Docket: T-1383-14
Citation:
2014 FC 896
Ottawa, Ontario, September 19, 2014
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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ANTON OLEYNIK
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Plaintiff
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and
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THE ATTORNEY GENERAL OF CANADA
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Defendant
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ORDER AND REASONS
[1]
By Notice of Motion dated July 4, 2014, the
Attorney General of Canada (the “Defendant”) seeks an Order pursuant to Rules
221(1)(a), 221(1)(c) and 221(1)(f) of the Federal Courts Rules,
SOR/98-106 (the “Rules”) striking out the Statement of Claim of Anton Oleynik
(the “Plaintiff”), with costs.
[2]
The Plaintiff is a professor at Memorial University in Newfoundland and Labrador. In his Statement of Claim, he seeks damages
based, in part, upon allegations that the Defendant breached the Privacy Act,
R.S.C. 1985, c. P-21 (the “Privacy Act”) and the Access to Information Act,
R.S.C. 1985, c. A-1 (the “Access Act”), relative to an application he had made
for funding to the Social Sciences and Humanities Research Council of Canada
(“SSHRC”), that is a grant for research in the social sciences. He seeks
damages in the amount of $ 643,955 as compensation for damage to his reputation
and for loss of opportunity to receive research grants.
[3]
In a motion to strike on the grounds that the
Statement of Claim discloses no reasonable cause of action, pursuant to Rule
221(1)(a) of the Rules, no evidence can be submitted; see Rule 221(2). The
Court is to accept that the allegations that are capable of being proven, are
true; see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. That
principle does not apply to allegations based on speculation and assumptions;
see Operation Dismantle Inc. v. The Queen (1985), 18 D.L.R. (4th) 481
(S.C.C.) at pages 486 - 487 and 490 – 491.
[4]
Having regard to the contents of the Statement of
Claim and the submissions of the parties, I am satisfied that the Statement of
Claim should be struck as failing to disclose a reasonable cause of action.
[5]
According to the decision in Bérubé v. Canada
(2009), 348 F.T.R. 246 at paragraph 24, in order to disclose a reasonable cause
of action, a claim must show the following three elements:
i.
allege facts that are capable of giving rise to
a cause of action;
ii.
disclose the nature of the action which is to be
founded on those facts; and
iii.
indicate the relief sought, which must be of a
type that the action could produce and that the Court has jurisdiction to
grant.
[6]
The Plaintiff’s Statement of Claim consists of
39 paragraphs, set out with headings as follows:
i.
Introduction: paragraphs 1 – 2;
ii.
Background information: paragraphs 3-11;
iii.
SSHRC’s actions that caused damage
to Dr. Oleynik: paragraphs 12 – 36;
iv.
Damages: paragraphs 37 – 39.
[7]
At paragraph 1, the Plaintiff says the
following:
This is a claim against the Attorney General of
Canada. The basic nature of the claim is the failure of the Social Sciences
and Humanities Research Council of Canada (SSHRC) to comply with its own rules
and regulations regarding due procedure as well as with requirements of the
Privacy Act (R.S.C., 1985, c. P-21) and the Access to Information Act (R.S.C.,
1985, c. A-1), namely, by unduly collecting the Applicant’s personal
information and breaching his privacy. In consequence of these actions the
Applicant (Dr. Anton Oleynik, an Associate professor of sociology at Memorial
University of Newfoundland) suffered damages that amount to $643,955 [sic].
[8]
The Plaintiff is essentially presenting a claim
for non-compliance with processes related to his application for a SSHRC
grant. He alleges that he was “blacklisted” as an assessor of proposals submitted
to SSHRC and that SSHRC improperly used his personal information, thereby
breaching both the Privacy Act and the Access Act. The alleged “blacklisting”
occurred with respect to his research proposals from 2008 to 2014. The
Plaintiff also alleges that SSHRC discriminated against him by sanctioning him,
in violation of SSHRC’s policy of non-discrimination.
[9]
The Defendant claims that the Statement of
Claims consists of bare assertions, speculation and conclusory statements, and
fails to plead facts that disclose a cause of action. He argues that the
Statement of Claim fails to disclose a reasonable cause of action as required
by Rule 221(1)(a), is scandalous, frivolous and vexatious contrary to Rule
221(1)(c), and represents an abuse of process contrary to Rule 221(1)(f).
[10]
The Plaintiff claims that SSHRC failed to follow
its internal rules and regulations. Insofar as this is a claim about process,
it may subject to an application for judicial review. There is no known cause
of action for such a complaint.
[11]
The Plaintiff alleges that SSHRC discriminated
against him by “blacklisting” him after he criticized its handling of private
information.
[12]
There are no facts to support this allegation.
In any event, there is no intentional tort of discrimination in Canada; see the decision in Seneca College v. Bhaduria, [1981] 2 S.C.R. 181 at
paragraphs 26 – 27. Further, any complaints about discrimination should be
pursued under relevant human rights legislation.
[13]
The Plaintiff alleges that SSHRC breached
section 5 of the Privacy Act by collecting personal information from his
employer rather than from him directly. He also claims that SSHRC improperly
used his personal information because it refused to correct personal
information after he formally asked it to do so pursuant to subsection 12(2) of
the Privacy Act. He has made several complaints to the Privacy Commissioner
and the Statement of Claim refers to a report dated February 2014, released by
the Office of the Information Commissioner of Canada (the “Information
Commissioner”), finding that his complaints were “well-founded”.
