Court File and Parties
COURT FILE NO.: CV-15-532625-00CP DATE: 20231026 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: DR. VALERY I. FABRIKANT Applicant
- and - CHRISTOPHER BRAZEAU and DAVID KIFT Plaintiffs/Respondents
- and - ATTORNEY GENERAL OF CANADA Defendant/Respondent
Proceeding under the Class Proceedings Act, 1992
Valery Fabrikant, self-represented Applicant HEARD: In writing
PERELL, J.
Reasons for Decision
[1] This is Dr. Valery Fabrikant’s second application as a claimant in class proceedings that are in their post-judgment phase. The post-judgment phase involves a distribution scheme and a protocol for individual issues determinations including trials.
[2] After judgments in Ontario and in Québec, in which the Defendant Canada was found liable with respect to breaches of the Canadian Charter of Rights and Freedoms, concerning the use of administrative segregation in Canadian penitentiaries, there are three class actions that are being governed by a very intricate and complex judgment distribution scheme and individual issues protocol.
[3] I am case managing the Ontario actions, namely Brazeau v. Canada (Attorney General) and Reddock v. Canada (Attorney General). Justice Chantal Masse of the Superior Court of Québec is case managing the Québec class action known as Gallone c. Canada (Attorney General).
[4] The Applicant, Dr. Valery I. Fabrikant is a Class Member. He has been imprisoned since 1992. He is currently imprisoned at Archembault Jail in Sainte-Anne-des-Plaines, Québec.
[5] In June of 2023, Dr. Fabrikant brought an application in the Brazeau Action. That was his first application. I dismissed the application in reasons reported as Brazeau v. Canada (Attorney General), 2023 ONSC 5073. For reasons that will become apparent, I will repeat what I wrote at paragraphs 13 to 16 of my Reasons for Decision in Dr. Fabrikant’s first application.
Although I shall deal with Dr. Fabrikant’s motion on its merits, it should be and shall be dismissed on the grounds of lack of standing. The essence of Dr. Fabrikant’s motion is about the fairness, interpretation, or application of the court-approved Distribution and Individual Issues Protocol and about his assessment of what the scope and the benefits to Class Members under the Distribution and Individual Issues Protocol ought to be. The Class Members were represented by Representative Plaintiffs and by Class Counsel and since Dr. Fabrikant did not opt-out of the class action, he is bound by the outcomes of the litigation. Dr. Fabrikant has no standing to make submissions.
Further, although Dr. Fabrikant is a proper claimant under the Protocol of Brazeau, Reddock, and Gallone, it is also not clear that he has standing in the Brazeau action in particular, which is the action in which he has brought his motion.
In paragraph 12 of his Reply submissions, Dr. Fabrikant states: “Sec. 1.9 of the Protocol states: Nothing in this Protocol precludes the parties from applying for an amendment to the Protocol”, so this is exactly what I am doing.
Dr. Fabrikant, however, has no mandate to apply for amendments to the Protocol; that mandate rests with the Plaintiffs, Messrs. Brazeau and Kift, and the Defendant, the Attorney General of Canada.
[6] After releasing my decision, Dr. Fabrikant brought another motion. I set it out in full below, with the emphasis added by Dr. Fabrikant:
- Style of cause -
I have filed my claim against the defendant back in the fall of 2021. From that moment on, I have become a party. Two years have passed and, as of today, I still have not received the Tier B discovery. It was finally mailed to me on paper and arrived to jail on September 13, 2023. As of today, it was still not delivered to me. I was called to the Visit Department on September 15, 2023, but I refused to go, because I do not feel safe there. In addition, jailers deliver mail to every prisoner to his cell, so they have no right to refuse to deliver it to me.
I have informed Mr. S. Zamora, who is the Administrator at Epiqglobal, about the situation and he claims that he called jail over the telephone and could not talk to anyone. This is a lie: I asked my family to call jail and there is a telephonist answering every call. He also told me that he sent an e-mail to CSC (he refused to tell me whom exactly) and this CSC employee still did not respond to him.
