COURT FILE NO.: CV-19-138806
DATE: 20191017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORPORATION OF THE TOWN OF AURORA
Applicant
– and –
ROBERT LEPP
Respondent
Mr. Charles Painter, for the Applicant
Mr. Robert Lepp, Self-Represented Respondent
HEARD: September 20, 2019
REASONS FOR DECISION
edwards J.:
Overview
[1] The right to express one’s opinion; the right to criticize others who do not share your opinion; the right to freedom of speech; the right to litigate in our court system; these and many other similar rights are fundamental to our democratic way of life and rule of law. But they are not rights without some restrictions.
[2] The application before the court by The Corporation of the Town of Aurora (“Aurora”) seeks a declaration pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, (“the Act”), that the Respondent is a vexatious litigant. It goes without saying that if the Application is granted, Mr. Lepp will not have unrestricted access to our court system. If the application is granted, Mr. Lepp would first have to seek the court’s permissions before initiating any further actions in this court.
Chronology
[3] The Respondent issued a statement of claim on December 4, 2018, naming Aurora and various other Defendants including the Regional Municipality of York, the York Regional Police Services Board, York Regional Police and a number of named individuals as Defendants. The statement of claim is 27 pages long and encompasses 123 paragraphs. The essence of the claims made by the Plaintiff include allegations as they relate to various torts including false arrest, misfeasance in public office and malicious prosecution.
[4] On December 21, 2018, counsel for Aurora requested by way of a letter to the local registrar that this court dismiss the Plaintiff’s action pursuant to Rule 2.1.01 as being frivolous, vexatious and an abuse of process.
[5] On January 16, 2019, Mr. Lepp wrote to the local registrar with a nine-page response to Aurora’s request to have his action dismissed as being frivolous, vexatious and an abuse of process.
[6] On February 8, 2019, the matter came before me, at which time I released a brief Endorsement requiring that a copy of Mr. Lepp’s correspondence and submissions of January 16, 2019 be provided to counsel for Aurora, and directing that if Aurora wished to respond that it do so within 10 days. Once Aurora’s written submissions were received, the court would then address Aurora’s request to grant an order under Rule 2.1.01 of the Rules. I further indicated that I was not seized with the matter.
[7] Counsel for Aurora filed written submissions which are dated February 15, 2019. Those written submissions were then responded to by Mr. Lepp under cover of a letter dated February 21, 2019, comprising six further pages of submissions.
[8] After Mr. Lepp’s letter of February 21, 2019, and with the receipt of the submissions from counsel for Aurora on February 15, 2019, it would appear that the request by Aurora to have the matter dismissed pursuant to Rule 2.1.01 was never put before either myself or any other justice of this court to be dealt with.
[9] In addition to Aurora’s written request to the registrar to have the Plaintiff’s action dismissed pursuant to Rule 2.1.01, Aurora initiated the within application on January 10, 2019 seeking a declaration pursuant to s. 140(1) of the Act that Mr. Lepp be declared a vexatious litigant.
[10] On March 28, 2019, Aurora, by notice of motion, sought an order that Mr. Lepp be required to obtain leave of the court before commencing any motions, actions or proceedings against Aurora, its elected officials, employees, et cetera, and that various numerated actions that had been commenced by Mr. Lepp be temporarily stayed pending the final disposition of Aurora’s application to have Mr. Lepp declared a vexatious litigant.
[11] Aurora’s motion came before de Sa J. on March 28, 2019, at which time it was ordered that:
Mr. Lepp had to obtain leave of this court before commencing any new motions, actions or proceedings against Aurora;
that various actions that had been commenced by Mr. Lepp were stayed pending the final disposition of Aurora’s application; and
that Mr. Lepp not communicate with the Defendants in the various enumerated actions, including the Defendants in the action commenced by Mr. Lepp. As part of the non-communication order, it was made clear that Mr. Lepp could only communicate with the various named individuals through counsel.
[12] Subsequent to the release of the Order of de Sa J., Aurora brought a motion that ultimately came before Di Luca J. on August 29, 2019, seeking an order that would find Mr. Lepp guilty of civil contempt arising out of an alleged violation of the Order of de Sa J. dated March 28, 2019.
[13] On August 29, 2019, Di Luca J. found Mr. Lepp guilty of contempt and released Reasons dated September 16, 2019, with respect to penalty. Mr. Lepp was ordered to pay a fine of $1,500 within six months and costs of $10,000 all-inclusive within 30 days.
