Court File and Parties
COURT FILE NO.: CV-21-88024-0000 DATE: 2024/02/23
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Neda Raji Plaintiff (Responding Party) – and – The Attorney General of Canada, City of Ottawa, Ottawa Police Service Board[^1], Police Constable Todd Clark, Police Constable Samantha Raffa, Police Constable Anthony Carmo, Police Constable Amanda Budzinski, Police Constable Wood, Police Constable Ryan Carmo, Police Constable Perron, Police Sargeant Levesque, Police Chief Peter Sloly and Stephen Leach Defendants (Moving Parties)
Counsel: Self-represented Plaintiff (Responding Party) Andrew Newman, for the Defendant Attorney General of Canada (Moving Party) Michelle Doody and Sam Campbell, for the Defendants City of Ottawa, Ottawa Police Services Board, Police Constable Todd Clark, Police Constable Samantha Raffa, Police Constable Anthony Carmo, Police Constable Amanda Budzinski, Police Constable Wood, Police Constable Ryan Carmo, Police Constable Perron, Police Sargeant Levesque, and Police Chief Peter Sloly (Moving Parties) Michael Saad, for the Defendant Stephen Leach (Moving Party)
HEARD: January 12, 2024
REASONS FOR decision on Rule 21 motions
RYAN BELL J.
Overview
[1] In her action, Ms. Raji seeks damages “arising from her arbitrary and preemptive arrest [on January 23, 2019] for suspicion that she might be suffering from mental health after disclosing that she had been a victim of police brutality some years ago.” She alleges that “[h]er false arrest, detention, abuse of process, harassment, and malicious prosecution…is a disturbing tale of unchecked prosecutorial powers that fostered and encouraged police misconduct” towards her. Ms. Raji claims $8,000,000 in general damages, $8,000,000 in punitive and/or exemplary damages, special damages in a sum to be disclosed before trial, $3,000,000 in aggravated damages, and unspecified damages pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, together with pre- and post-judgment interest and costs.
[2] The named defendants are the Attorney General of Canada, the City of Ottawa, the Ottawa Police Services Board, nine police officers, and Stephen Leach, the Independent Police Review Director for Ontario (the “IPRD”). All defendants other than the Attorney General of Canada and Mr. Leach are referred to in these reasons as the OPS defendants.
[3] The Attorney General of Canada previously filed a requisition under r. 2.1.01 of the Rules of Civil Procedure seeking a dismissal of the action. In her April 12, 2022 endorsement, at para. 16, Gomery J., as she then was, dismissed the Attorney General of Canada’s requisition because:
[b]ased on the plaintiff’s response to my endorsement notifying her that the action could be dismissed, there are, buried in the statement of claim, allegations of material facts which, if proved, could provide a basis for a remedy in damages against some or all of the defendants. I have certainly not concluded that Ms. Raji’s action will succeed or that it should proceed to discovery and trial. The defendants could bring a motion under rules 20 or 21. The action is not, however, so obviously frivolous, vexatious or abusive as to merit a dismissal under r. 2.1.01.
[4] On July 18, 2022, Ms. Raji noted all the defendants in default. On October 11, 2022, Corthorn J. set aside the noting in default of all defendants: Raji v. A.G. Canada, 2022 ONSC 5718.
[5] The Attorney General of Canada and Mr. Leach move under r. 21.01(1)(b) of the Rules of Civil Procedure for orders striking out the statement of claim and dismissing the action against them for failing to disclose a reasonable cause of action.
[6] The OPS defendants seek an order under r. 21.01(3)(d) dismissing or permanently staying the action against them on the basis that the action is frivolous, vexatious, or is otherwise an abuse of the process of the court. In the alternative, the OPS defendants submit that the claim should be struck out under a) r. 25.11(b) because it is scandalous, frivolous, or vexatious, or b) r. 25.11(c) because the claim is an abuse of the court process.
[7] All the defendants submit that Ms. Raji should not be granted leave to amend her statement of claim.
[8] For the following reasons, the defendants’ motions are granted. The claim is struck out in its entirety, without leave to amend, and the action is dismissed.
