2005 BCSC 139 Haeck v. Attorney General of British Columbia et al

Before: The Honourable Mr. Justice Davies

Reasons for Judgment

The Plaintiff, appearing on his own behalf:	V. Haeck
The Plaintiff, appearing on her own behalf:	L. Haeck
Counsel for the Defendants, Attorney General of British Columbia, Central Authority of British Columbia, Ministry of Children and Family Development, and Michelle Fuchs:	L.D. Johnston
Agent for Counsel for the Defendant, Crown Counsel of British Columbia:	L.D. Johnston
Counsel for the Defendant, the Legal Services Society of British Columbia:	D. MacAdams, Q.C.
Counsel for the Defendants, Continuing Legal Education Society of British Columbia, Stanley Schwartz, Jeremy Sheppard, Ian Hayward, Cathy Ratz, and Paul Lorette:	C.L. Forth
Counsel for the Defendant, West Vancouver Police Department:	L. Sears
Counsel for the Defendant, Dr. Paul Eirikson:	N.L. Trevethan
Appearing on their own behalf, the Defendants:	S. Henry, M. Henry, P. O’Donnell, J. O’Donnell, H. Bradner, A. Jaegar, and A. Tondelli
For the Defendant, RCMP:	No appearance
Dates and place of Hearing:	November 16—17, 22—24, 2004 Vancouver, B.C.

	I N D E X
		Para. No.
I.	NATURE OF APPLICATION	[1]
II.	BACKGROUND	[2]
	A. History of the Custody Action	[6]
	B. The Related Criminal Proceedings	[40]
	C. This and other Related Civil Proceedings	[45]
III.	ANALYSIS AND DISCUSSION	[53]
	A. The Plaintiffs’ Allegations Against the Defendant, the Attorney General of British Columbia (the “Attorney General”)	[75]
	B. The Plaintiffs’ Allegations Against the Defendant, the Ministry of Children and Family Development of British Columbia (the “Ministry”)	[78]
	C. The Plaintiffs’ Claims Against the Defendant, the Central Authority of British Columbia (the “Central Authority”)	[82]
	D. The Plaintiffs’ Allegations Against the Defendant, Crown Counsel of British Columbia (“Crown Counsel”)	[92]
	E. The Plaintiffs’ Allegations Against the Defendant, Stanley Schwartz	[102]
	F. The Plaintiffs’ Allegations Against the Defendants, Ian Hayward and Jeremy Sheppard	[108]
	G. The Plaintiffs’ Allegations Against the Defendant, Michelle Fuchs	[113]
	H. The Plaintiffs’ Allegations Against the Defendant, Dr. Paul Eirikson	[116]
	I. The Plaintiffs’ Allegations Against the Defendants, Cathy Ratz, Susan Henry, Michael Henry, Peter O’Donnell, Jaquie O’Donnell, Heather Bradner, Paul Lorette and Anita Jaegar (the “defendant Witnesses”)	[124]
	J. The Plaintiffs’ Allegations Against the Defendant, the Continuing Legal Education Society	[132]
	K. The Plaintiffs’ Allegations Against the Defendants, the West Vancouver Police Department and the RCMP	[138]
	L. The Plaintiffs’ Allegations Against the Defendant, the Legal Services Society of British Columbia (the “Legal Services Society”)	[141]
	M. The Plaintiffs’ Allegations Against the Defendant, Arturo Tondelli	[152]
IV.	COSTS	[154]
V.	SUMMARY	[159]

I. NATURE OF APPLICATION

[1] This is an application by most of the named defendants, to strike the plaintiffs’ claims against them pursuant to Rules 19(24) and 57 of the Supreme Court Rules, B.C. Reg. 221/90 (“the Rules”). The application also requires that I address claims made by the plaintiffs against those defendants who have not entered appearances.

II. BACKGROUND

[2] The plaintiffs’ statement of claim as amended prior to the commencement of this hearing consists of 47 single spaced pages and in excess of 250 paragraphs of allegations and claims against the defendants.

[3] At its heart, the statement of claim is a complaint by the plaintiffs against most, if not all, of the governmental agencies and also those individuals who have not supported; agreed with; or, lent assistance to the positions and arguments advanced by the plaintiff, Lisa Haeck (formerly Lisa Tondelli) in her dispute with the defendant, Arturo Tondelli over the custody of and access to their infant daughter S. Tondelli.

[4] That custody dispute was and is the subject of the proceedings in this Court in A.T. v. L.T.T., (Vancouver Registry No. D110334) (the “Custody Action”), in which Madam Justice Morrison presided over various interlocutory proceedings, a lengthy trial and subsequent variation applications.

[5] Due to the nature and genesis of the allegations in the plaintiffs’ statement of claim, it is necessary to review in some detail: the history of the marital relationship between Ms. Haeck and Mr. Tondelli; some of the history of the Custody Action; other legal proceedings in this Court and in the courts of South Africa; and, the roles of the various defendants in some or all of the custody dispute; the related legal proceedings; and the Custody Action.

