COURT FILE NO.: C-2835-13

DATE: 2015/07/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.F.

Plaintiff

– and –

THE GREATER SUDBURY POLICE SERVICE, THE SUDBURY POLICE SERVICES BOARD and SUDBURY POLICE ASSOCIATION, M. PAQUETTE, CRAIG MAKI, ROBIN TIPLAY, M. JEFFERY, DAVID BECK, CRAIG MOXAM, TODD BIGNOCOLLO, DAN ZULIANNI, JEFF KUHN, SUSAN LEYS, TIM BURTT, J. ROBERTSON, L. MCLOSKY, T. MARASSATO, P. SMYTH, ELAINA GROVES, SANDRA DICAIRE, PAUL MCGEE, MEAGAN O’MALLEY, JACK SIVAZLIAN, DUNCAN EPP, M. ROBINSON, GREG BERGERON, FRANK ELSNER, CONST. ELDEAMA, THE ATTORNEY GENERAL FOR ONTARIO, JOHN LUCZAK, KENDRICK ABBOTT, MERIEL ANDERSON, SUSAN BRUCE, MARC HUNEAULT, JOHN HOLLAND, LEILA MEHKERI, RUBY BECK, MICHEL J. MOREAU, MICHAEL G. KITLAR, SUSAN STOTHART, LEONARD KIM, DIANNE LAFLUER, ANDREA BEAL, RIA BIGNOCOLLO, HELENE BRYDGES, PIERRE BRADLEY LAW OFFICE, CHILDREN’S AID’S SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN, JEAN JACQUES PAQUETTE, REJEAN PARISE, COLLETTE PREVOST, NORA DOUGAN, LINDA CULLAIN, JEAN O’CONNER, DARLENE WILSON, MICHELLE GLOVER, DONALD KINGSLEY, CANDICE POULIN, KAREN FAGEN, CHRISTY CROTEAU, DEBBIE LACELLE, LAURA FOX, JODY MARCOTTE, MS. BISAILLON, LOUISE BRENDA BEAUVAIS, JOSH NEGUSANTI, PATRICIA L. MEEHAN, MINISTRY OF THE ATTORNEY GENERAL OFFICE OF THE CHILDREN’S LAWYER, SHEILA MILNE M.D., BRENDA PETRYNA, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE CHILD AND FAMILY SERVICES REVIEW BOARD, SUZANNE GILBERT and MR. OLIVER, OFFICE OF THE INDEPENDENT REVIEW DIRECTOR GERRY MCNEILLY, SUSAN DUNN-LUNDY, KIM MCDONALD, BERNIE MUILLER, TERESA PIRUZZA MINISTRY OF CHILD & YOUTH SERVICES, DEB MATHEWS MINISTRY OF HEALTH, RICK BARTOLUCCI MPP FOR SUDBURY ONTARIO, VICE CHAIR STANDING COMMITTEE ON GOVERNMENT AGENCIES

Defendants

S.F., Unrepresented

Meagan Williams and Baaba Forson, for the Defendants, THE ATTORNEY GENERAL OF ONTARIO, JOHN LUCZAK, KENRICK ABBOTT, MURIEL ANDERSON, SUSAN BRUCE, MARC HUNEAULT, JOHN HOLLAND, LEILA MEHKERI, RUBY BECK, DIANE LAFLEUR, MICHEL J. MOREAU, MICHAEL G. KITLAR, SUSAN STOTHART, LEONARD KIM, ANGELLA BEAL, RIA BIGNUCOLO, HELEN BRYDGES, THE CHILD AND FAMILY SERVICES REVIEW BOARD, SUZANNE GILBERT, OLIVER URCUYO, OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR, GERRY MCNEILLY, SUSAN DUNN-LUNDY, KIM MCDONALD, BERNIE MUILLER, TERESA PIRUZZA, DEB MATTHEWS, RICK BARTOLUCCI, MINISTRY OF CHILDREN AND YOUTH SERVICES, MINISTRY OF HEALTH, MINISTRY OF THE ATTORNEY GENERAL – OFFICE OF THE CHILDREN’S LAWYER, and

Carole G. Jenkins, for the Defendants, Children’s Aid Society of the Districts of Sudbury and Manitoulin, Collette Prevost, Nora Dougan, Linda Cullain, Jean O’Connor, Darlene Wilson, Michelle Glover, Donald Kingsley, Candice Poulin, Karen Fagen, Christy Croteau, Debbie Lacelle, Laura Fox, Jody Marcotte, Louise Beauvais, Brenda Beauvais and Josh Negusanti, and

C. Kirk Boggs, for the defendants, THE GREATER SUDBURY POLICE SERVICE, THE SUDBURY POLICE SERVICES BOARD, M. PAQUETTE, CRAIG MAKI, ROBIN TIPLAY, M. JEFFERY, DAVID BECK, CRAIG MOXAM, TODD BIGNOCOLLO, DAN ZULIANNI, JEFF KUHN, SUSAN LEYS, TIM BURTT, J. ROBERTSON, L. MCCLOSKY, T. MARASSATO, P. SMYTH, SANDRA DICAIRE, PAUL MCGHEE, ELAINA GROVES, MEAGAN O’MALLEY, JACK SIVAZLIAN, DUNCAN EPP, M. ROBINSON, FRANK ELSNER, CONST. ELDEAMA, and

G.E. McAndrew, for the defendants, PIERRE BRADLEY LAW OFFICE, JEAN JACQUES PAQUETTE, and PATRICIA L. MEEHAN, REJEAN PARISE, and

Michael C. Birnie, for the defendant, SUDBURY POLICE ASSOCIATION, and

Phuong T.V. Ngo and Madeline Hall, for the defendant, Sheila Milne M.D., and

David P. Jacobs and Steven G. Bosnick, for the defendants, Brenda Petryna, and Health Professions Appeal and Review Board, and

ms. Bisaillon and GREG BERGERON, unrepresented defendants

HEARD: August 15, 2014

REASONS – ONTARIO DEFENDANTS’ Motion

KANE J.

ONTARIO DEFENDANTS

[1] This decision determines one motion brought by some of the 78 defendants, namely:

(a) The Attorney General of Ontario (the “A-G”)

(b) John Luczak, Kenrick Abbott (improperly named “Kendrick Abbott”), Muriel Anderson (improperly named “Meriel Anderson”), Susan Bruce, Marc Huneault, John Holland, Leila Mehkeri, Susan Stothart, Leonard Kim (collectively referred to as the “Crown Attorneys”)

(c) Muriel Anderson (improperly named “Meriel Anderson”) (referred to as “Employee of the Office of Crown Attorney”)

(d) Her Worship Justice of the Peace Ruby Beck, Her Worship Justice of the Peace Diane Lafleur (improperly name “Dianne Lafleur”), His Worship Justice of the Peace Michel J. Moreau, His Worship Justice of the Peace Michael G. Kitlar (collectively referred to as the “Justices of the Peace”)

(e) Angella Beal (improperly named “Andrea Beal”), Ria Bignucolo (improperly named “Ria Bignocollo”), Helen Brydges (improperly named “Helene Brydges”) (collectively referred to as the “Court Staff” and “Court Reporter”)

(f) The Child and Family Services Review Board, Suzanne Gilbert, Oliver Urcuyo (improperly named “Mr. Oliver”) (collectively referred to as the “CFSRB and Staff”)

(g) Office of the Independent Police Review Director (improperly named “Office of the Independent Review Director”), Gerry McNeilly, Susan Dunn-Lundy, Kim McDonald, Bernie Muiller (collectively referred to as the “OIPRD and Staff”)

(h) Teresa Piruzza, Ministry of Children and Youth Services (improperly named “Ministry of Child & Youth Services”), Deb Matthews, Ministry of Health, and Rick Bartolucci (collectively referred to as the “Ontario Ministers and L.A’s”)

(i) Ministry of Children and Youth Services (improperly named “Ministry of Child & Youth Services”), Ministry of Health, Ministry of the Attorney General – Office of the Children’s Lawyer (improperly named “Ministry of the Attorney General of the Children’s Lawyer”) (collectively referred to as the “Ontario Ministries and Offices”)

[2] Although presented within one motion, the differences among the above groups (collectively hereinafter referred to as the “Ontario Defendants”) require separate determinations.

MOTION OF ONTARIO DEFENDANTS

[3] The Ontario Defendants seek dismissal of this action on the basis of:

(a) Rule 21.01(l)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, based on immunity against suit and expiration of limitation periods;

(b) Rule 21.01(l)(b), as the claim discloses no reasonable cause of action;

(c) Rule 25.06(1) and (2), for failure to plead material facts;

(d) Rule 25.11, as the claim is scandalous, frivolous or an abuse of process;

(e) The absence of prior mandatory statutory notice;

(f) The absence of essential elements of a cause of action; and

(g) The absence of legal capacity to be sued.

BACKGROUND OF ACTION

[4] The Plaintiff commenced this action against these 78 Defendants on October 3, 2013.

[5] These and the other Defendants have presented multiple motions seeking dismissal of this action or summary judgment.

HISTORICAL AREAS OF CONFLICT

[6] The Statement of Claim refers to three central areas of conflict over 17 years which form the basis of the claims against the 78 Defendants.

DOMESTIC CONFLICT

[7] According to the claim, the Plaintiff and MV were common-law partners. They have one child.

[8] The relationship between the Plaintiff and MV was violent. Each frequently reported being assaulted by the other to police.

[9] This couple’s violent relationship and their care of their child form the basis of the other two areas of complaint in the Statement of Claim.

CRIMINAL PROCEEDINGS

[10] A number of complaints by MV to police lead to the arrest of the Plaintiff, the laying of criminal charges and in many cases, his conviction of criminal offences.

[11] It is alleged that MV on occasion was also arrested and charged. In his claim, the Plaintiff describes MV as manic and delusional.

[12] The Plaintiff alleges police acted improperly in their review of allegations of assault by MV against him, his arrest, the charges against him and the subsequent trials of those charges. The Plaintiff faults not only police, but Crown Attorneys, Justices of the Peace, court reporters and the judges involved in those criminal proceedings.

[13] The charges against the Plaintiff and the determination thereof are recorded in the Disposition Chart in the decision on the motion by the Sudbury Police Defendants which, subject to R. 21.01(2)(b) is incorporated by reference herein.

CHILD PROTECTION PROCEEDINGS

[14] If a child was present, the Sudbury police routinely reported instances of domestic disturbances to the Children’s Aid Society of the District of Sudbury and Manitoulin (the “CAS”). The Plaintiff alleges the information communicated by police to the CAS was false and biased against him.

[15] The CAS began monitoring this couple and their child. The CAS eventually commenced child protection proceedings (“CPP”) in 2004. The courts in those proceedings determined the child was in need of protection. A series of orders were made in the CPP which had the child residing with the mother under the supervision of the CAS for specific periods of time.

[16] Under the CPP orders, the Plaintiff was entitled initially to supervised access. Such supervised access was subsequently suspended or terminated pursuant to several court orders.

[17] The Plaintiff alleges that the CAS acted improperly in commencing and pursuing the CPP. He alleges bias and improper conduct by the CAS, the lawyers representing CAS, numerous CAS workers, healthcare providers of the child while under supervision of the CAS and the lawyer representing the Office of the Children’s Lawyer (the “OCL”).

[18] The outcome and orders in the CPP are recorded in paras. 64 to 66 of the decision on the motion herein brought by the CAS Defendants, which, subject to R. 21.01(2)(b), are incorporated by reference herein.

