COURT FILE NO.: CV-10-409755

DATE: 20120 207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nikolaus Wolf, Plaintiff

AND:

Her Majesty the Queen in right of Ontario represented by the Attorney General of Ontario and the Minister of Community Safety and Corrections, the Public Guardian and Trustee, William (Bill) Officer Couldridge, Sharyn Williams, John Williams, Wayne Williams (AKA Wayne William), Ontario Parole and Earned Released Board, John A. McCullough, Donald Bur, Dermott Moore, Randy McCunn, Kevin Sisk, Julian Fantino, Fred Graham, Michael Flosman, Defendants

BEFORE: Pollak J.

COUNSEL: Nikolaus Wolf , self-represented

Jeremy Glick/Nadia Laeeque , for the Defendants Her Majesty the Queen in right of Ontario represented by the Attorney General of Ontario and the Minister of Community Safety and Corrections, the Public Guardian and Trustee, William (Bill) Officer Couldridge, Ontario Parole and Earned Released Board, John A. McCullough, Donald Bur, Dermott Moore, Randy McCunn, Kevin Sisk, Julian Fantino, Fred Graham, Michael Flosman

HEARD: June 27, 2011, September 23, 2011 and December 16, 2011

ENDORSEMENT

[ 1 ] On April 18, 2011, Justice Lederman granted a consent order to dismiss the claim against the Ontario Parole and Earned Release Board, John A. McCullough, Donald Bur, Dermott Moore, Randy McCunn, Kevin Sisk, Julian Fantino, Fred Graham, and Michael Flosman.

[ 2 ] The action continues against Her Majesty the Queen in right of Ontario, the Public Guardian and Trustee (“PGT”), and Officer Couldridge (the “Crown Defendants”). Sharyn Williams, John Williams, Wayne Williams (AKA Wayne William) (the “Williams Defendants”) have not been served by the Plaintiff. Sharyn Williams and John Williams appeared at the hearing in this matter on June 27, 2011.

[ 3 ] The Crown Defendants submit that Mr. Wolf’s claim alleges a number of causes of action against them, including malicious prosecution, negligence, and breach of statutory duty or variations of these torts. It is submitted that in the balance of the Claim, Mr. Wolf makes bald allegations that do not constitute a legal cause of action.

[ 4 ] The Crown Defendants move pursuant to rules 21.01(1) (b), 21.01(3) (d), 25.11 (b) and 25.11(c) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, for an order dismissing Mr. Wolf’s action against them on the grounds that:

(a) the claim discloses no reasonable cause of action;

(b) the claim is vexatious; and

(c) the claim is an abuse of process.

[ 5 ] They submit that:

(i) Mr. Wolf cannot meet the test for the tort of malicious prosecution as he was convicted of the offence with which he was charged. This conviction is the foundation of his malicious prosecution and wrongful imprisonment claim;

(ii) Mr. Wolf’s claim is an abuse of process. Mr. Wolf is attempting to relitigate the underlying facts of his criminal proceedings and is therefore collaterally attacking decisions of the Superior Court of Justice and the Court of Appeal. With respect to the allegations against the PGT that relate to ongoing litigation, Mr. Wolf’s complaints should have been raised on an appeal of those decisions;

(iii) there is no private law duty of care between the PGT and Mr. Wolf;

(iv) there is no private law duty of care with respect to policy decisions; and

(v) with respect to the remainder of Mr. Wolf’s Claim, it does not plead material facts that give rise to a reasonable cause of action and it is scandalous and vexatious.

[ 6 ] For this motion, Crown Defendants accept the facts set out in the Claim as true, pursuant to Rule 21, except to the extent that the facts are incapable of proof.

[ 7 ] Mr. Wolf opposes all of the arguments and submissions made by the Crown Defendants.

[ 8 ] Mr. Wolf was convicted of one count of fraud on October 13, 2004 and sentenced to eighteen months’ imprisonment and a restitution order in the amount of $22,500. His incarceration was followed by eighteen months of probation.

[ 9 ] Mr. Wolf was incarcerated at the Central North Correctional Centre (“CNCC”) in Penetanguishene, from October 13, 2004 until December 10, 2004. Mr. Wolf was released on bail pending appeal, and then further incarcerated from April 27, 2008 until November 2008.

