Jordan v Attorney General of Canada, 2016 ONSC 3831

Court File and Parties

KINGSTON COURT FILE NO.: CV-14-419 DATE: 20160609 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ryan Jordan, Plaintiff AND Attorney General of Canada, Defendant

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: The Plaintiff represented himself Korinda McLaine, for the Defendant

HEARD: May 27, 2016

Endorsement

MINNEMA, J.

Nature of the Hearing/Issues

1This was a motion by the defendant the Attorney General of Canada (“AG”) to strike out portions of the plaintiff Ryan Jordan’s pleading that contain legal argument, opinion, evidence, and irrelevant information, and to strike out the following claims without leave to amend:

1. misfeasance in public office;
2. false imprisonment;
3. arbitrary detention;
4. cruel and unusual punishment;
5. breach of right to fundamental justice;
6. aggravated damages and punitive damages.

Law: Motion to Strike

2Pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended (“Rules”), “[a] party may move before a judge … (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.” There is no dispute as to the test and process, and the following succinct summary from Trillium Power Wind Corp. v. Ontario (Ministry of Natural Respouces), 2013 ONCA 683, at paragraphs 30 and 31, is consistent with both parties’ submissions:

30 The analytical framework for assessing whether to strike out a pleading on the ground that it discloses no reasonable cause of action under Rule 21.01(1)(b) of the Rules of Civil Procedure, is set out by Paul M. Perell and John W. Morden in The Law of Civil Procedure in Ontario, 1st ed. (Markham: LexisNexis Canada Inc., 2010), at p. 445:

The following principles apply to a Rule 21 motion to strike a pleading for failing to disclose a reasonable cause of action or defence: (a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof; (b) the claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings; (c) novelty of the cause of action is of no concern at this stage of the proceeding; (d) the statement of claim must be read generously to allow for drafting deficiencies; and (e) if the claim has some chance of success, it must be permitted to proceed.

31 The test is not in dispute: the claim will only be dismissed where it is "plain and obvious" that it has no reasonable prospect of success: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Imperial Tobacco, at paras. 17-19; Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161 at para 22. While the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts.

Facts

3The following are the background facts from the claim and the documents pleaded, including previous decisions of this court.

4The plaintiff is an inmate serving a life sentence since 2003. He was in a medium-security institution until transferred to minimum-security in early 2013 following a reclassification. About eight months later, on September 26, 2013, the plaintiff was moved back to medium-security by way of an emergency involuntary transfer. He brought an application for habeas corpus to quash that decision. It was heard on April 24, 2014. Justice Tranmer granted the plaintiff’s request and ordered an immediate transfer back to minimum-security.

5Justice Tranmer found that the Crown had not satisfied the onus on it to establish that prison authorities acted lawfully regarding disclosure. He found a reasonable apprehension of bias relating to the actions of the parole officer and Warden, noting that was the second basis upon which the transfer was unlawful. He then found, based in part on those two findings along with other evidence, that the Crown had not met its onus of proving that the decision to transfer was reasonable.

6Justice Tranmer’s decision is the foundation of the action. The plaintiff alleges that the involuntary transfer to medium-security was retaliatory, in part because he had another court action against the defendant underway “to seek redress for governmental wrongs committed against him”. The original Statement of Claim in this proceeding had a number of difficulties. The defendants, plural at the time, brought a motion to strike certain claims, to limit the named parties, and to strike what it alleged was content unsuited for a pleading before this court. That motion was heard by Justice Hackland. His decision is dated February 20, 2015, and under the heading of ‘Disposition’ he indicated as follows:

[3] The Statement of Claim is 107 paragraphs in length. It is well organized, using appropriate headings for the 6 torts and the Charter Claims he seeks to put forward. On the other hand, the plaintiff has totally failed to recognize the distinction between the proper pleading of the material facts supporting the causes of action he relies on versus the improper pleading of evidence. In fact, much of the claim is evidence, opinion and argument and is, therefore, improper. Generally, the torts pleaded lack some or all of the necessary factual elements to constitute these torts.

[4] After due consideration, I have decided to strike out the Statement of Claim in its entirety with leave to amend in accordance with directions set out in these reasons. I take this course because the required amendments are so extensive as to require a new pleading. The plaintiff is advised to delete causes of action which cannot be supported by the facts.

7In view of the said directions the plaintiff has since carried out a number of amendments. There was a “Fresh as Amended Statement of Claim” dated June 5, 2015. There was a “Fresh Amended Statement of Claim” dated December 23, 2015. The latest version from April 2016 is before me titled #2 Fresh Amended Statement of Claim (“#2 FASOC”).

Issue 1: Misfeasance in Public Office

8The plaintiff has sued the AG for the tort of misfeasance in public office. The leading case is Odhavji Estate v. Woodhouse, 2003 SCC 69. Like here, it involved a motion to strike out claims on the ground that they disclosed no reasonable cause of action. At para. 32 the court set out the constituent elements of the tort as follows:

… the tort of misfeasance in public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.

9In my view the plaintiff has pled facts necessary to support the allegation that the steps taken by the correction authorities were deliberate unlawful conduct. He relies primarily on Justice Tranmer’s findings and the facts upon which they were based. As to the second constituent element, in my view the plaintiff has pled the requisite knowledge or awareness by the defendant that the conduct was likely to injure him. He goes further and alleges that the conduct was retaliatory and intended to injure. Rule 25.06(8) indicates that knowledge of intent may be alleged as a fact without pleading the circumstances from which it is to be inferred. As to the requirements common to all torts, as noted by Justice Hackland the allegation that there was an intentional restriction of the plaintiff’s liberty may arguably suffice in lieu of monetary damages. Overall, it is not plain and obvious to me that this claim has no reasonable prospect of success or that it must fail.

Issue 2: False Imprisonment

10Justice Hackland in striking the claim for false imprisonment noted that the essence of this tort is a total or complete deprivation of an individual’s freedom of movement. The plaintiff had pled false imprisonment based on his being moved to a medium-security institution when he should have remained in minimum-security, and based on the transfer itself, namely being transported between the two institutions. After several amendments we are still dealing with those very same facts.

11The plaintiff argued Mission Institution v. Khela, 2014 SCC 24, but that case related to a habeas corpus application and not a claim of false imprisonment. He also relied on R. v. Hill for the proposition that in certain circumstances segregation of an inmate already in prison could meet the test. The defendant does not dispute that. However, it points out that a critical component of false imprisonment is that the alleged deprivation of liberty must be caused by the defendant: see Good v. Toronto Police Service Board, 2013 ONSC 3026 at para. 90. The plaintiff here put himself into segregation; it was voluntary and he asked to remain. I agree that his actions cannot be visited upon the defendant.

12With nothing different since Justice Hackland’s decision, it remains plain and obvious that this claim cannot succeed. As such, paragraphs 48, 49, and 50 are struck. As there is no suggestion that there may be other material facts, leave to amend is not granted.

Issue 3: Arbitrary Detention

13The plaintiff had difficulty articulating this Charter claim. As explained in his Factum and seen in the pleading itself, he is relying on the same alleged facts used to support his false imprisonment claim. While the transfer may have been unlawful, there is no suggestion that his detention was either unlawful or arbitrary. To the contrary, the plaintiff is incarcerated for two convictions of attempted murder and continues to serve a life sentence. It is plain and obvious that this claim cannot succeed. Paragraphs 62 to 66 of the #2 FASOC are struck. With no indication that there may be other facts to support this claim and given that this is the last of a number of attempts to amend, further amendment is not warranted.

Issue 4: Cruel and Unusual Punishment

14The Charter claim for cruel and unusual punishment was struck by Justice Hackland. He did not specifically grant leave to amend. Despite that, the claim is being put forward again. As before it is still based on the alleged retaliatory nature of the defendant’s actions.

15Justice Hackland explained in his decision that “[t]his paragraph as pleaded is not about excessive punishment in any sense and must be struck.” In the new pleading the plaintiff tries to address that comment by alleging that the transferring of prisoners between institutions and placing them in a medium security institution is cruel and unusual punishment. Looking at the test, it is plain and obvious that such actions are not “so excessive as to outrage standards of decency”: see Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 51. Therefore paragraphs 67, 68 and 69 are struck without leave to amend.

Issue 5: Breach of Fundamental Justice

16The plaintiff agreed, based on his own materials and in particular R. v. Hill at para. 27, that his Charter claim ‘breach of fundamental justice’ cannot stand alone. Paragraphs 70, 71, and 72 are therefore struck without leave to amend.

Issue 6: Aggravated and Punitive Damages

17The claims of aggravated damages and punitive damages were given brief attention at this hearing. Regarding the former, the damage award can be made for exceptional harm done to a plaintiff that is caused by a defendant’s high-handed conduct; it is compensatory in nature: see Gravelle v. A1 Security Manufacturing Corp., 2014 ONSC 5472 at paragraphs 37 to 41. The plaintiff has pled that the actions of the defendant were vindictive and has also pled humiliating treatment. Facts are alleged that could support such pleadings. Regarding the latter, punitive damages are awarded to punish a defendant for reprehensible conduct. They are largely restricted to intentional torts. Misfeasance in public office is an intentional tort. The plaintiff has pled that the defendant abused its authority and has provided particulars. Although the plaintiff may face an uphill battle on both these claims, it is not plain and obvious to me that they must fail.

Legal Argument, Opinion, Evidence, and Irrelevant Information

18The parties agreed that the main issues to be determined were whether the plaintiff’s claims as set out above disclosed reasonable causes of action. Appreciating that the plaintiff is representing himself and that pleadings are to be read generously to allow for drafting deficiencies, the defendant at the hearing was prepared to overlook many of the poorly drafted paragraphs and focus instead on a few that were the most problematic. The plaintiff in turn acknowledged that his drafting was not stellar, and agreed to changes that addressed the defendant’s concerns. As such, the following orders were made on consent:

(a) Paragraphs 10 and 56(h) are struck in their entirety without leave to amend.

(b) Paragraph 56(g) is struck with leave to amend. The parties agreed that the amendment would be limited to Justice Tranmer’s brief verbatim findings related to Mr. Jackson’s evidence (ie. “Justice Tranmer found …” followed by a direct quote rather than Mr. Jordan’s paraphrasing).

(c) The parties had agreed to change paragraph 50 by striking “had any safety concerns requiring” and replacing it with “elected”. However, as the claim for false imprisonment has been struck, this amendment is no longer required.

(d) In paragraph 52 “to discourage his paperwork (litigation, complaint/grievance, etc.) against CSC personnel” is struck without leave to amend.

(e) In paragraph 56(e) a period is placed after the word “withheld” on the first line and the balance of the sentence is struck without leave to amend.

Decision

19Orders to go as set out above. As requested the defendant shall have 30 days after being served with the amended claim to serve and file its statement of defence. The result here is mixed. No order as to costs.

Mr. Justice Timothy Minnema