| Date: 20220204
|
| Docket: T-620-21
Citation: 2022 FC 97
|
| Toronto, Ontario, February 4, 2022
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| PRESENT: Case Management Judge Kevin R. Aalto
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| BETWEEN:
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| LISA MAE MAGUIRE, RYAN JOHN STEPHENSON,
BY HIS LITIGATION GUARDIAN AND KYLE THOMAS
STEPHENSON, BY HIS LITIGATION GUARDIAN
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| Plaintiffs
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| and
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| HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN
IN RIGHT OF ONTARIO, ATTORNEY GENERAL OF ONTARIO,
JUSTIN TRUDEAU, PRIME MINISTER OF CANADA, DR. THERESA
TAM, CHIEF MEDICAL OFFICER FOR CANADA, PATRICIA HAJDU,
MINISTER OF HEALTH FOR CANADA, DOUG FORD, PREMIER OF
ONTARIO, CHRISTINE ELLIOT, MINISTER OF HEALTH AND
LONG-TERM CARE FOR ONTARIO, DR. DAVID WILLIAMS,
ONTARIO CHIEF MEDICAL OFFICER, DR. ELIZABETH
RICHARDSON, HAMILTON CHIEF MEDICAL OFFICER,
JOHNS AND JANES DOE AND OFFICIALS AND EMPLOYEES
OF THE ABOVE-NOTED DEFENDANTS, BAYER AG, BAYER INC.,
BAYER CANADIAN HOLDINGS INC., BAYER CROPSCIENCE INC.,
BAYER CROPSCIENCE HOLDINGS INC., JOHNSON & JOHNSON,
MCNEIL CONSUMER HEALTHCARE (U.S.), JOHNSON & JOHNSON
INC., MCNEIL CONSUMER HEALTHCARE (CANADA), CITY OF
HAMILTON, FRED EISENBERGER, CITY OF HAMILTON MAYOR,
JASON FARR CITY OF HAMILTON WARD 2 COUNCILLOR, CANADIAN BROADCASTING CORPORATION, CBC NEWS, RANDY STEPHENSON,
RUNCO LAW P.C., CARMELO RUNCO, SENIOR LEGAL COUNSEL,
HALTON CHILDREN’S AID SOCIETY, CAROLYN OLIVER,
CHILD PROTECTION WORKER, KATIE DRYSDALE, CHILD
PROTECTION WORKER, NATASHA COSTELLO, CHILD PROTECTION SUPERVISOR, DIANE SKROW, SENIOR LEGAL COUNSEL,
CATHOLIC CHILDREN’S AID SOCIETY OF HAMILTON,
NELSON MEHTA FAMILY LAW, PATRICIA R. NELSON,
SENIOR LEGAL COUNSEL, ANI VARTANIAN, LAW CLERK,
ST. JOSEPH’S HEALTHCARE HAMILTON, SARAH
BURTENSHAW, OCCUPATIONAL THERAPIST, OPEN
ACCESS TEXT LTD., PRIYANKA GADDDAM, SOLE DIRECTOR
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| Defendants
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JUDGMENT AND REASONS
I.
Overview
[1] There are two motions in writing to strike the statement of claim (Claim) before the Court. At the urging of the Court, a group of defendants (the Moving Defendants) worked co-operatively to bring one motion to strike on behalf of the Moving Defendants as opposed to eight separate motions on behalf of the various defendant groups. The Moving Defendants are listed in Schedule A.
[2] A second motion to strike is brought on behalf of Her Majesty the Queen in Right of Canada and the Attorney General of Canada (which also includes Justin Trudeau, Prime Minister of Canada, Patricia Hajdu, Minister of Health for Canada, and Dr. Theresa Tam, Chief Medical Officer for Canada) (the Canada Defendants).
[3] The remaining two defendants not included within the Moving Defendants are Open Access Text Ltd. and its sole director Priyanka Gaddam.
