Stephen v. HMTQ

2008 BCSC 1656 Stephen v. HMTQ IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Stephen v. HMTQ, 2008 BCSC 1656 Date: 20081201 Docket: S18607 Registry: Chilliwack Between: Garnet Stephen Plaintiff And Her Majesty the Queen in Right of the Province of British Columbia as represented by The Ministry of Children and Family Development, and as represented by the Ministry of the Attorney General, And British Columbia Human Rights Tribunal And British Columbia Human Rights Coalition And Heather MacNaughton, Judy Parrack, Barbara Humphreys, Lindsay M. Lyster, Toney Beharrel, Catherine Hunt, Lisa Lee, Linda Thayer, Christopher Cox, Mona Woodfine, Wanda Smith, Colleen Johnson, James MacNamera, Bruce McNeill, Audrey Lieberman, Les Boon, Amarjit Sahota, Kehmal Kahn and Alison MacPhail Defendants Before: The Honourable Mr. Justice Joyce Reasons for Judgment The plaintiff appearing in person Counsel for Her Majesty the Queen in Right of the Province of British Columbia and Catherine Hunt, Lisa Lee, Linda Thayer, Christopher Cox, Mona Woodfine, Wanda Smith, Colleen Johnson, James MacNamera, Bruce McNeill, Audrey Lieberman, Les Boon, Amarjit Sahota, Kehmal Kahn and Alison MacPhail K.A. Horsman Counsel for the Human Rights Tribunal and Heather MacNaughton, Judy Parrack, Barbara Humphreys, Lindsay M. Lyster and Toney Beharrel D.E. Paluck Counsel for the British Columbia Human Rights Coalition E.J.A. Stanger Date and Place of Hearing: June 17, 2008 Chilliwack, B.C. I. INTRODUCTION [1] In or about January 2001 the plaintiff and his wife applied to the Ministry of Children and Family Development ("MCFD") to adopt or foster children who were in the custody of MCFD. Ultimately, they were unsuccessful in qualifying to adopt or foster children through MCFD. [2] Starting in February 2005, the plaintiff filed a number of complaints with the British Columbia Human Rights Tribunal (the "Tribunal") and brought a number of applications in connection with these complaints. The Tribunal released eight decisions in total dealing with the plaintiff's complaints and applications, all of which went against the plaintiff. [3] The plaintiff did not seek judicial review of any of the Tribunal's decisions. Instead, on January 24, 2008 he commenced this action. In his writ of summons, the plaintiff describes his claim as one for "declaration of remedies and compensation for damages, mitigation costs and costs of this action". [4] The defendants fall into three categories as described below: (a) The "Crown Defendants", comprised of: (i) Her Majesty the Queen in Right of the Province of British Columbia; (ii) Catherine Hunt, Lisa Lee, Linda Thayer and Audrey Lieberman, who are all lawyers who are or were employed by the Ministry of the Attorney General and who were involved with the plaintiff's various complaints and applications to the Tribunal; (iii) Christopher Cox, who was a legal assistant employed by the Ministry of the Attorney General and who also was involved in the Tribunal matters; and (iv) Mona Woodfine, Wanda Smith, Colleen Johnson, James MacNamera (properly spelled MacNamara), Bruce McNeill, Les Boon, Amarjit Sahota, Kehmal Khan and Alison MacPhail, who are or were employees of MCFD and who had some involvement in the events that underlay the plaintiff's human rights complaints; (b) The "Tribunal Defendants", comprised of: (i) the British Columbia Human Rights Tribunal; (ii) Heather MacNaughton, who was the chair of the Tribunal at all relevant times; and (iii) Judy Parrack, Barbara Humphreys, Lindsay Lyster and Toney (properly spelled Tonie) Beharrel, who were members of the Tribunal and were involved in dealing with the plaintiff's various complaints and applications. (c) The British Columbia Human Rights Coalition, referred to as the "Coalition Defendant" [5] All three sets of defendants apply for dismissal of the plaintiff's action. The Crown Defendants apply under Rule 19(24)(a), (b) and (d) on the basis that the statement of claim does not disclose a reasonable claim, is frivolous and vexatious and is otherwise an abuse of process. The Crown Defendants also seek costs. [6] The Tribunal Defendants also apply under Rule 19(24)(a), (b) and (d). Further, they rely on s. 56(2) of the Administrative Tribunals Act, S.B.C. 2004, c. 45 ("ATA"). The Tribunal Defendants do not seek costs. [7] The Coalition Defendant seeks dismissal under Rule 19(24)(a) on the ground that the statement of claim discloses no reasonable claim and also seeks costs. II. FACTUAL BACKGROUND A. The Complaints and Corresponding Applications 1. Complaint #1 (Case #2557) [8] The plaintiff filed his first complaint with the Tribunal on February 25, 2005. The named respondents included the defendants Bruce McNeill, Mona Woodfine and Wanda Smith. The plaintiff alleged that the respondents discriminated against him based on his ancestry, place of origin, marital status, family status, physical disability, mental disability and sex in the provision of a service, contrary to s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the Code). He also filed a representative complaint on behalf of all persons who applied to MCFD to adopt or foster children and who were subject to a Structured Analysis Family Evaluation Tool ("SAFE Tool") as a part of the assessment of such application. [9] On April 14, 2005 the plaintiff filed another complaint form, amendment forms and further particulars, in which he asserted that he had been discriminated against in respect of a publication of certain documents circulated amongst employees at MCFD, contrary to s. 7 of the Code. [10] On June 29, 2005 the respondents filed an application to dismiss the complaint under s. 27(1) of the Code. Section 27(1) provides, in part: (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply: (a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal; (b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code; (c) there