COURT FILE NO.: 3332/16 DATE: 20170421
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: JAMIL OSAI OGIAMIEN, Plaintiff
AND
HER MAJESTY THE QUEEN as represented by THE CROWN; PEEL REGIONAL POLICE DEPARTMENT; THE ATTORNEY GENERAL OF CANADA; CANADA BORDER SERVICES AGENCY OFFICERS PETER DONALDSON, DALE LEWIS AND J. LAURENCO; THE UNITED STATES ATTORNEY GENERAL, ARIZONA AUTO THEFT TASK FORCE POLICE DEPARTMENT OFFICER STEVE JIMENEZ AND SARGENT BOB BOWERS Defendants
BEFORE: McSWEENEY J
COUNSEL: Jamil Osai Ogiamien, for himself Monmi Goswami, for the moving party defendants
HEARD: March 22, 2017
E N D O R S E M E N T
[1] On October 31, 2016, the plaintiff Jamil Osai Ogiamien issued a civil claim against the Attorney General of Canada, the Attorney General of the United States and other authorities and officials in both countries. In his claim Mr. Ogiamien seeks various forms of redress for alleged trespass onto his property and seizure of his Mercedes Benz car and its contents in 2015, at a time when he was detained at Maplehurst Correctional Centre. He also alleges infringement of his Charter rights during the trespass and seizure.
[2] On March 22, 2017 the Attorney General of Canada brought a Rule 21 motion to dismiss and to strike the plaintiff’s claim on the basis that Mr. Ogiamien has no standing to make claims in relation to the property or vehicle because he has no possessory interest in either, and that his Charter pleadings are additionally deficient. Counsel for the Attorney General of Canada appears on behalf of the defendants Canada Border Services Agency and its employees, Officers Peter Donaldson, Dale Lewis and J. Laurenco (referred to collectively hereafter either as “the moving parties” or “the Canada defendants”).
Mr. Ogiamien’s Adjournment Request
[3] This motion was originally returned before Justice Coats on February 23, 2017. At that time Mr. Ogiamien requested an adjournment for two reasons: that he was not medically well; and that he was taking steps to meet with lawyers and retain counsel. Mr. Ogiamien did not bring any medical documentation with him to support his request at that time, and the moving party objected to the adjournment. Justice Coats granted Mr. Ogiamien a month’s adjournment to March 22, 2017. She directed that: “Mr. Ogiamien shall serve and file responding material on or before March 15, 2017,” and made the adjournment peremptory on Mr. Ogiamien. She also reserved costs until the return of the matter before me.
[4] At the commencement of the motion before me on March 22, 2017, Mr. Ogiamien requested a further adjournment. He stated that he had not yet been able to retain a lawyer and was still having health problems. The adjournment was opposed by the moving party on the basis that these were the same submissions considered by Justice Coats. Mr. Ogiamien provided no evidence in support of his request.
[5] With respect to seeking an adjournment to retain counsel, I note that Mr. Ogiamien, on his own admission, has significant experience in court as a self-represented litigant. In particular, it is common ground between the moving party and Mr. Ogiamien that he represented himself in an application (Ogiamien v. Ontario (Ministry of Community Safety and Correctional Services), 2016 ONSC 4126, [2016] O.J. No. 4002 (QL)) which was heard over a period of more than 18 months and over 50 hearing days. His statement of claim in the matter before me, albeit written by hand, reads clearly and was issued on October 31, 2016. Mr. Ogiamien did not have counsel when he prepared his claim, and continues to be self-represented.
[6] With respect to his submission that he had health issues which prevented him from responding to the motion, Mr. Ogiamien told the court that he was not able to think clearly. He also acknowledged that he had not brought any medical evidence to support his request for an adjournment. Other than having a persistent cough during the motion, Mr. Ogiamien presented his submissions articulately and cogently, without signs of illness.
[7] In considering Mr. Ogiamien’s request for a further adjournment, I take into consideration that he is a self-represented litigant. However, his request is essentially the same as that made to Coats J. a month earlier. There is no evidence before me to cause me to change the peremptory nature of this motion date. Mr. Ogiamien’s adjournment request was therefore denied.