[14] The application to have Mr. Lepp declared a vexatious litigant came before me on September 20, 2019. At that time, it became apparent that Aurora’s request under Rule 2.1.01 had never been addressed by the court. I advised the parties that I would deal with both the motion under Rule 2.1.01 and at the same time deal with Aurora’s application to have Mr. Lepp declared a vexatious litigant.
The Facts
[15] In support of Aurora’s application to have Mr. Lepp declared a vexatious litigant, Aurora filed the affidavit of Jordan Cutler who is a lawyer at the law firm of Paterson MacDougall LLP, who are counsel for Aurora on this application. The affidavit incorporates as exhibits numerous documents. Many of the exhibited items are email communications between Mr. Lepp and various representatives of Aurora, as well as email communications between Mr. Lepp and counsel of record, Mr. Painter.
[16] Mr. Cutler’s affidavit was not cross-examined on by Mr. Lepp, nor was any request made by Mr. Lepp to adjourn the motion before me to allow him to conduct a cross-examination of Mr. Cutler.
[17] In addition to Mr. Cutler’s affidavit, Mr. Lepp filed with this court what he described as a “notice of appearance”, which in essence is an unsworn version of the facts as understood by Mr. Lepp, as well as the chronology of the litigation.
[18] The most important document on this application is the actual statement of claim initiated by Mr. Lepp that sets forth the basis for his claim against the Defendants. As previously noted, the statement of claim is 27 pages in length and comprises 123 paragraphs.
[19] The thrust of the allegations made by Mr. Lepp in his statement of claim against Aurora and its employees, has its genesis arising out of concerns that Mr. Lepp had with respect to a dog park in Aurora.
[20] Mr. Lepp alleges in his statement of claim a conspiracy on the part of Aurora and its employees to have criminal charges laid against him by the York Regional Police, and to thereafter have those criminal charges prosecuted through the courts.
[21] The first set of charges referenced in Mr. Lepp’s statement of claim were initiated on July 14, 2017. Those charges were ultimately stayed in the Ontario Court of Justice.
[22] The second set of charges were initiated on May 30, 2018. Those charges proceeded through the Ontario Court of Justice, and on September 9, 2019 Halikowski J. committed Mr. Lepp for trial on two counts of extortion and one single count of defamatory libel. Those charges have yet to be dealt with in the Superior Court of Justice.
[23] As it relates to both the first set of charges and the second set of charges, Mr. Lepp has pleaded in his statement of claim the tort of malicious prosecution. In addition to his allegations that arise out of both sets of charges, Mr. Lepp has pleaded the torts of false arrest and misfeasance in public office.
[24] In addition to initiating his claim in this court, Mr. Lepp also commenced proceedings in the Small Claims Court that are in many respects duplicitous of the claims made in this court. Between February 15, 2018 and December 14, 2018, Mr. Lepp has initiated six claims in the Small Claims Court plus the within action in this court. In Aurora’s application to have Mr. Lepp declared vexatious, Aurora is pursuing an order that three of the actions in the Small Claims Court be stayed: specifically, SC-18-0034916; SC-18-0034972; and SC-18-0034987.
[25] During the course of argument Mr. Lepp advised the court that he has attempted to have all of the Small Claims Court actions, including the three referenced in paragraph 24 above, dismissed by the Small Claims Court. Mr. Lepp implicitly acknowledged that the allegations in the Small Claims Court actions were duplicated in his action in this court, and it was for that reason Mr. Lepp advised the court that he would not be pursuing those actions.
Position of the Applicant
[26] Aurora describes Mr. Lepp, amongst other things, as a self-described “Municipal Activist”. Counsel for Aurora argues in its factum that Mr. Lepp spends “an inordinate amount of his free time” publishing an online blog, with related Twitter posts and YouTube videos dedicated largely to the ridicule, taunting and (attempted) humiliation of elected officials, Municipal employees, unfortunate neighbours and other private citizens.
