Docket: T-787-25
Citation: 2026 FC 33
Ottawa, Ontario, January 9, 2026
PRESENT: The Honourable Justice Fuhrer
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BETWEEN: |
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ADAN MCINTOSH |
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Plaintiff / Responding Party |
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and |
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ATTORNEY GENERAL OF CANADA |
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Defendant / Moving Party |
ORDER AND REASONS
I. Overview
[1] The Attorney General of Canada [Defendant or AGC] brings this motion in writing pursuant to rule 369 of the Federal Courts Rules, SOR/98-106 [Rules] for an order:
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removing the action from the operation of rules 294-299 [Simplified Action rules] of the Rules;
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striking out the claim in its entirety, without leave to amend pursuant to paragraphs 221(1)(a), (c) and (f) of the Rules;
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alternatively, ordering the plaintiff to provide security for costs in the amount of $3,960;
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also alternatively, extending the deadline for the service and filing of the Statement of Defence to thirty days from the date of this Court’s Order;
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awarding the Defendant costs of this motion, pursuant to subrule 400(1) of the Rules, in the amount of $500.00; and
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granting such further and other relief as this Honourable Court may permit.
[2] Adan McIntosh [Plaintiff or Mr. McIntosh] opposes the motion and requests an oral hearing. He argues that the Defendant was out of time to file the current motion. Notwithstanding his request for an oral hearing, Mr. McIntosh also informally asks for an adjournment of the Defendant’s motion in favour of hearing Mr. McIntosh’s motion first under rule 220 of the Rules to determine if his action is a proceeding against the Crown under subsection 48(1) of the Federal Courts Act, RSC 1985, c F-7. Mr. McIntosh also queries whether any judge of this Court, who risks a complaint by him to the Canadian Judicial Council [CJC], can hear this matter impartially.
[3] Having considered the parties’ motion records, including the AGC’s reply, and the applicable law carefully, I find that Mr. McIntosh’s Statement of Claim will be struck under paragraphs 221(a), (c) and (f) of the Rules because it fails to disclose a reasonable cause of action, is scandalous, frivolous or vexatious, and is an abuse of process.
[4] See Annex “A”
below for applicable legislative provisions.
[5] I next provide some background details for context, followed by a framing of the issues for the Court’s determination on this motion, and then an analysis of those issues.
II. Background
[6] Mr. McIntosh filed his claim under the Simplified Action rules seeking “a declaration that the Canadian Judicial Council (CJC), of [
sic] behalf of the Crown, breached the Charter rights of the plaintiff”
and a damages award of $20,000: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. The Statement of Claim names Adan McIntosh as the “Applicant”
and the Attorney General of Canada as the “Respondent.”
[7] The crux of the Plaintiff’s allegation is that the CJC “adopted a policy that it would no longer hear any further complaints about judges from the Plaintiff in any capacity”
(paragraph 10 of the Statement of Claim). He alleges that counsel representing the Respondent made statements to that effect during the hearing of a judicial review of CJC decisions in Court File T-234-23. Justice Christine M. Pallotta ultimately dismissed the judicial review in T-234-23, with reasons reported at McIntosh v Canada (Attorney General), 2024 FC 1434 [McIntosh 2024 FC].
[8] About a month after the claim was initiated, the Defendant filed a letter requesting that the Court exercise its discretion under rule 74 of the Rules to remove the Statement of Claim from the Court file.
[9] The Plaintiff responded with a letter opposing the Defendant’s request, arguing that the Court must solicit submissions before removing the Statement of Claim, and noting that the contents of the letter “are NOT my submissions on that issue.”
[10] Associate Judge Trent Horne issued a direction declining to remove the Statement of Claim from the Court file and indicating that the Defendant could make its objections in a motion to strike.
[11] Mr. McIntosh then submitted an ex parte motion for default judgment under rule 210 of the Rules, which was scheduled to be heard at general sittings in Toronto, Ontario on April 22, 2025.
[12] Prior to the scheduled hearing, Associate Judge John Cotter ordered that Mr. McIntosh’s motion be adjourned, sine die, for failing to comply with section 25 of Crown Liability and Proceedings Act, RSC 1985, c C-50 [CLPA]. The Court also ordered that the Plaintiff “may bring the motion for default judgment back on for hearing if section 25 of the CLPA has been complied with.”
