ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-4756-00
DATE: 20150710
B E T W E E N:
JUAN ANTONIO OVIDIO REYES
Self-represented
Plaintiff
- and -
CMN GLOBAL INC./EUROP ASSISTANCE GLOBAL CORPORATE SOLUTIONS (EA GCS) AND HOUSTON CASUALTY COMPANY MEDICAL INSURANCE SERVICES, LLC (HCCMIS)
Defendants
Rebecca Wise, counsel for the defendant CMN Global Inc.
HEARD: July 6, 2015
ENDORSEMENT
Seppi J.
[1] The defendant CMN Global Inc. (CMN) brings this motion for the court to strike the plaintiff’s statement of claim, without leave to amend.
BACKGROUND
[2] The defendant CMN provides medical case management and claims processing to insurance companies, including to the defendant company Houston Casualty Company Medical Insurance Services LLC (HCCMIS). The plaintiff Juan Reyes was employed by CMN from February 2013 to October 2013, when he was terminated without cause. He was provided with pay in lieu of notice.
[3] The plaintiff seeks $1,000,000 in general, aggravated and special damages and $4,000,000 in punitive and exemplary damages. The basis of his claim is not clear. Generally he alleges that CMN breached its legal duty by violating various statutes, including the Criminal Code, the Human Rights Code and the Canadian Charter of Rights and Freedoms. He argues that such violations resulted in his termination and caused him mental distress.
[4] The issue is whether the court should strike the plaintiff’s claim without leave to amend.
[5] The position of the moving party defendant is that the claim should be struck without leave to amend because:
a) It discloses no cause of action; and
b) It is scandalous, frivolous, vexatious and an abuse of process.
[6] The defendant submits the claim alleges no cause of action known to law. It vaguely claims entitlements under the Employment Standards Act, 2000 (ESA) and damages for alleged breaches of the Human Rights Code (Code). The defendant submits the plaintiff has failed to plead the necessary material facts in support of any such claims, and it is plain and obvious the claims will not succeed. It is submitted the claim does not comply with the Rules of Civil Procedure (Rules). It is entirely incomprehensible to the defendants, and leave to amend would not resolve the deficiencies.
[7] The plaintiff responding party’s position in its factum is 93 pages long. It contains a litany of complaints and references to statute and case authorities which do not relate to the issue on this motion. The plaintiff seeks relief for acts that he claims are prescribed under the law, and alleges the defendants are blind to his situation.
[8] It appears the plaintiff is saying that the defendant CMN intended to cause him emotional and mental distress by keeping him working with HCCMIS, that he had to work longer hours and got less rest than his female colleagues. He claims that as a result he suffered continued and prolonged emotional and mental distress. He submits the defendants have engaged in actions of intimidation and harassment against him.
[9] In his factum the plaintiff also alleges the actions of the defendants have constituted an abuse of the court process because counsel has asked him on several occasions to dismiss his claim and unilaterally booked a motion to strike with more than double the time for them than for himself. The court in fact accorded the plaintiff considerably more time for argument than was taken by the defendant moving party.
[10] The plaintiff’s factum and arguments fail to address the issue before the court regarding the deficient statement of claim. A brief review of additional arguments raised in the plaintiff’s factum illustrate this failure. For example,
• At paragraphs 32-49 of his factum, the Plaintiff lists alleged misrepresentations made by the Defendants, which he says “constituted false pretenses to induce plaintiff to act” (para 33).
• At paragraphs 50-64, the Plaintiff lists a number of ways in which he says CMN breached his employment contract, as well as the ESA.
• At paragraphs 67-110, the Plaintiff discusses all the ways in which he says CMN violated the Code, with a particular focus on incidents of discrimination, as well as a review of relevant case law.
• At paragraphs 111-121, the Plaintiff discusses the ways in which he claims CMN violated the Criminal Code.
• At paragraphs 122-127, the Plaintiff discusses alleged violations of the Freedom of Information and Protection of Privacy Act committed by CMN.
