COURT FILE NO.: 58869/19
DATE: 20191022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LLOYD PATRICK DETTERING, Plaintiff
AND:
PETER DONALD WALCHUK, KATHRYN CECILIA WALCHUK, MATTHEW HOPE, and NICOLE LYNN HOPE, Defendants
BEFORE: The Honourable Mr. Justice Robert B. Reid
HEARD IN WRITING: October 7, 2019
decision #2 under rule 2.1.01
of the Rules of Civil Procedure
Background:
[1] By letter from counsel for Peter Walchuk and Kathryn Walchuk dated April 30, 2019, the court was requested to stay or dismiss the claim, pursuant to rule 2.1.01(1) of the Rules of Civil Procedure because the proceeding appeared on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
[2] At the direction of the court, the local registrar sent a notice, form 2.1A, to the plaintiff to the effect that the proceeding would be stayed or dismissed unless, within 15 days of receiving the notice, the plaintiff filed a written submission responding to the notice. Form 2.1A also informed the plaintiff that a copy of his submission might be given to any other party to the litigation at the direction of the court.
[3] On May 9, 2019, a five-page handwritten submission was filed by the plaintiff.
[4] Although the rule allows the court to permit submissions from the other parties in response to those of the plaintiff, I determined that it was unnecessary at that stage to invite further submissions.
[5] The statement of claim had been issued on April 5, 2019. The plaintiff used the printed form 14A and inserted additional information in handwriting.
[6] In my decision dated May 21, 2019, I reviewed the statement of claim.
[7] The body of the claim consisted in its entirety of the following information in addition to the name, address and telephone number of the plaintiff:
Conspiracy and concerted action liability.
Constitutional tort.
Deceit.
Defamation.
Intentional interference with economic relations.
Malicious prosecution.
Mental suffering.
[8] No other information was contained as part of the claim.
[9] Rule 25.02 provides that a pleading shall be divided into paragraphs numbered consecutively, and that each allegation shall, so far as is practical, be contained in a separate paragraph.
[10] Rule 25.06(1) provides that every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
[11] The statement of claim was clearly deficient. It was devoid of any material facts. It was impossible for a defendant to respond in any meaningful way.
[12] The written submission received from the plaintiff contained a narrative, telling a story of conflict between the plaintiff and his neighbors who are the defendants. Whether that narrative supports any or all of the seven causes of action listed was not clear. In any event, material facts from the narrative or elsewhere needed to be included in the statement of claim in a coherent way, connected to the causes of action.
[13] I observed that while the plaintiff was self-represented, nevertheless, the Rules of Civil Procedure apply to all litigants, with or without counsel and must be adhered to. Because the plaintiff was self-represented, I granted him the opportunity to amend the statement of claim to make it compliant with the Rules of Civil Procedure, serve the amended document on the defendants and file it with the court.
[14] In response to my May 21, 2019 decision, the plaintiff filed a “Fresh as amended Statement of Claim”.
[15] Once again, by letter dated July 11, 2019, counsel for the defendants requested dismissal of the action pursuant to rule 2.1.01.
[16] On my direction, the local registrar sent another notice, form 2.1A, to the plaintiff dated August 8, 2019 to the effect that the proceeding would be stayed or dismissed unless, within 15 days of receiving the notice, the plaintiff filed a written submission responding to the notice.
[17] The plaintiff responded on August 22, 2019 with an eight-page handwritten letter to which was attached a variety of papers, including excerpts from the transcript of another proceeding, photos, Home Depot receipts and bank statements of the plaintiff, amongst other things.
[18] A copy of the plaintiff’s response was sent to counsel for the defendants on September 3, 2019, inviting submissions, and a ten-page response together with attachments was received dated September 16, 2019. In addition, a letter from counsel for the defendants was received dated October 7, 2019 identifying the file numbers of four other cases commenced by the plaintiff in the Superior Court in 2019 and two on-going proceedings in the Small Claims Court.
[19] The plaintiff has filed an additional ten-page handwritten document with attachments called a “Reply” dated September 20, 2019. Counsel for the defendants has filed a letter dated October 8, 2019 in response. Both those submissions were received when this decision was in preparation. Neither document was solicited, nor are they permitted by the provisions of rule 2.1.01. I have not reviewed them or given them any consideration in coming to this decision.
