Court File and Parties

COURT FILE NO.: CV-18-00598962-0000 DATE: 20200124 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

STUART WEINSTEIN Plaintiff/Responding Party – and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF ADVANCED EDUCATION AND SKILLS DEVELOPMENT, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF GOVERNMENT AND CONSUMER SERVICES, THE HUMBER INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING, YOUNG MEN’S CHRISTIAN ASSOCIATION OF GREATER TORONTO (“YMCA”), CONDOMINIUM MANAGEMENT REGULATORY AUTHORITY OF ONTARIO Defendants/Moving Parties

Counsel: Stuart Weinstein, In Person Tanya Jemec, for Her Majesty the Queen in Right of Ontario as represented by the Minister of Advanced Education and Skills Development and Her Majesty the Queen in Right of Ontario as represented by the Minister of Government and Consumer Services (“Ontario”) Jacob Pollice, for Her Majesty the Queen in Right of Canada as represented by Employment and Social Development Canada (“Canada”) Kate Dearden, for The Humber College Institute of Technology and Advanced Learning (“Humber”) Ruby Egit, for Young Men’s Christian Association of Greater Toronto (“YMCA”) Erica Richler, for Condominium Management Regulatory Authority of Ontario (“CMRAO”)

HEARD: September 11, 2019

BEFORE: M. D. FAIETA j.

Reasons for Decision

Introduction

[1] The following facts are taken from a memo prepared by a job skills counsellor employed by the defendant YMCA and attached to the Amended Statement of Claim. It outlines the plaintiff’s rationale for seeking funding under the Second Career Strategy (“SC”) training program. The plaintiff had been unsuccessful in finding employment after he had been laid off as a cashier in August 2016. The plaintiff advised the counsellor that he was interested in completing the Condominium Management and Administration Certificate Program at Humber College (the “Certificate Program”) as his research showed that job prospects in this field were strong. The plaintiff gave documents to the counsellor at the YMCA that indicated mandatory licensing requirements for Condominium Property Managers would be introduced in the near future. The plaintiff told the counsellor that he was open to work in any property management related position in order to complete the licencing process.

[2] The SC program is established and administered by Ontario and jointly funded by the defendants, Ontario and Canada.

[3] The Amended Statement of Claim indicates that the plaintiff entered into a SC participant agreement with Ontario (the “Agreement” or the “SCPA”). The Agreement is dated May 4, 2017. The plaintiff was provided funding to complete the five-course program from May 2017 to August 2017. There is nothing in the Agreement stating that the plaintiff would be able to re-enter the workforce as a Condominium Property Manager following completion of the training program.

[4] The plaintiff completed the Certificate Program with distinction.

[5] The licencing provisions of the Condominium Management Services Act, 2015, S.O. 2015, c. 28, Sched. 2 (“CMSA”) and O. Reg. 123/17 came into force on November 1, 2017. Section 34 of the CMSA provides that no person shall provide condominium management services unless licensed as a condominium management provider or as a condominium manager. Three classes of licence are available: a General Licence, a Limited Licence, and a Transitional General Licence. Only a General Licensee can perform management tasks. An individual with less than five years’ experience may apply for a General Licence if he or she has: (1) at least two years’ experience – i.e., at least 2,920 hours in the last five years – providing such services and (2) completed either the Association of Condominium Managers of Ontario (“ACMO”) Registered Condominium Manager (“RCM”) examination or the ACMO’s four courses – condominium law, physical building management, financial planning and condominium administration, and human relations: see O. Reg. 123/17, ss. 11 - 13; Audrey Loeb, The Condominium Act: A User’s Manual, 5th ed. (Ontario: Thomson Reuters, 2018), at p. 725.

[6] The licencing scheme is administered by the CMRAO. The Amended Statement of Claim implies that the plaintiff was awarded a Limited Licence rather than a General Licence because the defendant CMRAO determined that he did not have the experience required by the regulation in order to be granted a General Licence. A Limited Licencee must be supervised by other licensees when performing key tasks and cannot perform certain tasks.

[7] Amongst other things, the plaintiff brings this action for $200,000 in damages as “NOBODY, NOBODY, NOBODY is hiring for a LIMITED LICENCE”. The plaintiff appears to assert a claim against all defendants based on breach of contract, negligence, intentional interference with economic relations, public malfeasance, and breach of consumer protection laws.

[8] For the reasons described below, I accept the submission of the defendants that the Amended Statement of Claim has no reasonable chance of success. Accordingly, the defendants’ motion to strike is granted. In addition, I have quashed two summons issued at the request of the plaintiff on the basis that they amount to an abuse of process.

Background

[9] The plaintiff filed a two-page Statement of Claim on June 18, 2018.

[10] The Statement of Claim was referred by the Registrar to Diamond J. pursuant to Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The Endorsements of Diamond J. state that the claim was “ripe” for a motion under Rule 21 and/or Rule 25 given that the claim was vague and lacked clear particulars of the causes of action claimed. However, he declined to dismiss the claim pursuant to Rule 2.1 because it was not clearly frivolous, vexatious, or an abuse of process on its face: see Weinstein v. Government of Canada, 2018 ONSC 4334; Weinstein v. Government of Canada, 2018 ONSC 4664; Weinstein v. Government of Canada, 2018 ONSC 4938; Weinstein v. Government of Canada, 2018 ONSC 6402.

[11] The Statement of Claim was struck on April 4, 2019 with leave to amend. Justice Nakatsuru found that the claim identified a number of causes of action such as breach of contract and negligence without pleading material facts to support such causes of action: see Weinstein v. HMQ, 2019 ONSC 2133.

[12] An Amended Statement of Claim was filed on April 23, 2019. It is 30 pages long and pleads additional facts consistent with the themes described earlier. In addition, attached to the Amended Statement of Claim are several documents: (1) a news release dated February 12, 2019, published by the Government of Ontario, entitled “Transforming Ontario’s Employment Services”; (2) an undated document entitled “Summary of the Proposed General Regulation under the Condominium Management Services Act, 2015” that appears to have been published by the Government of Ontario; (3) the plaintiff’s Second Career Application for Financial Assistance dated March 22, 2017 and May 1, 2017; and (4) a document entitled “Case Manager’s Rationale” prepared by a counsellor at the YMCA Employment and Newcomer Programs office.

[13] In his Amended Statement of Claim, the plaintiff claims the following relief:

• “Special, general, aggravated, punitive and exemplary damages in the sum of $200,000 as NOBODY, NOBODY, NOBODY is hiring for a LIMITED LICENCE whereby the government was paying for a program when rules were not in effect and was not grandfathered as promised”;
• “Mandamus – to remedy the defects of justice. Lies in the case at bar where the Defendants have continually threatened prison time for practicing in a profession where promised and has exceeded the expectations of the promise. …”;
• “Interlocutory relief to receive General and Providers licenses to practice”;
• “Interlocutory relief to be able to afford to pay for the intermediary steps of obtaining judgment such as costs for discovery and witnesses”;
• “Substantial Whistleblower financial damages because as a result of the lawsuit, going to be very difficult to find a company that would hire the Plaintiff […]”;
• “Waiving the $500 each in costs to the Ontario Government and CMRAO because as a result of the Defendants’ actions, the Plaintiff has not worked for months […]”;
• “Dissolution of the CMRAO due to a flawed and biased mandate as Ontario – TCU spent thousands of dollars on training me, then CMRAO through Ontario – MGCS breached Ontario – TCU’s contract by overreaching into ultra vires territories”;
• “Up front funds to pay for a solid case such as witness, expert witnesses and discovery”;
• “Up front allowances to live on while the case goes to trial or the defendants settle”;
• “The Humber Institute of Technology and Advanced Learning to lose 25%-60% of budget as a result of the Government of Ontario tying results with education”;
• “Protection and relief from every aspect of Bill 100, Protecting What Matters Most Act (Budget Measures), 2019, especially Schedule 17 Crown Liability and Proceedings Act, 2019 with the Schedule repealing the Proceedings Against the Crown Act and every aspect if and when the Ontario Government attempts to use Section 33 (aka the Notwithstanding Clause) of the Constitution Act, 1982, Part 1 (Canadian Charter of Rights and Freedoms) …”;
• “Slapp (Strategic Lawsuit Against Public Participation…) protection appropriate along with substantial financial compensation for the Plaintiff against the Defendant. …”; and
• “Compensation for pain and suffering and complete criminal protection as the Defendants by threatening prison time have breached the Charter …”.

