SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-490349
DATE: 20140401

RE: Mr. Kalandar Salim Gaji, Plaintiff/Respondent

AND:

43 Division Police Service, Defendant/Moving Party

BEFORE: Justice Firestone

COUNSEL:
Mr. Kalandar Salim Gaji, In Person

Cara Davies, for the Defendant/Moving Party

HEARD: February 21, 2014

ENDORSEMENT

[1] The moving party brings this motion for an order striking out the statement of claim (“claim”) and dismissing the action under rules 21.01(1)(b), 21.01(3)(b), 21.01(3)(d), 25.02, 25.06(1), 25.06(2), 25.06(8), 25.06(9), 25.11(b) and 25.11(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The basis of the motion of the is that the claim advanced by Mr. Gaji, who is self-represented, discloses no reasonable cause of action; fails to comply with the rules of pleading and is scandalous, frivolous and vexatious and an abuse of the court’s process.

[3] This statement claim was issued October 8, 2013. It was commenced against 43 division police service. Counsel for the Toronto police services board candidly admitted that the naming of the defendant as 43 Division the service was a misnomer.

[4] The statement claim does not plead the date(s) of loss. There is reference in the claim to “harassment” “assault” “False guilty arrest statement paperwork”, and “discrimination racist offence”.

[5] The claim refers to two alleged incidents one being at Shoppers’ Drug Mart store at 255 Morningside Drive, Scarborough Ontario last year and refers to the involvement of two police officers referencing their badge numbers. The second incident was at a McDonald’s restaurant at 4435 Kingston Road, Scarborough Ontario. Again the plaintiff refers to the involvement of a police office and references his badge number.

[6] Based on the claim it is not however “plain and obvious” that the limited facts pled do not support to a recognized cause of action pursuant to rule 21.01(1)(b).

[7] As stated in Aristocrat Restaurants Ltd. (c.o.b Tony’s East) v. Ontario, [2003] OJ No 5331 (Ont. Sup Ct) at para 19. “In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for an opposing party to reply should be struck. The court is permitted to strike out less than the entire pleading where the portion being struck is distinct”.

[8] The only allegation in the claim relating to a recognized cause of action is that of an alleged assault. However as currently drafted it is impossible for the defendant to properly plead. The statement of claim is therefore struck on that basis.

[9] In addition, the claim does not contain a concise statement of material facts relied on or the specifics regarding the nature of the relief claimed as required by rule 25.06.

[10] A pleading that shows a complete absence of material facts is considered frivolous and vexatious. Bare allegations should be struck a scandalous. This is particularly so were allegations of intentional or malicious conduct are made. See Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No.2434 at paras. 66-67 (S.C.J.), aff’d; 2002 4770 (ON CA), [2002] O.J. No.383 (C.A.) and Aristocrat supra, para 21.

[11] In my view, given that the plaintiff has not met the minimum level of materials facts necessary for the reasons set forth above, the rules of pleading require that the claim be struck with leave to amend.

[12] The statement claim is therefore struck. The plaintiff shall have 30 days in which to amend.

[13] The parties may deliver their written costs submissions within 15 days.

Firestone J.

Date: April 1, 2014