[19] The Plaintiff seeks damages against several Provincial Ministers and members of the Ontario Legislative Assembly, several Ontario Boards or Commissions in relation to their review of decisions and complaints related to several defendants regarding some of the above events. It is alleged the Ontario Defendants are ultimately liable for the wrongdoing of agencies and employees of those agencies of government including the CAS.

STATEMENT OF CLAIM

[20] In this 213 page, 436 paragraph Statement of Claim, the Plaintiff has grouped together most of the 78 Defendants, such as the Ontario Defendants.

[21] The Statement of Claim is problematic in that it:

(a) Is against 78 Defendants regarding events from August, 1996, until September, 2013;

(b) Frequently alleges that specified events constitute wrongdoing, without identifying the cause of action relied upon leaving the reader to guess possible alternative causes of action;

(c) Omits a statement of the material facts relied upon in support of the claims alleged as required under R. 25.06; such as paras. 56, 254, 255, 269, 271 to 274, 276, 278, 280, 281, 293 and 296;

(d) Alleges wrongdoing against persons who are not defendants as in paras. 266, 282 and 283;

(e) Clusters and alleges several causes of action in the same paragraph, rather than pleading causes of action separately together with the material facts relied upon in support thereof;

(f) Omits a statement of the material facts relied upon in support of the claims alleged as required under R. 25.06; such as but not limited to paras. 56, 254, 255, 269, 271 to 274, 276, 278, 280, 281, 293 and 296;

(g) Alleges improper motive or wrongdoing against several Defendants, but fails to specify what each of those defendants is alleged to have done, when, how etc.;

(h) Frequently alleges that named parties, for example, “X, Y, Z and the defendants” acted in an improper manner, without identifying which of the other 75 defendants that allegation is made against;

(i) Frequently alleges that “the defendants” did certain things without identifying which of the 78 defendants the allegation is against, as in paras. 85, 96, 148, 176, 192, 227, 228, 252, 269, 282 to 287, 331 and 332;

(j) Seeks damages for breach of sections 2, 7, 8 to 12, 15, 24(1) and (2) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the “Charter”), without identifying what material facts constitute the breach of which section; such as paras. 1(b), 192, 432(a) and 434; and

(k) Lists numerous specified events and allegations of fault over the period 1996 to 2013 in the “Cause of Action Material Facts” section of the claim, (paras. 29 to 146), but only refers to some of those in the subsequent “Basis For Claim” section against the particular Defendant(s).

[22] As a result, it is often unclear what allegations of fault among the many alleged causes of action referred to.

[23] The above are not simply pleading technicalities. Defendants are entitled to know the case against them. That failure impacts their right to defend. Defendants are not obligated to guess what claim is being made, whether it is against them and if so, upon what basis. Pleading rules impairs the rights of parties. It increases the cost, complexity and length of proceedings. Pleading rules apply to all parties, including self-represented parties.

[24] The sections within the Statement of Claim include:

(a) Categories of Damage claimed against each group of defendants or defendant, which combined exceeds $146 million (paras. 1 to 13);

(b) Description of the Parties (paras. 14 to 28);

(c) Cause of Action Material Facts (paras. 29 to 146);

(d) Basis For Claim against the Police Defendants (paras. 147 to 192);

(e) Basis For Claim against Ontario Attorney General and 16 Crown Attorneys (paras. 193 to 245);

(f) Basis For Claim against the local CAS, six of its representatives, two lawyers in private practice who acted for the CAS in the protection proceeding regarding the plaintiff’s son (paras. 253 to 296);

(g) Basis For Claim against P.L. Meehan and Ministry of Attorney General Office of the Children’s Lawyer (paras. 297 to 334);

(h) Basis For Claim against the defendant Dr. Milne (paras. 335 to 350);

(i) Basis For Claim against Brenda Petryna (paras. 351 to 375);

(j) Basis For Claim against the Child and Family Services Review Board and two of its representatives (paras. 376 to 387);

(k) Basis For Claim against the Office of the Independent Review Director and four of its representatives (paras. 388 to 397); and

(l) Basis For Claim against the Ontario Ministers of Child and Youth Services, the Ministry of Health and the Sudbury MLA and Vice-Chair of the Standing Committee on Government Agencies (paras. 398 to 431).

[25] The above nine “Basis For Claims” sections are not in fact exclusive to the Defendants listed at the start of each sections because:

(a) The first paragraph of each section states: “The Plaintiff re-alleges and incorporates by reference herein all of the previous claims against the other Defendants”;

(b) Many paragraphs within a section include allegations against defendants in addition to the defendants listed at the commencement of that section;

(c) Many paragraphs allege fault against identified defendants within that section and then states “and the other defendants”; and

(d) Some paragraphs name no individual, board or agency. They simply allege that “The defendants …” (paras. 283 to 287, 290 and 294 are examples)

RULES OF CIVIL PROCEDURE

[26] Under R. 21.01:

(a) Questions of law in a pleading may be determined;

(b) A pleading may be struck if it discloses no cause of action or defence;

(c) An action may be dismissed or stayed if it is frivolous, vexatious or an abuse of process; and

(d) No evidence under (a) is admissible except by leave or consent. No evidence is admissible under (b).

[27] Rule 25.06(1) requires that a pleading contain a concise statement of the material facts relied upon for the claim.

[28] Rule 25.06(2) prohibits pleading conclusions of law unless the material facts to support that conclusion are pled.

[29] Rule 25.11 cites the court’s jurisdiction to strike all or part of a pleading which:

(a) May prejudice or delay a fair trial;

(b) Is scandalous frivolous or vexatious; or

(c) Is an abuse of process.

[30] The applicable discretionary factors to prevent issue estoppel being used in an unjust or unfair way; such as the issues in the prior proceeding being comparatively of minor importance not warranting a robust response, new evidence or a tainted prior process, are equally available to prevent misapplication of abuse of process.

[31] It is an abuse of process for this Plaintiff:

(a) To use this civil proceeding to attack and seek to demonstrate the invalidity of the 11 convictions or dispositions against his interest on the Chart when he chose in each case not to appeal;

(b) To plead nothing beyond bald allegations against multiple groups each having a distinct role such as the Crown Attorneys, the CAS and Police;

(c) To bring civil proceedings on matters for which the Plaintiff has no cause of action, such as not charging or failing to obtain a conviction at trial of his spouse;

(d) To gain the benefit of having several charges withdrawn in consideration for a plea of guilty and then suing for damages in a civil proceeding.

Attorney General of Ontario and Crown Attorneys

[32] In its decision granting summary judgment dismissing this proceeding against the Sudbury Police Defendants, the court records that the Plaintiff was charged, convicted, acquitted or had the following criminal charges dismissed or withdrawn (“Disposition Chart”):

Event

Date Charged

Offence and Criminal Code Provision

Outcome

Date of Outcome

A

September 6, 1996

Unsafe Storage of a Firearm, s. 86(2)

Assault, s. 266

Uttering Threats, s. 264.1(1)(a)

Withdrawn

Withdrawn

Convicted (Pleaded Guilty)

March 7, 1997

March 7, 1997

March 7, 1997

B

July 21, 1997

in July 21, 1997

July 21, 1997

Uttering Threats, s. 264.1(1)(a)

Assault, s. 266 Breach of Probation, s. 733.1(1)

Withdrawn

Convicted (Pleaded Guilty) Convicted (Pleaded Guilty)

October 9,1997 October 9, 1997 October 9, 1997

C

April 7, 1998

Assault, s. 266

Withdrawn

October 22, 1998

D

December 23, 1999

Assault, s. 266

Dismissed

June 8, 2000

E

September 17, 2000

Assault, s. 266

Dismissed

November 23, 2000

F

November 23, 2000

Communication for Prostitution, s. 213(a)

Operating a vehicle while impaired, s. 253(a)

Refusal to provide a breath sample, s. 254(5)

Breach of Recognizance, s. 145(3)

Convicted

Acquitted Convicted Withdrawn

June 25, 2003

June 25, 2003 June 25, 2003 March 7, 2003

G

December 18, 2003

Uttering Threats, s. 264.1(1)(a)

Assault, s. 266

Criminal Harassment, s. 264(2)(b)

Withdrawn Withdrawn Convicted

February 13, 2004 February 13, 2004 February 13, 2004

H

December 19, 2003

Breach of Probation, s. 733.1(1)

Withdrawn

February 13, 2004

I

January 20, 2005

Breach of Probation, s. 733.1(1)

Peace Bond

November 25, 2005

J

July 12, 2011

Criminal Harassment – Threatening Conduct, s. 264(2)(d)

Convicted

December 15, 2011

K

July 13, 2011

Possession of a Controlled Substance, s. 4(1) of the Controlled Drugs and Substances Act

Conditional Discharge

June 15, 2012

L

November 24, 2011

Broadcasting a Motion Picture of a Court Hearing, s. 136(4) of the Courts of Justice Act

Convicted

October 9, 2013

[33] The damages claimed against the A-G and the Crown Attorneys in para. 2 of the claim are for:

(a) False arrest, negligent investigation, false imprisonment, malicious prosecution, conspiracy, misfeasance in public office, abuse of process, trespass, invasion of privacy, negligence, conspiracy, and tortious interference of the plaintiff;

(b) Breach of the Plaintiff’s rights guaranteed under s. 2, s. 7, s. 8, s .9, s. 10, s. 11, s. 12, s. 15, and s. 24 (1) (2) of the Charter of Rights and Freedoms (the “Charter”) based on the false arrest, negligent investigation, false imprisonment, malicious prosecution, conspiracy, misfeasance in public office, abuse of process, trespass, invasion of privacy, negligence, conspiracy and tortious interference of the plaintiff;

(c) Intentional infliction of emotional distress and defamation of character;

(d) Special damages for loss of time, interruption in employment and routine of life, and to obtain release from custody; and

(e) Aggravated and punitive damages.

[34] It is alleged (para. 16) that the Crown Attorneys, as employees or agents of the A-G, are responsible for enforcing the law and crime prevention by virtue of section 6.(1) of the Crown Attorneys Act, R.S.O. 1990, c. C.49 and the Criminal Code of Canada, R.S.C. 1985, c. C-46 and are liable for the torts committed against the Plaintiff and the violations of his rights guaranteed by the Charter.

[35] As part of the Cause of Action Material Facts’ section regarding the Ontario Defendants, it is alleged that in 1997 (para. 33), the Plaintiff’s spouse made false assault allegations against him which resulted in his arrest, charges being laid by Police which then proceeded to trial. The Plaintiff pled guilty to one of the three charges. The other two charges were withdrawn. The inaccuracies as to the spouse’s allegations are not specified. The allegation against the Crown Attorneys is that they:

acted with improper motive and in contravention of the standard required by law when they black mailed the Plaintiff to plead guilty to assault and in exchange, the charges of uttering threats and breach of probation would be withdrawn. The Plaintiff under duress, financial hardship and to save his employment pled guilty to assault, reconciled with MV and returned to work to support his family.

[36] What: (a) “improper motive”, (b) “standard required by law”, and (c) actions of such defendants constituted “black mail” (para. 33), are not stated.

[37] It is alleged (paras. 34 and 37) that the Crown Attorneys “continue to harass, falsely arrest, unlawfully detain, deny access, and maliciously prosecute the Plaintiff on allegations that were and are known to be false and malicious.” How such defendants would: (a) harass the Plaintiff, (b) be involved in the arrest of the Plaintiff, (c) be involved in denying access or (d) know these allegations are false, are not stated.

[38] The Plaintiff alleges Crown briefs related to police officers were “not legitimate” (paras. 43 and 45) but provides no material facts in alleging why.

