COURT FILE NO.: CV-23-00000326-0000

DATE: 20231227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NATHANIEL STROUD, Plaintiff

AND:

CONSTABLE SCOTT MACNEISH, DETECTIVE SCOTT BRADSRAW, CONSTABLE ROBERT SINCLAIR, CROWN GERRY MCDOUGALL, CROWN ATTORNEY SARAH VIAU, CROWN ATTORNEY JOHN SKOROPADA, CROWN ATTORNEY ELISABETH FOXTON, CROWN ATTORNEY NATASHA BEITMAN BRENER, CROWN ATTORNEY MICHAEL RODE, LAWYER PATRICIA KNOX-LEET, LAWYER PHILIP CASEY, CONSTABLE DANIEL ATTWOOD, CONSTABLE HARVEY KOLFF, CONSTABLE HOLDEN MCDONALD, SERGEANT MELANIE JEFFERIES, ANGELA MUNNINGS, EMILY ATTWOOD. DALE SCHREODER, KINGSTON JUSTICE OF THE PEACE OFFICE: HER WORSHIP CAMPBELL, HIS WORSHIP DORAN, HIS WORSHIP CHIANG, HER WORSHIP GOFFIN, ONTARIO COURT OF JUSTICE, THE HONOURABLE JUDGE O'BRIAN, Defendants

BEFORE: Mr. Justice Graeme Mew

DECIDED: 27 December 2023, at Kingston

ENDORSEMENT

[1] This matter was referred to me by the Registrar at Kingston pursuant to Rule 2.1.01(7).

[2] In accordance with the summary procedure established under Rule 2.1, the Registrar was directed to and did, on 8 December 2023, give notice to the plaintiff in Form 2.1A that the court was considering making an order to stay or dismiss his action. The plaintiff responded by way of a 10 page written submission received on 18 December 2023.

[3] There are 24 named defendants. They can be grouped into several general categories:

(a) Police officers;

(b) Crown attorneys;

(c) Criminal defence lawyers;

(d) Probation officers; and

(e) Judicial officers (justices of the peace and a judge).

[4] The plaintiff claims:

(a) $350,000 “for one year working directly in life threatening situations as an Agent for the Kingston Police”.

(b) $100,000 “for … time and money spent on legal fees and out of pocket money working for Kingston Police”.

(c) $10 million “for the trauma and grief [the plaintiff and his family] have endured and continue to endure” caused by:

i. Violation of the plaintiff’s human rights;

ii. The “criminal deceptions” of Constable McNeish;

iii. “The Crown's office aiding and abetting a group of Kingston Police members in the disguise of a Sting operation”;

iv. The Crown “not performing their sworn duty to protect [the plaintiff] and contributing to a dysfunctional system”;

v. His Worship Justice of the Peace Chiang not releasing the plaintiff on bail;

vi. The justice of the peace office allowing criminal trials against the plaintiff to proceed, knowing that he was an agent for the police;

vii. The Honourable Justice O’Brian [sic] for taking the plaintiff’s plea despite knowing that the plaintiff was an agent;

viii. Staff Sergeant Jefferies preventing the plaintiff’s release from custody;

ix. Police officers Attwood and Kolff arresting the plaintiff while he was working on an investigation sanctioned by Constable MacNeish.

(d) The complete expungement of the plaintiff’s driving record since he first started working for Kingston Police.

(e) “An indivisible amount of funding in order to re-establish the judicial governmental frameworks to prevent unethical practices of policing and law” in Kingston.

[5] The statement of claim is 25 pages long. Its many paragraphs are not numbered (as required by Rule 25.02). These paragraphs contain a jumble of allegations, evidence, opinions and arguments. I understand the plaintiff to allege that, following a traffic stop by a police officer, the officer told the plaintiff that if he worked for the officer as an agent, his tickets would be paid off and “he would be free”. During the course of working undercover as an agent, the plaintiff states that he was arrested and prosecuted. He asserts that he was falsely arrested and imprisoned, maliciously prosecuted, and that various justice system participants breached duties that they owed to him, made misleading or false statements about him, while all the time knowing that the plaintiff was an agent working for the Kingston Police.

[6] As the Court of Appeal explained in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, the procedure in Rule 2.1 enables the court to effectively exercise a gatekeeping function to weed out litigation that is clearly frivolous, vexatious or an abuse of process. The use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process provided for by Rule 2.1. The Court of Appeal continues at para. 11:

The focus under r. 2.1 is on the pleadings and any submissions of the parties made pursuant to the rule. The role of the motion judge is to determine whether on its face, and in light of any submissions, the proceeding is frivolous, vexatious, or an abuse of process.

[7] Rule 2.01 is not for close calls. The abusive nature of the proceeding must be apparent on the face of the pleading itself. This requirement may be satisfied if the claims made are inherently abusive, or if the pleading contains a number of the “unmistakeable hallmarks of querulous litigant behaviour” described by F.L. Myers J. in Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 15.