Associate Judge Cotter’s order also amended the style of cause to identify Mr. McIntosh as the Plaintiff and the AGC as the Defendant.
[13] Mr. McIntosh filed a letter requesting that Associate Judge Cotter’s order be set aside because it was made “without notice and uncontested[,] contrary to the fundamental principle of
audi alteram partem.”
Mr. McIntosh stated that the Defendant is the Attorney General of Canada, not the Crown; hence, the reason why the matter was not filed under subsection 48(1) of the Federal Courts Act. Mr. McIntosh did not seek, however, to amend the Statement of Claim.
[14] The AGC responded to Mr. McIntosh’s letter by requesting procedural directions on next steps and the assignment of a case management judge. The AGC also stated an intention to bring a motion to strike in writing by April 22, 2025.
[15] Referring to the decision in Pintea v Johns, 2017 SCC 23 and the CJC’s Statement of Principles on Self-represented Litigants (2006), Mr. McIntosh filed a further letter, on April 21, 2025, requesting directions clarifying Associate Judge Cotter’s order. The letter questions the need to adjourn Mr. McIntosh’s motion absent a finding “that this is a proceeding against the Crown which would invoke s25 of the CLPA.”
[16] Two days later, the AGC filed its motion in writing.
[17] On April 24, 2025, the presiding judge issued a direction rejecting the Plaintiff’s ex parte motion for default judgment, proposed to be returnable on April 29, 2025, because Mr. McIntosh had not complied with section 25 of the CLPA which requires service on the Deputy Attorney General of Canada with at least 14 clear days notice.
[18] The same day, Mr. McIntosh submitted a further letter, alleging bias on the part of the Court’s Associate Judges because they responded to the AGC’s letters more quickly than to his letters. Mr. McIntosh also stated that the Court had not yet decided that this was a proceeding against the Crown such that the CLPA would apply, and that simply quoting “s25 of the
CLPA, does not make a decision.”
The Plaintiff further stated that the Defendant’s motion to strike was brought out of time, relying on Collins v Canada (Attorney General), 2024 FCA 6 [Collins 2024 FCA No 2] at para 11. Finally, Mr. McIntosh brought a motion requesting to be heard under rule 220 of the Rules to determine if this action is indeed a proceeding against the Crown.
[19] On April 28, 2025, Associate Judge Cotter ordered that the Plaintiff’s notice of motion seeking to be heard under rule 220, the accompanying motion record, and the affidavit of service be rejected for filing. Associate Judge Cotter also continued the proceeding as a specially managed proceeding and ordered that, “[s]ubject to any further Direction or Order, the scheduling of any pending or future motions, and the timetable for the steps associated with any such motions, shall be determined by the case management judge.”
[20] Mr. McIntosh did not appeal either of Associate Judge Cotter’s April 16 and April 28 orders.
[21] A case management conference was held with the parties on June 17, 2025.
[22] On September 2, 2025, Associate Judge Cotter, acting in his capacity as case management judge, ordered that the AGC’s motion to remove the action from the operation of the simplified procedure rules, and to strike out the Plaintiff’s Statement of Claim, or, in the alternative, for a security for costs, or, also in the alternative, an order extending the time for it to serve and file a Statement of Defence, shall be heard first, and that the timing of all other motions shall be dealt with after the Defendant’s motion is disposed of.
[23] Mr. McIntosh filed a responding motion record on September 26, 2025, while the AGC filed its reply on October 1, 2025.
[24] With this background in mind, I next summarize the issues for the Court’s determination on the AGC’s motion.
III. Issues
[25] Having read the parties’ motion material, I find that the following issues arise on this motion:
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Should an oral hearing be held or should the motion be disposed of in writing?
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Is the Defendant’s supporting affidavit on their motion to strike admissible?
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Should the claim be removed from the Simplified Action rules?
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Should the claim be struck pursuant to paragraphs 221(1)(a), (c) and (f) of the Rules?
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Whether the claim is struck, should the Plaintiff be permitted to amend it?
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If the claim is not struck, should the Plaintiff be required to provide security for costs?
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If the claim is not struck, is the Defendant entitled to an order extending the deadline for the service and filing of the Statement of Defence to thirty days from the date of the Court’s order?
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If successful on its motion, is the Defendant entitled to an award of costs?
[26] I deal with each issue in turn below.
IV. Analysis
A. The motion will be disposed of in writing.
[27] As I explain, I find that this motion is amenable to disposition in writing, in keeping with rule 3 of the Rules.
