Court File and Parties

Court File No.: CV-23-00695473-0000

Date: 2025-09-15

Ontario

Superior Court of Justice

Between:

Ahmad Mohammad, Plaintiff (Responding Party)

– and –

Attorney General of Canada, Defendant (Moving Party)

No one appearing

Ryan Deshpande, for the Defendant (Moving Party)

Heard: August 19, 2025

Reasons for Judgment

JOHN CALLAGHAN J.

Introduction

[1] This is a motion to strike the Plaintiff's Amended Statement of Claim under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The claim seeks relief relating to the medical assistance in dying ("MAID") provisions of the Criminal Code, R.S.C. 1985, c. C-46.

Background

[3] The Plaintiff, Ahmad Mohammad, is self-represented. He did not appear on this motion, although he was aware of the motion date. Mr. Mohammad suffers from Asperger's syndrome, a form of autism. He sues the federal government in the name of the Attorney General of Canada regarding the MAID legislation. His pleading has been subject to two prior attacks.

Proceedings to Date

[4] Mr. Mohammad initially issued a brief Statement of Claim. The claim addressed the fact that the MAID legislation excluded mental illness from those medical conditions that qualify. The federal government sought to have it struck under the summary provisions of r. 2.1, which provides the court with a process to weed out the clearest of cases that are considered frivolous and vexatious. In concluding that the proceeding was not frivolous and vexatious, Justice Centa stated the following: "Read generously, the plaintiff seeks relief akin to a constitutional exemption to permit him to access the MAID regime. The hurdles he faces in seeking this relief are many and high." Nevertheless, he concluded that "this claim, read generously, raises issues that could be placed before the court.": Mohammad v. Government of Canada (8 June 2023), Toronto, CV-23-00695473-0000 (Ont. S.C.) (Endorsement of Justice Centa), at p. 2.

[5] The matter proceeded and was case managed by Justice Papageorgiou. The federal government sought to bring a motion to strike the Statement of Claim. It was argued that the Statement of Claim was void of any detail and consisted of the "bare allegation that the delay in repealing the exclusion of MAID solely on the grounds of mental illness is 'unconstitutional' and/or 'irresponsible'.": Mohammad v. Government of Canada, 2023 ONSC 6137, 169 O.R. (3d) 380, at para. 9. In a case conference, Her Honour determined a motion was not required at that time and directed that the Plaintiff file an Amended Statement of Claim. The Plaintiff, at para. 16, was directed to address the government's concerns and to set out the following:

• The details of all of the plaintiff's mental and physical illnesses
• If he is seeking to argue that the exclusion is unconstitutional, then the section of the Charter he relies upon.
• The specific legislation that the Plaintiff says is unconstitutional if that is his argument.
• The details of any application for MAID that he has made and any refusals that he has received.

[6] An Amended Statement of Claim was issued in November 2023, which is now the subject of this motion.

[7] This motion date was set in February 2024. The Plaintiff failed to meet the filing deadline for responding material in September 2024. A case conference was convened before Justice Papageorgiou. The Plaintiff was advised he may seek leave, if he wished, to file any responding material. Her Honour went on to direct that this hearing date would proceed regardless of whether the Plaintiff filed material or even showed up for the hearing.

[8] The Plaintiff filed no responding material and did not attend this hearing.

MAID Legislation

[9] After the Supreme Court of Canada's decision in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the government of Canada introduced amendments to the Criminal Code paving the way for a MAID regime. The amendments were contentious, and it took time for Parliament to enact them. Under the Criminal Code, it is an offence to assist another to commit suicide. The amendments provide a limited exemption from prosecution under the Criminal Code for those medical and nurse practitioners who assist a person with dying. There are very specific legislative requirements for the exemption to apply.

[10] To be eligible to receive MAID, s. 241.2(1) of the Criminal Code requires that a person must satisfy all of the below criteria:

• be at least 18 years of age and capable of making decisions with respect to their health;
• be eligible for - or but for any applicable minimum period of residence or waiting period would be eligible for - publicly funded healthcare;
• have a "grievous and irremediable medical condition";
• make a voluntary request for MAID that, in particular, was not made as a result of external pressure; and
• give informed consent to receive MAID after having been informed of the means that are available to relieve their suffering, including palliative care.

[11] Subsection 241.2(2) of the Criminal Code provides that a person has a "grievous and irremediable medical condition" only where

• they have a serious and incurable illness, disease, or disability;
• they are in an advanced state of irreversible decline in capability; and
• that illness, disease, or disability, or that state of decline, causes them to endure physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable.