The Fresh as Amended Statement of Claim:
[20] The plaintiff says he uses handwriting since everything in his house is remotely controlled, as is the case in the local library. His typing on computers is “interfered with”, and internet reference files he found to assist in drafting his claim were then lost, presumably because of outside influence.
[21] The heads of damages include allegations as follows:
• that the plaintiff caused his dog to break out of his yard and bite the defendants Walchuks’ dog, “by remote influence”;
• that in the prosecution for the dog bite, imposters for the defendants Hope gave evidence against him, thereby misleading the Justice of the Peace and preventing a fair hearing;
• that he was defamed through allegations that he was responsible for the dog bite and for threats to the defendants Walchuk;
• that the unsuccessful appeal of the dog bite conviction was influenced by alien technology;
• that he made no threats to the defendant Peter Walchuk (for which he was charged in the Ontario Court of Justice) and that the recordings allegedly of his voice were actually computerized facsimiles;
• that unknown persons are responsible for inflicting pain through electromagnetism and radiation;
• that mental suffering has occurred because the RCMP can see and hear everything through his eyes and ears.
Plaintiff’s Response to Second Form 2.1A Notice:
[22] In response to the registrar’s notice sent after filing the fresh as amended statement of claim, the plaintiff expanded on the narrative contained in his fresh as amended statement of claim:
• He compiled a financial database between 1996 and 2005 of public companies listed in SEDAR which was intercepted prior to being posted by the plaintiff on the internet. Subsequent actions have been retaliation by the RCMP, CSIS, and the Niagara Regional Police Service.
• His wife and four dogs suffered fatal heart attacks caused by electromagnetism and radiation, and as such, he believes they were murdered.
• His dog was remotely controlled and that control caused the dog to bite the defendant Peter Walchuck’s dog, leading to a Provincial Offence Act charge, despite the plaintiff having taken care to repair his fence and gate.
• The defendant Peter Walchuk advised the plaintiff that his friends in the RCMP admitted to having killed the plaintiff’s wife and dogs, and that they intended to kill the plaintiff’s daughter as well, and Mr. Walchuk is part of the conspiracy.
• The plaintiff advises at some length as to his religious beliefs in the supremacy of God.
[23] The plaintiff denies that his claim is frivolous, vexatious or an abuse of process.
Defendants’ Submissions:
[24] The defendants made extensive submissions in support of their position that the claim should be dismissed. Some of those submissions dealt with the effect on the defendants of the plaintiff’s litigation and to other interpersonal difficulties the defendants have had with the plaintiff. They reviewed the history of the litigation under the Dog Owners Liability Act to which the plaintiff made reference.
[25] The defendants also provided a decision of the Ontario Human Rights Tribunal dealing with a discrimination complaint made by the plaintiff in 2009 against the Niagara Regional Police and several individuals[^1]. In that proceeding, the plaintiff alleged prohibited grounds for the failure to investigate his complaints. The plaintiff expressed his belief that his movements were under surveillance by national security service agencies such as CSIS, and that the electrical systems in his home and computer had been tampered with and that by some form of teleportation, items inside his home had been moved, occasionally to disappear and reappear some days later. The plaintiff’s complaint was dismissed.
[26] The defendants also requested an order declaring that the plaintiff is a vexatious litigant.
[27] The plaintiff and the defendants are neighbours. The defendants feel harassed by the plaintiff. The defendants submit that the claim is one instance in a pattern of harassing and vexatious conduct directed to the defendants by the plaintiff. Further, they allege that the plaintiff is attempting to re-litigate the same issues as arose in the Provincial Offences Court (Dog Owner’s Liability Act charge) that ended in a conviction[^2] and in the Ontario Court of Justice (threatening charge) that ended in the plaintiff agreeing to sign a peace bond.
Discussion and Conclusion:
[28] Rule 2.1.01 is designed as a summary process for a hearing in writing. That process is not a duplicate of an application under section 141 of the Courts of Justice Act for a declaration that the plaintiff is a vexatious litigant, or a motion under rule 21.01(3)(d), pursuant to which a claim could be deemed frivolous, vexatious or an abuse of process. Both of those options contemplate a decision based on affidavit evidence.
