ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 6214-12

DATE: 2014/06/23

B E T W E E N:

EMINA DANOVIC

Plaintiff, Self-represented

Plaintiff

• and -

GRAHAM WAGNER

L. Geddes, for the Defendant

Defendant

HEARD: December 18, 2013

LEACH, J.

[1] Before me is a motion by the defendant, Graham Wagner, requesting formal termination of the plaintiff’s claims against him without the necessity of a trial.

[2] The formal prayer for relief in Mr Wagner’s notice of motion focuses on a request for summary judgment dismissing the plaintiff’s action, pursuant to Rule 20 of the Rules of Civil Procedure, on the basis there is no genuine issue requiring a trial with respect to the plaintiff’s claims.

[3] However, other aspects of the defendant’s notice and motion material make it clear that he alternatively requests dismissal of the action pursuant to Rule 21, on various grounds. These include submissions that:

a. the plaintiff’s statement of claim discloses no reasonable cause of action, thereby warranting its dismissal pursuant to Rule 21.01(1)(b); and

b. the plaintiff’s action is frivolous, vexatious or an abuse of process, thereby warranting its stay or dismissal pursuant to Rule 21.01(3)(d).

[4] The motion is very much opposed by the self-representing plaintiff, Ms Danovic. In her responding material and oral submissions, Ms Danovic did not seem to articulate much that could reasonably be construed as a stated legal basis for her opposition to the motion, (despite making very generous allowance for her lay status and lack of familiarity with our legal system).

[5] Ms Danovic instead focused almost entirely on presenting, both in writing and verbally, and at length, her account of Mr Wagner’s perceived transgressions and the resulting impact on Ms Danovic’s life. She concluded that account by emphasizing her desire for “justice”, which she defines as Mr Wagner being “punished for his inhuman deeds and lies”, and the court “teaching him the lesson he deserves”.

BACKGROUND

[6] The parties have very different perceptions as to how the events leading to this litigation should be characterized, but a review of the substantial evidence filed before me suggests there is remarkably very little disagreement about many of the underlying material facts.

[7] In particular, contemporaneous communications between the parties and others incidentally involved in the parties’ dispute were largely reduced to writing, (in the form of emails or handwritten and typed notes and letters), and the exchange, timing and content of such communications is not disputed. (Although some of the emails originated from other email addresses that did not identify the plaintiff by name, she subsequently acknowledged that she was their author and sender.)

[8] The plaintiff also was cross-examined at length, prior to the return of this motion, and the resulting transcript indicates her acceptance and admission of almost all material facts related to the parties’ dispute.

[9] While I have carefully reviewed and considered all of the considerable evidence submitted by the parties, it seems to me that the essential background to this dispute may be summarized as follows:

• The defendant Mr Wagner is a university professor in his late fifties. He is divorced, and after a number of unhappy marital and parenting experiences, was not interested in having another serious and exclusive relationship, or in being a father again.

• The plaintiff is currently unemployed and in her late forties. She was born and raised in Bosnia, but is fluent in several languages, including English. She trained as a medical doctor before living elsewhere, (including Austria), and eventually relocating to Canada. Unable to practice as a physician in Ontario, she has undertaken further post-secondary studies and training programs, (not yet completed), with a view to pursuing a career in nursing. She too is divorced, after an unhappy marriage that ended with allegations of the plaintiff suffering spousal abuse, and the plaintiff losing custody of her son. According to her, while she was “confident and independent” immediately before coming into contact with the defendant, she nevertheless was “lonely”.

• In November of 2011, the parties came into contact with each other through a dating website called “SeniorMeet.com”. They began communicating through the website, and then through direct emails. This then led to some telephone communication. Emails exchanged between the parties, and sent later by the plaintiff to others, confirm that the defendant had informed the plaintiff he wanted only a “casual” relationship that was not “exclusive”, without any “commitment”, and that the plaintiff had acknowledged and agreed to interaction on that basis.

• It is not disputed that, (at least prior to this litigation), the parties met in person only four times, with all four meetings taking place in a 2-3 week period between mid-November of 2011 and early December of 2011. There was consensual sexual activity between the parties on each occasion. The plaintiff herself considered the relationship to be “casual”, albeit with a possibility that it “could develop into something more serious”.

