Court File and Parties
COURT FILE NO.: 16-68824, 16-68462 DATE: 2016-08-08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bruno Makoundi, Plaintiff AND William Ndze Fuhgeh, Defendant
BEFORE: Justice P. E. Roger
COUNSEL: Self-represented - Plaintiff Self-represented - Defendant
HEARD: August 2, 2016
Endorsement
Overview
[1] The Defendant brings essentially the same motion in both actions, that is a motion to strike both statements of claim, without leave to amend.
[2] The Defendant raises a number of arguments in both actions. He argues that: (a) the statements of claim are an abuse of process; (b) the published statements, alleged to be defamatory in the statements of claim, are protected by absolute privilege; (c) the Plaintiff’s actions are out of time pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24 (the Defendant abandoned earlier arguments under ss. 5 and 6 of the Libel and Slander Act as he since realized that these sections of the Libel and Slander Act are inapplicable); and, as well, (d) he argues that the statements of claim are otherwise inappropriate as they are frivolous and vexatious, plead evidence, not sufficiently particularized or otherwise inappropriate as outlined in his many factums.
In both motions, the Defendant primarily relies upon rules 21.01(1)(a) and (b), 21.01(3)(c) and (d) and 25.11, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[3] The first action, 16-68462, was issued on May 5, 2016 and served on May 6, 2016. It seeks damages for: (1) Fausses représentations, faux usage de faux et usurpation d’identité; (2) Délit d'escroquerie en jugement; (3) Abus d’ester en justice; (4) Insultes publiques et diffamations; (5) Souffrances psychologiques; (6) Dommages et intérêts pour préjudices morals; (7) Dommages et intérêts punitifs et examplaires.
[4] Briefly relating to this first action, the Defendant was the Plaintiff’s lawyer in earlier proceedings before the Federal Court. The Plaintiff, Mr. Makoundi, was unsuccessful before the Federal Court and a costs order was made by that court against both Mr. Makoundi and Mr. Fuhgeh. Mr. Fuhgeh appealed the costs order and this lead to a dispute between the parties (at the time lawyer and client) as to whether Mr. Fuhgeh had appealed in his name the costs amount relating to him or had also appealed in the name of the Plaintiff, Mr. Makoundi.
[5] In this first action, namely 16-68462, the Plaintiff essentially alleges that it was fraudulent for Mr. Fuhgeh to have appealed the costs order in the name of the Plaintiff when the Plaintiff’s instructions to Mr. Fuhgeh before the Federal Court were not to appeal. The Plaintiff also alleges that various correspondence of Mr. Fuhgeh relating thereto were defamatory and that he suffered psychological damages as a result of the fraudulent appeal of Mr. Fuhgeh, as well as other damages.
[6] The second action, 16-68824, was issued and served on June 3, 2016. It seeks damages for alleged defamatory statements and punitive damages. This action is closely related to another action between the same parties, action no. 15-64497 which was instituted by Mr. Fuhgeh against Mr. Makoundi in 2015. Action 15-64497 deals with defamation and punitive damages relating to statements of Mr. Makoundi to the parish priests and to the lawyer for the Lycée Claudel (another action where Mr. Fuhgeh acted for the Mr. Makoundi).
[7] In the course of defending action 15-64497, Mr. Makoundi attempted to file a counterclaim. Counsel for Mr. Fuhgeh in that action indicated that a motion would be necessary as his instructions were not to consent to the late filing of the counterclaim. In turn, Mr. Makoundi issued this action, which, in his words, is exactly the same as the proposed counterclaim. This explains why in this second action the names of the parties are occasionally inverted. Mr. Makoundi appears to have prepared a motion for these two actions to be consolidated, but this motion for reasons unknown was not made returnable before me.
[8] In this second action, (namely 16-68824), Mr. Makoundi as plaintiff complains again about the conduct and correspondence of Mr. Fugheh relating to matters before the Federal Court and about correspondence to priests with regards to changing a godfather along with correspondence relating to the Lycee Claudel, alleging same to have been defamatory.
