Court File and Parties

Court File No.: CV-19-621542 Date: 2020-09-08 Superior Court of Justice - Ontario

Re: Douglas W. Hitchlock, Plaintiff And: The Attorney General of Ontario, Defendant

Before: C.J. Brown J.

Counsel: Douglas W. Hitchlock, representing himself Matthew Chung, for the defendant

Heard: In Writing

Endorsement

[1] Her Majesty the Queen in Right of Ontario is (“the Crown”), incorrectly named as The Attorney General of Ontario, moves to dismiss this action under Rules 21.01(1)(a), 21.01(1)(b) and 21.01(3)(d) of the Rules of Civil Procedure. The Crown submits that the statement of claim is (i) a nullity pursuant to section 7(1) of the Proceedings Against the Crown Act (“PACA”); (ii) is an abuse of process and (iii) fails to disclose any reasonable cause of action against the Crown.

[2] The plaintiff alleges that the Crown has negligently supervised the following persons and entities who or which have allegedly engaged in unspecified “deliberate” misconduct:

(i) the Director:

(ii) the Police Services Board;

(iii) the Ontario Securities Commission (the “OSC”);

(iv) the Law Society of Ontario (the “LSO”) and

(v) Judges of the Superior Court and Court of Appeal.

The Facts

[3] The plaintiff issued a statement of claim in Court File No. CV-16-547064 on February 19, 2016 against the Director of the Independent Police Review Board and the Regional Municipality of York Police Services Board, alleging wrongful conduct by the Director in referring the plaintiff’s complaint regarding conduct of members of the Police Services Board to its Chief for investigation. On June 29, 2017, the plaintiff thereafter issued a fresh as amended statement of claim under the same Court file number which did not name the Director as a defendant and did not make allegations against the Director. The allegations in the amended statement of claim related only to the conduct of members of the Police Services Board.

[4] The present claim, Court File No. CV-19-621542, was issued June 7, 2019 against the Crown, without giving prior notice of claim as required by the PACA. A party who intends to commence an action against the Crown must serve a sufficiently detailed notice of claim at least 60 days prior to commencement of the claim. Without such notice, the proceeding is deemed a nullity pursuant to the PACA, section 7(1): Singh v Ontario [2002] O.J. No. 5371. The court has no discretion to relieve against the plaintiff’s failure to provide prior notice of claim: Beardsley v Ontario (2001) 2001 8621 (ON CA), 57 O.R.(3d) 1 at para 10. In this case, there is no evidence that a notice of claim was served on the Crown prior to commencement of the statement of claim in this matter. The claim should be dismissed as a nullity, and I so order.

[5] I will, nevertheless, also address the other issues arising in this motion.

[6] The amended pleading in the previous action, Court File No CV-16-547064, did not name the Director as a defendant and made no allegations against him. The claim did not, in any event, proceed, but was effectively discontinued on its face. While the plaintiff now alleges that the Director failed to deliver a proper statement of defence, such failure does not found a claim, in particular as the claim was effectively dismissed. Failure to deliver a statement of claim may be dealt with by way of the Rules of Civil Procedure but does not, at law, found a claim as the plaintiff attempts to do now. Such an allegation is an abuse of process and must be struck.

[7] Pursuant to Rule 21.01(1)(b), a claim may be struck if it plainly and obviously does not disclose a reasonable cause of action. The motions judge must assume that the allegations in the pleading and in any documents incorporated by reference, are true unless they are “patently ridiculous” or “incapable of proof”: Castrillo v Workplace Safety and Insurance Board, 2017 ONCA 121 at para 14.

[8] A claim which does not plead the essential elements of a cause of action does not disclose a reasonable claim: McCreight v Canada (A.G.), 2013 ONCA 483 para 39.

The Law

Rule 21.01 Motion to Strike

[9] Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.

[10] The purpose of Rule 21.01(1)(b) is to enable a judge to strike from the pleadings, claims and defences that do not, in law, have a chance of succeeding. While a court will be reluctant to strike out a claim, the claim should be struck where it is clear and obvious that no cause of action is disclosed. The pleading should not be struck if there is a chance of success. In determining whether a claim should be struck, the court is required to give a generous reading to the pleadings. The issue is whether, assuming the alleged facts to be true, the action is nevertheless certain to fail. See 368230 Ontario Limited v Feintuch Law, 2018 ONSC 3254, 2018 ONSC3254.

[11] While evidence is generally inadmissible in a motion under Rule 21.01(1)(b), where the claim incorporates, by reference, any document pleaded in the pleadings, the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings.