A. History of the Custody Action

[6] Mr. Tondelli and Ms. Haeck met on January 15, 1989, were married on June 17, 1989 in South Africa and then moved to Italy where their only child, S., was born on April 26, 1996. In 1997, the family came to Canada but Mr. Tondelli and Ms. Haeck then separated on July 19, 1998. Their disputes over the custody of S. have been ongoing since that time.

[7] In November of 1998, Martinson J. made an order in the Custody Action allowing Mr. Tondelli interim access to S. but made no custody or guardianship order.

[8] On July 7, 1999, Ms. Haeck and Mr. Tondelli entered into a consent order in the Custody Action that provided for joint guardianship of S., with Ms. Haeck having sole custody and Mr. Tondelli having generous access. That consent order also provided that neither parent was to remove S. from British Columbia without the consent of the other.

[9] On May 31, 2000, Ms. Haeck and Mr. Tondelli were divorced and on June 6, 2000, Ms. Haeck advised Mr. Tondelli that she wanted to take S. to South Africa to visit her family for one month.

[10] Mr. Tondelli then became concerned that Ms. Haeck would not return to Canada with S. and applied for an order to restrain her from taking S. to South Africa. On that application Mr. Tondelli was represented by the defendant, Jeremy Sheppard and Ms. Haeck was represented by the defendant, Stanley Schwartz.

[11] On June 9, 2000, Ms. Haeck and Mr. Tondelli agreed to a consent order that granted Ms. Haeck permission to take S. to South Africa for a period of one month but also required that Ms. Haeck deposit a $5,000 bond and provided that the sole custody of S. would revert to Mr. Tondelli in the event Ms. Haeck did not return to British Columbia by July 14, 2000. That consent order also provided for: a s. 15 assessment under the Family Relations Act, R.S.B.C. 1996, c. 128; the expeditious setting of a trial date; and, that Mr. Tondelli would have telephone access to S. in South Africa, as well as extended summer access upon S.’s return to Canada.

[12] On June 12, 2000, Ms. Haeck and S. travelled to South Africa but on July 14, 2000, Ms. Haeck’s father telephoned Mr. Tondelli to tell him that Ms. Haeck and S. would not be returning to Canada.

[13] Mr. Tondelli then applied to this Court for an order confirming sole custody and guardianship pursuant to the provisions of the consent order made on June 9, 2000. On July 21, 2000, Holmes J. granted that order and also ordered that Ms. Haeck immediately deliver S. to Mr. Tondelli’s custody.

[14] Mr. Tondelli also went to the police for assistance in compelling Ms. Haeck to return S. to Canada and charges were eventually laid by the police against Ms. Haeck as well as Mr. Haeck under the provisions of s. 283 of the Criminal Code, R.S.C. 1985, c. C-46 concerning S.’s alleged abduction.

[15] Subsequent to the order of Holmes J., both Ms. Haeck and Mr. Tondelli brought applications concerning custody of S. in the High Court of South Africa and on October 16, 2000, that court ordered that S. be returned to Canada. Ms. Haeck then appealed that order.

[16] On November 23, 2000, the Constitutional Court of South Africa confirmed Mr. Tondelli’s custody of S. and also ordered that she was to be returned to Canada under certain conditions. One of those conditions was that Ms. Haeck would not be arrested upon her return to Canada.

[17] Although there was considerable delay in the implementation of the order of the Constitutional Court of South Africa, on March 30, 2001, pursuant to a further application by Mr. Tondelli in the Custody Action, Morrison J. ordered that S. be returned to Mr. Tondelli’s custody in British Columbia upon the same terms and conditions as those imposed by the Constitutional Court of South Africa, including the condition that Ms. Haeck would not be arrested upon her return to Canada.

[18] After making her order of March 30, 2001, Morrison J. became seized of all matters related to the custody of and access to S. until mid 2004 as I shall later discuss.

[19] On June 14, 2001, Ms. Haeck finally returned to Canada with S. after an absence of almost one full year. Although she was not arrested upon her return, the police did meet her and ask her to attend at their offices. Ms. Haeck eventually complied with that request and was charged with the abduction of S. It is those actions by the police and the subsequent prosecution of those and other criminal charges against both Ms. Haeck and Mr. Haeck related to other breaches of the orders of this Court in the Custody Action that form the basis of the plaintiffs’ allegations against the defendant, the Crown Counsel of British Columbia and, in part, against the defendant, the Legal Services Society.

[20] In July, 2001, the defendant, Stanley Schwartz, ceased to act for Ms. Haeck and in that same month Ms. Haeck married her present husband, the plaintiff, Vally Haeck.

[21] Various access problems arose after Ms. Haeck’s return to Canada which resulted in many orders being made by Morrison J. in the Custody Action.

[22] Those orders included the appointment of the defendant, Michelle Fuchs, as a child advocate for S. and the ordering of a s. 15 custody and access report under the Family Relations Act that was eventually completed by the defendant, Dr. Paul Eirikson on December 10, 2001.

[23] The trial in the Custody Action commenced on January 29, 2002 and consisted of 28 days of evidence and submissions heard by Morrison J. intermittently over four months, ending on May 22, 2002.

[24] During the trial Mr. Tondelli was represented by the defendant, Ian Hayward, while Ms. Haeck acted on her own behalf and the defendant, Michelle Fuchs, represented S.

[25] Dr. Eirikson’s s. 15 report was filed with the Court and he also testified at the trial.

[26] Other witnesses at the trial who are now named as defendants in this proceeding were: the defendant, Susan Henry, who was then a close friend of Ms. Haeck; the defendant, Cathy Ratz, S.’s kindergarten teacher; the defendant, Paul Lorette, the principal of the school now attended by S. but who, at the time he gave evidence, had never met S. or her parents; and, the defendant, Jacqueline (Jaquie) O’Donnell, who was Ms. Haeck’s step-cousin and who eventually, together with her husband, the defendant, Peter O’Donnell became a supervisor of some of Mr. Tondelli’s access visits with S.

[27] On June 28, 2002, Morrison J. delivered her reasons for judgment in the Custody Action under A.T. v. L.T.T., 2002 BCSC 981. Morrison J. ordered, among other things, that: Mr. Tondelli and Ms. Haeck would share joint custody and guardianship of S.; S.’s primary residence would be with Ms. Haeck except for most of the summer months and during certain vacation times; neither party would remove S. from Canada except by agreement or further court order; each party would surrender any passport that they held for S.; neither party would deny access of the other to S. unless she was ill, in which case that lost access would be made up within the next two months; Mr. Tondelli would have specified access to S. during the school year consisting of every second weekend and one afternoon and evening mid-week; and, that Mr. Tondelli would also have additional weekend access during holiday and school break periods. Morrison J. further ordered Mr. Tondelli and Ms. Haeck to take part in post-marital counselling for a minimum of six sessions each and that the parties were to communicate directly with one another rather than through Mr. Tondelli’s lawyer.

[28] A synopsis of Morrison J.’s reasons for judgment was published by the defendant, the Continuing Legal Education Society. As will be later discussed, Ms. Haeck alleges that the synopsis is defamatory.

[29] After the trial in the Custody Action, custody and access problems continued.

[30] Mr. and Ms. Haeck continued to make allegations, as Ms. Haeck had since 1998, in this Court and in the courts of South Africa, that Mr. Tondelli had been and was still physically and sexually abusing S. and was negligent in his care of her when exercising access.

[31] Notwithstanding that Morrison J. had determined that there was no substance to all of the allegations that had been made both up to and during the trial, the plaintiffs continued to insist that S. was constantly making new “disclosures” to Ms. Haeck. The plaintiffs reported most, if not all, of these new allegations to: some or all of the defendants, the West Vancouver Police Department; the RCMP; the Ministry of Children and Family Development; and, others. They also from time to time refused or hindered Mr. Tondelli’s access to S. because of these new disclosures notwithstanding Morrison J.’s orders and directions to the contrary.

[32] Specifically, on March 11, 2003, Ms. Haeck made further allegations of sexual abuse against Mr. Tondelli and denied his access to S. As a consequence of the allegations made by the plaintiffs, Morrison J. made an interim order for supervised access to S. by Mr. Tondelli pending further investigation and a full hearing. In making that order Morrison J. determined that, in her view, the defendants, Susan Henry and Jacqueline O’Donnell, both of whom had testified at the original trial, would be appropriate supervisors of access by Mr. Tondelli to S. pending the full hearing of Ms. Haeck’s new allegations of sexual impropriety against Mr. Tondelli.

[33] The plaintiffs’ new allegations against Mr. Tondelli and their denial of access as ordered by Morrison J. not only gave rise to Morrison J.’s supervised access order pending the full hearing of those allegations, but also gave rise to further police investigation of the circumstances that eventually resulted in the police bringing further Criminal Code charges against both Mr. Haeck and Ms. Haeck for their unilateral actions in defiance of Morrison J.’s orders.

[34] On July 17, 2003, Morrison J. considered all of the new allegations made against Mr. Tondelli by the plaintiffs and again determined that there was no substance to the allegations. In that hearing, Morrison J. considered affidavits that were sworn by the defendants, Heather Bradner and Anita Jaegar, as well as an updated s. 15 custody and access report prepared by Dr. Eirikson that recommended that S.’s primary residence be with Mr. Tondelli rather than Ms. Haeck.

[35] In oral reasons in the Custody Action filed on July 17, 2003, Morrison J. accepted Dr. Eirikson’s recommendations and ordered a change in S.’s principal residence. She also ordered that Mr. Tondelli would be entrusted with the sole custody of S. although her guardianship would remain joint. In addition, Morrison J. made specific orders concerning Ms. Haeck’s access to S. and terminated the order that had required Mr. Tondelli to pay child support to Ms. Haeck.

[36] Ms. Haeck did not willingly accept Morrison J.’s order of July 17, 2003, and after virtually every access visit by S., made further allegations of S.’s continued new disclosures of physical and sexual abuse by Mr. Tondelli which she again reported to some or all of the defendants, the Ministry of Children and Family Development, the RCMP and the West Vancouver Police Department.

[37] After a further year of turmoil concerning the custody of and access to S. and a further series of continuing and unabated complaints by the plaintiffs about Mr. Tondelli’s alleged misconduct towards S., on July 5, 2004, Mr. Tondelli brought an application in the Custody Action before Morrison J. seeking, among other things, that Ms. Haeck’s access to S. be supervised. In response, Ms. Haeck brought counter-applications seeking, among other things, sole custody of S. and further investigation of S. as well as of Mr. Tondelli’s conduct toward S.

[38] During the hearing of those applications in July 2004, Ms. Haeck requested that Morrison J. not remain seized of the issues in the Custody Action and Morrison J agreed. That decision resulted in the adjournment of the hearing of the July, 2004 variation applications to November, 2004 and the appointment of a new judge in the Custody Action.

[39] Those variation applications were heard by me over a number of days from mid-November, 2004 to mid-January, 2005 and I have reserved judgment.

B. The Related Criminal Proceedings

[40] As I have noted above, in July 2001, Mr. and Ms. Haeck were charged with abduction under the Criminal Code and in March 2003, they were also charged under the provisions of s. 129 of the Criminal Code with breaching Morrison J.’s access orders.

[41] Ms. Haeck was committed to stand trial on the abduction charges after a preliminary hearing in February 2002, but thereafter applied for a stay of those charges alleging an abuse of process by the Crown in having charged her with abduction in the face of Morrison J.’s order in the Custody Action that Ms. Haeck would not be arrested upon her return to Canada. In addition to that stay application, Ms. Haeck also applied for the appointment of counsel on her behalf in the abduction proceedings or, in the alternative, a stay of those proceedings pending the appointment of counsel. Those applications arose as a consequence of the refusal by the defendant, the Legal Aid Society, to appoint counsel for Ms. Haeck because it had determined that she had failed to establish that she met the applicable financial criteria.

[42] Eventually, after considerable delay in the prosecution of the abduction charges, they were joined for trial with the charges concerning the alleged breaches of Morrison J.’s custody and access orders. The trial of all charges was then set to be heard in this Court in late 2004.

[43] In July 2004, however, after further numerous pre-trial proceedings in relation to all of the criminal charges, Ms. Haeck entered a plea of guilty to the alleged breaches of this Court’s orders and, in return, the Crown agreed to stay proceedings against Ms. Haeck in relation to the original abduction charge, as well as against Mr. Haeck in relation to all charges. The criminal matters were then set over to a sentencing hearing to be conducted in October 2004.

[44] On October 22, 2004, after a three day sentencing hearing before Melnick J., Ms. Haeck was sentenced to a Conditional Sentence totalling four months in duration as well as to a period of probation for her breaches of the court orders.

C. This and other Related Civil Proceedings

[45] On March 1, 2004, the plaintiffs commenced this proceeding against all of the named defendants except Sergeant Barber and Detective Kravjansky of the West Vancouver Police Department and Constables Jordan Dupuis and Paul Sellers of the RCMP.

[46] On September 1, 2004, the plaintiffs filed a petition in the Vancouver Registry of this Court under file number L042195 (the “Judicial Review Petition”). In the Judicial Review Petition the plaintiffs not only sought to have all of Morrison J.’s orders in the Custody Action reviewed and overturned, but also sought declaratory relief against many of the defendants in this proceeding for their alleged wrongdoing in the Custody Action concerning most if not all of the issues that are also the subject of this proceeding.

[47] On October 6, 2004, the Judicial Review Petition was dismissed in its entirety by Melnick J. as an abuse of process under Rule 19(24)(d).

[48] After a joint Case Management Conference in this proceeding and in the Custody Action held before me on November 15, 2004, I determined that I would proceed with the hearing of the applications by the defendants in this proceeding and also with the hearing of the variation applications in the Custody Action as soon as time became available for both cases.

[49] Immediately after that Case Management Conference the plaintiffs filed an amended statement of claim in this proceeding under Rule 24(1)(a) that significantly expanded upon their claims against some of the defendants. That amendment also purported to add S. Tondelli as a plaintiff and Sergeant Barber and Detective Kravjansky of the West Vancouver Police Department and Constables Jordan Dupuis and Paul Sellers of the RCMP as defendants. In addition, it purported to delete the West Vancouver Police Department as a named defendant.

[50] As a consequence of the filing of the plaintiffs’ amended statement of claim, before commencing the hearing the defendants’ applications under Rule 19(24) to dismiss the plaintiffs’ claims, I ordered that:

(1) the purported joinder of S. Tondelli as a plaintiff was of no effect since her involvement as an infant plaintiff was not properly authorized and no guardian ad litem had been appointed. I also ordered that on the present Rule 19(24) applications I would not consider any possible actions that S. Tondelli might be able to maintain against any of the defendants who have allegedly caused her harm and that any such allegations would be considered only with leave of the Court after service upon both Mr. Tondelli and any allegedly effected defendants. I further ordered that I will be seized of any such applications unless I otherwise order;

(2) the purported joinder of Sergeant Barber and Detective Kravjansky of the West Vancouver Police Department and Constables Jordan Dupuis and Paul Sellers of the Royal Canadian Mounted Police (the “RCMP”) as defendants is of no effect and also ordered that the plaintiffs may not commence any proceedings against those or any other defendants that are not presently named in this proceeding without leave of the Court after personal service upon any such proposed defendants and that I will be seized of any such applications unless I otherwise order; and

(3) the defendants’ applications under Rule 19(24) would be determined on the basis of the pleadings in the amended statement of claim except in relation to the claims purportedly advanced on behalf of S. Tondelli and against the individual police officers who had not been properly joined as defendants.

[51] On November 23, 2004, after hearing the submissions of all parties in relation to the defendants’ applications under Rule 19(24) in this proceeding, I provided some preliminary oral reasons for judgment with written reasons to follow.

[52] These are those written reasons. To the extent that I may have reached any different conclusions than initially indicated in my oral reasons, these reasons and the orders now made will govern the disposition of all of the defendants’ applications and the further conduct of this proceeding.

III. ANALYSIS AND DISCUSSION

[53] Rule 19(24) provides that:

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,

(d) it is otherwise an abuse of the process of the court,

and the court may grant judgment or order the proceedings to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[54] The defendants have submitted that the pleadings are scandalous, unnecessary and vexatious, and that to permit this action to proceed would involve unnecessary and unjustifiable expense. The defendants have further submitted that the plaintiffs are attempting to re-litigate the issues that were decided in the Custody Action such that these proceedings amount to a collateral attack on the decisions of this Court in the Custody Action and in the related criminal proceedings, and as such are an abuse of process.

[55] To succeed on an application under Rule 19(24), the defendant must show that it is “plain and obvious” that the pleadings offend any one of the subrules in Rule 19(24).

[56] A useful summary of the criteria to be applied in determining whether pleadings should be struck under the various subsections of Rule 19(24) is found in Wayneroy Holdings Ltd. v. British Columbia (Minister of Environment, Lands and Parks), 2002 BCSC 1510.

[57] As to the potential application of Rule 19(24)(a) to impugned pleadings, Romilly J. stated at ¶ 12 and 13 that:

Under R. 19(24)(a) of the Rules of Court a court may order that the pleadings be struck out in their entirety or in part because they fail to disclose a reasonable cause of action. As to what is required to succeed on a R. 19(24)(a) application, I will quote from my judgment in Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No. 2160 (Q.L.) (B.C.S.C.) at para. 34:

To succeed on an application under Rule 19(24)(a) it must be established that it is “plain and obvious” that the pleading discloses no reasonable cause of action: Hunt v. Carey, [1990] 2 S.C.R. 959 (S.C.C.). If there is any doubt it should be resolved in the favour of permitting the pleadings to stand: McGauley v. British Columbia (1989), 39 B.C.L.R. (2d) 223 (B.C.C.A.). The court should proceed on the assumption that all facts pled are true: Helman v. Brown (1966), 57 W.W.R. 608 (B.C.C.A.). The only question then is whether the facts disclose a cause of action: Minnes v. Minnes (1962), 39 W.W.R. 112 (B.C.C.A.); McNaughten v. Baker (1988), 25 B.C.L.R. (2d) 17 (C.A.). In other words, as long as the pleadings disclose a triable issue, either as it exists, or as it may be amended, then the issue should go to trial. The mere fact that the case is weak or not likely to succeed is no ground for striking it out under the provisions of Rule 19(24): Minnes, supra.

[13] In determining whether it is “plain and obvious” that a statement of claim contains no reasonable cause of action there are a number of factors that one can look to as suggested by Drossos J. in Berschield v. Ensign, [1999] B.C.J. No. 1172 (Q.L.) (B.C.S.C.) at para. 33:

Factors to be considered in the “plain and obvious” rule include, but are not limited to: (1) whether there is a question to be tried regardless of complexity or novelty; (2) whether the outcome of the trial is beyond a reasonable doubt; (3) whether serious questions of law or questions of general importance are raised or if facts should be known before rights are decided; (4) whether the pleadings may be amended; and (5) whether there is an element of abuse of process: Midwest Management (1987) Ltd. v. B.C. Gas Utility Ltd. (1997), 34 C.L.R. (2d) 186 (B.C.S.C.).

[58] Concerning the potential application of Rules (19)(24)(b) or (c), Romilly J., again quoting from his earlier decision in Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, supra, at ¶ 45—47, went on to say at ¶ 17 in Wayneroy that:

To succeed on an application under Rule 19(24)(b) or (c) it must be established that it is “plain and obvious” that the pleading offends either or both provisions.

The authorities provide little guidance as to what constitutes pleadings that are “unnecessary”, “scandalous”, “frivolous”, or “embarrassing”. However some principles do emerge.

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.(Cariboo Trail Hotel) (1985), 62 B.C.L.R. 145 (B.C.C.A.) at 147.

…

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 913631 (B.C.S.C.).

…

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).

[59] Finally, as to the potential application of Rule 19(24)(d) to pleadings that are alleged to be “otherwise an abuse of process of the court”, Romilly J. observed in Wayneroy at ¶ 20 that the case law supports the proposition that pleadings that run afoul of either the doctrine of res judicata or are a collateral attack on a valid and subsisting judgment may constitute an abuse of process under Rule 19(24)(d).

[60] Because the pleadings in this case relate so directly to the alleged action or inaction of the various defendants to the matters that have been the subject of the Custody Action and the other related proceedings concerning the dispute between the plaintiffs and Mr. Tondelli over the custody of S., it is, in my view, necessary to elaborate further on the legal concepts of res judicata and collateral attack.

[61] Res judicata is grounded upon two broad principles of public policy: first, that the state has an interest that there should be an end to litigation and, second, that no individual should be sued more than once for the same cause. (See: Angle v. Minister of National Revenue (1974), [1975] 2 S.C.R. 248 at 267, 47 D.L.R. (3d) 544)

[62] In McIntosh v. Parent (1924), 55 O.L.R. 552 at 555, [1924] 4 D.L.R. 420 (Ont. C.A.), the Court stated the common law rule of res judicata in these terms:

When a question is litigated the judgment of the Court is a final determination between the parties and their privies. Any right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or as an answer to a claim set up cannot be retried in a subsequent suit between the same parties or their privies though for a different cause of action. The right, question or fact once determined must as between them be taken to be conclusively established so long as the judgment remains.

[63] The doctrine of collateral attack was described by McIntyre J. in R. v. Wilson, [1983] 2 S.C.R. 594 at 596, 4 D.L.R. (4th) 577:

It has long been a fundamental rule that a court order made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally - and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. Where appeals have been exhausted and other means of direct attack upon a judgment or order, such as proceedings by prerogative writs or proceedings for judicial review, have been unavailing, the only recourse open to one who seeks to set aside a court order is an action for review in the High Court where grounds would include fraud or discovery of new evidence.

[64] Generally and broadly speaking therefore, the doctrines of res judicata and collateral attack each act as a form of estoppel either as to the cause of action advanced or the issues that have already been conclusively decided to prevent unsuccessful litigants from re-arguing points of fact or law that have already been decided against them in properly constituted proceedings.

[65] Both doctrines are of obvious importance to the relief sought by the defendants on this application, not only concerning the claims advanced by the plaintiffs against Mr. Tondelli in these proceedings, but also by reason of the allegations made against the various defendant governmental authorities concerning their alleged failure to properly investigate the plaintiffs’ allegations of physical and sexual abuse of S. by Mr. Tondelli.

[66] In that regard, it is, in my view, important to note that in the Custody Action, Morrison J. made the following specific findings of fact:

(1) The evidence at trial and on the subsequent variation application that led to the change of her custody and primary residence disclosed no abuse of S. by Mr. Tondelli;

(2) The evidence at the July 2003 variation proceeding that resulted in the changing of custodial responsibility from joint to that of sole custody in favour of Mr. Tondelli established that no further investigation of either S. or Mr. Tondelli was required; and

(3) Ms. Haeck continually reports Mr. Tondelli to the Ministry of Children and Family Development, and then criticizes the Ministry for not adopting her criticisms as valid.

[67] Also, Morrison J. adopted Dr. Eirikson’s conclusions in his second s. 15 report that: Ms. Haeck has a characteristic of jumping to conclusions overly quickly; Ms. Haeck’s history shows that all of the allegations that she has brought cannot be substantiated; and, Ms. Haeck bases those allegations upon behaviour by S. which she observes but which she misinterprets.

[68] Finally, it must not be forgotten that Ms. Haeck pleaded guilty to breaching this Court’s custody and access orders.

[69] Before I proceed to my determination of the individual applications by the various defendants to strike the plaintiffs’ claims against them under the provisions of Rule 19(24), I must also record that in determining each application I will address the plaintiffs’ claims as they were advanced generally in the pleadings as amplified in argument rather than by reference to specific paragraphs in the amended statement of claim. I do so for the following reasons:

(1) As presently drafted, the plaintiffs’ pleadings offend most rules of proper pleading. The amended statement of claim is a recitation of alleged “evidence” rather than a pleading of material facts in support of the causes of action advanced. In most cases there is no causal link identified between the action or inaction of any defendant or group of defendants and a cause of action alleged or a harm allegedly suffered as a consequence thereof. There is also, in most cases, little, if any, particularization of the substance of the various claims advanced against some or all of the named defendants. Further, in some cases the defendants named are not legal entities that may be sued.

(2) Notwithstanding those obvious technical and substantive deficiencies in the plaintiffs’ existing pleadings, I have determined that justice will be better served by attempting to discern from the pleadings as they are and from the oral submission advanced by the plaintiffs, the substance of the complaints made by them against the various defendants. I say that because to approach the issues raised on this application on a technical pleadings basis would likely only result in further attempts by the plaintiffs to perfect pleadings that are in most cases not only technically deficient but substantively incurable.

