ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-840-12
DATE: 2014-02-10
B E T W E E N:
Tamas Hajos and Eva Hajos
Appearing in Person
Plaintiffs
- and -
Tom David personally, Barrister and Solicitor,
(also known as Moshe Tomi Thomas David,
Barrister and Solicitor, and as Tom David,
Medical Malpractice Lawyer), David & David,
Barristers and Solicitors, (also known as
David & David, Barrister and Solicitor, as
David & David, Trial Lawyers, as David &
David, Personal Injury Lawyers, and as David
& David, Medical Malpractice Lawyers),
Suzette F. A. Bailey, Josephina Benic, Lori
Fanfoni, Maurice J. Neirinck, personally, Barrister
& Solicitor, Maurice J. Neirinck & Associates,
Barristers and Solicitors, Toronto Assessment
Office, Ontario Superior Court of Justice
Ms. Mary Jane Bujold, Jane Doe and John Doe
Natasha Wilson, Counsel for the Defendants,
Toronto Assessment Office, Ontario Superior
Court of Justice and Ms. Mary Jane Bujold
(Ministry of Attorney General
Crown Law Office – Civil)
Defendants
HEARD: December 18, 2013
THE HONOURABLE MR. JUSTICE P.J. FLYNN
REASONS FOR JUDGMENT
[1] This long motion was brought by the Ministry of the Attorney General Crown Law Office – Civil for an Order striking the Plaintiffs’ Statement of Claim and dismissing the action as against the “Crown Defendants” without leave to amend on several grounds:
(i) the Statement of Claim fails to disclose any reasonable cause of action pursuant to Rules 21.01(1)(b) and 25.06(1) of the Rules of Civil Procedure;
(ii) the claim is frivolous, vexatious and an abuse of process pursuant to Rules 21.01(3)(d) and 25.11;
(iii) the “Toronto Assessment Office, Superior Court of Justice” (the Toronto Assessment Office) is not a suable entity pursuant to Rules 21.01(1)(a) and 21.01(3)(b); and
(iv) the claim against the Toronto Assessment Office is a nullity pursuant to Rules 21.01(1)(a) and 21.01(3)(a) because:
(a) the Plaintiffs did not properly designate Her Majesty the Queen in Right of Ontario (the Crown) as a Defendant in the proceedings in accordance with s.9 of the Proceedings Against the Crown Act (PACA); and
(b) the Plaintiffs failed to serve the Crown with properly constituted notice of the claim in accordance with sections 7(1) and 10 of PACA and Rule 16.02(1)(g).
[2] This is a sad case.
[3] Not only was the Plaintiff Eva Hajos catastrophically injured in the April 7, 1996 motor vehicle accident that set off this difficult journey through the courts; but the Plaintiffs’ involvement with this litigation resulted in her husband spending virtually all of his waking hours in a quixotic search for justice.
[4] They appeared before me, a sympathetic couple. He, well dressed and articulate and evidently very bright and she, in a wheelchair, contributing very little to the argument.
[5] After the accident they hired a lawyer (David) to pursue their accident-related claims, in the Fall of 1996. But he withdrew his services in the Fall of 2005.
[6] So they sued him in 2007. That resulted in Mr. David filing a Requisition for Assessment in the Superior Court at Toronto.
[7] A preliminary appointment for the assessment was scheduled for February 11, 2008 and the Plaintiffs brought a motion to stay the assessment proceedings pending resolution of their claim against David.
[8] Then all went off the rails.
[9] David says Mr. Hajos told Ms. Bujold that the appointment was being adjourned on consent – something Mr. Hajos denies.
[10] But the preliminary appointment was nonetheless adjourned.
[11] Then Mr. David’s solicitor rescheduled the matter to September 5, 2008.
[12] In January 2009, the Plaintiffs’ motion to stay was dismissed.
[13] The assessment application was withdrawn on consent in March 2009 and the Plaintiff’s paid Mr. David in full.
[14] The Plaintiffs, on their own, commenced this action on September 24, 2012.
[15] The Statement of Claim contains 581 paragraphs. It is 285 pages in length.
[16] The Plaintiffs claim that in authorizing an adjournment of the assessment proceedings over the telephone, Ms. Bujold and the Toronto Assessment Office violated their own procedures and are guilty of misrepresentation, negligence and discrimination.
[17] In early March 2013, Ms. Bujold and the Crown Law Office – Civil were served with the Claim but there had never been served a Notice of Claim prior to that.
[18] In March 2013, counsel for the Crown Defendants wrote to advise the Plaintiffs of the many deficiencies in their claim and suggested that they discontinue.
[19] But Mr. Hajos responded right away that they would be pressing on.
[20] However, without any formal motion or order, on September 27, 2013, the Plaintiffs served an “Amended Statement of Claim” on the Crown Defendants.
[21] The title of the proceedings in that Amended Claim is changed to show the Defendants as
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (as represented by the Toronto Assessment Office, Ontario Superior Court of Justice), MARY JANE BUJOLD.
[22] The amended pleading makes new allegations against the Crown Defendants, namely that they are also guilty of fraud, fraudulent misrepresentation, misfeasance in public office and conspiracy.
[23] That Amended Statement of Claim is a slimmer 300 paragraphs contained in 257 pages.
[24] I agree with the Crown Defendants that the “Amended” pleading does not disclose reasonable causes of action nor sufficient particulars for any of the additional complaints. I also agree with the Crown Defendants that because, although served, the Amended Statement of Claim had never been properly amended by motion or order, it was not properly before me. I declined therefore to address it.
[25] In response to the Factum of the Crown Defendants on this motion, the Plaintiffs delivered a 52 page Factum of their own.
[26] It is clear from a close reading of that document that the Plaintiffs have significant complaints and issues with the Defendant DAVID.
[27] In the first two parts of their Factum (Introduction and the Facts), in some 45 paragraphs (over 19 pages), “central to the fraud is David”. Virtually nothing else is dealt with in these paragraphs.
[28] Mr. Hajos’ writing is articulate, clear, crafty and compelling and as is set out in paragraph 10 (b):
For the most part this action, C-840-12 concerns fraud and related improper activities, that fit together like Russian wooden nesting dolls, or like the layers of an onion, where when you peel one off you find another one revealed underneath. Central to the fraud is DAVID, with the other parties lending their willing assistance …”
[29] I agree with the Crown Defendants that is plain and obvious that the Plaintiffs’ claim does not disclose a reasonable cause of action against them and should be struck on that ground alone. This is so even though the Plaintiffs have the benefit of an assumption that the pleaded facts are true and must be read generously.
[30] But the claim is replete with assumption, speculation and bald allegation.
[31] The facts are simply insufficient to disclose a reasonable cause of action.
[32] The Plaintiffs claim “misrepresentation, intentional and/or negligent misrepresentation”.
[33] There is no cause of action for “misrepresentation” or “intentional misrepresentation”.
[34] And there are no facts pleaded that there was a misrepresentation made to the Plaintiffs by the Crown Defendants where there was a special relationship between them or that the Crown Defendants acted negligently in making any such misrepresentations. Nor is there a pleading that the Plaintiffs relied on them to their detriment.
[35] Hence, the Statement of Claim does not contain sufficient particulars to disclose a claim for negligent misrepresentation against the Crown Defendants.
[36] The Plaintiffs have also pleaded negligence.
[37] But there can be no claim in negligence absent a private duty of care unless one is legislatively defined.
[38] Here, the Plaintiffs have failed to plead any facts to support any allegations of negligence. There is not pleaded any special relationship, nor any legislative scheme, nor any standard of care breached by the Crown Defendants which resulted in damage to the Plaintiffs.
[39] There is no reasonable cause of action in negligence against the Crown Defendants.
[40] As for the Plaintiffs’ allegations that the Crown Defendants “acted in a discriminatory way” and violated the Charter, the Plaintiffs have not pleaded any facts to support a claim for discrimination or any differential treatment that is based on an enumerated or analogues ground under s.15 of the Canadian Charter of Rights and Freedoms.
