Court File and Parties

COURT FILE NO.: CV-22-00683264-0000 CV-22-00683407-0000 DATE: 20230213 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DONALD JAMESON WHITEHEAD, Plaintiff AND: ATTORNEY GENERAL OF ONTARIO and ATTORNEY GENERAL OF CANADA, Defendants

AND RE: DONALD JAMESON WHITEHEAD, Applicant AND: ATTORNEY GENERAL OF ONTARIO and ATTORNEY GENERAL OF CANADA, Respondents

BEFORE: VERMETTE J.

COUNSEL: Donald Jameson Whitehead, self-represented Mariam Gagi, for the Defendant Attorney General of Ontario James Schneider, for the Defendant Attorney General of Canada

HEARD: November 18, 2022

Endorsement

[1] The defendant Attorney General of Ontario (“AGO”) moves in the action Court File No. CV-22-00683264-0000 (“Action”) for an order pursuant to Rule 21.01(1) of the Rules of Civil Procedure dismissing the plaintiff’s claim without leave to amend. The AGO also moves in the application Court File No. CV-22-00683407-0000 (“Application”) for an order pursuant to Rules 21.01(3(d) and 25.11 of the Rules of Civil Procedure dismissing the Application without leave to amend.

[2] The defendant Attorney General of Canada (“AGC”) moves for: (a) an order consolidating the Action and the Application, and (b) an order striking out all pleadings against the AGC with no leave to amend on the ground that they disclose no reasonable cause of action. At the hearing, counsel for the AGC confirmed that he had no issue with the approach proposed by the AGO (i.e. striking out the claims in both the Action and the Application), which is slightly different from the approach proposed by the AGC (i.e. consolidating the two proceedings before striking out the consolidated proceeding).

[3] The plaintiff/applicant, Donald Jameson Whitehead (“Plaintiff”), is self-represented and did not file any materials in response to the motions. However, he made submissions at the hearing.

A. The Action

[4] The Statement of Claim in the Action was issued on June 28, 2022. In it, the Plaintiff claims punitive damages in the amount of $1 million and “nominal damages” in the amount of $25 million.

[5] The following is a summary of the allegations in the Statement of Claim:

a. On January 10, 2014, the Plaintiff had an epileptic seizure. He was apprehended and detained by Durham Regional Police Services. He was subsequently taken to Lakeridge Health Oshawa for medical assessment, and was misdiagnosed by a psychiatrist and put in restraints (straight jacket). b. The Plaintiff was transferred to Ontario Shores Mental Health Sciences Centre where he underwent cruel and unusual treatment. c. The Plaintiff was later transferred to Central East Correctional Centre (“CECC”) where there were occurrences of segregation and where the Plaintiff was forced to take medications from CECC staff lacking the knowledge of such medications and procedures. The medications were not current with the medication regime prescribed by the Plaintiff’s neurology team from Toronto Western Hospital. d. After being detained and incarcerated, the Plaintiff suffered at the hands of the Crown Attorney and courts in Cobourg. e. The Plaintiff was not afforded due process and habeas corpus. There were no hearings and only a false charge laid and pressed, with an unnecessary mental health assessment. f. Between March 21 and 30, 2015, the Plaintiff was falsely imprisoned due to an alleged breach of recognizance that could not be held up in the courts. There were occurrences of segregation for seven consecutive days and the Plaintiff was forced to take medications from CECC staff lacking the knowledge of such medications and procedures. The medications were also not current with the medication regime prescribed by the Plaintiff’s neurology team. g. In the summer months of 2015, the Plaintiff was arrested by Toronto Police Services and then detained at Toronto South Detention Centre (“TSDC”) for a number of charges. While under the supervision of TSDC staff, the Plaintiff was forced to take a number of medications that were previously prescribed by physicians at Toronto Western Hospital. During his detention, he was subjected to a number of instances of cruel and unusual punishments, including administrative segregation and a shackled transfer to St. Joseph’s Hospital for medical assessment. The Plaintiff was also denied due process, requests for a change of lawyer/duty counsel, and requests for a criminal appeal. h. The Plaintiff was transferred from TSDC to Ontario Shores Mental Health Sciences Centre “for further punishment deemed necessary (due to the lack of appropriate processing through mental health courts) by the Crown Attorney’s office of College Park Courts.” i. The Plaintiff was subjected to unjust detainment and wrongfully detained or arrested. He pleads that this was an infringement of his rights under the Canadian Charter of Rights and Freedoms (“Charter”), including rights in sections 2(a), (b), (c) and (d), 7, 8, 9, 10(a), (b) and (c), 11(a), (b), (d) and (g), 12 and 15(1). The Plaintiff also alleges infringements of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (“CLPA”).