[4] The positions of the Moving Defendants and the Canada Defendants overlap to a large extent as they both argue that this Court has no jurisdiction to deal with the alleged claims. However, the allegations against various of the Moving Defendants do differ but the issues of abuse of process, lack of jurisdiction, and vexatious or scandalous pleadings are all engaged. Notwithstanding, this one set of reasons deals with both motions.
II.
The Claim
[5] In order to put the positions of the Moving Defendants and the Canada Defendants in perspective it is useful to review the Claim and the general nature of the allegations.
[6] The Claim is an extraordinary document. Unfortunately, not in a good way. To begin, it is the length of a novel amounting to some 395 pages and 1393 paragraphs. In addition, there are two schedules making the whole Claim some 481 pages long. The two schedules are entitled:
Schedule A - The Cause of Mental Illness and Chronic Disease States; From Misunderstanding to Treatment, Recovery and Prevention
Schedule B - Emergency Provisional Government and the Indigenous Path to Healing
[7] As a whole, the Claim is a prolix, repetitive and unwieldy document which does not comply with the rules of pleading.
[8] The allegations of the Plaintiff, Lisa Mae Maguire (Ms. Maguire) cover a wide spectrum of issues. There are, however, several overarching themes. First, Ms. Maguire alleges that autism is caused by various environmental triggers that can be contained. Second, that there is insufficient regulation of the manufacture and use of certain chemicals and compounds which cause many health issues. Finally, that these health issues, from which she suffers and which she alleges her sons suffer, caused a breakdown of her marriage and protracted marital proceedings in which she ultimately lost custody of her two sons. On this latter point, Ms. Maguire’s ex-husband has defended this action and relies upon orders of the Ontario courts which support his position that Ms. Maguire does not have authority or standing to bring this action on behalf of Ryan John Stephenson and Kyle Thomas Stephenson. Given the disposition of this motion it is not necessary to deal with this latter point. Suffice it to say, that the Claim is the product of Ms. Maguire’s endeavours.
[9] The first 64 paragraphs of the Claim describe the parties.
[10] The Plaintiff, Ms. Maguire, describes her personal health issues in these words at paragraph 6:
6. Lisa lives with the underlying medical condition, immune dysfunction, which presents as autism, mental illness, and chronic multi-symptom/multi system disorders, including cancer and infection by COVID-19, and this, combined with her intensive review of the scientific literature through an 11-year independent research endeavour, affords her unique insight and powerful knowledge with regard to etiology, pathophysiology, and epidemiology of the condition, and an unmatched understanding of successful treatment and prevention options. This understanding enabled Lisa to recover her son Kyle from severe autism, recover her son Ryan from many debilitating symptoms associated with immune dysfunction, including asthma, and recover herself from IBS, PTSD, and anxiety due to the trauma precipitated by interminable harmful environmental exposures and domestic abuse. Lisa also survived a cancer diagnosis.
[11] There are 41 Defendants. They are largely unrelated but generally fit into the following diverse groups:
a)
Governments (Canada, Ontario the City of Hamilton and various ministers and members thereof including their chief medical officers);
b)
John and Jane Does and officials and employees of the various governments;
c)
Pharmaceutical companies (various Bayer entities Johnson & Johnson and McNeil Consumer Healthcare entities);
d)
Family law lawyers and law firms (Runco Law P.C., Carmelo Runco, Nelson Metha, Metha Family Law, Patricia Nelson and a law clerk);
e)
Children’s aid societies (Halton Children’s Aid Society, Catholic Children’s Aid Society of Hamilton and various individual child protection workers);
f)
St. Joseph’s Healthcare Hamilton and an occupational therapist;
g)
Canadian Broadcasting Corporation and CBC News;
h)
Open Access Text and the sole director thereof;
i)
Last, but by no means least, is the personal Defendant, Randy Stephenson, the ex-husband of the Plaintiff.
III.
Alleged Causes of Action
[12] Generally, the Claim can be broken down into segments relating to the various defendant groups but the causes of action alleged are variations on the same theme and include the following:
Damages for negligent breach duty of care;
failure to warn;
breach of express warranty;
negligent breach of statutory duty;
negligent beach of fiduciary duty;
infringement of Charter rights;
intentional infliction of emotional distress, and
punitive damages.