[ 10 ] His conviction and sentence were upheld by the Court of Appeal.

[ 11 ] The PGT was appointed as Ms. Menzel’s interim guardian of property on September 9, 2003. Ms. Menzel is an acquaintance of Mr. Wolf. The PGT conducted a series of investigations and litigation with respect to Ms. Menzel’s property, pursuant to their statutory duties, some of which remain outstanding.

[ 12 ] The Crown Defendants submit that the issues on this motion are:

(a) Does the Claim disclose a reasonable cause of action as against the Crown defendants?

(b) Is the Claim an abuse of process?

A. The Claim Fails to Disclose a Reasonable Cause of Action

The Test for Striking out a Statement of Claim

[ 13 ] Rule 21.01(1)(b) provides that a judge may strike out a pleading that discloses no reasonable cause of action. It must be shown that it is “plain and obvious” that the Claim cannot succeed.

[ 14 ] This test will be met where:

(i) a plaintiff pleads allegations that do not give rise to a recognized cause of action;

(ii) a plaintiff fails to plead a necessary element of a recognized cause of action;

(iii) the allegations in the pleading are conjecture, assumptions or speculation unsupported by material facts, or where, in other instances, mere conclusions of law are asserted.

[ 15 ] If the allegations in a Claim do not give rise to a recognized cause of action the proper remedy is to strike the claim. Leave to amend should not be granted because the defect in the claim cannot be cured by amendment.

The Claim Against Officer William Couldridge (“Officer Couldridge”) Should be Struck

[ 16 ] It is submitted that Mr. Wolf’s claim against Officer Couldridge fails to disclose a reasonable cause of action and is an abuse of process. First, it is argued that Mr. Wolf cannot establish the required elements of the tort of malicious prosecution. Secondly, it is argued that Mr. Wolf is attempting to relitigate the facts relevant to his criminal proceedings.

The Claim Fails to Disclose a Reasonable Cause of Action

(i) The Tort of Malicious Prosecution

[ 17 ] It is submitted that on a generous reading of the pleading, Mr. Wolf alleges the tort of malicious prosecution against Officer Couldridge. Mr. Wolf claims Officer Couldridge’s prosecution was motivated by malice. It is argued that to properly plead the tort of malicious prosecution, Mr. Wolf must set out both the elements of the tort, and material facts that would support that cause of action. Officer Couldridge submits that Mr. Wolf has not done so.

[ 18 ] To establish the tort of malicious prosecution, Mr. Wolf must prove:

(i) Officer Couldridge initiated or proceeded with the prosecution;

(ii) that the prosecution ended in Mr. Wolf’s favour, by means of an acquittal or stay or withdrawal of the charges;

(iii) that there was no reasonable and probable cause to continue the prosecution; and

(iv) that Officer Couldridge was motivated by malice.

[ 19 ] Mr. Wolf was convicted of the offence with which he was charged and the conviction was upheld on appeal. On this basis alone, it is submitted that Mr. Wolf’s claim in malicious prosecution against Officer Couldridge must fail and ought to be struck as disclosing no reasonable cause of action. I agree with this submission.

(ii) Unjust Imprisonment and False Arrest

[ 20 ] In order to succeed in his claim for wrongful imprisonment and false arrest, Mr. Wolf must prove that he was detained without lawful authority. If the arrest and imprisonment are lawful, the cause of action cannot be made out. The arrest is considered lawful when made on reasonable grounds.

[ 21 ] It is submitted that as Mr. Wolf was convicted of the offence with which he was charged, he cannot establish that the convictions and sentences imposed were unlawful, and instituted without reasonable grounds. The conviction confirms that the arrest and imprisonment were lawful. Further, it is also submitted that Mr. Wolf’s allegations of unjust imprisonment and false arrest are another collateral attack of the dispositions of the criminal matter. Claims which collaterally attack the dispositions of another court proceeding should be struck.

[ 22 ] I agree with the submission that Mr. Wolf’s claim against Officer Couldridge with respect to the false arrest and unjust imprisonment fail to disclose a reasonable cause of action, as it is plain and obvious that they cannot succeed, and should therefore be struck.

