ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-505749
DATE: 20151116
BETWEEN:
JEFFERY G. TUNNEY AND ANNE LANGSTROTH
Plaintiffs
– and –
51 DIVISION TORONTO POLICE, CROWN’S OFFICE COLLEGE PARK, VICTIM WITNESS PROGRAM, DUTY COUNSEL COLLEGE PARKHOUSE, OFFICE OF THE ATTORNEY GENERAL, AND MINISTRY OF THE ATTORNEY GENERAL
Defendants
Jeffery G. Tunney, In Person
Fred Fischer, for 51 Division Toronto Police
Farzin Yousefian, for the Crown’s Office College Park, Victim Witness Program, Attorney General and Ministry of the Attorney General
Stan Jenkins, for Duty Counsel College Parkhouse
HEARD: August 19, 2015
REASONS FOR DECISION
Firestone J.
[1] The moving party defendants bring these motions pursuant to Rules 15.01(3), 21.01(1)(a) and (b), 21.01(3)(b) and (d), 25.06 and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194 (“the Rules”) for an order prohibiting the plaintiff Jeffery G. Tunney (“Tunney”) from representing the plaintiff Anne Langstroth (“Langstroth”) during the course of the litigation and an order dismissing or striking the plaintiffs’ amended Statement of Claim (“claim”) without leave to amend.
ISSUES FOR DETERMINATION
(a) Whether Tunney, a non-lawyer, has any standing to both commence and act on Langstroth’s behalf in this action.
(b) Whether the Statement of Claim should be struck on the ground that it discloses no reasonable cause of action under Rule 21.01(1)(b) or whether the action should be dismissed on the ground that it is frivolous or vexatious or is otherwise an abuse of the process of the court under Rule 21.01(3)(d).
PROCEDURAL HISTORY
[2] The Ministry of the Attorney General and Legal Aid Ontario originally scheduled these motions to strike for July 7, 2015.
[3] On March 18, 2015 a judge of this court issued an endorsement directing the registrar to give notice to Tunney by way of Form 2.1A that the court was considering dismissing his action under Rule 2.1.01. The Form 2.1A was delivered to Tunney. Tunney did not provide any submissions to the Court. As a result, the Court dismissed his action by way of endorsement dated April 24, 2015.
[4] Following that dismissal, Tunney brought a motion before the Court of Appeal. Tunney argued that because he had agreed to the July 7, 2015 hearing date for the motions to strike, he presumed he did not have to respond to the Form 2.1A, which had been served.
[5] The Court of Appeal deemed Tunney’s Notice of Motion to be a Notice of Appeal from this Court’s endorsement dated April 24, 2015 dismissing his action. The Court of Appeal further deemed the effect of the Notice of Appeal to stay this court’s decision; it also stayed the time for Tunney to perfect the appeal until the day after the final disposition of the within motion to strike.
NATURE OF THE PLAINTIFF’S CLAIMS
[6] In this action, the plaintiffs seek $24,139,000.00 in damages.
[7] A generous reading of the claim appears to disclose that Tunney claims damages in the sum of $139,000.00 on the basis that the 2014 police arrest, prosecution by the Crown and subsequent incarceration of his roommate Paul Andrew Rye (“Rye”) deprived him of the financial monthly rent payments and emotional support he otherwise would have received from Rye. The claim against Duty Counsel College Parkhouse for such damages relate to the duty counsel services and advice provided to Rye at the College Park Court House on several occasions in 2014 in relation to his criminal charge.
[8] The claim of Langstroth, who is referred to in the body of the claim as Canadian singer Anne Murray (“Murray”), is based on the allegation that she is owed $24,000,000.00 by the Crown for lost property, album sales, film and television contracts.
[9] The claim pleads that Tunney at all material times resided at #3-447 Church Street in the City of Toronto (“the residence”). In April 2013, Rye moved into Tunney’s residence and agreed to pay monthly rent in the sum of $375.00 and miscellaneous expenses in the sum $60.00 to $80.00 per month.
[10] In February 20, 2014, Rye was arrested as a result of an incident which allegedly took place between Tunney and Rye on February 20, 2014.
ANALYSIS
(a) Whether Tunney, a non-lawyer, has any standing to both commence and act on Langstroth’s behalf in this action.
