Court File and Parties

Court File No.: CV-23-000366-00 Date: 2024-06-12 Superior Court of Justice - Ontario

Re: Dr. William Imona-Russel, Plaintiff And: Stephen Zap, Defendant

Before: Muszynski J.

Counsel: William Imona-Russel, Self-Represented Zachary Lanys, for Stephen Zap

Heard: May 24, 2024

Reasons for Decision – Motion to appoint counsel / motion to strike

MUSZYNSKI J.

Overview

[1] The plaintiff, William Imona-Russel, is a federally incarcerated offender serving a life sentence for first-degree murder. In this civil lawsuit, the plaintiff seeks damages from Stephen Zap, a Kingston lawyer, who was acting in his capacity as Independent Chairperson of Warkworth Institution at the material time.

[2] There are three motions before me:

I. a motion by the plaintiff for an order appointing state-funded counsel to represent him pursuant to r. 15.01 of the Rules of Civil Procedure; II. a motion by the defendant to strike the plaintiff’s claim for disclosing no reasonable cause of action, or for being frivolous, vexatious, or otherwise an abuse of process of the court, pursuant to rr. 21.01(1)(b) and 21.01(3)(d); and III. a motion by the plaintiff to dismiss the defendant’s motion to strike.

[3] As I explained to the plaintiff, it is not necessary to bring a motion to dismiss the defendant’s motion to strike. A responding motion record is all that is required. For that reason, it is not necessary for me to consider the plaintiff’s motion to dismiss the defendant’s motion to strike. I understand that the plaintiff’s position is that the defendant’s motion should be dismissed.

[4] Accordingly, there are only two motions left for adjudication.

I. Motion by Plaintiff for an Order Appointing Counsel

[5] The plaintiff seeks an order appointing state-funded counsel to represent him in this litigation pursuant to r. 15.01(1) of the Rules of Civil Procedure or s. 7 of the Canadian Charter of Rights and Freedoms.

[6] The plaintiff claims to be suffering from mental health issues, including major depression and anxiety, and states that he lacks the ability to prosecute his case due to the complexity of the issues. He claims that he is not self-represented by choice and wants to retain counsel but is unable to do so due to financial circumstances. Further, the plaintiff claims that he has a “right to counsel”.

[7] The plaintiff firstly relies on r. 15.01(1), which states the following: “A party to a proceeding who is under disability … shall be represented by a lawyer.” The plaintiff seems to suggest that, due to his mental health issues, he is “under disability” and must therefore be represented by a lawyer.

[8] Rule 1.03(1) provides that the term “disability”, when used in respect of a person, means that the person is “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not”.

[9] There is no finding that the plaintiff is mentally incapable within the meaning of ss. 6 or 45 of the Substitute Decisions Act, 1992. Further, there is no evidence before me that the plaintiff is mentally incapable, nor has there been any request that I make such a finding. The plaintiff has filed a collection of his medical records in support of his motion. While there appears to be a diagnosis of depression, anxiety, and discussion of other mental health afflictions, the most recent medical record indicates that the plaintiff’s mental health needs are “low”.

[10] Further, I do not believe that the plaintiff appreciates the implications of his request. If a court were to accept that he is mentally incapable, which I do not, the plaintiff would not simply be assigned a government funded lawyer to commence or continue his numerous civil lawsuits. A litigation guardian would be appointed for the plaintiff to instruct counsel. If no suitable litigation guardian were available, the Public Guardian and Trustee would be appointed as litigation guardian. A mentally incapable person loses the power to dictate the litigation themselves. The litigation guardian steps into the shoes of the party under disability and directs litigation on their behalf and in their best interests: Kavuru v. Heselden, 2014 ONSC 6718, at para. 15.

[11] I decline to make an order appointing counsel for the plaintiff pursuant to r. 15.01.

[12] The plaintiff further submits that he has a “right to counsel” and relies on s. 7 of the Charter. In Canada, there is no automatic right to counsel in a civil lawsuit guaranteed by the Charter. While the plaintiff alleges various abuses and Charter violations while incarcerated, this is a civil lawsuit wherein he seeks money damages from the defendant. The Charter “does not generally protect economic rights or property interests”: Sahyoun v. Ho, 2011 BCSC 567, at para. 43. Accordingly, I decline to make an order appointing state-funded counsel for the plaintiff on this basis.

II. Motion by the Defendant to Strike the Plaintiff’s Claim

[13] There are two grounds advanced in support of the defendant’s motion to strike/dismiss the plaintiff’s claim: (i) for failing to disclose a reasonable cause of action pursuant to r. 21.01(1)(b); and (ii) for being frivolous, vexatious, or an abuse of court process.

The statement of claim fails to disclose a reasonable cause of action

[14] The Rules provide that a party may move before a judge to strike a pleading that discloses no reasonable cause of action or defence. No evidence is permitted on such a motion. Accordingly, I have not considered the affidavit filed by the defendant in relation to this ground.

[15] The bar to strike a pleading for failing to disclose a reasonable cause of action is high. Considerations include the following:

(a) Is it plain and obvious that there is no reasonable cause of action, assuming the facts as pleaded are true?: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17. (b) Is there no reasonable prospect of success?: Imperial Tobacco, at para. 17; Grand River Enterprises Six Nations Ltd. v. Canada (Attorney General), 2017 ONCA 526, at para. 15. (c) Do the pleadings define the issues sufficiently to allow the opposing party to understand the case they have to meet?: Li v. Barber, 2023 ONSC 1679, at para 27.

