Date: 20241126

Docket: T-164-24

Citation: 2024 FC 1901

Toronto, Ontario, November 26, 2024

PRESENT: Associate Judge John C. Cotter

JUDGMENT AND REASONS

UPON MOTION by the defendants Stephen J. Tanner and Karl Efremoff dated April 16, 2024, and filed June 12, 2024 as part of the Moving Parties’ Motion Record (defined below), for:

(a) An Order striking the Statement of Claim in its entirety, without leave to amend, as this Honourable Court does not have jurisdiction in this action in which relief is sought against these Defendants;

(b) In the alternative, an Order striking the Statement of Claim in its entirety, without leave to amend, as it fails to disclose a reasonable cause of action, it is immaterial or redundant, and it is scandalous, frivolous or vexatious;

(c) The costs of this motion and action payable by the Plaintiff; and,

(d) Such further and other relief as to this Honourable Court may seem just.

AND UPON reviewing and considering the motion record of the defendants Stephen J. Tanner and Karl Efremoff dated and filed June 12, 2024 [Moving Parties’ Motion Record], including the statement of claim in this action [Claim];

AND UPON noting that that the plaintiff did not file a respondent’s record as provided for in Rule 365 (any reference in these Reasons to a Rule is to those in the Federal Courts Rules, SOR/98-106);

AND UPON the hearing of the motion proceeding by video conference on June 25, 2024, and hearing and considering submissions from: counsel for the moving party defendants Stephen J. Tanner and Karl Efremoff; the plaintiff who is self represented; and counsel for the Attorney General of Ontario representing the defendant Doug Downey;

AND UPON noting that the defendant Michelle Lynn Garceau attended the hearing of the motion as an observer:

AND UPON considering:

[1] For the reasons set out below the Claim is struck out, without leave to amend, as disclosing no reasonable cause of action because of a lack of jurisdiction. As a result, it is not necessary to consider the alternative relief sought, namely striking out the statement of claim without leave to amend on the basis that “it fails to disclose a reasonable cause of action, it is immaterial or redundant, and it is scandalous, frivolous or vexatious”.

[2] The moving party defendants, Stephen J. Tanner and Karl Efremoff, each filed a statement of defence on March 14 and 18, 2024, respectively. Rule 221 permits a motion to strike to be brought at any time. In addition, filing a statement of defence does not preclude a motion to strike out a statement of claim on the basis of a lack of jurisdiction (Robertson v Beauvais, 2011 FC 378 at para 7).

[3] Although the Claim is difficult to follow, it is useful to set out the relief sought in the Claim:

I require an order saying that i Am not to be identified as David Paluch or DAVID PALUCH or DAVID AHAYAH, and it be written clearly upon the face of the order that my officially recognized name is and can only be known as; minister David Solomon of Ahayah

i require an order to remove Stephen J Tanner stand down from his post.

i require Karl Efrenoff compensate: $100,000 for torture and unlawful detention harming my faith and beliefs

i require Doug Downey destroy/delete/remove DAVID PALUCH from all databases within his power

I require Michelle to have actual criminal cause to call “police” services and also serve thirty days in jail and return Korin my white cat of which i Am the only one with vested interest in him.

Total monetary compensation sits at One Hundred Thousand Dollars ($100,000)

[4] The applicable rule on a motion to strike is Rule 221 which provides that:

[5] The Federal Court of Appeal in Brink v Canada, 2024 FCA 43 stated the following regarding the general principles on a motion to strike out a statement of claim under Rule 221(1)(a) on the basis that it does not disclose a reasonable cause of action:

[43] […] a statement of claim should not be struck unless it is plain and obvious that the action cannot succeed, assuming the facts pleaded in the statement of claim to be true: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93 at 980; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 63. In other words, the claim must have no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17.

[44] The onus is on the party who seeks to establish that a pleading fails to disclose a reasonable cause of action: La Rose v. Canada, 2023 FCA 241 at para. 19; Edell v. Canada, 2010 FCA 26 at para. 5. The threshold that a plaintiff must meet to establish that a claim discloses a reasonable cause of action is a low one: Brake v. Canada (Attorney General), 2019 FCA 274 at para. 70.

[45] Pleadings must, moreover, be read generously, in a manner that accommodates any inadequacies in the allegations that are merely the result of deficiencies in the drafting of the document: see Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22 at 451.

[46] Motions judges should not delve into the merits of a plaintiff’s argument, but should, rather, consider whether the plaintiff should be precluded from advancing the argument at all: Salna v. Voltage Pictures, LLC, 2021 FCA 176 at para. 77. Recognizing that the law is not static, motions judges must also err on the side of permitting novel, but arguable claims to proceed to trial: R. v. Imperial Tobacco, above at paras. 19-25; Mohr v. National Hockey League, 2022 FCA 145 at para. 48, leave to appeal to SCC refused, 40426 (20 April 2023).

[47] That said, it must also be recognized that there is a cost to access to justice in allowing cases that have no substance to proceed. The diversion of scarce judicial resources to such cases diverts time away from potentially meritorious cases that require attention: Mohr, above at para. 50; Coote v. Lawyers’ Professional Indemnity Company, 2013 FCA 143 at para. 13.

[6] Justice Pentney considered the application of the principles on a motion to strike where the plaintiff is self represented in Fitzpatrick v Codiac Regional RCMP Force, District 12, 2019 FC 1040 and explained:

[19] The Court generally shows flexibility when a party is self-represented, but this does not exempt the party from complying with the rules set out above: Barkley v Canada, 2014 FC 39 at para 17. The reason for this is simple – it is not fair to a defendant to have to respond to claims that are not explained in sufficient detail for them to understand what the claim is based on, or to have to deal with claims based on unsupported assumptions or speculation. Neither is it fair to the Court that will have to ensure that the hearing is done in a fair and efficient manner. A court would have difficulty ruling that a particular piece of evidence was or was not relevant, for example, if the claim is speculative or not clear. This will inevitably lead to “fishing expeditions” by a party seeking to discover the facts needed to support their claims, as well as to unmanageable trials that continue far longer than is appropriate as both sides try to deal with a vague or ever-changing set of assertions.

[20] A degree of flexibility is needed to allow parties to represent themselves and to have access to the justice system; but flexibility cannot trump the ultimate demands of justice and fairness for all parties, and that is what the Rules and the principles set out in the cases seek to ensure.

[7] Although Rule 221(2) provides that no evidence shall be heard on a motion for an order under paragraph (1)(a), there are exceptions. One exception is that evidence may be considered for the purposes of Rule 221(1)(a) if the issue concerns a jurisdictional question (Berenguer v Sata Internacional - Azores Airlines, S.A., 2023 FCA 176 [Berenguer] at para 26).

[8] Rule 221(1)(a) may be applied if it is plain and obvious that the Federal Court lacks jurisdiction to hear a matter (Berenguer at para 26). Further, “[t]he jurisdiction of the Federal Court is statutory. As such, the statutory basis for jurisdiction must be identified.” (Berenguer, at para 34). The Federal Court of Appeal stated the following in Berenguer regarding the jurisdiction of the Federal Court:

[29] The scope of the Federal Court’s jurisdiction has been considered by the Supreme Court in several decisions. The most relevant in this appeal are Quebec North Shore Paper Co. v. Canadian Pacific Ltd. (1976), [1977] 2 S.C.R. 1054, 9 N.R. 191 [Quebec North Shore]; McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654; Rhine v. The Queen, [1980] 2 S.C.R. 442 [Rhine]; ITO-Int’l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752 at p. 766, 28 D.L.R. (4th) 641 [ITO]; and, most recently, Windsor.

[30] I would also note two decisions of this Court which provide a good summary of the relevant law: Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage), 2006 FCA 190 [Peter G. White] and 744185 Ontario Incorporated v. Canada, 2020 FCA 1 [Air Muskoka].

[31] As a result of this jurisprudence, the following principles are well established:

(a) Jurisdiction is subject to a three part test commonly known as the ITO test: (1) Does a statute grant jurisdiction to the Court? (2) Is there an existing body of federal law that nourishes the grant of jurisdiction and is essential to the disposition of the case? (3) Is the case based on a valid law of Canada (ITO).

