Walsh v. Attorney General of Canada, 2025 ONSC 3267

Court File No.: CV-00714974-0000
Date: 2025-06-02
Superior Court of Justice – Ontario
BETWEEN:
JoAnne Cyr-Walsh, Applicant
– and –
Attorney General of Canada, Respondent

JoAnne Cyr-Walsh (Self-Represented)
Adrian Zita-Bennett for the Respondent

Heard: April 11, 2025

Ruling on Motion to Strike Amended Claim
Justice S. Mathai

A. Overview

[1] The moving party, the Attorney General of Canada (“AGC”), brings a motion to strike the plaintiff’s amended statement of claim (“Amended Claim”) pursuant to r. 21.01(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). In the alternative, the AGC seeks to strike specific paragraphs of the Amended Claim pursuant to r. 25.11 on the basis that the impugned paragraphs include scandalous, vexatious, irrelevant and prejudicial allegations, improperly plead evidence and argument and fail to conform to the minimum requirements of a statement of claim.

[2] The plaintiff’s claim arises from her attendance at the “Freedom Convoy” protest in Ottawa on February 19, 2022. While attending the protest, the plaintiff alleges that she was arrested by officers employed by the Greater Sudbury Police and was subject to three unreasonable searches by those officers or officers with the Ottawa Police Service. The plaintiff pleads that she was charged with two counts of mischief and one count of obstruction and was released on conditions, one of which was to stay out of an area described as the “red zone” in Ottawa.

[3] Following her arrest, the plaintiff alleges that she was subject to a malicious prosecution by unnamed provincial Crown Attorneys and that she was subsequently arrested and charged for attending Parliament and meeting with a Member of Parliament. The Amended Claim does not detail why the plaintiff was arrested but I assume the subsequent arrest and charge relate to a breach of her condition to remain outside of the “red zone”.

[4] The plaintiff pleads the following causes of action that arise from the conduct of municipal police officers and/or provincial Crown Attorneys: (a) violations of her Charter rights; (b) misfeasance in public office; (c) interference with economic interests; (d) intimidation; and (e) malicious prosecution. The plaintiff alleges that the AGC is vicariously liable for the conduct of the municipal police officers and provincial Crown Attorneys.

[5] On a generous reading of the claim, the plaintiff also alleges that she would not have been arrested, charged and searched had the Federal Government not invoked the Emergencies Act, R.S.C., 1985, c. 22 (4th Supp.) (the “Act”) and made the Emergency Measures Regulations, SOR/2022-2 (the “Regulation”) and the Emergency Economic Measures Order, SOR/2022-22 (the “Economic Order”). The plaintiff alleges that the declaration of a public order emergency, the Regulation and the Economic Order are inconsistent with ss. 2(b), 2(c), 7 and 8 of the Canadian Charter of Rights and Freedoms (the “Charter”).

[6] For the reasons that follow, I grant the motion to strike the claims alleging that the AGC is vicariously liable for the conduct of municipal police officers and provincial Crown Attorneys. Leave to amend these causes of action is denied because they are doomed to fail. The same cannot be said of the plaintiff’s claim that the invocation of the Act and the making of the Regulation and the Economic Order violate the Charter. It is not plain and obvious that this cause of action will not succeed.

B. Procedural History

[7] The plaintiff issued a statement of claim on February 20, 2024. The initial claim pleads the same causes of action as the Amended Claim but contains few pleadings of material facts. For example, the original claim does not identify the police officers who arrested her or subjected her to the alleged unreasonable searches. In addition, the original claim did not include any material facts in support of the claims of abuse of process, intimidation and misfeasance in public office. With respect to the misfeasance in public office claim, the original statement of claim included the following pleading, which is not reproduced in the Amended Claim:

15. The Plaintiff states, and the fact is, the Government of Canada’s public officials were aware both that their conduct was unlawful and that it was likely to harm the Plaintiff, or the Government of Canada had a conscious disregard for the lawfulness of their conduct and the consequence to the Plaintiff, [constituting] misfeasance in public office.

[8] Given these deficiencies, the AGC brought a motion to strike the claim. The motion was heard on October 4, 2024. In an oral judgment, the motion judge granted the AGC’s motion to strike, in part, and granted leave to amend. The plaintiff’s claim for abuse of process was struck without leave to amend and the plaintiff’s claim for misfeasance in public office was not struck.

