CITATION: Gravelle v. A-1 Security Manufacturing Corp., 2016 ONSC 1486
COURT FILE NO.: CV-15-0450
DATE: 2016-03-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle o/a CodePro Manufacturing o/a Rapidkey Industries,
Gordon Gravelle being self-represented
Plaintiff (Responding party)
- and -
A-1 Security Manufacturing Corp; and AUTO PARTS ACQUISITION LLC dba Cumsa Distribution; and Avid Industrial Corporation, and Ricky King, and Danny Deixeira,
Derek E. Zulianello, for the Defendants
Defendants (Moving Party)
HEARD: February 24 , 2016,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion To Strike Statement Of Claim
Overview
[1] The defendants bring this motion to strike the statement of claim on the grounds that this action is, among other things, an abuse of process and, in any event, barred by the Limitations Act, 2002.
[2] The defendants argue that the plaintiff's action against some of the defendants is an abuse of process as it duplicates the plaintiff’s pre-existing action against those same defendants in action No. CV-13-0385 and reinstitutes claims previously struck from that action. Further, the defendants argue that the plaintiff's claim against other defendants is an abuse of process because it represents an improper attempt to relitigate issues already decided in action No. CV-13-0385. Simply stated, the defendants argue that this is but another attempt by the plaintiff to circumvent prior court orders.
Request for an Adjournment
[3] Mr. Gravelle appeared personally and requested an adjournment. I denied that request for adjournment and further ordered that Mr. Gravelle could not make submissions because he failed to file any material in response to the motion, as previously ordered by Pierce J.
[4] Before I deal with the substance of the motion some background is necessary to explain my reasons to deny the request for adjournment and preclude Mr. Gravelle from making submissions.
[5] On January 28, 2016, Pierce J. made the following endorsement with respect to this motion:
Mr. Gravelle not appearing, case set for argument on February 24, 2016 at 10 AM. Moving party has served its materials. Mr. Gravelle to serve and file responding materials 10 days before hearing February 15 and the moving party shall serve and file its material in reply by February 22, 2016.
[6] Mr. Gravelle confirmed that both he and his proposed lawyer, Mr. Watkins, were aware of the terms of that endorsement that day.
[7] Indeed, on February 4, 2016, Mr. Gravelle sought, before Pierce J., to adjourn this motion date. In denying that request, Pierce J. stated (Gravelle v. A-1 Security Manufacturing Corp., 2016 ONSC 935):
[1] The plaintiff represents himself in this proceeding which he has turned into a procedural quagmire. He has done so by
• issuing “parallel” claims and seeking to have one claim stayed;
• purporting to amend a notice of motion to claim different relief following a ruling that disposed of the original motion;
• delivering notice that he abandons his amended motion and then rescinding that notice when he realized the cost consequences;
• seeking leave to amend his statement of claim without providing a proposed draft of the amended pleading;
• failing to attend court for a scheduling motion and then objecting to the schedule ordered, and asking to set it aside;
• seeking an adjournment of a fixed date for motion to strike his pleadings on the grounds that his counsel cannot attend when no solicitor has filed a notice of appearance, (be it for a limited scope retainer or otherwise); and
• failing to pay costs ordered to be paid forthwith.
[17] On January 28th, I ordered that the defendants’ motion to strike Mr. Gravelle’s pleadings to be heard by special appointment on February 24, 2016 and stipulated a timetable for delivery of materials.
[18] On January 29, 2016 at 4:54 p.m., Mr. Gravelle served Mr. Zulianello with a motion returnable February 4th. The motion was short-served, and claimed orders in the following terms:
Declaring the Defendants Motion to Strike and Motion to Dismiss, dated January 18, 2016, as null and void;
Vacating the endorsement of the motion court, dated January 28, 2016, setting a timetable of materials and special hearing date set for February 24, 2016;
Permitting the plaintiff leave to file a Statement of Claim, as freshly amended;
Requiring the Defendants to respond to the Amended Statement of Claim, either by way of statement off defense or alternatively, motion to strike, within 21 days commencing upon date of delivery for aforementioned statement of claim; and
Abridging the time of service to 6-days;
Reasonable costs to bring the underlying motion.
