COURT FILE NO.: CV-14-815-00

DATE: 20151009

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DONALD BEST

Plaintiff

– and –

GERALD LANCASTER, REX RANKING, SEBASTIEN JEAN KWIDZINSKI, LORNE STEPHEN SILVER, COLIN DAVID PENDRITH, PAUL BARKER SCHABAS, ANDREW JOHN ROMAN, MA’ANIT TZIPORA ZEMEL, FASKEN MARTINEAU DUMOULIN LLP, CASSELS BROCK AND BLACKWELL LLP, BLAKE, CASSELS & GRAYDON LLP, MILLER THOMSON LLP, KINGSLAND ESTATES LIMITED, RICHARD IVAN COX, ERIC IAIN STEWART DEANE, MARCUS ANDREW HATCH, PHILIP ST. EVAL ATKINSON, PRICEWATERHOUSECOOPERS EAST CARIBBEAN (FORMERLY ‘PRICEWATERHOUSE COOPERS’), ONTARIO PROVINCIAL POLICE, PEEL REGIONAL POLICE SERVICE a.k.a. PEEL REGIONAL POLICE, DURHAM REGIONAL POLICE SERVICE, MARTY KEARNS, JEFFERY R. VIBERT, GEORGE DMYTRUK, LAURIE RUSHBROOK, JAMES (JIM) ARTHUR VAN ALLEN, BEHAVIOURAL SCIENCE SOLUTIONS GROUP INC., TAMARA JEAN WILLIAMSON, INVESTIGATIVE SOLUTIONS NETWORK INC., TORONTO POLICE ASSOCIATION, JANE DOE #1, JANE DOE #2, JANE DOE #3, JANE DOE #4, JANE DOE #5, JOHN DOE #1, JOHN DOE #2, JOHN DOE #3, JOHN DOE #4, JOHN DOE #5

Defendants

Paul Slansky, for the Plaintiff

Peter Wardle and Adrienne Lipsey, for the Defendants Gerald Lancaster, Rex Ranking, Sebastien Jean Kwidzinksi, Lorne Stephen Silver, Colin David Pendrith, Paul Barker Schabas, Andrew John Roman, Ma’anit Tzipora Zemel, Fasken Martineau Dumoulin LLP, Cassels Brock & Blackwell LLP, Blake, Cassels & Graydon LLP and Miller Thomson LLP

Mark Polley and Jessica Prince, for the Defendants Pricewaterhouse Coopers East Caribbean (formerly PricewaterhouseCoopers, Kingsland Estates Limited, Philip St. Eval Atkinson, Richard Ivan Cox and Marcus Andrew Hatch

Jeffrey Claydon and Dominic Polla, for the Defendants Ontario Provincial Police, Marty Kearns, Jeffery R. Vibert, John Doe #3 and Jane Doe #3

Mike Cremasco, for the Defendant Peel Regional Police Service a.k.a. Peel Regional Police

Jennifer Hunter and Shannon Gaudet, for the Defendants Durham Regional Police Service and George Dmytruk

Philip Wright, for the Defendants James (Jim) Arthur Van Allen, Behavioural Science Solutions Group Inc. and Tamara Jean Williamson

Paul-Erik Veel, for the Defendant Toronto Police Association

Norman Groot, for Investigative Solutions Inc. (by written submissions on costs only)

HEARD: June 15, 16, 17 and 18, 2015

HEALEY J.

Nature of the Action and Motions

[1] This is an action brought by Donald Best (“Best”) against 39 defendants, by which he seeks damages in the aggregate amount of $20M, injunctive relief to protect his safety and identity and an accounting of funds paid by two of the defendants to their lawyers in a prior proceeding, together with costs. The prior proceeding is referred to in these Reasons as the “Nelson Barbados Action”. The action that is the subject matter of these Reasons, being Court File No.: CV-14-815-00, is referred to as the “Second Action”.

[2] The 39 defendants may be grouped into categories and are defined as follows in these Reasons:

(i) The “Caribbean defendants” are Kingsland Estates Limited, Richard Cox, Eric Deane, Marcus Hatch, Philip Atkinson and PricewaterhouseCoopers East Caribbean;

(ii) The “lawyer defendants” are Gerald Ranking, Sebastien Kwidzinski, Lorne Silver, Colin Pendrith, Paul Schabas, Andrew Roman, Ma’anit Zemel, Fasken Martineau Dumoulin LLP, Cassels Brock & Blackwell LLP, Blake Cassels & Graydon, LLP and Miller Thomson LLP;

(iii) The “OPP defendants” are Ontario Provincial Police, Marty Kearns and Jeffery Vibert;

(iv) The “Peel Regional Police defendant” is Peel Regional Police Service (“PRPS”);

(v) The “Durham Regional Police defendants” are Durham Regional Police Service (“DRPS”), George Dmytruk and Laurie Rushbrook;

(vi) The Toronto Police Association defendant (“TPA”);

(vii) The “private investigator defendants” are James (Jim) Van Allen, Behavioural Science Solutions Group Inc. and Tamara Williamson.

[3] The causes of action set out in the statement of claim in the Second Action, with an inconsistent level of clarity and specificity throughout, are: abuse of process, negligent investigation (also referenced as negligent regulation/performance of statutory duty) and false imprisonment, all claimed by way of both the common law and the Canadian Charter of Rights and Freedoms. Further causes of action are: intentional and/or negligent infliction of harm and/or mental suffering (also referenced as intentional, reckless and/or negligent endangerment); misfeasance and/or misfeasance of public office and/or abuse of authority; malicious prosecution; conspiracy to injure the plaintiff (also referenced as conspiracy to do an unlawful act and/or causing loss by unlawful means); breach of common-law privacy rights; breach of ss. 7 and 8 of the Charter; and breach of fiduciary duty.

[4] It is a truism in advocacy that a pleading sets the tone for the entire action, usually being the first document read by the presiding judge. In James Carthy, Derry Millar & Jeffrey Cowan, Ontario Annual Practice (Aurora: Canada Law Book, 2014), at p. 1006, the editors include these apt comments in the advocacy notes prefacing Rule 25 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194:

It is worth repeating, for emphasis, the advocacy value of a carefully crafted pleading. It travels with you to motions, trial and appeal and is the written spokesperson for the virtue of your client's position. If clear, lucid and a complete formulation of the claim or defence, it becomes much easier for a judge to accept evidence and argument in support. If vague, muddy and evasive, the reader assumes the search is ongoing for a foundation for the claim or defence and will be skeptical of formulations scratched out of the evidence or presented for the first time in argument.

[5] The claim that initiated the Second Action is 90 pages in length, and contains 234 paragraphs. Best also sought leave of this court to amend the claim to add five new defendants and to amend the names of two others. There are numerous paragraphs of the claim that could serve to exemplify its overall tone and substance, but some are particularly illustrative. Under the heading “Particulars of the Claim”, at para. 32, is the following:

The lawyers, law firms and clients knew about this dissemination and publishing of confidential information and, in fact, were actively involved in the dissemination and publication. They did so knowing and intending that would likely endanger the life of the Plaintiff and the life and/or safety of his family. They conspired with Van Allen and the police to injure him in this manner. Even after the Plaintiff begged them to stop distributing to the public his and his family members' private information including Identity Information, the lawyers, law firms and clients distributed and published even more of this confidential information, which they continue to do to this day. The lawyers, law firms, clients and police later conspired to cover up this unlawful activity and the unlawful nature of Van Allen's “private” investigation services while he was a police officer. They did so flagrantly and outrageously. They did so knowing that this was unlawful and criminal. They did so intentionally for the improper and collateral purposes of encouraging the Plaintiff to leave Canada or as a means to pressure him and others in respect of litigation and potential litigation in other jurisdictions. As officers of the Court, the lawyers and law firms were acting in an official state capacity. Van Allen, as a serving police officer and the police were state agents.

[6] Under the heading “Negligent Investigation and/or s. 7 of the Charter”, at para. 201, is the following:

The secret investigation itself, that was premised on the Plaintiff being convicted, before he had been found guilty, was itself a negligent investigation. If the court itself was involved (not Justice Shaughnessy who denied knowledge of it, but Court administration), this suggested a possible institutional bias. If initiated by the lawyers, law firms and/or clients, this suggested that the police were involved in the civil contempt proceeding, which would be extraordinary and suggested bias or corruption by the police. If initiated by Van Allen defendants, this suggested further abuse of power by a serving police officer as a private investigator on behalf of private interests. One way or the other, the secret investigation was illegal and corrupt. The fact that a police and Court police investigation is premised on a person being found guilty before he is found guilty is offensive. The fact that it is being done in secret suggests that there is something to hide. Such an investigation is inherently negligent. As is clear from Hill (SCC) and Taylor (OCA), the duty of care in relation to criminal investigations inherently creates a duty of care because of the targeting of the suspect. The DRPS owed a duty to the Plaintiff having targeted him. The conduct of the secret investigation with the presumption of conviction creates an unreasonable risk of substantial harm and does not meet the standard of care. This is similar to R. v. Beaudry, 2007 SCC 5, [2007] S.C.J. No. 5.

[7] In his submissions on costs at the conclusion of the motions, Best’s counsel submitted that, in terms of degree, this claim could not be said to fall at the extreme end of vexatious or abuse of the court's process. This court completely disagrees with that submission. This claim, both in form and substance, is the most vexatious and abusive to ever come before me. The allegations are scandalous, oppressive and shocking, very clearly aimed at undermining key public institutions such as the courts, judges and local and provincial police services, as well as individuals whose professional reputations are intended to be impugned by the allegations made, including lawyers, police officers and a private investigator. The claims are a torturous yarn spun from the most flimsy of material; the evidence presented by Best to purportedly justify these allegations is either non-existent, disturbingly convoluted, irrelevant or, in many instances, the allegations are simply incapable of proof.

[8] For example, in one of many affidavits relied on by Best, he presented the following evidence:

Defendants also published on the Internet calls for criminals I had previously arrested or investigated to hunt me and my family down, and to stalk us and my company's witnesses. Defendants and their co-conspirators also made public threats to shoot me, my lawyer and others, and other threats to murder and rape some of my company's witnesses and to burn down their business. Defendants and their co-conspirators published on the Internet my photo and what they said were the names of my children, ex-wife and other family members. This is all in the context of the history of actual violent criminal acts against witnesses in Barbados; including arson, home invasion, abduction at gunpoint, beatings, sabotage of the vehicles, killing of family dogs, threats to lose employment unless witnesses stop testifying and the loss of employment at the University of the West Indies when the witness bravely testified notwithstanding the threats.

[9] A reading of all of the affidavits filed by Best for use on this motion, together with attached exhibits, confirms that he has placed no credible, corroborative evidence before the court to support the outrageous facts alleged in the foregoing paragraph. This makes the related allegations set out in the statement of claim all the more vexatious and shocking. Unfortunately, this is not an isolated example of the type of evidence advanced by Best to attempt to support the allegations made in his claim. Best’s affidavit material is replete with alleged facts that are equally spurious and lacking in any substantive proof.

[10] The motions before this court were brought by 21 of the 39 defendants, each seeking an order dismissing the action as being frivolous, vexatious and an abuse of process pursuant to rule 21.01(3)(d) and rule 25.11 of the Rules of Civil Procedure; or, in the alternative, striking the claim as disclosing no reasonable cause of action pursuant to rule 21.01(1)(b), without leave to amend.

[11] The motions were argued over three days, following which this court released the following endorsement, with minor variations on some of the moving parties' motion records:

For further Reasons to be released at a later date, this Court orders that the action is dismissed as being vexatious and an abuse of process pursuant to Rule 21.01(3)(d) and Rule 25.11. In the event that such ruling is found to be in error, the alternative relief sought by the moving party/parties is also granted, such that this Court orders that the Statement of Claim is struck on the ground that it discloses no reasonable cause of action, pursuant to Rule 21.01(1)(b), without leave to amend.

The Claim is a transparent attempt to re-litigate the findings and rulings of the Superior Court, Court of Appeal and Supreme Court of Canada in action 07-0141, without basis in law, and is vexatious for the same reason and others to be addressed in my full Reasons. The Claim further offends generally the law of pleadings, and because it is plain and obvious that the causes of action as pled have no chance of success, and that in the circumstances of this case, an opportunity to cure these defects will not result in a Statement of Claim recognized at law as being viable.

[12] As stated in that endorsement, this court has found that the claim was an attack on the results of prior litigation in the Nelson Barbados Action. In that action Best was, both personally and through the corporate plaintiff, Nelson Barbados Group Inc. (“Nelson Barbados”), wholly unsuccessful. The defendants in this action are those individuals upon whom he unjustifiably places blame for the fact that he was found in contempt by order of Shaughnessy J. on January 15, 2010, and ultimately served a period of incarceration. The history of that litigation is set out in the following section.