[9] The following extracts from the oral reasons are relevant to my decision:

Turning to the motion to strike the statement of claim. The plaintiff's submissions [on] the merits of her claim and the history of the prosecutions against her and what she views as the unfairness of those prosecutions. Her submissions are based on the submission that the declaration of the emergency was unconstitutional.

In my view, any deficiencies arising out of the Vicarious Liability of Canada can be easily remedied with simple amendments to the statement of claim. The plaintiff has now been able to identify the individual police officer who arrested her. The Crown already has that information. Adding that name to the allegations in the statement of claim would address the Attorney General's concern that a particular servant or agent of the Crown is not identified as being responsible for the conduct of which Ms. Walsh complains. Elsewhere in her submissions, Ms. Walsh has advanced the fundamental argument that one of the bases for which the proclamation of an emergency is allegedly unconstitutional was that the federal government authorized law enforcement personnel from outside of Ottawa to act as law enforcement personnel in Ottawa without being sworn into either the Ottawa or the Ontario Provincial Police forces. Indeed, the police officer who arrested Ms. Walsh appears to have been from Sudbury and would fit into that category of alleged misconduct. It strikes me that an amendment of the statement of claim to reproduce that allegation in the statement of claim would go at least some way to addressing the Attorney General's submissions about the inadequate establishment of vicarious liability in the current pleading.

As a result, as a purely technical matter, I would strike the statement of claim against the Attorney General of Canada with leave to amend. The two simple amendments described above would appear to address the Attorney General's concerns in that regard.

The Abuse of Process Claim

The tort of abuse of process has four elements:

1. That the plaintiff is a party to a legal process initiated by the defendant;
2. That the legal process was initiated for the predominant purpose of furthering some indirect, collateral or improper objective;
3. That the defendant took or made a definite act or threat in furtherance of the improper purpose; and,
4. Some special damages [have] resulted.

The Attorney General submits that the tort of abuse of process cannot withstand scrutiny and cannot be amended because the plaintiff is not a party to a legal process initiated by the defendant. The prosecution to which the plaintiff is subject is a prosecution by Ontario. The Attorney General of Canada is not involved in that prosecution and has not initiated that prosecution. As a result, I strike the claim for abuse of process without leave to amend.

The Claim for Misfeasance of Public Office

The tort of misfeasance of public office requires the plaintiff to plead the following four elements:

1. That the public official deliberately engaged in the unlawful conduct in the exercise of public functions;
2. That the public official was aware that the conduct was unlawful and was likely to injure the plaintiff;
3. The public official’s tortious conduct was the legal cause of the plaintiff's injuries; and,
4. The injuries are compensable at law.

In my view, when the statement of claim is read generously, the plaintiff has met these particular elements. Paragraph eight of the statement of claim specifically alleges unlawful conduct by the federal government by alleging that the invocation of the Emergencies Act was unconstitutional, illegal and in violation of the plaintiff's rights to protest under the Charter. The act of declaring an emergency was a deliberate act. The allegation that the declaration was unconstitutional and illegal clearly amounts to allegations of unlawful conduct.

Paragraph 15 of the statement of claim specifically alleges that the Government of Canada and its public officials were aware that their conduct was unlawful and likely to harm the plaintiff. Although there are no specific statements in the statement of claim with respect to the third and fourth element of the test of misfeasance of public office, the third and fourth elements are directly implied by a generous reading of the statement of claim. The gist of the statement of claim is that the improper declaration of an emergency led to the plaintiff's arrest, which caused her injuries. The statement of claim alleges that the plaintiff suffered loss of income and special damages in the form of out-of-pocket expenses. Both loss of income and expenses are generally compensable at law, provided the other elements of that cause of action are actually established at a final hearing on the merits.

[10] The plaintiff filed the Amended Claim on October 4, 2024.

C. Analysis and Conclusion

(i) Governing Principles on a Motion to Strike

[11] The test for striking out a claim pursuant to r. 21.01(b) is well established and is not in dispute. Rule 21.01(b) states:

(1) A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.