[14] In the Amended Statement of Claim, amongst other things, the plaintiff alleges that:

• He was enrolled in the Second Career Program “[…] where promises made for condominium managers full licences in respect to rewarding employment financially and personally.”;
• The defendant CMRAO “[…] could have given me my licence and saved everyone a lot of time. He has authority when hardship occurs or in any other situation regarding the Registrar’s discretion […] – and how the registrar would be authorized to recognize the prior successful completion of programs of study, training programs, internships, courses, tests and examinations of an applicant as equivalent to the specified educational requirements for a limited or general licensee.”;
• “[…] [T]he CMRAO has granted licences to individuals who have not satisfied the requirements, has not prevented abuses of the system such as fraud, rendered incorrect decisions on the Plaintiff to purposely and negligently prevent him from getting the appropriate licences – even having him apply for the wrong licences.”;
• “The Plaintiff current status of being barred from practicing is as a result of the implementation of decisions which are operational. The decisions of a lack of due diligence is the reason for the lawsuit, compounded by a whole circle of incompetence by the Defendants. The Plaintiff effectively enrolled in a training program, with the YMCA (as a representative of Ontario – TCU) verbally representing completion of the program leads to full licencing. Otherwise from a reasonable person’s perspective why SC [Second Career] pay thousands of dollars to lift the Plaintiff out of Poverty if the goal of the legislature was to create retroactive/retrospective policies with the result putting the Plaintiff right back into poverty. Clearly duties/standards of care are evident into based on the YMCA and Humber’s recommendations and directions.”;
• “Any effect of fixing the problem was removed because the written contract is ambiguous. While oral promises of the YMCA need to be enforceable because of the misleading nature with false misrepresentation of the contract and the Plaintiff is entitled for the appropriate restitution to be able to practice with General, and Providers’ licences.”;
• “The YMCA and Humber are still managing SC agreements for Ontario – TCU despite causing a dismal failure to the Plaintiff by breaching the duty of care/standard of care. The Plaintiff was thrust into operational versus policy decisions and the Defendants need to be liable for the huge malfeasances. Humber needs to be responsible for their students are enrolled in a viable program.”; and
• “In order to be eligible for SC [Second Career], one has to do comprehensive research – and work through a “Service Provider” which in my case was the YMCA. During the acceptance process, the YMCA conferred with “Training Providers” – three of which taught the ACMO Condominium Course which would move towards the promised representations by the YMCA of my being able to ascertain my General and Providers Licences in whatever form necessary. While George Brown, Humber and Mohawk were interviewed, Humber College ended up being the “Training Provider”. While regulating of Residential Condominium Managers was proceeding, the form of regulation continued to be unclear. In order to be crystal clear as to the parties involved, Canada gave authority to Ontario – TCU to run training programs. Ontario – TCU runs SC. Ontario – MGCS lead the process of residential condominium regulation. ACMO consulted with Ontario – MGCS as to who would run the training programs to be able to achieve full licences in whatever form that would eventually materialize. CMRAO which after November 1, 2018 regulated very loosely until March, 2018 is an administrative authority/agent reporting to Ontario – MGCS to oversee the licences of residential condominium managers. Humber as a Training Authority /agent for SC reporting to Ontario-TCU through the “Service Provider”. YMCA as a Service Provider/agent responsible for coordinating with the SC participant and the Ontario – TCU and the Training Provider for the appropriate training.”

[15] As noted above, the plaintiff entered into the Second Career Participant Agreement with Her Majesty the Queen in Right of Ontario as represented by the Minister of Advanced Education and Skills Development. Pursuant to the SCPA, Ontario agreed to pay the plaintiff the sum of $9,514.00 for a basic living allowance, transportation, books, and tuition in relation to skills training during the three-month period ending in August 2017. The SCPA describes the skills training as a course in Condominium Property Management at Humber College – Etobicoke.

Analysis

[16] There are several issues raised by this motion.

Issue #1: Should the Summons to Witness be Quashed?

[17] The plaintiff delivered a Summons to Witness, returnable on September 11, 2019, to: (1) Jenessa Crognali, Ministry of the Attorney General of Ontario and (2) The Honourable Douglas Robert Ford, Premier of the Province of Ontario.

[18] The Summons issued to the Premier of Ontario contains the following statement:

As Premier of Ontario, the Hon. Douglas Robert (Doug) Ford has access to everything that is occurring in the Ontario Provincial Government, and when the Premier’s employees act in an abusive or negligent manner, provide poor customer service and put the administration of running the Province of Ontario into disrepute, the Premier must know. Over a year has gone by and the Defendants continue to delay and bully the Plaintiff in CV-18-00598962-0000 and the Defendants have not filed a statement of defence.