[29] In a case such as this one, the decision should be based on the content of the statement of claim, augmented by the plaintiff’s written submission and by submissions by the defendants. As to the latter, it would be inappropriate to consider unsworn allegations that might properly belong in a different forum. Specific factual allegations, such as the negative impact of the litigation on the defendants, should not be considered. The existence of other open litigation files is not relevant. The procedural history of related (predecessor) litigation is factually noncontroversial and can be considered.
[30] Rule 1.04(1) identifies a general principle applicable to the Rules of Civil Procedure that they “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. There is a public policy that litigants, whether represented by lawyers or not, should have access to the court for the determination of disputes.
[31] However, not every case deserves to be litigated through to a decision on the merits. Rule 2.1.01 is designed to allow the court to weed out cases that are clearly frivolous, vexatious, or an abuse of process. The objectionable nature of the proceeding should be apparent from a review of the statement of claim (without further evidence) and, as endorsed by the Ontario Court of Appeal in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at paragraph 9, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1.
[32] The plaintiff’s claim against the defendants primarily relates to the “dog bite” incident.
[33] His conspiracy theory includes involvement by law enforcement agencies which were raised in his 2009 Human Rights Tribunal complaint to which I have referred.
[34] Likewise, part of the claim against Peter Walchuk attempts to re-litigate the threatening charge which was dealt with in the Ontario Court of Justice.
[35] The plaintiff was given an opportunity to amend his original statement of claim which included the opportunity to seek whatever advice the plaintiff deemed appropriate.
[36] Many of the allegations contained in the fresh as amended statement of claim do not specifically involve the defendants but rather relate to external nefarious state actors who are not parties to the proceedings and who are alleged to have used some form of remote control over the plaintiff’s actions.
[37] The mental suffering claim relates only to the plaintiff’s difficulty serving process on the defendants.
[38] I conclude that the plaintiff’s claim is mainly an attempt to re-litigate previous matters. The plaintiff did not agree with the courts’ conclusions in those cases and makes the same arguments in this case in support of his positions. Doing so is an abuse of process.
[39] The plaintiff’s submissions confirmed his long-standing belief that reprisals are being taken against him by state law enforcement agencies because of his research between 1996 and 2005. They also reiterated his theory, which is infused throughout the statement of claim, that forces such as electromagnetism and radiation as well as on named methods of remote control are being applied to him by others.
[40] I find that those allegations do not involve the defendants. In that respect, they are vexatious in that they constitute allegations against the defendants without reasonable grounds. In addition, they are sufficiently lacking in a legal basis or in legal merit as to be frivolous.
[41] Undoubtedly the plaintiff has strongly-held views about how external forces have been applied to him, his family and pets. He does not feel that the previous proceedings against him, which are now concluded, were justified.
[42] Strongly-held views do not prevent a claim from being legally frivolous, vexatious or an abuse of process. I conclude that for the foregoing reasons, this claim is all three. Therefore the action is dismissed.
[43] The plaintiff’s approval as to form and content of the dismissal order is dispensed with.
[44] If a costs order is requested, submissions may be made as follows:
a. The defendants are to serve the plaintiff with written costs submissions and a bill of costs consisting of no more than five pages on or before November 4, 2019.
b. The plaintiff is to serve the defendants’ counsel with written costs submissions consisting of no more than five pages on or before November 18, 2019.
c. The defendants are to serve the plaintiff with any responding submissions on or before December 2, 2019.
d. All submissions are to be filed with the court no later than December 4, 2019. If submissions are not received by that date, or by any agreed extension, the matter of costs will be deemed settled.
Reid J.
Date: October 22, 2019
[^1]: Decision of Adjudicator J. Sengupta dated July 28, 2010 (2010 HRTO 1616). [^2]: Appeal to the Ontario Court of Justice dismissed as to the conviction, and leave to appeal to the Ontario Court of Appeal dismissed; leave to appeal from dismissal of leave application dismissed by the Supreme Court of Canada.