[13] It should be noted that these alleged claims are tort claims.
[14] As against the various defendant groups the Claim focuses on a particular issue. The following are examples of some of these issues:
against the Bayer entities there are allegations concerning products manufactured by, or one of its subsidiaries or associated companies namely glyphosate-based herbicides (GBHs) and the use of Roundup® and its alleged effect on the environment and humans;
against Johnsons & Johnson and McNeil Healthcare there are allegations concerning the manufacture and use of acetaminophen and Tylenol® and its alleged effect on Ms. Maguire and the diagnosis of Autism Spectrum Disorder of her children;
against the Hamilton Municipal Defendants there are allegations relating to municipal zoning and conversion of a rooming house to a residential care facility (RCF) for autistic children and indigenous youth; alleged misfeasance and discrimination by the Hamilton Defendants by not granting the rezoning; reference to CBC news articles that are alleged to falsely report that Ms. Maguire would offer “alternative therapies”
at the RCF if approved;
against the CBC there are allegations relating to reporting that is not objective and fair concerning Ms. Maguire and the publication of false allegations about her; further, Ms. Maguire seeks an order requiring the CBC defendants to fund a $5,000,000,000.00 Fecal Microbiota Transplant (FMT) programme; and various statutory breaches;
against Randy Stephenson there are allegations of marital abuse and issues relating to treatments of the children related to autism;
against the Runco defendants, family law counsel for Ms. Maguire, there are allegations of failure to represent her properly in the family law proceedings;
against the Mehta law defendants, family law counsel for Mr. Stephenson, there are allegations that they ignored affidavits and distorted the evidence to show Ms. Maguire was mentally ill and delusional; that these lawyers suppressed and tampered with evidence, acted fraudulently and filed false and misleading affidavits; that they colluded with the police , Children’s aid societies and the Ontario Minor Baseball Association to obtain false statements about Ms. Maguire’s mental health;
against Halton Children’s Aid Society and their employees’ there are allegations that they alienated the children from Ms. Maguire by falsely advancing a child protection investigation and discriminating against her on the basis of a perceived mental illness as a result of which they acted maliciously and made misrepresentations to the Court concerning Ms. Maguire;
against the Catholic Children’s Aid and their employees’ there are allegations of failure to treat one of the children and a failure to protect him from abuse;
against the St. Joseph defendants’ there are allegations of breaches of various duties by diagnosing Ms. Maguire with a mental health disorder and alleging Ms. Maguire was suffering from paranoid delusional beliefs and anti-social behaviour and that such diagnosis was false and fraudulent; and
against the Canada Defendants there are allegations that they failed to institute policies to treat autism and other health-related issues including failure to deal with toxins and allegations that COVID -19 treatments using alcohol-based sanitizing products cause harm to Canadians by destroying core microbiota.
IV.
Positions of the Parties Regarding Jurisdiction
[15] The Moving Defendants and the Canada Defendants argue that the Federal Court does not have jurisdiction over this action, and therefore the action is “bereft of any possibility of success”
because the pith and substance of this claim is rooted in provincial law. I agree.
[16] This Court does not have stand alone jurisdiction over tort cases unless certain criteria are met. Those criteria are found in the seminal case of ITO-International Terminal Operators Ltd. v Miida Electronics Inc., [1968] 1 S.C.R. 752 and are as follows:
(1) a statutory grant of jurisdiction;
(2) an existing body of law that is essential to the disposition of the case which nourishes the statutory grant of jurisdiction, and
(3) a “law of Canada”
within the meaning of the Constitution Act, 1867, having regard to the pith and substance of the claim.
[17] From the above summary of the Claim, it is apparent these criteria are not satisfied. First, there is simply no statutory grant of jurisdiction for the claims asserted. The Federal Court is a statutory court created under the Federal Courts Act, R.S.C. 1985, c. F-7 as amended. The Federal Court has no inherent jurisdiction and any jurisdiction must be found in the Federal Courts Act or other Federal legislation. The fact that the Claim refers to the Charter of Rights and Freedoms (Charter) or other federal legislation is not sufficient in and of itself. The allegations must arise from the application of the federal legislation and any alleged breach thereof.