The Claims against the Minister of Community Safety and Corrections (“Ontario”) Should be Struck

The Claim Fails to Disclose a Reasonable Cause of Action

[ 23 ] In Mr. Wolf’s claims against Ontario, several allegations are made with respect to the conditions and policies of the Central North Correctional Centre (“CNCC”). He claims he had to pay money to his cell-mate’s girlfriend, and alleges that he was deprived of necessary and essential needs. It is submitted that these allegations cannot be the basis for a cause of action known at law.

[ 24 ] Mr. Wolf makes further allegations that relate directly to policy decisions of Ontario. For example, Mr. Wolf claims that none of the cells at the CNCC provided ‘panic’ buttons, and that the institution maintained extended periods of ‘lockdowns.’ At paragraph 89(l) of the Claim, Mr. Wolf comments on the number of telephones provided to inmates. Mr. Wolf also takes issue with the meals provided, eating utensils, mattresses, recreational programs and shower arrangements.

[ 25 ] It is submitted that these allegations, if proven, cannot establish an identifiable cause of action. If the claim is read generously, Mr. Wolf’s claim against Ontario may be in negligence. For Mr. Wolf to succeed in a claim of negligence, it is argued that he must establish that there is a private law duty of care that Ontario owed to Mr. Wolf in the circumstances of this case. He must identify a reason from a statute, and establish proximity between the parties. The court would then have to consider whether there are residual policy reasons why a duty of care should not be imposed in the circumstances of this case.

[ 26 ] Ontario relies on the two-step analysis set out by the House of Lords in Anns v. Merton London Borough Council [1] and adopted by the Supreme Court of Canada in Cooper v. Hobart , [2] which is required to establish a private duty of care owed by a public authority:

At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.

[ 27 ] An important function of the Anns test is to ensure that policy decisions are not second-guessed by reviewing courts:

While I think this is an argument which cannot be dismissed lightly, I believe that the decision in Anns contains its own built-in barriers against the flood. For example, the applicable legislation or the subordinate legislation enacted pursuant to it must impose a private law duty on the municipality or public official before the principle in Anns applies . Further, the principle will not apply to purely policy decisions made in the bona fide exercise of discretion. This is, in my view, an extremely important feature of the Anns principle because it prevents the courts from usurping the proper authority of elected representatives and their officials. [Emphasis added.]

Kamloops (City) v. Nielsen, 1984 21 (SCC) , [1984] 2 S.C.R. 2 at p. 25 .

[ 28 ] Mr. Wolf has argued that in cases involving allegations against a corrections officer or prison authority for the failure to protect an inmate from harm, a direct relationship with inmates is established, such that a duty to take reasonable care for the safety of a person in their custody can arise. However, in this case, the allegations are made against the administration of the facility, and the policies that were in place at the time of incarceration.

[ 29 ] The Crown Defendants rely on jurisprudence [3] that establishes that a private law duty of care cannot be imposed on government policy decisions involving the consideration of financial, social or political factors or constraints such as budgetary allotments. Decisions regarding the allocation of scarce resources are left for the legislature.

[ 30 ] Reference is made to the case of Just v. British Columbia [4] wherein the Supreme Court of Canada explained the characterization of policy decisions that exempt government agencies from duties of care:

As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption. Alternatively, the exemption may arise as a result of the nature of the decision made by the government agency. That is, a government agency will be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions.

In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of such a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that a policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion.

[ 31 ] Mr. Wolf claims that the he was placed in unsanitary conditions, without the benefit of programs, and without proper surveillance. He complains about the ‘Unit’ he was placed in, and who was placed in there with him. The Crown Defendants submit that our courts have held that decisions made with respect to the types of custody are true policy decisions that do not establish a duty of care. They refer to the case of Coumont v. Canada (Correctional Services) , [5] which held that:

While unfortunate, the jurisprudence clearly indicates that the decision to provide three types of custody (segregation, protective custody, and general population) may be characterised as a “true policy decision” and is immune from the application of negligence law .

