Court of Appeal for Ontario

Date: 2017-04-28

Docket: C62639

Judges: Blair, Lauwers and Hourigan JJ.A.

Between

Joan Abernethy Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario as Represented by Crown Attorneys (Justice) James A. Ramsay, Ron Davidson, Jennifer Broderick and Lucas O'Neill, Kathryn (Kathy) Rippey and Gerry McNeilly and St. Joseph's Healthcare (Hamilton) Director, East Region Mental Health Services, Judith Santone Defendants (Respondents)

Counsel

Joan Abernethy, acting in person

Connie Vernon, for the Crown Respondents

M. Kathleen Robb and Cameron Malcolm, for the Respondent St. Joseph's Healthcare (Hamilton) Director, East Region Mental Health Services, Judith Santone

Heard: April 21, 2017

On appeal from: the orders of Justice Drew S. Gunsolus of the Superior Court of Justice, dated August 29, 2016.

By The Court:

[1] Ms. Abernethy appeals from the order of Justice Drew S. Gunsolus dated August 29, 2016. In that order Justice Gunsolus struck the claims in her Fresh as Amended Statement of Claim against the group of defendants we will call "the Crown Defendants" in their entirety without leave to amend, and dismissed the claims against them. He did so pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, on the basis that the pleading did not disclose any reasonable cause of action against the Crown Defendants and, pursuant to rule 25.11, on the basis that the claims were frivolous and vexatious because the pleading lacked the material facts necessary to support them.

[2] In a companion ruling on the same date, Gunsolus J. also struck Ms. Abernethy's claims against the only remaining defendant, Judith Santone, but granted her leave to amend her claim to pursue the tort of breach of privacy against Ms. Santone. Ms. Abernethy appeals that order as well.

[3] Four of the Crown Defendants are, or at the relevant times were, Crown Attorneys. Another is the Ontario Independent Police Review Director, and another an investigator with the Ontario Civilian Police Commission.

[4] Ms. Abernethy commenced her action in December 2012. Her pleading sets out events going back as far as 1970 and ending in 2011. It is evident on the face of the narrative that Ms. Abernethy has endured a trying and difficult period in her life. As we shall explain, however, what is not evident from her pleading is that the defendants (except for one possible claim the motion judge allowed her to pursue) are legally responsible for her difficulties.

[5] The Fresh as Amended Statement of Claim is long, rambling and difficult to understand. In it, Ms. Abernethy claims damages in the amount of $8,400,000 allegedly arising out of a multitude of complaints about the way she asserts she has been treated by various state officials in the justice and health-care systems during that period of time. She claims against the Crown defendants for conspiracy, misfeasance in public office, breach of trust, intentional infliction of mental distress, obstruction of justice, intentional Charter and statutory violations and, in some cases, false arrest, false imprisonment and fabricating evidence. Her claims against Ms. Santone are framed in conspiracy, breach of trust, misfeasance in public office, intentional violation of three privacy statutes, obstruction of justice and intentional violations of the Canadian Human Rights Act.

[6] Ms. Abernethy was given leave to amend her pleading, and on September 23, 2013, she delivered a Fresh as Amended Statement of Claim. It is that pleading which is the subject of this proceeding.

The Crown Defendants

[7] After properly reviewing all the relevant principles relating to the striking of pleadings, and reading the Fresh as Amended Statement of Claim as generously as he could in favour of the plaintiff, with due allowances for drafting deficiencies, the motion judge concluded that Ms. Abernethy's claims against the Crown Defendants disclosed no reasonable cause of action and that it was plain and obvious they could not succeed. He also held – correctly in our view – that, with the exception of a claim for malicious prosecution (which Ms. Abernethy acknowledged before him and us that she was not pursuing), the Crown Attorney defendants were protected by Crown immunity under the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 8 and by common law Crown immunity; and that the remaining Crown Defendants were protected by statutory immunity under the Police Services Act, R.S.O. 1990, c. P.15, ss. 21(9) and 26.1(12).

[8] The motion judge also found that the Fresh as Amended Statement of Claim failed to plead the material facts required to support the sweeping, bald and speculative allegations relating to the named causes of actions alleged, including the more detailed particulars that are required where malice is alleged. For instance, he concluded that:

A careful review of the Statement of Claim wherein the Plaintiff is alleging that these Defendants have caused misfeasance in public office, conducted themselves in breach of trust, assaulted her, falsely arrested her, and so on, are extremely vague, entirely speculative, and they are bald allegations without material facts set out. Missing is the who, the what, the when and where, given the basis for the allegations made.

The Plaintiff has set out vague causes of action in her Statement of Claim, but missing are the material facts she claims give rise to the causes of action she has pled [See Rule 25.06(1)].

Again, there have been sweeping and bald allegations of malice in a very extensive narrative which alleges numerous serious and criminal acts by the named Crown Attorneys, but these allegations are not sufficiently supported by the pleading to the point where it is almost impossible to establish which prosecutions the name Crown Attorneys were involved with and how the prosecutions were ultimately resolved.

