), with costs. [2] The Plaintiff is a professor at Memorial University in Newfoundland and Labrador. In his Statement of Claim, he seeksdamages based, in part, upon allegations that the Defendant breached the Privacy Act, R.S.C. 1985, c. P-21 (the “Privacy Act”) and theAccess to Information Act, R.S.C. 1985, c.

A-1 (the “Access Act”), relative to an application he had made for funding to the SocialSciences and Humanities Research Council of Canada (“SSHRC”), that is a grant for research in the social sciences. He seeks damagesin the amount of $ 643,955 as compensation for damage to his reputation and for loss of opportunity to receive research grants. [3] In a motion to strike on the grounds that the Statement of Claim discloses no reasonable cause of action, pursuant to Rule221(1)(

a) of the Rules, no evidence can be submitted; see Rule 221(2). The Court is to accept that the allegations that are capable ofbeing proven, are true; see Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959. That principle does not apply toallegations based on speculation and assumptions; see Operation Dismantle Inc. v.

The Queen (1985), (SCC), 18 D.L.R.(4th) 481 (S.C.C.) at pages 486 - 487 and 490 – 491. [4] Having regard to the contents of the Statement of Claim and the submissions of the parties, I am satisfied that the Statementof Claim should be struck as failing to disclose a reasonable cause of action. [5] According to the decision in Bérubé v.

Canada (2009), 2009 FC 43 , 348 F.T.R. 246 at paragraph 24, in order todisclose a reasonable cause of action, a claim must show the following three elements: i. allege facts that are capable of giving rise to a cause of action; ii. disclose 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 hasjurisdiction to grant. [6] The Plaintiff’s Statement of Claim consists of 39 paragraphs, set out with headings as follows: i. Introduction: paragraphs 1 – 2; ii.

Background information: paragraphs 3-11; iii. SSHRC’s actions that caused damage to Dr. Oleynik: paragraphs 12 – 36; iv. Damages: paragraphs 37 – 39. [7] At paragraph 1, the Plaintiff says the following: This is a claim against the Attorney General of Canada. The basic nature of the claim is the failure of the Social Sciences andHumanities Research Council of Canada (SSHRC) to comply with its own rules and regulations regarding due procedure as well as withrequirements of the Privacy Act (R.S.C., 1985, c. P-21) and the Access to Information Act (R.S.C., 1985, c.

A-1), namely, by undulycollecting the Applicant’s personal information and breaching his privacy. In consequence of these actions the Applicant (Dr. AntonOleynik, an Associate professor of sociology at Memorial University of Newfoundland) suffered damages that amount to $643,955 [sic]. [8] The Plaintiff is essentially presenting a claim for non-compliance with processes related to his application for a SSHRCgrant. He alleges that he was “blacklisted” as an assessor of proposals submitted to SSHRC and that SSHRC improperly used hispersonal information, thereby breaching both the Privacy Act and the Access Act.

The alleged “blacklisting” occurred with respect to hisresearch proposals from 2008 to 2014. The Plaintiff also alleges that SSHRC discriminated against him by sanctioning him, in violationof SSHRC’s policy of non-discrimination. [9] The Defendant claims that the Statement of Claims consists of bare assertions, speculation and conclusory statements, and

fails to plead facts that disclose a cause of action. He argues that the Statement of Claim fails to disclose a reasonable cause of action asrequired by Rule 221(1)(a), is scandalous, frivolous and vexatious contrary to Rule 221(1)(c), and represents an abuse of process contraryto Rule 221(1)(f). [10] The Plaintiff claims that SSHRC failed to follow its internal rules and regulations. Insofar as this is a claim about process, itmay subject to an application for judicial review.

There is no known cause of action for such a complaint. [11] The Plaintiff alleges that SSHRC discriminated against him by “blacklisting” him after he criticized its handling of privateinformation. [12] There are no facts to support this allegation. In any event, there is no intentional tort of discrimination in Canada; see thedecision in Seneca College v. Bhaduria, (SCC), [1981] 2 S.C.R. 181 at paragraphs 26 – 27. Further, any complaintsabout discrimination should be pursued under relevant human rights legislation. [13] The Plaintiff alleges that SSHRC breached

section 5 of the Privacy Act by collecting personal information from his employerrather than from him directly. He also claims that SSHRC improperly used his personal information because it refused to correctpersonal information after he formally asked it to do so pursuant to subsection 12(2) of the Privacy Act.

He has made several complaintsto the Privacy Commissioner and the Statement of Claim refers to a report dated February 2014, released by the Office of theInformation Commissioner of Canada (the “Information Commissioner”), finding that his complaints were “well-founded”. [14] The Plaintiff is complaining about alleged breaches of the Privacy Act. His remedy in that regard is to proceed by way ofjudicial review. If, at the end of that process, he can show a legitimate wrong, that is the time to commence an action.

His action ispremature. [15] There is no free-standing right to bring an action for breach of legislation; see the decision in Saskatchewan Wheat Pool v.Canada, (SCC), [1983] 1 S.C.R. 205 at page 225. Breach of a statute must be considered in the context of the generallaw of negligence; see Collins v. Canada (2010), 366 F.T.R. at paragraph 38, affirmed by Collins v R. (2011), 2011 FCA 140 ,418 N.R. 23 (F.C.A.). [16] In order to obtain a remedy for statutory breach, the Plaintiff must show a breach of a statutory duty of care; see the decisionof the trial judge in Collins, supra, at paragraph 39.

