COBOURG COURT FILE NO.: 92/11

DATE: 2012-07-09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Douglas Bernard Miller

No one appearing for the Plaintiff

Plaintiff

• and -

Joe Jansen, Perry Grey, Ross Toller and Roger Cornorn

Jim Kapches, for the Respondents

Defendants

• and -

Emad Elguindy

Proposed Intervenor

Mr Elguindy appearing in person

HEARD: June 27, 2012

Gunsolus, J.

REASONS FOR JUDGMENT

1This motion was brought by Emad Elguindy. In the motion he seeks:

(1) An order dispensing with compliance with any rule of the Rules of Civil Procedure;

(2) An order abridging the time required for service and/or hearing of this motion if necessary;

(3) An order granting Emad Elguindy leave to intervene as an added party (Plaintiff) in this action;

2The grounds for the motion are:

(1) The moving party claims an interest in the subject matter of the proceeding;

(2) The moving party claims that he will be adversely affected by a judgment in the proceeding;

(3) The moving party claims there exists between him and one or more parties in this proceeding, a question of law or fact in common with one or more of the questions in issue in this proceeding.

3Counsel for the defendants Jansen, Grey and Toller opposes the motion. Counsel for the defendant Roger Cornorn, James L. Macdonald, was served late with the notice of motion, but advised he was not opposed to it proceeding in his absence.

4The moving party in this matter, some would say, is in an enviable position as a civil litigant. As he is a resident of Warkworth Institution, he is able to commence a number of actions with the benefit of fee waivers. He is able to commence actions and take positions in actions without concern for the consequence of a meaningful cost order being made against him. On the other hand, given the circumstances he is in, he is unable to access legal advice that, in other circumstances, would give him pause before entering into the litigation that he does. He is a litigant for whom civil litigation has become a game that carries little or no consequence. He currently has some six or seven civil actions underway.

Background

5The plaintiff Douglas Bernard Miller brought action #92/11 against Joe Jansen, Perry Grey, Ross Toller and Roger Cornorn, defendants, in the Superior Court at Cobourg, Ontario. The statement of claim was issued September 16, 2010. It claims different heads of damages based upon allegations that the defendants:

9. On or about the 15th day of September 2008 the Defendants caused a Suspension and Apprehension Warrant to be issued to return the Plaintiff to jail falsely alleging that the Plaintiff was a risk to the community;

10. The Defendants acted intentionally and maliciously by abusing their statutory power to return the Plaintiff to jail for the rest of his life without cause;

11. At all material times the Defendants knew that their malice and hatred toward the Plaintiff would return him to jail for the rest of his life. They relied on their confidence that:

a) The National Parole Board (NPB) rubber stamped the suspension by revocation. In other words, revocation of parole would automatically flow from the decision to suspend the same;

b) The NOP was not a Court of competent jurisdiction and accordingly its decision to revoke parole could not be challenged for jurisdictional error or error in law in the Federal Court or the Superior Court of a province;

c) The Defendants knew that their actions were unlawful and would definitely return the Plaintiff to jail from parole;

12. The Defendants were also negligent in misunderstanding their statutory power by ignoring the provisions of the Corrections and Conditional Release Act (CCRA) and its regulations (CCRR);

13. As a result of the Defendant’s abuse of their statutory power, the Plaintiff has been incarcerated since his parole was suspended in September 2008, and most likely will never be able to get parole again;

14. As a result of the Defendants abuse of their power and negligence, the Plaintiff has been suffering and will continue to suffer from severe deprivation of liberty, loss of maintaining family ties, and loss to his income;

15. The Plaintiff proposes that the action be tried by a judge and jury sitting at Cobourg, Ontario.

6The proposed intervenor, Emad Elguindy, brought a claim against defendants Alina Dermardirosian and Justine Kotlarz in a statement of claim dated the 23rd day of August, 2010, in the Superior Court at Bracebridge, Ontario. That matter has been transferred to the Superior Court at Cobourg, insofar as the proposed intervenor is now an inmate of Warkworth Institution.

