Court File and Parties

COURT FILE NO.: CV-19-618436 MOTION HEARD: 20210629 REASONS RELEASED: 20210930

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

TANYA REBELLO Plaintiff

• and-

ATTORNEY GENERAL FOR ONTARIO, PREMIER OF ONTARIO AND MINISTRY OF THE ATTORNEY GENERAL COUNSEL JOANNA CHAN Defendants

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: T. Rebello E-mail: trebello100@.com -Plaintiff, Self-Represented

A. Mortimer E-mail: adam.mortimer@ontario.ca -for the Defendants and the Proposed Defendants

REASONS RELEASED: September 30, 2021

Reasons For Endorsement

I. Introduction

[1] The Plaintiff brings a motion for leave to amend her Statement of Claim to add Her Majesty the Queen in Right of Ontario (the “Crown”), the Minister of Transportation, the Ministry of Transportation for the Province of Ontario, the Minister of Government and Consumer Services, the Ministry of Government and Consumer Services for the Province of Ontario and Service Ontario as Defendants to this action (collectively, the “Proposed Defendants”) and to make related amendments. The Plaintiff also seeks an order directing that this action be tried together with a related action and a timetable for the 2 actions.

II. Background

[2] This is 1 of 4 actions commenced by the Plaintiff against various defendants related to the Province of Ontario including the Crown. Only two of the actions are currently proceeding.

[3] On February 6, 2017, the Plaintiff commenced an action bearing court file number CV-17-569102 initially against the Attorney General for Ontario, later amended to be as against the Crown as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police) seeking $190,000,000 in damages for breach of statutory duty, misfeasance in public office, stalking, harassment, trespass, voyeurism, deceit, discreditable conduct and intentional infliction of mental suffering. She alleges that numerous Ontario Provincial Police (“OPP”) officers stalked and harassed her, conspired to injure her, trespassed on her property and negligently investigated a complaint she made regarding a car driving past her house at irregular hours which was criminally harassing her (the “OPP Action”). The Plaintiff further alleges that Hydro One shut down her electricity, her garage door was tampered with and the OPP conspired with the Bank of Nova Scotia (“BNS”) to maliciously prosecute the Plaintiff based on the allegation that her alleged criminal lifestyle was being funded by Gary Curtis (the affiant on this motion) to discredit Mr. Curtis’ civil action against BNS. The Crown defended the OPP Action and has attempted to schedule a summary judgment motion over the Plaintiff’s opposition.

[4] On June 18, 2018, the Plaintiff commenced an action against the Crown as represented by the Minister of Transportation for the Province of Ontario bearing court file number CV-18-599902 with respect to the alleged unlawful transfer of the ownership of her vehicle on April 16, 2018 to Hollywood North Auto Parts Inc. (“HNAP”), deletion of her license plate and the suspension of her driver’s license (the “2018 MTO Action). The Plaintiff seeks damages of $120,000,000 for, among other things, breach of statutory duties, confidence, fiduciary duties, and privacy and neglect and abuse (misfeasance) in public office and for gross negligence and intentional infliction of mental distress. The Crown brought a motion to strike. By Order dated March 29, 2019, Dunphy J. dismissed the 2018 MTO Action for the Plaintiff’s failure to deliver the statutorily mandated notice before commencing the action but granted leave to re-issue a fresh action that day. In his Endorsement, Dunphy J. held that since the Crown acknowledged that it had 60 days’ notice of the Plaintiff’s Amended Claim in the 2018 MTO Action, the Plaintiff was permitted to re-issue the same claim with the date March 29, 2019 and serve it by email on the Crown. The Plaintiff did not do so.

[5] The basis of the Plaintiff’s claims and allegations as against the Proposed Defendants with respect to the transfer of her vehicle and detachment and deletion of her license plate is set out in a letter to her from Service Ontario dated November 26, 2018. Service Ontario advises and apologizes that due to human error, on April 18, 2018, her vehicle was mistakenly recorded in Service Ontario’s system as transferred to another owner and shown in wrecked status and her license plate was detached. The letter further advises that the error came to Service Ontario’s attention on May 15, 2018 and that although her vehicle information was corrected her plates were still showing as unattached. The letter directs the Plaintiff to attend at a Service Ontario location to have the issue resolved.

[6] The Plaintiff commenced the present action by Notice of Action issued on April 18, 2019 with a Statement of Claim issued on May 21, 2019. The Defendants in this action include the Attorney General, the Premier of Ontario and Joanna Chan, a lawyer who represented the Crown in the motion to strike in the 2018 MTO Action. The Plaintiff seeks damages of $150,000,000 for, among other things, conspiracy, negligence and breach of fiduciary duty, contract and the Charter. The Plaintiff alleges that the Defendants, without her consent, deliberately and recklessly transferred the ownership of her vehicle and detached and deleted her license plate and suspend her driver’s license preventing her from driving indefinitely. The Plaintiff also alleges that the Defendants conspired with the Toronto Police Service to trespass on her property, permit Hydro One employees to shut off the electricity at her property in an attempt to plant hazardous illegal items and/or substances and allowed Superior Court judges to deny her access to justice and the right to be heard.

[7] The Defendants delivered their Statement of Defence on June 17, 2019 and the Plaintiff delivered her Reply on June 24, 2019. The Defendants have advised that they intend to bring a motion to strike this action for failing to disclose a reasonable cause of action against any of the Defendants.

[8] On October 25, 2019, the Plaintiff commenced an action against the Crown as represented by the Minister of Transportation and the Minister of Government and Consumer Services bearing court file number CV-19-629849 (the “2019 MTO Action”) seeking $120,000,000 in damages for misfeasance, negligence and breaches of trust, fiduciary duties and the Charter based on substantially the same allegations as in the 2018 MTO Action. As set out below, the 2019 MTO Action has been deemed abandoned.

[9] The parties attended at Civil Practice Court (“CPC”) on December 6, 2019. to schedule the Defendants’ motion to strike the 2019 MTO Action and the Plaintiff’s motion to consolidate the 2019 MTO Action with the present action (the “Consolidation Motion”). Myers J ordered the motions to be heard together on May 20, 2020 and stated in his Endorsement:

“HMQ wishes to move to strike this action because it was commenced without leave after proclamation of the leave requirement. Ms. Rebello wishes to move to join this action with another action that was commenced before the new statute was proclaimed to argue that she can add HMQ as a party in that action without leave under the new law.”

[10] On December 20, 2019, the parties attended at CPC again. Dow J. scheduled a new motion by the Plaintiff in the 2019 MTO Action for the return of her license plate and fees related to its removal for March 16, 2020. The Plaintiff did not pursue this motion.

[11] On January 31, 2020, the parties again attended at CPC before Dow J. who rejected the Plaintiff’s request to schedule the Consolidation Motion on its own. The Consolidation Motion and the Defendants’ motion to strike the 2019 Action were adjourned from May 20 to May 22, 2020 to accommodate counsel’s schedule. However, on or about February 5, 2020, the court office advised Defendant’s counsel that the Plaintiff had withdrawn the Consolidation Motion scheduled for May 22, 2020 and court staff inadvertently vacated both the Consolidation Motion and the Defendants’ motion to strike. The court staff rectified the error, however, they had already advised the Plaintiff that both motions were vacated.

[12] Notwithstanding the orders of Myers J. and Dow J. that the Consolidation Motion be heard together with the Defendants’ motion to strike the 2019 MTO Action, on February 4, 2020, the Plaintiff unilaterally scheduled the Consolidation Motion before Master Mills (as she then was) returnable March 4, 2020. In her Notice of Motion dated February 7, 2020 the Plaintiff seeks an order consolidating this action with both the OPP Action and the 2019 MTO Action. Master Mills adjourned the Consolidation Motion to May 22, 2020 or such other date as may be fixed at CPC:

“Pursuant to the order of Myers J. dated December 6, 2019, this motion must be heard at the same time as the defendant’s motion to strike the 2019 action (CV-19-679849). The plaintiff did not appeal the order of Myers J. and the defendants do not consent to the motion proceeding before a Master. In the circumstances, I have no jurisdiction to hear this matter.”

[13] The Plaintiff delivered an Amended Notice of Motion dated February 18, 2020 seeking to consolidate the 3 actions and have the 3 actions be tried together and adding all of the defendants in the OPP Action and the 2019 MTO Action to the present action (essentially the addition of the Proposed Defendants sought on the present motion).

[14] The Plaintiff subsequently delivered an Amended Amended Notice of Motion dated April 6, 2021, removing the request for consolidation and instead seeking an order that this action be tried together with the OPP Action only; leave to add the Proposed Defendants and related amendments to her Statement of Claim and to serve and file a Fresh as Amended Statement of Claim adding the Proposed Defendants; timetables for the exchange of affidavits of documents and examinations for discoveries in both actions; and an order that if a party fails to attend examinations for discovery that the court will strike the party’s pleadings upon filing of a Certificate of Non-Attendance.

[15] The parties attended at CPC on March 24, 2021 where the Plaintiff sought to schedule an urgent motion for injunctive relief against the Crown in the 2019 MTO Action. In his Endorsement, Diamond J. stated that the relief was precluded by operation of s. 22 of the Crown Liability and Proceedings Act, 2019 (Ontario)(the “CLPA”) and that since the events giving rise to the relief sought occurred in 2019 there did not appear to be any urgency. Defendants’ counsel requested that the 3 remaining actions be assigned to judicial case management under Rule 77. Diamond J. directed the Defendants to file a request in writing with the Regional Senior Justice. On May 3, 2021, the Defendants filed a request in writing with Acting Regional Senior Justice Brown. By letters dated May 12 and 13, 2021, Acting R.S.J. Brown advised that the Defendants’ request had been assigned to Myers J.

[16] The parties first appeared before me on May 14, 2021. The Plaintiff requested all of the relief set out in her Amended Amended Notice of Motion. As set out in my Endorsement dated May 14, 2021, given the Defendants’ pending request for judicial case management and the pre-existing issues with the Defendants’ outstanding motion to strike, I adjourned the Plaintiff’s motions to be spoken to.

[17] By Endorsement dated May 25, 2021, Myers J. denied the Defendants’ case management request, directed that the issues raised by the Defendants be spoken to at CPC or a case conference and, among other things, deemed that the 2019 MTO Action was abandoned. On May 27, 2021, in response to inquiries by the Plaintiff, Myers J. confirmed that the refusal of case management did not affect any motions before me in this action and that the Plaintiff remained free to add parties who were named in the abandoned claim (the 2019 MTO Action) into her other actions upon compliance with Rules 5 and 26 in the ordinary course.

[18] I convened a telephone case conference on June 7, 2021. As set out in my Endorsement, Defendants’ counsel advised that while an attendance at CPC or judicial case conference will be scheduled in the future, there is no immediate intention to do so and nothing that would prevent the Plaintiff’s pleadings motion from proceeding before me.

III. The Law and Analysis

[19] The sum total of the many court attendances and procedural steps set out above is as follows:

i.) the 2018 MTO Action has been dismissed;

ii.) the 2019 MTO Action has been abandoned;

iii.) the present action and the OPP Action (together, the “Remaining Actions”) are currently the only actions which are proceeding;

iv.) the Defendants intend to bring a summary judgment motion with respect to the OPP Action which must be spoken to at CPC;

v.) the Defendants’ motion to strike this action is outstanding and must also be spoken to at CPC;

vi.) the Plaintiff is not pursuing the Consolidation Motion;

vii.) the Plaintiff’s motions to have the Remaining Actions tried together and for a timetable are outstanding.

[20] The only issue before me is whether the Plaintiff should be granted leave to amend her Statement of Claim to add the Proposed Defendants and make related amendments. The Plaintiff’s motions to have the Remaining Actions tried together and for a timetable are not proceeding today.

[21] The Plaintiff has filed a 26-page, 89-paragraph draft Fresh As Amended Statement of Claim (the “Amended Claim”). Notwithstanding the title “Fresh As Amended”, some, but not all, amendments set out in the Amended Claim are underlined making it difficult to distinguish the proposed amendments from the existing claim. The Plaintiff has filed an affidavit from Mr. Curtis sworn April 15, 2021 in support of her motion, who describes himself as a “non-paid friend” of the Plaintiff. Mr. Curtis was not cross-examined.

[22] In the Amended Claim, the Plaintiff seeks various declarations including, among other things:

i.) that the Crown and the Premier are responsible for allowing the Minister and the Ministry of Transportation, the Minister and the Ministry of Government and Consumer Services and Service Ontario to, without the Plaintiff’s knowledge or consent, deliberately and recklessly transfer the ownership of her vehicle to HNAP and detach and delete her license plate and suspend her driver’s license preventing her from driving indefinitely which they have admitted and refused to correct;

ii.) that the Crown and the Premier are responsible for allowing the OPP to use a third party’s vehicle to perform acts of voyeurism, stalk, harass, terrorize, trespass, bully and intimidate her;

iii.) that the Defendants, the Crown and the Premier breached their fiduciary duties, neglected their duties and abused public office by funding Hydro One without putting policies, rules and procedures in place for oversight of Hydro One and its employees to prevent Hydro One from constantly shutting off the Plaintiff’s electricity to allow OPP officers and/or their third party associates to trespass on the Plaintiff’s property to plant hazardous, stolen and illegal items to cause her severe harm and maliciously prosecute her;

iv.) that the Crown, the Attorney General and the Premier breached their fiduciary duties and abused their public office by allowing the Ontario Superior Court to deny the Plaintiff access to justice through significant procedural and judicial unfairness by breaching rules of civil procedure and by allowing Ms. Chan to deliberately misrepresent the outcome of a hearing by providing a false order and having it issued and entered;

v.) that the Crown, Attorney General and the Premier violated and continue to violate the Plaintiff’s rights under sections 7,8, 12 and 15 of the Charter of Rights and Freedoms and are liable for damages under section 24 of the Charter.

[23] The Plaintiff seeks damages totaling $25,000,000 including: $15,000,000 for breach of statutory duties, neglect of duties and/or abuse (misfeasance) in public office; breach of confidence, trust and fiduciary duties; negligence, gross negligence and negligent and fraudulent misrepresentation; breach of customer contract and privacy and personal information; conspiracy to injure; Charter breaches and intentional infliction of emotional distress, mental anguish, psychological suffering and injury to dignity and loss of enjoyment of life; punitive and exemplary damages of $3,000,000; and aggravated damages of $7,000,000. The Plaintiff also seeks a mandatory injunction to order the Ministries to direct their Ministers, members and agents responsible for attaching license plates to re-attach her license plate to her vehicle forthwith and a prohibitive injunction to restrain them from ever showing the vehicle in wrecked status and detaching the plate.

[24] Rule 26.01 provides that on a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[25] In opposing the Plaintiff’s motion, the Defendants and the Proposed Defendants rely primarily on my recent decision in Andrin Hillsborough Limited v. Esliaszadeh, 2021 ONSC 3229. The relevant law on pleadings amendments as summarized in Andrin is set out below.

[26] The contemporary approach to pleadings motions was summarized by Flynn J. in Sleep Clinic London Inc. v. Merchea, 2012 ONSC 3004, [2012] O.J. No. 2471:

“22 Long gone are the days when pleadings motions could be approached in an overly technical manner. Generally speaking, a party should be at liberty to craft a pleading in the manner it chooses, providing that the Rules of pleadings are not violently offended and there is no prejudice to the other side.”

[27] Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), 2001 CarswellOnt 3139 (C.A.) at para. 37; Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44).

[28] The Court of Appeal summarized the law on pleadings amendment motions in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42:

“[25] The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action.

The amendment may be permitted at any stage of the action.

There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source.

The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided.

Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial.

At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed.

The onus to prove actual prejudice lies with the responding party.

The onus to rebut presumed prejudice lies with the moving party.”[citations omitted]

[29] Master MacLeod (as he then was) described the requirements that amendments be legally tenable and compliant with the rules of pleading in Plante v. Industrial Alliance Life Insurance Co., 2003 CarswellOnt 2961:

“21…

(b) The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting: [citations omitted].

(c) The proposed amendments must otherwise comply with the rules of pleading. For example, the proposed amendments must contain a "concise statement of material facts" relied on "but not the evidence by which those facts are to be proved" (rule 25.06(1)), the proposed amendments are not "scandalous, frivolous or vexatious" (rule 25.11(b)), the proposed amendments are not "an abuse of the process of the court" (rule 25.11(c)), the proposed amendments contain sufficient particulars -- for example, of fraud and misrepresentation (rule 25.06(8)).”

[30] The approach for determining legal tenability was summarized by Fregeau J. in Essa v. Panontin, 2010 ONSC 691 at para. 8:

“To be allowed, the amendments requested by the Plaintiffs must be tenable at law. On a motion to add a party and/or to amend the statement of claim against existing parties, the court may not consider the factual and evidentiary merits of the proposed new claims. A court is not to concern itself with the credibility of the case set forth by a party seeking an amendment. The court, in its analysis, is not to consider whether the amending party is able to prove the amended claim. The court must assume the facts pleaded in the proposed amendment are true. The only question is whether they disclose a tenable cause of action. The court is not to make findings of fact or weigh evidence. Amendments are to be read generously with allowance for deficiencies in drafting.”

[31] Strathy J. (as he then was) summarized the general principles governing pleadings in Cerqueira v. Ontario, 2010 ONSC 3954:

“11. …I set out some of these principles in Cavarra v. Sterling Studio Lofts Inc., 2010 ONSC 3092, [2010] O.J. No. 2211, and I have added some additional principles:

“(a)the purpose of pleadings is to give notice of the case to be met, to define the matters in issue for the parties and for the court, and to provide a permanent record of the issues raised [citations omitted];

(b)the causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material [citations omitted];

(c)every pleading must contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved: rule 25.06; this includes pleading the material facts necessary to support the causes of action alleged;

12 I accept the submission of Mr. Adair, on behalf of the Extendicare defendants, that while the plaintiffs are entitled to some leeway in the wording of their pleading, and a potentially meritorious claim should not be struck merely because of technical drafting deficiencies, the defendants are entitled to know the case they must meet. The court must be fair to the plaintiff, but it must also be fair to the defendants. In this regard, I respectfully adopt the observation of Cameron J. in Balanyk v. University of Toronto, 1999 CanLII 14918 (ON SC), [1999] O.J. No. 2162 (S.C.J.) at para. 46:

Neither the opposite party nor the court should be forced to nit-pick their way through a long, complex and sometimes redundant and split pleading, parsing each paragraph and each sentence with a view to extracting the claims and related material facts and redrafting them into a clear and precise pleading. It is the responsibility of the party pleading to plead in accordance with the requirements of our law and the purposes of pleading. Bearing in mind National Trust v. Frubacher, [1994] O.J. No. 2385, those purposes are:

(a)to give precise notice to the opposite party of the case which is to be met, sufficient to enable the opposite party to plead;

(b)to assist the court in understanding the material facts alleged and the factual and legal issues in dispute between the parties;

(c)to establish a benchmark against which the parties and the court may determine the relevance of evidence on discovery and at trial and the scope of the evidence which will be required to fairly and efficiently address the issues in dispute.

This requires the party pleading to understand the facts and the law as to what is required to support or defend a cause of action and to then state its position clearly and concisely.” (Cerqueira at paras. 11-12)

[32] Strathy J. struck certain paragraphs in some cases with leave to amend, concluding that the Statement of Claim was “a jumble of complaints, some of which are recognized by law and some of which are not”, “in many cases, not asserted as elements of proper causes of action supported by material facts going to either liability or damages” such that “it is almost impossible for the defendants to do anything other than guess about the nature of the plaintiffs' complaints against them” (Cerqueira at para. 14).

[33] For the reasons that follow, I dismiss the Plaintiff’s motion for leave to amend without prejudice to her right to deliver a re-drafted Fresh As Amended Statement of Claim within 30 days. I do so without prejudice to her right to pursue her motion to have this action tried together with the OPP Action and the Defendants’ motion to strike this action and summary judgment motion with respect to the OPP Action.

[34] On a generous, non-technical reading with allowances for drafting deficiencies, I am satisfied that, at least with respect to the basic claim related to the mistaken transfer of ownership of the Plaintiff’s vehicle to HNAP and removal of her license plate as admitted by Service Ontario in its letter, there is a tenable cause of action. That is, assuming the facts as admitted are true, I cannot conclude that this specific claim is clearly impossible of success. However, there are significant issues with respect to how the claim is pleaded and who it is being advanced against.

[35] The Plaintiff’s claims and allegations arising from the transfer of her vehicle and deletion of her plate go far beyond the straightforward admission of an error set out in Service Ontario’s letter. The claims as pleaded make serious allegations including misfeasance, conspiracy and other intentional acts against multiple parties, some with no apparent connection to the factual matrix. The Amended Claim is further complicated by the fact that it is essentially a patchwork of this action, the OPP Action and the abandoned 2019 MTO Action with overlapping and repetitive claims and allegations. However, as set out below, the most significant issue is that the Plaintiff’s most serious allegations are not pleaded with the heightened particularity required given the nature and severity of the claims being made.

[36] Having considered the Amended Claim and the relevant factors, I have concluded that the just result in the circumstances is for the Plaintiff to address the deficiencies in a further Amended Claim. This is the Plaintiff’s first attempt at amending her claim and the court is required to afford the Plaintiff the flexibility to draft her claim in the manner she chooses while balancing the Defendants’ and Proposed Defendants’ rights to know the claims against them, all without offending the applicable pleadings principles. The fact that the Defendants and the Proposed Defendants have not provided any evidence of actual prejudice and have now conceded that there are no limitations issues supports this conclusion. To the extent to which the Defendants and the Proposed Defendants are still raising any limitations issues, I am satisfied that, at least for the purposes of this motion, they are addressed by the Plaintiff’s Amended Notice of Motion dated February 18, 2020 seeking to add the Proposed Defendants which is less than 2 years after April 18, 2018, the date when the Defendants and the Proposed Defendants say that she should have known she had a cause of action. Any further limitations issues may be addressed at trial.

[37] The Plaintiff incorrectly submits that Dunphy J. already granted leave to add the Proposed Defendants. Dunphy J. dismissed the 2018 MTO Action with leave to file a fresh action that day. The Plaintiff did not file a fresh action and the 2018 MTO Action remains dismissed. Dunphy J. made no findings regarding the parties to the 2018 MTO Action and no orders with respect to adding parties to the present action which had not been commenced at the time of his order.

[38] I agree with the Defendants that the Minister of Transportation, the Ministry of Transportation for the Province of Ontario, the Minister of Government and Consumer Services, the Ministry of Government and Consumer Services for the Province of Ontario and Service Ontario are not proper parties to the Amended Claim. I rely on the reasoning of Spence J. in Deep v. Ontario, [2004] O.J. No. 2734:

“82 There is no basis in the statute or elsewhere for the commencement of an action against a ministry of the Crown. Accordingly, the Ministry of Health and Long Term Care is not a proper party and is not a suable entity at law. The plaintiff's claim against the ministry should be struck.