[12] A claim will only be struck pursuant to r. 21.01(b) when it is “plain and obvious” that a pleading discloses no reasonable cause of action (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, para. 17). On a motion to strike, the motion judge must read the pleading generously with allowances for drafting deficiencies (Wellington v. Ontario, 2011 ONCA 274, para. 14; Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, para. 20).

[13] In Soneri Invest. v. Shell Canada, 2025 ONSC 1547, para. 10, Woodley J. helpfully summarized the governing legal principles applicable to a Rule 21.01(b) motion:

The guiding principles to consider under Rule 21.01(b) are:

a. A claim will not be struck unless it is plain and obvious. b. The facts pleaded are to be assumed to be true unless they are patently ridiculous. c. A claim must be read with a forgiving eye for drafting deficiencies. d. The novelty of a cause of action is not determinative. e. The court is not precluded from striking a negligence claim simply because it asserts a novel duty of care. g. No evidence is available on the motion, though documents referenced in the statement of claim can be considered.

(see also R v. Imperial Tobacco Canada Ltd., 2011 SCC 42, paras. 17-22; Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458, para. 12)

[14] When used appropriately, r. 21.01(b) is a useful tool for screening out meritless claims. In this way, r. 21.01(b) plays an important role in securing a just, expeditious and cost-appropriate method of resolving an action on its merits. Striking a claim should be a remedy used with caution because the law is constantly developing. As a result, courts must take a generous approach and err on the side of permitting arguable claims to proceed to trial (Toronto District School Board v. Meta Platforms Inc., 2025 ONSC 1499, para. 18; Imperial Tobacco at paras. 20-21).

[15] Even when a pleading is struck, leave to amend should be denied only in the clearest of cases. The fact that the allegations are bald is not a basis for refusing leave. Leave to amend should only be refused where the deficiencies in the pleading cannot be cured by an appropriate amendment and the plaintiff cannot allege further material facts that the plaintiff knows to be true to support the allegations. The fact that amendments may have previously been made is a relevant consideration (Filler Depot v. Copart Canada Inc., 2024 ONSC 466, para. 19; Miguna v. Ontario (Attorney General), para. 22; Tran v. University of Western Ontario, 2015 ONCA 295, para. 27).

(ii) The Amended Claim

[16] The Amended Claim does not comply with the Rules applicable to amendments (see r. 26.03). Instead, the Amended Claim reads as a fresh as amended claim, though it is not identified as such.

[17] Applying a generous reading to the Amended Claim, I find that the action is anchored in four separate but interrelated events. Each event involves different state actors. In the chart below, I identify the four events, the state actors involved, the paragraphs of the Amended Claim that address the event and the causes of action that are pled in relation to the event.

Event	State Actor	Paragraphs of Amended Claim	Causes of action in relation to the event
Invocation of the Emergencies Act, and the making of the Regulations and Economic Order	Governor in Council	Paras. 1-4, 16, 36, and 41	Breach of ss. 2(c), 2(b), 7 and 8 of the Charter
Plaintiff’s arrest on February 19, 2022 and subsequent arrest for attending “red zone” (AGC vicariously liable)	Police Officers employed by the Sudbury Police Service and the Ottawa Police Service	Paras. 5, 10-15, 18, 21, 28, 34, 37, 38, 41, 43, 45, 47, 49, 56, 58, 59, and 60	Breach of ss. 2(b), 2(c), 7 and 8 of the Charter; intentional interference with economic interest; intimidation; misfeasance in public office; and malicious prosecution.
Searches of the Plaintiff (AGC vicariously liable)	Police Officers employed by the Sudbury Police Service and the Ottawa Police Service	Paras. 11, 16, 22, and 23	Breach of s. 8 of the Charter.
Prosecution of the Plaintiff (AGC vicariously liable)	Provincial Crown Attorneys	Paras. 18, 27, 28, and 57	Malicious prosecution and interference with economic interests.

[18] Unlike the initial statement of claim, the Amended Claim identifies the state actors involved in the last three events (i.e. municipal police officers and provincial Crown Attorneys). With respect to the misfeasance in public office claim, the Amended Claim only pleads this cause of action in relation to the conduct of municipal police officers (see paras. 56-62 of the Amended Claim). The Amended Claim does not include a pleading of misfeasance in public office for the declaration of a public order emergency under the Act. I do not view this omission as a simple oversight or deficiency in the pleading. In drafting the Amended Claim, the plaintiff had the benefit of the motion judge’s decision and decided to limit her misfeasance claim to the actions of the police officers. Moreover, paras. 1-4 of the Amended Claim demonstrate that the plaintiff is only alleging Charter breaches in relation to the Act.

