COURT FILE NO.: C-2453-13
DATE: 2014-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ryan McIlvenna
Plaintiff
– and –
The City of Greater Sudbury, Kevin Lyle, Victor Leroux, The Greater Sudbury Police Services Board, Her Majesty the Queen in Right of Ontario
Defendants
Ryan McIlvenna, acting in person/Responding Party
Spencer D.W. Ball, for the Defendants The City of Greater Sudbury, Victor Leroux and The Greater Sudbury Police Services Board/Moving Parties
No one appearing for Defendants Kevin Lyle and Her Majesty the Queen in Right of Ontario
HEARD: April 25, 2014
DECISION ON MOTION
GAUTHIER, J.
THE MOTION:
[1] The Defendants, the City of Greater Sudbury, Victor Leroux, and the Greater Sudbury Police Services Board, seek (a) an Order striking out the Amended Statement of Claim or dismissing the claim as disclosing no reasonable cause of action or, (b) in the alternative, an Order striking out paragraphs 21 and 22 of the Plaintiff’s Amended Statement of Claim.
[2] The Defendants rely on Rule 21.01(1)(b) with regard to the relief sought in (a) alleging that the Amended Statement of Claim discloses no reasonable cause of action.
[3] With regard to the relief sought in (b), the Defendants rely on Rule 25(11), submitting that paragraphs 21 and 22 of the Claim constitute evidence in breach of Rule 25.06, and refer to irrelevant information constituting an abuse of process.
[4] Although the motion material made reference to the Plaintiff’s claim being frivolous, vexatious or otherwise an abuse of process, and that one of the grounds for the relief sought was the provision of Rule 21.03(d), the moving parties did not seek an Order striking the Claim as being frivolous, vexatious or otherwise an abuse of process, either in the Notice of Motion or in the Factum. Counsel for the moving parties made no submissions regarding Rule 21.03(d). Accordingly, I have not addressed that issue.
[5] The other Defendants, Kevin Lyle and Her Majesty the Queen in Right of Ontario, did not appear nor file any material on the motion.
The Facts:
[6] The facts are concisely set out in the Moving Parties’ Factum as follows.
[7] The Plaintiff suffers from asthma and uses marijuana daily as a medication in order to prevent asthma attacks. He has a federal license to possess and use marijuana.
[8] On September 28, 2012, the Plaintiff was scheduled to attend at the Sudbury Courthouse on unrelated legal matters. In advance of the hearing date, he approached Kevin Lyle, the Manager of Court Operations, to request accommodation to smoke the marijuana.
[9] Kevin Lyle told the Plaintiff that he could use the marijuana outside as smoking is not permitted inside the Courthouse.
[10] On the morning of September 28, 2012, the Plaintiff was smoking marijuana outside the Courthouse, but on the Courthouse property. At the same time, the Plaintiff was filming a video on his cell phone which is now posted on Youtube.com. Three police officers, including the Defendant Victor Leroux, approached the Plaintiff and advised him that he was under arrest for trespass.
[11] The Plaintiff produced his license to possess and use marijuana to the police officers. The Defendant Leroux told the Plaintiff that he did not care what the permit said and that if the Plaintiff did not leave the property to use the marijuana, he would be arrested for trespass.
[12] The Plaintiff left the Courthouse property and went to the opposing sidewalk to smoke the marijuana. The Plaintiff was neither detained nor arrested.
The Claim:
[13] In the Amended Statement of Claim, the Plaintiff seeks the following relief:
a) General damages in the amount of $500,000;
b) Special damages for mental anguish in the amount of $100,000;
c) Punitive damages in the amount of $100,000;
d) An award for damages under s.24(1) of the Canadian Charter of Rights and Freedoms;
e) An order that allows all persons who use cannabis as medicine, access to all public service facilities, whereby their right to equality under the law is not breached, and they are provided with an area that is heated and ventilated in order to smoke or vaporize their medicine i.e. in video court;
f) Pre and Post Judgment interest.
[14] The Plaintiff seeks monetary compensation for (a) intimidation/intentional infliction of mental suffering, (b) breach of his s.7 Charter right, and (c) discrimination – breach of his s. 15 Charter rights.