7In that statement of claim, he asks for various heads of damages, claiming amongst other things:

11. The Defendants have been committing several torts including but not limited to “Malfeasance in Public Office”, False Arrest, False Imprisonment and negligence.

8The proposed intervenor says that Mr. Miller in this action, and he in his action, are suing their then respective parole officers for returning them to jail by abusing their statutory power. He believes that if Mr. Miller is not successful in this action, it will affect his action in that it may create “precedent to have my action dismissed”. He also believes that there are a number of questions in law that exist in his action and in Mr. Miller’s action that are common, notwithstanding that each were in different institutions; are suing different defendants; have a completely different and unrelated factual basis.

9Mr. Elguindy, a retired professional engineer who was once required to read legal documents, feels he brings forth substantial knowledge of the Corrections and Conditional Release Act and it’s regulations, such that he can provide an advantageous and unique position and argument before the court in this matter.

10He claims to have a working knowledge of Correctional Services Canada. He says it is common knowledge that parole officers generally abuse their statutory power by returning parolees to jail in the absence of any risk to the community. This abuse, he says, is then “rubber stamped” by Correctional Services.

11Mr. Elguindy believes that Mr. Miller, the plaintiff in this case, has very limited education, having completed grade 9 in school, and that therefore he, Mr. Elguindy, will be able to “assist” Mr. Miller in the prosecution of this matter.

12The responding parties ask that the motion be dismissed on the basis that Mr. Elguindy has failed to discharge the onus as set out in Rule 13.01(1) (a)(b)(c). The responding parties also ask the court to exercise its discretion, pursuant to Rule 13.01(2) to refuse the proposed intervenor status in this matter, as they believe it would unduly delay, lengthen and complicate the proceedings and thereby prejudice the determination of the rights of the defendants.

The Law

13Rule 13.01 provides:

(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) An interest in the subject matter of the proceeding;

(b) That the person may be adversely affected by a judgment in the proceeding; or

(c) That there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 130.01(1)

14The reasons in Andrews v. Ontario (Minister of Transportation)¹ confirms the Rule 13, three part test as requiring the court to ask:

(1) Does the proposed intervenor have an interest in the subject matter of the proceeding? or

(2) Will the proposed intervenor be adversely affected by a judgment in the proceeding? or

(3) Does there exist between the proposed intervenor and one or more parties to the proceeding a question of fact or law in common with one or more of the questions in issue in the proceeding?

15A person asking to intervene in these circumstances needs to show a real interest in the subject matter of the action. Where the dispute is a private one based in tort, it will be rare that another party has an interest in the subject matter of the action.²

16The fact that two actions are couched in similar language and based on similar torts is not sufficient to show that one plaintiff has an interest in the other action. The mere fact that one decision may establish a precedent a plaintiff may not like, is not a sufficient basis to justify intervention.³

17The requirement under Rule 13.01(1)(c) requiring that the moving party show “a question of law or fact in common with one or more of the questions in issue in the proceeding” suggests something more than a mere similarity of cause of action or fact pattern. There must be a connection to the proceeding beyond mere similarity. The claims must be from the same “factual matrix”⁴

18Where the court determines that the moving party has met one of the arms of the three part test under Rule 13.01 (a) or (b) or (c), the court may still exercise its discretion and refuse to add a party, where it is unlikely that the moving party would be able to make a useful contribution to the resolution of the matter, without causing injustice to the immediate parties.⁵

19In private disputes, such as the one before me, “leave to intervene in purely private disputes should be exercised with great caution. There is a heavy burden on the proposed intervenor to justify the intervention”⁶

Decision

20The moving party has failed to meet his onus in relation to Rule 13.01(1)(a) or (b) or (c).

21The moving party has failed to show an interest in the subject matter of this proceeding, as required by Rule 13.01(1)(a). He is pursuing his own action, based on his own factual and legal matrix, involving separate defendants. The moving party has no interest because the dispute in this case is personal as between the plaintiff and his named defendants. The facts complained of occurred in relation to an institution in which the moving party was not then an inmate, and involved facts and proceedings, a separate factual matrix, in which the moving party has shown no interest in whatsoever. He has not shown common issues of fact between the two actions.