The statement of claim
[9] In her claim, Ms. Raji alleges that she was arrested on January 23, 2019 under the Mental Health Act for “improper reasons” because she assaulted a trespasser identified as “TS.” TS occupied a rental unit with Ms. Raji as a “guest.” Ms. Raji was charged “a day later” on January 24, 2019 with offences under the Criminal Code. The claim then goes on to describe in 85 pages and 158 paragraphs, Ms. Raji’s long and complex history of her interactions with the police, the justice system, mental health resources, her landlord, and the police complaints system. The events include a bail hearing, a second arrest on March 8, 2019, and an altercation between Ms. Raji and Ottawa police officers on March 31, 2020.
[10] The statement of claim also includes references to incidents involving unnamed parties and other interactions between Ms. Raji and the justice system and mental health resources which do not have an apparent connection to the substance of the claim.
[11] The statement of claim ends with the words “To be amended...”
[12] In determining these motions, I have confined myself, as I am required to do, to a consideration of the allegations as pleaded in the statement of claim. In responding to the motions, Ms. Raji raises incidents alleged to have occurred in 2022 and 2023, after the claim was issued on December 1, 2021. These submissions do not assist me in determining the issues raised on these motions.
The Attorney General of Canada
[13] A pleading may be struck under r. 21.01(1)(b) where it discloses no reasonable cause of action. To succeed, the moving party must establish that it is “plain and obvious” on the facts pleaded that the action cannot succeed: Hunt v. Carey Canada Inc., [1990] 2 SCR 959. The motion judge assumes that the allegations in the pleading are true unless they are “patently ridiculous” or “incapable of proof”: McCreight v. Canada (Attorney General), 2013 ONCA 483, at para. 29.
[14] It is plain and obvious that the action against the Attorney General of Canada is doomed to fail. Ms. Raji has named the Attorney General of Canada as a defendant; however, the claim fails to implicate the Attorney General of Canada in the allegations of fact pleaded.
[15] Proceedings lie against the federal Crown for acts or omissions of its Crown servants, pursuant to ss. 3(b) and 10 of the Crown Liability and Proceedings Act. None of Ms. Raji’s claims relates to a matter or conduct that reasonably falls within the federal jurisdiction. No federal Crown servants are referred to in the claim. The Attorney General of Canada is not, itself, mentioned in the body of the claim. The references in the body of the claim to the Ministry of the Attorney General and an assistant Crown attorney are references to the Ontario provincial Crown.
[16] Accordingly, the claim against the Attorney General of Canada is struck out because it discloses no reasonable cause of action against the federal Crown.
Stephen Leach – the IPRD
[17] It is also plain and obvious that the claim against Mr. Leach, as the IPRD, cannot succeed.
[18] The IPRD is appointed by the Lieutenant Governor in Council, on the recommendation of the Attorney General, and is charged with providing civilian oversight of the police in Ontario: Police Services Act, s. 26.2. The IPRD receives, reviews, and supervises the public complaints process, which includes complaints about both police officers’ conduct and police services’ policies and services: Police Services Act, ss. 26.2, 58(1), 59(1).
[19] Where a complaint relates to a police officer’s conduct, and the IPRD has not otherwise declined to deal with it pursuant to s. 60, the IPRD will determine whether to retain it or refer it to a chief of police; the IPRD exercises their discretion as to how the complaint should be addressed, taking into account the public interest and the nature of the complaint: Police Services Act, ss. 61(5), 61(6).
[20] The IPRD may refer a complaint about an officer’s conduct to the chief of the municipal force of which the officer is a member for investigation, and may specify how the municipal chief of police is to deal with the complaint: Police Services Act, s. 66. If the complaint relates to police services’ policies or services, the IPRD refers it to the municipal chief of police to address in accordance with s. 63.
[21] Where the IPRD refers a complaint to a chief of police or the commissioner to investigate, and the alleged misconduct is either not substantiated or determined to be “not of a serious nature”, a complainant may request that the IPRD review the reasonableness of the investigation under s. 71 of the Police Services Act.
[22] To challenge a decision of the IPRD whether or not to deal with a complaint under s. 60 or to confirm a chief or the commissioner’s decision under s. 71 of the Police Services Act, a complainant must bring an application for judicial review: John v. Peel Police, 2016 ONSC 2012, at para. 71.