[16] In this litigation, the plaintiff seeks the following:

(a) $25,000 in general damages for policy violations and discrimination; (b) $15,000 for negligence in violation of the Ontario Human Rights Code; (c) $15,000 for various violations of the plaintiff’s Charter rights; and (d) $15,000 in punitive damages, including pain and suffering.

[17] The statement of claim is, mostly, a narrative about the plaintiff’s experiences as an inmate in various federal institutions and has nothing to do with the defendant, Stephen Zap.

[18] According to the statement of claim, the plaintiff had a single attendance before Mr. Zap, acting as Independent Chairperson at Warkworth presiding over prison disciplinary proceedings.

[19] Disciplinary charges against the plaintiff arose from an altercation between the plaintiff and another inmate wherein there was damage to Correctional Service of Canada (“CSC”) property. During the one attendance before Mr. Zap, there was no finding of misconduct. The hearing was adjourned. The plaintiff alleges that because Mr. Zap inquired as to the value of the damage to CSC property during the brief attendance, he had pre-judged the issue. The plaintiff further alleges that Mr. Zap has a history of finding inmates guilty, and that the hearing was delayed beyond the timelines required by the Correctional and Conditional Release Regulations and in contravention of ss. 11(a) and (b) of the Charter. There are no other allegations made against Mr. Zap.

[20] I find that there is no viable claim against Mr. Zap for breaches of the Code because there are no material facts pleaded to establish that Mr. Zap’s actions or inactions constitute a breach of the Code, the Code does not apply to federal institutions: see e.g. Kunkel v. Bourke, 2009 HRTO 946; Menzel v. Canada (Citizenship and Immigration), 2008 HRTO 238, and there is no independent cause of action related to a breach of the Code in any event: Seneca College v. Bhadauria, [1981] 2 S.C.R. 181.

[21] I find that there is no viable claim against Mr. Zap with respect to any alleged delay in scheduling the disciplinary hearing because there is no allegation that Mr. Zap was responsible for scheduling or the cause of any delay, there is generally no independent cause of action for a breach of statute/regulation: The Queen (Can.) v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Richards v. Canada, 2022 FC 1763, at para. 13, and the route to address any delay issues is by way of judicial review for invalidity: Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551, at para 9.

[22] I find that there are no viable claims against Mr. Zap for the alleged Charter breaches because there are no material facts pleaded that link Mr. Zap to any breach, the Supreme Court of Canada has confirmed that s. 11 of the Charter does not apply to prison disciplinary proceedings: R. v. Shubley, [1990] 1 S.C.R. 3, at pp. 20-23, and there are no material facts pleaded to ground any of the other alleged Charter violations.

[23] Finally, I find that there are no material facts pleaded to form a basis for any other claim against Mr. Zap that would justify an award of punitive or general damages.

[24] I find that it is plain and obvious that the statement of claim discloses no reasonable cause of action and, accordingly, the entirety of the plaintiff’s claim is struck. I decline to grant the plaintiff leave to amend his claim.

The statement of claim is frivolous, vexatious, and an abuse of court process

[25] Rule 21.01(3)(d) of the Rules of Civil Procedure provides that a judge may dismiss an action or strike pleadings on the grounds that they are frivolous, vexatious, or otherwise an abuse of court process.

[26] Principles a court may consider in identifying vexatious proceedings include the following:

(a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding; (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; (c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; (g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings: Re Lang Michener et al. and Fabian et al. (1987), 59 O.R. (2d) 353 (H.C.), at pp. 358-59.

[27] The plaintiff’s action against Mr. Zap has many hallmarks of a vexatious proceeding.

[28] In support of the motion to dismiss under r. 21.01(3)(d), the defendant relies on an affidavit of James Schneider, a lawyer at the Ontario Regional office at the Department of Justice. Mr. Schneider’s evidence is that, since 2021, the plaintiff has initiated a total of 32 civil actions against the federal Crown and its servants in the Ontario Small Claims Court, the Superior Court of Justice, and the Federal Court.

[29] As noted previously, the statement of claim does not disclose a reasonable cause of action. It has no prospect of success and is bound to fail.

[30] The plaintiff claims that he has brought a motion to consolidate the subject action with a civil claim that he has brought in Napanee against Bath Institution (William Imona-Russel v. Bath Institution, CV-23-35) due to overlapping subject matter. As of the date of the hearing of the motion, there has been no such motion advanced by the plaintiff. Regardless, the fact that multiple proceedings have been brought in separate jurisdictions, related to overlapping subject matter, I find, is further evidence that this proceeding is vexatious.

[31] By bringing this action in Superior Court, the plaintiff has attempted to circumvent the institutional disciplinary proceeding. I find that this is an abuse of court process.

[32] The plaintiff’s action is dismissed on the ground that it is frivolous, vexatious, and otherwise an abuse of court process.

[33] The Department of Justice may well consider bringing an application under s. 140 of the Courts of Justice Act to declare the plaintiff a vexatious litigant. Given the fact that the plaintiff has brought 32 actions in the last three years, I am surprised that this has not yet occurred.

Costs

[34] The defendant was wholly successful and seeks nominal costs from the plaintiff in the amount of $500. The plaintiff opposes any costs award on the basis that he receives only modest monthly allowances and does not have the ability to pay.

[35] I find that the costs sought by the defendant are fair and reasonable under the circumstances, particularly considering my finding that the claim is vexatious and an abuse of process. The defendant is awarded costs from the plaintiff fixed in the amount of $500 inclusive of HST and disbursements which shall be payable forthwith.

Muszynski J. Date: June 12, 2024