Chun v. Attorney General of Canada, 2021 ONSC 6162

COURT FILE NO.: CV-19-632308

DATE: 20210917

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dae Gun Chun and Byung Hwa Tak

Plaintiffs

– and –

Attorney General of Canada and Royal Canadian Mounted Police

Defendants

Hartley M. Isenberg for the Plaintiffs

Diya Bouchedid, for the Defendants

HEARD: September 15, 2021

FL Myers J

Background

[1] The Federal Government moves to dismiss this action. The statement of claim was prepared by the plaintiffs without a lawyer. It tells a compelling story which, at this stage, must be presumed to be true. As might be expected, the plaintiffs did not know the rules of pleading so their statement of claim suffers from some significant problems.

[2] In response to the government’s motion, the plaintiffs retained counsel. He has proposed to deliver a fresh pleading. Unfortunately, it does not cure the problems with the initial statement of claim. This is partly because the plaintiffs have a limitation period problem that counsel cannot surmount. However, the proposed fresh as amended statement of claim is not a concise statement of material facts and does little to clarify or respond to the legal issues raised by the defendants.

[3] Counsel for the plaintiffs did not provide a factum or submit any legal authorities for the court despite making submissions that he has seen “many, many cases in which damages have been awarded” despite fatal deficiencies discussed in authorities presented by the defendants. As compelling as the plaintiffs’ factual case seems to be, the court cannot just take counsel’s word for the state of the law when presented with clear and binding authority that provides otherwise.

[4] The outcome of this motion is mixed. Due to pleading deficiencies, I cannot tell with precision who the defendants are. Neither is it clear if the two plaintiffs have standing to advance claims for damages to their school which is probably owned by an independent corporation.

[5] It is plain and obvious that the plaintiffs have advanced no tenable claims against the federal Attorney General. In addition, it is plain and obvious that some of the claims against the RCMP cannot possibly succeed and must be dismissed as a matter of law.

[6] However, I cannot say with any certainty that claims may not be available against the RCMP and possibly others for numerous causes of action including under the Charter of Rights, negligent investigation, and other as yet unpleaded torts. Mrs. Byung Hwa Tak has similarly not pleaded any particulars to clarify or support a tenable cause of action as yet. Subject to clarifying her causes of action and any limitation period concerns, she too may be able to do so.

[7] For the grounds set out below, I therefore strike out the statement of claim. I deny leave to the plaintiffs to deliver the current draft fresh as amended statement of claim, and grant leave to the plaintiffs to deliver a further fresh as amended statement of claim before November 30, 2021. The further pleading must clarify the parties sued and advance concisely, with clarity, and due particularity, the causes of action advanced other than those dismissed below.

[8] This order is without prejudice to the rights of any defendant or alleged defendant to advance any and all defences that they may have.

The Claims

[9] I can do no better to explain the plaintiffs’ story than to quote the body of the original statement of claim that they prepared:

Dae Gun Chun and Byung Hwa Tak hereby claim for damages against the RCMP, Solicitor Generale, the Justice Department. The claims arise from malicious prosecution. false arrest, investigative negligence, false imprisonment and breaches against the Canadian Charter of rights along with direct violation of Vienna Convention on Consular Relations.

The series of claims result from events which occurred from April 1. 2015 when Mr. Chun was arrested at his residence located at [omitted for privacy] in North York. ON and committed to prison until November 23, 2017.

Upon the RCMP’s on going investigation to crack down the prostitution ring, the investigators came across Mr. Chun's name in a phone conversation which. they were· tapping. After Mr. Chun's phone was also tapped and based on the conversations Mr. Chun had been involved in South Korean, the RCMP made the arrest. Mr. Chun was arrested under the investigation titled “Project Confidence." The arrest was initiated in the morning of April 1,·2015 as the police rampaged to Mr. Chun's premise. On site, Mrs. Byung Hwa Tak was present.