[11] I have considered both the written and oral submissions of the parties.
[12] On the record before me, I am satisfied that Langstroth has no knowledge of and did not authorize or instruct Tunney to commence this action on her behalf.
[13] The claim was issued on June 5, 2014 by the local registrar. The issuing party was Tunney not Langstroth. On the last page of the claim, the only name and address listed is that of Tunney’s. There is no reference at all to Langstroth. On the back page of the claim, above the word “plaintiff”, the only name and address listed is that of Tunney’s. Again there is no reference whatsoever to Langstroth. Nowhere in the claim are Langstroth’s addresses, telephone number or email addresses given.
Applicable Legal Principles-Authority to Act
[14] The law is clear that Tunney, as a non-lawyer, has no authority to act on Langstroth’s behalf. Both section 26.1(1) of the Law Society Act and Rule 15.01(3) provide that only a licensee of the Law Society of Upper Canada is entitled to practice law in Ontario. Under Rule 15.01(3) the self- represented litigant who is not represented by a lawyer may act on their own behalf in the proceeding but cannot act for another person.
[15] As stated by Justice Stinson in Direk v. Ontario (Attorney General), 2010 ONSC 3428, 189 A.C.W.S. (3d) 650 at paras. 6 and 7:
The law is well settled in Ontario that the court has no discretion to permit a non-lawyer to represent another individual in proceedings before the Superior Court of Justice. The topic is analyzed in depth in Gagnon v. Pritchard (2002), 2002 49419 (ON SC), 58 O.R. (3d) 557 (Ont. S.C.J.). As noted in that case, even where there is a formal power of attorney in favour of an individual, that person cannot act as legal representative in Superior Court Proceedings. As stated in that decision (at para. 44):
It would be both wrong and risky to interpret the court’s inherent jurisdiction to control its own procedures so as to, in effect, permit the court to issue licenses to practice law in its discretion.
As provided in s. 26.1(1) of the Law Society Act, R.S.O. 1990, c. L.8 as amended, no one other than a licensee of the Law Society of Upper Canada is entitled to practice law in Ontario…
[16] I therefore find that Tunney had no standing or authority to issue and proceed with this claim on Langstroth’s behalf. As a result, to allow the claim to continue would be an abuse of process of the court. Langstroth’s claim is dismissed under rule 21.01(3)(d) on that basis.
(b) Whether the claim should be struck on the ground that it discloses no reasonable cause of action under rule 21.01(1)(b) or whether it should be dismissed on the ground that it is frivolous or vexatious or is otherwise an abuse of the process of the court under rule 21.01(3)(d).
Applicable Legal Principles-Motion to strike
[17] The test to be applied for a motion to strike under rule 21.01(1)(b) is whether it is “plain and obvious”, assuming that the facts pleaded are true and capable of proof, that the claim cannot succeed because the allegations do not give rise to a recognized cause of action: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at paras. 30-34; Wellington v. Ontario, 2011 ONCA 274, 105 OR (3d) 81 at para. 14.
[18] As stated by the Court of Appeal in the recent case of Tran v. University of Western Ontario, 2015 ONCA 295, [2015] O.J. No. 2185 at para. 16:
The test on a rule 21.01(1)(b) motion to strike is whether it is plain and obvious that the statement of claim discloses no reasonable cause of action: Hunt v. T & N plc, 1990 90 (SCC), [1990] 2 S.C.R. 959 (S.C.C.), at p. 960. In McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429 (Ont. C.A.), at para. 39, this court explained that on a rule 21.01(1)(b) motion to strike: (1) all essential elements of a cause of action are to be pleaded, and (2) the pleading must be read generously with allowances for drafting deficiencies.
[19] In Aristocrat Restaurants Ltd.(c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 (S.C.J.) at para. 18, Epstein J. as she then was confirmed the principle that the failure to properly establish a cause of action can occur in one of two ways. Firstly, it will be found to be legally insufficient when its allegation(s) do not give rise to a recognized cause of action. Secondly, a cause of action is not established if it fails to plead the necessary elements of an otherwise recognized cause of action: Epstein J. refers to the principles in Dawson v. Rexcraft Storage and Warehouse Inc (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (C.A.) at p. 264.