[28] The Court has the discretion to not order an oral hearing, even when one is requested by a party to a proceeding: Philbert v Canada, 2023 FC 1503 [Philbert] at para 10, citing Bernard v Canada (Attorney General), 2019 FCA 144 at para 14, and Rules, s 369(4). When deciding whether to exercise this discretion, relevant considerations “include the nature and complexity of the motion; the nature of the evidence and arguments; whether the Court has questions that could be answered during an oral hearing; whether the motion can be dealt with efficiently and expeditiously in writing; and the risk that conducting an oral hearing will simply increase costs and delay disposition of the matter”
: Philbert at para 10. I find that, here, neither the claim nor the motion is particularly lengthy or complex. Further, the arguments advanced by the Plaintiff on this motion do not raise questions for the Court necessitating an oral hearing.
[29] Regarding Mr. McIntosh’s concern about impartiality, I note “[t] here is a strong presumption that judges will obey their judicial oaths and act impartially”
: Collins v Canada (Attorney General), 2024 FCA 5 [Collins 2024 FCA] at para 12. This includes considering a party’s material and submissions carefully without bias or prejudgment.
[30] In his request for an oral hearing, Mr. McIntosh takes issue with Associate Judge Cotter’s “dismissal”
(i.e. adjournment sine die) of his motion for default judgment because it did not comply with section 25 of the CLPA. Mr. McIntosh posits that the CLPA may not even apply to this matter, which he describes as a “common law matter”
in his April 21, 2025 letter to the Court. Were that the case, however, in my view, it would remove this action from the ambit of section 17 of the Federal Courts Act, insofar as the claim for damages is concerned, thus putting the Court’s jurisdiction to entertain the action into serious question.
[31] Putting aside that the Statement of Claim refers specifically to the Crown in paragraph 1(a) of the claim, and the question of the Court’s jurisdiction to hear a common law matter not involving the Crown as a party, the Court is limited on this motion to the grounds raised by the AGC in the notice of motion: Collins v Canada (Attorney General), 2024 FC 1250 [Collins 2024 FC] at para 23, aff’d 2025 FCA 108 [Collins 2025 FCA]. These grounds are essentially whether the proceeding should be removed from the Simplified Action rules and whether the Statement of Claim should be struck. I am not persuaded by Mr. McIntosh’s arguments that the circumstances in which a separate decision of this Court was rendered justify an oral hearing for this motion. After all, this motion is not an opportunity for Mr. McIntosh to contest the adjournment of his motion by the Associate Judge.
[32] In addition, the fact that Mr. McIntosh is self-represented, in itself, does not entitle him to an oral hearing. The right to be “heard”
does not require necessarily an oral hearing. It may be satisfied by the Court’s consideration of written submissions alone as long as the Court is convinced that it can determine the motion fairly without the delay and expense of an oral hearing: Gagné v Canada, 2013 FC 331 at para 15, citing Jones v Canada (Minister of Citizenship and Immigration), 2006 FCA 279 at para 12.
[33] Mr. McIntosh has not provided any persuasive arguments to the effect that the Court would not be able to decide the matter fairly without an oral hearing. His reliance on the Supreme Court of Canada decision in Therrien (Re), 2001 SCC 35 at para 82, is misguided, in my view, because the case concerns the duty of procedural fairness in the context of administrative decision-makers. Even if it were arguable that those principles applied, I am not convinced that they would assist Mr. McIntosh in the circumstances, given the Supreme Court’s remarks that “the nature and extent of the duty may vary with the specific context and the various fact situations […], as well as the nature of the disputes”
: Therrien (Re) at para 82.
[34] While courts do have a duty to act fairly, they nonetheless have the right to control their own procedures and to preserve scarce judicial resources where warranted, as here: Li v Canada (Citizenship and Immigration), 2024 FCA 174 at para 14, citing Canada (National Revenue) v RBC Life Insurance Company, 2013 FCA 50 at para 36. Further, although a moving party may request that the Court deal with their motion in writing, and the responding may request an oral hearing, it is not for either party to control the process, as Mr. McIntosh seemingly implies at paragraph 38 of his written representations on this motion. This ultimately falls to the Court.