[18] Second, there is no existing body of federal law essential to the disposition of the claims asserted. Each of the claims, except those against the Canada Defendants [which are discussed below], are in pith and substance tort claims.
[19] Third, the law essential to the disposition of the claims is tort law and does not come within meaning of s. 101 of the Constitution Act, 1867. Examples of tort based allegations abound in the Claim. There are seemingly endless recitations and variations of “negligence”
, “duty of care”
, “breach of fiduciary duty”
, “compensatory damages for pain suffering”
, “tortious acts and omissions”
etc. against the Moving Defendants. In addition, the majority of allegations relating to breach of statutory duties are with reference to provincial statues including the Ontario Human Rights Act, the Law Society Act, Child Youth and Family Services Act, Courts of Justice Act, Planning Act, Building Code Act, Consumer Protection Act [citations omitted] and several others. This Court has no jurisdiction to deal with any of the alleged beaches of any of these statutes.
[20] As against the Canada Defendants, the Plaintiffs seek relief which is also beyond the jurisdiction of the Court. As a general observation from the Claim it appears that Ms. Maguire, disagrees with “the current public health and safety decisions, policies and recommendations undertaken, adopted, orchestrated, implemented and executed by the Crown Defendants.”
As a result of this position, Ms. Maguire invokes the Charter and seeks to impose positive obligations on the Canada Defendants to legislate in accordance with her beliefs. To that end she also seeks the passing of a “No Confidence Motion”
against Canada and the establishment of an Emergency Provisional Government presumably to carry out her policy beliefs. None of that is in any way, shape, or form within the jurisdiction of this Court or any court.
[21] Rule 221(1) of the Federal Courts Rules, SOR/98-106 governs motions to strike. A claim may be struck where there is no reasonable cause of action; the claim is scandalous, frivolous or vexatious; or is otherwise an abuse of the process of the Court. This Claim falls squarely within Rule 221. There is a plethora of jurisprudence dealing with the application of Rule 221(1). While it is a high threshold, the general test is that a claim should be struck where it is so clearly improper that it is “bereft of any chance of success”
[see, for example, Hunt v. Carey Canada Inc, [1990] 2 S.C.R. 959 and David Bull Laboratories (Canada) Inc. v. Pharmacia Inc, [1995] 1 F.C. 588 at 600 (FCA.)].
[22] For Ms. Maguire, that is the case. This Claim is bereft of any chance of success.
[23] In an effort to salvage the Claim, Ms. Maguire argues that the positions of both the Canada Defendants and the Moving Defendants are without merit. Ms. Maguire argues in her responding written representations to the Moving Defendants:
5. These are bald allegations and are not supported by the facts of the case. The Plaintiffs’ action arose from a series of interconnected abuses, the impetus for which was the injuries the Plaintiffs sustained through the ingestion of Tylenol® and glyphosate. This was followed by discrimination against the Plaintiffs by Canada’s mainstream medical community for Kyle’s autism diagnosis and the refusal by Canadian doctors to provide medical care due to the Plaintiffs’ association by diagnosis to Jenny McCarthy, all which promoted further discrimination by the Moving Defendants and sustained family violence that eventually caused Ms. Maguire’s marital breakdown.
6. Moreover, this claim stems neither from Ms. Maguire’s beliefs nor her preoccupation but from the negligent actions and inactions of Her Majesty the Queen in Right of Canada (“Canada”), in particular Canada’s failure to effectively address or eliminate widespread discrimination, misconduct, negligence and illegal conduct within the institutions of healthcare, law enforcement, child protection and justice, and Canada’s refusal to acknowledge the current valid research that guides public health policy and decision-making.
. . .
12. At the core, the Plaintiffs’ Statement of Claim effectively illustrates the abuses Canadians face daily on a national scale in their dealings with the Government of Canada and its employees, agencies and officials, and private non-state actors who refuse to follow the Rule of Law in Canada.
