ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Jordan v. Attorney General of Canada, 2015 ONSC 1074
COURT FILE NO.: CV-14-419
DATE: 2015/02/20
B E T W E E N:
RYAN JORDAN
Plaintiff
Ryan Jordan in person
- and -
Attorney General of Canada, Curtis Jackson (CBI Warden), Crystal Thompson (CBI Deputy Warden of Intervention), Leslie Ottenhof (CBI Manager of Assessment and Intervention) Stephanie King-Sanders (CBI Parole Officer, and CBI Segregation Unit)
Defendants
Korinda McLaine, for the Defendants
ARGUED: February 11, 2015 (Kingston)
HACKLAND J.
REASONS FOR DECISION
Background:
[1] This is a motion by the defendants to strike paragraphs of the plaintiff’s Statement of Claim on the ground that it discloses no cause of action or are improperly pleaded. The defendants also seek an order dismissing the claims against the individual defendants. The plaintiff is self-represented. He is an inmate in a federal penitentiary serving two concurrent sentences of life imprisonment for the shooting of two individuals.
[2] Crown counsel advised the court that the defendants hope by this motion to compel the plaintiff to streamline and clean up the Statement of Claim. For his part, the plaintiff said that he had done his best as a layperson to prepare a proper pleading and that the conduct he sought to address in his pleading was ‘retaliatory conduct’ by prison officials which resulted in him being summarily transferred from a minimum security penitentiary to a medium security penitentiary for a seven month period. He relies on a decision of Tranmer J. dated April 25, 2014 which granted his application for Habeas Corpus and declared the transfer to be unlawful due to an apprehension of bias and a lack of procedural fairness on the part of prison officials.
DISPOSITION
[3] The Statement of Claim is 107 paragraphs in length. It is well organized, using appropriate headings for the 6 torts and the Charter Claims he seeks to put forward. On the other hand, the plaintiff has totally failed to recognize the distinction between the proper pleading of the material facts supporting the causes of action he relies on versus the improper pleading of evidence. In fact, much of the claim is evidence, opinion and argument and is, therefore, improper. Generally, the torts pleaded lack some or all of the necessary factual elements to constitute these torts.
[4] After due consideration, I have decided to strike out the Statement of Claim in its entirety with leave to amend in accordance with directions set out in these reasons. I take this course because the required amendments are so extensive as to require a new pleading. The plaintiff is advised to delete causes of action which cannot be supported by the facts.
Review of the Statement of Claim
[5] Title of Proceedings – the “CBI Segregation Unit” is a named defendant. This is clearly not a suable entity and will be struck.
[6] The plaintiff has named as defendants, 5 officials of the Canadian Penitentiary Service who, he pleads, were involved in his allegedly unlawful transfer. These individual defendants were, at all material times, servants of the federal Crown and acting within the course of their employment. There is no suggestion in the pleading that these individuals were acting outside of their normal job functions. The Attorney General, who is properly named as a defendant, would be vicariously liable for any torts or Charter breaches which might be established on this factual scenario. Ms. McLaine, counsel for the Attorney General, has undertaken on the record on this motion that the Attorney General will accept vicarious liability for any finding in this proceeding against the individual defendants. The individual defendants are struck from the Statement of Claim together with paras. 91-99 entitled “Personal Liability” and paras. 104-107 “Vicarious Liability”.
[7] Trial by jury – section 26 of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 bars trial by jury against the Crown. Accordingly, the plaintiff’s claim for a jury trial in paragraph 4 of the Statement of Claim is struck.
[8] Misfeasance of Public Office (para.60) – the plaintiff pleads that the 3 penitentiary officials named exhibited bias and failed to provide procedural fairness in relation to bringing about his transfer to a medium security institution. The essence of this tort is acting in bad faith by engaging in deliberately unlawful conduct. No facts are pleaded to suggest or support an allegation of bad faith. This tort also requires damages. The pleading refers to “exposing the plaintiff to a higher risk situation”, which is a confusing statement requiring explanation. However, the allegation that there was an intentional restriction of the plaintiff’s liberty may arguably suffice in lieu of monetary damages.
[9] False imprisonment (para. 61) – the essence of this tort is a total or complete deprivation of an individual’s freedom of movement. As a prisoner in custody, the plaintiff has no such entitlement as it relates to his residential arrangements in a prison. The Statement of Claim simply refers to the unlawful transfer exposing him to a ‘higher risk situation’. At the least, if this cause of action is to remain in the pleading, the plaintiff must plead facts demonstrating how his freedom of movement was completely and unlawfully restricted as a result of the actions of prison officials.