[19] The Amended Claim does not explicitly plead that the Regulation and Economic Order are inconsistent with the Charter. The Amended Claim does, however, refer to Mosley J.’s findings in Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42. In that decision, Mosley J. found that parts of the Regulation and Economic Order violated ss. 2(b) and 8 of the Charter and were not saved by s. 1. When read generously and as a whole, I find that the Amended Claim challenges the constitutionality of the invocation of the Act and the making of the Regulation and Economic Order.

(iii) Application of Governing Principles to the Amended Claim

[20] In Ontario, provincial Crown Attorneys and provincial assistant Crown Attorneys are appointed by the Lieutenant Governor in Council (see s. 1 of the Crown Attorneys Act, R.S.O. 1990, c. C.49). Pursuant to s. 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, the Attorney General of Ontario is the properly named defendant in an action commenced by the subject of a prosecution that impugns the conduct of provincial Crown Attorneys.

[21] The police officers identified in the Amended Claim are employed by municipal police boards. Pursuant to s. 29(2) of the Police Services Act, R.S.O. 1990, c. P.15 s. 47 (the “PSA”), a municipal board is liable for the acts or omissions of members of its police service committed in the course of their employment (now s. 47(2) of the Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1).

[22] The AGC, who is the proper named defendant in a claim against the Federal Crown, is only vicariously liable for the tortious conduct of “servants” of the Federal Crown (see s. 3(a)(ii) and 23(1) of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50; Hinse v. Canada (Attorney General), 2015 SCC 35, para. 58). Police officers employed by a municipal police service are not “servants” of the Federal Crown (Bigeagle v. Canada, 2023 FCA 128, para. 33; Ethier v. Attorney General of Canada, 2018 ONSC 2215, para. 26). Similarly, provincial Crown Attorneys are not “servants” of the Federal Crown (Raji v. The Attorney General of Canada, 2024 ONSC 1061, para. 15).

[23] The plaintiff argues that the AGC is vicariously liable for the conduct of the municipal police officers and the provincial Crown Attorneys because her arrest, searches and prosecution would not have occurred but for the federal government deciding to declare a public order emergency. Even if true, this does not mean that the state actors identified in the Amended Claim are “servants” of the Federal Crown. Municipal police officers routinely enforce federal laws in Ontario, like the Criminal Code, R.S.C., 1985, c. C-46. Enforcing the Criminal Code does not convert municipal officers into servants of the Federal Crown. Similarly, when provincial Crown Attorneys prosecute offences under the Criminal Code, they do not become “servants” of the Federal Crown.

[24] The plaintiff also argues that the Sudbury police would not have been in Ottawa but for the invocation of the Act. Again, even if that is true, that does not make municipal police officers “servants” of the Federal Crown. Neither the Act, the Regulations nor the Economic Order mandated or authorized municipal police forces outside of Ottawa to police the “Freedom Convoy” protests. Rather, police officers appointed pursuant to the PSA have authority to act as peace officers throughout Ontario (see s. 42(2) of the PSA and s. 82(2) of the Community Safety and Policing Act, 2019).

[25] Based on the above, I find that it is plain and obvious that the AGC is not vicariously liable for the conduct of municipal police officers and provincial Crown Attorneys. Whether pled in tort or as Charter violations, the AGC is not vicariously liable for these state actors. Given this finding, it is unnecessary to address whether the Charter violations and torts alleged against the municipal police officers and provincial Crown Attorneys are adequately pled.

[26] The same vicarious liability issues do not arise with respect to the alleged Charter violations caused by the invocation of the Act and the making of the Regulation and the Economic Order. Claims under s. 24(1) of the Charter are public claims against the state (Vancouver (City) v. Ward, 2010 SCC 27, para. 22; Canada (Attorney General) v. Power, 2024 SCC 26, para. 36). The declaration of a public order emergency under the Act was made by the Governor in Council (“GIC”): see s. 17 of the Act. The Regulation and Economic Order were also made by the GIC. The Charter applies to decisions made by the GIC: see Slaight Communications Inc. v. Davidson, para. 87, and Operation Dismantle v. The Queen.

