COURT FILE NO.: CV-22-88843
DATE: 05/07/2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. V.I. FABRIKANT
Plaintiff
– and –
A. KELLY, CSC COMMISSIONER
Defendant
Self-represented
Calina Ritchie for the defendant
HEARD: In writing
REASONS FOR JUDGMENT
Justice Sally Gomery
[1] The defendant seeks the dismissal of this action under r. 2.1.01 of the Rules of Civil Procedure. On my initial review of the statement of claim, I determined that the claim appeared, on its face, to be frivolous or vexatious or otherwise an abuse of the process of the court. On May 9, 2022, I issued an endorsement staying the action on an interim basis and seeking submissions from the parties pursuant to r. 21.01.01(6). I have now considered the submissions and conclude that the action should be dismissed.
The test under r. 2.1.01
[2] Rule 2.1.01’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”.[^1]
[3] As summarized succinctly by Myers J.:[^2]
“Frivolous” proceedings are lawsuits that cannot possibly succeed. “Vexatious” lawsuits are brought to vex or to harass the defendants. “Abuse of process” is a broader concept that includes re-litigating matters that have already been decided and other abusive use of court proceedings.
[4] The court must wield the power granted by r. 2.1.01 carefully. The Ontario Court of Appeal has repeatedly emphasized that r. 2.1.01 is a blunt instrument, reserved for the clearest of cases.[^3] It is not meant to apply to close calls, and it is not a short form of summary judgment.[^4] The action must 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 to weaponize regular court processes for illegitimate purposes.[^5] The offensive or dilatory nature of a proceeding must be apparent “on the face of the pleadings themselves”.[^6]
[5] In 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 in it are true unless they are obviously implausible or ridiculous. The judge 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.
Background
[6] The plaintiff is a prisoner in the Archambault jail in Quebec. The defendant is the Commissioner of Correctional Services Canada (CSC).
[7] In his statement of claim, Dr. Fabrikant alleges that the electricity to his cell was cut off maliciously on 31 separate occasions since November 2, 2020. Some of these power interruptions lasted several hours, while others lasted days. The outages continued even after Dr. Fabrikant was moved to a new cell. He says that he has made numerous formal complaints that were dismissed by the jail warden, the defendant Commissioner, and the Office of the Correctional Investigator. He asserts that: “Being the CSC Commissioner and failing to undertake reasonable steps to stop the abuse makes the defendant personally responsible for the malicious actions”.
[8] By way of relief, Dr. Fabrikant seeks (1) an interlocutory order requiring the defendant to provide him with a long extension cord when the electricity to his cell is switched off, so that he can use an electric outlet in the corridor; and (2) an order requiring the defendant to pay him $100 each time the electricity is switched off as well as $100 for each hour he was deprived of electricity.
[9] In my May 9, 2022 endorsement, I observed that the statement of claim did not assert a recognized cause of action. I also noted that the allegations did not disclose any connection between Ontario and the claim, and it therefore appeared that Dr. Fabrikant had filed the action in the Ontario Superior Court because he has been declared a vexatious litigant by the Federal Court of Canada and the Quebec Superior Court.
The parties’ submissions
[10] In response to the observations in my May 9 endorsement, Dr. Fabrikant states that:
• He has asserted a cause of action because his statement of claim “alleges tort”;
• There is a “quite obvious” connection between his claim and Ontario because the defendant lives in Ottawa;
• I should not infer that he started the action before this Court for a secondary purpose, as can seek leave to file actions in the Federal Court and the Quebec Superior Court;
• In my endorsement, I failed to specify if his statement of claim was frivolous, or vexatious, or an abuse of the court’s proceedings, creating the impression that I do not know which option applies.
[11] Dr. Fabrikant relies on my decision in another action he commenced against Correctional Services Canada, in which I granted the defendants’ r. 21 motion and struck the claim but granted Dr. Fabrikant leave to amend and re-file.[^7] He also contends that it is my duty, as a judge, to assist him in the proper presentation of his legitimate statement of claim.
[12] Dr. Fabrikant filed an affidavit along with his submissions. I have disregarded it, as evidence is not admissible under r. 2.1.01.[^8]
[13] In her responding submissions, Ms. Kelly points out that a claim for damages is a remedy, not a cause of action.[^9] The heart of her submissions, however, is that Dr. Fabrikant’s choice of this court as a forum is an abuse of process, because there is no real connection between Ontario and the facts alleged in his statement of claim. She accuses him of attempting to manufacture a connection by alleging that she is personally responsible and points out that Dr. Fabrikant has acknowledged that he did not want to sue in Federal Court.
Should the action be struck?
[14] There are two fundamental problems with the action: it does not assert any cause of action, much less one against the named defendant, and there is no connection alleged between Ontario and Dr. Fabrikant’s complaint.
