2023 FC, 2023 FC 1350

Date: 20231010Docket: T-1682-23 Citation: 2023 FC 1350Vancouver, British Columbia, October 10, 2023PRESENT: The Honourable Mr. Justice LafrenièreBETWEEN: PAUL BURKE PlaintiffandCORRECTIONS CANADA AND PAROLE BOARD OF CANADA Defendants ORDER AND REASONS I. Overview [1] The Plaintiff is a self-represented litigant who is currently incarcerated at the Mission Medium Institution.

He commenced theunderlying simplified action against “Corrections Canada” (Correctional Service of Canada “CSC”) and the “National Parole Board”(Parole Board of Canada “PBC”) on August 2, 2023. [2] The core of the Plaintiff’s claim appears to be that decades earlier, he was falsely designated a sex offender and, as a result of thiserror, he was not classified or treated properly by CSC staff and by the PBC.

The Plaintiff seeks damages for unlawful imprisonment andviolation of his Charter rights. [3] The Defendants have moved for an order to strike the Statement of Claim, without leave to amend, pursuant to paragraphs 221(1)(a)“no reasonable cause of action”, 221(1)(c) “scandalous, frivolous or vexatious” and 221(1)(f) “abuse of process” of the Federal CourtsRules, SOR/98-106 (the “Rules”). In the alternative, they seek an extension of 30 days from receipt of the Court’s Order to serve and filea statement of defense. [4] For the reasons stated below, the motion to strike is granted. II.

Legal Principles Applicable to Motions to Strike [5] Rule 221(1)(

a) provides that a pleading, or anything contained therein, that “discloses no reasonable cause of action” may be struckout, with or without leave to amend. In Theriault v Canada (Attorney General), 2022 FC 722 at paragraph 14, the Court summarized theapplicable test and the underlying principles to a finding that a statement of claim discloses no reasonable cause of action as follows: A.

To strike a claim on the basis it discloses no reasonable cause of action, it must be plain and obvious that the claimdiscloses no reasonable cause of action or has no reasonable prospect of success (Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959 at para 36 [Hunt]; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17); B. All facts plead must be accepted as provided unless patently ridiculous or incapable of proof: Hunt at paras 33 and 34;Edell v Canada, 2010 FCA 26 at para 5; Operation Dismantle v The Queen (1985), (SCC), 18 DLR (4th)481 (SCC) at 486-487 and 490-491 [Operation Dismantle]); C.

The statement of claim is to be read generously and in a manner that accommodates drafting deficiencies (OperationDismantle at para 14); D. To disclose a cause of action, the pleading must (1) allege facts capable of giving rise to the action; (2) disclose thenature of the action; and (3) indicate the relief sought – the statement of claim is to contain a concise statement of thematerial facts to be relied upon but not the evidence by which the facts are to be proved (Oleynik v Canada (AttorneyGeneral), 2014 FC 896 at para 5; Rule 174 of the Rules); E.

What constitutes a material fact is to be determined by the cause of action and the relief sought.

The pleading mustdisclose to the defendant the who, when, where, how and what, that give rise to the claimed liability – a narrative of whathappened and when will rarely suffice and neither the court nor opposing parties are to be left to speculate as to how thefacts support various causes of action (Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at para 19; Simonv Canada, 2011 FCA 6 at para 18). [6] To make out a case under paragraph 221(1)(c), the moving party must show the pleading is so clearly futile that it has not theslightest chance of success.

In Ceminchuk v Canada, [1995] FCJ No 914 [Ceminchuk] at paragraph 10 (QL), Prothonotary JohnHargrave described what is meant by a scandalous, vexatious or frivolous pleading: [10] A scandalous, vexatious or frivolous action may not only be one in which the claimant can present no rational argument,based upon the evidence or law, in support of the claim, but also may be an action in which the pleadings are so deficient infactual material that the defendant cannot know how to answer, and a court will be unable to regulate the proceedings.

It isan action without reasonable cause, which will not lead to a practical result.