• Tension and disagreement between the parties nevertheless became manifest almost immediately, after their first one or two meetings and sexual encounters, and continued to surface during the balance of their short 2-3 week relationship. In that regard:

o The plaintiff expressed, in very clear and forceful terms, her dissatisfaction with the frequency and length of the defendant’s communications with her following their initial meetings. For example, in an email sent by the plaintiff to the defendant on November 26, 2011, she accused the defendant of having “used” her for “one night sex” or a “sex meeting”, and emphasized that she was “not woman from the street” (sic) or “a whore for one night”. In the same email, the plaintiff nevertheless also indicated that the defendant should “call [her] sometimes”, and closed with a suggestion that, at the defendant’s age, an attempt to “sit on many chair” (sic) would cause the defendant to “lose all of them”.

o Such communications prompted reminders from the defendant, (e.g., through an email sent to the plaintiff on November 27, 2011), that their relationship was intended to be casual and non-exclusive. This was coupled with express written indications by the defendant that he did not want any sexual interaction between the parties to change the agreed basis of their relationship; e.g., by creating any additional obligations and/or a need to become “boyfriend and girlfriend”.

o In a further email sent by the plaintiff on November 27, 2011, she acknowledged and confirmed that the defendant had made it clear he did not want “any commitment relationship” at the time, and that she too did “not want to marry or to live with” the defendant, but that “having sex with everyone” was not on her “agenda”. Notwithstanding those comments and numerous additional critical and accusatory remarks directed at the defendant, (e.g., suggesting that he had not shown her any respect as a person or human being, and just thought of himself), the plaintiff expressly invited further communication and interaction.

o In an email dated November 28, 2011, the defendant responded with an indication that he no longer thought the parties were “a good match at all”, and thought instead that it would “best that [the parties] stop seeing each other”. That prompted a further email from the plaintiff, sent later the same day, with heightened invective. For example, the plaintiff criticized the defendant for his “mistakes and lies”, his “bad character”, his perceived inadequate communication after their meetings; his willingness to “lie” and “cheat”, and for treating the plaintiff “like a bitch not like a woman or human being”. This was coupled with further name-calling, as well as threats by the plaintiff to communicate with others such as the defendant’s ex-wife and the plaintiff’s brother, (with an express view to having the brother “talk to” the defendant when the brother arrived in Canada in the near future). The plaintiff informed the defendant that he would “lose everything, including [his] children”. Notwithstanding all of this markedly hostile communication, the plaintiff concluded with another express invitation to further interaction with the defendant, (which hopefully would include an apology).

o The defendant agreed to see the plaintiff again – which in turn apparently led to the two further meetings and sexual encounters noted above.

o At or about the same time, the plaintiff was further upset by her observation, at some point after the parties’ first two meetings, of an unknown car parked in the drive outside the defendant’s home. That car in fact belonged to another woman, (“Paula”), with whom the defendant was maintaining a “long distance relationship”. The defendant expressly disclosed and confirmed the existence and nature of that other relationship to the plaintiff on or about November 30, 2011.

o Notwithstanding that revelation of another simultaneous relationship, and the earlier email exchanges, the parties apparently continued to communicate and meet on the aforesaid limited basis, (i.e., one or two more times, both involving consensual sexual activity), prior to the plaintiff’s departure for a trip to Europe on December 6, 2011. The defendant nevertheless then declined an additional invitation to see the plaintiff “one last time”, prior to her leaving for Europe.

• Although the parties apparently never saw or met each other again after their fourth and last meeting in early December of 2011, their interaction was far from over.

• On December 9, 2011, the plaintiff sent the defendant an email from Europe indicating that she was pregnant. This included assertions that the pregnancy had been confirmed by a visit that day to a Vienna gynecologist, whose test and ultrasound had confirmed a pregnancy of 4 weeks duration. This apparently was not true or accurate. In that regard:

o The plaintiff admitted in later cross-examination that, following an initial comment from her Vienna physician that the plaintiff “could” or “might” be pregnant, the pregnancy test done in Vienna was in fact negative.

o The plaintiff also admitted that she emailed or called the defendant, indicating that she was pregnant, only because she was “scared” and “upset”. At the time, she also was hoping that the defendant then would leave Paula and be nicer to the plaintiff.

o The plaintiff acknowledged that she in fact had no evidence to indicate or confirm that she actually had been pregnant at the time of her dramatic email communication to the defendant. To the contrary, the available objective evidence all points in the opposite direction. In particular:

▪ Inquiries made by the plaintiff’s London gynecologist to the plaintiff’s Vienna gynecologist resulted in confirmation that the plaintiff attendance on the date in question had involved a “pregnancy check-up”, but there was no indication of a positive pregnancy test.