Intimidation/Intentional Infliction of Mental Suffering
[15] The Plaintiff claims that Victor Leroux’s threat to arrest him if he did not leave the Courthouse property to use the marijuana was intimidation for which he is entitled to damages:
The Plaintiff felt threatened by the threat of unlawful arrest, and claims that he was intimidated, which amounts to the tort of intimidation and claims damages thereof[sic].
Further, the Plaintiff claims that the intimidation amounts to an intentional infliction of mental suffering, and claims damages thereof[sic].
Breach of s. 7 Charter Right
[16] The Plaintiff claims damages pursuant to s. 24(1) of the Charter for breach of his section 7 rights:
- Further, the Plaintiff claims that his disability requires him to use smoked cannabis/marijuana and that the threat of arrest constitutes a breach to[sic] his right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms (“Charter”), and claims damages thereof[sic], pursuant to s. 24(1) of the Charter.
Discrimination - Breach of s. 15 Charter Right
[17] The Plaintiff claims that he was discriminated against by both Kevin Lyle and Victor Leroux:
Further, the Plaintiff claims that the Defendant, Kevin Lyle is responsible for discriminating against him and all other persons who use marijuana as a medicine by not providing accommodation for this disability, even though the Court House provides accommodations for persons with physical disabilities by providing wheel chair access, ramps, automatic doors, and elevators, etc. The Plaintiff claims damages thereof[sic]
Further, the Plaintiff claims that he felt discriminated against because his disability requires him to use smoked cannabis/Marijuana and that the threat of arrest constitutes a breach of the right to be treated equally, before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex age or mental or physical disability, as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms (“Charter”), and claims damages thereof[sic], pursuant to s. 24(1) of the Charter.
Impugned Paragraphs
The Plaintiff was already in the process of a Civil Action against the Greater Sudbury Police Services Board at the time of this altercation as a result of serious actions committed against him at an earlier time and the Plaintiff believes that the Defendants were well aware of the ongoing matters.
At a Pre Enquete hearing relating to the ongoing Civil Action, officer Teed said that they, referring to himself, Cst. Leroux, and another member of the GSPS, acted on the suspicion that the Plaintiff was using cannabis and decided to confront him on September 28, 2012.
Plaintiff’s Position
[18] The Plaintiff objects to (a) not having been accommodated within the Courthouse and (b) having been made to leave the smoking area outside the Courthouse because he was smoking marijuana.
[19] The Plaintiff was embarrassed in public as a result of the events of September 28, 2012. He was discriminated against and he was “picked on.”
[20] With regard to paragraphs 21 and 22, the Plaintiff says the police had a motive to prevent him from attending court on September 28, 2012, which would have negatively impacted on his already existing civil action against the Greater Sudbury Police Services Board.
[21] The Plaintiff pointed out that he could have been arrested on September 28, 2012, absent from his trial, and consequently found guilty. That did not actually happen.
[22] The Plaintiff did acknowledge, in his submissions on the motion, that the police officer(s) did not prevent or attempt to prevent him from attending his court hearing on September 28, 2012.
The Law on Motions to Strike Pleadings
[23] The tests to be applied on motions to strike were succinctly set out by Strathy J. (as he then was) in Carney Timber Co. v. Pabedinskas, 2008 CanLII 63163 (ON SC), [2008] O.J. No. 4818, 173 A.C.W.S. (3d) 89, at paras. 11 and 16:
11 The test to be applied under Rule 21.01(1)(b), on a motion to strike a pleading on the ground that it discloses no reasonable cause of action or defence is well-settled, and has been reviewed recently by the Court of Appeal in Lysko v. Braley et al. (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.) as well as in the leading case of Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959:
the Court must accept the facts alleged in the pleading as proven, unless they are patently ridiculous, or incapable of proof;
it must be "plain and obvious" that the claim cannot succeed - the pleading must have a "radical defect" before the party will be driven from the judgment seat; and
the pleading should be read generously, with allowance for inadequacies due to drafting deficiencies.
