



COURT OF APPEAL FOR ONTARIO

CITATION: Abernethy v. Ontario, 2017 ONCA 340

DATE: 20170428

DOCKET: C62639

Blair, Lauwers and Hourigan JJ.A.

BETWEEN

Joan Abernethy

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario as
    Represented by Crown Attorneys (Justice) James A. Ramsay, Ron Davidson,
    Jennifer Broderick and Lucas ONeill, Kathryn (Kathy) Rippey and Gerry McNeilly
    and St. Josephs Healthcare (Hamilton) Director, East Region Mental Health
    Services, Judith Santone

Defendants (Respondents)

Joan Abernethy, acting in person

Connie Vernon, for the Crown Respondents

M. Kathleen Robb and Cameron Malcolm, for the Respondent
    St. Josephs Healthcare (Hamilton) Director, East Region Mental Health Services,
    Judith Santone

Heard: April 21, 2017

On appeal from the orders Justice Drew S. Gunsolus of the
    Superior Court of Justice, dated August 29, 2016.

By The Court:


[1]

Ms. Abernethy appeals from the order of Justice Drew S. Gunsolus dated
    August 29, 2016.  In that order Justice Gunsolus struck the claims in her Fresh
    as Amended Statement of Claim against the group of defendants we will call the
    Crown Defendants in their entirety without leave to amend, and dismissed the
    claims against them.  He did so pursuant to rule 21.01(1)(b) of the
Rules
    of Civil Procedure
,

on the basis that the pleading did not disclose
    any reasonable cause of action against the Crown Defendants and, pursuant to
    rule 25.11, on the basis that the claims were frivolous and vexatious because
    the pleading lacked the material facts necessary to support them.

[2]

In a companion ruling on the same date, Gunsolus J. also struck Ms.
    Abernethys claims against the only remaining defendant, Judith Santone, but
    granted her leave to amend her claim to pursue the tort of breach of privacy
    against Ms. Santone.  Ms. Abernethy appeals that order as well.

[3]

Four of the Crown Defendants are, or at the relevant times were, Crown
    Attorneys.  Another is the Ontario Independent Police Review Director, and another
    an investigator with the Ontario Civilian Police Commission.

[4]

Ms. Abernethy commenced her action in December 2012.  Her pleading sets
    out events going back as far as 1970 and ending in 2011.  It is evident on the
    face of the narrative that Ms. Abernethy has endured a trying and difficult
    period in her life.  As we shall explain, however, what is not evident from her
    pleading is that the defendants (except for one possible claim the motion judge
    allowed her to pursue) are legally responsible for her difficulties.

[5]

The Fresh as Amended Statement of Claim is long, rambling and difficult
    to understand. In it, Ms. Abernethy claims damages in the amount of $8,400,000 allegedly
    arising out of a multitude of complaints about the way she asserts she has been
    treated by various state officials in the justice and health-care systems during
    that period of time.  She claims against the Crown defendants for conspiracy,
    misfeasance in public office, breach of trust, intentional infliction of mental
    distress, obstruction of justice, intentional
Charter
and statutory
    violations and, in some cases, false arrest, false imprisonment and fabricating
    evidence.  Her claims against Ms. Santone are framed in conspiracy, breach of
    trust, misfeasance in public office, intentional violation of three privacy
    statutes, obstruction of justice and intentional violations of the
Canadian
    Human Rights Act
.

[6]

Ms. Abernethy was given leave to amend her pleading, and on September 23,
    2013, she delivered a Fresh as Amended Statement of Claim.  It is that pleading
    which is the subject of this proceeding.

The Crown Defendants

[7]

After properly reviewing all the relevant principles relating to the
    striking of pleadings, and reading the Fresh as Amended Statement of Claim as
    generously as he could in favour of the plaintiff, with due allowances for
    drafting deficiencies, the motion judge concluded that Ms. Abernethys claims
    against the Crown Defendants disclosed no reasonable cause of action and that
    it was plain and obvious they could not succeed.  He also held  correctly in
    our view  that, with the exception of a claim for malicious prosecution (which
    Ms. Abernethy acknowledged before him and us that she was not pursuing), the
    Crown Attorney defendants were protected by Crown immunity under the
Ministry
    of the Attorney General Act
, R.S.O. 1990, c. M.17, s. 8 and by common law Crown
    immunity; and that the remaining Crown Defendants were protected by statutory
    immunity under the
Police Services Act
, R.S.O. 1990, c. P.15, ss. 21(9)
    and 26.1(12).

[8]

The motion judge also found that the Fresh as Amended Statement of Claim
    failed to plead the material facts required to support the sweeping, bald and
    speculative allegations relating to the named causes of actions alleged,
    including the more detailed particulars that are required where malice is
    alleged.  For instance, he concluded that:

A careful review of the Statement of Claim wherein the
    Plaintiff is alleging that these Defendants have caused misfeasance in public office,
    conducted themselves in breach of trust, assaulted her, falsely arrested her,
    and so on, are extremely vague, entirely speculative, and they are bald
    allegations without material facts set out.  Missing is the who, the what, the
    when and where, given the basis for the allegations made.

The Plaintiff has set out vague causes of action in her
    Statement of Claim, but missing are the material facts she claims give rise to
    the causes of action she has pled [See Rule 25.06(1)].



Again, there have been sweeping and bald allegations of malice
    in a very extensive narrative which alleges numerous serious and criminal acts
    by the named Crown Attorneys, but these allegations are not sufficiently
    supported by the pleading to the point where it is almost impossible to
    establish which prosecutions the name Crown Attorneys were involved with and
    how the prosecutions were ultimately resolved.