83 A claim against a Minister of the Crown is a claim against the Minister personally. Ministers are Crown servants for whom the Crown may be held vicariously liable. However, Ministers are not masters to other Crown servants, including their direct subordinates. Consequently, Ministers may not be held vicariously liable for the tortuous conduct of other Crown servants. A minister of the Crown is not vicariously liable for the torts of Crown servants since ministers are themselves servants of the Crown.”

[39] Similar to Deep, the Plaintiff’s claims against these Ministers and Ministries and Service Ontario arise from the alleged actions of their subordinates or other Crown servants and actors for these Proposed Defendants’ alleged lack of supervision and oversight which caused the damages claimed by the Plaintiff. The proper party in these circumstances is the Crown.

[40] To the extent to which the Plaintiff has pleaded any direct conduct of the Ministers, the Ministries and Service Ontario (which is not apparent from the Amended Claim), it suffers from the same deficiencies as the Plaintiff’s claims against the Crown, namely, a lack of particularity and specifics given the serious claims and allegations being made by the Plaintiff. In this regard, Rule 25.06 states:

“(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.”

[41] Allegations of legal conclusions are not facts and are insufficient for the purposes of pleading particularly where allegations of intentional or malicious conduct are made (Deep at paras. 38). A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer intentional or malicious conduct and where a plaintiff's claim includes an allegation of bad faith, the pleading must be supported by sufficient particulars that support a legal conclusion of bad faith (Deep at paras. 38 and 64).

[42] In my view, the Plaintiff has not pleaded sufficient particulars to provide the Defendants and the Proposed Defendants with notice of the case they must meet with respect to the many serious claims being made against them. In many cases, the Plaintiff states legal conclusions to support her claims of misfeasance, intentional and other bad faith malicious conduct without sufficient factual basis. The Plaintiff also repeatedly cites the underlying transfer and detachment as the basis for a multitude of serious claims which go far beyond these basic facts. The Plaintiff submits that she has evidence in support of her allegations that will be disclosed during examinations for discovery and as the proceedings move forward and this is why the Defendants do not wish to proceed to discoveries. While the Plaintiff is not required to plead evidence, the serious claims she is advancing require more than bald statements of liability and if she has further particulars then she is required to plead them.

[43] Similarly, the Plaintiff’s conspiracy claims are also deficient. A.J. O’Marra J. summarized the law of pleadings as it relates to civil conspiracy in Ontario Consumers:

23 The defendant's predominant purpose must be to inflict harm on the plaintiff. It is not enough if the harm is the collateral result of acts pursued predominantly out of self-interest. The focus is on the actual intent of the defendant and not the consequences that the defendant either realized or should have realized would result.

24 To plead civil conspiracy a statement of claim must state with precision and clarity material facts as to:

a)the parties to the conspiracy and their relationship of one to the other;

b)the agreement between or amongst the defendants to conspire, including particulars as to the time, place and mode of agreement;

c)the precise purpose or object of the conspiracy;

d)the overt acts alleged to have been done by each of the alleged conspirators in pursuance and furtherance of the conspiracy, including the time, and place and nature of the acts; and

e)the injury and damage caused to the plaintiff as a result of conspiracy.

25 Conspiracy is an intentional tort and a serious allegation as such the material facts must be pleaded with heightened particularity. In Ballard v. Stavro, the court stated at para. 31:

Under Rule 25, a statement of claim must contain a concise statement of all the material facts on which a party relies for the claim. The issues in dispute must be sufficiently identified as to enable the parties to plead a response without having to speculate. Where this minimum level of disclosure is not satisfied, the pleading is irregular. In certain circumstances, it may be appropriate to grant leave to amend or order that particulars be granted. In others the pleading is ordered to be struck. In an action such as this where there are serious allegations of conspiracy, the level of disclosure of material facts is required to be higher.

26 It is insufficient to simply "lump some or all of the defendants together into a general allegation that they conspired". (See Penson Financial Services Canada Inc. v. Connacher, [2010] O.J. No. 2114 at para. 15; Normart Management Ltd. (1998), 1998 CanLII 2447 (ON CA), 37 O.R. (3rd) 97 (OCA), and J.G. Young and Son Ltd. v. Tec Park Ltd., [1999] O.J. No. 4066 at 451. )

27 Further, it was noted in J.G. Young and Sons, that the plaintiff is under a heavy burden as a consequence of seeking to plead such a serious cause of action as that of conspiracy. In Balanyk v. University of Toronto, at para. 29 Cameron J. stated:

If the plaintiff does not, at the time of the pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim.”

[44] The Plaintiff baldly claims that some of the Proposed Defendants conspired amongst themselves and with BNS, the OPP, HNAP and the Toronto Police Service to harm her in “many forms” to intentionally and maliciously prosecute her and transfer the ownership of her vehicle and have her license plate detached and deleted. These allegations of conspiracy are almost entirely lacking in particulars including the purpose of the conspiracy, the relationships and agreements between the parties and the overt acts of each. It appears as if the Plaintiff has simply grouped most of the Defendants and Proposed Defendants together with non-parties against whom she has complaints and bundled it up in a general allegation that they conspired together. This does not satisfy the heavy burden on the Plaintiff to sufficiently plead claims of conspiracy. I make no comment on the existing claims of conspiracy including those against the OPP and others with respect to the claims arising from their investigation into the Plaintiff’s reports and related allegations. If the Plaintiff intended to connect the various alleged conspiracies, this has not been pleaded.

[45] The Defendants and the Crown also argue that the Plaintiff’s proposed addition of the Crown by amendment as a Defendant to the Amended Claim is an abuse of process because she is attempting to avoid the leave requirements of the CLPA consistent with her stated intention of the Consolidation Motion as set out in Myers J’s December 6, 2019 Endorsement.

[46] The Defendants have not referred me to any authority which defines or provides any guidance regarding abuse of process in this or any context. The courts have held that an abuse of process requires a collateral and improper purpose and a definitive act or threat in furtherance of a purpose not legitimate in the use of the process and some overt act or threat distinct from the proceedings themselves, extrinsic to the litigation, in furtherance of the improper purpose (National Energy Corporation v. Eco Energy Home Services Inc., 2014 ONSC 3778 at para. 10).

[47] The enactment and amendment of the relevant provisions of the CLPA and their application to pleadings amendments was recently considered by P.J. Cavanagh J. in Catalyst Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2021 ONSC 2132. Similar to the present case, the issues in Catalyst arose during the time when the CLPA was enacted and amended:

“61 The CLPA came into force on July 1, 2019. Subsection 17(1) of the CLPA as originally enacted provides:

17(1) No proceeding may, without leave of the court, be brought against the Crown or an officer or employee of the Crown in respect of a tort of misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee's powers or the performance or intended performance of the officer or employee's duties or functions.

62 The CLPA as originally enacted included transitional provisions in s. 31.

63 The CLPA was amended and the amendments came into force on July 8, 2020. Subsections 17(1) and (2) of the CLPA, as amended, provide:

17(1) This section applies to proceedings brought against the Crown or an officer or employee of the Crown that include a claim in respect of a tort of misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee's powers or the performance or intended performance of the officer or employee's duties or functions.

(2) A proceeding to which this section applies that is brought on or after the day section 1 of Schedule 7 to the Smarter and Stronger Justice Act, 2020 comes into force may proceed only with leave of the court and, unless and until leave is granted, is deemed to have been stayed in respect of all claims in that proceeding from the time that it is brought.

64 Subsection 17(1) of the CLPA as originally enacted applies to a proceeding brought on or after July 1, 2019 to and including July 7, 2020. Subsection 17(2) of the CLPA, as amended, applies to a proceeding that is brought on or after July 8, 2020.

65 The transitional provisions in s. 31 of the CLPA were not amended. Subsections 31(1), (2) and (3) of the CLPA provide:

31(1) This Act applies with respect to a claim against the Crown or an officer, employee or agent of the Crown regardless of when the claim arose, except as provided in subsection (3).

(2)This Act applies with respect to a proceeding commenced by the Crown, or against the Crown or an officer, employee or agent of the Crown, on or after the day this section comes into force, regardless of when the facts in which the proceeding is based occurred or are alleged to have occurred.

(3)Subject to subsection (4), the Proceedings Against the Crown Act, as it read immediately before its repeal, continues to apply with respect to proceedings commenced against the Crown or an officer, employee or agent of the Crown before the day this section came into force, and to the claims included in those proceedings.

66 Catalyst submits that s. 17(2) is clear that a proceeding "that is brought on or after the day section 1 of Schedule 7 to the Smarter and Stronger Justice Act, 2020 comes into force" may proceed only with leave of the court and, since the action was commenced in 2014, leave to proceed is not required.

67 The Crown argues that the Second Amended Claim is a proceeding "brought" against the Crown that includes a claim in respect of the tort of misfeasance in public office and, under s. 17(2) of the CLPA, this claim may proceed only with leave of the court. The Crown submits that the word "brought" is different than the word "commenced" and based on the application of the statutory presumption of consistent expression, these words have different meanings: [citations omitted].

68 I agree that the words "brought" and "commenced", which are each used several times in the CLPA, should be given different meanings. If the word "brought" means "commenced", a plaintiff could commence a proceeding by issuing an originating process against the Crown before the CLPA came into force which does not include a claim for misfeasance in public office and, to avoid the leave requirement, amend its pleading after the CLPA came into force to add a claim for misfeasance in public office. In addition, s. 17(7) of the CLPA provides that the court shall not grant leave unless it is satisfied that "the proceeding is brought in good faith". If the word "brought" means "commenced", then this provision would not apply to a proceeding commenced after July 8, 2020 where a misfeasance claim is later added by way of amendment to the pleading.

69 The legislative purpose of s. 17 of the CLPA is to provide for the stay of a proceeding against the Crown where the proceeding includes a claim against the Crown in respect of the torts of misfeasance in public office or bad faith unless the court is satisfied that the proceeding is being brought in good faith and there is a reasonable possibility that the claim would be resolved in the claimant's favour. This legislative purpose would be undermined if a claimant were able to commence a proceeding which does not include a claim in respect of misfeasance or bad faith and, after doing so, amend the pleading in the proceeding to make such a claim, without obtaining leave of the court.

70 In my view, to interpret the words "brought" and "commenced" as they are used in the CLPA to have the same meaning would not accord with the modern principle of statutory interpretation which calls for the words of a statute "to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": [citations omitted].

71 Subsection 31(1) provides that the CLPA applies to a claim against the Crown regardless of when the claim arose, except as provided in subsection (3). Subsection 31(3) provides that the former statute, the Proceedings Against the Crown Act, continues to apply with respect to proceedings commenced against the Crown before this section came into force (July 1, 2019), and "to the claims included in those proceedings".

72 Catalyst argues that s. 31(2) provides that the CLPA applies with respect to a proceeding commenced against the Crown on or after the day the transitional provision in s. 31 of the CLPA comes into force (July 1, 2019) and that the CLPA does not apply to this action which was commenced before that date. I disagree that s. 31(2) should be read as narrowly as Catalyst contends. Subsection 31(2) applies to new proceedings. This provision does not speak to claims brought after the CLPA came into force within proceedings commenced before the CLPA came into force.

73 Catalyst contends that, in any event, the claim for misfeasance in public office has been continuously included in the action since the Notice of Action was issued, including after Catalyst's pleading of this claim was struck out with leave to amend. I disagree.

74 On July 1, 2019, when the CLPA came into force, there was no claim against the Crown for misfeasance in public office. The pleading by which Catalyst had advanced that claim was struck out. The Crown was not confronted with such a claim and, although leave to amend had been granted to Catalyst, it had no obligation to make such a claim. The exception in s. 31(3) of the CLPA to the application of the CLPA to a claim against the Crown does not apply because on July 1, 2019, there was no claim against the Crown for misfeasance in public office included in Catalyst's action.

75 If I am found to have erred in concluding that the Second Amended Claim discloses no reasonable cause of action against the Crown for misfeasance in public office, I would conclude that Catalyst's action may only proceed against the Crown with leave of the Court under the CLPA.”

[48] In my view, the Plaintiff’s proposed addition of the Crown by amendment does not rise to the level of an abuse of process. Namely, I cannot conclude on the record before me that there is any collateral purpose for the amendment or purpose extrinsic to the litigation. It may be strategic or contrary to the CLPA, but this does not on its own constitute an abuse of process. In any event, as I am denying leave to add the Crown at this time for other reasons the issue is moot. Further, based on the wording of the CLPA and Catalyst, it appears that that at the very least, even if the court were to grant leave to add the Crown, the Plaintiff’s claims against the Crown for misfeasance and bad faith would be automatically stayed until she obtains leave regardless of when the claim arose. This is a separate inquiry which may be spoken to when and if it becomes necessary in these proceedings.

IV. Disposition and Costs

[49] Order to go dismissing the Plaintiff’s motion without prejudice to her right to deliver a re-drafted Fresh As Amended Statement of Claim within 30 days without prejudice to her right to pursue her motion to have this action tried together with the OPP Action and the Defendants’ right to pursue their motion to strike this action and summary judgment motion with respect to the OPP Action. The Plaintiff’s motion to have this action tried together with the OPP Action and for a timetable are adjourned sine die.

[50] If the parties are unable to agree on the costs of this motion, they may file written costs submissions (not to exceed 3 pages excluding Costs Outlines). The Defendants/Proposed Defendants shall deliver their submissions on or before October 29, 2021 and the Plaintiff on or before November 30, 2021.

Released: September 30, 2021

Associate Justice McGraw