CITATION: John v. Peel Regional Police, 2016 ONSC 2014

COURT FILE NO.: CV-14-3084-00

DATE: 2016 03 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DARREN JOHN

Self-Represented

Plaintiff

• and -

CONSTABLE Harman Badge #33036, CONSTABLE ROGERS BADGE # 3580 SALLIA MORGANTE BADGE #1057C, REGIONAL MUNCIPALITY OF PEEL POLICE SERVICES BOARD and DAVID CUSACK

Rafal Szymanski, for the Defendants

Defendants

HEARD: June 17, 18, 2015, and February 16, 2016

RULING ON MOTION TO STRIKE THE STATEMENT OF CLAIM

Justice Thomas A. Bielby

INTRODUCTION

1The Peel Police Services Board and the individual police officers named as defendants, (the defendants) have before the court a motion seeking an order pursuant to Rules 21.01(1)(a) and 21.01(1)(b) and 25.11, striking the Statement of Claim herein, without leave to amend.

2The defendants submit that the claim does not disclose a reasonable cause of action and/or is frivolous, vexatious and an abuse of process and it is plain and obvious the claim cannot succeed.

3This motion is just one of many. Mr. John has issued a number of claims and the defendants to those claims are seeking to have the claims struck. These motions were heard by me individually, but one after the other.

4Mr. John, at the commencement of the motions, sought an adjournment to seek counsel. He submitted that his lawyer had recently disbarred and had not released his file.

5Counsel for the moving parties objected to an adjournment. These motions, for the most part, were served and filed in October, 2014 and the week of June 15, 2015, was set for the hearing of the motions. It is alleged that in an email sent in November, 2014, Mr. John advised counsel for the defendants that he was going to change lawyers. It was submitted that delay is part of the strategy of Mr. John. No materials have been filed on behalf of Mr. John.

6After hearing the argument for an adjournment I advised Mr. John that if I were to adjourn the motions I would consider making an order for costs against him.

7Mr. John advised that if the adjournment would result in a cost order against him he wished to proceed with the motions. As a result, we proceeded with the motions.

8A separate motion, brought by the defendant David Cusack, was heard by Woollcombe J. The motion sought summary judgment dismissing the claim as frivolous, vexatious and an abuse of process. In a written ruling dated August 7, 2015, the motion was granted and the action dismissed as against Mr. Cusack.

9This action originates with a dispute between the plaintiff and David Cusack. The plaintiff filed a complaint against Mr. Cusack with his employer resulting in discipline action. Mr. Cusack then sued the plaintiff.

10The Statement of Claim alleges that on July 2, 2014, Mr. Cusack along with the police attended at the plaintiff’s home to serve a motion record relating to a small claims court proceeding. It would appear Mr. Cusack enlisted the help of the Peel Police to assist him in that regard.

11In the claim the plaintiff alleged that these facts are actionable in that, they startled him, represent harassment in that Mr. Cusack is a pedophile and rapist, and has been warned not to attend at the property, and that Mr. Cusack issued a death threat letter that terrified him.

THE RULES

12Rule 21.01(1)(a) and (b) of the Civil Rules of Practice state,

“A party may move before a judge,

(a) for the determination before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.”

13Subsection (2) states that no evidence is admissible on such a motion.

14Rule 25.11 states,

“The court may strike out or expunge all or part of a pleading or other document, 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.”

FRIVOLOUS AND VEXATIOUS

15Frivolous has been described as a pleading that lacks legal basis or merit.

16A vexatious pleading is one that cannot possibly proceed. (see Currie v. Halton (Region) Police Services Board 2003 CanLII 7815 (ON CA), [2003] O.J. No. 4516)

DISCUSSION

17It is alleged by the plaintiff that he had forbade Mr. Cusack from entering on his property. On the occasion in issue, Officer Harman accompanied Mr. Cusack to the plaintiff’s home to allow Mr. Cusack to serve the plaintiff with some legal document. As a result of this the plaintiff makes a claim of bad faith and bias because on another occasion he asked the police for the same service and was refused.

18The plaintiff alleges the police failed to charge Mr. Cusack in relation to a threatening letter he sent to the plaintiff and thereby breached a duty the police owed to the plaintiff.

19Finally, the plaintiff takes issues with the fact that when he telephoned the police, the officer(s) who took the call, Officers Morgante and Rogers, were overheard discussing the call after which they refused to transfer the call to a senior officer as requested by the plaintiff.

POLICE DUTY TO THE PLAINTIFF

20In regard to the alleged threat by Mr. Cusack and the police’s failure to investigate and charge Mr. Cusack, it is pleaded that the plaintiff was told by the police that he should charge him privately.

21There is also set out in the claim an allegation that the police attended at the plaintiff’s home in the early morning hours of July 3, 2014. It is suggested that the police rang the doorbell and looked into the back yard. Thereafter they left the premises.

22The significance of these facts is unclear as there is no cause of action suggested in relation to these facts.

23Wellington v. Ontario 2011 ONCA 274, [2011] O. J. No. 1615 is a decision of the Ontario Court of Appeal. At paragraph 44 the court states,

“There is now a well-established line of cases standing for the general proposition that public authorities, charged with making decisions without being subjected to a private duty of care to specific members of the general public. Discretionary public duties of this nature are not aimed at or geared to the protection of the private interests of specific individuals and do not give rise to a private duty sufficient to ground an action in negligence.”

24The police had no obligation to the plaintiff to investigate the plaintiff’s allegation that he was threatened by Mr. Cusack. They had no duty of care to the plaintiff.