[6] The Plaintiff pleads the following regarding the liability of the Defendants:

The Plaintiff(s) pleads that the cruel, unjustly, unusual treatment, and unusual punishment was caused and/or contributed to by the negligence and misfeasance of the defendant(s) “Ontario” and “Canada”, for whose negligence and misfeasance the defendant(s) “Ontario” and “Canada” are liable, the particulars of which include, but are not limited to, the following:

a. Failure to properly follow the procedure on how to handle a disabled person; b. Failure to maintain proper intake process of the disabled person c. Failure to adhere to legislation. d. Abuse of powers, duties, and trusts; e. Breach of trust; f. Breach of duties and powers g. Breach of Criminal Code h. Failure to adhere and follow the mandate of Court of Justice Act i. Breach and Infringement of Judicial powers and trust j. Breach and infringement of Canadian Charter of Rights and Freedom k. Failure to exercise judicial due process; l. Such other negligence and misfeasance as at this time may be in the sole knowledge of the defendant.

As a result of the negligence and misfeasance of the defendant(s) “Ontario” and “Canada” the plaintiff’s [sic] experienced and suffered a torturous and inhumane experience at [Ontario Shores Mental Health Sciences Centre] the plaintiff was mishandled and misrepresented by the Consent and Capacity Board of Ontario leading to further cruel and unusual punishment and/or treatment.

The plaintiff Mr. Whitehead has suffered greatly from the conduct of the previously mentioned crown attorneys, and government owned and operated institutions and tribunals. As a direct result from the plaintiff solitary confinement, the plaintiff has suffered and continues to suffer from anxiety, depression, suicidal thoughts, and psychological trauma. It is likely that the plaintiff Mr. Whitehead’s conditions will continue to deteriorate as a result of negligence and misfeasance of the defendant(s) “Ontario” and “Canada” and its failure to create and implement policies that allow for the provision of proper care and supervision for prisoners in administrative segregation. As well as failure to perform and failure to adhere to habeas corpus and due process.

[…] The negligence and misfeasance of the defendant(s) “Ontario” and “Canada” the plaintiff falsely imprisoned for accusations that were not proven to the court and has no basis and no fact, only false accusations and presumptuous beliefs on behalf of the crown attorney’s [sic], police, doctors, and judge.

[7] The AGO has delivered a pro forma Statement of Defence dated September 2, 2022 to prevent any noting in default. The AGO denies all of the allegations in the Statement of Claim. In addition:

a. The AGO denies in any way vicarious liability for other Crown servants, agents or employees, other than as provided by the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17 (“Act”). b. The AGO denies any liability for the conduct of the Durham Regional Police Service, Lakeridge Health Oshawa, Ontario Shores Mental Health Sciences Centre, Toronto Police Service or their servants, agents, or employees.

B. The Application

[8] The Notice of Application in the Application was issued two days after the Statement of Claim, i.e. on June 30, 2022. The Plaintiff seeks the same relief in the Notice of Application as he does in the Statement of Claim: punitive damages in the amount of $1 million and “nominal damages” in the amount of $25 million.

[9] For all intents and purposes, the allegations in the Notice of Application are identical to the allegations in the Statement of Claim.

C. Discussion

[10] At the hearing, the Plaintiff agreed to the striking out of the Application and to the striking out of his claims as against the AGC. However, he did not agree to the striking out of his Statement of Claim as against the AGO.

[11] In my view, it is appropriate to strike out the Plaintiff’s claims as against the AGC. The Plaintiff has not mentioned any servant of Canada in his Statement of Claim and Notice of Application, or any alternative theory of liability as to how Canada could be liable without the involvement of any of its servants or any entities for which it could be liable. As a result, there is no reasonable cause of action against the AGC.

[12] It is also appropriate to dismiss the Application as it is an abuse of process. The Application asserts the same claims as the Action. The causes of action and alleged damages in both proceedings arise from the same factual matrix. The Action and the Application require the litigation of the same issues and are entirely duplicative. Thus, the commencement of the Application was an abuse of process. See Crook v. Adler, 2021 ONSC 7719 at paras. 10-11.

[13] I now turn to the issue of whether the Statement of Claim should be struck out as against the AGO.

1. General principles applicable to a motion to strike

[14] On a Rule 21.01(1)(b) of the Rules of Civil Procedure motion, a pleading will only be struck out if, assuming the facts pleaded to be true, it is plain and obvious that it discloses no reasonable cause of action – that is, where the pleading has no reasonable prospect of success: Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 at para. 18.

[15] The Court of Appeal set out the principles applicable to a motion to strike in McCreight v. Canada (Attorney General), 2013 ONCA 483 at para. 39:

• In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping dimension underlies Rule 21.
• If the cause of action pleaded has been recognized, all of its essential elements must be pleaded.
• 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.
• The claim should not be struck merely because it is novel.
• Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion.
• The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading.
• No evidence is admissible on such a motion.
• The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
• A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.

[16] Although the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 at para. 31.

[17] Each defendant named in a statement of claim must be able to determine, upon review of the pleading, what they are alleged to have done that caused harm to the plaintiff, and when it was done: Burns v. RBC Life Insurance Company, 2020 ONCA 347 at para. 16. Vague allegations that make it impossible for an opposing party to reply should be struck: see Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 at para. 19 (S.C.J.).

[18] While a pleading may be struck, leave to amend should be denied only in the clearest of cases. The fact that the allegations are bald is not, in itself, a basis for refusing leave. Leave to amend should only be refused where it is clear that the deficiencies in the pleading cannot be cured by an appropriate amendment and the plaintiff cannot allege further material facts that the plaintiff knows to be true to support the allegations. The fact that amendments may have previously been made is a relevant consideration. See Miguna v. Ontario (Attorney General) at para. 22 (Ont. C.A.), Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27, South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456 at para. 6 and Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381 at paras. 33-34.

2. Allegations against all entities except for Crown prosecutors

[19] The AGO submits that he is not liable for municipal police services (Durham Regional Police Services and Toronto Police Services), provincial correction facilities (CECC and TSDC), tribunals (Consent and Capacity Board) and healthcare institutions (Lakeridge Health Oshawa, and Ontario Shores Mental Health Sciences Centre). [1] I agree.

[20] Section 8 of the Ministry of the Attorney General Act deals with proceedings against the AGO. In an action 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, the AGO stands in the place of the following persons and may be found liable in their stead:

a. A Crown Attorney, Deputy Crown Attorney or assistant Crown Attorney appointed under the Crown Attorneys Act, R.S.O. 1990, c. C.49. b. A person authorized under section 6 of the Crown Attorneys Act to be a provincial prosecutor. c. Any other employee appointed under Part III of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A, as are required from time to time for the proper conduct of the business of the Ministry of the Attorney General. d. A person who was, but no longer is, a person described in paragraphs a, b or c above.

[21] There is no authority or basis to conclude that the AGO could be liable for any of the entities mentioned in paragraph 19 above, and none has been pleaded by the Plaintiff.

[22] In his submissions, the AGO considered the possibility that the Plaintiff’s intent may have been to name the Crown as a party instead of, or in addition to, the AGO. Pursuant to section 14 of the CLPA, in a proceeding in which the Crown is a party, the Crown shall be designated as His Majesty the King in Right of Ontario (“HMKRO”).

[23] Paragraph 3 of the Statement of Claim strongly suggests a misnomer and that the Plaintiff did not realize the difference between the AGO and HMKRO. Paragraph 3 reads as follows:

The first defendant, Attorney General of Ontario, (“Ontario”), “Her Majesty the Queen in right of Ontario” or “Sa Majesté du chef de l’Ontario”. [Emphasis in the original.]

[24] The Plaintiff has not sought to add HMKRO as a party and/or to correct the name of the party named. Since this issue is not before me and has not been fully argued, I do not order the addition of HMKRO as a party under Rule 5.04(2) of the Rules of Civil Procedure. I note, however, that it is unlikely that the addition of HMKRO as a party would result in any prejudice to HMKRO given that counsel in the AGO’s office have been aware of the Plaintiff’s claims and have specifically turned their mind to HMKRO’s potential liability.

[25] While, as stated above, the issue of the adequacy of the pleadings against HMKRO is not strictly before me, the issue was addressed by the AGO and, consequently, I will comment on it briefly as it may assist the parties going forward.

[26] Sections 8 and 9 of the CLPA deal with the issue of Crown liability:

Crown liability

8 (1) Except as otherwise provided under this Act or any other Act, the Crown is subject to all the liabilities in tort to which it would be liable if it were a person,

(a) in respect of a tort committed by an officer, employee or agent of the Crown; (b) in respect of a breach of duty attaching to the ownership, occupation, possession or control of property; (c) in respect of a breach of an employment-related obligation owed to an officer or employee of the Crown; and (d) under any Act, or under any regulation or by-law made or passed under any Act.

