SUPERIOR COURT OF JUSTICE
B E T W E E N:
AHASANULLAH CHOWDHURY
Plaintiff
- and -
BANGLADESHI-CANADIAN COMMUNITY SERVICES,
BUSINESS #866914013RR001 and CITY OF TORONTO and
TORONTO COMMUNITY HOUSING CORPORATION
Defendants
M O T I O N P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE K.P. WRIGHT
on May 26, 2015, at TORONTO, Ontario
APPEARANCES:
A. Chowdhury Self-represented
P. Davis Counsel for Dr. Abu Arif
S. Clements Counsel for Warden Woods
D. Tortell Counsel for Toronto Legal Services
J. Singha Counsel for Alam Moral
N. Akter Agent for Bangladeshi-Canadian Community Services
O. Raubfogel Counsel for Toronto Community Housing
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Exam. Cr- Re-
WITNESS: in-Ch. exam. exam.
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
Transcript Ordered: .................... June 24, 2015
Transcript Completed: .................. July 10, 2015
Ordering Party Notified: ............... July 10, 2015
TUESDAY, MAY 26, 2015
J U D G M E N T O N M O T I O N
WRIGHT, J. (orally):
Introduction
Toronto Community Housing brings this motion seeking an order to:
Set aside the noting in default against the Toronto Community Housing.
The striking of any order that the plaintiff may have obtained against Toronto Community Housing during the period it was noted in default.
Striking the Statement of Claim in its entirety against the Toronto Community Housing without leave to amend.
Background
Mr. Chowdhury along with his wife and two children, have been residential tenants of the Toronto Community Housing since 2010.
On January 6th, 2015, he served Toronto Community Housing with a Statement of Claim.
On or about January 12, 2015, Toronto Community Housing advised the plaintiff in writing that they intended to bring a motion to strike the claim and that he refrain from the noting in default until after the motion.
On or about January 28th, 2015, Toronto Community Housing received an email from the plaintiff acknowledging their letter and advising them that despite their letter he elected to note them in default.
On February 6th, 2015, after further communication the plaintiff would not consent to having the default set aside.
On March 26th, 2015, the plaintiff brought a motion for default judgment. Justice Spence declined to order default judgment and ordered the matter adjourned so that Toronto Community Housing could be properly served.
Setting Aside the Noting in Default
The test for setting aside a noting in default was articulated by the Ontario Court of Appeal in a recent case of Intact Insurance Company v. Kisel, 2015 ONCA 205.
I find that the Toronto Community Housing acted promptly and in good faith at all times making their intention clear to the plaintiff. Their intention was to defend this matter from the outset. The plaintiff on the other hand, in my view, acted in bad faith from the outset.
I agree given the nature of the claim combined with the high value attached to it, that Toronto Community Housing would suffer serious prejudice if the Court did not set aside the noting in default.
The plaintiff, on the other hand, would suffer no prejudice; accordingly, the noting in default will be set aside.
Motion to Strike
I will now turn to the motion to strike the Statement of Claim.
The test for striking out a Statement of Claim that discloses no cause of action was articulated by the Superior Court of Justice in a case that is in the Toronto Community Housing’s material, Aristocrat Restaurants Ltd. v. Ontario (2003), Carswell Ont 5574.
The Court stated that a plaintiff must, at a minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed and must plead all facts that it must prove to establish the cause of action.
The Court also held that vague allegations that make it impossible for an opposing party to rely upon should be struck. A pleading that shows a complete absence of material facts is considered frivolous and facetious.
Only paragraph 22 of the plaintiff’s Statement of Claim contains allegations against the Toronto Community Housing and I do not intend to repeat that now. In that paragraph the plaintiff appears to be challenging the rent subsidy calculation. I agree with the defendants that the Superior Court of Justice has no jurisdiction over those matters and I completely adopt the defendants' submissions on the issue found in their factums at paragraphs 40 through 43.
The remainder of the plaintiff’s claim amounts to nothing more than bold allegations completely without any evidentiary foundation and they are at best nonsensical. The same attaches to his claim for a million dollars in damages. There are absolutely no particulars to ground or substantiate such an extraordinary claim. It is entirely arbitrary and does not bear any connection to the wrongs that were allegedly perpetrated against him.
Conclusion
I appreciate that there are many other bases for this motion, however, in my view there is no need for the Court to go on and consider them. The claim, in my view, is entirely frivolous, facetious and an abuse of process.
Accordingly, it will be struck in its entirety
against these defendants without leave to amend.
J U D G M E N T O N M O T I O N
WRIGHT, J. (Orally):
Introduction
The City of Toronto and the Toronto Police Services Board have brought this motion to strike the statement of claim against them as it discloses no reasonable cause of action against them on the basis that it is frivolous, vexatious and an abuse of process.
I rely entirely on the facts as set out in the moving party's factum.
I agree with the moving party that the plaintiff's challenge:
Under the Freedom of Information Act, and;
His application for Ontario Works assistance,
are beyond the jurisdiction of this court and must be determined be the office of the Information and Privacy Commissioner of Ontario, and the Social Benefits Tribunal respectively.
With respect to his claim that his participation as a mentee in the volunteer City of Toronto Mentorship Program entitles him to employment with the City it has no basis in law, even if one were to accept the facts in his statement of claim as true.