[39] The Plaintiff alleges that on August 21, 2000, he was found not guilty of charges of assault, assault causing bodily harm against his spouse and breach of probation. He alleges that on November 23, 2000, the Plaintiff was found not guilty of assault, uttering threats against his spouse and breach of probation (para. 37). These acquittals it is alleged constitute the failure of duty by the Crown Attorneys “to ensure the charges against the Plaintiff met the Ministry’s screening standard and that all available legal proof of the facts was presented impartially, fairly, objectively” (paras. 37, 41, 62 and 199).

[40] The “Ministry’s screening standard” pled is not identified. How facts were not presented in an impartial, fair and objective manner is not identified. The alleged failure to present the evidence fairly however, resulted in acquittals of these charges.

[41] The Disposition Chart as to dates of charges and convictions, indicates there was no August 21, 2000 trial. The one assault charge laid in September 17, 2000 was dismissed at trial on November 23, 2000. November 23, 2000 is also the charge date of four other charges which resulted in the conviction of two of those, acquittal of one and withdrawal of the fourth at trial, on June 25, 2003, as per Item F of the Disposition Chart.

[42] The Crown Attorneys on June 28, 2001 filed an affidavit of one of their staff members in criminal court stating that a police video, relied upon by police as demonstrating the Plaintiff’s emotional instability, was misplaced and unavailable for the Plaintiff’s criminal trial on three charges of communication for prostitution, refusing to provide a breath sample and breach of recognizance (paras. 41 and 43). It is alleged that the Crown Attorneys “had no reasonable and probable grounds for pressing charges, procuring the prosecution, conviction and punishment of the Plaintiff” which “conduct was a deliberate and baseless exercise of public function, intended to injure the Plaintiff” (paras. 41and 43).

[43] The Plaintiff however was convicted of communication for prostitution and breach of recognizance. A judge did not agree those were a “baseless exercise of public function”, nor that those charges lacked a reasonable or probable foundation.

[44] It is alleged that based on untrue allegations by his spouse, the Plaintiff in Items G and H of the Disposition Chart, was charged with assault, uttering threats, criminal harassment and breach of probation. The Plaintiff alleges that on February 13, 2004, the Crown Attorneys “blackmailed the Plaintiff to plead guilty to criminal harassment against MV and in exchange the Crown would withdraw all the other charges.” … It is alleged that “The Defendants were aware that their actions were unlawful, malicious and likely to injure the Plaintiff and intended for their own self-promotion” (para. 51).

[45] The Plaintiff pled or was found guilty of harassment. The other three charges in items G and H were withdrawn. No material facts are alleged as to why the Plaintiff pled to or was found guilty of harassing MV. The allegation is simply that MV’s allegations were false. No facts as to the nature of the alleged “black mail” are pleaded.

[46] The Plaintiff alleges he was improperly charged for recording court proceedings in violation of s. 136 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 being item L. The Crown Attorneys “presided over the … mock pre-trial and the October 16 to 18, 2011 trial. The Plaintiff’s violation of s. 136 of the Courts of Justice Act” ... being one of the prosecutions against him “are not legitimate” (paras. 137 to 139, 202 and 204). The Plaintiff was convicted of this offence on October 9, 2013.

[47] The Crown Attorneys (paras. 51, 65 and 139) have “a long personal history of … maliciously prosecuting the Plaintiff on allegations of assault, criminal harassment, breach of probation that is known by the Defendants to be false.” The Disposition Chart’s record of convictions disproves this allegation.

[48] The Plaintiff (para. 74) alleges without explanation or material facts that the Crown Attorneys:

(a) are also responsible for the false child protection procedure;

(b) provided information known to be false in the child protection proceeding (para. 95);

(c) refused to meet with the Provincial Advocate to discuss the Plaintiff’s concerns regarding alienation with his child;

(d) are involved with information sent to Durham Children’s Aid Society (para. 103);

(e) are involved in notes made on police files as to the Plaintiff’s instability (para. 104);

(f) had an unidentified role in the determination by CAS that the child was in need of protection (para. 106);

(g) had an unidentified role in the decision by Durham Police to arrest the Plaintiff (para. 107);

(h) that the Defendant J.J. Paquette, the lawyer for the CAS, allegedly attached a request to the Superior Court custody file that the Plaintiff be denied access (para. 94);

[49] These are broad allegations against multiple Defendants without allegations of material facts explaining what the named Defendant(s) did in the above matters normally outside of the scope of their employment.

[50] The failure of the Crown Attorneys (para. 143) to “arrest and prosecute MV was a deliberate and unlawful exercise of public function with the intent to discriminate against the Plaintiff that resulted in a deliberate infringement of his Charter “rights” it is alleged.

[51] The Plaintiff in his claim does not articulate and in argument failed to establish, how the A-G and Crown Attorneys are responsible for MV not being arrested and charged, how that makes them civilly liable and how his Charter rights were breached as a result.

[52] The Plaintiff alleges that Police, the A-G and the Crown Attorneys:

(a) Maliciously commenced and prosecuted criminal prosecutions against the Plaintiff without reasonable and probable grounds based on the circumstances known to the Defendants at the time: (paras. 119, 124 and 194);

(b) Conspired with Police and his former spouse in maliciously prosecuting the plaintiff on criminal charges based on spousal allegations they knew to be false: (para. 195);

(c) Maliciously persecuted the Plaintiff on allegations that were known to be false and based on false Police occurrence reports for which these defendants are “vicariously liable in respect of torts committed against the Plaintiff and for damages and violations of the Plaintiff’s rights as guaranteed by the Charter”: (paras. 112 and196);

(d) “Acted maliciously and with improper purpose in contravention of the standard required by law when prosecution the Plaintiff and then black mailed the Plaintiff to plead guilty to assault and breach charges of probation charges in order to be released (and that) other charges of uttering death threats, etc. would be withdrawn. The Plaintiff under duress, financial hardship and to save his employment and support his family was left with no other choice but to plead guilty or remain in jail causing further financial hardship and his family to suffer: (paras. 112 and 197);

(e) The Crown Attorneys, the Police, the local Children’s Aid Society (the “CAS”), CAS lawyers “acted with malice and bad intention when they sent the Durham Police a malicious report that described the Plaintiff as emotionally unstable, unpredictable, etc.: (para 201);

(f) On October 18 and December 15, 2011, obtained a conviction of the Plaintiff for criminal harassment of a CAS worker, by use of “a fraudulent Crown brief that was created by an illegitimate occurrence report”: (para. 205);

(g) At the trial of criminal charges against the spouse of the Plaintiff on September 29, 2010, “deliberately failed to prosecute, failed their duty to ensure the prosecution met the Ministry’s acceptable standard and that all available legal proof of the facts, witnesses and victim was presented impartially, fairly and objectively”: (para. 208);

(h) On July 13, 2011, conspired with a Justice of the Peace, the Police and the then Sudbury area MLA, to fraudulent obtain a search warrant of the Plaintiffs home, attend thereon, maliciously and with malice, exercised the search warrant and seized his computer and personal information and made copies thereof without prior authorization required under SS. 185 and 186 of the Criminal Code. The warrant, its execution, the seizure and search of his computer and information was unlawful, unreasonable, intended as harassment and in violation of his Charter rights: (paras. 125, 210, 215 to 230);

(i) Denied the Plaintiff information as to the public institution of law enforcement and child protection in Ontario, Police Association bylaws, names and addresses of Police Association members and how much public money had been spent to deny him this information: (paras. 231 to 236);

(j) Together with Police; maliciously sent false, defamatory, incomplete information to the Information and Privacy Commissioner of Ontario in response to the Plaintiff’s Freedom of Information request asking who, why and when the Defendants assigned the caution flags of “emotionally unstable” to the Plaintiff since the use of such flags are an improper and unlawful exercise of public function intended to harass the Plaintiff. They further falsely reported information about the Plaintiff to such Commissioner: (paras. 236, 239 and 240); and

(k) Together with Police, failed to criminally charge and prosecute his spouse for harassment: (para. 237).

[53] The allegations summarized above in sub-paragraphs (a) to (d) and (f) to (h), are an attack against the Plaintiff’s criminal convictions listed in the Disposition Chart which were not appealed. The Plaintiff is attempting to overturn those judicial determinations in this civil action.

[54] The allegations in sub-paragraphs (e) and (i) to (j) are blanket allegations against numerous groups without any material facts as to the role of the Ontario Defendants.

[55] The Plaintiff has no cause of action in relation to sub-paragraph (j).

Statutes of Limitations

[56] This proceeding was commenced upon issuance of the Statement of Claim on October 3, 2013.

[57] The Ontario Defendants rely upon s. 45 of the Limitations Act 1990, R.S.O.1990. c. L.15 and ss. 4, 5 and 24 of the Limitations Act 2002, S.O. 2002, C. 24 (the “Limitations Act”).

[58] The Plaintiff submits that the appropriate limitation period pursuant to the Limitations Act is 15 years.

[59] Prior to January 1, 2004, the limitation period was six years for trespass to property, two years for defamation, two years for a statutory penalty to the Crown and four years for imprisonment.

[60] The relevant provisions of the Limitations Act are the following:

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

Ultimate limitation periods

15. (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.

General

(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.

24. (1) In this section, “former limitation period" means the limitation period that applied in respect of the claim before January 1, 2004.

Application

(2) This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.

Former limitation period expired

(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim. (emphasis added)

(5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply:

1. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.

2. If the claim was discovered before January 1, 2004, the former limitation period applies.

[61] The Plaintiff knew when he was detained, arrested and charged by Sudbury Police. His Statement of Claim cites the events and the dates thereof. The Plaintiff knew when the CAS intervened and took his child away. He knew of and participated in the CPP.

[62] There are no allegations or evidence on this motion establishing discoverability subsequent to the dates of the subject arrests, trials, convictions and CPP proceedings.

[63] Pursuant to the transitional provision in s. 24 (5), tort claims which arose before January 1, 2004 are subject to a 6-year limitation period which would have expired no later than December 31, 2009. Otherwise, the claims herein are subject to the general 2-year limitation period from the date of the event occurrence.

[64] Under the Limitations Act, the Plaintiff has the evidentiary burden to prove the claim was issued within the limitation period: Findlay v. Holmes, 1998 5488 (ONCA), at para. 25; McSween v. Louis, 2000 5744, (ONCA) at para. 37 and Liu, para. 10.

[65] Limitation periods of general application will apply to claims made under s. 24(1) of the Charter brought by an individual for a personal remedy. Limitations periods are applicable to Charter claims brought for remedies by individuals: Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3, and Alexis v. Toronto Police Service Board, 2009 ONCA 847, 100 O.R. (3d) 232, paras. 18 and 22.

[66] Section 15 of the Limitation Act creates a maximum limitation period of 15 years regardless of when the claim was discovered. Section 15 does not however lengthen the specified limitation periods in the Limitations Act such as the s. 4 two year limitation period.

[67] Limitations periods are applicable to civil claims by individuals for remedies based on Charter breaches such as a s. 24(1) breach: Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3, and Alexis v. Toronto Police Service Board, 2009 ONCA 847, 100 O.R. (3d) 232, paras. 17 and 22.

[68] Applying these limitation to this proceeding commenced October 3, 2013, results in the allegations and events referred to in paragraphs 31-33, 34, 37, 41 43, 45, 51, 62, 65, 112, 158, 159, 199, 201, 208, 210 and 215, being items A to I in the Disposition Chart, are statute barred, cannot constitute the basis for a cause of action and are therefore dismissed.

[69] In the alternative to the above dismissal for expiration of the limitation period and as to all items, the Court will now examine the causes of action and claims made.

