COURT FILE NO.: CV-21-332
DATE: 2022/07/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sule Kisac, a woman, Claimant
AND:
Derrick Cheung, a man, acting as President and Chief Executive Officer of Defence Construction Canada (1951), Defendant
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Russell MacCrimmon, for the Defendant (Moving Party) Sule Kisac, representing herself, Plaintiff (Responding Party)
HEARD: April 26, 2022
DECISION AND REASONS
[1] This is a motion by the defendant to dismiss this proceeding because it is frivolous, vexatious, discloses no legal cause of action and fails to comply with the Rules of Civil Procedure.
[2] The motion was on a list in Belleville and took place by videoconference. At the conclusion of argument, the responding party (Sule Kisac) asked that I carefully read all of her material before rendering a decision. I have now done so.
[3] The plaintiff, or as she prefers to be called and has styled herself in the statement of claim, “the claimant”, is an employee of Defence Construction (1951) Limited which is a federal Crown corporation. She is suing because of the Covid-19 Vaccination and Prevention Policy that required her to attest to her vaccination status and to be fully vaccinated or be put on involuntary leave.
[4] While the basis for the claimant’s grievance against her employer is clear, she has chosen to pursue this matter, not by suing the employer, but instead by suing the CEO, Derrick Cheung. There is nothing in the statement of claim which would sustain a private right of action against an officer of the corporation acting in that capacity. In addition, the name of the corporation is incorrect as it is shown as Defence Construction Canada (1951) and not by its proper legal name.
[5] These are not insurmountable problems. The title of the proceedings could be amended to properly name the corporation. The statement of claim could be amended to plead individual tortious acts (if any exist) of Mr. Cheung in his personal capacity if in that capacity he committed an independent tort or was acting outside his capacity as CEO of the employer. He cannot be sued individually for breach of an employment contract between the corporation and the plaintiff.[^1] In recognition of the fact that the claimant is representing herself, Mr. McCrimmon suggested voluntary amendments before bringing this motion, but the claimant prefers to continue with the statement of claim as it is currently drafted.
[6] As the evidence discloses, the claimant has been advised of these and other defects in the statement of claim, but she has declined to amend the claim or to sue the employer. Instead, in her responding materials, the claimant uses pseudo legal arguments and language of the type that has been characterized by the courts as “OPCA litigation”.[^2] A few extracts from her “answer to the motion” will provide the flavour of her documents.
- I, Sule of the Kisac family, a living woman, in the land of Belleville, Ontario Canada:
I affirm that I am fully competent and in my statement herein following 221 pages, I am telling the truth to the best of my knowledge and belief, so help me God;
On this the 12th day of April 2022
While filing to Court, Defendant attempted to engage the “persons” by posting capital letters, misrepresenting I, Sule, a living woman and the defendant, Derrick, a living man as a statutory creatures, causing “joinder”; this is “personage” and is bringing a false claim in Court;
I am hereby rebutting the presumption that I am acting in the role of person SULE KISAC, however I am the rightful controlling agent, beneficiary and executor for SULE KISAC; I am not it; I do not consent to be included in the claim as a statutory person, I Sule Kisac, am a woman with flesh and blood, arms and legs, a conscious mind, a spirit and life; I hereby declare being a sentient woman, I live within the Sovereign Common Law Jurisdiction and require a Court of Record in Common Law;
I am not a civilian as I am not skilled or versed in civil law. Defendant brought this motion before the court relying on “Rules of Civil Procedures”; these rules may apply to Defendant, but I believe that “Rules of Civil Procedures” doesn’t apply to I or have jurisdiction over I, a flesh and blood woman; I am not aware of any consent or contract; I require whoever claims the “Rules of Civil Procedures” apply to I or have jurisdiction over I, to produce the evidence (via ownership, contract, consent or verified claim from man or woman) or rapidly correct the record. I hereby notify that I intend to hold people liable if the record is not corrected [ExhibitD].
[7] In quoting those paragraphs I do not intend to ridicule or belittle the claimant. She is entitled to be treated with respect and she is entitled to her own beliefs and opinions. What she cannot do however is to invent legal theories, pick and choose what rules and processes she is willing to follow or seek to entangle the defendant and the court in legally meaningless and confusing arguments.