Mrs. Byung Hwa Tak who owned Northern Lights Preparatory/Training College with Mr. Chun, was at his premises at the time of his arrest. She was forced to the floor, back side handcuffed, brought to her residence and soon after released upon identity check. In the same time frame Mr. Chun was flown to Montreal by helicopter and walked through a nationally televised press conference that would report he was the head of a prostitution ring which brought young and underaged girls from Korea to be forced to work as prostitutes.

While Mrs. Byung Hwa Tak wasn’t arrested Mr. Chun was taken to the air strip to be sent to Montreal. The RCMP had arranged in advance with the media outlets to release the footages and story of the arrest. A special news report and a police press conference were on standby and upon delivering Mr. Chun to the air strip the story was reported that Mr. Chun was the boss and the head of a prostitution ring illegally bringing in 500 women across Asia, being forced to work in body houses. Such statements and reports immediately spread across the media outlets including all Asian-American communities as well. The news report claiming that Mr Chun allegedly was responsible for exploitation of women and human trafficking, resulted an immediate closing of the school due to people's confusion and massive fear which followed in the community.

Mr Chun is a Korean Christian priest who operated his aunt’s private school for more than 15 years in Toronto. The RCMP after making the arrest on Mr. Chun and taking just about everything from his home as evidence involved in crime, had rampaged to Mrs. Tak’s school office and had also took all electronic and non electronic data as evidence. There were no official warrants, shown or no statements as to when the materials will be returned.

Mr. Chun was jailed along with eight others who were ultimately convicted in a Korean prostitution ring case between Toronto and Montreal, based in Montreal. Mr. Chun knew two out of total of nine people (including himself} who were arrested and. imprisoned in the incident. He knew Jung Hwang Seo (Korean, male) and Rene (Chinese, female) from subleasing his rented condos. Mr. Chun sub-rented a couple of condos (two to three) to each of them. Mr. Chun was renting out many condos from school operation, approximately 20, to sublease to his students attending the school. He claims that none of the arrested is either his student or employee.

Mr. Chun stayed in jail for 32 months. He had to forfeit his school license and his possessions, including his passport/PR card and $30,600.00, were impounded along with the school's raw, hard and electronic data. He applied for bail twice including bail revision was rejected and remained in jail while all others were released after two months. He got his Passport and PR card back (Aug 15, 2019) after 21 months of his release (Nov 23, 2017) and most of the belongings still confiscated in the civil matter even criminal judge, Yves Paradis. J C.Q. ordered an belongings should be returned as it is on July 3, 2019.

The only evidence suggested by the crown is the phone conversation that Mr. Chun's had with his tenants, presumably Jin Hwang Seo and Rene. Mr. Chun says he only talked about leasing condos and immigration-related matters to them. Mr. Chun also claims that the two versions of phone transcript RCMP provided to the court are wrong in translation. For instance, Mr. Chun could easily recognize the numbers were translated incorrectly, both in the first and second version of translation.

Mr. Chun was charged with having induced or attempted to induce persons to engage in unlawful sexual activity with other persons (s.212 (1)(a) C.C.), having benefited from material benefits from the provision of sexual services (s.286.2 (1) C.C.). pimping (s.286.3 (1)

C.C.}, conspiracy (s.465(1)(c) C.C.) and having committed these criminal acts for the profit of criminal organization (s.476. 12{1) C.C.). All charges against him were stayed upon his release from custody.

The reputation of Northern Lights Preparatory/Training college was damaged by association to Mr. Chun’s false arrest and subsequent detention. The school has been closed since the arrest and tuitions and rent from student housing returned and or lost. The school operates within a minority community of Asians. When the RCMP's statement was broadcast, all employees and teachers of the school officially quit their jobs the next day in shame and fear. Students had to stop their studies. All of their fees had to be paid back. The news spread like wildfire in the Asian community. South Korean newspapers and broadcasters portrayed Mr. Chun and the school as a gang-oriented business fronting.

