SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-13-59621
DATE: 2015/07/30
RE: Jeanette Ryken, Plaintiff
AND
Miguel A. Martinez, Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Ernest G. Tannis, for the plaintiff
No one appearing for the defendant
HEARD: July 17, 2015
ENDORSEMENT
[1] Jeanette Ryken’s claim against the defendant, Miguel A. Martinez is for compensation for injuries and losses suffered as a result of Mr. Martinez’s conduct during their marriage of several years duration. Ms. Ryken alleges that as the quality of the marriage deteriorated, Mr. Martinez committed acts of theft, fraud, libel, slander, physical abuse, and physical assault. Ms. Ryken alleges that as a result of Mr. Martinez’s conduct her reputation and career were damaged and she has suffered a loss of income.
[2] Mr. Martinez has throughout the litigation been self-represented and conducted his defence of the action from his place of residence, Florida. Mr. Martinez’s failure to comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, was in 2014 the subject of a motion before Master MacLeod. Pursuant to the May 2014 order of Master MacLeod, Mr. Martinez was given time to rectify the deficiencies in his pleading. In the related endorsement, Master MacLeod strongly urged Mr. Martinez to seek legal advice with respect to the substantive and procedural points relevant to his defence of the action. Master MacLeod set a timetable for the completion of the exchange of pleadings and for Mr. Martinez to bring a motion to stay the proceedings for want of jurisdiction.
[3] The exchange of pleadings is now complete. Ms. Ryken brings this motion for an order striking Mr. Martinez’ pleading, granting default judgment, and requiring Mr. Martinez to provide the names of individuals who commissioned affidavits of service filed with the Court. Mr. Martinez delivered documents in response to the motion but did not appear at the return of the motion.
Decision
[4] The defendant’s pleading is struck, without leave to Mr. Martinez to file another statement of defence. Ms. Ryken is not entitled to default judgment at this stage of the proceeding. Mr. Martinez is not required to provide the names of the commissioners of the affidavits of service.
Background Information
[5] The only evidence filed on the motion is an affidavit sworn by Antonio Giamberardino, an articling student with the office of counsel for Ms. Ryken. The affidavit is essentially restricted to a recitation of the events in the proceeding to date. Information (not evidence) as to the substantive issues is found exclusively in an incomplete copy of the fresh as amended statement of claim, the undated ‘Response to Motion’ from Mr. Martinez, and the undated ‘Motion to Dismiss for Want of Jurisdiction’ from Mr. Martinez. Each of these documents is included in the plaintiff’s motion record.
[6] Based on the contents of the Giamberardino affidavit and the information otherwise found in the motion record, the chronology of events to date in the action is as follows:
December 13, 2013 - Statement of claim is issued
February 13, 2014 - Mr. Martinez “faxes” his statement of defence in response to the originating process, but does so after he was noted in default
April 17, 2014 - Mr. Martinez takes steps to bring a motion to set aside the noting in default
May 29, 2014 - Master MacLeod hears Mr. Martinez’ motion and:
a) On terms sets aside the noting in default;
b) Grants the plaintiff leave to amend her statement of claim; and
c) Sets a timetable for the next steps in the proceeding.
[7] The fresh as amended statement of claim includes two individuals as defendants who were not named as such in the originating process (Robert Ryken and Annette Ryken). The claims against those defendants were discontinued immediately after the fresh as amended statement of claim was served on them.
[8] Mr. Martinez was served with the fresh as amended statement of claim and remains the sole defendant in the action. It is the statement of defence which Mr. Martinez delivered in response to the fresh as amended statement of claim that Ms. Ryken seeks to have struck.
[9] Ms. Ryken also seeks an order that Mr. Martinez produce the names of the individuals who commissioned two affidavits of service. The affidavits relate to service of the two statements of defence – the original pleading served in February 2014 and the most recent pleading served in July 2014. Ms. Ryken’s position is that the refusal of the defendant to disclose the names of those individuals, whose signatures are illegible, is “highly suspect”. The names of those individuals have no relevance to the proceeding. The relief requested by Ms. Ryken in that regard is refused.
Striking the Statement of Defence
[10] At the return of the motion before Master MacLeod in May 2014, Mr. Martinez was advised by the Court that his February 2014 statement of defence “[did] not comply with the rules of pleading as set out in Rule 25 and is therefore improper”. In his endorsement, Master MacLeod noted the following:
[3] I understand that there have been previous matrimonial proceedings in Florida and that the defendant wishes to argue that all of the allegations forming part of this claim were either advanced in the divorce proceeding or ought to have been dealt with as part of that proceeding. He may also wish to argue that the courts of Ontario have no jurisdiction over the subject matter of this dispute because the parties were in Florida at the time of the alleged events. He will of course be free to bring a motion to challenge jurisdiction if he does so in the appropriate manner.
[4] I strongly urge the defendant to seek legal advice on both of these points and on procedural points. For the assistance of the defendant, the Ontario rules of civil procedure may be found on the internet at the following link:
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm
[6] This court therefore orders as follows:
d. Upon being served with the fresh claim, the defendant shall have 40 days to either deliver a statement of defence or notice of intent to defend in accordance with the rules or to bring a motion to stay the proceedings for want of jurisdiction.
[11] As stated earlier, Mr. Martinez remains self-represented to this point in the proceeding. It appears that he failed to act upon the strong encouragement he received from Master MacLeod to seek legal advice with respect to the requirements for a pleading.
[12] The fresh as amended statement of claim is 25 pages in length and comprised of 66 paragraphs. Mr. Martinez’ pleading in response is seven lines in its entirety.
Defendant denies any wrongdoing as alleged in Plaintiff’s Statement of Claim.
Defendant wishes to argue that the courts of Ontario have no jurisdiction over the subject matter of this dispute because the Defendant is a U.S. citizen, both parties were living in Florida at the time of the alleged events and all the alleged damages being claimed would have been sustained in Florida.
Defendant requests that this claim be dismissed due to:
(1) Jurisdiction
(2) Plaintiff has suffered no damages from Defendant’s actions.
[13] It is absolutely clear that the second statement of defence delivered by Mr. Martinez in this proceeding is woefully deficient as a pleading. Rule 25.07 of the Rules of Civil Procedure sets out the requirements for a statement of defence:
Admissions
25.07 (1) In a defence, a party shall admit every allegation of fact in the opposite party’s pleading that the party does not dispute.
Denials
(2) Subject to subrule (6), all allegations of fact that are not denied in a party’s defence shall be deemed to be admitted unless the party pleads having no knowledge in respect of the fact.
Different Version of Facts
(3) Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead the party’s own version of the facts in the defence.
[14] Mr. Martinez explanation for the form and content of his pleading is set out in his ‘Response to Motion’ – a document which Mr. Martinez delivered in response to Ms. Ryken’s motion to strike the pleading. The ‘Response to Motion’ is in narrative form, is not sworn by Mr Martinez, and is not evidence. In any event, the explanation from Mr. Martinez for the deficiencies in his pleading is as follows:
It is unreasonable to expect Defendant to follow R. 25.07 in the filing of his Statement of Defence given the format of the Plaintiff’s Statement of Claim. Defendant denies any and all of the alleged wrongdoing in the Plaintiff’s Statement of Claim.
[15] If Mr. Martinez wishes to take issue with the form and content of the fresh as amended statement of claim there is a procedure available to him to do so – a motion to strike all or portions of Ms. Ryken’s pleading. Mr. Martinez chose not to bring such a motion. He chose instead to deliver a pleading which does not meet the requirements of the Rules of Civil Procedure. The consequences of that choice are that Ms. Ryken has grounds for and is successful on her motion to strike the statement of defence delivered by Mr. Martinez in response to the fresh as amended statement of claim.
Pleading Struck Without Leave to Amend
[16] Ms. Ryken requests that the Martinez pleading be struck without leave to amend. She relies on rule 25.11 of the Rules of Civil Procedure. That rule provides as follows:
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
[17] Mr. Martinez has had two opportunities to deliver a pleading which meets the requirements of the Rules of Civil Procedure. On both occasions he delivered a pleading which is deficient. In 2014 Mr. Martinez was directed by Master MacLeod to the relevant Rule and strongly encouraged to consult the Rules of Civil Procedure generally. Mr. Martinez delivered his most recent pleading either in ignorance of or after consulting the Rules of Civil Procedure. Whether or not Mr. Martinez followed the Master MacLeod’s direction is, at this point, irrelevant.
[18] I find that the most recent pleading delivered by Mr. Martinez and the documents filed in response to the plaintiff’s motion demonstrate a complete disregard for the order of Master MacLeod, the Rules of Civil Procedure, and the process of the this Court. Mr. Martinez’ conduct amounts to a clear case of abuse of the process of the Court (rule 25.11(c) as quoted above).
[19] As a result, the statement of defence is struck without leave to Mr. Martinez to amend his pleading.
Default Judgment
[20] Ms. Ryken requests additional relief in the event the Martinez pleading is truck – that she be granted default judgment. The Rules of Civil Procedure do not entitle Ms. Ryken to default judgment at this time. Rule 19.01(2) provides that Ms. Ryken’s next step, should she decide to take the step, is to have Mr. Martinez noted in default:
(2) Where the statement of defence of a defendant has been struck out,
(a) without leave to deliver another; or
(b) with leave to deliver another, and the defendant has failed to deliver another within the time allowed,
the plaintiff may, on filing a copy of the order striking out the statement of defence, require the registrar to note the defendant in default.
[21] As noted in Master MacLeod’s May 2014 endorsement, at the time it was open to Mr. Martinez to bring a motion questioning the jurisdiction of the Ontario Superior Court of Justice over the matters raised in the raised in the action –because it appears that the parties were in Florida at the time of the alleged events. The documents subsequently delivered by Mr. Martinez were an attempt by him to pursue the jurisdictional issue. The documents do not comply with the Rules of Civil Procedure, as a result of which the jurisdictional issue was never properly raised by the defendant. With the Martinez pleading having been struck it is no longer open to the defendant to raise the jurisdictional issue.
[22] If Ms. Ryken takes the steps necessary to note Mr. Martinez and default and proceeds further with the matter, she may find at a later stage in the proceeding that she will still be required to address the issue of the jurisdiction of this Court to make a final determination in the matter.
Summary
[21] For the reasons set out above, I make the following order:
The statement of defence of Miguel A. Martinez delivered in response to the fresh as amended statement of claim is struck without leave to the defendant to amend his pleading.
The plaintiff may, in accordance with rule 19.02(2) of the Rules of Civil Procedure, proceed to note the defendant in default.
The motion for an order requiring the production of the names of the individuals who commissioned the affidavit of service of Robert Ryken sworn on February 13, 2014 and of Miguel A. Martinez on July 22, 2014 is dismissed.
Costs
[22] For the following reasons there shall be no costs on the motion:
• Ms. Ryken’s success on this motion is divided. She is successful on the primary relief sought – having the Martinez pleading struck without leave to amend. She is unsuccessful on the other two elements of the relief sought.
• The motion record was incomplete because pages 1 through 5 from the text of the fresh as amended statement of claim were missing. That there were pages missing from the document did not, however, preclude me from making the order striking the Martinez pleading.
• The cases cited by Ms. Ryken in support of the request for the Martinez pleading to be struck were not on point and were of no help to me in addressing that issue.
Date: July 30, 2015
Justice S. Corthorn
COURT FILE NO.: FC-13-59621
DATE: 2015/07/30
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jeanette Ryken, Plaintiff
AND
Miguel A. Martinez, Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Ernest G. Tannis, for the Plaintiff
No one appearing for the defendant
ENDORSEMENT
Justice S. Corthorn
Released: July 30, 2015