2023 FC, 2023 FC 1220

Date: 20230911 Docket: T-200-23 Citation: 2023 FC 1220 Ottawa, Ontario, September 11, 2023 PRESENT: The Honourable Mr.

Justice Gleeson BETWEEN: OUTHONESAVAN BOUNPRASEUTH Plaintiff/ Responding Party and HIS MAJESTY THE KING IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, YORK UNIVERSITY Defendants/ Moving Parties REASONS AND ORDER [ 1 ] This Motion in writing brought pursuant to Rule 369 of the Federal Courts Rules , SOR/98-106 [ Rules ] by the Defendants, His Majesty the King in Right of Canada and the Attorney General of Canada [Canada], filed May 11, 2023, seeks an Order striking the Statement of Claim against Canada without leave to amend and dismiss the action against Canada with costs pursuant to Rule 221(1) of the Rules . [ 2 ] I have reviewed and considered the parties’ motion records and written submissions including the Plaintiff’s responding factum filed May 19, 2023 and Canada’s reply submissions filed May 25, 2023.

I. The Statement of Claim [ 3 ] The Plaintiff formerly attended York University [York] as a student. In May 2012, he commenced an action against York in the Ontario Superior Court of Justice relating to his graduation and alleging claims in tort and contract [Prior Action]. [ 4 ] In February 2013, the Prior Action was struck on the basis that it was statute barred and disclosed no reasonable cause of action. An Appeal was dismissed, and on May 21, 2015, the Plaintiff’s application for leave to appeal to the Supreme Court of Canada was also dismissed.

A complaint initiated before the Human Rights Tribunal of Ontario was dismissed in March 2016. [ 5 ] On January 27, 2023, the Plaintiff - representing himself at the time - filed a Statement of Claim in this Court [Current Action], alleging that Canada’s failure to provide the Plaintiff with access to fair justice against York through mediation or a fair trial in the Prior Action amounts to a breach of its duty to the Plaintiff and a breach of paragraph 2 (

e) of the Canadian Bill of Rights , SC 1960, c 44 [ Bill of Rights ] and

section 7 of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]. The Plaintiff further alleges that numerous members of the Canadian judiciary lacked fair judgment, acted in a discriminatory manner, abused their power and erred in fact and law when considering the Prior Action at both the trial and appeal levels. The Plaintiff seeks: A . Declarations stating that Canada violated several statues by not providing the Plaintiff with access to mediation or a trail for the Prior Action, which resulted in damage to the Plaintiff’s life and career (in consideration of sections 2 and 7 of the Charter ); B .

To obtain $7,000,000 in compensatory, punitive and aggravated damages for Crown liability in accordance with subparagraph 3 (b) (

i) of the Crown Liability and Proceedings Act, RSC 1985, c C-50 [ CLPA ]; C . The right to question the “Court” and York about other cases similar to the Prior Action; and D . That Canada be required to assist the Plaintiff in pursuing “fair justice” in the Prior Action, including by: i. Assessing “the merit of his claim”; ii. Communicating with York and its counsel; iii. Ensuring that a resolution is attained, or alternatively, that a mediation or trial occur between the Plaintiff and York. [ 6 ] In written submissions, Canada has helpfully summarized the Plaintiff’s allegations as set out in the Statement of Claim in chart form. I have attached a version of the chart as

Schedule “A” to this Order. II. Issues [ 7 ] The motion raises the following issues:

A . Should the claim be struck because it discloses no reasonable cause of action is an abuse of process and raises no matter that is within the jurisdiction of the Court? B . If the answer to issue A is yes, are the defects in the claim such that they cannot be cured by amendment? III. The Law A.

General [ 8 ] The law governing a motion to strike aims to balance the interests of a plaintiff in having their " “day in court” " against the interest in avoiding burdening the parties and the court system with claims that have no chance of success ( Fitzpatrick v Codiac Regional RCMP Force, District 12 , 2019 FC 1040 at para 14 ). The Court’s authority to strike a claim is not to be exercised lightly ( R v Imperial Tobacco Canada Ltd , 2011 SCC 42 , at paras 21-22 [ Imperial Tobacco ] ). B.

