COURT FILE NO.: CV-20-000260-00

DATE: 08042021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EKATERINA MATACHNIOUK

Plaintiff

– and –

HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO as represented by THE MINISTRY OF COMMUNITY & SOCIAL SERVICES

Defendant

Ekaterina Matachniouk, Self-Represented

Mimi Singh, Counsel, for the Defendant

HEARD: In Writing

reasons for decision

EDWARDS rsj.:

Overview

[1] The Defendant brings this motion under Rule 21 of the Rules of Civil Procedure (the Rules) to have the Plaintiff’s action struck on the basis that the claim discloses no reasonable cause of action or, in the alternative, on the basis that the action is vexatious and an abuse of the court’s process. The motion was heard in writing. Upon receipt of the Defendant’s motion materials I directed that the Plaintiff be given an opportunity to respond to the Defendant’s motion. A factum was received from the Plaintiff, to which was attached a list of documents referenced in her factum.

[2] The essence of the Plaintiff’s action, which was brought under the simplified procedure of Rule 76.01, is a challenge to the decision of the Director of the Ontario Disabilities Support Program (the ODSP). The decision of the Director terminated the Plaintiff’s benefits in November 2015, on the basis of the Plaintiff’s failure to report the disposition of assets required under the Ontario Disability Support Act, 1997 (the Act).

[3] In the Plaintiff’s action, she asserts that the Director’s decision was improper and negligent and seeks various forms of relief including retroactive ODSP benefits, medical expenses, accommodation and other expenses and general damages.

The Facts

[4] On a motion under Rule 21 where the relief sought is to strike a claim on the basis that it discloses no cause of action, it is well settled that the court must accept the facts alleged as proven and must read the statement of claim generously with allowance for inadequacies for drafting deficiencies: see Nash v. Ontario, 1995 CanLII 2934 (ON CA) and Lysko v. Braley, 2006 CanLII 11846.

[5] With the aforesaid principle in mind, I repeat from the statement of claim the salient facts that give rise to the Defendant’s motion. In order to give context, I have also drawn on information provided by the Plaintiff in her factum and documents referenced in her factum about which I will have further comment later in this Endorsement.

[6] The Plaintiff has received income support since 2012. The Plaintiff alleges in her statement of claim “improper decision-making by the Director of ODSP which resulted in loss of my ODSP support”. She also alleges “ODSP has improperly terminated my entitlement and has been negligent”.

[7] The Plaintiff wrote to her ODSP case worker on November 12, 2015 to advise that she had transferred her property to her son for $1.00, and that she would be renting from him at the same address for $480.00 in rent.

[8] The Plaintiff received a reply from her ODSP case worker on November 16, 2015, and received advice that in accordance with the ODSP regulations her account would be placed on hold until she could provide further information with respect to the disposition of her assets, and in particular the disposition of her condominium.

[9] The Plaintiff did not provide the information that had been requested by her ODSP case worker in relation to the transfer of her property, but rather requested an internal review of the suspension decision. The Plaintiff then withdraw her request for internal review and requested that her ODSP file be closed.

[10] Subsequent to her request to have her ODSP file closed, the Plaintiff then commenced four separate proceedings against the Defendant in relation to the Director’s decision to suspend her benefits prior to the commencement of this action.

[11] On December 16, 2015, the Plaintiff visited a legal clinic where she sought the advice of a clinic lawyer to request on her behalf an internal review from ODSP and an appeal to the Social Benefits Tribunal (the SBT). The Plaintiff makes various allegations against the clinic lawyer, who she alleges took the side of the ODSP. The Plaintiff followed up on December 29, 2015, writing to the ODSP case worker indicating that she was not in a good medical condition and as such asked to cancel her internal review and to close her file.

[12] On February 11, 2016, the Plaintiff received a Notice of Hearing from the SBT scheduling a hearing for August 24, 2016. Upon receipt of the Notice of Hearing, the Plaintiff wrote on February 16, 2016, advising her ODSP worker that she wanted to cancel her internal review and to close her file. In furtherance of this request, the Plaintiff wrote to the SBT on February 22, 2016 asking that her appeal be cancelled. This request by the Plaintiff was followed up by a letter on February 29, 2016 from the SBT acknowledging the Plaintiff’s request to withdraw the appeal and to close the file.

[13] The Plaintiff was then advised on March 14, 2016 by her ODSP case worker that her ODSP file had been closed and that her income support would terminate as of October 31, 2015.

[14] Despite having asked that her file be closed, the Plaintiff wrote to her ODSP worker on April 18, 2016, making accusations against the case worker that her human rights were being ignored and that she was being deprived of support. The Plaintiff, on May 27, 2016, made further demands of her ODSP case worker, seeking reimbursement for a medical expense despite having asked for her file to be closed and having received confirmation that her file was in fact closed as of March 14, 2016.

