COURT FILE NO.: CV-23-009 (Napanee)

DATE: 20230727

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JEROME LYNCH, Plaintiff

AND:

ATTORNEY GENERAL OF CANADA, Defendant

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Jason E. Bogle, for the plaintiff

Heather Kennedy, for the defendant

HEARD: 18 July 2023, at Napanee

ENDORSEMENT

[1] The defendant brings a motion to strike the plaintiff’s claim on the basis that it fails to establish a reasonable cause of action against the defendant, asserting that the claim is devoid of material facts necessary to support the elements of the claim; and, that it is frivolous, vexatious or otherwise an abuse of process of the court.

[2] I observe at the outset that the plaintiff’s latest attempt at pleading - an amended amended statement of claim amended on 15 June 2023 - contains a number of typographical, spelling and grammatical errors. More significantly, however, it includes a jumble of bald allegations, evidence, causes of action and factual allegations.

[3] The defendant argues that the pleading is beyond the point of redemption or recovery.

[4] While I agree that the pleading cannot stand in its present form, it is, nevertheless, possible to distill at least some viable claims from what has been pleaded to date. In my view, the plaintiff should be given an opportunity to reformulate a pleading that is acceptable.

[5] Pleadings enable the parties and the court “to ascertain with precision the matters on which parties differ and the points on which they agree; and thus to arrive at certain clear issues upon which both parties desire a judicial decision”: D.B. Casson & I.H. Dennis, eds., Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 21^st ed. (London: Stevens & Sons, 1975) at 75-76.

[6] As the British Columbia Court of Appeal recently explained in Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362, at para. 23:

For the court, pleadings serve the ultimate function of defining the issues of fact and law that will be determined by the court. In order for the court to fairly decide the issues before them, the pleadings must state the material facts succinctly [references omitted]. They must be organized in such a way that the court can understand what issues the court will be called upon to decide [references omitted].

[7] From the amended amended statement of claim, and with the assistance of the submissions made by counsel, the factual allegations underpinning the plaintiff’s claim appear to me to be as follows.

The Parties

[8] The plaintiff was for many years incarcerated at several federal institutions. On 21 June 2012 he had been designated a dangerous offender following several sexual assault convictions.

[9] The defendant is sued in its representative capacity on behalf of Correctional Services Canada.

[10] On 30 September 2019, Mr. Lynch’s institutional files held by Correctional Services Canada (Case Management, Admissions and Discharge, Employment, Education and Training, Visits and Correspondence, Discipline and Disassociation, Preventative Security, Healthcare and Mental Health) were taken to Kingston airport in anticipation of Mr. Lynch’s transfer to Springhill Institution. Mr. Lynch was unable to complete the flight and was removed from the plane and escorted back to Collins Bay Institution in Kingston. However, Mr. Lynch’s files were lost. He was not formally notified of this until 4 January 2021, in a letter from Correctional Services Canada. That letter informed him that he was entitled to register a complaint with the Office of the Privacy Commissioner of Canada.

[11] Mr. Lynch subsequently registered a complaint with the Office of the Privacy Commissioner of Canada. He received a letter dated 6 July 2021, which largely repeated what had been said in the letter from Correctional Services Canada, and notified him that:

…[O]ur office has concluded that your personal information was lost in transit and that your complaint is well-founded.

[12] An appeal from Mr. Lynch’s designation as a dangerous offender, and the sentence imposed on 21 June 2012, was heard by the Court of Appeal for Ontario on 9 September 2021.

[13] On a date not pleaded, but while in custody and “awaiting his Appeal”, Mr. Lynch “suffered a slip and fall and was not brought to a hospital for medical treatment and assessment”.