16 Rule 25 was examined by Madam Justice Epstein in George v. Harris (2000), 97 A.C.W.S. (3d) 225, [2000] O.J. No. 1762 (S.C.J.), particularly at paras. 19-23 and by Madam Justice Molloy in Brodie v. Thomson Kernaghan & Co., [2002] O.J. No. 1850, (2002), 27 B.L.R. (3d) 246 (S.C.J.), particularly at paras. 26-28. I would summarize their observations as follows:
a fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious;
a pleading that has no material facts is frivolous and vexatious;
a pleading that is superfluous or can have no effect on the outcome of the action is scandalous, frivolous and vexatious;
portions of a pleading that are irrelevant, argumentative, inserted only for colour or are bare allegations without material facts in support, will be struck as scandalous;
a pleading that is purely argumentative will be struck out;
a pleading that contains unfounded and inflammatory attacks on the integrity of a party, and speculative and unsupported allegations of defamation will be struck as scandalous and vexatious;
a pleading may be struck on the ground that it may prejudice or delay the fair trial of the action where the probative value of the evidence would be outweighed by the time and effort involved and would seriously interfere with the fair and focused trial of the issues;
striking a pleading on the ground that it may prejudice or delay the fair trial of an action is an exercise in discretion - the court must balance the added complexity of the pleading against the potential probative value of the facts alleged;
pleadings that are replete with conclusions, expressions of opinion and contain irrelevant matters will be struck in their entirety; and
pleadings that are clearly designed to use the judicial process for an improper purpose are an abuse of process - these include harassment and oppression of other parties by multifarious proceedings, the re-litigation of issues previously decided and the litigation of matters that have been concluded.
ANALYSIS:
[24] The first step in determining whether or not the impugned pleading should be struck as disclosing no reasonable cause of action is to review the constituent elements of each of the causes of action claimed. I then determine if it is “plain and obvious” that each claim cannot succeed, on a generous reading.
Intimidation/Intentional Infliction of Mental Suffering
Intimidation:
[25] A cause of action in intimidation must be supported by alleged facts that are capable of establishing that (a) the party threatened to commit an act or to use unlawful means against the interest of the threatened person, (b) the threat caused the threatened person to do or refrain from doing something he or she was entitled to do, and (c) the party making the threat intended to injure the threatened person: see Central Canada Potash Co. v. Saskatchewan, 1978 CanLII 21 (SCC), [1979] 1 S.C.R. 42.
[26] While the Plaintiff has pleaded facts which could meet the test in (a) and/or (b) above, there are no material facts pleaded to support the proposition that Victor Leroux intended to injure the Plaintiff.
[27] Additionally, the threat of arrest does not amount to intimidation where the maker of the threat is following a course of action that he or she believed to be lawful: see Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331, 2003 CarswellOnt 5574 (Ont. S.C.).
[28] See also paragraphs 8, 9, 10, and 11, inclusive, of the Statement of Defence and Cross-Claim of the Defendants, The City of Greater Sudbury, Victor Leroux and The Greater Sudbury Police Services Board to the Amended Statement of Claim, dated March 22, 2013.
[29] In the absence of material facts to support the constituent elements of the tort of intimidation, in particular the third requirement that there be an intention to injure the Plaintiff, it is plain and obvious that this claim cannot succeed.
Intentional Infliction of Mental Suffering:
[30] The intentional infliction of mental suffering also gives a person a right to judicial redress or relief against another, provided the constituent elements are present.
[31] To establish this cause of action, a party must show: (a) flagrant and outrageous conduct; (b) calculated to produce harm; and (c) resulting in a visible and provable injury (see Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474, [2002] O.J. No. 2712, citing Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (BC SC), [1984] 3 W.W.R. 296, 29 C.C.L.T. 78 (B.C.S.C.)).
[32] The second element was described in Prinzo at para. 61 as follows: “… for the conduct to be calculated to produce harm, either the actor must desire to produce the consequences that follow, or the consequences must be known by the actor to be substantially certain to follow.” This standard was affirmed recently by the Ontario Court of Appeal in Piresferreira v. Ayotte, 2010 ONCA 384, 319 D.L.R. (4th) 665, where it was emphasized that “[t]he extent of the harm need not be anticipated, but the kind of harm must have been intended or known to be substantially certain to follow” (para. 78).
[33] The third element of this tort requires that there be a “visible and provable illness” resulting from a party’s conduct. In Prinzo, the court was satisfied of this requirement, finding that “…the emotional distress was such that it was manifested in physical illness documented by a physician” (para. 62).