Applicable Law
[9] On such motions made under Rule 21.01(1), the Court must accept the facts alleged in the pleading as proven or true unless they are patently ridiculous, or incapable of proof. It must be plain and obvious that the claim cannot succeed, or plain and obvious that the pleadings are defective. Stated otherwise, the Court must be satisfied, assuming the facts as stated in the Statement of Claim, that it is plain and obvious that the allegations pleaded are incapable of supporting a cause of action. The Statement of Claim must be read generously, accommodating inadequacy resulting from drafting deficiencies. The standard of pleadings is not perfection.
[10] Pleadings should contain a concise statement of the material facts on which the party relies, but not the evidence by which those facts are to be proven. Historical facts that have no relevance to the claim should be struck as should allegations made solely to cast an opposing party in bad light.
[11] A fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious, but, on the other hand, a pleading that has no material facts is frivolous and vexatious and a pleading that is superfluous or can have no effect on the outcome of the action is also scandalous, frivolous and vexatious. Pleadings that are irrelevant, inflammatory, argumentative or inserted only for colour will also be struck as scandalous. However, as stated, unpleasant allegations of facts that are relevant to a cause of action are not scandalous, frivolous or vexatious.
[12] Leave to amend is usually granted on such motions unless it is plain and obvious that the required particulars or improvements could not be properly pleaded if amendments were allowed.
Analysis and Disposition
A) With regard to the first action - 16-68462:
[13] For the following reasons, I have decided that the appropriate disposition of this part of the motion is to stay action 16-68462.
[14] The gist or the essence of a significant portion of this action is with regards to what happened in Federal Court before various justices of the Federal Court.
[15] The Plaintiff complains of the actions of Mr. Fuhgeh before the Federal Court, particularly in the appeal of a costs award. He claims amongst others that Mr. Fuhgeh should have removed Mr. Makoundi’s name from Federal Court documents, see for example paragraphs 4 to 16 of the Statement of Claim. The Plaintiff, at paras. 17 to 22 of the Statement of Claim, alleges that this was a fraudulent misrepresentation or deceipt (tentative d’escroquerie en jugement). He then alleges that this conduct of Mr. Fuhgeh before the Federal Court constituted an abuse of process of the court or what he qualifies as “abus d’ester en justice” at paras 23 to 26 of the Statement of Claim. He then alleges at paras. 27 to 39 that Mr. Fugheh made a number of defamatory statements in the course of dealing with this appeal of costs.
[16] Much of action 16-68462 is an abuse of process as it asks this Court to relitigate much of what has been already dealt with by the Federal Court. As indicated by the SCC in Toronto v. CUPE, 2003 SCC 63, [2003] 3 S.C.R. 77 at paras 35 to 38, judges have inherent and residual discretion to prevent an abuse of the court’s process, to prevent relitigation which could bring the administration of justice into disrepute. I find that this is applicable to paras. 6 to 26, 44 to 47 and 50 to 54 of this Statement of Claim.
[17] Moreover, this action is also an abuse of process as the Plaintiff makes very similar allegations of defamation here as he makes in the second action, namely 16-68824. Only one such action may be allowed to proceed. As the allegations are wider in action 16-68824, I will allow that action to proceed and I will stay action 16-68462. In order to allow the Plaintiff to plead fully in respect of alleged defamatory statements, I will allow the Plaintiff to add to action 16-68824 what otherwise would have survived this motion provided same is not repetitive.
[18] I therefore make the following rulings, despite the stay, in order to avoid inappropriate amendments to the Statement of Claim in action 16-68824.
[19] Further to the above, I also find that in any event the Plaintiff’s plea of fraudulent misrepresentation, which appears to be the primary substance of his pleas at paras. 6 to 26, on the applicable onus of plain and obvious basis, cannot succeed. This also supports my conclusion that paras. 6 to 26, 44 to 47 and 50 to 54 of this Statement of Claim should be struck, as they relate to the plea of misrepresentation.