[ 32 ] It is submitted that Mr. Wolf’s claims with respect to the types of meals, the number of phones, the lack of panic buttons, the lack of suitable recreational activities, the conditions of the facility and his placement with the general inmate population, relate to decisions made based on budgetary constraints and considerations, and are ‘true policy’ decisions. The courts have consistently held that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints.

[ 33 ] I agree that to the extent that Mr. Wolf’s Claim relates to policy decisions, it fails to disclose a reasonable cause of action. I also agree that the remainder of Mr. Wolf’s Claim against Ontario cannot support a valid cause of action. On this basis, Mr. Wolf’s Claim fails to disclose a reasonable cause of action against the Ontario Defendants, and is therefore struck.

The Claims Against the Public Guardian and Trustee Should be Struck

The Claim Fails to Disclose a Reasonable Cause of Action

[ 34 ] The claim against the PGT is based on negligence and malicious prosecution. Mr. Wolf alleges that the PGT assisted with the initiation of fraud investigations by Officer Couldridge, and that the PGT was negligent in the performance of its duties.

(i) Malicious Prosecution

[ 35 ] Mr. Wolf alleges that the PGT collaborated with Officer Couldridge to commence investigations that led to his false arrest and convictions. As I have already found above, the second element of the test for malicious prosecution requires Mr. Wolf to establish that the prosecution against him failed.

[ 36 ] I have found above that Mr. Wolf was convicted of the offence with which he was charged, which was upheld on appeal by the Court of Appeal. [6] His claim for malicious prosecution against the PGT is struck as it discloses no reasonable cause of action.

(ii) Negligence

[ 37 ] It is submitted that Mr. Wolf does not plead the necessary elements to establish a cause of action in negligence. Without establishing a private law duty of care, there can be no reasonable cause of action for negligence against the PGT. Further, the Statement of Claim contains no material facts upon which a court could find that the PGT owed Mr. Wolf a private law duty of care.

[ 38 ] I agree that in this case, the PGT has a fiduciary duty to Ms. Menzel, pursuant to the Substitute Decisions Act, 1992 , S.O. 1992, c. 30, and acts in the interest of Ms. Menzel by managing her property, but no private duty of care to Mr. Wolf.

Substitute Decisions Act , 1992, S.O. 1992, c. 30

[ 39 ] In the alternative, Mr. Wolf alleges that the PGT were negligent in the performance of their duties with respect to the assets of Ms. Menzel. It is submitted Mr. Wolf does not have any standing to commence an action on behalf of Ms. Menzel. As such, it is plain and obvious that Mr. Wolf’s claims as against the PGT cannot succeed as they fail to disclose a reasonable cause of action. Mr. Wolf’s claims as against the PGT should therefore be struck. I agree with these submissions. The claims against the PGT are therefore struck.

Conspiracy

[ 40 ] The Crown Defendants submit that the Claim does not disclose a reasonable cause of action in conspiracy.

[ 41 ] It is submitted that Mr. Wolf may plead conspiracy only if the fact of combination creates civil wrong which does not exist when an individual acts alone.

[ 42 ] In this case, the liability of Officer Couldridge and the PGT does not depend on whether they acted singly or together.

[ 43 ] They also submit that Mr. Wolf’s claim of conspiracy is merged in the underlying tort of malicious prosecution.

[ 44 ] Mr. Wolf must plead the elements of the tort of conspiracy, which are:

(a) an agreement between two or more persons to perform specific acts to injure Mr. Wolf;

(b) that the defendants acted in furtherance of that agreement;

(c) the main purpose of such agreement is to injure Mr. Wolf;

(d) Mr. Wolf was injured as a result of the conspiracy.

[ 45 ] As an alternate argument, it is submitted that Mr. Wolf does not plead particulars that would support a reasonable cause of action in conspiracy. This can be dealt with by a Master, if necessary.

The Conspiracy Allegations in Mr. Wolf’s Claim

[ 46 ] Mr. Wolf makes the following allegations of conspiracy:

(a) At paragraph 1(d) he seeks damages against Officer Couldridge for “conspiracy to use the Criminal Courts in an effort to extort funds from the Plaintiff”.

(b) At paragraph 1(e), he alleges that the PGT conspired with Officer Couldridge to maliciously prosecute him.

