Clancy v. Farid, 2018 ONSC 7482

Court File and Parties

Court File No.: CV-17-587516 Date: 20181221 Superior Court of Justice – Ontario

Between: TRACY CLANCY, BRENT SCHRECKENGOST, MONICA PLATA, FAHRIN JAFFER, JAMAL RAZA, JACQUES CONAND, MOSFIQUR (MO) RAHMAN, MIRA MCDANIEL, TALIE DANG-LU, NICOLE CERANNA, PHILIP COOKSEY, MARIANNA GUROVICH, DANIEL CHRISTOPHER KOLOSKI, ALVIE BERT KRAATZ III, MICHAEL MONTGOMERY, NICOLE PALMER, MARY CELESTE (MC) DIDONE, DAVID LYNN, SURYA PANDITI, LAURA LEIGH SCHNEIDER, MARI SULLIVAN, MEERA GANESH, MICHAEL REMZA, JAVED KHAN, MARJORY REMY, CASSANDRA LONG, KIRSTEN HILL, RUBA BORNO, PAULA CAO, BOBBY NANDA, RUCHI ECHEVARRIA, MICHAEL GINN, FELICIA GLACE, ROBYN MATOS/HOLLAND, ANGELA BARNES COOLIDGE, COLIN KINCAID, MACIEJ KRANZ, MARC ALDRICH, KARTHIK SUBRAMANIAN, HEATHER VICKERS, STACIE TORELLO WILK, MARY CATHERINE HUDSON, CHAD ALAN TROUT, KATHLEEN NOONAN, SHAUNA DALY, KEVAN BLANCO, MIRIAM DRUMMOND, CHEYENNE DEVERNA, CHRISTINE FENG, DAN GROSSMAN Plaintiffs

- And - TANVIR FARID a.k.a. TANVIR ISLAM Defendant

And Between: TANVIR FARID a.k.a. TANVIR ISLAM Defendant / Plaintiff by Counterclaim

- And - TRACY CLANCY, BRENT SCHRECKENGOST, MONICA PLATA, FAHRIN JAFFER, JAMAL RAZA, JACQUES CONAND, MOSFIQUR (MO) RAHMAN, MIRA MCDANIEL, TALIE DANG-LU, NICOLE CERANNA, PHILIP COOKSEY, MARIANNA GUROVICH, DANIEL CHRISTOPHER KOLOSKI, ALVIE BERT KRAATZ III, MICHAEL MONTGOMERY, NICOLE PALMER, MARY CELESTE (MC) DIDONE, DAVID LYNN, SURYA PANDITI, LAURA LEIGH SCHNEIDER, MARI SULLIVAN, MEERA GANESH, MICHAEL REMZA, JAVED KHAN, MARJORY REMY, CASSANDRA LONG, KIRSTEN HILL, RUBA BORNO, PAULA CAO, BOBBY NANDA, RUCHI ECHEVARRIA, MICHAEL GINN, FELICIA GLACE, ROBYN MATOS/HOLLAND, ANGELA BARNES COOLIDGE, COLIN KINCAID, MACIEJ KRANZ, MARC ALDRICH, KARTHIK SUBMRAMANIAN, HEATHER VICKERS, STACIE TORELLO WILK, MARY CATHERINE HUDSON, CHAD ALAN TROUT, KATHLEEN NOONAN, SHAUNA DALY, KEVAN BLANCO, MIRIAM DRUMMOND, CHEYENNE DEVERNA, CHRISTINE FENG, DAN GROSSMAN, MAANIT ZEMEL A.K.A. MA’ANIT TZIPORA ZEMEL, HEXIGENT CONSULTING INC., RYAN DUQUETTE, JASON GREEN Defendants by Counterclaim

Before: L. A. Pattillo J.

Counsel: Maanit Zemel, for the Plaintiff David Silver, for Maanit Zemel, Defendant by Counterclaim Heather Grey, for Hexigent Consulting Inc., Ryan Duquette and Jason Green, Defendants by Counterclaim Tanvir Farid – Self-Represented Defendant

Heard: December 10 and 11, 2018

Endorsement

Introduction

1This Endorsement deals with a number of motions brought by the plaintiffs and defendants to the Counterclaim in this Action.

