COURT FILE NO.: CV-18-00599040-0000

DATE: 20190221

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JAMES SHANKS (NINIGIWAYDINNOONG), Plaintiff

AND:

OFFICE OF THE PRIME MINISTER OF THE CANADA, TREASURY BOARD OF THE CANADA (AKA ROYAL TREASURY), CORPORATION (CITY OF) PORT COLBORNE, SULLIVAN MAHONEY LLP, INDIAN AND NORTHERN AFFAIRS AND CHRISTOPHER DILTS, DEFENDANTS

BEFORE: Cavanagh J.

COUNSEL: James Shanks (Ninigiwaydinnoong), In Person

Geetha Philipupillai, for the Defendants, Sullivan Mahoney LLP and Christopher Dilts

Beverly Bly, for the Defendants, Office of the Prime Minister of Canada and Indian and Northern Affairs

HEARD: February 15, 2019

ENDORSEMENT

Background

[1] This is a motion by the defendant Sullivan Mahoney LLP and, if he is also meant to be a defendant, by Christopher Dilts, for an order striking out the plaintiff’s amended statement of claim and dismissing the plaintiff’s action against them. The moving parties move pursuant to rules 21.01(1)(b) and 21.01(3)(d) of the Rules of Civil Procedure.

[2] The plaintiff’s claim stems from proceedings in 2017 where the plaintiff sought to prevent a municipal tax sale of his home in Port Colborne.

[3] The plaintiff brought a motion for a permanent injunction preventing the City from evicting him. Sullivan Mahoney LLP and Mr. Dilts, a lawyer in that firm, represented the City. In his endorsement dated September 13, 2017, Edwards J. denied the plaintiff’s motion for a permanent injunction on the ground that no action was commenced and that a permanent injunction may not be granted in the absence of an underlying proceeding. Edwards J. ordered costs in the amount of $2,500 against the plaintiff in favour of the City.

[4] The plaintiff commenced an action and brought a motion for a temporary injunction and to set aside the order of Edwards J. The motion was dismissed by Ramsay J. in an endorsement dated October 25, 2017. Costs were awarded against the plaintiff in the amount of $1,500. Sullivan Mahoney LLP and Mr. Dilts represented the City.

[5] The plaintiff commenced this action by a statement of claim issued on June 4, 2018. The statement of claim was amended on January 8, 2019 pursuant to rule 26.02(a) of the Rules of Civil Procedure. I address the plaintiff’s amended statement of claim insofar as it makes claims against Sullivan Mahoney LLP (and Mr. Dilts).

[6] In the amended statement of claim at paragraph 10 the plaintiff pleads:

This claim seeks to recuperate the funds taken by the LAW FIRM representing the CORPORATION OF PORT COLBORNE, they deemed as ‘COSTS’. The APPEAL COURT agrees with me on no costs.

[7] In the amended statement of claim, the plaintiff seeks the following relief against Sullivan Mahoney:

B 25,000.00

In recovered costs and penalty against the LAWYIAR FIRM for the CORPORATION of PORT COLBORNE for unlawfully extracting COURT COSTS from an Indian.

Analysis

[8] The moving parties move to strike out the amended statement of claim pursuant to rule 21.01(1)(b) on the ground that it discloses no reasonable cause of action. On such a motion, the court must accept the facts alleged in the statement of claim as proven unless they are patently ridiculous or incapable of proof. The test to be applied is whether it is plain and obvious that the statement of claim discloses no reasonable cause of action: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at para. 33.

[9] A claim will be struck out under this rule when either the allegations in the claim do not give rise to a recognized cause of action, or the claim fails to plead all the requisite elements of a recognized cause of action. If a claim has a chance of success, it should be determined at trial with the benefit of a full factual record. The threshold to be met by a moving party on a motion under rule 21.01(1)(b) is very high: Auciello v. Mahadeo et al., 2015 ONSC 1267 at paras. 20-21.

[10] Leave to amend will not be granted if the defect which justifies striking out the claim goes to the very root of the action and is incapable of being cured by an amendment: Hunt at para. 33.

[11] The plaintiff in his amended statement of claim claims damages from the moving parties for “unlawfully extracting” costs. The amended statement of claim does not contain material facts to support this allegation. This claim does not meet the minimum requirements under 25.06 for a proper statement of claim.

[12] Moreover, the allegations in the amended statement of claim do not plead the requisite elements of extortion which would require a plaintiff to plead facts which, if taken to be true, prove that the defendant used wrongful means such as threats or intimidation to extract the costs awards. The costs orders made by Edwards J. and by Ramsay J. have not been set aside or varied by an appellate court or otherwise. There are no allegations of fact in the amended statement of claim that the moving parties acted unlawfully or improperly in representing their client.

[13] It is plain and obvious that the amended statement of claim discloses no reasonable cause of action. It should be struck out pursuant to rule 21.01(1)(b).

[14] The moving parties also move, in the alternative, to have the plaintiff’s action dismissed on the ground that it is frivolous or vexatious or is otherwise an abuse of the process of the court pursuant to rule 21.01(3)(d) of the Rules of Civil Procedure. Any clearly unmeritorious action may qualify as frivolous, vexatious or an abuse of process. A court only invokes its authority under this rule or pursuant to its inherent jurisdiction to dismiss or stay an action in the clearest of cases: Salasel v. Cuthbertson, 2015 ONCA 115 at para. 8.

[15] The claim was brought against the lawyers who represented an opposing party in litigation. These lawyers did not owe the plaintiff a duty of care, and the amended statement of claim does not plead facts to show any improper conduct by the moving parties. The plaintiff’s claim as pleaded in the amended statement of claim is frivolous on its face.

[16] The plaintiff’s amended statement of claim is a collateral attack on the orders as to costs that were made by Edwards J. and Ramsay J. If the plaintiff was dissatisfied with these orders, his recourse was through the appeal processes provided for by the Rules of Civil Procedure. The plaintiff’s action as against the moving parties is an abuse of process.

[17] I am satisfied that the defects in the amended statement of claim that I have identified go to the root of the action which the plaintiff wishes to advance against the moving parties and that these defects cannot be cured by proper amendments.

[18] The plaintiff’s amended statement of claim should be struck out as against the moving parties, without leave to amend, and the action should be dismissed as against them.

Disposition

[19] The motion brought by the moving parties is granted and the amended statement of claim is struck out as against them, without leave to amend. The plaintiff’s action as against the moving parties is dismissed.

[20] The moving parties seek costs on a partial indemnity scale in the amount of $4,579.43 comprised of fees of $3,737.20, disbursements of $842.23 and HST of $508.42.

[21] In the circumstances, and having regard to the factors in rule 57.01 and the principle stated in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA) at para. 26 (that the objective in fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding), I fix costs to be paid by the plaintiff to the moving parties in the amount of $2,500.

Cavanagh J.

Date: February 21, 2019