Powell v Shirley, 2016 ONSC 3577

Court File and Parties

COURT FILE NO.: 142-13 DATE: 2016/06/07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALBERT E. POWELL, MONICA J. POWELL (Plaintiffs) And: SAMUEL JOHN SHIRLEY SENIOR, SAMUEL JOHN SHIRLEY JUNIOR, CATHY SHIRLEY, ST. PIERRE CONSTRUCTION (2000) INC., THOMSON MAHONEY DELOREY BARRISTER, SOLICITOR (Defendants)

BEFORE: Justice I. F. Leach

COUNSEL: The plaintiffs, self-representing Michael Saelhof, for the defendant Thomson Mahoney Delorey Barrister, Solicitor Michael Odumodu and James Spiroff, for the defendants Samuel John Shirley Senior, Samuel John Shirley Junior, Cathy Shirley and St. Pierre Construction (2000) Inc.

HEARD: November 19, 2015

Endorsement

Introduction

1Before me is a motion brought by one of the many defendants to this action; i.e., the defendant law firm identified in the plaintiffs’ pleading as “Thomson Mahoney Delorey Barrister, Solicitor”, and hereafter referred to as “TMD”. [1]

2TMD seeks an order striking out claims by the plaintiffs against TMD on the basis they disclose no reasonable cause of action, and/or because they are frivolous, vexatious or otherwise constitute an abuse of the court’s process. In addition or in the alternative, TMD seeks an order granting summary judgment dismissing the plaintiffs’ claims against TMD wholly or in part, on the basis they present no genuine issue requiring a trial.

3As noted in more detail below, it turned out that many aspects of TMD’s motion were not strenuously opposed by the plaintiffs, who nevertheless argued that certain limited aspects of their pleaded claims against TMD should continue to trial.

4Counsel for the remaining defendants appeared at the hearing before me primarily on a “watching brief”. In other words, the remaining defendants formally took no position in relation to the moving defendant’s motion. However, they felt it advisable to appear and make submissions if and as necessary, in order to ensure that their interests were not affected directly or indirectly by the proceedings; e.g., by the making of any findings of fact by the court that might have an impact on the plaintiffs’ remaining claims against the other defendants.

Procedural History, Court Filings and Plaintiff Representation

5Before proceeding to a review of the underlying evidence, and analysis of whether the relief sought by TMD should be granted, certain aspects of this matter’s procedural history should be emphasized.

6In particular, because this litigation had become somewhat convoluted, my colleague Justice Templeton addressed the matter on October 1, 2015, and made a case management order that included the following directions relating to TMD’s motion:

• The motion was adjourned to a three hour special appointment hearing on November 19, 2015, with specified time allocations for the parties’ respective submissions.
• The plaintiffs were to serve and file any responding affidavit material no later than October 23, 2015, and their factum or book of authorities no later than October 30, 2015.
• If the plaintiff Mr Powell intended to pursue his request for permission to act as agent for his wife and co-plaintiff, Mrs Powell, he was to serve and file an appropriate motion, returnable on November 19, 2015, requesting that relief.

7However, the plaintiffs then failed to comply with various aspects of Justice Templeton’s order.

8For example, even by the time of the motion’s return before me on November 19, 2015, the plaintiffs had failed to prepare, serve and file any material whatsoever responding to TMD’s motion. Nor was there any formal motion before the court requesting permission for Mr Powell to act as agent for Mrs Powell.

9Those failures were not through inadvertence. In particular:

• On November 13, 2015, (six days before the scheduled hearing of TMD’s motion), the Woodstock trial co-ordinator simultaneously contacted the self-representing plaintiffs and defence counsel via email, reminding them of the “directions and deadlines” imposed by Justice Templeton, and indicating that I was requesting filed motion material for review in advance of the scheduled hearing.
• That same day, (November 13, 2015), Mr Powell sent a responding email, confirming that he was “verily aware there were deadlines”, had not yet filed any material, but contemplated doing so “upon [his] return to the office”. Mr Powell also indicated that the plaintiffs were “appealing the decision of Justice Templeton dated October 01, 2015”, but felt that would “not be affected by the motion for summary judgment of the defendants/moving party moving forward on November 19, 2015”.

10On November 12, 2015, (one week before the scheduled return of the motion before me), counsel for the moving defendant served and filed a “confirmation of motion” form, indicating that his client’s motion would be proceeding to a hearing on all the issues. The next day, (November 13, 2015), counsel for the moving defendant served and filed an amended “confirmation of motion” form, expanding the indication of material to which reference might be made at the hearing, but otherwise indicating, once again, that the motion would be proceeding to a hearing as scheduled, on all the issues.

11For their part, the plaintiffs served and filed a “confirmation of motion” form on or about November 12, indicating that the matter would be the subject of a contested adjournment request. In particular, the plaintiffs intended to a request adjournment of the motion to an unspecified date, to be set by the trial co-ordinator. The stated basis of the adjournment request was an indication that the plaintiffs had commenced an appeal of Justice Templeton’s interlocutory order of October 1, 2015, “in the entirety, on the basis of prejudice”. It was also said that the plaintiffs were seeking “judicial review” of Justice Templeton’s order. Finally, mention was made of a transcript of a cross-examination being “only offered to the Plaintiffs [on] November 03, 2015”.

12When the matter came before me on November 19, 2015, both plaintiffs appeared in person, requesting an adjournment of the scheduled special appointment hearing for the reasons noted above, with Mr Powell adding that he had been occupied with another unspecified court matter.

13The adjournment request was strenuously opposed by the moving defendant.

14After receiving and considering extended submissions from the parties concerning the adjournment request, and having regard to all the circumstances, I ruled that it was just and appropriate for hearing of TMD’s motion to proceed as scheduled, despite the plaintiffs’ failure to serve and file any responding material in advance of the hearing. I also rejected Mr Powell’s request to file and rely upon a substantial pile of documents he had brought into the courtroom but had not previously served on the defendants, and his alternate request to give evidence of those matters orally instead of filing any documentation. [2]

15My reasons in that regard including the following:

• The case management order made by Justice Templeton was clear and unambiguous. It obviously was intended to ensure that hearing of the motion would proceed in a timely and fair manner, with proper advance disclosure of the evidence upon which each side would be relying in support of the competing positions. The existence, meaning and implications of Justice Templeton’s order admittedly were known and understood by the plaintiffs.
• Justice Templeton’s order was not challenged by the plaintiffs in any formal or appropriate way. In particular, further inquiries made during the course of submissions concerning the adjournment request made it clear that the plaintiffs actually had not taken timely steps sufficient to commence and pursue an appeal of Justice Templeton’s order, or any other form of judicial review. [3] Moreover, even if an appeal proceeding had been commenced in a proper and timely way, it would not have produced any automatic stay of the non-monetary provisions of Justice Templeton’s order. [4]
• Mr Powell initially relied upon his inability to obtain and file a transcript of his cross-examination of the moving defendant’s affiant and other produced representative in a timely way as an additional reason for the plaintiffs’ adjournment request. [5] However, this then became a non-issue. In particular, Mr Powell initially acknowledged that the plaintiffs had not yet obtained, served and filed copies of the relevant transcript, (despite the reporter’s indication that it was available as of November 3, 2015), and expressed a desire and ability to pay for and obtain copies of the transcript on the day of the hearing before me. But Mr Powell then indicated that he was content to proceed with argument of the motion without obtaining, serving or filing the relevant transcript, provided he could make reference to the moving defendant’s motion material, (which he obviously had the right to do). In particular, Mr Powell indicated his confident belief that the moving defendant’s motion material contained admissions sufficient to warrant recovery by the plaintiffs.
• As I pointed out to Mr Powell during the course of submissions, the plaintiffs’ decision to embark on cross-examination of the moving defendant’s affiant on October 28, 2015, carried with it an implicit indication, pursuant to Rule 39.02(1) of the Rules of Civil Procedure, that the plaintiffs already had served every affidavit on which they intended to rely.
• Although Mr Powell alluded to unspecified other court commitments that were said to have occupied his time and delayed his preparation of responding motion material, he was not inclined to provide any further details or evidence in that regard. In my view, a party seeking to adjourn a matter in the face of non-compliance with a case management order, such as that made by Justice Templeton, must be prepared and willing to offer a fulsome and sufficient explanation as to the reasons for non-compliance.
• In my view, there also is an obvious and self-defeating irony to Mr Powell’s position that Justice Templeton’s case management order denied him sufficient time to prepare any response to the moving party’s motion, when he clearly was able to devote considerable time, between the making of Justice Templeton’s order and the hearing before me, to preparation of a sizeable record for the Divisional Court complaining of a suggested lack of time to prepare court material. In other words, it seems to me that the plaintiffs simply made inappropriate choices concerning use of the three weeks of further response preparation time given to them by Justice Templeton’s case management order.
• Time for extended special appointment hearings is extremely limited in Woodstock, (which no doubt was one of the reasons for Justice Templeton’s imposition of appropriate deadlines for the timely service and filing of responding material, in order to ensure that the hearing would proceed on its scheduled hearing date). In my opinion, nothing in the situation before me provided any good or sufficient reason why the moving defendant should be denied its carefully scheduled hearing, or obliged to accept a necessarily prolonged adjournment before the matter could be brought forward again for hearing.

