COURT FILE NO.: CV-16-561698
DATE: 20180522
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DIANA VACCA TRUSTEE OWNER RESIGNED TO VITTORIO VACCA
Plaintiff
– and –
SHAWN EVANS, GOLFNORTH PROPERTIES INC., JAYSON SCHWARZ, 45731 ONTARIO INC., DON KIRSH and MAURIZIO OCCHIUTO
Defendants
V. Vacca, on his own behalf and on behalf of the Plaintiff
G. Carr, for the Defendants Shawn Evans and Golfnorth Properties Inc.
J. Goldblatt, for the Defendant Maurizo Occhiuto
HEARD: April 16, 2018
REASONS FOR DECISION
SCHRECK J.:
[1] Vittorio Vacca has initiated an action against the defendants in relation to the sale of some property in 2006. This action is the latest in a series of proceedings concerning this transaction. He was unsuccessful in those proceedings and subsequent appeals from the decisions in those proceedings. While the defendants Shawn Evans and Golfnorth Properties Inc. (“Golfnorth”) have been involved in all of the prior proceedings, in this latest action Mr. Occhiutto has added as defendants lawyers who acted for him on the initial transaction, including the defendant Maurizio Occhiuto.
[2] This decision deals with two motions. First, Mr. Occhiuto moves pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure to have the claim against him struck on the basis that it discloses no reasonable cause of action. He also submits that the claim is statute-barred.
[3] Second, Golfnorth, Mr. Evans and 883890 move pursuant to Rules 21.01(3)(d) and 25.11(b) and (c) to have the action stayed or dismissed on the grounds that it is frivolous, vexatious or otherwise an abuse of the Court’s process.
[4] For the reasons that follow, both motions are granted.
I. FACTS
[5] The history of this matter is set out in my decision on an application to have Mr. Vacca declared a vexatious litigant, which is being released contemporaneously with this decision.[^1] Briefly, Mr. Vacca’s family owned some property near Erin, Ontario which it agreed to sell to Golfnorth. A dispute over the terms of the agreement of purchase and sale led to an application that was heard by Lemon J. in 2013, who found in favour of Golfnorth.[^2] The Vacca family’s appeal was unsuccessful.[^3]
[6] In 2014, Mr. Vacca commenced an action against Golfnorth and other related defendants, during which he raised issues that had already been determined by Lemon J. in the first application. That action and subsequent appeals were also unsuccessful.[^4]
[7] In 2016, Mr. Vacca commenced another action, which is the third proceeding he has initiated in relation to the Erin transaction. The plaintiff is identified as “Diana Vacca trustee owner resigned to Vittorio Vacca” and the defendants are identified as Golfnorth, Mr. Evans (Golfnorth’s president), 457351 Ontario Inc. (which had been an assignee of a vendor take-back mortgage on the property), and three lawyers who had acted for the Vacca family in relation to the transaction: Maurizio Occhiuto, Jayson Schwarz and Don Kirsh.
II. ANALYSIS
A. Mr. Occhiuto’s Motion to Strike
[8] Mr. Occhiuto seeks to the strike the claim against him on two bases: (1) it fails to disclose a reasonable cause of action; and (2) the claim is statute barred under the Limitations Act.
[9] Rule 21.01(1)(b) of the Rules of Civil Procedure provides that a pleading can be struck on the grounds that it discloses no reasonable cause of action. However, pleadings will only be struck where, assuming that the facts being pleaded are true, it is nonetheless “plain and obvious” that it has no reasonable prospect of success: R. v. Imperial Tobacco Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 70; Hunt v. T & N plc, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at para. 21. The rule must be used with care and only claims which are truly hopeless may be struck: Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458, 131 O.R. (3d) 273, at para. 11; Imperial Tobacco, at para. 21.
[10] Mr. Vacca’s Statement of Claim is 27 pages long. Many portions of it appear to have been copied from pleadings in earlier proceedings when Mr. Vacca was represented by counsel. Other portions are incomprehensible. With respect to Mr. Occhiuto, there appears to be an allegation of professional negligence in relation to his role in the sale of the property. However, what Mr. Occhiuto did or failed to do that would constitute negligence is not at all clear. In my view, it is “plain and obvious” that Mr. Vacca’s claim cannot succeed.