(c) At paragraph 4 of the Claim, Mr. Wolf makes a conspiracy claim against the Williams Defendants and alleges that Officer Couldridge conspired with the Williams Defendants to fabricate a family business to justify the laying of charges against him.

(d) He alleges that charges were laid against him for the purposes of compelling payment to Sharyn Williams. He alleges that Officer Couldridge fabricated facts and evidence to justify laying charges, and appears to allege that Officer Couldridge assisted the Williams Defendants with their own alleged conspiracy.

(e) At paragraph 50, he alleges that Officer Couldridge’s cooperation with the Williams Defendants amounted to malicious prosecution.

(f) It appears that Mr. Wolf is alleging that Officer Couldridge conspired with the Williams Defendants to lay charges against him, and to maliciously prosecute him.

Merger Doctrine

[ 47 ] The Crown Defendants rely on the doctrine of merger, wherein the act that is alleged to constitute the conspiracy is itself a recognized tort – in this case, the tort of malicious prosecution.

[ 48 ] It is submitted that Mr. Wolf does not plead any facts in support of the alleged conspiracy that are additional to or different from the facts pleaded in support of the claim of malicious prosecution. Conspiracy may be pleaded as a stand-alone tort only where the conspirators stop short of committing the tort which is the object of the conspiracy. Once the object tort is committed, the doctrine of merger is applied with the result that the conspiracy is merged with the tort that is committed; that is, the claim for conspiracy becomes redundant.

[ 49 ] The Crown Defendants rely on the case of Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd . (1991), 1991 7050 (ON SC) , 3 O.R. (3d) 684, wherein the court applied the merger principle of pleading to strike out a claim of conspiracy to commit a tort when that tort already formed a part of the claim. It is submitted that as it adds nothing to the pleading to claim both conspiracy to commit a tort and the tort itself, the conspiracy claim is to be struck out.

[ 50 ] It is therefore submitted that the tort of conspiracy is merged with the tort of malicious prosecution. Therefore, any alleged injuries and damages sustained by Mr. Wolf are subsumed by the other torts as pleaded. As such, the claim for conspiracy is irrelevant and redundant, and should be struck out.

[ 51 ] It is also submitted that as Mr. Wolf does not plead facts to substantiate damages resulting from the conspiracy (separate from the damages claimed to have resulted from the tort that is alleged to be the object of the conspiracy, here, the malicious prosecution), the conspiracy itself is irrelevant and not actionable. The Crown Defendants rely on the court’s decision in Aristocrat Restaurants Ltd. v. Ontario , [2003] O.J. No. 5331, at para. 41 , [7] wherein it was stated: “The pleading must allege damages resulting from the conspiracy that are separate and distinct from those allegedly suffered as a result of the tort itself.”

[ 52 ] I agree with the submissions made by the Crown Defendants that the conspiracy claims of Mr. Wolf should be struck out. It is therefore unnecessary to deal with the alternate argument of the Crown Defendants with respect to the breach of rule 25.06(8) regarding the pleadings.

B. Is Mr. Wolf’s Claim an Abuse of Process and Collateral Attack?

[ 53 ] Further, the Crown Defendants also submit that the majority of Mr. Wolf’s Claim is an abuse of process. Specifically, the allegations that Mr. Wolf makes in his claim with respect to the PGT and Officer Couldridge, represent attempts to both relitigate the underlying facts of valid and binding decisions of courts and an administrative board as well as to collaterally attack those decisions. On this basis, the allegations against these defendants ought to be struck.

Collateral Attack and Abuse of Process

[ 54 ] The Crown Defendants submit that the doctrine of collateral attack prevents Mr. Wolf from challenging or undermining the previous orders issued by a court or administrative tribunal. They rely on the Supreme Court of Canada in Garland v. Consumers’ Gas Co ., 2004 SCC 25 , [2004] 1 S.C.R. 629, at paras. 71-72 , wherein the court states:

The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal (see Toronto (City) v. C.U.P.E., Local 79 , [2003] 3 S.C.R. 77 , 2003 SCC 63 ; D. J. Lange, The Doctrine of Res Judicata in Canada (2000), at pp. 369-70 ). Generally, it is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it (i.e., appeal or judicial review). In Wilson v. The Queen , 1983 35 (SCC) , [1983] 2 S.C.R. 594 , at p. 599, this Court described the rule against collateral attack as follows:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally -- and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