The Legal Basis for the Motions
[8] These are Rule 21 motions for determination of issues before trial. Specifically, the Canada defendants move:
(a) Under Rule 21.01(3)(b) to dismiss the plaintiff’s claims for trespass, loss of vehicle and breach of s.8 of the Charter on the basis that the plaintiff does not have the legal capacity to initiate these claims;
(b) Under Rule 21.01(1)(b) to strike the plaintiff’s claim for breach of his rights under ss. 7, 9 and 15 of the Charter on the basis that the pleadings do not disclose a reasonable cause of action.
The Rule 21.01(3)(b) motion: Does Mr. Ogiamien have legal capacity to pursue his claims?
[9] Evidence is admissible on a motion to dismiss on the basis of legal capacity. In support of their motion, the Canada defendants filed the affidavit of Janet Lewicki sworn January 31, 2017 which was served on Mr. Ogiamien on February 17, 2017. Despite the adjournment granted by Coats J on February 23, 2017, and her direction of that date, Mr. Ogiamien filed no materials to support his position.
The Mercedes Benz Claims:
[10] The affidavit of Janet Lewicki attached e-mail correspondence between the Department of Justice and one Jason Cowley, a “Fleet Workout and Arrears Management Analyst” with Daimler Truck Financial in Mississauga. Mr. Cowley confirmed that Daimler Truck Financial contracted with Ontario Legal Recovery to recover the vehicle (a 2008 Mercedes Benz VIN WDDNG71X98A161805 bearing an Arizona license plate ASG8800), (the “Mercedes Benz”).
[11] Mr. Cowley also provided a Certificate of Title from the State of California issued on August 28, 2009 showing the registered owner of this vehicle to be “Daimler Trst” as the lessor, and June Palmer as lessee.
[12] Ms. Lewicki’s affidavit also included Police Occurrence Report dated November 15, 2015. This report records that Mr. Ogiamien’s mother called the police on November 9, 2015 to report the theft of the Mercedes Benz. The report states that the police advised Mr. Ogiamien’s brother, Mr. Osaze Ogiamien, at that time:
“…that the vehicle was seized by the bailiff’s office and the vehicle was returned to Mercedes-Benz. The complainant was advised to contact Mercedes-Benz for further information regarding the vehicle and seizure. Police further advised the complainant that the vehicle is not considered to be stolen.”
[13] Mr. Ogiamien filed no evidence to rebut that of the moving parties.
[14] I accept the evidence of the moving parties with respect to the ownership of the Mercedes Benz. On the basis of the evidence before me, I find as fact that Mr. Ogiamien has no ownership interest in the Mercedes Benz.
[15] Given my finding that Mr. Ogiamien is not the owner of the Mercedes Benz, I further find that he does not have the legal capacity to pursue claims in relation to that vehicle. Those portions of Mr. Ogiamien’s claim which relate to loss of the vehicle or trespass upon the vehicle are therefore dismissed.
[16] I note for clarity’s sake that although the Canada defendants bring the motion, the consequence of my conclusion is that the claims predicated on ownership of the car are dismissed as against all defendants.
The Trespass to Property claims:
[17] The plaintiff’s claim alleges trespass by the defendants at two different locations, 15 Bramtrail Gate, and 440 McMurchy Avenue, both addresses in Brampton, Ontario. The evidence of the Canada defendants is that Mr. Ogiamien is not an owner of either of these two properties. In support of this argument the moving parties filed results of a Teranet search on both addresses. Mr. Ogiamien is not listed on either of the Parcel Registers.
[18] Mr. Ogiamien did not dispute this evidence. In his submissions, he conceded that he was not an owner but submitted that he was a tenant, or had contracted to rent a parking space at one or both of the properties. He filed no evidence to support his position.
[19] Mr. Ogiamien also did not dispute that at the time of the alleged trespass and seizure of the Mercedes Benz, he was not residing at either of the addresses referenced in his claim. During that time the parties agree that Mr. Ogiamien was in detention at Maplehurst Correctional Centre. His detention during this time period is referenced in Ogiamien v. Ontario, supra at paragraphs 1 to 3.
[20] I accept the evidence of the moving parties in relation to the property ownership. The evidence establishes that Mr. Ogiamien is not an owner of either 15 Bramtrail Gate or 440 McMurchy Avenue. Mr. Ogiamien has not rebutted this evidence. Specifically, he did not file any evidence in support of his assertions that he had a contractual right to reside at either address as a tenant, or that he had contracted to rent the parking space in which he left the Mercedes Benz. I therefore find as a fact that Mr. Ogiamien does not have an ownership or other proprietary or possessory interest at either of the locations specified in his claim.
[21] Given this finding, Mr. Ogiamien does not have legal capacity to pursue claims for trespass at either 15 Bramtrail Gate or 440 McMurchy Ave. Pursuant to Rule 21.01(3)(b), his claims relating to or seeking compensation for trespass to property are therefore dismissed.
[22] Again, I note for clarity’s sake that although the Canada defendants bring the motion, the consequence of my conclusion is that the claims predicated on ownership of property at 15 Bramtrail Gate or 440 McMurchy Avenue are dismissed as against all defendants.
Section 8 of the Charter
[23] Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search or seizure” (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 8). Mr. Ogiamien alleges that the search and seizure of the Mercedes Benz was not authorized by law and this violated his privacy interest.
[24] The moving party takes the position that Mr. Ogiamien has no standing to assert a reasonable expectation of privacy respecting either the Mercedes Benz or the location on which it was parked during the time he was detained. Given my findings that Mr. Ogiamien has neither an ownership interest in the Mercedes Benz nor a property-related interest in the location in which that vehicle was stored, I find that he had no reasonable expectation of privacy.
[25] In Brown v. Ontario (Attorney General), 2015 ONSC 5766, Edwards J. reviewed the considerations which apply when considering the sufficiency of a section 8 claim for Charter damages (see also R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Pugliese (1992), 8 O.R. (3d) 259 (C.A.)). At paragraph 40 of that decision, Edwards J. holds that a person asserting a section 8 interest must have more than a mere proprietary interest in a given property: The reason for this is that section 8 is a personal right which protects people, and not places.
[26] I find this reasoning to be applicable in considering Mr. Ogiamien’s claim. In the circumstances of this case, Mr. Ogiamien has not only no property interest in either the vehicle nor the location from which it was taken, but he was also in detention and therefore neither a resident nor present at either of the Brampton addresses referenced in the claim at the time of the seizure.
[27] Considering all these factors, and the nature of the section 8 right which protects people and not places, I find on the evidence that Mr. Ogiamien is without standing to maintain a section 8 claim in these circumstances. Mr. Ogiamien’s claims for Charter damages arising from infringement of section 8 of the Charter rights are therefore dismissed as against all defendants.
Does the claim disclose a reasonable cause of action for breach of plaintiff’s rights under ss. 7, 9, or 15 of the Charter?
[28] The Canada defendants ask the court on this motion to strike Mr. Ogiamien’s claims for breach of his section 7, 9 and 15 Charter rights on the basis that the pleadings do not disclose a reasonable cause of action.
[29] I must emphasize that unlike motions to dismiss for legal capacity, motions to strike pleadings pursuant to Rule 21.01(1)(b) may not rely on any evidence. On motions to strike pleadings, the court is required to construe the claim as generously as possible. This is particularly so where, as here, the claim is being advanced by a self-represented litigant. In assessing whether a reasonable cause of action has been made out for breach of the enumerated Charter rights, the factual assertions in the claim must be taken as proven, and will only be struck where there is no chance of success.
Section 7 of the Charter
[30] Section 7 of the Charter recognizes an individual’s right to “life, liberty and security of the person.” To engage the operation of this section, Mr. Ogiamien must as a first step plead facts to establish a deprivation of his right to life, his right to liberty or his right to security of the person. The claim must then set out facts to show that any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice.
[31] Section 7 rights also pertain to individuals, not to property. Mr. Ogiamien’s claim does not, even on the most generous interpretation, plead any facts which could be found to engage a section 7 interest. I conclude that the section 7 claim has no chance of success: even read as generously as possible, it is plain and obvious that this claim cannot succeed. The claims relating to the violations of section 7 of the Charter are therefore dismissed.
Section 9 of the Charter
[32] Section 9 of the Charter protects an individual’s right not to be “arbitrarily detained or imprisoned.” As with sections 7 and 8, this Charter right inures to an individual not to property. Mr. Ogiamien has not pleaded any facts in his Statement of Claim respecting any detention or imprisonment of himself. Indeed, it is common ground between the parties that Mr. Ogiamien was in fact detained at Maplehurst Correctional Centre during the time period in which his claim alleges “detention” of his possessions. In taking all facts pleaded in his claim as proven, there is no basis in the claim for which could even generously be interpreted as a breach of Mr. Ogiamien’s section 9 Charter rights. It is plain and obvious that this claim cannot succeed. The claims relating to the violations of section 9 of the Charter are therefore dismissed.