[27] Counsel for Aurora refers to aspects of Mr. Lepp’s conduct in support of its argument that Mr. Lepp is a vexatious litigant. In that regard, reference is made to the following:
rude and condescending communications to the parties that he sues, as well as their legal counsel;
suggestions that counsel are incompetent and that he may sue them as well;
calling a police detective an “idiot”, as well as bragging online about how skilled he was at circumventing bail conditions;
sending emails under another person’s name;
arbitrarily refusing to accept email communications, and demanding only faxes with a telephone call first to ensure that the fax machine was turned on;
attempted harassment and intimidation of opposing counsel, utilizing threats and making unfounded complaints to the Law Society of Ontario, as well as threats of criminal charges against opposing counsel;
denigrating legal counsel directly to clients and communicating with clients despite the fact that they had legal counsel;
a threatened complaint to the Canadian Judicial Council against de Sa J. as a result of his Order of March 28, 2019, an order which was not appealed, and an order from which he was ultimately found in contempt of as a result of the Order of Di Luca J.
[28] As it relates to the allegations set forth in the statement of claim, Aurora argues that in order for Mr. Lepp to succeed with respect to allegations arising out of the alleged “malicious prosecution” or any tort-related thereto, including “misfeasance in public office”, that the underlying criminal prosecution must first:
(a) have been initiated by the Defendant;
(b) and resolved in favour of the Plaintiff.
[29] On the facts relating to the two sets of charges which came before the Ontario Court of Justice, the first set of charges were stayed and the second set of charges have resulted in Mr. Lepp being committed for trial in the Superior Court of Justice. On the basis of this alone, it is argued that the allegations set forth in the statement of claim as they relate to malicious prosecution and misfeasance in public office, cannot possibly succeed as the charges were not disposed of in favour of the Plaintiff.
[30] In support of its position that the statement of claim has, at its core, grandiose allegations of a lengthy and convoluted conspiracy to prosecute false criminal charges against him, Aurora argues that the suggestion that anyone associated with the Town, including the Director of Corporate Services and Mayor, could not, as alleged by Mr. Lepp, “direct the York Regional Police to arrest him, as the York Regional Police are an independent entity and do not take orders from outside entities or persons like Aurora’s elected officials or employees”.
[31] A further example asserted by Aurora in support of its position that Mr. Lepp makes nothing more than grandiose and outrageous allegations, can be found in paragraphs 37 through 39 of his statement of claim as it relates to the bail conditions that were imposed on him as a result of the charges that were then pending before the Ontario Court of Justice. Mr. Lepp follows those allegations as they relate to his bail conditions with the suggestion (in paragraph 40), that 45% of all criminal charges are “improperly laid”. Mr. Lepp further pleads that “police historically use false criminal charges as a tool to punish people who they do not like or who are critical of police or politicians, or who they cannot catch in actual crimes”.
[32] Perhaps one of the most outrageous allegations made by Mr. Lepp in his statement of claim is found at paragraph 46, where Mr. Lepp pleads that:
…together, police and the courts acted in collusion to remove all of the plaintiff’s rights to a fair trial.
[33] In addition to the nature of the allegations made by Mr. Lepp, counsel for Aurora also points to the fact that the statement of claim was anything but a concise statement of material facts that might support a tenable cause of action against the Defendants. Rather, the statement of claim is replete with “evidence and law”, as well as allegations that are completely irrelevant.
Position of Mr. Lepp
[34] As it relates to the various actions that he commenced in the Small Claims Court that might be considered duplicitous, Mr. Lepp essentially concedes that those actions should either be dismissed or stayed, and as such should not enter into this court’s consideration as to whether or not he is a vexatious litigant given his concession that he will not be pursing those Small Claims Court actions.
[35] As it relates to his claims for malicious prosecution, Mr. Lepp conceded during the course of argument that as it relates to the second set of charges laid in May 2018, that his claim in that regard is premature given that those charges have not been dealt with by the Superior Court of Justice.
[36] As it relates to the first set of charges laid in 2017, Mr. Lepp does not concede that those charges were not disposed of in his favour despite the fact that at its highest, all that can be said about those charges is that they were stayed by the Ontario Court of Justice.
[37] The focus of Mr. Lepp’s oral argument focused on the arrests and criminal charges that he has faced, and the suggestion that those arrests and charges were initiated at the behest of Aurora, its elected officials and employees. I have considered those oral submissions, as well as Mr. Lepp’s “notice of appearance” - which included the written submissions made by Mr. Lepp dated September 16, 2019 to Di Luca J., in connection with the penalty phase of the contempt proceedings that had been resolved against Mr. Lepp by Di Luca J. on August 29, 2019.
