COURT FILE AND PARTIES
COURT FILE NO.: CV-14-3084-00
DATE: 2015 08 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Darren John, Plaintiff/Respondent
AND:
David Cusack, Defendant/Applicant
BEFORE: Woollcombe J.
COUNSEL: Darren John, Self-represented
Wayne Cusack, Counsel for the Defendant/Applicant
HEARD: June 22, 2015
ENDORSEMENT
Introduction
[1] On July 2, 2014, Mr. Cusack went to Mr. John’s home to serve Mr. John personally with a motion record. This document was in support of Mr. Cusack’s motion to set aside a June 3, 2014 order that had been made in favour of Mr. John in Small Claims Court. Mr. Cusack enlisted assistance from members of the Peel Regional Police Force to serve the documents. Shortly after being served with the motion materials, Mr. John filed a statement of claim against the Mr. Cusack, three Peel Police officers and the Regional Municipality of Peel Police Services Board. Mr. John claims to have suffered $1,000,000.00 in damages as a result of being served with the motion record.
[2] Mr. Cusack has brought a motion for summary judgment dismissing Mr. John’s claim. The issue to decide on this motion is whether to dismiss Mr. John’s claim against Mr. Cusack by way of summary judgment motion. Motions brought by Mr. Cusack’s co-defendants (the police officers and the Peel Police Services Board) are not before me and have proceeded separately.
[3] I conclude the Mr. John’s claim should be dismissed by way of summary judgment motion on the basis that it is frivolous, vexatious or is otherwise an abuse of process. Accordingly, I grant summary judgment in favour of Mr. Cusack.
[4] This matter, and other matters between Mr. John and Mr. Cusack, have taken up considerable time in both the Superior Court of Justice and the Small Claims Court. As most of this history is not relevant to the issues to be decided on this motion, I will not review in any detail that history, or what has happened at the numerous court appearances, except where it is relevant to my decision. The time spent on this motion will, of course, be relevant to any costs order that may be made.
The Legal Test For Summary Judgment
[5] Mr. Cusack seeks summary judgment on two basis.
[6] First, Mr. Cusack moves under Rule 21.01(3). Under Rule 21.01(3)(d), a defendant may move to have an action dismissed on the basis that it is “frivolous, vexations or is otherwise an abuse of process”.
[7] Second, Mr. Cusack he moves under Rule 25.11. Rule 25.11(b) permits a court to strike pleadings on the grounds that they are “scandalous, frivolous or vexatious”. A pleading that demonstrates a complete absence of material facts will be declared frivolous or vexatious.
[8] Under Rule 20.04(2)(a), on a motion for summary judgment, the court must decide whether the moving party has established that there is “no genuine issue requiring a trial with respect to a claim or defence”. In Hryniak v. Maudlin, 2014 SCC 7, [2014] S.C.J. No. 7, the Supreme Court of Canada held that the court should first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record. This is to be done by reviewing the trial record and determining if there is sufficient evidence to fairly and justly adjudicate the dispute. It is important to note that parties are expected to provide a complete evidentiary record for their cases on a summary judgment motion. The court is entitled to assume, absent clear explanation to the contrary, that the record on a summary judgment motion contains all the evidence the parties would present at trial (See: Actuate v. Symcor, 2015 ONSC 689 at para. 44).
Mr. John’s Specific Claims Against Mr. Cusack
[9] In his Statement of Claim, Mr. John makes various specific allegations against Mr. Cusack. Some of these are further explained in his affidavit and factum.
- The “startling claim”
[10] Mr. John’s first claim against Mr. Cusack is that when Mr. Cusack and the police attended at Mr. John’s door on July 2, 2014, their ringing the doorbell and banging at the door had the effect of “startling the plaintiff and his family”. I have been provided with no authority supporting an argument that “startling” is actionable. Nor has Mr. John advanced any argument before me about this claim. I conclude that the startling claim is frivolous.