[20] In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff is required, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Where the allegations which make it impossible for the opposing party to reply should be struck. Less than the entire pleading can be struck where the portion being struck is distinct: Aristocrat at para. 19.
[21] Rule 25.06 provides that every pleading must contain a concise statement of the material facts on which the party relies for the claim or defence. A party must plead all of the facts that it must prove to establish a cause of action that is legally complete: Aristocrat at para. 20.
[22] A pleading that shows a complete absence of material facts is considered frivolous and vexatious. Bare allegations should be struck as scandalous. This is particularly so where allegations of intentional or malicious conduct are made: Aristocrat, para. 21.
1. Crown’s Office College Park, Victim Witness Program, Office of the Attorney General and Ministry of Attorney General
[23] Regarding the claim against the Crown’s Office College Park (“Crown’s Office”) in a generous manner, it appears Tunney’s cause of action against this defendant is grounded on the malicious prosecution of his roommate Rye and not himself.
[24] The only recognized cause of action against a Crown attorney acting in the performance of their duties is malicious prosecution: Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 at para. 50; Thompson v. Ontario, 1998 7180 (ON CA), [1998] O.J. No. 3917 at para. 56 (CA); Gilbert v. Gilkinson, 2005 46386 (ON CA), [2005] O.J. 5347 at para. 7 (CA) and Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at paras. 43-52.
[25] In Thompson v. Ontario, the court at para. 56 states in part “Nelles qualified the Crown’s common law immunity from suit only to the extent of permitting actions for malicious prosecution, but not for negligence.”
[26] To succeed in establishing the tort of malicious prosecution, Charron J., writing for the Court in Miazga v Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at para. 3, confirmed that the plaintiff is required to establish the following four elements:
(a) The prosecution was initiated by the defendant;
(b) The prosecution was terminated in favour of the plaintiff,
(c) The prosecution was undertaken without reasonable and probable cause; and
(d) The defendant was motivated by malice or a primary purpose other than that of carrying the law into effect.
[27] A generous reading of the claim discloses that Tunney’s complaints against the unnamed Crown attorney relate to Rye’s prosecution and how that prosecution adversely affected him. Tunney’s claim is not based on any malicious prosecution of him.
[28] The factual matrix pleaded is legally insufficient given that it does not support or give rise to a recognized cause of action that Tunney would have against the Crown or Crown Attorney(s).
[29] As a result, Tunney’s claim against the Crown’s Office is struck without leave to amend.
[30] The defendant Victim Witness Assistance Program (“VWAP”) is not a legal entity against whom a claim may be advanced. Rather VWAP is a program of the Ministry of the Attorney General and is, as submitted by counsel, staffed by government employees.
[31] As a result, the claim against the VWAP is struck without leave to amend.
[32] A claim is also made against the Office of the Attorney General and Ministry of the Attorney General. Pursuant to section 9 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P27, Schedule B, Her Majesty the Queen in Right of Ontario must be named where it is alleged that there was wrongdoing on the part of employees of the Ontario government other than a Crown attorney(s). While Her Majesty the Queen in Right of Ontario is not named, the office of the Attorney General and the Ministry of the Attorney General are.
[33] Regarding the allegations against the Attorney General (Crown) that relate to the impugned conduct of government employees, it appears from a generous reading of the claim that Tunney alleges negligence against the Crown but gives no intelligible or discernible details. On a generous reading of the claim, Tunney has not plead all the necessary legal elements of an otherwise recognized cause of action upon which his claim damages is based. Sufficient facts and details are not pleaded which would ground and support a duty of care, breach of the applicable standard of care or the alleged damages. The vague allegations contained in Tunney’s pleading as currently constituted are unclear and make it impossible for the Crown to properly reply.
[34] As a result, the claim against the Office of the Attorney General and the Ministry of the Attorney General are struck with leave to amend. No motion was brought by the plaintiff to amend the title of proceedings based on a misnomer.
2. Duty Counsel College Parkhouse (LAO)
[35] Tunney brings his claim against Duty Counsel College Parkhouse, properly referred to as Legal Aid Ontario. In the claim, individual duty counsel were not named as defendants.
