COURT FILE NO.: CV-19-636-0000

DATE: 2019 08 30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DARREN JOHN Plaintiff

AND:

ILIAS LOUI DALLAS and DALLAS CRIMINAL DEFENCE Defendants

BEFORE: Trimble J.

COUNSEL: Darren John, Self-represented Plaintiff

Ian McKellar, for the Defendants

HEARD: August 21, 2019

ENDORSEMENT

1. The Motion

1The Defendants bring this motion to strike the Statement of Claim without leave to amend, on the grounds that it is frivolous, vexatious, and an abuse of process, as Mr. John is attempting to re-litigate in this action claims and allegations made and dismissed in proceedings before the Ontario Human Rights Tribunal and the Law Society of Ontario’s Discipline Committee. Alternately, the Defendants seek to dismiss parts of the Claim in that they fail to comply with the rules of pleading and do not disclose a reasonable cause of action.

2Mr. John argues that the pleading is fine. The pleadings, substantiated by the evidence he intends to lead, will succeed at trial. He included in his motion material a short video clip, and longer audio clip in support of his position.

2. The Facts

3Mr. John was self-represented on criminal charges pending in Brampton and Orangeville. He eventually retained the Defendant, Mr. Dallas, and his firm. Mr. John wished to advance the third party defence that his brother, Linden John, had committed the acts from which the charges arose, not he.

4Mr. Dallas refused to advance this defence for several reasons. First, the Court had already rejected it, having found Mr. John a liar (see: R. v. John, 2013 ONCJ 765, at paras. 186-188, which was later overturned but not on the point discussed at the cited paragraphs).

5Second, Mr. Dallas thought that the Crown could probably prove that Linden John was a fiction.

6Third, Mr. John had not produced any proof that Linden John existed. Mr. John said in this respect that he had given to the Crown emails that proved Linden’s existence, which the Crown had lost or destroyed. Mr. John refused to produce to Mr. Dallas proof of Linden’s existence so that Mr. Dallas could advance the third party suspect defence.

7Between February 15 and 17, 2017, there were heated discussions on the ‘brother defence’ the result of which was that Mr. Dallas told Mr. John that the latter had lost confidence in the former, that the relationship was at an end, and that Mr. Dallas would be removing himself from the record.

8On February 21, Mr. Dallas removed himself as solicitor of record in the Brampton matter. Mr. John appeared and opposed the motion.

9That same day, Mr. John filed a complaint against Mr. Dallas with the Law Society of Ontario, and commenced an Application with the Ontario Human Rights Tribunal, making identical allegations in each of those administrative proceedings as he made in his Statement of Claim in this action. Mr. John alleged that the real reason why Mr. Dallas withdrew was because Mr. John’s rap lyrics contained what Mr. Dallas, a gay man, considered to be homophobic references, and because Mr. Dallas pressured Mr. John to plead guilty to the charges.

10On May 9, 2017, Mr. Dallas had himself removed as solicitor in the Orangeville matters over Mr. John’s objection.

11Eventually the HRTO application was dismissed because Mr. John was found to be a vexatious litigant. This finding was based in part on the quantity and nature of emails he sent to the tribunal, in part on the nature of the abusive statements made against Tribunal member Muir, and in part on Mr. John’s failure to respond to case management directives issued in his 21 different applications.

12On June 12, 2018, the Law Society also closed its file, citing identical litigation being commenced in the HRTO.

3. Motion to Recuse

13Mr. John asked me to recuse myself on the basis that a reasonable person, informed about the case, would have the reasonable apprehension that I might be biased. He brought his motion from the floor, without written material or notice. He said that I was biased against him because I had decided against him in every matter of his on which I presided, and because in one, I called him a recreational litigant. He said that I recognized my bias by recusing myself on a recent motion of his, which proceeded before Doi J.

14I dismissed Mr. John’s motion to recuse, for oral reasons delivered on 21 August.

15Losing in court, repeatedly, does not equate to bias.

16Each of my decisions involving Mr. John, all of which were written, was self-explanatory.

17My reference to him as a recreational litigant in John v. Richards et al, 2017 ONSC 7231, at paras. 16 to 21, was in the context of a costs decision, in which I explained my reasons for rejecting Mr. John’s request for leniency because he was a self-represented litigant. I stated the reasons for my conclusions, from which Mr. John took no appeal.

18My transfer of Mr. John’s motion to Justice Doi was done with the express intention that it was to assist the motion being heard on a crowded motions list, and on the basis that I was not recusing myself.

4. Preliminary Objection

19Mr. John argued that the Defendants were prevented from bringing their motion under either R. 21.01 or 25.11 as they defended the action and by doing so waived any issues in the pleading.

20The Defendants argued, and Mr. John did not contest, that notwithstanding the Defendants’ express intention to bring this motion under R. 21.01, Mr. John threatened to note the Defendants in default if they did not defend. Accordingly, the Defendants put in a pro forma defence.

21I dismiss Mr. John’s objection.

22Where a Defendant defends for the purpose of avoiding being noted in default while the Defendant awaits a motion appointment to attack the pleading, filing a Defence should not be a bar to the pleading motions. The defence is made necessary by the insistence of the Plaintiff on receiving a defence, perhaps as a tactic to foreclose the R. 21.01 motion. Filing the defence prevents a wasteful and unnecessary extra step of having to set the noting in default aside (see: Bilich v. Toronto Police Services Board, 2013 ONSC 1445, at paras. 6 and 7).

5. The Pleadings Motion

Is the Action an Abuse of Process?

23An action is an abuse of process where the litigant attempts to relitigate causes of action or issues that have already been decided by the Court or a tribunal of competent jurisdiction. The doctrine of abuse of process is flexible and discretionary (see: Canam Ent. 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 (SCC), and Hartmann v. Amourgis, [2008] O.J. No. 2388 (SCJ), aff’d 2009 ONCA 33, [2009] O.J. No. 107 (CA) leave to appeal denied [2009] SCCA No. 65.

24In this case the Action is not an abuse of process. While it is identical to the complaints Mr. John lodged with the HRTO and the LSO, there was no determination of those complaints on their merits. The HRTO determined that Mr. John was a vexatious litigant based on his conduct and comments about Tribunal member Muir in 21 different HRTO complaints, which Mr. Muir dismissed. The LSO dismissed the complaint on the basis that the same complaint was being pursued about Mr. Dallas and his firm in Mr. John’s Application in the HRTO. There was no determination on its merits.

Is the Action Vexatious?

25A vexatious action has several features: it is commenced without justification, advances no cause of action, is brought for an improper purpose, it cannot succeed, is brought to harass and oppress others, is one of many multifarious actions or proceedings, asserts no legitimate rights, and/or is often supplemented with actions against the lawyers that represented the Plaintiff in the claim against the individuals (see: Re Lang Michener et al and Fabien (1987), 59 O.R. (3d) 353, at para. 19, and Currie v. Halton Police Services Board, 2003 7815 (ONCA), at para. 11).

26I agree with Mr. Dallas’ submission that the personal animus of Mr. John is manifest in paragraph 4 of the Claim. Aside from that, I do not accept the argument that the action is vexatious. Most of Mr. Dallas’ arguments in support of the action as vexatious are really that Mr. John is a vexatious litigant. Mr. Dallas has not sought such a declaration.

Is the Statement of Claim Frivolous, Vexatious or an Abuse of Process?

27Relief under Rule 25.11 should only be granted in the clearest of cases where part or all of the pleading is irrelevant argumentative, or inserted for colour, or the pleading is made up of bald allegations or is embarrassing or prejudicial to the fair trial of an action.

28In analysing this Statement of Claim, I conclude that the Statement of Claim is frivolous, vexatious and an abuse. I can do no better than quote Daley, R.S.J., in John v. Samuel, 2018 ONSC 5651 at paras. 30 to 35, whose comments apply equally to this action:

30Turning 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.

31The statement of claim in its entirety fails to comply with the requirements of Rule 25.06 (8).

32The 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.

33Further, 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.

34Additionally, the statement of claim is filled with bald allegations and embellished and inflammatory statements that are in breach of the rules of pleading. … On this basis as well the plaintiff’s pleading must be struck.

35The 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.).

29Mr. John’s Statement of Claim against Mr. Dallas and his firm is equally defective. Mr. John’s Statement of Claim is replete with statements about Mr. Dallas and his junior that are irrelevant to the causes of action advanced. I can only conclude that these statements were included for colour, to inflame, to humiliate and defame Mr. Dallas and his junior.

30Neither of Mr. John’s claims of bad faith (see: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 78) nor of professional misconduct (see: Galamos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 29) are a stand-alone cause of action.

31With respect to Mr. John’s alleged causes of action of negligent investigation, negligence, breach of contract and intentional infliction of emotional distress, Mr. John fails to plead the facts in support of the legal element of the cause of action (see: Deep, supra). Further, with respect to the cause of action of intentional infliction of emotional distress, he fails to plead particulars of intent as required by Rule 25.06(8).

32Mr. John’s Statement of Claim cannot be repaired by simply deleting a paragraph or a line here or there. The Claim must be struck in its entirety.

Leave to Amend

33The Defendants seek an order that Mr. John’s Statement of Claim be struck without leave to amend.

34Denying a party the right to correct deficiencies in a pleading is rare.

35I grant Mr. John leave to deliver a revised Fresh as Amended Statement of Claim provided it is served on the Defendants counsel and filed with the Court by 4 p.m., 30 September 2019. If Mr. John does not serve and file his Fresh as Amended Statement of Claim by that time, the Defendants shall make arrangements through the Trial Coordinator’s office to appear before me at 9 a.m., on any of October 1 to 4, with an affidavit concerning Mr. John’s failure to serve the Fresh as Amended Statement of Claim, at which time I will dismiss the action in its entirety.

36Should Mr. John serve and file a Fresh as Amended Statement of Claim, I expect that he will adhere to the Rules of pleadings. The pleading should be as focused, with the allegations of fact clearly supporting a clear cause of action and damages.

Order

1. The fresh as amended statement of claim is struck in its entirety;

2. Leave is granted to serve and file a Fresh as Amended Statement of Claim by 4 p.m., 30 September 2019. If it is not served and filed by that time and day, the Defendants shall make arrangements through the Trial Coordinator’s office to appear before me at 9 a.m., on any of October 1 to 4, with an affidavit concerning Mr. John’s failure to serve the Fresh as Amended Statement of Claim by the appointed time and day, at which time I will dismiss the action in its entirety ; and

3. Approval of the order arising from this decision as to form and content is waived.

6. Costs

37I will address costs in writing. Submissions are limited to three double spaced, typed pages, excluding bills of costs. The Defendants’ are to be served and filed by 4 p.m., 16 September 2019, and Mr. John’s are to be served and filed by 4 p.m., 23 September 2019.

Trimble J.