[38] I have also received since hearing oral argument an email from Mr. Lepp dated September 23, 2019 sent to counsel for Aurora, with copies to various other individuals including my assistant. Mr. Lepp appears to be under the misapprehension that I made a “very attractive offer” during the course of oral submissions to “seize my suit for the ENTIRE period from now through trial”.
[39] In point of fact, no offer was made to anyone during the course of Mr. Lepp’s oral submissions, other than to point out to him the possible problems that he might have in pursuing a claim for malicious prosecution, where the first set of charges were stayed and the second set of charges have not been disposed of by the courts.
Vexatious Litigant and Rule 2.1.01
[40] It is now well accepted that Rule 2.1.01(1) provides the court with the authority to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious, or is otherwise an abuse of process of the court. The Court of Appeal in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, stated at para. 8:
[T]he court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.
[41] Similar guidance is provided by the Court of Appeal in Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32, where at para. 9 the Court of Appeal stated in relation to the statement of claim at issue:
Simply put, the proceedings in question are facially frivolous and vexatious. The appellant’s pleadings fail to contain any coherent narrative or a concise statement of the material facts in support of the wrongs sought to be alleged. Instead, they contain rambling discourse, impermissible attachments, grandiose complaints of injury and damages claims, and bald assertions that repeat similar, if not identical, allegations detailed in multiple other proceedings commenced by the appellant. On this ground alone, it was open to the application judges to dismiss the appellant’s actions under R. 2.1.01(1).
[42] While Rule 2.1.01(1) is a relatively new rule, applications to have a litigant declared vexatious are nothing new to this court. The leading decision in this regard is a decision of Henry J. in Re Lang Michener et al. and Fabian et al., 1987 CanLII 172 (ON SC), [1987] 59 O.R. (2d) 353, where Henry J. reviewed the various judicial authorities and extracted a number of important principles that one might suggest remain equally applicable today. Those principles are summarized as follows:
(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
[43] In addition to the aforesaid principles, the conduct of the litigant may also be relevant in the determination of whether or not someone should be declared a vexatious litigant. In Dobson v. Green, 2012 ONSC 4432, K.L. Campbell J. stated at para. 12:
Moreover, the court is not strictly limited to the conduct of the allegedly vexatious litigant in the courtroom. The behavior of a litigant both inside and outside of the courtroom may be relevant. It is not uncommon for a vexatious litigant to utilize the court process as simply part of an overall strategy of abuse and harassment. Their conduct out of court may provide evidence from which it may be inferred that court proceedings are not bona fide but merely the product of someone who is “unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped.” In this way, the conduct of the vexatious litigant outside of the courtroom may be helpful in understanding his or her motivation and conduct within the litigation process.
Analysis Re Rule 2.1.01(1) and Vexatious Litigant
[44] Mr. Lepp has commenced numerous Small Claims Court actions, which even Mr. Lepp concedes are duplicitous of the statement of claim which he has issued in the Superior Court of Justice. Perhaps for this reason, and recognizing the potential jeopardy that he might face if no such acknowledgment was made, Mr. Lepp has conceded that those Small Claims Court actions must be disposed of in the Small Claims Court with orders dismissing the actions. This court has no jurisdiction to make such orders, particularly given that the issue of costs may have to be dealt with in the Small Claims Court. I proceed, however, on the assumption that those actions in the Small Claims Court will ultimately be disposed of, leaving the remaining action in the Superior Court as the only outstanding action dealing with the allegations against the Defendants for misfeasance in public office, false imprisonment, false arrest and malicious prosecution.
[45] There is little doubt that a review of the statement of claim could lead some readers to conclude that Mr. Lepp clearly falls within the definition of a vexatious litigant. Many of the allegations that he makes in the statement of claim are clearly frivolous and vexatious, and an abuse of process without any merit. By way of example, I quote para. 46 of the statement of claim where Mr. Lepp states:
Police know as soon as charges are laid, the plaintiff cannot provide evidence unless it is accepted by the Crown on the record. The Crown has refused to schedule a single Pre-trial meeting for that exchange. Crown Lesley Pasquino stated to him that the Crown Prosecutor in Newmarket will not have a pre-trial meeting off the record with a self represented person. Together, police and the courts acted in collusion to remove all of the plaintiff’s rights to a fair trial.