[20] Such pleadings of fraudulent misrepresentation (see for example Levac Supply Ltd. v. Norceram Product Inc., 2014 ONSC 5737 at para 12) require that the defendant made a false statement of fact, knowing the representation to be false, with the intention that it should be acted upon by the plaintiff and that the plaintiff acted on the representation suffering damages.
[21] Here, at its highest for the Plaintiff, Mr. Makoundi, there are no allegations that any of these misrepresentations were intended to cause the Plaintiff to act upon them. Rather, it is clear from the pleading (see paras. 17 to 19) that these misrepresentations were directed towards the Federal Court.
[22] The Defendant argues absolute privilege to the plea of defamation and relies upon the Nova Scotia Court of Appeal decision in Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115. I note that the Elliott decision applies to witness immunity and not to the defence of absolute privilege in a defamatory action. While I agree that the gist of this action is what happened in Federal Court, the Defendant provided no authority in support that absolute privilege could apply in this context, between a lawyer and his client. Considering that this was not properly argued before this Court by the Defendant and that this is the Defendant’s motion, for purposes of this motion this argument is dismissed. Absolute privilege may be raised by the Defendant in his Statement of Defence and may be raised at trial where the trial judge will have the required facts, not before me, including those relevant to whether these communications were authorized or part of a recognized judicial process and the impact of any lawyer-client privilege applicable in the context of these communications and relevant to the application of this possible defence.
[23] Para. 28 of the Statement of Claim should be struck as frivolous and vexatious. This is simply irrelevantt.
[24] Para. 38 of the Statement of Claim should be struck as it does not allege that this correspondence was shared with any third party. Publication to a third party is required for a plea of defamation and, consequently, it is plain and obvious that this statement could not be defamatory.
[25] Paras 40 and 41 of the Statement of Claim should be struck as frivolous and vexatious. They appear to plead inadmissible similar facts and in any event are irrelevant and therefore frivolous and vexatious.
[26] Paras 48 and 49 of the Statement of Claim should struck as psychiatric harm is not a separate tort and the plea of fraudulent misrepresentations (fausses representations, faux, usage de faux, usurpation d’identité et escroquerie en jugement) upon which such damages are hereby claimed would have been struck.
[27] Punitive and exemplary damages are available in a defamation action and therefore paras. 50 to 58 would not be struck.
[28] What is left after the above analysis is extremely similar to significant parts of what is alleged in the second action, namely 16-68824. Allowing both actions to proceed would be an abuse of process. As indicated above, considering that 16-68824 is broader, I will allow that action to proceed and will stay this action. As indicated above, the Plaintiff may add to action 16-68824 what would otherwise have survived this motion provided same is not repetitive or otherwise improper when combined with action 16-68824.
[29] In order to assist the parties and the Court in the event of any eventual dispute relating to any amendments to 16-68824, this would have been struck from action 16-68462 had the action not been stayed: (a) The words «fausses representations, faux, usage de faux et usurpation d’identité ainsi que tentative d’escroquerie au jugement » at para. 1 (a) of the Statement of Claim would have been struck and, considering the above, may be replaced with “diffamation”, in the amended Statement of Claim yet to be delivered; (b) All the words after “aux dépens” in the second line at para. 5 would have been struck as frivolous and vexatious and as pleading evidence. (c) Paras 6 to 26 would have been struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded; (d) Paras 44 to 47 would have been struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded; (e) Paras 50 to 54 would have been struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded; (f) Paras 28, 38, 40, 41, 48 and 49 would have been struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded.
CONSEQUENTLY THE FOLLOWING IS ORDERED IN ACTION 16-68462:
(a) Action 16-68462 is hereby stayed. (b) Paragraphs that would not have been struck pursuant to the rulings of this Court may be added to action 16-68824 provided they are not repetitive or otherwise improper in the context of that action. To facilitate this assessment, the following paragraphs would have been struck if this action had not been stayed: (i) The words «fausses representations, faux, usage de faux et usurpation d’identité ainsi que tentative d’escroquerie au jugement » at para. 1 (a) of the Statement of Claim would have been struck and, considering the above, may be replaced with “diffamation”, in the amended Statement of Claim yet to be delivered; (ii) All the words after “aux dépens” in the second line at para. 5 would have been struck as frivolous and vexatious and as pleading evidence. (iii) Paras 6 to 26 would have been struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded; (iv) Paras 44 to 47 would have been struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded; (v) Paras 50 to 54 would have been struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded; (vi) Paras 28, 38, 40, 41, 48 and 49 would have been struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded. (c) Costs of this motion will be addressed in a further endorsement.
B) With regards to the second action, action 16-68824:
[30] The Defendant raises essentially the same arguments on this motion. In addition, he relies upon s. 4 of the Limitations Act, 2002 in regards to some of the allegations.
[31] Considering the argument that this action is an abuse of process, I find that it is, in part, as it pleads again defamatory statement made in the course of proceeding before the Federal Court but, in the specific circumstances of this matter and as indicated above, I will not order a stay as this is not required and can otherwise be dealt with.
[32] A stay should be limited to clear cases. It is clear that the Plaintiff is suing again for statements made in the course of proceedings before the Federal Court. However, considering the above order staying action 16-68462, there will not be any duplication and resulting prejudice if action 16-68824 is allowed to proceed. Although this action is the second action, it is allowed to proceed as the defamatory allegations are wider in scope.
[33] On the issue of abuse of process resulting from the draft counterclaim, allowing this action to proceed will not cause substantial prejudice or injustice to the moving party as the Defendant is not facing a counterclaim in action 15-64497. Even if, in the words of the Plaintiff, this action is the verbatim of a draft counterclaim which he prepared in action 15-64497, he was not allowed to file this counterclaim without bringing a motion. Instead he brought this action. Consequently, the Defendant is not facing two actions, at least not as far as the counterclaim is involved. To ensure that this state of affairs continues, I will also order that a corresponding counterclaim may not be filed in action 15-64497. As such, there will be no duplication and no prejudice to the parties.
[34] Mr. Makoundi appears to have prepared a motion for this action, along with action 15-64497 to be consolidated. However, that motion was not made returnable before me. As counsel for Mr. Fuhgeh in the 15-64497 action did not appear on this motion, I will not make such an order in the absence of a motion. However, I reiterate that an order for these two actions to be tried together or one after the other and to be case managed should be made on consent. This is stated in my reasons, to ensure that any order of costs in the event that a motion on these issues is eventually required considers the above comments.
[35] I do not accept the Defendant’s argument of abuse of process or of issue estoppel that these facts arose from proceedings before the Federal Court and the Church. The Defendant argues that these issues were before the Federal Court and before the Church and therefore that they may not be relitigated in this action. Defamation was not the subject matter of any of these proceedings.
[36] The Defendant’s argument of absolute privilege as a defence to defamation is rejected for the same reasons as stated above in my analysis relevant to 16-68462 on a without prejudice basis. Consequently, the Defendant may raise this defence in this action and the trial judge will be better equipped to rule on its application. This defence raises too many facts in dispute that are not before this Court and which, in any event, should be decided at trial.
[37] Regarding the Plaintiff’s argument that this action or part thereof are out of time, the Plaintiff alleged at the hearing of the motion that he did not have the required capacity to bring an action and consequently that s. 7 of the Limitations Act, 2002 is applicable. However, the Plaintiff did not file any evidence nor did he raise this issue in his factum. At the hearing of the motion, he brought a copy of two medical certificates applicable to the relevant period of time, which at best, indicated that he was not well enough to work.
[38] At their highest, these two statements do not put material facts in issue relevant to the Limitations Act, 2002. These statements do not at all go so far as to suggest that Mr. Makoundi lacked the required capacity. It is well established that Rule 21.01(1)(a) should not be used when there are material facts in dispute better resolved by the trial judge. However, that is not the case. The Plaintiff should have delivered admissible evidence in support of that argument and what he showed the Court at the motion did not put material facts over this question in dispute. Consequently, the allegations going back to 2013 are struck as it is plain and obvious that they are incapable of supporting a cause of action in defamation as they are out of time.
[39] The words «fausses représentations, faux, usage de faux et usurpation d’identité ainsi que tentative d’escroquerie au jugement » at para. 1 (a) of the Statement of Claim are to be struck as they are frivolous and vexatious and irrelevant to the allegations made in the Statement of Claim. They may be replaced with “diffamation”, if an amended Statement of Claim is delivered as this action is a defamation action.
[40] The second para.1 starting with “Depuis 2013” and all ensuing paragraphs up to para. 10 of the Statement of Claim are frivolous and vexatious, and are irrelevant to the allegations made in this Statement of Claim. These issues have as well otherwise been dealt with as indicated above, when dealing with action 16-68462. Further, these paragraphs plead evidence.
[41] Paras. 11 to 13, 51, 52 and para. 56 of the Statement of Claim are frivolous and vexatious as they are irrelevant to the allegations made in this action and, furthermore, they plead evidence.
[42] Paras. 56 to 66 of the Statement of Claim are struck pursuant to Rule 21.01(1)(a) as it is plain and obvious that they are incapable of supporting a cause of action in defamation as they are out of time.
[43] Paras. 67 to 78 are frivolous and vexatious and plead evidence, and as such are to be struck. Para. 79 is struck as repetitive and therefore frivolous and vexatious. Paras. 80 to 83 and 91 are struck as frivolous and vexatious. The second sentence of para. 92, as well as paras. 93 and 94 are struck as pleading evidence and as frivolous and vexatious.
CONSEQUENTLY THE FOLLOWING IS ORDERED IN ACTION 16-68824:
(a) The words «fausses représentations, faux, usage de faux et usurpation d’identité ainsi que tentative d’escroquerie au jugement » at para. 1 (a) of the Statement of Claim are struck and may be replaced with “diffamation”, in the amended Statement of Claim yet to be delivered. (b) The second para. 1 starting with “Depuis 2013” and all ensuing paragraphs up to para. 10 of the Statement of Claim are struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded. (c) Paras. 11 to 13, 51 and para. 52 are struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded. (d) Paras. 56 to 66 of the Statement of Claim are struck without leave to amend as, considering the above reasons, it is plain and obvious that improvements could not be properly pleaded. (e) The following paras. of the Statement of claim are also struck without leave to amend: 67 to 78, 79, 80 to 83, 91, the second sentence of para. 92, as well as paras. 93 and 94. (f) A corresponding counterclaim may not be filed in action 15-64497. (g) The paragraphs that would not have been struck in action 16-68462, had the entire action not been stayed, may be incorporated into an amended Statement of Claim in action no 16-68824 only to the extent that they are not repetitive or otherwise improper, considering the remaining allegations in action no 16-68824. This Court remains seized of any issue arising from any such amendments to this Statement of Claim. (h) Any amended Statement of Claim shall: (i) correct the names of the parties as throughout the Statement of Claim the Plaintiff has interchanged the plaintiff and the defendant; (ii) correct the numbering of the paragraphs and make them consecutive (a number of paragraphs are similarly numbered); (iii) either remove the various headings and titles or incorporate them into the numbered paragraph; and, (iv) use letters or other numbering instead of bullets. (i) The Plaintiff may, by October 14, 2016, serve an amended Statement of Claim in this action that complies with this Order. If the parties cannot agree on the content of such amendments, this Court remains seized and will deal with any such motion as indicated above. (j) Time for the Defendant to deliver a Statement of Defence is extended 20 days from the date of service of an Amended Statement of Claim that complies with this Order.
[44] This Court may review any amended Statement of Claim delivered pursuant to these Orders to ensure that it complies with the Orders of this Court and to ensure that it contains no repetitive or otherwise improper pleading.
[45] The costs of these two motions will either be decided when this decision is discussed with the parties on August 8 or as may then be ordered.