▪ Although the plaintiff continued to maintain during later cross-examination that at least one later home test had indicated pregnancy, subsequently disclosed medical documentation, produced in response to undertakings, confirmed that the plaintiff had in fact informed her own London gynecologist that “all the home pregnancy tests were negative” as well. The plaintiff’s own London physician therefore was puzzled by the plaintiff’s assertion of any pregnancy.

▪ The plaintiff’s own London gynecologist believes, instead, that the plaintiff’s reported missing of menstrual periods, followed by a heavy period, was the “usual manifestation” associated with a woman of the plaintiff’s age entering menopause.

• Although the plaintiff apparently was not pregnant at the time of her original email declaration of pregnancy, (sent to the defendant on December 9, 2011), her email included indications that she intended to tell her family, and that her brother would be “very upset about [the defendant]”. Despite further statements that she was “upset and devastated” by the defendant’s “lies” and now the alleged pregnancy, (in respect of which she would not accept the defendant’s “excuses”), the plaintiff invited the defendant to call her and provided phone numbers in alternate locations to facilitate that.

• The plaintiff’s claim of pregnancy led to further communication and email exchanges between the parties at various points throughout the balance of December 2011, and into early January of 2012. The precise timing and content of these exchanges are set out in the motion material before me, but in general terms:

o Initial communications addressed the question of whether the plaintiff intended to follow through with the alleged pregnancy or not. These included repeated indications from the defendant that, if the baby was his, he would provide whatever financial support might be required for the plaintiff and the child, but that he otherwise was unwilling to assume the role of partner/husband and father.

o The plaintiff continued to chastise the defendant for his past behavior and ongoing failure to engage in more proactive and extended communication with her; e.g., his failure to telephone the plaintiff in Europe to make inquiries about her health. The plaintiff also continued to suggest further discussion, meetings and interaction; e.g., indicating that the defendant should come over to her house following her return to Canada, drive the plaintiff from London to Toronto for medical procedures, and/or engage in meetings and three-way discussions between the plaintiff, the defendant and Paula. However, the defendant was adamant that his relationship with the plaintiff was over, and that his further involvement with the plaintiff and any child would be limited to financial support and the payment of expenses.

o In response to the defendant’s repeatedly stated position, and the defendant’s mention of a possible restraining order to end the plaintiff’s unwanted and escalating efforts to contact the defendant directly by telephone, (acknowledged by the plaintiff during cross-examination), the plaintiff’s emails assumed darker and more threatening tone and content. In particular, the plaintiff indicated that, unless the defendant started to call and talk with her again, and extended more than financial support to her during her pregnancy:

▪ The plaintiff and/or members of her family would inform the defendant’s relatives, (including his daughter, his son, his mother and his sister), as well as “all [the defendant’s] colleagues” from the university, about the defendant’s “lies” and how badly he had treated and hurt the plaintiff. In relation to the defendant’s work place, the plaintiff specifically indicated she was going to find the “Vice President of UWO”, “show him all [the] emails”, and “tell him what happened”. (Sic.)

▪ More generally, the plaintiff would cause the defendant to “lose [his] reputation in the City of London”.

▪ The plaintiff would initiate a court proceeding so the defendant would “get blamed in front of [his] family and friends in the public hearing”.

▪ The plaintiff also would seek compensation for her “emotional pain due to the stress” caused by the defendant, which in turn was said to have caused her inability to work for at least six months - - although the plaintiff’s communication in that regard was sent just 4-5 weeks after the parties’ first meeting.

▪ Most ominously, the plaintiff’s brother, whose arrival in Canada was imminent, and who was “just waiting” for the plaintiff’s call, was “going to find [the defendant] very soon”.

o The last set of emails from the plaintiff during this period, (sent on January 7, 2012), initially repeated demands for “compensation”, in exchange for “all bad things” the defendant was said to have done to the plaintiff. However, the plaintiff then expressly clarified and indicated almost immediately that she in fact did not want money. Rather, if the defendant did not want to give the plaintiff “love and happiness”, (which was what she apparently had been seeking), he could “make up” for his “mistakes and lies” by helping the plaintiff gain admission to a Master’s program at the University of Western Ontario, (the defendant’s employer), starting in May of 2012. During the course of her later cross-examination, the plaintiff once again expressly confirmed that she in fact had no desire for “compensation with money”, and that the requests for payment were made for an entirely different purpose. In her own words: “But it was not like compensation with money, like I – I just wanted to little bit to scare him to ask him to pay, but I didn’t want anything from him”. She agreed that “this was used to scare him”.