[23] Section 26.1(12) of the Police Services Act states:
No action or other proceeding for damages lies or shall be instituted against the Independent Police Review Director, an employee in the office of the Independent Police Review Director, an investigator appointed under subsection 26.5(1) or a person exercising powers or performing duties at the direction of the Independent Police Review Director, for any act done in good faith in the execution or intended execution of any power or the performance of any duty under this Act or for any alleged neglect or default in the execution or performance in good faith of that power or duty.
[24] The claim does not plead a cause of action against Mr. Leach. The only references to Mr. Leach and/or the IPRD in the body of the claim are at paragraphs 141 and 143. These paragraphs read in part:
- An investigation was under review by Chief Peter Sloly shortly before the parking-lot incident occurred. In the summary-of-the-complaint-section of the “review report” prepared by Stephen Leach, (The Independent Police Review Director) that is dated Feb 24, 2020, he has clearly misappropriated some facts. Fortunately, NR’s complaint is documented...
- In arriving at his “reasonable arguments” Mr. Leach used personal attacks towards the plaintiff to arrive at findings of guilt for NR after the charges against her were withdrawn. He appears to have under pretense [sic] forgotten to fix the grammatical error that arose from having deleted the word “allegedly” when addressing NR’s previous criminal charges. He is begging the question. Her unlawful arrest is effectively what was under review...
[25] Elsewhere in the claim (at paragraphs 138-140, 142, and 152), Ms. Raji refers to the complaints and the Office of the IPRD.
[26] Acts that are within public officials’ statutory authority and discretion are not made in bad faith: Enterprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, at para. 26. The statement of claim does not allege bad faith or malice on the part of Mr. Leach, acting as the IPRD, that would disentitle him from relying on the statutory immunity provided in s. 26.1(12) of the Police Services Act. Generously read, the claim suggests only dissatisfaction or disagreement with the results of the investigations or reviews. The claim does not allege that Mr. Leach exercised any of his duties or his statutory discretion in contravention of the Police Services Act.
[27] In Hitchlock v. AG Ontario, 2020 ONSC 5348, the court struck out an action against the IPRD without leave to amend on the basis that bad faith was not made out and the IPRD was entitled to rely on s. 26.1(12) of the Police Services Act. I reach the same conclusion here. The claim does not allege bad faith on the part of Mr. Leach, and he is entitled to rely on s. 26.1(12). To the extent the language of the claim can be construed as suggesting bad faith on the part of the IPRD, the bald allegations in the claim are inadequate to sustain such a pleading. A bald pleading does not have the effect of destroying statutory immunity for acts taken in good faith: Portuguese Canadian Credit Union Ltd. v. 1141931 Ontario Ltd., 2012 ONCA 274, at paras. 7-9. See also Savic v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3403, at paras. 19-21, citing Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, at para. 89.
[28] Accordingly, the claim against Mr. Leach, the IPRD, is struck out because it discloses no reasonable cause of action against him.
The OPS defendants
[29] In my view, the action against the OPS is an abuse of the process of the court, frivolous, and scandalous.
[30] An action may be struck as an abuse of process where the matter is, in essence, an attempt to re-litigate a matter that has already been decided: Sutherland v. CIBC, 2023 ONSC 3465, at para. 15, citing Wright v. Urbanek, 2019 ONCA 823, at para. 8. The action against the OPS is an abuse of the process of the court because Ms. Raji is attempting to re-litigate matters relating to her criminal trial, show-cause hearings, and bail hearings. These issues were heard and determined by the criminal courts. A civil action ought not to be used to re-litigate matters determined by a criminal court where there was a full opportunity to defend the issue: Verlysdonk v. Premier Petrenas Construction Co. Ltd. et al (1987), 60 O.R. (2d) 65 (Div. Ct.). Ms. Raji also availed herself of the process under the Police Services Act to file a complaint to the Office of the IPRD.
[31] Ms. Raji’s claim against the OPS defendants is also frivolous because it lacks legal merit: Castonguay Construction (2000) Ltd. v. Commonwealth Plywood Co. Ltd., 2012 ONSC 3487, at para. 18. The claim does not advance any cause of action against Constable Budzinski, Constable Wood or the City of Ottawa. There is no basis articulated for naming the Ottawa Police Services Board as a defendant.