[12] Under s. 241.2(3), the person is required to be assessed by two medical practitioners and both must be of the opinion that the person meets the requirements under s. 241.2(1). The medical professionals must also:

• ensure that the person's request for medical assistance in dying was
  • (i) made in writing and signed and dated by the person or by another person under s. 241.2(4), and
  • (ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition;
• be satisfied that the request was signed and dated by the person before an independent witness who then also signed and dated the request; and
• ensure that the person has been informed that they may, at any time and in any manner, withdraw their request.

[13] There are other safeguards provided in the Criminal Code, which are intended to ensure only those who are qualified, truly desirous, and freely willing receive MAID. A failure to abide by the criteria may result in the prosecution of the medical practitioners involved.

[14] After the initial legislative amendments, the reasonably foreseeable requirement was challenged as being contrary to ss. 7 and 15 of the Charter: Truchon c. Procureur général du Canada, 2019 QCCS 3792. In 2021, Parliament amended the definition of a "grievous and irremediable medical condition" to expand eligibility to those whose natural death was not reasonably foreseeable.

[15] At the same time, Parliament added s. 241.2(2.1) to the Criminal Code, clarifying that, for the purposes of the eligibility criteria under s. 241.2(2)(a), "a mental illness is not considered to be an illness, disease or disability." This exclusion was set to expire after two years, on March 17, 2023, but is now set to expire on March 17, 2027. The matter of whether mental illness should qualify for MAID is being considered by Parliament, and the delay in the expiry of this exclusion is driven by the complexity of considering in what circumstances MAID should be available for those with mental illness as the sole underlying condition for their MAID request. This is a matter currently under consideration by Parliament.

[16] When s. 241.2(2.1) was enacted, the Parliamentary record included a legislative background paper, which specifically said the amendment referring to mental illness was not intended to capture autism as a mental illness: House of Commons, Legislative Background, Bill C-7: Government of Canada's Legislative Response to the Superior Court of Québec Truchon Decision, 43-2 (21 October 2020), at p. 8. The paper provided:

Despite the absence of a single clear definition of mental illness, in the context of Canadian discussions on MAID, this term has come to be understood as generally referring to those conditions which are primarily within the domain of psychiatry, and which raise specific types of concerns as set out above, when it comes to eligibility for MAID. In the context of the federal MAID legislation, the term "mental illness" would not include neurocognitive or neurodevelopmental disorders, or other conditions that may affect cognitive abilities, such as dementias, autism spectrum disorders or intellectual disabilities, which may be treated by specialties other than psychiatry (such as neurology for neurodegenerative or neurodevelopmental conditions) or specialties outside of medicine (such as education specialists for intellectual disabilities) and do not raise the specific concerns outlined above. (emphasis added)

[17] The paper also made the point that a mental illness would not prevent a person from accessing MAID if the person also had an eligible illness that did qualify:

Moreover, although persons suffering solely from a mental illness would not be eligible for MAID, persons suffering from both a grievous and irremediable physical medical condition and a mental illness would not be excluded from the regime (e.g., someone suffering from clinical depression who also has a spinal cord injury). (emphasis in original)

Amended Statement of Claim

[18] The Amended Statement of Claim lacks a certain amount of clarity. In saying that, I appreciate the Plaintiff is self-represented, and drafting pleadings is not an easy task. The court recognizes this, and, in considering motions of this type, the claim is read generously to avoid striking an otherwise meritorious action. Nonetheless, it is the Amended Statement of Claim that must be considered in a motion of this nature.

[19] The Amended Statement of Claim describes the Plaintiff as being diagnosed with high-functioning autism (Asperger's syndrome) in 2015 and complex post-traumatic stress disorder ("PTSD") in 2020. The Plaintiff asserts that he has been waiting to receive MAID since March 17, 2021. On February 1, 2023, the Plaintiff alleges he emailed the Prime Minister of Canada to assist with the facilitation of his application for MAID due to his doctor's "rigid mentality". Shortly thereafter, on February 2, 2023, the legislation was introduced to extend the temporary exclusion of eligibility for MAID for those whose sole underlying condition is mental illness until March 17, 2024.

[20] Mr. Mohammad pleads that the legislative amendment excluding mental illness was brought about because of his complaint to the Prime Minister. In any event, he claims that the exclusion is "unconstitutional" as a violation of the equality provisions under s. 15 of the Charter.