• The defendant’s position remained unchanged and indeed became more entrenched in response to the plaintiff’s increasingly disturbing behavior, which prompted the defendant to contact the police.

• The plaintiff then embarked on further actions to address her perceived grievances. During the course of the plaintiff’s later cross-examination, she openly acknowledged that, in doing so, she was motivated by anger and a desire for revenge.

• Through “Facebook” investigations, and using snippets of information provided earlier by the defendant, the plaintiff was able to identify and locate Paula, whom the plaintiff proceeded to then contact directly and repeatedly through telephone calls, emails, and handwritten correspondence. The numerous unwanted communications received by Paula, (disparagingly characterized by the plaintiff in other emails as an “ugly old woman”, “ugly bitch”, “ugly old giraffe” and “ugly mail carrier”, with a “drug addicted son”), included:

o Extended accounts of the plaintiff’s involvement with the defendant, (from the plaintiff’s perspective), with indications of the parties’ sexual activity while the defendant was also seeing Paula, and claims of the plaintiff’s alleged resulting pregnancy.

o Invitations to have Paula review the complete text of all email exchanges between the parties.

o Allegations that the defendant did not love Paula, and had indicated his intention to “leave” Paula, or otherwise change or end his relationship with her, because he was “bored”.

o Allegations that Paula was “negatively influencing” the defendant to do what she wanted.

o Further ominous indications that the plaintiff’s brother, who lives in Bosnia and fought in the 1992-1996 conflict there, “will be able to find [the defendant] for his lies [and] cheating”.

• Through emails and regular post, the plaintiff sent similar emails and letters directly to one of the defendant’s friends, (“Lyndsay”, whom the plaintiff was able to locate through Facebook), and to the defendant’s mother and sister. The communications advised all of these individuals about the parties’ relationship, the defendant’s alleged mistreatment of the plaintiff, and the plaintiff’s alleged pregnancy. The emails received by Lyndsay included another disturbing indication that the plaintiff’s brother, “who lives in Bosnia and who was fighting for [that] country in 1992-1996, will be able to find [the defendant] for his lies [and] cheating”. The letters received by the defendant’s mother and sister insulted the defendant in various ways, (e.g., calling him a “dirty pig” and “liar”), and promised that he “will get his lesson what he deserves” (sic).

• The plaintiff also made good on her threat to contact the defendant’s employer to air her grievances; i.e., by sending an email, on January 9, 2012, to the Vice-Provost of the University of Western Ontario. (The allegations contained therein were also shared with the university’s president and the chair of the defendant’s department.) In her missive, the plaintiff essentially repeated many of her prior assertions; e.g., that the defendant had “bad character”, “lied”, and had “just wanted to use [her] to sleep with him” while maintaining another relationship, leaving the plaintiff “8 weeks pregnant with his child”, (although the communication to the university was sent less than 8 weeks after the parties’ first meeting). However, the plaintiff now added a complaint that the defendant had made an unfulfilled promise to ensure that the plaintiff would be admitted to a Master’s degree program in the university’s pharmacology department without taking a requisite examination. (I note that the suggestion of the defendant making such a promise is mentioned nowhere within the prior written communications generated by the parties – despite the plaintiff’s many other extensive and blunt allegations. Indeed, the suggestion of the defendant assisting the plaintiff in any such manner was raised only by the plaintiff herself, two days before her email to the university authorities.) The penultimate paragraph of the plaintiff’s email to the university reads in part as follows: “Mr Graham Wagener has to get punished for his lies. I promised him that he will be forced to leave the City of London and he will lose his reputation because of his lies, cheating and inhuman deeds”. [Emphasis added.]

• In subsequent correspondence from the university authorities to the defendant, sent January 11, 2012, the university expressed concern about the possible damage to its reputation from such allegations. However, the university otherwise decided to regard the allegations as a “personal matter” between the parties, and conveyed that position to the plaintiff as well.