The Crown Liabilities and Procedures Act that was enacted on Monday, July 1st, 2019, has been interpreted by Jessica Crognali in the Hon. Doug Downey’s office as being focused on “deep pocketed lawyers” and “special interest groups” as indicated by the Premier.

Further comments from the Attorney General which the Premier needs to bring the appropriate supporting documents to clarify, are that the Crown Liability and Proceedings Act does not present any insurmountable access to justice barriers; and how disputes involving contracts, constitutional issues, human rights and judicial review of government decisions are not impacted by the CLPA changes; and how the government would remain liable for negligent acts of its employees if proven in court; and any and every other information that interprets the real meaning behind the Ontario Government’s reasoning for the Crown Liability and Proceedings Act.

In the Tuesday, April 16th, 2019 edition of the Globe and Mail, the Premier is quoted as saying … “You even look sideways and some special-interest groups out there trying to sue you, you know,” he said during a morning appearance. “It’s ridiculous. I’ve never seen anything like it. It’s tying up the courts. I want to clear up the courts until real lawsuits can go through for real people, for things that really matter. There’s a lot of frivolous nonsense going on right now in the courts”.

Request from the Premier to explain if Stuart Weinstein is an example of “real people”, what the Premier is doing to clean up Employment Ontario where as it stands, spends billions of dollars a year in an inefficient system; and aware of the incompetence of the Condominium Management Regulatory Authority of Ontario where not everyone who has received a General and/or Providers licence has fully earned one according to the new regulations.

The Premier needs to explain, how I want to work and why I am not afforded any opportunities to do so, and the Government spent thousands of dollars of taxpayers money to train me, and I was in the top of my class and how different organizations did not do their due diligence. Instead of working in a gainful career, I have been forced to commence litigation in order to receive my General and Providers licence.

If I knew that the Second Career Program that was mutually chosen by myself and the “Y” would end up in an unemployment situation that I currently find myself in with different organizations mixing up the rules and thus preventing me from practicing.

[19] Rule 39.03 of the Rules provides that a person may be compelled by a summons to be examined before the hearing of a pending motion for the purpose of having his or her evidence available for the use at the hearing. Such examination is limited to the personal knowledge of the witness: Magnotta Winery Corp. v. Ontario (Alcohol and Gaming Commission), 2016 ONSC 3174, at paras. 16-18.

[20] A summons should be quashed when the party seeking the examination fails to show that the evidence sought is relevant to any issue raised on the motion. If relevance is established, then the onus shifts to the party seeking to quash the summons to demonstrate that the examination would nevertheless amount to an abuse of process: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), [2002] O.J. No. 1445 (C.A.), at paras. 30, 59.

[21] The description of the purpose of the examinations has no relevance to this motion. In any event, it would amount to an abuse of process to permit these examinations to proceed. First, no evidence is admissible on a motion under Rule 21.01(1)(b). Second, given the plaintiff’s repeated failure to particularize the elements of each of the causes of action and the supporting material facts that he relies upon, these examinations would amount to an unfocused fishing expedition and thus an abuse of process. Finally, the Premier is a sitting member of the Parliament of Ontario that was in session at the time this motion was heard. As a result of parliamentary privilege, the Premier cannot be compelled to testify while Parliament is in session: Dunphy v. Peel Living, [2009] O.J. No. 1792 (S.C.J.), at paras. 22-26.

Issue #2: Is it Plain and Obvious that the Claim Discloses No Reasonable Cause of Action?

[22] Rule 21.01(1)(b) of the Rules states that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action, and the judge may make an order or grant judgment accordingly. Rule 21.01(2)(b) provides that no evidence is admissible on a motion under Rule 21.01(1)(b).

[23] In Trillium Wind Power Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA 683, [2013] O.J. No. 5117, the Court of Appeal for Ontario stated, at paras. 30-31:

[30] [Citing Paul M. Perell and John W. Morden in The Law of Civil Procedure in Ontario, 1st ed. (Markham: LexisNexis Canada Inc., 2010), at p. 445] The following principles apply to a Rule 21 motion to strike a pleading for failing to disclose a reasonable cause of action or defence: (a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof; (b) the claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings; (c) novelty of the cause of action is of no concern at this stage of the proceeding; (d) the statement of claim must be read generously to allow for drafting deficiencies; and (e) if the claim has some chance of success, it must be permitted to proceed.

[31] The test is not in dispute: the claim will only be dismissed where it is “plain and obvious” that it has no reasonable prospect of success [….] While the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts.

