Court File and Parties

CITATION: Reece v. Servello, 2014 ONSC 6292

DIVISIONAL COURT FILE NO.: 484/14

DATE: 20141029

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LEONARD REECE and others v. CARLO SERVELLO (EXPRESS PAY TRAVEL INC.), PATRICIA CAMPAGNA and NINO CAMPAGNA

BEFORE: NORDHEIMER J.

COUNSEL: Leonard Reece in person J. David Sloan, for the respondent, Carlo Servello Patricia Campagna in person Nino Campagna in person

HEARD at Toronto: October 28, 2014

ENDORSEMENT

[1] Mr. Reece seeks leave to appeal from the order of Pattillo J. dated July 31, 2014. In that order, the motion judge struck out the statement of claim with leave to amend within forty-five days. Some ancillary relief was also granted.

[2] In order to obtain leave to appeal, Mr. Reece must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure. That subrule reads:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[3] Mr. Reece did not refer to either of the tests in his material or in his submissions. I would also note that Mr. Reece did not provide a copy of the statement of claim in his material. It would be difficult to make a determination whether there was doubt as to the correctness of an order striking out a statement of claim without having the statement of claim to review. Fortunately, Ms. Campagna was kind enough to provide me with a copy of it at the hearing.

[4] I have considered both tests in coming to my conclusion. In terms of the first test, there are no conflicting decisions on this matter nor would one generally expect there to be given the nature of the order made.

[5] In terms of the second test, I have no doubt as to the correctness of the order made. First, there are twelve named plaintiffs other than Mr. Reece. Mr. Reece is not entitled to represent any of these named plaintiffs (see r. 15.01(3)). Further, the motion judge was advised, as was I, that some of the named plaintiffs are minors. No litigation guardian has been named to represent their interests (see r. 7.01(1)).

[6] Second, the nature of the claim itself, insofar as it can be discerned from the contents of the statement of claim, is entirely directed at Carlo Servello. A simple reading of the statement of claim demonstrates that here is no allegation that could provide a foundation for any claim against Patricia Campagna or Nino Campagna.

[7] The statement of claim, as drafted and read generously, is plainly flawed. In light of that fact, it was entirely within the discretion of the motion judge to decide, in the context of the motion that was before him, that the statement of claim had to be amended to put it into a proper form, with the proper plaintiffs, before any other steps in the action could be taken. The order striking out the statement of claim, with leave to amend, was a correct one.

[8] Finally, I feel compelled to say something about two submissions that Mr. Reece made at the hearing. One was his suggestion that the result of the motion arose out of some form of institutional racism within the court system. The other was Mr. Reece’s suggestion that there was some form of judicial misconduct regarding markings that appear on a confirmation form in the court file. Both of these submissions are completely unfounded. They are also, quite frankly, fundamentally offensive.

[9] The motion for leave to appeal is dismissed. The respondent, Carlo Servello, is entitled to his costs of the motion payable by Mr. Reece within thirty days and fixed in the amount of $500 inclusive of disbursements and HST.

NORDHEIMER J.

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