is no reasonable prospect that the complaint will succeed; (d) proceeding with the complaint or that part of the complaint would not (ii) further the purposes of this Code; (g) the contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22(3). [11] The defendant Audrey Lieberman was counsel for the respondents with respect to the application to dismiss Complaint #1. [12] On January 25, 2006 the defendant Judy Parrack, the Tribunal member who had been designated to hear the application, issued her decision dismissing Complaint #1. She concluded that there was no reasonable prospect that the complaint under s. 7 of the Code would succeed because the documents and correspondence complained of did not fall within the description of the material that must not be published and, even if it did, it constituted a private communication under s. 7(2) and was exempt from the prohibition. [13] Ms. Parrack concluded that the plaintiff's allegations did not constitute an act of discrimination prohibited under s. 8 of the Code and that there was no reasonable prospect that his complaint would succeed. [14] With respect to the use of the SAFE Tool, which is the subject matter of much, but not all, of the plaintiff's complaints, Ms. Parrack said: [70] The MCFD is charged with placing children in foster care and to find adoptive parents for children. It is in the best position to determine which tools are appropriate in making such decisions and it has chosen to use the SAFE Tool. The questions asked in the SAFE Tool are extensive and used to identify issues that the MCFD may want to canvass further with a prospective parent. I accept, as asserted by the respondents that when the SAFE Tool identifies a concern, it is discussed with the prospective parent. This was the process undertaken with Mr. Stephen [76] The fact that Mr. Stephen does not like the SAFE Tool or believes that there are other better methods for screening potential parents, does not lead to the conclusion that the SAFE Tool is discriminatory. It is not open to the Tribunal to decide which screening tool will be used by MCFD. MCFD is entitled to pick those tools and administer them in a manner that is not discriminatory, and which ensures that the appropriate individuals are chosen to foster and/or adopt children. This is a serious and difficult task and the MCFD is best situated to determine the tools that it will use in that process. 2. Complaint #2 (Case #2595) [15] The plaintiff filed a second complaint with the Tribunal on March 8, 2005. The named respondents included the defendants Colleen Johnson, Wanda Smith and James MacNamara. The grounds for this complaint also related to the manner in which the plaintiff's application to adopt or foster children was dealt with by MCFD. [16] MCFD raised a preliminary objection to the complaint on the ground that it was filed out of time. The plaintiff alleged that the acts of discrimination occurred in February, March and April 2003 and in April and May 2004, more than six months before the complaint was made. Under s. 22 of the Code a complainant must file his complaint within six months of the alleged acts of discrimination. The Tribunal has the discretion to accept late-filed complaints if it determines that it is in the public interest to do so and that no substantial prejudice will result to anyone because of the delay. [17] The plaintiff applied to have his complaint accepted for filing even though it was filed out of time. The defendant Lisa Lee was counsel for the respondent on that application. [18] On June 20, 2005 Tribunal member Lindsay M. Lyster issued a decision in which she concluded it would not be in the public interest to accept the late filed complaint. 3. Complaint #3 (Case #2928) [19] On June 23, 2005 the plaintiff filed a third complaint, along with a representative complaint, raising allegations that were essentially the same as those contained in Complaint #2. The plaintiff also alleged retaliation by the respondents contrary to s. 43 of the Code asserting that the fact that the respondents in the complaint were represented by lawyers employed in the Legal Services Branch of the Ministry of Attorney General amount to retaliation against him. The named respondents included the defendants Colleen Johnson, Wanda Smith and James MacNamara. [20] The respondents applied for an order that the complaint not be accepted for filing on the ground, amongst others, that it was res judicata. The defendant Audrey Lieberman was counsel for the respondents on that application. [21] On March 2, 2006 Tribunal member Abraham R. Okazaki issued a decision in which he concluded that, with the exception of the retaliation claim, the complaint was barred on the ground of res judicata. [22] On July 18, 2006 Tribunal member Tonie Beharrel issued a decision dismissing the retaliation claim under s. 27(1)(b) on the basis that the complaint did not allege any acts or omissions that could contravene the Code. 4. Complaint #4 (Case #3357) [23] The plaintiff filed a fourth complaint on November 14, 2005. On December 19, 2005, Tribunal Chair Heather McNaughton advised the plaintiff in writing that the Tribunal refused to accept the complaint because it did not allege facts that, if proven would amount to a breach of the Code. 5. Decisions regarding other applications by the plaintiff and respondents [24] The plaintiff filed three applications in connection with Complaint #1. On July 27, 2005 he filed an application for costs against the respondents on the ground that they had engaged in improper conduct. On August 4, 2005 he filed a further application for costs, together with an application that the Tribunal initiate contempt proceedings against the respondents based on his assertion that they committed perjury and disclosed privileged information. On September 1, 2005 the plaintiff filed a further application seeking costs