[19] This motion is ill-conceived and is dismissed in its entirety.
[20] The defendants’ motion to strike Mr. Gravelle’s pleadings is properly before the court and there are no grounds advanced in argument to dismiss it.
[21] Mr. Gravelle’s request to vacate the special hearing date is, in effect, a request to adjourn the hearing of the motion because he submits that a lawyer whom he hopes to retain but who has not filed a notice of appearance, will not be available on February 24th.
[22] The evidence before me indicates that Mr. Zulianello has repeatedly asked this counsel to deliver his notice of appearance but he has not done so. Consequently, I conclude that Mr. Gravelle is self-represented. Having refused to appear at court when the hearing date was scheduled, or respond to Mr. Zulianello’s attempt to canvas his available dates, it does not now lie in Mr. Gravelle’s mouth to object to the date that the court has set.
[8] On February 22, 2016, a confirmation of motion form was faxed to the court and to counsel for the defendants by Mr. Watkins’ office stating that an adjournment would be sought "due to the illness of Mr. Gravelle and his counsel, Mr. Watkins being out of the country."
[9] This is the same counsel that is discussed in paragraph 21 and 22 of Pierce J. reasons from the February 4, 2016, motion. Mr. Watkins has never filed any material indicating that he is counsel for Mr. Gravelle although he has, on occasion, appeared with Mr. Gravelle in court.
[10] As noted, action No. CV-13-0385 concerns the same subject matter as this action. To put this request for an adjournment in context, it is necessary to understand the progress of that other action.
[11] On September 24, 2014, Pierce J. struck out certain claims and paragraphs contained in the statement of claim in that action. Those reasons are reported at Gravelle v. A1 Security Manufacturing Corp., 2014 ONSC 5472.
[12] On November 26, 2014, Mr. Gravelle sought reconsideration of that decision by Pierce J. In her endorsement Pierce J. stated:
The plaintiff seeks a reconsideration of my decision to strike certain paragraphs of the statement of claim without leave to amend. In my view, the plaintiff is seeking to appeal via a request for reconsideration. Litigants, as well as the courts, have an interest in the finality of decisions. The matter was argued and adjudicated. To permit litigants to reargue matters with which they are unhappy is to strain judicial resources. Motion to reconsider is dismissed.
[13] Mr. Gravelle then sought leave to appeal the order of Pierce J. dated September 24, 2014. On May 14, 2015, with Mr. Watkins appearing to assist Mr. Gravelle (although Mr. Watkins indicated that he was not yet retained), I ordered timelines for delivery of the leave to appeal material.
[14] Subsequently, on July 9, 2015, I dismissed that appeal for delay for the following reasons:
Mr. Zulianello appears seeking that this motion for leave to appeal be dismissed for delay. Mr. Gravelle was served and appears. Mr. Gravelle offers no explanation why timelines previously ordered are not complied with other than to suggest he may attempt to go back before Pierce J who made original order. In the circumstances, in particular given the lengthy delay and my prior orders of April 8, April 30 and May 14, 2015, I dismissed this motion for leave to appeal for delay.
[15] On October 30, 2015, Mr. Gravelle again moved before Pierce J. for reconsideration of her November 26, 2014, order. Pierce J. dismissed that motion.
[16] At the commencement of this motion, when asked, Mr. Gravelle did not offer any explanation for his failure or the failure of Mr. Watkins to file material for this motion by February 15, 2016, as ordered by Pierce J. The medical note dated February 16, 2016, attached to the confirmation of motion form states: "Gordon will be off work effective February 16, 2016 to February 20, 2016, due to medical reasons." This period of alleged disability is after the deadline imposed by Pierce J. When asked about his employment, Mr. Gravelle advised that he was self-employed. As to counsel's availability to file material, Mr. Watkins is only recently out of the country.
[17] Mr. Gravelle is well aware of the requirements to follow deadlines imposed by court orders and the consequences for failing to do so. This request for an adjournment is simply another attempt by Mr. Gravelle to circumvent orders made by this court and, in particular, the order of Pierce J. that material be filed and that the motion proceed as scheduled.