[27] As such, the plaintiff’s Charter claim with respect to the invocation of the Act, and the making of the Regulation and the Economic Order is not doomed to fail. As noted above, Mosley J. found that parts of the Regulation and Economic Order violate ss. 2(b) and 8 of the Charter: see Canadian Frontline Nurses. I recognize that this decision is not binding on me and has been appealed. That said, Mosley J.’s findings demonstrate that this claim is not doomed to fail.

[28] The Amended Claim does not include a prayer for relief, nor does it claim damages pursuant to s. 24(1) of the Charter which were included in the initial statement of claim. I find that these are merely deficiencies in the pleading. The amended claim makes it clear that the plaintiff suffered injuries from the impugned conduct and is seeking compensation for the injuries. However, r. 25.06(9) requires the statement of claim to include a pleading on the relief sought. Furthermore, monetary damages for Charter breaches can only be obtained pursuant to s. 24(1). As such, and as a purely technical matter, I strike the plaintiff’s claim in paras. 1-4 of the Amended Claim with leave to amend to correct these deficiencies.

[29] As noted above, the Amended Claim does not allege that the GIC committed the tort of misfeasance in public office by declaring a public order emergency. As a result, I make no ruling with respect to such a claim. If the plaintiff amends her claim to include a claim of misfeasance in public office for the invocation of the Act, then the AGC can determine whether any further motions are necessary. For example, there is some jurisprudence that suggests that the GIC is not a “servant” of the Federal Crown (see Pacific Shower Doors (1995) Ltd. v. Osler, Hoskin & Harcourt LLP, 2011 BCSC 1370, paras. 111-113; 9255-2504 Québec Inc. v. Canada, 2022 FCA 43, paras. 48-60). I make no ruling on this issue in the absence of a pleading that alleges misfeasance in public office against the GIC and in the absence of full submissions on the tenability of such as claim.

[30] Because I have not struck the entire claim, I must address the AGC’s alternative request for relief.

[31] There are many paragraphs of the Amended Claim that violate the rules of pleading (i.e. irrelevant pleadings, inflammatory pleadings, pleadings of argument and evidence). The following paragraphs are struck as improper pleadings: last two sentences of the first paragraph identified as paragraph 2; para. 4; para. 6; last sentence of para. 10; para. 12; the last sentence in para. 14; last three sentences of para. 16; last two sentences of para. 18; para. 19; para. 20; para. 22; first sentence of para. 24; first sentence of para. 25; para. 33; para. 35; first sentence of para. 38; para. 39; para. 42; first three sentences of para. 43; first sentence of para. 44; para. 46; para. 64; and para. 65.

[32] If the plaintiff chooses to further amend the Amended Claim, then the amendment must comply with the Rules. Specifically, a proper pleading does not: (a) plead evidence (e.g. pleadings relating to videos that will be played during the trial); (b) include argumentative pleadings (see para. 3 of the Amended Claim); (d) ask rhetorical questions (see para. 14 of the Amended Claim); and (e) include irrelevant pleadings (e.g. pleadings describing the policing of the G20 protests).

[33] To ensure that the action moves forward in a timely manner, I order that any further amendments be made within 90 days of the release of this decision.

D. Conclusion

[34] The claim that the AGC is vicariously liable for the conduct of the municipal police officers and the provincial Crown Attorneys is struck without leave to amend. It is not plain and obvious that the plaintiff’s Charter challenge to the declaration of a public emergency, the Regulation and the Economic Order will fail. However, as a purely technical matter, this cause of action is also struck with leave to amend the Amended Claim to include a prayer for relief and reliance on s. 24(1) of the Charter. Finally, the paragraphs or portions of paragraphs identified in paragraph 31 above are struck as they are improper pleadings. Any amendment to the Amended Claim must be made within 90 days of the release of this decision.

E. Costs

[35] The AGC was substantially successful on the motion and is entitled to a portion of its partial indemnity costs. I order the plaintiff to pay costs to the defendant in the amount of $1,200.00 inclusive of disbursements. While a significant piece of the plaintiff’s claim can proceed (once amended), I find that the AGC’s motion significantly narrowed the issues at play in the action.

S. Mathai

Released: June 3, 2025