[10] Mr. Chun says he was at home in Toronto minding his own business when RCMP officers dispatched from Montreal burst into his home, engaged in a violent takedown to arrest him without showing a warrant, put him on a helicopter to Montreal, and paraded him in front of a pre-arranged press conference as a kingpin of an international child prostitution ring. Mr. Chun was held in jail from April, 2015 until November, 2017. The charges against him personally were withdrawn about one month after they were laid. The group charges (organized crime) were stayed in November, 2017 although Mr. Chun was not told that the charges were stayed until he showed up in court in Montreal for trial in March, 2018 and discovered that his case was not on the court’s list for that day.

[11] Mr. Chun proposes to plead in his draft fresh as amended statement of claim that all of the other people charged with him accepted plea bargains. He says that he was offered a deal if he would plead guilty to a charge of possession of a forged teaching certificate. Apparently, a teacher in the school had submitted a forged certificate that was found in the office files. Mr. Chun submits that the offer was very far removed from anything to do with the allegations that he was the head of an organized child prostitution ring. He says this shows that the RCMP and Crown Attorneys had nothing on him and were desperate to make a deal with him. When he protested his innocence and refused to take the deal offered, the Crown stayed the charges and did not even tell him.

[12] This story as told is frightening. It must be borne in mind however that these are just allegations. There are many possible responses to all of this. For example, if Mr. Chun were shown beyond a reasonable doubt to have known that he had false teaching certificates for pimps posing as teachers, that would be a very different circumstance. But the Crown has never had to prove any of the allegations made by the RCMP to the press and to the Crown or made by Crown Attorneys at bail hearings and reviews. At this stage, there are only allegations. But, if the plaintiffs’ allegations are true, then if the right plaintiffs sue the right defendants for the right things and do so on a timely basis, it is a story that calls out for review and quite possibly monetary compensation.

The Motions

[13] At this stage, the defendants are asking the court to spare them the cost and inconvenience of a lengthy litigation process on the basis that even if the plaintiffs can prove everything they assert, they still cannot succeed in obtaining a judgment.

[14] This process – whether under Rule 21 or in response to the plaintiffs’ request to amend their claim under Rule 26, is designed to weed out plainly untenable claims and to allow arguable claims to proceed. There are other ways a defendant can respond or seek dismissal of a claim short of a trial. This is a first step in the litigation process with a very specific focus. It is not intended to be a determination of the claim or defences on the evidence or on their merits generally.

[15] When a court reviews a statement of claim to determine if it contains a tenable claim (technically called a “reasonable cause of action”) the court assumes that all factual allegations therein are true or can be proven by the plaintiffs. The court also gives a generous reading to the claim so that potentially valid cases are not dismissed for highly technical grounds or due to grammar or diction problems. The court will not dismiss a claim just because it presents novel or uncertain questions of law.

The Defendants

[16] The statement of claim lists the Attorney General of Canada and the RCMP as the defendants.

[17] This case has nothing at all to do with the Attorney General of Canada. Nothing pleaded suggests that the Attorney General of Canada was involved at all in Mr. Chun’s arrest or prosecution. It is clear from the bail decisions referred to in the claim (and the draft fresh as amended claim) that the charges, like Criminal Code charges generally, were prosecuted by the Quebec Minister of Public Security.

[18] Mr. Isenberg submits that the fact that RCMP officers based in Montreal came to Toronto to make the arrest and then transported Mr. Chun back to Montreal for a press conference “suggests other entities were involved”. He argues that because provincial borders were crossed by the national police force, “it must be presumed” that the federal Attorney General would have known about the arrests and the use of a helicopter to fly Mr. Chun back to Quebec.

[19] I am unaware of any basis for Mr. Isenberg’s suggestion or presumption. He relies on no statute or case law to support these submissions. Of greater significance, neither the statement of claim nor his proposed draft fresh claim contain any such allegations against the Attorney General of Canada even when read generously.

[20] Moreover, even if the federal Attorney General’s office was told by the RCMP (or, as postulated by Mr. Isenberg, by the Quebec Attorney General’s office) that the RCMP was about to make a high profile arrest in Ontario for Quebec-based charges and was going to fly the accused back to Montreal, there is no basis pleaded upon which the federal Attorney-General could be held liable civilly for having that knowledge.

[21] Nothing is pleaded or, on amendment can be pleaded, to implicate the Attorney General of Canada in any actionable wrong including under the Charter of Rights. It simply was not involved.

[22] The claims against the Attorney General of Canada are therefore dismissed without leave to amend.

[23] That does not necessarily end the matter of prosecutorial responsibility however. Recalling that the statement of claim was drafted by non-lawyers, I see that in the place on the form to list the addresses of the defendants, the plaintiffs included the addresses for the Attorney General of Canada, the Attorney General of Ontario, the Public Prosecution Service of Canada, and the RCMP.

[24] Mr. Isenberg submits that the listing of defendants’ addresses is sufficient to show that the plaintiff sued the Attorneys General of Quebec and Ontario. My. Isenberg submitted (without evidence) that the plaintiffs served both provincial Attorneys General with the statement of claim although the Quebec Minister is not listed even in the address block in the statement of claim. I note as well, as quoted above, the statement of claim seeks damages from “the RCMP, Solicitor Generale, the Justice Department”. There is some ambiguity in that phrasing.

[25] Mr. Isenberg’s submission rings hollow when one considers that the draft fresh as amended statement of claim that he drafted names only the Attorney General of Canada and the RCMP as defendants. In the address block on the statement of claim form, Mr. Isenberg has included only the address for the Department of Justice Canada which is a division of the Attorney General of Canada’s office. Assuming, without deciding, that Mr. Isenberg knows who the defendants are, his draft does not seem to be based on any of the provincial governments being named defendants.

[26] But I am not allowing the claim to be amended into the form proposed by Mr. Isenberg. It wrongly includes the federal Attorney General and relief that I find unavailable below. Moreover, if the plaintiffs think that they have properly sued anyone else in this lawsuit, they should say so with clarity in their next draft pleading. If anyone else is said to already be a defendant, they will have an opportunity to respond without prejudice to all of their rights to assert that they are not properly sued in this action on any grounds whatsoever.

The Plaintiff Mrs. Byung Hwa Tak

[27] Mrs. Byung Hwa Tak (as she is referred to in the statement of claim) was handled roughly during Mr. Chun’s arrest and lost the business that she owned or possibly co-owned with Mr. Chun.

[28] In Ontario, lawsuits must be commenced within two years of the date on which the plaintiff discovered her right to sue under ss. 4 and 5 of the Limitations Act, 2002, SO 2002, c 24, Sch B. As I expand upon below, her entitlement to sue for assault, battery, false arrest (she says she was not arrested) or breach of the Charter of Rights arising from the way she was treated on Mr. Chun’s arrest expired two years after the arrest i.e. on March 31, 2017. This claim was not commenced until December 5, 2019. While I hesitate to strike a claim based on a limitation period that is not yet pleaded, it is plain and obvious that Mrs. Byung Hwa Tak knew of her causes of action arising from the arrest on the date it happened.

[29] As I alluded to above, it is not clear whether the plaintiffs owned their school personally or through a corporation. If the latter, then the question of whether they can sue for loss of the value of their shareholdings may also be an issue. A motion is required to pursue a derivative action or add a plaintiff if that might be desired.

[30] In the draft fresh as amended statement of claim, Mr. Isenberg has removed Mrs. Byung Hwa Tak from all of the causes of action arising from the arrest and prosecution of Mr. Chun. Instead, the prayer for relief at the beginning of the proposed pleading would have claimed damages for her “for intentional and unjustified interference with this Plaintiff's economic interests, together with such further causes of action as may come to this Plaintiff's attention prior to the trial of this action” and “for unlawful interference with economic relations and inducing breach of contract”.

[31] The draft pleading describes some of the losses incurred by the school and therefore Mrs. Byung Hwa Tak. But it does not contain any allegations of fact to make out any of the torts listed in the prayer for relief set out above. It is self-evident that a statement of claim that pleads reliance on “such further causes of action as may come to this Plaintiff's attention prior to the trial of this action” does not currently set out a reasonable cause of action. That phrase cannot be allowed.