[14] On 16 February 2022, the Court of Appeal allowed Mr. Lynch’s appeal, setting aside his designation as a dangerous offender, and instead designating him a long-term offender. The Court of Appeal sentenced Mr. Lynch to a custodial sentence of 6.5 years, to be followed by a period of ten years under a long-term supervision order (“LTSO”), and adding, in para. 67 of its decision reported at 2022 ONCA 136, that:

Pursuant to s. 759(6) of the Code, the sentence is deemed to have commenced on the date the appellant was sentenced by the sentencing judge, that is June 21, 2012. The appellant has served his determinate sentence and his LTSO will expire on December 19, 2022.

[15] At the time the Court of Appeal handed down its decision, Mr. Lynch was lodged at Bath Institution. The following day, he was transferred to a halfway house in Kingston where he remained under house arrest for 36 days until he was released on “standard release conditions”. In the meantime, however, it is alleged that he violated the conditions of the halfway house, as a result of which further charges have been laid against him.

[16] While a variety of different causes of action have been identified in the current pleading, the three core wrongs identified by the plaintiff as the basis for his claims are:

a. The slip and fall and the subsequent failure of the defendant to obtain timely medical attention for the plaintiff;

b. The loss of the plaintiff’s personal file; and

c. The failure to promptly implement the Court of Appeal’s decision (that failure allegedly resulting in Mr. Lynch being charged for breaching conditions which he should never have been subject to).

[17] As presently framed, the amended amended statement of claim contains headings of various causes of action followed by a mixture of bald allegations, superlatives, factual allegations, evidence, and even legal arguments.

[18] On a motion under Rule 21 of the Rules of Civil Procedure to strike out a pleading on the ground that it discloses no reasonable causes of action, the court is required to read the pleading generously in favour of the plaintiff, with allowances for drafting deficiencies. A claim should only be struck out if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17.

[19] For the reasons that follow, the amended amended statement of claim is struck out in its entirety, with leave to the plaintiff to deliver a fresh as amended statement of claim, but subject to certain limitations which I will set out.

[20] The causes of action pleaded in the amended amended statement of claim include misfeasance in a public office, unlawful conduct, conspiracy, conspiracy to injure, negligence, negligent supervision, intentional infliction of mental suffering, and intrusion upon seclusion. Rather than go through each of these seriatim, I will deal with the three core issues that I have identified and discuss the various causes of action which the current pleading attempts to attach to them.

The Slip and Fall

[21] The pleading does not identify when, where, or under what circumstances the slip and fall occurred. Records which might assist in pinpointing some of these details are said to have been included in the information that was lost. As that loss occurred on 30 September 2019, and the current action was not started until 31 January 2023, there could be limitation issues. Setting that to one side, at least for present purposes, there may be scope for a properly pleaded claim in negligence against the defendant if the circumstances of the slip and fall support allegations that the incident occurred as a result of the defendant’s negligence and that, as a consequence, the plaintiff suffered personal injuries.

[22] If the plaintiff wishes to continue to advance a claim for the personal injuries which he sustained as a result of a slip and fall, he should plead (to the fullest extent possible):

a. When the slip and fall incident occurred;

b. Where the slip and fall incident occurred;

c. What happened;

d. The duty of care that he says the defendant owed him;

e. Particulars of the defendant’s breach of its duty of care;

f. How and to what extent the plaintiff was injured as a result of the defendant’s breach; and

g. The damages suffered.

Loss of the Plaintiff’s Personal File

[23] Although the Office of the Privacy Commissioner of Canada concluded that Mr. Lynch’s personal information was lost in transit by Correctional Services Canada (“CSC”) and, accordingly, that his complaint against CSC was “well-founded”, no remedy is available under the Privacy Act for the breach that occurred.

[24] Mr. Lynch asserts that he is entitled to private law remedies, not only for the loss of highly sensitive personal information, but also for the way in which CSC dealt with the issue – i.e., not formally telling Mr. Lynch that his personal information had been lost until more than fifteen months later.