[11] A plaintiff will generally be granted an opportunity to amend defective proceedings unless the pleadings contain a “radical defect” such that they could not be improved by amending them: Dawson v. Baker, 2017 ONSC 6477, at paras. 50-55. This is such a case. Mr. Vacca’s claim is largely incomprehensible, which appears to be a common characteristic of the pleadings and other materials he has filed in previous proceedings. They bear some similarity to the pleadings described in Dove v. Canada, 2016 FCA 231, at para. 3:
The legal propositions which Mr. Dove puts forward are incoherent and devoid of any legal meaning. They are the legal equivalent of Noam Chomsky’s famous phrase: “Colorless green ideas sleep furiously.” Each word in the sentence can be given a discrete meaning but the sentence constructed from those words is devoid of intelligible content. So it is with Mr. Dove’s claim. Mr. Dove has assembled words, phrases, and concepts which have some meaning in the context in which they are originally found but have none whatsoever in the use which he has made of them.
As well, insofar as any allegations of negligence against Mr. Occhiuto are decipherable, they lack any particulars.
[12] There is no reason to believe that allowing Mr. Vacca an opportunity to amend the pleadings would result in any improvement. Mr. Vacca therefore does not have leave to amend the pleadings.
[13] Given my conclusions on the motion to strike, it is unnecessary for me to consider Mr. Occhiuto’s motion to have the action dismissed on the basis that it is statute-barred.
B. Golfnorth’s Motion to Dismiss
[14] The defendants Shawn Evans and Golfnorth move pursuant to Rules 21.01(3)(d) and 25.11(b) and (c) to have the action stayed or dismissed on the grounds that it is frivolous, vexatious or otherwise an abuse of the Court’s process. In particular, they submit that this action is simply an attempt to re-litigate issues that have already been determined in prior proceedings.
[15] It is well established that any action which clearly lacks merit may be properly characterized as frivolous, vexatious or an abuse of process. This would include attempts by a party to re-litigate a case that has already been decided: Currie v. Halton Regional Police Services Board (2003), 2003 CanLII 7815 (ON CA), 233 D.L.R. (4th) 657 (Ont. C.A.), at para. 17.
[16] While the plaintiffs in the various actions and applications have differed, it is clear that Mr. Vacca has been directing this litigation throughout. He does not suggest otherwise. Insofar as it relates to Mr. Evans and Golfnorth, this action is a clear attempt to re-litigate the issues that were already decided by Lemon J. in 2013. Indeed, Mr. Vacca admitted as much during his oral submissions at the hearing of the motion. Not only is this an attempt to re-litigate the issues, it is the second attempt to do so, the first having been dismissed by Mossip J. in December 2014. The decisions of both Lemon J. and Mossip J. were affirmed by the Court of Appeal.
[17] In my view, it is plain and obvious that this action has no prospect of succeeding and may properly be characterized as frivolous, vexatious, and an abuse of the Court’s process. As a result, the action is dismissed.
III. DISPOSITION
[18] Mr. Occhiuto’s motion is granted and the claim against him is struck pursuant to Rule 21.01(1)(b) without leave to amend.
[19] Golfnorth’s motion is granted and the claim against it and Mr. Evans is dismissed pursuant to Rule 21.01(3)(d).
[20] If the parties cannot agree on costs, the defendants may file written submissions of no more than three pages within 10 days of the release of this decision. Mr. Vacca may file written responding submissions of no more than three pages within 10 days of receiving the opposing parties’ submissions.
Schreck J.
Released: May 22, 2018.
COURT FILE NO.: CV-16-561698
DATE: 20180522
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DIANA VACCA TRUSTEE OWNER RESIGNED TO VITTORIO VACCA
Plaintiff
– and –
SHAWN EVANS, GOLFNORTH PROPERTIES INC., JAYSON SCHWARZ, 45731 ONTARIO INC., DON KIRSH and MAURIZIO OCCHIUTO
Defendants
REASONS FOR DECISION
Schreck J.
Released: May 22, 2018.
[^1]: Golfnorth Properties Inc. v. Vacca, 2018 ONSC 3174. [^2]: 457351 Ontario Inc. v. Golfnorth Properties Inc., 2013 ONSC 5298. [^3]: 457351 Ontario Inc. v. Golfnorth Properties Inc., 2014 ONCA 382. [^4]: Vacca v. Golfnorth Properties Inc., 2014 ONSC 6972, aff’d 2015 ONCA 418. This action also dealt with the sale of a different property in Fergus, Ontario. Although the Court of Appeal dismissed the appeal with respect to the Erin property, it allowed the appeal with respect to the Fergus property. However, the action was later struck.