Court of Appeal for Ontario

Date: 2019-02-27 Docket: C64957

Judges: Pepall, Trotter and Harvison Young JJ.A.

Between

Branko Arsenijevich Plaintiff (Appellant)

and

Adrian Garner (Badge #8155), Ontario Provincial Police, Her Majesty the Queen in Right of Ontario Defendants (Respondents)

Counsel

Branko Arsenijevich, acting in person

Colin Bourrier, for the respondents

Heard

February 7, 2019

On Appeal

On appeal from the order of Justice C. Stephen Glithero of the Superior Court of Justice, dated January 15, 2018.

Reasons for Decision

[1] The appellant appeals from an order striking out his statement of claim as disclosing no reasonable cause of action and dismissing his action.

[2] The action was commenced on October 2, 2015. The appellant claimed punitive damages, travel expenses, interest, and costs allegedly arising from the stopping, and subsequent detainment and impoundment of his vehicle by an OPP officer. He asserted that the respondents had breached his rights as guaranteed by s. 1(a) of the Canadian Bill of Rights, S.C. 1960, c. 44.

[3] On its face, the pleading is wholly deficient. On three or four occasions counsel for the respondents advised the appellant of the deficiencies. On December 17, 2015, counsel for the respondents wrote to the appellant encouraging him to seek legal advice and to consider discontinuing his action. The appellant did not respond and did not amend his pleading. Ultimately, the respondents successfully moved to strike out the claim under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[4] On October 18, 2018, the appellant sought and was granted an adjournment to permit him to retain counsel for this appeal. No counsel appeared on his behalf at the hearing before this court and he proceeded as a self-represented litigant.

[5] In striking out the statement of claim and dismissing the action, the motion judge applied the correct test. He recognized that the statement of claim fails to plead any material facts in support of the purported Canadian Bill of Rights breach and the theft allegation. There is nothing in the pleading that suggests that the respondents were acting outside the scope of their authority in stopping the appellant and causing the vehicle to be towed.

[6] The motion judge correctly concluded that the OPP is not a legal entity capable of being sued: see McNabb v. Ontario (Attorney General) (2000), 50 O.R. (3d) 402 (S.C.), at paras. 25-30. He also correctly concluded that the appellant's claim, on its face, was incapable of success and that the action should be dismissed. We would note that this court upheld the dismissal of a claim mirroring the appellant's on the basis that it lacked legal merit and was frivolous and vexatious: see Corsi v. Skanes, 2018 ONCA 661, 33 M.V.R. (7th) 252.

[7] Although not raised at any stage in this action, we do note that the respondents had filed a statement of defence before bringing their motion to strike under r. 21.01(1)(b). Generally, a defendant should move to strike a claim as disclosing no reasonable cause of action prior to delivery of a statement of defence: Brozmanova v. Tarshis, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 26. However, where as in this case, the statement of claim is so facially deficient and largely incomprehensible, this step by the respondents is not fatal. In addition, it is evident from the contents of their pleading that the respondents took issue with the legal sufficiency of the appellant's claim. Moreover, the motion judge's determination was in keeping with the direction in r. 1.04 of the Rules of Civil Procedure that the rules "be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits".

[8] The motion judge did not grant the appellant leave to amend. He noted that the appellant had ample opportunity to amend his pleading but had failed to do so. We see no reason to interfere with his disposition.

[9] Lastly, we see no error in the motion judge's conduct of the proceedings before him. He was correct that in the Superior Court of Justice, the appellant may either represent himself or be represented by counsel: Rules of Civil Procedure, r. 15.01(3). This is unlike proceedings under the Provincial Offences Act, R.S.O. 1990, c. P. 33 in the Ontario Court of Justice where a defendant may act personally or by "representative" (as defined in s. 1(1) of the Provincial Offences Act), such as in the case of R. v. Allahyar, 2017 ONCA 345, 138 O.R. (3d) 233. The appellant's friend was welcome to attend at the Superior Court of Justice with the appellant but could not be his representative before that court and therefore could not make submissions on his behalf.

[10] For these reasons, the appeal is dismissed with costs to be paid by the appellant to the respondents fixed in the amount of $1,000 inclusive of disbursements and applicable tax.

"S.E. Pepall J.A."

"G.T. Trotter J.A."

"Harvison Young J.A."

[1] "Any other party to a proceeding may act in person or be represented by a lawyer": r. 15.01(3).