[32] However, based on the factual story told in the statement of claim, it seems to me to be possible for Mrs. Byung Hwa Tak and the school to have causes of action against the RCMP and possibly the prosecutors of Mr. Chun. If Mrs. Byung Hwa Tak intends to advance claims against any defendant (or purported defendant) she must say so with clarity and particularity in the next draft pleading. This leave to try again is without prejudice to all rights of anyone against whom Mrs. Byung Hwa Tak may purport to claim.

The Torts Alleged

[33] Having already found that the statement of claim does not and cannot implicate the Attorney General of Canada, the discussion that follows deals only with the remaining claims against the RCMP.

(1) Malicious Prosecution

[34] To sue someone for malicious prosecution, a plaintiff needs to assert facts to show that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the Plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect. See: Kvello v. Miazga, 2009 SCC 51.

[35] Nothing in the current claim links the RCMP to the prosecution or the decision-making of the Crown Attorney. However, that is not to say that Mr. Chun cannot do so on the facts pleaded. As I deal with below in considering the Charter of Rights, if the arrest was motivated by malice or racism, the police may well be implicated in a malicious prosecution. The current statement of claim does not do so. The plaintiffs therefore are granted leave to try again as discussed below.

[36] I note as well that one of the elements of this tort is that the charges must have been resolved in favour of the accused person/plaintiff. The charges against Mr. Chun personally were all withdrawn about a month after he was charged – so in May, 2015. But the group or organized crime charges were not withdrawn. They were stayed by the Crown in 2017.

[37] When a prosecution is stayed, it is not “terminated in favour of the Plaintiff”. See: The Corporation of the Town of Aurora v. Lepp, 2019 ONSC 6041 at paras. 53 to 55. That means that the plaintiffs can sue only for the charges that were withdrawn. The implication of this holding is that the limitation period may well have commenced on those charges as early as May, 2015.

[38] The limitation period for the tort of malicious prosecution involving claims against the police can be more complicated. I cannot assess it at this time.

(2) False Arrest and False Imprisonment

[39] In a case called Kolosov v. Lowe’s Companies Inc., the Court held that the two year limitation period to claim for false arrest, false imprisonment, and any associated breaches of the Charter of Rights, commences when the arrest occurs. Time in jail does not stop the clock.

[40] Mr. Isenberg argues that Kolosov is a decision of a judge of this court and I should not follow it. However, absent exceptional circumstances I am required to follow my colleague’s rulings. Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788 at para. 63.

[41] In any event, the decision of this court in Kolosov was upheld by the Court of Appeal for Ontario with an endorsement reported as 2016 ONCA 973, At para. 11 of its decision, the Court of Appeal held:

[11] The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581, at para. 16:

A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 CanLII 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; Fern v. Root, 2007 ONCA 79, [2007] O.J. No. 397 (Ont. C.A.), para. 102).

[12] The appellants offer no authority for their submission that their causes of action did not arise, and the limitation period did not begin to run, until they had received full police disclosure. Not having commenced this action until after the two-year period from the time of arrest had expired, their claims in this respect are statute-barred.

[42] In addition, it appears that Mr. Chun was arrested pursuant to a warrant. Mr. Isenberg says that he would like to see the affidavit(s) relied upon by the police to obtain the warrants. But he presents no case law to say that an arrest pursuant to a warrant issued by a court is actionable. It is an element of these torts that there be no reasonable and probable grounds for the arrest and imprisonment of the plaintiff. Whether a warrant and judicial decisions denying bail may also stand in the plaintiffs’ way in proposing amended claims are left to be dealt with if or when necessary. See: Best v Ranking, 2015 ONSC 6269.

(3) Negligent Investigation

[43] In Best, Healey J. described this tort as follows:

[72] The elements of the tort of negligent investigation were established in Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at paras. 19, 60, 73, 88, 90, 93, as follows:

(a) the defendant owed the plaintiff a duty of care related to an investigation;

(b) the defendant breached the standard of care associated with that duty; and

[73] Compensable harm only arises in a claim of negligent investigation where the investigation has terminated in the plaintiff's favor [sic], for instance, where there has been a finding of wrongful conviction: Hill, at para. 97; and Romanic v. Johnson, 2013 ONCA 23, [2013] O.J. No. 229, at para. 6.

