COURT FILE NO.: CV-21-87967
DATE: 2023-12-20
SUPERIOR COURT OF JUSTICE
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B E T W E E N:
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PRANOY CHOWDHURY
Plaintiff
- and -
15 HIS MAJESTY THE KING IN RIGHT OF ONTARIO Defendant
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R E A S O N S F O R D E C I S I O N
BEFORE THE HONOURABLE JUSTICE P.E. ROGER
on Thursday, November 23, 2023, at OTTAWA, Ontario
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30 APPEARANCES:
P. Chowdhury
Self-Represented
E. Owens
Counsel for the Defendant
ONTARIO COURT OF JUSTICE TABLE OF CONTENTS
T A B L E O F C O N T E N T S
REASONS FOR DECISION: Page 1
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Legend
[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) - Indicates preceding word has been spelled phonetically.
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THURSDAY, NOVEMBER 23rd, 2023.
…COURT OPENS.
…COURT PROCEEDINGS RECORDED BUT NOT TRANSCRIBED AT
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10 R E A S O N S F O R D E C I S I O N
ROGER, J. (Orally):
The Defendant, who I will refer to as Ontario,
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brings this motion seeking to strike the
Plaintiff’s Fresh as Amended Statement of Claim that I will refer to as the pleading, on the basis that it discloses no reasonable cause of action,
20 under Rule 21.01(1)(b), of our Rules of Civil Procedure, and that it is frivolous, vexatious, or an abuse of process under Rule 21.01(2)(d). During oral submissions, Ontario focused its arguments on
Rule 21.01(1)(b).
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In November 2021, the Plaintiff started this action against Ontario, challenging Ontario’s Proof of Vaccination requirements. The Plaintiff has
30 amended his Statement of Claim multiple times, with an Amended Statement of Claim in April 2022, an Amended Amended Statement of Claim in June 2022,
and the present, Fresh as Amended Statement of Claim issued on April 28th, 2023.
The current pleading is almost 90 pages in length.
5 It makes many allegations, including that Ontario’s Proof of Vaccination requirements violated sections 7, 8 and 15(1) of the Canadian Charter of Rights and Freedoms, sections 1, 10(3), 11, and 13 of
Ontario’s Human Rights Code, and, as well, section
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10(1) of the Healthcare Consent Act. The pleading seeks monetary damages under section 24(1) of the Charter for allegations including undue pressure, compulsion, privacy violation, mental distress,
15 self-respect, and for the cost of gym equipment and, as well, for punitive damages. The Plaintiff
also makes claims on behalf of various groups, including youth, young males, those with prior
COVID infection, parents of children 12 years old
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and older, people who are black, who are of Latin
American origin and others. The Statement of Claim also takes issue with the policies and practices of entities that are not named as parties, including
25 The Law Society of Ontario, universities, private
businesses, municipalities, and others.
Ontario defended on December 17, 2021, and brought an unsuccessful motion to have this matter heard
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together with a Toronto matter. Ontario also provided some documentary discovery to the
Plaintiff. In August 2023, Ontario brought this motion.
5 The test on a motion to strike is whether it is plain and obvious that the proceeding has no reasonable prospect of success. Evidence is not admissible on a motion to strike. The Plaintiff’s
facts, mentioned in the pleading, are taken to be
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true for the purposes of this motion. The purpose of this rule is to eliminate hopeless claims and this rule obviously should be used with care and limited to those cases where it is plain and
15 obvious. Furthermore, claims must be read with a forgiving eye for drafting deficiencies and the
novelty of a cause of action is not determinative.
The Plaintiff argues that Ontario delayed in
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bringing this motion, did not seek leave prior to
bringing this motion, and that this motion should be dismissed on these grounds alone. He also argues that his pleading is not deficient, and that
25 it raises valid causes of action. He argues, as
well, that facts are very much in dispute and cannot be resolved on such a motion without evidence, and that this is a novel claim, dealing with unsettled law, which should be allowed to
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proceed.
During his oral submissions to the Court, Mr. Chowdhury pointed to evidence he says supports his arguments, and to the paragraphs of his pleading,
5 he argues disclose valid claims. He explained that he named others in his pleading because they relied on Ontario’s encouragement to continue their vaccination requirement longer than required, or
their vaccination requirement longer.
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He argues, alternatively, that the following paragraphs, at least disclose valid claims: paragraphs 12, 46 to 69, 139, and 163 to 164. As
15 indicated, this is only an alternative argument. His arguments include that these alternative
paragraphs sufficiently disclose how people were impacted, how it violated his rights, how his age
group was more at risk, and how his rights were
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violated.
Many allegations and arguments are raised by Mr. Chowdhury in his pleading and in his factum and
25 during his oral presentation. I will attempt to
regroup these arguments by category, or subject matter, and will address them in turn.
Dealing firstly with the argument of delay, Mr.
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Chowdhury is correct that a Rule 21 motion must be brought promptly, and that failing to do so may
result in the motion being dismissed. However, this depends on the circumstances, and in this case, it is reasonable for Ontario to have brought
5 the motion at this time, and leave was not required for them to do so.