[12] In a Rule 21.01(1)(b) motion, the factual allegations in the statement of claim or amended statement of claim, must be assumed to be true. The claim will only be dismissed where it is “clear and obvious” that it has no reasonable prospect of success. 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” Trillium Power Wind Corporation v Ontario (Natural Resources), 2013 ONCA 683 at para 31, citing: Hunt v Carey Canada Inc., 1990 90 (SCC); R v Imperial Tobacco Canada Inc., 2011 SCC 42, [2011] 3 SCR 45; Taylor v Canada (A.G.) 2012 ONCA 479. No evidence is admissible without leave on a motion brought pursuant to Rule 21.01(1)(b). However, documents which are referred to in the statement of claim are admissible under Rule 21.01 (1) (b), as they are deemed to be incorporated by reference therein.: Trihar Holdings Ltd. v Lambton (County), 2008 ONCA 360. A generous reading of the statement of claim must be accorded in considering a motion under Rule 21.01.

[13] The novelty of the cause of action will not militate against the party pleading. A novel claim of negligence should not be struck for absence of reasonable cause unless it can be established that the claim is clearly unsustainable.

The Present Action

[14] The allegations in the plaintiff’s statement of claim do not disclose a reasonable cause of action. The statement of claim fails to plead the essential elements of an established cause of action: Rule 25.06.

[15] The Crown’ s liability in tort is vicarious pursuant to sections 5(2) and 5(4) of the PACA. The Crown is only vicariously liable for any torts committed by its agents and servants. As regards the allegations against the Crown regarding failure to supervise the entities listed at paragraph 2, above, the Crown cannot be vicariously liable for those entities whose agents and servants are not agents and servants of the Crown.

[16] The OSC, LSO and judges of the Superior Court and Court of Appeal for Ontario are not Crown agents or servants. The OSC is legally distinct and separate from the Crown. It is constituted by statute (the Securities Act, RSO 1990, c. S 5, s. 3(1)) as a corporation without share capital, and is a regulator in its own right. The LSO is also legally distinct and separate from the Crown, is constituted by statute (the Law Society Act, RSO, 1990, c L. 8 s. 2(2)) as a corporation without share capital and is a regulator in its own right. The Police Services Board is an entity which may, pursuant to the Police Services Act, RSO 1990 c. P 15, s. 30(1), be sued in its own name. As regards the Judges of the Superior Court and Court of Appeal, the long-established principle of judicial independence applies. The courts and judges thereof are not Crown agents or servants: Reference re Remuneration of Judges of the Provincial Court (PEI), 1997 317 (SCC), [1997] 3 SCR 3 at para 143.

[17] As a result, the Crown is not vicariously liable for any of the individuals, agents or servants of the entities above, as they are not agents and servants of the Crown. As a result, none of the allegations as regards failure to supervise these entities alleges a reasonable cause of action. None of those claims has a reasonable prospect of success. They are unsustainable.

[18] As regards the allegations concerning the Director's supervision of the Police Services Board, the Director, who is appointed by the Lieutenant Governor in Council, on the recommendation of the Attorney General, receives, reviews and supervises complaints by the public about police officers’ conduct and police forces’ policies or services: Police Services Act, RSO 1990, c. L. 8, s.26.1(1).

[19] Where a complaint relates to a police officer’s conduct, and the Director has not otherwise declined to act on it pursuant to s. 60 of the Act, the Director will determine whether to retain or refer the complaint to a chief of police. The Director exercises his discretion pursuant to s. 61(5) as to how the complaint is to be addressed in consideration of the public interest and the nature of the complaint: the Act, s. 61(6). Pursuant to section 61(5), the Director may refer a complaint about an officer’s conduct to the chief of the municipal force of which the officer is a member for investigation. The Director may, pursuant to the Act, specify how the municipal chief of police is to deal with the complaint and the municipal chief of police will then address the complaint in accordance with section 66 of the Act, subject to any direction given by the Director. If the complaint relates to a municipal police force’s policies or services, the Director will refer it to the municipal chief of police who, in turn, will address the complaint in accordance with the Act.

[20] The jurisprudence indicates that there is a well-established line of cases standing for the general proposition that public authorities, charged with making decisions in the general public interest, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public: Wellington v Ontario, 2011 ONCA 274 at paras. 42-43. There is no action in negligence to be brought against the Director, who exercised his discretion in the general public interest, in accordance with the provisions of the Police Act. I do not find there to have been any bad faith on the part of the Director which would disentitle him to the immunity provided in s. 26.01(12) of the Act.

[21] Based on all of the foregoing, the submissions of the parties, the case law and legislation, I find that the claims brought by the plaintiff against the Crown are without merit, that there is no reasonable probability of success and that the claims must be struck. The action must be struck as disclosing no reasonable cause of action and as an abuse of process.

[22] I further find that the defects in the claim, as above indicated, cannot be cured by amendment: South Holly Holdings Limited v The Toronto-Dominion Bank, 2007 ONCA 456, para 6. Accordingly, the claim is struck without leave to amend.

C.J. Brown J.

Date: September 8, 2020