I also asked Mr. Zamora to send me the Tier B discovery on a compact disk. He responded that he also cannot do it without the consent of the CSC, and yet again, CSC is not responding to him. This ridiculous situation lasts for months by now.
Back in 2022, I have requested documents, additional to Tier B discovery. Mr. Zamora told me that CSC is refusing to provide them, claiming them to be irrelevant. I offered to Mr. Zamora to arrange discussion of this subject, but he told me that CSC did not want to discuss the issue and that he was powerless to overrule CSC.
It is clear from the above that Mr. Zamora does behave like a servant of CSC, rather than behaving like an independent organization.
As of today, I still have not been able to file the initial documents to pursue my Track 3 procedure. The Court intervention is required.
If an affidavit is needed, please consider the above as an affidavit.
THEREFORE, may it please the court to: (a) GRANT this motion. (b) REPRIMAND the company Epiqglobal for failing to do its job. (c) ORDER Correctional Service Canada (CSC) to provide the Applicant with all the documents required by him for the Track 3 proceedings on a compact disk. (d) The whole with costs.
[7] As should be noted, in making this second application, Dr. Fabrikant emphasizes that “I have filed my claim against the defendant back in the fall of 2021. From that moment on, I have become a party.”
[8] This statement, however, reveals that Dr. Fabrikant does not understand his legal rights nor the nature of class proceedings.
[9] The truth of the matter is that Dr. Fabrikant became a “party” long before the fall of 2021. He became a “party” when he did not opt out as a class member of the Brazeau v. Canada (Attorney General), Reddock v. Canada (Attorney General), or Gallone c. Canada (Attorney General).
[10] Dr. Fabrikant brings his two applications in Brazeau v. Canada (Attorney General). That action was certified as a class action in 2016. [1] Thus, Dr. Fabrikant has been a “party” since 2016 and he did not become one in 2021. By 2021, he already was a “party”.
[11] When a person is a “party” to a class proceeding by becoming a class member, he or she loses “litigation autonomy.”
[12] A class proceeding is a representative proceeding, which means that it is a Representative Plaintiff that instructs Class Counsel, the lawyer representing the class.
[13] If a person opts out of a class proceeding, then he or she retains litigation autonomy and he or she is free to sue the defendant outside of the class proceeding. If a person does not opt out, then he or she as a class member does not instruct Class Counsel. Class Counsel takes instructions from the representative plaintiff.
[14] If a person does not opt out and becomes a class member, then he or she is bound by the outcome of the class action, typically a settlement or less often a summary judgment or a trial judgment on the merits.
[15] Thus, Dr. Fabrikant is bound by the 2019 summary judgment decision in Brazeau v. Canada (Attorney General), which judgment was varied by the Court of Appeal. [2]
[16] And Dr. Fabrikant is bound and governed by the very intricate and complex judgment distribution scheme and individual issues protocol that sets out his rights to be a claimant in the post-judgment phases of the Brazeau, Reddock, and Gallone class actions. [3]
[17] In so far as the design and governance of the Distribution and Individual Issues Protocol is concerned, Dr. Fabrikant remains a class member represented by the Representative Plaintiffs, Christopher Brazeau and David Kift, and by Class Counsel. Dr. Fabrikant has no standing to bring applications about the fairness, interpretation, or application of the court-approved Distribution and Individual Issues Protocol.
[18] Therefore, I must dismiss Dr. Fabrikant’s second application for the same reasons that I dismissed his first application.
[19] Class Counsel and the Attorney General of Canada will receive a copy of these Reasons for Decision. They will become aware of his grievances.
[20] For the above reasons, Dr. Fabrikant’s motion is dismissed. There shall be no Order as to costs.
Perell, J. Released: October 26, 2023
Citations
[1] Brazeau v. Attorney General (Canada), 2016 ONSC 7836 (consent certification).
[2] Brazeau v. Attorney General (Canada), 2019 ONSC 1888 (summary judgment), varied 2020 ONCA 184 and Brazeau v. Canada (Attorney General), 2020 ONSC 3272.