Kindylides v. Does

2020 BCCA 330 Kindylides v. Does

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kindylides v. Does, 2020 BCCA 330 Date: 20201124 Docket: CA46790 Between: Gabriella Kindylides Appellant (Plaintiff) And John Does, Members of the Royal Canadian Mounted Police, the Attorney General of Canada, and the Minister of Justice of the Province of British Columbia Respondents (Defendants) Before: The Honourable Mr. Justice Harris The Honourable Mr. Justice Goepel The Honourable Mr. Justice Abrioux On appeal from: An order of the Supreme Court of British Columbia, dated March 13, 2020 (Kindylides v. Does, Victoria Docket 195279). The Appellant, appearing in person: G. Kindylides Counsel for the Respondent: M.E.W. East G.D. Hallson Place and Date of Hearing: Vancouver, British Columbia November 2, 2020 Place and Date of Judgment: Vancouver, British Columbia November 24, 2020 Written Reasons by: The Honourable Mr. Justice Abrioux Concurred in by: The Honourable Mr. Justice Harris The Honourable Mr. Justice Goepel Summary: The appellant brought a Notice of Civil Claim against unnamed members of the RCMP, the Attorney General of Canada and the Minister of Justice of the Province of British Columbia alleging, among other things, personal injury, battery and intentional infliction of emotional suffering. Her claim was struck pursuant to Rule 9‑5(1)(a) of the Supreme Court Civil Rules for failing to disclose a reasonable claim.

The judge declined to grant the appellant leave to amend her claim. She appeals. Held: Appeal dismissed. The appellant's Notice of Civil Claim failed to plead the material facts necessary to support a cause of action and was properly struck. The judge did not err in concluding that the claim was incapable of amendment. Introduction [1] On November 26, 2019, Ms. Kindylides filed a Notice of Civil Claim (the "NOCC") against unnamed members of the RCMP, the Attorney General of Canada and the Minister of Justice of the Province of British Columbia (collectively the "Defendants") alleging, among other things, personal injury, battery and intentional infliction of emotional suffering. [2] On an application by the Defendants, Justice MacKenzie struck the NOCC pursuant to Rule 9-5(1)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [SCCR] on the ground that it disclosed no reasonable cause of action and that it was plain and obvious it would fail. While deciding the application pursuant to this sub rule, the judge also commented that "by definition, the claim would be considered vexatious": at para.

13. He also declined to exercise his discretion permitting the appellant leave to amend the NOCC. [3] Ms. Kindylides now appeals that order and for the reasons that follow, I would dismiss the appeal. Background [4] Ms. Kindylides lives in Victoria and works in the health care profession. She alleges that over the course of approximately 40 years she has been the target of a planned and longstanding campaign at the hands of the RCMP. [5] The NOCC is 26 pages and 212 paragraphs in length and claims the campaign included: · administering Viagra and other pharmaceutical drugs to the appellant (paras. 58-90); · treating the appellant as "crazy" (paras. 41-57); · harassing the appellant by erroneously referring to her as a man (paras. 10, 22-23, 26-31, 33, 37, and 39); · making obscene comments or gestures to humiliate, mock or harass the appellant (paras. 11-12, 15-17, 24, 32, 52-53, 110-119); · administering noxious substances on almost a daily basis since the mid 1980's with the intention of inducing fear and causing irreversible emotional harm; (paras. 58-59); · subjecting the appellant to sound, colours and other stimuli (paras. 120-124); · improperly interfering with the appellant's medical and/or dental treatment (paras. 12, 42-46, 57, and 96); · conducting detailed surveillance on the appellant (paras. 130-133); · spreading rumours about the appellant within the community

(paras. 132-134); · interfering with the appellant's financial autonomy (paras. 135-149); and · preventing the appellant from obtaining access to justice (paras. 145-160). [6] Paragraph 9 of the NOCC alleges that the RCMP: carried out the abuse indirectly, with the help of civilians, such as relatives of police officers, former members of the army and navy and others. [7] Ms. Kindylides has previously levied similar claims against different parties, including the Edmonton Police Service, in Alberta. Legal proceedings commenced by her in that province were dismissed. The judge found that the claims in British Columbia were different from those alleged in Alberta and were not subject to the principles of res judicata. [8] On December 17, 2019, the Defendants filed a response to the NOCC denying all allegations and seeking an order dismissing the action with costs on the ground that the claims pleaded were frivolous and vexatious, and disclosed no reasonable cause of action. [9] On December 23, 2019, Ms. Kindylides filed a lengthy reply which contained a further 57 paragraphs and appended 15 documents. The Chambers Decision [10] On February 14, 2020, the respondents filed a Notice of Application seeking to strike the NOCC and Reply on the basis of Rules 9-5(1)(a) to (d) of the SCCR. [11] The appellant's Application Response detailed many of the allegations set out in the NOCC.