Unlawful Conduct Conspiracy

[25] In his pleading, Mr. Lynch alleges that employees of the defendant sought to keep the information concerning the loss of Mr. Lynch’s personal information from him “in a joint effort to limit liability and cover up the damage to the Plaintiff”. In doing so, he alleges that “members conspired in concert which prompted Mr. Lynch to make a formal complaint”. He alleges that employees of CSC “unlawfully obtained” his personal and confidential information and “released this information”, knowing that doing so would cause him injury. He asserts that, as a result, he has suffered mental anguish, insomnia, paranoia and flashbacks.

[26] The pleading does not describe with any sort of precision the parties to the alleged conspiracy, their relationship to each other, the alleged agreement between them to conspire, or the actions taken by CSC and its employees in furtherance of the conspiracy. Simply stating a series of events and alleging that they were intended to injure the plaintiff is insufficient to establish the elements of a civil conspiracy: Derenzis v. Johnson, 2022 ONCA 323, at para. 14.

Conspiracy to Injure

[27] Similar comments pertain to the allegation under the heading “Conspiracy to Injure” that there were no safeguards put in place to prevent the unauthorised access to the plaintiff’s private and confidential information.

Negligence

[28] Under the heading “Negligence” the plaintiff alleges that the defendant was under a duty of care to protect his private and confidential information and to protect him from “dangerous conditions” while serving time at CSC’s institutions. This duty was breached when CSC lost Mr. Lynch’s personal files.

[29] I do not perceive the defendant takes serious issue with the assertion that it owed the plaintiff a duty of care to safeguard his personal information and that, by losing his files, that duty was breached. That, indeed, is effectively the finding made by the Office of the Information and Privacy Commissioner. However, the defendant takes the position that the plaintiff cannot sustain a viable claim in negligence because it could not have reasonably foreseen any injury, psychological or otherwise, arising from the loss of the personal documents in question. In that regard, the defendant relies on the decision of Elliott J. in Mullins v. Canada, 2022 FC 1805, where, in a similar case involving the loss by CSC of a box containing the plaintiff’s sensitive personal information, it was found that CSC personnel could not reasonably have contemplated that the plaintiff would suffer personal injury in the form of serious trauma or illness for the loss of largely administrative health and related documents.

[30] Furthermore, the defendant argues that the lack of pleaded particulars as to how it breached its duty of care, or how the damages which the plaintiff alleges he suffered were caused by the breach, is a sufficient basis for striking the claim.

[31] Appreciating that in order to succeed in his negligence claim, Mr. Lynch will have to establish not only the breach of a duty of care owed to him in respect of his personal information but, also, that it was reasonably foreseeable that a consequence of such a breach would harm the plaintiff, I am not persuaded that, properly pleaded, it is plain and obvious that a claim for negligence in respect of the loss of Mr. Lynch’s personal file is bound to fail.

Intentional Infliction of Emotional Distress

[32] Mr. Lynch also asserts, in respect of the loss of his personal information, an intentional infliction by the defendant of emotional distress.

[33] The elements of intentional infliction of emotional distress are:

a. Flagrant or outrageous conduct;

b. Done with the intention of causing harm; and

c. Resulting in visible or provable illness.

[34] Superlatives aside, there are no plausible material facts pleaded by Mr. Lynch that would support a claim of intentional inflicting of mental distress. Taken at their highest, Mr. Lynch’s allegations about CSC’s failure to make timely disclosure and acknowledgment of the loss of his personal information do not, on any reasonable construction, rise to the level of “flagrant” or “outrageous” conduct. Furthermore, without additional particulars, the bald allegation that the defendant’s conduct “was calculated to harm the Plaintiff, specifically but not limited to the decision to avoid disclosure of the lost files” is insufficient to support the required element of intention to cause harm.

[35] I see no realistic basis upon which the tort of intentional infliction of mental distress arising out of the loss of the plaintiff’s personal information could be advanced and hence, the plaintiff will not be at liberty to try and resurrect such a claim going forward.