[46] In addition, many of the allegations in the statement of claim amount to nothing more than irrelevant statements that have nothing to do with the substantive allegations made in the body of the statement of claim. By way of example, I repeat paras. 50 and 51 of Mr. Lepp’s statement of claim as an example falling into this category:
The plaintiff claims it was Ms. Eddie’s idea which she then took to the Mayor to bring false charges to silence the plaintiff. As an ex-police officer, she had knowledge of how false charges have historically been used by police to silence critics of senior police management or politicians. In Ontario, 45% of all charges police lay are stayed or withdrawn. On June 28, 2017, CBC News in a special investigation stated this was effectively “state sanctioned coercion.” Quebec lays charges only AFTER review of physical police evidence by the Crown, and therefore it has only a 9% failure rate, 1/5th that of York Regional Police on average.
The Criminal Code charge in section 301 for Defamatory Libel has been the “go to” charge historically, and was often selected by police to tie up a critic of their political bosses in the expensive, over-extended provincial court system. Defamatory Libel, s. 301, was declared unconstitutional in 1996 by 4 provinces including Ontario. This s. 301 was laid as a charge against the plaintiff August 23, 2018, despite it being ruled unwinnable since 1996. This proves YRP were not even careful when they laid charges. The Crown Attorneys did not even read the charges to be laid, not even in preparing for the first scheduled Judicial Pre-Trial October 15.
[47] In addition to many aspects of the statement of claim which clearly demonstrate, in my view, that much of what is alleged is nothing more than allegations that are scandalous and vexatious, Mr. Lepp’s conduct outside of the courtroom – as evidenced by his various email communications to counsel for Aurora, demonstrates conduct that could be described as vexatious conduct that this court cannot tolerate. This has already resulted in Mr. Lepp being found in contempt of court by Di Luca J., for which he has received the appropriate penalty.
[48] Mr. Lepp has, on a number of occasions, threatened counsel for Aurora with the possibility of being sanctioned by the Law Society of Ontario. He has also threatened to report de Sa J. to the Canadian Judicial Council. This type of conduct is demonstrative of conduct that this court cannot, and will not, tolerate.
[49] The duplicitous actions in the Small Claims Court, by themselves, demonstrate that Mr. Lepp could be a vexatious litigant. Mr. Lepp’s conduct, as evidenced by his various emails, is also demonstrative of a vexatious litigant. Mr. Lepp’s threats to report counsel to the Law Society is further evidence of the type of conduct that the courts have deemed vexatious. The allegations made by Mr. Lepp in his statement of claim are, in many respects, further evidence that Mr. Lepp is a vexatious litigant. There are, however, aspects of the statement of claim that may fall outside of what may be viewed as allegations that are scandalous and vexatious.
[50] In Scaduto, the Court of Appeal has directed motion judges to exercise their gatekeeper function to weed out litigation that is clearly frivolous, vexatious or an abuse of process. If there are allegations in a statement of claim that are not frivolous and vexatious, does this mean that those must fail because much of the rest of the statement of claim is deemed frivolous and vexatious? I would argue that it is a proper exercise of this court’s gatekeeper function to weed out of the statement of claim everything that is frivolous, vexatious and an abuse of process. If there is anything left over after performing this exercise, what is left should be allowed to remain. By exercising this gatekeeper function, this court is also securing the most expeditious, just, and least expensive determination of what is and what is not frivolous, vexatious and/or an abuse of process.
[51] For reasons which will become apparent, I do not intend to exercise my discretion in favour of Aurora and have Mr. Lepp declared vexatious. I do, however, intend to streamline the allegations made by Mr. Lepp in his statement of claim, and to case manage this matter in such a way that the litigation can be disposed of on its merits and in an expeditious fashion. I also intend to ensure that Mr. Lepp conducts himself throughout the ongoing litigation in a manner consistent with how civil litigation should be conducted in our court system.
Malicious Prosecution
[52] In relation to the tort of malicious prosecution, the Supreme Court of Canada in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] SCJ No. 86, at para. 42, makes clear that a plaintiff must prove:
That the Defendant initiated the proceeding;
That the proceeding was terminated in favour of the plaintiff;
The absence of reasonable and probable grounds; and
Malice or primary purpose for the prosecution other than that of carrying the law into effect.
[53] The issue of whether or not a proceeding was terminated in favour of the plaintiff is fundamental to the tort of malicious prosecution. In Beardsley v. Ontario Provincial Police, 2000 CanLII 22696, the court referred to Justice Sopinka’s reasoning in Nelles, where he stated that “successful termination of the proceeding will be established if (a) the criminal proceedings end in an acquittal; and (b) the complainant abandons the prosecution and it is not the result of some compromise or arrangement with the accused”.
[54] The issue of whether or not a stay of proceedings falls within the definition of a proceeding having been terminated in favour of the plaintiff, was an issue before Andre J. in Shanthakumar v. Royal Bank of Canada et al., 2014 ONSC 2211, where at para. 18 Andre J. stated:
With respect to the first submission, the belated decision to stay a criminal charge due to insufficiency of the evidence, is not, by itself, proof of malice or of malicious prosecution. A Crown prosecutor may honestly and objectively believe that the evidence on which a prosecution is based is sufficient, while another may have an entirely different opinion. In those circumstances, if a prosecutor stays a charge based on a conclusion that there is insufficient evidence to sustain a charge, that decision does not constitute proof of improper motive or malice towards the person charged.
[55] On the facts before this court, there were two sets of charges before the Ontario Court of Justice. The first set of charges, as I have already reviewed in the chronology set forth above, were stayed by the Ontario Court of Justice. Those charges, in my view, cannot fall within the definition of proceedings having been terminated in favour of the plaintiff. The plaintiff was not acquitted. The charges were not dismissed. Simply put, the charges were stayed.
[56] With respect to the second set of charges, Mr. Lepp has been committed to trial in the Superior Court of Justice. Those charges also clearly have not been terminated in favour of Mr. Lepp. As such, all of the allegations in the statement of claim as they relate to malicious prosecution are struck out without leave to amend.
Misfeasance in Public Office
[57] Counsel for Aurora argues that the same principles apply to the tort of misfeasance in public office as they do to the tort of malicious prosecution. No authority is cited for such proposition. The Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, at para. 23, makes clear that the essence of the tort of misfeasance in public office is the deliberate and dishonest wrongful abuse of the powers given to a public officer, coupled with the knowledge that the misconduct is likely to injure the plaintiff. In addition, in para. 28, the Supreme Court goes on to indicate that bad faith or dishonesty is an essential ingredient of the tort.
[58] A helpful summary of the tort of misfeasance in public office can be found in the decision of Perell J. in Goyal v. Niagara College of Applied Arts and Technology, 2018 ONSC 2768, at para. 69, where Perell J. sets forth the core of the tort of misfeasance in public office as follows:
The core of the tort of misfeasance in public office is deliberate misconduct of official duty coupled with knowledge that the misconduct will injure the plaintiff. The essential elements of the tort of misfeasance in public office are: (1) the defendant must be a public official or public authority; (2) the defendant must have engaged in deliberate unlawful conduct in his or her capacity as a public official or public authority; (3) the defendant must have a culpable mental state; namely the public official must have been aware that: (a) his or her conduct was unlawful, and (b) that the conduct was likely to harm the plaintiff; (4) the conduct must cause the defendant harm; and (5) the harm must be of the type compensable under tort law.
[59] Mr. Lepp as a self-represented litigant has pleaded, somewhat inelegantly, the necessary ingredients required for this court to allow the allegations of misfeasance in public office to proceed. Many of the paragraphs as they relate to misfeasance in public office, however, amount to nothing more than pleadings of evidence and law that must be struck out. In that regard, paras. 47, 53, 54, 55, 56, 66, 72, 73, 78, 79, 80, 82, 83, are struck out without leave to amend.
False Arrest and False Imprisonment
[60] In order for the Plaintiff to succeed with respect to the allegations as they relate to the torts of false arrest and false imprisonment, he must establish he was arrested or detained and that the arrest or detention was caused by one or other of the Defendants. If the Plaintiff can establish that causal link, the onus then shifts to the Defendants to establish that the arrest of Mr. Lepp was, in fact, justified. The defence will meet that onus if it can be established that there was reasonable and probable grounds for the arrest.
[61] In Diaz v. Tossa, 2017 ONSC 54, R. Smith J. noted at para. 20:
The torts of false arrest and false imprisonment require “directness”, meaning that the defendant either personally detained the plaintiff or was directly responsible for his or her arrest and imprisonment. Therefore, whether or not a claim lies against these defendants depends on the degree to which these defendants were directly responsible for the police to make the arrest.
[62] Much of what Mr. Lepp alleges in his statement of claim amounts to an allegation that Aurora and its Town officials directed the York Regional Police to arrest Mr. Lepp. These allegations can be tied into his allegations of misfeasance in public office. At this stage of the proceedings, while the allegations themselves may seem outrageous I cannot say with certainty that those allegations fall outside of the pleading this court would not otherwise allow to proceed.