- The claim of harassment
[11] Mr. John’s main claim against Mr. Cusack is that Mr. Cusack’s attendance at the property at which he lives, and service there of the motion record constituted harassment. The claim of harassment appears to be based on three factors:
a. that Mr. Cusack is alleged by Mr. John to be a pedophile and rapist, causing Mr. John not to want him near his home or his children;
b. that Mr. Cusack had previously been warned not to go to Mr. John’s property for any reason; and
c. that Mr. Cusack included with his motion record a “death threat letter”.
a. The allegation that Mr. Cusack is a pedophile and rapist
[12] Mr. John’s claim that Mr. Cusack is a pedophile and rapist, as set out in his affidavit and submissions, is based exclusively on comments he claims to have overheard Mr. Cusack making. In fact, Mr. John’s affidavit alleges that what he overheard were “crude jokes that lead me to believe that he was a pedophile”. Allegations that someone is a pedophile or a rapist are extremely serious. There is no evidence before me supporting either allegation and no reasonable basis upon which Mr. John could have held the view that Mr. Cusack is either a rapist or a pedophile. I find that any claim made by Mr. John flowing from these allegations is frivolous, vexatious and an abuse of process.
b. The allegation that Mr. Cusack had been warned not to go to Mr. John’s property
[13] Mr. John makes three arguments in support of his claim that Mr. Cusack had been told not to go to his property before he did so to serve the documents on July 2, 2014. Assessment of these arguments requires some context and history of the background between Mr. John and Mr. Cusack.
[14] By way of background, Mr. Cusack is employed as a City of Toronto by-law enforcement officer. In November, 2010, he was asked by a paralegal named Robert Stewart to photograph the doorway at 960 D[…], M[…], which is Mr. John’s address. Mr. Cusack did so on November 18, 2010. He subsequently noticed that the photograph did not have a date stamp, and so he returned to re-photograph the door on November 19, 2010.
[15] Mr. Cusack was subsequently served with a summons to attend in Small Claims Court on February 24, 2011, and testified about the photos that were taken in November, 2010. Mr. John was the plaintiff in those proceedings and was suing a paralegal named James Bush for trespass and damage to the door at 960 D[…].
[16] On August 4, 2011, the Court dismissed Mr. John’s claim against Mr. Bush on the basis that he was not the owner at 960 D[…], and that the damage to the door was trivial.
[17] Starting on February 28, 2011, after the Small Claims proceedings had been heard, Mr. John began sending correspondence to Mr. Cusack’s employer making allegations against him relating to the date on which the photographs were taken. Ultimately, Mr. Cusack brought an action against Mr. John for defamation. Mr. John responded and brought his own claim against a number of people including Mr. Cusack, Mr. Stewart, and Mr. Bush for defamation, harassment, libel, trespass and abuse of process. Mr. John’s allegations related to the same door that had been determined not to belong to him.
[18] Mr. John’s first argument in support of a claim that Mr. Cusack had been told not to go to his property flows from his letter of February 28, 2011 to Mr. Cusack’s employer. In that letter, Mr. John complained about Mr. Cusack’s attendance at his property at 960 D[…] in November, 2010. Mr. John says that this letter put Mr. Cusack on notice that he was never to attend at his property again.
[19] I accept that Mr. John made a complaint to the City of Toronto about Mr. Cusack’s attendance at his property in November 2010. However, I cannot conclude from Mr. John’s February 28, 2011 letter that Mr. Cusack did understand, or should have understood, that he was precluded from ever again going to Mr. John’s property to personally serve him with legal documents. There is some basis to say that Mr. Cusack would have known that Mr. John was upset about his attendance at the property in November 2010 at the time the photographs were taken.
[20] Mr. John’s second argument is that Mr. Cusack was told by police not to go to his property. On September 9, 2011, Mr. John made a report to the Peel Regional Police complaining about a man having come to his property to deliver documents on September 4, 2011. Included in that report is an assertion that he did not want a number of people, including David Cusack, on his property. At one point in his oral submissions on this motion, Mr. John claimed to have been present when, as a result of receiving this report, the police contacted Mr. Cusack and told him not to attend at Mr. John’s property. There is no affidavit evidence before me supporting this assertion.
[21] At a subsequent point in his submissions, Mr. John invited me to infer from his police report that the police would have contacted Mr. Cusack and told him not to attend at Mr. John’s residence again. There is no admissible evidence on this motion as to what, if anything, the police did as a result of Mr. John’s complaint. There is no evidence of any conversation between Mr. Cusack and the police.