2The plaintiffs seek the following relief:

a) Continuation until trial of the interlocutory injunction against the defendant Tanvir Farid (“Farid”) granted ex-parte by Archibald J. on December 4, 2017;

b) Amendment of the Order of Archibald J. dated December 11, 2017 to provide that Farid assist the plaintiffs in removing or causing to be removed Defamatory Content and Defamatory Postings, both defined, from the Internet and specific search engines;

c) In the Alternative to (b), a mandatory order requiring Farid, among other things, to remove or cause to be removed all of the Defamatory Content and Defamatory Postings listed on Schedule “A” to the Injunction Order;

d) Amendment of the December 11, 2017 Order to delete paragraph 8 thereof;

e) A review of the execution of the Anton Piller Order granted ex parte by Archibald J. on December 4, 2017;

f) An order granting the plaintiffs access to the data seized from Farid in the execution of the Anton Piller Order and preserved in accordance with its terms;

g) A finding that Farid failed to comply with the provisions of the Anton Piller Order; and

h) An order striking Farid’s Counterclaim in the action in its entirety, without leave to amend on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious.

3The remaining defendants by Counterclaim, Maanit Zemel, counsel for the plaintiffs, Hexigent Consulting Inc. (“Hexigent”), Ryan Duquette (“Duquette”) and Jason Green (“Green”) also move for orders striking the Counterclaim against them in its entirety, without leave to amend, also on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious.

Background

4On November 29, 2017, the plaintiffs (50 in total) commenced this Action seeking, among other things, damages for defamation together with injunctive and mandatory relief to remove all defamatory content posted on the Internet about them and prevent any further postings. The plaintiffs allege that Farid is the author of the defamatory postings.

5The Statement of Claim alleges that from at least 2012, Farid engaged in a malicious campaign to cyberbully the plaintiffs (and others) through publication of thousands of webpages containing defamatory content. The defamatory content included the most egregious forms of meanings, including the plaintiffs are pedophiles, child molesters, and rapists, engage in the sex trade, sexually assault or harass others, have sexually transmitted diseases, commit adultery, are engaged in criminal activities, are sexually promiscuous, have engaged in fraud and/or misappropriation, and are racist, homophobic and xenophobic.

6On December 4, 2017, the plaintiffs brought an ex parte motion for both an Anton Piller order permitting the entry and search of Farid’s residence and an interlocutory injunction enjoining Farid from placing further defamatory postings on the Internet and requiring him to remove them or assist the plaintiffs in doing so.

7The plaintiffs’ ex parte motion record encompasses 11 volumes, and contains the affidavit of Duquette, a principal of Hexigent, a digital and forensic private investigation firm together with the affidavits of each of the plaintiffs.

8Hexigent was retained by the plaintiffs in July 2017 for the purpose of determining the identity of the person or persons who were responsible for the defamatory postings. After an extensive investigation, Hexigent issued a final report on November 29, 2017, which concludes that Farid is the person responsible for the postings.

9On December 4, 2017, Archibald J. granted a combined Anton Pillar Order permitting the entry and search of Farid’s residence and an interlocutory injunction restraining Farid from placing further defamatory postings on the Internet (the “APO/Injunction Order”). In a brief endorsement, Archibald J. concluded, among other things, based on the material filed, that the plaintiffs had established a strong prima facie case that Farid was the individual who published the defamatory material on the Internet and that no discernable defence of fair comment, qualified privilege, truth or justification appeared to exist. He further concluded that the plaintiffs had suffered and will continue to suffer very serious damage if the postings were to continue and that the balance of convenience favours the plaintiffs. Finally, he concluded that the evidence supported the issuance of the APO/Injunction Order.

10Notably, in issuing the APO/Injunction Order, Archibald J. struck out paragraphs 35 to 38 of the draft order requiring that Farid immediately remove or cause to be removed the defamatory postings from the Internet; assign and grant in writing all copyright in the postings to the plaintiffs and assist the plaintiffs in obtaining removal of the defamatory material. The learned judge noted that those matters should be considered on the return of the motion.

11The APO/Injunction Order provided that it was in force for seven days from December 4, 2017.

12On December 5, 2017, the APO/Injunction Order was executed at Farid’s residence. As provided by the APO/Injunction Order, the entry and search was directed and overseen by Mr. David Lipkus, who was the appointed Independent Supervising Solicitor (“ISS”). Duquette and Green together with two plain clothes police officers accompanied the ISS in the execution of the APO/Injunction Order. Various electronic devices were obtained, removed for copying and returned to Farid within 24 hours. On December 6, 2017, the ISS filed a report concerning the execution of the APO/Injunction Order.

13On December 11, 2017, the APO/Injunction Order came back on before Archibald J. Farid was present and sought an adjournment to retain counsel. The injunction part of the APO/Injunction Order was accordingly extended to January 16, 2018. In addition, at the request of the plaintiffs, and based on a review of the material filed, Archibald J. issued the December 11, 2017 Order which, among other things, declares that the defamatory postings “constitute salacious, outrageous and malevolent defamation” and further provides that the plaintiffs may take all reasonable actions to remove the defamatory postings. Archibald J. declined the plaintiffs’ request that Farid be ordered to assist them in such actions.

14The December 11, 2017 Order also incorporated the injunction portion of the APO/Injunction Order and extended the injunction to prevent publication of any words or statements concerning the plaintiffs’ lawyers or investigators.

15Finally, the December 11, 2017 Order further extended the APO portion of the APO/Injunction Order to include a specific automobile owned by Farid’s family and provided that the evidence delivered up to the ISS was to be held in the custody of the ISS until further order of the Court.

16Paragraph 8 of the December 11, 2017 Order, which was requested by Farid and consented to by the plaintiffs, provides that the Order does not constitute an admission of liability on the part of Farid and is made without prejudice to his rights to allege that he is not the person responsible for the defamatory content.

17On January 5, 2018, Farid filed his Statement of Defence and commenced a Counterclaim against the plaintiffs as well as Ms. Zemel, Hexigent, Duquette and Green. The defence pleaded is twofold: Farid denies being the author of the defamatory material and raises the limitation period. I will deal with the Counterclaim when I consider the motions to strike.

18When the APO/Injunction Order came back before Archibald J. on January 16, 2018, as Farid was still seeking counsel, the matter was further adjourned to March 5, 2018.

19On March 5, 2018, at the request of the plaintiffs, Archibald J. bifurcated the December 11, 2017 Order into two Orders dated March 5, 2018 - a final order concerning the removal of the defamatory material from the Internet (to better assist the plaintiffs in obtaining removal of the defamatory material) and an order providing for the interlocutory injunction (the March 5, 2018 Injunction Order).

20On April 27, 2018, Archibald J. set December 10, 11 and 12, 2018 to deal with the return of the Injunction, the APO, and the defendants to the Counterclaim motions to strike the Counterclaim. On May 11, 2018, Archibald J. set a timetable concerning both the return of the APO, the March 5, 2018 Injunction Order and the pleading motions, providing for delivery of material by the plaintiffs and Farid, cross-examinations and the filing of factums. On September 11, 2018, the timetable was amended by agreement of the parties to, among other things, extend the date for Farid to file materials.

21In the end, Farid filed no materials and there were no cross-examinations.

22At the outset of the hearing of the motions before me on December 10, 2018, Farid advised that he had retained a lawyer, Mr. O. Barnwell, on Friday December 7, 2018 and requested an adjournment of the motions. He indicated that Mr. Barnwell was otherwise engaged and that he wished to file material and have his lawyer represent him. No time period was suggested. The plaintiffs and other moving parties opposed the request.

23For reasons provided by me in court on December 10, 2018, I refused Farid’s request for an adjournment. In summary, I felt that the matter had been outstanding for too long a period and needed to be dealt with. Farid had more than ample time to retain a lawyer and deal with the matter. The dates for the motions were set in April 2018, and Farid took no issue with them and agreed to the timetable. Further, there was no evidence before me as to what steps Farid took to retain a lawyer during the period. Nor was there any indication from Mr. Barnwell to confirm his retainer or provide earliest available dates. Finally, the plaintiffs and the moving parties had received no communication from Mr. Barnwell and only learned about the adjournment request that morning after extensive preparation. In all the circumstances, I was of the view the matter should proceed as scheduled.

24On the morning of December 11, 2018, Mr. Barnwell appeared at the commencement of the day and requested permission to address the court. He advised he had been retained by Farid on Friday and while respecting my decision to not adjourn, sought to have me delay the matter to enable him to get up to speed. While I welcome Mr. Barnwell’s involvement on the file going forward, I advised him that my ruling from the previous day remained and the matters before me would continue as scheduled. Mr. Barnwell then withdrew and the hearing continued.

a) Continuation of the March 5, 2018 Injunction Order

25As noted, subsequent to the issuance of the APO/Injunction Order on December 4, 2017 and its subsequent amendment on December 15, 2017, Farid has filed no material in response to either the Injunction Order or the APO. This despite the fact that as early as December 18, 2017, Farid is on record stating that he intended to set aside the APO on the basis that it was “obtained under pretenses that were misleading, erroneous, duplicitous, deceptive, and through assertions that were just patently false, but more importantly, I will be taking the position that the Plaintiff side did not make “full and frank disclosure” , essentially misleading the court in a flagrant manner through a litany of calculated falsehoods presented in commissioned affidavits. I have conclusive evidence to substantiate this irrefutably [sic] ...” (December 18, 2017 email from Farid to David Lipkus, attached to the ISS’ second report dated December 18, 2017, Supplementary Motion Record, Volume 3, Tab 13 A).

26Subsequent to the issuance of the APO/Injunction Order, the plaintiffs have obtained and filed the report of James D. Williams, Ph.D. dated May 1, 2018. Dr. Williams is a professor of Rhetoric & Linguistics at Soka University in Aliso Viejo California.

27Dr. Williams performed a forensic analysis of Farid’s writings (letters and emails to counsel/ISS and the Statement of Defence and Counterclaim) and a series of anonymous digital postings that made personal comments about the plaintiffs. Based on the analysis, Dr. Williams was of the opinion that Farid authored some, if not all, of the anonymous digital postings.

28During the argument before me, Farid agreed that the interlocutory injunction should continue until trial.

29Given the evidence filed on the ex parte motion, the subsequent evidence of Dr. Williams, the fact that Farid has filed no evidence in response although having had more than sufficient time to do so and Farid’s consent, I have no hesitation in continuing the interlocutory injunction in the APO/Injunction Order, as amended and continued by the March 5, 2018 Injunction Order until trial.

b) Amendment of the December 11, 2017 Order

30The plaintiffs seek to amend the December 11, 2017 Order by deleting paragraph 8 thereof. Given that the plaintiffs consented to that paragraph at the time of the Order and have provided no specific reasons for removing it, I see no reason to delete it at this stage.

c) Amendment of the March 5, 2018 Injunction Order/Mandatory Order

31The plaintiffs also submit that the March 5, 2018 Injunction Order should be amended to replace paragraphs 35 to 38 struck by Archibald J. from the initial APO/Injunction Order. Those paragraphs required that Farid immediately remove or cause to be removed from the Internet and any and all electronic data bases of the defamatory postings; assign and grant in writing to the plaintiffs all rights, title and/or interest in the copyright he owns in the defamatory material; and assist the plaintiffs in obtaining the removal of the defamatory postings from the Internet, other electronic databases and other Internet websites.

32I am not prepared to either amend the APO/Injunction Order or the March 5, 2018 Injunction Order to provide that Farid assist the plaintiffs in removing the defamatory material or issue a mandatory order that requires Farid to remove such material. In my view, a term that Farid “assist” the plaintiffs is too vague and unenforceable. It must also be remembered that the action is still at the interlocutory stage. Given Farid’s defence to the action, an order to require him to remove the offending posts from the Internet requires that he admit that he is the author. Such an order, in my view, is only appropriate as a final order following a trial of the issue. Granting the requested orders at this stage will only give rise to collateral proceedings concerning enforcement which will side track a determination of the ultimate issue of whether Farid was the author.

33Further, there is no evidence that such orders are required. On March 5, 2018, at the request of the plaintiffs, Archibald J. amended the December 11, 2017 Order to make the removal of the defamatory material from the Internet and Internet search engines a final order in order to assist the plaintiffs in obtaining its removal both in Canada and the United States. There is no evidence as to what steps the plaintiffs have taken to obtain removal or, more importantly, what has been the result of such steps.

d) Execution of the APO

34The events of the execution of the APO on December 5, 2017 and December 18, 2017 are set out in two reports of the ISS attached to his affidavits dated December 6 and 21, 2017 respectively, together with the affidavit of Duquette, sworn December 6, 2017, who was present during the execution on December 5, 2017.