22The moving party has not shown that he may be adversely affected by a judgment in this proceeding, as required under Rule 13.01(1)(b). Again, while the plaintiff’s action and the moving party’s action are based on similar tort and negligence claims, they relate to different institutions; different defendants; different factual basis. The moving party has not shown that he may be adversely affected by a judgment in this proceeding given the lack of commonality. Each plaintiff is able to seek stand alone decisions based upon their unique factual and legal circumstances.

23At law, plaintiffs may pursue similar tort actions based on completely different factual circumstances against completely different and unrelated defendants, and succeed in their action where the other may fail. It defies logic to understand how the moving party believes that he has an interest in the subject matter of this proceeding or that he might be adversely affected by a judgment in this proceeding.

24Finally, the moving party has failed to show that a common question of law or fact exists between himself and one or more of the parties in this proceeding as required by Rule 13.01(1)(c) . While both have plead similar causes of action and perhaps even similar fact patterns, he has not shown a connection to the proceedings beyond “mere similarity”.

25Mr. Elguindy’s argument, in brief is as follows. Rule 13.01, he says, requires that he state that he has a claim in relation to subparagraph (a), (b), or (c). He says he does, and refers to his statement of claim in action number 28/11,which is based upon the same claims for negligence, or in the alternative, misfeasance of named parole officers, unrelated to this action.

26Mr. Elguindy suggests that Rule 13 only requires that he say he has a claim, and that is sufficient. He alleges he has no further onus, and that rather it is upon the defendants, he says, to disprove that he has such claims. He relies upon the plain meaning of the word “claims” and suggests that courts and judges who have interpreted this rule otherwise are wrong. As he put it, the “plain meaning” of the words is all that is required.

27He has not demonstrated to the court that there are questions of fact or law common between parties because they are all members of a common class or that their claims arose from the same factual matrix such as was the case in Andrews⁷

28The moving party therefore has not met the onus to be added as a party pursuant to Rule 13.01(1)(a) or (b) or (c). If I am wrong in this regard, I would still decline to exercise my discretion under Rule 13.01(2) in favour of the moving party.

29In the first instance, these two proceedings involve distinct, private disputes as between each plaintiff and different defendants. The fact that these actions are relating to the Corrections and Conditional Release Act does not elevate it to a matter of serious public interest. Such leave to intervene in these private disputes should not be exercised as the moving party has failed to meet the heavy burden on him as a proposed intervenor to justify the intervention.

30Further, I am not satisfied that the moving party would make a useful contribution to the plaintiff’s case. While he may believe he has required a certain knowledge and expertise of the law as a result of being an inmate in various institutions, administered by Correctional Services Canada, the fact is that each action is based on very different facts and against different defendants. The moving party has no evidence to contribute to the matter before the court. No doubt his involvement would complicate and cause the action to be far longer than necessary. The defendants in this matter would be prejudiced in being forced to answer allegations raised by an intervenor who is involved in totally separate litigation based upon different facts and involving unrelated defendants. I believe the involvement of the moving party would unnecessarily add to the complexity of the proceeding before this court. Different plaintiffs with different alleged tortfeasors and public officers against whom misfeasance in public office is being claimed, are purely private as between the plaintiff in this case and the moving party in his case.

31I am therefore dismissing the moving party’s motion in its entirety.

32If the parties are unable to agree on costs, each may submit no more than two written pages (excluding actual time dockets) within twenty (20) days of the date of this order for my consideration.

Footnotes

1. 1See Andrews v. Ontario (Minister of Transportation), 2012 ONSC 3146
2. 2See Andrews, supra, at paragraph 8
3. 3See Rule 13.01(1)(b) and Andrews v. Ontario (Minister of Transportation), supra, at paragraph 8
4. 4See Andrews, supra, at paragraph 7
5. 5See Lynch v. Segal, [2006] O.J. No. 4810, at paragraph 28
6. 6See Andrews, supra, at paragraph 11
7. 7See Andrews, supra