and an order initiating contempt proceedings. [25] On January 25, 2006 Tribunal member Judy Parrack issued a decision dismissing each of these applications. She found that there was nothing before her that would suggest that the respondents engaged in the type of conduct that would attract an order for costs. In dealing with this issue, she said: [12] First, the respondents are entitled to set out their versions of the events and to make submissions in support of their application to dismiss. Mr. Stephen's disagreement with those submissions does not mean that they were made in bad faith or for improper motives. They were made to support an application and the Rules entitle them to make such applications. [13] Second, Mr. Stephen alleges that the respondents filed "perjured affidavits". This is a very serious allegation. The affiants filed sworn statements in support of the respondents' application to dismiss. Because Mr. Stephen takes issue with the version of events set out in those affidavits and/or the statements made with respect to the processes followed by the MCFD, does not made (sic) those statements perjured statements. Mr. Stephen is entitled to his version of events but this does not mean that the version put forward by the affiants is based on misleading or false information. If Mr. Stephen had concerns about the content of those affidavits he could have filed an application to have those affiants cross-examined pursuant to Rule 19(5)(d). He did not do so and he cannot now rely on what he perceives to be misinformation or what he says are "perjured affidavits" to support his claim for costs. [14] Mr. Stephen carefully reviewed the statements and submissions of the respondents in their application to dismiss the complaint. He was provided with full opportunity to set out his version of what happen (sic) and to correct and/or clarify what he understood to be inaccurate statements. It is clear that the parties have a different version of the events, a different interpretation of the meaning and application of the SAFE Tool, as well as many other disagreements. However, such disagreements are a common feature of litigation processes and do not constitute improper conduct. [26] Tribunal member Parrack found nothing further in the application of August 4, 2005 in support of an application for costs. [27] With regard to the application to initiate contempt proceedings, Tribunal member Parrack said: [27] Mr. Stephen says that contempt proceedings should be initiated because the respondents have committed perjury and have disclosed information exchanged between the parties in the course of settlement discussions. [28] Contempt proceedings are very serious and should only be considered in the clearest of circumstances. There is nothing before me that suggests that the respondents have engaged in contemptuous conduct. I am not prepared to rely on Mr. Stephen's bald assertions that they have. I do not accept that the respondents have provided perjured statements to the Tribunal or that they have disclosed information containing settlement discussions. I am not prepared to entertain any application to commence contempt proceedings based on such unsubstantiated information. [28] Finally, Tribunal member Parrack found nothing additional in the plaintiff's application filed September 1, 2005 to justify an order for costs or an order initiating contempt proceedings. [29] At one point in the proceedings the respondents in Cases #2557 and #2595 applied for an extension of time to file submissions. On August 15, 2005, Tribunal member Barbara Humphreys granted those applications. [30] The plaintiff at various times requested assistance from the Coalition but these requests were denied. III. THE PLEADINGS [31] The endorsement on the plaintiff's writ of summons issued January 24, 2008 states that the plaintiff's claim is for "declaration of remedies and compensation for damages, mitigation costs and costs of this action". It goes on to list twenty "causes of action", consisting primarily of a number of Criminal Code offences the defendants were alleged to have committed, including: (a) fabricating evidence; (b) misconduct of officers executing process; (c) being an accessory after the fact; (d) being a party to an offence (not specified); (e) conspiracy; (f) uttering forged documents; (g) fraud; (h) publishing a libel; (i) wilfully disobeying a number of specified statutes; (j) obstructing justice; (k) perjury; (l) committing fraud upon the government; (m) breach of trust by public officers; (n) bribery of officers; and (o) negligence by an organization. [32] In addition, the plaintiff alleged the following causes of action: (a) making findings of fact based on no evidence or that are otherwise unreasonable in light of all the evidence; (b) exercising discretion in a patently unreasonable way by exercising it arbitrarily, in bad faith or for improper purpose and basing decisions entirely or predominantly on irrelevant factors or by failing to take statutory requirements into account; (c) unfairly applying the rules of natural justice and procedural fairness; (d) negligence; and (e) wilfully concealing material facts. [33] In a draft amended writ of summons, dated May 20, 2008 and not yet filed, the plaintiff has elaborated somewhat on the nature of his claims, alleging that he and his spouse were: subjected to years of extensive (documented, provable and/or confessed) acts and omittions (sic) of gross: breaches of duty, breaches of trust, negligence, incompetence (sic), bad faith, misconduct, corruption, scandal, torts and criminal conduct by defendants: which resulted and/or continues to result in wrongful: a) losses of income and benefits, damages to livelihood and lifestyle, unwarrented (sic) and/or unfair expenses, and b) losses of right or privilage (sic) and benefit to adopt children and/or foster children and/or otherwise