2023 FC, 2023 FC 1423

Date: 20231025 Docket: T-1394-23 Citation: 2023 FC 1423 Toronto, Ontario, October 25, 2023 PRESENT: Mr. Associate Judge Michael D. Crinson BETWEEN:PHONG LAMPlaintiffandMARIO SILVA AND CATHY BRAKERDefendants ORDER AND REASONS [1] The plaintiff in this matter, Phong Lam ("“Lam”"), commenced this proceeding on July 6, 2023. The Statement of Claim (the"“Claim”") amounts to a series of allegations by the plaintiff against the two defendants, Mario Silva ("“Silva”") and Cathy Braker("“Braker”"). Silva is alleged to be the vice chairman of the Human Rights Tribunal of Ontario ("“HRTO”").

The action arises out of theHRTO's dismissal of Lam's application against his former employer, Cleveland Range Ltd. and his former union, the UnitedSteelworkers. Silva wrote the decision dismissing Lam's HRTO application as abandoned and Braker was the lawyer for the UnitedSteelworkers Union in the HRTO proceeding. [2] The Claim in this matter claims $480,000 (four hundred and eighty thousand) in damages.

The Claim, as a basis for the damagesclaim, makes a number of bare allegations including bribery and corruption by one defendant, collusion between the two defendants,fraud, abuse of authority, and transmission and issuance of a "“forgery judgment”" among other allegations. While there is muchrepetition of the allegations in the Claim there is little to nothing in the nature of material facts to support this panoply of allegations. [3] Each of the defendants in this matter have brought motions pursuant to rule 221 to strike the Claim without leave to amend.

Thedefendant Braker seeks to strike the Claim on the bases that: (1) the Federal Court lacks jurisdiction to hear the matter; (2) it discloses noreasonable cause of action; and it is scandalous, frivolous and/or vexatious. Similarly, the defendant Silva seeks to strike the Claim onthe bases of rule 221(1)(a), (

c) and (f). Both defendants seek their costs of their motions. [4] On September 11, 2023, the plaintiff sent an email addressed "“To the Chief Administrator of the Federal Court”". However, theplaintiff did not file any responding motion record to either of the motions to strike and aside from the email submitted no evidence onthe motions. [5] While the motion of each defendant raises several bases for striking out the Claim as against each of them, two grounds that they havein common and which are sufficient to resolve this motion are based on: [6] rule 221(1)(

a) no reasonable cause of action for want of jurisdiction, and [7] rule 221(1)(

c) the claim is scandalous, frivolous and vexatious. I. Applicable Principles on a Motion to Strike [8] On a motion to strike out a pleading under Rule 221(1)(a), the applicable test is whether it is "“plain and obvious”" that the claimdiscloses no reasonable cause of action: see Hunt v Carey, (SCC), [1990] 2 SCR 959, [1990] SCJ No 93 at par 32 (QL).The burden on the defendant is very high and the Court should exercise its discretion to strike only in the clearest of cases.

The pleadingshould be read generously with allowance for inadequacies due to drafting deficiencies. [9] The Federal Court of Canada is a statutory court that has the jurisdiction that is given to it by statute. As recently stated by theFederal Court of Appeal, "“The jurisdiction of the Federal Court is statutory. As such, the statutory basis for jurisdiction must beidentified.”" (Berenguer v. Sata Internacional - Azores Airlines, S.A., 2023 FCA 176 at para. 34).

When a pleading does not disclose areasonable cause of action falling within the jurisdiction of this Court, it does not disclose a reasonable cause of action that the Court canadjudicate (Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617 at para. 24). [10] Those allegations that are capable of being proved must be taken as true. This rule does not apply, however, to allegations based onassumptions and speculation: Operation Dismantle Inc v The Queen (1985), (SCC), 18 DLR (4th) 481 (SCC) at par.486-487 and 490-491.