Rule 221 of the Rules [ 9 ] Rule 221 sets out the framework that is to be applied when considering a motion to strike: " Motion to strike " " 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, " " (

b) is immaterial or redundant, " " (

c) is scandalous, frivolous or vexatious, " " (

d) may prejudice or delay the fair trial of the action, " " (

e) constitutes a departure from a previous pleading, or " " (

f) is otherwise an abuse of the process of the Court, " " and may order the action be dismissed or judgment entered accordingly. " " Evidence " "

(2) No evidence shall be heard on a motion for an order under paragraph (1)(a). " " Requête en radiation " " 221

(1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou

partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : " "

a) qu’il ne révèle aucune cause d’action ou de défense valable; " "

b) qu’il n’est pas pertinent ou qu’il est redondant; " "

c) qu’il est scandaleux, frivole ou vexatoire; " "

d) qu’il risque de nuire à l’instruction équitable de l’action ou de la retarder; " "

e) qu’il diverge d’un acte de procédure antérieur; " "

f) qu’il constitue autrement un abus de procédure. " " Elle peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en conséquence. " " Preuve " "

(2) Aucune preuve n’est admissible dans le cadre d’une requête invoquant le motif visé à l’alinéa (1)a). " [ 10 ] A claim will only be struck under Rule 221(1)(

a) where it is plain and obvious that the facts as pled fail to disclose a reasonable cause of action ( Feeney v Canada , 2022 FCA 190 at para 8 ). [ 11 ] The following principles are relevant when considering a motion to strike: A . The moving party bears the burden of demonstrating that the claim has no reasonable chance of succeeding ( Imperial Tobacco at para 25 ); B . Where it is alleged that the claim discloses no cause of action, the Court must assume that the facts pled are true ( Rebello v Canada (Justice) , 2023 FCA 67 at para 4 , citing Imperial Tobacco at para 17 ); C .

A pleading must disclose material facts, rather than bald allegations. As stated in Mancuso v Canada (National Health and Welfare) , 2015 FCA 227 at para 19 [ Mancuso ] , " “[t]he plaintiff must plead, in

summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised ” " (see also Mancuso at para 16 ); D . A plaintiff must plead the facts relied upon in advancing a claim. A plaintiff cannot rely on the possibility that new facts may come to light as the case advances. The facts as pled are the basis upon which the claim’s possibility of success is to be evaluated ( Imperial Tobacco at para 22 );

E. Allegations based on assumptions and speculation, bare allegations, factual allegations that are scandalous, frivolous or vexatious,or legal submissions dressed up as factual allegations need not be accepted as true or accepted at face value (Templanza v Canada,2021 FC 689, at para 14, citing Carten v Canada, 2009 FC 1233 at para 31); and F.

A statement of claim is to be read in a generous manner to accommodate mere drafting deficiencies, particularly when it has beendrafted by a self-represented litigant (Operation Dismantle v The Queen, (SCC), [1985] 1 SCR 441 at paras 14,94; Watts v Canada (Revenue Agency), 2019 FC 1321 at paras 14-15; Lauer v Canada (Attorney General), 2017 FCA 74 at para22).

However, the flexibility a court is prepared to extend to a self-represented litigant does not exempt the litigant from therequirement to plead sufficient material facts in support of a claim (Mancuso at paras 16-17; Zbarsky v Canada, 2022 FC 195 atpara 15; Brauer v Canada, 2021 FCA 198 at para 14). IV. Analysis A. Preliminary matter [12] The Plaintiff’s responding motion record includes the affidavit of Outhonesavan Bounpraseuth (the Plaintiff), sworn on May 19,2023 [May 2023 Affidavit].

Canada submits that the May 2023 Affidavit should not be considered in this Motion. [13] The Rules provide, and it is well established in the jurisprudence, that no evidence shall be heard on a motion seeking to strike onthe grounds that no reasonable cause of action has been pled (Rule 221(2)). The May 2023 Affidavit has therefore not been considered indetermining whether the Statement of Claim discloses a reasonable cause of action. Instead, I have assessed the pleadings as they exist(NOV Downhole Eurasia Limited v TLL Oil Field Consulting, 2014 FC 889 at para 21, aff’d 2015 FCA 106).

However, the May 2023Affidavit has been considered, to the extent that it is relevant, in assessing the issues of jurisdiction and abuse of process (Mil Davie Inc vSociété d'Exploitation et de Développement d'Hibernia Ltée, (FCA) at para 8 [Mil Davie Inc]). B. Position of the Parties [14] The Defendants argue that the Current Claim should be struck as disclosing no reasonable cause of action because: A. Canada is not responsible for the misconduct alleged in the Claim; B.

Material facts have not been pled to establish that Federal Crown servants infringed the Plaintiff’s rights under the Bill of Rights,the Charter, or the common law; C. The alleged misconduct involves York, its servants, or Judges of the Ontario Courts and the Supreme Court of Canada, none ofwhom are Federal Crown servants; and D.

Canada does not have a duty or obligation to aid the Plaintiff in proceeding to mediation or trial in the Prior Action against York,nor does Canada have to assist the Plaintiff in negotiations or settlement discussions related to the matter. [15] The Plaintiff argues that York is a public institution that has benefitted from federal grants evidencing a substantial federal interest inthe functioning of York.