[41] Hence the Plaintiffs’ claim does not disclose a reasonable cause of action here either.
[42] In sum, the Plaintiffs’ claim discloses no reasonable cause of action known at law against the Crown Defendants and must be struck.
[43] The Crown Defendants also argue that the Plaintiffs’ claim is frivolous and vexatious because it fails to plead sufficient material facts capable of supporting any cause of action known to law against the Crown Defendants.
[44] Because of the reasons and the conclusions I have outlined above, there is no need for me to address these complaints.
[45] The Assessment Office is not a suable entity.
[46] A government department cannot be sued in its own name unless its constituting statute makes it liable to sue. Here, the so-called entity being sued is not even a government department, but merely an office attached to the Superior Court of Justice.
[47] So, even though I have concluded that the entire claim be struck and dismissed as not disclosing any reasonable cause of action, for what it is worth, I would hold that the same pleading be struck and the action dismissed as against the non-suable entity titled “Toronto Assessment Office, Superior Court of Justice”.
[48] Finally, there is one more fatal flaw to the Plaintiffs’ proceeding.
[49] PACA provides that the Crown is vicariously liable for the acts or omissions of its servants.
[50] But the action against Ms. Bujold and the Toronto Assessment Office, even had the Defendants been properly designated as “Her Majesty the Queen in Right of Ontario” would fail because s.7(1) of PACA requires the Crown be provided with at least 60 days’ notice contained sufficient particulars to identify the occasion out of which the claim arose, prior to an action being commenced against the Crown. This court does not have the discretion to waive that notice requirement.
[51] An action commenced against the Crown without the Crown having been served with the requisite notice is a nullity and must be dismissed.
[52] Here, despite Mr. Hajos’ efforts to demonstrate that such notice was delivered, I would find that there was no properly constituted notice served upon the Crown.
[53] I would therefore conclude, whether drafted under the title before me in the original Statement of Claim filed or as shown on the improperly Amended Statement of Claim, the claim against the Crown Defendants is a nullity and must be struck and dismissed.
[54] In sum then, the Plaintiffs’ claim as against the Crown Defendants must be struck and dismissed:
(i) as disclosing no reasonable cause of action whatsoever, and
(ii) because the action as against these Crown Defendants is a nullity and was brought without the required notice.
Costs
[55] These Crown Defendants have been completely successful and, if sought, ought to be entitled to their costs.
[56] If asked, I will fix those costs following the delivery of the parties’ submissions, as follows:
(a) on or before March 10, 2014 the Crown Defendants shall serve and file with me at my Kitchener chambers their Form 57B Costs Outline, not augmented by more than two pages, together with their Bill of Costs, if any, and any relevant Offer(s) to Settle;
(b) on or before April 7, 2014 the Plaintiffs shall serve and file with me at my Kitchener chambers brief submissions as to costs in response to the submissions of the Crown Defendants not exceeding five pages, together with any relevant Offer(s) to Settle; and
(c) should it be required, the Crown Defendants shall serve and file very brief reply submissions by April 17, 2014.
P.J. Flynn J.
Released: February 10, 2014
COURT FILE NO.: C-840-12
DATE: 2014-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tamas Hajos and Eva Hajos
Plaintiffs
– and –
Tom David personally, Barrister and Solicitor,
(also known as Moshe Tomi Thomas David,
Barrister and Solicitor, and as Tom David,
Medical Malpractice Lawyer), David & David,
Barristers and Solicitors, (also known as
David & David, Barrister and Solicitor, as
David & David, Trial Lawyers, as David &
David, Personal Injury Lawyers, and as David
& David, Medical Malpractice Lawyers),
Suzette F. A. Bailey, Josephina Benic,
Lori Fanfoni, Maurice J. Neirinck, personally,
Barrister & Solicitor, Maurice J. Neirinck &
Associates, Barristers and Solicitors, Toronto
Assessment Office, Ontario Superior Court of
Justice, Ms. Mary Jane Bujold, Jane Doe
and John Doe
Defendants
REASONS FOR judgment
P.J. Flynn J.
Released: February 10, 2014
/lr