Date: 20241119

Docket: T-216-24

Citation: 2024 FC 1841

Toronto, Ontario, November 19, 2024

PRESENT: Associate Judge John C. Cotter

BETWEEN:

WESAM AIAD

Plaintiff

and

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR

Defendant

JUDGMENT AND REASONS

UPON MOTION by the defendant, dated March 5, 2024, and filed March 6, 2024, made in writing pursuant to Rule 369 of the Federal Courts Rules for:

1. an order striking the statement of claim, without leave to amend, and dismissing this action; and

2. the costs of this motion and the action.

AND UPON noting that the plaintiff was served on March 5, 2024, with the “MOTION RECORD OF THE DEFENDANT” [Defendant’s Motion Record] as evidenced by the solicitor’s certificate of service dated March 5, 2024;

AND UPON noting that the plaintiff did not file a respondent’s motion record pursuant to Rule 369 (2) (any reference in these Reasons to a Rule is to those in the Federal Courts Rules, SOR/98-106), or file anything else in response to this motion;

AND UPON reviewing and considering the Defendant’s Motion Record, including the statement of claim in this action [the Claim] and the defendant’s Memorandum of Fact and Law dated March 5, 2024;

AND UPON considering:

I. The plaintiff’s statement of claim

[1] Given the brevity of the Claim, it is useful to cite the content of it in its entirety (not including the standard wording from Form 171):

The OIPRD is lying.

(1) → The information on the pamphlet is a lie. The complaint forms do not exist at all police stations.

(2) → The “sticky” note (on the photocopy) is also a lie. The phone # doesn’t even ring. The Ministry of the Attorney General did not have a person designated to receive the claim.

Relief:
- The OIPRD is to be held accountable to $1 million.

II. Grounds asserted and applicable Rule

[2] The defendant is seeking to strike the Claim on the basis that the Federal Court lacks jurisdiction over the Office of the Independent Police Review Director [OIPRD].

[3] The applicable rule on a motion to strike out a statement of claim for failing to disclose a reasonable cause of action is Rule 221(1)(a), which provides that:

III. General Principles on a Motion to Strike

[4] The applicable principles on a motion to strike are aptly set out by Justice Pentney in Fitzpatrick v Codiac Regional RCMP Force, District 12, and Her Majesty the Queen, 2019 FC 1040:

[14] As noted above, the law governing a motion to strike seeks to protect the interests of the plaintiff in having his or her “day in court,” while also taking into account the important interests in avoiding burdening the parties and the court system with claims that are doomed from the outset. In order to achieve this, the courts have developed an analytical approach and a series of tests that apply in considering a motion to strike.

[15] The test for a motion to strike sets a high bar for defendants, and the onus is on the defendant to satisfy the Court that it is plain and obvious that the pleading discloses no reasonable cause of action, even assuming the facts alleged in the statement of claim to be true: R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17; Hunt v Carey Canada Inc, [1990] 2 S.C.R. 959 at p 980. Rule 221 (2) reinforces this by providing that no evidence shall be heard on a motion. In view of this Rule, the further evidence submitted by the Plaintiff in his response to the motion to strike cannot be considered.

[16] The facts set out in the statement of claim must be accepted as true unless they are clearly not capable of proof or amount to mere speculation. The statement of claim must be read generously, and mere drafting deficiencies or using the wrong label for a cause of action will not be grounds to strike a statement of claim, particularly when it is drafted by a self-represented party.

[17] Further, the statement of claim must set out facts that support a cause of action – either a cause of action previously recognized in law, or one that the courts are prepared to consider. The mere fact that a cause of action may be novel or difficult to establish is not, in itself, a basis to strike a statement of claim. Related to this, the claim must set out facts that support each and every element of a statement of claim.

[18] As explained by Justice Roy in Al Omani v Canada, 2017 FC 786 at para 17 [Al Omani], “[a] modicum of story-telling is required.” The law requires, however, a very particular type of story to be set out in a statement of claim – one which describes the events which are alleged to have harmed the plaintiff, focused only on the “material facts,” and set out in sufficient detail that the defendant (and the Court) will know what the specific allegations are based on, and that they support the specific elements of the various causes of action alleged to be the basis of the claim.

[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.

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

[11] Pleadings must clearly set out the issues between the parties and give fair notice to the opposing party of the case they have to meet (Sivak v Canada, 2012 FC 272 at para 11; Van Sluytman v Canada, 2022 FC 545 at para 19 [Van Sluytman]).

[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).

[6] In Bounpraseuth v Canada, 2023 FC 1220, Justice Gleeson summarized the relevant principles when considering a motion to strike as:

A. The moving party bears the burden of demonstrating that the claim has no reasonable chance of succeeding (Imperial Tobacco at para 25);

B. Where it is alleged that the claim discloses no cause of action, the Court must assume that the facts pled are true (Rebello v Canada (Justice), 2023 FCA 67 at para 4, citing Imperial Tobacco at para 17);

C. A pleading must disclose material facts, rather than bald allegations. As stated in Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at para 19 [Mancuso], “[t]he plaintiff must plead, in summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised” (see also Mancuso at para 16);

D. A plaintiff must plead the facts relied upon in advancing a claim. A plaintiff cannot rely on the possibility that new facts may come to light as the case advances. The facts as pled are the basis upon which the claim’s possibility of success is to be evaluated (Imperial Tobacco at para 22);

E. Allegations based on assumptions and speculation, bare allegations, factual allegations that are scandalous, frivolous or vexatious, or legal submissions dressed up as factual allegations need not be accepted as true or accepted at face value (Templanza v Canada, 2021 FC 689, at para 14, citing Carten v Canada, 2009 FC 1233 at para 31); and

F. A statement of claim is to be read in a generous manner to accommodate mere drafting deficiencies, particularly when it has been drafted by a self-represented litigant (Operation Dismantle v The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at paras 14, 94; Watts v Canada (Revenue Agency), 2019 FC 1321 at paras 14-15; Lauer v Canada (Attorney General), 2017 FCA 74 at para 22). However, the flexibility a court is prepared to extend to a self-represented litigant does not exempt the litigant from the requirement to plead sufficient material facts in support of a claim (Mancuso at paras 16-17; Zbarsky v Canada, 2022 FC 195 at para 15; Brauer v Canada, 2021 FCA 198 at para 14).

IV. Analysis

[7] The sole ground relied upon by the defendant is a lack of jurisdiction. As a result, I will not address whether the Claim discloses a recognized cause of action.

[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 v Sata Internacional - Azores Airlines, S.A., 2023 FCA 176 [Berenguer], at para 26). In Berenguer, the Court noted, “[t]he jurisdiction of the Federal Court is statutory. As such, the statutory basis for jurisdiction must be identified.” (Berenguer, at para 34).

[9] Regarding the jurisdiction of the Federal Court, the Federal Court of Appeal stated the following in Berenguer:

[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.

[10] The claims asserted against the OIPRD are for lying. Applying the test set out above from Berenguer, it is plain and obvious that this Court does not have jurisdiction. The decision of Associate Judge Horne in Van Slutyman v Canada, 2022 FC 545 [Van Slutyman] is also very instructive. Like the present case, that case involved a claim against OIRPD. Associate Judge Horne found that there “is no statutory grant of jurisdiction by Federal Parliament for HMQ Ontario and OIPRD, nor is there a body of federal law which nourishes a grant of federal jurisdiction” (at para 60). In addition, as stated by Associate Judge Horne, this Court does not have broad supervisory powers over provincial governments and agencies, or provincial law enforcement; it is a statutory court with limited and specific jurisdiction (Van Slutyman at para 15; see also Collins v Canada (Attorney General), 2024 FC 1250 [Collings] at para 41). Like the approach taken by Justice Fuhrer in the Collins case, having regard to the nature of the Claim, I find it unnecessary to “engage in a more formulaic ITO analysis of the Court’s jurisdiction” (Collins at para 41).

[11] As a result, it is plain and obvious that the Claim against the OIPRD does not fall within jurisdiction of the Federal Court. Therefore, the Claim does not disclose a reasonable cause of action and should be struck.

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

V. Conclusion

[13] As the Federal Court has no jurisdiction in respect of the Claim, it discloses no reasonable cause of action and is struck out without leave to amend.

[14] Given that the Claim is being struck without leave to amend, this proceeding is dismissed pursuant to Rule 168 (see also Suss v Canada, 2024 FC 137 at para 59).

[15] Costs of the motion shall be paid by the plaintiff to the defendant, fixed in the amount of $250.

JUDGMENT in T-216-24

THIS COURT’S JUDGMENT is that the motion to strike out the statement of claim is granted, and the statement of claim is struck out in its entirety without leave to amend, and the action is dismissed.

blank	"John C. Cotter"
blank	Associate Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-216-24
STYLE OF CAUSE:	WESAM AIAD v. OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
MATTER CONSIDERED AT TORONTO, ONTARIO WITHOUT PERSONAL APPEARANCE OF THE PARTIES
JUDGMENT AND REASONS:	COTTER A.J.
DATED:	NOVEMBER 19, 2024

WRITTEN SUBMISSIONS BY:

Bhavini Lekhi

For The Defendant

SOLICITORS OF RECORD:

Bhavini Lekhi Office of the Independent Police Review Director Toronto, Ontario

For The Defendant