[15] The Plaintiff then applied on March 2, 2017, to “the Human Rights Commission” sic.. Having been redirected to the Human Rights Tribunal of Ontario (the HRTO), the Plaintiff applied on March 13, 2017 to have her matter heard at the HRTO alleging discrimination on the basis of ancestry, place or origin, citizenship, disability, family status and marital status, contrary to the Human Rights Code (the Code). Specifically, as against the ODSP, she alleged that the ODSP had improperly denied her benefits after she had reported the transfer of the ownership of her condominium to her son.

[16] The HRTO, on its own initiative, sent the Plaintiff on June 23, 2017 a Notice of Intent to Dismiss on the basis that the Plaintiff appeared to be challenging a decision of a decision maker that had refused her a benefit, and that such allegations could not be considered a violation of the Code.

[17] After the Plaintiff filed submissions to the HRTO, the application was dismissed on July 27, 2017. Almost a year later, on March 6, 2018, the Plaintiff appealed to the SBT. The hearing was scheduled for August 21, 2018. The Director of the ODSP filed a response to the appeal, part of which was a suggestion that the Plaintiff reapply to the ODSP for benefits.

[18] On January 11, 2019 the SBT released its decision, the essence of which was that the SBT did not have jurisdiction to hear the appeal. The Plaintiff was advised of her right to reapply for ODSP income support and benefits.

[19] The Plaintiff then filed a statement of claim in the Superior Court of Justice on March 6, 2018, bearing court file 18-75756 (2018), a claim that was issued in Ottawa. Counsel in the Crown Law Office – Civil (CLOC), wrote to the Plaintiff advising her of various deficiencies in her claim, with a request that she consider discontinuing her claim, failing which a motion would be brought for an order staying and/or dismissing her claim.

[20] In response to the request from the CLOC, the Plaintiff served Ontario with a sworn “Notice of Discontinuance”, which had been sworn by an Ottawa lawyer. Upon receipt of the Notice of Discontinuance, the CLOC counsel advised the Plaintiff that she could issue a new claim 60 days after September 4, 2018. On July 30, 2019, the Plaintiff emailed counsel at the CLOC indicating that she wanted to renew her March 6, 2018 application.

[21] The statement of claim which is before this court was issued on January 21, 2020, bearing court file number CV-20-00000260-00 (2020). The claim was issued in Newmarket (“The Newmarket action”.

[22] In the Newmarket action, the Plaintiff alleges that the ODSP improperly terminated her entitlement and was negligent. No details are provided in that regard. The claims made by the Plaintiff include:

a. ODSP benefits from the date that they were cut off to the date of trial;

b. medical expenses, the particulars of which will be provided prior to trial;

c. accommodation expenses and other expenses, the particulars of which will be provided prior to trial;

d. general expenses and damages; and

e. any further relief.

[23] Upon receipt of the Newmarket action, the Defendant wrote to the Plaintiff asking that she discontinue the Newmarket action on the basis that she had not exhausted the statutory remedies available to her under the ODSPA, and that her action disclosed no reasonable cause of action.

Position of the Moving Party Defendant

[24] Counsel for the Defendant alleges that the Plaintiff’s allegation that the Director’s decision to suspend her benefit was improper and does not disclose a reasonable cause of action. The ODSPA, in s. 5(1)(d), provides what a person eligible for income support is required to provide to the Director in order to establish eligibility. Where a claimant fails to comply with the conditions for eligibility, the Director is required to suspend or terminate benefits that a recipient would otherwise be entitled to receive: see s. 9 of the ODSPA.

[25] Where a recipient like the Plaintiff disagrees with the decision of the Director to suspend benefits, there is a right of appeal set forth in s. 21(1) of the ODSPA. The appeal lies with the SBT where the Plaintiff bears the onus of establishing that the decision of the Director is incorrect. There is also a further right of appeal to the Divisional Court on questions of law: see s. 26(1) and s. 31 of the ODSPA.

[26] On the specific facts as they relate to the Plaintiff, counsel for the Defendant argues that the Plaintiff’s refusal to provide her case worker with the requested information relating to her property transfer was needed in order to verify the Plaintiff’s eligibility. A refusal to provide that information gave rise to the Director’s mandatory suspension of her benefits on November 16, 2015. Fundamentally, counsel for the Defendant argues that this does not give rise to any reasonable cause of action and should be dismissed.

[27] As it relates to the issue of so-called negligent decision making, counsel for the Defendant argues that this is not a reasonable cause of action unless there is a private law duty of care. In that regard, counsel for the Defendant argues that the provisions of the ODSPA do not establish any legislative intent to confer any private law duty of care on the Plaintiff. Furthermore, s. 58(1) of the ODSPA provides that no cause of action may be instituted against the Ministry, the Director or any employee acting under the authority of the Act for any alleged neglect or default in the execution in good faith of any duty under the Act. In essence, s. 58(1) of the ODSPA provides the Defendant and its employees with immunity from any action in damages for any act done in good faith in the execution of a duty under the Act, or for any alleged neglect or default in the execution in good faith of any duty under the Act.

