COURT FILE NO.: 19-82090 DATE: 2020/12/14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
V.I. Fabrikant Plaintiff/Responding party
– and –
THE ATTORNEY GENERAL OF CANADA Defendant/Moving party
Plaintiff representing himself
Aman Owais for the Attorney General of Canada
HEARD: December 1st, 2020
REASONS ON MOTION TO STRIKE
Justice S. Gomery
[1] In this action, V. I. Fabrikant seeks declaratory relief and damages against the Correctional Services of Canada, represented here by the Attorney General of Canada. Dr. Fabrikant’s statement of claim is brief. In it, he alleges that:
• he has resided at Archambault Institution in Quebec since 2011;
• he is Jewish, and relies on Correctional Service Canada (“CSC”) to provide him with a Kosher diet;
• CSC is obliged to respect a Religious Diet Guide, which provides that Jewish inmates who receive a Kosher diet must receive “the same level of nutritional balance and variety (as reasonably possible) as the rest of the institutional population”;
• until December 2017, Fabrikant was served Kosher soup every day. He stopped getting Kosher soup at that time, while other inmates continue to get soup regularly.
• in August 2019, CSC changed its supplier of Kosher food. The supplier’s product is either unappetizing to the point of being inedible, or the portions are much smaller than the non-Kosher dishes served to non-Jewish inmates and below the portion size set out in the Guide.
• the plaintiff has made several attempts, without success, to resolve the situation with the CSC.
[2] Based on these allegations, Dr. Fabrikant seeks a declaration that CSC has discriminated against him, compensation for the cost of alternative Kosher food he has procured at his own expenses, and general, exemplary and punitive damages. He also mentions in the statement of claim that he intends to seek certification of the lawsuit as a class proceeding.
[3] In this motion, the defendant seeks to strike the Statement of Claim on three grounds:
(i) The Ontario Superior Court has no jurisdiction to hear the claim;
(ii) The lawsuit is an abuse of process; and
(iii) The statement of claim discloses no reasonable cause of action.
[4] For the reasons that follow, I am granting the motion on the first and third ground, but give leave to the plaintiff to amend his statement claim to try to address the deficiencies I have identified.
(i) Does the Ontario Superior Court have jurisdiction over the claim?
Legal framework
[5] Under r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a defendant may move to have an action stayed or dismissed on the ground that the court has no jurisdiction over the subject matter of the action.
[6] For the purpose of a motion under r. 21.01, the judge must assume that all facts pleaded in the statement of claim are true.[^1] The motion will be granted only if it is plain and obvious that the claim cannot succeed, that is, the facts alleged could not give rise to the judgment sought by the plaintiff.[^2]
[7] Claims against the federal Crown are governed by the Crown Liability and Proceedings Act (“CLPA”). Section 21 of the CLPA gives the superior court of the province “in which the claim arises” concurrent jurisdiction with the Federal Court with respect to the subject-matter of the claim.
[8] In Babington-Browne v. AG Canada, the Ontario Court of Appeal held that the test for jurisdiction of the Ontario Superior Court in the CLPA is different than the “real and substantial connection” test that generally governs motions under r. 21.01(3)(a).[^3] In deciding whether a provincial superior court has concurrent jurisdiction over a claim against the federal Crown under s. 21(1) of the CLPA, the court must “examine the facts surrounding the claim in the light of the elements of the alleged cause of action in order to decide where the substance of the claim arose”.[^4]
The parties’ positions
[9] The AG contends that this Court does not have jurisdiction over the subject matter of Dr. Fabrikant’s claim as it arose in Quebec, not Ontario, and none of the allegations or material facts pleaded in the statement of claim have any connection to Ontario.
[10] In his oral submissions, Dr. Fabrikant acknowledged that he failed to allege facts that would establish the jurisdiction of this Court in his statement of claim. He contends, however, that he can show that the substance of his claim arose in Ontario, because decisions about the choice of food suppliers for federal prisons are made at a national level at CSC headquarters in Ottawa. As stated in his affidavit in response to the motion:
None of the torts, described in my Statement of Claim, happened in Quebec: jail just followed orders, received from the National Headquarters in Ottawa. What happened in Quebec also happened in every other Canadian province, which has a federal jail.
[11] In summary, he argues that it is immaterial that he resides in a jail in Quebec and consumed Kosher meals served there, because he would have faced the same discriminatory practices in any federal penitentiary anywhere in Canada. The plaintiff therefore asks that he be granted leave to amend his pleading.
Analysis
[12] I must first deal with a procedural objection raised by the defendant. The AG objects to plaintiff’s affidavit on the basis that no evidence is permitted on a motion to strike. This is incorrect. Per r. 21.01(2), no evidence is admissible on a motion under r. 21.01(1)(b) and evidence is presumptively inadmissible on motions under r. 21.01(1)(a). There are no equivalent limitations for a motion brought by a defendant under r. 21.01(3), which is the subrule that the defendant is relying on for its argument on lack of jurisdiction and abuse of process. The defendant’s objection to Dr. Fabrikant’s affidavit is therefore rejected.
[13] With respect to the merits of the motion to strike under r. 21.01(3), the defendant is correct. The allegations in the statement of claim, as currently drafted, do not include any material facts that could give this Court jurisdiction over the claim under s. 21(1) of the CLPA.
[14] The only direct reference to Ontario in the statement of claim is CSC’s address in Ottawa. The plaintiff does not assert that CSC decisions about the type and quantity of Kosher food are made on a national level. Read very generously, the statement of claim might be taken to imply this, through the reference to the Religious Diet Guide (assuming the Guide sets standards applicable to all federal penitentiaries), and the assertion that Dr. Fabrikant has attempted to resolve his complaint with the CSC (as opposed to local authorities at the Archambault jail). Dr. Fabrikant himself acknowledged, in his oral submissions, that the statement of claim should be amended to expand on the factual basis on which he seeks to litigate his claim in this Court.
[15] The more difficult question is whether, based on the Babington-Browne analysis, Dr. Fabrikant could amend his statement of claim to allege material facts that would lead a court to conclude that the substance of his claim arose in Ontario.
[16] In its decision, the Court of Appeal noted that if the “real and substantial connection” test applied to determine jurisdiction under s. 21 of the CLPA, the connecting factor of the domicile of the defendant would mean that every lawsuit against the federal Crown could be commenced in the Ontario Superior Court. The AG argues that allowing Dr. Fabrikant to proceed in this Court would permit the very thing that the Court of Appeal’s interpretation of s. 21 of the CLPA was designed to avoid.
[17] It is helpful to consider not just the test articulated in Babington-Browne, but how the Court of Appeal applied it on the facts of that case. The plaintiffs in Babington-Browne were family members of a British soldier killed in a crash of a Canadian Forces’ helicopter in Afghanistan. The Court of Appeal held that, even though the plaintiffs alleged that some of the negligent acts giving rise to the accident “could have” taken place in Ontario, “the bulk of the alleged negligent acts that caused the helicopter crash took place in Afghanistan”.[^5] As a result, the Ontario Superior Court had no jurisdiction to hear the claim.
[18] The situation is potentially quite different here. It is unclear, based on the allegations currently contained in the statement of claim, whether Dr. Fabrikant is complaining simply about CSC’s decision to change Kosher food suppliers, or its refusal to act on his complaints about the quality or quantity of the food he has been served since December 2017, or a combination of these things. I cannot preclude the possibility that a more detailed statement of claim could establish that all key decisions about the type and quantity of food he is served were made in Ottawa. This would then not be a situation, as in Babington-Browne, where the acts and omissions giving rise to the claim “could have” taken place in Ontario, but rather a situation where the bulk of the negligent acts took place here.
[19] In these circumstances, the defendant’s motion to strike on the basis of r. 21.01(3)(a) must be granted, but the plaintiff must be given leave to amend his statement of claim.
(ii) Is the lawsuit an abuse of process?
[20] The defendant contends that this action is an abuse of process that should be struck pursuant to r. 21.01(3)(d) and r. 25.11. The AG argues that the lawsuit is abusive because the plaintiff has filed it in this Court solely to circumvent vexatious litigant orders that prevent him from starting procedures in the Quebec Superior Court and Federal Court.
[21] This ground can be disposed of quickly. If, through amendments to his statement of claim, the plaintiff can establish that this Court has jurisdiction over his claim under the CLPA, then a court could not conclude that it was inappropriate for Dr. Fabrikant to file his claim in this Court. Since there may be grounds to assert the jurisdiction of this Court, I cannot conclude that the plaintiff is filing his action in Ontario in a bad-faith attempt to get around prior court orders.
[22] The defendant’s motion to strike on this basis is therefore rejected.
(iii) Does the statement of claim disclose a reasonable cause of action?
[23] Under r. 21.01(b), a party may move to strike out a pleading on the ground that it discloses nor reasonable cause of action. The defendant contends that, even if Dr. Fabrikant’s allegations are assumed to be true, he has not alleged material facts that would allow him to obtain declaratory relief or damages against the federal Crown.
[24] A motion to strike a pleading can succeed only in the clearest of cases. A claim should not be struck just because it is novel, or because the underlying law is unsettled, or because the plaintiff’s odds of success seem slim.[^6] If there is any chance that the plaintiff could succeed, the court should allow the lawsuit to proceed.
[25] On a motion to strike, the statement of claim must be read generously. The court should not strike a cause of action merely because it is pleaded inelegantly. The court cannot however overlook fatal deficiencies in a claim.
[26] In the statement of claim, Dr. Fabrikant asserts that CSC’s conduct is discriminatory without alleging any basis on which he is entitled to equal treatment. The AG contends that the claim advanced by Dr. Fabrikant is untenable because there is no independent tort of “discrimination” recognized in Canada.[^7] This is correct. Once again, however, the central issue is not whether the statement of claim as currently pleaded is inadequate — it clearly is — but whether the plaintiff should be granted an opportunity to fix it. I conclude that he should.
[27] The cases relied upon by the defendant in its motion involve statements of claim where no basis for a complaint of discrimination is pleaded, or where the plaintiff alleges discrimination contrary to a human rights code, as opposed to the Charter. Section 15(1) of the Canadian Charter of Rights and Freedoms entitles every individual to equal protection and benefit of the law without discrimination based on religion. Section 24(1) provides that: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. As a result, a claim for discrimination based on alleged discrimination under s. 15(1) could, if properly pleaded, give rise to a tenable cause of action.
[28] The defendant argues that, even if the plaintiff could assert a s. 15 claim, there would be no reasonable cause of action because the complaint is trivial.
[29] This submission is without merit. For the purpose of this motion, I must assume that the facts alleged by the plaintiff are true. The plaintiff alleges that, as a result of his religion, he is not being provided food in sufficient quantity or quality to meet the CSC’s own standards. An allegation that an inmate at the mercy of his jailers is being underfed is not a trivial complaint.
[30] Finally, the defendant contends that the allegation that the plaintiff may seek to transform his action into a class proceeding ought to be struck because he has not pleaded the necessary facts that would ground certification. I decline to deal with this argument since, on my reading of the statement of claim, the plaintiff is merely raising a possibility rather than seeking any relief at this point.
[31] I conclude that the defendant’s motion to strike under s. 21.01(b) should be granted, but that the plaintiff should be given leave to amend his statement of claim to attempt to fix the deficiencies identified in these reasons.
Disposition
[32] The defendant’s motion is granted.
[33] I grant leave to the plaintiff to amend his statement of claim, within the next 30 days, to make allegations of material facts that would establish the jurisdiction of the Ontario Superior Court over his claim that he has a reasonable cause of action against the defendant.
[34] The AG is urged to consider whether he wishes to seek costs. Although his motion has been granted, I rejected his contention that the plaintiff should not be granted leave to amend.
[35] If the AG determines that he would like to seek costs, he may serve and file a cost outline no longer than two pages in length, along with a draft bill of costs, by January 15, 2021. The plaintiff may serve and file a responding outline, no longer than two pages in length, by January 31st, 2021.
Justice Sally Gomery
Released: December 14, 2020
COURT FILE NO.: 19-82090 DATE: 2020/12/14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
V.I. FABRIKANT Plaintiff
– and –
ATTORNEY GENERAL OF CANADA Defendant
REASONS ON MOTION TO STRIKE
Justice S. Gomery
Released: December 14, 2020
[^1]: Operation Dismantle Inc. et al v. The Queen et al, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at pp. 486-87; Hunt v. T & N plc, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at pp. 977-979; Connor v. Scotia Capital Inc., 2018 ONCA 73, [2018] O.J. No. 394, at para. 3. [^2]: Hunt, at pp. 977-978; Connor, at para. 3. [^3]: Babington-Browne v. AG Canada, 2016 ONCA 549, at para. 18. [^4]: David S. LaFlamme Construction Inc. v. Canada (Attorney General), 2014 ONCA 775, 34 C.L.R. (4th) 187. [^5]: Babington-Browne, at paras. 26-27. [^6]: Hunt, at p. 979. [^7]: Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 SCR 181; Honda Canada Inc. v. Keays, 2008 SCC 39; Jaffer vYork University, 2010 ONCA 654; King v Ryerson University, 2015 ONCA 648.