SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 14-CV-403355
MOTION HEARD: June 30, 2014

Between:

Mark Gledhill

Plaintiff

v.

K & G GROUP (“KG”), Sam GOLDBAND (“SG”);

MIKE GOLD CONSTRUCTION (“MGC”), Jeffrey GOLDBAND (“JG”); TORONTO POLICE SERVICES BOARD (“TPSB”), Det. Andrew TAYLOR #5336, PC Ali REZVANI, #10047, Det. Marie FARRUGIA, #7084, PC Bobby Chia-Hu HUANG, #9515, PL12 Mark ROBELLO, #8790, PC Hao GE, #10130, PC21 Jennifer TABORSKI, #10490, PC11 Don LAUREL, #10271; PC11 R. FIGLARZ, #90231, PC 12 J. Morris, #86904, PC N. MOZOLEV, #9798; PC W. MacDONALD, #10683, PC1 Mike KROUSTALLIS, #10069, Sgt. Scott KINGDON, #5423 (“MOS”); TORONTO TRANSIT COMMISSION (“TTC”), John WRAY, TEI #30075 (“JW”); CORSETTI PARALEGAL PC and Cathy & Leo CORSETTI (“CORSETTI PC”); LANDLORD AND TENANT BOARD (“LTB”); Sylvia WATSON (“SW”)

Defendants

Before: Master Thomas Hawkins

Appearances:
Natalie Kolos for moving defendants Toronto Police Services Board, Det. Andrew TAYLOR #5336, PC Ali REZVANI, #10047, Det. Marie FARRUGIA, #7084, PC Bobby Chia-Hu HUANG, #9515, PL12 Mark ROBELLO, #8790, PC Hao Ge, #10130, PC 21 Jennifer TABORSKI, #10490, PC11 Don LAUREL, #10271; PC11 R. FIGLARZ, #90231, PC12 J. MORRIS, #86904, PC N. MOZOLEV, #9798; PC W. MacDONALD, #10683, PC1 Mike KROUSTALLIS, #10069, and Sgt. Scott KINGDON, #5423

F (416) 361-2732

Mark Gledhill, responding plaintiff, in person

3110 Sheppard Avenue East #404

Scarborough, Ont. M1T 3J8

No one for other defendants

REASONS FOR DECISION

Nature of Motion: Setting Aside Noting of Default

[1] This is a motion in part by the defendant Toronto Police Services Board (the “TPSB”) for an order under subrule 19.03(1) setting aside the noting of default of the TPSB.

[2] Subrule 19.03(1) provides as follows.

The noting of default may be set aside by the court on such terms as are just.

[3] The statement of claim was issued on May 2, 2014 and served on the TPSB later the same day. The plaintiff had the registrar note the TPSB in default on May 30, 2014 without further notice to the TPSB.

[4] The plaintiff has not obtained default judgment against the TPSB.

[5] The TPSB and the 14 defendants who are Toronto police officers retained counsel. On June 11, 2014 they served a motion record for this motion on the plaintiff and the other defendants.

[6] On June 23, 2014 the TPSB and the 14 Toronto police officer defendants also served the plaintiff and the other defendants with a supplementary affidavit of Charetina Lougheed. Ms. Lougheed also swore the supporting affidavit in the moving defendants’ motion record.

[7] In her supplementary affidavit Ms. Lougheed states that the plaintiff sent the envelope containing the motion record back to her firm with a note on the envelope stating that the plaintiff had been improperly served by means of unauthorized subservice. In her supplementary affidavit Ms. Lougheed says that the motion record had been properly served by mail on the plaintiff.

[8] The plaintiff is a party acting in person. The motion record is not an originating process. The motion record was mailed to the plaintiff at the address he provided on the backsheet of the statement of claim. This is a method of service of the motion record permitted by subrules 16.01(3) and (4). Ms. Lougheed is correct. The motion record was properly served on the plaintiff.

[9] This motion has been brought promptly. There has been no delay by the moving defendants that requires an explanation.

[10] Many defendants moving to set aside a noting of default include in their motion materials a draft of the statement of defence they propose to deliver if their motion is successful. Here the moving defendants have not done so. That is because the moving defendants also seek an order striking out the statement of claim in part under rule 25.11. I deal with that part of the present motion below beginning at paragraph [21].

[11] It is apparent from the conduct of their law firm that the moving defendants always intended to defend this action.

[12] This motion was argued before me on June 30, 2014. The only persons who participated in argument of this motion were Ms. Kolos for the moving defendants and the responding plaintiff in person. The other defendants were served with the motion record. They would presumably be pleased if this motion is completely successful. However none of the other defendants appeared on this motion.

[13] Ms. Lougheed was not cross-examined on her affidavits. The plaintiff did not file any material in response to this motion.

[14] In Metropolitan Toronto Condominium Corp. No. 706 v. Bardmore Developments Ltd., 1991 7095 (ON CA), [1991] O.J. No. 717, 3 O.R. (3d) 278 McKinlay J.A., who delivered the judgment of the Court of Appeal for Ontario, said the following (at paragraph 18) about what the court should consider on a motion to set aside a noting of default.

Such factors as the behavior of the plaintiff and of the defendant, the length of the defendant’s delay, the reasons for the delay, and the complexity and value of the claim involved are all relevant factors to be taken into consideration. However, I consider that it would only be in extreme situations that a trial judge would exercise his discretion to require an affidavit as to the merits of the defence on a motion to set aside a noting in default.

[15] First, I will consider the conduct of the plaintiff. The plaintiff commenced this action the day after the TPSB and 10 Toronto police officers obtained an order staying another action by the plaintiff. The plaintiff gave the moving defendants and their lawyers no warning that he intended to note them in default in this action. He had no reason to believe they would not defend this action.

[16] Next, I will consider the conduct of the moving defendants. I have already done so to some extent above in paragraph [5] and [6]. I have not been provided with an explanation as to why the TPSB did not respond in some appropriate way to the statement of claim within 20 days of being served with that statement of claim. However this motion was brought so promptly that I do not consider the failure of the TPSB to provide a reason for its failure to respond to the statement of claim in a timely manner to be a fatal omission.

[17] Next there is the factor of the complexity and value of the claim. There are 27 parties to this action: one plaintiff and 26 defendants. The plaintiff claims in excess of $26,000,000 in damages including $4,000,000 against the TPSB alone. The statement of claim alleges that the defendants committed a wide variety of civil wrongs against the plaintiff. In short the action is a very complex one.

[18] Finally, I should consider the prejudice to the parties should the noting of default of the TPSB be allowed to stand or be set aside. As I have said, the plaintiff has filed no material in response to this motion. In argument the plaintiff did not claim that he would suffer material prejudice if the noting of default were set aside. On the other hand, the TPSB will be severely prejudiced if it is prevented from defending this action.

[19] For all these reasons, I have come to the conclusion that the noting of default of the TPSB should be set aside. So ordered.

[20] The plaintiff did not ask that I impose any terms if I set aside the noting of default of the TPSB. I have not imposed any such terms.

Nature of Motion: Order Striking Out Statement of Claim

[21] I now turn to the second part of this motion, namely, the motion by the TPSB and the 14 defendant Toronto police officers for an order striking out the statement of claim without leave to amend.

[22] Counsel for the moving defendants submitted that the statement of claim does not comply with Rule 25. Two provisions in Rule 25 are relevant. The first is subrule 25.06(1). This subrule provides as follows.

Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

[23] The second relevant provision of Rule 25 is rule 25.11. This rule provides as follows.

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[24] The statement of claim begins with the following words.

The Plaintiff claims against the Defendants the following relief.

[25] This is followed by several sections, each setting out the claims against the various defendants or groups of defendants. The statement of claim ends with the following.

9. Any and all such further and other relief at this Honourable Court deems just.

[26] The statement of claim is little more than one long claim for relief. There are almost no allegations of fact. Most of the individual defendant Toronto police officers are not mentioned by name except in the title of proceeding.

[27] By way of illustration, the following is the section of the statement of claim setting forth the allegations against the defendant TPSB, reproduced exactly as they appear in the statement of claim.

3. Against Employer Defendants

4. Against TPSB in the amount of $4,000,000 for vicarious liability of the bad faith of MOS employees: failure to discharge duties in good faith; duty of care owed; deference to Abuse of Process, Intentional Interference with Contractual Relations, Interference with Judicial Process; purported Qualified Privilege: defamation (“inflammatory and defamatory”) slander and libel; purported Ostensible Authority to collude, conspire and ally with MGC, KG, SG, Corsetti PC, MJD, TM, MY and TPS in breach of the Rule of Implied Undertaking; to collude, conspire and ally with MGC, JG, KG, SG, LTB, MJD and MY to allow improper waste disposal at 35 Canyon Avenue that facilitates critters in violation of, contrary to, and interference with City of Toronto Guidelines; deference to unlawful, purported Ostensible Authority to collude, conspire and ally with MGC, KG, SG, CORSETTI PC, MJD, TM and MY to supplant jurisdiction/authority of the LTB through a Recognizance of Bail Stipulation; Illegal Eviction and Vacant Possession; unlawful, purported Ostensible Authority of TPSB MOS to “meddle” acts in deference to collateral attack: an LTB Order is neither Court Order nor Judgment and does not oust the qualified jurisdiction and authority of an Ontario Court of Justice (“OCJ”) Recognizance to Keep the Peace (“Peace Bond”) to replace LTB jurisdiction and authority; further, notwithstanding failure to ‘bind that which binds’, LTB Order supplants RTA Sections 1, 37 and 174 with Abuse of Process and Misapprehension to affect an illegal eviction at the behest and request of an unscrupulous landlord – contrary to an in contravention of the intent of the Residential Tenancies Act (“the RTA”), the Statutory Powers Procedure Act (“the SPPA”), LTB Rules of Conduct (“LTB Rules”), the Paralegal Rules of Conduct (“Paralegal Rules”), the Criminal Code of Canada (“the CC”), the Police Services Act (“the PSA”), Ontario Regulation 268/10 (“TPS Code of Conduct”), LTB Rules of Conduct (“LTB Rules”), the Paralegal Rules of Conduct (“Paralegal Rules”) and the Occupier’s Liability Act (“OLA”); breach of Privacy and Charter Rights: photos taken inside of my unit – in my absence, without my consent, without warrant, behind closed doors, while Plaintiff was in possession – used in matter of TNL-38406-12; to defer to an unlawful, purported Ostensible Authority (“Employer Policy”) – contrary to, and in contravention of, real binding Statutory Authority (“Policy of Law”); conducting a Level 3 Strip Search without cavity search; breach of Rule of Implied Undertaking: confidential Crown disclosure – with respect to an “instigated” criminal matter before the courts and subsequently, res judicata – used to collude, conspire, ally and breach RTA Section 37 in matter of TNL-38406-12 via hearsay testimony of Det. Andrew TAYLOR, #5336, TPS 32 Division without leave of the Ontario Court of Justice (“OCJ”) for relief from compliance; to collude, conspire and ally to provide and facilitate inducement to breach RTA Sections 1, 37 & 174; Inducement to breach of Recognizance of Bail: Right to Enter Notices (“RTE”) notices issued under RTA, respecting a matter already under the jurisdiction and authority of the LTB, compelled invocation of Recognizance of Bail Stipulation; Inducement to breach the RTA: Det. Marie Farrugia, #7084, email communication; unlawful, purported Ostensible Authority to collude, conspire and ally with TPSB MOS to “meddle”; to obstruct and to interfere with judicial process: on-board, on-scene surveillance video seized by TTC employees and provided to TPS Det. Andrew TAYLOR, #5336 and PC Ali REZVANI, #10047, 32 Division, by John Wray, Transit Enforcement Investigator, Investigative Services, #30075, on or about November 11, 2012, collected under the City of Toronto Act and the The Occupiers’ Liability Act, demonstrates owed duty of care was absent; further, information collected in respect of TPS Occurrence #4641077 was disseminated, unlawfully and unauthorized, to third parties in breach of, contrary to and in contravention to the Rule of Implied Undertaking; I was assaulted by another passenger and nothing was done: TPS subsequently ‘parked’ the matter; all affords ‘unjust enrichment’ to the TPSB MOS; and,

[28] The section of the statement of claim that I have just quoted is typical of the style of pleading which the plaintiff has used throughout the statement of claim. Many words are underlined although the statement of claim has not been amended.

[29] Most of the statement of claim is a list of the civil wrongs allegedly committed by persons who are often not identified. There are very few allegations of fact. In the section I have quoted there is only one date mentioned. Otherwise the reader is not told when most of the civil wrongs alleged were committed. Similarly, the reader is not told in most cases what someone did or failed to do that constituted a given civil wrong.

[30] For example, there is a claim for slander and libel. The reader is not told what were the words complained of, when they were published, to whom they were published, how they were published, or what loss the plaintiff suffered as a result.

[31] Take as a whole, the statement of claim does not comply with subrule 25.06(1) because it does not set out a concise statement of the material facts on which the plaintiff relies for the claim. Almost all the material facts are missing.

[32] Many of the allegations are simply unintelligible. For example, there is an allegation that the TPSB is vicariously liable for the bad faith of MOS employees. The term “MOS” first appears in the title of proceeding. What MOS means and to whom or what it refers is not explained. What the MOS employees did or failed to do that amounted to bad faith is not alleged.

[33] The statement of claim does not allege any cause of action against the individual defendant police officers with the possible exception of the defendant Marie Farrugia.

[34] In a part of the statement of claim, which I have not reproduced, there are claims against Marika David, Vadim Krivorutsky TM and MTB although they are not parties to this action.

[35] There are references in the statement of claim to MJD, MT, TM, MTB and TPS. The plaintiff does not allege who or what these entities are. This is another of several ways in which the statement of claim is simply unintelligible.

[36] There are many claims for conspiracy throughout the statement of claim, including several claims for conspiracy in which the TPSB is alleged to have been a conspirator. However the plaintiff does not allege when these conspiracies were formed, what the objective of each conspiracy was, what overt acts the conspirators committed, what were the terms of the conspiracy, or what resulting loss or losses the plaintiff suffered.

[37] The style of pleading which the plaintiff has used is such that the defendants are left in almost complete ignorance as to the case they must meet. The only way to plead to this statement of claim as it stands is to enter a general denial. That would in turn lead to problems in deciding what documents to produce, what questions to ask on examination for discovery and what evidence to lead at trial.

[38] I am therefore of the view that the statement of claim in its current form will prejudice or delay the fair trial of this action within the meaning of rule 25.11.

[39] This is not a situation in which the statement of claim can be amended so as to comply with the Rules of Civil Procedure with a little fine tuning. A complete re-write of the statement of claim is required. I have therefore come to the conclusion that the entire statement of claim should be struck out with leave to amend. So ordered. I decline to strike out the statement of claim without leave to amend since this is the first attack on the statement of claim.

[40] The moving defendants have been successful on this motion and should receive the costs of it. I fix those costs at $1,700 and order the plaintiff pay such costs to the moving defendants within 30 days. If the costs are not paid by then the moving defendants may wish to consider bringing a sanctions motion.

[41] If the plaintiff wishes to deliver an amended statement of claim pursuant to the leave to amend I have given him, I direct that he deliver such amended statement of claim within 60 days.

[42] I direct the moving defendants to serve the formal order disposing of this motion on every party to this action who is defending this action. I do not want to see other defendants bringing motions attacking the statement of claim, ignorant of the outcome of this motion.

[43] I dispense with the requirement that the plaintiff approve the formal order disposing of this motion.

(original signed)_

Master Thomas Hawkins

Date: September 22, 2014