Court File and Parties
COURT FILE NO.: 16-69483 DATE: 20160825 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M. S., Plaintiff AND ELIA ASSOCIATES PROFESSIONAL CORPORATION, RICHARD ANATOL ELIA aka RICHARD ELIA, ANTONI GABRIEL CASALINUOVO aka ANTONI CASALINUOVO, MEGAN ALEXANDRA MOLLOY aka MEGAN MOLLOY, ERIC PASCAL PELOT aka ERIC PELOT, Defendants
BEFORE: Mr. Justice Robert N. Beaudoin
HEARD: By Requisition
Endorsement
[1] This requisition was referred to me by the Registrar’s Office pursuant to rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, following receipt of a written request of the Defendants dated August 11, 2016. I note that the Plaintiff was copied with that request.
[2] I have reviewed the Statement of Claim in this matter. It is apparent that the Defendants are being sued with regard to their representation of Carleton Condominium Corporation 116 (CCC 116) in a Small Claims Court action here in Ottawa, and in another proceeding here in the Superior Court.
[3] In her Statement of Claim, the Plaintiff does not identify herself in the title of proceedings although she discloses her identity as Manorama Sennek on the last page of the Statement of Claim.
[4] It is apparent that the Plaintiff’s chief concerns relate to the Defendants’ alleged disclosure of her identity. She seeks a number of items of relief and it is helpful to list these here in order to appreciate the nature of her claims:
- A declaration that the Defendants have violated the Law Society of Upper Canada’s Rules of Professional Conduct;
- A declaration that the Defendants have violated the rights of the Plaintiff and her infant son as set out in the Personal Information Protection and Electronic Documents Act;
- A declaration that the Defendants have violated the privacy and security rights of the Plaintiff and her infant son;
- A declaration that the Defendants have violated Canada’s anti-spam legislation;
- A declaration that the Defendants are frivolous and vexatious litigants;
- An order that the Defendants be enjoined from commencing or defending litigation for making lien claims on behalf of condominium corporations without leave of the Court;
- An order that the Defendants be removed as counsel for of record for CCC 116 and all proceedings in which they are currently acting including but not limited to Ottawa Small Claims Court file number 15-SC-13739 and Ottawa Superior Court file number 15-66501;
- An order that the Defendant disgorge any fees, disbursements, and retainers that the Defendants, or any of them received from CCC 116;
- A declaration that the Defendants are liable to reimburse the Plaintiff for six years of income forgone to establish the Plaintiff and her son in a new residence with new names;
- A declaration that the Defendants are liable to reimburse the Plaintiff for six years of student loans incurred to establish the Plaintiff and her son in a new residence with new names;
- A declaration that the Defendants are liable to pay the Plaintiff for damage to her personal, professional and financial reputation;
- A declaration that the Defendants are liable to reimburse the Plaintiff for loss of future income from the delay in restarting her law practice;
- An order that the Defendants pay to the Plaintiff general damages in the sum of $500,000;
- An order for punitive damages in an amount to be assessed.
[5] Some of the relief should have been sought in the context of the existing proceedings. Her complaints about opposing counsel should be directed to the Law Society of Upper Canada. Ours is an adversarial system and the conduct of the parties during litigation is governed by the Rules of Civil Procedure. In addition, counsel are bound by their respective Rules of Professional Conduct and their duties as officers of the court. The Plaintiff does not plead any breach of these rules. For the most part, there is an insufficient pleading of fact to give rise to any cause of action against these Defendants. As Justice Myers held in Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, [2015] O.J. No. 307 at paragraph 14:
… re-litigating issues and adding parties opposite who were involved in the first case to try to do so are recognized signs of vexatious and is that invite scrutiny under rule 2.1.
[6] As a general rule, a decision to dismiss a claim as being frivolous, vexatious or an abuse of process pursuant to the attenuated process of Rule 2.1 should be limited to a simple review of the pleading on its face. There are cases however, where the Court may be aware of other proceedings involving the same plaintiff and that information may be relevant to the application of Rule 2.1.
[7] In this case, the Plaintiff’s ability to conduct the Small Claims Court action as well as her Superior Court claim against CCC 116 has been considered by Justice Kershman in Sennek v. Carleton Condominium Corp. 116, 2016 ONSC 1848. On March 15, 2016, Justice Kershman found that there were grave concerns with respect to the Plaintiff’s ability to conduct the matter before him as well as the related Small Claims Court action. He accordingly ordered an assessment of the Plaintiff in accordance with s. 105 of the Courts of Justice Act, RSO 1990 c. C. 43 and directed that the assessor advise the Court with respect to the Plaintiff’s ability to understand information relevant to making decisions with respect to those proceedings and her ability to appreciate the reasonably foreseeable consequences of a decision or a lack thereof.
[8] This new action was commenced following the release of Justice Kershman’s decision. On August 2, 2016, I dismissed the Plaintiff’s motion for leave to appeal Justice Kershman decision to the Divisional Court. [1] The Plaintiff does not make any reference to that decision nor does she indicate that the assessment has been completed.
[9] It is apparent on the face of the Statement of Claim and from other decisions of this Court that this action may be frivolous, vexatious, and an abuse of process of the Court and resort to rule 2.1 is appropriate.
[10] I therefore make the following orders:
- Pursuant to sub-rule 2.1.01(3)(1), the Registrar is directed to give notice to the Plaintiff in Form 2.1A that the Court is considering making an order under sub-rule 2.1.01 dismissing the action;
- Pending the outcome of the written hearing under rule 2.1 or further order of the court, the Plaintiff’s action is stayed pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C 43;
- The Registrar shall accept no further filings in this action excepting only the Plaintiff’s written submissions if delivered in accordance with sub-rule 2.1.01(3);
- In addition to the service by mail required by sub-rule 2.1.01(4), the Registrar is to serve a copy of this Endorsement and a Form 2.1A notice on the Plaintiff and counsel for the Defendants by email if it has their email addresses.
Mr. Justice Robert N. Beaudoin Date: August 25, 2016