[74] Best has not pleaded that any investigations alleged to have been undertaken, secret or otherwise, were terminated in his favor. Likewise, he has not pleaded that the contempt proceeding which allegedly flowed from those investigations terminated in his favor [sic]. On this basis alone, this cause of action has no reasonable prospect of success against any of the defendants.

[75] Further, a successful action in negligence requires that the plaintiff demonstrate: (1) that the defendant owed him a duty of care; (2) that the defendant’s behavior breached the standard of care; (3) that the plaintiff sustained damages; and (4) that the damage was caused, in fact and in law, by the defendant’s breach: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[44] Subject to limitation period concerns, I do not see any fatal reason why this tort cannot be pleaded if done correctly. Police owe a duty of care to a person suspected of a crime. Whether a negligent investigation can be blamed for the stay of prosecution later has been questioned. See: R. v. Sleiman, 2018 ONSC 5741 at paras 66 -72.

[45] I do not know if the law precluding claims based on a stay of proceedings is applicable to this tort as it is for others. I could see an argument that the fact that the Crown Attorney felt it necessary to stay proceedings may in some cases be evidence of a sufficiently favourable outcome to support a conclusion that the police investigation was negligent. In any event, the numerous charges were withdrawn rather than being stayed.

[46] The initial statement of claim contains facts that could support this tort if better pleaded to specify the elements of the cause of action. The draft fresh as amended claim so muddles the story in prolix, emotive jargon as to preclude a specific defendant from having an understanding of the particulars of negligence pleaded against it.

[47] This cause of action may be re-pleaded subject to the same preservation of the defendants’ rights that I have stated throughout.

(4) Damages under s. 24 of the Charter of Rights for Racial Discrimination

[48] The RCMP argues that there is no basis pleaded beyond bald speculation to support a claim for damages for racial discrimination under s. 15 of the Charter of Rights. In the draft fresh as amended claim, the plaintiffs eliminate all other potential bases for the police to have focused on Mr. Chun and conclude that it must have been based on his race.

[49] Apart from a mention of the Charter of Rights, the initial claim does not particularize the elements of the claim at all. Having said that however, I note that racism is a very hard thing to plead. Few defendants will utter or leave a written record of overtly racist motivations for their acts. Evidence eliminating the defendant’s stated bases for acting may well support an inference that the defendant was motivated by racism.

[50] At the pleadings stage, the plaintiff simply needs to plead sufficient facts to support the requisite elements of the cause of action. Subject, again, to the reservation of the defendants’ rights, the plaintiffs ought to be entitled to another opportunity to plead this claim.

(5) Vienna Convention of Consular Relations

[51] The plaintiffs concede that they have no entitlement to claim damages under this treaty. The claim is dismissed.

(6) Possible Other Causes of Action

[52] In para. 1 (a) of the draft fresh as amended claim, Mr. Chun also sought damages for:

…negligent and/or intentional infliction of mental suffering, negligent investigation, false arrest, false imprisonment, discrimination, malicious arrest and prosecution, legal costs incurred in this Plaintiff defending himself before the criminal courts of Quebec, and breaches of The Canadian Charter of Rights and Freedoms, together with such further causes of action as may come to this Plaintiff's attention prior to the trial of this action;

[53] This is a hodgepodge of causes of action mixed with heads of damages. I agree with Ms. Diya Bouchedid that there is no specific cause of action for costs incurred in a criminal proceeding. To the extent than that these costs may be an element of damage in a tort of a Charter claim, they do no need a second mention as a separate cause of action. But nothing turns on this technical parsing of the draft pleading that I am not allowing to be delivered in any event.

[54] None of the economic torts mentioned are pleaded with any degree of particularity. As with Mrs. Byung Hwa Tak, whether they lie for Mr. Chun remains to be seen in a properly particularized pleading.