ABUSE OF PROCESS

Abuse of Process

[70] An order made by a court of competent jurisdiction is binding and conclusive unless it is set aside on appeal or lawfully quashed. Such an order, subject to proceedings to appeal, vary or to quash such order, may not in a separate proceeding be attacked collaterally, as in attacking the order itself and its consequences in a separate proceeding. The prohibition against collateral attack does not prevent a party in another proceeding involving a different claim and consequences, from attacking the correctness of the factual basis upon which the order was made: Toronto (City) v. Canadian Union of Public Employees (CUPE), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at paras. 33-34.

[71] The Ontario Defendants do not rely on the doctrine of collateral attack.

[72] Judges have inherent and residual discretion to prevent an abuse of the court’s process and proper administration of justice.

[73] The purpose of the doctrine is the attempt to impeach a judicial order by impermissible re-litigation in another forum: Toronto, para. 46.

[74] Abuse of process includes civil proceedings which:

(a) Are unfair to the point of being contrary to the interest of justice;

(b) Violate the fundamental principles of justice underlying the community’s sense of fair play and decency;

(c) Amount to a vexatious or oppressive proceeding; and

(d) Where, notwithstanding the absence of issue estoppel or res judicata requirements, allowing the action to proceed would violate principles such as judicial economy, finality, and the integrity of the administration of justice: Toronto, paras. 36-37.

[75] Determination whether to apply the doctrine of abuse of process requires a balancing between the objects of:

(a) Finality of litigation; and

(b) Fairness to the litigant, Toronto, supra. para. 55.

[76] Assessing fairness to the litigant must include consideration that:

(a) Re-litigation is not a guarantee of factual accuracy;

(b) Nothing beyond wasting limited resources is obtained if the first and second results are the same;

(c) Credibility in the judicial process is undermined if the first and second results conflict;

(d) An appeal is the best test to ensure the accuracy of the prior decision and attain finality on the issue; and

(e) Re-litigation is only permitted if necessary to enhance the credibility and effectiveness of the adjudicative process as a whole: Toronto, paras. 51-52.

[77] Motive is not relevant whether to apply abuse of process to halt a proceeding. The motive to attack a judicial finding by way of appeal or judicial review is irrelevant: Toronto, paras. 46 and 51.

[78] Instances where re-litigation may enhance and not impeach the integrity of the judicial system include:

(a) Where the first proceeding was tainted with fraud or dishonesty;

(b) Where new previously unavailable evidence conclusively impeaches the original result or

(c) Where fairness dictates the original result should not be binding in the new context; Toronto, para. 52

[79] This proceeding against the A-G and the Crown Attorneys is an abuse of process intended for financial gain regarding convictions the plaintiff failed to contest via appeal. On this basis this claim against the Ontario Defendants is dismissed.

Immunity from Prosecution

[80] Crown Attorneys and the A-G enjoy immunity from civil liability for acts done in respect of a prosecution. The A-G, Crown Attorneys, and public officers or officials however purporting to discharge the duties of their office, may be personally liable for wrongful conduct in the purported performance of their duties which places them beyond the immunity protection of their office and subjects them potentially to liability in the case of the intentional tort of malicious prosecution: Ministry of the Attorney General Act, R.S.O. 1990, c. M.17 , (“MAGA”) ss. 8(l) and (2), Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (“PACA”) ss. 2(2)(d) and ss. 5(6), Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 paras. 5 and 56 (S.C.C.), Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434, paras. 18-19 (Sup. Ct.), Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, paras. 4, 49 and 50, and Gilbert v. Gilkinson, 2005 46386 (ON CA), [2005] O.J. No. 5347, para. 7 (CA), leave to appeal to SCC refused, [2006] S.C.C.A. No. 67.

Crown Attorney Immunity

[81] Subject to a claim of malicious prosecution and Nelles, supra, ss. 8(l), (2) and (3) of MAGA prohibits a person who was criminally prosecuted from bringing a proceeding for damages against the Crown Attorneys in respect of any act or omission in the performance or purported performance of a duty or authority in relation to the prosecution of a criminal offence. Any such claim may only be brought against the A-G.

[82] Subject to a claim for malicious prosecution, the plaintiff is prohibited by MAGA from suing the Crown Attorneys for alleged acts and omissions related to the criminal prosecutions as pled in paragraphs 2, 16, 31 to 34, 41, 43, 45, 51, 62, 65, 112, 137 to 139, 159, 119, 194 to 197, 199, 202 to 205, 208, 210, 215 to 230, 219 230 and 237.

Notice Requirement Against A-G

[83] Section 8(5) of MAGA incorporates the notice requirements in subsections 7(1) of the PACA in a proceeding against the A-G for acts and omissions of its employees.

[84] Subsection 7(1) as to the Plaintiff’s claim herein, requires service of written notice of the claim on the A-G 60 days prior to commencement of the proceeding.

[85] This PACA ss. 7 (1) preliminary notice requirement:

(a) Is not satisfied by verbal notice;

(b) Is a requirement which the court lacks jurisdiction to waive; and

(c) Failure to serve such written notice, is fatal with the result that this proceeding against the A-G is a nullity: Olesiuk v. LeCompte (1991), 1991 7313 (ON SC), 2 O.R. (3d) 473, paras. 24-25 (Gen. Div.); Jos. Zuliani Ltd. v. City of Windsor (1973), 1973 671 (ON SC), 2 O.R. (2d) 598, para. 6 (HC); Beardsley v. Ontario Provincial Police (2001), 2001 8621 (ON CA), 57 O.R. (3d) 1, para. 12, (CA); and Khan v. Leluk, [1985] O.J. No. 578, p. 2, (HC).

[86] The Plaintiff does not allege such notice was given. The A-G denies receiving any such notice.

[87] This proceeding as against the A-G is accordingly a nullity and therefore dismissed.

Malicious Prosecution

[88] The essential elements in a tort claim for malicious prosecution requires the Plaintiff to prove that the prosecution was:

(a) Initiated by the defendant;

(b) Terminated in favour of the Plaintiff;

(c) Undertaken without reasonable and probable cause; and

(d) Motivated by malice or a primary purpose other than that of carrying the law into effect: Miazga, supra, para. 3.

[89] The only criminal prosecutions in the Disposition Chart terminated in the Plaintiff’s favour concluded on November 23, 2000, and June 25, 2003. Claims arising out of those prosecution are statute barred by ss.45(1 )(g) of the Limitations Act, 1990 and ss. 4, 5 and 24 of the Limitations Act, 2002, which prohibit any such claim commenced after six years from the date the plaintiff discovered the claim. Such claims must have been commenced at the latest by 2007, which did not occur.

[90] A civil action is not a vehicle however for judicial review of the exercise of a Crown Attorney’s discretion to initiate or continue a prosecution: Miazga, supra, paras. 64, 73 and 74.

[91] Each criminal conviction was determined by a judge against the Plaintiff.

[92] As to the convictions against him, the Plaintiff cannot establish the 2nd element and has failed to plead the material facts as to why or how they were motivated by malice or why the primary purpose thereof was other than the prosecution of the charges laid.

[93] These claims of malicious prosecution contain no statement of fact to support this fourth element of malicious prosecution. The absence thereof contravenes R. 25.06.

[94] The allegations as to these prosecutions amount to bald allegations insufficient to support a claim in relation thereto: Toronto, supra, paras. 66, 67, 73 and 74, (Sup Ct), aff’d 2002 4770 (ON CA), [2002] O.J. No. 383 (CA).

[95] The cause of action of malicious prosecution is not available to the Plaintiff and is therefore struck and dismissed against these Defendants.

Non-Prosecutorial Action

[96] The court has considered the non-prosecutorial allegations as to:

(a) the malicious report sent to Durham CAS (para. 201);

(b) refusing to provide the names and addresses of Police officers (paras. 231 to 236) and;

(c) the malicious forwarding of information as to the plaintiff’s emotional personality to the Information and Privacy Commissioner of Ontario (paras. 236, 239 and 240).

[97] These claims do not articulate the role of the Crown Attorneys and the A-G therein. It is impossible on this pleading to know who did what amongst this group of Defendants, which include the lawyer of the CAS and the “other Defendants”.

[98] These allegations are clear breaches of R. 25.06. If that was the only problem with these allegations, leave could be granted to amend and articulate these particular allegations. This is not however the only reasons to dismiss these claims.

[99] There is no known cause of action for:

(a) refusing to name and provide addresses of police officers who are members of the Sudbury Police Association;

(b) about Ontario child protection or;

(c) that police records prior to 2008 were not retained (paras. 231-236).

[100] The alleged complaints in paragraphs 239 and 240 do not constitute grounds of a civil cause of action. They are made against numerous police officers, legal counsel of CAS, a lawyer consulted by the Plaintiff as to a possible appeal of criminal convictions and numerous Crown Attorneys, without alleging specific acts of wrongdoing by each.

[101] For all the above reasons, these allegations against the A-G and the Crown Attorneys are struck and dismissed.

Employee of Office of Crown Attorney Meriel Anderson - Paras. 41, 43, 199 and 435

[102] The allegations are that Ms. Anderson was a legal assistant employed in the Sudbury office of the Crown Attorney and that on June 28, 2001, she signed an affidavit which was used by the Crown in a criminal trial of charges against the plaintiff. The affidavit addresses why a Police video recording as to the Plaintiff’s emotional state was unavailable for the trial.

[103] Affidavits filed in court proceedings are protected by litigation privilege and cannot form the basis of a subsequent civil cause of action: Sauvé v. Merovitz, 2006 35986 (ON SC) paras. 33 to 37 and 40; aff’d 2008 ONCA 70; leave to appeal dismissed, and Martini v Wrathall, 1999 NSCA 105 p. 4.

[104] The Plaintiff (para. 41) states he was convicted of two of the charges related to the events on November 23, 2000 being Item F. This allegation is an abuse of process attacking such criminal convictions: “Demeter v. British Pacific Life Insurance Co., (1983), 1983 1838 (ON SC), 43 O.R. (2d) 33, 150 D.L.R. (3d) 249 (S.C.J.) at p. 48, aff’d (1984), 1984 1996 (ON CA), 48 O.R. (2d) 266, (CA.) and K.F. v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391, at paras. 26-29.

[105] This claim against this Defendant is an abuse of process, discloses no reasonable cause of action and therefore is dismissed.

Justices of the Peace

[106] There are four Justices of the Peace named as Defendants.

[107] The Plaintiff alleges no cause of action and no claims of relief or damages against them in paragraphs 1 to 13 of the claim. They are not listed and included in the causes of action and the claims against the A-G, the Crown Attorneys and Ms. Anderson in paragraph 2 of the claim.

[108] They are listed as parties and agents of the A-G in paragraph 16(b) of the claim. There is no ss. 8(5) MAGA notice to the A-G as to its responsibilities for such judicial officers which thereby prevents a claim against the A-G as to their conduct, other than a claim for malicious prosecution.

[109] They are referred to in the Basis of Claim section (paras. 193 to 245), against the A-G, the Crown Attorneys and other named employees of the A-G.

[110] The allegations against the Justices of the Peace, in paras. 16(b), 125, 126, 128, 129, 136, 162 to 164, 167, 169, 202, 209 to 214 and 221, consist of:

(a) Conspiracy by Justice of the Peace Beck with the Crown Attorneys, counsel for the local CAS, Sudbury Police and the Sudbury M.L.A. to fraudulently and with bias obtain a search warrant to seize the plaintiff’s computers and the subsequent illegal seizure, search and copy of the contents thereof;

(b) That Justice of the Peace Beck allegedly lacked jurisdiction to issue a search warrant of the Plaintiff’s computers;

(c) That Justice of the Peace Moreau ordered a 30 day extension of such search warrant to Police to retain possession of such computers; and

(d) That Justice of the Peace Lafleur issued a summons served on the plaintiff which allegedly contravenes s. 136 (1) of the Courts of Justice Act which the Plaintiff was convicted under on October 9, 2013, Item L.