[24] If a claim is found to disclose no reasonable cause of action, then it should not be struck without leave to amend except in the clearest of cases, for instance when the deficiencies in the pleading cannot cured by an appropriate amendment: South Holly Holdings Ltd. v. Toronto-Dominion Bank, 2007 ONCA 456, [2007] O.J. No. 2445 (C.A.), at para. 6.

Failure to Plead the Necessary Elements of the Causes of Action

[25] The defendants submit that the Amended Statement of Claim discloses no reasonable cause of action against them because the plaintiff has failed to plead the necessary elements of the various causes of action asserted against the defendants.

Breach of Contract

[26] In McCarthy Corporation PLC v. KPMG LLP, [2007] O.J. No. 32 (S.C.J.), Mesbur J. stated, at para. 26:

A claim for breach of contract must contain sufficient particulars to identify the nature of the contract, the parties to the contract and the facts supporting privity of contract between the plaintiff and defendant, the relevant terms of the contract, which term or terms was breached, and the damages that flow from that breach. It must also plead clearly who breached the term, and how it was breached.

[27] The Amended Statement of Claim only references the Agreement. The parties to the Agreement are the plaintiff and Ontario. There is no other contract referenced in the Amended Statement of Claim. Accordingly, on this basis, the claim in breach of contract shall be struck against all defendants other than Ontario.

[28] Further, there is nothing in the Agreement stating that the plaintiff shall be entitled to receive a licence as a Condominium Property Manager upon completion of the Condominium Management and Administration Certificate Program at Humber College, nor does the plaintiff plead that the Agreement makes such representation. The Agreement only promised to provide funding to the plaintiff during his period of skills training. There is no dispute that the plaintiff received such funding.

[29] The suggestion in the Amended Statement of Claim that the Agreement was varied by oral representation to include a term that the plaintiff would be guaranteed a licence (presumably, of a type of licence that he found acceptable) is untenable given that section 14 of the Agreement provides that “no change or modification to the Agreement may be made unless it is in writing, dated and signed by the MINISTRY and YOU”.

[30] Accordingly, the claim for breach of contract against Ontario is struck.

Negligence

[31] To sustain an action in negligence, a plaintiff must establish: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant’s behavior breached the standard of care; (3) that the plaintiff sustained damages; (4) that the damages were caused in fact and in law by the defendant’s breach; and (5) that the damages are not too remote in law: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.

[32] The claim in negligence appears to be largely an attack on the licensing scheme for Condominium Property Managers under the CMSA and its regulations. In particular, the Amended Statement of Claim: (1) appears to submit that the plaintiff’s application should have been “grandfathered”, whether by the CMSA, its regulations, or by the CMRAO’s decision; (2) states that the “licensing for Condominium Managers and the proposed regulations are operational policies […]”; and (3) argues that “the LGIC [Lieutenant Governor in Council] made a mistake in giving Royal Assent because an overreaching CMRAO was created”.

[33] There is no duty of care owed by a government in respect of pure policy decisions. Ontario’s decisions in respect of the terms of the licensing scheme, whether it be in relation to the imposition of certain minimum experience requirements and the lack of exceptions to such requirements, whether grandfathering or otherwise, are not justiciable particularly given the lack of any assertion of bad faith, and particulars of same, in respect of this licensing scheme.

[34] The bald assertion that the YMCA, the CMRAO, and Humber are liable in negligence “by extension” is untenable. Further, the allegation that Canada is liable in negligence because it delegated the administration of training programs to Ontario has no basis in law. Ontario has the constitutional authority to establish such programs. Canada’s role in this case was simply to assist in the funding of the SC training program in question.

[35] The plaintiff also alleges that the CMRAO negligently prevented him from obtaining the appropriate licence without pleading the material facts to such claim. He states that “the CMRAO has granted licences to individuals who have not satisfied the requirements, has not prevented abuses of the system such as fraud, rendered incorrect decisions on the Plaintiff purposely and negligently prevent him from getting the appropriate licences – even having him apply for the wrong licences”. In any event, such claim is hopeless, as the CMRAO, as a regulatory body, does not owe the plaintiff a private law duty of care.

[36] For the above reasons, the claims in negligence against all defendants are struck.

Intentional Interference with Economic Relations

[37] The plaintiff baldly asserts the tort of unlawful interference with economic relations against all defendants.