(3) Further, as noted above on applications under Rule 19(24), the determination of whether a pleading should be struck must be based not only upon the pleadings as they presently stand but also as they could reasonably be amended. I have thus allowed the plaintiffs great latitude in their submissions in an attempt to determine the actual substance of their allegations against each defendant. In doing so, I recognize that to a certain extent the defendants may have been disadvantaged by the absence of properly amended pleadings, but in the circumstances, I am satisfied that it is more important to assess whether a sustainable cause of action as identified orally by the plaintiffs in their submissions may exist rather than dismiss the present allegations as pleaded due to the plaintiffs’ obvious inability to draft rule compliant pleadings.

[70] Notwithstanding what I have said about my decision to attempt to approach the plaintiffs’ allegations in a substantive rather than a technical way, the fact remains that to a great extent the plaintiffs’ amended statement of claim is so deficient and their submissions so disjointed and without merit that I have been unable to discern from them identifiable causes of action. Following Gittings v. Caneco Audio Publishers Inc., supra, such pleadings must be struck under Rule 19(24)(c) as being irrelevant, embarrassing or both.

[71] Further, virtually the entirety of the amended statement of claim and the plaintiffs’ oral submissions are founded upon events and circumstances that have been previously litigated. In that regard, I cite for illustration purposes only the plaintiffs’ allegations in paragraphs 173 through 179 that:

173. The minor child, with special needs, [S.], was forcibly returned to British Columbia on June 14, 2001, through the conspired efforts of the Attorney General of British Columbia and the State Attorney of South Africa in contravention of article 13(b) of the Hague Convention and in violation of the United Nations Convention on the Rights of the Child, to which Canada is a signatory.

174. The mother of the minor child, Lisa Haeck, was given no choice but to return with her daughter to a hostile environment, contrary to the UN Convention on the Rights of the Child and the UN Declaration of Human Rights.

175. Mr. Haeck, the step-father of the minor child who acted as her de facto father figure from January 2001 until September 2003, was forced to abandon his means of livelihood, his family and his country in order to support his wife and family in Canada.

176. The Plaintiff Mrs. Haeck claims that to date, the Attorney General of BC et al have violated her charter rights and have discriminated against her, in particular, according to her national and ethnic origin, her religion, and her sex by deliberately returning her to a harmful environment of documented spousal violence involving the Defendant Arturo Tondelli; by not protecting her despite continued acts of violence and harassment against her and her daughter following her forced return to Canada and through malicious prosecution and criminalization.

177. The Plaintiff Mr. Haeck claims that to date, the above-mentioned defendants have discriminated against him, in particular, according to his national and ethnic origin, his religion and his forced immigrant status or non-status by not allowing him. Mr. Haeck is unable to accept employment in Canada as Citizenship and Immigration Canada have refused to provide a work permit for this purpose.

178. The Plaintiffs claim that, to date, the above-mentioned defendants have discriminated against the minor child, [S.], in particular, according to her religion, her sex, her age and her mental and physical disability.

179. In claiming their s. 15(1) rights according to the Charter, the Plaintiffs request that the Court set a date and a time and place for a trial whereby evidence may be brought before the Honourable Court and appropriate relief, damages and restitution be brought to the minor child and to them.

[72] I understand that the allegations contained in those paragraphs are an attempt to have the defendants named therein determined to be responsible for the various past acts alleged and consequences pleaded. The pleadings are not wholly incapable of analysis because vague assertions of conspiracy, discrimination and breach of the plaintiffs’ rights under the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, (the “Charter”), can be discerned from those paragraphs and from many similar paragraphs in the amended statement of claim. However, in the context of the entirety of the Custody Action (including the history of the involvement of the courts of South Africa), the related criminal proceedings and the Judicial Review Proceedings (that were dismissed on October 6, 2004 as an abuse of process), those pleadings and the many similar pleadings that attempt to re-litigate the issues that have previously been decided by this Court either offend the doctrine or res judicata or constitute an unsustainable collateral attack upon valid and subsisting court orders as discussed above, or both. As such they are vexatious, embarrassing and an abuse of process and must be dismissed under Rule 19(24)(d).

[73] It follows, therefore, from the approach I have taken that except to the extent that I may determine otherwise during my discussion of the specific causes of action that I have been able to discern from the amended statement of claim and the plaintiffs’ oral submissions, all of the claims advanced by the plaintiffs against all of the defendants must be dismissed under Rule 19(24).

[74] I turn next to my determination as to whether those allegations advanced by the plaintiffs that I am able to identify from the amended statement of claim and the plaintiffs’ oral submissions must also be struck out or dismissed under Rule 19(24).

A. The Plaintiffs’ Allegations Against the Defendant, the Attorney General of British Columbia (the “Attorney General”)

[75] The plaintiffs allege that between July 2001 and the present date, the Attorney General failed to exercise his statutory powers and duties by failing to intervene in the custody dispute between Mr. Tondelli and Ms. Haeck thus effectively assisting Mr. Tondelli over Ms. Haeck and failing to represent S.’s best interests.