[111] There are no specific allegations against Justice of the Peace Michael G. Kitlar.

[112] The broad allegation of conspiracy between Justice of the Peace Beck and many others as to the initial search warrant, is not articulated with material facts to support such conspiracy including the role of each alleged conspirator given the broad inclusion of Crown Attorneys in North Bay versus Sudbury, and counsel for the CAS, or the nature of the conspiracy entered into.

[113] The allegations against Justice of the Peace Diane Lafleur, who presumably is the same person as “Louise Lafleur” referred to in para. 136, is that on December 13, 2011, is that she signed a summons and the charge for contravention of s. 136 Courts of Justice Act, namely which charged that the Plaintiff filmed or photographed court proceedings.

[114] There are no allegations of wrongdoing against Justice of the Peace Moreau beyond the granting of a 30 day extension order allowing police to continue to retain the Plaintiff’s computers which, although not alleged, by implication could suggest that the extension was invalid because the original search warrant of the computers is alleged to be invalid.

[115] Paragraph 125 of the claim is clear that the central allegation against the Justices of the Peace originate with the alleged invalid search warrant to seize and search the Plaintiff’s computers as Justice of the Peace Beck allegedly lacked jurisdiction to issue a search warrant of a person’s computer.

[116] The Plaintiff was convicted of the offence charged, namely filming or photographing a court proceeding, Item L. That conviction prevents civil recovery for malicious prosecution.

[117] Validity of the search warrant issued was reviewable in the trial resulting in the conviction under s. 136 of the Courts of Justice Act, and thereafter by appeal.

[118] The July, 2011, issuance of the search warrant by Justice of the Peace Beck occurred prior to the two year limitation period and cannot form the basis of a civil claim.

[119] A Justice of the Peace, like a judge, enjoys immunity from civil liability for anything said or acts related to or in connection with their judicial capacity: Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 20, Morier v. Rivard, 1985 26 (SCC), [1985] 2 S.C.R. 716 at paras. 85 to 110 and 112, Tsai v. Klug, [2005] O.J. No. 2277, para. 7 (Sup Ct), aff’d 2006 4942 (ON CA), [2006] O.J. No. 665 (CA) and Dyce v. Ontario, [2007] O.J. No. 2142, para. 23, (Sup Ct). The allegations in issue relate exclusively to actions of these Defendants acting within their judicial capacity. Those judicial acts cannot form the basis of a civil lawsuit for damages.

[120] The Plaintiff in this action is directly and indirectly challenging his conviction under s. 136. That constitutes an abuse of process.

[121] For the above reasons, the claim against these four Defendants is dismissed.

Court Staff and Court Reporter

[122] The Ontario Defendants identify the Defendant court staff and court reporter as Angella Beal (improperly named “Andrea Beal”), Ria Bignucolo (improperly named “Ria Bignocollo”) and Helen Brydges (improperly named “Helene Brydges”) (collectively referred to as the “Court Staff” and “Court Reporter”.

[123] The allegations against these individuals are contained in paragraphs 124 to 130, 136 to 144 203 210, 211, 215 to 229 of the statement of claim. There are however no specific allegations of wrongdoing against Angella or Andrea Beal

[124] These Defendants are not named in the opening statement of causes of action and claim for damages section in the A-G group of Defendants in paragraph 2. Each of them however is named among the Ontario Defendants listed before para. 193.

[125] The allegations against them are contained in paragraphs 124 to 130, 136 to 144 203 210, 211, 215 to 229 of the Statement of Claim.

[126] The allegations in the above paragraphs allege that:

(a) A Police officer (paras. 209) made a false occurrence report on July 8, 2011 regarding the Plaintiff allegedly harassing a CAS worker. The Plaintiff denies(d) that allegation. On July 12, 2011, (paras. 124 and 209) the Plaintiff was arrested and charged with criminal harassment and threatening conduct towards an employee of the CAS. The trial of those offences occurred on October 16 to 18, 2011;

(b) It is alleged that Justice of the Peace Beck, conspiring with the Crown Attorneys, Police and counsel for CAS, approved an illegal search warrant of the Plaintiff’s computers on July 13, 2011 (paras. 125, 129, 136, 210 and 211) in relation to his alleged video recording of a CAS court protection proceeding on June 27, 2011, contrary to s. 136 (1) of the CJA. Police allegedly seized his computers on July 13, 2011;

(c) The Plaintiff’s computers upon seizure were allegedly illegally accessed by Todd Bignocollo. Personal information of the plaintiff was accessed and illegally copied from the computers (paras. 215 to 229);

(d) The Plaintiff alleges (para. 202) that without seeking permission from the judge, the Plaintiff recorded the October 16 to 18, 2011 harassment trial but he did not record the sentencing hearing on December 15, 2011, contrary to the certified court transcript dated December 15, 2011;

(e) It is alleged that (paras. 124, 204 and 205) the evidence in this harassment trial concluded on October 18, 2011 and prior to submissions, the judge ordered the Plaintiff to stop recording the trial. Crown counsel then presented her submissions. After submissions, the court convicted the Plaintiff of criminal harassment, ordered a pre-sentence report and adjourned sentencing to December 15, 2011;

(f) It is alleged that Crown counsel during submissions on October 18, 2011, advised the court that new charges were being laid against the Plaintiff under s. 136 of the CJA for prohibitive photography in the court house; and

(g) It is alleged (para. 128) that the Police did not return the Plaintiff’s computers to him until October 21, 2011 which impaired his right to defend the harassment charge.

[127] The Plaintiff was charged on November 24, 2011 of broadcasting a motion picture of a court hearing under s. 136(4) of the CJA, Item L. He was convicted of that offence on October 9, 2013.

[128] The Plaintiff alleges (para. 124) he made no recording at the December 15, 2011 sentencing hearing for his conviction of harassment.

[129] The trial of the s. 136 (4) charge of broadcasting a court proceeding occurred on October 3 to 5, 2012, February 11 to 13, April 30 and May 1, 2013 (paras. 138 to 140).

[130] The court (para. 144) in its August 29, 2013 decision found the Plaintiff guilty of the s. 136 (4) prohibition. The judge, it is alleged, accepted the evidence presented by the Crown, including that of Todd Bignocillo, Helen Brydges and “their fraudulent transcript dated December 15, 2011”, which was the sentencing date of the harassment charge, Item J not the s. 136(4) charge, Item L.

[131] The court transcript of the December 15, 2011 sentencing hearing indicating the judge directed the Plaintiff to turn off his recorder is allegedly “fraudulent” (para. 124 (j)) because the Plaintiff did not have a recorder on him that day and such court directive was given by that judge on October 18, not December 15, 2011. Although it is not pled as such, the Plaintiff presumably would argue that the conviction under s. 136(4) in August of 2013, accordingly is founded upon information illegally seized and copied from the Plaintiff’s computer and a fraudulently created court transcript dated December 15, 2011 in relation to Item J of the Disposition Chart.

[132] Given the laying of the s. 136(4) CJA charge on November 24, 2011, that charge as to its events would appear to be unrelated to conduct at the subsequent December 15, 2011 sentencing hearing of the harassment conviction, Item J.

[133] The allegations in this civil proceeding against these court officers and reporter in any event are a direct attack of the Plaintiff’s convictions on December 15, 2011 and/or October 9, 2013.

[134] The legality of the warrant to seize and then search and copy the Plaintiff’s computers, was subject to challenge and determination in the s. 136(4) trial and an appeal of that conviction.

[135] This claim is an improper attempt to re-litigate judicially authorized investigative steps leading to charges and the s. 136(4) and harassment convictions, Item J and L.

[136] It is an abuse of process to use civil proceedings to attack these convictions which were not appealed, or the legal process within those criminal procedures.

[137] As to no reasonable cause of action, Hunt v. Carey Canada Inc., 1990 90, (S.C.C.) at p. 336, established the following principles as to R. 21.01:

(a) Assuming that the facts in the statement of claim can be proved, is it “plain and obvious” or “beyond a reasonable doubt” that the plaintiff’s statement of claim discloses no reasonable cause of action?

(a) If there is a chance that the plaintiff might succeed, the claim should not be dismissed as disclosing no reasonable cause of action.

(b) The length and complexity of the issues, the novelty of the cause of action, or the potential for the defendant to present a strong defence are grounds to prevent the claimant proceeding with their case.

(c) Only if the action is certain to fail because it contains a radical defect ranking with those listed in R. 21.01 should the relevant portions of a plaintiff’s statement of claim be struck out.

[138] The claims against these court officers and court reporter are also dismissed as disclosing no reasonable cause of action.

Child and Family Services Review Board and Staff

[139] The Child and Family Services Review Board, Suzanne Gilbert, Oliver Urcuyo (improperly named “Mr. Oliver”) (the “Staff”)seek dismissal of this action. The Staff of the Boardare allegedly appointed members under the CRSRA to hear and determine complaints.

[140] The Plaintiff (para. 9) claims damages for conspiracy, misfeasance in public office, breach of duty and torturous interference of the plaintiff and his child.

[141] The specific allegations against the CFSRB and Staff contained in paragraphs 80 to 87, 88, 376 to 387, 406, 407, 418 to 420 are very vague.

[142] In paragraphs 80 through 86, the Plaintiff alleges that he and his child were denied access to one another and that the child suffered an injury to his teeth in an accident. The Plaintiff told CAS he wanted the child to be seen by his dentist and that the child should use a dental device recommended by this dentist.

[143] The Plaintiff complains that the CAS failed to disclose details as to the child’s accident to the Plaintiff. The allegation is that CAS, its representatives and lawyers were denying the child access to expert orthodontic treatment as identified by the father. It is alleged that CAS, its representatives and lawyer were negligent and acted with improper motives, malice and bad intention when they prevented the child from obtaining the medical device purchased by the Plaintiff.

[144] It is alleged (para. 87) that CAS, its representatives and lawyer with malice and bad intention and for their own promotion, dismissed the Plaintiff’s complaint regarding the care and treatment of this child in October and December, 2006.

[145] The allegation (para. 88) is that the “Defendants” appointed Ms. Gilbert, Mr. Urcuyo and others to the CFSRB to hear the Plaintiff’s complaint against CAS regarding the treatment of his child.

[146] The allegations are that the CFSRB and Staff:

(a) Failed to ensure that their primary duty was to serve the community, the source of their salaries, to uphold public value such as fairness, morals and transparent, accountable and a functional child care system (para. 377);

(b) Failed to uphold “the public’s standard of morals” and deferred its “judgement to a consensus of self-interest”, (para. 378). The CFSRB and Staff are vicariously liable for the torts committed against the child and the violation of the Charter rights of the child and the Plaintiff (para.88);

(c) That CFSRB and Staff failed to insure that the CAS fulfilled its mandate pursuant to the CFSA and failed to protect the best interest of children and their families (para. 379);

(d) Failed to ensure that the CAS followed the clear, consistent criteria and applicable provincial standards for child protection (para. 380);

(e) Failed to ensure that the CAS workers were registered with the Ontario College of Social Workers and were lawfully engaged to practice social according to Ontario Regulation 383/00;

(f) Disregarded recognized social public responsibility expectation frameworks aimed at the protection of the Plaintiff and the general public from unqualified workers employed by the CAS (para. 383);

(g) Ms. Gilbert told the Plaintiff that “the Board can never give you back your child” with the intent to further the other Defendants’ policies against the Plaintiff (para. 385); and

(h) Ms. Gilbert and Mr. Oliver as Board members “may have in the past implemented” the policies identified in para. 418 against the Plaintiff.