"Part 5. LEGAL BASIS" included: International law 10. According to International law, the State has an obligation to ensure that victims of torture and/or gender-based violence are compensated. Dismissing the Plaintiff's Claim at this stage, -without allowing the Plaintiff to be heard and present evidence -, would violate the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Federal law 14. The significance of "gender-based violence" and "gender identity" is expressed in Canadian federal law and politics.

15. Bill C-16, -passed in June 2017-, added "gender identity or expression" to the Canadian Human Rights Act. The Bill protects individuals from being treated as other than their gender and sexual identity.

16. Bill - C 65 Part 1 of the enactment amends the Canada Labour Code to strengthen the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the workplace. [12] The application was heard by the chambers judge on March 13, 2020. He gave oral reasons for judgment that day which have not been reported (the "Reasons"). [13] The judge acknowledged the fulsome submissions made by the appellant, including her submissions on the "seriousness of violence against women, both nationally and internationally, and international terrorism and crimes against humanity and torture": Reasons at para. 4. [14] Referring to the decision of Justice Voith (as he then was) in Sahyoun v. Ho, 2013 BCSC 1143 he noted that it is incumbent upon a plaintiff in a notice of civil claim to define legal issues and set out a concise statement of material facts supporting those issues. He also emphasized the requirement that a notice of civil claim be comprehensible and clear. [15] The core of the judge's analysis for striking the claim pursuant to Rule 9-5 (1)(a) is contained at paras. 10-15 of the Reasons: [10] In this particular case the defendants submit that the pleadings are unintelligible, confusing, and difficult to understand; they do not establish a cause of action and do not advance a claim known in law, and that the pleadings are

groundless. [11] It is important to also acknowledge, as Ms. Kindylides has properly pointed out in her submissions, in [Knight v. Imperial Tobacco Canada Limited, 2005 BCSC 172], a claim will only be struck if, assuming the facts pleaded are true, the pleadings disclose no reasonable cause of action. [12] I have read the Notice of Civil Claim and the Response. I agree with the defendants when they say it is impossible for them to respond in any meaningful or reasonable way, given it is impossible for these particular defendants to identify the case to be met. [13] On these applications, I am satisfied there is a high onus on the applicant to strike the pleadings. Nevertheless, I am satisfied that the defendants have established in this particular case this Notice of Claim discloses no reasonable cause of action and as such it is plain and obvious it would fail. It is not necessary for me to review in any detail the myriad of assertions Ms. Kindylides has made against the RCMP in her pleadings. They are there for any reviewing court to review. Given this conclusion, it is not necessary to consider the other subsections of Rule 9-5(1), but I will state that, having found that there is no reasonable cause of action by definition, the claim would be considered vexatious. [14] With respect to leave to amend, I agree with Mr. Hallson, on behalf of the defendants, that given the

significant concerns with these particular pleadings, that it is not foreseeable how the plaintiff might amend this particular Notice of Claim in order to comply with the Rules. [15] Finally, with respect to the issue of costs, I agree wholeheartedly with Ms. Kindylides that in these particular circumstances it would be inappropriate to order any costs against her, so there will be no order of costs. On Appeal (1) Issues on Appeal [16] In her factum Ms. Kindylides states the issues on appeal to be: Did the chamber judge err when [sic] avoided international human rights law? Are international human rights treaties binding? Do international human rights laws apply to the Appellant's case specifically? Is the harm caused by violation of the UN Convention against Torture a legitimate cause of action in British Columbia? Should the Respondents be able to avoid liability for torture by filing an Application to strike the Appellant's pleadings? Should an alleged victim of torture be deprived of access to justice on the [sic] base that the Respondents object to the Appellant's pleadings? Did the chamber judge err in law when [sic] concluded that the Notice of Civil Claim discloses no reasonable cause of action and it is bound to fail? Should the Appellant be allowed to amend the Notice of Civil Claim? Should the case go to trial? [17] In my view the issues are: (a) did the judge err in

law in concluding that the NOCC disclosed no reasonable cause of action and was bound to fail?; and (b) did the judge improperly exercise his discretion in not granting the appellant leave to amend the NOCC? (2) Standard of Review [18] The standard of review on an application to strike pleadings pursuant to Rule 9-5(1)(a) is generally viewed to be one of correctness. [19] In Watchel v. British Columbia, 2020 BCCA 100 [Watchel], for example, Justice Butler stated: Standard of Review [28] Whether a pleading discloses a cause of action is a question of law: Union Road Properties Ltd. v. British Columbia (Agricultural Land Commission), 2019 BCCA 302 at para.