[ 7 ] Finally, the Rules provide at paragraph 221(1)(

f) that the Court may at any time order that a pleading be struck out with or without leave to amend on the ground that it is “otherwise an abuse of the process of the Court” . Rule 221(1)(

f) has been interpreted to mean that the mischief sought to be addressed on a preliminary motion such as a motion to strike is mischief that is excluded from and not addressed by Rule 221(1)(

a) to (e), inclusively: Underwriters Laboratories Inc v San Francisco Gifts Ltd , 2009 FC 909 at para 9 . [ 8 ] While R ule 221(2 ) explicitly prohibits affidavit evidence being adduced in the context of a motion to strike for want of a cause of action, affidavit evidence is admissible on a motion to strike a pleading as an abuse of process pursuant to paragraph 221(1)(f). III. Analysis [ 9 ] It should be noted from the outset that the Plaintiff did not file any responding material notwithstanding that he was duly served with the Defendants’ motion record. [ 10 ] The Plaintiff is no stranger to this Court.

Large parts of his pleading in the case at bar are substantively similar or identical to earlier proceedings brought by the Plaintiff against the Federal Crown – Court File Nos. T-392-19 and T-216-20 – both of which were struck out, without leave to amend. [ 11 ] In an unreported decision dated September 4, 2019 in T-392-19, Associate Justice Kathleen Ring summarized the wide-ranging allegations made by the Plaintiff in his statement of claim as follows: (

a) in 1994, Mr. Burke was falsely identified as a sex offender in the OMS system. The false designation as a sex offender caused him to be moved to a maximum security penitentiary where he remained falsely imprisoned and flagged as a sex offender until January 5, 1999 when he was transferred to a medium security institution. (

b) in January 1999, the Correctional Service of Canada was negligent in permitting a CSC-owned computer to be made available to the inmate committee of Kingston Penitentiary without having first erased confidential information from the hard drive. He says that this information was discovered and published among the inmate population. He received a letter on August 12, 1999 from the Warden of Kingston Penitentiary advising him that his privacy had been breached through this disclosure of information.

The information erroneously stated that he is a sex offender, and that this constituted a serious breach of his privacy as persons with that designation risk being exploited or physically harmed if the designation becomes known. (

c) CSC/PBC failed to correct the false designation of Mr. Burke as a sex offender and that he continues to suffer ongoing damages. (

d) CSC/PBC disseminated “these falsehoods” without authorization in violation of sections 7, 9, and 12 of the Charter . He seeks damages under section 24(1) of the Charter . (

e) Mr. Burke’s sentence for his second-degree murder conviction included a stipulation of parole eligibility after fifteen years, and that his conviction and sentence were subsequently unlawfully changed by CSC/PBC to an indeterminate sentence. He inadvertently discovered the change to his sentence and conviction when he was preparing for the appeal of the 2010 parole hearing. He has been unlawfully imprisoned under an indeterminate sentence, in violation of sections 7, 9, 12 and 24 of the Charter. (

f) the designation of sex offender, and his indeterminate sentence affect his liberty interests by influencing decisions pertaining to conditional release, transfers, and security classification. (

g) he received two previous parole hearings in 2009 and 2010 that were both conducted unlawfully and concluded unfavourably. Among other things, it is alleged that CSC/NPB failed to provide him with proper disclosure and relied on erroneous information. The NPB is alleged to have violated various provisions of the Corrections and Conditional Release Act [ CCRA ] and to have denied him a fair hearing. (

h) on September 23, 2008, he became aware that his case management worker, CO-2 Coquand, prepared an incident report in 1998 stating that Mr. Burke had been in possession of eight gallons of brew. Mr. Burke alleges that this report was false and that he had been assured that it would be removed from the OMS system. (

i) CSC/PBC’s failure to cascade or reintegrate Mr. Burke violates

section 4(

d) and 28 of the CCRA and

section 17 of the Corrections and Conditional Release Regulations and sections 7, 9, 12, and 24 of the Charter . (

j) Mr. Burke’s parole board hearing on February 7, 2018 was conducted unlawfully, and CO-2 MacIowich misrepresented herself and misled and defrauded Mr. Burke at this hearing. (

k) CSC and the PBC unlawfully provided information protected under privacy legislation to Mr. Burke’s former spouse, whom he alleges was not a victim. [ 12 ] The above are essentially the same allegations made in the present case.

In granting the defendant’s motion to strike, Associate Judge Ring concluded that “taken as a whole, the pleading simply consists of bare assertions, bald statements, argument, and conclusions, making it impossible to respond to meaningfully.” She also denied leave to amend, as the Plaintiff had not proposed any amendments that could cure the radical defects in the statement of claim and, in fact, had filed no response to the motion. [ 13 ] Undeterred, the Plaintiff commenced two other proceedings, T-216-20 and T-217-20, against the Crown on February 12, 2020.