[15] A tort is an act or omission that the law recognizes as giving rise to a particular cause of action for damages. It is not enough to allege that a defendant has committed a tort; this is so vague as to be meaningless. A plaintiff must, in their statement of claim, plead the constituent elements of a specific tort, such as negligence. Dr. Fabrikant has not done so. He complains that the electricity in his cell has been turned off repeatedly and this has created a hardship for him but does not allege any basis on which any of this could entitle him to a legal remedy.
[16] A defendant is furthermore not automatically the appropriate target of a lawsuit just because they are aware of a complaint and fail to act. The plaintiff must allege material facts that would, if proved, enable a court to find the defendant liable for the omission. It is not tenable to assert that Ms. Kelly’s role as Commissioner makes her personally liable for every prisoner complaint within Canada’s penitentiary system, nor does Dr. Fabrikant allege any facts that would make his complaint exceptional in this respect.
[17] The second fundamental problem is that there is no connection to Ontario alleged that would give this court jurisdiction over the action. There is no allegation that the electrical shutdowns are endemic to the prison system in Canada as a whole. Dr. Fabrikant in fact alleges the opposite, contending that he is the specific target of malicious behaviour within the Archambault jail in Quebec. In his submissions, he says that the lawsuit has a connection to Ontario because that is the location of the defendant’s office. If this was a sufficient basis for an action in the Ontario Superior Court, every lawsuit against the federal Crown could be commenced here, a proposition rejected by the Ontario Court of Appeal.[^10]
[18] Dr. Fabrikant attempts to compare this situation with Fabrikant v. CSC. In his statement of claim in that case, Dr. Fabrikant alleged that the CSC had an obligation, pursuant to its own internal policies, to provide Jewish inmates with Kosher food that is equivalent, nutritionally and otherwise, to food provided to other inmates. He alleged that he relied on CSC to provide him with Kosher food, and that the CSC had breached its obligations to him when it switched food suppliers for one whose Kosher options were either inedible or nutritionally inadequate. In short, Dr. Fabrikant alleged that the CSC was discriminating against him on the basis of his religion.
[19] Although Dr. Fabrikant’s statement of claim in Fabrikant v. CSC did not assert a cause of action, I concluded that it could, if Dr. Fabrikant alleged a basis on which he was entitled to equal treatment, such as s. 15 of the Canadian Charter of Rights and Freedoms. On the jurisdictional issue, I held that I could not preclude the possibility that a more detailed statement of claim could establish that all key decisions about the type and quantity of food served to Jewish inmates such as Dr. Fabrikant were made in Ottawa. I accordingly granted Dr. Fabrikant leave to amend his pleading to fix its deficiencies.
[20] The situation here is different. Dr. Fabrikant has not alleged that the defendant has any legal duty, nor has he suggested any basis for a legal duty in his submissions. He has not alleged any fact, or said anything in his submissions, that could attract this Court’s jurisdiction. His allegations in fact suggest the opposite, insofar as his complaint is specific to him. There is no indication that the deficiencies in his statement of claim can be remedied through an amendment.
[21] Given the lack of any real or substantial connection between Dr. Fabrikant’s complaint in this instance and Ontario or between the subject-matter of his complaint and Ms. Kelly, I conclude that he has elected to file an action against her in this court for strategic reasons.
[22] I find that the action is frivolous because it cannot possibly succeed. It is vexatious, because it was designed to sanction Ms. Kelly after she ignored Dr. Fabrikant’s messages to her. It is an abuse of process because Dr. Fabrikant is seeking to re-litigate the issue of the electricity to his cell after his complaints within the prison system were not resolved to his liking. It is also abusive because Dr. Fabrikant took the action in this court, despite any real and connection to Ontario, to circumvent the restrictions in the Quebec Superior Court and Federal Court of Canada.
[23] The frivolous, vexatious, and abusive nature of the action is such that it would be unjust to require the defendant to bring a motion to dismiss. The action is dismissed, without costs, pursuant to r. 2.1.01.
Justice Sally Gomery
Date: July 5, 2022
COURT FILE NO.: CV-22-88843
DATE: 05/07/2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. V.I. FABRIKANT
Plaintiff
-and-
A. KELLY, CSC COMMISSIONER
Defendant
REASONS FOR JUDGMENT
Justice Sally Gomery
Released: July 5, 2022
[^1]: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664 at para. 3.
[^2]: Chevalier v. Williams, 2022 ONSC 3847, at para. 9.
[^3]: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733; Khan v. Krylov & Company LLP, 2017 ONCA 625; and Khan v. Law Society of Ontario, 2020 ONCA 320.
[^4]: Gao v. Ontario WSIB, 2014 ONSC 6100, at para. 9.
[^5]: Gao, at para. 12.
[^6]: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 8.
[^7]: Fabrikant v. A.G. Canada, 2020 ONSC 7799 (“Fabrikant v. CSC”).
[^8]: D’Souza v. Landlord and Tenant Board, 2019 ONSC 7250 at para. 14.
[^9]: Ricard v. Canadian National Railway Co., [2002] O.J. No. 3832 at para. 2.
[^10]: Babington-Browne v. AG Canada, 2016 ONCA 549, at para. 19.