16In the result, I proceeded with hearing of the motion and argument from all concerned, with the underlying factual context effectively being provided by the uncontradicted evidence set forth in the motion record filed by TMD. [6]

17As for Mr Powell’s suggested representation of Mrs Powell, the absence of a motion record and request in that regard was not an issue at the outset of the hearing before me. In particular, Mrs Powell also was present in the courtroom. She expressly indicated that she was agreeing with all that her husband was saying, was comfortable with how he was expressing the plaintiffs’ position, and had nothing she wanted to add.

18However, Mr Powell’s ability to formally act as Mrs Powell’s agent became an issue later in the day because the plaintiffs had brought their three young children with them to the Woodstock courthouse, and the children had been left in the hallway outside the courtroom, (attended only by court staff watching from a distance), to wait for their parents. [7]

19In the circumstances, (and after Mrs Powell expressly confirmed her intention to simply agree with and adopt everything her husband had said and would say in relation to the motion, without adding anything), I granted leave for Mr Powell to act as his wife’s agent. However, as I indicated at the time, that was done on an exceptional and limited basis, solely in relation to that day’s hearing, so that Mrs Powell could leave the courtroom and look after the children. [8]

Background and Underlying Facts

20I have reviewed the pleadings, prior court endorsements and the moving defendant’s motion material in detail, and my express focus on the aspects of that material I consider to be most relevant to determination of TMD’s motion should not suggest otherwise.

21With that caveat in mind, I think the relevant background and underlying facts may be summarized as follows:

• The origins of this litigation lie in a proposed real estate transaction relating to a rural farm property in Delhi, Ontario. In particular, on or about May13, 2013, the plaintiff Mrs Powell and the defendant John Shirley Senior entered into a handwritten Agreement of Purchase and Sale, whereby Mrs Powell would purchase the property from Mr Shirley Sr and the corporation for the all-inclusive sum of $195,000. The parties agreed that their initial handwritten agreement would survive for 30 days, and that an “extended contract” was to follow within five business days. The written agreement included indications that Mrs Powell could be contacted via a post office box in the Town of Waterford, Ontario, and that Mr Shirley Senior could be contacted via the corporate defendant, through its office in the City of London, Ontario.
• On June 11, 2013, Mrs Powell and Mr Shirley executed a more formal Agreement of Purchase and Sale, which generally employed the standard typed form used for such real estate transactions in the province of Ontario. Once again, the purchase price was confirmed to be $195,000. The new agreed closing date was specified as July 12, 2013. The agreement indicated that Mrs Powell’s solicitor for the transaction would be C. Jo-Ann Hanson, (a lawyer from the Town of Norwich), and that Mr Shirley Senior’s solicitor for the transaction would be Stewart G. Thomson, (a lawyer with the firm of TMD in the City of London).
• The transaction failed to close on July 12, 2013. At some point, however, the Powells and their children nevertheless took up occupation of the property, apparently without any documented arrangement in place for their payment of occupation rent.
• Over the next several months, the parties worked to complete the proposed real estate transaction through their respective representatives.
• Such efforts came to include direct and active participation by Mr Powell, who began sending correspondence and communications on behalf of Mrs Powell, notwithstanding her legal representation by Ms Hanson’s office. For example, on or about September 26, 2013, Mr Powell wrote to Mr Thomas Delorey, (another lawyer with the TMD firm representing Mr Shirley Senior). The letter was also sent to Richard Van Dop, (a London lawyer who was said to be representing John Shirley Junior), and copied to Mrs Powell and Ms Hanson’s law firm. The letter indicated that Mr Powell had read correspondence from Mr Delorey, and another version of the Agreement of Purchase and Sale specifying a closing date of September 30, 2013. Mr Powell proposed a longer closing date of October 11, 2013. Mr Powell also expressed concern about John Shirley Junior possibly not agreeing with his father’s proposed sale of the property, and made further suggestions and/or demands including a written confirmation of legal representation as well as execution of a described written release.
• Further discussion and communications followed concerning the closing date and purchase fund arrangements. They included an email sent by Ms Hanson to Mr Powell on the afternoon of September 30, 2013, confirming that “the seller” would not accept any further extensions beyond October 11, 2013.
• On or about October 4, 2013, Mr and Mrs Powell then commenced litigation in the Superior Court of Justice, by way of a notice of application naming Mr Shirley Junior, Mr Shirley Senior and his wife Cathy Shirley, St Pierre Construction (2000) Inc. and the TMD law firm as respondents. (In the copy of the notice of application filed in evidence, the style of cause included the name of all respondents other than TMD in typed print, and then included TMD as a named respondent via handwriting apparently added as an afterthought.) The application sought injunctive relief compelling sale of the property. Among the stated grounds for the relief being sought were allegations that Mr Shirley Senior did not own the property he had agreed to sell; that Mr Shirley Junior had claimed to be the rightful owner of the property; and that Mr Shirley Junior had agreed, after meeting with the Powells, to grant them a first right of refusal to purchase the property for the same all-inclusive purchase price of $195,000. (In later correspondence, sent by Mr Powell on October 30, 2013, and discussed below, Mr Powell alleged that his agreement with Mr Shirley Junior also had included a term whereby TMD would not be involved in arrangements to close the contemplated real estate transaction. However, there was no mention of this in the Powells’ notice of application for an injunction.) Although apparently issued on October 4, 2013, the notice of application indicated an initial return date of September 26, 2013. When Mr Powell served the notice of application on October 8, 2013, (as part of 60 pages of material faxed to Mr Delorey and Mr Van Dop), he included a handwritten cover letter indicating that the Woodstock trial co-ordinator had not yet provided a date for argument of the Powells’ application.
• The transaction failed to close by October 11, 2013.
• On October 16, 2013, Mr Powell sent an email directly to Mr Shirley Senior and his wife, (the defendant Cathy Shirley). The email apparently was sent in response to a communication sent by Mr and Mrs Shirley earlier that day. In his email, Mr Powell blamed the Shirleys, and various forms of alleged failings and unethical conduct on their part, for delays in completing the proposed real estate transaction. Mr Powell threatened to continue the recently commenced litigation, (i.e., the injunction application next returnable on October 18, 2013), and any appeal he considered necessary, unless the vendors agreed to extend the time for closing of the proposed transaction to November 1, 2013, on the understanding that the Powells would be obliged to purchase or vacate the property completely by that date.
• Later that day, (October 16, 2013), Mr Shirley Senior, (on behalf of himself and the corporate defendant), Mrs Shirley, and Mr Shirley Junior, executed Minutes of Settlement agreeing to an extension of the transaction closing date to November 1, 2013, as requested/demanded by Mr Powell. The minutes nevertheless also confirmed the following: that there would be no further extensions of the closing date; that the agreed purchase price would be supplemented by an additional $5,000 payment by the Powells, (to address the cost of their intervening occupation of the property up to October 31, 2013); and that Mr and Mrs Powell and anyone else occupying the property without the express written consent of Mr Shirley Senior would vacate the property forthwith and restore it to its pre-occupation condition if the transaction was not completed on November 1, 2013. TMD sent the executed Minutes of Settlement to the Powells via email, (copied to Ms Hanson), on October 17, 2013.
• That same day, (October 16, 2013), an “Acknowledgement & Joint Retainer” was executed by Mr Shirley Junior and by Mr Shirley Senior, (who signed for himself and for St Pierre Construction 2000 Inc.). The document expressly confirmed that there was no conflict among the signatories in relation to the claims being made by Mr and Mrs Powell, and that the signatories had jointly retained TMD to represent their in interests in the matter.
• On October 29, 2013, Mr Powell faxed a letter directly to Mr Delorey and Mr Van Dop, which opened with comments indicating that “the purchasers” considered there to be no resolution of “the outstanding issues”, but went on to indicate that “the purchasers” were still intent on closing the proposed transaction on November 1, 2013, for the agreed purchase price of $195,000, albeit with an “early occupancy fee” of $5,500 to be tendered “in an independent draft”. However, Mr Powell also included an express indication of his intention “to seek compensation from Mr Shirley Senior, St Pierre Construction (2000) Inc. including Thomson Mahoney Delorey LLP Barristers and Solicitors Office, for time thrown away, loss of privilege, breach of performance related contractual breaches, among other allegations being set out, in the Statement of Claim, of (sic) which is being crafted (sic) and served upon the defendants named herein”. Mr Powell supplemented those threats and allegations by claims that TMD was acting despite a conflict of interest. He also closed his letter with a barrage of further allegations, suggesting that the vendors were intent on “deliberately breaching the contract, simply to impose financial duress, or undue hardship upon the purchasers, of (sic) which is a matter of bad faith, or contrary to Good Practice and Fair Dealings”. This was coupled with a suggestion that the vendors should avoid “substantial costly repercussion” by “simply agreeing to allow the closing of the transaction”.
• On October 30, 2013, Mr Powell faxed another letter to Mr Delorey and Mr Van Dop. The letter, marked “urgent”, included allegations that TMD was acting unethically by continuing to provide legal representation in relation to the property transaction when it was involved in litigation with parties to the transaction. (Again, the notice of application issued by the Powells had included TMD as a named respondent.) The letter expressly acknowledged that TMD had “no duty of care to the purchaser or opponent”, but claimed that “the professional practices exhibited by” TMD were contrary to “ethical practice”, “good practice” and “fair dealing”, as well as an alleged agreement between the Powells and Mr Shirley Junior. Mr Powell threatened to bring an action against TMD that would include “breach of trust” allegations, if TMD failed to recuse itself and continued to act as counsel in relation to the real estate transaction. More generally, Mr Powell went on to threaten pursuit of a claim for substantial losses if the transaction did not close because of failure to acknowledge that TMD should not be acting for the vendors.
• Matters were complicated further by Mr Powell repeatedly suggesting that the Powells had retained new legal counsel, when that was not the case. For example, in his aforesaid letter of October 29, 2013, Mr Powell indicated that the “purchasers” now were being represented by Sonia Kociper, (a lawyer based in Toronto). However, the next day, Ms Kociper confirmed via email that she had not been retained by Mr Powell. Similarly, in a telephone conversation and subsequent correspondence with TMD lawyers, Mr Powell intimated that the Powells had retained the law firm of Aaron & Aaron. However, on October 30, 2013, a representative of that firm confirmed via email that it too had not been retained by Mr Powell.
• On October 31, 2013, in an effort to complete the property transaction, TMD sent a “vendor’s tender” to Mr Powell via email, including various standard real estate closing documents, (including a statement of adjustments, a solemn declaration executed by Mr Shirley Senior, and a direction/undertaking/certificate/conveyance also executed by Mr Shirley Senior). The tender package included a cover letter to Mr Powell from TMD denying that it had any conflict of interest, (despite Mr Powell’s suggestions to the contrary), and emphasizing that no further extensions would be granted in relation to the proposed transaction. The letter also noted that the Powells would require legal counsel to receive and register the contemplated real estate transfer.
• The transaction did not close on November 1, 2013. Instead, Mr Powell faxed a further letter that day to Mr Delorey and Mr Van Dop, acknowledging receipt of the vendor tender package, but claiming that it “was tendered with substantial prejudice against the purchasers” for various reasons, including allegations that the material should have been provided sooner, that the vendors had failed “to render the property free and clear of liens and encumbrances”, and that there had been a fraudulent conveyance of the property from Mr Shirley Senior to Mr Shirley Junior, in respect of which “any lawyer engaged in aiding and abetting” the transfer would “be equally held accountable”. Mr Powell went on to demand a further fifteen days to close the transaction, failing which he intended further litigation, including pursuit of his fraudulent conveyance allegations. In what seems to have been an apparent effort to bolster the seriousness of that threat, Mr Powell emphasized that he already had acquired, in early 2013, personal experience with arguing fraudulent conveyance allegations in the Superior Court of Justice.
• By November 4, 2013, Mr Delorey was concerned about Mr Powell’s “persistent and harassing emails threatening litigation”, the allegations therein relating to TMD, and the earlier notice of application, (i.e., the one issued on October 4, 2013), in which the Powells formally had included TMD as a litigation target. Mr Delorey also had followed up on Mr Powell’s aforesaid indication of prior involvement in fraudulent conveyance litigation, (sent three days earlier), and had located the reported decision of Top Lift Terminal Services Inc. v. Albert Powell et al., 2013 ONSC 1286 (S.C.J.), in which Mr and Mrs Powell were self-representing respondents. In that litigation, the court found that Mr and Mrs Powell had participated in a fraudulent conveyance, whereby real estate owned by both was transferred into the name of Mrs Powell alone in an effort to avoid execution of a judgment debt. In the course of its ruling, the court also found that Mr Powell clearly had lied about the property’s ownership during the course of an examination in aid of execution, and that Mr Powell and the business he owned and operated clearly were insolvent and without assets. The relevant real estate transfer was set aside as a fraudulent conveyance and/or attempt to create an improper preference.
• On November 4, 2013, Mr Delorey therefore asked his assistant to obtain a publically available “online credit bureau report” on Mr and Mrs Powell from Equifax Canada. In that regard, Mr Delorey felt the report might assist in establishing whether or not the Powells “were, or had ever been, in a financial position to close the property deal”. More generally, Mr Delorey thought it prudent to “begin gathering evidence to defend against the allegations Mr Powell had made in his correspondence threatening litigation”.
• A “consumer report” concerning Mr and Mrs Powell was obtained from “Equifax” later that day; i.e., on November 4, 2013. [9] The report indicated that Mr and Mrs Powell had an unfavourable credit history, including no less than 48 credit inquiries concerning Mr Powell and 47 credit inquiries concerning Mrs Powell over the previous three years, numerous unpaid debts being pursued by third party collectors, and a judgment against Mr Powell for $65,836.00 in the Top Lift Terminal Services Inc. matter, noted above. After receiving and reviewing the consumer report from Mr Equifax, Mr Delorey simply placed a copy of it in TMD’s files. It has never been used for any purpose beyond this litigation.
• On November 5, 2013, TMD sent a letter to the Powells via email, confirming that they had failed to complete the purchase on November 1, 2013, bringing an end to the parties’ contract. The Powells were instructed to vacate the property forthwith, if they had not done so already.
• Mr Powell responded, on November 6, 2013, with an email sent to TMD. In his message, Mr Powell acknowledged receipt of the correspondence sent the day before, and promised a wide-ranging litigious response against the vendors and TMD, which would be held “equally liable” in relation to the failed purchase transaction. Mr Powell’s threats included claims for negligence and injunctive relief, (including injunctive relief preventing the vendors and TMD from taking any actions against “the purchasers”), and placement of a lien and “notice (sic) of pending litigation” against the property.
• On November 7, 2013, Mr Powell sent further correspondent to TMD, advising that he intended to specifically name Mr Delorey and his associate Ms Emovon as defendants in the Powells’ contemplated litigation, on the basis that both lawyers allegedly had been “aiding their client in committing potential crime”. Mr Powell went on to indicate that he also was reporting both lawyers “forthwith” to the Law Society of Upper Canada.
• On November 15, 2013, Mr Powell again wrote to TMD, making further allegations and threats of litigation against both TMD and the Shirleys, all of whom Mr Powell was said to be “actively investigating”. Mr Powell indicated his intention to seek compensation, (through “costly” litigation that “inevitably” would be brought), for “arrogance”, “bad faith”, “related negligence”, and “collusion” that was “criminal in nature”. At the same time, however, Mr Powell also continued to pursue completion of the real estate transaction; e.g., by asking whether TMD’s clients were willing to accept mortgage funds that were said to be still available.
• In November of 2013, these proceeding were commenced by the Powells, including TMD as a named defendant. This led to TMD indicating, (in correspondence sent to Mr Shirley Senior on December 9, 2013), that it would not be able to represent any other party to the litigation.
• Eviction proceedings also were commenced by John Shirley Senior, and resulted in the Powells being obliged to leave the property no later than 12pm on Monday, December 16, 2013. [10]
• On December 16, 2013, Mr Powell faxed further correspondence to Mr Delorey and Mr Van Dop, indicating that he had learned of TMD having “pulled a Credit Bureau” report in relation to Mrs Powell on November 4, 2013. Mr Powell alleged that TMD’s conduct had inflicted “lasting damage”, that would “exceed an amount of $50,000”, and indicated that there would be a further civil claim against TMD for misconduct said to include “intrusion by seclusion” (sic), “oppression and duress”, “breach of Piepeda” (sic), “breach of Ontario privacy laws”, and “abuse by the named law firm”.

22The litigation has since been the subject of numerous court appearances and pleading amendments.