[21] He asserts that his autism condition is incurable. The mental illness claim was much briefer when his initial statement of claim was considered by Justice Centa. In the now amended claim, the Plaintiff added that he also suffers from PTSD. However, he does not plead that he has ever requested a MAID assessment by a medical practitioner or that he was denied MAID due to a mental illness. Rather, he makes a series of allegations against two doctors – one of which the Plaintiff asserts ended their doctor/patient relationship when he asked for MAID and another who called the police stating the Plaintiff "trespassed his property when requested by him to approve my MAID application" (sic). He makes further allegations against a lawyer and asserts the federal medical assistance in dying phone services were unhelpful.

[22] The Plaintiff seeks two types of relief in the amended claim: (1) to exempt his MAID application from the extended mental illness exclusion; and (2) to "carry all of the costs for the legislations until the commission of [his] MAID application is rendered" (sic). Although the amended claim does not seek declaratory relief, the Plaintiff also pleads that a remedy under s. 52(1) of the Constitution Act, 1982 would terminate the "collective punishment" imposed by the exclusion.

Analysis

[23] Rule 21.01(1)(b) of the Rules of Civil Procedure provides that a claim may be struck on the ground that it discloses no reasonable cause of action. A claim will only be struck under r. 21.01(1)(b) where it is "plain and obvious" that it has no reasonable prospect of success. In R. v. Imperial Tobacco Canada, 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 19-21, the Court recognized that striking out cases without any prospect of success is a "valuable housekeeping measure" in that it promotes litigation efficiency, reducing time, and costs, although the power to do so must be undertaken with care.

[24] The motion proceeds on the assumption that the facts pled are capable of proof, unless it is clearly not the case. The facts are what ground the cause of action. The facts in a pleading must be clearly pled as they are the "basis upon which the possibility of success of the claim must be evaluated": Imperial Tobacco, at para. 22. However, where legislation is being considered, the court may have regard to the materials considered by Parliament, including background papers: Imperial Tobacco, at para. 128; Ruth Sullivan, The Construction of Statutes, 7th ed. (Markham: LexisNexis Canada, 2022), ss. 23.01, 23.03[1][a].

[25] As the facts pled are accepted for purposes of the court's analysis, evidence is, generally, not permissible in determining whether a claim discloses a reasonable cause of action. However, courts may consider evidence of legislative intent to discern the proper interpretation of a statute in assessing a Plaintiff's claim.

[26] The need for a fact-based determination is heightened in Charter cases. As Justice Cory put it in MacKay v. Manitoba, [1989] 2 S.C.R. 357, at p. 366, "the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position" (emphasis added): see Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, at para. 22.

[27] Where the challenge involves Charter relief, the Plaintiff must "establish a threat of violation, if not an actual violation, of their rights under the Charter": Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, at p. 450. As such, the facts pled must be able to be construed as giving rise to a threat or an actual violation.

[28] To establish a violation of s. 15(1) of the Charter, Mr. Mohammad must establish that

a) the challenged law or state action creates a distinction, on its face or in its impact, on the basis of an enumerated or analogous ground; and

b) the distinction imposes a burden or denies a benefit in a discriminatory manner, by having the effect of reinforcing, perpetuating or exacerbating disadvantage: Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113, at para. 27; Ontario Teacher Candidates' Council v. Ontario (Education), 2023 ONCA 788, 168 O.R. (3d) 721, at para. 66; Ontario v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at paras. 40-42; R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at paras. 28, 188.

[29] The factual foundation of this claim is that Mr. Mohammad believes he has or will be denied MAID due to his Asperger's syndrome. As reviewed, the legislative scheme provides that eligibility is dependent on a medical assessment of the criteria in s. 241.2(1) of the Criminal Code. The assessment is to be done by qualified medical practitioners whose liability to prosecution for assisting the death is then exempt.

[30] In this case, the federal government argues that the claim does not contain the required facts to establish that the Plaintiff was denied MAID due to his mental condition. While a generous reading of the Amended Statement of Claim is that the Plaintiff wishes to assert that he was denied MAID because he suffered from a mental illness, nowhere is it pled that he underwent the required assessments and that he was denied for that reason.

[31] I agree with the Defendant that these are crucial facts necessary to ground the claim. The legislative requirements are intended to ensure that the medical practitioners are of the opinion that the person either does or does not qualify for MAID in accordance with the Criminal Code amendments. In this case, not only is there no plea of any assessment of any medical condition that may or may not qualify Mr. Mohammad for MAID, but there is no plea of a denial to be accepted into MAID after a medical assessment. The two assessments are a precondition to qualify for assisted dying. They are integral to the legislative scheme.