Ontario tried to have this action decided together with a not dissimilar, Toronto application, and
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also allowed the Plaintiff many opportunities to amend his Statement of Claim. Ontario’s consenting to these many amendments was reasonable and avoided unnecessary motions on that topic. Ontario’s
15 defence remained constant that these many amended versions of the Statement of Claim did not disclose
a reasonable cause of action. The Statement of Claim was amended frequently, and the last, or the
current version, was amended in April 2023. This
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motion was brought promptly thereafter. Delay is
therefore not a relevant factor in the circumstances of this case or is sufficiently explained by the above.
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Next, I will deal with the claims relating to section 7 of the Charter. Under section 7, the right to life is engaged when the law or state action imposes death or an increased risk of death,
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and the right to liberty includes freedom from physical restraint and protects fundamental
personal decisions, such as the right to refuse medical treatment and to make reasonable medical choices without threats of criminal prosecution.
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The Plaintiff remains unvaccinated and does not allege that he faced prosecution or related sanctions for this choice. The Proof of Vaccination requirement did not compel him to
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receive the vaccine, the COVID vaccine, or did not endanger his health or life.
The right to liberty under section 7 does not mean
15 unconstrained freedom, and this right is not engaged by the choice to attend any of the
businesses or organizations that were subject to the Proof of Vaccination requirements. This has
previously been decided by this Court. See, for
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example, in Harjee v. Ontario, 2022 ONSC 7033, at
paragraph 73 and in Banas v. HMTQ, 2022 ONSC 999, at paragraph 22. There is, therefore, no reasonable prospect that the Plaintiff’s choice to
25 engage in various activities, as he claims, would
meet the threshold required to engage section 7 liberty interests.
The Plaintiff’s pleading also does not contain
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material facts to support that his section 7 security of the person interest was engaged. His
pleading does not establish that the proof of vaccination requirement had a serious and profound effect on his physical or psychological integrity,
5 or that it interfered with an individual interest of fundamental importance. Rather, it establishes that he always remained in control of his bodily integrity, free from state interference, because of
his choice to remain unvaccinated. The right to
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security of the person does not protect from the ordinary stresses and anxieties that a person of reasonable sensibility can suffer because of government action. As a result, assuming the facts
15 pleaded as true, it is nonetheless plain and obvious that the pleading discloses no reasonable
prospect of success relating to any breach of section 7 of the Charter. See, for example, in the
pleadings paragraphs 139 and following, more
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specifically.
Dealing next with section 8 of the Charter, assuming the facts pleaded as true, the pleading
25 does not establish any search or seizure that would
engage the Plaintiff’s right under section 8 of the Charter. The Plaintiff fails to plead that he was ever searched by, or compelled to reveal personal information about his health to, any state agents
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as a result of the enforcement of the Proof of Vaccination requirement. The proof of vaccination
requirement contains no requirement that individuals disclose their vaccination status to any state agent, and establishments required to
5 verify proof of vaccination were precluded from retaining that information. In any event, and importantly for this motion, any search or seizure would have been authorized by law, and there is no
allegation in the pleading that if a search and a
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seizure was conducted, it was carried out in any unreasonable manner.
Dealing next section 15 of the Charter and the
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allegedly breached, I also find that it is plain and obvious that there is no prospect that the Plaintiff can successfully establish that he was
discriminated against contrary to section 15 of the
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Charter or contrary to the pleaded provisions of
the Human Rights Code. The pleading sets out conclusory allegations that the Proof of Vaccination requirement discriminates on the
25 enumerated grounds of age, sex, race, disability,
and religion. However, nothing is pleaded respecting the Plaintiff’s race, religion, or any disability, preventing him from receiving the vaccine for which no exemption was available.
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The Plaintiff alleges that the Proof of Vaccination
requirement impacted him personally in that it had an adverse discriminatory impact on the enumerated grounds of age and sex on a male age 12 to 40, by
5 imposing a burden of a permanent medical procedure of a COVID-19 vaccination. See, for example, paragraph 68 of the pleading. However, the proof of vaccination requirement did not require that any
individual receive a vaccine. Rather, it
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established public health requirements to enter specified non-essential establishments. Entry was conditional on the choice to be vaccinated against COVID-19, and not based on age, sex, or any other
15 protected ground of discrimination.
The pleading also alleges discrimination on the basis of ability or non-ability, perceived
disability, vaccination status, and informed
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consent. It is plain and obvious that there is no
reasonable prospect that these characteristics could ground a successful claim of discrimination under section 15(1) of the Charter because in Costa
25 v. Seneca College, 2022 ONSC 5111, at paragraphs
91-95, this Court dismissed a claim that vaccination status amounted to a ground of discrimination analogous to those grounds enumerated under section 15(1) of the Charter. It
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accepted that such personal preferences were not appropriate grounds for section 15 protection.
Further, in 2022, the Federal Court struck a not dissimilar Statement of Claim containing similar allegations of discrimination brought by the same
5 Plaintiff, Mr. Chowdhury, against, this time, Canada.
Dealing next with the Healthcare Consent Act claim, Ontario is not a healthcare practitioner, and Mr.
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Chowdhury has not alleged that he received a COVID-
19 vaccination at all, let alone without his consent.
15 Mr. Chowdhury also frames parts of his claim as relating to groups he asserts no membership in,
including those with prior infection recovery immunity, parents of children 12 years and over,
black, Latin American, Indigenous people, and those
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with medical exemptions, see for example paragraphs
1, 48, 67, 79, 83, and 86 of his pleading. However, Mr. Chowdhury has not established private interest standing to make claims on behalf of any
25 of these groups, and he has not requested such
standing by pleading how he might meet the requirement for such standing. The Federal Court dismissed Mr. Chowdhury’s action alleging similar claims against the Federal government, because he
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has no standing to invoke the Charter rights of others.
The pleading also includes numerous claims in which Ontario is not the proper defendant, and these claims have no reasonable prospect of success, see
5 for example, paragraphs 39-45, 61, 63, 64, 127, and
130 of his pleading. It is plain and obvious that such claims cannot succeed against Ontario.
The alternative argument raised by Mr. Chowdhury
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during his oral submissions, that specific paragraphs should survive, does not assist him because the identified paragraphs, outlined above as 12, 46-69, 139 and 163-164, are similarly
15 defective.
Here, it is plain and obvious that none of the claims made in the pleading has a reasonable
prospect of success. These claims are no longer
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novel claims, and the applicable law is now
sufficiently established.
I agree with Ontario’s submissions that the
25 pleading should be struck without leave to amend. The Plaintiff has delayed this proceeding by constantly amending his statement of claim, and his pleading still fails to disclose a reasonable cause of action. Further, the proposed new amendments to
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Mr. Chowdhury’s pleading, attached to his materials, has the Amended Fresh as Amended
Statement of Claim, is proof that permitting further amendments would disproportionately add unnecessary delay and costs to an action that
5 would, in any event, ultimately fail. The purpose of this rule is to eliminate hopeless claims and allowing any further amendments will serve no useful purpose.
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The above is sufficient to deal with this motion, and I will not deal with the argument that the action was frivolous because this is not necessary and was not argued before me.
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Consequently, the following is ordered:
The Fresh as Amended Statement of Claim, or to be safe, the current version of the Plaintiff’s
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Statement of Claim is hereby struck without leave
to amend. As well, because of this order, the action is dismissed.
25 So, this completes my Reasons, subject to the question of costs …
THE COURT: Mr. Chowdhury anything you wish to say on the topic of costs…
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THE COURT: Okay. Thank you, Mr. Chowdhury. I
appreciate how you have conducted yourself in this hearing, Mr. Chowdhury. I do appreciate that, and I thank you for that. You are a self-represented
5 party, and you have represented yourself in this hearing very professionally, and I acknowledge that.
On the topic of costs, I will add to my reasons,
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the following. On the topic of costs, Ontario seeks a very modest amount of $5,000 for the costs of this motion and the costs of this action. It is obvious that Ontario’s expenses and costs are more
15 than that, but they are asking for a symbolic amount to be ordered for costs to send a message.
Indeed, costs are ordered for several reasons. Costs are discretionary and may be ordered to
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ensure that a party is indemnified, to a certain
extent, for his or her legal costs, when that is appropriate, as well they may be ordered to send a message that there may be certain financial
25 consequences to legal proceedings. That, if you
bring a legal proceeding, you may be responsible financially for the costs of the other side. And that is a very helpful purpose.
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In the circumstances of this case, Ontario was successful, and the general rule is that costs
follow the result, which would mean that costs would be paid to Ontario. I see no reason to make an exception to this rule in the circumstances of
5 this case. Ontario should be entitled to some costs. The question is what a reasonable and fair amount for costs in the circumstances of this case is.
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The amount put forward by Ontario is certainly very reasonable. It is a fraction of their costs. It is a fair, reasonable, and proportionate amount.
As well, it should have been an amount within the
15 reasonable expectations of the losing party. The province put forth very comprehensive materials,
and, surely, $5,000 on a partial indemnity is a fair, reasonable, and proportionate amount to
order. However, in this case, considering the very
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specific circumstances of Mr. Chowdhury, I believe
that a somewhat reduced amount can still send a sufficient message to Mr. Chowdhury, and to the public at large while being fair for him in his
25 circumstances to pay. So, I will order, and I will
fix costs at $2,500, all-inclusive, payable by the Plaintiff to the Defendant for the costs of this motion and action.
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Chowdhury v. Her Majesty the Queen in Right of Ontario
Certification FORM 3
5 Electronic Certificate of Transcript
Evidence Act, Subsection 5(2)
I, AMANDA SCHRAA, certify that this document is a true and
10 accurate transcription of the recording of Chowdhury v. His
Majesty the Queen in Right of Ontario, in the Superior Court of Justice, held at Ottawa, Ontario taken from Recording 0411_MR56_20231124_115107 10_ROGERP, heard Thursday, November 23rd, 2023, which has been certified in Form 1 by L. Bacon.
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December 6th, 2023
20 (Date) ( Electronic Signature of Authorized Person)
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A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the
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certificate.