SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
FRED CRAWFORD and JOSE LUQUE
Plaintiffs
-AND-
RUTH CAREY, LILLIAN MA, MICHAEL GOTTHEIL,
DAVID WRIGHT, GUS SAVOY, EGYA SANGMUAH,
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
as represented by the ATTORNEY GENERAL OF ONTARIO,
RON KASHIN/GOLDENROD INVESTMENTS INCORPORATED,
FRED DYER/RIVET DEVELOPMENT CORPORATION,
JASON BOGLE/SACK QC & BOGLE LAW PROFESSIONAL
CORPORATION, ALLEN SOCKEN/SOCKEN LAW PROFESSIONAL
CORPORATION AND JEFF SHABES/G.E.M.S. PARALEGAL
SERVICES PROFESSIONAL CORPORATION
Defendants
BEFORE: F.L. Myers J.
READ: December 4, 2014
endorsement
1On November 7, 2014 I directed the registrar to give notice to the plaintiffs that the court was considering dismissing their action under Rule 2.1. This action was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of counsel for the defendants, Fred Dyer and Rivet Development Corporation, under subrule 2.1.01(6).
2The registrar provided the appropriate notice to the plaintiffs. I have now received and carefully reviewed their written submissions. At its core, the action seems to concern the plaintiffs’ right to possession of premises that are being converted into condominiums. While the plaintiffs were assured that they were not subtenants and that their landlord had rights in the building, there is some dispute between the building owners and the head tenant/landlord. The upshot of this was that the owners tried to have the plaintiffs evicted before the Landlord and Tenant Board. It seems that the proceedings failed at first. There are now court proceedings and some ongoing process at the board which is not clear from the materials. It is not clear whether the board is intending to exercise jurisdiction or if it will fall to the court to do so. But it is clear that there are issues between the building owners, the head tenant/landlord, and the plaintiffs.
3This action was brought against a large number of defendants. It is drafted as a claim under the Charter of Rights and Freedoms and for the tort of malicious prosecution in light of the plaintiff’s initial successful hearings at the Landlord and Tenant Board. The claim included some rather unusual conspiracy claims against Board members and others in government as well as against the lawyers for the building owner and others.
4However, the bulk of those claims have already been dismissed by orders of various judges under Rule 21 in the ordinary course. An appeal from some or all of those dismissal orders is apparently coming on for hearing shortly.
5The parties driving this Rule 2.1 review are Fred Dyer and his company, Rivet Development Corporation. The statement of claim does not set out their precise roles. It links them with the building owner and in their “factum” in response to this motion, the plaintiffs say that Rivet is the proposed condominium developer. In the statement of claim, Mr. Dyer is alleged to have been present at the Landlord and Tenant Board assisting in the first proceedings and during acts of alleged misconduct.
6With the claims against the government, tribunals and governmental officials gone, and the claims against the legal representatives of the parties opposite gone, what is left is an inelegantly drafted commercial claim for tortious acts against the building owner and its developer. It is apparent form their factum that the plaintiffs are intent on continuing in their efforts to sue the government. That is an issue for the Court of Appeal. What remains before me, according to the plaintiffs, is a claim for “conspiracy, fraud, abuse of process, malicious prosecution, misfeasance in public office and interference with economic relations” against the building owner and developer whom the plaintiffs contend have wrongly sought to evict them despite their leases. While the statement of claim may well need amendment if these torts are to be pled properly (and the tort of misfeasance in public office I take to be directed only at the government officials), I do not view this as a case for Rule 2.1.
7Reading the statement of claim generously, discloses the gist of commercial tort allegations against the commercial parties. The factual elements of many of the torts listed above may be discernable in the pleading. I have not scanned the pleading in depth as that is not the role of Rule 2.1. In Gao #1, 2014 ONSC 6100, I wrote:
9Rule 2.1 is not meant to apply to close calls. It is not a short form of summary judgment.
8To the same effect in Gao #2, 2014 ONSC 6497, at para. 18:
It should be borne in mind however, that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring to an early end to vexatious proceedings, the matters should not be considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed.
9This is not to say that the plaintiffs will win their lawsuit. The remaining defendants may still bring pleadings motions on proper notice, evidence if admissible, and subject to oral argument as may be appropriate. However, I am not satisfied that what remains before me now is so plainly devoid of merit or has been conducted in such a vexatious manner that the limited procedure provided under subrule 2.1.01(3) is appropriate and proportionate.
10The stay imposed in the endorsement of November 7, 2014 is lifted. The motion is dismissed. The plaintiffs may make costs submissions of not more than 3 pages in length supported by a Costs Outline in proper form under the Rules by serving them on counsel for Mr. Dyer and Rivet Development Corporation, and then delivering them with proof of service to my attention at 361 University Avenue, Room 170, Judges’ Administration on or before December 19, 2014. Counsel for Dyer and Rivet Development Corporation may respond by serving on the plaintiffs and delivering to my attention with proof of service, submissions of not more than 3 pages in length by December 31, 2014.
________________________________ F.L. Myers J.
Date: December 5, 2014