[35] Mr. McIntosh also argues no evidence is admissible on a motion to strike. I do not disagree with Mr. McIntosh entirely on this point, though I do point to some exceptions to this principle in the next section. Indeed, it is well established that, for the purposes of a motion to strike, the facts pleaded in a statement of claim must be accepted as proved unless based on assumptions or speculation, or incapable of proof: Tuharsky v O'Chiese First Nation, 2022 CanLII 20057 (FC) [Tuharsky] at para 20. This speaks, in my view, to the suitability of the motion for disposition in writing. This principle applies, for example, where, as here, a basis for the motion to strike is that the statement of claim discloses no reasonable cause of action, pursuant to paragraph 221(1)(a) of the Rules: Rules, s 221(2). I note that this does not mean the facts are considered proved for all purposes throughout the proceeding. To be sure, were this matter to have proceeded to trial, a significant proportion of the trial, i.e. the evidentiary stage, would have been devoted to proving the pleaded facts.
[36] In the circumstances, I find it unnecessary to hold an oral hearing in respect of the AGC’s motion to strike.
B. Defendant’s supporting affidavit is admissible
[37] Mr. McIntosh takes issue with the affidavit of Ryan Deshpande in the AGC’s motion record, arguing that no evidence is allowed on a motion to strike. Contrary to Mr. McIntosh’s assertion that the affidavit “has been provided in support of matters exclusive to the motion to strike,”
I disagree.
[38] I find that, instead, Mr. Deshpande’s affidavit speaks solely to the issue of security for costs which the AGC sought in the alternative if the Court did not strike out the claim in its entirety. The implication of the Court not striking out the entire claim is that the claim would proceed in some fashion, whether in whole or in part. It is only in those circumstances that the AGC sought security for costs. This is how I read points 2 and 3 of the AGC’s description in the Notice of Motion of what its motion is for and, hence, the issue to which Mr. Deshpande’s affidavit is directed.
[39] Further, although generally evidence is not required to dispose of a motion to strike pursuant to paragraph 221(1)(a) of the Rules, paragraph 364(2)(c) contemplates that a moving party’s motion record will contain one or more affidavits. Further, evidence is admissible on motions involving allegations of a lack of the Court’s jurisdiction or, as here, a motion to strike a pleading as an abuse of process pursuant to paragraph 221(1)(f): Tuharsky, above at para 13; Jarbeau v Canada (Attorney General), 2025 FC 1287 at para 10.
[40] Regardless, because the present motion includes a request for security for costs in the alternative to striking the entire claim, I find Mr. Deshpande’s affidavit is acceptable and admissible for the security for costs issue. Mr. McIntosh has not provided any arguments that persuade me otherwise. To the contrary, he has provided his own affidavit in his responding motion material that I find also speaks directly to the issue of security for costs.
C. The claim will be removed from the Simplified Action rules
[41] Mr. McIntosh relies on this Court’s decision in Collins 2024 FCA No 2, above at para 11, to argue that the AGC’s motion to strike was brought out of time (i.e. with respect to the Simplified Action rules) and that this decision is binding on the Court. I disagree with this argument because it takes the decision out of context and offers an untenable view of the Court’s discretion under rule 292 of the Rules.
[42] Mr. McIntosh’s position ignores, in my view, what transpired in and after the Federal Court of Appeal rendered its decision in Collins 2024 FCA No 2, in at least two key respects. First, the decision stemmed from an appeal by the plaintiff of a decision of an associate judge and, in turn, an appeal from this Court’s decision regarding the plaintiff’s motion under rule 51 of the Rules. Second, the Court nonetheless, on a subsequent motion, granted the defendant AGC’s requests to remove the matter from the simplified action rules and to strike the statement of claim, even though, as here, the defendant had not served and filed yet a statement of defence: Collins 2024 FC, above at paras 24-29; Collins 2025 FCA, above at para 6.
[43] As I noted in Collins 2024 FC, at paragraph 25, inherent in rule 292, which begins with the words “[u]nless the Court orders otherwise,”
is that the Court has discretion to order that an action not proceed under the Simplified Action rules. Contrary to Mr. McIntosh’s written representation on this motion, the Court’s ability to determine to what actions rules 294-299 apply is not limited by rule 292. More importantly, the outcome of a motion to strike can determine whether an action will proceed at all or in part. Put another way, a valid cause of action is fundamental to any proceeding and should be determined as early as possible in a proceeding: Collins 2024 FCA, above at para 27.
[44] Although Mr. McIntosh consents, in his written representations on this motion, to striking paragraph 1(a) of the Statement of Claim so that the matter can continue under the Simplified Action rules, this step, were it permitted at this stage, would not change the exercise of my discretion.
[45] The pendency of the AGC’s motion to strike means that Mr. McIntosh cannot rely on rule 200 of the Rules to amend the Statement of Claim at this time, absent a motion under subrule 75(1) for the Court’s leave (i.e. permission) to amend his pleading: Mohr v National Hockey League, 2021 FC 488 [Mohr 2021 FC] at para 18, aff’d 2021 FCA 179 [Mohr 2021 FCA], and aff’d 2022 FCA 145. As noted by the Federal Court of Appeal, a decision to strike results in no statement of claim to amend: Mohr 2021 FCA, above at para 10.
D. The claim will be struck pursuant to paragraphs 221(1)(a), (c) and (f) of the Rules
[46] The AGC asserts that the statement of claim should be struck under paragraphs 221(1) (a), (c) and (f) of the Rules, arguing that it is plain and obvious that the claim does not disclose a reasonable cause of action, and further, the claim is scandalous, frivolous or vexatious, and an abuse of process. I find that the determinative issue is whether the statement of claim discloses a reasonable cause of action, which, in my view, it does not. I nonetheless briefly consider paragraphs 221(1)(c) and (f) for completeness.
(1) Paragraph 221(1)(a) of the Rules
[47] The AGC argues that it is plain and obvious the claim cannot succeed because it fails to disclose a reasonable cause of action and should be struck on this basis. Mr. McIntosh argues that the issue of whether the action is proceeding under the Simplified Action rules should be determined before he is required to respond. I disagree with Mr. McIntosh, however, because this position is inconsistent with rule 3 of the Rules, which militates against the piecemeal handling of motions. Further, Mr. McIntosh has not provided any jurisprudence in support of this submission. He nonetheless has provided written representations that respond to the AGC’s motion.
[48] Assuming the pleaded facts are true, unless they are manifestly incapable of being proven, a claim generally will be struck only if it is plain and obvious that the claim discloses no reasonable cause of action or is lacking any reasonable prospect of success: R v Imperial Tobacco Canada Ltd, 2011 SCC 42 [Imperial Tobacco] at paras 17, 21-22 and 25. The Supreme Court of Canada guides that this valuable tool must be used with care; the approach must be generous, erring on the side of allowing a novel but arguable claim to proceed to trial: Imperial Tobacco, above at para 21. The principle that pleaded facts are to be taken as true does not apply, however, to allegations based on speculation and assumptions: Burke v Canada, 2021 FC 634 at para 34.
[49] To succeed on the motion, the AGC must show that the statement of claim is “so clearly improper as to be bereft of any possibility of success,”
i.e. that it is so fatally flawed it strikes at the heart of the Court’s ability to entertain it: JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), 2013 FCA 250 at para 47; Murphy v Canada (Attorney General), 2022 FC 146 at para 9. The Court’s focus is on the essence of the claim, read holistically and taking the pleaded facts as true: Oleynik v Canada (Attorney General), 2023 FC 303 at para 6, aff’d 2023 FCA 162.
[50] I agree with the AGC that it is plain and obvious the Statement of Claim discloses no reasonable cause of action.
[51] In his April 21, 2025 letter, Mr. McIntosh asserts that his action is a common law action. He relies for this proposition on Pierre v Pacific Press Ltd, 1993 CanLII 577 (BC CA) at para 12. While I have found above that Mr. McIntosh’s expressed intention is designed to circumvent the CLPA, he also unwittingly introduces a potentially fatal flaw to his action.
[52] The Federal Court is a statutory court that generally is not empowered to entertain common law actions, except in respect of some actions against the Crown further to section 17 of the Federal Courts Act. The Federal Court’s jurisdiction depends on three pre-requisites: (1) a statutory grant of jurisdiction by Parliament; (2) an existing federal law that nourishes the statutory grant of jurisdiction; and (3) the law on which the case is based must be “a law of Canada”
within the meaning of section 101 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5: ITO-Int'l Terminal Operators v Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 S.C.R. 752 at 766.