13. The Moving Defendants have distorted the facts of the claim and paint a false account of the reality underlying the Plaintiffs’ experiences in order to support their position of no jurisdiction. However, allegations of public health crises due to government inaction and negligence, the infringement of constitutional rights, family violence, a toxic Canadian environment and substandard child protection are all federal issues that warrant the scrutiny of this Court.
[24] She further argues in response to the Canada Defendants the following:
15. . . . The Plaintiffs Statement of Claim consists of a precise statement of material facts that are set out in a sufficiently clear, organized and concise manner and focuses on Canada’s negligence in governance, which infringed the Plaintiffs’ Charter-protected rights. The Plaintiffs do not make bald allegations, but rather claim that Canada is governing in a negligent manner that is adversely impacting the health and well-being of all Canadians, and particularly “Vulnerable Populations” (as defined at paragraph 124(d) in the Statement of Claim), including the Plaintiffs.
. . .
23. Canada’s alleged negligence in government must come under scrutiny in the Federal Court of Canada where the Defendants should be held to provide evidence that they adhered to some, or all of the elements of the precautionary principle noted above and explain why they have consistently ignored Ms. Maguire’s work and directives to effectively solve this country’s most critical problems by implementing preventative measures and revolutionizing Canada’s healthcare system.
[25] These are but a few examples which, through the words of Ms. Maguire, exemplify the problems with the Claim. They support the arguments of both groups of defendants that the Claim is not within the jurisdiction of the Court.
[26] In any event, as noted the Claim is prolix in the extreme, unfocused, unmanageable and fails to meet the requirements of pleadings [see Rule 174]. It must be struck.
[27] Many other arguments and much case law were cited by both groups of defendants. Given the conclusions already reached there is no need to analyze or otherwise deal with them save and except to comment briefly on the Charter allegations.
V.
Alleged Charter Breaches by the Canada Defendants
[28] Ms. Maguire alleges that her Charter rights have been breached by the Canada Defendants. The nature of those Charter breaches are usefully summarized at para. 49 of the Canada Defendants’ submissions as follows:
49. The substance of the plaintiff’s Charter claims are that Canada failed to accept or adopt the Plaintiffs beliefs and views about the role of environment, the human immune system, the microbiome and toxigenic mould in the cause, treatment and prevention of autism, mental illness and chronic health disorders and that Canada failed legislate to eliminate alleged discrimination, misconduct, negligence and illegal conduct throughout the healthcare system, justice system and the media thereby breaching their Charter rights. . . .
[29] A specific example from the Claim of the alleged Charter breaches is the following:
961(b). A further Declaration that the current public health and safety decisions, policies and recommendations undertaken, adopted, orchestrated, implemented and executed by the Crown Defendants, either by their acts or omissions, unjustifiably breached the rights of the Plaintiffs under ss. 7 (life, liberty, and security of person) of the Canadian Charter of Human Rights (“the Charter”), and are further not in accordance with the tenets of fundamental justice in their overbreadth, nor are they justified under s. l of the Charter in that they are not demonstrably justified in a free and democratic society, specifically the public health decisions, policies and recommendations of: . . .
[30] Following this request for a declaration Ms. Maguire then lists 17 different ways in which the Canada Defendants are alleged to have infringed Ms. Maguire’s section 7 Charter rights. A few examples are as follows:
dismissing Ms. Maguire’s advocacy work and valid scientific research;
dismissing the valid scientific research that guides health policy, education initiatives and the causes, treatment and prevention of chronic health disorders;
allowing and therefore enabling discrimination, misconduct, negligence and illegal conduct to proliferate throughout the systems of healthcare, law enforcement, child protection and justice;
funding research activities that do not reflect the priorities of the communities they serve;
prohibiting access to proper and effective medical treatment for individuals with chronic health disorders, and particularly children with autism and related pediatric neurological dysfunctions;
denying Canadians, within and outside Canadian borders, access to Fecal Microbiota Transplant (“FMT”
), a safe and effective treatment for autism, mental illness and chronic health disorders, including infectious diseases, such as COVID-19;
dismissing the deleterious health effects of glyphosate and reapproving the use of glyphosate and glyphosate-based herbicides in Canada until 2032;
dismissing the deleterious health effects of Tylenol® and negligently allowing Tylenol® to remain on the Canadian consumer market;
[31] The Charter claims are further elaborated upon as follows:
1235. Although the Charter makes no explicit references to health care, it has been argued that section 7 has significant implications in the health care question. The section 7 argument is not based on a constitutional guarantee to government-funded health care, but rather on the section 7 rights to liberty and security of the person, which may be impaired if adequate and timely health care cannot be provided in the publicly funded health care system.