8. The standard of review on questions of law or principle is correctness: Housen v. Nikolaisen, 2002 SCC 33. [20] In Scott v. Canada (Attorney General), 2017 BCCA 422, leave to appeal ref'd [2018] S.C.C.A. No. 25, however, Justice Groberman commented that: [42] I am aware that this Court has not been entirely consistent in its approach to appeals from orders under Rule 9-5(1)(a). In particular, it suggested a deferential approach in Authentic T-Shirt Company ULC v. King, 2016 BCCA 59 at para. 19, and in British Columbia (Director of Civil Forfeiture) v. Flynn, 2013 BCCA 91 at para.

11. Both cases cited [Timberwolf Log Trading Ltd. v. British Columbia (Forests, Lands and Natural Resources Operations), 2013 BCCA 24], and neither included detailed analysis of the issue. [43] While Newbury J.A., in Sherry v. CIBC Mortgages Inc., 2016 BCCA 240 at para. 55 suggested that the various decisions of this Court might conceivably be reconciled, she did not attempt a complete reconciliation of them. I am not, myself, convinced that the various dicta are reconcilable, though I do not suggest that the result in any of the cases was erroneous. [44] As I have indicated, it is my view that the question of whether pleadings disclose a reasonable claim or defence will generally be a pure issue of law, and will not attract deference. In any event, in the case before us, I am satisfied that the issues that must be decided are extricable issues of law. [Emphasis added.] [21] Considering this framework, I am of the view that the initial question on appeal is whether the judge was correct in concluding that the NOCC failed to disclose a reasonable claim. [22] It is nonetheless clear that the decision to refuse leave to amend pleadings following a successful application to strike involves an exercise of discretion. As was explained in Watchel: [29] A judge's decision whether to permit an amendment rather than striking the claim is an exercise of discretion: Jones v. Bank of Nova Scotia, 2018 BCCA 381 at para.

35. Similarly, a judge's decision whether to reopen a hearing where a final order has been pronounced but not entered is also an exercise of discretion: Grewal v. Grewal, 2016 BCCA 237 at para.

70. A discretionary decision of a lower court is only reversible if the court misdirected itself or if the decision is so clearly wrong that it amounts to an injustice: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at para. 27. [23] Justice Willcock elaborated on this point in Jones v. Bank of Nova Scotia, 2018 BCCA 381 [Jones]: [35] Determining whether to permit an amendment is preferable to dismissal of inadequate pleadings requires the exercise of a discretion by a trial judge. The exercise of that discretion may require consideration, including the degree to which the pleadings are deficient, of the extent to which the deficiencies may be addressed by an obvious or straightforward amendment, the apparent merit of the claim that may be made out with amendment and the prejudice that may be incurred by dismissing the claim. The exercise of that discretion requires consideration of the factors set out in Rule 1‑3: (1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. (2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to (a) the amount involved in the proceeding, (b) the importance of the issues in dispute, and (c) the complexity of the

proceeding. (3) Position of the Parties [24] The appellant's position can be summarized as follows: · the judge erred in law when concluding the claims were bound to fail in that he failed to consider international human rights treaties such as the UN Convention against Torture and the Convention on the Elimination of All Forms of Discrimination against Women, both of which apply to the circumstances of this case; · on an application to strike pursuant to Rule 9-5(1)(a) the pled facts are assumed to be true. The appellant had pled that she has been tortured; · relying on Nevsun Resources Ltd. v. Araya, 2020 SCC 5 [Nevsun], Ms. Kindylides says that jus cogens or peremptory norms of customary international law, such as the prohibition against torture, have been incorporated into the domestic law of Canada; accordingly, a claim based on an alleged breach of those norms cannot be bound to fail; · the judge failed to explain why he did not accept the pled facts as true for the purposes of the application to strike; and · "proxy by torture" occurred in this case since the appellant was "indirectly victimized." [25] In her oral submissions, Ms. Kindylides emphasized that this course of conduct had existed for over 40 years and included a period of time when she was obliged to flee Victoria, B.C. and live in various countries in Europe. [26] The respondents maintain that the judge was

