COURT OF APPEAL FOR ONTARIO
DATE: 20220427 DOCKET: C69744
Gillese, Miller and Coroza JJ.A.
BETWEEN
Frank Derenzis Plaintiff (Appellant)
and
Ron Johnson, Matt Doto and Ted Aivalis Defendants (Respondents)
Counsel: Osborne G. Barnwell, for the appellant Lorne Honickman, for the respondents
Heard: April 11, 2022 by video conference
On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated July 21, 2021, with reasons reported at 2021 ONSC 5136.
Reasons for Decision
[1] By order dated July 21, 2021 (the “Order”), the motion judge struck two versions of the appellant’s statement of claim – except for the battery claim against Mr. Aivalis – and denied him leave to amend it a third time by adding a new party and advancing a claim of civil conspiracy.
[2] In this appeal, the appellant challenges the validity of the Order.
[3] As we explain below, we see no basis for appellant intervention. Consequently, the appeal is dismissed.
Background in Brief
[4] The parties are all members of CUPE Local 416 (the “Union”). The appellant is a longtime, active member of the Union and has held various positions in it. In the late winter of 2016, the appellant and the respondent, Ron Johnson, ran for a Union governance position. Mr. Johnson was the successful candidate.
[5] Matters escalated between the appellant and Mr. Johnson until each filed a complaint against the other under the Union’s constitution. The appellant went through an internal hearing process and an appeal. Although he was partially successful on appeal, in May 2018, he was barred from standing for election for three years. Consequently, his nomination for a September 2018 election was rejected at the nomination meeting. An incident occurred at that meeting in which the appellant says that the respondent, Ted Aivalis, assaulted him.
[6] In November 2019, the appellant commenced an action by filing a Notice of Action. In December 2019, he delivered a Statement of Claim against the respondents for defamation (against Mr. Johnson and Mr. Aivalis), battery (against Mr. Aivalis), and negligence (against Mr. Doto). He was self-represented at that time.
[7] The respondents brought a motion to strike the Statement of Claim on February 10, 2020. It was returnable on April 17, 2020. On February 14, 2020, the appellant delivered a Fresh as Amended Statement of Claim that included additional allegations of fraud, breach of contract, and negligence.
[8] The motion to strike was delayed for a variety of reasons, including the Covid-19 pandemic. It was ultimately heard in June 2021. At that time, the appellant was represented by counsel, who brought a cross-motion to further amend the Statement of Claim. Through the amended Statement of Claim as drafted by counsel (the “last Statement of Claim”), the appellant sought to add the Union as a party. The amendments in the last Statement of Claim also abandoned the appellant’s claims against the respondents, except for the claim of battery against Mr. Aivalis, in exchange for claims for civil conspiracy against the respondents and declaratory relief in respect of internal union proceedings.
[9] The Order under appeal flowed from the motion and cross-motion decided by the motion judge.
[10] The motion judge concluded that the claims against the Union were statute‑barred because the appellant knew the relevant facts when he filed the initial Statement of Claim. He also determined that the constituent elements of civil conspiracy were not pleaded in either the 2019 or 2020 claims. Thus, he concluded, the claim for conspiracy was statute-barred because it was a new cause of action brought outside the limitation period. The motion judge further held that declaratory relief was barred because the limitation period runs against declaratory relief unless no consequential remedies are sought and, in this case, the appellant was seeking damages based on his claim for declarations.
Issues on Appeal
[11] In his factum, the appellant raised the following four issues.
Did the motion judge misapprehend the evidence by failing to find that a fresh element of civil conspiracy occurred in January 2020, when the appellant was denied legal funding?
Did the motion judge err by mechanically applying the legal principles, failing to read the pleadings generously, and by making no allowance for the fact that the appellant was self-represented and the fact that the respondents and their lawyers were responsible for the defects in his pleadings?
Did the motion judge err in finding that the elements of conspiracy were not present in the earlier claims?
Did the motion judge err in finding that the claim for declaratory relief was statute-barred?
Analysis
[12] At the oral hearing of the appeal, the appellant distilled the issues into the following overarching submission. He argued that the motion judge erred in failing to read generously the pleadings drafted by the appellant when he was self‑represented and, had he done so, the motion judge would have found that the facts as originally pleaded asserted the civil conspiracy cause of action. Thus, the appellant contends, the last Statement of Claim did not plead the civil tort of conspiracy for the first time. Rather, he says, it simply asked that a different legal characterization be drawn from the same facts that had been pleaded earlier, as amplified by further alleged acts of wrongdoing.
[13] As counsel for the appellant acknowledged, the motion judge correctly articulated the relevant legal principles. However, he submits, the motion judge did not correctly apply those principles to the facts. We do not accept this submission.
[14] After distilling the facts from the various iterations of the statement of claim and presuming them to be true, the motion judge applied the legal principles to them. He concluded that the constituent elements of civil conspiracy were not pleaded in either the 2019 or 2020 claims and that the latest Statement of Claim was the assertion of a new cause of action when it was out of time. We see no error in this conclusion. Even read generously, there is nothing in the 2019 and 2020 Statements of Claim that could support a claim of civil conspiracy. As this court stated in Normart Management Ltd. v. West Hill Redevelopment Co. Ltd. (1998), 37 O.R. (3d) 97 (C.A.), “Simply reciting a series of events and stating that they were intended to injure the appellant is hardly sufficient to establish a conspiracy at law”.
[15] In terms of the claim against the Union, the motion judge found it was based on events that took place in 2017 and 2018 – of which the appellant had knowledge – and, therefore, was out of time. In addition, there were unaddressed procedural problems attendant on attempting to sue a Union. Again, his determination of this matter was unassailable.
[16] As the declaratory claims were connected to the appellants claim for damages, it too was out of time.
[17] The reasons of the motion judge are a model of careful, thorough analysis. We see no basis for appellant intervention.
Disposition
[18] Accordingly, the appeal is dismissed with costs to the respondents, fixed at the agreed on sum of $10,000, all inclusive.
“E.E. Gillese J.A.” “B.W. Miller J.A.” “S. Coroza J.A.”