[38] The Court of Appeal for Ontario in Gaur v. Datta, 2015 ONCA 151, [2015] O.J. No. 1190 (C.A.), explained the requirements of this tort at para. 25:

The tort requires the defendant to have committed an actionable wrong against a third party that intentionally caused the plaintiff economic harm. Conduct is unlawful if it is actionable by the third party, or would be actionable if the third party had suffered a resulting loss [...]

[39] The Amended Statement of Claim does not assert that any of the defendants committed an actionable wrong against a third party that intentionally caused the plaintiff economic harm, nor does the plaintiff provide particulars with respect to the resulting economic harm that he suffered. Accordingly, the claim for intentional interference with economic relations is struck.

Malfeasance in Public Office

[40] The elements of the tort of malfeasance in public office were described by the Court of Appeal for Ontario in St. Elizabeth Home Society v. City of Hamilton, 2010 ONCA 280, [2010] O.J. No. 1515, at paras. 20-21:

[20] Misfeasance in public office is an intentional tort. The tort is meant to provide a measure of accountability for public officials who do not exercise their duties of office in good faith. To make out this tort, a plaintiff must prove four elements:

o The public official deliberately engaged in unlawful conduct in the exercise of public functions; o The public official was aware that the conduct was unlawful and was likely to injure the plaintiff; o The public official's tortious conduct was the legal cause of the plaintiff's injuries; and o The injuries suffered are compensable in tort law.

See Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at para. 32.

[21] At its core, the tort targets officials who act dishonestly or in bad faith. As Iacobucci J. said in Odhavji, public officials who deliberately engage in conduct that they know to be inconsistent with the obligations of their office risk liability for the tort. Conversely, public officials who honestly believe their acts are lawful, and do not intend to cause harm or know that harm would likely result from their actions, fall outside the ambit of misfeasance in public office. In this way, the required mental element achieves a balance between curbing unlawful, dishonest behavior and enabling public officials to do their jobs free from claims by those adversely affected by their decisions.

[41] The Amended Statement of Claim does not plead any material facts to support the elements of this cause of action. Accordingly, the claim of malfeasance in public office is dismissed.

Breach of Consumer Protection Laws

[42] The Amended Statement of Claim states that the plaintiff should have protection from unfair government practices pursuant to unspecified “consumer protection laws”. This claim lacks particulars. The plaintiff also has no basis to allege that the Agreement, which provided funding to the plaintiff, is a consumer agreement. The allegations in the Amended Statement of Claim related to breach of consumer protection laws are also struck.

Defence under section 11 of the Crown Liability and Proceedings Act, 2019

[43] Section 11 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c.7, Sched. 17 (“CLPA”), states:

Acts of a legislative nature

11 (1) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care while exercising or intending to exercise powers or performing or intending to perform duties or functions of a legislative nature, including the development or introduction of a bill, the enactment of an Act or the making of a regulation.

Regulatory decisions

(2) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of a regulatory decision made in good faith, where,

(a) a person suffers any form of harm or loss as a result of an act or omission of a person who is the subject of the regulatory decision; and

(b) the person who suffered the harm or loss claims that the harm or loss resulted from any negligence or failure to take reasonable care in the making of the regulatory decision.

Same, purported failure to make

(3) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of a purported failure to make a regulatory decision, where,

(a) a person suffers any form of harm or loss as a result of an act or omission of another person; and

(b) the person who suffered the harm or loss claims that the harm or loss resulted from any negligence in a purported failure to make a regulatory decision in respect of that other person.

Policy decisions

(4) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter.

Same, policy matters

(5) For the purposes of subsection (4), a policy matter includes,

(a) the creation, design, establishment, redesign or modification of a program, project or other initiative, including,

(i) the terms, scope or features of the program, project or other initiative,

(ii) the eligibility or exclusion of any person or entity or class of persons or entities to participate in the program, project or other initiative, or the requirements or limits of such participation, or

(iii) limits on the duration of the program, project or other initiative, including any discretionary right to terminate or amend the operation of the program, project or other initiative;

(b) the funding of a program, project or other initiative, including,

(i) providing or ceasing to provide such funding,

(ii) increasing or reducing the amount of funding provided,

(iii) including, not including, amending or removing any terms or conditions in relation to such funding, or

(iv) reducing or cancelling any funding previously provided or committed in support of the program, project or other initiative;

(c) the manner in which a program, project or other initiative is carried out, including,

(i) the carrying out, on behalf of the Crown, of some or all of a program, project or other initiative by another person or entity, including a Crown agency, Crown corporation, transfer payment recipient or independent contractor,

(ii) the terms and conditions under which the person or entity will carry out such activities,

(iii) the Crown’s degree of supervision or control over the person or entity in relation to such activities, or

(iv) the existence or content of any policies, management procedures or oversight mechanisms concerning the program, project or other initiative;

(d) the termination of a program, project or other initiative, including the amount of notice or other relief to be provided to affected members of the public as a result of the termination;

(e) the making of such regulatory decisions as may be prescribed; and

(f) any other policy matter that may be prescribed.

