SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-15-537370
DATE: 2015-11-09

B E T W E E N:

ALLISON REYES and MEDHANIT YEREKAGEG
Plaintiffs

-AND-

HARTLEY ESBIN, RHONDA DAWE, TIMOTHY M. DUGGAN, ROSS LYNDON, DAVID ADAMSON, MARIA GALIA, JOHANNE JOHDAN, ESBIN PROPERTY MANAGEMENT and ESBIN REALTY CORPORATION
Defendants

BEFORE: F.L. Myers J.

READ: Nov. 7, 2015

endorsement

[1] This motion was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of counsel for the defendant Timothy M. Duggan under subrule 2.1.01(6).

[2] The plaintiffs sue a number of people seemingly flowing from the plaintiffs’ eviction from residential premises. The eviction had been ordered by the Landlord and Tenant Board. The plaintiffs appealed their eviction to the Divisional Court. The defendant Duggan was counsel for the landlord and obtained an order from the Divisional Court lifting the stay of the eviction order. The plaintiffs plead that he did so knowing that there was no proper service of the motion record on which the landlord relied before the Court.

[3] On its face, the claim against several of the defendants appears to be problematic. The plaintiff is claiming damages for loss of valuable chattels. It is not at all clear which of the defendants could be liable for that loss or on what basis liability might be claimed. Moreover, if the Divisional Court made an order for which the plaintiff claimed she was not properly served, she had remedies before that court, including, at least, a motion under Rule 37.14. A claim against legal counsel for an opposing party who succeeded in prior litigation is a typical sign of a vexatiousness. Gao v. Ontario WSIB, 2014 ONSC 6297.

[4] The plaintiffs ought to be given notice that the court is concerned that the claim at least as against Mr. Duggan appears to be frivolous, vexatious, or an abuse of process. The plaintiffs should be invited to provide written submissions to explain why the action against Mr. Duggan should not be dismissed.

[5] I note that the extra names handwritten as additional plaintiffs and defendants on a draft of the statement of claim are not parties to these proceeding unless or until they are properly added in accordance with the Rules of Civil Procedure.

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

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

b. Pending the outcome of the written hearing under rule 2.1 or further order of the court, the plaintiffs’ action is stayed as against Mr. Duggan pursuant to s.106 of the Courts of Justice Act, R.S.O. 1990, c.C.43[^1];

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

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

________________________________ F.L. Myers J.

Date: November 9, 2015

[^1]: See Gao v. Ontario WSIB et al., 2014 ONSC 6100 at para.