[34] The following paragraphs relate to the Plaintiff’s allegation of intentional infliction of mental suffering by Victor Leroux and The Greater Sudbury Police Services Board:
Within minutes, the Defendant, Cst. Victor Leroux badge #7416 of The Greater Sudbury Police Services Board and two other members of The Greater Sudbury Police Services Board; Officer Mead, and Officer Teed, confronted the Plaintiff outside were[sic] he was smoking his medicine.
During this altercation, Cst. Leroux #7416 told the Plaintiff that by way of the Queen, he was under arrest for trespass.
It is the Plaintiff’s claim that the Defendant(s) Victor Leroux, and the Greater Sudbury Police Services Board were aware of the medical exemption that the Plaintiff was in possession of prior to the confrontation September 28, 2012.
The Defendant Victor Leroux told the Plaintiff that he did not care what the permit said and that if he did not vacate the property when he was using his medicine that he would be arrested for trespass.
[35] Nowhere in the pleading does the Plaintiff allege that Victor Leroux and/or the Greater Sudbury Police Services Board intended or desired to inflict mental suffering on him. Thus, there is no basis for the second constituent element that the conduct was calculated to produce harm.
[36] Even if the first and second elements are supported in the facts, it is plain and obvious that the claim cannot succeed on the third element since the Claim does not plead a “visible and provable” medical illness. At most, the Claim alleges that the Plaintiff felt threatened by the possibility of unlawful arrest. The facts are silent on the specific harm that was allegedly manifested from the conduct of the officers and whether the harm resulted in a physical illness. As such, the plaintiff fails on the third constituent element described above.
[37] Even on a generous reading of the Amended Statement of Claim, it does not disclose a reasonable cause of action based on the claim of Intimidation or Intentional Infliction of Mental Suffering.
Breach of s. 7 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html):
[38] In order to bring a claim under s. 7 of the Charter there must be causation between the actions of the state and actual or potential deprivation of life, liberty or security of the person. The statement of claim must disclose facts that demonstrate a causal chain that is neither remote nor speculative: see Operation Dismantle Inc. v. Canada, 1985 CanLII 74 (SCC), [1985] S.C.J. No. 22, [1985] 1 S.C.R. 441 (S.C.C.) at para. 3. In Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court of Canada affirmed that the appropriate test is one of a “sufficient causal connection,” described at paras. 75-76 as follows:
75 I conclude that the "sufficient causal connection" standard should prevail. This is a flexible standard, which allows the circumstances of each particular case to be taken into account. Adopted in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, and applied in a number of subsequent cases (see e.g. United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3), it posits the need for "a sufficient causal connection between the state-caused [effect] and the prejudice suffered by the [claimant]" for s. 7 to be engaged (Blencoe, at para. 60 (emphasis added)).
76 A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21). A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link….
[39] A court must be satisfied that the interest said to be infringed falls within at least one of the following three rights sought to be protected: right to life, right to liberty, or security of the person.
[40] State action giving rise to an increased risk of death has been held to engage the s.7 right to life. This may be by indirect means, such as is the case with barriers to accessing health care for life-threatening conditions: see Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] S.C.J. No. 33, [2005] 1 S.C.R. 791.
[41] The s. 7 right to liberty protects two interests: (1) freedom from physical restraint; and (2) the making of “fundamental personal choices” free from state interference, consistent with conceptions of autonomy and human dignity: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 49-50. In Blencoe, the Supreme Court of Canada cautioned that “such personal autonomy is not synonymous with unconstrained freedom” (para. 54). Examples of fundamental personal choices engaged by the s. 7 right to liberty have included the right of a woman to terminate a pregnancy (R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385), and the right of parents to nurture and to choose medical treatments for their children (R.B. v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315, [1994] S.C.J. No. 24 at para. 83).
[42] Finally, security of the person is a protected interest with physical and psychological aspects: see Prentice v. Canada (Royal Canadian Mounted Police), 2005 FCA 395, [2005] F.C.J. No. 1954, [2006] 3 F.C.R. 135, leave refused [2006] C.S.C.R. no. 26.
[43] The right to security of the person protects bodily integrity in a physical sense. It has been engaged by state action causing a risk to health (R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] S.C.J. No. 1, [1988] 1 S.C.R. 30) and by state action restricting an individual’s ability to make choices affecting his or her own body (Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] S.C.J. No. 94, [1993] 3 S.C.R. 519).