[55] In para. 1 (b) of the draft fresh as amended claim, Mr. Chun would have sought damages for defamation. Defamation – libel and slander – are difficult torts to plead. Moreover, they can involve tricky notice and limitation period issues. It seems to me however, that Mr. Chun ought to be able to at least plead a claim for slander in light of the press conference to which he was subjected. I cannot say that the claims will survive a close review, but I also cannot rule them out at this stage.

Outcome

[56] To his credit, Mr. Isenberg presents the plaintiffs as very sympathetic people. Uncharitably viewed, the RCMP could be said to be grasping at technical straws to avoid having to account for its remarkable conduct. As I have said throughout, I have no idea which side has a story that is actually closer to the truth. I know that none of the serious allegations against Mr. Chun were ever proven in a court of law despite rather extraordinary attention directed to his high profile arrest.

[57] Mr. Isenberg notes that Toronto-based OPP or Toronto Police Service officers could have knocked on Mr. Chun’s door and told him that they had a warrant for his arrest. Did Quebec-based officers need to fly to Toronto to engage in a high-risk takedown manoeuvre? Did they really have a reasonable basis to think they had caught a kingpin of an international prostitution ring? Perhaps they did. But if they did not and this whole thing was based on speculation and, perhaps, some inherent bias or explicit racism, a very different outcome is suggested.

[58] As I have also noted throughout, I do not know if the plaintiffs are the right plaintiffs; if they have sued the right defendants; if they sued in time; or if there are actionable causes of action that can even be pleaded. The plaintiffs first need to submit a statement of claim that sets out a concise statement of material facts establishing the requisite elements of each cause of action that they assert. The defendants are entitled to be told that they are being sued and what for – who did what to whom, when and why does that make the defendants’ liable to pay damages?

Leave to Amend

[59] The defendants ask me to deny leave to amend. The plaintiffs have tried to state claims twice. The defendants say they should be entitled to get on with their lives or tending to the business of state.

[60] I agree fully with my colleague Vermette J. who recently summarized the relevant principles in Holland v. Toronto Police Services Board, 2021 ONSC 5727 at para. 24:

While a pleading may be struck, leave to amend should be denied only in the clearest of cases. The fact that the allegations are bald is not, in itself, a basis for refusing leave. It is only where it is clear that the plaintiff cannot allege further material facts that the plaintiff knows to be true to support the allegations that leave to amend will be refused. While a party should not be given unlimited scope to amend its pleading, the fact that no prior amendments have been made is a relevant consideration. See Miguna v. Ontario (Attorney General), 2005 CanLII 46385 at para. 22, Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27, and Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381 at paras. 33-34.

[61] I am not much moved by the RCMP’s desire to get on with its life as opposed to Mr. Chun’s claim for recompense for the loss of his life as he knew it (if he proves an entitlement). Given that the first statement of claim was drafted by non-lawyers and tells such a clear factual story, in my view, the plaintiffs ought to have one more chance to try to plead proper claims.

[62] The relief set out in paras. 7 and 8 above is granted.

Costs

[63] The defendants succeeded on both motions. The Attorney General of Canada should not have been sued. Moreover, the motion to amend based on the draft fresh as amened statement of claim advanced by the plaintiffs could not succeed. As sympathetic as the plaintiffs’ case might prove to be they still are required to sue the right people for the right things within the right time.

[64] The defendants may deliver no more than three pages of costs submissions plus a Costs Outline by filing them online and uploading them to Caselines by September 24, 2021. The plaintiffs may deliver no more than three pages of costs submissions in the same manner by October 1, 2021. If the plaintiffs wish to contest the quantum of costs claimed by the defendants, then they must deliver their own Costs Outline as well.

[65] Finally, both sides shall make submissions as to whether costs ought to be payable to one side or the other in the cause. The usual rule is for costs of a motion to be paid right away under Rule 57.03. But, if the plaintiffs ultimately succeed, in light of the nature of the allegations and misconduct alleged, might the trial judge be better positioned than me to determine who should bear the costs of this pleadings exercise?

FL Myers J.

Released: September 17, 2021