Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
Daniel Irmya, Hilton P. Mijovick in trust, Community Counts Foundation/David Walsh in trust Plaintiffs
- and -
Hilton P. Mijovick, Geoff Pollock & Associates, Nisha Subba, Barrister [sic] & Solicitor, Ian Mackay Thompson, Estate Trustee for Madeline Margaret Field Defendants
BEFORE: F.L. Myers J.
READ: July 15, 2016
Endorsement
[1] By endorsement dated May 31, 2016, reported at 2016 ONSC 3608, the court directed the registrar to send a notice in Form 2.1A to the plaintiff to notify him that the court was considering dismissing this action (including a proposed motion in the action) on the basis that the action and motion are, on their face, frivolous, vexatious, or an abuse of process. The plaintiff has delivered written submissions in support of his claims.
[2] I described the state of the action in my first endorsement as follows:
The plaintiff, Mr. Irmya, issued a Notice of Action on February 29, 2016. In it, he claims: $2.2 million for conversion of his assets/benefit, an order requiring the defendants personally and their companies to produce all of their financial records and related material pertaining to this matter, in the alternative damages for unjust enrichment of $1.555 million, punitive damages of $1.555 million, an order to amend his claim to add additional parties of concern, an order to amend this claim to add additional documents and supporting evidence, an order to bring witnesses if required from all the authoritative government agencies such [as] the CRA, Ministry of Finance, etc., and pre-judgment and post-judgment interest.
The one paragraph body of the Notice of Action provides:
This action arises out of a real estate transaction and benefit between the Plaintiffs and the third party whereas the Defendants and their companies etc. were negligent to protect the Plaintiff’s assets/benefits/businesses/reputation, and proceeded to commit conspiracy and fraud.
The plaintiff has not filed his statement of claim although the 30 days provided for him to do so under rule 14.03(3) have passed.
Instead, the plaintiff has delivered a motion record including a notice of motion for a motion returnable June 15, 2016 before a Master or a judge. The motion seeks a large number of orders including: that Mr. Irmya be allowed to represent the plaintiff trusts (whom he refers to as “trust companies”) until counsel is retained; that Mr. Irmya has a right to a legal representative and a fair trial under the human rights law, the Constitution of Canada, and the Law Society of Upper Canada; that he be allowed to establish a company to refinance 55 Prince Arthur Ave, Unit TH65, in Toronto (the “Unit”); that the defendants provide all communication, verbally and in writing, with all parties, including friends and associates and legal counsel; that the defendant Thompson provide a detailed explanation of certain charges shown on title to the Unit; that if the Unit has been sold, Mr. Thompson be required pay the proceeds into court; and that the defendants’ law firm provide detailed evidence of Hilton Mijovick being defrauded by his deceased wife Madeline Margaret Field with evidence of any cancelled cheque(s) payable to Mr. Evgueni Todorov from Hilton Mijovick or his deceased wife.
[3] Reviewing all of the material filed by the plaintiff made it possible to guess that the plaintiff is claiming that he is entitled to compensation for efforts that he made to try to help Mr. Mijovick refinance his condominium unit. Apparently however, this was an error on the court’s part.
[4] Mr. Irmya delivered submissions that shed little light on the proposed merits of the lawsuit. The submissions are once again highlighted with details of his good charitable works. He also lists a lengthy list of dignitaries with whom he says he has had positive dealings. He enclosed copies of Thank You notes that he has sent to several court officials. On the merits, he simply says that he has been defrauded.
[5] By email dated July 15, 2016, Mr. Irmya expanded on his submissions. It seems that he purports to be acting on behalf of Mr. Mijovick whom he says is old and infirm. He says that to help Mr. Mijovick refinance his property, he expected to buy the condominium unit for $1.85 million. He claims $525,000 which is the difference between his desired purchase price and the sum of $2.375 million, for which the property was recently sold by or on behalf of Mr. Mijovick, his late wife’s estate (or their creditors).
[6] Mr. Irmya also encloses with his email to the court a copy of a lengthy letter dated July 11, 2016 that he has sent to all parties. In it, he discusses his investment losses in an unrelated scheme to import anti-cancer juice and anti-aging cream into Canada. He discusses his recommendations to Premier Wynne to replace the Attorney General in order to better protect society. He discusses his recommendations to Mr. Paul B. Schabas, the Treasurer of the Law Society of Upper Canada, concerning access to justice and the reformation of the legal profession in Ontario. Between this and his discussions of his relationships with Abella J. of the Supreme Court of Canada and the former Chief Justice of Ontario, the Hon. R. Roy McMurtry, he sets out some details of his claim as follows:
This is true evidence in the court of law, that is proving, the defendant's estate lawyer and the beneficiary, Mr. Mijovick, were in financial and in serious trouble and have been threatened by the mortgagee possibly, to go power of sale, according to indications which have been filed by estate lawyer Mr. Thompson, in his statement of defense in paragraph 9. Therefore, Mr. Mijovick is still 100% physically, mentally and spiritually, knows that I, and my team, we were able to bring him financial solutions, which is evident in one of his recent emails, on January 28, 2016, that he will bring us the latest appraisal from his estate lawyer, and also, his message for my birthday on February 18, 2016, leaving me a voice-mail singing me Happy Birthday wishes. I have brought professional lenders and financees [sic], to see the property and inspect it, 55 Prince Arthur Ave TH65, in order to arrange necessary finance required, and to complete our purchase and sale agreement, (as you know, I am not a licensed mortgage broker, and I was there as a special buyer with a special financial structure, between the estate lawyer and the beneficiary, and possibly, make a special arrangement with creditors, such as Mr. Robert Salna, to settle the issue before court action commences, as of February 2015). All the evidences are found in my Motion Book records, for purchase and sale or transferring of the property to me and the new company, which included the co-signer of the loan, arranging finance, Domarina Theresa Malek.
[7] It is apparent that the plaintiff is not seeking compensation for assisting Mr. Mijovick at all. Rather he was proposing to buy the property cheaply to profit on a flip. The plaintiff was conducting due diligence. However, a promise to provide an appraisal and a singing birthday voicemail do not an agreement make. Moreover, as discussed in my prior endorsement, the plaintiff’s motion record discloses that once Mr. Mijovick retained counsel, he rejected the plaintiff’s proposed involvement (which counsel characterized as “grossly exploitive” and “bordering on larceny.”) Instead of selling the condominium unit to the plaintiff for $1.85 million, the property has apparently been sold with the full $2.375 purchase price being available for the benefit of Mr. Mijovic and his deceased spouse (or their creditors).
[8] The court is very concerned about issues of access to justice especially in cases involving self-represented parties. On a Rule 2.1 motion, the court will look closely at the plaintiff’s pleading and submissions to try to discern if there is an actionable basis for a plaintiff’s complaint even if the plaintiff is not able to articulate a claim in legal language. Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 at para. 18. However, one cannot create a cause of action just by claiming financial embarrassment or by blaming lawyers. If the plaintiff cannot afford a lawyer and he wants to sue on his own, he still needs to make a claim that the law recognizes as entitling one person to recover against another.
[9] Nothing in the plaintiff’s good community works, spirituality, or polite gratitude to government officials assist him in suing the defendants. Moreover, an allegedly spiritual or benevolent purpose does not exempt the plaintiff from the requirement of registration as a mortgage broker and allow him to skirt the law by referring to himself as a “special purchaser.” I can discern no basis in the multitude of materials submitted for the plaintiff to advance claims either on his own behalf or for him to purport to do so on behalf of Mr. Mijovick. Nothing in his Notice of Action, his motion material, his submission under Rule 2.1, his recent email, and his letter to all parties explain any basis for a possible lawsuit against Mr. Mijovick, the lawyers for other parties, or the estate trustee of Ms. Field’s estate. At this stage I am not looking for evidence or weighing the strength of a claim. I also ignore the mortgage broker issue which perhaps might be part of a defence to a claim if a proper claim is available. Under Rule 2.1, I am only looking for a plausible basis for which a claim could be pleaded on the face of the pleadings and submissions. In all of the plaintiff’s writing, I am unable to find one. The plaintiff’s claims cannot succeed and are properly characterized as frivolous on their face. See: Gao at para. 22. Moreover, Mr. Irmya’s suing counsel opposite and intermingling his spiritual concerns and community works with his legal proceeding establish a basis to be concerned that an oral hearing process will be subject to vexatious, expensive misuse. His position is long on Madoffian beneficence and short on substantive merit. Accordingly, this is a proper case for the invocation of Rule 2.1. See: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at para. 9.
[10] Therefore, this action is dismissed. The court dispenses with any requirement for Mr. Irmya to approve the form or content of the formal order.
[11] The defendants are entitled to their costs of this action. Submissions of no more than three (3) pages in length plus a Costs Outline may be served on Mr. Irmya and submitted to the court by July 31, 2016. Mr. Irmya may respond by no more than three (3) pages of submissions to be served on the lawyers for all parties who seek costs and submitted to the court by August 15, 2016. Submissions shall be delivered to Judges’ Administration, 361 University Avenue, Room 170, to my attention.
[12] The registrar is to send a copy of this endorsement to Mr. Irmya and counsel for the defendants by email if it has their email addresses in addition to serving the formal order on Mr. Irmya by mail as required by rule 2.1.01(5).
F.L. Myers J. Date: July 15, 2016