care for children through programs of defendants, and c) losses and/or contraventions of plaintiff rights and fundamental freedoms guaranteed by: the Canadian Charter of Rights and Freedoms, Rule of Law, legislated enactments, statutes and codes, and d) losses and/or alienation of affection and/or disruption of plaintiff: family, friends, social circles, and e) long term emotional distress to plaintiff and spouse, and f) damages to health, welfare and dignity of plaintiff and spouse. [34] The plaintiff goes on to allege in the amended writ that the Tribunal breached its duty under s. 30 of the ATA and that the Chair of the Tribunal breached her duty under s. 9 of the ATA. He also alleges that, in bad faith or through gross negligence, the Ministry of Attorney General, the Tribunal, its members and its chair "breached their duties, responsabilities (sic) and legal obligations through intentional and/or negligent use of some or all of" the various offences that I have set out in paragraph 31 above. [35] In his amended writ the plaintiff further alleges that the Coalition Defendant breached its duty and obligations by: (a) judging the merits of complaints; (b) acting in a conflict of roles through creation of bias insecurity; (c) dismissing meritorious complaints; (d) duplicating processes, such as deciding the prima facie case of discrimination on intake after the Tribunal has already made that decision in accepting a case for filing; (e) disregarding the importance of tribunal interpretation; (f) inflicting unwarranted delays in processing; and (g) failing to provide assistance and representation to those who need help with provincial human rights complaints, including those who meet intake criteria. [36] The amended writ goes on to repeat allegations of breach of various provisions of the Criminal Code by "the Ministry of Attorney General and named crown staff", and "the Ministry of Children and Family Development, deputy minister and named crown staff". [37] On February 26, 2008 the plaintiff filed a statement of claim consisting of 158 numbered, single spaced paragraphs running 57 unnumbered pages. The statement of claim is prolix, exceedingly difficult to follow and largely incomprehensible. The plaintiff begins by referencing Case #2557. He alleges that on January 25, 2006 the Tribunal Defendants "in bad faith, negligently, without cause, and in contravention of Tribunal Directives: wrongfully dismissed" his complaint. The plaintiff then alleges that on January 25, 2006 the Tribunal Defendants "in bad faith, negligently, without just cause and wrongfully" dismissed, covered up, and lied about the various applications that were dealt with by the decision issued on that date. The plaintiff alleges this wrongdoing was carried out by a number of different means, including: · Fabrication of evidence, which he details in 50 "counts"; · Being accessories after the fact or parties to offences, which he details in 3 "counts"; · Conspiracy; · Uttering a forged document; · Fraud; · Libel, which he details in 8 "counts"; · Disobeying statutes, namely o the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 ("FOIPPA") which is detailed in 3 counts, and o the Code, which is detailed in 6 counts; · Making findings of fact "based on no evidence and that is otherwise unreasonable in light of all the evidence"; · Exercising discretion in patently unreasonable way; · Breach of the rules of natural justice and procedural fairness. [38] Still dealing with Case #2557, the plaintiff next makes allegations against Crown Defendants, including allegations of perjury, conspiracy to commit perjury and fabrication of evidence and alleges that Tribunal defendants are guilty of these acts as accessories after the fact. The plaintiff's statement of claim goes on for pages detailing these alleged wrongdoings. [39] At paragraph 120 of the statement of claim the plaintiff turns to Case #3357 and his allegations against the defendant MacNaughton, including breach of duty, failure to perform a legal obligation, fraud and professional negligence, exercising her discretion in a patently unreasonable way and breach of the rules of natural justice and of the obligation of procedural fairness. [40] At paragraphs 141 to 148 the plaintiff sets out his claim against the Coalition Defendant, alleging that it breached a duty owed to him to provide assistance in the conduct of his complaints to the Tribunal. [41] At paragraphs 149 to 152 the plaintiff refers to Case #2928 and alleges that certain of the Crown defendants "in bad faith, negligently, without just cause, and in contravention of tribunal directives" wrongfully dismissed his complaint and "in bad faith, negligently, without just cause" wrongfully dismissed his application for costs. [42] At paragraphs 153 to 155 the plaintiff refers to Case #2595 and alleges that the Tribunal Defendants "in bad faith, negligently, without just cause and in contravention of Tribunal directives" wrongfully dismissed his complaint. [43] Finally, at paragraphs 156 to 158 the plaintiff claims that certain of the Crown defendants at the MCFD conspired to persuade his spouse to leave him, thereby inflicting emotional distress to the plaintiff and his spouse. [44] The prayer for relief in the statement of claim seeks, amongst other things · Various declarations pursuant to the Judicial Review Procedure Act; R.S.B.C. 1996, c. 241 ("JRPA"); · Orders under the ATA and the Criminal Code for "contempt relief" against a number of the defendants; · An order under the JRPA setting aside the decisions of the Tribunal in Cases #2557, #2928, #2595 and #3357; · An order against the Tribunal under the Code awarding the plaintiff the sum of $25,000 as compensation for injury to dignity, feelings and self-respect; · An order under the ATA that the appointing authority terminate the appointments of the defendants MacNaughton and Parrack to the