Court File and Parties
Court File No.: CV- 635753 Date: 2020-11-12 Superior Court of Justice - Ontario
Re: Tahar Amrane, Plaintiff And: Carolee Abraham, Defendant
Before: C.J. Brown J.
Counsel: Nicholas Rolfe, for the Moving Party Defendant Tahar Amrane, representing himself
Heard: In Writing
Endorsement
[1] The defendant, Carolee Abraham, brings this motion for an order striking the notice of action and statement of claim and dismissing the action pursuant to Rules 21.01(1)(b), 21.01(3)(d) and 25.11 of the Rules of Civil Procedure on the ground that it is plain and obvious that the claim discloses no reasonable cause of action recognizable at law and that the claim should be dismissed on the ground that the claim is frivolous, vexatious or an abuse of process.
[2] The action claims unspecified damages pursuant to s.24(2) of the Canadian Charter of Rights and Freedoms as against the defendant, Ms. Abraham, a City of Toronto employee, that she violated his rights to freedom of expression, life, liberty and security of the person and equality under the Charter of Rights and Freedoms (“the Charter”), because he received inadequate service in French from two City of Toronto receptionists who did not speak French.
[3] The plaintiff commenced the action by notice of action and statement of claim, both issued on February 10, 2020. The plaintiff alleges that he was discriminated against on two occasions by receptionists at the Metro Hall Employment and Social Services (“ESS”) offices, and because he was Francophone. The plaintiff further alleged that the ESS directors damaged the honour of Francophones, “who consider French an intangible heritage to promote, safeguard, and perpetuate” to “avoid any assimilation to English, a hegemonic language”. The statement of claim does not indicate the reason for the plaintiff’s attendance at ESS, nor the services that he was seeking there.
[4] The plaintiff alleges that during his first attendance, the receptionist advised him that they only spoke English and he should obtain an interpreter. During the second attendance, the plaintiff allegedly had to wait 2.5 hours for a meeting with someone (“Sarah Yearwood”) at the ESS. The plaintiff alleges that Ms. Abraham, an ESS manager, failed to ensure that the receptionists respected the Charter and failed to adequately investigate the plaintiff’s allegations.
[5] The day after Ms. Abraham brought this Rule 21 motion, the plaintiff noted her in default, despite the fact that the pleadings had never been personally served on her and the deadlines for defending had been suspended due to the coronavirus pandemic. The incorrect noting in default was set aside.
[6] It is the position of the defendant that actions with respect to alleged Charter breaches must be brought against the state and not against individuals. Further, freedom of expression does not require bilingual receptionists. Nor does the presence or absence of bilingual receptionists engage s.7 of the Charter. Moreover, language is not an enumerated or analogous ground pursuant to s.15(1) of the Charter, which does not guarantee a right to service in French. It is the position of the defendant that the plaintiff confuses legal rights such as the freedom of expression, with Charter language rights, such as communicating in French or English with select federal institutions, and that this does not apply to Ontario municipalities. It is the position of the defendant that, while the plaintiff may have had difficulty accessing service in French with respect to a Toronto City service, this cannot found a Charter breach.
The Law
Rule 21.01(1)(b) Motion to Strike
[7] 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.
[8] 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.
[9] 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.
[10] In a Rule 21.01(1)(b) motion, the factual allegations in the 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.
[11] 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 Law as Regards the Alleged Charter Breaches
[12] An individual cannot be liable for Charter damages. As stated by the Supreme Court of Canada, “an action for public law damages - including constitutional damages – lies against the state and not against individual actors”.: Vancouver (City) v Ward, 2010 SCC 27 at para 22, per McLaughlin C.J. Following the Supreme Court’s decision, it was found that an action for public damages brought against an individual was a fatal flaw, sufficient to dismiss the action.: Payne v Mac, 2017 ONSC 243 at paras 87-89, 101, aff’d 2018 ONCA 622.
[13] A general freedom to express oneself in the language of one’s choice and the special guarantees of language rights in certain areas of governmental activity or jurisdiction – the legislature and administration, the courts and education -- are quite different things: Ford v Québec (Attorney General), 1988 19 (SCC), [1988] 2 SCR 712 at para 43; Lalonde v Ontario (Commission de restructuration des services de sante), 2001 21164 (ONCA) at para 96.
[14] While unilingual receptionists allegedly made accessing a municipal service more difficult for the plaintiff, there is no allegation that he was unable to access municipal services in French. I note that, in his motion record, he included correspondence to and from the plaintiff in French. And see Canadians for Language Fairness v Ottawa (City), MPLR (4th) 163 (ONSC) at paras 121, 13.
[15] The bilingual service guarantees in the Charter apply to federal institutions and some provincial institutions. They do not apply to municipal institutions.
[16] The French Language Services Act (FLSA), RSO 1990, c. F. 32, does not apply to the City of Toronto. The definition of “government agency” in s.1 of the Act specifically excludes municipalities. Section 14(1) allows municipalities to pass by-laws providing that all or specified municipal services be offered in French. Toronto has not passed any such by-laws. Therefore, the FLSA does not apply to Toronto. Further, even if it did apply to Toronto, which it does not, the Act does not provide for damages, such as are sought by the plaintiff in an unspecified amount.
[17] Failing to provide customer service in the language of the plaintiff’s choice in a municipal setting cannot be a Charter breach under ss.2(b), 7, 15(1), nor under ss.16(3), 20, 27 or 36(1). And see: Weisdorf v Toronto, 2020 ONCA 401; Lalonde, supra at 96.
[18] Further, pursuant to the City of Toronto Act, 2006, c. 11, Sched A, s.391 and the Ontario Works Act, 1997, S.O. 1997, Sched A, s.77, the action is barred. Section 391 of the City of Toronto Act provides as follows:
No proceeding for damages or other relief shall be commenced against a member of City Council, an officer, employee or agent of the City or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by- law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.
[19] Pursuant to the Ontario Works Act, s.77,
No action or other proceeding in damages shall be instituted against the Ministry, the Director, delivery agent, an officer or employee of any of them or anyone acting under their authority for any act done in good faith in the execution or intended execution of a duty or authority under this Act or for alleged neglect or default in the execution in good faith of any duty or authority under this Act.
[20] These provisions do not apply to the circumstances alleged in the statement of claim.
[21] No allegations of bad faith have been alleged.
[22] The Official Languages Act (“OLA”), RSC, 1985, c. 31 (4th Suppl.) at ss.3(1), 21, 76, 77, also referenced by the plaintiff, is a federal statute which applies to federal institutions. It does not apply to municipal staff or employees such as Ms. Abraham. The OLA requires that any complaints under that Act be directed to the Commissioner of Official Languages for Canada, prior to applying to the Federal Court for any remedy. The statement of claim does not allege that this was done by the plaintiff.
[23] The allegations of the plaintiff contained in the statement of claim have no reasonable prospect of success. It is plain and obvious that the claims disclose no reasonable cause of action and should be struck pursuant to Rule 21.
[24] I am further of the view that the action is frivolous, scandalous and vexatious for the reasons set forth by the defendant at paragraphs 42 – 45 of her factum, with which I agree, and that the claims should also be struck pursuant to Rule 25.
Whether Leave to Amend the Claim Should Be Granted
[25] Where the claim has been struck as disclosing no reasonable cause of action or as frivolous, vexatious or an abuse of process, the plaintiff will be denied leave to amend that pleading where it contains a “radical defect” such that it could not be improved by an amendment: Roche v McLeod Law Firm, 2018 ONSC 2760. Further, leave to amend the claim should be denied where there is no reason to suppose that the party can improve their case by amendment, or if an entirely new cause of action would have to be set up by way of amendments that prejudiced the defendants: Dean v Immigration Consultants of Canada Regulatory Counsel, 2020 ONSC 2486.
[26] In this case, there is no basis on which Ms. Abraham could be found liable to the plaintiff.
[27] I am of the view that the claim as against Ms. Abraham is radically defective and irremediably flawed. Based on all of the foregoing, I am satisfied that there is no reasonable cause of action to be brought as against Ms. Abraham, and that there is no amendment that could be made to the statement of claim to amend the radical defect, namely, the fact that no cause of action lies as against Ms. Abraham. Accordingly, the claims and allegations in the statement of claim against Ms. Abraham are struck without leave to amend.
[28] I find that the claim against Ms. Abraham should be dismissed.
[29] Based on all of the foregoing, the motion of the defendant dismissing the claims in the plaintiff’s statement of claim as against them is granted.
[30] Upon the courthouse reopening to the public, each party shall file with the Civil Motions Office a copy of all the material he, she or it delivered electronically for this proceeding, with proof of service, and pay the appropriate fees therefor.
[31] Notwithstanding Rule 59.05, this Order is effective from the date it is made, and is enforceable without any need for entry or filing in accordance with Rules 77.07(6) and 1.04. No formal Order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Order may nonetheless submit a formal Order for original signing, entry and filing when the Court returns to regular operations.
Costs
[32] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within sixty days of the release of this Endorsement.
Carole J. Brown, J.
Date: November 12, 2020