COURT FILE AND PARTIES

COURT FILE NO.: CV-13-494362

DATE: 20140626

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary David Brown, a.k.a. Gary David Robert Brown, Station Attendant Emeritus, Plaintiff

AND:

Her Majesty The Queen in Right of Canada Queen Elizabeth II, C.C. Sovereign of Canada, His Excellency The Governor General of Canada, The Right Honourable David Johnston, C.C., The Right Honourable Stephen J. Harper, P.C/, M.P., Prime Minister of Canada, The Hon. Robert Nicholson, P.C., M.P., Minister of National Defence, Hon. Peter C. Mackay, P.C., M.P., Past Minister of National Defence, Madam Kim Campbell, P.C., Past Minister of National Defence, Mr. Guy Parent The Veterans Ombudsman and all Past and Present Agents and Assigns Thereof and all the Heirs and Successors of Same, Defendants

BEFORE: Carole J. Brown, J.

COUNSEL: Plaintiff representing himself

Rina M. Li, for the Defendants

HEARD: ________________________

ENDORSEMENT

[1] The defendants, the Atty. Gen. of Canada ("AGC"), bring this motion to strike the statement of claim in the within action on the ground that the claimant seeks relief that is unavailable at law, discloses no reasonable cause of action, and is otherwise scandalous, frivolous, vexatious and an abuse of the court process. The defendants submit that there is no recognizable cause of action.

[2] The plaintiff’s statement of claim was served on December 16, 2013 team and a notice of intent to defend was served and filed on December 27, 2013.

[3] The statement of claim is brought as against her Majesty in Right of Canada Queen Elizabeth II, His Excellency the Gov. Gen. of Canada, the Right Hon.'s Steven Harper, Robert Nicholson, Peter McKay, Kim Campbell, and Mr. Guy Parent. The 14 paragraph pleading lists 13 claims, including breach of contract, abuse of power, dereliction of duty, professional misconduct, negligence, malice, complicity, duplicity, sabotage, misrepresentation, breach of position of trust, conspiracy to commit murder and attempted murder. The plaintiff claims damages in the total amount of just under $1,000,000.

[4] The issue to be determined by this Court is whether the statement of claim discloses a reasonable cause of action known to law.

Whether the Statement of Claim Discloses a Reasonable Cause of Action

Rule 21.01(1)(b)

[5] Rule 21.01(1)(b) permits the court to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. No evidence is admissible on a motion pursuant to this rule.

[6] The test for determining whether a pleading should be struck is whether, assuming the facts as stated in the statement of claim can be proven, it is plain and obvious that no reasonable cause of action is disclosed. The pleading should not be struck if there is a chance that the plaintiff may succeed. Only if the action is certain to fail because it contains a radical defect should the relevant portions of the statement of claim be struck: Hunt v Carey Canada Inc., 1990 90 (SCC), [1990] S.C.J. No. 93, [1990] 2 S.C.R. 959. The issue to be determined is whether, assuming the alleged facts to be true, the action is nevertheless certain to fail: Louie v Lastman [2002] O.J. No. 3522, 61 O.R. (3d) 459 (Ont. C.A.).

[7] The governing principles as regards striking a statement of claim are as follows: all allegations of fact, unless patently ridiculous or incapable of proof, must be accepted as proven; the defendant, in order to succeed, must show that it is plain and obvious beyond doubt that the plaintiff could not succeed; the novelty of a cause of action will not militate against the plaintiff; the statement of claim must be read generously to allow for drafting deficiencies; and if the claim has some chance of success, it must be permitted to proceed. The threshold for sustaining a pleading is not high: McKinnon v Ontario Municipal Employees Retirement Board, [2007] O. J. No. 4860, 2007 ONCA 874 (Ont. C.A.).

[8] The plain and obvious test does not absolve the plaintiff from the obligation to observe the rules of pleading. The cause of action asserted may be found to be legally insufficient if there has been a failure to plead material facts necessary to establish the legal elements of a recognized cause of action or if it is clear that the law does not recognize the cause of action on which the plaintiff seeks to rely.

[9] In the case before the Court, the plaintiff’s allegations are simply a list of claims, with no or no sufficient material facts pled. There are no requisite elements of any claims which would be necessary in order to support the legal elements of the causes of action pled. The claims are deficient and, in some cases, not known to law. The rules of pleading have not been observed. Based on my review of the statement of claim and taking into account that it must be read generously to allow for drafting deficiencies, I find that it is devoid of a sustainable cause of action, as well as supporting material facts required. It is neither clear nor concise, is vague and, for the most part, unable to be understood. It does not comply with the rules of pleading.

[10] Other than the title of proceeding, there are no allegations specifically as against the numerous defendants listed. The claim refers to a contract the plaintiff entered into in or about April of 1980 between himself and the Minister of the Department of National Defence and makes allegations of "attempts to entrap" and attempts on his life by his then commanding officer. No names are given. I note that the limitation period would have long ago expired as regards the alleged contract.

[11] I find that the statement of claim does not disclose a reasonable, sustainable cause of action and should be struck in its entirety. Given the deficiencies in the claim, I do not find that it could be salvaged by amendment, and accordingly, leave to amend is not warranted.

[12] Based on the foregoing, I order the statement of claim to be struck without leave to amend.

[13] The need for approval of the Order as to form and content is dispensed with.

Carole J. Brown J.

Date: June 26, 2014