Court File and Parties
Court File No.: CV-16-552993 Date: 2017-03-15 Superior Court of Justice - Ontario
Re: Althea Reyes, Plaintiff And: Meghan Scott, Defendant
Before: Pollak J.
Counsel: Althea Reyes, self-represented Plaintiff Domenico Polla, for the Defendant
Heard: February 9, 2017
Endorsement
[1] The Defendant, Meghan Scott, moves for an order striking out the statement of claim without leave to amend and an order dismissing the action pursuant to Rules 21.01 and 25 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"). The Defendant is a Crown Attorney who was assigned to prosecute charges against the Plaintiff, Althea Reyes, in previous proceedings in the Ontario Court of Justice. The Plaintiff claims damages for defamation for statements made during those court proceedings.
[2] The Defendant relies on the following grounds, as stated in her factum:
a. The Defendant has been improperly named - it is plain and obvious that the Defendant was at all material times performing or purporting to perform her duties as a Crown Attorney. Pursuant to s. 8 of the Ministry of the Attorney General Act ("MAG Act"), and thus by operation of law, the Plaintiff is prohibited from naming the Defendant personally in these proceedings. Although the Attorney General for Ontario stands in place as the proper defendant, the Plaintiff has also failed to serve the requisite notice of claim pursuant to the Proceedings Against the Crown Act ("PACA") rendering the action a nullity;
b. The statement of claim fails to plead the elements of a claim in defamation and contains mere bald allegations - the statement of claim fails to meet the stringent pleadings requirements in an action for defamation and contains mere bald and conclusory allegations without setting out the required material facts in support of the claims asserted;
c. The alleged defamatory statements are privileged and as such, the claim has no reasonable prospect of success - to the extent the allegations can be deciphered, the alleged defamatory incidents all relate to statements the Defendant made either in open court, as admitted by the Plaintiff in certain portions of the statement of claim, or during the ordinary course of proceedings before the Ontario Court of Justice. As a result, it is plain and obvious that the statements are protected by absolute privilege and the action cannot succeed; and
d. The action is in any event frivolous, vexatious and an abuse of process - the Plaintiff is a declared vexatious litigant. Given the nature of the allegations and the relationship between the parties, the Defendant respectfully submits it is clear this action is a continuation of the Plaintiffs vexatious behaviour and the action is retaliatory in nature, which is an abuse of this Court's process.
[Emphasis in original. Footnotes omitted.]
[3] The Defendant submits, in her factum, that the issues on this motion are:
a. whether the Defendant can be named personally in this action;
b. whether the statement of claim should be struck out on the basis that it fails to disclose a cause of action;
c. whether the action is frivolous, vexatious and an abuse of process; and
d. whether leave to amend any part of the claim should be permitted.
[4] The Defendant relies on Rule 21.01(3)(b) of the Rules to have this action dismissed because she lacks the capacity to be sued.
[5] Rule 21.01(3) provides that:
A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued[.]
[6] The Defendant is a Crown Attorney. The Defendant submits that s. 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17 (“MAG Act”) prohibits any action by a person, who was the subject of a prosecution, against a Crown Attorney acting in the performance or purported performance of their duties. The section states:
(1) No action or other proceeding for damages shall be commenced by a person who is or was the subject of a prosecution, in respect of any act done or omitted to be done in the performance or purported performance of a duty or authority in relation to the prosecution, against any of the following:
A Crown Attorney, Deputy Crown Attorney or assistant Crown Attorney appointed under the Crown Attorneys Act.
(2) An action or other proceeding described in subsection (1) may be commenced against the Attorney General by a person who is or was the subject of a prosecution and, for the purpose, the Attorney General stands in the place of the person against whom the action or other proceeding would have been brought but for that subsection, and may be found liable in his or her stead.
[7] The Defendant submits that the Attorney General for Ontario would have been the proper defendant in this case.
[8] The Defendant also argues that the statement of claim pleads that the Defendant is a Crown Attorney at College Park in Toronto and that the actions of the Defendant were done in the course of judicial proceedings. No material facts have been pleaded to allege that the Defendant had any other personal relationship with the Plaintiff. The Defendant submits that it is therefore plain and obvious that the Defendant was acting in the performance or purported performance of her duties as a Crown and that legal action against her is prohibited.
[9] The Defendant submits that the Plaintiff’s pleading at paragraph 12 of her claim that the Defendant's actions were "personal" in nature, or that they were "unreasonable" or "unexpected" does not alter the fact that the acts were done in the performance of the Crown's duties in relation to a prosecution.
[10] Further, the Defendant submits that the statement of claim cannot be amended to substitute the proper defendant, the Attorney General for Ontario. The Plaintiff did not give proper notice of the action as required by s. 7 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 ("PACA") and subsection 8(5) of the MAG Act. The Defendant cites Mark Thompson v. Attorney General of Ontario, 2014 ONSC 3458, at paras. 20-24, which found that a claim against the Attorney General of Ontario was a nullity because the required notice under these Acts was not provided.
[11] The Defendant relies on Rules 21.01(1)(a) and (b) to request a determination of law and to strike out the pleadings on the grounds that they disclose no reasonable cause of action. Rule 21.01(1) states that:
A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
[12] I accept all of these submissions made by the Defendant and find that on the basis of these arguments, it is plain and obvious that the claim cannot succeed and that the claim has no reasonable prospect of success.
[13] Further, I am of the view that leave to amend should be denied. No amendment can cure the fact that the Defendant cannot be sued in her personal capacity and that the action was commenced without a notice of claim being served on the Crown.
[14] On the basis of these findings, it is not necessary for this Court to consider the alternate grounds advanced by the Defendant.
[15] For the above-noted reasons, an order striking the statement of claim without leave to amend and dismissing the action is granted.
Costs
[16] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendant’s submissions are to be delivered to the Court and the Plaintiff by 12:00 p.m. on March 24, 2017, and the Plaintiff’s submissions are to be delivered to the Court and the Defendant by 12:00 p.m. on March 31, 2017. Any reply submissions are to be delivered by 12:00 p.m. on April 7, 2017.