23The most recent form of the plaintiffs’ pleading is that entitled “Amended A Fresh Statement of Claim”, (sic), which was amended as of June 8, 2015, pursuant to an order made by my colleague Justice Aston on March 19, 2015. [11]

24As noted in TMD’s Fresh as Amended Statement of Defence, (filed June 15, 2015) [12], the plaintiffs’ pleading employs a numbering scheme and associated formatting that is confusing and internally inconsistent. At least one paragraph number is missing, (there is no paragraph 2), many paragraphs bear duplicated paragraph numbers, at least one paragraph is introduced simply by a dash mark, and at least one paragraph bears no number or mark whatsoever. Moreover, I agree with TMD’s pleaded position that many paragraphs of the Powells’ pleading do not employ proper grammar, and/or fail to reveal a coherent and complete allegation or statement.

25All of this makes it difficult to provide entirely clear and accurate references to the particular paragraphs of the pleading which contain allegations relating to TMD, which inherently are the subject of the motion before me. However, I will identify the relevant portions of the plaintiffs’ current pleading as follows:

• the reference to TMD in the style of cause on “Page 1 of 20”;
• paragraph 11 on “Page 6 of 20”;
• paragraphs 69 and 71 on “Page 15 of 20”;
• paragraph 73 on “Page 16 of 20”;
• paragraph 82 on “Page 17 of 20”;
• all of the paragraphs on “Page 18 of 20”, including both of the paragraphs numbered 85; and
• all of the paragraphs on “Page 19 of 20”, including both of the paragraphs numbered 88.

26I have reviewed those allegations against TMD in detail and in their entirety, but will summarize them as follows: [13]

• The plaintiffs allege that TMD was negligent, insofar as it allowed itself to be retained by multiple parties, (i.e., “multiple parties from the same corporation”, “directors of the corporation”, and “multiple parties from the same family or where the parties sit as a board of director member”), acted despite a resulting conflict of interest preventing it from properly counseling its clients, and acted with the sole intent of advancing the interests of TMD’s clients “regardless of the cost to the plaintiffs”.
• The plaintiffs alleged that TMD “conspired” with the remaining defendants to orchestrate a failed attempt by the plaintiffs to purchase the property. There is no express identification of the particular factual allegations relied upon by the plaintiffs in that regard, but they refer earlier in their pleading to such matters as TMD communicating with the plaintiffs and continuing to provide legal representation in relation to the property transaction despite a request to the contrary by Mr Shirley Junior, TMD following directions from co-defendants to “slow or halt communication with the plaintiffs”, and perhaps to TMD somehow participating in or condoning Mr Shirley Junior’s “purported” change of law firms “from TMD LLP to Richard Van Dopp, (sic) sole practitioner”.
• The plaintiffs allege that TMD knowingly intruded upon and blatantly disregarded the plaintiffs’ rights of privacy by obtaining, without the plaintiffs’ consent, “privileged financial credit bureau information” that was “private and confidential”, and did so “for the purpose of disseminating the financial information”, and sharing the information with the other defendants.

27In short, the claims advanced by the plaintiffs against TMD involve allegations of negligence, conspiracy and intrusion upon seclusion.

Party Positions

28The formal relief sought by the moving defendant is set forth in its notice of motion, found at Tab 1 of its motion record, which confirms that TMD seeks to strike or obtain summary judgment in relation to all of the pleaded claims against it. In other words, the moving defendant formally relies on Rule 21 of the Rules of Civil Procedure and Rule 20 of the Rules of Civil Procedure in relation to all aspects of the plaintiffs’ claims against TMD.

29However, in the course of his submissions, counsel for the moving defendant seemed to rely primarily on Rule 21 of the Rules of Civil Procedure as the suggested basis for defeating the plaintiffs’ allegations of negligence and conspiracy, insofar as they were said to disclose no reasonable cause of action.

30In contrast, counsel for the moving defendant seemed to rely primarily on Rule 20 of the Rules of Civil Procedure as the suggested basis for defeating the plaintiffs’ allegations of intrusion upon seclusion, insofar as the existence of the alleged tort was conceded, but there was said to be no genuine issue requiring a trial because the information admittedly obtained by TMD about the plaintiffs was not private, because TMD had a legitimate justification for requesting and obtaining the relevant information, and/or because no reasonable person would regard the conduct of TMD as highly offensive in the circumstances.

31In the course of his submissions on behalf of both plaintiffs, Mr Powell eventually acknowledged and conceded that, based on the plaintiffs’ pleading and the record before the court for purposes of the motion, the claims against TMD based on alleged causes of action other than intrusion upon seclusion could not be substantiated or sustained.

32However, Mr Powell maintained that the Powells’ claim relating to intrusion upon seclusion was not only sustainable, but warranted “compensation accordingly”.

Analysis

33With the above facts, circumstances and party positions in mind, I now turn to more detailed consideration of the moving defendant’s motion, beginning with a review of the applicable rule provisions and general principles.

Rule 21 – Motions to Strike Pleadings

34Pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, “a party may move before a judge … to strike out a pleading on the ground that it discloses no reasonable cause of action … and the judge may make an order or grant judgment accordingly”.

35The Supreme Court of Canada has reiterated the applicable test for such motions on many occasions [14], emphasizing the following principles:

• A claim will only be struck out if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. 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.
• The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial. This promotes two beneficial goals: efficiency in the conduct of litigation, and correct results.
• Valuable as it is, a motion to strike pleadings as disclosing no reasonable cause of action must be used with care, as the law is not static and unchanging. On a motion to strike, it accordingly is not determinative that the law has not yet recognized a particular claim. The court instead must act whether, assuming the pleaded facts to be true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.
• However, the test does not focus on whether, in a world of abstract speculation, there is a mathematical chance that any number of things might happen. Rather, the court operates on the assumption that the claim will proceed through the court system in the usual way, in an adversarial system where judges are under a duty to apply the law as set out, and as it may develop from, statutes and precedent. The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of success.
• When the court considers a motion to strike a claim for failure to disclose a reasonable cause of action, a claimant has the benefit of the court assuming pleaded facts to be true. No evidence is admissible in relation to such a motion. However, there are limits on the extent to which this approach operates in the claimant’s favour. For example, facts are not assumed to be true if they are manifestly incapable of being proven. Moreover, it is incumbent on a claimant to clearly plead the facts upon which it relies in making his or her claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. He or she may only hope to be able to prove them. But he or she must plead them.

36Pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure, the court also may stay or dismiss an action on the ground it is “frivolous or vexatious or is otherwise an abuse of the process of the court”.

37That rule and its predecessors may codify the relevant procedure, but are simply a reflection and confirmation of the court’s long-recognized inherent jurisdiction and discretionary power to control use of its process, and to prevent misuse of its own procedures. See, for example: Haggard v. Pelicier Freres, [1892] A.C. 61 (P.C.); Orpen v. Ontario (Attorney General), [1925] 2 D.L.R. 366 (Ont.H.C.), varied , [1925] 3 D.L.R. 301 (Ont.C.A.); Earl Putnam Organizational Ltd. v. Macdonald (1978), 21 O.R. (2d) 815 (C.A.); and Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), reversed on other grounds (2002), 2002 SCC 63, 220 D.L.R. (4th) 466 (S.C.C.).

38There is a degree of overlap in the meaning of the terms “frivolous”, “vexatious” and “abuse of process” – none of which have been precisely defined in the case law. This reflects the reality that they are intangible and discretionary principles and doctrines, unencumbered by the specific requirements of concepts such as issue estoppel. See Currie v. Halton Regional Police Services Board (2003), 233 D.L.R. (4th) 657 (Ont.C.A.), at paragraphs 13-17. However, by way of instructive general descriptions of what might be encompassed within these concepts:

• A “frivolous” claim has been said to include one “that has no legal basis or merit, especially one brought for an unreasonable purpose such as harassment”. See Black’s Law Dictionary, (9th ed.).
• A “vexatious” claim has been defined as including one “where it is obvious than an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief”. Vexatious actions also include “those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights”. See Lang Michener v. Fabian (1987), 59 O.R. (2d) 353, at p.358.
• The doctrine of “abuse of process” engages the inherent power of the court to prevent the misuse of its procedure in a way that would be “inconsistent with the objectives of public policy”, “manifestly unfair to a party to the litigation before it”, or “would in some other way bring the administration of justice into disrepute”. It applies, in particular, to situations “where a party resorts to the process of the court not principally for the relief which the court can grant, but instead to employ the process of the court coercively to obtain some other, and wrongful, advantage from the other party and this wrongful purpose is reflected in some act or threat in furtherance of the purpose”. See Canam Enterprises Inc. v. Coles, supra, at paragraphs 31, and 55-56; and Klar et al., Remedies in Tort, at Chapter 1, s.14.2.

39In contrast to determinations made pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, (where no evidence is admissible and the court is confined to a review and consideration of the relevant pleading in determining whether it should be struck as disclosing no reasonable cause of action), application of Rule 21.01(3)(d) of the Rules of Civil Procedure permits consideration of extrinsic evidence. See Currie v. Halton Regional Police Services Board, supra, at paragraph 10.