. . .
1285. The Plaintiffs state that the Crown failed to govern in a manner that protected the rights of the Plaintiffs, thereby violating the Plaintiffs’ equality rights enshrined in ss. 7 (life liberty and security of the person) and 15 (equal before and under the law) of the Charter.
[32] It is obvious that the Charter claims as asserted cannot succeed. In essence, Ms. Maguire disagrees with policy and legislative decisions of government. She seeks declarations to create positive obligations on governments to legislate in a certain manner consistent with her medical beliefs. A section 7 Charter breach occurs when an individual is deprived of life, liberty or security of the person, however, section 7 does not impose obligations on government to implement legislation or policies requested by an individual [see, Gosselin v Quebec (Attorney General), 2002 SCC 84 at para 81; Kreishan v Canada (Minister of Citizenship and Immigration), 2019 FCA 223 at para 136].
[33] The Charter issues raised by Ms. Maguire are simply not justiciable. These are political matters related to governmental policy and decision-making not for the Courts [see, for example, Sagharian (Litigation Guardian of) v Ontario (Minister of Education), 2008 ONCA 411, leave to appeal refused; and, Doucet-Boudreau v Nova Scotia (Minister of Education) 2003 SCC 62 at para 34].
VI.
Remaining Defendants
[34] Starting at paragraph 1332 through 1393, allegations of copyright infringement are made against Open Access Text Ltd. (OA Text) and its alleged controlling director, Priyanka Gaddam. The claim is only asserted by Ms. Maguire relating to her alleged copyright in a research article entitled The Cause of Autism and Chronic Disease: From Misunderstanding to Treatment, Recovery and Prevention.
[35] There is no indication in the Court files that these Defendants have been properly served in accordance with the Federal Courts Rules. Rule 203 mandates that a statement of claim shall be served within 60 days of issuance. Rule 137 requires personal service outside Canada. The only reference in the Court file is to service by mail of the Reply to the Statement of Defence of the Defendant Randy Stephenson on these Defendants. Beyond that entry there is nothing to indicate that these Defendants have been properly served and the time for service has long since passed. There is no basis to continue this action against them.
VII.
Leave to Amend
[36] On motions to strike the Court may permit a plaintiff an opportunity to amend the pleading so that the statement of claim complies with the rules of pleading and sets out a properly pleaded cause of action. Given the nature of the allegations in the Claim as described above there is no basis upon which leave to amend should be granted. Leave to amend may be granted only where any defect in the pleading can be cured by amendment [see, Simon v Canada, 2011 FCA 6 and Collins v Canada, 2011 FCA 140]. This is not a case where the pleading can be cured by amendment. As noted above the claims asserted are not within the jurisdiction of this Court or are not justiciable. Leave to amend is not granted.
VIII.
Costs
[37] Both the Canada Defendants and the Moving Defendants seek their costs of their respective motions. Since they have been entirely successful they are entitled to costs. Costs are in the discretion of the Court [see, Rule 400]. It is appropriate in the circumstances to fix those costs in reasonable amounts keeping in mind the extensive work required to not only read the Claim but to prepare the motions to strike. In my view, a reasonable amount for costs for the Moving Defendants is the lump sum of $3,500.00 and to the Canada Defendants a lump sum of $1,000.00.
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