[8] This court administers the law of Canada and of Ontario which includes the common law as well as statute law. It does so in accordance with recognized legal principles and rules. Of particular importance for purposes of this motion is that civil proceedings in Ontario are governed by the Rules of Civil Procedure.[^3] The claimant was able to determine how to launch a lawsuit by consulting those rules and by completing a statement of claim in Form 14A prescribed by those rules. She cannot pursue litigation before this court and then assert that the rules which govern that litigation do not apply to her.
[9] In the statement of claim, the claimant identifies herself as educated and experienced. She identifies herself in paragraph one of the claim as having a “Batchelor of Science degree in Architecture, has a Computer Programmer diploma, holds a LEED AP Building Design + Construction credential and is an independent designer under the Ministry of Municipal Affairs and Housing.” She goes on to say that she has “more than 25 years’ experience in the Construction Industry, with 20 years in Contract Management”. In paragraph three of the claim, she states that she was employed by Defence Construction Canada (1951) since January 31, 2011 and had “been managing Construction Contracts worth millions of dollars for the Crown, with delegated signing authority to make changes to contracts assigned to her up to $60,000 per change order”.
[10] In the claim, she asserts that a mandatory vaccination policy is a fundamental change to the terms of employment as is requiring an employee to submit personal health information. She asserts that she has the right not to accept these changes to her employment. She further states that being placed on an indefinite unpaid leave of absence is no different than being placed on a layoff and that unilateral unpaid leaves of absence are a material change to the terms of employment, entitling the claimant to treat the employment contract as breached. These particular provisions of the pleading are recognizable as a cause of action for wrongful dismissal or constructive wrongful dismissal against her employer. Unfortunately, the claimant refuses to sue her employer and is instead determined to proceed against Mr. Cheung.
[11] There are other difficulties with the statement of claim. In many instances it contains opinions or theories or evidence. Rule 25 requires that every pleading contain a concise statement of the material facts on which the party pleading relies for the claim or defence but not the evidence by which those facts are to be proved. Conclusions of law may only be pleaded if the material facts supporting such a conclusion are pleaded. There is little point parsing each paragraph of the claim, however, if it is fundamentally flawed by suing the wrong person or a non-existent legal entity.
[12] Under these circumstances I am granting the defence motion to strike the statement of claim and to stay the action. As the defendant states, the plaintiff is still an employee. She remains at liberty to pursue the claim that the vaccine mandate constitutes a breach of her employment contract. She may do so in an action against her employer. I would advise her to obtain legal advice before doing so.
[13] In the event the defendant seeks costs, I will receive written submissions within the next 15 days. The claimant will have 15 days after that to respond to the request for costs. If no costs are requested within the next 15 days, there will be no order as to costs.
Justice C. MacLeod
Date: July 5, 2022
COURT FILE NO.: CV-21-332
DATE: 2022/07/05
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sule Kisac, a woman, Claimant
AND:
Derrick Cheung, a man, acting as President and Chief Executive Officer of Defence Construction Canada (1951), Defendant
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Russell MacCrimmon, for the Defendant (Moving Party) Sule Kisac, representing herself, Plaintiff (Responding Party)
DECISION AND REASONS
Regional Senior Justice C. MacLeod
Released: July 5, 2022
[^1]: ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995) 1995 CanLII 1301 (ON CA), 26 O.R. (3d) 481 (C.A.), leave to appeal to S.C.C. refused [1996] 3 S.C.R. viii (note) (S.C.C.); Laurier Glass Ltd. v. Simplicity Computer Solutions Inc., 2011 ONSC 1510
[^2]: See Meads v. Meads, 2012 ABQB 571 in which the Alberta Court of Queen’s Bench describes the tactics of “Organized Pseudolegal Commercial Argument Litigants”. See also Ali v. Ford, 2014 ONSC 6665 and R. v. Wallen, 2020 ONCJ 652 in which the courts of Ontario have adopted the term.
[^3]: RRO 1990, Reg 194 as amended to April 18, 2022