History of The Nelson Barbados Action (Court File 07-0141)

[13] In 2007, Nelson Barbados commenced the Nelson Barbados Action in Ontario against 62 defendants, the majority of who reside in Barbados. Best was the principal of Nelson Barbados. In May 2009, the Caribbean defendants brought an application for a stay. Shaughnessy J. ordered that the Nelson Barbados Action be permanently stayed in Ontario.

[14] In the concluding paragraphs of his Reasons for Judgment on Motion dated May 4, 2009, Shaughnessy J. noted that Mr. Ranking, who represented PricewaterhouseCoopers East Caribbean, had advised the court that his client and the other represented defendants would be seeking an award of costs on a substantial indemnity basis as against the principal of Nelson Barbados and personally against Nelson Barbados' lawyer, who at that time was Mr. McKenzie. In his Reasons, Shaughnessy J. directed counsel to contact the trial coordinator at Whitby to arrange a date to speak to the issue of costs: Nelson Barbados Group Ltd. v. Cox, 75 C.P.C. (6th) 58, [2009] O.J. No. 1845 (S.C.), at paras. 121-122.

[15] As Best was still represented by counsel at the time of the release of those Reasons, it can be properly assumed that he was informed of the court’s ruling by Mr. McKenzie, and provided with a copy of the Reasons. It is clear from Best’s affidavit evidence that, by at least August 2009, Mr. McKenzie had made Best aware that he would be seeking an order removing his firm as solicitors of record because the defendants were seeking costs against him personally. Mr. McKenzie was later removed as counsel of record, but not until September 15, 2009. Yet Best asks this court to accept that despite the Reasons of Shaughnessy J. and his communications with Mr. McKenzie between May and November 2009, he never became aware of the intention of the defendants to seek costs against him personally. I reject that submission; it is patently false given that Best had counsel at the relevant time and had been informed of the reason that Mr. McKenzie was getting off the record.

[16] Nevertheless in his current claim, at para. 23, Best alleges that he was not aware that costs were being sought against him personally prior to November 2, 2009. It was a premise underlying his present counsel's submissions to this court, which is that some of the alleged unfairness experienced by Best resulted from a lack of awareness that costs were being sought against him personally. In his affidavit sworn April 23, 2015, after detailing various forms of persecution (such as being targeted and beaten on the street, having “thugs” hired in Auckland to hunt him and his family down, and having the family automobile “shot up with 9mm bullets while parked beside the family home”, resulting in Best having to flee to other countries such as Singapore), all arising from steps allegedly taken by unspecified defendants, Best theorizes about the motives underlying the costs hearing. At para. 13, he alleges:

Then while this horrendous situation was happening, and having created this criminal attack against my family and me, in a matter of a few weeks over the 2009 Christmas season, some of the defendants rushed through a private prosecution of me for Contempt of Court in the civil case costs hearing, that I was unaware of until after the conviction. The lawyers, law offices and their clients knew that I was half way around the world to protect my family, was unrepresented by counsel, not served of many crucial legal documents, not notified of the hearing and that their Campaign was the reason that I had left Canada and was seeking safety for my family. The defendants also knew that they had fabricated false evidence against me and placed this before the court.

[17] The key element which seems to elude Best is that the defendants were, as permitted by law, seeking to be compensated for costs incurred by them arising from Nelson Barbados’ decision to commence an action in the wrong forum, a decision for which Best, as the operating mind of the corporation, was responsible. In his Reasons, at para. 30, Shaughnessy J. noted that the Corporate Profile Report listed “Donald Best” as the president of Nelson Barbados, but that little else was known of the company. He noted that Nelson Barbados and Best had refused or failed to provide evidence that would identify shareholders, directors, officers and business activities. He further noted that the defendants’ concern was that the plaintiff had been incorporated in Ontario for the primary purpose of assisting with the attack on jurisdiction. At para. 54 of his Reasons, Shaughnessy J. found that Nelson Barbados, through its counsel, had made a deliberate choice not to provide details that would demonstrate its connection to Ontario. He remarked that what little was known or disclosed was that the plaintiff had a head office and business address which was the same as Mr. McKenzie’s in Orillia, Ontario. Shaughnessy J. further noted that the transcript of the cross-examination of Nelson Barbados’ representative revealed that Mr. McKenzie, by repeated interjections and improper refusals, prevented defence counsel from obtaining information directly relevant to the status of Nelson Barbados, its business and its interest in the action. These facts help to understand at least some of the bases upon which Mr. Ranking’s client and other defendants sought to have costs paid by both Best and his lawyer.

[18] It is clear from the record that service of any documents on Best was problematic, as he refused to provide any contact information other than the address of a post office box located in Kingston, Ontario. On September 15, 2009, Eberhard J. made an order that Nelson Barbados could be served with documents in the action by sending such documents by ordinary mail to 427 Princess Street, Suite 200, Kingston, Ontario, service deemed to be effective ten days after mailing.

[19] On November 2, 2009, Shaughnessy J. made an order relating to the costs motion, which included:

i) that service of all motion material relating to the costs motion upon Best was validated and the service of all such materials was effective four days after such materials were served upon Nelson Barbados by virtue of having been mailed to 427 Princess Street, Suite 200, Kingston, Ontario;

ii) that service of any and all further materials (including motions, court orders or notices of examination) upon Best will be effective four days after mailing or couriering same to him at the above Princess Street address; and

iii) that Best was to appear at an examination on November 17, 2009, at Victory Verbatim in Toronto, and to deliver various documents to Mr. Ranking at least one week prior to the examination.

[20] Filed with the court for use at the November 2, 2009, appearance was an affidavit of James (Jim) Van Allen sworn October 21, 2009 (the “Van Allen affidavit”), which sets out his attempts to locate Best to serve him with a Summons to Witness in order to have his evidence available at the hearing of the costs motion. This affidavit became the genesis of some of Best’s claims made in the Second Action, encompassing allegations that Van Allen committed actionable wrongs by acting as a private investigator while he was a police officer, using police resources directly or indirectly during the course of an investigation of Best, conducting an unlawful secret investigation, swearing a misleading affidavit, distributing Best’s personal and private information to the public, redaction of invoices to conceal unlawful use of police resources and colluding and conspiring to cover up these facts, among others. It is alleged that the lawyers and law firms were part of a conspiracy that involved obtaining and using the Van Allen affidavit.

[21] Best was not present in court on November 2, 2009, nor did he send a representative. Still, he knew of the hearing date and knew that its purpose was to address the issue of costs. He acknowledged such awareness in a letter written directly to Shaughnessy J. on October 30, 2009, in which he stated “Nelson Barbados Group Ltd. therefore respectfully asks the court to immediately proceed with the costs hearing that is peremptorily scheduled for November 2, 3 and 4, 2009”.

[22] According to Best, it was on November 16, 2009, that he first learned that he had been ordered to attend an examination the next day, as a result of a telephone call that he made to the trial coordinator at Whitby. However, when and how he may have learned of the requirement of the examination is of no relevance given that there was an order recognizing and validating service on him, made at a court attendance at which he chose to have no representation or agent present for Nelson Barbados or himself.

[23] Best did not attend the examination. Instead, he telephoned Victory Verbatim Reporting, and spoke with Mr. Ranking and Mr. Silver. Best deposed that he recorded that call, and subjected the recording to forensic audio analysis. Accepting for the purpose of these motions that the transcription of this recording is accurate, as Best asks the court to do, it is clear that Mr. Ranking and Mr. Silver made offers to accommodate Best’s attendance later that day or on another day, and also that Mr. Ranking’s office had couriered motion records pertaining to the costs hearing, and the draft order of November 2, 2009, to Best on November 6, 2009. Best asserted that he did not have a copy of the November 2 order. It is clear from the transcript that Best refused to state whether he had checked the contents of the Kingston post office box, that he refused to provide a date on which he would produce himself for cross-examination as ordered by the court and he refused to give counsel any information about his location. Best was insistent on having the cross-examination conducted over the telephone. Counsel warned Best several times that they would proceed with having him found in contempt due to his noncompliance with the order if he did not attend in person. Following their conversation with Best, the lawyers went on the record at the examiner’s office to summarize the contents of the call, referenced in the claim as the lawyers’ “Statement for the Record”. It is clear from that record that there was some confusion in the lawyers’ minds about whether Best had acknowledged receiving the order of November 2, but there is a clear statement from one, Ms. Rubin, who recorded her belief that Best had stated that he had not received it.

[24] Best was served with another notice of examination, to occur on November 25, 2009, and again did not attend.

[25] There are allegations in the claim that on the next court attendance, which occurred on December 2, 2009, that Mr. Ranking and Mr. Silver misled the court about whether Best had received the order. This allegation is one of several used to justify the Second Action. In his claim Best alleges, at para. 46:

The lawyers misled Shaughnessy, J. with respect to the facts and law regarding the adequacy of service, knowledge and notice. Contrary to the law they falsely urged the Court to act upon substituted service. They falsely asserted prior knowledge of the November 2, 2009 order in the “Statement for the Record”. They relied upon misleading and/or false evidence and/or opinions in the Van Allen affidavit suggesting that the Plaintiff was attempting to evade service. They unreasonably asserted that notice the day before (when the person claimed to be outside of the country) was adequate (in respect of November 17 and November 25, 2009). The contempt order made on January 15, 2010 was a product of the misleading of the court by the lawyers, law firms and clients and the Van Allen defendants, with the police and the TPA.

[26] Best did not attend on December 2, 2009, even though that date was set by the order of November 2, 2009, and counsel clearly told Best of their intention to go back to Shaughnessy J. to deal with Best’s noncompliance. On December 2, Shaughnessy J. made an endorsement permitting substituted service of the motion for contempt, after making a specific finding that Best was deliberately avoiding personal service and that there were no other steps that could be taken by the defendants to locate Best to effect personal service of the contempt motion. Shaughnessy J. scheduled the contempt hearing for January 15, 2010.

[27] In his Reasons on Motion for Contempt, Nelson Barbados Group Ltd. v. Cox, 2010 ONSC 569, [2010] O.J. No. 278, Shaughnessy J. reviewed the history of the costs proceeding and the attempts to serve Best, and concluded, at para. 16, that he was satisfied based on all the material filed, including Best’s correspondence to the court and the trial coordinator, that he had actual knowledge of the proceedings and the orders of the court. Best was found to be in contempt of the orders of November 2, 2009, and December 2, 2009. He was ordered to pay a fine of $7,500 and to serve a three month sentence of incarceration. It was further ordered that Best could apply to purge his contempt by appearing before Shaughnessy J. on or before February 22, 2010, and answering questions and making productions as detailed in those orders.

[28] For the next couple of years, Best resided outside of Canada, but in the latter part of 2012 he retained counsel to obtain a stay of his warrant of committal in order that he could return to Canada and move to set aside the findings of contempt. Best’s application was heard on May 3, 2013, and Shaughnessy J. found that Best remained in contempt of court.

[29] In his application Best claimed that:

(i) Certain of the lawyer defendants had made false, fabricated and perjured affidavits related to the Nelson Barbados Action, and engaged in obstruction of justice, fabrication of evidence, conspiracy and fraud upon the court;

(ii) Those frauds were such that Best's contempt conviction was based on ‘false evidence’;

(iii) Best had no notice of the contempt proceeding;

(iv) Best feared for his safety, and the safety of his family, in part on the basis of blog posts disclosing his personal information;

(v) PricewaterhouseCoopers East Caribbean was not a legal entity;

(vi) There was a cover up or conspiracy devised to prevent a full hearing of the contempt proceeding; and

(vii) There was an “undocumented, secret, private or ‘on the side’ … Court police investigation involving Durham Regional Police and others”.

[30] Each of these same allegations is repeated in the Second Claim. Shaughnessy J. rejected all of Best’s allegations. Shaughnessy J.’s perception of Best’s conduct in the litigation was the subject of comment several times in his Reasons arising from the May 3, 2013 hearing (Nelson Barbados Group Inc. v. Cox, 2013 ONSC 8025, 2013 CarswellOnt 18814, at pp. 53-54, 56-57), as follows:

Today Mr. Best remains in contempt. Notwithstanding that Mr. Best is well aware of his obligations as prescribed by my orders, he has done everything in his power to avoid compliance with the same. …Mr. Best is engaged in a self-serving and obstructionist campaign to vilify and impugn the reputation and integrity of counsel, their clients and this court, all in an attempt to avoid compliance with my orders.

Mr. Best's affidavits are replete with irrelevant and baseless allegations of misconduct, deceit, fraud and illegality by Mr. Ranking, Mr. Silver, Mr. Andrew Roman and their respective law firms. Again, this is the case, notwithstanding that Mr. Best has been told repeatedly by me that these allegations are irrelevant, and as I stated previously, Mr. Best has persisted in his campaign of baseless allegations during his cross-examinations on affidavits and his “Answers to Advertisements, Undertakings and Refusals”, and as well as his factum and his submissions to this court. I find that Mr. Best has shown a continued and complete disregard for the court's instructions, as well as a continued contempt for the court's process.

[31] Best appealed Shaughnessy J.’s decision to the Court of Appeal for Ontario. Best made a motion before a single judge of the Court of Appeal for an order that Mr. Ranking and Mr. Silver be removed as counsel and be prevented from arguing the appeal, based on the allegations of misconduct that Best had made in the application to set aside or purge his contempt. Feldman J.A. dismissed the motion to remove counsel, noting that the motion judge rejected Best’s allegations that counsel deliberately misled him regarding the facts surrounding Best’s failure to attend for examination as ordered, and had made it clear that his findings were based on the appellant’s own letters, recorded words and actions. Feldman J.A. ordered costs of $72,000 payable by Best for the motion in order to express the court’s condemnation of Best’s tactic of making “serious allegations of deliberate misconduct against two counsel for the respondents [Mr. Silver and Mr. Ranking] both in writing and in open court in the face of a finding to the contrary”: Best v. Cox, 2013 ONCA 695, 2013 CarswellOnt 18839, at para. 10.

[32] Best appealed Feldman J.A.’s decision to a three-judge panel of the Court of Appeal. He sought to introduce fresh evidence at that appeal, which was the Van Allen affidavit and Best’s allegations of misconduct in relation thereto. The appeal was unsuccessful. In the court’s ruling of March 4, 2014, Best v. Cox, 2014 ONCA 167, 2014 CarswellOnt 6936, at paras. 11-13, leave to appeal to SCC refused, 35785 (September 4, 2014), the court ruled that the fresh evidence would not be admitted, for these reasons:

[11] We would not admit the fresh evidence. It suffers from an overwhelming problem: it is utterly irrelevant to Feldman J.A.’s decision which was explicitly anchored in recognition that Shaughnessy J. was the case management judge for several years; accordingly, said Feldman J.A., “[c]onsiderable deference is owed to his findings.”

[12] The entire thrust of the fresh evidence is to attack Mr. Van Allen’s affidavit in support of the respondents' attempt to obtain substitute service for the appellant because his whereabouts were difficult to ascertain. On this point, two crucial observations must be made. First, Shaughnessy J. did not rely on substituted service or the Van Allen affidavit in his contempt reasons which form the subject matter of the appeal. Second, the appellant himself confirmed, in an affidavit and in cross-examination on his affidavits, that he had obscured his residential address. In an affidavit, the appellant deposed that “I have used unlisted phone numbers and post box offices to conceal my home address.” In cross-examination, he said: “Sir, I have had and have used various addresses that are not my residence address since ’76, ‘78, somewhere around there.”

[13] In short, the proposed fresh evidence is irrelevant to the appeal and, therefore, would have been irrelevant to the disposition of the motion before Feldman J.A.

[33] By March 31, 2014, cost orders made against Best in the Court of Appeal totalled $192,000, which he had been ordered to pay by April 1, 2014, failing which his appeal of the contempt finding and sentence would be dismissed by the Registrar. Best sought a stay. In dismissing the application for a stay, MacPherson J.A. stated:

[7] In my view, there is no serious issue to be tried on the proposed appeal. The core of the motions and the appeal heard by this court from November 2013 to March 2014 has been allegations of misconduct (including criminal behavior) against opposing counsel that this court has found to be completely devoid of merit. (I note that these allegations were made by the moving party as represented by previous counsel, not his counsel today.)

[8] Moreover, the proposed appeal does not raise an issue of public importance. Although the appellant attempts to dress up his leave application with the language of access to justice, protection of rights in civil contempt and, most vividly, the return of debtors’ prison, the reality is that the subject matter of the proposed appeal is simply the non-payment of costs orders relating to motions and an appeal in meritless proceedings impugning the integrity of counsel. This is not an issue of national importance.

[34] In my view, this latter comment also applies to the claim in the Second Action. It stridently attempts to apply recognized causes of action and legal principles, developed in the law to redress legitimate needs, to a set of baseless allegations devoid of merit.

[35] Best’s application to the Supreme Court of Canada for leave to appeal from the March 4, 2014 judgment of the Court of Appeal was dismissed with costs on a solicitor-client basis. Accordingly, the Nelson Barbados action ran the full gamut of review available, and reached its inevitable, final disposition, with all due process being offered to Best along its course.

[36] That there can be no doubt that the Second Action seeks to review and challenge the rulings made in the contempt proceeding is confirmed by paras. 49 and 50 of the claim, which read:

[49] In fact, had the true facts been known to the Court, there were no reasonable grounds to allege contempt, let alone constitute proof beyond a reasonable doubt. The prosecution initiated against the Plaintiff by the lawyers, law firms and clients should have been (and hopefully will be) concluded favorably for the Plaintiff. Even if it is not, the Plaintiff asserts that where this did not occur as a result of fraud by the lawyers, law firms and clients, precluding an appeal on the merits for administrative reasons, malicious prosecution and false imprisonment should still be available. There was no honest belief in guilt and there was a further improper purpose of seeking to pressure discovery and otherwise pressure the termination of litigation in other jurisdictions involving other persons and entities, not the plaintiff or NBGL [Nelson Barbados Group Ltd.].

[50] The actions, and inactions in the face of duties to act, of the lawyers, law firms, clients and other defendants resulted in the contempt order and resulting warrant of committal. The execution of the warrant resulted in the wrongful imprisonment of the Plaintiff in May 2013 after he returned to Canada to challenge the contempt finding, until bail pending appeal was granted in June 2013. The Plaintiff was again wrongfully imprisoned in April 2014 when his appeal was dismissed for procedural reasons (inability to pay costs) triggered by continuation of the intentional abuse of process and lying to the Court of Appeal on and before February 27, 2014.

[37] Direct criticism of Shaughnessy J.’s review and assessment of the evidence, and of his findings, are found throughout the Claim. A glaring example is found at para. 45 of the claim, in which Best seeks to attack service of the notice of contempt hearing:

There was no personal service of any order prior to any obligation arising and no evidence of knowledge of such an obligation until, in respect of November 17 and 25, 2009, the day prior to the obligation arising and otherwise, no knowledge of any obligation until after the deadline. The Supreme Court of Canada, in Bhatnager, 1990 120 (SCC), [1990] S.C.J. No. 62 has made it clear that service that is not personal service may, in some circumstances be adequate for the conduct of civil litigation, but is legally inadequate to found civil contempt. Personal service or knowledge is a precondition for a finding of civil contempt.

[38] As several defence counsel submitted during argument, Best is necessarily asking that the entire proceedings before Shaughnessy J., and the higher courts thereafter, be reviewed by way of inquiry into whether the presiding judges “got it right”. This court agrees; the Second Action is premised upon allegations that the presiding judges were led into error, or made errors of law and/or fact, in the Nelson Barbados Action, as a result of the concerted efforts of the defendants individually and collectively.

History of the Second Action

[39] This action was commenced on July 14, 2014, within months of the administrative dismissal of Best’s appeal in the Nelson Barbados Action.

[40] Three of the 39 defendants in the Second Action were also defendants in the Nelson Barbados Action. These are three of the five Caribbean defendants. The other two Caribbean defendants appear to be related to or involved with the other three, as all five are alleged to be clients of the lawyer defendants and are alleged to be part of the civil wrongs committed against Best by the Caribbean defendants as a group.

[41] All of the defendants, except for Mr. Deane, filed a defence but not before some of them were noted in default. This court received evidence during the costs arguments at the conclusion of these motions that leaves no doubt that the Caribbean defendants were noted in default even when Best’s counsel knew that they were represented and had received communications asking that the Caribbean defendants not be noted in default. Best then opposed the setting aside of the noting in default until the final moment, but not before several time-consuming and costly interlocutory steps had been taken by Best. The Caribbean defendants were awarded by the motion judge in their favour in the amount of $45,235.13.

[42] The Caribbean defendants have not brought a motion to dismiss or strike the claim, but instead have a motion before this court to have the action stayed for lack of jurisdiction, on the same grounds on which the Nelson Barbados Action was permanently stayed. It was agreed by plaintiff’s counsel, but only at the outset of the hearing, that this jurisdictional motion would not be argued until after the disposition of the motions to dismiss. As a result of this court’s disposition of these latter motions, by which the Second Action is dismissed in its entirety, the jurisdictional motion is moot other than the costs incurred by the Caribbean defendants.

[43] As earlier stated, Best also had a motion before the court to amend his claim and a motion for an interim injunction. As a result of the dismissal of his claim without leave to amend, those motions, as well as the motion for default judgment against Mr. Deane, were dismissed on June 18, 2015.

[44] It is undisputed that at the time of commencing this action, and still today, Best has unpaid costs orders arising from the Nelson Barbados Action in the aggregate amount of $375,375.40. This entire amount is owed to the Caribbean defendants as a result of an agreement reached in the Nelson Barbados Action.

The Law and Analysis

A. Dismissal on the Grounds of being Frivolous, Vexatious or otherwise an Abuse of Process

[45] The authority of the court to have an action dismissed on the ground that it is frivolous or vexatious or is otherwise an abuse of the process of the court is found in rule 21.01(3)(d). Evidence is permitted on a motion under this rule.

[46] The applicable principles to be taken into account when assessing whether a proceeding amounts to an abuse of process may be summarized as follows:

1. The doctrine of abuse of process concentrates on the integrity of the adjudicative process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] S.C.R. 77, at para. 51. The doctrine engages the inherent power of the court to prevent the misuse of its procedure, in a way that will be manifestly unfair to a party to the litigation before it, or would in some other way bring the administration of justice into disrepute: Canam Enterprises Inc. v. Coles, 51 O.R. (3d) 481, 2000 8514 (C.A.), at para. 55, Goudge J.A. dissenting, aff’d 2002 SCC 63, [2002] 3 S.C.R. 307.

2. Policy grounds behind the doctrine of the abuse of process are essentially the same as those supporting issue estoppel, and include the need that there be an end to litigation, that no one should be twice vexed by the same cause, to preserve the courts and litigants resources, to uphold the integrity of the legal system in order to avoid inconsistent results and to protect the principle of finality: C.U.P.E., at para. 38; and Demeter v. British Pacific Life Insurance Co., 43 O.R. (2d) 33, 1983 1838 (H.C.J.), at para. 53, aff’d (1984), 1984 1996 (ON CA), 48 O.R. (2d) 266 (C.A.).

3. One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to re-litigate a claim which the court has already determined: Canam, at paras. 55-56; Donmor Industries Ltd. v. Kremlin Canada Inc., 6 O.R. (3d) 501, 1991 7360 (Gen. Div.), at paras. 3-4; Currie v. Halton Regional Police Services Board, 2003 7815, 233 D.L.R (4th) 657 (C.A.), at para 17; and Angle v. Canada (Minister of National Revenue), [1975] 2 S.C.R. 248, 1974 168, at pp. 265-267, Laskin J. dissenting.

4. Abuse of process may be established where the proceedings are oppressive or vexatious, and violate the fundamental principles of justice underlying the public interest in a fair and just trial process and the proper administration of justice: C.U.P.E., at para. 35, citing R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, at para 70.

5. An implicit attack on the correctness of the factual basis of a decision is a “collateral attack” and an abuse of the court’s processes: C.U.P.E., at para. 34. The rule against collateral attack attempts to prevent a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route: British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 28.

6. Abuse of process is used to bar proceedings that are inconsistent with the objectives of public policy: Canam, at para. 31.

7. Collateral attacks and re-litigation are not appropriate methods of redress since they inordinately tax the adjudicative process while doing nothing to ensure a more trustworthy result: C.U.P.E., at para. 54.

8. Res judicata, including its two branches of issue estoppel and action estoppel, and collateral attacks, may be viewed as particular applications of a broader doctrine of abuse of process, but the three doctrines are not always interchangeable: C.U.P.E., at paras. 22-23.

9. There may be instances where re-litigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original results should not be binding in the new context: C.U.P.E., at para. 52, citing Danyluck v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 80.

10. Unfairness in the prior proceedings or unfairness in preventing re-litigation can be the basis to refuse to apply abuse of process: Penner v. Niagara Regional Police Services Board, 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 39.

11. A party is expected to raise all appropriate issues and is not permitted multiple opportunities to obtain a favorable judicial determination: Penner, at para. 42.

12. The principle of res judicata applies not only where the remedy sought and the grounds therefore are the same in the second action as in the first, but also where the subject matter of the two actions is the same, and the litigant seeks to raise in the second action matters of fact or law directly related to the subject matter which could have been, but were not, raised in the first action: Canada v. Chevron Canada Resources Ltd., [1999] 1 F.C.R. 349, 1988 9090 (F.C.A.), at para. 36, citing Thomas v. Trinidad & Tobago (Attorney General) (1990), 115 N.R. 313 (Trinidad & Tobago P.C.), at p. 316.

[47] Frivolous and vexatious actions referenced in rule 21.01(3)(d) were discussed by the Court of Appeal in Currie. In that case, at para. 14, reference was had to the definition of "frivolous" in Black's Law Dictionary, 7th ed. (St. Paul, MN: West Publishing Co., 1999), at p. 677: “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”.

[48] The fact that Best asserts that the Nelson Barbados Action was unfair and tainted with fraud does not make it so, nor does his assertion that Shaughnessy J. and the judges of the Court of Appeal were misled in their evaluation of the evidence. The Reasons of Shaughnessy J. of May 3, 2013, leaves no doubt that his assessment was that it was Best, not the defendants, who had a persistent strategy in the litigation to mislead and deceive the court, and to obstruct its processes, as explicitly referenced in Nelson Barbados Group Inc. v. Cox, at pp. 28-29, 32, 33-35, 49-50, 51-52, 53, 55, 56-57.

[49] Just as he has asserted in the Second Action, Best asserted during the contempt proceeding that there had been a cover-up or conspiracy in order to prevent a full hearing into the evidence pertaining to that proceeding, which was addressed at p. 36 of the Reasons of Shaughnessy J. of May 3, 2013. In terms of the issue of service of the order of November 2, 2009, and the representations made to the court by Mr. Ranking and Mr. Silver in respect of it, Shaughnessy J. deals fully with those issues, at p. 54 of his Judgment: “Further, and in any event, this court was never misled concerning Mr. Best’s possession of the November 2, 2009 order.” Additionally, Best’s allegations in his claim that PricewaterhouseCoopers is not a legal entity, and that the court was “misled into refusing to decide” whether it was a legal entity, is another example of Best inviting this court to reach a different result than that already reached. That allegation was raised in the course of the contempt proceeding and dealt with summarily by Shaughnessy J. in his Reasons of May 3, 2013, at p. 36. Further, the “secret investigation” referenced in the current claim was also the subject of comment by Shaughnessy J. in his judgment, at pp. 33-35, which he referred to as “yet a further tactic”. Finally, the Van Allen affidavit, to which Best misguidedly attempts to attach much significance in his second claim, is not fresh evidence, as it formed a part of the record before Shaughnessy J., and was the subject of findings in both the Superior Court and the Court of Appeal. Various challenges to the veracity of the Van Allen affidavit were raised by Best during the contempt proceeding.

[50] The claim in the Second Action is founded entirely on the previous litigation which dealt with the motion for costs, orders for substituted service and examination of Best, a motion for contempt of court and a finding of contempt, an application to set aside the finding of contempt, an application to remove certain lawyer defendants from appearing on the appeal and the appeals against the 2013 order of Shaughnessy J. There is no new issue raised in the claim that Best did not raise in the prior proceedings, either before Shaughnessy J. or in the appeal process by way of affidavit or oral argument.

[51] To summarize, the Second Action is an abuse of process, as defined in the leading cases referenced at para. 46, because it is a collateral attack on and an attempt to re-litigate the findings and rulings made in the Nelson Barbados Action, in which all avenues of appeal were exhausted by the plaintiff. The fact that the appeal was administratively dismissed does not mean that Best was not given a fair forum in which to litigate the costs orders related to Nelson Barbados’ former claim. It would be extremely perverse for this court to rationalize a “second kick at the can” on the ground that a litigant’s appeal was dismissed for failure to pay costs orders imposed in the course of a judicial process that was untainted by procedural unfairness, fraud or dishonesty. Best’s second claim is unmeritorious because it seeks to re-litigate a cause which has already been decided by a court of competent jurisdiction.

[52] As the foregoing suggests, this court finds no merit in the plaintiff’s submissions: 1) that privacy violations and the Van Allen investigation were not dealt with, with finality in the prior litigation; 2) that the allegation that PricewaterhouseCoopers was not a legal entity and was not dealt with, with finality; or 3) that the finding of contempt was not subject to a full and fair hearing, or that evidence relative to setting aside such finding was not fully considered. While the plaintiff argues that no court addressed and/or determined the above issues with any certainty of finality, the above review of the history of the prior litigation proves the contrary. Further, a judge is not required to give extensive reasons to the satisfaction of every litigant on arguments raised, particularly when they are spurious or unreasonable. The issues and allegations raised by the plaintiff arising from the Van Allen affidavit, the privacy violations and the legal status of the PricewaterhouseCoopers all fall within such characterization; the courts allotted to these issues the amount of attention they merited. There is no rational reason to apply any of the exceptions to the abuse of process doctrine advanced by Best in argument or through his counsel’s factum, or for this court to exercise its discretion to permit re-litigation of any of the issues raised in the second action as permitted by C.U.P.E. and Penner.

[53] The pleading is also an abuse of process because of its scandalous and vexatious content, the majority of it a regurgitation of the allegations made in the Nelson Barbados Action and, with the exception of two paragraphs, all stemming from the contempt hearing arising from that action. The two paragraphs in question, being paras. 31 and 32 of the claim, contain the inflammatory allegations already referenced in these Reasons regarding the personal safety of Best and his family and the role of the lawyers and law firms in conspiring to cause such injury. As commented on by Shaughnessy J. extensively in his Judgment of May 3, 2013, this is a continuation of Best’s campaign to vilify and defame the lawyers and law firms, and this time around, Mr. Van Allen and his company, police departments and individual officers.

[54] Dismissing the Second Action will meet the policy objectives which underlie res judicata and abuse of process: Best will not be permitted to use any more judicial resources to retry the same issues to attempt to get a different result; there will be finality to the issues raised in the contempt proceeding; the integrity of the administration of justice will be upheld by preventing Best from repeatedly challenging adjudicative decisions and continuing to harass and oppress the defendants in the face of unpaid costs orders; and the court will control its own processes by preventing a vexatious pleading from proceeding. On this latter point, part of the reason why this claim is particularly vexatious is that the damages allegedly suffered by Best are claimed to arise, in whole or in part, from his incarceration. A litigant is not entitled to claim damages from harm suffered as a consequence of a court order: Apotex Inc. v. Ontario (Minister of Health and Long-term Care), 2005 32910, 204 O.A.C. 275 (C.A.), at para. 28.

[55] While in my view there are sufficient grounds to dismiss the claim in its entirety on the basis that it is an abuse of process, for the sake of completeness I will consider the alternate relief sought by the defendants, which is to strike out the claim either under rule 25.11 or rule 21.01(1)(b).

[56] Before proceeding however, it is noted that the plaintiff’s counsel conceded during argument that the Ontario Provincial Police does not have the legal capacity to be sued and that all claims against this entity should be dismissed: McNabb v. Ontario (Attorney General), 50 O.R. (3d) 402, 2000 22413 (S.C.), at para. 30.

B. Applicable Principles for Striking Pleadings

[57] The threshold for striking a pleading is high. On a motion to strike a claim the test is whether there is any reasonable prospect of success, the effect being to weed out the hopeless claims and ensuring that those that have some chance of success go to trial: Green v. Canadian Imperial Bank of Commerce, 2014 ONCA 90, 118 O.R. (3d) 641. On a motion under r. 21.01(1)(b), the moving party bears the burden of showing that it is “plain and obvious” and “beyond doubt” that the claim or defence has no chance of success: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 1990 90, at pp. 979-980; and Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, 1990 131, at p. 280. Only if the action is certain to fail because it contains a radical defect should it be struck out: Hunt, p. 980. The pleading must be read generously, with allowances for drafting deficiencies: Falloncrest Financial Corp v. Ontario, 27 O.R. (3d) 1, (sub nom Nash v. Ontario) 1995 2934 (C.A.), at p. 6; Tran v. University of Western Ontario, 2015 ONCA 295, [2015] O.J. No. 2185, at para. 16.

C. Rules 25.11 and 21.01(1)(b): Striking the Claim

[58] Rule 25.11 permits the court to strike out or expunge all or part of a pleading, 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.

[59] I find that the claim is also vexatious and an abuse of process because it is inadequate in meeting the purposes of pleadings under the Rules, which are set out in Balanyk v. University of Toronto, 1999 14918, 1 C.P.R. (4th) 300 (S.C.), at para. 27; Cerqueira v. Ontario, 2010 ONSC 3954, [2010] O.J. No. 3037, at para. 11; and Senechal v. Muskoka (District Municipality), 37 M.P.L.R. (3d) 131, [2003] O.J. No. 885 (S.C.), at para. 50, as follows:

(a) to define clearly and precisely the questions and controversy between the litigant;

(b) to give fair notice of the precise case which is required to be met and the precise remedy sought; and

(c) to assist the court in its investigation in the truth of the allegations made.

[60] The law is clear that it is improper to plead allegations based on assumptions and speculations, because they are incapable of proof. A pleading must contain a plaintiff's knowledge of the facts and not merely those facts that he believes or wishes may or may not be true. A plaintiff must clearly plead the facts in support of his claim. Mere bald allegations, without supporting facts or with facts incapable of proof, must not be permitted to proceed: R. v. Imperial Tobacco Canada Ltd, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22; Miguna v. Ontario (Attorney General), 2005 46385, 262 D.L.R. (4th) 222 (C.A.); Deep v. Ontario, [2004] O.T.C. 541, [2004] O.J. No. 2734 (S.C.), aff’d [2005] O.J. No. 1294 (C.A.), at para. 6; Fitzpatrick v. Durham Regional Police Services Board, 76 O.R. (3d) 290, 2005 63808 (S.C.), at para. 25; Wilson v. Toronto Police Service, [2001] O.T.C. 483, [2001] O.J. No. 2434 (S.C), aff’d 2002 4770 (C.A.), at paras. 1-2; Hunter v. Bravener, 55 W.C.B. (2d) 39, [2002] O.J. No. 3100 (S.C.), aff’d (2003), 57 W.C.B. (2d) 449 (C.A.), at paras. 3-5; Gravelle v. Ontario, 2012 ONSC 5149, 95 C.C.L.T. (3d) 228, at paras. 122-123; Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality), 12 O.R. (3d) 750, 1990 6761 (H.C.J.), at para. 19; and Senechal, at para. 50.

[61] Bare allegations are scandalous and are to be struck out under rule 25.11(b), and allegations of fraud, misrepresentation, negligence and conspiracy must be pleaded with particularity: Cerqueira, at para. 11. The opposing party is entitled to have the case against it set out in an intelligible form: Craik v. Aetna Life Insurance Co. of Canada, 58 A.C.W.S. (3d) 941, [1995] O.J. No. 3286 (Gen. Div.), at para. 31, aff’d [1996] O.J. No. 2377 (C.A.).

[62] The claim fails to meet any of these requirements. It is a challenging, if not impossible, task to gain an understanding from it of which causes of action are being asserted against which defendants, which defendants are being referenced from time to time, which allegations are being levelled against which defendants and why and how, all the while casting scandalous aspersions on the defendants amidst irrational and convoluted argument in support of the allegations made. The allegations are vague and sweeping, with little to no specificity or particulars to enable the defendants to know the case that they must meet.

[63] Rule 21.01(1)(b) permits a court to strike out a pleading on the ground that it discloses no reasonable cause of action. As earlier stated, no evidence is admissible under this rule, and the court must take the allegations pleaded as true: Hunt, at pp. 989-990.

[64] The test for striking out a claim or cause of action was set out in Imperial Tobacco Canada Ltd., at para. 17, where McLachlin C.J. stated:

The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(a) of the B.C. Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 21 (SCC), [1980] 2 S.C.R. 735.

[65] Reading the claim as generously as possible and making allowances for some drafting deficiencies, I still find that none of the claims made by Best disclose a reasonable cause of action, even taking as true the facts as pleaded. Each cause of action will be discussed in turn. First, however, I will deal with a legal argument threaded throughout the factum filed by Best for opposing these motions.

[66] In his discussion of the applicable law, Best’s counsel relies on a line of cases referenced by him as the “joint party liability” cases: Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132; and Ontario Industrial Loan and Investment v. Lindsey, 4 O.R. 473, [1883] O.J. No. 263 (H.C.J.), and the “common design” liability cases: Fullowka; and Botiuk v. Toronto Free Press, [1995] 3 S.C.R. 3, 1995 60. His argument, in summary, is that the plaintiff alleges that the defendants have worked in complicity toward the common goal of harming the plaintiff. Accordingly, regardless of the clear confirmation in the law regarding the elements of each cause of action presented by the claim, the argument is that the causes of action are all viable because each party is a tortfeasor working together for this common purpose.

[67] In Fullowka, at para. 152, the Supreme Court of Canada states: “Inciting another to commit a tort may make the person doing the incenting a joint tortfeasor with the person who actually commits it”. At para. 35 of Ontario Industrial Loan, the court stated: “All persons procuring, commanding, aiding or assisting the commission of a wrongful act, are principals in the transaction” (cases omitted). Concerted action liability is a specific form of joint liability, where those participating in the commission of the tort must have acted in furtherance of a common design: Botiuki, at para. 74, citing John G. Fleming, The Law of Torts, 8th ed. (Law Book Company, 1992), at p. 255.

[68] While there can be no argument with these legal principles, they cannot be overlaid on a fact situation to create joint liability unless a tort has been properly pleaded in the first place. Joint liability can have no application to allege tortfeasors where neither the essential elements of the tort in question nor the facts underpinning those elements have been pleaded.

The Claim for Abuse of Process

[69] In Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, 272 O.A.C. 214, at para. 27, the four constituent elements of the tort of abuse of process are set out as follows:

(1) the plaintiff is a party to a legal process initiated by the defendant;

(2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective;

(3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and

(4) some measure of special damage has resulted.

[70] In this case, some of the defendants in the Nelson Barbados Action gave instructions to their former counsel to pursue the legitimate objective of recovering their wasted costs after that action was stayed. There was a legal basis for their counsel to pursue the steps that they did in furtherance of that objective. There can be no liability when a defendant employs a regular legal process to its proper conclusion: WestJet Airlines Ltd. v. Air Canada, 2005 CarswellOnt 2101, [2005] O.J. No. 2310 (S.C.), at para. 19. Accordingly, it is plain and obvious that this cause of action against the lawyer defendants and their firms cannot succeed, and it cannot succeed against the Caribbean defendants who sought to recover their wasted costs.

[71] In all other cases, it is plain and obvious from the claim that this cause of action fails at the first branch of the test; none of the other defendants can be reasonably characterized as “initiating” the costs proceeding or the contempt hearing arising out of it, and they were not parties in the Nelson Barbados Action. As earlier explained, the plaintiff seeks to draw in the defendants in the Second Action as being “co-conspirators” in the legal process initiated by those of the Caribbean defendants who were parties in the Nelson Barbados Action. Best’s counsel cites Fullowka as authority for the proposition that liability can attach for encouraging someone to commit a tort. However, the elements of the offence set out in Harris are clear and unambiguous, and cannot be circumvented by an argument of the sort raised by Best’s counsel.

Negligent Investigation/Negligent Performance of a Statutory Duty

[72] The elements of the tort of negligent investigation were established in Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at paras. 19, 60, 73, 88, 90, 93, as follows:

(a) the defendant owed the plaintiff a duty of care related to an investigation;

(b) the defendant breached the standard of care associated with that duty; and

(c) compensable damages were caused by the breach.

[73] Compensable harm only arises in a claim of negligent investigation where the investigation has terminated in the plaintiff's favor, for instance, where there has been a finding of wrongful conviction: Hill, at para. 97; and Romanic v. Johnson, 2013 ONCA 23, [2013] O.J. No. 229, at para. 6.

[74] Best has not pleaded that any investigations alleged to have been undertaken, secret or otherwise, were terminated in his favor. Likewise, he has not pleaded that the contempt proceeding which allegedly flowed from those investigations terminated in his favor. On this basis alone, this cause of action has no reasonable prospect of success against any of the defendants.

[75] Further, a successful action in negligence requires that the plaintiff demonstrate: (1) that the defendant owed him a duty of care; (2) that the defendant’s behavior breached the standard of care; (3) that the plaintiff sustained damages; and (4) that the damage was caused, in fact and in law, by the defendant’s breach: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[76] Lawyers do not owe a duty of care to their adversaries in litigation except in very limited circumstances, which do not apply in this case. Best has not pleaded that the present case is one of those exceptional circumstances: Martel v. Spitz, 2005 ABCA 63, [2004] A.W.L.D. 536, at para. 17, leave to appeal to SCC refused, 30879 (August 18, 2005); and Biron v. Aviva Insurance Company, 2014 ONCA 558, [2014] O.J. No. 3436, at para. 6.

[77] With respect to the private investigator defendants, there are no facts pled in the claim setting out what the duty of care is in respect of a private investigator. Best pleads that a private duty of care to “investigate lawfully” emanates from the legislation set out in the statement of claim: Criminal Code, R.S.C. 1985, c. C-46; Police Services Act, R.S.O. 1990, c. P.15; Private Security and Investigative Services Act, 2005, S.O. 2005, c. 34; Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31; and unspecified “OPP policies”, all of which he asserts preclude a serving police officer from acting as or being hired as a private investigator. First, the premise of the argument is inaccurate. The Police Services Act, s. 49, deals with secondary employment of police officers and conflicts of interest, with a mechanism in that Act to provide a remedy for any unauthorized breach. That statute does not itself create a duty of care, but rather is a labour relations statute that provides for an internal disciplinary process. Likewise, the Private Security and Investigative Services Act does not contain provisions expressly prohibiting a police officer from working as a private investigator.

[78] To make such generalized references to a duty of care, without greater specificity, is to create an unfocused action that will prolong the discovery and trial process, and which leaves the defendants without an understanding of the facts that give rise to a duty of care, and how that duty was breached. A claim in negligence must, for these reasons, be particularized: Basdeo (Litigation Guardian of) v. University Health Network, [2002] O.T.C. 54, [2002] O.J. No. 263 (S.C.), at paras. 16-17, citing Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 6761 (H.C.J.), 12 O.R. (3d) 750 (H.C.J.), at para. 17, Rosenberg J.

[79] Further, Best alleges that Van Allen accessed and disseminated “information” as a police officer that could not otherwise have been lawfully obtained. However, the exhibits attached to an affidavit of Mr. Sebastien Kwidzinski filed in the Nelson Barbados Action reveal that all information contained in the Van Allen affidavit was in the public domain other than Best’s former address. Nowhere in the claim does Best clarify or particularize how the publishing of his former address was the proximate cause of any damages suffered.

[80] In terms of the Toronto Police Association, the claim identifies this defendant as “an incorporated entity which represents active and retired police officers and others which are its members”. The claim fails to plead sufficient facts to establish that the TPA was in any way involved in a police investigation.

[81] In terms of the Durham Regional Police Service, the core of the allegations, and indeed the only facts pleaded as against the DRPS defendants, relate to two investigations supposedly conducted by one or more of the DRPS defendants. Both investigations are alleged to have contributed to the court’s finding that Best was in contempt of court and/or to his subsequent failed attempt to set aside that finding in 2013. These two alleged investigations were a “secret investigation” and an investigation by the professional standards unit of the OPP and the DRPS.

[82] As pleaded, the “secret investigation” alleged to have occurred in December 2009 was in relation to and for the purpose of the contempt proceeding and the hearing in January 2010. This proceeding was not terminated in Best’s favour. As such, the claim does not disclose a reasonable or tenable cause of action.

[83] The law is clear that a police service does not owe a private law duty of care to complainants or victims when it investigates the conduct of its own officers. There is an inherent tension between the public interest in an impartial and competent investigation and a private individual’s interest in a desired outcome of that same investigation, which includes seeking a viable civil cause of action against the alleged perpetrators. To impose a private law duty of care would introduce an element seriously at odds with the fundamental role of the special unit created to investigate the conduct of police officers in the public interest: Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, at paras. 43-48, leave to appeal refused, [2011] S.C.C.A. No. 258.

[84] Therefore, with respect to the second alleged investigation by the professional standards unit, Best was the complainant rather than the subject of the investigation. Wellington confirms that there can be no duty owed to Best. Accordingly, Best cannot prove an essential element of the claim.

[85] With respect to the OPP officers, Mr. Kearns and Mr. Vibert, the claim does not detail any investigation of Best by these two officers. Even had Best alleged that the two officers participated in such an investigation, on the basis of Wellington, at para. 33, such an allegation does not give rise to a relationship of proximity sufficient to ground an action for damages in tort.

[86] With respect to the Peel Regional Police Service, the claim again does not detail the specifics of any investigation of Best by this defendant and there is uncertainty whether this defendant is even included in the term “the police” repeatedly referred to by Best in his claim.

[87] Where this claim most decidedly fails, however, is with respect to the requirement that compensable damages were caused by the breach. Causation is not addressed in the claim at all. The root of the cause of action is the allegation that Mr. Van Allen used his position as a police officer to obtain Best’s former address. All other defendants are alleged to be involved because of their knowledge of Mr. Van Allen’s conduct. Best then alleges that this information “helped” persons to locate the plaintiff and his family and threats of harm and violence ensued. Nowhere in the claim does Best set out the particulars of how the former address was or could be used by the identified individuals to harm him. How any alleged damages were caused by this conduct remains uncertain.

[88] Accordingly, it is plain and obvious that this cause of action against all of the defendants has no chance of success.

False Imprisonment

[89] The essential elements of a cause of action for false imprisonment are set out in Ernst v. Quinonez, [2003] O.T.C. 847, [2003] O.J. No. 3781 (S.C.), at para. 93. A party alleging false imprisonment must prove that:

(a) the plaintiff was totally deprived of liberty;

(b) the deprivation was against the plaintiff's will; and

(c) the deprivation was caused by the defendant.

[90] There can be no cause of action for false imprisonment once there has been judicial intervention, and if the imprisonment was lawfully justified there is no false imprisonment: Frazier v. Purdy, 1991 7194 (ON SC), 6 O.R. (3d) 429, [1991] O.J. No. 2154 (Gen. Div.), at paras 22-23; and Zareian v. Durham Regional Police Services Board, 147 A.C.W.S. (3d) 507, [2006] O.J. No. 1296 (S.C.), at paras. 34, 38. The tort requires an intentional and unauthorized confinement of an individual: Sheridan v. Ontario, 2014 ONSC 4970, [2014] O.J. No. 4023, at para. 50, aff’d 2015 ONCA 303, [2015] O.J. No. 2281.

[91] Although Best has pled that the lawyer defendants initiated the contempt proceeding, there are no facts pleaded in the claim to suggest that his imprisonment preceded a judicial intervention, and in fact he describes in the claim that he was imprisoned pursuant to Shaughnessy J.’s order.

[92] Additionally, the plaintiff must establish that the defendants caused the arrest or detention. Given that it was the plaintiff’s conduct which led to the finding of contempt and his incarceration, it is plain and obvious that none of the defendants caused the arrest or detention.

[93] There is no cause of action for false imprisonment under these circumstances in relation to any of the defendants.

Malicious Prosecution

[94] The Supreme Court of Canada has described the elements of the cause of action for malicious prosecution in Nelles v. Ontario, [1989] 2 S.C.R. 170, 1989 77, at pp. 192-193, and has since reiterated the test in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 78-89, as follows:

(a) the defendant initiated or continued the impugned prosecution;

(b) the prosecution terminated in the plaintiff’s favor;

(c) the defendant initiated or continued the prosecution in the absence of reasonable and probable cause; and

(d) the defendant actuated the prosecution for an improper purpose and did not have an honest belief in guilt.

[95] Best has not pled that the contempt proceeding terminated in his favor, and in fact has pled that he was found guilty of contempt and that that judgment was never set aside. Accordingly, it is plain and obvious that this cause of action has no chance of success in relation to any of the defendants.

[96] These allegations should also be struck due to the vagueness of Best’s allegations as to the “improper purposes” for which the contempt proceeding was allegedly initiated and pursued. In addition to a generalized allegation that there was an improper purpose in wanting to have Best found in contempt and incarcerated, Best makes unsupported and vague allegations that include:

(i) “seeking to pressure discovery”;

(ii) “otherwise pressure the termination of litigation in other jurisdictions involving persons and entities, not the Plaintiff or NBGL”;

(iii) “as a means to pressure him and others in respect of litigation and potential litigation in other jurisdictions”;

(iv) “encouraging the plaintiff to leave Canada”; and

(v) “to gain advantage in or to prevent the continuation of litigation in other jurisdictions”.

[97] Clearly these allegations lack the specificity needed to allow the defendants to properly respond. The alluded-to litigation and parties are never identified in the claim. The allegations beg the question of how Best would be entitled to compensation for alleged wrongs done to others. And the notion that the Caribbean defendants and their lawyers would want to drive Best out of the jurisdiction when their intent was to recover costs from him is simply ludicrous.

[98] Best’s counsel argues in the factum that there was no basis to pursue contempt in the first place, setting out, again, all of the arguments addressed by Shaughnessy J. in his Reasons of May 3, 2013. Again, Best’s counsel argues that this is a case where re-litigation should be permitted in accordance with the exceptions discussed in Canam, C.U.P.E., and Penner. For the reasons already given, this is not a case where any alleged grounds of such exceptions are adequately pled in the claim to give rise to such relief, and the facts of the case do not suggest that re-litigation would be in the interests of justice.

Intentional Infliction of Harm or Mental Suffering

[99] The elements of the tort of intentional infliction of mental suffering are set out in Prinzo v. Baycrest Centre for Geriatric Care, 60 O.R. (3d) 474, 2002 45005 (C.A.), at para. 48, as follows:

(1) flagrant or outrageous conduct;

(2) calculated to produce harm; and

(3) resulting in a visible and provable illness.

[100] As with other torts requiring intentional conduct, material facts must be pled with sufficient particularity: Sheridan (ONSC), at para. 53.

[101] Best’s allegations that the defendants intentionally undertook steps in the litigation in order to harm him are bald and scandalous and are not supported by material facts. Additionally, the requirement of a visible and provable illness is not described in the claim.

[102] Given the failure to plead material facts in support of the essential elements of this tort, it is plain and obvious that it cannot succeed against any of the defendants.

Misfeasance of Public Office

[103] The Supreme Court of Canada has set out the elements of the tort of misfeasance in public office in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23, and in St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, 319 D.L.R. (4th) 74, at para. 20, as follows:

(a) that a public officer, acting in his or her capacity as a public officer, engages in deliberate and unlawful conduct;

(b) the public officer is aware both that the conduct is unlawful and that it is likely to harm the plaintiff;

(c) the public officer’s tortious conduct was the legal cause of the plaintiff's injuries; and

(d) the injuries suffered are compensable in law.

[104] In Freeman-Maloy v. York University, 2006 9693 (ON CA), 79 O.R. (3d) 401, (sub nom Freeman-Maloy v. Marsden) 2006 9693 (C.A.), at para. 10, leave to appeal refused, [2006] S.C.C.A. No. 201, Sharpe J.A. writing for the Court stated that “[t]he tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen.”

[105] It is plain and obvious that certain of the defendants are not public officers and were never exercising a public function, including the lawyers, law firms, Van Allen and the other private investigator defendants, the Caribbean defendants and the Toronto Police Association. Further, the claim does not plead any material facts setting out that any of the defendants are in fact government actors fulfilling public functions. Accordingly, this cause of action has no chance of success.

Conspiracy

[106] A pleading of conspiracy must be detailed and precise, including in respect of the conduct by each alleged conspirator. As expressed by I.H. Jacob, Bullen and Leake and Jacob's Precedents of Pleadings, 12th ed. (London, England: Sweet & Maxwell, 1975), at p. 341 and cited by the Court of Appeal with approval in Normart Management Ltd. v. West Hill Redevelopment Co., 37 O.R. (3d) 97, 1998 2447 (C.A), at para. 21:

The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.

[107] Similarly, in Tran v. University of Western Ontario, 2014 ONSC 617, [2014] O.J. No. 407, at para. 31, rev’d on other grounds 2015 ONCA 295, the court described that a pleading in conspiracy must make a number of distinct points, including:

(a) describe who the several parties are and their relationship with each other;

(b) allege the agreement between the defendants to conspire;

(c) state precisely what the purpose or what were the objects of the alleged conspiracy; and

(d) set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy, and

(e) describe the injury and damage occasioned to the plaintiff thereby.

[108] An allegation of conspiracy will be defective and should be struck unless the specific elements are pleaded in the statement of claim: Dryden v. Dryden, 2011 ONSC 7060, 74 E.T.R. (3d) 301 (S.C.), at para. 39.

[109] Best has neither pleaded what agreements existed between the defendants nor set out what purpose they had in conspiring. He pleaded bald and spurious allegations concerning an intention to influence proceedings in other jurisdictions, some of which are alleged to not even involve Best or to harm Best personally. Best has not pleaded sufficient precise acts which any of the defendants allegedly undertook in furtherance of conspiracy to ground the cause of action. Where Best has attempted to plead precise acts, for example, that the lawyer defendants committed fraud on the court in relation to the legal entity of PricewaterhouseCoopers, the allegations are vexatious and patently ridiculous.

[110] As it is plain and obvious that the pleading does not support this cause of action against any of the defendants, it should be struck.

Breach of Privacy Rights

[111] As set out in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, at para. 71, a party alleging breach of common law privacy rights must plead as follows:

(a) the defendant's conduct must be intentional or reckless;

(b) the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and

(c) a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.

[112] Best pleads that his private information was disclosed in the Van Allen affidavit, prepared in relation to the Nelson Barbados Action. This affidavit and other nonspecified documents were allegedly filed with the court by the lawyer defendants. Best further alleges that certain of the lawyer defendants disseminated his private information on the Internet, including his date of birth, driver's license information, addresses and employment record. He alleges that this is a breach of the deemed/implied undertaking rule and is therefore unlawful. Best claims that these allegations are “highly offensive” to a reasonable person because his information was accessed without proper purpose and without regard to his safety. He has not pleaded particulars regarding the lawyer defendants’ alleged intention to invade his privacy. He has not pled that the former address released by the Toronto Police Association was in fact his former address.

[113] The preparation and filing of affidavits and other unspecified material in the Nelson Barbados Action was not without lawful justification, as it was undertaken in the normal course of an action. Further, Best’s allegations that the defendants participated in disseminating his personal information on the Internet are bare, scandalous, patently ridiculous and incapable of proof. With respect to this cause of action, Best makes sweeping allegations against all 36 defendants concerning the access and distribution of his private information, without particularizing who accessed what information, when, and who is alleged to have done what with the various categories of information. This approach provides none of the defendants with a reasonable opportunity to prepare a defence other than to deny the allegations, and fails to set out the material facts necessary to support this intentional tort.

[114] The only defendant against whom this cause of action has any potential merit is the Toronto Police Association, who allegedly released Best’s former address to Mr. Van Allen. However, the facts fail to satisfy the third part of the test set out in Jones v. Tsige, in that a reasonable person would not find it highly offensive in the circumstances of this case. Best had concealed any address at which he could be personally served. Accepting for argument’s sake that he did so because of his former profession as a police detective, his conversation with Mr. Ranking and Mr. Silver on the morning of his scheduled examination reveals that he would not cooperate in making his whereabouts known, even generally, or cooperate in making himself available to be examined personally, even in the face of a court order. Even in the course of an examination in aid of execution, the defendants would have been entitled pursuant to rule 60.18(2) to examine Best in relation to far more intrusive matters, such as his income, assets and liabilities and any other matter pertinent to the enforcement of the order, including his residential address. Further, the pleading fails to convey how the revelation of a former address specifically caused distress, humiliation and/or anguish.

[115] Accordingly, it is plain and obvious that this cause of action has no chance of success and should be struck against all defendants.

Breach of ss. 7 and/or 8 of the Charter

[116] Best admitted at the outset of the argument of the motions that this cause of action cannot stand against individual state actors: Ward v. Vancouver (City), 2010 SCC 27, [2010] 2 S.C.R. 28. Best had indicated an intention to pursue Charter claims had his motion to amend the claim been successful, such that PRPS and DRPS were replaced with their respective Police Service Boards. As the motion to amend has not been granted, these claims have no chance of success.

[117] Further, there are no material facts pleaded to engage ss. 7 and 8 of the Charter.

Breach of Fiduciary Duty/Negligence in Respect of Fiduciary Duty

[118] Best conceded in his factum that this cause of action cannot apply in this case.

Absolute Privilege and Witness Immunity

[119] Absolute privilege and witness immunity provides further bases for dismissing the claim against the Van Allen defendants.

[120] In Samuel Manu-Tech Inc. v. Redipac Recycling Corp., 1999 3776, 124 O.A.C. 125 (C.A.), at para. 19, Feldman J.A. speaking for the court, stated that the law on absolute privilege is found in Halsbury's Laws of England, vol. 28, 4th ed. Reissue (London, England: Butterworths, 1997), at para. 97:

Absolute privilege. No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognized by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. The privilege extends to documents properly used and regularly prepared for use in the proceedings. Advocates, judges and juries are covered by this privilege. However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.

[121] It flows from this that the Van Allen affidavit used in the Nelson Barbados Action is a communication captured by absolute privilege. Similarly, as a witness, Mr. Van Allen and the private investigator defendants may not be sued for things said or done in the course of preparing evidence for judicial proceedings: Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 256 D.L.R. (4th) 674, at paras. 112-114. The principle behind absolute privilege and witness immunity is to ensure candor and cooperation of witnesses and to protect the substance of evidence from collateral attack in subsequent proceedings, such as this action: Elliott, at para. 119.

[122] On the basis of absolute privilege and witness immunity, it is plain and obvious that the action against the Van Allen defendants cannot succeed.

Limitation defence of the Toronto Police Association

[123] The Toronto Police Association also raised the argument that the claim should be struck under rule 21.01(1)(a) on the grounds that it is barred by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B. I accept the arguments put forth by counsel for this defendant and rule that, in the alternative, this is another basis for striking the claim against this particular defendant.

[124] The case law supports the proposition that, where it is plain and obvious based on the undisputed facts contained in the pleadings that the limitation period had begun to run at a point in time which ensures that it had expired by the time the claim was filed, an action can be held to be statute-barred and an order striking the claim can be granted: Beardsley v. Ontario Provincial Police, 57 O.R. (3d) 1, 2001 8621 (C.A.), at para. 21; Charlton v. Beamish, 73 O.R. (3d) 119, 2004 35934 (S.C.), at paras. 48-49; and Whittaker v. Great-West Life Assurance Co., 2008 13376 (ON SC), 63 C.C.L.I. (4th) 100, [2008] O.J. No. 1194 (S.C.), at paras. 33-48.

[125] In this case Best has put before the court all of the material facts in relation to the principle of discoverability by way of his pleading and reply to demand for particulars. A reply to a demand for particulars is not prohibited evidence barred by rule 21.01(2)(b); it is deemed to form part of the statement of claim: Sinclair v. Markham (Town), 2014 ONSC 1550, 27 M.P.L.R. (5th) 32, at para. 14; and Perth Insurance Co. v. Osler Rehabilitation Centre Inc., 2013 ONSC 7033, [2013] O.J. No. 5408, at para. 8.

[126] Furthermore, a motion judge is entitled to consider any document specifically referred to and which forms an integral part the statement of claim, as these documents are not evidence but rather are incorporated into the pleading: Web Offset Publications Ltd. v. Vickery, 43 O.R. (3d) 802, 1999 4462, at para. 3, leave to appeal refused, [1999] S.C.C.A. No. 460; D.L.G. & Associates Ltd. v. Minto Properties Inc., 2014 ONSC 7287, [2014] O.J. No. 6018, at para. 13; and Sheridan (ONCA), at para. 12. It stands to reason that the same principle would apply to documents referred to in a reply to demand for particulars. In this case, the Toronto Police Association relies on a transcript provided by Best of a phone call allegedly held with Mr. Rick Perry, the Legal Director of the Toronto Police Association. This recorded conversation is referenced at para. 7 of Best’s reply to demand for particulars.

[127] The transcript reveals that as of the date of the conversation on November 24, 2009, Best is aware of the following facts:

1. That an affidavit exists in which a private investigator had deposed that he had contacted the Toronto Police Association, been given Best’s name and was given Best’s former home address;

2. That Best believed that such conduct would violate the Association’s privacy rules;

3. That the release of his past address history was published on the Internet on October 30, and that people were making threats against his family on “the web”, and that Best had left the country with his family as a result;

4. That Best had the intention to be “pursuing this”;

5. That Best wanted to cross-examine the private investigator to try to determine “who he really spoke to” at the Association to obtain the information, or who accessed their database to find the information; and

6. That Best had suffered damage, which he described in the transcript as follows “… I'll tell you how bad it is. Not even my relatives know how to contact me right now and it’s by… If you knew the whole situation, you’d know it was by no means an over reaction. It’s ah, they’re calling, their calling to ah, this particular thing that I find myself caught up in, they’ve actually called for the rape of a witness, burning down another witness’ business. This is serious stuff so…”

[128] The Supreme Court of Canada set out the discoverability principle in Peixeiro v. Haberman, [1997] 3 S.C.R. 549, 1997 325, at para. 18:

Once the plaintiff knows that some damage has occurred and has identified the tortfeasor (see Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758 (H.L.), at p. 772 per Lord Reid, and July v. Neal (1986), 1986 149 (ON CA), 57 O.R. (2d) 129 (C.A.)), the cause of action has accrued. Neither the extent of the damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.

[129] The Court of Appeal for Ontario emphasized the difference between “damage” and “damages” in the case of Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, 347 D.L.R. (4th) 657, at para. 54. The comments of the court make clear that one does not have to know the full extent of the loss in order to have the limitation period begin to run:

The City’s position that damage occurred when the Devonshire notes matured also fails to appreciate the distinction between damage and damages. Damage is the loss needed to make out the cause of action. Insofar as it relates to a transaction induced by wrongful conduct, as I have explained, damage is the condition of being worse off than before entering into the transaction. Damages, on the other hand, is the monetary measure of the extent of that loss. All that the City had to discover to start the limitation period was damage.

[130] Best argued, at para. 102 of his factum, that the limitation period could not begin to run in 2009 because “there was little damage known to flow from that at the time”, and that when the affidavit was distributed abroad between 2009-2012 “he suffered some damage”, but that the damage giving rise to the claim did not arise until he was incarcerated on May 3, 2013.

[131] First, the opposite is alleged in the claim and the incorporated reply to demand for particulars, which is that the release of the information immediately caused damage, being the catalyst for Best and his family to flee various jurisdictions beginning in late 2009. Second, on the basis of Metcalfe, the admission that Best suffered “little” or “some” damage is sufficient. Taken together with the direct knowledge evidenced in the transcript, all of the material facts are available to conclude that Best had discovered all of the necessary elements set out in s. 5(1) of the Limitations Act, 2002 as of November 24, 2009. This was actual, as opposed to deemed, discovery. He admitted during that telephone call that he knew that injury, loss or damage had occurred, he knew of the act that caused such injury, loss or damage, he knew that the Toronto Police Association, as the source of the information, was the tortfeasor and he knew that a proceeding would be the appropriate means by which to seek a remedy.

[132] Accordingly, the limitation period for making the claim against the Toronto Police Association expired on November 24, 2011, and therefore Best was well out of time when this claim was issued in 2014. Best’s claim must also be dismissed under rule 21.01(1)(b) on the basis of being statute-barred.

Leave to amend

[133] It is rare that a court should deny leave to amend a pleading, except in truly hopeless cases: Miguna v. Ontario (Attorney General), 2005 46385, 262 D.L.R. (4th) 222 (C.A.), at paras 17-18. As stated in my endorsement, I find that this is one of those exceptional cases in which leave to amend should not be granted, as granting the plaintiff the opportunity to do so will still not result in a statement of claim that is viable at law.

[134] This case is similar to that of Gravelle, in which Quigley J. denied leave to amend because the “plaintiff has had more than adequate opportunity to fine tune these pleadings to cause them to be more than mere bald accusations with no factual underpinnings to support them” (at para. 126). While the plaintiff has a motion before the court to amend the claim, the proposed amendments do nothing to address the deficiencies noted throughout these Reasons. As Quigley J. noted, at para. 123: “to be accorded this indulgence the plaintiff must have knowledge of the facts supporting the allegations of intentional misconduct by the defendants at the time of the pleading, and the plaintiff cannot plead speculative allegations that are incapable of proof”.

[135] The court was provided with Best’s responses to two requests for particulars. These responses illustrate what occurs when Best is given the opportunity to remedy what were identified by the defendants as being inadequacies in the claim. By way of example, the Toronto Police Association requested:

Particulars of the circumstances in which private and/or confidential information relating to the plaintiff was allegedly provided by the TPA, Jane Doe #4, and/or John Doe #4 (as alleged at paragraphs 18, 33, 35, 90, 100, 110, 120, 133, 140, 143, 152, 153, 159, 163, 171, 172, 174, 177, 178, and 188 of the Statement of Claim) to a third-party, including:

(a) The precise information relating to the Plaintiff alleged to have been provided by the TPA, Jane Doe#4, and/or John Doe #4 to a third-party;

(b) The identity of the person(s) to whom such information was allegedly provided; and

(c) The date(s) on which such information was allegedly provided.

[136] In Best's reply to the TPA’s request, he states:

1. The affidavit of James Van Allen states, at para. 12, says that he was given information regarding the Plaintiff, Donald Best, a member of the TPA. It is alleged that this information, regarding a former address, and other information, was confidential information which could be used and was used, together with other information, to track down my client and put his physical safety and security of the person interests at risk. Further this risk resulted in further real harm to the plaintiff.

[137] This response illustrates, in my view, what can be anticipated by permitting Best to attempt to bolster his claim. His response begs the following questions: What “other information”? How was it used, either alone or together with other information, to track down Best, and when and by whom? Was this “other information” the same information referred to earlier in the same paragraph? Who used this information to put Best at risk, and when? What was the specific threat to his safety and security? How did this risk result in further “real harm”? What connection does this “real harm” have to the information provided in the affidavit, such as the provision of a former address?

[138] One can foresee that any attempt to obtain the particulars of any material facts underlying these speculative and bald assertions will only lead to more obfuscation. Best has had an opportunity to come up with the material facts during the contempt hearing, particularly when he was attempting to set aside the finding of contempt and raised the same allegations in his material and argument. In that proceeding he did not put forth the material facts successfully, thus making it even more unlikely that he will be able to put forth the necessary facts to support the causes of action he now pleads. Given that he has been unable to establish the necessary elements of the torts in an already compendious claim, granting leave to amend will ultimately serve no purpose.

Costs

Costs of the Motions to Strike

[139] Costs arguments were heard immediately after this court granted the defendants’ motions to strike Best’s claim.

[140] This court made costs awards in favour of the defendants in the following amounts totalling $363,209.06, with reasons to be delivered at a later date:

i. The Caribbean defendants - $84,000 on a full indemnity basis;

ii. The lawyer defendants - $79,134.79 on a substantial indemnity basis;

iii. The OPP defendants - $16,986.50 on a partial indemnity basis;

iv. Peel Regional Police Services - $31,242.67 on a substantial indemnity basis;

v. Durham Regional Police Service defendants - $28,587.53 on a substantial indemnity basis;

vi. The Toronto Police Association - $30,419.30 on a substantial indemnity basis; and

vii. The private investigator defendants - $92,838.27 on a substantial indemnity basis.

[141] This court found that the arguments put forth by Best to defend against the motions to strike had “not a scintilla of merit”, as stated at the conclusion of the argument of the motions. However, as set out in Young v. Young, [1993] 4 S.C.R. 3, 1993 34, at pp. 134-135, that fact alone is not a basis for awarding solicitor-client costs. It is generally only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties that solicitor-and-client costs may be awarded. The test for awarding costs on a substantial indemnity basis was referenced by Newbould J. in Schreiber v. Mulroney, 2007 34441, [2007] O.J. No. 3191 (S.C.), at para. 9, citing Mark Orkin, The Law of Costs, 2nd ed. (Aurora: Canada Law Book, 1987), at para. 219:

Costs on a solicitor-and-client scale should not be awarded unless special grounds exist to justify a departure from the usual scale.

As the court said in Foulis v. Robinson:

Generally speaking, an award of costs on a party-and-party scale to the successful party strikes a proper balance as to the burden of costs which should be borne by the winner without putting litigation beyond the reach of the loser. There are, of course, cases in which justice can only be done by a complete indemnification for costs.

An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to marker the court’s disapproval of the conduct of a party in the litigation. The principle guiding the decision to award solicitor-and-client costs has been enunciated thus.

[S]olicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or the proceedings, which make such costs desirable as a form of chastisement.

The Supreme Court of Canada has approved the following statement of principle:

Solicitor-and-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.

[142] Examples of where a costs award on the higher scale has been warranted are:

1. Where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and unnecessarily run up the costs of the litigation: Standard Life Assurance Co. v. Elliott, 86 O.R. (3d) 221, 2007 18579 (S.C.), at para. 9, citing Shier v. Fiume, 6 O.R. (3d) 759, 1991 7188 (Gen. Div.); Benquesus v. Proskauer, Rose, LLP, 2005 21097, [2005] O.J. No. 2418 (S.C.); Donmor Industries Ltd.; Aspiotis v. Coffee Time Donuts Inc., 53 A.C.W.S. (3d) 508, [1995] O.J. No. 419 (Gen. Div.); and Apotex Inc. v. Egis Pharmaceuticals, 4 O.R. (3d) 321, 1991 2729 (Gen. Div.).

2. Where unproven allegations of false representation, concealment or misconduct are made that impugn the integrity of a lawyer; Alie v. Bertrand and Frère Construction Co., 11 C.L.R. (3d) 149, [2000] O.J. No. 4860 (S.C.), at para. 26, aff’d (2001), 2001 62748 (ON CA), 11 C.L.R. (3d) 12 (C.A.), at para. 28, leave to appeal refused, [2001] S.C.C.A. No. 418; and Sun Life Trust Co. v. Bond City Financing Ltd., 36 O.R. (3d) 758, 1997 16221 (Div. Ct.).

3. Where needed to sanction a party’s vexatious, contumelious or oppressive conduct of the whole litigation or a step in it: Abrams v. Abrams, 2009 23375, [2009] O.J. No. 1907 (Div. Ct.), at para. 15.

4. Where a claim has been dismissed as an abuse of process, in particular where a defendant has been forced to respond to a plaintiff’s attempt to relitigate claims: Said v. University of Ottawa, 2014 ONSC 771, [2014] O.J. No. 515, at para. 5, citing Rousseau v. Scotia Mortgage Corporation, 2013 ONSC 677, 19 C.C.L.I. (5th) 288, at para. 23.

5. Where a plaintiff has made unfounded allegations of improper conduct that were seriously prejudicial to the character and reputation of the defendants: Said, at para. 8, citing Aba-Alkhail v. University of Ottawa, 2013 ONSC 6070, 14 C.C.E.L. (4th) 133, at paras. 5-7.

6. Where unsubstantiated allegations of dishonesty, illegality and conspiracy are advanced without merit: Direk v. Attorney General of Ontario, 2014 ONSC 1916, [2014] O.J. No. 1403, at para. 4; and Baryluk v. Campbell, 66 C.C.L.T. (3d) 160, [2009] O.J. No. 2772 (S.C.), at para. 10. Marcus v. Cochrane, 2012 ONSC 2331 (S.C.J.) at para. 11.

[143] Based on the above precedents and the test for awarding solicitor-and-client costs articulated by Orkin in The Law of Costs, this case should also attract costs on the higher scale. Best’s claim was dismissed as an abuse of process, he was attempting to relitigate issues already determined by the prior proceeding and he made unproven and scandalous allegations of fraud, dishonesty, false representations and other improper conduct against various professional individuals. He attempted to malign the integrity of justice system. These allegations were summarized by Best’s counsel, at paras. 60 and 79 of his factum, as follows:

1. Seeking costs for ulterior purposes, such as to intimidate the plaintiff, deter him from litigation and force him to leave the country;

2. Engaging in a campaign to endanger the plaintiff;

3. Seeking documents and conducting an examination or an improper purpose;

4. Disseminating the plaintiff’s private information on the Internet, with an intent to harm;

5. Engaging in a conspiracy between lawyers, law firms, clients and police to cover up Van Allen’s status as a serving police officer;

6. The dissemination of the plaintiff’s information and the cover up of the conspiracy was knowingly criminal or unlawful and done with the intent to pressure the plaintiff;

7. The lawyers, law firms and clients conspired to have Best wrongly found in contempt;

8. The lawyers lied in order to secure examination orders and to “set up” the plaintiff for contempt, in furtherance of their part in the conspiracy;

9. The lawyers lied in court before Shaughnessy J. on December 2, 2009, to further this conspiracy;

10. The lawyers used their positions as officers of the court to mislead the court and perpetrate a fraud to further their conspiracy to have the plaintiff found in contempt;

11. The other lawyers involved – Misters Chabas, Roman, Quidenski and Zemel – failed to correct the falsehoods of Mr. Ranking and Mr. Silver although they had a duty to correct these falsehoods;

12. Mr. Ranking and Mr. Silver mislead the court with respect to the statement for the record as part as a conspiracy to have the plaintiff found in contempt;

13. The purpose of pursuing contempt against the plaintiff was to pressure him to leave Canada and to influence the course of other litigation;

14. The various lies of the defendants culminated in the wrongful imprisonment of the plaintiff;

15. The filing of an affidavit was done to facilitate further dissemination of the plaintiff’s private information in order to harm him;

16. The lawyer, Mr. Colin Pendrith, assisted in the continuation of the conspiracy in respect of contempt at the appeal stage;

17. The lawyer defendants and their clients refused to say what questions had not been answered, in perpetuation of pressure through contempt proceedings;

18. The lawyer defendants unreasonably opposed requests for time for the plaintiff to find counsel in order to pursue the conspiracy;

19. The court erred with respect to the timing of the plaintiff’s concerns about his safety issues, and the lawyer defendants chose to reinforce this misunderstanding; and

20. There was continued pressure and intimidation of the plaintiff during two days of examination in January 2013.

[144] Faced with allegations of this nature, this is one of those cases where the court should react to show its condemnation for this type of litigation conduct, particularly within the context of a proceeding that is an abuse of process.

Application of the Rule 57.01 Factors

The amount claimed and recovered in the proceeding

[145] Best claimed damages of more than $20,000,000 against the 39 named defendants.

The result of the proceeding

[146] The defendants were entirely successful in having the action dismissed as an abuse of process, and alternatively, having the claim struck as being vexatious and disclosing no cause of action.

The complexity of the proceeding

[147] The proceeding was factually and legally complex because of:

(i) the extensive history of the Nelson Barbados Action;

(ii) the 90 page, 234 paragraph claim advancing numerous causes of action which is vague, repetitive and imprecise in its language;

(iii) the nine volumes of affidavit material filed by Best in response to the motions; and

(iv) the 59 page factum filed to refute the defendants’ arguments.

[148] The plaintiff had also served and filed a motion to amend the claim, and short served an injunction motion even though such motion had not been scheduled in advance. Neither of these had to be dealt with following the disposition of the main motions, but the affected defendants filed responding material to the motion to amend.

The importance of the issues

[149] These motions were extremely important to the defendants, as the claim openly challenged the professional integrity of many of them, and for all, made scandalous allegations that they worked in concert to cause deliberate harm to Best.

[150] The claim itself, the material filed for these motions and the examples of Best noting various defendants in default and resisting the setting aside of such noting in default, all signal that this action would have been extremely lengthy and costly due to unreasonable steps and positions taken by the plaintiff had it been permitted to continue.

Conduct of any party that shortened and lengthened unnecessarily the duration of the proceeding

[151] The defendants collectively scheduled the motions to dismiss/strike as expeditiously as possible and tailored their arguments so that there was minimal overlap among them.

[152] As earlier stated, Best filed nine volumes of material, much of which was not referred to during argument, but which had to be reviewed by counsel in advance and which increased the time required to be expended by them to prepare for this hearing.

[153] The plaintiff also insisted on proceeding with a motion to amend the statement of claim to add additional defendants rather than waiting to learn the outcome of the defendants’ motion to dismiss/motion to strike, the success of which would render the amending motion moot. The plaintiff’s proposed amendments sought to add two chiefs of police yet failed to plead any material facts regarding either individual’s personal involvement. The affected defendants were required to incur costs preparing responding materials to oppose the plaintiff’s amending motion.

[154] Even though the plaintiff made concessions that the PRPS, DRPS and OPP are not suable entities with respect to his Charter claims, and he conceded that the tort of fiduciary duty could not be pursued in this case, these concessions made little impact on the time expended in argument.

Whether any step in the proceeding was improper, vexatious or unnecessary

[155] The entire action was improper and thus, dismissed as an abuse of process.

[156] However, the plaintiff noted in default not only the Caribbean defendants, but many of the other defendants.

[157] With respect to two of the DRPS defendants, Best did so not withstanding that counsel for DRPS had effected service of a notice of intent to defend by fax on Best’s counsel on August 18, 2004, within the time requirement prescribed by the Rules of Civil Procedure. These defendants were required to move to set aside the noting in default. Although asked for his consent, the plaintiff refused but did not file responding material. Instead he attended on the motion and requested an adjournment in order to prepare and file materials and conduct cross-examinations. The adjournment was granted with costs left to the motion judge.

[158] Best also noted the OPP defendants in default. No evidence was given to the court for the OPP defendants regarding this step. In its costs outline, these defendants simply submit that the noting in default was ultimately set aside on consent, but required significant additional resources.

[159] Best also took the same step with the lawyer defendants. He also noted the TPA in default, notwithstanding the delivery of a notice of intent to defend and a covering letter from counsel asking that the TPA not be noted in default without further notice. Best’s counsel claimed that he had not received it, and despite being provided with a copy of the affidavit of service and fax confirmation form, refused to consent to an order setting aside the noting in default. Consequently the TPA prepared and served a motion record to set aside the noting of default, only in the face of which did the plaintiff advised that he would consent to the noting in default being set aside.

The amount of costs that the unsuccessful party could reasonably expect to pay in relation to these matters

[160] Best personally has now been the recipient of numerous costs orders made in favour of the defendants in the Nelson Barbados Action, and in this action. As recently as April 10, 2015, approximately two months before these motions were argued, McCarthy J. ordered that Best must pay the sum of $45,253.13 to the Caribbean defendants arising from their initially opposed motion to set aside Best’s noting in default of those defendants, and from Best’s pursuit of a motion to cross-examine two witnesses in relation to the defendants’ motion.

[161] During the course of the Nelson Barbados Action, the courts imposed significant costs orders on Best, including $192,000 in the Court of Appeal alone. As earlier stated his unpaid costs orders from that proceeding total $375,375.40. Accordingly, there should be ample understanding by him that the motions of this complexity, requiring argument over three days, would attract a very high costs award in the event he was unsuccessful.

The principle of indemnity

[162] Each of the moving parties’ counsel filed a costs outline setting out the lawyers involved, their hourly rates, time expended on the steps involved in the case and a calculation of disbursements. None of the fees sought to be recovered by the defendants are disproportionate to the complexity of the proceeding to date and the steps required to be taken to properly defend the unmeritorious action and to bring forward the motions to strike/dismiss.

[163] For some defendants, the fees are elevated in part due to communicating with and reporting to insurers.

[164] The only defendant seeking partial indemnity costs was the Ontario Provincial Police, on the basis that it is an agent of the Crown.

[165] The actual rates charged to their clients in all cases is less than the amount sought by the parties, being 90 percent of the full indemnity rate, other than in the case of lawyer defendants. In that case they have shown that the actual rates charged are less than the maximum rates set out by the costs subcommittee of the Rules Committee, adjusted to inflation in accordance with the Bank of Canada’s “inflation calculator”, for fixing partial indemnity costs. Accordingly, I find that the rates used to be particularly reasonable, and that no downward adjustment is required from the full indemnity rate.

[166] With leave of the court, counsel for Investigative Solutions Network Inc., who was not in attendance at the motions, submitted written material on costs. Although this defendant did not have its own motion to dismiss/strike before the court, the outcome of the other parties’ motions was obviously to its benefit. As it also would be entitled to costs of the action caused by the dismissal, the most expeditious and costs effective process available was followed, which allowed that defendant to be permitted to file written argument on costs, on notice to Best’s counsel and giving him full opportunity to respond on behalf of the plaintiff.

[167] It is clear from the bill of costs filed, with attached dockets, that although costs are sought on a partial indemnity basis only by Investigative Solutions Network Inc., the fees are high because counsel was reporting to an insurer and was working in conjunction with counsel for all defendants, but particularly with counsel for the private investigator defendants, including a review of facta.

[168] Best’s counsel submits that of the 69.4 hours spent there should be a reduction of approximately 7.5, arguing that it was unnecessary to expend time on the preparation of an affidavit of documents (1 hour) in light of the motion to strike, and that it was not reasonable for counsel to review the facta filed by other parties, having decided not to participate in the motions.

[169] I disagree; Investigative Solutions Network Inc. saved costs by not bringing its own motion and making submissions, but it was not unreasonable for counsel to monitor the legal issues addressed in the action and being raised in the motions given his own client’s stake in the outcome.

[170] Accordingly, this court orders that costs shall be paid by Best to Investigative Solutions Network Inc. fixed in the amount of $21,527.83 on a partial indemnity rate, as requested.

[171] Costs are to be determined in accordance with s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and the factors set out in rule 57.01(1). Wide discretion in fixing costs therefore remains with the court, bearing in mind the principles enunciated in the leading cases: see Anderson v. St. Jude Medical, Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557, 208 O.A.C. 10 (Div. Ct.); and Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, 2004 14579 (C.A.).

[172] In summary, there is no question that the allegations made by the plaintiff in the proceeding and the fact that this particular proceeding was commenced, is deserving of an award of costs on a substantial indemnity basis in order that court signalled to the plaintiff, not for the first time, that vexatious, abusive, time-wasting and unmeritorious litigation will receive the court’s condemnation and costs orders that attempt to indemnify the defendants.

[173] Having regard to all the factors set out in rule 57.01 and the applicable legal principles, including what is fair and reasonable to Best in all of the circumstances, justice requires that the defendants moving to dismiss/strike the claim be awarded the costs set out at para. 140 of these Reasons.

Costs of the Caribbean defendants’ jurisdiction motion

[174] Counsel for the Caribbean defendants asks that costs of their jurisdictional motion be quantified but that the issue of potential for joint and several liability on the part of both the plaintiff and his counsel for payment of same be left for another day.

[175] Costs were awarded to these clients on a full indemnity basis, as this is one of those rare cases described in the law, and canvassed fully in Baryluk, where the action was described as a scurrilous attack on the administration of justice.

[176] The Caribbean defendants are in a unique position in that three of them were also defendants in the Nelson Barbados Action. They have been plagued with Best’s frivolous and vexatious litigation for many years. Despite costs awards and admonishment from many courts along the way, Best has continued his campaign against them in this litigation.

[177] At the beginning of this action the Caribbean defendants, on noting that there were various motions to dismiss scheduled for the week of June 15, 2015, proposed to await the outcome of those motions before taking any steps, in order to avoid incurring costs. As suggested in their submissions, this would have prevented almost all of the costs that have been spent by the Caribbean defendants, totalling $165,264. Best refused this suggestion. It was not until the first day of the argument of these motions that Best’s counsel conceded that the Caribbean defendants’ jurisdictional motion should await the outcome of the motions to dismiss/strike.

[178] As with the other defendants, Best noted the Caribbean defendants in default despite being notified by their counsel of their intention to bring a jurisdiction motion, and requesting that they not be noted in default in those circumstances. I will not review in detail the steps that were required to be taken by the Caribbean defendants to set aside that noting in default; suffice it say that the costs order imposed by McCarthy J. in the excess of $45,000 on a substantial indemnity basis was imposed for conduct that he described as “reprehensible” and conduct that “should meet with the strong disapproval of the court”.

[179] The alternative to the last eight months of litigation for the Caribbean defendants would have been for Best to agree to await the outcome of the dismissal motions. Had he agree to this reasonable suggestion, their costs would be minimal.

[180] Claims that amount to a clear abuse of process, as this one does, should not be permitted to be an endless financial drain on a defendant. Where a party initiates baseless litigation such as this, which clearly invites the same stay to be ordered in favour of these clients as did the Nelson Barbados Action, the Caribbean defendants should not have to bear further legal costs. The common thread in cases where full indemnity costs have been awarded is “the strong sentiment that the matter, or the issue at least, should never have been brought before the court in the first place, leading to a reaction that the innocent party should not have to pay a penny toward the costs of the litigation”: Envoy Relocations Services Inc. v. Canada (Attorney General), 2013 ONSC 2622, [2013] O.J. No. 1999, at paras. 114, 116.

[181] The action against the Caribbean defendants is even more egregious when one considers that in excess of $375,000 in costs orders remain unpaid to these defendants. This is a case where Best’s conduct of the litigation and its effect on the Caribbean defendants is so outrageous, reprehensible and blameworthy that it shocks the conscience of the court and requires deterrence with costs on the highest scale.

[182] The same considerations, as set out above regarding rule 57.01(1) factors, apply to the Caribbean defendants’ costs.

[183] As a result, an order was issued by this court that the Caribbean defendants shall have their full costs and disbursements for the entire action, with the exception of the $45,253.13 already awarded by McCarthy J. Conclusively, Best has been ordered to pay the sum of $84,000 to the Caribbean defendants on a full indemnity basis.

Summary on Costs

[184] In Boucher, Armstrong J.A. held that the fixing of costs involves more than merely a calculation using the hours docketed and the costs grid. Courts fixing costs are required to give further consideration to quantum. At para. 24, Armstrong J.A. directed that “it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable.” He reiterated what the Court of Appeal said in Zesta Engineering Ltd. v. Cloutier, 2002 25577, 21 C.C.E.L. (3d) 161 (C.A.), at para. 4:

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.

[185] These authorities require that I step back to assess whether the cost claimed are fair and reasonable in the circumstances. Given all of the factors and considerations outlined above, I am fully satisfied that the costs ordered are fair and reasonable for this protracted and complex proceeding. While the awards are high, they reflect what the defendants have had to spend in order to respond to the tactics facing them, and secure an order that dismisses this meritless proceeding.

HEALEY J.

Released: October 9, 2015