[53] Leaving aside the assertion that the claim is a common law action, and the question of the Court’s jurisdiction absent the Crown as a party, I nonetheless consider the issue of whether to strike it based on the Statement of Claim as presently on file with the Court. As mentioned above, the claim seeks a declaration that the CJC breached Mr. McIntosh’s Charter rights and an award of damages. At its core, the claim describes complaints Mr. McIntosh made to the CJC about several judges, including follow up correspondence from Mr. McIntosh, to which the CJC did not respond. While the claim asserts breaches of sections 7 and 15 of the Charter, the claim does not provide any other factual basis for how the CJC breached these sections.
[54] For example, the claim is bereft of facts pointing to legislation, the effect of which poses a threat to Mr. McIntosh’s life, liberty or security of the person, further to section 7 of the Charter. The rights under the Charter are not absolute, nor does the Charter protect against insignificant or “trivial”
limitations of rights: R v Jones, 1986 CanLII 32 (SCC) at para 68, citing Operation Dismantle Inc v The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at 489; Cunningham v Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143 at 151. A court’s role in relation to section 7 of the Charter is not to micromanage the creation or continuance of legislative prohibitions backed by penalties; rather, it is to identify the outer boundaries of legislative jurisdiction set out in the Constitution: R v Clay, 2003 SCC 75 at para 4.
[55] Mr. McIntosh submits that he should be at liberty to bring complaints against judicial officers to the CJC and have them considered. The Statement of Claim describes several complaints and follow up correspondence from Mr. McIntosh to which, he asserts, the CJC has not responded. The claim also refers, however, to this Court’s decision in McIntosh 2024 FC, which involved the judicial review of CJC decisions dismissing Mr. McIntosh’s complaints against three judges of the Ontario Superior Court of Justice.
[56] The claim takes issue with what transpired at the hearing resulting in the decision in McIntosh 2024 FC. The claim asserts that Crown counsel informed the judge that the CJC had adopted a policy that it no longer would hear any further complaints (i.e. apart from or following those that were in issue before Justice Pallotta) about judges from Mr. McIntosh in any capacity. According to the claim, Mr. McIntosh had no notice of this, nor was there any evidence of any hearing or decision where this was determined, and he was not permitted to contest it. I disagree.
[57] At paragraph 26 of McIntosh 2024 FC, Justice Pallotta describes that Mr. McIntosh himself raised before the Court a third ground of procedural unfairness to the effect that the CJC now refuses to acknowledge or accept further complaints from him. At paragraph 32, Justice Pallotta states that she decided to address the third procedural fairness ground, and she proceeded to do so.
[58] Leaving aside what counsel for the AGC may have said at the hearing before Justice Pallotta (as alleged in paragraph 10 of the Statement Claim), Mr. McIntosh’s assertion in paragraph 11 of the Statement of Claim that he had no notice of the policy is contradicted, in my view, by paragraph 26 of McIntosh 2024 FC.
[59] I find the claim thus is tantamount to an impermissible collateral attack against the decision in McIntosh 2024 FC. The decision of a court having the jurisdiction to make it, is valid, binding and conclusive unless it is set aside on appeal or quashed; an attack against the decision made in proceedings other than those whose specific object is the reversal, variation, or nullification of the decision is known as a “collateral”
attack and generally is not permitted. It was open to Mr. McIntosh to appeal the decision, had he wished to do so.
[60] The claim similarly takes issue with several decisions of Justice Somji of the Ontario Superior Court of Justice in a manner consistent with an impermissible collateral attack. The claim is silent about any appeals by Mr. McIntosh.
[61] Even if a policy of the nature described in the claim subsists, the mere existence of a policy, in itself, is insufficient to ground a challenge under section 7 of the Charter: Neri v Canada, 2021 FC 1443 at para 55. In addition, this Court previously has held that, while a complainant is at liberty to make a complaint, the CJC is not constituted to adjudicate a complainant’s rights and, further, its members who serve on its inquiry committees (or, I add review or hearing panels) do so as members of an administrative tribunal: Best v Canada (Attorney General), 2017 FC 1145 at para 21, citing Singh v Canada (Attorney General), 2015 FC 93 at para 39.
[62] I agree with the AGC that the above principles remain good law, notwithstanding changes to the Judges Act, RSC 1985, c J-1, in 2023 that repealed section 63, which previously gave the CJC discretion to investigate any complaint or allegation against a superior court judge under subsection 63(2). I note that several of the complaints described in the claim, although not all of them, were made prior to the repeal of section 63, while others seemingly are subject to new Part IV, Conduct Review Process under the Judges Act.