[147] The Plaintiff does not allege:

(a) that he sought review of the decision by CAS rejecting his complaint;

(b) that the CFSRB rejected his review application or, if he filed an application for review, why it was rejected;

(c) that he was denied the opportunity of a hearing.

[148] The Plaintiff instead makes broad non-specific allegations of the CFSRB and Staff’s failure to properly supervise and ensure that the CAS properly carried out its mandate.

[149] The Plaintiff was unsuccessful in making similar allegations in the CPP, namely that the child while in the custody or supervision of the CAS, was not being properly cared for and was being denied expert orthodontic treatment and devices which the plaintiff had obtained for his child. Having been unsuccessful repeatedly in the CPP, the Plaintiff now makes similar allegations in this civil claim for damages. He extends that civil claim against the CFSRB and Staff as they are allegedly responsible for the failure of care and malicious conduct of the CAS and its staff.

[150] The courts in the CPP repeatedly determined the child was in need of protection in relation to this father and mother. The child resided with his mother under the supervision of the CAS. In the prior Family Law proceeding, the mother had custody of the child.

[151] The father has no legal standing to present this claim against these Defendants on behalf of the child.

[152] The CFSRB submits this claim must be dismissed because:

(a) It is an office within an Ontario Ministry and therefore has immunity against a civil claim;

(b) The CFSRB is not a body corporate, nor a body with the capacity to be sued pursuant to its enabling statute, namely the Child and Family Services Act, R.S.O.1990, c. C. 11, ss. 68.1 and 207; and

(c) The CFSRB is an adjudicator tribunal under the CFSA, performs adjudicative functions including the review of complaints from parents related to a Children’s Aid Society. Decisions of the CFSRB are final.

[153] A government department or ministry may not be sued unless its constituting statute makes it liable, expressly or by necessary implication: McNabb v. Ontario (2000), 2000 22413 (ON SC), 50 O.R. (3d) 402, para. 29 and Air India Flight 182 Disaster Claimants v. Air India (1987), 1987 4125 (ON SC), 62 O.R. (2d) 130, paras. 24-29 (HC).

[154] More directly on point is the frequently applied decision in Westlake v. The Queen in right of the Province of Ontario, 1971 680 (ON SC), [1971] 3 O.R. 533, p. 3, 4 and 5 (HC). That court was called upon to decide whether the Ontario Securities Commission could be sued in a civil action for damages. The court determined that the Commission could neither sue nor be sued.

[155] The court in Westlake, supra, examined whether various entities created by statute were subject of a civil suit and held that there were six categories to consider, namely:

(1) Corporations incorporated under statute which have the power to sue and be sued pursuant to the then s. 26 of the Interpretation Act, R.S.O. 1960, c. 191;

(2) Bodies corporate expressly declared to be suable;

(3) Bodies corporate expressly declared not to be suable;

(4) Legislatively created unincorporated bodies which by terms of the creating statute, are expressly liable to suit;

(5) Legislatively created unincorporated bodies which are not expressly liable to suit by terms of their creating statute, but which are, by necessary implication due to the nature of their commercial activity, liable to be sued in an action for damages; and

(6) Legislatively created unincorporated bodies which are not by terms of their creating statute or by necessary implication liable to be sued civilly but which are a legal entity in that their actions may be reviewed in proceedings by way of extraordinary remedy of certiorari, mandamus and prohibition.

[156] The CFSRB is not an entity described in categories (1) to (4) above.

[157] It does not conduct commercial activity attracting potential civil liability. Category (5) is therefore inapplicable.

[158] The CFSRB in the Westlake analysis is a category (6) statutory body and may not be the subject of a civil suit for damages. The jurisprudence signals the importance of the enacting legislation in coming to this determination.

[159] The structure of the CFSRB under the CFSA, contains no provision granting it legal status or the capacity to sue or be sued.

[160] Under the CFSA, the CFSRB does not hire or appoint its Board members. They are appointed by and remunerated by the Lieutenant Governor in Counsel who may also select the Board chair.

[161] The CFSRB is responsible to conduct hearings to review decisions:

(a) Made by residential placement advisory committees;

(b) By the CAS to remove a child from a foster home;

(c) By the CAS regarding complaints against it;

(d) Of complaints by a young person as to placement or transfer; and

(e) By the CAS as to adoption: CFSA, ss. 36, 61, 68, 68.1, 97 and 142.

[162] The above review of decisions involves hearings with the right of participation by parties identified in the legislation.

[163] The CFSRB conducts quasi-judicial hearings. In such hearings, it exercises a statutory power of decision within s. 1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Its decisions therefore are subject to judicial review.

[164] On the above analysis, this proceeding against the CFSRB must be dismissed as by statute, it is not a legal entity which may be the subject of a civil claim.

[165] As to the Staff, the principle of judicial immunity has been extended by the courts to protect statutory decision makers such as adjudicative tribunals, boards and statutory bodies and their members exercising quasi-judicial functions: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, paras 5, 6 and 16, and Agnew v. Ontario Association of Architects (1987), 1987 4030 (ON SC), 64 O.R. (2d) 8, paras. 25-33, (Div. Ct.).

[166] This action against the Staff is therefore struck and dismissed as disclosing no reasonable cause of action.

Office of the Independent Police Review Director and Staff

[167] Within this group, the Plaintiff sues the Office of the Independent Review Director (“the “IPRD”), Gerry McNeilly, Susan Dunn-Lundy, Kim McDonald and Bernie Muiller (those persons collectively referred to as the “Staff”).

[168] The claim for damages (paragraph 10) is for negligent investigation, conspiracy, misfeasance in public office, breach of duty, tortuous interference of the Plaintiff, breach of the Plaintiff’s Charter rights, infliction of emotional distress, defamation of character, interruption in employment, interruption in routine of life and aggravated and punitive damages. Many of these causes of action are not thereafter articulated or referred to in the body of the claim.

[169] It is alleged (paragraph 25) that the IPRD failed to interview witnesses, that it promoted police misconduct and are vicariously liable in respect of torts committed against the Plaintiff and his child and the violation of their Charter rights.

[170] It is alleged (paragraphs 134 and 135) that the IPRD conspired with the Minister of the Attorney General in refusing to release information that Police provided in response to the Plaintiff’s complaint against the Sudbury Police Force. It is alleged that defendant MLA R. Bartolucci, appointed the Staff to the IPRD.

[171] In the “Basis For Claim” section against these Defendants, (paragraphs 389 to 397) it is alleged that the Defendants:

(a) Failed in their duty to serve the community, to uphold public values such as fairness, morals and protection by ensuring that the Police deliver a properly functioning, transparent and accountable law enforcement service to the defendant;

(b) Failed to ensure that the Sudbury Police fulfilled its mandate in accordance with the Independent Police Review Act and failed to follow any clear consistent criteria and provincial standards of the Police Service Act to protect the public from police misconduct;

(c) The Staff failed to ensure the Sudbury Police followed any clear consistent criteria and applicable provincial standards for investigation, criminal harassment and caution flags against the Plaintiff;

(d) The IPRD and Staff preferred their values and judgment to a consensus of self-interest policy in favour of the other Defendants in the region and acknowledged they were powerless to act against the CAS; and

(e) The conviction of the Plaintiff under s. 136 of the CJA as to photography in a court house is not a criminal offense. The illegal and malicious prosecution of the Plaintiff violated his Charter Rights. These Defendants are vicariously liable as a result of the damages suffered by the Plaintiff and his child.

[172] The provisions of the PSA include the handling of complaints from the public regarding police misconduct. Such complaints under the PSA are dealt with by various bodies including the local Chiefs of Police, the local municipal police services board, the IPRD and the Ontario Civilian Police Commission. Each of these entities may conduct investigations. Each, other than the IPRD, may conduct hearings.

[173] The Director of the IPRD is an individual appointed by the Lieutenant Governor in Council. The Director shall have employees as required and appointed under Part III of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A. Such employees may be appointed by the Director as investigators to carry out investigations under Part V of the Act.

[174] The functions of the IPRD include management of complaints made by members of the public about the policies of or services of a police force or the conduct of a police officer.

[175] The IPRD has a broad jurisdiction in response to complaints including deciding not to deal with complaints about conduct more than six months old, complaints considered to be frivolous or vexatious or complaints not in the public interest.

[176] Alternatively, such complaints to the IPRD may be referred to the chief of police of the force involved, or of another force, for investigation or a hearing.

[177] The IPRD may also retain, investigate and issue a report as to a complaint and in relation thereto, determine and report that the conduct complained of is unsubstantiated or constitutes misconduct of an unimportant or serious nature. In the latter case, the report and determination of the IPRD as to serious misconduct proceeds to a Chief of Police for a hearing.

[178] The IPRD is further required to examine complaints as to the conclusions of alleged misconduct not so determined by a Chief of Police.

[179] Section 33 of the Public Inquiries Act, 2009, S.O. 2009, c. 33, Sched. 6, applies to an investigation or review by the IPRD, to an investigator so appointed, or an employee in the office of the IPRD conducting an investigation or review.

[180] As to the Plaintiff’s allegation that the IPRD would not share with him information filed by the Sudbury Police Force in response to his complaint, the Act states that the IPRD, its investigators and employees investigating a complaint shall preserve secrecy in respect of all information obtained in the course of his or her duties under this Act and not communicate any such information to any person except as required in the PSA, to its counsel or as may be required for law enforcement purposes.

[181] The PSA provides that the IPRD, its investigators and employees are not required to give testimony in a civil proceeding with regard to information obtained in the course of their duties except at a hearing held under Part V of that Act.

[182] The PSA further provides that in relation to the IPRD and Staff, no action for damages lies against them for any act done in good faith in the execution or intended execution of any power or the performance of any duty under the PSA or for any alleged neglect or default in the execution or performance in good faith of that power or duty.

[183] The Statement of claim contains no allegations of material facts to support the claims that the investigations or reports of these Defendants were not properly conducted or are the result of mala fides. Any report conclusions of serious misconduct, if any, cannot support a civil claim against these Defendants and would be subject to a subsequent review and hearing before another entity under the PSA.

[184] As in Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, para. 7, absent mala fides, tort liability is not available against those legislated to investigate and determine the validity of complaints of public authorities such as police officers, as no duty of care is owed in this quasi-judicial investigation and determination by the IPRD and Staff, particularly in the face of the statutory immunity and exemption from testifying contained in sub-section 26.1 (10) and (12) of the PSA.

[185] It is in the public interest that public created, oversight, quasi-judicial bodies such as the IPRD and staff in the performance of their duties, not be subjected to civil liability by complainants dissatisfied with the determination of their complaint.

[186] There are a number of problems with the above allegations by the Plaintiff.

[187] The action herein against the Sudbury Police Force and its members was dismissed on their motion for summary judgment thereby eliminating the Plaintiff’s cause of action against the IRPD and Staff regarding those criminal charges, convictions, the allegations that those charges and prosecutions violated the Charter rights of the Plaintiff and the conduct of members of that Police Force against the Plaintiff.

[188] There is no legal basis for civil liability against the IRPD and or its Staff for acts of misconduct committed by a member of a police force prior to the filing of a complaint about such prior misconduct.

[189] This court has dismissed the claim against the Justices of the Peace in relation to the search warrant of the Plaintiff’s computer and s. 136 of the CJA.