[63] I am, therefore, allowing the allegations made by Mr. Lepp as they relate to the torts of misfeasance in public office, false arrest and false imprisonment, to proceed. As previously noted, all of the allegations as they relate to the tort of malicious prosecution are struck out without leave to amend.
[64] As I have also previously indicated, there are numerous allegations in the statement of claim that easily fall within the definition of allegations that are scandalous and vexatious, and/or pleas of evidence and/or law. The paragraphs that fall within those categories that I am also directing be struck out are the following paragraphs: 44, 45, 46, 47, 50, 51, 53, 54, 55, 56, 66, 72, 73, 74, 76, 77, 78, 79, 80, 82, 83, 84, 86, 91-104, 122 and 123. Those paragraphs are struck out without leave to amend.
The Order of this Court
[65] Mr. Lepp shall file an amended statement of claim that conforms with these Reasons. For sake of greater certainty, Mr. Lepp shall not include any allegations as against the Defendants as they relate to malicious prosecution. The remaining paragraphs of the statement of claim that I have not struck out, as they relate to the torts of misfeasance in public office and the torts of false arrest and false imprisonment, may proceed as pleaded. Mr. Lepp is not to include any further allegations in his statement of claim, other than those already in the statement of claim that was issued in this court on December 4, 2018. Mr. Lepp shall file his amended statement of claim with the court no later than 30 days from the date of receipt of these Reasons. Thereafter, the Defendants shall file their statements of defence within 30 days, and Mr. Lepp shall file any reply to the statements of defence no later than 10 days thereafter.
[66] I intend to case manage this action. Once pleadings are closed, Mr. Lepp shall serve his affidavit of documents on the Defendants no later than January 30, 2020. The Defendants shall file their responding affidavits of documents no later than February 28, 2020. Examinations for Discovery of Mr. Lepp shall be completed by May 15, 2020. Mr. Lepp shall complete any discovery of the Defendants by no later than July 30, 2020.
[67] Any procedural motions, other than a motion for undertakings and refusals which shall be dealt with by the Master, are to be arranged through my assistant and will be dealt with expeditiously at 8:30 a.m. on any convenient morning for the parties.
[68] Mr. Lepp shall not initiate any further motion, action or proceeding against Aurora, its elected officials, employees, former employees or legal counsel, without first obtaining leave of this court. It shall be a pre-condition to Mr. Lepp continuing with this action that he fulfil his undertaking to this court that the actions in the Small Claims Court shall be disposed of by way of a dismissal order in the Small Claims Court, and that any costs awarded in the Small Claims Court against Mr. Lepp shall be paid by Mr. Lepp prior to his continuing with this action.
[69] Given Mr. Lepp’s conduct, reflected in the various emails appended to the affidavit of Mr. Cutler, I am continuing the Order of de Sa J. dated March 28, 2019. As such, I am ordering that Mr. Lepp shall not communicate with any of the Defendants about these proceedings or matters relating to these proceedings, other than through their appointed legal counsel. For sake of greater certainty, Mr. Lepp shall not communicate with the Corporation of the Town of Aurora, its Mayor, its councillors, its insurers and insurers brokers, Mandie Eddie, Techa Van Leeuwen, Alexander Ray, Doug Nodorozny, Dan Elliot, Allan Downey and Michel Durand.
[70] In any communication Mr. Lepp has with counsel, such communications shall be limited only to those necessary to deal with scheduling issues. Mr. Lepp shall conduct himself in a civil and courteous manner in such email communications where necessary. The failure of Mr. Lepp to comply with any aspect of this Order may result in further sanction.
[71] As it relates to the costs of this motion, I will receive written submissions from counsel for Aurora limited to no more than three pages in length. Mr. Lepp may respond with his responding costs submissions, again limited to no more than three pages in length. I would encourage the parties to resolve the issue of costs given what some might perceive as a measure of divided success. I expect the costs submissions to be filed with the court no later than October 30, 2019. If costs submissions are not received by October 30, 2019, this court will assume that the issue of costs has been resolved. No extension of this deadline will be granted.
Justice M.L. Edwards
Released: October 17, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORPORATION OF THE TOWN OF AURORA
Applicant
– and –
ROBERT LEPP
Respondent
REASONS FOR DECISION
Justice M.L. Edwards
Released: October 17, 2019