35As noted, there is no evidence from Farid in respect of the execution of the APO despite the fact that from the outset he has criticized both the manner in which the APO/Injunction Order was obtained and executed.

36I am satisfied, based on the material filed, that the APO was conducted in accordance with the terms of both the APO/Injunction Order and the December 11, 2017 Order extending it. I find that at all material times, the ISS and those accompanying him as authorized by the APO acted in both a courteous and professional manner at all times towards Farid.

37Although Farid filed no evidence, he has made certain allegations both in his Statement of Defence and Counterclaim and before me concerning the conduct of the APO which I wish to address. In his Counterclaim, Farid pleads that “the Plaintiffs’ agents had broken down the Defendant’s door and entered his premises forcefully proceeding to issue threats of arrest for non-compliance”. The video of the ISS’ entry into Farid’s premises, part of the Supplementary Motion Record, shows Farid opening the door and allowing the ISS and the others into his premises. There is no breaking down of the door or threats as Farid pleads.

38Farid further complains that the APO was not conducted in accordance with the APO/Injunction Order because there was a period of 19 hours when the electronic devices obtained by the ISS were not in the possession of the ISS. Due to the type of equipment required, Hexigent was not able to obtain forensic copies of the devices at Farid’s premises. On the instructions of the ISS, the devices were taken to Hexigent’s laboratory where they were copied and returned to Farid within 24 hours in the same condition they were in at Farid’s premises. The information obtained was stored on a hard drive and placed in a sealed bag marked “Allegedly Privileged or Confidential Electronic Files”.

39Paragraph 19 of the APO/Injunction Order authorizes the “Authorized Persons” (in this case, in addition to the ISS, Duquette and Green from Hexigent) to obtain all evidence stored electronically; grants them access to the evidence stored electronically and entitles them to make a forensic copy. In my view, the fact that Hexigent had to remove the devices from Farid’s residence to copy them does not violate the APO/Injunction Order. They were authorized to make a copy, the reasons for having to remove the devices were explained and reasonable and the devices were returned to Farid within 24 hours. Further, once copied, the evidence has been held in the custody of the ISS as required.

40During the hearing Farid stated that he had a video of the execution of the APO that he took secretly which showed violations. Counsel for the plaintiffs challenged Farid to bring the video to court and play it for the court the following day. Farid did not produce the video.

e) Breach of the APO

41The plaintiffs ask that I make a finding that Farid was in breach of the APO. Breach of the APO can give rise to a finding of contempt of court with the potential of fines or imprisonment. No contempt proceedings have been initiated and no relief has been requested against Farid by the plaintiffs. I am therefore not sure what the reason is for the request. In my view, it would not be appropriate to make a finding that Farid was in breach of a court order in the absence of the proper proceedings being commenced against him. Accordingly, I decline to make the requested finding without prejudice to the plaintiffs raising it in the proper proceeding.

f) Access to the Evidence Seized During the APO

42The plaintiffs want access to the electronic data seized from Farid pursuant to the APO. As noted, Farid claimed privilege over the evidence copied from electronic devices seized. Paragraphs 12 to 15 of the APO/Injunction Order deal with the procedure to be followed in a situation where the person subject to the APO asserts privilege. The procedure has been somewhat frustrated because Farid did not have counsel. That has now been remedied.

43Accordingly, the ISS shall afford Farid and his counsel until January 10, 2019 an opportunity to review all copied files and identify any privileged material or material that relates to bona fide business or personal matters not relevant to the action. All privileged material or material that relates to bona fide business or personal matters not relevant to the action shall be placed in a bag marked “Allegedly Privileged or Confidential Electronic Files” and remain in the custody of the ISS. Any issues of privilege or relevance remaining will be resolved by me. The parties need only contact my assistant to arrange a Chambers appointment to schedule a hearing.

g) Motions to Strike the Counterclaim

44The plaintiffs, Ms. Zemel and Hexigent, Duquette and Green, the defendants to Farid’s Counterclaim each seek orders striking the Counterclaim, without leave to amend, on the ground that it discloses no reasonable cause of action or is frivolous, vexatious and an abuse of process.

45The Counterclaim is set out in paragraphs 12 to 29 of Farid’s Statement of Defence and Counterclaim. It is essentially directed at Ms. Zemel and Duquette and deals with Hexigent investigation and the ex parte motion for the APO and injunction and subsequent court appearances before Archibald J.

46Paragraph 12, the prayer for relief, claims general damages of $19 million and punitive, aggravated and exemplary damages of $100,000. Paragraphs 13 to 16 allege that Ms. Zemel and Duquette failed to make full and frank disclosure to the court in obtaining the APO. Farid pleads that they have committed “Fraud Upon The Court” based on untrue information they have put before the court about him.

47Paragraphs 17 and 18 are directed towards Hexigent, Duquette and Green. They attack Hexigent’s competency and allege that Duquette and Green are “amateurs with zero credibility”, have misled the court and carried out an “array of unlawful activities” including trespassing and placing a GPS tracking device on Farid’s car (with the approval of Ms. Zemel). Paragraphs 19 and 20 deal with Ms. Zemel and alleges she has no technical expertise and is an “abject failure” as a litigator. It states she has presented a “litany of falsehoods erroneous assertions” to the court which are “carefully calculated lies”.

48Paragraphs 21 to 24 deal with events that allegedly occurred before Archibald J. in Practice Court on December 11 and 15, 2017, and again allege that Ms. Zemel “flagrantly disrespected and disobeyed the Court”. Paragraph 24 pleads that Ms. Zemel’s conduct was contrary to the Law Society’s Rules of Professional Conduct.

49Paragraphs 25 and 26 set out the harm Farid alleges the action has caused both him and his loved ones and that he looks forward to pursuing his claims aggressively.

50Paragraph 27 again refers to the reckless and improper conduct of Ms. Zemel and Duquette and also mentions the plaintiffs for the first time. Finally, paragraph 28 requests costs of the Counterclaim on a substantial indemnity basis together with a “judicial admonishment” concerning the deceitful conduct coming from the plaintiffs and their counsel.

51The moving parties rely on rules 21.01(1)(b); 21.01(3)(d) and 25.11 in support of their motion to strike.

52In my view, and reading the Counterclaim “generously” and accepting the facts as pleaded as true, I am satisfied that it discloses no reasonable cause or causes of action against any of the defendants by Counterclaim.

53The claim against the plaintiffs appears to be because they issued the Action against him for defamation. There is no allegation of any conduct by the plaintiffs outside the Action. As was stated in Warman v. Wilkins-Fournier, 2010 ONSC 2826 (SCJ) at para. 19, in respect of a Counterclaim alleging abuse of process against the plaintiff for commencing a defamation action “it is not improper nor does a tort occur if a plaintiff commences a law suit to redress defamation...”

54The claims against Ms. Zemel and Hexigent, Duquette and Green are based on and arise out of their involvement in the Action as counsel and as investigators for the plaintiffs. The allegations concern their involvement in and submissions to the court in respect of obtaining and continuing the APO and the interlocutory injunction and their conduct during the execution of the APO. They are bald and without any substance. The Counterclaim fails to plead any reasonable cause of action against them.

55Further, all of the defendants to the Counterclaim submit that the Counterclaim discloses no reasonable cause of action against them because of the application of the doctrine of absolute privilege.

56The doctrine of absolute privilege is well-settled and stands for the proposition that “no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken, documents prepared and actions taken in the ordinary course of any proceedings, before any court or judicial tribunal recognized by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings.” The privilege is not confined to statements made in court, but extends to all preparatory steps taken with a view to judicial proceedings. It is the occasion not the communication that is privileged. The immunity is not limited to actions for defamation: Salasel v. Cuthbertson, 2015 ONCA 115; 124 O.R. (3d) 401 at paras. 35-36.

57The allegations in the Counterclaim relate solely to the alleged actions of the plaintiffs, their lawyer and/or the investigators retained by them, in the commencement of the Action, applying for and obtaining the APO/Injunction Order, in the execution of the APO and the events that took place during subsequent court appearances. As a result, I am satisfied that the doctrine of absolute privilege applies to all of the claims in the Counterclaim. It is plain and obvious that it cannot succeed on that basis too.