(b) For purposes of applying step 1 of the ITO test to s. 23 of the Federal Courts Act, the action must be created or recognized under federal law (Windsor).

(c) For purposes of applying step 2 of the ITO test to a breach of contract claim, the test may be satisfied if there is a sufficiently detailed federal regulatory scheme that applies to the contract (Rhine).

[32] The Windsor decision adds a further principle but it is not controversial in this case. The majority in Windsor cautioned that the ITO test is to be applied to the “essential nature of the claim” regardless of how the claim is framed in the pleading. In this case, it is clear that the claim as framed in the pleading is the same as the claim’s essential nature. The claim is for breach of contract.

[9] As stated by Justice Gleeson in Welcome v Canada, 2024 FC 443:

[12] Pleadings must disclose a reasonable cause of action. To do so, pleadings must (1) allege facts that are capable of giving rise to a cause of action; (2) disclose the nature of the action which is to be founded on those facts; and (3) indicate the relief sought, which must be of a type that the action could produce and the Court has jurisdiction to grant (Van Sluytman at para 9, citing Oleynik v Canada (Attorney General), 2014 FC 896 at para 5; Bérubé v Canada, 2009 FC 43 at para 24, aff’d 2010 FCA 276).

[10] As noted above, the plaintiff did not file a responding motion record. At the hearing of the motion, the plaintiff did not make any meaningful submissions as to a basis for jurisdiction in this case. The plaintiff acknowledged at the hearing of the motion that he had assumed that the Federal Court had jurisdiction for the Claim.

[11] In any event, reading the Claim generously and considering the applicable principles regarding the jurisdiction of the Federal Court discussed above, I am unable to identify any basis for jurisdiction. Given the nature of the claims asserted and the allegations in the Claim, I find it unnecessary to engage in a more formulaic analysis on the issue of jurisdiction (Van Sluytman v Canada, 2022 FC 545 [Van Sluytman] at paras 16-17; Collins v Canada (Attorney General), 2024 FC 1250 at para 41).

[12] This conclusion is buttressed by the following. As noted above, it is clear from Berenguer that evidence may be considered for the purposes of Rule 221(1)(a) if the issue concerns a jurisdictional question. The Moving Parties’ Motion Record includes affidavit evidence, namely the affidavit Laura Richardson affirmed June 6, 2024. Of significance on the issue of jurisdiction is the following evidence in that affidavit:

5. The Defendant, Chief Tanner, is currently the Chief of Police of the Halton Regional Police Service (“HRPS”). Chief Tanner is not an employee of the Federal Crown.

6. The Defendant, Officer Efremoff, is currently a police officer with HRPS. Officer Efremoff is not an employee of the Federal Crown.

[13] As stated by Associate Judge Horne in Van Sluytman at para 15, the Federal Court “does not have broad supervisory powers over […] provincial governments and agencies, or provincial law enforcement. Rather, the Federal Court is a statutory court with limited and specific jurisdiction.”

Conclusion

[14] As a result, as there is no basis for jurisdiction, the Claim will be struck out pursuant to Rule 221(1)(a).

[15] In order to strike a pleading without leave to amend, the defect must be one that cannot be cured by amendment (Collins v Canada, 2011 FCA 140 at para 26; Simon v Canada, 2011 FCA 6 at para 8). The defect in the Claim which has resulted in it being struck, namely an absence of jurisdiction, is not one that can be cured by amendment.

[16] Having regard to Rules 400 and 401(1), including the factors articulated in Rule 400(3), and Tariff B, and having regard to the success of the defendants Stephen J. Tanner and Karl Efremoff on this motion, costs are awarded to them, fixed in the total amount of $500, to be paid by the plaintiff.

JUDGMENT in T-164-24

THIS COURT’S JUDGMENT is that:

1. The statement of claim is struck out, without leave to amend, and this action is dismissed.

2. Costs of the motion shall be paid by the plaintiff to the defendants Stephen J. Tanner and Karl Efremoff fixed in the total amount of $500.

"John C. Cotter"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: