SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-15-530449
DATE: 20150714

B E T W E E N:

JEFFREY G. TUNNEY
Plaintiff

-and-

CREWS & TANGO
Defendants

BEFORE: F.L. Myers J.

READ: July 14, 2015

endorsement

[1] This motion 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 defendant under subrule 2.1.01(6).

[2] As best as I can tell, the plaintiff resides on Church Street in Toronto across the street from the respondent bar.[^1] The plaintiff alleges that he sublet space to a tenant. The tenant was allegedly preyed upon by the defendant bar who took advantage of his alcoholism to keep the tenant as a paying customer. Moreover, the plaintiff alleges that employees of the defendant slandered the plaintiff to try to turn the tenant against the plaintiff. On an unspecified date, the tenant allegedly came home in a drunken rage and attacked the plaintiff. The tenant struck the plaintiff in the head with an AK-47 assault rifle. The plaintiff says that he consented to the attack. He is upset that the police arrested the tenant and as a condition of the tenant’s release, the tenant was prohibited from going near the plaintiff. The plaintiff thereby lost a paying tenant and seeks damages for his losses.

[3] Woven through the pleading are ongoing complaints by the plaintiff at being barred from the defendant’s premises and at being slandered by unspecified employees of the plaintiff.

[4] On its face the claim as drafted appears frivolous and vexatious. While it may not be impossible for the plaintiff to state a claim in defamation or perhaps seek some form of social host responsibility for the assault, the gravamen of the complaint is not the defamation or the attack. Rather, the plaintiff is upset that the police arrested the tenant and the bail condition imposed deprived the plaintiff of a paying tenant. No claim lies against the defendant bar based on bail conditions imposed under the Criminal Code. Moreover, even when read generously, the statement of claim on its face does not appear to make out a cognizable cause of action for slander or any actionable cause.

[5] The plaintiff should therefore be given a chance to file written argument as to why his lawsuit should not be dismissed under Rule 2.1 for being frivolous and vexatious on its face.

[6] On reviewing the material forwarded by the registrar, the court makes the following order:

a. Pursuant to subrule 2.1.01(3)(1), the registrar is directed to give notice to the plaintiff in Form 2.1A that the court is considering making an order under Rule 2.1.01 dismissing the action;

b. Pending the outcome of the written hearing under rule 2.1 or further order of the court, the plaintiff’s action is stayed pursuant to s.106 of the Courts of Justice Act, R.S.O. 1990, c.C.43[^2];

c. The registrar shall accept no further filings in this action excepting only the plaintiff’s written submissions if delivered in accordance with rule 2.1.01(3);

d. In addition to the service by mail required by 2.1.01(4) rule, the registrar is to serve a copy of this endorsement and a Form 2.1A notice on the plaintiff and counsel for the defendants by email if it has their email addresses.

________________________________ F.L. Myers J.

Date: July 14, 2015

[^1]: Although I am not sure that I have understood the plaintiff’s full story, I have done my best to identify and organize the key elements of the narrative in an understandable way.

[^2]: See Gao v. Ontario WSIB et al., 2014 ONSC 6100 at para.