[18] Therefore, Mr. Gravelle's request for an adjournment is denied. Further, because he did not comply with the order for filing of materials, I advised Mr. Gravelle that I would not hear submissions from him. I did not make that order lightly. Depriving a party of the right to make submissions is a serious sanction. This was, however, a deliberate attempt to do what Pierce J. ordered was not to be done and should not escape serious sanction. Mr. Gravelle then, on his own volition, left the courtroom.
Motion to Strike
[19] The motion to strike is based on, among other things, the argument that this new action is an abuse of process and that, in any event, the cause of action alleged in the statement of claim is statute barred.
No Reasonable Cause of Action – Limitation Period
[20] Rule 21.01 (1) provides that a party may move to strike a pleading on the grounds that it discloses no reasonable cause of action and that a party may move for determination of a question of law raised by a pleading.
[21] For the purposes of this motion, I am to accept the facts as pleaded in the statement of claim as correct.
[22] The notice of action was issued October 1, 2015. The statement of claim dated November 2, 2015, alleges breach of contract, negligent misrepresentation, inducing breach of contract, etc. At paragraph 63 the plaintiff states that on September 26, 2013, he forwarded an email to the defendants informing them that they were in breach of the contract. It is arguable based on the facts pleaded that the plaintiff was aware of the facts supporting the breach earlier, but for the purposes of this motion the defendants asked me to accept September 26, 2013, as the date that the cause of action arose.
[23] The statement of claim was, therefore, commenced more than two years from the alleged breach of the contract and therefore the action is barred by the passing of the limitation period and I dismiss the action.
[24] I note that the statement of claim in action No. CV-13-0385 was issued October 1, 2013, within one week of that September 26, 2013, email.
Abuse of Process
[25] The statement of claim in action No. CV-13-0385 is substantially the same as the statement of claim in this action.
[26] On September 22, 2014, Pierce J. struck out the claims for intentional interference with economic relations in action No. CV-13-0385. She also struck out the plaintiff’s claim for aggravated and punitive damages but with leave to amend. The plaintiff has never filed an amended pleading. As noted, the plaintiff sought to have Pierce J. reconsider that order on two motions. The motion for leave to appeal that decision was dismissed for delay.
[27] This action duplicates the claims made in action No. CV-13-0385 and reinstates the claims already struck by the September 22, 2014, order of Pierce J.
[28] Rule 21.03(3)(d) allows a defendant to move for an order dismissing an action where the action is "frivolous or vexatious or is otherwise an abuse of the process of the court."
[29] I find that this action is, as the defendants allege, an attempt by Mr. Gravelle to once again circumvent a court order.
[30] In the circumstances, I find that this action is an abuse of process and I dismiss the action.
Costs
[31] This is an appropriate case for full indemnity costs. As Master Dash said in 1337194 Ontario Inc. v. Morgan et al, 2004 CanLII 11282 ONSC, "a sharp message must be sent ... to prevent serial motions seeking the same relief...to circumvent the original order." [at para 2]
[32] Counsel for the defendants candidly admitted that the cost outline filed was based on a anticipated longer motion appearance so I have slightly reduced the counsel fee to $6,500. Added to that is HST of $845 plus disbursements and HST at $586.46 for a total cost award of $7,931.46. These costs are payable forthwith.
The Hon. Mr. Justice W.D. Newton
Released: March 1, 2016
CITATION: Gravelle v. A-1 Security Manufacturing Corp., 2016 ONSC 1486
COURT FILE NO.: CV-15-0450
DATE: 2016-03-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle o/a CodePro Manufacturing o/a Rapidkey Industries,
Plaintiff (Responding party)
- and -
A-1 Security Manufacturing Corp; and AUTO PARTS ACQUISITION LLC dba Cumsa Distribution; and Avid Industrial Corporation, and Ricky King, and Danny Deixeira,
Defendants (Moving Party)
DECISION ON MOTION TO STRIKE
STATEMENT OF CLAIM
Newton J.
Released: March 1, 2016
/mls