• At paragraphs 128-130, the Plaintiff lists alleged violations of U.S. and other international legislation committed by the Defendants.
• At paragraph 145-149 [renumbered 145 in error], the Plaintiff responds to the argument that he did not have a contractual relationship with HCCMIS.
• At paragraphs 148-152 (properly, paragraphs 152-156), the Plaintiff lists various random “Adjudicative Facts” and “Legislative Facts”.
[11] Indirect references to the deficient pleading are made as the plaintiff also argues in the factum that the defendants have given the statement of claim a very limited and restrictive legal reading. He also argues that he has been prejudiced by CMN’s failure to provide him with a copy of the entire human resources file so that he can support his complaints (paras. 19, 23). At paragraphs 131-143, the Plaintiff discusses some case law on whether a claim is scandalous, frivolous, vexatious, or an abuse of process. At paragraph 144, the Plaintiff submits that any violations of the Rules on his part are technical, and can be remedied by amendment. He argues that the Defendants have also violated the Rules, and it would therefore be prejudicial to penalize him and not them. At paragraph 146-147 (properly, paragraphs 150-151), the Plaintiff argues that provisions of the Rules are an unconstitutional violation of the Charter of Rights and Freedoms.
[12] In his factum and at the beginning at the hearing of the motion the plaintiff also requested that the court provide him with a lawyer paid by the government as he lacks funds to obtain independent legal advice and would be prejudiced without such legal assistance. It became apparent from his argument, however, that Mr. Reyes had not made real efforts to privately retain counsel, nor had he fully pursued the avenues of financial legal aid that are available to a self-represented party, save and except some general inquiries by telephone.
[13] The court denied his request for the provision of a lawyer to be paid by the government. He was then given the opportunity to have the matter adjourned for him to retain counsel. However, he declined this option and elected to proceed with the motion as a self-represented party.
ANALYSIS
[14] Under rule 21.01 (1)(b) of the Rules, the court may strike a pleading on the ground that it discloses no reasonable cause of action or defence.
[15] The test for striking a claim is stringent and care must be taken to make allowance for drafting deficiencies and save the pleading whenever reasonably possible, with leave to amend.
[16] The law in relation to this issue was succinctly summarized by Himmel J. in Mcintyre v. Connolly, 2008 12496 (Ont. SCJ) at para. 15 and 16:
The test to be applied on a motion to strike a pleading under Rule 21 is, assuming that the facts as stated in the statement of claim can be proved, whether it is “plain and obvious” that the pleading discloses no reasonable cause of action: see Hunt v. Carey, 1990 90 (SCC), [1990] 2 S.C.R. 959. Only if the action is certain to fail because it contains a radical defect should it be struck. On such a motion, no evidence is admissible. The motions judge is to read the pleadings generously with allowance for inadequacies due to drafting deficiencies: Toronto-Dominion Bank v. Deliotte Haskins & Sells (1991), 1991 7366 (ON SC), 5 O.R. (3d) 417 at 419 (Gen. Div.). If there is a chance that the plaintiff might success, then the plaintiff’s claim should not be struck out: see Datile Financial Corp. v. Royal Trust Corp. of Canada (1991), 1991 7310 (ON SC), 5 O.R. (3d) 358 at 368 (Gen. Div.).
Rule 21 is designed to eliminate claims at the earliest stage. However, neither the length nor the complexity of the issues, the novelty of the cause of action, nor the potential of a strong defence should prevent the plaintiff from proceeding. The court should not at this stage of proceedings dispose of matters of law that are not fully settled in the jurisprudence: see R. D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778 at 782 (C.A.). On the other hand, if a claim is not legally sufficient in that the allegations do not give rise to a recognized cause of action or the necessary legal elements of the cause of action are not pleaded, it should be struck out: see Deep v. Ontario [2004] O.J. No. 2734 at para. 33 (S.C.J.) aff’d [2005] O.J. NO. 1294 (C.A.). The absence of necessary elements of a cause of action constitutes a radical defect.
