ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-3962-00
DATE: 2015-07-02

BETWEEN:

GIRGA PERSAUD
Plaintiff

– and –

BOUNDRY ROAD APTS. LTD., ELLIOT DALE, SHANA DALE, AND V.W.R. CAPITAL CORP.
Defendants

Self-represented

Allison Speigel, for the Defendants Elliott Dale and Shana Dale
Matthew Wise, for the Defendant V.W.R. Capital Corp.

HEARD: June 15, 2015

REASONS FOR DECISION

Daley RSJ.

Factual Background:

[1] The defendants Elliott Deal and Shana Dale (the “Defendants Dale”) along with the defendant V.W.R. Capital Corp. (“VWR”) all requested that the court dismiss or stay the plaintiff’s action against them in accordance with Rule 2.1.01 of the Rules Of Civil Procedure on the basis that the action is frivolous and vexatious. The Defendant Boundry Road Apts. Ltd. (“Boundry”) did not seek the same relief pursuant to that rule and it did not participate in the filing of any materials or in making any submissions before the court.

[2] Following the filing of the written requests by the moving defendants, pursuant to Rule 2.1.01, the plaintiff filed written submissions in accordance with Rule 2.1.01(3). While a party’s request for an order dismissing or staying an action pursuant to this rule may be done in writing, I determined that an opportunity would be given to the plaintiff to supplement his written submissions by way of oral submissions.

[3] The plaintiff was given an opportunity to retain and consult counsel, however he did not do so and the matter proceeded by way of oral submissions with the plaintiff representing himself.

[4] The plaintiff sought to file a factum in this matter, and was given leave to do so. The document served and filed by the plaintiff, purporting to be a factum, was no more than an unsigned statement by the plaintiff with various documents attached. It was not a factum, nor an affidavit. I determined that the information contained in the so-called factum was inadmissible so far as this proceeding is concerned and as such it was not considered by me in determining the outcome.

[5] The factual background to this action must be considered in order to put the claims asserted in the amended statement of claim, which is under attack, in proper context.

[6] In 2008 the plaintiff’s spouse, at the time, Vedawattie Singh (“Singh”) was the sole registered owner of the property, which is the subject of the action, which is municipally known as 32 Bristol Avenue, Brampton (the “Property”).

[7] In August 2013 defendant VWR, as mortgagee advanced the sum of $255,000 to Singh as the owner and mortgagor in respect of a first mortgage on the Property. In September 2013, the Defendant Boundry, as mortgagee advanced to Singh the sum of $33,500 in exchange for a second mortgage on the Property.

[8] At no time was the plaintiff an owner of the Property and at the time the mortgage monies were advanced and the mortgages were registered in favor of the mortgagee’s VWR and Boundry, he had no legal interest in the Property.

[9] The Defendant Elliott Dale acted as the real estate solicitor on behalf of Boundry, as mortgagee and prior to proceeding with the mortgage transaction, at Elliott Dale’s request the Property owner, Singh, obtained independent legal representation and advice from her solicitor Randall Longfield.

[10] In the fall of 2013, shortly after the mortgage monies were advanced to Singh, both mortgages went into default and the second mortgagee, Boundry instituted enforcement proceedings which were conducted by the defendant lawyer Shana Dale, on behalf of that mortgagee.

[11] The mortgagee VWR also took default proceedings against Singh and obtained a writ of possession with respect to the Property, but took no further steps to evict the plaintiff and Singh.

[12] The mortgagee Boundry moved for an order granting a writ of possession and such an order was granted by Tzimas J. on April 10, 2014 which specifically directed that the plaintiff and Singh vacate the Property. On the hearing of the motion for the writ of possession, the record shows that the plaintiff represented to the court that he was self represented. The was no indication made to the court that he or Singh were represented by the defendants Dale. That order was not appealed.

[13] The Property was ultimately sold pursuant to a power of sale proceedings instituted by Boundry and the owner Singh and the plaintiff, who were both living at the Property, were evicted.

[14] Following the plaintiff’s eviction from the Property he applied to the Landlord and Tenant Board for an order determining that Singh and boundary illegally entered the rental unit (the Property) allegedly occupied by him as a tenant. The plaintiff’s application to the Landlord and Tenant Board was dismissed and the board concluded that the plaintiff was not illegally evicted and that any tenancy agreement which may have existed between the plaintiff and Singh is exempt from the Residential Tenancies Act, 2006 S.O. 2006, c.17 (the “Act”).

[15] In the Board’s decision it was determined that s. 5 (i) of the Act does not apply as the plaintiff, as a tenant, shared the residential accommodation with the owner Singh’s children and they also shared the kitchen and bathroom. As such it was determined that the Act did not apply and the plaintiff’s application to the Board was dismissed. No appeal was ever taken from the determination by the Board.

[16] Following the commencement of the within action by the plaintiff, contrary to his position that he was a tenant in the Property, he moved before the court for various relief including the granting of leave to register a Certificate of Pending Litigation (“CPL”). In dismissing the plaintiff’s motion on October 14, 2014 Edwards J. noted that notwithstanding that he had previously argued that he was a tenant, he was then seeking a CPL claiming an interest in the Property.

[17] Edwards J. concluded that the plaintiff had no specific interest in the Property and as such dismissed the plaintiff’s motion awarding costs payable by the plaintiff in the sum of $3000. Those costs remain unpaid to this date.

[18] Thus, the Landlord and Tenant Board concluded that the plaintiff was not a tenant and Edwards J., in dismissing the plaintiff’s motion, concluded that he had no specific interest in the Property which was owned by Singh.

Analysis:

[19] While much of the plaintiff’s amended statement of claim is unintelligible, examining it at its highest, the claims can be grouped into six discrete areas.

[20] Paragraphs 1, 2, 5, and 19 of the amended statement of claim assert that the defendants, collectively, illegally removed the plaintiff’s personal property from the Property. The Defendant Boundry, in exercising its rights under its mortgage, took enforcement proceedings and obtained an order granting it a writ of possession upon which the plaintiff and Singh were evicted from the Property. The moving defendants Dale and VWR are not asserted to have taken any active role with respect to the enforcement steps taken by Boundry under its mortgage and there is no evidence that they did. The claims in these paragraphs cannot possibly succeed as against the moving defendants.

[21] In paragraphs 3, 4, 6, 7, 9 10, 13, 17, 18 of the amended statement of claim make assert against the defendants generally that the plaintiff was wrongly evicted from the Property. These claims have no prospect whatsoever of being successful against the moving defendants.

[22] The eviction of the plaintiff and Singh from the Property was carried out pursuant to the order of Tzimas J. obtained on motion by Boundry in the action it commenced against the mortgagee Singh. Although the plaintiff was not a party to that action, the order provided that both Singh and the plaintiff were to deliver vacant possession of the Property to Boundry.

[23] Similarly, it was determined by the Landlord and Tenant Board that the eviction of the plaintiff from the Property was not illegal.

[24] As to the plaintiff’s claim that he was illegally evicted whether as an owner or tenant of the Property, that question has already been determined by this court and the Landlord and Tenant Board. It is not open to the plaintiff to re-litigate those determinations in this action: Toronto (City) v. C.U.P.E. 2003 SCC 63, [2003] 3 S.C.R. 77.

[25] Thus the plaintiff’s claims as to the alleged wrongful eviction cannot succeed as against the moving defendants.

[26] The plaintiff also asserts in paragraphs 1 and 4 of the amended statement of claim that the defendants damaged his personal property. Again, the eviction of the plaintiff from the Property was not carried out by the moving defendants but rather by Boundry and as such the claims in these paragraphs cannot succeed.

[27] In paragraphs 11, 16 and 20 of the amended statement of claim, the plaintiff asserts that the defendants wrongfully, negligently and maliciously manipulated the legal process. The defendants Dale were at all times lawyers engaged by the defendant Boundry and they did not owe a duty of care to either the plaintiff or Singh. The plaintiff’s general allegations against the defendants asserting that they acted wrongfully and with malice are unsupported by even the most fundamental facts within the amended statement of claim and as such the claims as asserted could not succeed. Further, the plaintiff has no standing, even on the face of his pleading, to even assert the claims as set forth in the paragraphs in question, as it is not even asserted by him that he was in a solicitor and client relationship.

[28] Similarly, with respect to the plaintiff’s claims set out in paragraph 16 and 22 of the amended statement of claim where he asserts various acts and breaches relating to the mortgage transactions involving Singh and the mortgagees, he has no standing to assert the claims as advanced as his status at the highest was that of an occupant of the Property with no ownership or tenancy interest in it. The rambling, confusing and disconnected facts and claims set forth in these paragraphs fail to articulate any claim that could possibly succeed against the moving defendants.

[29] The causes of action asserted by the plaintiff in his amended statement of claim are fairly similar to those which are summarized in the decision of Myers J. in Goa v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, [2014] O.J. No. 5307 at para 14 wherein he stated as follows:

14. The case law has identified a number of common attributes of a vexatious litigant under section 140 including but not limited to, the following:

(a) bringing multiple proceedings to try to redetermine an issue that has already been determined by a court of competent jurisdiction;

(b) rolling forward grounds and issues from prior proceedings to repeat and supplement them in later proceedings including bringing proceedings against counsel who have acted for or against them in earlier proceeding;

(c) persistent pursuit of unsuccessful appeal;

(d) failure to pay costs awards of prior proceedings;

(e) bringing proceedings for a purpose other than the assertion of legitimate rights, including to harass or oppress others;

(f) bringing proceedings where no reasonable person would expect to obtain the relief sought

[30] I have concluded that the plaintiff’s action is frivolous, vexatious and an abuse of the court’s process and does not constitute a bona fide set of claims that have any reasonable possibility of success. I have reached this conclusion for the reasons set out above.

[31] The claims asserted in the plaintiff’s amended statement of claim contain many of the common attributes or characteristics outlined above and as such I have concluded that the plaintiff’s action must be summarily dismissed in accordance with Rule 2.1.01 as against the defendants Dale and VWR.

[32] Counsel for the defendants shall serve and file submissions with respect to costs of no longer than two pages, plus costs outlines within 20 days following the release of these reasons. The plaintiff shall deliver his submissions on costs of the same length plus any cost outline within 20 days thereafter. No reply submissions are to be filed without leave.

[33] Approval as to the form and content of the order to issue following these reasons is dispensed with.

[34] In accordance with Rule 2.1.01(5), the registrar shall serve a copy of the order, as issued, by mail upon the plaintiff, as soon as possible after the order is made.

Daley RSJ.

Released: July 2, 2015

COURT FILE NO.: CV-14-3962-00
DATE: 2015-07-02

ONTARIO
SUPERIOR COURT OF JUSTICE

GIRGA PERSAUD
Plaintiff

– and –

BOUNDRY ROAD APTS. LTD., ELLIOTT DALE, SHANA DALE, AND V.W.R. CAPITAL CORP.
Defendants

REASONS FOR DECISION

Daley RSJ.

Released: July 2, 2015