Court File and Parties
COURT FILE NO.: CV-22-88530 DATE: 2022-03-15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JOEL ALLAN SUMNER Plaintiff – and – OTTAWA POLICE SERVICES Defendant
Counsel: Self-represented (for Joel Allan Sumner) Mary Simms (for Ottawa Police Services)
HEARD: In writing
JUDGMENT
Justice Sally Gomery
1The court received a requisition on behalf of the defendant Ottawa Police Services for the dismissal of this action under r. 2.1.01 of the Rules of Civil Procedure. This rule provides that the court may stay or dismiss a proceeding “if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”.
2After reviewing the statement of claim, I directed the registrar to give notice to the plaintiff, Joel Allan Sumner, that the action could be struck and to invite him to make submissions as to why the lawsuit should proceed. I have now received and read Mr. Sumner’s submissions. I do not need to obtain responding submissions from the defendant to make a final determination as to whether the action should be struck pursuant to r. 2.1.01. For the reasons that follow, I find that the action is frivolous, vexatious and an abuse of process, and accordingly dismiss it.
The test under r. 2.1.01
3Rule 2.1.01(1) says that the court may, “on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”. Black’s Law Dictionary defines “frivolous” as “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”. [1] Dismissal under r. 2.1.01 can be requested by any party to a proceeding. The rule’s purpose is “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”. [2]
4As repeatedly noted by the Ontario Court of Appeal, r. 2.1.01 is a blunt instrument, reserved for the clearest of cases. [3] The abusive nature of a proceeding must be apparent “on the face of the pleadings themselves”. [4] There are other steps that a party may take to have a proceeding struck. These include an application to have a party declared a vexatious litigant under s. 140 of the Courts of Justice Act, or a motion under r. 21.01(3)(d) or r. 25.11(b) or (c). Rule 2.1.01 is not meant to apply to close calls, and it is not a short form of summary judgment. [6] To trigger dismissal under r. 2.1.01, the action must either be “so clearly frivolous as to make proceeding on regular notice an utter a waste for time, money, and resources for all involved”, or it must have been advanced by a party who seeks to weaponize regular court processes for illegitimate purposes. [7]
5In considering whether a claim ought to be struck under r. 2.1.01, the judge must read the statement of claim generously. They must assume that the assertions of fact are true unless they are obviously implausible or ridiculous. They must carefully consider whether the plaintiff may have a viable cause of action, even if none is obviously pleaded. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt. This is particularly important if the plaintiff is self-represented.
Mr. Sumner’s action
6The material facts alleged in support of Mr. Sumner’s claim are found at paragraphs 1, 2 and 3 of his statement of claim. They read as follows: [8]
- The plaintiff claims that the Ottawa Police Services knows that on or about February 12, 2021 Prime Minister Justin Trudeau stood at a podium on national television and corruptly threatened me and other Canadian citizens that if we do not buy influence in official acts from private third-party hotels and pay them a bribe we would be prosecuted by conspiring public officials for entering Canada. Knowing Mr. Trudeau was engaged in extorting Canadians under the colour of official right, the police then engaged in obstructing a citizen’s arrest and trespassed on my property right to arrest (stop) Justin Trudeau by threatening assaults and extra-judicially inflicting punishment against others trying to stop Mr. Trudeau by stealing jerry cans with fuel.
- The Plaintiff is in fear that if he helps people who are engaged in endeavoring to stop (arrest) a corrupt Mr. Trudeau he will be assaulted and battered by Ottawa Police Services, who are making public threats on social media against those trying to stop Mr. Trudeau. Victims of Mr. Trudeau are being irreparably harmed because the police are knowingly trespassing on Mr. Trudeau’s victims’ rights.
- The Ottawa Police Department knowing that Mr. Justin Trudeau did in fact commit a felony thereinafter negligently misprisoned the felony and breached the peace by not breaking down whatever door Justin Trudeau was behind and taking him into custody, thereby causing me and all of Mr. Trudeau’s victims irreparable harm.
7Paragraphs 4 through 12 of the statement of claim consist of legal argument in support of Mr. Sumner’s claims for injunctive relief and legal conclusions, such as the assertion that the defendant has “engaged in negligence by failing to apprehend Mr. Trudeau knowing he has in fact committed a felony by illegally and corruptly attempting to shake me and other Canadians down for thousands or perhaps millions of dollars by coercing me and others to pay a bribe to a private third-party hotel”.