Tribunal; · A declaration that the defendant Tribunal and the defendants MacNaughton and Parrack contravened FOIPPA; · An order under FOIPPA awarding the plaintiff the sum of $25,000 for offences by "service providers"; · An order awarding the plaintiff costs as advanced in his applications to the Tribunal; · Various declarations of breach of duties owed by the defendants; · An order awarding the plaintiff costs of mitigating losses relating to child care and parenting in the amount of $570,456; · An order to establish a witness protection program to protect plaintiffs and their witnesses in Tribunal complaints from "further intimidation and/or retaliation from Government Defendants"; · General damages; and · Costs. IV. LEGAL PRINCIPLES [45] Rule 19(24) of the Rules of Court provides that: (24) At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence as the case may be, (b) it is unnecessary, scandalous, frivolous or vexatious, (c) it may prejudice, embarrass or delay the fair trial or hearing or the proceeding, or (d) it is otherwise an abuse of the process of the court, and the court may grant judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. [46] The test to be applied in an application under Rule 19(24) was dealt with recently by our Court of Appeal in Young v. Borzoni , 2007 BCCA 16, 64 B.C.L.R. (4th) 157. The facts of that case are complicated. The Youngs rented an apartment in Victoria from the The Region Housing Corporation. The Youngs' neighbours complained about the smell of marihuana smoke emanating from the apartment. (Mr. Young was legally entitled to smoke marihuana because of a medical condition.) The Youngs were served with a notice terminating their tenancy and brought arbitration proceedings. The defendant Borzoni acted for the Capital Region in the arbitration hearings. The arbitrator held that the Capital Region had cause to terminate the tenancy and the Youngs applied for a review of the decision, which was denied. The Youngs then sought judicial review of the decisions of the arbitrators. They also brought a separate action against the Capital Region and the police alleging breaches of their right to grow and use marihuana. These proceedings were heard together. Borzoni acted for the Capital Region and the police in those proceedings, which were dismissed. After an unsuccessful appeal, the Youngs sought an order prohibiting the Capital Region from proceeding with possession of their residence. These efforts were also unsuccessful. The Youngs then commenced a defamation action against several former tenants. They also commenced an action against Borzoni claiming he owed them a duty of care as non-client third persons. [47] Borzoni applied to have the action against him dismissed on the grounds that the statement of claim disclosed no cause of action and that the action was frivolous, vexatious and an abuse of process. The chambers judge concluded that the action was merely an attempt to re-litigate the eviction issue and that the action was unnecessary, scandalous, vexation and frivolous. The Youngs' appeal was dismissed. [48] In relation to Rule 19(24)(a), the Court said at paras. 18 - 19: [18] Rule 19(24)(a) provides that the court may strike out the whole or any part of a pleading on the ground that it discloses no reasonable claim and may order the proceedings to be dismissed. The appellants argue that Bouck J. erred when he dismissed their claims in tort against Mr. Borzoni. [19] The Supreme Court of Canada set out in Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 the test for striking out a statement of claim on the basis that it disclosed no reasonable claim: [14] ...a court may strike out a statement of claim that discloses no reasonable cause of action. The rules with respect to striking out a statement of claim are much the same in other provinces. In British Columbia, for example, rule 19(24)(a) of the Rules of Court, B.C. Reg. 221/90, states that a court may strike out a pleading on the ground that it discloses no reasonable claim. [15] An excellent statement of the test for striking out a claim under such provisions is that set out by Wilson J. in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980: ...assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ... should the relevant portions of a plaintiff's statement of claim be struck out . The test is a stringent one. The facts are to be taken as pleaded. When so taken, the question that must then be determined is whether ... it is "plain and obvious" that the action must fail. It is only if the statement of claim is certain to fail because it contains a "radical defect" that the plaintiff should be driven from the judgment. [49] The principle that in an application under Rule 19(24)(a) the facts alleged in the statement of claim must be assumed to be true is not absolute and unqualified. In Borzoni, the Court said at para. 30 that "it is not fundamentally wrong to look behind the allegations in some cases" and that in some cases it is necessary to subject the allegations in the pleadings to "sceptical analysis in order to determine their true character". Thus, in Borzoni, at paras. 