COURT FILE NO.: 422/03
DATE: 20050617
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
BETWEEN: JEFFREY E. STREISFIELD and LILLIAN STREISFIELD (personally and in her capacity as estate administrator of the estate of GERALD STREISFIELD, deceased)
Plaintiffs/Respondents
- and -
JEAN KARNOVSKY, MARVIN GOODMAN, CAROL GOODMAN, SHAUN GOODMAN, TARA ABRAMS (nee goodman), JOYCE LAWEE, DAVID LAWEE, MARK K. LAWEE, ROBERT A. WATSON, RONALD CARR, GOODMAN & CARR, barristers & solicitors, DERMOTT C.G. MOORE and LEONARD WEINSTEIN (in his capacity as estate trustee during litigation and the estate of the late dora herberman), and LINDA WATSON
Defendants/Appellants
BEFORE: The Honourable Mr. Justice O’Driscoll The Honourable Mr. Justice Day The Honourable Mr. Justice Cameron
COUNSEL: Timothy P.D. Bates, for the Appellants Jeffrey E. Streisfield, Acting in Person
HEARD AT TORONTO: June 2, 2005
E N D O R S E M E N T
DAY J.:
[1] The appellants (excluding Dermott C.G. Moore and Leonard Weinstein) appeal from the orders of the Honourable Mr. Justice Matlow, dated 27 June 2003 and 1 March 2004, dismissing the appellants’ motions to dismiss the plaintiffs’ action under Rule 21.01(3) and to strike out the plaintiffs’ Statement of Claim under Rule 21.01(1)(b). Leave to bring the within appeal to the Divisional Court was granted by the Honourable Mr. Justice Colin Campbell on 28 May 2004.
Background
[2] The plaintiffs were found by Carnwath J. to have been engaged in a scheme, in breach of their fiduciary duty to Dora Herberman, to obtain her assets and money in the trial of an action conducted on the estates list (the “Prior Action”). The plaintiffs appealed from the decision of Carnwath J. All appeals have been struck or dismissed. Leave to appeal to the Supreme Court of Canada has been denied.
[3] The plaintiffs commenced this action by Statement of Claim dated 18 March 2002 (the “Original Statement of Claim”). The Original Statement of Claim sought damages from those who opposed the plaintiffs, who counterclaimed and who succeeded in the Prior Action in addition to the children of those who opposed them in the Prior Action, and their lawyers. The original Statement of Claim alleged fraud and conspiracy, with its essence being that the plaintiffs should not have lost the Prior Action.
[4] The plaintiffs sought leave to file an amended Statement of Claim, which was granted by Rouleau J. His endorsement in this respect reads as follows: “The plaintiff is hereby granted leave to amend his Statement of Claim by June 2.” Nothing is said about adding a defendant, nor claiming declaratory relief pursuant to the Fraudulent Conveyances Act.
[5] The appellants brought a motion before Matlow J. to strike out the Statement of Claim under Rule 21.01(1)(b) as disclosing no cause of action and to dismiss the respondents’ action under Rule 21.01(3) as an abuse of process. On 27 June 2003, Matlow J. dismissed the appellants’ motion stating, “I am not persuaded that the Statement of Claim should be struck out or that the action should be dismissed for any of the reasons advanced.” The appellants argued that Matlow J. gave no reasons for dismissal and sought leave to appeal. The motion for leave to appeal to Divisional Court was adjourned by Colin Campbell J. on 1 October 2003 to allow the parties to re-attend before Matlow J. for clarification of his orders.
[6] The parties re-appeared before Matlow J. on March 1, 2004. He declined to expand on his initial endorsement as in his view it was sufficiently clear. On 28 May 2004 the parties again appeared before Colin Campbell J. who granted leave to appeal, finding that there was reason to doubt the correctness of the decision.
The Standard of Review
[7] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, [2002] S.C.J. No. 31 (QL), the Supreme Court of Canada addressed the standard of review, summarized at paras. 8, 10 and 28, sequentially as follows:
On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness: …
The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error” …
Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review [than for findings of fact] …
Findings
- The amended Statement of Claim is an abuse of process and should be struck
[8] The actual amended Statement of Claim was not specifically authorized by the leave order of Rouleau J. By the amendment effected at the counter on 26 May 2003, Jeffrey Streisfield sued Linda Watson, Robert Watson’s spouse. Rouleau J.’s leave order did not authorize adding a party. Jeffrey Streisfield had not asked Rouleau J. for the required order under Rule 5.03(4) to authorize suing someone new. No authority exists to enable suing someone new without notice “over the counter”. Amending “over the counter” to sue someone new is expressly prohibited by Rule 26.02(1) unless the plaintiff has obtained one of two things: an order granting leave to sue someone new, or written consent from the existing defendants and the new person to be sued. The amendments constitute abuse of the Court’s process and they should be struck.
[9] The fraud allegation in the Amended Statement of Claim against Watson and his wife should have been struck as disclosing no cause of action. The transfer impugned by the amendment took place in 1997, five years before this lawsuit began (2002) and six years before this amendment was effected (2003). What is alleged is untenable.
- The claims of Lillian Streisfield should be struck
[10] Lillian Streisfield has no capacity to sue on behalf of her late husband, Gerald Streisfield. This was clearly before the motions judge. Pursuant to Rule 15.02(1), Lillian Streisfield had no status to represent Gerald Streisfield in this action. This very issue was dealt with in the reasons for decision of the Court of Appeal where the Court confirmed that Rule 15.01(1) disentitled Lillian Streisfield to represent the estate.
- The plaintiffs entire action should be struck out as disclosing no cause of action
[11] A Statement of Claim alleging fraud, conspiracy, dishonesty and malice is required by sub-Rules 25.06(1) and 25.06(8) of the Rules of Civil Procedure to set out meaningful details of what is alleged. The plaintiffs’ Statement of Claim does not comply.
[12] The plaintiffs’ Statement of Claim sues the adversaries’ trial lawyer. A litigation lawyer owes no duty to his clients’ adversaries. In addition there exists no cause of action as claimed by the plaintiffs for breach of an undertaking to call a specified witness at trial.
[13] Even if the Statement of Claim is read generously, it is plain and obvious that no cause of action is pleaded. The Court will not entertain an action for damages constituting a “collateral attack” against a court order in another proceeding that has not been set aside.
[14] The application of res judicata is not restricted to those points argued and decided, but it also applies to all points that could have been raised. Since the plaintiffs’ Statement of Claim attempts to re-litigate their trial loss and attempts to complain about grounds that were or could have been raised earlier, it should be struck as an abuse of process. This is particularly so in light of the decision of the Court of Appeal of 14 May 2004 in which it upheld the finding of Carnwath J. in the Prior Action, that both Jeffrey Streisfield and Lillian Streisfield knowingly assisted in Gerald and Craig Streisfield’s breach of fiduciary duty to Dora Herberman.
Conclusion
[15] The appellants request that the orders of Matlow J. be set aside is hereby granted. The plaintiffs’ Statement of Claim is hereby struck out without leave to amend and the action is dismissed with costs. If the parties are unable to come to terms as to costs, we will entertain written submissions on costs within 20 days.
Day J.
O’Driscoll J.
Cameron J.
DATE: