COURT FILE NO.: CV-18-1291-00
DATE: 20180925
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DARREN JOHN v. SNEET SAMUEL
BEFORE: DALEY, RSJ.
COUNSEL: Darren John, not in attendance
Rebecca Bush and Rebecca Curcio, for the Defendant
HEARD: September 24, 2018
E N D O R S E M E N T
[1] The defendant brought a motion seeking to dismiss the plaintiff’s action pursuant to Rule 21 as frivolous, vexatious and an abuse of process or, in the alternative for an Order striking out the statement of claim pursuant to Rules 21 and 25 of the Rules of Civil Procedure, without leave to amend.
[2] I appointed myself as the case management judge pursuant to Rule 37.15. The plaintiff has been self-represented throughout.
[3] A case conference was held on August 2, 2018 with respect to the scheduling of the defendant’s motion including the setting of a timetable for the serving and filing a motion materials by both parties.
[4] The plaintiff did not attend the case management conference scheduled for August 2.
[5] By way of an email of August 3, 2018 at 7:25 PM sent by the plaintiff to my administrative assistant, without my prior authorization pursuant to Rule 1.02, he advised he would not attend on the return of the defendant’s motion, unless I recused myself.
[6] At no time did the plaintiff bring a motion seeking that I recuse myself.
[7] In accordance with the timetable established at the case management meeting of August 2, the defendant served her motion record, factum and book of authorities on the plaintiff by both courier and personal service upon the plaintiff’s mother at the address he reported residing at. Affidavits of service dated September 6 and 7th, 2018 were filed.
[8] The plaintiff filed no material in response to the defendant’s motion.
[9] Upon return of the motion before the court on September 24, 2018, the plaintiff did not appear. He was paged by the Registrar without any response and the motion proceeded in his absence.
Evidentiary Record:
[10] The defendant moves pursuant to Rule 21 on the basis that the plaintiff’s statement of claim is an abuse of process, pleads bald and scandalous allegations, includes causes of action that are not recognized at law and fails to properly plead the elements of the torts alleged and as such the plaintiff‘s action should be dismissed or the statement of claim struck without leave to amend.
[11] The plaintiff issued his statement of claim at the court in Brampton on March 26, 2018 naming the defendant Sneet Samuel, a part-time employee of the YMCA, who, at the time in question, worked at the Mississauga YMCA Health, Fitness and Recreation Centre.
[12] On December 29, 2016 the plaintiff filed an application against the YMCA with the Human Rights Tribunal of Ontario (“HRTO”) alleging that it had discriminated against him on the basis of his race because he was denied access to the YMCA’s gym.
[13] October 12, 2017, the HRTO advised that the hearing of the plaintiff’s application was scheduled for April 3, 2018 and that all Arguably Relevant Documents were to be sent to the parties by November 2, 2017. The YMCA delivered its documents accordingly.
[14] Included in the Arguably Relevant Documents sent to the plaintiff on November 2, 2017, was the YMCA‘s Incident Report dated December 31, 2016, which report was authored by the defendant. This Incident Report is an internal business record of the YMCA and is not published.
[15] On February 21, 2018 the plaintiff advised the YMCA administration that he would be filing an action for defamation and falsified documents in relation to the Incident Report that had been filed with the HRTO. On March 13, 2018 and an unissued statement of claim naming the defendant in this action was sent to the YMCA by the plaintiff who stated that if a “full retraction” was not issued by March 16, 2018 the defendant would be served with the statement of claim.
[16] The plaintiff’s statement of claim was issued on March 26, 2018.
[17] On March 29, 2018, YMCA made a Request for an Order during Proceedings in the HRTO application seeking to have the plaintiff’s application dismissed on the basis that it was vexatious and an abuse of process.
[18] On April 17, 2018 the Tribunal issued an interim decision by the Adjudicator Cook, who determined that the plaintiff had abused the Tribunal’s process by threatening the YMCA and its witnesses with unwarranted legal proceedings and further by improperly using a document disclosed under the Tribunal’s rules to commence another proceeding in violation of Rule 3.3 of the HRTO Rules. In his order the adjudicator ordered that the plaintiff not use documents obtained through disclosure by the YMCA under the Tribunal’s Rules for any other purpose.