[14]
The Plaintiff is complaining about alleged
breaches of the Privacy Act. His remedy in that regard is to proceed by way of
judicial review. If, at the end of that process, he can show a legitimate
wrong, that is the time to commence an action. His action is premature.
[15]
There is no free-standing right to bring an action
for breach of legislation; see the decision in Saskatchewan Wheat Pool v.
Canada, [1983] 1 S.C.R. 205 at page 225. Breach of a statute must be
considered in the context of the general law of negligence; see Collins v.
Canada (2010), 366 F.T.R. at paragraph 38, affirmed by Collins v R.
(2011), 418 N.R. 23 (F.C.A.).
[16]
In order to obtain a remedy for statutory
breach, the Plaintiff must show a breach of a statutory duty of care; see the
decision of the trial judge in Collins, supra, at paragraph 39.
The Plaintiff has not established the elements of negligence to support a claim
against SSHRC that it negligently breached the Privacy Act.
[17]
If the Plaintiff takes issue with the findings
of the Information Commissioner, his remedy lies in an application for judicial
review.
[18]
I agree with the arguments made by the Defendant
that the Statement of Claim, as drafted, fails to disclose a reasonable cause
of action. Insofar as the Plaintiff complains about misuse of discretion by
SSHRC officials and improper access to his personal information, these are
issues that are more appropriately dealt with by way of an application for
judicial review, properly constituted.
[19]
In my opinion, the Plaintiff has failed to
disclose a reasonable cause of action for the foregoing reasons and the
Statement of Claim should be struck without leave to amend.
[20]
I will briefly address the Defendant’s
submissions that the Plaintiff’s Statement of Claim should be struck pursuant
to Rule 221(1)(c), that is as being scandalous, frivolous and vexatious. In
considering a motion to strike on these grounds, the Court is required to
consider the merits of the claim; see the decision in Blackshear v. Canada,
2013 FC 590 at paragraph 12.
[21]
In my opinion, the Statement of Claim should be
struck on the basis of Rule 222(1)(c), as well. There are no facts pleaded to
support a cause of action. The allegations are either unsupported or are
speculative; for example, paragraphs 17, 20 – 21 and 30 of the Statement of
Claim, read as follows:
17. In the 2010-2011 competition [sic] the
program officer exercised his discretion in an undue manner. The program
officer, an individual without a PhD degree and experience in conducting
research, has the discretion to make ‘the final selection of external
assessors’ (Document H [sic], page 12). SSHRC was criticized by members
of the panel of international experts, who evaluated the SSHRC operation, for
giving the program officer waste discretionary powers (Document G [sic],
page 3, see also Document L [sic]). To draw a relevant parallel, if a
similar arrangement existed in the judicial system, the assignment of judges to
particular cases would be registry officers’ exclusive privilege.
20. In the final account members of the
adjudication committee gave an eliminatory (‘unsatisfactory’) score for the
‘appropriateness of the requested budget, and justification of proposed costs’
(Documents EE [sic], page 3) without consulting relevant supporting
documents [sic]. The score for the project’s feasibility turned to
be the lowest (3.4 out of 6), and its resulting rank ‘was not high enough for
an award to be made from the available competition budget’. All the other
scores were high warranting an award.
21. One more time, the program officer
exercised her discretion in the recruitment of external assessors in an undue
manner. 7 external assessors were contacted, including two after the program
officer had secured the commitment of two other assessors. The SSHRC automated
tracking system does not contain any information on responses of the two
assessors invited on January 31, 2014 (Document DD [sic], page 3), which
creates opportunities for ‘massaging’ the information available to the
adjudication committee.
30. The OIC documented several breaches of the
Access to Information Act committed by SSHRC’s management (Documents J, GG
& MM) [sic]. It must be noted that SSHRC’s representatives supplied
OIC’s investigators with incomplete and/or erroneous information at times,
which shall be taken into account when the Court considers the Statement of
defence and documents produced by the Respondent in its support (Document QQ)
[sic].
[22]
Since the Statement of Claim fails to disclose a
reasonable cause of action and is otherwise defective pursuant to Rule
222(1)(c), I am satisfied it represents an abuse of process per Rule 221(1)(f).
[23]
It is an abuse of process to re-litigate
essentially the same dispute when earlier attempts at relief have failed; see
the decision in Black v. NsC Diesel Power Inc. (Bankrupty) et al.
(2000), 183 F.T.R. 301 at paragraph 11. The substance of this dispute has
already been considered by this Court on two previous occasions. In both cases,
the applications were dismissed; see the decisions in Oleinik v. Canada
(Privacy Commissioner), 2011 FC 1266, affirmed by Oleinik v. Canada
(Privacy Commissioner) 2012 FCA 229, and Oleinik v Privacy Commissioner
(Can.) (2013), 425 F.T.R. 228. The Plaintiff’s present action is
therefore an abuse of process.
[24]
In the result, the Defendant’s motion is granted
and the Statement of Claim will be struck without leave to amend.
[25]
Leave to amend pleadings will be granted where
there is a curable defect in the pleadings; see the decision in Simon v.
Canada (2011), 410 N.R. 374 (F.C.A.). In my opinion, there is no such
curable defect here, given that Canadian law does not recognize an intentional
tort of discrimination, nor a freestanding right to bring action for statutory breach.
[26]
The Defendant seeks his costs. I see no reason
to depart from the usual Rule that costs follow the event. Accordingly, in the
exercise of my discretion pursuant to the Rules, I award costs in the amount of
$500.00 inclusive of HST and disbursements.
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