The pleading in T-216-20 contains claims that are strikingly similar, if not identical, to the ones struck by Associate Judge Ring six months earlier. The Plaintiff’s ultimate complaint in T-216-20 was that his continued imprisonment – allegedly caused by the denial of his parole, in turn allegedly caused by his false registration as a sex offender – constituted a violation of his Charter rights. The Crown moved to strike both pleadings. Once again, the Plaintiff did not file any submissions in response to the defendant’s motions.

[ 14 ] In Burke v Canada , 2021 FC 634 , Justice Elizabeth Heneghan struck the statement of claim without leave to amend, concluding as follows: (

a) The Plaintiff’s Statement of Claim is disjointed and unorganized. More to the point, it does not clearly disclose facts which can support a cause of action. (

b) No facts are pleaded to support a cause of action in negligence relative to the alleged incident in 1999, about access to a computer that allegedly contained sensitive information about the Plaintiff, nor about the alleged breach of statutory duty. (

c) There is no basis to entertain a claim for misfeasance in public office. (

d) That time period for bringing an action relating to an incident with a CSC-owned computer that the Plaintiff learned about in August 1999 is long expired. (

e) A claim for Charter damages cannot be entertained in the absence of an evidentiary foundation. [ 15 ] As for the statement of claim in T-217-20, the Plaintiff claimed that a decision to place him in segregation was unreasonable and motivated by bad faith. Justice Heneghan agreed with the defendant that the " claims " in the Plaintiff’s statement of claim " “sound” " like challenges to administrative decisions. She concluded that the statement of claim did not disclose a reasonable cause of action and struck it out, in its entirety, without leave to amend. A.

Abuse of Process [ 16 ] The doctrine of abuse of process can be used to preclude litigation that would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice: see Toronto (City) v CUPE, Local 79 , 2003 SCC 63 at para 37 . [ 17 ] While evidence is not normally permitted in a motion to strike, an exception is made where an applicant seeks to strike a matter as re-litigating an earlier proceeding under Rule 221(1)(f).

As this requires an analysis of what facts and issues were decided in the earlier proceeding, the Court may review the earlier proceeding to make a determination as to whether the issues are in fact the same and the present matter is an attempt to re-argue a decided matter. As stated by the Federal Court of Appeal in IMS Incorporated v Toronto Regional Real Estate Board , 2023 FCA 70 at paragraph 46 : “This is not so much

an act of taking judicial notice of a fact, but rather an assessment of what was decided in a previous proceeding and whether issue estoppel applies.” [ 18 ] While the statements of claim in T-392-19, T-216-20 and the present proceeding are not identical, they contain significant and substantive overlap in both content and issues. Re-litigating decided claims through a new pleading is a clear abuse of process: Lauer v Canada (Attorney General), 2017 FCA 74 at para 11 .

I find that paragraphs 1 to 281 of the Current Claim are an impermissible attempt to re-litigate matters previously struck by this Court, and more importantly without leave to amend, and should be struck on that basis. The remaining paragraphs are nothing more than a synopsis of the issues contained in previous paragraphs and should also be struck for the same reason. B.

Failure to Disclose Reasonable Cause of Action [ 19 ] Although not strictly necessary given my finding that the pleading constitutes an abuse of process, I will deal briefly with the Defendants’ arguments that the pleading does not set out the essential elements of a cause of action. [ 20 ] I have given the Statement of Claim a thorough and generous reading.

The pleading contains much irrelevant material, including conclusions of law which have no place in a statement of claim, argumentative paragraphs, substantial portions of evidence, extracts from legislation, various challenges to the Plaintiff’s index offense conviction, and lengthy descriptions of historical events spanning decades involving other inmates in custody, whether Provincial or Federal, with no apparent relation to the Plaintiff. [ 21 ] The Statement of Claim fails, in particular, to set out a concise statement of material facts as required by Rule 174.

As stated by Justice Donald Rennie in Mancuso v Canada (National Health and Welfare) , 2015 FCA 227 at paragraphs 16-17 : [16] It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought.

As the judge noted “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action.” [17] The latter part of this requirement – sufficient material facts – is the foundation of a proper pleading. If a court allowed parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues.

