SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-427661
and CV-11-427659

DATE: 2013-12-19

RE: Chuang Wang, Plaintiff (Respondent)

AND:

She Zhan, Defendant (Moving Party)

RE: Chuang Wang, Plaintiff (Respondent)

AND:

Angela Zhan, Defendant (Moving Party)

BEFORE: Lederman, J.

COUNSEL:
Chuang Wang, appearing in person, Plaintiff (Respondent)

Haiyun Wang, for the Defendants (Moving Parties)

HEARD: December 12, 2013

ENDORSEMENT

[1] The plaintiff has commenced two actions, one against She Zhan, and the other against his wife, Angela Zhan.

[2] The defendants in the two actions move to strike out the statement of claim in each action under Rule 21.01.

[3] In each statement of claim, the plaintiff seeks $1,000,000 for damages for emotional distress and mental damage and for the removal of a writ of seizure and sale on his house. In each statement of claim, he alleges breach of a partnership agreement that he had with She Zhan and that he was subjected to threatening and harassing behavior and trespass on the part of both defendants. He also refers to an earlier Small Claims Court proceeding and asserts that the trial judge did not have a proper and correct translation of the partnership agreement before him and that the trial judge failed to consider an invoice establishing a loss in the partnership business for the relevant period of time.

[4] For the most part, the statements of claim parrot the allegations that the plaintiff made in the pleadings before the Small Claims Court.

[5] The Small Claims Court judge found that the plaintiff had made a fraudulent misrepresentation and induced She Zhan to enter into the partnership agreement; that She Zhan was entitled to rescission and return of his investment; and also based on the doctrine of unjust enrichment, that She Zhan was entitled to certain damages for the days that he worked.

[6] The Small Claims Court judge found that the plaintiff had not put forth any evidence of business loss as he had alleged.

[7] The plaintiff appealed that decision to a single judge of the Divisional Court who dismissed the appeal, concluding that the findings made on the factual issues by the Small Claims Court judge were reasonable and appropriate and he saw no basis upon which to interfere with them.

[8] It should be noted that in the Notice of Appeal to the Divisional Court filed by the plaintiff, he raised as a ground, that he did not have available to him a translated invoice setting out the business loss that he alleged and that the trial court had failed therefore to take into account the evidence of the invoice indicating such a loss from the March, 2010 project. This is one of the issues he is again raising in his new statements of claim.

[9] The plaintiff states that the real basis of the new actions, not previously adjudicated upon, is his claim for damages for emotional and mental distress.

[10] In argument, on these motions, the plaintiff acknowledged that he did raise in his Small Claims Court pleading the very same allegations of threatening behaviour that he is now asserting in these new actions. However, he argues that he made no monetary claim for damages in the Small Claims Court because he was advised by Law Help Ontario that he should not pursue that issue in the Small Claims Court as the amount that he would be seeking would be in excess of that court’s monetary jurisdiction. Accordingly, he takes the position that he is now, for the first time, asserting a brand new cause of action that is unrelated to the partnership agreement entered into between the parties and is based solely on the alleged tortious conduct of the defendants.

[11] Nowhere in his affidavit does he mention the advice that he received from Law Help Ontario; nor is there any explanation why he took no steps to transfer the Small Claims Court proceeding to the Superior Court of Justice to entertain a claim for damages for emotional and mental distress.

[12] The fact remains that he continues to allege in his statements of claim a breach of the partnership agreement, the deceit of the defendants in putting forth an improper and incorrect translation of the partnership agreement and the fact that he has a translated invoice to establish business losses.

[13] The plaintiff’s motive for bringing these new actions is clearly to remove the Writ of Seizure and Sale that the defendants have registered against his property. That is one of the elements of relief that he is seeking in the statements of claim.

[14] The plaintiff is raising the very same issues that he put forth in his Small Claims Court proceeding. The doctrine of abuse of process prevents the fragmentation of litigation by prohibiting the re-litigation of matters that were addressed, or could have been addressed in the earlier proceeding. The plaintiff specifically alleges the very same matters he put before the Small Claims Court and had available to him at that time the videotapes and recordings to support his allegation of threatening behaviour by the defendants.

[15] The allegations in the statements of claim are in essence an impermissible collateral attack on both the Small Claims Court judgment and the Divisional Court decision. Therefore, these actions amount to an abuse of process and they are accordingly dismissed.

[16] The defendants will have their costs of these motions fixed in the total amount of $3,000 all inclusive, payable by the plaintiff within 30 days.

Lederman J.

Date: December 19, 2013