2013 ONSC 7065, 2013 ONSC 7065

CITATION : Abernethy v. Attorney General (Canada) et al, 2013 ONSC 7065 LINDSAY COURT FILE NO.: 125/12 DATE: 20131114 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Joan Abernethy, Plaintiff AND: Attorney General of Canada and Her Majesty the Queen in Right of Ontario as represented by Crown Attorney’s (Justice) James A. Ramsay, Ron Davidson, Jennifer Broderick and Lucas O’Neill, Kathryn (Kathy) Rippy, and Gerry McNeilly and St. Joseph’s Healthcare (Hamilton) Director, East Region Mental Health Services, Judith Santone, Defendants BEFORE: Gunsolus, J.

Joan Abernethy, appearing in person Jim Kapches, Counsel, for the Defendant/Moving Party, Attorney General of Canada No other party appeared or took a position in relation to this matter. HEARD: November 12, 2013 ENDORSEMENT Nature of the Motion [ 1 ] The defendant, the Attorney General of Canada, brings this motion for an order striking out the Statement of Claim [1] as against Canada, without leave to amend, on the basis that: (

i) The claim discloses no reasonable cause of action; and (ii) The claim fails to plead material facts or particulars and, as a result, is an abuse of this court’s process. Background [ 2 ] In her claim, the plaintiff seeks $8,400,000 in damages from Canada, a number of defendants falling under the umbrella of Her Majesty the Queen in Right of Ontario and the Director of St.

Joseph’s Healthcare in Hamilton, Ontario for a large number of alleged torts and alleged statutory breaches. [ 3 ] In relation to the Attorney General of Canada, the plaintiff has pled that her Majesty the Queen in Right of Canada, as represented by the Attorney General of Canada is “the employer of all government officials and staff, including police officers, Crown Attorneys, Ministry agents.

Canada is subject to all the obligations, duties and liabilities the Crown has or owes to citizens of Canada.” [ 4 ] It is further alleged that Canada is liable for “misfeasance in public office, breach of public office, assault, false arrest, false imprisonment, fabricating evidence, conspiracy, obstruction of justice, intentional infliction of mental distress, intentional violations of the Charter, intentional violations of the Human Rights Act, intentional violations of the Canadian Bill of Rights and negligence.” Finally, the plaintiff alleges that she was ill-treated by provincial Crown agents “because the federal government expected them to institute

interpretations of legislation that blamed victims, especially women, for certain politically and/or ideologically motivated criminal activities and to aid in the administration of justice accordingly.” [2] [ 5 ] To quote from paragraph 70 of the Statement of Claim, it is pled, amongst other things: …One police officer told the plaintiff police treated her as they did, neglecting to assist her as a victim of crime, blaming the crimes on her, fabricating evidence and official records, conspiracy to harm her, because “it serves the public good”.

Another police officer touched his gun and told the plaintiff “you have to live with him” about the man who told the plaintiff “I worship Hitler for killing people like you” and “they are going to explode you in your car”.

[ 6 ] This, the claim references, as being attributable to a police officer who cited the rationale for Canada’s practice/policy of the appeasement of ideologically motivated criminal activity including the blaming of victims “for certain politically and/or ideologically motivated criminal activities and to aid in the administrative justice accordingly .” It is this “conspiracy” and “fabrication of evidence” that apparently the plaintiff would like to resolve “generally”.

The Law [ 7 ] Rule 25.06(1) provides that every pleading shall contain a concise statement of the material facts on which the party relies for the claim. When intent, malice and breach of trust are relied upon, Rule 25.06(8) requires that the plaintiff set out full particulars. [3] [ 8 ] Rule 25.11 allows this court to strike out a pleading on the basis that it: (

a) May prejudice or delay the fair trial of the action; (

b) Is scandalous, frivolous or vexatious; or (

c) Is an abuse of the process of the court. [4] [ 9 ] Rule 21.01(1)(

b) provides that a claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. [5] [ 10 ] The principles to be applied to such motions are summarized as follows: (

i) In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping dimension underlies rule 21; (ii) If the cause of action pleaded has been recognized, all of its essential elements must be pleaded; (iii) If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed; (iv) The claim should not be struck merely because it is novel; (

v) Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion; (vi) The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading; (vii) No evidence is admissible on such a motion; (viii) The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies; [ 11 ] It is clear that the Federal Crown (Canada) may be held liable in respect of torts committed by a servant of the Federal Crown, but proceedings of this nature will not succeed unless the Crown servant’s act or omission is independently actionable. [6] [ 12 ] It has long been a principle in Canadian law that each province is a separate legal entity from each other and distinct from the Federal Government.

This separation is reflected by the fact that each has a separate treasury, property, employees, courts and sets of law to administer. [7] Reasons [ 13 ] This motion was brought by the Attorney General of Canada, pursuant to, inter alia , Rule 21.01(1)(

b) of the Rules of Civil Procedure which provides: A party may move before a judge: (

b) to strike out pleadings on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly. [ 14 ] For the Attorney General of Canada’s motion to succeed, it must show that it is “plain and obvious” that the claim cannot succeed based upon meeting the test where: (

a) The plaintiff pleads allegations that do not give rise to a recognized cause of action; (

b) The plaintiff fails to pled a necessary element of a recognized cause of action; or

(

c) The allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where, in other circumstances, mere conclusions of law are asserted. [ 15 ] A careful review of paragraphs 10, 19, 70.1, 70.2, 70.3, 70.4 and 70.5 of the Statement of Claim wherein the plaintiff is alleging that the Federal Crown is the employer of all government officials and staff, including provincial officials and staff; alleging against the defendant Canada misfeasance in public office, breach of trust, assault, false arrest and so on, and vicarious liability by the Attorney General of Canada for the alleged actions of provincial officers and employees are, extremely vague, entirely speculative and they are “bald allegations without material facts set out therein.

Missing is the: who, what, when and where given the basis for the allegations made”. [8] [ 16 ] The plaintiff has set out vague causes of action in her Statement of Claim, but missing are material facts she claims give rise to the causes of action she has pled. [ 17 ] Rule 25.06(1) of the Rules of Civil Procedure provides that: Every pleading shall contain a concise statement of the material facts on which the party relies for the claim and defence, but not the evidence by which those facts are to be proved . [ 18 ] While the Statement of Claim may not be required to state the actual evidence upon which those claims might be proved, Rule 25.06 requires, in the very least, a minimum level of material facts.

The remedy when such a minimum level of fact is not disclosed requires that the pleading be struck. [9] [ 19 ] For example, there are no material facts pled that implicate a Federal Crown servant.

Further, the plaintiff has not pled how Canada was misfeasant in public office, nor how Canada committed a breach of trust, an assault, falsely arrested or falsely imprisoned the plaintiff. [ 20 ] Further, the plaintiff has not pled evidence as to how Canada fabricated evidence, conspired, obstructed justice, intentionally inflicted mental distress, intentionally violated her Charter rights and so on. [ 21 ] Finally, the plaintiff has not pled what duty was owed to her, or how the Federal Crown fell below the standard of care that she alleges was owed to her nor now such a duty was breached, nor how such a breach caused her damages. [ 22 ] In this matter before me, the Statement of Claim does not set out any material fact as it relates to the Attorney General of Canada, let alone a minimum level of material fact.

As such, in relation to the Federal Crown, the claims cannot succeed. [10] [ 23 ] As suggested by Mr. Kapches on behalf of the Attorney General of Canada, it would be next to impossible for the Federal Crown to respond to the allegations as set out in the statement of claim, which lacks the material facts upon which the plaintiff relies. Conclusion [ 24 ] Having read the Statement of Claim generously in favour of the plaintiff, with allowance for drafting deficiencies [11] , in relation to Her Majesty the Queen in Right of Canada and the Attorney General for Canada, I find:

(1) The Statement of Claim discloses no reasonable cause of action;

(2) No material facts upon which the plaintiff relies have been pled;

(3) The plaintiff has set out bald conclusions as against Her Majesty the Queen in Right of Canada and the Attorney General for Canada without setting out any facts to support those bald conclusions;

(4) The plaintiff has failed to plead and particulars of the allegations set out in her Statement of Claim as against Her Majesty the Queen in Right of Canada and the Attorney General for Canada, and as such, she as disclosed no reasonable cause of action;

(5) The Statement of Claim fails to specify a factual or legal relationship between the plaintiff and Her Majesty the Queen in Right of Canada and the Attorney General for Canada, let alone who, on behalf of the Federal Crown she claims perpetrated wrongs or conduct by such undisclosed persons that could give rise to liability in favour of the plaintiff;

(6) The plaintiff discloses no causal connection in her claims as between herself and Her Majesty the Queen in Right of Canada and the Attorney General for Canada; and, finally

(7) The action is frivolous and vexatious as it reflects a complete absence of material facts. [12] [ 25 ] As argued by Mr. Kapches, Ontario is not a Federal Crown servant, nor are Ontario’s employees servants of the Federal Crown. The Statement of Claim does not disclose a specific act or omission by a servant of Ontario that could possibly give rise to Federal civil liability. [ 26 ] Finally, the plaintiff has not pled acts or omissions of servants or employees of the Attorney General of Canada that could give rise to liability.

To that end, it is “plain and obvious” that Canada could not be held liable for the actions of its own or of Ontario’s servants and employees, nor could Canada be found vicariously liable for the allegations made by the plaintiff against Her Majesty the Queen in Right of Ontario. [ 27 ] The plaintiff has asked that she be permitted to amend her Statement of Claim a third time in relation to the Attorney General of Canada.

As she said, she “wants to get to the bottom of this”, referring to the “targeting and conspiracy and fabricating of evidence at that level.” I agree with counsel for the Attorney General of Canada that in this case, it is appropriate to strike the claim as against the Attorney General of Canada. Pleadings are not meant to be a “moving target” and I have not been convinced by the plaintiff that a

further amendment would result in the pleading of material facts or particulars in this matter. [ 28 ] It is important to note that I have granted this relief only as against the Attorney General of Canada and Her Majesty the Queen in Right of Canada. This decision in no way affects the plaintiff’s claims as against all other defendants. Order [ 29 ] Paragraphs 10, 19, 70.1, 70.2, 70.3, 70.4 and 70.5 of the Statement of Claim shall be struck, without leave to amend; [ 30 ] The action, as against Her Majesty the Queen in Right of Canada and the Attorney General of Canada shall be dismissed.

Costs [ 31 ] The plaintiff and defendant both agreed that the appropriate quantum of costs in favour of the successful party would be the amount of $500. I therefore, as agreed, order that the plaintiff, Joan Abernethy, pay to the defendant, Attorney General for Canada, the amount of $500, which amount shall be payable forthwith. “Mr. Justice D.S. Gunsolus” Date: November 14, 2013