[44] State action that seriously interferes with the psychological integrity of a person has also been found to engage security of the person under s. 7: New Brunswick (Minister of Health and Community Services) v. G. (J,), 1999 CanLII 653 (SCC), [1999] S.C.J. No. 47, [1999] 3 S.C.R. 46. The Supreme Court of Canada in Blencoe recognized that state-induced psychological stress could breach a s. 7 right to security, but rejected that the Commission’s delays in that particular case had a severe enough psychological impact on the plaintiff. This branch of s. 7 has extended to serious state conduct resulting in psychological stress where the conduct genuinely affects the psychological integrity of an individual.
[45] Limits on access to medical treatments have also engaged the right to security of the person (Chaoulli), including prohibitions on the use of a particular medication, pharmaceutical product, or similar substance in a context where there is an established medical therapeutic use: see Hitzig v. Canada, 2003 CanLII 30796 (ON CA), [2003] O.J. No. 3873, 231 D.L.R. (4th) 104.
[46] I have, earlier in this Ruling, reproduced paragraph 20 of the Amended Statement of Claim which relates to the claim of a breach of s. 7 of the Charter. The Plaintiff alleges that the threat of arrest lies at the heart of his s. 7 claim.
[47] Although the pleadings do not particularize or identify the individual interest said to be infringed, and whether that individual interest falls within the meaning of “life, liberty, and security of the person,” I conclude that security of the person is the protected interest at play. The state action of threatening the Plaintiff with arrest for trespass did not give rise to an increased risk of death, or an increased risk of a life-threatening condition (s. 7 right to life). Nor was the Plaintiff physically restrained or prevented from making fundamental personal choices (s. 7 right to liberty). More specifically, having to leave the Courthouse property and medicate on the opposite sidewalk cannot be characterized as impacting on one’s ability to make personal choices of central importance. If the Plaintiff had considered this to be an important personal choice, the Claim is silent on the issue.
[48] Rather, it appears that the individual interest said to be infringed is the right of access to medical treatments, therefore engaging security of the person.
[49] The Plaintiff claims that his right to possess and use marijuana as a medical treatment was infringed by the threat of arrest unless he vacated the property at 155 Elm St.
[50] The pleading does set out a causal connection between the action of the state (the threat of arrest if the Plaintiff did not vacate the Courthouse property) and the actual or potential deprivation of the right to use marijuana for medical purposes on public property in a designated smoking area.
[51] That said, the pleading contains only the assertion that the Plaintiff felt threatened. There is no discussion of what impact the threat of arrest had on the Plaintiff, psychological or otherwise. In Chaoulli¸ for example, the facts supporting the s. 7 claim of a risk to security of the person included that delays in surgical procedures increased patients’ risk of irreparable harm or even mortality. Similar facts substantiated the s. 7 claims in Morgentaler.
[52] Moreover, the Plaintiff has not pleaded any material facts to support his claim for compensable damages as a result of the threat of arrest.
[53] The Plaintiff has claimed relief pursuant to s. 24(1) of the Charter which provides as follows:
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[54] A two-step inquiry is required to determine whether damages should be awarded under s. 24(1) of the Charter. First, it must be determined whether or not a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to the related functions of compensation, vindication and/or deterrence (Ward at para. 34).
[55] The remedy available pursuant to s. 24(1) of the Charter may include constitutional or public law damages. An action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable”: see Dunlea v. Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81, cited in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 at para. 22.
[56] This concept was described further in Ward at para. 22:
The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual’s constitutional rights. An action for public law damages – including constitutional damages – lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action.
[57] Thus, a claim for public law damages under s. 24(1) must be brought against the state, not against individual actors. Accordingly, the Plaintiff is not entitled to pursue the claim for damages as against Kevin Lyle or Victor Leroux for a breach of his s. 7 Charter rights. In addition, there are no material facts pleaded which support any cause of action against Her Majesty the Queen in Right of Ontario.
[58] Even if there were facts supporting a cause of action for public law damages against the remaining Defendants, step two of the s. 24(1) analysis requires that damages be appropriate and just to the extent that they serve a useful function or purpose: Ward at para. 24. There are three interrelated functions that damages under s. 24(1) may serve: compensation, vindication, and deterrence: Ward at para. 25.
[59] The first function is to compensate a claimant for personal loss, be it physical, psychological, or pecuniary. The pleading does not set out any material facts relating to any personal loss: physical, psychological, or pecuniary.
[60] Even on a generous reading of the Amended Statement of Claim, it does not meet the second step. The pleading does not set out any material facts to support the bare claim for “an award for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms” (at paragraph 1 a) of the Claim). The pleading discloses no factual basis upon which a court could consider an “appropriate and just remedy.”
[61] Thus, even if I accept the facts alleged in the pleading as proven, it is plain and obvious that the claim as pleaded will fail. I conclude that the Plaintiff’s pleading regarding the alleged breach of his s.7 Charter rights does not disclose a reasonable cause of action.
[62] I turn now to the third cause of action raised in the Amended Statement of Claim.
Breach of s. 15 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[63] The Plaintiff appears to be seeking a public law remedy of damages under s. 24(1), alleging discrimination and breach of s. 15 of the Charter.
[64] The purpose of s. 15 as expressed by the Supreme Court of Canada in Law Society British Columbia v. Andrews, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, at para. 34, is “to ensure equality in the formulation and application of the law.” It is to protect against a law, which because of irrelevant personal differences, has a more burdensome or less beneficial impact on one person or group over another (Andrews, at para. 26).
[65] In R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, the Supreme Court of Canada reformulated the existing Andrews test for s. 15 into two succinct questions (para. 17):
(1) Does the law create a distinction based on an enumerated or analogous ground?
(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
[66] In Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 at para. 41, Iacobucci J., writing on behalf of a unanimous court, noted that the Supreme Court of Canada has always recognized that the essential ingredient to found a s. 15(1) discrimination claim is “the existence of a conflict between an impugned law and the purpose of s. 15(1)” (emphasis added). It is important to note that “discrimination” under this section is limited to discrimination caused by the application or operation of a law: see Andrews at para. 38, cited in Ayangma v. Eastern School Board, 2010 PECA 2, 293 Nfld. & P.E.I.R. 151 at para. 14, application for leave to appeal dismissed in [2009] S.C.C.A. No. 19.
[67] Canadian courts have traditionally taken a restrictive approach to the range of government action caught by the term “law” under s. 15, and have even excluded programs created by exercises of discretion conferred by statute: see P. W. Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007), at p. 612-13. More recently, however, there has been an expansion of the term “law” to include such things as a collective agreement, program or activity (Hogg, 613).
[68] Not every example of differential treatment at law will breach the equality guarantee. Moreover, even if a Plaintiff is able to convince a court that there has been discrimination, meaning that the impugned law is in breach of s. 15, the government then has an opportunity to justify the discriminatory law under s. 1 of the Charter (Hogg, at p. 621).
[69] I turn now to the issue of whether the s. 15 claim can proceed as it is pleaded in the Amended Statement of Claim.
[70] The pleadings set out the following with respect to the s. 15 claim, in addition to paragraphs 7-10 of the Amended Statement of Claim already reproduced in these reasons:
Further, the Plaintiff claims that the Defendant, Kevin Lyle, is responsible for discriminating against him, and all other persons who use marijuana as a medicine by not providing accommodation for this disability, even though the Court House provides accommodations for persons with physical disabilities by providing wheel chair access, ramps, automatic doors, and elevators, etc. The Plaintiff claims damages thereof[sic]
Further, the Plaintiff claims that he felt discriminated against because his disability requires him to use smoked cannabis/Marijuana and that the threat of arrest constitutes a breach of the right to be treated equally, before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex age or mental or physical disability, as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms (“Charter”), and claims damages thereof[sic], pursuant to s. 24(1) of the Charter.
[71] Insofar as the Defendant Kevin Lyle is concerned, the unequal treatment alleged by the Plaintiff appears to be as a result of the failure of Kevin Lyle to arrange for the Plaintiff to be able to smoke the marijuana inside the Courthouse. Insofar as the Defendant Victor Leroux is concerned, the unequal treatment alleged by the Plaintiff is sourced to the threat of arrest. The Plaintiff argues that both of these incidents are examples of discrimination based on disability.
