COURT FILE NO.: CV-12-460260

DATE: 20140616

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ramesh Mehta, Self-Represented

AND:

Dr. Rakesh Uppal, Neeru Uppal, Indian Spice & Curry Ltd., William Ross Gilmour, William R. Gilmour, Barrister & Solicitor, a.k.a. Gilmour Barristers-Barristers & Solicitors a.k.a. Gilmour Barristers, Christine N. Wiseman, 2151753 Ontario Inc., a.k.a. Sweet Palace Restaurant, Grand Empire Banquet & Convention Centre Ltd., Harbans Singh Sidhu, D.M. Miller Reporting Services Inc., Erica Lix and Jaspal Singh Khosa, Defendants

BEFORE: Justice Matheson

COUNSEL:
Michael Title, for the Defendants Dr. Rakesh Uppal, Neeru Uppal and Indian Spice & Curry Ltd.

Antonin Pribetic, for the Defendants Grand Empire Banquet & Convention Centre Ltd., Harbans Singh Sidhu, 2151753 Ontario Inc. and Jaspal Singh Khosa

HEARD: June 13, 2014

ENDORSEMENT

[1] This is a motion to strike out the statement of claim in this action, as against three defendants: Dr. Rakesh Uppal, Neeru Uppal and Indian Spice & Curry Ltd. (the “moving defendants”).

[2] The motion is brought under Rule 21.01(1)(b) and Rule 21.01(3)(d) (abuse of process), as well as related rules. Evidence may only be considered with respect to the claim of abuse of process. In that regard, the plaintiff sought to file a brief of documents and affidavit during the argument of the motion. The moving defendants’ counsel did not object, however, certain documents within it that were solicitor client privileged were removed in order that the plaintiff not waive his privilege (Exhibits 9, 10 and 17).

[3] The plaintiff also filed a proposed draft amended statement of claim that he believes addresses the issues on this motion.

[4] Counsel to the defendants Grand Empire Banquet & Convention Centre Ltd., Harbans Singh Sidhu, 2151753 Ontario Inc. and Jaspal Singh Khosa also appeared and made submissions in support of the position of the moving defendants. He appeared because the determination of the motion could affect his clients as well.

[5] Under Rule 21.01(1)(b), I proceed on the basis that the statements of fact set out in the statement of claim are true. Further, I give a generous interpretation of the statement of claim in the plaintiff’s favour, with due allowance for any defects in drafting. In doing so, I have taken into account the reality that the plaintiff is self-represented.

[6] This action relates to another action commenced in 2009 as court file number CV-09-378581. As described in the statement of claim here, that action relates to a commercial lease. The plaintiff’s company, Sirdi Sai Sweets Inc., tenant, is suing Indian Spice & Curry Ltd., landlord. Indian Spice is run by Dr. Uppal and owned by the defendant Neeru Uppal, who is Dr. Uppal’s spouse.

[7] Many of the allegations in the statement of claim relate to the 2009 action, and Dr. Uppal is also a party to that action, among others.

[8] Paragraph 13 of the statement of claim here alleges “Important Reasons for enhancement of the claim as previously claimed in [the 2009 action]”. The plaintiff alleges that the 2009 action is “just based on a commercial Landlord and tenant agreements of lease” and “the reasons for enhancement of this claim” are set out in paragraph 3 of the statement of claim – specifically, the claim for relief.

[9] The statement of claim does not fully plead any cause of action against the moving defendants. In its claim for relief, it includes the word “defamation,” but there is no pleading of the required elements for such a claim. Similarly, conspiracy is mentioned. However, the requirements to plead a claim of conspiracy, as set out in Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452, have not been met. The statement of claim also appears to allege harassment, but harassment is not itself a cause of action: Mosher v. Ontario, [2004] O.J. No. 5412 (S.C.), at para. 15, aff’d [2005] O.J. No. 2709 (C.A.). There are references to mental distress, with no pleading of a proper cause of action.

[10] There are a number of general pleadings, such as an allegation that “the ascending and hot beginning of this claim by the Plaintiff by the involvement of the above noted parties has commenced in around 1st week of April, 2012 where the parties jointly and severally started conspiring, humiliating, threatenings, false affidavits and evidences to the Superior Court of Justice in Toronto & Brampton against the Plaintiff resulting into serious health problems & health problems of the family, mental distress, humiliation, aggravation, loss of money due to extravagant expenses, loss of income etc. etc.”. These general pleadings are insufficient: Mosher, at para. 17 (S.C.).

[11] As required under Rule 21.01(1)(b), I have considered whether it is “plain and obvious” that the statement of claim discloses no cause of action against the moving defendants. I conclude that it is plain and obvious. The claim and related paragraphs, as against the moving defendants, are struck out.

[12] There remains the question of whether or not the plaintiff should have leave to amend the statement of claim.

[13] The moving defendants submit that complaints about the conduct of that litigation are more appropriately dealt with by the court hearing the 2009 action. The 2009 action was fixed to commence trial earlier this year, but the trial was adjourned until this fall to allow the plaintiff to amend and add a claim for punitive damages. It may be that some of the matters about which the plaintiff complains could be addressed in the 2009 action. I make no ruling in that regard.

[14] The plaintiff submits that the claims he intends to advance in this action are completely different than the 2009 action and are addressed properly in the proposed amended statement of claim.

[15] The proposed amended statement of claim does not address the pleadings deficiencies. However, I conclude that the plaintiff should have an opportunity to fix his statement of claim following the disposition of this motion. I therefore grant leave to amend on the terms set out below.

[16] This decision granting leave to amend does not in any way change the prior decision of Justice Stewart dated October 15, 2012. In that decision, Justice Stewart struck out claims against certain other defendants in this action ˗ essentially claims the plaintiff wished to make against opposing counsel in the 2009 action ˗ without leave to amend.

[17] Given that I have already decided to strike out the allegations against the moving defendants under rule 21.01(1)(b), it is not necessary for me to also deal with the abuse of process ground.

[18] I therefore make the following orders:

(a) the claim against the moving defendants is struck out, including the following paragraphs of the statement of claim: 3-12, 14, 17-20, 22, 30, 33, 34, 40, 42, 43 and Schedule A;

(b) leave to amend is granted, provided that the statement of claim is amended and served within 45 days of today; and,

(c) this order is without prejudice to the right of the moving defendants bringing a further motion to strike out the amended statement of claim.

[19] The moving defendants have provided a cost outline, and seek the all-inclusive sum of $19,000 for costs of this motion on a partial indemnity basis.

[20] Counsel for the defendants Grand Empire Banquet & Convention Centre Ltd., Harbans Singh Sidhu, 2151753 Ontario Inc. and Jaspal Singh Khosa does not seek costs.

[21] At the hearing, the plaintiff asked for an opportunity to review the bill of costs and make his costs submissions in writing, and I granted that request. The plaintiff shall deliver brief written submissions on costs by June 27, 2014.

[22] Any need for approval as to form and content of any formal order reflecting this decision by the plaintiff is hereby dispensed with.

Justice W. Matheson

Date: June 16, 2014