SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-11-436471
DATE: 20130626
RE: MAXAIL GLADUHOV, Plaintiff
AND:
BORAWSKI STANISLAW, et al., Defendants
BEFORE: Mr. Justice John Macdonald
COUNSEL:
Michele Brady for the Applicant/Defendant, Sylvia Swider.
Maxail Gladuhov in person, assisted by Lita Zutautaite, Russian interpreter.
HEARD: June 26, 2013.
ENDORSEMENT
[1] The applicant moves pursuant to both R. 21.01(1)(b) and R. 20 to dismiss the action against the applicant. At the request of the applicant, the R. 21 motion was heard first. I did not find it necessary to hear submissions on the R. 20 motion.
[2] I explained as best I could the meaning of R. 21.01(1)(b) and the requirement in R. 21.01(2)(b) that no evidence is admissible on this motion. With the assistance of the interpreter, Mr. Gladuhov advised that he understood.
[3] The test for striking out a claim has been reiterated in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at paras. 17-25. A claim will be struck out only if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. Stated differently, a claim will be stuck out if it has no reasonable prospect of succeeding. When a novel claim is pleaded, the Court must ask whether there is a reasonable prospect that it will succeed. In dealing with a novel claim, the Court’s approach must be generous and “err on the side of permitting a novel but arguable claim to proceed to trial.”
[4] The applicant is sued on allegations which are contained in paragraph 4 (a) of the Statement of Claim. The material allegations, based on a generous reading of the Statement of Claim, are:
Ms. Swider is a police officer,
She testified at the trial of Mr. Gladuhov,
The trial was a criminal trial (Statement of Claim, para. 2),
The defendant Borawski started the criminal case by making false allegations to police (Statement of Claim, para. 3),
Ms. Swider made a false statement in her trial testimony. That falsehood was a lie, meaning it was a deliberate falsehood,
The subject matter of Ms. Swider’s deliberate falsehood was her telephone call to Mr. Gladuhov warning him about the criminal consequences of making threats against Mr. Borawski,
When cross-examined about this by Mr. Gladuhov, Ms. Swider could not “justify her answer”.
[5] Relevant, in addition, is the content of paragraph 5 of the Statement of Claim, in which Mr. Gladuhov states that he was acquitted of all charges, that there was “no evidence” that he had threatened anyone, and he was arrested for “no reason”, in the presence of his wife and daughter.
[6] The damages allegations pleaded in the Statement of Claim are said, in paragraph 2, to be “(d)ue to this criminal process” and “(b)ecause of my criminal case started”. As a result, Mr. Gladuhov pleads that he lost his “Fast Card” for clearing the U.S. border in a priority fashion, in his work as a truck driver, he lost his job, and he suffered emotional or mental health problems. Notably, it is pleaded in paragraph 2 (b) that the Fast Card was lost to him shortly after his arrest.
[7] I assume all of Mr. Gladuhov’s pleaded allegations aforesaid to be true, for the purpose of this R. 21 motion.
[8] My conclusions are as follows. The damages claimed by Mr. Gladuhov are premised upon the institution or commencement of the criminal prosecution. That is when the Fast Card was cancelled, that caused him to experience border delays, that caused late deliveries and loss of work, as pleaded in paragraph 2. Alternatively, the damages claimed are due to the “criminal process”, generally. No damages are pleaded to have been caused by Ms. Swider’s false testimony at trial about her telephone call to Mr. Gladuhov. In any event, this telephone call was a warning about the threatening conduct in issue and not something that was part of “criminal process”. Additionally, having been acquitted of the charges in issue, it is inconceivable that the plaintiff, Mr. Gladuhov was injured or damaged by false testimony about a collateral matter, the telephone call in issue.
[9] Further, treating these allegations as a novel claim and being generous in the application of R. 21 principles, I conclude that the claims advanced against Ms. Swider have no reasonable prospect of success. This is not an arguable claim. It is a completely unmeritous claim, as a civil claim. The Statement of Claim discloses no reasonable cause of action against Ms. Swider.
[10] I asked Mr. Gladuhov what he wanted to sue for, and asked him explicitly about amendments, having told him of the aforesaid conclusion under R. 21. He has a general set of complaints about his prosecution, but has no basis for asserting that Ms. Swider is responsible for them. He asked me to order an inquiry into police conduct. I see no amendments in respect of Ms. Swider which are capable of disclosing a reasonable cause of action against her. I do not strike out the Statement of Claim because there are two other defendants. I dismiss the action against Ms. Swider only. If demanded, costs to the applicant on the partial indemnity scale fixed at $950.00, payable by Mr. Gladuhov.
Mr. Justice John Macdonald
Decision Date: June 26, 2013 Release Date: June 27, 2013