[36] Legal Aid Ontario (“LAO”) is a Corporation without share capital and is established under the Legal Aid Services Act, 1998, Ch.26 (“LASA”):
[37] Pursuant to section 24(3) of O. Reg.106/99, LAO provides Duty Counsel Services at the Ontario Court of Justice, College Park Courthouse.
[38] Tunney pleads that in 2014, LAO provided duty counsel services to Rye at the College Park Courthouse. Rye was released several times on bail under various conditions. He was rearrested as a result of alleged breaches of his bail. Following his release from custody, Rye’s terms of recognizance included refraining from communicating with Tunney, who was the victim of the alleged offense. Rye was compelled to leave Tunney’s residence at 447 Church Street and find a new one.
[39] As highlighted by the moving party, the claim alleges that “six people” from the Duty Counsel Office at College Park worked with Rye to discourage him from returning to the dwelling he shared with Tunney. The claim further alleges that Duty Counsel refused to bring a bail variation for Rye because “they” did not want him to come into contact with Tunney.
[40] On a generous reading of the claim, it is plain and obvious that the claim against Duty Counsel College Parkhouse (LAO) discloses no reasonable cause of action. The factual allegations pleaded do not give rise to a recognized cause of action. In addition, the necessary elements of an otherwise recognized cause of action are not pleaded.
[41] LAO duty counsel had no involvement with Tunney. No duty of care is owed by LAO to Tunney in relation to the criminal matter involving Rye. The scope of a lawyer’s ethical duties extends only to his or her client and to the court. There is no duty owed to the opposing party, or as argued by the moving party in this case, the victim in a criminal proceeding: Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 at paras. 8-10.
[42] The claim against Duty Counsel College Parkhouse (LAO) is struck without leave to amend.
3. 51 Division Toronto Police
[43] A generous reading of the claim discloses that it is based on the police arrest of Rye and the alleged damage it caused to Tunney. As with the claim against the co-defendants, it is grounded and based upon the assertion that Rye’s arrest as well as the conditions of Rye’s recognizance denied Tunney both emotional and financial support.
[44] The claim discloses no viable cause of action against the police. The factual assertions and allegations in the claim do not give rise to a recognized cause of action. With respect, there is no duty of care owed by arresting police officers to an acquaintance or friend of the person subject to the arrest based on the factual matrix of this case on a generous reading of the claim as pleaded: see generally Wellington at paras. 36-52.
[45] The action against the police lacks merit and is therefore, with respect, frivolous and vexatious. See Currie v. Halton Regional Police Services Board, 2003 7815 (ON CA), [2003] O.J. No. 4516 at para. 17.
[46] The claim against 51 Toronto Police is struck without leave to amend.
DISPOSITION
[47] For the reasons set forth above I order as follows:
The claim of Anne Langstroth is dismissed.
The claim of Jeffery G. Tunney against the defendants 51 Division Toronto Police; Crown’s Office College Park; Victim Witness Program; and Duty Counsel College Parkhouse are struck without leave to amend.
The claim of Jeffery G. Tunney against the defendants Office of the Attorney General and the Ministry of the Attorney General is struck with leave to amend. Any amended statement of claim by Tunney shall be served and filed within 30 days of the date of these reasons.
This order is without prejudice to the plaintiff to bring a motion to amend the title of proceedings and for the remaining defendants, following receipt of the amended claim, within the required time period as ordered, to bring a further motion to strike under Rule 21 or for summary judgment under Rule 20.
[48] If the parties are unable to agree on costs, the defendants will provide their costs submissions totaling no more than three pages by November 25, 2015. The plaintiff Tunney is to provide his cost submissions, with the same length limit, by December 7, 2015. Any reply by the defendants is to be delivered by December 11, 2015.
Firestone J.
Released: November 16, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEFFERY G. TUNNEY AND ANNE LANGSTROTH
Plaintiffs
– and –
51 DIVISION TORONTO POLICE, CROWN’S OFFICE COLLEGE PARK, VICTIM WITNESS PROGRAM, DUTY COUNSEL COLLEGE PARKHOUSE, OFFICE OF THE ATTORNEY GENERAL, AND MINISTRY OF THE ATTORNEY GENERAL
Defendants
REASONS FOR DECISION
Firestone J.
Released: November 16, 2015