[76] I am satisfied that the plaintiffs’ allegations against the Attorney General must be dismissed as being without legal foundation. It is both plain and obvious that those allegations could not succeed at trial. Not only do the allegations constitute an abuse of process as a collateral attack upon Morrison J.’s decisions and orders, it is entirely within the discretion of the Attorney General as to whether he or his Ministry will intervene in legal matters.

[77] Specifically, in disputes such as those between Mr. Tondelli and Ms. Haeck in the Custody Action, s. 18 of the Family Relations Act affords the Attorney General the statutory discretion to intervene in a proceeding and contest or argue a question or matter arising in the proceeding that affects the public interest. That discretion is not subject to judicial review.

B. The Plaintiffs’ Allegations Against the Defendant, the Ministry of Children and Family Development of British Columbia (the “Ministry”)

[78] The plaintiffs allege that from and after July 2001, the Ministry deliberately failed to exercise their statutory powers and duties by failing to investigate the plaintiffs’ reports of child abuse and by failing to represent S.’s best interests.

[79] I am satisfied that all of the plaintiffs’ allegations against the Ministry that in any way involve the period from July 2001 until the date of Morrison J.’s July 17, 2003 decision and order must be struck as frivolous and vexatious in that they constitute a collateral attack upon Morrison J.’s judgments and orders in the Custody Action.

[80] On the other hand, to the extent that there are continuing allegations against the Ministry and its officials concerning the allegations made by the plaintiffs against Mr. Tondelli after Morrison J.’s July 17, 2003 order, I understand that most if not all of those matters will be the subject of the variation proceedings that I will be determining in the Custody Action.

[81] It would accordingly be wrong to strike allegations that relate to matters that post-date July 17, 2003 at this time under Rule 19(24) since the results of the variation proceeding cannot yet be known. I do, however, order that given that the allegations made against the Ministry after July 17, 2003 relate to allegations against Mr. Tondelli in that same period, any proceedings in relation to those claims will be stayed pending the delivery of my reasons in the variation proceedings in the Custody Action. If the plaintiffs then wish to continue to seek relief concerning any such claims against the Ministry, they must then provide full particulars to counsel for the Ministry of all of the complaints concerning the Ministry’s conduct that they claim give rise to a cause of action. If they do so, the Ministry may then, if it chooses to do so, re-set this application under Rule 19(24) concerning such claims and the Court will then be in a position to determine whether any such fully particularized claims will be allowed to proceed. I will initially reserve to myself the hearing of any such further application by the Ministry as the Case Management Judge, but also reserve the right to refuse to hear such application if I am of the view that my hearing of the variation proceedings would make it inappropriate for me to also hear a continued Rule 19(24) application.

C. The Plaintiffs’ Claims Against the Defendant, the Central Authority of British Columbia (the “Central Authority”)

[82] The plaintiffs’ allegations against the Central Authority fail to establish that a duty was owed by the Central Authority to the plaintiffs and as such must be struck as failing to establish the existence of a cause of action.

[83] Although the amended statement of claim fails to plead what duty was allegedly owed by the Central Authority to the plaintiffs and how that duty was breached, as I understand the plaintiffs’ submissions, they argue that the Central Authority wrongfully acted in concert with Mr. Tondelli to require Ms. Haeck to return S. from South Africa to British Columbia pursuant to the consent order dated June 9, 2000.

[84] The Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35 (Hague Convention) sets forth the duties of the Central Authority.

[85] Canada is a member of the Hague Convention and since Canada is a federal state each province must also adopt the Hague Convention to give it force and effect within that province.

[86] In British Columbia, the Hague Convention is given the force of law by s. 55 of the Family Relations Act.

[87] The Hague Convention sets out the procedure for the return of a child alleged to have been abducted to another member country in breach of a custody order and the Central Authority acts as a conduit for the passing of information between states.

[88] In British Columbia, the Central Authority also arranges for legal assistance for the custodial parents of abducted children, accepts or rejects applications for the return of children, and where it deems it necessary and appropriate to do so, assists in communicating with police, border authorities and child find agencies, and the Central Authorities of other states that are members of the

Citation:	*Haeck v. Attorney General of British Columbia et al.,*
	2005 BCSC 139

I N D E X

Para.

No.

NATURE OF APPLICATION

II.

BACKGROUND

[2]

[45]

III.

D. The Plaintiffs’ Allegations Against the Defendant, Crown Counsel of British Columbia (“Crown Counsel”)

[92]

E. The Plaintiffs’ Allegations Against the Defendant, Stanley Schwartz

[102]

F. The Plaintiffs’ Allegations Against the Defendants, Ian Hayward and Jeremy Sheppard

[108]

G. The Plaintiffs’ Allegations Against the Defendant, Michelle Fuchs

[113]

[116]

[124]

[132]

[138]

[141]

M. The Plaintiffs’ Allegations Against the Defendant, Arturo Tondelli

[152]

IV.

COSTS

[154]

V.

SUMMARY

[159]