Court File and Parties

COURT FILE NO.: CV-16-553664

DATE: 20180510

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sajjad Asghar, Plaintiff

AND:

Toronto Police Services Board, Toronto Police Chief, Constable Brad Verspeeten #9278 41 Division, Toronto Transit Commission (TTC), Edwin Collins (TTC Driver), Defendants

BEFORE: Pollak J.

COUNSEL: Aajjad Asghar, self-represented Plaintiff

Natalie Salafia, for the Defendants Toronto Police Services Board, Toronto Police Chief, Constable Brad Verspeeten #9278 41 Division

HEARD: April 10, 2018

ENDORSEMENT

[1] This motion was brought by the defendants, Toronto Police Services Board, Toronto Police Chief, and Constable Brad Verspeeten #9278 41 Division ("Constable Verspeeten") (collectively, the "Police Defendants"), for an Order striking out the Statement of Claim (the "Claim") (without leave to amend) against them pursuant to Rules 21 and 25 of the Rules of Civil Procedure (the "Rules").

[2] The police Defendants submit that the Claim "is an abuse of process, pleads irrelevant and scandalous allegations, includes causes of action that are not recognized at law and fails to properly plead the elements of the torts alleged" and, as a result, ought to be struck as against the Police Defendants without leave to amend. They submit that:

• The Claim frivolous, vexatious or an abuse of process;

• The Claim does not comply with Rule 25.06;

• The Claim does not disclose a reasonable cause of action?

[3] The Plaintiff was charged with "careless driving" and fined "roughly $490".

[4] In his claim against Edwin Collins, the Plaintiff alleges a witness gave a false statement to the investigating officer. He alleges “malicious design crafted by the Police with an assist from the false witnesses" and alleges that the Accident was "staged" with "shady helpers". Further, he claims that the Accident was part of a broader, "supervised organized crime conspiracy" of which the Plaintiff has been a "target".

[5] Rule 21.04(3)(d) provides an action may be dismissed if it is frivolous or vexatious or is otherwise an abuse of the court process. The Police Defendants submit that the Claim was commenced for an improper purpose and seeks a remedy that is outside the jurisdiction of the Court.

[6] As well, they allege the claim does not comply with a concise statement of the material facts in support of each alleged cause of action. Rather, it refers to alleged evidence.

[7] Further, rule 25.06(8) requires that where allegations of intentional or malicious conduct are made, the claim must have specific material facts supporting the causes of action alleged.

[8] The Police Defendants rely on our jurisprudence that irrelevant, argumentative, and inflammatory pleadings, inserted only for colour, inserted only to humiliate, or that constitute bare unfounded allegations should be struck out as scandalous. (George v. Harris, [2000] O.J. No. 1762 at para. 20 (Sup. Ct.)).

[9] The Defendants rely on this example from the claim:

(a) Background section at page 4 "Reference: Asghar v Toronto Police Services Board et al ONSCJ 2010, this case was a perfect example of Police collusion and organized crime. Where a group of hired thugs inside the Police department colluded and committed fraud and fabrication on my files under Government of Canada supervised organized crime. Those who think Police has nothing to do with the Federal Government are too naïve. After all this is Canada".

(b) Background section at page 4: "Another running example of Police fraud and fabrication simultaneously published by Metro Toronto and other papers. Meter Toronto page 4 of May 20-23 2016 paper where Court found four Toronto Police officers guilty of fabrication does not surprise me at all".

(c) Background at page 5: "All police officers and witnesses acted in combination and fabricated to hurt the plaintiff. Aerial view is a jigsaw with all pieces playing their part all in bad faith. Courtesy umbrella organized crime gang".

(d) At paragraph 25: "Was this all for nothing not at all, this was supervised organized crime…"

(e) At paragraph 29: "…the Plaintiff asserts that his decision to charge the Plaintiff was motivated by the subject officer's indifference to the guilt or innocence or correct identity of the plaintiff and is endemic of the practices employed by the Defendant Police Service in dealing with the brown skinned visible minority segment of the community which they police".

(f) At paragraph 49: "… will not hesitate to call it a "Human Rights" issue since the basic rights and liberties of the plaintiff have been compromised in Canada and especially in the GTA. The Ontario Human Rights Code has been severely violated and breached. That matter is beyond the scope of this action and has been reported to the United Nations since the Government of Canada and Canadian system have failed to deliver".

[10] The Police Defendants therefore submit that, to the extent the Claim pleads bald allegations, expressions of opinion, irrelevant information and inflammatory allegations, the Claim should be struck as scandalous.

[11] The test on a rule 21.01(1)(b) motion is “whether it is plain and obvious that the claim cannot succeed”.

[12] If the allegations in the claim do not support a recognized cause of action, or if the claim does not plead the necessary legal elements of a recognized cause of action, it should be struck.

