Court File and Parties

COURT FILE NO.: CV-15-005135-00 DATE: 2016 09 01 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ANTHONY GYIMAH, Plaintiff AND: DOMENIC REDA, RICKY SINGH and INVIS INC., Defendants

BEFORE: Trimble J.

HEARD: August 30, 2016

COUNSEL: Courtney Kazembe, for the Plaintiff Ilan Ishai and Grace McKeown, for the Defendants

Reasons for Judgment

[1] The Defendants move to strike the Plaintiff’s action as being frivolous or vexatious, or an abuse of process under Rule 21.01(3)(d) of the Rules of Civil Procedure. They also ask that Mr. Gyimah be prevented from commencing any further actions or proceedings without leave of the court under section 140 of the Courts of Justice Act.

[2] The Defendants say that this action is an attempt by the Plaintiffs to re-litigate that which was decided by Perrell J. on March 30, 2015, from which the Plaintiffs’ appealed, unsuccessfully on October 20, 2015.

The Underlying Facts

[3] The Defendants, Dominic Reda and Ricky Singh, are mortgage agents who provide services through the Defendant Invis Inc. In 2012 they arranged a first mortgage for potential purchasers of a home. The potential purchasers, however, needed further financing for a down payment. Mr. Singh agreed to assist the potential purchasers in obtaining interim financing for the down payment. Since Mr. Reda had worked with M. Gyimah on previous occasions, Mr. Reda contacted Mr. Gyimah, who says that he agreed to provide the funding in return for a) a fee of $1500 for making the loan b) that he would receive a direction from the vendors and the potential purchasers that the $1,500 finder’s fee and the $30,000 loan repayment would be paid to him from the proceeds of the purchase price on closing, and c) liquidated damages on failure to pay the loan on the closing (three days after Mr. Gyimah agreed to make the loan) was $75 per day.

[4] The potential purchasers agreed. The deal was never committed to writing.

[5] Mr. Gyimah says that Messrs. Reda and Singh told him that the deal would close on August 28, 2012, the purchasers were reputable and reliable, and that there was no or very little risk attaching to this loan. He says he relied on these representations in advancing the funds.

[6] Mr. Gyimah advanced the money to the purchasers. The purchasers gave $20,000 of the $30,000 to their lawyer and the remaining $10,000 was paid to the realtor.

[7] On August 28, 2012 Mr. Gyimah requested payment. It was not made. Mr. Gyimah sued.

The Toronto Action:

[8] Mr. Gyimah brought his first action in Toronto, on August 1, 2014, naming as Defendants Messrs. Singh and Reda, Invis, the potential purchasers who borrowed the money, the vendors, and the potential purchasers’ lawyer. The action was framed in contract and guarantee arising out of the oral loan.

[9] Mr. Gyimah pleads that he was approached by Reda about the $30,000 loan, and that he demanded that all parties involved guarantee the loan. He pleads that they discussed his fee, repayment out of the closing funds and that the defendants would pay $75 per day in liquidated damages for every day that the loan repayment was delayed beyond the stated closing date. He did not plead (although he later asserted) that a term of the agreement was that a direction was to be given by the purchasers and vendors that he was to be paid out of the sale proceeds. He pleaded that Messrs. Reda and Singh were not only privy to the contract, but guaranteed it.

[10] In paragraphs 22 to 25 Mr. Gyimah pleads facts that are relevant to matters discussed below. He pleaded in paragraph 22 that he became aware after making the loan that the purchasers and vendors were related to each other, that Reda and Singh did not return funds when demanded, that Singh did not provide the “legal documents which he had taken the responsibility to prepare to protect the plaintiff’s funds”, and that the purchasers’ lawyer did not return funds when they were demanded.

[11] The purchaser’s lawyer interpleaded the $20,000 that the purchasers gave her. It remains with the Accountant for the Superior Court, to the credit of the Toronto action.

[12] Mr. Gyimah moved for summary judgment against Reda, Singh and Invis Inc. Reda, Singh and Invis Inc. cross-motioned for summary judgment dismissing action against them. The motion was heard March 16, 2015.

[13] The learned motions judge, Perrell, J., dismissed Gina’s motion and granted the cross-motion dismissing the action. He held that the loan and the guarantee were unenforceable because they dealt with land and were not in writing as required by section 4 of the Statute Of Frauds. Further, Perrell, J. held that the plaintiff had not proved on the balance of probabilities that he had a contract with Reda, Singh and/or Invis, or that they were guarantors of the contract. Finally, Perrell J indicated that the plaintiff’s loan had a “serious taint” in that it charged an effective interest rate of 60% per annum, a criminal rate of interest.

[14] Mr. Gyimah appealed from Perrell, J.’s decision. That appeal was dismissed.

The Brampton Action:

[15] On November 17, 2015, Mr. Gyimah brought this action in Brampton. In that action, as amended, he claims that he sustained damages because of Singh’s, Reda’s and Invis’ intentional or negligent misrepresentation, deceit and fraud. He also claimed punitive damages.

[16] The Brampton action arises from the same transaction as the Toronto action. The same facts are pleaded as in the Toronto action, but in greater specificity. In addition, Mr. Gyimah pleads in paragraphs 15 through 19 what he calls ‘new facts’ that he says were unavailable to him at the time of that he brought the first action.

[17] Mr. Gyima says that on February 24, 2015 he was served with the Defendants’ response to his summary judgment motion and the Defendants’ cross-motion for summary judgment. That material contained an affidavit from the purchasers’ lawyer which indicated the ‘new facts’ including that the transaction was not scheduled to close on August 28, 2012 as was represented but closed some time in September 2012; the purchasers and sellers were cousins who resided in the sold property; the closing date had been changed many times since July 2012; the lawyer did not prepare the directions for payment as required; the lawyer was given only $20,000 of the $30,000 not the whole of the $30,000.

[18] These facts, Mr. Gyimah says, were contrary to the representations that were made by Messrs. Reda and Singh. He pleads in paragraph 18 that it became clear only in February 2015 on reading the purchasers’ lawyer’s affidavit “… that the purchase and sale was a fiction or a scam to allow the purchasers and vendors to obtain money fraudulently from the lenders and that the defendants were complicit in the scheme to allow the defendants to earn fees at the expense of the plaintiff.”

The Positions of the Parties:

The Defendants/Moving Parties

[19] The Defendants say that the Brampton action is merely a reframing of the Toronto action which Parnell J dismissed, and whose dismissal the Court of Appeal upheld. The Defendants say that based on res judicata, the action should be stayed or, the action is an abuse of process. They say that the plaintiff knew during the life of the Toronto action (or ought to have known with reasonable diligence) all of the ‘new facts’ he alleges that he discovered only on February 24, 2015. He ought to have amended the Toronto Statement of Claim to include these ‘new facts’ and the new legal theories of liability. They say that the plaintiff was clearly aware of a possible claim in misrepresentation as he argued misrepresentation before Perrell, J. Perrell, J. refused to the argument since misrepresentation was not pleaded. The plaintiff did not ask for an adjournment of his summary judgment motion or leave to amend his Statement of Claim.

The Plaintiff/Respondent:

[20] Mr. Gyimah says that the Brampton action advances new causes of action than those pleaded in the Toronto action. Res judicata does not apply. Second, he says, alternately, he had no way of knowing the facts upon which he could plead misrepresentation, deceit, or fraud at the time he commenced the Toronto action. He did not discover these facts until he received the affidavit on February 24, 2015. If the Court finds that he ought to have amended his pleadings, Mr. Gyimah asks for a procedural indulgence from the Court. He says that as a self-represented litigant who was not a lawyer, the Court should forgive him his ignorance of procedural matters. He thought that if he put his new facts and his argument into “court documents”, the court would grant his relief. Finally, he says if the Court finds that the Brampton action is res judicata, he says that this is a case in which the Court should exercise its discretion to allow relitigation.

Decision:

[21] The Plaintiffs’ action is dismissed. Res judicata applies. The action is frivolous and vexatious. It is also an abuse of process as it is an attempt to re-litigate what was decided in the Toronto action. I do not exercise my discretion to allow the action to proceed.

Analysis:

R. 21.01(3)(d):

[22] In order to succeed on a motion under Rule 21.01 it must be plain and obvious that the Statement of Claim is frivolous, vexatious or an abuse of process (see Sussman v. Sussman, (1997) 22 OTC 75 (Gen.Div.)).

Res Judicata:

[23] The Defendants argue that the Plaintiff’s claim should be dismissed on the basis of the cause of action estoppel aspect of res judicata. They say the cause of action in the Brampton action is the same cause of action that was disposed of in the Toronto action. The parties agree on the law.

[24] The parties agree on the law.

[25] In order to succeed on res judicata the defendant must satisfy the four criteria;

a. There must be a final decision of a court of competent jurisdiction in the prior action;

b. the parties to the subsequent litigation must have been parties to, or in privy with the parties to the prior action;

c. the cause of action in the prior action must not be separate and distinct from that in the current action;

d. The basis of the cause of action in the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

(See Elguindy v. Warkworth Institution, 2011 ONSC 4670, at para 27)

[26] The parties agreed that the first two criteria have been met but disagree about the second two.

[27] The Defendants say that the first action is not separate and distinct from the second action. It arises from the same transaction and the same factual situation as the Toronto action. They also say that the ‘new facts’ that support the legal bases for recovery pled in the Brampton action were all known or discoverable before the Toronto action was dismissed and should have been pled in that action. The last two criteria are satisfied.

[28] Ideally one should treat the third and four criteria separately. In this case, however, the second and third elements of the criteria for res judicata are not easily separable. Accordingly, I will treatment together.

[29] The Plaintiff says that the Brampton action advances a separate and distinct cause of action (misrepresentation, deceit and fraud) from the Toronto action (contract and guarantee). Further, the Brampton action arises from new facts which the plaintiff only discovered in February, 2015.

[30] In litigation, litigants are required to put their best foot forward and establish the truth of their allegations. They must advance all causes of action at the same time. They have only one opportunity to advance their claim. As a corollary, the Defendant has the right to have finality in litigation so that he is not faced with the same cause of action a number of times. To allow a plaintiff multiple kicks at the same litigation can, would lead to duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings. (See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at para. 18).

[31] In this case, Mr. Gyimah defines the “cause of action” as the legal theory of liability; that is, misrepresentation, deceit or fraud. He says that these are distinct from those causes of action advanced in the Toronto action.

[32] The Defendants, however, are correct. A “cause of action” is not the legal label or theory of liability that leads to recovery of damages. Rather, the “cause of action” is the facts upon which the legal theory of liability or legal label is based, or which entitle a person to obtain a remedy from another. In Britannia Airways Limited v. Royal Bank of Canada, [2005] O.J. No. 2 (SCJ), Lax, J., looking at cause of action estoppel, said:

[12] The doctrine of res judicata prevents relitigation of matters that have already been determined by a court of competent jurisdiction. There are two branches of the doctrine: cause of action estoppel and issue estoppel. Both branches are founded on the twin principles that the same party shall not be harassed twice for the same complaint and that there is societal value in the finality and conclusiveness of judicial decisions: Angle v. M.N.R., 1974 SCC 168, [1975] 2 S.C.R. 248 at 267.

Cause of Action Estoppel

[13] Cause of action estoppel prevents not only the same cause of action from being litigated again, but also bars claims which properly belonged to the subject matter of previous litigation: Maynard v. Maynard, 1950 SCC 3, [1951] S.C.R. 346. Put another way, “an adjudication of a particular set of facts does not raise an estoppel with respect to every cause of action which is subsequently based on the same facts, but only those claims which properly belonged to the first proceeding”: Sopinka, Lederman, Bryant, The Law of Evidence in Canada, 2nd ed. (Markham: Butterworths, 1999) at 1079.

[14] A cause of action is the group of operative facts giving rise to one or more bases for suing, or the factual situation that entitles one person to obtain a remedy from another. Accordingly, cause of action estoppel operates to prevent a party from attempting to relitigate a case by advancing a new legal theory in support of a claim based on essentially the same facts or combination of facts. Las Vegas Strip Ltd. v. Toronto (City) (1996), 1996 ONSC 8037, 30 O.R. (3d) 286 (Gen. Div.), aff’d (1997), 1997 ONCA 3841, 32 O.R. (3d) 651 (C.A.).

[15] This principle has been applied to bar a second proceeding in Ontario where the same underlying facts were relied on in an action in New York: Peterson v. New York Life Insurance Co., [1992] O.J. No. 2503 (Gen. Div.).

[16] It has also been applied to bar a second proceeding based on breach of fiduciary duty where the first action in contract involved a claim for the same sum of money, arising out of the same relationship and for the same services: Morgan Power Apparatus Ltd. v. Flanders Installations Ltd. (1972), 1972 BCCA 1046, 27 D.L.R. (3d) 249 (B.C.C.A.) at 251; see also Hoque v. Montreal Trust Co. of Canada, 1997 NSCA 153, [1997] N.S.J. No. 430 (C.A.) where the court discusses the relationship between cause of action estoppel and underlying factual allegations. Hoque was followed in Freedman v. Reemark Sterling I Ltd. (2003), 2003 ONCA 17029, 62 O.R. (3d) 743 (C.A.).

[17] Britannia relies on Doering v. Grandview (Town), 1975 SCC 16, [1976] 2 S.C.R. 621 and the decision in Abramson v. Oshawa (City), [1998] O.J. No. 2205; aff’d, [1999] O.J. No. 339 (C.A.) as authority for the proposition that the key consideration is whether the second action sets up a separate and distinct cause of action, regardless of common facts. Grandview was a case where the second action was barred because the plaintiff failed to bring forward all of the facts in the first action and failed to demonstrate why those facts could not have been ascertained with reasonable diligence. The majority held that the plaintiff was suing for the same cause of action in nuisance as before. In Abramson, the second action truly was a separate and distinct cause of action.

[18] In my view, these decisions do not detract from the principle articulated in Las Vegas Strip Club, supra, that cause of action estoppel is not limited to an examination of the claims that were brought or properly belonged to the first action. It is not the legal label, but the underlying factual basis for the claim that counts. A party cannot recast the claim arising out of the same facts using a different legal description without bumping up against the doctrine of cause of action estoppel and, if the parties or privies requirement is met, it will operate to bar the second action.

(see also Elguindy, supra, at para. 29).

[33] In Doering, referred to by Lax, J., the Supreme Court of Canada applied the dicta of Wigram V.C. in Henderson v. Henderson, (1843) 3 Hare 00, 67 All ER 313, who said that a party to litigation must “… bring forward their whole case, and [the Court] will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case.”

[34] In addressing the separate and distinct cause of action aspect of the res judicata four part test, in Las Vegas Strip Ltd. v. Toronto (City) (1996), 1996 ONSC 8037, 30 O.R. (3d) 286 (Gen. Div.), aff’d (1997), 1997 ONCA 3841, 32 O.R. (3d) 651 (C.A.) Sharpe, J. (as he then was) said beginning at paragraph 24:

Does the fact that Las Vegas now relies upon a different legal theory remove the present claim from the reach of the old? In my view it does not. The authorities establish that a litigant cannot establish a new and fresh cause of action by advancing a new legal theory in support of a claim based upon essentially the same facts. As was stated by the Privy Council in Hoystead v. Taxation Commissioner, 1925 UK JCPC 607, [1926] A.C. 155 at pp. 165-66, [1925] All E.R. Rep. 56 (a passage quoted with approval by the Supreme Court of Canada in Maynard v. Maynard, 1950 SCC 3, [1951] S.C.R. 346 at p. 354, [1951] 1 D.L.R. 241 at p. 254, per Cartwright J.):

Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances.

If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle.

I conclude, therefore, that the contentions now advanced by Las Vegas do not constitute a separate and distinct cause of action. There are no new facts, merely new legal arguments, and these could readily have been advanced in the earlier proceeding. To permit Las Vegas to advance them now would run directly counter to the legal rules enunciated in the Henderson, Grandview (Town) and Hoystead cases. It would also, in my view, violate the policies previously mentioned as underlying those rules, namely, the public interest in finality to litigation and the private interest in being protected from repeat litigation.

Moreover, I see no unfairness to Las Vegas in the circumstances. It has been well represented by experienced counsel throughout, and it made certain decisions about how best to present its case. The many cases cited by Las Vegas on the vagueness argument demonstrate that the contention that this very by-law suffers that infirmity is anything but novel. Having had the full opportunity of presenting every available argument in the earlier proceeding, Las Vegas must, in my view, live with its decision to restrict itself to the non-conforming use claim.

Accordingly, whether one views the matter from the perspective of the defences Las Vegas could have asserted to the Zanzibar claim or from the perspective of the arguments it could have advanced in its action against the City, the Las Vegas application is barred by res judicata.

[35] Put another way, res judicata is only available as a defence where the cause of action was the same and, but for the plaintiff’s own negligence, was discoverable and could have been advanced in the first action (See CIBC v. Charbonnages de Ferance Int., 1995 BCSC 521 para. 26).

[36] Even if res judicata applies, relitigation may be allowed, in the proper case. The Court must weigh the concerns of finality of litigation against the individual’s claim that the justice of the case demands relitigation. The discretion to allow relitigation notwithstanding that res judicata applies is used only in exceptional circumstances. Circumstances in which relitigation has been allowed include where there has been a change in the applicable law, a finding of the trial judge that is shown in a later action between other parties to have been erroneous, or the advent of new evidence that meets the test for the admissibility of new evidence (see Boardman v. Pizza Pizza Ltd, 2002 CarswellOnt 2175 (SCJ) para. 44 & 45). This list of factors is not closed. The object of the analysis is to ensure that the orderly administration of justice is not achieved at the expense of real justice in the appropriate case (see Danyluk, supra at para 67; Toronto v. CUPE, 2001 ONCA 24114).

[37] In this case, Mr. Gyima brought a motion for summary judgment against Reda Singh and Invis Inc. He pushed that motion. That motion was heard on March 16, 2005. Mr. Gyimah says that on February 24, three weeks before his motion was heard, he became aware, for the first time, about the ‘new facts’ that support his claim for misrepresentation, deceit and fraud. Therefore, on Mr. Gymah’s own evidence, he could have raised these new theories of liability in the Toronto action, and the new facts on which they were based, had he sought an adjournment of his motion and amended his pleadings. Instead, he chose to pursue the summary judgment motion on the pleading as it stood, with knowledge of those new facts.

[38] In any event, the causes of action that Mr. Gyimah said were new, were not new. There is evidence in the file that indicates he knew during the life of the Toronto action facts upon which he could advance his new legal theories. For example, he pleaded in paragraph 22 of the Toronto action (commenced in August, 2012) that the lender/purchaser’s and the vendors were related and all lived in the same home. This is one of the key facts he relies upon in his Brampton action claiming misrepresentation, deceit, and fraud. He must have thought he was being cheated.

[39] In his first affidavit filed in the Toronto action’s summary judgment motion Mr. Gyima refers to representations that were made to him, the very representations he now complains of as part of his newly discovered causes of action. In his supplementary affidavit, sworn in response to Singh’s affidavit but after he received the lawyer’s affidavit, Mr. Gyimah says that he believes many of the statements made in Singh’s affidavit are false. He says that he knew on reading Singh’s affidavit that the closing did not occur on August 28 as planned. He also knew that the solicitor for the purchasers did not receive the money, contrary to the representations made.

[40] In his cross examination, he also indicated that the defendants were liable in misrepresentation. In his factum, Mr. Gyimah addressed misrepresentation.

[41] In any event, with respect to misrepresentation, as the reasons of Perrell, J. indicate, the plaintiff attempted to argue misrepresentation at the summary judgment motion but was stopped from doing so because the cause of action had not been pleaded. He was clearly aware of misrepresentation as a possible theory of recovery, at that time.

[42] With respect to deceit and fraud, Mr. Gyimah raised it in the factum for the summary judgment motion. In it, he referred to the fact that the money was lent for a “fictitious real estate transaction”. He said that there was no transaction and that the purchase and sale was a fiction to “scam” him out of money or to allow the vendors to obtain money fraudulently.

[43] Accordingly, I find that criteria three and four of the res judicata requirements are met.

[44] Mr. Gyimah says that he, as a layperson, should not be faulted for failing to understand the technical niceties of pleading and to be denied access to quote justice because he is a self-represented party. He relies on the law quoted above that says that discretion to allow something to be relitigated it can be exercised where justice demands it.

[45] I do not accept that Mr. Gyimah did not know how to plead an action. Mr. Gyimah is not an ingénue in litigation. He said in his cross-examination for the summary judgment motion that he has acted for himself as plaintiff in not fewer than 13 cases. The time of his cross examination three were still ongoing. Of the other 10 he had lost only four cases. In those cases he sued an airline, Revenue Canada, the Bank of Montréal, the police, and Toronto Hydro. Even were I to accept that submission, he was told at the hearing of the summary judgment motion that because he had not pleaded misrepresentation he could not argue it. At that point he ought to have asked for an adjournment of the motion so that he could amend his pleadings.

Abuse of process

[46] An abuse of process occurs where a party seeks to relitigate a matter which has already been decided, but where res judicata and issue estoppel do not apply (see Behn v. Moulton Contracting Ltd., 2013 SCC 26 (at 39-41). It also applies to end an action where the causes of action claimed were ones that were known or ought to have been known, and could have been raised in the earlier proceedings (see Reddy v. Oshawa Flying Club, [1992] O.J. No. 1337 (S.C.J.) at p. 5). Generally, to be ‘frivolous and vexatious’, the action must be devoid of merit. To be an abuse of process is different. Abuse of process is a flexible concept arising from the Court’s inherent jurisdiction to control its process, thereby allowing a court to prevent the misuse of its procedure in a way that would be manifestly unfair to a litigant (see Behn, supra, para. 40).

[47] In Currie v. Halton (Region) Police Services Board, 2003 ONCA 7815, [2003] O.J. No. 4516 the Ontario Court of Appeal, commencing at paragraph 10, discusses the application of the frivolous and vexatious rule. At paragraph 11 the Appeal Court refers to Lang Michener et al v. Fabian et al (1987), 1987 ONSC 172, 59 O.R. (2d) 353, in which Henry J. summarized the characteristics of vexatious proceedings:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceedings;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions 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;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of the unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[48] In my view, the Brampton action meets characteristics a, d, and f, above, and therefore is frivolous and vexatious, and constitutes an abuse of process. Mr. Gyimah is litigating issues that were open to him to litigate in the Toronto proceeding.

[49] Further, Mr. Gyimah has not paid the costs orders from the Toronto action and Appeal. Since he has not sought to take further appeals, his bringing the Brampton action and not paying the costs awards in the Toronto action is an abuse. A litigant, having asked the Court for its help, must follow its direction. The cost order is an order, not an invitation.

[50] In the Brampton action, Mr. Gyimah has merely advanced new legal theories of liability, based on facts that he was aware of as of February 24, 2015. A Plaintiff must bring forward in an action all issues arising from a set of facts, which the party ought to have known with reasonable diligence (see Reddy, supra, at pg. 4, Graymac v. Feldman (1990), 1990 ONSC 6939, 46 CPC (2d) 125 (C.A.).

[51] It would be manifestly unfair to the Defendants to force Reda, Singh and Invis to defend this action, arising out of the same facts as the Toronto action, merely because the Plaintiffs either forgot or failed to advance theories of liability in the Toronto action.

[52] Further, the Brampton action is also an abuse as it is a collateral attack on the result in the Toronto action. Perrell, J. held that the loan agreement and guarantee were unenforceable because they were not in writing (Perrell Reasons, para. 31 and 44). He held that Mr. Gyimah had not proved that there was any contract between he and Reda, Singh and Invis Inc. (Perrell Reasons, para. 20, 31 and 44). He also said that the effective rate of interest on the loan (60%) was a criminal rate of interest (Perrell Reasons, para. 32).

[53] Having been told that he has no action in contract, Mr. Gyima seeks another route to recover his losses. Perrell, J., told Mr. Gyimah that he had not proved his oral contract, and in any event, if proved, it was not enforceable as it was only oral. With that news, Mr. Gyimah now seeks to recover damages for loss of money by breach of a contract that was found not to exist (vis-a-vis the defendants in the Brampton action), by saying that he was lulled or tricked into entering into the unenforceable contract by the misrepresentation and deceit of Reda, Singh and Invis.

[54] Mr. Gyimah dictated the terms of the contract. Mr. Gyimah did not put his loan into writing. Therefore, he has no one to blame but himself for the fact that his action in contract against anyone involved, directly or tangentially in the loan transaction, is unenforceable.

Applying Money in Trust

[55] In the Toronto action, the purchaser’s solicitor paid into Court in that action, and to the credit of that action, $20,000 she received of the $30,000 Mr. Gyima advanced. They would like an order that the $20,000 be applied to the cost orders in those actions.

[56] I decline to make this order for two reasons. First, I have no jurisdiction. This motion is brought in Brampton, in a Brampton file. The relief the defendants seek is in the Toronto file and should be brought in that action, in Toronto. Second, I am not satisfied (had I authority to make the order requested) that all interested parties (such as the parties in the Toronto action that are not parties in the Brampton action) have been served with the defendants’ motion.

Costs:

The parties may address who should pay whom costs, and in what amount, in writing. The Defendants’ submissions are due by September 15 and Mr. Gyimah’s by September 22, 2016. Submissions are limited to five pages, excluding bills of costs and cases.

Trimble J. Date: September 2, 2016