Court File and Parties

COURT FILE NO: CV-20-82526 DATE: 2023/07/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary Sauve, Plaintiff AND His Majesty the King in Right of Canada, Attorney General of Canada, Patrick Bendin, Agnieszka Zagorska and Alexander Guay, Defendants

BEFORE: The Honourable Justice C.T. Hackland

COUNSEL: The Plaintiff, in person Mathew Johnson and Christian Halt, for His Majesty the King in Right of Canada, Defendant

HEARD: February 2, 2023 (by zoom videoconference)

Supplementary Endorsement

[1] By endorsement dated May 25, 2023, this court dismissed a motion brought by the Plaintiff for certain procedural relief. The court’s reasons can be found at 2023 ONSC 3140 and should be read together with the present endorsement. Through inadvertence on the court’s part, the endorsement did not deal with the Defendant’s cross-motion which was argued at the same time as the Plaintiff’s motion and accordingly this supplementary endorsement is directed to the cross-motion.

[2] The Defendant’s cross-motion was for an order striking the statement of claim in its entirety, without leave to amend on four grounds:

• The claim is vexatious, frivolous, or an abuse of process (r. 21.01(3)(d));
• The claim is statute barred (r. 21.01(1)(a));
• The Statement of Claim discloses no reasonable cause of action (r. 21.01(1)(b));
• The Statement of Claim contains claims related to employment that are subject to a grievance process and therefore this Court should decline jurisdiction over them (rr. 21.01(3)(a) and 21.01(3)(d)).

[3] I intend to deal only with the first ground, as it is manifestly made out on the record before this court. The Defendants submit the Plaintiff’s action is an attempt to re-litigate matters that he originally brought before the Federal Courts and closely related matters. These matters have been conclusively decided against the Plaintiff and are therefore res judicata and, as a whole, are an abuse of process.

[4] The Plaintiff was an RCMP officer and became involved in an intimate relationship in his personal life, leading to a paternity suit. He was later charged with two counts of criminal harassment and two counts of uttering threats. He spent five months in remand custody before trial. He was convicted of both counts of criminal harassment, acquitted of the charges of uttering threats, and sentenced to time served and three years probation. The Plaintiff’s conviction appeal was subsequently dismissed, as was his application for leave to appeal to the Supreme Court of Canada. He was discharged from his employment by the RCMP in 2011 following an internal discipline procedure.

[5] The Plaintiff subsequently brought eight actions, two applications for judicial review, and twelve appeals against the federal Crown in the Federal Court. Of the actions, three were dismissed after trials, two were struck, and one was dismissed for delay after status review. The Plaintiff discontinued the remaining two actions.

[6] The first action was filed on October 2, 2006, and the final action resolved on March 21, 2016, by way of a discontinuance. The final appeal related to his actions was dismissed on April 26, 2016. The applications for judicial review were collectively dismissed on May 5, 2017, and his appeal of those decisions was dismissed on May 25, 2018. None of the Plaintiff’s substantive claims against the Attorney General of Canada were successful.

[7] The Defendants rely on the principles of res judicata and the collateral attack doctrine and the broader principle of abuse of process. These legal rules are designed to preclude the re-litigation of matters previously decided by the courts or closely related issues that a Plaintiff could reasonably be expected to have raised as part of their original complaint (cause of action estoppel).

[8] In Salasel v Cuthbertson, 2015 ONCA 115, the Court of Appeal explained that re-litigating a case that has already been decided by a court of competent jurisdiction was a “common example” of an action where “there is clearly no merit” and may therefore be classified as frivolous, vexatious or an abuse of process pursuant to rule 21.01(3)(d). This rule is invoked only in the clearest of cases, and requires “a hard look at the factual background, and especially the position and conduct of the parties.” Chief Justice Crampton observed in Sauve v Canada, 2014 FC 119, “…it is an abuse of process for a Plaintiff to initiate multiple legal proceedings based on the same facts and circumstances…”.

[9] The Defendant’s position is that the issues the Plaintiff seeks to raise in his statement of claim in the present action have been previously raised and adjudicated in the Federal Court in one or more of the multiple proceedings he pursued there against the Attorney General of Canada (i.e. the 8 actions, 2 applications, and 12 appeals).

[10] In support of this proposition, counsel for the Attorney General have placed before the court a detailed chart listing the numerous Federal Court proceedings, the nature of the allegations advanced by the Plaintiff in each and the outcome of the proceeding and date of decision. It is argued that this information shows that virtually all the allegations in the current statement of claim are to be found in previous Federal Court proceedings. Furthermore, in Appendix A to the Attorney General’s factum, there is a further chart providing a paragraph-by-paragraph comparison between the present statement of claim and the Plaintiff’s prior Federal Court proceedings. Having reviewed this extensive material, I am of the view that the Defendant has established its submission that the Plaintiff is attempting to raise again matters he previously raised in one or more Federal Court proceedings. In the court’s opinion, this is manifestly an abuse of process.

[11] The Plaintiff’s statement of claim herein is a claim for monetary damages based on allegations against the RCMP of conspiracy to cause him mental and physical injuries by engaging in tortious conduct such as malicious prosecution, negligence and defamation, and violations of his employment rights. Appendix A tracks the prosecution of these same claims in prior Federal Court proceedings.

[12] I will deem Appendix A to the Attorney Generals factum and the chart at paragraph 25 of the said factum, as exhibits A and B respectively on this motion. These exhibits should be viewed together. I find as a fact that the information displayed in these charts is accurately summarized. The court would also note from the dates of when these matters were raised in Federal Court, they were, at the date this action was commenced (January 14, 2020) long since statute barred, as the Attorney General points out.

[13] For the above reasons, the Attorney General’s cross motion to strike the statement of claim in the present action as constituting an abuse of process is allowed. The statement of claim is struck without leave to amend. I am not disposed to award costs against this Plaintiff.

Justice Charles T. Hackland Date: July 13, 2023