[9] The pleading was similarly defective in relation to the remaining two Crown Defendants.

[10] Having made those findings, the motion concluded that:

(i) the Fresh as Amended Statement of Claim disclosed no cause of action as against the Crown Defendants;

(ii) no material facts upon which Ms. Abernethy relies had been pleaded; rather, the pleading contained only bald, sweeping allegations against the defendants without the facts to support those bald conclusions; and

(iii) the action should therefore be dismissed as frivolous and vexatious, pursuant to Rule 25.11.

[11] Ms. Abernethy made respectful and articulate submissions before us. We understand that she, herself, believes that she has been wronged and that she has the facts to support her claims. However, we agree with the findings and conclusions of the motion judge outlined above with respect to her pleading. A cause of action is not "disclosed" simply by naming it. The claims must be supported by more than a bald and conclusory narrative; they must be supported by a set of material facts that – assuming they could be proved – would establish the claims. In spite of Ms. Abernethy's submissions, we are not persuaded that the material facts, as required, are pleaded here.

[12] The Crown Attorneys are protected from suit against them by the statutory and common law immunity outlined above. Ms. Abernethy candidly conceded that she is not asserting a claim for malicious prosecution. It follows that no action can be brought against these defendants in their personal capacities in these circumstances. See Nelles v. Ontario, [1989] 2 S.C.R. 170; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; Thompson v. Ontario (1998), 113 O.A.C. 82 (C.A.); Gilbert v. Gilkinson (2005), 205 O.A.C. 188 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 67. The defendants Rippey and McNeilly are protected by the statutory immunity provided by the Police Services Act.

[13] In addition, on the basis that Ms. Abernethy's pleading discloses no factually material basis for a cause of action against the personal Crown Defendants, the claims against the Crown, itself, based as they are on vicarious liability, must fail too.

[14] Given that Ms. Abernethy had already been provided with earlier opportunities to correct and amend her pleadings against the Crown Defendants, the motion judge declined to grant her further leave to amend. He observed that "pleadings are not meant to be a moving target" and that he was not convinced any further amendments would result in a proper pleading. Whether to grant leave to amend is a discretionary decision, and we see no basis for interfering with his decision in that regard.

The Defendant Ms. Santone

[15] The motion judge took a different approach with respect to Ms. Santone. Taking a generous view of the pleading, in favour of Ms. Abernethy, he concluded that there may be a basis for a claim based on the tort of breach of privacy: see Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241. He therefore granted her leave to amend her pleading to allege that tort, specifically providing, however, that the amendment permitted was not to relate to the claims for misfeasance in public office, conspiracy, obstruction of justice or claims based upon specific legislation that does not apply to the claim in tort for breach of privacy.

[16] Ms. Abernethy appeals from this decision, too, making the same arguments with respect to the broader claims and submitting as well that having to pursue the breach of privacy claim, which lies against Ms. Santone alone, deprives her of her ability to pursue the other defendants on the basis of conspiracy. She submits that her damages cannot be fully appreciated in isolation from the conspiratorial actions of the others.

[17] For the reasons set out above, however, we see no basis for interfering with the motion judge's findings and conclusions with respect to the array of broader claims put forward by Ms. Abernethy. The motion judge granted her leave to amend to pursue a breach of privacy claim against Ms. Santone and that matter will proceed as he directed.

Bias

[18] Finally, Ms. Abernethy renewed a ground set out in her Notice of Appeal but not pursued in her factum, namely, that the motion judge was biased in arriving at his decision. In her Notice of Appeal she asserted that the motion judge had demeaned her claim for damages by dismissing it as "a conspiracy theory" rather than treating it as a claim for unlawful conspiracy as defined by law, and she repeated that argument before us. More broadly, however, in oral argument her claim seems to have been based more on current controversies in the public realm about certain judicial misconduct and the fact that various sectors of the public are calling for additional training of judges in certain areas. It follows, in Ms. Abernethy's view that a reasonable and reasonably informed member of the public would think that the motion judge was biased in these circumstances, taking into account his purported "conspiracy theory" comment.

[19] There is no basis for this submission. There is a strong presumption of judicial impartiality and a heavy burden on a party seeking to rebut the presumption: S.L. v. Marson, 2014 ONCA 510, 121 O.R. (3d) 369, at paras. 24-29. That presumption cannot be rebutted by vague references to current controversies in the public realm, but must be determined in the context of the particular case. We see absolutely nothing in the record or in the reasons provided by the motion judge on the two motions that would suggest he harboured any bias, conscious or unconscious, towards Ms. Abernethy.

Disposition

[20] For the foregoing reasons, the appeal is dismissed.

[21] The Crown Defendants and Ms. Santone are entitled to their costs of the appeal, each in the nominal amount of $500.00, as requested.

"R.A. Blair J.A."

"P.D. Lauwers J.A."

"C.W. Hourigan J.A."