Intrusion upon Seclusion

[36] Finally, the plaintiff argues that the loss of his personal file has resulted in the tort of “intrusion upon seclusion”. This tort was recognised by the Court of Appeal for Ontario in Jones v. Tsige (2012) 108 O.R. (3d) 241, 2012 ONCA 32. Sharpe J.A. accepted, at para. 70, the following formulation of the tort of intrusion upon seclusion:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

[37] Sharpe J.A. went on to explain, at para. 71:

The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would…include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

[38] Sharpe J.A. continued, at para. 72, that a claim for intrusion upon seclusion “will arise only for deliberate and significant invasions of personal privacy” but recognised that such intrusions might include one’s financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

[39] The plaintiff alleges that CSC intentionally stored his file in a manner in which unauthorised parties could access or retrieve information at any time without any controls on access. These general allegations do not appear to be directly related to the loss of the files in the course of their transportation to the Springhill Institution. Furthermore, the Concise Oxford English Dictionary defines “intrusion” as the action of intruding. The verb “intrude” means to come in to a place or situation where one is unwelcome or uninvited; or to introduce into or enter with adverse effect. The plaintiff invites me to give a liberal and generous gloss to the concept of intrusion, so as bring within the tort of “intrusion upon seclusion” a loss of the plaintiff’s admittedly highly personal information, without any corresponding allegation of any third party having received or viewed that information.

[40] I am not able to contort the concept of intrusion in the manner suggested by the plaintiff. In my view, his allegations, however artfully pleaded, cannot plausibly sustain the application of the tort.

The Aftermath of the Appeal

[41] For 36 days following his successful appeal, Mr. Lynch alleges that he was held in a halfway house under house arrest conditions. He claims this was an unlawful infringement of his liberty and a violation of the Court of Appeal’s Order.

[42] In argument, it was acknowledged that following his successful appeal, Mr. Lynch would have been subject to conditions for long-term supervision provided in the Corrections and Conditional Release Act, S.C. 1992, c. 20. While the amended amended statement of claim makes reference to this Act, it does not contain any particulars of how the Act was applied or not applied (or in what manner any obligations owed by the defendant to the plaintiff were breached). Given that lack of particularity, the various causes of action associated with what happened during that 36-day period are, essentially, meaningless.

[43] I do not, at this juncture, pass judgment upon whether any failure to comply with the Corrections and Conditional Release Act, or the regulations made thereunder, could give rise to a viable cause of action. That said, unless the plaintiff provides a pleading with sufficient particulars of alleged duties owed to him by the defendant following the Court of Appeal’s decision, no further assessment of the tenability of such claims can be made.

[44] I should add that there is no complaint against the defendant in respect of anything that may have occurred after a determination was made to place Mr. Lynch under “standard release conditions” which occurred 36 days after the Court of Appeal’s decision.

Disposition

[45] As previously indicated, the statement of claim is struck out. The plaintiff is at liberty to deliver a fresh as amended statement of claim in relation the three core incidents that have been identified, limited as follows:

a. In the case of the slip and fall claim, and the loss of Mr. Lynch’s personal information, only the tort of negligence (including any vicarious liability on the part of the defendant for its servants or agents) may be pleaded as a cause of action.

b. In the case of the conditions and restrictions on release, the plaintiff is at liberty to deliver a properly particularised pleading with material facts that, if proven, would support whatever causes of action are said to flow therefrom.

[46] The defendant remains at liberty to move to strike all or part of the fresh as amended statement of claim which fails to conform with this endorsement or otherwise violates the rules regarding pleadings. Prior to any further such motion being scheduled, the moving party should, however, request a case conference with me via the Trial Co-ordinator at Napanee (Tina.Wood@ontario.ca).

Costs

[47] This motion was necessitated as a result of the problems that I have discussed above in respect of the amended amended statement of claim. The defendant seeks costs, on a partial indemnity basis, in amount to $7,418.35.

[48] Having regard to the factors set out in Rule 57.01 of the Rules of Civil Procedure and the overarching principle of proportionality, the plaintiff shall pay the defendant costs of the motion, in the cause, fixed in the amount of $7,000.

Mew J.

Date: 27 July 2023