31 - 32 Thackray J.A., giving the judgment of the court, concluded with respect to the pleadings: [31] Therefore, in my opinion, considering the circumstances, litigation history and allegations in the case at bar it is appropriate to subject them to a sceptical analysis. Paragraphs 40, 41, 45, 46 and 47 of the statement of claim allege, against all of the defendants, intolerance, deceit, harassment, intimidation, writing malicious letters, falsifying documents and, in general, in disrupting the appellants' lives. They include an allegation that all of the defendants allowed, encouraged and influenced some of the Youngs' neighbours in "attempts to collide with the Plaintiffs' moving car, vandalism to the Plaintiff's property, uttering threats, trespassing, and watching of the Plaintiffs and their home." Paragraph 63 alleges that the "corporate" defendants, "under advice of Defendant Mr. Borzoni, fabricated and falsified documents destined" for the Tribunal and the Supreme Court. [32] Most of these wide and sweeping allegations would not, even if true, ground an action for intentional infliction of nervous shock or for negligence by way of a breach of duty. However, particularly in that they are directed at all defendants, which includes a police department, a Regional District, corporations and individuals, the allegations can only be viewed as wild speculation. As said by Mr. Justice McKenzie, they are "only language, not reality." More substantively it can be said, paraphrasing from Operation Dismantle [v. The Queen, [1985] 1 S.C.R. 441], that they are but speculation and it is not required that they be taken as true. [50] In Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress (1999), 36 C.P.C. (4th) 266 (B.C.S.C.) at para. 47, Romilly J. summarized what must be established in order to find that pleadings are "unnecessary, scandalous, frivolous or vexatious" under Rule 19(24)(b): Irrelevancy and embarrassment are both established when pleadings are so confusing that it is difficult to understand what is being pleaded: Gittings v. Caneco Audio-Publishers Inc. (1987), 17 B.C.L.R. (2d) 38 (B.C.S.C.). An "embarrassing" and "scandalous" pleading is one that is so irrelevant that it will involve the parties in useless expense and will prejudice the trial of the action by involving them in a dispute apart from the issues: Keddie v. Dumas Hotels Ltd. (1985), 62 B.C.L.R. 145 (B.C.C.A.) at 147. An allegation which is scandalous will not be struck if it is relevant to the proceedings. It will only be struck if irrelevant as well as scandalous: College of Dental Surgeons (British Columbia) v. Cleland (1968), 66 W.W.R. 499 (B.C.C.A.). A pleading is "unnecessary" or "vexatious" if it does not go to establishing the plaintiff's cause of action or does not advance any claim known in law: Strauts v. Harrigan (December 2, 1991), Doc. Vancouver C913631 (B.C.S.C.). A pleading that is superfluous will not be struck out if it is not necessarily unnecessary or otherwise objectionable: Lutz v. Canadian Puget Sound Lumber (1920), 28 B.C.R 39 (B.C. C.A.). A pleading is "frivolous" if it is obviously unsustainable, not in the sense that it lacks an evidentiary basis, but because of the doctrine of estoppel: Chrisgian v. B.C. Rail Ltd. (July 3, 1992) Doc. Prince George 20714 (B.C. Master). [51] In determining whether proceedings constitute an abuse of process, the court may consider whether there have been multiple or successive related proceedings that are likely to cause vexation or oppression. In particular, it is an abuse of court process to use a civil action to collaterally challenge decisions of an administrative tribunal that are otherwise subject to a statutory right of appeal or review: Borzoni at paras. 65-66; Gemex Developments Corp. v. Coquitlam (City), 2002 BCSC 412; Varzeliotis (c.o.b.) v. British Columbia, 2007 BCSC 620. [52] In Berscheid v. Ensign, [1999] B.C.J. No. 1172 (S.C.) at para. 51, the collateral principle was described in the following terms: As a result of this distinction between judicial review and civil litigation, a party cannot seek a remedy statutorily provided for by judicial review through civil proceedings. Such an evasion of the judicial review process is known as a collateral attack and is prohibited. [53] In Varzeliotis (c.o.b.) v. British Columbia, Mr. Justice Macaulay struck an action against the Province and Privacy Commissioner in which the plaintiff alleged he was denied various personal rights under FOIPPA. In dismissing the action under Rule 19(24), Mr. Justice Macaulay stated at paras. 42-43: [42] Instead of invoking the judicial review procedure available to him, the plaintiff has chosen to commence an action against the commissioner in this court to achieve his result. Every substantive issue raised in the pleadings could have been addressed under the JRPA including any allegation that the commissioner lacked impartiality in performing his statutory duties. As well, it is open to a court on judicial review to order the commissioner to carry out his duty if he failed to do so. [43] This alone is sufficient, in my view, to strike the statement of claim as an abuse of process. V. DISCUSSION [54] I am satisfied that the statement of claim is so prolix that it could not stand regardless of whether the plaintiff might have a reasonable cause of action against any of the named defendants. In my view, the defendants could not possibly be expected to be able to respond to this document in any meaningful way. On the basis of the prolix nature of the document alone, it ought to be struck. [55] The defendants do not seek simply to have the statement of claim struck because it is so prolix as to be incomprehensible. They submit that the proceedings should be dismissed in their entirety. [56] For the reasons that follow, I am satisfied that the defendants are entitled to have the plaintiff's action dismissed. I will deal with the claims against each class of defendants separately. A. The Claim against the Crown Defendants [57] In my view, the plaintiff's claims for relief under the JRPA, including declarations that the decisions of the Tribunal contained errors of fact or law or both, were patently unreasonable and made in breach of the rules of natural justice and obligation of procedural fairness, must be dismissed. They must be dismissed, firstly because it is not open to the plaintiff to seek relief under the JRPA in an action. Under s. 2(1) of the JRPA, an application for judicial review must be brought by petition. [58] Even if this Court were to allow the action to proceed, despite such a procedural flaw, the time limit for bringing such