COURT OF APPEAL FOR ONTARIO

CITATION: Chowdhury v. Bangladeshi-Canadian Community Services, 2015 ONCA 844

DATE: 20151204

DOCKET: C60609

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

MD Ahasanullah Chowdhury

Plaintiff

(Appellant)

and

Bangladeshi-Canadian Community Services, Business #866914013RR0001,

City of Toronto, Toronto Community Housing Corporation, Toronto Police Services Board, Doctor Abu Shamim MD Arif, Alam Moral, and Warden Woods Church and Community Centre, Business #108190315RR0001

Defendants

(Respondents)

MD Ahsanullah Chowdhury, acting in person

Nasima Akter, (agent) for the respondent Bangladeshi-Canadian Community Services

David Tortell, for the respondents City of Toronto/Toronto Police Services

Orna Raubfogel, for the respondent Toronto Community Housing Corporation

Paul J. Davis, for the respondent Dr. Abu Arif

Jayanta K. Singha, for the respondent Alam Moral

Simon A. Clements, for the respondent Warden Woods

Heard: November 27, 2015

On appeal from the orders of Justice Kelly P. Wright of the Superior Court of Justice, dated May 26, 2015, with reasons reported at 2015 ONSC 3903.

ENDORSEMENT

[1] The appellant appeals from orders of the motions judge striking his statement of claim against all seven respondents without leave to amend. The allegations against some of the respondents include invasion of privacy, harassment, and torture, among other things. Six of the respondents were sued for $1 million in damages each. The City of Toronto was sued for $10 million in damages.

[2] Concerning the respondent Toronto Community Housing (TCH), the motions judge also set aside a noting in default, finding that the respondent TCH acted in good faith at all times and made clear its intention to defend the matter from the outset; that the appellant acted in bad faith from the outset; that the respondent TCH would suffer serious prejudice if the noting in default were not set aside; and that the appellant would suffer no prejudice. The motions judge found, further, that the appellant’s allegations are either beyond the jurisdiction of the court or completely lacking in evidentiary foundation and nonsensical, and that the entire claim is frivolous, vexatious, and an abuse of process.

[3] Concerning the City of Toronto and the Toronto Police Services Board, the motions judge found that the various allegations are beyond the jurisdiction of the court, have no basis in law, or are completely unsupported, and are inflammatory, frivolous, vexatious, and an abuse of process.

[4] Concerning the respondent Dr. Abu Arif, the motions judge found that the claim was discoverable in 2011 and that the action was not commenced until 2014, outside the two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. She also found that the pleadings fail to disclose any reasonable cause of action against Dr. Arif, have no reasonable prospect of success, and are nonsensical, outrageous, and unsupported. The allegations are scandalous, frivolous, vexatious, and/or an abuse of process.

[5] Concerning the respondent Alam Moral, the motions judge found that the appellant was properly served with the materials in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. She found, further, that the appellant’s claims are so vague and nonsensical that it would be impossible for the respondent to reply. The bald and baseless allegations are frivolous, vexatious, and an abuse of process.

[6] Concerning the respondent Warden Woods Church and Community Centre, the motions judge found that the acts alleged by the appellant do not give rise to a recognized cause of action and that the acts could not be attributed to the respondent in any event. She found, further, that the allegations are completely and totally nonsensical, lack an evidentiary foundation, and are without merit and that the action is frivolous, vexatious, and an abuse of process.

[7] Finally, concerning the respondent Bangladeshi-Canadian Community Services, the motions judge found the appellant’s claim to be indecipherable and so vague and nonsensical that it would be impossible for the respondent to reply. The allegations are bald and baseless, frivolous, vexatious, and an abuse of process.

[8] The motions judge’s decision to set aside the noting in default against the respondent TCH follows the test set out by this court in Intact Insurance Company v. Kisel, 2015 ONCA 205, 125 O.R. (3d) 365, and there is no basis to interfere with it.

[9] Although the motions judge did not specify the rules under which she was acting in each of her decisions, we are satisfied that it was appropriate to strike all of the various pleadings on either or both of two bases.

[10] First, under r. 21.01(1)(b) it was appropriate to dismiss those claims that pleaded no reasonable cause of action. A plaintiff must plead all of the elements required for a recognized cause of action and must plead all the facts required to establish the cause of action. Although a court is required to read a statement of claim generously on a motion to dismiss, it need not accept the allegations pleaded allegations if they are patently ridiculous or incapable of proof. The claims could not possibly succeed and could not be saved by amendment.

[11] Second, it was appropriate for the motions judge to strike all of the claims under r. 25.11(b) without leave to amend. Her conclusion that the claims are frivolous, vexatious, or an abuse of process is amply supported by the record.

[12] Accordingly, the appeal is dismissed.

[13] None of the parties sought costs and none are ordered.

“George R. Strathy C.J.O.”

“H. S. LaForme J.A.”

“Grant Huscroft J.A. ”