Definition, “regulatory decision”

(6) In this section,

“regulatory decision” means a decision respecting,

(a) whether a person, entity, place or thing has met a requirement under an Act,

(b) whether a person or entity has contravened any duty or other obligation set out under an Act,

(c) whether a licence, permission, certificate or other authorization should be issued under an Act,

(d) whether a condition or limitation in respect of a licence, permission, certificate or other authorization should be imposed, amended or removed under an Act,

(e) whether an investigation, inspection or other assessment should be conducted under an Act, or the manner in which an investigation, inspection or other assessment under an Act is conducted,

(f) whether to carry out an enforcement action under an Act, or the manner in which an enforcement action under an Act is carried out, or

(g) any other matter that may be prescribed.

Proceedings barred

(7) No proceeding may be brought or maintained against the Crown or an officer, employee or agent of the Crown in respect of a matter referred to in subsection (1), (2), (3) or (4).

Proceedings set aside

(8) A proceeding that may not be maintained under subsection (7) is deemed to have been dismissed, without costs, on the day on which the cause of action is extinguished under subsection (1), (2), (3) or (4).

Common law defences unaffected

(9) Nothing in this section shall be read as abrogating or limiting any defence or immunity which the Crown or an officer, employee or agent of the Crown may raise at common law.

No inference of policy matters as justiciable

(10) Nothing in this section shall be read as indicating that a matter that is a policy matter for the purposes of subsection (4) is justiciable.

[44] As noted earlier, the Amended Statement of Claim challenges the wisdom of the CMSA and its regulations in relation to the requirements for obtaining a General Licence. Had I not found that the claim in negligence should be struck as failing to plead the material facts required to support a claim in negligence, I would have found that s. 11(1) of the CLPA is applicable given that the regulatory terms of the licensing scheme reflect the exercise of a function of a legislative nature.

[45] Further, ss. 11(4), (7) of the CLPA provide that there is no cause of action in respect of a policy decision made in good faith and that no proceeding may be brought against the Crown or its agent in respect of such decisions. A policy decision includes the funding of a program and the manner in which it is carried out: CLPA, s. 11(5)(b)-(c). There is no allegation of bad faith. Accordingly, the claim in negligence against Ontario also fails as a result of the operation of s. 11(4) of the CLPA.

Issue #3: Should the Amended Statement of Claim be Struck on the Basis that they are Scandalous, Frivolous, Vexatious and/or an Abuse of Process?

[46] Rule 21.01(3)(d) of the Rules states that a party may move before a judge to strike a claim on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court.

[47] Rule 25.11 permits a court to strike out a pleading on the ground that it is scandalous, frivolous, or vexatious.

[48] In Currie v. Halton (Region) Police Services Board (2003), 233 D.L.R. (4th) 657 (Ont. C.A.), at paras. 14-17, the Court of Appeal for Ontario considered the meaning of the phrase “frivolous or vexatious or is otherwise an abuse of the process of the court” found in Rule 21.01(3)(d). A “frivolous” action lacks legal merit. A “vexatious” action is an action instituted without any reasonable ground such as an action that seeks to determine an issue which has already been determined by a court of competent jurisdiction. The doctrine of abuse of process “engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”. The Court of Appeal for Ontario concluded, at para. 17:

It is apparent that there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction.

[49] I accept the defendants’ submissions that many allegations in the Amended Statement of Claim amount to an abuse of the court’s process. The Amended Statement of Claim alleges facts that are irrelevant and sometimes scandalous. For instance, it states that:

• “The Defendants have delayed the court proceedings, bullied the plaintiff and told untruths to the Honourable Court.”;
• “[T]he 2016 report from the Auditor General identified that Ontario’s employment and training program were not effectively helping people find and keep full-time jobs […]”;
• “Key programs offered by Ontario – TCU are not effective in helping Ontarians find full-time employment. […]”;
• “With regard to training, the Ontario –TCU evaluates whether training delivery agents have the tools and resources to deliver courses when they are initially approved for funding, but any monitoring by Ontario – TCU after that point is complaint driven. […]”;
• “The Defendant, CMRAO, is the current regulating authority responsible for licenced residential property condominium managers, albeit extremely poorly”; and
• “In creating the Notice of Action, and Amended Statement of Claim, self-represented individuals are done a disservice by the legal profession as the self-represented individual needs to glean from whatever sources are available. […] However, the Defence has been reckless in trying to dismiss the lawsuit even before getting started. The Amended Statement of Claim makes crystal clear that the Plaintiff has a solid case.”

[50] Some hallmarks of a frivolous and vexatious claim are “[g]randiose claims, including claims for damages, usually in the millions, and relief that no reasonable person would expect to obtain”: Keizer v. Her Majesty the Queen in Right of Ontario, 2018 ONSC 5991, at para. 20. Much of the relief sought by the plaintiff meets this standard, including the dissolution of the CMRAO, the reduction of Humber’s budget by 25-60%, whistleblower damages, “complete criminal protection”, and protection under anti-SLAPP laws even though it is the plaintiff, not the defendants, who commenced this action.

Issue #4: Should the Plaintiff be Granted Leave Once Again to Amend the Amended Statement of Claim?

[51] This court has repeatedly told the plaintiff that his claim fails to plead the material facts required to support any of the causes of action that were asserted in the Statement of Claim. In my view, the plaintiff’s failure to communicate to the parties through the lengthy Amended Statement of Claim the basis for their alleged liability in a clear manner reflects the weakness of his claim. To once again grant leave to the plaintiff to amend the Amended Statement of Claim would not serve the interests of justice. I adopt the view expressed by Myers J. in Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127, at para. 52, that there is “no realistic sense that a credible lawsuit lies dormant [is] waiting to emerge” in this case.

Issue #5: Should there be a Stay of Proceedings Until the Plaintiff Pays the Outstanding Costs Orders?

[52] On April 4, 2019, Nakatsuru J. ordered that the plaintiff pay cost of $500.00 to Ontario and a further $500.00 in costs to the CMRAO. The plaintiff has not paid these costs. He believes that Nakatsuru J. declined to award costs, despite the plain wording of his Endorsement in Weinstein v. HMQ, 2019 ONSC 2133, which states, at para. 23:

[…] Thus, Mr. Weinstein shall pay Her Majesty the Queen in Right of Ontario and the Condominium Management Regulatory Authority of Ontario costs in the amount of $500 each, inclusive of disbursements and HST, payable within 30 days. The other Defendants shall bear their own costs.

[53] If I had not decided to strike the Amended Statement of Claim, I would have stayed this action until the plaintiff had complied with the costs Order made by Nakatsuru J.

Conclusions

[54] The Amended Statement of Claim is struck without leave to amend. While the plaintiff’s claim must be read generously, I find that it is plain and obvious that it has no reasonable chance of success. While he has pleaded several recognized causes of action, the plaintiff has not pleaded material facts to support his claim that any of the defendants are liable for any losses that he may have sustained as a result of his failure to be granted a General Licence under the CMSA.

[55] The CMRAO seeks $5,000.00 in costs. Canada seeks costs of $1,000.00. Humber and the YMCA claims costs of $1,500.00 each. These defendants are to be commended for working together to prepare joint materials and for, where appropriate, adopting positions taken by Ontario. Their claims are modest as these defendants have incurred costs much greater than the amounts claimed. Ontario claims $8,995.00 in partial indemnity costs. The plaintiff indicated that if he were successful, he would be seeking one half of the total amount of costs claimed by the defendants. In the alternative, the plaintiff submitted that each party should bear its own costs. Although it appears that the plaintiff remains unemployed, he offered no explanation regarding why he had not complied with Nakatsuru J.’s costs order.

[56] I find that it is fair and reasonable for the plaintiff to pay the costs claimed by the defendants. Accordingly, by March 30, 2020, the plaintiff shall pay: (1) costs of $5,000 to the CMRAO, inclusive of disbursements and taxes; (2) costs of $1,500 to Humber, inclusive of disbursements and taxes; (3) costs of $1,500 to the YMCA, inclusive of disbursements and taxes; and (4) costs of $8,995.00 to Ontario, inclusive of disbursements and taxes; (5) costs of $1,000 to Canada, inclusive of disbursements and taxes.

Mr. Justice M. D. Faieta Released: January 24, 2020