Case Summary

The defendants moved to strike the plaintiff's Statement of Claim for failing to disclose a reasonable cause of action or for being frivolous and vexatious. The plaintiff, a self-represented online reporter, claimed damages based on observing an alleged assault, experiencing verbal abuse, and facing police charges that were resolved by a Peace Bond. The court found that the Statement of Claim did not plead a recognized cause of action, specifically rejecting claims for intentional infliction of mental distress, a cause of action for observing an assault on a third party, or malicious prosecution. The court concluded that the claim was plain and obvious to fail and struck the Statement of Claim in its entirety without leave to amend. interesting_citations_summary: > This decision reiterates the high threshold for striking a Statement of Claim, requiring it to be "plain and obvious" that the claim cannot succeed. It applies the three-part test for striking pleadings under Rule 21.01(1)(b) and clarifies the elements required for intentional infliction of mental distress (extreme, flagrant, or outrageous conduct calculated to produce harm, causing harm) and malicious prosecution (initiated by defendant, terminated in plaintiff's favour, without reasonable and probable cause, motivated by malice). The court emphasizes that observing an assault on a third party does not create a cause of action for the observer and that resolving charges with a Peace Bond does not constitute termination in the plaintiff's favour for malicious prosecution. final_judgement: "The defendants' motion is granted. The Statement of Claim is struck in its entirety without leave to amend." winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2017 decision_number: 4310 file_number: "CV-16-5587" source: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4310/2017onsc4310.html" keywords: - Motion to strike - Statement of Claim - Reasonable cause of action - Frivolous and vexatious - Intentional infliction of mental distress - Malicious prosecution - Rules of Civil Procedure - Self-represented litigant - Beach ownership dispute areas_of_law: - Civil Procedure - Torts - Civil Litigation cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/2003/2003canlii52079/2003canlii52079.html" - title: "Hunter v. Bravener, [2003] O.J. No. 1613 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2003/2003canlii1613/2003canlii1613.html" - title: "Holland v. Ontario, [2000] O.J. No. 566 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/2000/2000canlii22460/2000canlii22460.html" - title: "Nash v. Ontario" url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii2934/1995canlii2934.html" - title: "A-G Canada v. Inuit Tapirisat of Canada" url: "https://www.canlii.org/en/ca/scc/doc/1980/1980canlii21/1980canlii21.html" - title: "Dawson v. Rexcraft Storage & Warehouse Inc." url: "https://www.canlii.org/en/on/onca/doc/1998/1998canlii4831/1998canlii4831.html" - title: "Temelini v. Ontario Provincial Police (Commissioner)" url: "https://www.canlii.org/en/on/onca/doc/1990/1990canlii7000/1990canlii7000.html" - title: "Prinzo v. Baycrest Centre for Geriatric Care" url: "https://www.canlii.org/en/on/onca/doc/2002/2002canlii45005/2002canlii45005.html" - title: "Nelles v. Ontario" url: "https://www.canlii.org/en/ca/scc/doc/1989/1989canlii77/1989canlii77.html" - title: "Balanyk v. University of Toronto, [1999] O.J. No. 2162 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/1999/1999canlii14900/1999canlii14900.html" --- # Court File and Parties **COURT FILE NO.:** CV-16-5587 **DATE:** 20170713 **SUPERIOR COURT OF JUSTICE – ONTARIO** **RE:** KEVIN J. JOHNSTON, Plaintiff -and- 2019796 ONTARIO INC., KANAMI HOLDINGS INC., CONNIE ANNETTA, JOHN BODEN, CECELIA BODEN, FRANK BORG, AMY BOWLES, CARMEN BUCCI, TERESA BUCCI, JOHN BUCKBOROUGH, CAROL CARUSO, FRANK CARUSO, CHARLES CONNOLLY, MONICA CONNOLLY, DEBERAH DORSEY, FRANCESCO GAGLIARDI, MARNIA GAGLIARDI, JOSEPH GAGLIARDI, RICHARD GALAS, LINDA GALAS, JASON GARGARO, ADRIAN GARGARO, TONY GARGARO, LINA GARGARO, JAMES HELLYER, JANE HELLYER, KANAMI HOLDINGS, DAVE LAMB, DONNA LAMB, GRANT MCCLEMENT, GERRIE MCCLEMENT, HELEN MCEVOY, BERNARD MCEVOY, CATHERINE MCEVOY, DAN MILLER, ALISON MOFFATT, HENRIE POULIE, CAROLE PULIE, ADAM PROCHILO, DOMINIC PROCHILO, CATHY PROCHILO, KATHLEEN RAFFERTY, DAVID STAINES, ROXANNE STILLS, LARRY TRIFON, NORMA TRIFON, WILIAM WALSH, MICHELLE WATT and RONNIE WYNNE, Defendants **BEFORE:** Ricchetti, J. **COUNSEL:** Mr. Johnston, self-represented H. MacKenzie, for the Defendants **HEARD:** July 12, 2017 --- # Endorsement [1] At the conclusion of submissions, this court granted the motion with reasons to follow. These are those reasons. # The Motion [2] This is a motion brought by the Defendants for an order striking out the Statement of Claim entirely for failing to disclose a reasonable cause of action ([R. 21.01(1)(b) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194)) or dismissing the claim because it is frivolous and vexatious ([R. 21.01(3)(d) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194)). The Defendants seek an order that Mr. Johnston not be permitted to amend without leave of the court. [3] Mr. Johnston did not file any responding affidavit materials. [4] I find it plain and obvious that the Statement of Claim does NOT disclose a reasonable cause of action and cannot succeed. Leave is NOT granted to amend the Statement of Claim. # The Allegations in the Statement of Claim [5] Mr. Johnston is an online or internet reporter. 2019796 Ontario Inc. (201 Inc.) is the registered owner of a strip of land on the beach in Tiny Township (201 Land). The personal Defendants are residents in the same area. [6] No cause of action is pleaded in the Statement of Claim in the traditional sense. [7] Mr. Johnston claims damages in the amount of $500,000. In support of his claim for damages, Mr. Johnston sets out certain facts, which can be summarized as follows: [8] On August 22, 2015, Mr. Johnston witnessed a crime: he observed two residents (two of the 49 named defendants) call a pair of security guards. The security guards, after arriving, assaulted an unnamed third party. [9] Two residents shouted at beach visitors making, what Mr. Johnston asserts are false claims to ownership of that portion of the beach being the 201 Land or near the 201 Land. It is not clear from the Statement of Claim exactly where the beach visitors were at the time. [10] Mr. Johnston was told by others that this type of “verbal abuse” is “common place”. Who told Mr. Johnston is not identified. [11] Mr. Johnston returned to the same area of the beach later that day and was the subject of verbal abuse. Mr. Johnston claimed he was on public land. The persons shouting the verbal abuse, claimed he was on 201 Land, private property. Mr. Johnston alleges that a “man” threatened him. [12] A week later, the police laid charges against Mr. Johnston, not described in the Statement of Claim, but were Mr. Johnston described in his submissions as assault and trespass. The charges were resolved without a trial by Mr. Johnston agreeing to a Peace Bond. [13] Mr. Johnston alleges he has suffered depression as a result of these actions. # The Law [14] [Rule 21.01(1)(b) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) provides that the court may strike out a pleading that discloses no reasonable cause of action. The defendants must show that it is "plain and obvious" the claim cannot succeed. The test is met where: (1) a plaintiff pleads allegations that do not give rise to a cause of action; (2) a plaintiff fails to plead a necessary element of a cause of action; (3) the allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where, in other instances, mere conclusions of law are asserted. See ([Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.J.)](https://www.canlii.org/en/on/onsc/doc/2003/2003canlii52079/2003canlii52079.html) para. 18; [Hunter v. Bravener, [2003] O.J. No. 1613 (C.A.)](https://www.canlii.org/en/on/onca/doc/2003/2003canlii1613/2003canlii1613.html) paras. 3-5, application for leave to appeal dismissed [2003] S.C.C.A. No. 306) [15] On a Rule 21 motion, the allegations as set out in the Statement of Claim, unless blatantly ridiculous or incapable of proof, must be taken as true. Vague allegations or allegations that are assumptions or speculation and which by their very nature incapable of proof by adducing evidence, are not to be taken as true. See [Holland v. Ontario, [2000] O.J. No. 566 (S.C.J.)](https://www.canlii.org/en/on/onsc/doc/2000/2000canlii22460/2000canlii22460.html); [Nash v. Ontario](https://www.canlii.org/en/on/onca/doc/1995/1995canlii2934/1995canlii2934.html), 27 O.R. (3d) 1 (C.A.); and [A-G Canada v. Inuit Tapirisat of Canada](https://www.canlii.org/en/ca/scc/doc/1980/1980canlii21/1980canlii21.html), [1980] 2 S.C.R. 735). [16] The focus on a motion to strike the pleadings is on the substantive legal adequacy of the claim. See [Dawson v. Rexcraft Storage & Warehouse Inc. (1998)](https://www.canlii.org/en/on/onca/doc/1998/1998canlii4831/1998canlii4831.html), 164 D.L.R. (4th) 257 (Ont. C.A.). [17] The court's power to strike a claim is exercised only in the clearest cases. See [Temelini v. Ontario Provincial Police (Commissioner) (1990)](https://www.canlii.org/en/on/onca/doc/1990/1990canlii7000/1990canlii7000.html), 73 O.R. (2d) 664 (C.A.). [18] Where the facts in a claim do not give rise to a cause of action, leave to amend should not be granted because the defect(s) in the claim cannot be cured by amendment. See [Aristocrat Restaurants Ltd. v. Ontario](https://www.canlii.org/en/on/onsc/doc/2003/2003canlii52079/2003canlii52079.html) *supra* at para. 19. # The Analysis [19] The Defendants submit that the Statement of Claim does not disclose a recognized or reasonable cause of action in tort or contract. I agree for the following reasons. ## The personal Defendants/ Threats/Insults [20] The first serious omission is that the Statement of Claim does not set out who the defendants are, their role in what happened and how each (or any) caused or contributed to the damages allegedly suffered by Mr. Johnston. In short, there is no cause of action pleaded against the personal Defendants. In fact, all the personal Defendants, except Lina and Tony Gargaro, are not referred to in facts set out the Statement of Claim other than in the style of cause. No cause of action is pleaded against them. Two other personal Defendants are named but Mr. Johnston doesn’t know which person shouted the statements. In one respect Mr. Johnston does not even know who the person in the “red t-shirt” is. [21] Mr. Johnston states that he was insulted by Lina Gargaro and Tony Gargaro. As for the other personal Defendants, Mr. Johnston does not identify them as having insulted or threatened Mr. Johnston. [22] Reading the Statement of Claim generously, perhaps the claim advanced by Mr. Johnston against those personal defendants he identifies is a claim for intentional infliction of mental distress. [23] The tort of intentional infliction of mental distress or shock has three elements: (1) an act or statement by the defendant that is extreme, flagrant, or outrageous; (2) the act or statement is calculated to produce harm; and (3) the act or statement causes harm. See [Prinzo v. Baycrest Centre for Geriatric Care (2002)](https://www.canlii.org/en/on/onca/doc/2002/2002canlii45005/2002canlii45005.html), 60 O.R. (3d) 474 (C.A.). [24] The requirement that the conduct be calculated to produce harm is met where the maker desires to produce the consequences that follow from the act or statement, or if the consequences are known to be substantially certain to follow. See *Prinzo*. [25] The allegations in the Statement of Claim must be, for the purpose of his motion, measured against these elements of this recognized tort. [26] In my view, no reasonable cause of action for intentional infliction of mental distress or shock can be established. Persons were simply taking firm positions regarding the ownership of the particular portion of the beach. I hasten to add, the evidence on the motion clearly shows that Mr. Johnston has said and published extremely distasteful, unflattering and insulting statements about some of the personal Defendants. [27] The facts set out in the Statement of Claim do not and cannot amount to a reasonable cause of action for this tort. ## The Observed Assault [28] The first portion of the Statement of Claim refers to Mr. Johnston observing someone else, “a man”, allegedly assaulted by security guards. [29] There is no basis in law for a cause of action arising to Mr. Johnston simply because he observed the assault of an unnamed person. [30] The facts in the Statement of Claim do not establish a reasonable cause of action in favour of Mr. Johnston. ## The Charges against Mr. Johnston [31] Mr. Johnston refers to charges being laid by the police against him. Again, reading the Statement of Claim generously, this might be an attempt to allege malicious prosecution. [32] The tort of malicious prosecution has four elements, namely, that the proceedings must have been: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause to commence or continue the prosecution; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect. See [Nelles v. Ontario](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii77/1989canlii77.html), [1989] 2 S.C.R. 170, at pp. 192-194. [33] The first difficulty is that Mr. Johnston was charged by the police not any of the Defendants. The personal defendants simply called the police because of the alleged trespassing on the 201 Land. The police decided to lay the charges. At the heart of the allegations is the ownership of the portion of the beach – an issue which is not to be decided in this claim. [34] The second difficulty is that Mr. Johnston does not describe what charges were laid against him. However, I acknowledge that, if this was the only issue, this is a defect which could be cured by an amendment. [35] The third difficulty is that Mr. Johnston resolved the charges by waiving a trial and agreeing to a Peace Bond. As a result, the prosecution was not resolved in Mr. Johnston’s favour. This issue is insurmountable for Mr. Johnston. [36] The fourth difficulty is that there is no allegation of malice. The issue was a dispute over the ownership of that portion of the beach. Malice, in such circumstances, cannot be shown. [37] I am not persuaded that a cause of action for malicious prosecution has been set out in the Statement of Claim or can reasonably be set out in an amended Statement of Claim. ## The Real Issue [38] From Mr. Johnston’s submissions, it is clear that the real issue is the ownership of a portion of beach. That cause of action has not been pleaded in this Statement of Claim directly, indirectly or cannot be read into the allegations in the Statement of Claim, even if amended, since the amendment would be to plead an entirely new cause of action. ## Conclusion on Striking the Statement of Claim [39] I am satisfied that the Statement of Claim should be struck as disclosing no reasonable cause of action. As a result, it is not necessary for me to go on to deal with whether the Statement of Claim is frivolous and vexatious. # Should leave be granted to amend the Claim? [40] The issue is whether the allegations in the Statement of Claim are capable of amendment so as to comply with pleading requirements in the [Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) and [Balanyk v. University of Toronto, [1999] O.J. No. 2162 (S.C.J.)](https://www.canlii.org/en/on/onsc/doc/1999/1999canlii14900/1999canlii14900.html) at para 46. [41] I am not persuaded that the facts set out in the Statement of Claim set out a reasonable cause of action or even a potential cause of action. I deny leave to amend the Statement of Claim. # Conclusion [42] The motion is granted. The Statement of Claim is struck in its entirety without leave to amend. [43] The Plaintiff’s approval as to form and content of the Order is dispensed with. # Costs [44] The Defendants shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to three pages, with attached Costs Outline and any authorities. [45] The Plaintiff shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to three pages with any authorities relied on attached. [46] There shall be no reply submissions without leave. --- Ricchetti, J. **Date:** July 13, 2017 COURT FILE NO.: CV-16-5587 DATE: 20170713 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KEVIN J. JOHNSTON (Plaintiff) -and- 2019796 ONTARIO INC., KANAMI HOLDINGS INC., CONNIE ANNETTA, JOHN BODEN, CECELIA BODEN, FRANK BORG, AMY BOWLES, CARMEN BUCCI, TERESA BUCCI, JOHN BUCKBOROUGH, CAROL CARUSO, FRANK CARUSO, CHARLES CONNOLLY, MONICA CONNOLLY, DEBERAH DORSEY, FRANCESCO GAGLIARDI, MARNIA GAGLIARDI, JOSEPH GAGLIARDI, RICHARD GALAS, LINDA GALAS, JASON GARGARO, ADRIAN GARGARO, TONY GARGARO, LINA GARGARO, JAMES HELLYER, JANE HELLYER, KANAMI HOLDINGS, DAVE LAMB, DONNA LAMB, GRANT MCCLEMENT, GERRIE MCCLEMENT, HELEN MCEVOY, BERNARD MCEVOY, CATHERINE MCEVOY, DAN MILLER, ALISON MOFFATT, HENRIE POULIE, CAROLE PULIE, ADAM PROCHILO, DOMINIC PROCHILO, CATHY PROCHILO, KATHLEEN RAFFERTY, DAVID STAINES, ROXANNE STILLS, LARRY TRIFON, NORMA TRIFON, WILIAM WALSH, MICHELLE WATT and RONNIE WYNNE (Defendants) ENDORSEMENT Ricchetti J. Released: July 13, 2017