[9]

The pleading was similarly defective in relation to the remaining two Crown
    Defendants.

[10]

Having made those findings, the motion concluded that:

(i) the Fresh as Amended Statement of
    Claim disclosed no cause of action as against the Crown Defendants;

(ii) no material facts upon which Ms.
    Abernethy relies had been pleaded; rather, the pleading contained only bald,
    sweeping allegations against the defendants without the facts to support those
    bald conclusions; and

(iii) the action should therefore be
    dismissed as frivolous and vexatious, pursuant to Rule 25.11.

[11]

Ms. Abernethy made respectful and articulate submissions before us.  We
    understand that she, herself, believes that she has been wronged and that she
    has the facts to support her claims.  However, we agree with the findings and
    conclusions of the motion judge outlined above with respect to her pleading.  A
    cause of action is not disclosed simply by naming it.  The claims must be
    supported by more than a bald and conclusory narrative; they must be supported
    by a set of material facts that  assuming they could be proved  would
    establish the claims.  In spite of Ms. Abernethys submissions, we are not
    persuaded that the material facts, as required, are pleaded here.

[12]

The Crown Attorneys are protected from suit against them by the
    statutory and common law immunity outlined above.  Ms. Abernethy candidly
    conceded that she is not asserting a claim for malicious prosecution.  It
    follows that no action can be brought against these defendants in their
    personal capacities in these circumstances.  See
Nelles v. Ontario
,
    [1989] 2 S.C.R. 170;
Miazga v. Kvello Estate
, 2009 SCC 51, [2009] 3
    S.C.R. 339;
Thompson v. Ontario

(1998), 113 O.A.C. 82 (C.A.);
Gilbert
    v. Gilkinson

(2005), 205 O.A.C. 188 (C.A.), leave to appeal refused,
    [2006] S.C.C.A. No. 67.  The defendants Rippey and McNeilly are protected by
    the statutory immunity provided by the
Police Services Act
.

[13]

In addition, on the basis that Ms. Abernethys pleading discloses no
    factually material basis for a cause of action against the personal Crown
    Defendants, the claims against the Crown, itself, based as they are on
    vicarious liability, must fail too.

[14]

Given that Ms. Abernethy had already been provided with earlier
    opportunities to correct and amend her pleadings against the Crown Defendants,
    the motion judge declined to grant her further leave to amend.  He observed
    that pleadings are not meant to be a moving target and that he was not
    convinced any further amendments would result in a proper pleading.  Whether to
    grant leave to amend is a discretionary decision, and we see no basis for
    interfering with his decision in that regard.

The Defendant Ms. Santone

[15]

The motion judge took a different approach with respect to Ms. Santone. 
    Taking a generous view of the pleading, in favour of Ms. Abernethy, he
    concluded that there may be a basis for a claim based of the tort of breach of
    privacy: see
Jones v. Tsige
, 2012 ONCA 32, 108 O.R. (3d) 241.  He
    therefore granted her leave to amend her pleading to allege that tort,
    specifically providing, however, that the amendment permitted was not to relate
    to the claims for misfeasance in public office, conspiracy, obstruction of
    justice or claims based upon specific legislation that does not apply to the
    claim in tort for breach of privacy.

[16]

Ms. Abernethy appeals from this decision, too, making the same arguments
    with respect to the broader claims and submitting as well that having to pursue
    the breach of privacy claim, which lies against Ms. Santone alone, deprives her
    of her ability to pursue the other defendants on the basis of conspiracy.  She
    submits that her damages cannot be fully appreciated in isolation from the
    conspiratorial actions of the others.

[17]

For the reasons set out above, however, we see no basis for interfering
    with the motion judges findings and conclusions with respect to the array of
    broader claims put forward by Ms. Abernethy.  The motion judge granted her
    leave to amend to pursue a breach of privacy claim against Ms. Santone and that
    matter will proceed as he directed.

Bias

[18]

Finally, Ms. Abernethy renewed a ground set out in her Notice of Appeal
    but not pursued in her factum, namely, that the motion judge was biased in
    arriving at his decision.  In her Notice of Appeal she asserted that the motion
    judge had demeaned her claim for damages by dismissing it as a conspiracy
    theory rather than treating it as a claim for unlawful conspiracy as defined
    by law, and she repeated that argument before us.  More broadly, however, in
    oral argument her claim seems to have been based more on current controversies
    in the public realm about certain judicial misconduct and the fact that various
    sectors of the public are calling for additional training of judges in certain
    areas.  It follows, in Ms. Abernethys view that a reasonable and reasonably
    informed member of the public would think that the motion judge was biased in
    these circumstances, taking into account his purported conspiracy theory
    comment.

[19]

There is no basis for this submission.  There is a strong presumption of
    judicial impartiality and a heavy burden on a party seeking to rebut the
    presumption:
S.L. v. Marson
, 2014 ONCA 510, 121 O.R. (3d) 369, at
    paras. 24-29.  That presumption cannot be rebutted by vague references to
    current controversies in the public realm, but must be determined in the
    context of the particular case.  We see absolutely nothing in the record or in
    the reasons provided by the motion judge on the two motions that would suggest
    he harboured any bias, conscious or unconscious, towards Ms. Abernethy.

Disposition

[20]

For the foregoing reasons, the appeal is dismissed.

[21]

The Crown Defendants and Ms. Santone are entitled to their costs of the
    appeal, each in the nominal amount of $500.00, as requested.

R.A. Blair J.A.

P.D. Lauwers J.A.

C.W. Hourigan J.A.