[T]he collateral attack cases all involve a party, bound by an order, seeking to avoid the effect of that order by challenging its validity in the wrong forum. In this case, the appellant is not bound by the Board's orders, therefore the rationale behind the rule is not invoked. The fundamental policy behind the rule against collateral attack is to “maintain the rule of law and to preserve the repute of the administration of justice” ( R. v. Litchfield , 1993 44 (SCC) , [1993] 4 S.C.R. 333 , at p. 349). The idea is that if a party could avoid the consequences of an order issued against it by going to another forum, this would undermine the integrity of the justice system. Consequently, the doctrine is intended to prevent a party from circumventing the effect of a decision rendered against it.

[ 55 ] The Crown Defendants also rely on the doctrine of abuse of process, which prevents parties from relitigating the facts underlying the binding decisions of courts and tribunals. In Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77 , at para. 37 , Madam Justice Arbour stated on behalf of the court:

In the context that interests us here, 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 ... bring the administration of justice into disrepute” ( Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA) , 51 O.R. (3d) 481 (C.A.), at para. 55 , per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63 )). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

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. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite , [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.) .

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.

The doctrine of abuse of process prohibits relitigation in circumstances where the strict requirements of issue estoppel are not met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice.

The Claim Against Officer Couldridge is a Collateral Attack and Abuse of Process

[ 56 ] The Crown Defendants further submit that the allegations against Officer Couldridge are a collateral attack on the decisions of Justice Howden of the Superior Court of Justice and of the Court of Appeal in Mr. Wolf’s criminal proceeding. Further, they are also an abuse of process as they represent an attempt by Mr. Wolf to relitigate the underlying facts of each of the two decisions.

[ 57 ] Mr. Wolf was convicted of one of the offences for which he was charged. His appeal from this conviction to the Court of Appeal was dismissed. Mr. Wolf claims that he was wrongfully convicted and that the conduct of the defendants led to his wrongful conviction. It is submitted that these claims, including allegations of “false arrest, malicious prosecution, obstruction of justice, fabrication of evidence, perjury and conspiracy to use the Criminal Courts in an effort to extort funds from Mr. Wolf” are all collateral attacks on the correctness of those two decisions. In the alternative, the allegations made by Mr. Wolf in this proceeding are attempts to relitigate the factual circumstances underlying his conviction. In either case, Mr. Wolf’s claim in this regard is an abuse of process and ought to be struck. I agree with this submission and find that these claims against Officer Couldridge should be struck.

The Claim Against the PGT is a Collateral Attack and Abuse of Process

[ 58 ] It is submitted that Mr. Wolf’s Claim as against the PGT is also a collateral attack on the decisions of the Superior Court of Justice and the Court of Appeal in his criminal proceeding, as well as the decisions of the courts in the litigation referred to in the Claim. It is alleged that Mr. Wolf is attempting to seek a remedy through a parallel court proceeding.

[ 59 ] In the alternative, it is submitted that the allegations attempt to relitigate the underlying circumstances of his conviction and are therefore an abuse of process. I also agree with these submissions.

[ 60 ] Further, it is submitted that the remaining allegations against the PGT ought also to be struck as Mr. Wolf’s Claim in this regard represents a collateral attack on the decisions in a number of collateral civil proceedings. It is alleged that Mr. Wolf seeks to relitigate the facts underlying the decisions in those collateral proceedings. In the alternative, they are an abuse of process.

[ 61 ] Mr. Wolf seeks the following relief against the PGT at paragraph 1 of the Statement of Claim :

1. Mr. Wolf, Nikolaus Wolf, (hereinafter referred to as “Wolf”) claims as follows:

(d) In reference to the Defendant, the Public Guardian and Trustee, Wolf claims the return of the amount of $15,000.00 paid to the Public Guardian and Trustee wrongfully and under duress by the solicitor for Wolf in January 2008 from mortgage proceeds on the residence of Wolf at 16 Windham Drive and pursuant to a default judgment obtained by the Defendant, (hereinafter referred to as “PGT”) by misrepresentation and contrary to the Rules of Civil Procedure and the principles of fundamental justice.