[72] The pleading as drafted does not allege any facts which could constitute discrimination caused by the operation of a specified law. The Plaintiff does not point to any Act or statute, nor is there any indication in the facts that the actions of the Defendants fell under an exercise of discretion under an Act or statute. The first and essential element of the test for discrimination – i.e. that there be an impugned law imposing a disadvantage on the Plaintiff – is simply not set out in the pleadings. As a result, it is plain and obvious that the s. 15 claim cannot succeed.
[73] Even if a finding of discrimination were to be made in this case, it is unlikely that the Plaintiff would be awarded damages under s. 24(1) of the Charter. As indicated under the analysis of the alleged s. 7 Charter breach, an action for public law damages lies against the state and not the individual actors. Therefore, the Plaintiff also cannot pursue this claim as against Kevin Lyle and Victor Leroux personally.
[74] As for the remaining Defendants, the same analysis of damages under s. 7 apply to s. 15, and I reach the same conclusion. Step two of the s. 24(1) analysis requires that damages be appropriate and just. An award for public law damages must further the general objectives of the Charter and serve the functions of compensation, vindication, and/or deterrence. The Plaintiff has not set out any material facts to support a claim for an award of damages under s. 24(1) of the Charter.
IN SUMMARY:
[75] The Amended Statement of Claim discloses no reasonable cause of action. As indicated, facts relating to certain constituent elements of each of the causes of action have not been pleaded:
a) Under Intimidation/Intentional Infliction of Mental Suffering, there are no facts pleaded to support the element of intention to injure, or the desire to inflict mental suffering. In addition, no facts are pleaded to meet the requirement of proof of illness or harm.
b) With respect to the alleged s. 7 violation, although there are facts pleaded to show a causal connection between the state action of threatening arrest, and the deprivation of the Plaintiff’s right to access marijuana for medical purposes, the Claim is silent on the issue of what impact the violation has had on the Plaintiff. There are no facts pleaded to support the claim for compensable damages as a result of the alleged breach. As well, the claim for public law damages is not available as against the individual Defendants personally. The claim against Kevin Lyle and Victor Leroux for an alleged breach of s. 7 of the Charter will be dismissed without leave to amend.
c) Regarding the claim for damages under s. 15 of the Charter, the Amended Statement of Claim does not provide a factual basis to support the claim of discrimination caused by the operation of a particular law. Additionally, an action for public law damages, pursuant to s. 24(1) of the Charter, is not available as against the Defendants, Kevin Lyle and Victor Leroux, personally. Therefore, that portion of the claim will be dismissed, without leave to amend.
[76] Although, in view of the Order striking the pleading, I need not specifically address paragraphs 21 and 22, I will nonetheless deal with them.
[77] Paragraphs 21 and 22 of the Amended Statement of Claim ought to be struck as they offend Rule 25.06. The contents of those two paragraphs are not a “concise statement of the material facts on which the party relies for the claim,” but rather they are evidence. A pleading containing evidence offends the Rules. In addition, those paragraphs are superfluous and can have no effect on the outcome of the action.
CONCLUSION/ORDER:
[78] The Amended Statement of Claim, dated March 6, 2013, is struck in its entirety, as disclosing no reasonable cause of action.
[79] The claims against Kevin Lyle and Victor Leroux based on a breach of s. 7 and s. 15 of the Charter are dismissed on the merits.
[80] The Plaintiff is granted leave to deliver a Further Amended Statement of Claim within 30 days of this Order, failing which the action will be dismissed.
[81] If the parties are unable to agree on costs, the moving parties may make written submissions as to costs within 20 days of the release of these reasons for decision.
[82] The submissions will consist of no more than five pages, double-spaced, in addition to any pertinent offers and draft bills of costs.
[83] All submissions are to be forwarded to me at 155 Elm St. Sudbury, Ontario, P3C 1Y9.
[84] If no submissions are received within this timeframe, the parties will be deemed to have resolved the issue of costs as between themselves.
The Honourable Madam Justice L.L. Gauthier
Released: May 29, 2014
COURT FILE NO.: C-2453-13
DATE: 2014-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ryan McIlvenna
Plaintiff
– and –
The City of Greater Sudbury, Kevin Lyle, Victor Leroux, The Greater Sudbury Police Services Board, Her Majesty the Queen in Right of Ontario
Defendants
DECISION ON MOTION
Gauthier J.
Released: May 29, 2014