Court File and Parties
COURT FILE NO.: CV-19-246 (Kingston)
DATE: 20191008
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michel Moffet, Plaintiff
AND:
Taylor Automall, Defendant
BEFORE: Graeme Mew J.
COUNSEL: Michel Moffet, in person
Todd D. Storms, for the Defendant
HEARD: 3 October 2019
ENDORSEMENT
[1] At the conclusion of the argument of this motion brought by the defendant seeking orders, inter alia, (a) dismissing the action pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure; and (b) declaring the plaintiff a vexatious litigant pursuant to section 140 of the Courts of Justice Act, R.S.O. 1990, c. C43 (as amended), I informed the parties that, for brief oral reasons given at the time, the plaintiff’s action would be dismissed pursuant to pursuant to Rule 21.01(3)(d) and I would reserve judgment on the vexatious litigant issue.
Dismissal of the Action
[2] The plaintiff had his 2003 Cadillac CTS towed to the defendant’s automotive service centre for repairs.
[3] The plaintiff was not happy with the service provided and did not pay the defendant’s invoices. After the vehicle had been at the defendant’s premises for some time, the plaintiff had it towed away. Still having not paid the defendant’s invoices, he then sued in Small Claims Court for damages in the amount of $3,186.91 for, inter alia, “compensation for overbilling” and expenses related to “administration of the overbilling”. The defendant counterclaimed for the unpaid invoices as well as fees for storage of the plaintiff’s vehicle.
[4] The Small Claims Court proceedings were eventually settled on 8 April 2019 on terms that the plaintiff’s claim was dismissed without costs, and the defendant’s claim was to be dismissed upon payment by the plaintiff to the defendant of $1,200. That sum has been paid.
[5] On 8 July 2019, the plaintiff commenced this action against “Taylor Automall” (a correct legal description would be “Jerome D. Taylor Chevrolet Buick GMC Cadillac Ltd.”). He seeks $4,346,780.26 and “treble damages” of $13,040,340.83. The essence of the claim asserted is captured in the following extracts from the statement of claim:
The Plaintiff seeks compensation from the Defendant, for actions committed by the Defendant, including but not limited to: corruption of the legal process (bringing the Court into disrepute), unconscionability, extortion, undue influence, fraud, theft, deceptive business practices, misrepresentations and misleading collateral statements, perjury, slander, libel, defamation of character, intentional infliction of emotional distress.
On or about July 07,2017, the Defendant (Plaintiff by Counter-claim) acted with malice and forethought, in his filing of a Counterclaim in the Small Claims Court (file # SC-17-322-D1). The Defendant knew that his claim was fictitious, conjured, had no merit, and was statute barred by the Ontario "Consumer Protection Act".
[6] The statement of claim goes on to acknowledge that the small claims action was terminated, but asserts that this occurred “when the Plaintiff (Defendant by Counterclaim) yielded to the Defendant’s (Plaintiff by Counterclaim) extortion”. No particulars are pleaded as to what were the actions of the defendant that amounted to “extortion”. However, the plaintiff attached to his statement of claim multiple pages of documentation consisting of case law, excerpts from and comments on the Law Society of Ontario’s Rules of Professional Conduct, and a document labelled “Background”, which the defendant’s factum describes as a “rambling discourse” which closely resembles materials filed by the plaintiff in the Small Claims Court action.
[7] The plaintiff filed an affidavit in response to the defendant’s motion. His evidence reinforces what is already apparent from the face of the statement of claim, namely that he is attempting to relitigate the dispute that was terminated when the parties settled the small claims court action. Paragraph 16 of the affidavit attempts, unpersuasively in my view, to distinguish the claim the plaintiff now brings in this court from the one he settled in April:
I verily believe, the Superior Court claim is focused exclusively upon the misconduct of the Defendant and his representation, as they were committed against the Court and thus against the Plaintiff. The Defendant's false counter-claim had no basis in fact, was contrary to the evidence and had no precedence in law. A corrupt party cannot unilaterally conjure a binding contract upon an innocent party. The "parking fee" was an unconscionable representation. The Defendant used the Court process to perpetrate his reprehensible conduct. The Defendant compounded his guilt, by manipulating and pressing his false narrative at multiple hearings. He maneuverer to lead the Court to erroneous conclusions and pressed the Court to act on those conclusions. The harms committed by the Defendant were egregious in nature.
[8] Rule 21.01(3)(d) permits a defendant to move before a judge to have an action stayed or dismissed on the ground that the action is frivolous or vexatious or otherwise and abuse of the court’s process.
[9] This action is all of those things. In particular, it is an attempt to relitigate a dispute that has already been resolved and terminated by a court order. All of the plaintiff’s complaints relate to that action or the manner in which it was conducted. Significantly, the plaintiff does not contest that the Small Claims Court action was formally terminated by an order of the court.
[10] A vexatious element to this action is that it appears to form part of a concerted attack on not just the defendant but, also, others associated with the case. In that regard the plaintiff has filed complaints with the Law Society about two of the lawyers who represented the defendant in the Small Claims Court proceedings, who, he alleges “provided guidance and a shroud, for their unscrupulous client”. He has made implied threats to file additional complaints with the Motor Vehicle Industry Council, the Kingston Police (“as the regulatory body that charges for fraud and perjury … that could lead (if convicted) to fines and jail time”), the Minister and Director for Consumer Affairs, and the media (he says in respect to some of these bodies “It is within my prerogative to make a formal complaint to [name of body] yet I have chosen not to do so”)
[11] In addition to being frivolous, vexatious and an abuse of process for the purposes of section 21.01(3)(d), in my view the claim in this action does not articulate a clear or legitimate cause of action and, if one includes the contents of the documents filed by the plaintiff along with his statement of claim, is replete with the type of grandiose claims that characterise many vexatious actions. That would be sufficient to warrant dismissal of the claim pursuant to Rule 2.1.01: see Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32, at para 5.
Vexatious Litigant
[12] The reason that I reserved judgment on the vexatious litigant issue was because, although satisfied that this action is frivolous, vexatious and an abuse of the court’s process, there was insufficient evidence before me that, aside from the plaintiff’s fixation on his dispute with the defendant and those associated with the defendant, would allow me to find that he should be limited in his ability to bring any proceeding in any court. I wondered if a more focused order limiting the plaintiff’s ability to commence further court proceedings against the defendant and related parties might be more appropriate.
[13] As it turns out, I cannot grant the relief requested under section 140 of the Courts of Justice Act. Such relief must be sought in a separate application and cannot be obtained by way of a motion in an action: Lukezic v. Royal Bank of Canada, 2012 ONCA 350.
[14] Not having jurisdiction to make the order sought by the defendant by way of motion, I decline to do so.
Costs
[15] At the end of the oral hearing, I ordered that the plaintiff should pay the defendant costs of the motion and the action fixed in the all-inclusive amount of $7,500, payable within 30 days of 7 October 2019.
Mew J.
Date: 8 October 2019