Moreover, the Court need not accept at face value bare allegations, factual allegations which may be regarded asscandalous, frivolous or vexatious, or legal submissions dressed up as factual allegations. [11] There is no rigid test for determining whether a pleading is scandalous, frivolous or vexatious. However, Steiner v. Canada, (FC) describes one such proceeding thus: A scandalous pleading includes one which improperly casts a derogatory light on someone, with respect to their moralcharacter.

A claim is a frivolous one where it is of little weight or importance or for which there is no rational argumentbased upon the evidence or law in support of the claim. A vexatious proceeding is one that is begun maliciously or without a

probable cause, or one which will not lead to any practical result. II. Application to these Motions to Strike [12] For the reasons set out in the defendant Braker's written representations at paragraphs 14 to 20 and in the defendant Silva's writtenrepresentations at paragraphs 12 to 20, which I wholly adopt and make mine, I conclude that the Claim should be struck as it fails todisclose a cause of action within the jurisdiction of this Court. [13] The Claim should also be struck on the ground that it is scandalous and vexatious. The defendant Braker was opposing counsel onLam's application before the HRTO.

Lam alleges in this proceeding that Braker obtained a fraudulent decision before the HRTO and thatBraker was also involved in a fraudulent decision issued by Justice Perrell of the Superior Court of Justice in Toronto. No factualallegations are recited in the Claim as to what role Braker played in perpetrating the alleged fraud or even what was the alleged fraud.Allegations of similar gravity are levelled by Lam against Silva including bribery and corruption and that Silva colluded with others tofabricate "“fake judgments”".

Again, no factual allegations are recited in the Claim to provide particulars of these bald allegations. [14] Lam provided no responding motion record to oppose the motions brought by Braker and Silva. It appears from the Claim that anyunsuccessful judicial outcome for Lam is alleged to be a fraud or a fake judgment.

Such allegations are mere speculation, opinion andassumptions but it is clear in law that a "“cause of action must lie on material facts and not on assumptions.”" (Chavali v Canada, 2011FC 268 , 2011 FCT 268 at para.21). [15] The plaintiff's claim is scandalous and vexatious because it improperly impugns the moral character of each of the defendantsalleging one or the other or both engaged in fraudulent conduct and bribery, without any foundation in fact or reason. The Claim is alsoscandalous in that it alleges, without basis that a previous judgment of the Superior Court of Justice of Ontario was a forgery.

Theplaintiff's claim lacks merit or any rational basis for the allegations. [16] In my view, no amendment can be made to the pleading to cure these radical defects. [17] As for costs of the motion, I see no reason to deviate from the general rule that costs should follow the event.

While an elevatedscale of costs may have been justified in light of the scandalous and vexatious allegations made, each of the defendant's requested a moreconservative amount of $500 in costs. [18] Upon reviewing the material filed, including the plaintiff's email and upon noting that the plaintiff did not file any respondingmotion record. ORDER THIS COURT ORDERS that: 1. The Statement of Claim is struck out, without leave to amend. 2. Costs of these motions, hereby fixed in the amount of $500 for the defendant Braker and $500 for the defendant Silva, shall bepaid forthwith. "Michael D.

Crinson" Associate Judge FEDERAL COURT SOLICITORS OF RECORD Docket: T-1394-23 STYLE OF CAUSE: PHONG LAM v MARIO SILVA AND CATHY BRAKERMATTER CONSIDERED AT TORONTO, ONTARIO WITHOUT PERSONAL APPEARANCE OF THE PARTIESORDER AND REASONS: CRINSON A.J. DATED: October 25, 2023 SOLICITORS OF RECORD: PHONG LAM For The PLAINTIFFTRIBUNALS ONTARIO LEGAL SERVICES Brian A. Blumenthal Valerie Crystal FOR the DEFENDANT, MARIO SILVA GOLDBLATT PARTNERS LLP CharlesSinclair FOR the DEFENDANT, CATHY BRAKER

Geetha Philipupillai