Court File and Parties

COURT FILE NO.: CV-23-00000332-0000

DATE: 20231227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NATHANIEL STROUD, Plaintiff

AND:

LAWYER MICHAEL SWINDLEY, CROWN LAWYER ANDREW REESON, CROWN LAWYER MICHAEL SAAD, CROWN LAWYER SARAH VIAU, Defendants

BEFORE: Mr. Justice Graeme Mew

DECIDED: 27 December 2023, at Kingston

ENDORSEMENT

[1] One of the named defendants in this action has filed with the Registrar, pursuant to Rule 2.1.01(6), a request for an order to be made pursuant to Rule 2.1.01 to stay or dismiss the action.

[2] In accordance with the summary procedure established under Rule 2.1, the Registrar was directed to, and did on 14 November 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 submission received by the court on 15 November 2023.

[3] The genesis of Mr. Stroud’s present claim appears to be his application for judicial review, which was lodged in the Divisional Court on 25 April 2023 bearing court file no. DC-23-00002786, and subsequently dismissed pursuant to Rule 2.1.01 on 21 September 2023 by Madam Justice Ryan Bell. The essence of Justice Ryan Bell’s reasoning for dismissing the application is contained in paragraph 14 of her endorsement:

The remedies sought by Mr. Stroud in his notice of application for judicial review are damages in the total amount of $10,450,000, an order "expunging" his driving record, and funding to prevent alleged unethical practices of policing and law in Kingston. At its core, Mr. Stroud's claim is that the Kingston Police hired him but did not pay him for his services and that the Crown and the police breached their duty to protect him. He claims that the police wrongfully arrested and detained him and that the respondents collectively entrapped Mr. Stroud while he was working as an agent [for the Kingston Police]. Reading Mr. Stroud's notice of application for judicial review generously, Mr. Stroud's claims are in the nature of civil causes of action. The proceeding ought to have been commenced by action in the Superior Court of Justice and not in the Divisional Court. The relief requested by Mr. Stroud is not available in Divisional Court.

[4] The defendants in the current proceeding were all lawyers representing respondents named in the judicial review proceeding. The plaintiff alleges that the defendants performed deceitful tactics in hopes of improving the outcome of the judicial review for their respective clients. The “deceitful tactics” are said to have included delivering any number of court documents in differently numbered court proceedings, which were irregular, caused confusion, and were intended to undermine the judicial process.

[5] The exact course of conduct complained of by the plaintiff is difficult to follow, but there do appear to have been a number of other court proceedings involving Mr. Stroud, including a previous proceeding described as a “Notice of Application to Divisional Court for Judicial Review” which was filed at the Superior Court in Ottawa on 31 March 2023 and assigned court file no. CV-23-00091791. Mr. Stroud claims that the respondents maliciously took advantage of his lack of legal training, delivering various pleadings in other proceedings commenced by him with the objective of trying to have his judicial review application dismissed with prejudice, so that it could not be refiled.

[6] Part of the confusion can be attributed to the existence of multiple proceedings commenced by Mr. Stroud but, distilling, as best I can, the substantive allegations made against the defendants in the statement of claim, it is alleged that they acted unethically in the course of representing their clients and should therefore be held strictly liable for their conduct, and should pay $500,000 to Mr. Stroud in punitive damages on top of $40,000 by way of compensation.

[7] 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.

[8] To the extent that Mr. Stroud’s action is a collateral attack on the decision of Ryan Bell J., it is untenable.

[9] Beyond that, however, it is apparent from the face of the statement of claim that Mr. Stroud’s allegations of “the especially negligent and intentionally deceitful actions of [the defendants] as they did not follow the proper legal protocols and attempted to obstruct justice by misleading me and the court in my Divisional Court Ottawa Judicial Review” are frivolous and vexatious. Mr. Stroud makes numerous bald allegations, peppered with accusations of unethical, misleading and deceitful conduct. He attempts to assert a duty of care owed to him by lawyers representing the parties he brought proceedings against, where, on the pleaded facts, it is plain and obvious that no such duty could reasonably be said to exist.

[10] Most important of all, though, is that the order of Ryan Bell J. was not made with prejudice. As Mr. Stroud acknowledges in his written submission, “thanks” to Justice Ryan Bell’s endorsement, “we all know now that a civil action commenced in Kingston is the right venue”. Even if he had a valid cause of action, he has suffered no loss.

[11] In coming to the conclusion that the present action should be dismissed, I have borne in mind that even a vexatious litigant can have a legitimate complaint. However, taking as generous a view as I can of the allegations made in the statement of claim, it is essentially an attack on the outcome of the application which Justice Ryan Bell dismissed.

[12] Furthermore, and aside from that, I am unable to discern, at the action’s core, any justiciable complaint.

[13] By reason of the foregoing, an order will go pursuant to Rule 2.1.01(1) dismissing this action.

[14] This endorsement is to be sent to the plaintiff and the lawyers for the defendants by regular mail under Rule 2.1.01(5) and by email to those for whom the court has email addresses. The defendants or whichever of them as they may agree, shall submit a draft order to the Registrar for signing and entry without the necessity to seek approval as to form and content by the plaintiff. The defendants shall then serve a copy of the entered order on the plaintiff and file proof of service with the Registrar.

[15] There will be no order as to costs.

Graeme Mew J.

Date: 27 December 2023