[13] The police Defendants submit that the claims for "racial profiling", "improper purpose (organized crime)", and "malicious falsehood" are not recognized causes of action and should be struck without leave to amend.

[14] The Plaintiff alleges that the "defendant and fellow police officers conspired, acted in collusion and combination with the false witnesses and among themselves via common design even when all the evidence was right in front of their eyes". The Plaintiff further alleges that the "defendants actions were collusion, conspiracy and well thought over plan". The claim does not properly plead the required elements of conspiracy, negligent investigation and negligence. The allegations in support of the alleged causes of action are, it is submitted, bald allegations unsupported by material fact.

[15] The conspiracy pleading must address:

(a) the parties and their relationship;

(b) the agreement to conspire;

(c) the precise purpose or objects of the alleged conspiracy;

(d) the overt acts which are alleged to have been done by each of the conspirators;

(e) the injury and particulars of the special damage suffered by reason of the conspiracy.

[16] Also, the claim does not distinguish between several defendants and does not provide any detail regarding the specific complaints made against each defendant.

[17] The claim fails to plead sufficient material facts, including who is alleged to have conspired with whom, which allegations are being levelled against which defendants, and the overt acts alleged to have been done by each of the alleged conspirators.

[18] I agree with all of these submissions.

[19] With respect to the claim of negligent investigation, there are no allegations of acts or omissions to support the allegation that Constable Verspeeten breached the standard of care. The claim is the allegation that Constable Verspeeten and "fellow Police officers maliciously and intentionally conducted false and negligent investigation". The plaintiff has not pleaded facts which demonstrate how the defendant officers breached the standard of care required of police officers.

[20] I agree with the submissions of the Police Defendants that the pleadings in paragraph 24 should be struck.

[21] With respect to the negligence claim, the Plaintiff has not specified the alleged breach of duty of the Police Defendants, but relies on the bald allegation that the Police Defendants, but "caused negligence". I agree that paragraph 25 of the Claim should be struck.

[22] With respect to the claim for “Denial of equality/racial profiling" and breach of s. 15 of the Charter, the Police Defendants submit that it has been held that "the root to adjudication of and remedy for racial profiling is a Charter violation". (Hamalengwa v. Bentley, 2011 ONSC 4145 at para. 9). It is submitted that the Claim does not plead material facts that would establish a Charter breach for racial profiling. There is only an allegation that Constable Verspeeten's decision to charge the Plaintiff was motivated by his "indifference to the guilt, innocence or correct identity of the Plaintiff" and that racial profiling is "endemic of the practices employed by the Defendant Police Service". I agree with these submissions.

[23] The Police Defendants further submit that no specific facts are pleaded regarding the allegations of racial profiling in respect of the allegedly false charge and therefore, paragraphs 26 to 30 of the Claim should be struck. I agree with this submission.

[24] The Police Defendants assert that the Plaintiff's allegations against the Toronto Police Services Board (the "Board"), establishes no reasonable cause of action because they relate to operational matters on which the Board has no jurisdiction. The Claim alleges that the Board was negligent in "permitting staff" to carry out "the malicious attempt to lay false charges" against the Plaintiff.

[25] The Claim also alleges that the actions of the Defendants, including the Board, constituted "collusion, conspiracy and well thought over plan".

[26] The Supreme Court of Canada has held in the case of Odhavji Estate v Woodhouse, 2003 SCC 69 at para. 65 that:

…Under s. 31(1), the Board is responsible for the provision of adequate and effective police services, but is not under an express obligation to ensure that members of the force carry out their duties in accordance with the Police Services Act. The absence of such an obligation is consistent with the general tenor of S. 31(1), which provides the Board with a broad degree of discretion to determine the policies and procedures that are necessary to provide adequate and effective police services. A few enumerated exceptions aside, the Board is free to determine which objectives to pursue, and what policies to enact in in pursuit of those objectives.

[27] The Police Defendants submit that the claims against the Board cannot succeed because of Section 31 of the Police Services Act and should be struck. I agree.

[28] The Police Defendants submit that for the above-noted reasons, the Claim cannot be repaired by amendments as it seeks a remedy outside of the Court's jurisdiction; discloses no reasonable cause of action and contains irrelevant and inflammatory statements that cannot be removed from the pleading. Therefore, the claim should to be struck in its entirety, with no leave to amend. The Police Defendants further submit that, if the claim is not struck out, the result will be unfocussed discoveries and a lengthy, complex trial. I agree with all of these submissions and order the Claim be struck in its entirety without leave to amend.

Costs

[29] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendants’ submissions are to be delivered by 12:00 p.m. on May 18, 2018, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on May 25, 2018. Any reply submissions are to be delivered by 12:00 p.m. on May 31, 2018.

Pollak J.

Date: May 10, 2018