The Plaintiff therefore asserts that Canada has a shared federal responsibility for York’s actions. [16] In reply, Canada objects to the shared responsibility submissions of the Plaintiff, submitting that the argument is raised for the firsttime in response to the Motion to Strike and is not part of the Plaintiff’s pleading. Canada further argues that, even if the sharedresponsibility claim had been pled, the assertion of federal responsibility on the basis that federal grants have been provided to York isboth bald and not supported by the jurisprudence that the Plaintiff relies upon. C.

The Statement of Claim will be struck [17] In the Current Claim, the Plaintiff alleges that: A. York and its employees failed to follow proper rules and procedures in dealing with the Plaintiff and this failure resulted in injuryfor the Plaintiff; B. The Plaintiff has a right to remedies under tort and contract law and the Plaintiff sought to pursue those remedies through the PriorAction; C. The decisions rendered by other courts in respect to the Prior Action were wrong and those decisions have prevented the Plaintifffrom pursuing mediation or proceeding to trial; and D.

Canada has a duty to ensure that the Plaintiff is provided access to mediation or that the Prior Action proceeds to trial. [18] York is incorporated in statute as a University by the Legislature of Ontario. The Provincial Legislature has vested the governmentand management of the institution in a Board of Governors and a Senate (York University Act, 1959, sections 6, 13; York University Act,1965). Consequently, both York and its governance structure are creations of the Provincial Crown. [19] The Plaintiff’s pleadings do not establish a link or connection between the Federal Crown and York.

The Plaintiff’s submissions tothe effect that shared federal responsibility arises as the result of federal grants having been provided to York is not an assertion that hasbeen pled. I also agree with Canada’s position to the effect that, even if the shared responsibility allegation were included as part of the

pleading, it is a bare allegation that is not supported by the facts nor the jurisprudence cited. [20] The test for determining whether this Court has jurisdiction was set out by the Supreme Court of Canada in ITO-Int’l TerminalOperators v Miida Electronics, (SCC), [1986] 1 SCR 752 at 766 [ITO]: There must be a statutory grant of jurisdiction by the federal Parliament. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes thestatutory grant of jurisdiction.

The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act, 1867. [21] Although Canada may be held vicariously liable for the torts committed by Crown Servants, the Statement of Claim asserts a claimfor damages under the CLPA arising from the conduct of York and/or its employees. The facts as pled do not, and cannot, demonstratethat York or its employees and servants are Federal Crown Servants (CLPA para 3(b)(i)).

There is no existing body of federal law tosupport the grant of jurisdiction to the Federal Court. [22] The pleadings are also fundamentally flawed as they relate to the allegations involving members of the Canadian judiciary.Members of the judiciary are not servants of the Crown, nor are they Crown employees.

The Crown bears no liability, vicarious orotherwise, for the conduct of members of the judiciary, a point made clear by the Federal Court of Appeal in Crowe v Canada (AttorneyGeneral), 2008 FCA 298: [24] The pleadings quoted above do not refer to servants of the Crown as such, though they do refer to judges and theCanadian judiciary. Judges are not servants of the Crown. They are not employees of the Federal Government. The principleof judicial independence is a constitutional principle: see Reference re Remuneration of Judges of the Provincial Court ofPrince Edward Island, (SCC), [1997] 3 S.C.R. 3, at para. 106.

Its application requires that judges be, andbe seen to be, free of interference from the government of the day. That independence is incompatible with the status of anemployee. As a result, even if a judge behaves extra-judicially and without jurisdiction, his or her conduct would not engagethe liability of the Federal Government. The motions judge correctly held that the claim against the Federal Governmentmust fail for failure to disclose a reasonable cause of action because, assuming Mr.

Crowe's allegations to be true, they donot engage the liability of the Crown. [Emphasis added.] [23] As in Crowe, even if one were to accept the pleadings as they relate to members of the Canadian judiciary, they do not, and cannot,engage the liability of the Federal Crown. [24] To the extent that the Current Claim also seeks to set aside or challenge prior court orders striking the Prior Claim, it will be struckas an abuse of process pursuant to Rule 221(1)(f).

Seeking to overturn or challenge a prior court order by way of a separate proceedingamounts to an improper collateral attack that is an abuse of process (Toronto (City) v CUPE, Local 79, 2003 SCC 63 at paras 33, 35, 46). [25] The Plaintiff alleges infringement of the Bill of Rights and of his Charter rights, however the Plaintiff has not pled that the allegedbreaches are in respect of matters involving the responsibility of the Federal Crown. [26] The Statement of Claim further alleges that Canada has the general duty or obligation to ensure that the Plaintiff’s Prior Actionproceeds to trial or mediation, but pleads no facts and cites no relevant jurisprudence to demonstrate the alleged duty.