8Mr. Sumner seeks the following relief at paragraphs 13 to 16 of the statement of claim:
(i) “an emergency and interlocutory and permanent prohibitory injunction that the police may not engage in any threats, or acts, to stop the Plaintiff from performing his legal obligation of arresting [Prime Minister] Justin Trudeau”; (ii) “an emergency and interlocutory and permanent mandatory injunction that the police are not to misprison a felony and they must break down whatever door Justin Trudeau is behind and take him into custody for the crime of extortion under the colour of official right”. (iii) “$250,000 in damages for “this trespass”, plus pre-judgment and post-judgment interest”; and (iv) “$250,000 in damages plus pre-judgment and post-judgment interest “for not breaking down whatever door Mr. Trudeau was behind and taking him into custody for publicly committing the 1,000 year old crime of extortion under the colour of official right”.
The plaintiff’s submissions
9In his response to my February 18, 2022 endorsement advising him that his action could be struck under r. 2.1.01, the plaintiff makes four broad submissions.
10First, he contends that he cited sufficient materials facts and law in his statement of claim to ground the relief sought and for the defendant, Ottawa Police Services, to defend itself. He states that “Mr. Trudeau–and the police failing to make an arrest–has caused myself and others such severe mental pain or suffering that billions of dollars of capital were moved into Ottawa in protest of Justin Trudeau continuing. Then the police found it so valuable to overcome people’s resistance that the police extra-judicially froze bank accounts, trampled people with horses, kicked them with boots, hit them with the butts of guns, shot tear gas at them, and smacked people with billy bats.” He says that this gives him the right to claim $250,000 “for each tort to ultimately be decided by a jury”.
11Second, the plaintiff suggests that I, myself, have breached s. 346 of the Criminal Code (which establishes the offence of extortion) by stating, in my February 18, 2022 endorsement, that his statement of claim is unintelligible and that the action bears the hallmarks of typically abusive, frivolous or vexatious litigation. He writes that:
Because no judge owns official acts — nor does any Judge own accusations against my claim — all Judges would be without justification to use official acts or accusations to obtain anything — like my claim for damages in tort — or cause anything to be done for the benefit of third-parties like Justin Trudeau and private third-party hotels.
12He adds, in a footnote, that “My claim for damages in tort is anything. My claim is also a chose-in-action, which is a form of personal property”.
13Third, the plaintiff alleges that the defendant’s lawyer obstructed justice, contrary to s. 139 of the Criminal Code, by requisitioning the dismissal of the action. He contends that the requisition attempted, through coercion, threats and corruption, to persuade a judge to stop him from giving evidence, “[k]nowing that Mr. Trudeau and third-party hotels will benefit”.
14Fourth, the plaintiff characterizes r. 2.1.01 as “tyrannical” such that its use would justify the overthrow of the government. He writes:
To deny a person the right to peacefully and orderly petition the Courts for a redress of grievances is 100% tyrannical and would give that person the legal right to rebellion.
15And that:
Everyone has the right to publicly participate in the conversation in order to effect change. For this court to bully me into silence based upon preconceived notions of law that were not analyzed against the extortion statue is to leave the conversation one sided. Power. Abuse. Corruption. And tyranny.
Should the claim be struck?
16Mr. Sumner seeks two types of remedy in his lawsuit. First, he seeks orders to prohibit the defendant police from interfering with his efforts to arrest Prime Minister Trudeau, and an order requiring the police themselves to “break down whatever door” the Prime Minister is behind to arrest him for extortion. Second, he seeks damages in tort based on the past failure of the police to arrest Prime Minister Trudeau and because they prevented the plaintiff from doing so.
17One of the hallmarks of vexatious litigation is bringing proceedings “where no reasonable person would expect to obtain the relief sought”. [9]
18A person who has reasonable grounds to believe that another person has committed an indictable offence, such as extortion, may make a criminal complaint under s. 504 of the Criminal Code. There is no provision, either in the Code, in any other statute, or in common law, that would enable a person to obtain an injunction to require a police officer to arrest a potential offender.