• When the defendant succeeded in ignoring and/or blocking direct communication from the plaintiff’s usual email address, the plaintiff then began sending provocative, threatening and abusive messages to the defendant by using other email pseudonyms and addresses. (This initially was denied to some extent by the plaintiff, despite obvious similarities in writing style and duplication of various comments from the plaintiff’s earlier emails. However, the plaintiff eventually acknowledged, during cross-examination, that she had sent the additional emails. She says she did so because the defendant had stopped replying to her other emails, and she “just wanted to see” if the additional messages would “change his mind”.) These disturbing anonymous messages hurled various insults at the defendant; e.g., saying that he was “insane”, “stupid” and “acting like drug addictive” (sic). They suggested that the defendant was the father of another child. They alleged that the defendant would give good marks to female students in exchange for sexual favours. The messages also indicated that the defendant would “need [a] psychotherapist and [a] good loan from [his] bank” to “pay for all [his] mistakes”, as “looking for someone just for [his] bedroom” was going to “cost [him] a lot”, and he would be “punished for that”. Such communications came to an end only after the University of Western Ontario Campus Police intervened, at the defendant’s request, to warn the then anonymous and unidentified sender that a criminal harassment investigation was imminent.

• On January 27, 2012, the self-represented plaintiff then commenced this formal litigation by issuing her statement of claim.

[10] I have reviewed and have regard to the plaintiff’s pleading in its entirety.

[11] Generally, however, (and no doubt owing to the fact that the plaintiff is self-represented), I observe that her statement of claim is unconventional, to say the least.

[12] Apart from the mandated court form text, there is almost no discernible effort to comply with many basic rules of pleading; e.g., in terms of outlining a concise statement of the material facts on which the plaintiff relies, while avoiding the pleading of evidence and argument.

[13] Without any opening prayer for relief, the pleading simply launches into an extended narrative of alleged events, conversations and other communications. In the course of that narrative, the plaintiff repeats many of the allegations set forth above, supplemented by allegations that the defendant’s “lies and cheating” have had a serious impact on the plaintiff’s health and well-being; e.g., by causing stress-related health issues and inability to sleep, which in turn are said to have undermined the plaintiff’s ability to complete further study and pursue a nursing career here in Canada.

[14] The entire statement of claim contains no express identification of or reliance upon any known or purported cause of action, apart from two passing references to “intentional tort”, and one to “tort”. Until the closing paragraphs, there is also no express indication of what the plaintiff hopes to achieve through the litigation, by way of relief.

[15] In broad terms, the nature, tone and essence of the claim is reflected, I think, in the last 7 paragraphs of the pleading, which follow on from the plaintiff’s narrative and, with original grammar, spelling, punctuation and apparent numerical error, (but omitting the name of the plaintiff’s son), read in their entirety as follows:

I am not woman from the street. I am Medical doctor and educated woman. I am coming fro family of doctors for three generations. I am fluent in three languages incl. German, English and Bosnian, my mother language. I spend all my life on my education, incl. medicine to playing piano for ten years. Mr. Wagner knew all about myself, especially how I was hurt from my ex-husband in the past.

Mr Graham Wagner JUST USED, INTENTIONALLY, MY VULNERABLE SITUATION TO USE ME LIKE WOMAN FOR ONE NIGHT. Graham Wagner lied and cheat on me in order to get someone for “his bedroom”. His intention was NOT HONEST to me, his inhuman deeds and his INTENTIONAL TORT cause serious damages to my health and well being. He has to get punished for his deeds and for his lies.

Because of all events with Mr. Wagner, I feel sick, helpless and unsupported. His inhuman deeds, his selfishness and his bad character has to be judged from the Civil Court in London Ontario, to teach him lesson how to behave himself in the future.

I do not deserve to be treated like woman for one night and especially to get sick because of his intentional tort.

MY 10 YEARS OLD SON … STILL NEEDS ME AS MOTHER FOR HIS GROWN AND HIS DEVELOPMENT. MY 10 YEARS OLD SON DOESN’T DESERVE TO GET PUNNISHED IN THAT WAY, TO LOSE HIS MOTHER BECAUSE OF MR WAGNER’S TORT.

I am asking Superior Court of Justice, Civil Court to punish Mr Wagner for his inhuman deeds. I am asking emotional pain compensation for stress and horrible impact and well being from Mr. Grah