The Plaintiff’sgeneralized references to the Charter are unsupported by facts and the jurisprudence cited is readily distinguishable. [27] The Current Claim does not disclose facts or jurisprudence in support of the assertion that the Federal Courts Act, RSC 1985, c F-7or some other federal statute grants this Court jurisdiction to consider the allegations advanced in the Current Action. As a result, it isplain and obvious that jurisdiction is lacking and the pleading should be struck (Mil Davie Inc at para 8; ITO at 766). D.

Should the Plaintiff be granted leave to amend? [28] In striking a claim, Rule 221 requires that the Court consider whether leave should be given to amend the claim. [29] To strike a pleading without leave to amend, the defects in the pleading must be such that they cannot be cured by way ofamendment (Simon v Canada, 2011 FCA 6 at paras 8, 14). [30] The defects outlined above go to the very core of the Plaintiff’s claim and by their very nature cannot be cured by way ofamendment. V.

Conclusion [31] The Statement of Claim is struck without leave to amend. [32] In keeping with the general rule, Canada, as the successful party, shall have their costs. Canada seeks costs in the fixed amount of$500. Having considered the issues raised and the complexity of the matter, I am satisfied that $500, inclusive of all disbursements andtaxes, is an appropriate amount. ORDER IN T-200-23

ORDER IN T-200-23 THIS COURT ORDERS that : 1. The motion to strike the Statement of Claim without leave to amend is granted. 2. The Defendants, His Majesty the King in Right of Canada and the Attorney General of Canada, are awarded $500.00 in costs, inclusive of all disbursements and taxes. 3 . blank “Patrick Gleeson” blank Judge

Schedule “A”

Summary – Statement of Claim Allegations Alleged Conduct Alleged Actor(

s) Right(s)/Principle(

s) Alleged at Issue Paragraph(

s) in Claim Dismissing the Prior Action without leave to amend the pleading Honourable Justice E. Ria Tzimas (Superior Court of Justice (“Tzimas J.”) Error of fact and law; failure to consider the Plaintiff’s factum and affidavit; denial of justice 5; 12-14; 18; 46-48;53; 55 - Honourable Justice David H. Doherty - Honourable Justice C.

William Hourigan (Ontario Court of Appeal) (together, “ONCA Judges”) Error of fact and law 15-18; 410 47-48; 53; 55 Dismissing the application for leave to appeal in the prior action Honourable Justice Marshall Rothstein -Honourable Justice Thomas Albert Cromwell - Honourable Justice Michael J. Moldaver (Supreme Court of Canada) (together, “SCC Judges”) Error of fact and law; failure to consider the Plaintiff’s memorandum and amended statement of claim 5; 20-21; 53; 55 Judicial bias Tzimas J.

Lack of fair judgement or abuse of power; discrimination 23; 30 ONCA Judges Lack of fair judgement or abuse of power; discrimination 23; 30 SCC Judges Fair justice; lack of fair judgement or abuse of power; discrimination 1(a)(iii); 20-21; 23; 30 Failure to ensure the prior action proceeded to mediation or fair trial Crown Charter s. 7 ; rule of law and equity; audi alteram partem; the right to proceed to trial 1(a)(ii)(iii); 6 Tzimas J.

Natural justice; justice; fair justice; constitutional right; breach of duty; rules of law; Courts of Justice Act , s. 96 7; 10; 14; 18; 23; 30; 32; 38-40 ONCA Judges Justice; fair justice; constitutional right; error of law; Courts of Justice Act , s. 96; lack of jurisdiction 10; 16; 18; 23; 30; 32; 38-40; 42; 44

SCC Judges Natural justice; justice; fair justice; constitutional right; breach of duty; rules of law; Courts of Justice Act , s. 96 7; 10; 23; 30; 32; 38-40 Misconduct alleged in the prior action YU and its servants Law of torts and contracts 1(b); 2(c); 9; 24; 26; 39; 51; 54 FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-200-23 STYLE OF CAUSE: OUTHONESAVAN BOUNPRASEUTH v HIS MAJESTY THE KING IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, YORK UNIVERSITY MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES REASONS and order: GLEESON J.

DATED: September 11, 2023 WRITTEN REPRESENTATIONS BY : Rizwana Fathima Nazar For The Plaintiff/ RESPONDING PARTY Adam Karakolis For The Defendants his majesty the king in right of canada the attorney general of canada/ MOVING PARTIES SOLICITORS OF RECORD : Rizwana Fathima Nazar Barrister and Solicitor Brampton, Ontario For The Plaintiff/ RESPONDING PARTY Attorney General of Canada Toronto, Ontario For The Defendants his majesty the king in right of canada the attorney general of canada / MOVING PARTIES