an application in respect of the decisions of the Tribunal has expired. Under s. 57 of the ATA, which applies to the Tribunal by virtue of s. 32 of the Code, an application for judicial review must be brought within 60 days of the date the challenged decision was issued. The Tribunal advised the plaintiff, in February 2006, of his right to seek judicial review from Tribunal decisions and put the plaintiff on notice of the 60 day time limit. [59] I am also satisfied that the action must be dismissed as against the Crown Defendants for reasons that go beyond the matter of incorrect procedure and expiration of the limitation period. In my view, it is plain and obvious that the plaintiff's claim cannot succeed and that the action should be dismissed under Rule 19(24)(a). Furthermore, I am satisfied that the action is scandalous, frivolous and vexatious within the meaning of those terms as they are used in Rule (19)(24)(b) and is an abuse of process within the meaning of Rule 19(24)(d). [60] The plaintiff makes wide-sweeping, inflammatory accusations of criminal conduct against the defendants globally, including the Crown Defendants. These include allegations of conspiracy, forgery and perjury. In my view, the situation here is similar to that in Borzoni and given the history of these matters, I am of the opinion that I am entitled to subject them to a sceptical analysis. In my view, I am not required to assume that these bald allegations are true. [61] Furthermore, I agree with counsel for the Crown defendants, who in her written submissions writes: even if the allegations in the Statement of Claim as a whole were presumed to be true, they do not disclose any comprehensible civil cause of action against the Crown Defendants, or any material facts that would support a cause of action. The crux of the Plaintiff's complaints is his dissatisfaction with the outcome of the Plaintiff's numerous complaints to the Tribunal. This dissatisfaction does not translate into viable civil cause of action against either the individuals to whom the Plaintiff's complaints were directed, or the legal staff who defended those individuals. [62] The plaintiff submits that in this action he is not seeking to litigate matters that were determined in the applications. In his affidavit filed in response to the motion, the plaintiff says that his cause of action relates to: breaches of duty, failures to perform legal obligations, negligent supervision, violations or invasions of rights: (sic) and torts including: invasion of privacy, fraud, slander, libel, negligence, intentional infliction of emotional distress, alienation of affection, procedural unfairness and perjury [63] In my opinion, the use of these words does not change the essential character of the plaintiff's complaint against the defendants. He believes that he was wronged by the decisions that were made against him in the proceedings in which the defendants participated in one way or another. There was another forum for challenging those decisions but the plaintiff did not avail himself of it. He now seeks retribution against the defendants because they were involved in a process that led to a result that he does not accept. [64] I consider that his claim is bound to fail and that the defendants are entitled to have it dismissed at this stage. B. The Claim against the Tribunal Defendants [65] The Tribunal is an independent quasi-judicial tribunal constituted under s. 31(1) of the Code. It has exclusive jurisdiction to adjudicate complaints of discrimination filed under the Code. Its mandate encompasses all aspects of the intake, processing and adjudication of human rights complaints that are filed under the Code. The Tribunal has the statutory power to make decisions whether to accept complaints that are filed with it and whether to dismiss complaints that do not merit the time and resources of a hearing. [66] The Tribunal's involvement with the plaintiff was in respect of the discharge of its statutory mandate and the involvement of the chair and other members of the Tribunal was in respect of the discharge of their statutory duties. [67] In my opinion the plaintiff's claims against the Tribunal and its members ought to be dismissed under Rule 19(24) for the same reasons that I have discussed in relation to the Crown Defendants. The plaintiff has made bald assertions of violations of the Criminal Code and other statutes and then asserted that somehow they give rise to liability in tort. The plaintiff has not pleaded a proper factual basis for any known cause of action; rather, he has simply stated conclusions of law as if they were facts and claimed that he is entitled to various remedies. [68] The plaintiff's claim that the Tribunal breached provisions of FOIPPA by publishing its decisions is answered by s. 50(4) and 61(2)(f) of the ATA, which apply to the Tribunal by virtue of s. 32 of the Code. Section 50(4) requires the Tribunal to make its decisions accessible to the public and s. 61(2)(f) provides, in essence, that the substantive provisions of the FOIPPA do not apply to its decisions to which public access is provided. [69] In addition, it is my view that the plaintiff's claim against the Tribunal Defendants cannot be maintained by virtue of s. 56 of the ATA, which is made to apply by s. 32 of the Code. Section 56 of the ATA provides: 56(1) In this section, "decision maker" includes a tribunal member, adjudicator, registrar or other officer who makes a decision in an application or an interim or preliminary matter, or a person who conducts a dispute resolution process. (2) Subject to subsection (3), no legal proceeding for damages lies or may be commenced or maintained against a decision maker, the tribunal or the government because of anything done or omitted (a) in the performance or intended performance of any duty under this Act or the tribunal's enabling Act, or (b) in the