Court File and Parties
CITATION: Nemmour v Durdle et al., 2015 ONSC 3772 COURT FILE NO.: CV-15-524642 DATE: 20150612
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mohamed Nemmour, Plaintiff -and- Carson Durdle, Sandra Rice, Gord Tanner, Defendants
BEFORE: F.L. Myers J.
COUNSEL: B. Smith for the Defendant Tanner A. Pasalic for the Defendants Durdle and Rice M. Nemmour the Plaintiff on his own behalf.
READ: June 10, 2015
Endorsement
[1] This matter was referred to the court by the registrar upon the requisition of the defendant Tanner. By Endorsement dated April 20, 2015, I directed the registrar to give notice to the plaintiff under Rule 2.1.01(3)(1) that the court was considering dismissing this action for being frivolous, vexatious, or an abuse of process on its face. Under the abbreviated process of Rule 2.1, the plaintiff was given 15 days to provide up to 10 pages of written submissions to satisfy the court that his claim should not be dismissed.
[2] To assist the plaintiff focus his submissions, I wrote:
The statement of claim contains a very large number of allegations of wrongdoing against many named and un-named people. But what the plaintiff ultimately claims seems to be enforcement of the City of Toronto Shelter Standards and a Staff Code of Conduct. The plaintiff asks for staff and management accountability on issues that he raises concerning nutrition, unhealthy conditions, unsafe environment, lack of security and risk of physical harm to shelter residents. While these are important goals, there is nothing that a civil lawsuit can do to provide them to the plaintiff. For a plaintiff to sue people, he needs to set out in the statement of claim, facts that support legally recognized bases for a lawsuit to succeed.
On its face, the statement of claim does not appear to do that at this time. Therefore the plaintiff should be sent a notice that the court is considering dismissing his lawsuit on the grounds that it is frivolous and vexatious on its face.
[3] The plaintiff provided three pages of written submissions dated May 11, 2015. He says that he seeks damages from the defendants for injuries that he suffered due to their negligence and violation of various legal rules and standards. He writes in generalities of violence against him escalating as he tried to utilize a formal complaints procedure.
[4] By endorsement dated May 14, 2015, that is not reported, I called upon the defendant Tanner to make submissions in response to the plaintiff’s submission. I wrote:
…While his Statement of Claim is inelegantly drafted and most likely over-reaches the relief that is legally available, I am not convinced that, at its core, there is no viable cause of action that might be amenable to a lawsuit if pleaded properly.
Having said that, the claim is difficult to read and I would be assisted to hear from the defendant as there may be issues that I have not discerned just from my own perusal of the pleading and the plaintiff’s submissions.
[5] I have now received written submissions from counsel for the defendant Tanner and from counsel for the other two defendants.
[6] Mr. Tanner is pleaded by the plaintiff to be the “Acting director of Hostel Services, Municipality of Toronto.” Mr. Tanner’s counsel relies upon the immunity provided to City officials for acts in good faith under s.391(1) of the City of Toronto Act, 2006 S.O. 2006 c.11, Sch A. Moreover, he argues that standards of services at City shelters are policy decisions that are protected by s.390 of the same statute. He argues that the City’s handling of complaints is an exercise of a discretionary statutory power of decision that can only be challenged in court by an application for judicial review under the Judicial Review Procedure Act, RSO 1990, c.J.1. He also notes that there are no particulars of any wrongdoing pleaded against Mr. Tanner.
[7] There are some issues of fact referred to in all of the parties’ submissions. There is no evidence admissible in this process in my view. In any event, none of the parties delivered an affidavit. Simply by way of background then, I note that the plaintiff pleads in para. 2 of the Statement of Claim that he has been carrying on a demonstration outside the Legislature buildings at Queen’s Park, Toronto promoting human rights. He expects to be running marathons around Queen’s Park each day for the next four or five years under the sign “1000Marathons for the Ontario Human Rights to Live Everywhere, for Everyone…” His protest has included hunger strikes and he may have tried to live at Queen’s Park for a period of time. He pleads that he was forced to join a City shelter due to a legal matter.
[8] Mr. Tanner’s counsel submits that:
The City has assisted Mr. Nemmour to obtain a library card, provided him with water and vitamins when he was fasting, offered him food and housing when he was engaged in a hunger strike, facilitate medical care when required, and has made efforts to provide appropriate housing, SSH records also indicate that the Plaintiff has himself been abusive towards, and threatened, shelter staff, rather than the inverse.
[9] The plaintiff pleads that the defendant Carson Durdle is employed by the Salvation Army as the Executive Director of Hope Shelter. He pleads that the defendant Sandra Rice is the Director of The Ontario Central East Division, Salvation Army with legal authority over all Salvation Army shelters in Toronto. Their counsel pleads that at best, the Plaintiff’s claim appears to express dissatisfaction with the handling of complaints that he made and questions whether the Hope Shelter was meeting municipal standards. They say that there is no claim stated against them in the plaintiff’s pleading. Moreover, even if the Hope Shelter did not meet Salvation Army or City of Toronto standards, the plaintiff has no right in law to bring a lawsuit against the defendants arising from that.
[10] As I explained to Mr. Nemmour in my first Endorsement, “[f]or a plaintiff to sue people, he needs to set out in the statement of claim, facts that support legally recognized bases for a lawsuit to succeed”. He has not done so. Moreover, much of what he has written uses curious references to “sshelter” and “eshelters” that raise a question as to whether Mr. Nemmour has sufficient clarity of thought or expression to carry a lawsuit.
[11] Rule 2.1 is a blunt instrument. It authorizes the court to dismiss a lawsuit that is frivolous or vexatious on its face. I have written previously that it is not for close calls. Gao v. Ontario WSIB 2014 ONSC 6100. I have given thought to striking the statement of claim with leave to amend so as to provide Mr. Nemmour with a chance to set out a clear set of facts to support his allegation that he is entitled to damages from the defendants. As I have now heard from both sides, I am somewhat more emboldened to consider concepts under Rules 21.01 and 25.10 or to attach terms to an order under Rule 1.05 to protect a cause of action that may lie beneath jumble contained in the statement of claim. All things considered however, if Mr. Nemmour actually has a claim for damages for negligence, it is not against the executives of the City and the Salvation Army. Nothing that he has pleaded shows that he has or can state any basis to sue any of the three defendants. He might be able to sue the City or, more likely, to seek judicial review against it. If he could set out a very clear story of an individual committing a particular wrongful act that injured him, he might be entitled to sue others or the Salvation Army as the owner or operator of the shelter. But none of that would be properly brought in an amended pleading in this action.
[12] I am satisfied that the plaintiff’s action cannot succeed and therefor is rightly characterized as frivolous. Gao v. Ontario WSIB, 2914 ONSC 6497 at para. 22. The pleading contains elements associated with vexatious or querulous litigants and therefore this is a proper case for the application of Rule 2.1. The action is therefore dismissed.
[13] The defendants are entitled to their costs if demanded payable forthwith after assessment by an assessment officer.
[14] I dispense with any need for the plaintiff to approve the form or content of formal order.
[15] The registrar is directed to deliver this Endorsement to the plaintiff and counsel to the defendants by mail or by email if it has their email addresses. The registrar shall serve the order on the plaintiff as provided by Rule 2.1.01(5).
F.L. Myers J.
Date: June 12, 2015