The proper pleading of a statement of claim is necessary for a defendant to prepare a statement of defence. Material facts frame the discovery process and allow counsel to advise their clients, to prepare their case and to map a trial strategy. Importantly, the pleadings establish the parameters of relevancy of evidence at discovery and trial. [ 22 ] I find the allegations made in the Statement of Claim to be completely disjointed and at times incomprehensible.

The Plaintiff makes bald and/or gratuitous allegations of wrongdoing by CSC employees, such as making false statements, acting with malice and or unlawfully. He also takes issue with various decisions issued by the PBC over the years. In many instances, the Plaintiff merely asserts rights without claiming any specific relief from the Defendants. [ 23 ] By way of example, the Plaintiff claims that the denial of his parole breached his sections 7, 9, and 12 Charter rights; however, these are mere conclusory statements. The Plaintiff fails to make the connection between materials facts and the applicable law.

The Defendants cannot be left to speculate as to how the facts might be variously arranged to support the Plaintiff’s allegations of a Charter

breach. A plaintiff who relies on the Charter must plead sufficient material facts to satisfy the criteria applicable to the provision they allege was violated: Van Sluytman v Canada , 2022 FC 545 at para 25 . [ 24 ] Furthermore, all of the Plaintiff’s claims against the PBC, regardless of their timing, are bound to fail.

Section 154 of the Corrections and Conditional Release Act , SC 1992, c 20 grants PBC members immunity from civil proceedings for “anything done or said in good faith in the exercise or purported exercise of the functions of a member of the Board under this or any other Act of Parliament.” The Plaintiff has not pled bad faith, as “[w]hen pleading bad faith or abuse of power, it is not enough to assert, baldly, conclusory phrases”: Merchant Law Group v.

Canada Revenue Agency , 2010 FCA 184 at para 34 . [ 25 ] Being substantially in agreement with the written representations filed on behalf of the Defendants, I conclude that it is plain and obvious that the Statement of Claim discloses no reasonable cause of action and should therefore be struck out, without leave to amend. C. Frivolous and Vexatious [ 26 ] Beyond failing to disclose a reasonable cause of action, the pleading is fundamentally frivolous and vexatious.

As in Ceminchuk , the present simplified action is a virtually unmanageable proceeding both from the point of view of the Defendants to be able to plead intelligently to as it fails to define the issues or give fair notice of the case to be met, and from the point of view of the Court as it would be practicably impossible to oversee or control. As such, I would have struck out the pleading on this ground as well. IV.

Conclusion [ 27 ] For the above reasons, I conclude that the Statement of Claim should be struck, without leave to amend. [ 28 ] As for costs of the motion, I see no reason to deviate from the general rule that costs should follow the event. Previous findings from this Court have not dissuaded the Plaintiff from instituting unmeritorious proceedings. To the contrary, despite previous pleadings being struck with clear reasons for doing so being provided by this Court, the Plaintiff has persisted in futilely tilting at windmills .

A clear message needs to be given to the Plaintiff that there are cost consequences for abusing this Court’s process. Costs in the amount of $500.00 shall accordingly be awarded in favour of the Defendants. ORDER IN T-1682-23 THIS COURT ORDERS that: 1 . The Defendants’ motion to strike is granted. 2 . The Statement of Claim is struck out, without leave to amend. 3 . The action is dismissed. 4 . The Plaintiff shall pay to the Defendants their costs of the motion, hereby fixed in the amount of $500.00, inclusive of disbursements and taxes. B “Roger R.

Lafrenière" blank Judge FEDERAL COURT SOLICITORS OF RECORD Docket: T-1682-23 STYLE OF CAUSE: PAUL BURKE v CORRECTIONS CANADA AND PAROLE BOARD OF CANADA MOTION IN WRITING CONSIDERED AT VANCOUVER, BRITISH COLUMBIA PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES order AND REASONS: LAFRENIÈRE J. DATED: OCTOBER 10, 2023 WRITTEN REPRESENTATIONS BY: Paul Burke For The PLAINTIFF (ON HIS OWN BEHALF)

Benjamin Bertram FOR THE DEFENDANTS CORRECTIONS SERVICES OF CANADA AND PAROLE BOARD OF CANADA SOLICITORS OF RECORD : Attorney General of Canada Vancouver, British Columbia FOR THE DEFENDANTS CORRECTIONS SERVICES OF CANADA AND PAROLE BOARD OF CANADA