[17] The Rules require that a pleading provide a concise statement of material facts and clearly set out the basis for the claim. Here the statement of claim is radically defective. It fails to disclose any cause of action known to law. It does not plead material facts to support any cause of action. Instead it is mainly a 47 page single-spaced recitation of duplicated e-mails between the plaintiff and various representatives of the defendant CMN before, during, and following his employment. The pleading also summarizes verbal communication the plaintiff alleges took place with representatives of CMN. A review of the e-mails indicates that various unrelated and random topics are addressed in these emails such as, vacation time, internet usage and questions about policies related to credit card use.
[18] Pages 46-47 of the claim include a section titled “legal claims against the defendant”. This section attempts to set out the legal basis for the claim. In summary it pleads the following against CMN:
a. CMN and its affiliates have legal duties to respect all relevant Canadian, US and international legislation as well as a general duty not to harm others;
b. CMN breached its legal duty by allegedly violating various sections of the Criminal Code, Charter of Rights and Freedoms, Human Rights Code, Employment Standards Act, 2000, Freedom of Information and Protection of Privacy Act and, possibly, some United States and other international legislation;
c. as a result of CMN’s alleged violations of legislation, as set out above, Reyes’ employment was terminated; and
d. Reyes suffered significant “harassment, intimidation, discrimination, retaliation, prejudice, emotional distress, pain, suffering and financial loss” as a result of the (unspecified) acts or omissions of CMN.
[19] In argument the plaintiff effectively conceded that his statement of claim does not comply with the Rules. His position is that he has stated everything he wants the court to know about his claim in this document, as filed. He argues that the fact that the pleading does not comply with the Rules cannot be grounds to strike his pleading. His position is that the Rules are unconstitutional and a self-represented litigant such as him is disadvantaged because he is not a lawyer and does not know how to draft a pleading in a manner that is required by the Rules.
[20] Mr. Reyes also submitted that he had the option of bringing his complaints to the Human Rights Tribunal and has elected not to do so. It is his view that he needs to act as a “whistleblower” as against these defendants which, in his view, is more appropriately achieved by a court process than before a Tribunal.
DECISION
[21] Having regard to the above and upon a thorough review of the material I find this statement of claim discloses no reasonable cause of action. It is radically defective and it is plain and obvious the claim will not succeed, even assuming the facts pleaded are true.
[22] The causes of action which the plaintiff seeks to advance are unknown to law.
[23] He asserts CMN breached sections of 380 and 425 of the Criminal Code of Canada. It has been stated by the Supreme Court that alleged violations of the Criminal Code do not give rise to civil cause of action.[^1]
[24] He alleges the defendant violated sections of the Charter of Rights and Freedoms. This cannot stand as the Charter does not apply to private litigation that is completely divorced from any connection with government. Neither defendant nor any of the pleading relates to government authority.[^2]
[25] The plaintiff’s claim against the Freedom of Information and Protection of Privacy Act (FIPPA) cannot succeed as this legislation deals with “freedom of information and the protection of certain private information with respect to government and other public institutions.” It has nothing to do with private rights of action between individuals.[^3]
[26] The plaintiff asserts no particular provisions of FIPPA as having been breached. There is no nominate tort of statutory breach in Canada. The mere allegation of a breach of statute is insufficient to give rise to a civil cause of action.[^4]
[27] The plaintiff’s claims that CMN possibly violated unspecified U.S. and other international legislation. This is not a cause of action known to law by the same authority that there is no nominate tort of statutory breach in Canada.
[28] The claim also alleges entitlements under the ESA, and claims for damages for alleged breaches of the Code. The plaintiff asserts that the defendant breached sections 11, 17, 22, 42, 54, 61 and 74 of the ESA. However, the pleading does not include necessary material facts to support any of these alleged breaches.
[29] The plaintiff asserts CMN breached sections 2, 3, 5, 8, 9, 11 and 23 of the Code. However, infringement of a right under the Code does not constitute an independent civil cause of action,[^5] and damages for discrimination under the Code may only be ordered in the context of a civil proceeding that otherwise discloses a cause of action.[^6] No cause of action is found in this pleading and there is therefore no basis for a claim under the Code. Moreover, the pleading does not contain necessary material facts to establish an infringement of rights under the sections of the Code the plaintiff has listed.
[30] This pleading is not a concise statement of material facts on which the party relies. It is prolix and not pleaded as briefly as possible. The nature of the relief claimed is not specified. Allegations of fraud do not contain particulars. All of the above are requirements for proper pleading.
[31] The claim is incomprehensible and indecipherable to the defendants, and it would be impossible to defend it in the circumstances. In argument the plaintiff was asked to at least briefly state in layman’s terms the nature of his claim. He was unable to articulate his cause of action. His defence to this situation of being unable to state his cause of action, either verbally or in writing, is that the Rules themselves are unconstitutional, as a self-represented litigant, untrained in the law, is not able to concisely state his claim in accordance with the Rules.
[32] In circumstances where pleading is struck for disclosing no reasonable cause of action the court may grant leave to the responding party to amend. However, leave may be refused where “it is clear that the plaintiff is unable to improve its case by an amendment it might properly be able to make.”[^7] In this case where the pleading does not constitute any identifiable cause of action it cannot be remedied by an amendment.
[33] The plaintiff claims he chose the forum of the court rather than the Human Rights Tribunal for his allegations, as he wished to be a whistleblower against the defendant. That is not a proper basis or reason for bringing proceedings before this court. As such the pleading is also an abuse of the court process.
RESULT
[34] In the result this motion is allowed. The statement of claim is struck with no leave to amend. This decision is without prejudice for the plaintiff to bring a new and properly constituted action against these parties subject to the condition below regarding costs.
COSTS
[35] I have reviewed the defendant moving party’s bill of costs which approximates $20,000 as full indemnity. I accept that a considerable amount of time would have been required to decipher and prepare for this motion, particularly having regard to the voluminous and unintelligible material filed by the plaintiff. Nevertheless I do not find full indemnity to be appropriate in this case. The plaintiff is self-represented and his inability to follow the Rules is not a matter to be unduly punished. I also consider the plaintiff’s strained financial circumstances.
[36] The defendant has been entirely successful on its motion. In such circumstances, as the successful party, it is entitled to reasonable costs. Costs consequences are a fundamental aspect of civil litigation for which each and every party bears the risk.
[37] I am therefore awarding $6000, partial indemnity reduced costs to the defendant CMN, payable by the plaintiff in 60 days. Further action commenced by the plaintiff as against the defendants shall be conditional on payment of this costs award.
Seppi J.
Released: July 10, 2015
COURT FILE NO.: CV-14-4756-00
DATE: 20150710
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JUAN ANTONIO OVIDIO REYES
Plaintiff
– and –
CMN GLOBAL INC./EUROP ASSISTANCE GLOBAL CORPORATE SOLUTIONS (EA GCS) AND HOUSTON CASUALTY COMPANY MEDICAL INSURANCE SERVICES, LLC (HCCMIS)
Defendants
ENDORSEMENT
Seppi J.
Released: July 10 ,2015
[^1]: Direct Lumber Co v. Western Plywood Co., 1962 76 (SCC), [1962] S.C.R. 646, at 648-9
[^2]: RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573 at 597-9
[^3]: Jones v. Tsige, 2012 ONCA 32 at para 51
[^4]: R v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205 at 225
[^5]: Honda v. Keays, 2008 SCC 39 at paras 63-65, citing Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 SCR 181
[^6]: Code, s. 46.1
[^7]: A.G.F. Canadian Equity Fund v. Transamerica Commercial Finance Corp. Canada, 1993 8682 at 19 (Ont. S.C.J.)