SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-491629

DATE: 20140401

RE: Mr. Kalandar Salim Gaji, Plaintiff/Respondent

AND:

43 Division Police Service Badge No. 2192, Badge No. 08791, Badge No. 05542, Badge No. 05406 and Badge No. 10554 Defendants/Moving Parties

BEFORE: Justice Firestone

COUNSEL:
Mr. Kalandar Salim Gaji, In Person

Cara Davies, for the Defendants/Moving Parties

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 28, 2013. It was commenced against 43 Division police service badge No. 2192, badge No. 08791, badge No. 05542, badge No. 05406 and Badge No. 10554. Counsel for the Toronto police services board candidly admitted that the naming of the defendant as 43 Division Toronto Police Service is a misnomer. I am satisfied naming the officers by their badge number is a misnomer capable of correction given that the “appropriate litigation finger” has been pointed.

[4] The statement claim does not plead any date(s) of loss or any specific incidents that could form the basis of an incident(s) or encounter that could give rise to a cause of action

[5] It is “plain and obvious” that there are no facts pled which could on a generous interpretation support a recognized cause of action pursuant to rule 21.01(1)(b).

[6] 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”.

[7] 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.

[8] A pleading that shows a complete absence of material facts is considered frivolous and vexatious. Bare allegation 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.

[9] In my view, given that the plaintiff is not met the minimum level of materials facts necessary for the reasons set forth above, the rules of pleading require that this claim be struck without leave to amend.

[10] The statement claim is therefore struck without leave to amend and the action is dismissed.

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

Firestone J.

Date: April 1, 2014