25Mr. John also argues that the police failed to protect him because they knew he did not want Mr. Cusack on his property. He relies on the authority Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998) 1998 CanLII 14826 (ON SC), 160 D.L.R. (4th) 697 in which the court found that the police owed a private law duty of care to warn women of the risk posed by a sexual predator in that area.

26The plaintiff argues that the police had a duty to warn him. This argument begs the question “of what warning were the police to give to the plaintiff?” The only answer would be to warn him that Mr. Cusack would be attending to serve papers and that they, the police, would be accompanying him.

27I can only surmise the police attended because they were asked and determined that there was a risk of a breach of the peace if Mr. Cusack attended alone.

28I find the police had no duty to “warn” the plaintiff of Mr. Cusack’s planned attendance to effect service. This again would be in the nature of a private duty of care as opposed to a public duty as how I would categorize the Jane Doe case.

29Further, by accompanying Mr. Cusack the police were offering some level of protection to ensure no breach of the peace. The police should not be subject to liability for doing so.

30Further, I cannot see what damages would flow from the attendance. Mr. Cusack was not legally prevented from attending at the home of the plaintiff in order to serve legal papers.

31There is no actionable wrong-doing on the part of either Mr. Cusack or the police.

32I find that on these claims it is plain and obvious the claim would fail and that the pleadings on this point discloses no reasonable cause of action. The claim in regards to this issue can be categorized as frivolous and vexatious.

BAD FAITH AND BIAS, BREACH OF TRUST

33There is no cause of action for bias.

34In regards to bad faith, the pleadings do not provide sufficient facts on which a claim for bad faith can stand.

35Pursuant to Rule 25.06(8) a claim for breach of trust shall contain full particulars. The claim does not contain such particulars. Further, if the police owed no private duty to the plaintiff then what trust duty arose for which the police could be held accountable for breaching?

36It is plain and obvious that these claims cannot succeed. They too are frivolous and vexatious.

CONSPIRACY

37The test for tortious conspiracy is set out at paragraph 39 and 40, in Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario [2003] O.J. No. 5331. I quote,

“Further, the pleadings in an action for conspiracy must include, with clarity and precision, particulars of:

(i) the parties and their relationship;

(ii) an agreement to conspire;

(iii) the precise purpose or objects of the alleged conspiracy;

(iv) the overt acts that are alleged to have been done by each on the conspirators; and

(v) the injury and particulars of the special damage suffered by the plaintiffs by reason of the conspiracy.”

38The pleadings are significantly deficient in that regard. The fact that officers may have been overheard discussing whether the call should be put through are not actionable as a conspiracy.

39A decision not to put a telephone call through can hardly be considered an overt act sufficient to form the basis of a conspiracy.

40Further, the pleadings do not disclose a purpose for the alleged conspiracy.

41The damages suffered as a result of the alleged conspiracy are not particularized.

42It is plain and obvious a claim for conspiracy cannot succeed as it is frivolous and vexatious.

HARASSMENT

43Mr. John in his submissions in court argued that the police harassed him by accompanying Mr. Cusack to his home to serve the court papers. He argues that the police knew he did not want Mr. Cusack on his property but despite this accompanied him.

44On the issue of harassment I rely on the authority, Guillame v. Toronto (City) 2010 ONSC 5045, [2010] O. J. No. 4114, a decision of B.A. Allen J. of the Ontario Superior Court of Justice. From paragraph 48 I quote,

“Regarding the Plaintiff’s allegations of harassment, that allegation is deficient on a number of grounds. There is no clear authority that the tort of harassment exists. Our court in a recent decision canvassed the cases where harassment has been asserted and found that several cases held the tort does not exist [Lynch v. Westario Power Inc. [2009] O.J. No. 2927, para. 66 (Ont SCJ)]. Lynch, however, looked at cases where the tort of intentional infliction of mental suffering was claimed and identified the following elements of that tort;

(a) flagrant or outrageous conduct on the part of the named defendant;

(b) calculated to produce harm in circumstances where it is known harm will ensue;

(c) resulting in a visible and provable illness or injury to the plaintiff.”

45In the Lynch decision, P.A. Daley J., at paragraphs 66-67, while noting that it is unclear that a tort of harassment exists, determined that the cause of action that appears closest conceptually to harassment is the intentional infliction of mental suffering.

46Assuming for my purposes that the tort of harassment exists, I agree that the criteria outlined above ought to be considered.

47I find that any action on the part of the police cannot be considered flagrant or outrageous. In fact, I find on the pleadings no improper conduct which can be attributed to the defendants.

48Certainly their actions were not meant to produce harm to the plaintiff.

49On the pleadings I cannot attribute cause of action or any damages which resulted from their actions.

50Further, while the plaintiff alleges that in the civil action between him and Mr. Cusack there was an order for service by mail, the police had no obligation to investigate the civil action before agreeing to accompany Mr. Cusack to have the papers served.

51I find the claim of harassment to have no chance of success and it is frivolous and vexatious.

RULING

52I find that it is plain and obvious that the claim in its entirety cannot succeed. It discloses no reasonable cause of action, even accepting that the facts as pleaded are true.

53The Statement of Claim in its entirety as against Officers Harman, Rogers and Morgante and the Region of Peel Police Services Board is struck without leave to amend, as the pleadings are so deficient.

COSTS

54Any submissions as to costs are to be delivered, in writing, to my office within 21 days of the release of this ruling and are to be no more than three pages in length.

55Cost submissions may be served by email.

56Plaintiff’s consent to form and content of the order is dispensed with.

Bielby J.