[22] There has been an outstanding request for particulars by Mr. Cusack of any warnings said by Mr. John to have been given to him by police relating to attendance at the property. Mr. John has chosen to provide no affidavit evidence supporting his claim that any warning was ever made. Accordingly, I find that following the Mr. John’s police report, there was no express warning or instruction given by police to Mr. Cusack not to go to Mr. John’s property again.
[23] Mr. John’s third argument is that Mr. Cusack was ordered by the Deputy Judge of the Small Claims court not to go to his property. On September 20, 2012, the Small Claims Court Deputy Judge concluded that Mr. John’s allegations against Mr. Cusack to Mr. Cusack’s employer “were all false in their entirety and that none of the allegations made by the defendant [Mr. John] against the plaintiff were true and that none had merit”. The court also found “that the defendant has engaged in libel and slander against the plaintiff”. Mr. Cusack was awarded $2,500.00 plus costs.
[24] Enforcement of the judgment was through the Brampton Small Claims Court by way of garnishment. Mr. John was served with the garnishment and filed a motion to stop it. Through the garnishment proceeding, a sum of $3,400.00 was remitted to Mr. Cusack. Mr. John has brought various legal proceedings in relation to these funds since late 2012.
[25] Mr. John says that an endorsement of the Deputy Judge in the Small Claims Court on February 21, 2014 ordered that Mr. Cusack not attend at Mr. John’s home to serve documents as all documents were to be served by mail. I have reviewed the endorsement made by the Deputy Judge. The endorsement upon which Mr. John relies was made during the garnishment proceedings. In that context, an order was made that the parties were able to serve each other by registered mail. There is nothing in the Deputy Judge’s endorsement that precluded Mr. Cusack from ever going to Mr. John’s property to effect personal service on him.
[26] Mr. John’s motion to have Mr. Cusack re-pay the garnished funds proceeded on June 3, 2014 and an order was made in Mr. John’s favour. Mr. Cusack wished to have this order set aside. It is the service of Mr. Cusack’s motion record to set aside the Order made in the garnishment proceeding that is the subject of Mr. John’s claim.
[27] I note that service of this motion record was not one of the documents contemplated by the Small Claims Deputy Judge in his endorsement of February 21, 2014. As a result, I find that even if the Small Claims Deputy Judge had intended to avoid personal service of documents at Mr. John’s home in relation to the garnishment proceedings, Mr. Cusack was no longer subject to that order when he sought to have the order made by the Small Claims Deputy Judge set aside.
[28] Having reviewed all of the evidence said to support Mr. John’s claim that Mr. Cusack knew that he was never to go to Mr. John’s property again, I am not persuaded that there is evidence to support Mr. John’s assertion that Mr. Cusack knew he was never to go to Mr. John’s property to serve legal documents or that doing so would cause Mr. John emotional distress. I am not able to find any evidence of anyone specific telling Mr. Cusack this and I am not even able to infer from the evidence Mr. Cusack’s awareness of Mr. John’s position on the service of legal documents.
c. The allegation of a death threat letter
[29] Mr. John alleges in his Statement of Claim that there was, in the motion record served on him by Mr. Cusack, a death threat letter that terrified him.
[30] Mr. Cusack made a request to inspect the original of the alleged “death threat letter”.
[31] On September 23, 2014, Justice Price granted Mr. Cusack’s motion for an order requiring Mr. John to comply with his request to inspect this document. Mr. John was to inform Mr. Cusack, within five days of receiving service of Justice Price’s order, of a time and date within the following five days on which this inspection could take place. This did not happen.
[32] At the same time, Justice Price ordered that if Mr. John failed to produce the documents within 10 days after service of his order on Mr. John, Mr. Cusack had leave to move to strike the Statement of Claim as against him on this ground.
[33] The matter was back before Justice Price on October 30, 2014. It was then before me on May 13, 2015 and June 8, 2015. There have been no further orders about the inspection of this document. But, it is clear that Justice Price made an order for Mr. John to produce the document and that Mr. John has not complied. As of the time of the hearing of the motion, Mr. John has provided only a photocopy of the alleged “death threat letter”, and not produced the original.
[34] Mr. John’s submission before me is that he does not have the original and that it is in the hands of the police. In his affidavit filed in response to the motion, his position is that Mr. Cusack’s “deand [sic] to inspect my documents is an abuse of process”.
[35] I accept that it is of critical importance for Mr. Cusack to be able to inspect this document in order to assess its authenticity. He has had a court order permitting him to do so since September, 2014. Mr. John has known of Mr. Cusack’s request and right to inspect the original document since September, 2014 and there is no evidence before me that he has taken any steps to enable this inspection to take place.
[36] Mr. Cusack filed an amended notice of motion seeking to strike Mr. John’s claim on the basis that he has failed to comply with Justice Price’s order permitting inspection of this document.
[37] I am not prepared to grant Mr. John any further time to produce the original death threat letter for inspection as ordered by Justice Price. I am prepared, as was contemplated by Justice Price in his order of September 23, 2014, to strike Mr. John’s claim against Mr. Cusack to the extent that Mr. John’s claim relies on the death threat letter.
d. The tort of harassment
[38] There is a live legal issue as to whether there exists a tort of harassment. Mr. Cusack argues that the law is not clear as to whether such a tort exists.
[39] In Savino v. Shelestowsky, 2013 ONSC 4394 Chapnik J. commented at para. 15 that while the tort is “not largely accepted, the door does not to be entirely closed on the possibility of the tort’s existence.” Other courts since appear to have accepted that the tort exists. (See: P.M. v. Evangelista Estate 2015 ONSC 1419 at para 35; McHale v. Ontario 2014 ONSC 4434 at para. 44). Justice Chapnik identified the four elements of the tort of harassment that were set out in Mainland Sawmills Limited v. IWA-Canada, Local 1-3567 Society 2006 BCSC 1195 which are:
a. Outrageous conduct by the defendant;
b. The defendant’s intention of causing or reckless disregard of causing emotional distress;
c. The plaintiff’s suffering of severe or extreme emotional distress; and
d. Actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
[40] For the purpose of this motion, I am prepared to assume that a tort of harassment exists. But, in my view, based on a review of the evidence, Mr. John’s claim that Mr. Cusack committed the tort of harassment, is frivolous, vexatious and can never succeed.
[41] First, it is my opinion that Mr. Cusack’s act of serving the motion record on Mr. John at his home on July 2, 2014 cannot be fairly described as “outrageous” conduct. Mr. Cusack wished to bring a motion to set aside an order made in favour of Mr. John. He went to Mr. John’s home to effect service. The fact of this one attendance on Mr. John’s property by Mr. Cusack, even when viewed in the context of the history between the parties, cannot, in my view meet the “outrageous” threshold.
[42] Second, there is no evidence that Mr. Cusack either intended to cause Mr. John emotional distress or was reckless about causing emotional distress when he served the motion record. As I have found, there is no evidence that Mr. Cusack would have even been aware that attending at Mr. John’s home to serve him with legal documents would cause Mr. John emotional distress. While Mr. John claims that this conduct did cause him emotional distress, I cannot find Mr. Cusack either intended this or was reckless about it.
[43] Given these conclusions, it is my view that there is no genuine issue requiring a trial on the basis of Mr. John’s claim of harassment. Accordingly, his claim should be dismissed by way of summary judgment.
Conclusions
[44] I grant summary judgment dismissing Mr. John’s claim as against Mr. Cusack.
Costs
[45] Mr. Cusack, the defendant/applicant may file written costs submissions, with a maximum four pages in length with any attached Costs Outline and Authorities. Such submissions are to be filed within twenty days of the date these reasons are released. Mr. John may file responding written submissions with the same length restrictions, within one week of the date of the costs submissions.
WOOLLCOMBE J.
Date: August 7, 2015
COURT FILE NO.: CV-14-3084-00
DATE: 2015 08 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Darren John, Plaintiff/Respondent
AND:
David Cusack, Defendant/Applicant
COUNSEL:
Darren John, Self-represented
Wayne Cusack, Counsel for the Defendant/Applicant
ENDORSEMENT
WOOLLCOMBE J
DATE: August 7, 2015