19A person may make a citizen’s arrest under s. 494 of the Code in very limited circumstances. The underlying theory is that a person is allowed to take reasonable steps to stop someone who is actively committing a crime, or to stop them from escaping right after they have committed a crime, if the police are not around to apprehend them. Where a person other than a peace officer arrests a person without warrant, however, they must “forthwith deliver the person to a peace officer”, pursuant to s. 494(3). There is no provision, in statute or common law, that would enable a person to obtain an injunction to require the police to give him access to a potential offender for the purpose of making a citizen’s arrest.
20It follows that the plaintiff cannot reasonably believes that the court would grant an order to force the police to arrest the Prime Minister, or to require them to cease protecting Prime Minister Trudeau from an individual who seeks to arrest him. He likewise cannot reasonably believe that he is entitled to damages from the police for their failure to arrest the prime minister or to allow him to do so. These are not remedies that can be obtained through a civil lawsuit in Ontario.
21In his submissions in response to my February 18, 2022 endorsement, Mr. Sumner says that he is entitled to compensation for instances of police brutality. Based on his description of the event, I infer that he is referring to police action during the disbanding the occupation of streets in downtown Ottawa by “Freedom Convoy” protesters earlier this year. This is a new claim that is not made in his lawsuit. It does not fix the fundamental problem with the existing proceeding, in which the plaintiff seeks remedies that are simply unavailable.
22Another hallmark of vexatious litigation is a pleading that recites bare assertions and legal conclusions and argument as opposed to allegations of fact. Rule 25.06(1) of the Rules of Civil Procedure requires that every pleading “shall contain a concise statement of the material facts on which the party relies for the claim…”. Subparagraph 2 of this rule says that 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”.
23Because it contains so little by way of allegations of material facts, the statement of claim is unintelligible. It consists largely of legal conclusions and argument rather than an account of the facts that could give rise to a legal remedy. The plaintiff’s central premise is that, on February 12, 2021, the Prime Minister “corruptly threatened” the plaintiff “and other Canadian citizens that if we do not buy influence in official acts from private third-party hotels and pay them a bribe we would be prosecuted by conspiring public officials for entering Canada”. The statement of claim does not indicate what the Prime Minister allegedly said. It does not allege any factual basis for the assertion that, in so doing, he was engaged in a corrupt act. It does not allege any basis for the assertion that money to be paid to hotels could be characterized as a bribe, or that payment to hotels would amount to “influence in official acts”. It similarly does not allege when the plaintiff was prevented by police officers from making a citizen’s arrest, which would be critical to understanding if he had the legal right to do so.
24The statement of claim bears other hallmarks of frivolous and vexatious pleadings, such as the use of rhetorical questions and “rambling discourse characterized by repetition and a pedantic failure to clarify”. [10] The plaintiff also uses pseudo-legal jargon that has no meaning in modern Canadian law. For example, the plaintiff repeatedly uses the term “misprisoning a felony” in reference to the defendant’s failure to arrest the prime minister. This is a term used by a third party in AVI v MHVB, 2020 ABQB 790. The judge in that case found that the party’s argument constituted “Organized Pseudolegal Commercial Arguments”, a feature of certain frivolous and vexatious proceedings. [11]
25The plaintiff’s submissions in response to my February 18, 2022 endorsement further confirm that this action is frivolous and vexatious. Often, when a court makes a decision with which a querulous litigant disagrees, their reaction will be to accuse the opposing lawyer, court personnel, and/or the judge of corruption and unlawful conduct, and to threaten them with reprisals. Mr. Sumner’s reaction to the endorsement follows this well-worn pattern. In his submissions, Mr. Sumner requests that the defendant take defence counsel “into custody for the crime obstruction of justice (sic), so as not to misprison a felony”. He accuses me of engaging in extortion by giving him notice that his action could be dismissed without a trial. He states that doing so would give him “the legal right to rebellion”. In the course of corresponding with court staff about his submissions, Mr. Sumner has also accused them or corrupt or illegal behaviour, stating that by complying with my endorsement they are guilty of racketeering.
26As already noted, there are various rules permitting a defendant to seek the dismissal of a proceeding by way of motion or, exceptionally, by way of requisition under r. 2.1.01. A person does not have the right to use the justice system to bring claims that, on their face, have no legal merit, or that are brought solely to harass, annoy or intimidate. This is such a claim.
27I conclude that the action is frivolous and vexatious and an abuse of the court’s process. It is therefore dismissed, without costs.
Justice Sally Gomery
Date: March 15, 2022