correct in striking the NOCC in that: · the appellant had failed to plead the material facts supporting each element of the various causes of action alleged in the NOCC; · while the facts as pled are generally assumed to be true for an application brought pursuant to Rule 9-5(1)(a), it is not necessary for the court to accept facts that are manifestly incapable of proof, nor those based on speculation or assumptions. In certain cases, it may be appropriate to subject assertions based on speculation and assumption to a skeptical analysis. In any event bald conclusory assertions and conclusions of law are not material facts. · the NOCC does not allow the respondents to determine the case they have to meet; and · the judge's decision to refuse the appellant leave to amend the NOCC is entitled to deference. (4) Analysis [27] Rule 9-5 of the SCCR provides in part: Rule 9-5 -- Striking Pleadings Scandalous, frivolous or vexatious matters (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a 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 of the proceeding, or (d) it is otherwise an abuse of the process of the court, and the court

may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. [28] In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 20 [Imperial Tobacco] the Supreme Court of Canada explained the important housekeeping function provided by a rule of civil procedure such as Rule 9-5(1)(a): [20] This promotes two goods -- efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be -- on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties' respective positions on those issues and the merits of the case. [29] The judge found that it was incumbent on any plaintiff to define the issues and set out a concise statement of material facts that would support each cause of action. He further observed that

facts pleaded were deemed to be true for the purposes of an application to strike. Nonetheless, upon a review of the NOCC, he determined that it did not disclose any reasonable cause of action: Reasons at para. 6 and 12-13. [30] In my view, he was correct in reaching this conclusion. [31] First of all, as the respondents submit, the appellant has failed to plead the material facts supporting each legal element of the various causes of action alleged in the NOCC. [32] Much of what is contained in the NOCC does not constitute "material facts" as defined in Young v. Borzoni et al, 2007 BCCA 16 [Young], citing Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371: [20] "[facts] that [are] essential in order to formulate a complete cause of action. If a material fact is omitted, a cause of action is not effectively pleaded." [33] Rather the NOCC contains statements which, as pled, are incapable of proof and/or are based on speculation or assumptions. Such statements are not material facts: Samuda v. Knight, 2019 BCSC 133 at paras. 22-24; Imperial Tobacco at para. 22; Young at paras. 30-32. [34] I agree with the observations of MacDonald J. (in Chambers) in Owimar v. Stewart, 2019 BCSC 1198 when she stated: [19] Care must be taken to avoid undermining the role of pleadings in identifying the issues by allowing a party to plead bald assertions

or mere conclusory statements of law. A bald assertion of a conclusion is not a pleading of material fact: [18] There is no bright line between material facts and bald allegations, nor between pleadings of material facts and the prohibition on pleading of evidence. They are points on a continuum, and it is the responsibility of a motions judge, looking at the pleadings as a whole, to ensure that the pleadings define the issues with sufficient precision to make the pre-trial and trial proceedings both manageable and fair. [19] What constitutes a material fact is determined in light of the cause of action and the damages sought to be recovered. The plaintiff must plead, in summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability. Mancuso v. Canada (Minister of National Health and Welfare), 2015 FCA 227 at paras. 18-19 & 27. [20] However, even assuming the facts in the Claim to be true, the plaintiff still has no chance of succeeding and the Claim is sure to fail due the numerous radical defects in it: Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 at para.

15. The requirement to assume the facts pleaded to be true does not prevent skeptical analysis in the case of purely speculative allegations or assumptions: Green v. Proline Management Limited, 2017 BCSC 1656 at para.

35. Speculative and fanciful claims in a pleading may also demonstrate that it is plain and obvious no cause of action is disclosed: Olenga v. British Columbia, 2015 BCSC 1050 at paras. 17 and 21. [35] The NOCC provides many instances where the appellant has failed to plead material facts, relying instead on speculation and bald conclusory assertions. For instance, in various paragraphs of the NOCC she pleads that: 7. The Plaintiff arrived in Canada, November 15, 1977 and resided in Victoria, British Columbia most of the past 42 years. Unknown members of the RCMP have planned and orchestrated the victimization of the Plaintiff, with the intentions of causing physical and psychological suffering, severe emotional distress, permanent damage to her physical and mental health 15. Both the Sisters of St. Ann and the RCMP have a history of abuse. In addition to that, the Sisters hired Tasha May (maiden name: Hicky), - the daughter of an RCMP officer - , as head nurse of St. Ann's Residence around 2000. It was the perfect setup for the Plaintiff's victimization, and she had been abused while working there.

18. The threats and abuse added up and the Plaintiff realized she had been targeted by the RCMP.

48. The idea of treating the Plaintiff as if she was" delusional", paranoid or a "schizophrenic" originates from the RCMP. Unknown members of the RCMP have decided decades ago, to "frame" the Plaintiff as insane, and the Plaintiff has been treated as "delusional" by the police first.

135. At the initiation of the RCMP, the Plaintiff has been under economic control and has been deprived of equal opportunities to make a life as she wishes or have her needs accommodated. [36] Furthermore, as I have noted, para. 9 of the NOCC alleges that "the RCMP carried out the abuse indirectly, with the help of civilians, such as relatives, police officers, former members of the army and navy and others." The appellant complains of conduct involving many individuals, including doctors, employers, lawyers and other community members. However, there are no material facts implicating the RCMP as responsible in the alleged actions apart from the bald assertion that they were. These serious allegations are sweeping and speculative rather than specific, careful, measured and faithful to the evidence, as they are required to be: Kent v. Translink, 2016 BCSC 224 at paras. 13-16. [37] I shall briefly comment on the allegations of torture and the appellant's submission that the judge's decision is inconsistent with the principles of customary international law. [38] At para. 40 of her factum, Ms. Kindylides describes the alleged torture in question as "torture by proxy because the Appellant was indirectly victimized." She says that this claim is not bound to fail in light of the Supreme Court of Canada's recent decision in Nevsun. [39] In Nevsun, at paras. 86, 90 and 113-114, the

Supreme Court of Canada found that it was not "plain and obvious" that a civil action based on an alleged breach of customary international law was bound to fail given that such principles are incorporated into domestic law through the doctrine of adoption. [40] The NOCC has not pleaded breaches of customary international law as a legal basis for the claims advanced. [41] While I recognize that this is a matter that could be remedied by an amendment, the flaws in the NOCC are far more fundamental. For the reasons I have outlined the NOCC fails to plead the necessary material facts to support these allegations of "torture by proxy." [42] I would reach the same conclusions with respect to the claims based on intentional gender bias and discrimination. [43] In my view, a fair reading of the NOCC is that both the "torture by proxy" and gender bias and discrimination sets of allegations include assertions that the RCMP intentionally inflicted mental suffering on Ms. Kindylides. [44] In Young, this Court considered the requirements of this cause of action within the context of an application to strike a claim under the predecessor to Rule 9‑5 of the SCCR: [24] In Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.), Weiler J.A. wrote: [48] A review of the case-law and the commentators confirms the existence of the tort of the intentional infliction of mental

suffering, the elements of which may be summarized as: (1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness. [45] Viewed in this framework, it is clear in my view, that with respect to both the "torture by proxy" and the gender bias and discrimination allegations which resulted in emotional suffering, the NOCC falls far short of what is required to disclose "a reasonable claim." [46] Accordingly, I would not accede to the ground of appeal that the judge erred in finding that the NOCC failed to disclose a reasonable claim and should be struck. [47] The question then becomes whether the judge erred in failing to exercise his discretion such that he ought to have granted leave to the appellant to amend the NOCC. [48] In my view he did not. Applying the considerations outlined in Jones which are set out at para. 23 above, he neither misdirected himself, nor failed to give insufficient weight to relevant factors. Nor was the exercise of his discretion clearly wrong. [49] Furthermore, Ms. Kindylides did not provide any proposed amended NOCC limiting her submissions on this issue to indicate that she was prepared to amend the style of cause and generally shorten the pleading. It was evident during her oral submissions that, from a substantive perspective, she is of the view that the NOCC does not need to be amended and were she to attempt to do so, this would inevitably result in another application to strike. [50] In Watchel, Justice Butler observed: [36] In deciding to strike the appellant's ANCC, the judge considered the possibility of amendments. A party who seeks to amend deficiencies in pleadings should raise that issue in the trial court: Jones at para.

36. In the court below, the appellant did not indicate any wish to amend his pleadings. He does not seek to do so now. The appellant seems to believe his pleadings are sufficient for the remedy he seeks. The judge properly and generously read the pleadings and considered whether an amendment would have any effect: at paras. 20, 32. There is nothing on the record to suggest that an amendment would change the outcome of this case. The judge committed no error in her analysis. [51] I would reach the same conclusion on this appeal. The appellant has not provided any basis for us to conclude that the NOCC is salvageable, that is, capable of disclosing a reasonable claim. Disposition [52] I would dismiss the appeal. [53] I would also order that the respondents' costs of the appeal, once agreed to or assessed, be paid to them from the $4,500 paid into court by the appellant on September 4, 2020 as security for costs. "The Honourable Mr. Justice Abrioux" I AGREE: "The Honourable Mr. Justice Harris" I AGREE: "The Honourable Mr. Justice Goepel"