Section 15 of the Charter
[33] Section 15 of the Charter guarantees an individual’s rights to equal protection and equal benefit of the law without discrimination. Mr. Ogiamien pleads that the removal of the car and its contents constituted trespass, search and seizure and loss of vehicle. He pleads that the defendants jointly breached his Charter rights, including section 15, by virtue of that seizure. He further pleads that the defendants did not obtain judicial authorization for this seizure, and did not give prior notice to the owner of the parking location where the seized vehicle was located, and thereby infringed his Charter rights including section 15.
[34] Mr. Ogiamien further pleads that, (in trespassing on his property and seizing his car) the defendants were motivated by “bias, racial stereotype, and ethnic prejudice” contrary to section 15 of the Charter. However, there are no material facts pleaded to support these allegations. I find on a review of the pleadings of the claim as a whole that Mr. Ogiamien has not pleaded a factual basis that would have a chance of success.
[35] I conclude that the pleadings with regard to breach of Charter claims are a succession of assertions without a factual basis specified. The Supreme Court of Canada has emphasized that Charter claims must be supported by material facts, and cannot be made on a factual vacuum: see MacKay v. Manitoba, [1989] 2 S.C.R. 357 at para. 9, and Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at para. 70.
[36] For the reasons set out above, the allegations with respect to sections 7, 9 and 15 are struck with no leave to amend. In my view, these Charter claims in relation to trespassing and seizure of an automobile have no chance of rehabilitation such that they could survive a further motion to strike if leave to amend were granted.
Claim for Loss of Personal and Business Inventory in the Mercedes Benz
[37] Mr. Ogiamien also seeks damages for the loss of personal items and “business inventory” which he pleads were in the Mercedes Benz at the time it was seized. The claim does not plead the actions of the particular defendants alleged to be responsible for the removal or failure to return the alleged personal and business inventory. Nor is the inventory described in sufficient particularity to assist the court in determining this issue.
[38] With respect to his claim for return of or compensation for the contents of the Mercedes Benz, the Canada defendants do not dispute that Mr. Ogiamien was using this vehicle prior to his detention, or that there may have been contents in the vehicle belonging to him. The evidence does not contradict Mr. Ogiamien’s claim that the seized vehicle contained his personal and business possessions which have not been returned to him.
[39] The claims for loss of personal and business inventory are struck with leave to the plaintiff to submit an amended Statement of Claim addressing the deficiencies I have noted above.
Conclusions
[40] In light of the findings and conclusions reached above, I therefore order:
a) those portions relating to the Mercedes Benz and trespass to property, paragraphs 1(a), 1(b), 1(e), 1(f), 1(g), and section 8 of the Charter, are struck pursuant to Rule 21.01(3)(b) on the basis that the plaintiff is without legal capacity to assert these claims;
b) those portions of paragraphs 1(b), 1(c), 1(d), 1(e), 1(f) and 2(g) pleading breaches of sections 7, 9, and 15 of the Charter are struck without leave to amend;
c) those portions of paragraph 2 of the claim alleging theft of the Mercedes Benz or trespass to property are dismissed;
d) those portions of the claim pleading theft of personal and business items are struck with leave to the plaintiff to file an amended Statement of Claim which addresses the concerns of the court with respect to this aspect of his pleading. If an amended Statement of Claim is not filed by May 31, 2017, the plaintiff shall be deemed to have abandoned this remaining part of his claim.
Costs
[41] The Canada defendants have been substantially successful on this motion. They seek their costs. Mr. Ogiamien submits that he is without means and cannot pay an award of costs. I note that two attendances have been necessary and that the moving parties have been successful. I therefore find it appropriate that the costs follow the event. The moving parties sought the costs in excess of $10,000.00. However, I take Mr. Ogiamien’s modest financial circumstances into account with respect to quantum. Costs to the moving party Attorney General of Canada payable by Mr. Ogiamien in a fixed amount of $1000.00, this amount to be paid within 30 days.
McSweeney, J DATE: April 21, 2017