COURT FILE AND PARTIES
COURT FILE NO.: 13-57321
DATE: 2013-09-06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Roman Ulyanov, Plaintiff
AND
TD Canada Trust, Defendant
BEFORE: M. Z. Charbonneau
COUNSEL:
Plaintiff representing himself
Roberto D. Aburto Counsel, for the Defendant
HEARD: September 3, 2013
ENDORSEMENT
[1] The defendant brings a motion for an order striking the plaintiff’s statement of claim without leave to amend on the ground that it fails to disclose a reasonable cause of action. In the alternative, the defendant asks that the statement of claim be struck with leave for the plaintiff to file a claim in Small Claims Court.
[2] In the statement of claim, the plaintiff claims specific damages of $150.00, general damages of $20,000.00 and punitive damages of $100,000,000.00.
[3] The plaintiff’s complaint is that the defendant charged him $42.50 on two occasions for cheques issued with insufficient funds and $10.95 for a period of 9 months for a monthly charge for a ‘Value Account’. The plaintiff admits he issued cheques, more specifically automatic withdrawals on three occasions from his account and had subscribed to the value account in question. In both cases he apparently had forgotten about the charges related to these two items.
[4] The plaintiff also admits that when he realized $42.50 was being charged for N.S.F. withdrawals, he called and complained to the bank. The bank agreed to eliminate the third N.S.F. charge on the condition he stopped calling about this issue. In relation to the value account, the bank was prepared to come to some arrangement provided he listened to a taped message at the end of the telephone conversation and then confirmed that he was in agreement with the terms of the arrangement that had been reached.
[5] The plaintiff states he assumed and believes that the bank had a duty to remind him of the N.S.F. charges and failed to do so. He states that this constitutes deceit as the bank is deliberately not informing its clients because the charges are excessive and intended to make a profit. He states that this constitutes fraud under the provisions of subsection 380(1) of the Criminal Code of Canada.
[6] In relation to his subscription to the value account, he states that he subscribed by mistake. He also states the value account was sold to him using pressure tactics. When he tried to have the service charges cancelled, he states the bank only offered to cancel two monthly charges. He admits he was told to listen to the message after the telephone conversation with the bank’s representation, but did not because he did not realize this was important.
[7] He claims that as a result of these difficulties dealing with the bank, he has suffered emotional distress.
[8] Finally, he claims that the conduct of the bank in including these fraudulent methods into their policies, while knowing of his dire financial circumstances still maintaining the charges and not caring or having any concern for the harm they did to him, requires that the bank be punished and deterred by an award of punitive damages.
[9] I conclude that the statement of claim does not disclose a cause of action. The plaintiff has failed to allege facts which would support a finding that the bank committed fraud or an intentional infliction of mental shock. It is clear and obvious that the plaintiff’s claim is without merit and would be dismissed.
[10] The comments of Madam Justice Epstein (as she then was) in George v. Harris [2000] O. J. No. 1762 at paragraph 20 are totally applicable to this present impugned pleading:
The next step is to consider the meaning of “scandalous”, “frivolous” or “vexatious”. There have been a number of descriptions provided in the multitude of authorities decided under this or similar rules. It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions or opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety. See: ACIC (Canada) Inc. v. Merck & Co. (1995), 1995 19310 (FC), 62 C.P.R. (3d) 362 (F.C.T.D.); Solid Waste Reclamation Inc. v. Philip Enterprises Inc. (1991), 49 C.P.C. (2d) 245 (Ont. Ct. (Gen. Div.)); Innovation and Development Partners/IDP Inc. v. Canada, [1993] F.C.J. No. 6-02 (F.C.TD.) and Waverly (Village) v. Nova Scotia (Acting Minister of Municipal Affairs) (1993), 1993 NSSC 71, 16 C.P.C. (3d) 64 (N.S.S.C.), aff’d (1994), 30 C.P.C. (3d) 205 (C.A.), leave to appeal to Supreme Court of Canada refused March 23, 1995.
[11] As for the claim for punitive damages it fails because it is based on mere expressions of opinion not supported by any reasonable independent fact. Moreover, the misconduct alleged by the bank falls way short of conduct that is capable of attracting an award of punitive damages.
[12] For all of these reasons, the statement of claim is struck without leave to amend and the action is dismissed. If so advised, I will entertain brief written submissions on the issue of costs within 20 days.
M. Z. Charbonneau
Date: September 6, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Roman Ulyanov, Plaintiff
AND
TD Canada Trust, Defendant
BEFORE: M. Z. Charbonneau
COUNSEL:
Plaintiff representing himself
Roberto D. Alberto Counsel, for the Defendant
ENDORSEMENT
M. Z. Charbonneau
Released: September 6, 2013