Same

(2) For greater certainty, nothing in clause (1) (a) subjects the Crown to liability for a tort that is not attributable to the acts or omissions of an officer, employee or agent of the Crown.

Limitations on Crown liability

9 (1) The Crown is not liable for torts committed by,

(a) Crown agencies; (b) Crown corporations; (c) transfer payment recipients; or (d) independent contractors providing services to the Crown for any purpose.

[27] There is no authority or basis to conclude that HMKRO could be liable for municipal police services or healthcare institutions, and none has been pleaded by the Plaintiff.

[28] The AGO concedes that HMKRO is subject to all the liabilities in tort for the employees of CECC and TSDC since they are employees of the Crown. However, he argues that even if HMKRO had been properly named as a party, the Statement of Claim would still be deficient as the necessary material facts have not been pleaded to support the Plaintiff’s claims of serious wrongdoing against the employees of CECC and TSDC.

[29] Read generously, the Statement of Claim can be interpreted as alleging negligence, misfeasance, false imprisonment, assault, battery and breach of Charter rights against CECC and TSDC. Intent is an element of some of these torts. For instance, the elements of the tort of misfeasance are: (1) the public official engaged in deliberate and unlawful conduct in their capacity as a public official; and (2) the public official was aware both that their conduct was unlawful and that it was likely to harm the plaintiff. See Ontario (Attorney General) v. Clark, 2021 SCC 18 at para. 22 and Odhavki Estate v. Woodhouse, 2003 SCC 69 at para. 23. Where malice or intent is alleged, the pleading must contain full particulars: see Rule 25.06(8) of the Rules of Civil Procedure. A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer intentional or malicious conduct.

[30] The facts pleaded in support of the claims against CECC and TSDC are very limited and set out in very few paragraphs. In my view, the allegations in the Statement of Claim against CECC and TSDC are bald and do not contain sufficient material facts to support all the elements of the causes of action that are potentially pleaded against CECC and TSDC. [2] The current pleading does not allow CECC and TSDC to understand what is alleged against them with a sufficient degree of precision and does not place them in a position that allows a response: see Dunkley v. York Regional Police Services Board, 2019 ONSC 159 at para. 34 and Wilson v. Toronto Police Service, [2001] O.J. No. 2434 at para. 67 (S.C.J.) (“Wilson”); aff’d by . Given that the minimum level of disclosure of material facts has not been reached, this is a case for a motion to strike, not a motion for particulars: see Wilson at para. 73.

[31] Accordingly, had HMKRO been named as a party in relation to torts committed by employees of CECC and TSDC, the claims against CECC and TSDC would have been struck. However, I would have granted leave to amend. No prior amendments have been made to the Statement of Claim in this case and the Plaintiff should not be deprived of the opportunity to attempt to remedy his deficient pleading as against CECC and TSDC: Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27. I cannot conclude that the Plaintiff has no facts to support his allegations against CECC and TSDC. [3]

[32] In conclusion on this point, all the allegations and claims in the Statement of Claim against municipal police services (Durham Regional Police Services and Toronto Police Services), provincial correction facilities (CECC and TSDC), tribunal (Consent and Capacity Board) and healthcare institutions (Lakeridge Health Oshawa and Ontario Shores Mental Health Sciences Centre, and potentially Toronto Western Hospital and St. Joseph’s Hospital) are struck out without leave to amend as against the AGO. If the Plaintiff wishes to add defendants to the Action (such as HMKRO and/or other entities mentioned in the Statement of Claim or entities liable for them), the appropriate motion(s) will need to be brought under Rule 5 of the Rules of Civil Procedure.

3. Allegations against Crown prosecutors

[33] As set out above, pursuant to section 8 of the Ministry of the Attorney General Act, the AGO stands in the place of Crown prosecutors and may be found liable in their stead.

[34] The allegations regarding Crown prosecutors in the Statement of Claim are unclear and very sparse. They include: (a) one reference to the Crown Attorney’s office of “College Park Courts” who allegedly transferred the Plaintiff from TSDC to Ontario Shores Mental Health Sciences Centre for further punishment; (b) a statement that the Plaintiff “has suffered greatly from the conduct of the previously mentioned crown attorneys”; and (c) an allegation that the Plaintiff “suffered at the hands of the Crown Attorney and Courts in Cobourg” and was falsely imprisoned based on “false accusations and presumptuous beliefs on behalf of the crown attorney’s [sic], police, doctors and judge.”

[35] Crown prosecutors have immunity from civil liability. However, two exceptions have been recognized: malicious prosecution and wrongful non-disclosure: see Ontario (Attorney General) v. Clark, 2021 SCC 18 at paras. 25, 35, 38.

[36] The elements of the tort of malicious prosecution are as follows: (a) the prosecution was initiated by the defendant; (b) it was terminated in favour of the plaintiff; (c) it was undertaken without reasonable and probable cause; and (d) it was motivated by malice or a primary purpose other than that of carrying the law into effect. See Miazga v. Kvello Estate, 2009 SCC 51 at para. 3.

[37] A cause of action for wrongful non-disclosure lies when the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence. See Henry v. British Columbia (Attorney General), 2015 SCC 24 at para. 31.

[38] The Statement of Claim does not plead the essential elements of either malicious prosecution or wrongful non-disclosure, and the facts pleaded against the Crown prosecutors are wholly insufficient. Further, as stated above, where malice or intent is alleged, the pleading must contain full particulars: Rule 25.06(8) of the Rules of Civil Procedure. Again, the minimum level of disclosure of material facts has not been reached with respect to the claims against the Crown prosecutors and, therefore, this is a case for a motion to strike, not a motion for particulars: see Wilson at para. 73.

[39] In light of the foregoing, I conclude that the Statement of Claim discloses no reasonable cause of action as against Crown prosecutors.

[40] However, this is not one of the clearest cases where leave to amend should be denied. It is not clear that the deficiencies in the pleading cannot be cured by an appropriate amendment and that the Plaintiff cannot allege further material facts that he knows to be true to support the allegations. Therefore, leave to amend is granted.

D. Conclusion

[41] The Application is dismissed. Any date scheduled for the hearing of the Application is vacated.

[42] The Action is dismissed as against the AGC.

[43] With respect to the balance of the Plaintiff’s claims as against the AGO, I am of the view that it is neither possible nor productive to try to identify with precision the paragraphs and/or sentences that need to be struck out and those that do not need to be in order to implement this decision. This conclusion is based on, among other things: (a) my decision to strike out almost all of the remaining claims advanced in the Statement of Claim as against the AGO without leave to amend, and (b) the manner in which the Statement of Claim is drafted and structured. Consequently, the entire Statement of Claim is struck out, with leave to file a Fresh as Amended Statement of Claim that complies with this decision with respect to the Plaintiff’s claims against Crown prosecutors. The Fresh as Amended Statement of Claim is to be filed within 45 days of the date of this decision.

[44] In accordance with the Rules of Civil Procedure, the Fresh as Amended Statement of Claim is to contain a concise statement of the material facts on which the Plaintiff relies for the causes of action against the Crown prosecutors, and sufficient particulars to allow the AGO to adequately defend the claims. With respect to the elements of intent and malice, the Plaintiff must plead circumstances, particulars or facts which are sufficient to enable a judge to properly infer intentional or malicious conduct.

[45] If the Plaintiff wishes to assert causes of action against CECC and TSDC, he must bring a motion to add HMKRO as a party. Any proposed pleading with respect to these entities must contain sufficient material facts in support of the causes of action relied upon by the Plaintiff against them.

[46] If the Plaintiff wishes to assert causes of action against other entities that are mentioned in the Statement of Claim or entities liable for them, the appropriate motion(s) will need to be brought and the proposed pleading will have to comply with the requirements set out above.

[47] If costs cannot be agreed upon, the Defendants shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by February 27, 2023. The Plaintiff shall deliver his responding submissions (with the same page limit) by March 13, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J. Date: February 13, 2023

Footnotes

[1] It is unclear from the Statement of Claim whether the Plaintiff alleges any wrongdoing against Toronto Western Hospital and St. Joseph’s Hospital. If he does, the reasoning that applies to the other healthcare institutions applies to them as well. The Plaintiff also appears to make allegations against judges. However, such claims are barred by the principle of judicial immunity.

[2] I note, among other things, that there are few or no facts pleaded with respect to most of the numerous Charter breaches that are alleged.

[3] The Plaintiff states the following in paragraph 13 of his Statement of Claim:

As the dates of part of the aforementioned and following infringements are hazy for the plaintiff due to his disability and disadvantage from his brain surgery, the following dates of the preceding incident(s) could possibly only make sense to the defendants as through the documents provided from the Solicitor General’s office that seem grossly disorganized and in some parts completely incorrect and perhaps altered.

Counsel for the AGO argued that this paragraph is an acknowledgement that the Plaintiff does not have further particulars with respect to his claims and allegations. I am not prepared to reach this conclusion based on this paragraph alone and without giving the Plaintiff the opportunity to attempt to remedy the deficiencies in his pleading.