[10] Conspiracy (paras. 62-69) – The Crown argues that the plaintiff has failed to plead the conspiracy allegation with adequate particulars or with any allegation of monetary damages. I disagree. The pleading alleges an agreement among the identified officials to orchestrate an improper transfer of the plaintiff to a higher security prison where his safety and privileges were at risk. An agreement to deliberately violate the institution’s policies and procedures to effect an improper transfer could, in theory, suffice to make out an unlawful act or unlawful objective so as to constitute an actionable conspiracy. Further, it is not plain and obvious that a significant restriction on personal liberty, rather than monetary damages, is required to establish the tort of conspiracy.
[11] Defamation (paras. 70-72) – In order to determine or justify the plaintiff’s transfer to a higher security institution, officials sought information from the Toronto Police relating to the plaintiff’s activities outside of the specific charges on which he was tried and convicted. In these paragraphs of the Statement of Claim, the plaintiff pleads that the defendants published highly prejudicial and defamatory comments about him and then he quotes in full the lengthy e-mail exchange between a prison official and the Toronto police. The police state in the e-mails on this subject that they suspect the plaintiff of multiple other shootings and opine that he is extremely dangerous and an escape risk. The Crown argues that no specific defamatory statements are identified and the particulars of any publication are unclear. I am of the view that lengthy quotations from documents or other correspondence are in the nature of evidence particularly in the absence of a pleading as to how the words are defamatory. On the other hand, statements that someone is a dangerous killer are self-evidently defamatory. While it can be expected that defences such as justification and qualified privilege will be pleaded by the Attorney General; that does not prevent the allegations from being put forward in the Statement of Claim if they are properly pled. I would strike out these lengthy e-mail quotations and require the plaintiff to concisely articulate what he says is defamatory, how the defamation was published and what damages he says resulted to his reputation and standing in the community.
[12] Mental suffering (paras. 74-86) – In these paragraphs, the plaintiff discusses the unfair and difficult situation he found himself in as a result of being improperly transferred to a higher security environment. There is no pleading of any medical detriment. There is no psychiatric illness of any kind. Documented actual medical or psychiatric injury is an essential element of this tort; see Heighington v. Ontario (1987) 1987 5417 (ON SC), 60 O.R. (2d) 641, aff’d 1989 4314 (ON CA), 69 O.R. (2d) 484 (C.A.). I reject the plaintiff’s submission that psychiatric harm should be assumed or inferred. The pleading of this cause of action is clearly deficient.
[13] Assault (paras. 87-90) – In these paragraphs, the plaintiff pleads essentially that he was placed in an intimidating environment. Nowhere however, is there a pleading that he was subjected to what could reasonably be viewed as an imminent apprehension of harmful or offensive physical conduct, which is the essence of this tort. The pleading of this tort is also clearly deficient.
[14] Cruel and unusual punishment (para. 100) – This pleading alleges that the unlawful transfer was a retaliatory measure by prison officials attempting to thwart a lawsuit he was pursuing against prison employees. This paragraph as pleaded is not about excessive punishment in any sense and must be struck.
[15] Freedom of Expression (paras. 101-103) – The plaintiff alleges:
Retaliation by all the Defendants in this action against the Plaintiff for exercising his freedom of expression is a violation of his constitutionally protected rights.
The Plaintiff relies on the common law, CCRA and Charter to protect him as an inmate grievor seeking redress from the government for his complaints/grievances.
I would not interfere with this pleading as it is not plain and obvious that it could not succeed, particularly in this area of developing Charter jurisprudence.
[16] Factual allegations (paras. 5-51) – these paragraphs are replete with evidence and opinion and must be struck, albeit with leave to amend.
[17] Order accordingly.
[18] The defendant is entitled to its costs if sought. I may be written to in this regard within 30 days of the release of these reasons.
Mr. Justice Charles T. Hackland
Released: February 20, 2015
CITATION: Jordan v. Attorney General of Canada, 2015 ONSC 1074
COURT FILE NO.: CV-14-419
DATE: 2015/02/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ryan Jordan
-and-
Attorney General of Canada, Curtis Jackson (CBI Warden), Crystal Thompson (CBI Deputy Warden of Intervention), Leslie Ottenhof (CBI Manager of Assessment and Intervention) Stephanie King-Sanders (CBI Parole Officer, and CBI Segregation Unit)
REASONS FOR DECISION
HACKLAND J.
Released: February 20, 2015