[8] It is apparent from the face of the statement of claim that many of the plaintiff’s allegations are far-fetched, hyperbolic and beggaring belief. The judicial officers he has sued are immune from civil liability: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 82; Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 20. Much of the relief sought is not available in law. It is also highly debatable whether his allegations against some of the other defendants are legally tenable. And there are elements of the pleading that demonstrate characteristics of the querulous litigant.

[9] Yet there are also aspects of the plaintiff’s pleading which, far-fetched though they might appear, if proven, could be supportive of claims based on recognisable causes of action. As Myers J. observed in Gao, at para. 18:

It should be borne in mind however, that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring to an early end to vexatious proceedings, the matters should not considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed.

[10] The procedure established by Rule 2.1.01 does not require the court to undertake the level of analysis that it would on a motion under Rule 21 to strike out a pleading, or to have an action stayed or dismissed. Nevertheless, where the pleading contains both claims that are frivolous and vexatious which cannot possibly succeed, but also other claims which have some potential merit, it is open to a court to strike the claim in its entirety with leave to the plaintiff to deliver an amended statement of claim within 60 days “limited to claiming relief known to law” against appropriate parties.

[11] That is what happened in Brown v. Lloyd's of London Insurance Market, 2015 ONCA 235. The Court of Appeal upheld a motion judge’s finding that the appellant’s statement of claim contained “no intelligible claims” against any of the defendants “except possibly his former landlord”. The Court of Appeal agreed that, with “the possible exception” of the claims sought to be advanced against the former landlord, “the allegations in the appellant’s pleading, to the extent that they are discernable, and the associated relief claimed are either non-justiciable or fail to disclose a reasonable cause of action within the meaning of the Rules”. The Court of Appeal upheld the motion judge’s decision to strike the appellant’s statement of claim in its entirety, with leave to the appellant to deliver an amended statement of claim within 60 days “limited to claiming relief known to law against his former landlord”.

[12] I would take a similar approach in this case.

[13] The claims against the judicial officers who are immune from civil liability arising from the discharge of their judicial duties - Kingston Justice of the Peace Office: Her Worship Campbell, His Worship Doran, His Worship Chiang, Her Worship Goffin, Ontario Court of Justice, The Honourable Judge O'Brian [sic]” - are struck out and may not be resuscitated.

[14] The claims against many of the other justice system participants are non-justiciable.

[15] While Crown Attorney John Skoropada is named in the pleading, and a paragraph of narrative follows his name, no elements of any recognisable cause of action against him are pleaded. Similarly, a bald allegation that Crown Attorney Elisabeth Foxton “initiated the malicious prosecution process and chose to aid and abet the unwarranted charges and put me before the law dishonestly” is unsupported by the pleading of any material facts. “Lawyer Michael Rode” and “Legal Aid Supervisor Patricia Knox-Leet” are said to have “witnessed [the plaintiff] trying to explain [in court] the unlawful reasons why [he] was in custody.” “Lawyer Phil Casey” appears to have acted for the plaintiff at a plea hearing, but no allegations of negligence or other breach of any duty he may have owed to the plaintiff are pleased.

[16] In my view the claims pleaded against all of these justice system parties are frivolous, vexatious and legally untenable. They, too, should be struck out without leave to reformulate claims against those individuals.

[17] For the foregoing reasons, I order and direct that:

(a) The claims against “Kingston Justice of the Peace Office”, “Her Worship Campbell”, “His Worship Doran”, “His Worship Chiang”, “Her Worship Goffin”, “Ontario Court of Justice”, “The Honourable Judge O'Brian [sic]”, “Crown Attorney John Skoropada”, “Crown Attorney Elisabeth Foxton”, “Crown Attorney Michael Rode”, “Lawyer Phil Casey” and “Lawyer Patricia Knox-Leet” are struck out, without leave to bring further claims against those parties (or other iterations of those parties) in connection, directly or indirectly, with any of the allegations and matters described in the statement of claim.

(b) The balance of the statement of claim is struck out in its entirety, but with leave to the plaintiff to deliver a fresh as amended statement of claim within 30 days, limited to relief known to law against such of those defendants in the present action against whom the action has not been irrevocably dismissed, and as he decides to maintain claims against.

(c) The fresh as amended statement of claim should adhere to the requirements of Rule 25, and, in particular, should:

i. be divided into paragraphs numbered consecutively;

ii. so far as is practical, set out each allegation in a separate paragraph;

iii. contain a concise statement of the material facts on which the plaintiff relies for his claim, but not the evidence by which those facts are to be proved;

iv. only plead conclusions of law if the material facts supporting them are pleaded;

v. where damages are claimed, state the amount claimed by the plaintiff in respect of each claim.

(d) If the plaintiff has not delivered a fresh as amended statement of claim within 30 days, this action will be automatically deemed to be dismissed without further notice to the parties.

(e) In the event that any of the presently named defendants have been noted in default prior to the making of this order, such noting in default is set aside.

(f) This endorsement is to be sent to the plaintiff and the presently named defendants by regular mail under Rule 2.1.01(5) and by email to those for whom the court has email addresses.

(g) There will be no order as to costs.

[18] It is not necessary for a formal order to be taken out to give effect to my order and directions.

Graeme Mew J.

Date: 27 December 2023