58I am further of the view that the Counterclaim is also frivolous and vexatious. It is essentially a claim for damages arising from the plaintiffs, their counsel and investigators allegedly improper actions towards the court in obtaining the APO/Injunction Order. Such a claim arises as part of the review of the APO/Injunction Order and is secured by the plaintiffs’ undertaking as to damages. A final determination of that issue must await trial. It is not a claim, however, that can be raised by way of counterclaim as Farid purports to do.

59I am also of the view that the allegations in the Counterclaim, particularly against Ms. Zemel, Hexigent, Duquette and Green are scandalous, embarrassing, frivolous and irrelevant bald allegations not capable of proof and it should be struck on that basis as well.

60For the above reasons, therefore, I am satisfied the Counterclaim should be struck out in its entirety.

61Farid requested leave to amend the Counterclaim in order to enable him to get legal advice. In my view, there is no basis upon which Farid can assert any cause of action against the plaintiffs or their counsel and investigators. Farid admits that he does not know the plaintiffs (except for one who he met briefly). Apart from the Action against him, he has raised no connection with the plaintiffs that would give rise to any claim by him. And any claim against either the plaintiffs’ lawyer or investigators based on their actions in the Action cannot succeed for reasons already stated. I can see no basis therefore for viable cause of action in a counterclaim. Accordingly, leave to amend is not appropriate.

62The Counterclaim is therefore dismissed in its entirety without leave to amend.

63The plaintiffs are entitled to their costs of the motion and the moving parties are entitled to their costs of the motion to strike. I will address the motions first.

64Ms. Zemel seeks costs of the motion to strike based on a substantial indemnity basis of $14,000 based on the scandalous allegations which Farid made against her concerning her ability as a litigator and her conduct in the Action. I agree that the allegations were scandalous and totally inappropriate and that substantial indemnity costs are appropriate. I further consider that $14,000 is fair and reasonable given the issues, their importance and the time spent.

65Costs to Ms. Zemel on the motion to dismiss the Counterclaim fixed at $14,000 and payable forthwith.

66Hexigent, Duquette and Green claim partial indemnity costs of $16,853.98 made up of fees of $15,553.50 and disbursements of $1,300.48. In my view, given the overlap of the issues between the defendants to the Counterclaim, together with the time to argue, I consider the amount claimed to be too high. While I appreciate that the allegations against the Hexigent defendants to the Counterclaim were slightly different than against Ms. Zemel, there was much similarity. In all the circumstances, therefore, I consider costs of $7,500 in total to be both fair and reasonable.

67Costs to Hexigent, Duquette and Green on the motion to strike fixed at $7,500 in total, payable forthwith.

68The plaintiffs have submitted a single Costs Outline setting out their costs of the entire Action to date. There is no breakdown with respect to the costs of the motion to strike.

69As noted, the plaintiffs were briefly mentioned and were not the focus of the Counterclaim. The material filed to support the motion to strike was brief as was the argument. The plaintiffs relied on the same grounds as the other defendants to the Counterclaim. In my view, costs for the motion to strike for the plaintiffs on a partial indemnity basis fixed at $2,500 is both fair and reasonable. Payable forthwith.

70The plaintiffs Costs Outline seeks costs on a partial indemnity basis in the total amount of $503,259.49 made up of fees of $224,653 and disbursements of $220,709.38 plus HST.

71There is no question that a substantial amount of work has been done and the plaintiffs have incurred substantial fees and disbursements in connection with the Action. In my view, however, at this stage and given that they have been successful in continuing the injunction and establishing that the APO was properly executed, they are entitled to their costs of the motion before me. The balance of any costs incurred to date should be determined following the trial.

72The Costs Outline does not lend itself to separating out the costs of the motion before me. That said, the plaintiffs have filed substantial material including a Supplementary Motion Record in support of the motion over and above the initial 11 volume Motion Record.

73Given the issues raised, I am satisfied that a fair and reasonable partial indemnity cost award in respect of the plaintiffs motion before me is $50,000 inclusive of disbursements and HST. Payable forthwith.

74In my view, this action needs to be Case Managed to enable it to proceed to an early trial date. Counsel should return to Civil Practice Court to obtain a Case Management Judge as soon as possible.

L. A. Pattillo J.