[32] As against the remaining OPS defendants, I agree with their argument that the claim fails to organize the pleaded facts so that the causes of action are identifiable and supported by the material facts necessary to establish each cause of action. The claim is rambling, difficult to follow and, in parts, incoherent. The claim is replete with argument about statutory interpretation and legal principles. It refers to matters that are not justiciable, and it contains allegations that have no connection to the relief claimed. It is impossible for the OPS defendants to discern the case they would have to meet. The claim against the OPS defendants lacks legal merit and cannot be said to be “reasonably purposeful”: Castonguay, at para. 18.
[33] Ms. Raji’s claim against the OPS defendants is scandalous because it is replete with bare allegations. Bare allegations should be struck as scandalous, particularly where allegations of intentional or malicious conduct are made: Aristocrat Restaurant Ltd. v. Ontario, [2003] O.J. No. 5331, at para. 21. Examples of bare allegations in the statement of claim include:
(i) the OPS defendants and the Crown conspired against Ms. Raji (at paras. 34, 82, 83, 84, and 111); (ii) Constable Clark perjured himself and assisted in fabricating evidence to frame Ms. Raji and otherwise acted in an abusive manner (at paras. 40, 45, 47, 61, 95, 96, and 126); (iii) Constable Clark covered up his actions (at para. 47); (iv) Constable R. Carmo and Constable Perron assaulted Ms. Raji “in cold blood” (at para. 133); and (v) Police Chief Sloly “fabricated a fake investigation” (at paras. 140 and 141).
[34] The power to strike out hopeless claims is a “valuable housekeeping measure essential to effective and fair litigation”: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at para. 18. In this case, assuming the facts pleaded to be true, it is plain and obvious that the claim cannot succeed against the OPS defendants.
[35] Therefore, the action against the OPS defendants is dismissed under r. 21.01(3)(d) because it is frivolous and an abuse of the process of the court. I would also strike the claim under r. 25.11(b) because it is frivolous and scandalous, and under r. 25.11(c) because it is an abuse of the court process.
No leave to amend
[36] I deny leave to amend the claim. Amendments should not be granted where to do so would merely result in another proceeding to strike the claim as disclosing no reasonable cause of action. As the court stated in TSCC Corporation No. 2123 v. Times Group Principals, 2018 ONSC 4799, at para. 88, “[i]f it is clear that the plaintiff cannot allege further facts that they know to be true to support the allegations in the pleading, leave to amend will not be granted.”
[37] In response to the defendants’ motions, Ms. Raji raised further alleged incidents that post-date the statement of claim. It is plain and obvious that the claim discloses no reasonable cause of action against the Attorney General of Canada because the events pleaded in the claim do not involve the federal Crown. Two judges of this court have already observed that the body of the claim does not even refer to the Attorney General of Canada.
[38] Mr. Leach as the IPRD is entitled to rely on the statutory immunity in the Police Services Act. The claim against him cannot be cured by an amendment because there is no basis for a bad faith claim against the IPRD based on dissatisfaction with his statutory decisions.
[39] As for Ms. Raji’s claims against the OPS defendants, the claims are so lacking in factual and legality clarity, there is no basis to believe that the claims would be improved by granting Ms. Raji leave to amend. In Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127, at para. 52, Myers J. explained that he was refusing to grant leave to the plaintiff in that case because to do so would “just be an invitation to the plaintiff to inflict further costly and abusive proceedings on the defendant with no realistic sense that a credible lawsuit lies dormant waiting to emerge.” The same is equally true in this case.
Disposition
[40] Ms. Raji’s statement of claim is struck out, without leave to amend. Her action is dismissed as against all defendants.
[41] The Attorney General of Canada, Mr. Leach, and the OPS defendants are entitled to their costs of the motion and the action. The defendants have provided their costs outlines. Ms. Raji shall provide her responding submissions on costs in writing on or before March 1, 2024.
Justice R. Ryan Bell
Released: February 23, 2024
[^1]: Incorrectly named as the Ottawa Police Service Board in the title of proceedings.