[190] The Plaintiff has no legal standing to sue on behalf of his child.

[191] Any impact on the child on matters within the scope of this proceeding, are within the context of the CPP and the role performed by the CAS. Those are not matters within the scope of the IPRD. The IPRD and Staff are not vicariously liable for the actions of the CAS and its staff towards the Plaintiff or the child.

[192] The Plaintiff does not directly allege that he filed a complaint with the IPRD, if so when, or what was the nature of that complaint. There are no allegations as to the outcome of any such complaint or the date thereof. Such dates are relevant as to any limitation period.

[193] The role of each member of the Staff, if any, in relation to any such complaint is not alleged.

[194] Whether any such complaint was rejected outright, not considered to be of a serious nature, or if serious misconduct was determined, whether that resulted in a referral and a hearing before the local Chief of Police and the results of any such hearing, are not pleaded.

[195] The Plaintiff’s complaints against these Defendants as to his criminal convictions and the orders made in the CPP are an abuse of process for the reasons above.

[196] Bald allegations without material facts of bad faith are insufficient. Amending this claim is not an alternative given all of the other problems indicated above.

[197] The claim against the IPRD and Staff discloses no reasonable cause of action.

[198] For all of these reasons, the claims against IPRD and Staff are dismissed.

Office of the Children’s Lawyer

[199] The Statement of Claim names “Patricia L. Meehan, Ministry of the Attorney General Office of the Children’s Lawyer” as defendants. Ms. Meehan has brought a separate R. 21 motion to dismiss. Her actions as counsel for the OCL must be considered to evaluate the OCL.

[200] The Office of the Children's Lawyer (“OCL”) is a law office in the Ministry of the Attorney General which delivers (“OCL”) administration of justice programs on behalf of children regarding their personal and property rights.

[201] Lawyers within the OCL represent children in various areas including CPP and civil litigation.

[202] Outside Metropolitan Toronto, the OCL hires lawyers to represent children.

[203] Section 38 (4) (a) and (b) of the Child and Family Services Act, requires or deems the appointment of a lawyer necessary in CPPs where the Society, the parents or the child have conflicting views as to the removal of a child from a person’s care or where the child is in the care of the Society and it is alleged the child is in need of protection. The role of a lawyer so appointed is to protect the interest of the child.

[204] At the request of the court, the OCL appointed Ms. Meehan as legal counsel of the child in the CPP against the Plaintiff and his spouse.

[205] The Plaintiff’s claim for damages against the OCL and Ms. Meehan (para. 5) are for:

(a) Negligent investigation and maliciously procuring the CPP, conspiracy, misfeasance in public office, abuse of process and tortious interference of the Plaintiff;

(b) Breach of the Plaintiff and his child’s Charter rights under s. 7, s. 11(d), s. 12, s.15, and s. 24 (1) (2) based on her procuring the CPP, conspiracy, misfeasance in public office, abuse of process and tortious interference of the Plaintiff and his child;

(c) Intentional infliction of alienation of affections, parental alienation, court abuse syndrome, emotional distress, and defamation of character;

(d) The Plaintiff’s loss of time and interruption in employment, routine of life and for expenses relating to the malicious CPP;

(e) Failure to adequately supervise Dr. S. Milne’s treatment of the Plaintiff’s child which was the proximate cause of the injury suffered by the child;

(f) Failure to properly care and supervise the Plaintiff’s child in accordance with the standard of care and skill exercised by the average qualified appointed Children’s Lawyer;

(g) Aggravated and punitive damages; and

(h) His cost and expenses in regards to the false CPP between August 2004 and April 2012.

[206] Paragraphs 297 to 334 contain broad allegations. Many of the allegations are not against Ms. Meehan specifically, but rather against her and numerous other Defendants including named Crown Attorneys and CAS workers, or simply against “the Defendants”, without alleging what each defendant specifically did or failed to do.

[207] Specific allegations against Ms. Meehan do not reference or allege the involvement of the Ministry of the Attorney General or the OCL.

[208] The specific allegations against the OCL and Ms. Meehan on its behalf is that she:

(a) Adopted positions in court which misrepresented and were against the wishes and best interest of the children and failed to inform children of their legal rights and freedoms;

(b) Had no reasonable or probable grounds to believe the child was at risk or that supervised access was appropriate and acted in bad faith in adopting those positions knowing the circumstances were “suspicious”;

(c) Adopted positions in court without first consulting with the child;

(d) Maliciously procured the CPP against the Plaintiff in contravention of the Child Law Reform Act and Courts of Justice Act;

(e) Was biased in favour of the CAS over the interest of the child and the Plaintiff;

(f) Breached the Plaintiff and the child’s right of access together;

(g) Maliciously refused to provide the child written documents from the Plaintiff;

(h) Prevented access between the child and the Plaintiff;

(i) Prevented access to the Plaintiff’s own dental expert, dental devices and private dental insurance available through the Plaintiff;

(j) Deliberately failed to address the factors relevant to the child’s best interest;

(k) Failed to acknowledge the 2002 OCL report done by a social worker in the Family Law litigation between these parents of this child;

(l) Admitted she was confused;

(m) Failed to provide independent and impartial representations that was in the best interest, needs and wishes of the Plaintiff’s child;

(n) Falsely advised the court that child does not want to be improperly questioned by the Plaintiff;

(o) Deliberately provided false and incomplete information to Dr. S. Milne that triggered emotional responses and prompted Dr. Milne to prescribe Ritalin at a titration level above the rate accepted by the medical community which caused physical discomfort and eventual injury to the Plaintiff’s child and subjected the Plaintiff and his child to emotional distress, psychological trauma, physical injury, anxiety terrorizing, isolating, corrupting/exploiting and parental alienation;

(p) Conspired to not disclose the accident and injury of the child to the Plaintiff;

(q) Directly caused the accident and injury to the child and failed to promote the child’s use of the specialized dental device provided by the Plaintiff on advice from his dentist, thereby causing ongoing mental anguish and dental expenses;

(r) Together with other named Defendants, breached the Plaintiff and his child’s right to be consulted and to express their views whenever significant decisions concerning the child were made, including decisions with respect to prescribing Ritalin, dental treatment/private insurance and access;

(s) Together with other named Defendants, acted with malice and bad intention when they refused to communicate with the Office of the Provincial Advocate for Children and Youth to discuss the Plaintiff’s concern that he had not been provided by the mother or maternal grandmother with access to his child for a considerable period of time with the illegitimate support of the CAS, Patricia Meehan and others thereby causing parental alienation;

(t) Together with other named Defendants, falsely advised the Durham CAS that the Plaintiff was responsible for his child’s accident and medical expenses and had been ordered by the court to pay those fees when no such court order in fact existed; and

(u) Together with counsel for the CAS and other Defendants, were the direct cause of the accident, injury and trauma suffered by the Plaintiff and his child and constitute violations of the Charter rights of the Plaintiff and the child, (paras. 297 to 334).

[209] The Statement of Claim contains no separate allegations against the OCL. The allegations rather allege improper conduct by legal counsel appointed by OCL for the child.

[210] There are no allegations Ms. Meehan was acting on the instructions of or with the knowledge of the OCL or the Ministry of the Attorney General, beyond instructions to represent the child in the CPP.

[211] The claim discloses confusion as to the role and responsibilities of a lawyer appointed by the OCL in a CPP.

[212] Upon selection and appointment by the OCL, the scope of retainer of legal counsel under s. 38 of the Child and Family Services Act is limited, namely to represent and protect the interests of the child and to advise the court as to the wishes of the child, not those of the OCL nor of the parents.

[213] The lawyer appointed owes a duty to the child, not the child’s father who the court in the CPP repeatedly determined this child was in need of protection from. In the same way, the Ministry of the Attorney General which is responsible for the engagement and remuneration of such lawyer appointed, owes no duty to the Plaintiff.

[214] Whatever wrongdoing the OCL occasioned to this or other children as alleged does not give rise to a cause of action by the Plaintiff.

[215] The Plaintiff has no legal standing to commence a proceeding on behalf of, in the name of this child. The Plaintiff was not by court order appointed the child’s legal guardian in this proceeding. He lacks standing therefore to present the claims herein as to improper legal representation, improper medical treatment or injury and harm occasioned to the child.

[216] This claim against these OCL is another challenge to the validity of the court determinations in the CPP that:

(a) This child was in need of protection from this father; and

(b) The Plaintiff’s access with the child was in the discretion of and to be supervised initially by the CAS and later was then terminated because of this father’s conduct during supervised access.

[217] None of the CPP orders were appealed. The Plaintiff now however attacks those orders in his claims against the OCL, and by extension, the Ministry of the Attorney General.

[218] The personal status of Ms. Meehan in this proceeding will be determined on her motion. Any wrongdoing on her part as the lawyer of the child however does not attract liability to the Ministry of the Attorney General or its Office of the Children’s Lawyer given the absence of any allegation to support the knowledge or involvement of those Defendants in any such misconduct by that lawyer.

[219] This claim against the OCL and the Ministry of the Attorney General is an abuse of process, frivolous and vexatious and discloses no reasonable course of action against these Defendants.

[220] This claim against the OCL and the A-G in relation thereto is struck and dismissed.

Ontario Ministers, Ministries and MPPs

[221] The Plaintiff extends his claims of vicarious liability to the Ontario legislative members.

[222] The named Defendants are:

(a) Teresa Piruzza Ministry of Child and Youth Services;

(b) Deb Mathews Ministry of Health; and

(c) Rick Bartolucci, Sudbury MPP and Vice-Chair of Standing Committee on Government Services.

[223] The claim in each case (paras. 11 to 13) is for:

(a) Breach of public duty, conspiracy, misfeasance in public office, and tortious interference of the Plaintiff;

(b) Breach of the Plaintiff’s Charter rights based on the egregious breach of public duty, conspiracy, misfeasance of public office and tortious interference of the Plaintiff;

(c) The intentional infliction of emotional distress, defamation of character, loss of time and interruption in employment and routine of life;

(d) Expenses relating to obtaining access to his child; and

(e) Aggravated and punitive damages.

[224] Ms. Mathews and the Ministry of Health face one additional damage claim for breaching the North American Industry Classification System (NAICS) Code 621111, being a standard to practice general health medicine.

[225] The following authorities limit or prohibit civil action against the Ontario Ministers and MPP Defendants for the actions of public servants answerable to them:

(a) Her Majesty the Queen in right of Ontario is solely responsible for the tortious acts of Crown servants, which includes a minister of the Crown.

(b) No servant of the Crown is vicariously liable for the tortious actions of another Crown servant, including subordinates: Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27, ss. 1, 5(l) (a) and Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, 2003 CarswellOnt 5574, para. 69, Conseil des Ports Nationaux v. Langelier 1968 51 (SCC), [1969] S.C.R. 60 at para 27.

(c) A Minister of the Crown must be sued in their personal capacity for their own actions and not in their representative capacity, as a minister is not liable for the torts of other Crown servants or the Minister’s representative executive conduct. Only the Crown may be sued in a representative capacity: Air India Flight 182 Disaster Claimants v. Air India, (1987), 1987 4125 (ON SC), 62 O.R. (2d) 130, paras. 22-23, (HC) and Deep v. Ontario, 2004 CarswellOnt 2625, [2004] O.J. No. 2734, para. 83 (SCJ), aff’d [2005] O.J. No. 1294 (CA) and Harabulya v. Ontario (Ministry of Labour) 2005 CarswellOnt 1163 (O.S.C.) at para. 15 and PACA s. 5 and Persaud v. Ontario (Ministry of the Attorney General), 2008 CarswellOnt 4490 (Ont. Sup. Ct) Paras. 49 to 51..

(d) As to actions by a Ministry of government, the party to be sued is the government of Ontario, not the Ministry: PACA s. 5 and 9.

Teresa Piruzza and Ministry of Child and Youth Services (“MCYS”) (Paras. 11, 26, 336, 352, 401 to 405, 416 and 435)

[226] These Defendants are allegedly vicariously liable for the torts committed against the Plaintiff and his child, the damages occasioned to them and the violation of their Charter rights, because Ms. Piruzza and her Ministry ultimately controlled government policies exercised by the Ministry of Health Appeal and Review Boards Act, S.O. 1998, c. 18 and the Child and Family Services Act funded the Sudbury CAS, thereby making them vicariously liable for the “false arrests, malicious prosecution’s, unlawful imprisonment, false CPP, medical malpractice and infringement of the Plaintiff’s Charter right.”

[227] Global nonspecific allegations, including failing to “uphold the public’s standard of morals” and “deferring their values and judgment to a consensus of self-interest policy in favour of the other Defendants” are insufficient and communicate nothing to these Defendants. No specific facts are pled to support these “allegations”.

[228] It is alleged these two Defendants:

(a) Failed to ensure that the Sudbury CAS “fulfilled its mandate pursuant to the CFSA and the best interest of children and families”;

(b) Failed to ensure that the CAS followed clear consistent criteria and applicable provincial standards of Ontario child protection outlined in the provincial “Eligibility Spectrum” and the “Risk Assessment Model for Child Protection in Ontario” throughout the malicious CPP against the Plaintiff;

(c) Failed to ensure that the CAS employed or used workers were registered with the Ontario College of Social Workers in the services provided to the Plaintiff and his family as Ontario Regulation 383/00 requires that the practice of social work is to be regulated by the College of Social Workers, thereby exposing the Plaintiff to actions of unqualified workers of CAS;

(d) Appointed or selected Ms. Gilbert, Mr. Oliver and others to the CFS Board that “may have in the past implemented those policies against the Plaintiff regarding his complaint against” the CAS, its lawyer, Dr. Milne and other Defendants for negligent treatment of his child; and

(e) Without explaining the connection, the Plaintiff repeats his allegation that the malicious prosecutions against him, such as his conviction under s. 136 of the CJA, violated his Charter rights rendering the Defendants vicariously liable for his resulting damages and those of his child.

[229] These allegations attack prior court determinations in the CPP and the criminal courts against the Plaintiff. Those determinations were not appealed. These allegations place the issues determined by judges in the CPP before a civil court in the hope of obtaining a different result. To do so is an abuse of process.

[230] As previously stated, the Plaintiff has no legal standing to commence action for wrongdoing to this child.

[231] For the reasons and authorities previously stated, this attempt to re-litigate those issues constitutes an abuse of process, discloses no reasonable cause of action and are dismissed against these Defendants.

Deb Mathews and the Ministry of Health (Paras. 12, 27, 336, 352, 410-4127 and 435)

[232] It is alleged these Defendants:

(a) Failed to serve the community and uphold public values of fairness, morals and to protect the public by ensuring physicians practice according to the standard of the North American Industry Classification;

(b) Failed to implement policies in accordance with the North American Industry Classification System (NAICS) putting Ontarians at risk of injury resulting from the medical malpractice of physicians who practice outside of their NAICS;

(c) Appointed or selected Brenda Petryna (a legal assistant for a Sudbury law firm with conflicting interests) to the Health Professions Appeal and Review Board that may in the past have implemented those policies against the Plaintiff regarding his complaint against Dr. Sheila Milne, Jean Jacques Paquette and the other Defendants for negligent treatment of his child;

(d) With the intent to eliminate widespread opposition to the negligent prescription of psychotropic drugs to children by unqualified mental health professionals, selected an unknown investigator with the College of Physicians and Surgeons who obtained an anonymous and biased opinion that found Dr. Milne and the others acted as prudent officers;

(e) Deferred their values and judgment to a consensus of self-interest policy in favour of the other Defendants when they obtained an “anonymous” opinion that vindicated Dr. S. Milne from any liability for negligent practicing mental health, endangering and causing injury to the Plaintiff’s child;

(f) Permitted the Defendants to disregard recognized social and public responsibility expectation frameworks (Eligibility Spectrum, Risk Assessment Model and Ontario Regulation 383/00) that were aimed at the protection of the Plaintiff and the general public from unqualified workers employed by CAS;

(g) Appointed/selected Suzanne Gilbert, Mr. Oliver and other unknown members to the Child and Family Services Review Board that may have in the past implemented those policies against the Plaintiff regarding his complaint against Jean Jacques Paquette, CAS, Dr. S. Milne and the other Defendants for the negligent treatment of the Plaintiff’s child; and

[233] The Plaintiff was unsuccessful in his complaints regarding the medical treatment of the child before the Health Professions Appeal and Review Board. He is attempting herein to reverse that finding and to recover damages for medical misdiagnosis and treatment of his child, for whom he has no legal standing.

[234] Paragraphs (a), (c) and (e) above are the subject of other R. 21 motions herein.

[235] The Plaintiff was unsuccessful in his complaint to the Child and Family Services Review Board. He acknowledges his allegations regarding Suzanne Gilbert, Mr. Oliver, and other unknown members of the Child and Family Services Review Board, are speculative but despite that, now sues these Defendants, not as participants in such alleged misconduct but simply as the authority which appointed such “wrongdoers” to that Board. This action involving those Defendants is dismissed above.

[236] There is no civil cause of action against the appointer for potential subsequent misconduct of the appointee to such Boards, in the absence of alleged facts indicating otherwise. In this case, there are no material facts pled to support such causal connection.

[237] This is a further attack of the CPP determinations, none of which were appealed, and therefore constitutes an abuse of process.

[238] No reasonable cause of action has been demonstrated.

[239] For these reasons, this claim against these Defendants is struck and dismissed.

Sudbury MPP Rick Bartolucci Vice Chair Standing Committee on Government Agencies (Paras. 13, 28, 29, 41, 61, 132, 135, 162, 210, 423-427, 429-431 and 435)

[240] It is alleged this defendant:

(a) With other Defendants, had ultimate control over government policies and failed to ensure that their primary duty was to serve the community, to uphold public values, such as fairness, morals and transparent accountable, proper law enforcement, child protection and medical malpractice safeguards;

(b) In January 2005, the Plaintiff contacted Sudbury MPP Rick Bartolucci who told the Plaintiff to “go and protest in front of his office”. That was a deliberate abusive exercise of public function intended for the promotion of Jean Jacques Paquette, Patricia Meehan, John Luczak, Kendrick Abbott, Susan Bruce, Craig Moxam, Craig Maki, Robin Tiplay and the other Defendants and to harass the Plaintiff;

(c) The other Defendants deliberately appointed Gerry McNeilly, Susan Dunn-Lundy, Kim McDonald and Bernie Muiller to the Ontario Independent Police Review Director’s office in order to implement and eliminate widespread opposition to those policies;

(d) Deliberately appointed Suzanne Gilbert to the Child and Family Services Review Board to implement and eliminate widespread opposition to those policies;

(e) The other Defendants deliberately appointed Brenda Petryna to the Health Professions Appeal and Review Board to implement and eliminate widespread opposition to those policies, thereby failing to ensure physicians practice according to the standard of the North American Industry Classification System;

(f) Failed to recognized social and public responsibility governance frameworks and recommendations made by the Provincial Advocate for Child and Youth that are aimed at the protection of the Plaintiff and the general public from civil rights violations committed by Ontario’s Children’s Aid Societies;

(g) Failed to recognized social and OIPRD public responsibility governance frameworks recommendations made by the Ontario Ombudsman that are aimed at the protection of the Plaintiff and the general public from false arrest, wrongful imprisonment and malicious child protection proceedings, medical malpractice and civil rights violations against the Plaintiff;

(h) The Defendants’ appointment of a Financial Accountability Officer in lieu of the Ombudsman, denies Ontarians, Ombudsman oversight of MUSH sector services and allows service providers to continue violating citizen’s civil rights and liberties and constitutes a similar tactic of past actions taken by the Defendants; and

(i) Denied the Plaintiff’s rights of opinion, expression, the right to liberty of the person, the right against unreasonable search or seizure, against arbitrary detention, the right to be informed without delay as to the reason for being charged, the right to not be subjected to cruel and unusual punishment as provided in the Charter, which rights the Plaintiff was denied. The Plaintiff therefore is the victim of malicious criminal persecutions and malicious child protection proceedings for which this defendant is vicariously liable.

[241] These allegations are so broadly worded that their meaning is unclear. They lack allegations of specific wrongdoing by this defendant.

[242] These allegations do however attack the determinations in the criminal and CPP against the Plaintiff, none of which were appealed. That constitutes an abuse of process.

[243] This court repeats the above determination that the party appointing someone to a Board is not by that appointment civilly liable for subsequent misconduct of the appointee, without specific alleged material facts to support a cause of action including responsibility and liability for the acts of the appointee.

[244] The Plaintiff pleads that Mr. Bartolucci was in some unspecified way exposed over time to the volatile dealings between the Plaintiff and his former spouse. Aside from etiquette, there is no known cause of civil liability for an elected official refusing to meet with the Plaintiff and suggesting he protest in front of his office.

[245] The following authorities prohibit this civil action against the above Ontario Minister and MPP:

(j) Her Majesty the Queen in right of Ontario is solely responsible for the tortious acts of Crown servants, which includes a minister of the Crown. No servant of the Crown is vicariously liable for the tortious actions of another Crown servant, including subordinates: Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27, ss. 1, 5(l) (a) and Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, 2003 CarswellOnt 5574, para. 69.

(k) A Minister of the Crown must be sued in their personal capacity for their own actions and not in their representative capacity: Air India Flight 182 Disaster Claimants v. Air India, (1987), 1987 4125 (ON SC), 62 O.R. (2d) 130, paras. 22-23, (HC) and Deep v. Ontario, 2004 CarswellOnt 2625, [2004] O.J. No. 2734, para. 83 (SCJ), aff’d [2005] O.J. No. 1294 (CA).

[246] These sweeping, non-specific allegations against this Defendant do not constitute a reasonable cause of action and are therefore dismissed.

LEAVE TO AMEND

[247] The numerous legal prohibitions against the claims presented, including expired limitation periods and the claims constituting an abuse of process or being frivolous or vexatious litigation, constitute substantive barriers to these claims and not simply pleading deficiencies which can be rectified by amendment. This is not a case justifying leave to amend.

CONCLUSION

[248] The claims against the Ontario Defendants are dismissed without leave to amend.

COSTS

[249] Any party seeking costs shall serve and file short written submissions within 30 days of this decision. Written response thereto shall follow 20 days thereafter with any reply thereto within the following 10 days.

[250] If applicable, any Defendant seeking costs shall address the following questions:

(a) Why should a Defendant be entitled to costs for attending Court on a date after completion of their argument of their motion?

(b) Why should a Defendant be entitled to hourly rates of their counsel which exceed normal hourly rates charged by senior Sudbury counsel?

(c) Why should a Defendant be entitled to recover travel time and disbursements resulting from their selection of out of town counsel?

Kane J.

Released: July 14, 2015

COURT FILE NO.: C-2835-13

DATE: 2015/07/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.F.

Plaintiff

THE GREATER SUDBURY POLICE SERVICE et al

Defendants

REASONS –ontario DEFENDANTS’ MOTION

Kane J.

Released: July 14, 2015