40To determine whether the action is frivolous, vexatious or an abuse of process, a court may and indeed must look at the “whole history of the matter and not just whether there was originally a good cause of action”. See Lang Michener v. Fabian, supra, at p.358.

41At all times, however, the court must be mindful that, when the court invokes its authority under Rule 21.01(3)(d) of the Rules of Civil Procedure, or its corresponding inherent jurisdiction to dismiss or stay an action, it should do so only in the clearest of cases. See Sussman v. Ottawa Sun, [1997] O.J. No. 181 (Gen.Div.), at paragraph 21; and Currie v. Halton Regional Police Services Board, supra, at paragraph 18.

Rule 20 – Motions for Summary Judgment

42Pursuant to Rule 20.01(3) of Ontario’s Rules of Civil Procedure, a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in a statement of claim.

43Numerous additional “sub-rules” outline the manner in which the court must approach such a motion, and the powers the court has in that regard. They include the following:

• Pursuant to Rule 20.02(2) of the Rules of Civil Procedure, a plaintiff responding to such a motion may not rest solely on the allegations or denials in his or her pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. This has been supplemented by repeated judicial admonitions emphasizing, in various ways, that a respondent to a such a motion is not permitted “to sit back and rely on the possibility that more favourable facts may develop at trial”, and is instead required to “lead trump or risk losing” and “put its best foot forward”, as “the court is entitled to assume that the record contains all the evidence the parties would present at trial”. See, for example: Pizza Pizza Ltd v. Gillespie (1990), 75 O.R. (2d) 225 (Gen.Div.); 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen.Div.); and Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, [2012] O.J. No. 4309 (C.A.).
• Pursuant to Rule 20.04(2)(a) of the Rules of Civil Procedure, the court is obliged to grant summary judgment if it satisfied “that there is no genuine issue requiring a trial with respect to a claim”.
• In making that determination, the court is to consider the evidence submitted by the parties, and pursuant to Rule 20.04(2.1) of the Rules of Civil Procedure, may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, “unless it is in the interest of justice for such powers to be exercise only at trial”. In the exercise of those powers, the court also has the ability, pursuant to Rule 20.04(2.2) of the Rules of Civil Procedure, to order presentation of oral evidence by one or more of the parties; i.e., to direct a “mini-trial”.
• Where the only genuine issue is the amount of the plaintiff’s entitlement, the court has the ability, pursuant to Rule 20.04(3) of the Rules of Civil Procedure, to order a trial of that issue, or grant judgment with a reference to determine the amount. Similarly, pursuant to Rule 20.04(4) of the Rules of Civil Procedure, where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly.
• Where summary judgment is refused or granted only in part, the court has powers, pursuant to Rules 20.05(1) and (2) of the Rules of Civil Procedure, to specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trial expeditiously, and make numerous further orders and directions that may be just in the circumstances.

44In Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada encouraged the use of Ontario’s summary judgment rule to resolve cases in an expeditious manner provided that can achieve a fair and just adjudication.

45Speaking for the court, the comments of Justice Karakatsanis in that regard included the following, (at paragraphs 1, 2 and 27 of the Hyrniak decision):

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. …

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. …

There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

46Consistent with that general approach and philosophy, Justice Karakatsanis indicated, at paragraph 22 of Bruno Appliance and Furniture, Inc. v. Hyrniak, 2014 SCC 7, [2014] 1 S.C.R. 87, (a companion action to Hyrniak v. Mauldin, supra), that summary judgment would be appropriate where a matter “can be resolved in a fair and just manner”, which will be the case when the process:

i. allows the judge to make the necessary findings of fact; ii. allows the judge to apply the law to the facts; and iii. is a proportionate, more expeditious and less expensive means to achieve a just result.

47Justice Karakatsanis went on to say, in the same paragraph, that if there appeared to be a genuine issue requiring a trial, based only on the record before a judge hearing a summary judgment motion, that judge must then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. If so, those powers may then be used at the judge’s discretion, “provided that their use is not against the interest of justice”.

48With the above rules and general principles concerning Rule 21 and Rule 20 of the Rules of Civil Procedure in mind, I now turn to their application in the particular circumstances of this case.

Negligence

49There obviously is a recognized tort of negligence, and in their pleading, the plaintiffs repeatedly allege that TMD was “negligent” and/or guilty of “gross negligence”. [15]

50Although academics and American courts sometimes take a different view of the matter, Anglo-Canadian law commonly holds that there are three essential elements of the tort of negligence. In particular, a plaintiff must establish:

i. that the defendant owed a duty of care to the plaintiff; ii. that there has been a breach of that duty; and iii. that damage has resulted from that breach. [16]

51Pursuant to the authority set out above, it therefore was incumbent on Mr and Mrs Powell to plead alleged facts capable of satisfying each of those essential elements of negligence. However, even on a generous and liberal reading of the plaintiffs’ latest pleading, I find they have not done so.

52In particular, it seems to me that the pleading is devoid of any allegation that TMD owed the plaintiffs any duty of care, or any pleaded allegations of fact offered in support of such an assertion.

53For example, in support of their negligence claims, the plaintiffs include allegations that TMD acted contrary to the wishes of a client, and placed itself in a position where it “could not properly counsel” its clients, (which the plaintiffs specify as “the defendants”). However, these are allegations implicitly focusing on the position of TMD vis-à-vis parties other than the plaintiffs.

54In my view, there is no suggestion whatsoever in the plaintiffs’ pleading that TMD ever owed the plaintiffs a duty of care, or that the plaintiffs rely on the existence of any such duty in making reference to “negligence”. The plaintiffs instead seem to plead and rely upon alleged TMD negligence in relation to others.

55Moreover, even if the plaintiffs had alleged that TMD owed them a duty of care in the circumstances, (so as to provide a basis for a negligence claim against TMD by the plaintiffs), in my view such an approach has been authoritatively rejected by the law of Ontario. In particular, our courts have made it clear that:

• a solicitor owes no duty of care to an opposing party, and there accordingly is no basis in law for a claim in negligence by an opposing party against his or her opponent’s solicitor; and
• complaints relating to an opposing solicitor’s allegedly unethical conduct during proceedings similarly does not provide a basis for a cause of action. [17]

56In my opinion, the plaintiffs’ pleaded negligence claims against TMD therefore cannot succeed in law, and that alone is sufficient to warrant an order striking them pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, without any regard to the state of the evidence offered before me for consideration in the possible application of Rules 21.01(1)(d) of the Rules of Civil Procedure and/or Rules 20.01(3) of the Rules of Civil Procedure and 20.04(2)(a) of the Rules of Civil Procedure.

57However, in the alternative, and had it been necessary for me to do so, I also would have dismissed the negligence claims against TMD pursuant to Rule 21.01(1)(d) of the Rules of Civil Procedure and/or Rules 20.01(3) of the Rules of Civil Procedure and 20.04(2)(a) of the Rules of Civil Procedure, having regard to the evidence before me.

58In that regard, I note in particular the letter written and sent by Mr Powell on October 30, 2013, described above.

59That letter makes it clear, implicitly and expressly, that Mr Powell was writing on behalf of himself and Mrs Powell; for example, as he purports to speak for “the purchasers” of the property.

60However, that letter also makes it quite clear that the plaintiffs themselves did not believe that TMD owed the plaintiffs any duty of care in the circumstances. In particular, the third paragraph of the letter expressly makes reference to opposing counsel “bearing no duty of care to the purchaser or the opponent”.

61In my view, having regard to that express and contemporaneous acknowledgment or admission, it would be both unjust and unnecessary to permit the plaintiffs to proceed to trial now with negligence claim against TMD inherently based on the completely inconsistent assertion of such a duty of care.

62In that regard, as far as Rule 21.01(d) of the Rules of Civil Procedure is concerned, it seems to me that, where claimants themselves expressly have acknowledged that the requisite legal basis for a claim does not exist, so that such a claim would have no merit, later advancement of that claim strongly suggests it is one being brought for some other unreasonable purpose, and without any reasonable expectation of obtaining relief, to obtain some other wrongful disadvantage from the other party, thus making the claim “frivolous”, “vexatious” and an “abuse of process”.

63Insofar as Rules 20.01(3) of the Rules of Civil Procedure and 20.04(2)(a) of the Rules of Civil Procedure are concerned, in my view there is no genuine issue requiring a trial to establish whether or not the plaintiffs were owed a duty of care by TMD, on which to base a claim of negligence, when the plaintiffs themselves clearly have made a prior express admission that no such duty of care existed in the circumstances.

64For the sake of completeness, I also note that, in my view, there is simply no evidence sufficient to establish that TMD ever had a conflict of interest, despite the plaintiffs’ repeated suggestions and allegations to the contrary.

65Even without the concession made by Mr Powell during the course of submissions, my independent view therefore is that the plaintiffs’ claims of negligence against TMD must be dismissed.

Conspiracy

66I turn next to the plaintiffs’ conspiracy claims against TMD.

67The law of Ontario unquestionable recognizes a tort of “conspiracy”. However, it has a very precise meaning, and well-defined essential elements. In particular:

• A cause of action for conspiracy arises where there has been an agreement to commit an unlawful act or to do an otherwise lawful act in an unlawful manner, resulting in damage to the person against whom the conspiracy was formed.
• There are two types of actionable conspiracy. The first is where the predominant purpose of the defendants’ conduct is to injure the plaintiff, whether the means used by the defendants are lawful or unlawful. The second is where the defendants’ conduct is unlawful, is directed towards the plaintiff (alone or together with others) and the defendants should have known that injury to the plaintiff would result. In both cases, however, it is necessary to establish the existence of a combination of two or more persons having a common design and damage to the plaintiff resulting from acts carried out in pursuance of the common design.
• The essential difference between the two kinds of conspiracy lies in the purpose or object of the defendants’ acts. In the first situation, the plaintiff must prove that the predominant purpose of the defendants was to injure the plaintiff. In the second situation, it must be shown that the defendants’ unlawful conduct was directed toward the plaintiff, that the defendants should have known in the circumstances that injury to the plaintiff would be likely, and that the plaintiff did in fact experience injury as a result. [18]

68For the reasons noted earlier, it was incumbent on the plaintiffs to plead all facts essential to making out a conspiracy claim against TMD. In my view, the plaintiffs’ pleading is woefully inadequate in that regard. In particular:

• The reference to conspiracy is included somewhat cavalierly in the final one-sentence paragraph of the pleading, without identification of particular factual allegations relied upon by the plaintiffs in support of the conspiracy claim. As noted above, there are earlier references in the pleading to such matters as TMD communicating with the plaintiffs and continuing to provide legal representation in relation to the property transaction despite a request to the contrary by Mr Shirley Junior, TMD following directions from co-defendants to “slow or halt communication with the plaintiffs”, and perhaps to TMD somehow participating in or condoning Mr Shirley Junior’s “purported” change of law firms “from TMD LLP to Richard Van Dopp, (sic) sole practitioner”. However, whether or not such factual allegations are relied upon in support of the alleged conspiracy is not clear.
• There is scant if any reference to any common design or purpose on the part of TMD and the defendants, apart from the bald statement that they “conspired … to orchestrate a failed attempt by the plaintiffs to purchase the property”.
• There is no specification of which type of conspiracy claim is being alleged by the plaintiffs.
• In any event, there is no pleaded factual allegation that the predominant purpose of the alleged conspirators was to injure the plaintiff or, in my view, any other pleaded factual allegation to suggest that was the case. To the contrary, the plaintiffs plead in paragraph 87, on “Page 19 of 20” of their claim, that “TMD’s sole intent was to advance the interest of their client (sic)”. The plaintiffs accordingly have not only failed to plead allegations sufficient to support what I have described above as the first recognized type of conspiracy claim, but also have framed their pleading in a way that negates such a claim.
• Nor have the plaintiffs pleaded, in my view, facts sufficient to support what I have described above as the second recognized type of conspiracy claim. In particular, in my opinion the plaintiffs have failed completely to identify any unlawful conduct on the part of TMD, let alone any unlawful conduct directed towards the plaintiffs.

69In my opinion, the plaintiffs’ pleading therefore fails to disclose a reasonable cause of action for conspiracy against TMD. That alone is sufficient to warrant an order striking the plaintiffs’ conspiracy claims against TMD pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, without any regard to the state of the evidence offered before me for consideration in the possible application of Rules 21.01(1)(d) of the Rules of Civil Procedure and/or Rule 20.01(3) of the Rules of Civil Procedure and 20.04(2)(a) of the Rules of Civil Procedure.

70Had it been necessary for me to do so, I nevertheless would have dismissed the plaintiffs’ conspiracy claims against TMD pursuant to Rules 20.01(3) of the Rules of Civil Procedure and 20.04(2)(a) of the Rules of Civil Procedure, as nothing in the evidence before me suggests any genuine issue requiring trial regarding the existence of any common design between TMD and its clients that had the predominant purpose of injuring the plaintiffs, or any unlawful conduct on the part of TMD. There simply is no evidence whatsoever to suggest such things, let alone evidence that would warrant resort to the additional powers conferred by Rule 20.04(2.1) of the Rules of Civil Procedure, and without such fundamental elements, neither type of the two recognized types of conspiracy claim can succeed.

71Even without the concession made by Mr Powell during the course of submissions, my independent view is that the plaintiffs’ claims of conspiracy against TMD therefore also must be dismissed.

Intrusion Upon Seclusion

72That leaves, for consideration, the plaintiffs’ claims relating to intrusion upon seclusion.

73As emphasized by Mr Powell, and readily acknowledged by counsel for the moving defendant, the tort of “intrusion upon seclusion” was a cause of action recognized by our Court of Appeal in Jones v. Tsige (2012), 2012 ONCA 32, 108 O.R. (3d) 241 (C.A.). The same decision confirmed that the tort has three essential elements, which were the subject of clarification and limitation:

• First, the defendant’s conduct must have been intentional, which includes conduct that was reckless. A claim for intrusion upon seclusion will arise only for deliberate invasions of personal privacy.
• Second, the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns. Claims for the protection of privacy may give rise to competing claims. In particular, no right to privacy can be absolute, and many claims for the protection of privacy must be reconciled with, and even yield to, such competing claims.
• Third, a reasonable person must regard the invasion of privacy as highly offensive, causing distress, humiliation or anguish, (although proof of harm to a recognized economic interest is not an element of the cause of action). In particular, a claim for intrusion upon seclusion will arise only for significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded. It is only intrusions into matters such as one’s financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

74In my view, reading the plaintiffs’ pleading generously, and assuming the facts pleaded therein to be true, it does disclose a reasonable cause of action for intrusion upon seclusion, as the Powells effectively have pleaded all essential elements of the tort. In particular:

• The pleading alleges that TMD “chose” to access the information it did, and did so for the “purpose” of disseminating the information and sharing it with the other defendants. In my view, conduct done by choice, and with deliberate purpose, must reasonably be viewed as “intentional”.
• The pleading alleges that the relevant information was “private and confidential financial information”.
• The pleading alleges that accessing of the information was a “blatant disregard for privacy rights of the plaintiffs”, which “prejudiced the plaintiffs in their pursuit of purchasing the property”. The reference to “blatant disregard” suggests that TMD’s conduct should be viewed as a highly offensive, and sufficient to cause the plaintiffs distress along with any economic loss that might be associated with their failure to purchase the property.

75I therefore decline to strike the “intrusion upon seclusion” claims against TMD, pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure.

76Nor do I find the evidence tendered by the moving defendant sufficient to warrant any conclusion that the “intrusion upon seclusion” claims against TMD are “frivolous”, “vexatious” or an “abuse of process”, so as to justify their being struck pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure.

77However, that still leaves the question of whether the pleaded “intrusion upon seclusion” claims against TMD disclose any genuine issue requiring a trial; i.e., whether the pleaded “intrusion upon seclusion” claims against TMD survive its request for summary judgment dismissing such claims, pursuant to Rules 20.01(3) of the Rules of Civil Procedure and 20.04(2)(a) of the Rules of Civil Procedure.

78In my view, the issues raised and addressed by the parties concerning the plaintiffs’ “intrusion upon seclusion” claims against TMD “can be resolved in a fair and just manner” in the particular circumstances before me, based on the criteria outlined by the Supreme Court of Canada.

79In particular, for the reasons outlined above, the evidence filed on the motion before me was provided entirely by TMD, and therefore inherently was not the subject of any contradiction or inconsistency. The plaintiffs not only failed to “put their best foot forward”, but essentially did not put any foot forward, (apart from Mr Powell’s oral submissions), and as noted above, the court is entitled to assume that the record put forward for hearing of a summary judgment motion contains all of the evidence the parties would present at trial.

80In my opinion, in the circumstances before me, the record accordingly does not suggest or indicate any dispute, let alone any significant dispute, as to the facts underlying issues relating to the plaintiffs “intrusion upon seclusion” claims against TMD, or associated matters of credibility or reliability that require further exploration and resolution through trial.

81More generally, in my view there are no further necessary findings of fact required to address and resolve the issues raised by the defendant’s motion for summary judgment dismissing the plaintiffs’ “intrusion upon seclusion” claims against TMD, even without resort to the additional powers outlined in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure.

82Furthermore, for the reasons that follow, I think the particular circumstances of this case allow me to apply the law to the facts permitting summary judgment, in relation to the plaintiffs’ “intrusion upon seclusion” claims against TMD, in a manner that will achieve a just result of those issues by means that are proportionate, more expeditious and less expensive than committing all parties to the further delay and expense of a trial.

83In particular, having regard to the record before me:

• In my view, there really is no question that the actions of TMD in requesting and obtaining a credit report in relation to Mr and Mrs Powell was intentional, and done with deliberate purpose. The moving defendant’s affiant, Mr Delorey, did not suggest otherwise. To the contrary, he explains in his affidavit evidence why he deliberately gave instructions to his assistant to request and obtain the credit report.
• Similarly, there is no question that the information being sought by TMD involved financial information relating to the plaintiffs, and “financial records” were one of the areas expressly mentioned by our Court of Appeal, in Jones v. Tsige, supra, in respect of which individuals generally have an expectation of privacy.
• However, for a number of reasons, it seems to me that much if not most or all of the information contained within the relevant credit report cannot properly be characterized as financial records in respect of which the plaintiffs had a privacy interest. In particular:
  • Much of the credit report relates to disclosure of the simple fact that other identified third parties had made requests to the relevant credit bureau for the provision of information concerning the plaintiffs. In my view, a request for information about the plaintiffs cannot be equated with information about the plaintiffs. Moreover, it seems to me that a record compiling details of who may have made such requests to the credit bureau, and when those requests were made, without any apparent involvement whatsoever of the plaintiffs, is not a record in respect of which the plaintiffs could or would have had any reasonable expectation of privacy.
  • To the extent the credit report discloses the existence of formal collection proceedings pursued by third parties against the plaintiffs, and/or judgments obtained by third parties against the plaintiffs, it should be remembered that such proceedings and judgments almost certainly would be a matter of public record. It may be true that the credit bureau makes a summary of such information more readily available than it would be if a party seeking such information otherwise had to expend the time and resources necessary to attend at each and every courthouse in Ontario or elsewhere, and perform a thorough search of court files, generally accessible to the public in an open courts system, for records of litigation, (including claims, judgments, writs of execution and other formal debt enforcement measures), relating to Mr and/or Mrs Powell. In my view, however, that does not change the inherently public and non-private nature of the underlying information.
  • It seems to me that there is a significant difference and distinction to be made between situations involving financial records relating to an individual, maintained by that individual’s bank or other institution, in respect of which an individual may have a legitimate and understandable expectation of privacy, and situations where a person has dealt with a third party in an arm’s length commercial transaction leaving that third party with a debt or alleged debt against the individual which it wishes to pursue. In my view, records concerning that third party’s assertion of a debt, and efforts to pursue such a debt, are very unlikely to be records in respect of which the debtor or alleged debtor would have a legitimate or reasonable expectation of privacy.
• Even if the relevant credit report contained information capable of being properly characterized as information about the plaintiffs’ “private affairs and concerns”, which was “invaded” by TMD requesting and obtaining the credit report, it seems to me that TMD had a “lawful justification” and/or “competing” claim or interest to which any relevant privacy interest of the plaintiffs must yield in the circumstances. In that regard:
  • By the time TMD requested and obtained the relevant credit report, the plaintiffs repeatedly had been asserting, expressly and implicitly, that they were able and willing to complete the proposed real estate transaction, and that responsibility for any failure of the transaction, (and the plaintiffs’ corresponding alleged losses), would lie with others, including not only parties being represented by TMD, but also TMD itself.
  • By the time TMD requested and obtained the relevant credit report, the plaintiffs also had made repeated threats of litigation against parties being represented by TMD, and TMD itself. As Mr Powell repeatedly emphasized in his correspondence, and as demonstrated by subsequent events, (including the current proceeding), those were very real and sincere threats, to be taken seriously by TMD and its clients.
  • By the time TMD requested and obtained the relevant credit report, Mr Powell’s own actions had led to concerns about whether the Powells actually had any financial ability to complete the purchase transaction. In particular, Mr Powell had made reference in his correspondence to prior involvement in fraudulent conveyance litigation, which in turn had prompted Mr Delorey to obtain and review the information set forth in the reported and therefore entirely public decision of this court in Top Lift Terminal Services Inc. v. Powell, supra.
  • In the circumstances, it seems to me that TMD had a demonstrable and legitimate interest in preparing a defence of the reasonably anticipated claims, repeatedly threatened by Mr Powell, by taking timely steps to investigate a very fundamental question of causation. In particular, as emphasized by Mr Delorey in his affidavit, if the transaction actually failed and inevitably would have failed because the Powells never had any financial ability to complete the purchase, TMD and its clients would bear no responsibility in that regard. That competing legitimate interest is underscored, I think, by the associated reality that the defendants would be entitled, in their defence of the current litigation, to information about the Powells’ financial situation and resources at the time of the transaction’s failure, in order to test and possibly refute the plaintiffs’ repeated allegation that the defendants caused and bear responsibility for that failure.
  • Viewed from the converse perspective, it seems to me that the Powells, having threatened very serious and substantial claims against TMD and its clients for allegedly causing the transaction to fail, could not reasonably have expect to maintain a privacy interest in relation to information highly relevant to the merits of that alleged causation.
• Finally, while the evidence before me makes it clear the Powells subjectively were distressed upon learning that TMD had made inquiries of the relevant credit bureau [19], to the extent TMD’s action did constitute an intentional invasion of the plaintiffs’ private affairs or concerns without lawful justification, in my view a reasonable person knowing all of the relevant circumstances would not regard the invasion as “highly offensive”. Without limiting the generality of that view:
  • It seems to me that is, at least, the cumulative effect of the numerous considerations I have outlined above. In other words, even if each of the concerns outlined above are not separately and independently sufficient to establish on a balance of probabilities that the information accessed by TMD was not private and confidential, a lawful justification for TMD accessing the information, and/or a sufficient legitimate competing interest of TMD and its clients to which the relevant privacy interests of the plaintiffs must yield, I think such concerns collectively are sufficient to make it clear that TMD’s decision to request and obtain such information was not that egregious, when viewed objectively on the reasonable person standard.
  • To those other considerations must be added, I think, the undisputed evidence that, by the time of this litigation at least, TMD actually had done nothing to disseminate or make use of the credit report information it had obtained. As emphasized by Mr Delorey in his affidavit, upon receiving the credit report in question, he simply placed a copy of it in TMD’s files. Its contents were not disseminated publicly, or even to the other defendants, prior to this litigation. Any invasion of the plaintiffs’ privacy rights was quite limited in scope and effect, and accordingly not significant.
  • Moreover, as noted above, TMD would have been entitled to the information set forth in the report in any event, during the course of this litigation, as it is relevant to a underlying fundamental question of what caused the purchase transaction to fail. I do not think a reasonable person, viewing the matter objectively, would think it “highly offensive” that TMD accessed information to which it ultimately would have been entitled in any event.

84In my opinion, the moving defendant accordingly is entitled to summary judgment, pursuant to Rules 20.01(3) of the Rules of Civil Procedure and 20.04(2)(a) of the Rules of Civil Procedure, dismissing the plaintiffs’ “intrusion upon seclusion” claims against TMD, as there is no genuine issue requiring a trial in relation to those claims. Those particular claims fail on their merits.

Conclusion

85In the result, for the reasons outlined above I find that:

• The plaintiffs’ claims against TMD for negligence, as pleaded, disclose no reasonable cause of action, and the moving defendant is entitled to an order striking those claims pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. In the alternative, the moving defendant is entitled to an order striking those claims as frivolous, vexatious and/or an abuse of process, pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure. In the further alternative, if the allegations in relation to those negligence claims are not struck, the moving defendant is entitled to summary judgment dismissing those claims, as there is no genuine issue requiring a trial in relation to those claims based on the record before me.
• The plaintiffs’ claims against TMD for conspiracy, as pleaded, disclose no reasonable cause of action, and the moving defendant is entitled to an order striking those claims pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. In the alternative, if the allegations in relation to those conspiracy claims are not struck, the moving defendant is entitled to summary judgment dismissing those claims, as there is no genuine issue requiring a trial in relation to those claims based on the record before me.
• The plaintiffs’ claims against TMD for intrusion upon seclusion disclose a reasonable cause of action, as pleaded. However, the moving defendant is entitled to summary judgment dismissing those claims, as there is no genuine issue requiring a trial in relation to those claims based on the record before me.
• Whether the plaintiffs’ claims against TMD are struck or dismissed by way of summary judgment, the outcome is the same. All of the plaintiffs’ pleaded claims against TMD fail, and TMD is entitled to an order dismissing all of the plaintiffs’ claims against it. An order should go accordingly.

Costs

86Because my decision was reserved, the parties were unable to make any submissions regarding costs. If the parties are unable to reach an agreement on costs:

a. the defendants may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision; b. the plaintiffs then may serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the defendants’ written cost submissions; and c. the defendants then may serve and file, within one week of receiving any responding cost submissions from the plaintiff, reply cost submissions not exceeding two pages in length.

87If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

Directions Regarding Service

88At the close of the hearing before me, concerns were raised about challenges associated with the need to serve each plaintiff separately with material, and by the plaintiffs’ reluctance to disclose the location of their current residence.

89In the course of further submissions regarding such concerns, Mr Powell indicated that the plaintiffs would not be opposed to the following further directions regarding future service, which I made orally at the time of the hearing but confirm now:

• Pending further order of the court, where a document needs to be served on both plaintiffs, service may be effected by sending one copy of the document to the plaintiffs jointly, pursuant to the service arrangements indicated herein.
• A copy of this endorsement will be sent via email and regular post to defence counsel and to the Powells, (using the email address provided by Mr Powell in open court but which I will not reproduce here, having regard to the fact this decision may be reported);
• The defendants may serve any further document on the plaintiffs by sending one copy of the document to the Purolator Courier address and/or the Post Office Box address indicated by Mr Powell in open court, (which I once again will not reproduce here, having regard to the fact this decision may be reported).

90If and as necessary, confirmation of the email and mailing addresses provided by Mr Powell in open court may be obtained by requesting a transcript of that portion of the hearing before me.

91Finally, for the sake of clarity, I note that the above directions concerning service do not preclude the parties from seeking further directions and orders in that regard if the arrangements I have put in place prove to be problematic or not effective.

Justice I F. Leach

Date: June 7, 2016

[1] I do this in the present context merely for the sake of convenience. In particular, I am mindful of the reality that TMD formally has taken issue with the manner in which the law firm has been named and identified in the plaintiffs’ pleadings. Nothing herein is intended to resolve that particular issue one way or the other.

2Mr Powell initially suggested that he had been prevented from filing that material by a refusal of the Woodstock court staff to accept it, after the deadlines established by Justice Templeton had passed. However, in response to further questioning from me, Mr Powell then confirmed that he actually had not made any attempt to file the material based on his past experience in relation to late filings. As noted above, Mr Powell also candidly acknowledged that he had not made any attempt to serve his substantial material on the defendants.

3Mr Powell initially indicated to me that he had brought an interlocutory motion seeking leave to appeal Justice Templeton’s decision to the Divisional Court in London. However, in response to further questions, Mr Powell then successively indicated the following: that he actually had served no such motion material on defence counsel; that he had not personally filed any such material with the Divisional Court; and that “to the best of [his] knowledge” he had provided material to “a third party process server”, but actually did not know that he did and “would have to check [his] file”. More generally, he repeatedly indicated that he would “need to check” on his contemplated motion for leave to appeal Justice Templeton’s order, in order to see “whether it was properly filed with the courts”. Counsel for the moving defendant acknowledged having received, from Mr Powell, a brief entitled “Notice of Application for Judicial Review”, bearing the same court file number as this proceeding. However, it had not been served until November 16, 2016; i.e., more than six weeks after the making of Justice Templeton’s interlocutory order, and therefore well outside the time limit prescribed by Rule 61.03(1)(b) of the Rules of Civil Procedure for service of a notice of motion for leave to appeal to the Divisional Court, (assuming the plaintiffs’ material might liberally be constructed as such a notice). Moreover, further inquiries confirmed that the plaintiffs actually had not filed that material with any court. In particular, my review of the complete Woodstock court file revealed no indication of any such filing or attempted filing. Moreover, an attendance at the Divisional Court office by counsel for the moving defendant shortly in advance of the hearing before me, and direct inquiries made of the Divisional Court staff in London during the course of the hearing before me, both confirmed that there in fact had been no filing of any material in the Divisional Court relating to a desired appeal of Justice Templeton’s interlocutory order, or any other form of judicial review involving the parties to this matter.

4See Rule 63.01 of the Rules of Civil Procedure.

5I note that Justice Templeton’s order imposed no deadlines in relation to cross-examination on affidavit material, or the filing of any associated transcript or transcripts. During the course of oral submissions, it was not disputed that Mr Powell served a notice of cross-examination on or about October 6, 2015; that the parties agreed on the moving defendant making two representatives available for cross-examination by Mr Powell; that the cross-examinations initially were scheduled to take place on October 17, 2015, but did not proceed because the reporting service hired by the plaintiffs already had an outstanding invoice with Mr Powell that had not been paid; that the cross-examinations by Mr Powell eventually proceeded on October 28, 2016; that Mr Powell then ordered preparation of associated transcripts on an expedited basis; and that the moving defendant had confirmed its consent if and as necessary to filing of the transcripts whenever they were ready, whether or not the deadline for the plaintiffs’ filing of responding affidavit material had passed.

6In an effort to assist the court, the remaining defendants served and filed a motion record, responding to TMD’s motion. However, that record included nothing but material already filed with the court, (i.e., copies of pleadings, previous court endorsements, previous court orders, and notices relating to party representation by counsel), assembled in one indexed and tabbed package for ease of convenience.

7Without anyone speaking to me about that situation, I had observed it directly while necessarily proceeding between my chambers and the courtroom through the relevant public hallway. (The courtroom in which I was presiding has but one entrance, used by both the public and the judiciary.)

8I note and emphasize that these described measures, adopted in open court and on the record, were the only measures I took that day to address the plaintiffs’ childcare situation. In particular, contrary to a later suggestion made by Mr Powell in open court, after the lunch recess, I did not contact the local Children’s Aid Society or instruct any member of the court staff to do so.

9Although Mr Delorey’s affidavit suggested that the report was available for “free”, counsel for the moving defendant indicated during the hearing before me, as a formal admission made on behalf of his client, that there had in fact been a charge of $14.95 made by Equifax for provision of the report. In particular, in response to correspondence to Mr Saelhof from Mr Powell questioning whether there actually may have been a charge for the report, Mr Saelhof asked Mr Delorey to make further inquiries. Those inquiries revealed that there had indeed been a charge, but one dealt with through a general account process. Prior to the hearing before me, Mr Saelhof accordingly and already had made an appropriate formal correction of Mr Delorey’s earlier affidavit evidence in that regard on the record, at the outset of the cross-examinations mentioned above. During the hearing before me, Mr Powell expressly confirmed that he was content to accept TMD’s indications in that regard as a further admitted fact, and have me proceed on that basis.

10The matter came before me in Woodstock on December 6, 2013, at which time Mr Powell appeared self-representing, seeking injunctive relief to prevent his family from being evicted from the property the following day. In the course of my resulting endorsement, I noted the somewhat confused and formally inappropriate state of the existing pleadings, by which Mr Powell had engaged the court’s process, and the haphazard manner in which the matter had been brought before me. For the reasons indicated in my endorsement, (including a written agreement between the Powells and Mr Shirley Senior dated November 27, 2013, permitting the Powells to stay on the property until December 7, 2013, failing which eviction measures pursuant to the Trespass Act would continue), I denied the extended injunctive relief sought by Mr Powell, but granted a limited stay of the eviction proceedings until 12pm on December 16, 2013, to permit the Powells a brief additional period to make appropriate arrangements for their departure in the wake of my decision.

11A copy of the pleading can be found at Tab 11 of the responding motion record filed by the remaining defendants.

12A copy of the pleading can be found at Tab 12 of the responding motion record filed by the remaining defendants.

13For the sake of completeness, I note that the plaintiffs also allege that TMD bears vicarious responsibility for the conduct of its employees, presumably in relation to all of the torts described in the following summarized allegations.

14See, for example: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; and R. v. Imperial Tobacco Canada, 2011 SCC 42, [2011] 3 S.C.R. 45.

15See for example the first paragraph 85 on “Page 18 or 20”, and the second paragraph 88 on “Page 19 of 20”.

16See, for example: Klar et al, Remedies in Tort, Chapter 16.1, at paragraph 11.

17See, for example: Geo. Cluthe Manufacturing Co. Ltd. v. ZTW Properties Inc. (1995), 23 O.R. (3d) 370 (Div.Ct.), motion for leave to appeal dismissed, [1995] O.J. No. 2721 (C.A.); Brignolio v. Desmarais, [1995] O.J. No. 3499 (Gen.Div.), appeal dismissed [1996] O.J. No. 4812 (C.A.); and Shuman v. Ontario New Home Warranty Program, [2001] O.J. No. 4102 (S.C.J.).

18See Klar et al., Remedies in Tort, Chapter 3, at paragraph 13, and the authorities cited therein, including Canadian Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452.

19In my view, there is no really is no other sensible conclusion to be drawn from Mr Powell’s correspondence of December 16, 2013.