exercise or intended exercise of any power under this Act or the tribunal's enabling Act. (3) Subsection (2) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith. [70] The Plaintiff does not plead facts in support of his bare assertions that the Tribunal Defendants acted in bad faith. The Plaintiff has only speculated that the outcomes of quasi-judicial functions which are unacceptable to him are attributable to bad faith. I agree with counsel for the Tribunal Defendants that this is not enough to strip an adjudicator of their immunity to suit under s. 56(3) of the ATA. [71] Finally, to the extent that the plaintiff may be attempting to rely on abuse or misfeasance in public office as a cause of action, the plaintiff has not pleaded the facts required to establish the elements of the tort. In Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 32 the Supreme Court of Canada described the requirements of this tort as follows: To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law. [72] I agree with counsel for the Tribunal Defendants that the claims against them are an abuse of process in that the plaintiff is attempting to collaterally attack the Tribunal's decisions. The essence of the plaintiff's claims against the Tribunal Defendants is that due to some bias favouring the respondents, unfairness or breaches of natural justice in the handling of the plaintiff's human rights complaints, or errors in decision-making, or both, the Tribunal's decisions and the exercise of statutory powers and duties by the individual Tribunal members produced outcomes that were wrong. Substantively, the plaintiff's issues with the actions of the Tribunal Defendants rest on alleged errors that are, or were, judicially reviewable under the JRPA. C. The Claim against the Coalition Defendant [73] The claim against the Coalition Defendant is contained in paragraphs 141 to 148 of the statement of claim, which read: (141) The defendant BC Human Rights Coalition was repeatedly contacted by Plaintiff for aid and representation for BCHRT cases; 2557, 2928, 2595 and 3357. (142) The Defendant was also repeatedly contacted by CLAS for help in these cases, non (sic) of the calls from CLAS were ever returned. (142) Although plaintiff met the criteria of the time for services: Initially the defendant refused to look at a case citing: (a) indication of conflict of interest in that they are funded by the defendant HQ/MAG who were representing some of the respondent (defendants) in the case. This provides evidence to political interference by the Ministry of Attorney General. (b) an improper un objective (sic) bias in favour of respondent defendants. This provides evidence to political interference from MCFD. (c) Merit, but the defendant was unable to give particulars or explanation. This provides evidence of making a false return to the process. (143) When the requirement for merit was dropped and it was only necessary to have the case accepted by the Tribunal: Plaintiff resubmitted requests for aid to the Coalition. (144) Numerous contacts to the defendant were made (sic) by Plaintiff and LSLAP, but defendant failed to respond. (145) The head of CLAS also contacted defendant and assured Plaintiff that defendant would contact Plaintiff immediately, however defendant again failed to make contact. (146) Some time later: plaintiff forwarded the case material from a new case to defendant who then asked for follow up material, Plaintiff complied with the understanding defendant had taken the case. Plaintiff never received further communication from the defendant. (147) Plaintiff later contacted the Tribunal to learn the case had been dismissed without the plaintiff's knowledge. The Tribunal informed plaintiff that notice was sent to the defendant, however the defendant failed to follow up on it or follow up with a judicial review. (148) The defendant was in breach of duty, failing to perform a legal obligation and negligent in supervising it's (sic) staff: denying plaintiff right to legal counsel from the BC Human Right Coalition/clinic. [74] The plaintiff seeks the following relief against the Coalition Defendant: (m) A declaration that the Defendant: BC Human Rights Coalition are negligent in placing themselves in a conflict of interest, failed to perform a legal obligation, are in breach of duty and/or conspiracy in failing to represent Plaintiff in BCHRT cases. [75] In summary, the plaintiff alleges the Coalition Defendant breached a duty owed by it to the plaintiff to represent him in connection with his complaints to the Tribunal. [76] To establish a common law duty of care, the plaintiff would have to prove that the Coalition Defendant had a sufficient relationship of proximity to him and that there was foreseeability of damage to him: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537. [77] In my opinion, the Coalition Defendant is correct in its submission that the statement of claim does not plead facts that, if proven, would establish any legal duty or obligation on it to represent the plaintiff or assist him in any way in his proceedings before the tribunal. There is no pleading in contract and no other facts pleaded that create a duty. The Coalition Defendant says it can choose who it represents and who it will not represent. [78] Declining to represent the plaintiff does not amount to negligence. There is no breach of a standard of care. Furthermore, the plaintiff fails to allege any loss or damage resulting from the alleged breach of duty. [79] In my view, it is "plain and obvious" that the statement of claim fails to disclose any reasonable claim against the Coalition Defendant and must be dismissed. VI. DISPOSITION [80] The plaintiff's action is dismissed as against all of the defendants. [81] The Crown Defendants and the Coalition Defendant are entitled to their costs at Scale B. The Tribunal Defendants did not seek costs. "B.M. Joyce J."