[19] The plaintiff’s HRTO hearing concluded on June 25, 2018 and the Tribunal released its decision on July 26, 2018 and dismissed the plaintiff’s application.
[20] The plaintiff’s statement of claim advances numerous causes of action, including defamation, libel, slander, intentional infliction of emotional distress, negligent infliction of nervous shock, as well as allegations of malice and bad faith.
[21] Additionally, the statement of claim asserts claims that are not recognized at law including “racial profiling” “reckless in the action of lying”; “recklessly ignoring her morals”; “lying for her employer to gain financial remuneration”; and failing to retract the alleged false statement when given the opportunity to do so.
Analysis:
[22] For the reasons outlined below, I have concluded that the plaintiff’s action must be dismissed.
[23] The following three issues were considered in reaching this conclusion:
(a) Is the plaintiff’s claim frivolous, vexatious or an abusive process?
(b) Does the claim fail to comply with the rules of pleadings pursuant to Rule 25.06?
(c) Does the plaintiff’s statement of claim disclose a reasonable cause of action?
Is the Claim Frivolous, Vexatious and an Abuse of Process?
[24] A frivolous action has been defined to include a claim lacking the legal basis or legal merit, which is not serious and not reasonably purposeful. A pleading is vexatious if it is commenced without any reasonable ground. A vexatious suit has been further defined as one instituted maliciously and without good cause. An abuse of process, on the other hand, calls upon the Court to control its process and prevent the abuse of procedures that would place the administration of justice into disrepute: Castonguay Construction (2000) Ltd. v. Commonwealth Plywood Co. 2012 ONSC 3487; Rule 21.01 (3) (d).
[25] The court has inherent jurisdiction and power to determine whether a proceeding is an abuse of process. See Currie v. Halton Regional Police Services Board [2003] O.J. No. 1416 (C.A), where Armstrong JA stated at para 16 – 18 as follows:
[16] In discussing the inherent power of the court to invoke the doctrine of abuse of process, apart from rule 21.01(3)(d), Finlayson J.A. for the majority in Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds (2002), 2002 SCC 63, 220 D.L.R. (4th) 466, [2002] S.C.C. 63 at para. 31 stated:
The court can still utilize the broader doctrine of abuse of process. Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.
Goudge J.A. for the minority in the same case, stated at paras. 55 and 56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirement of concepts such as issue estoppel. See House of Spring Gardens Ltd. V. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All. E.R. 990 (C.A.).
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.
It is obvious that Finlayson and Goudge JJ.A. were ad idem in respect to the nature of the doctrine of abuse of process. The majority judgment was reversed in the Supreme Court of Canada but not in respect to the discretionary nature of the doctrine.
[17] It is apparent that there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction.
[18] I am mindful that when the court invokes its authority under rule 21.01(3)(d) or pursuant to its inherent jurisdiction to dismiss or stay an action, it does so only in the clearest of cases. See Sussman v. Ottawa Sun, [1997] O.J. No. 181 (Gen. Div.) at paragraph 21.
[26] I find as a fact on the uncontradicted evidence that is the plaintiff’s a statement of claim was issued in abuse of the court’s process. The plaintiff sent the unissued claim to the YMCA in the course of the ongoing Human Rights Application threatening litigation against the YMCA if the defendant in the within action did not retract the document produced under the Tribunal’s rules.
[27] The plaintiff then issued the within statement of claim when the defendant did not retract the document as demanded by the plaintiff. Further, the Tribunal found that the plaintiff improperly used a document, namely the Incident Report contrary to the Tribunal’s rules. Further, the plaintiff has taken no steps whatsoever to seek to either discontinue or dismiss the within proceeding following the order by the Tribunal.
[28] It is clear and obvious that the plaintiff’s purpose in issuing the statement of claim against the defendant was with a view to manipulate and threaten the defendant and the YMCA into retracting evidence adduced in the HRTO proceeding and as such the continuation of this action would bring the administration of justice into disrepute.
[29] On this ground standing alone, the within action should be dismissed.
[30] Turning to the plaintiff’s pleading itself, I have concluded that it does not define or clarify the issues, give notice of the case to be met by the defendant, apprise the court as to what is in issue nor create a permanent record of the issues raised in the action so as to prevent further litigation upon matters that have already been adjudicated: Aristocrat Restaurants v. Ontario, [2003] O.J. No. 5331.
[31] The statement of claim in its entirety fails to comply with the requirements of Rule 25.06 (8).
[32] The statement of claim contains allegations that are irrelevant, argumentative, inflammatory inserted for colour and inserted to humiliate and as such should be struck: Green v. Transamerica Life Canada, 2015 ONSC 5430.
[33] Further, a pleading which has as its sole purpose to cast opposing parties in a bad light should be struck: Canadian National Railway Co. V. Brant, 2009 32911 (ON SC), [2009] O.J. No. 2661.
[34] Additionally, the statement of claim is filled with bald allegations and embellished and inflammatory statements that are in breach of the rules of pleading. I refer to and adopt the list of pleading violations identified in paragraph 36 of the moving defendant’s factum. On this basis as well the plaintiff’s pleading must be struck.
[35] The statement of claim further fails to disclose any reasonable cause of action as required by Rule 21.01 (1) (b). The allegations are legally insufficient in framing known causes of action and further where specific causes of action are referenced the statement of claim fails to plead the necessary legal elements of the cause of action referenced: Deep v. Ontario, [2004] O.J. No. 2734, aff’d [2005] O.J. No. 1294 (C.A.).
[36] The plaintiff’s claims with respect to defamation, libel, slander, intentional infliction of mental distress, negligent infliction of mental nervous shock, and conspiracy are all defective in that the alleged causes of action are not properly articulated including the constituent elements of each cause of action along with material facts in support of those alleged causes of action: see Hope v. Gourlay, 2015 SKCA 7; Carbone v. DeGroote, 2014 ONSC 6146; Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 215 DLR (4th) 31; Mustapha v. Culligan of Canada Ltd. , 2008 SCC 27; Aristocrat Restaurants, supra; Tran v. University of Western Ontario, 2015 ONCA 295.
[37] I have concluded that it is plain and obvious that the claim cannot succeed and it should be struck, quite apart from my earlier conclusion that the claim, in and of itself, is an abuse of process.
[38] The plaintiff has asserted claims based on causes of action not recognized at law, including “racial profiling”. An allegation of racial animus is similar to an allegation of fraud, misconduct or dishonesty, without any particulars whatsoever and as such the claim in that respect must be struck in any event: Hamalengwa v. Duncan, [2005] O.J. No. 851.
[39] I have further concluded that even if the statement of claim were not struck as an abuse of process warranting the dismissal of this action, the statement of claim should be struck without leave to amend, in view of the magnitude of the deficiencies in the pleading: Mudrick v. Mississauga Oakville Veterinary Emergency Professional Corp., [2008] O.J. No. 4512.
[40] In the result, I have concluded that the statement of claim must be struck and the action dismissed.
[41] With respect to costs, I have considered the Costs Outline submitted by counsel for the defendant wherein costs of the proceeding were sought on a partial indemnity basis. The defendant seeks costs in the total sum, including disbursements and HST of $17,090.21. I have concluded that the costs incurred by the defendant are fair, reasonable and proportionate and that the costs were increased due to the conduct of the plaintiff in lengthening the proceeding and refusing to grant the consent to counsel for the defendant extending the time for the filing of the statement of defence. The plaintiff refused to participate in the case management conference, file material in response to the defendant’s motion or to attend on the motion itself, all of which increased the costs incurred by the defendant in defending this action.
[42] An order shall therefore issue dismissing the action for the reasons expressed and awarding the defendant costs in the all-inclusive sum of $17,090.21 payable by the plaintiff.
[43] Approval of an order to follow these reasons as to form and content is dispensed with given the plaintiff’s refusal to participate in this action and comply with orders of this court.
Daley RSJ.
DATE: September 25, 2018
COURT FILE NO.: CV-18-1291-00
DATE: 20180925
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DARREN JOHN v. SNEET SAMUEL
BEFORE: Daley, RSJ.
COUNSEL: Darren John, not in attendance
Rebecca Bush and Rebecca Curcio, for the Defendant
ENDORSEMENT
Daley, RSJ.
DATE: September 25, 2018