[28] As it relates to the Rules, counsel for the Defendant refers this court to Rule 25.06 which requires that every pleading must contain a concise statement of the material facts on which a party relies for the claim or defence. In that regard, counsel relies on the decision of the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42.

[29] In relation to the position taken by the Defendant that the Plaintiff’s claim amounts to an abuse of process, counsel for the Defendant relies on s. 21(1) of the ODSPA which provides a right of appeal to the SBT after an internal review from any decision of the Director. In this regard, the Plaintiff withdrew her request for an internal review which is a precondition for an appeal to the SBT, which on the facts of this case resulted in the Plaintiff’s appeal being withdrawn at the request of the Plaintiff.

[30] Dealing specifically with the suggestion that the Plaintiff’s Newmarket action amounts to an abuse of process, counsel for the Defendant points to the fact that the same issues raised by the Plaintiff in this action have already been raised in four separate proceedings, in three different forums. Specifically, in 2015 the Plaintiff withdrew her appeal at the SBT; in 2017 the HRTO dismissed her human rights application; in 2018 when the Plaintiff sought to recommence her abandoned appeal of the Director’s 2015 decision, the SBT returned a decision of no order due to lack of jurisdiction; and, in 2018 the Plaintiff filed her first application in the Ottawa Court but discontinued that action when she was made aware that she had not provided proper notice in accordance with the CLPA.

[31] At the core of the argument advanced on behalf of the Defendant as it relates to abuse of process, it is argued that the Newmarket action is the Plaintiff’s fifth attempt to litigate the Director’s decision to suspend her benefits dating back to November 2015. The Plaintiff had her remedy to appeal that decision to the SBT, which she did twice, but on each occasion withdrew her request for independent review and asked that her file be closed.

Position of the Plaintiff

[32] The Plaintiff is self-representing herself and filed a factum that was an attempt on her part to respond to each of the arguments raised by the Defendant. Unfortunately, much of what the Plaintiff has put into her factum is evidence that on a motion under Rule 21 is not admissible.

[33] Much of the Plaintiff’s argument revolves around her position that she was treated improperly and negligently, and that she wants to have a “fair and unbiased trial”.

[34] Throughout her factum, in responding to the Defendant’s position that there is no cause of action, the Plaintiff refers the court to “s. 2 and s. 3 of her factum”. Section 2 is a summary of the facts which amounts to the Plaintiff’s evidence. Evidence, as previously noted, is inadmissible on a Rule 21 motion.

[35] In responding to the argument that “negligent decision making” is not a reasonable cause of action, the Plaintiff responds by simply asserting that she strongly disagrees with that statement and refers the court back to her summary of the evidence. Similar responses are made by the Plaintiff to almost every argument raised by the Defendant.

Analysis

[36] The test that I am required to apply on a motion to strike a pleading under Rule 21.01(1)(b) is whether it is plain and obvious that the claim as pleaded has no chance of success. See Hunt v. T & N pic., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959. In considering a motion under Rule 21.01(1)(b) it is clear that no evidence is admissible on a motion, and as previously indicated the court must accept the allegations as proven unless they are incapable of proof or they are patently ridiculous. Dealing with this type of motion, the court can only consider the statement of claim and any documents that are specifically referred to in the claim.

[37] In this case, the statement of claim refers to numerous exhibits. Filed separately, presumably as part of the Statement of Claim, is a document entitled “List of the Documents to File to Rely on the Court” (sic). In McCreight v. Canada (Attorney General), 2013 ONCA 463, at para. 32, the Court of Appeal makes clear that on a motion to strike a judge must examine the pleading and that evidence is neither necessary nor is it allowed. Specifically, the Court of Appeal goes on to state:

If the document is incorporated by reference into the pleading and forms an integral part of the factual matrix of the statement of claim, it may properly be considered as forming part of the pleading and a judge may refer to it on a motion to strike.

[38] In this case, the Plaintiff in her statement of claim refers to various exhibits. In my view, there was no necessity to actually refer to the exhibits other than the references made by the Plaintiff in her statement of claim.

[39] In her reply factum, the Plaintiff seeks to place before the court additional evidence, none of which is sworn, and in any case is not admissible on a motion to strike under Rule 21.01(2)(b).

[40] As it relates to the specific claims advanced by the Plaintiff in her statement of claim, it is clear that she disagrees with the decision of the Director to suspend her ODSP benefits. The Plaintiff was not left without recourse with the decision of the Director when she disagreed with that decision. The Plaintiff had the right to appeal that decision to the SBT pursuant to s. 21(1) of the ODSPA, which provides:

Any decision of the Director affecting eligibility for or the amount of income support, assistance under section 49 or extended health benefits under section 49.1, other than a decision referred to in subsection (2), may be appealed to the Tribunal.

[41] As previously noted, had the Plaintiff been unsatisfied with a decision of the SBT she had a further right of appeal to the Divisional Court on a question of law.

[42] The Plaintiff, in fact, did exercise the aforementioned rights, but having exercised those rights she then chose to cancel her appeal when she wrote to the SBT on February 22, 2016 asking that her appeal be cancelled. That request was acceded to by the SBT and her file was closed.

[43] The Plaintiff pursues a claim in negligence by asserting:

The ODSP has improperly terminated my entitlement and has been negligent.

[44] In her factum, the Plaintiff attempts to elucidate the basis of the cause of action in negligence and asserts that she was treated “improperly (abuse/misfeasance of public office) and negligently, I am working to correct this injustice”.

[45] In order to assert a claim of negligence in the context of the type of claim asserted by the Plaintiff, she must establish a private law duty of care. Where the source of the allegation of negligence is the exercise of a statutory duty of care, the duty must be found in the statutory scheme itself. See Cooper v. Hobart, 2001 SCC 79, [2001] 3 SCR 537.

[46] On the facts of this case, the provisions of the ODSPA do not establish any legislative intent to confer a private law duty of care on the Plaintiff. In fact, by reference to s. 58(1) of the ODSPA, the intent of the legislature is clear and no action is allowed to be instituted against the Ministry, the Director, or any employee acting under the authority of the Act, for any alleged neglect or default in the execution in good faith of any duty under the Act.

[47] The only basis upon which a claim can be asserted is where the plaintiff could establish that the decision of the Director was not made in good faith. In this case, the Plaintiff’s ODSP case worker had explained to the Plaintiff the reasons why her income support had been suspended (the inadequate disposition of her assets, specifically her condominium), and that upon receipt of that information the Plaintiff submitted two letters in late December 2015 and February 2016 asking that her request for internal review be withdrawn and her ODSP file closed. Acting on the Plaintiff’s request, the Plaintiff’s file was in fact closed. The Plaintiff has failed to plead any material facts as she is required to do pursuant to Rule 25.06 of the Rules of Civil Procedure, that would establish any claim that the Director had acted in bad faith such that there could be a finding of negligence on the part of the ODSP. I am satisfied that the Plaintiff’s claim discloses no reasonable cause of action and should be struck under Rule 21.01(b).

[48] There is a further basis upon which this court should strike the Plaintiff’s claim, and that is that her claim amounts to an abuse of process and should be struck pursuant to Rule 21.01(3)(d).

[49] In this case the Plaintiff exercised her right of appeal to the SBT and having exercised that right she withdrew her request for review. This was not the first attempt on the part of the Plaintiff to seek redress for her grievances. Having withdrawn her appeal at the SBT, she then commenced her human rights application to the HRTO in 2017, and then in 2018 she sought to recommence her abandoned appeal of the Director’s 2015 decision. The Plaintiff then filed an application in Ottawa which she subsequently discontinued.

[50] The Plaintiff has attempted to litigate the Director’s decision to suspend her benefits now on at least five occasions in different venues. At some point, litigating a grievance must come to an end. The Plaintiff chose to exercise the rights she had to appeal the decision of the Director, but for reasons best known to her, chose not to exercise those rights to their ultimate conclusion. The Plaintiff cannot simply relitigate those issues in different venues hoping for a different decision. The Plaintiff must exhaust the remedies that she is afforded in the governing legislation, including all rights of appeal. The Plaintiff chose not to do that. In my view, it would be a complete abuse of this court’s process to allow the Plaintiff a sixth opportunity to relitigate issues that have already been dealt with in different forums. The Plaintiff’s claim is struck out as an abuse of process.

[51] As it relates to the issue of costs, given the nature of this dispute, it would be imposing an unnecessary burden on the Plaintiff to expect that she pays the costs of this proceeding. In the event the Defendant wishes this court to consider costs submissions that would result in the Plaintiff being responsible for costs, I am prepared to receive written costs submissions limited to three pages in length, to be received no later than 15 days after receipt of these Reasons. In the event the Defendant does not intend to seek costs, the court will assume that the non-receipt of written submissions after the 15 days have expired evidences the Defendant’s intent not to seek costs.

Regional Senior Justice M.L. Edwards

Released: April 8, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EKATERINA MATACHNIOUK

Plaintiff

– and –

HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO as represented by THE MINISTRY OF COMMUNITY & SOCIAL SERVICES

Defendant

REASONS FOR DECISION

Regional Senior Justice M.L. Edwards

Released: April 8, 2021