[63] In addition, the Federal Court of Appeal guides that issues of bias and procedural unfairness, including a judge’s exercise of discretion to control matters in their courtroom, are matters that should be pursued through the appeal process and are not the proper subject of a judicial conduct complaint: Bazan v Canada (Attorney General), 2022 FC 932 at para 30, citing Cosentino v Canada (Attorney General), 2021 FCA 193 at paras 5-6.
[64] With the foregoing in mind, I conclude that the Statement of Claim does not contain any material facts showing how Mr. McIntosh’s fundamental right to life, liberty and security of the person is engaged in a process that is not designed to adjudicate any of his rights.
[65] As for section 15 of the Charter, the Statement of Claim does not contain any facts that support a claim of discrimination on the basis of an enumerated or analogous ground. Mr. McIntosh points to jurisprudence that mentions “personal characteristics”
as a basis for assessing asserted unequal treatment. He argues that the CJC is treating him differently than at least one other litigant whose complaints were considered and dismissed even though the litigant was declared a vexatious litigant, unlike Mr. McIntosh who has not been declared vexatious. I find Mr. McIntosh’s argument speculative, at best, and a misunderstanding of what section 15 is designed to protect.
[66] The Supreme Court of Canada describes the general purpose of section 15 is to prevent the violation of human dignity through the imposition of disadvantage based on stereotyping and social prejudice. It protects not only the enumerated grounds of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability but also analogous grounds. Put another way, it targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion: Corbiere v Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC) at paras 5, 13.
[67] I agree with the AGC that vexatiousness is neither an immutable nor a constructively immutable personal characteristic. Rather, it speaks to conduct that may result in restrictions on the commencement and continuation of proceedings but otherwise does not engage section 15 of the Charter: Saskatchewan v Yashcheshen, 2020 SKQB 160 at para 83, aff’d 2022 SKCA 49, citing Stanny v Alberta, 2009 ABQB 161; Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 47.
[68] It follows, in my view, that if the claims based on asserted breaches of sections 7 and 15 of the Charter cannot succeed and are doomed to failure, that Mr. McIntosh’s claim for Charter damages under subsection 24(1) also cannot prevail.
[69] For the above reasons, I conclude it is plain and obvious that the statement of claim on the whole cannot succeed. Noting that Mr. McIntosh makes several judicial review-type arguments in his written representations, I add that the striking of Mr. McIntosh’s claim in this action, in itself, does not preclude him from bringing applications for judicial review before this Court.
(2) Paragraphs 221(1)(c) and (f) of the Rules
[70] A proceeding that is scandalous, frivolous or vexatious means one that, as pleaded, lacks a reasonable cause of action: kisikawpimootewin v Canada, 2004 FC 1426 at para 8, citing Ceminchuk v Canada, [1995] FCJ No 914 at para 10. I find this meaning is consistent with my determination above regarding paragraph 221(a) of the Rules and, thus, supports the conclusion that the action is scandalous, frivolous or vexatious, further to paragraph 221(1)(c) of the Rules.
[71] In so far as the claim collaterally attacks previous decisions of this Court and the Ontario Superior Court of Justice, as determined or observed above, I find that it is an abuse of process, further to paragraph 221(1)(f) of the Rules.
E. The Plaintiff is not permitted to amend his statement of claim
[72] I am not persuaded that the claim can be salvaged through amendment. Although Mr. McIntosh’s written representations suggest a possible alternative cause of action grounded in misfeasance in public office, it is based on an allegation (in paragraph 93) that the CJC’s conduct must have been intentional because it was contrary to legislation or its own procedures. This is speculative and insufficient particularization: Merchant Law Group v Canada Revenue Agency, 2010 FCA 184 at para 35.
F. Security for Costs
[73] Because the Statement of Claim will be struck in its entirety, this issue no longer is relevant.
G. Extension of Deadline for Service and Filing of Statement of Defence
[74] For the same reason, this issue also no longer is relevant.
H. The AGC is entitled to an award of costs
[75] The AGC has requested costs for this motion. Relying on my discretion pursuant to rule 400 of the Rules, I award the AGC lump sum costs in the amount of $500 payable by Mr. McIntosh.
V. Conclusion
[76] For the above reasons, the AGC’s motion will be granted, and the Statement of Claim will be struck without leave to amend because it discloses no reasonable cause of action.
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