(e) Wolf furthermore claims for an Order setting aside the default Judgment obtained by the PGT in November 2008 against Wolf in the amount of $138,000.00 and $20,000.00 in punitive damages plus costs in a case under Court File Number 05-CV 299478 PD2.

(f) Wolf furthermore claims from this Honourable Court an Order directing the Defendant PGT to pay to Wolf forthwith the sum of $22,500.00 which amount is specified as restitution in the Judgment of Mr. Justice Howden in his decision of October 14, 2004 in the proceedings R. v. Wolf as furthermore stated therein. The file number for this matter is C42596 M31992.

e) Further damages in the amount of ONE MILLION DOLLARS ($1,000,000.00) against Her Majesty the Queen in right of Ontario, PGT, Donald Bur, Dermott Moore, and Randy McCunn for, inter alia , … abuse of the judicial process by falsely obtaining and enforcing a Default Judgment against Wolf and alleging publicly unsubstantiated allegations of fraud against Wolf, misfeasance in failing to rectify their wrongful conduct when true facts emerged relevant to the claim against Wolf by setting aside the Default judgment when demanded by Wolf on many occasions, and slanderous and false allegations of fraud against Wolf. Also included in this prayer for relief are damages for failing to provide an accounting of income and expenses and failing to make payment to wolf for expenses properly incurred by Wolf on the properties of Menzel.

[ 62 ] It is clear from the relief sought that Mr. Wolf seeks to reverse court orders that have been made in previous proceedings. As well, the PGT submits that in paragraphs 60-84 of the Claim, Mr. Wolf describes his version of history of the collateral litigation with the PGT. It is argued that paragraph 1 and paragraphs 60-84 of the Claim show that Mr. Wolf is attempting to relitigate the issues in at least two collateral civil proceedings: the proceedings in 05-CV-299478PD2 and the proceedings in 06-CV-313006PD1.

[ 63 ] I agree with the above submissions that this represents an impermissible collateral attack on the orders in those decisions. These parts of Mr. Wolf’s claim are struck out on such basis.

C. Mr. Wolf’s Claim is Vexatious

[ 64 ] As I have already found that Mr. Wolf’s Claim is struck out against the Crown Defendants, it is not necessary to address this argument.

DECISION

[ 65 ] I therefore grant the Crown Defendants’ request for an Order striking out the Statement of Claim and dismissing the action against the Crown Defendants.

COSTS

[ 66 ] Both parties submitted costs as follows:

(a) Mr. Wolf has asked for Costs in the amount of $250 all inclusive;

(b) The Crown Defendants provided submissions for Costs in the amount of $1,000.

[ 67 ] As the Crown Defendants have been successful, an award of costs is appropriate.

[ 68 ] I have considered the submissions of the parties, and I have taken into account the factors set out in Rule 57.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. I am required to award costs that are reasonable and fair. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.).

[ 69 ] Mr. Wolf has agreed that in the event he is unsuccessful in this motion, that costs awarded to the Crown Defendants of $1,000 would be reasonable. I therefore award costs, including disbursements and applicable taxes, in the amount of $1,000 to be paid by Mr. Wolf to the Crown Defendants.

Pollak J.

Date: February 7, 2012

[1] [1978] A.C. 728 (H.L.)

[2] 2001 SCC 79 , [2001] 3 S.C.R. 537 , at para. 30 .

[3] See Cooper v. Hobart at paras. 38, 53 ; Just v. British Columbia , 1989 16 (SCC) , [1989] 2 S.C.R. 1228 ; Brown v. British Columbia, 1994 121 (SCC) , [1994] 1 S.C.R. 420 ;

Iwanicki v. Ontario (Minister of Correctional Services) (2000), 45 W.C.B. (2d) 600 , [2000] O.J. No. 955 .

[4] At pp. 1244-45.

[5] [1994] F.C.J No. 655 at para. 47 .

[6] R. v. Wolf , 2008 ONCA 352 , [2008] O.J. No. 1713.

[7] The court relies on D.G. Jewelry Inc. v. Cyberdiam Canada Ltd. , [2002] O.J. No. 1465 for this proposition.