Court File and Parties
COURT FILE NO.: 16-67775 DATE: April 26th, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amanda Chalupnicek et. al., Plaintiffs AND: The Children’s Aid Society of Ottawa, et. al., Defendants
BEFORE: Master C. MacLeod
COUNSEL: Glenn Bogue, for the plaintiffs – written submissions
HEARD: April 26th, 2016
Endorsement
[1] On April 11th, 2016 the Registrar acting at my direction issued a notice pursuant to Rule 2.1.01 advising the plaintiffs that this action might be stayed or dismissed as it appeared to be frivolous, vexatious or an abuse of process. Counsel for the plaintiff was also provided with a copy of my reasons (2016 ONSC 2353) including a temporary stay.
[2] As provided by the notice, counsel for the plaintiffs has provided written submissions in which he attempts to demonstrate that the action should neither be stayed nor dismissed. I did not require submissions from the defendants and for the reasons that follow, the action will be dismissed.
[3] I will not repeat in detail what was said in the original endorsement. Rule 2.1 was enacted not to deprive parties of the right to properly bring matters before the court but to provide a streamlined process to eliminate cases that are clearly an abuse of process before they consume inordinate amounts of time and cost for all involved.
[4] The court of appeal has endorsed the jurisprudence developed under this rule and leave to appeal to the Supreme Court of Canada from that decision was recently refused. The rule is therefore to be “interpreted and applied robustly” but “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading” and the pleading justifies “resort to the attenuated process.” See Scaduto v. Law Society of Upper Canada 2015 ONCA 733; application for leave to appeal dismissed, April 21, 2016, Supreme Court of Canada docket, 36753.
[5] In his response, as directed by the court, Mr. Bogue certifies that he acts for the plaintiffs and was expressly authorized to issue the statement of claim. I am satisfied therefore that the plaintiffs instructed Mr. Bogue to bring this action and that they did so with the benefit of his legal advice.
[6] The submissions do not adequately address the abuse of process posed by a collateral attack on a judgment which was at the time the statement of claim was issued, a judgment under appeal. They do not explain reliance on laws which are not in force or justiciable in Ontario.
[7] The pleading and the submissions make certain assertions about the constitutional recognition of aboriginal rights including metis rights. It is abundantly clear that such rights must be recognized by Canadian courts and it is equally apparent that the extent of such rights are justiciable in the courts of Ontario. Similarly, international law and international treaty obligations of Canada may form part of domestic law. To assert those rights, however, they must be properly brought before the court. It is not enough to simply recite constitutional rights or historic wrongs in a pleading to give the pleading merit. The action must be properly framed and constituted. That is not the case here. See Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Daniels v. Canada 2016 SCC 12.
[8] The plaintiffs also call upon “the common law of the land” as if that is some pre-existing super constitutional principle which the court must recognize. The common law in force in Ontario has a precise definition. It is the common law of England as it existed on October 15th, 1792 as subsequently modified by Canadian judicial decisions, by statute and by the Constitution of Canada. See [Property and Civil Rights Act, R.S.O. 1990, C. P.29].
[9] With respect to judicial immunity from civil claims, Mr. Bogue refers to the Nuremberg trials to illustrate that there are limits to immunity and that judges participating in “crimes against humanity” or “genocide” cannot hide behind judicial immunity. The pleading however contains no allegation against the judges beyond the discharge of their ordinary judicial functions. Nor does he address the jurisdiction of an Ontario court over an Alberta judge.
[10] As was the case with the pleading, the submissions refer to the “International Tribunal Against Church and State” and the “International Common Law Court of Justice” which allegedly indicted and convicted The Queen, The Pope and Prime Minister Harper of murder and conspiracy to murder. These are non-existent or self-created tribunals which cannot be recognized by this court and whose decisions can have no relevance to creating a cause of action against these defendants.
[11] In his submissions, Mr. Bogue defines the plaintiff father as “sovereign” or “sovereign metis” with “an allodial land claim that reaches back to the Saxon kings and Magna Carta”. These are examples of what courts have identified as a strategy of pleading “specific and irrelevant formalities and language” portrayed as having legal significance. This is a hallmark of much frivolous litigation in Canada designed to “disrupt court operations” and to frustrate the legal rights of litigants. See for example Meads v. Meads 2012 ABQB 212.
[12] As drafted the statement of claim contains no recognizable cause of action. It is on its face an abuse of process and none of the defendants should be called upon to respond to it.
[13] The court therefore orders as follows:
- Pursuant to Rule 2.1.01 (1) this action is dismissed as it appears to be frivolous, vexatious and an abuse of process.
- As the defendants were not called upon to make submissions, I decline to order costs.
Master C. MacLeod