Moreover and of more concern are, are the plaintiff's bald allegations that the defendants have invaded his privacy, placed him under surveillance and engineered his ongoing harassment and torture.
I find this to be completely unsupported on the materials before me and as such can only be defined as inflammatory, frivolous, vexatious and an abuse of process.
Conclusion
I find that the statement of claim is without merit and without any possible chance of success.
Accordingly there will be an order striking the statement of claim against the defendants in its entirety without leave to amend.
J U D G M E N T O N M O T I O N
WRIGHT, J. (Orally):
Introduction
Dr. Arif brings a motion for an order striking out the statement of claim as against him without leave to amend.
The majority of the allegations involving Dr. Arif are contained in paragraphs 10, 44 through 47 in the plaintiff's statement of claim. The plaintiff's complaints about the doctor relate only to Ms. Fatima (ph), his wife at the time. The care about which the plaintiff complains occurred in February 2011 through to July 2011. The claims before this court were not commenced until December 2014, well outside the two year limitation period.
In response, the plaintiff states that he discovered the claim within the limitation period without any evidentiary support. His position, as I understand it, is contrary to his own written materials.
Conclusion
I find that the plaintiff's claim was discoverable in 2011 and as such is well outside the limitation period. Although this finding makes it unnecessary to go on and consider the other grounds for an order striking the claim, I am prepared to further consider this matter and in my review of the material I am satisfied that the plaintiff has failed to disclose any reasonable cause of action against Dr. Arif and there is no reasonable prospect of success if it were to move forward.
Finally, under Rule 21.01(3)(d) and 25.11, a court can strike a claim that it finds to be scandalous, frivolous, vexatious and/or an abuse of process. These nonsensical, outrageous and unsupported allegations put forth by the plaintiff amount to such a finding.
Accordingly for the reasons set out, the statement of claim against Dr. Arif will be struck without leave to amend.
J U D G M E N T O N M O T I O N
WRIGHT, J. (Orally):
Mr. Alam Moral brings this motion seeking an order from this court to strike the statement of claim against him in its entirety as it discloses no reasonable cause of action.
Initially Mr. Chowdhury took the position that he was not served with Moral's materials in the seven days that's required under the rules. I find that the materials were served in accordance with the rules of civil procedure and we will proceed today.
The relationship between the plaintiff and the defendant was a short-term landlord/tenant relationship.
After review of the statement of claim I accept the defendant's argument that only paragraphs 26, 33 and 34 relate to the defendant. Of those that do relate to the defendant I find that they are so vague and nonsensical it would be impossible for the defendant to reply. These bald, baseless allegations can only be described as frivolous, vexatious and they do, in my view, very much amount to an abuse of process.
Accordingly they will be struck in their entirety against the defendant without leave to amend.
J U D G M E N T O N M O T I O N
WRIGHT, J. (Orally):
Introduction
Today Warden Woods Church and Community Centre brings this motion to strike the statement of claim against them as it fails to disclose any reasonable cause of action.
Background
From November 30th, 2010 to March 31st, 2014, the plaintiff, as I understand it, was a volunteer driver in the Meals on Wheels program at Warden Woods.
The sole allegations against Warden Woods is set out in paragraphs 41 through 42 of the statement of claim, with some further and new references being made in their factum. They relate primarily to a person named Chris. Warden Woods believes that the reference is to a man named Chris Greenwood, because he was also a volunteer driver in that program.
The plaintiff asserts that the statements made by Chris are wrongful acts and that Warden Woods is liable as a result of them.
Analysis
I agree with the moving party, Warden Woods, where they set out in their materials that the wrongful acts alleged by the plaintiff do not give rise to a cause of action recognized in law.
There is absolutely no support for a finding that they could or should be attributable by implication or otherwise to Warden Woods.
Moreover, after taking into consideration the statement of claim and the new assertions made out in the plaintiff's factum, I find that all the allegations are completely and totally nonsensical. They lack an evidentiary foundation, are without merit offering no prospect of success.
The action is without a doubt, in my mind, frivolous, vexatious and an abuse of process.
It will be struck in its entirety against the defendants with no leave to amend.
Conclusion
The statement of claim will be struck in its entirety against the defendants with no leave to amend.
J U D G M E N T O N M O T I O N
WRIGHT, J. (Orally):
Introduction
The Bangladesh Canadian Community Services, (BCS) brings this motion seeking an order for this court to strike the statement of claim against them, in its entirety, without leave to amend, on the basis that it discloses no reasonable cause of action.
Background
The plaintiff in his materials seems to be complaining about the BSC intentionally targeting him and his wife. He seems to allege some kind of conspiracy theory of which he was the focus, and that the BCS, along with the City of Toronto and Toronto Police Services were circulating information about him abusing his wife.
Analysis
Try as I might to understand what the plaintiff is alleging, I am at a loss. The statement of claim, in my view, is indecipherable. I find that it is so vague and nonsensical that it would be impossible for the defendant to reply. The bald baseless allegations can only be described as frivolous, vexatious and they do, in my view, very much amount to an abuse of process.
Conclusion
Accordingly they will be struck in their entirety against the defendant without leave to amend.
...PROCEEDINGS CONCLUDED