The Plaintiff has not established the elements of negligence to support a claimagainst SSHRC that it negligently breached the Privacy Act. [17] If the Plaintiff takes issue with the findings of the Information Commissioner, his remedy lies in an application for judicialreview. [18] I agree with the arguments made by the Defendant that the Statement of Claim, as drafted, fails to disclose a reasonable causeof action.

Insofar as the Plaintiff complains about misuse of discretion by SSHRC officials and improper access to his personalinformation, these are issues that are more appropriately dealt with by way of an application for judicial review, properly constituted. [19] In my opinion, the Plaintiff has failed to disclose a reasonable cause of action for the foregoing reasons and the Statement ofClaim should be struck without leave to amend. [20] I will briefly address the Defendant’s submissions that the Plaintiff’s Statement of Claim should be struck pursuant to Rule221(1)(c), that is as being scandalous, frivolous and vexatious.

In considering a motion to strike on these grounds, the Court is requiredto consider the merits of the claim; see the decision in Blackshear v. Canada, 2013 FC 590 at paragraph 12. [21] In my opinion, the Statement of Claim should be struck on the basis of Rule 222(1)(c), as well. There are no facts pleaded tosupport a cause of action. The allegations are either unsupported or are speculative; for example, paragraphs 17, 20 – 21 and 30 of theStatement of Claim, read as follows: 17. In the 2010-2011 competition [sic] the program officer exercised his discretion in an undue manner.

The program officer, anindividual without a PhD degree and experience in conducting research, has the discretion to make ‘the final selection of externalassessors’ (Document H [sic], page 12). SSHRC was criticized by members of the panel of international experts, who evaluated theSSHRC operation, for giving the program officer waste discretionary powers (Document G [sic], page 3, see also Document L [sic]). Todraw a relevant parallel, if a similar arrangement existed in the judicial system, the assignment of judges to particular cases would beregistry officers’ exclusive privilege. 20.

In the final account members of the adjudication committee gave an eliminatory (‘unsatisfactory’) score for the ‘appropriateness ofthe requested budget, and justification of proposed costs’ (Documents EE [sic], page 3) without consulting relevant supportingdocuments [sic]. The score for the project’s feasibility turned to be the lowest (3.4 out of 6), and its resulting rank ‘was not high enoughfor an award to be made from the available competition budget’. All the other scores were high warranting an award. 21.

One more time, the program officer exercised her discretion in the recruitment of external assessors in an undue manner. 7 externalassessors were contacted, including two after the program officer had secured the commitment of two other assessors. The SSHRCautomated tracking system does not contain any information on responses of the two assessors invited on January 31, 2014 (DocumentDD [sic], page 3), which creates opportunities for ‘massaging’ the information available to the adjudication committee. 30.

The OIC documented several breaches of the Access to Information Act committed by SSHRC’s management (Documents J, GG &MM) [sic]. It must be noted that SSHRC’s representatives supplied OIC’s investigators with incomplete and/or erroneous information attimes, which shall be taken into account when the Court considers the Statement of defence and documents produced by the Respondentin its support (Document QQ) [sic]. [22] Since the Statement of Claim fails to disclose a reasonable cause of action and is otherwise defective pursuant to Rule 222(1)

(c), I am satisfied it represents an abuse of process per Rule 221(1)(f). [23] It is an abuse of process to re-litigate essentially the same dispute when earlier attempts at relief have failed; see the decisionin Black v. NsC Diesel Power Inc. (Bankrupty) et al. (2000), (FC), 183 F.T.R. 301 at paragraph 11. The substance ofthis dispute has already been considered by this Court on two previous occasions. In both cases, the applications were dismissed; see thedecisions in Oleinik v. Canada (Privacy Commissioner), 2011 FC 1266, affirmed by Oleinik v.

Canada (Privacy Commissioner) 2012FCA 229, and Oleinik v Privacy Commissioner (Can.) (2013), 2013 FC 44 , 425 F.T.R. 228. The Plaintiff’s present action istherefore an abuse of process. [24] In the result, the Defendant’s motion is granted and the Statement of Claim will be struck without leave to amend. [25] Leave to amend pleadings will be granted where there is a curable defect in the pleadings; see the decision in Simon v.Canada (2011), 2011 FCA 6 , 410 N.R. 374 (F.C.A.).

In my opinion, there is no such curable defect here, given that Canadianlaw does not recognize an intentional tort of discrimination, nor a freestanding right to bring action for statutory breach. [26] The Defendant seeks his costs. I see no reason to depart from the usual Rule that costs follow the event. Accordingly, in theexercise of my discretion pursuant to the Rules, I award costs in the amount of $500.00 inclusive of HST and disbursements.

ORDER THIS COURT ORDERS that the motion is granted, the Statement of Claim is struck out without leave to amend with costs to theDefendant in the amount of $500.00 inclusive of HST and disbursements. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1383-14 STYLE OF CAUSE: ANTON OLEYNIK v. THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: halifax DATE OF HEARING: August 13, 2014 ORDER AND REASONS: HENEGHAN J. DATED: September 19, 2014 APPEARANCES: Dr. Anton Oleynik For The Plaintiff Jason Jaffer Department of Justice For The defendant SOLICITORS OF RECORD: Dr. Anton Oleynik St.

John’s, NL For The plaintiff

William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The defendant