[32] As such, there is no factual foundation that the Plaintiff was denied MAID because a medical practitioner assessed his Asperger's syndrome as disqualifying because that practitioner believed it to be a "mental illness" under s. 241.2(2.1). As noted, the parliamentary record contains a briefing paper that autism, which would include Asperger's syndrome, is not a mental condition. If the briefing paper is correct, Mr. Mohammad's Asperger's syndrome would not result in a denial of the request, provided all other elements of the MAID test in s. 241.2(1) of the Criminal Code were met. Even if it could be argued that Asperger's syndrome is a mental condition, there has been no assessment of the other criteria under the section, which are a precondition to be eligible for MAID. This was undoubtedly what Justice Papageorgiou was addressing when she required the Plaintiff to include the details of any MAID application in his amended claim.

[33] This court is not equipped to make the assessment under s. 241.2(1). Parliament has legislated that those assessments are to be made by the stipulated health care professionals. As stated by the Nova Scotia Court of Appeal in Sorenson v. Swinemar, 2020 NSCA 62, 453 D.L.R. (4th) 408, at para. 63, Parliament intended that "the determination of MAID eligibility should rest with authorized medical and nursing professionals not with judges."

[34] Without an assessment, there is no factual foundation that Mr. Mohammad was in a position that his right to MAID was either denied or threatened to be denied. Thus, there is no factual foundation that his Charter right was violated, as per Operation Dismantle.

[35] This case is akin to Foley v. Victoria London Health Sciences Centre, 2023 ONSC 7155, 542 C.R.R. (2d) 145. In that case, Justice Centa was also considering a challenge to the MAID legislation. Opposing the legislation, Mr. Foley did not want to die but alleged that medical professionals encouraged him to do so. He then challenged the MAID regime. Justice Centa concluded that Mr. Foley failed to plead material facts showing that he was impacted by the legislation. Mr. Foley could not tenably plead that he had either made a request for MAID or had provided informed consent, both of which were preconditions to being eligible for MAID under ss. 241.2(1)(d) and (e) of the Criminal Code. In striking the claim, Justice Centa, at para. 86, commented:

Given the facts pleaded by Mr. Foley, it is plain and obvious that he was never eligible for MAID. Any medical practitioner pressuring Mr. Foley would not be able to avail themselves of the MAID exemptions from the Criminal Code prohibitions on homicide or counselling or aiding suicide. Mr. Foley's challenge to the MAID provisions is hypothetical and not the proper subject of an action.

[36] I note that in Truchon, it was the very denial of the MAID application that grounded the successful argument in that case.

[37] In this case, there are no facts pled that the Plaintiff had an assessment or that assessments resulted in a denial due to mental illness. Not only is there no assessment as to the Plaintiff's eligibility for MAID, but there is no conclusion that Asperger's syndrome would result in a denial. I do not need to decide the question whether autism is a mental illness, although I recognize that Parliament was advised otherwise. Nonetheless, any such debate only heightens the need for a proper factual record, which requires an actual denial to be assessed. In the absence of any denial, there is no basis to establish a denial of a Charter right or any differential treatment under s. 15(1) of the Charter as implied by the Amended Statement of Claim. Accordingly, the claim does not disclose a tenable cause of action, and the Amended Statement of Claim is struck.

[38] The Attorney General argues that the claim should be struck without leave to amend. Counsel points to the fact that there was a direction from Justice Papageorgiou that the Plaintiff plead the details of any application for MAID that he has made and any refusals that he has received.

[39] The case law generally favours that a plaintiff be permitted to further amend an otherwise struck claim, if possible. Indeed, the ability to seek leave to amend should be denied "only in the clearest of cases": South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.

[40] I am satisfied that as currently framed this action has no chance of success. However, I am also cognizant that the Plaintiff, as a self-represented litigant, may not have fully understood the earlier direction of Justice Papageorgiou. Moreover, there is no evidence of prejudice to the Defendant if leave to amend is granted. In the circumstances, I would allow the Plaintiff one more opportunity to amend the claim. Of course, what is missing here is a factual allegation. In permitting a right to amend, the court is not inviting Mr. Mohammad to make an unsubstantiated allegation, but instead, the court wishes to ensure that there has been no misapprehension in this process. To provide some finality and given there has already been direction given to the Plaintiff by this court on the need for particulars of any MAID application, any motion by the Plaintiff seeking leave to amend must be brought within 90 days of this decision. Any motion brought shall require the Plaintiff to adduce evidence to satisfy the court of a triable issue relating to his denial of MAID based on his Asperger's syndrome.

[41] As no costs were requested, none will be ordered.

Disposition

[42] The motion is granted. The Amended Statement of Claim is struck with leave to bring a motion for leave to further amend as discussed above. A draft order may be submitted by the Defendant for my review and approval.

Callaghan J.

Released: September 15, 2025