Court File and Parties

COURT FILE NO.: CV-19-00613576-0000

DATE: 2019-11-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GARY DAVID BROWN, a.k.a. GARY DAVID ROBERT BROWN, Plaintiff

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BTRUST SUPERMARKET, INC., or as they may be called (“BTRUST”), MAZO-CHOWBAY BARRISTERS AND SOLICITORS (“MAZO-CHOWBAY”), LAW SOCIETY OF ONTARIO AND ITS PREDECESSOR THE LAW SOCIETY OF UPPER CANADA (“LAW SOCIETY”), ADJUSTERS OF SAID LAW SOCIETY LAWYERS' PROFESSIONAL INDEMNITY CORPORATION (“LAWPRO”), HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF THE ATTORNEY GENERAL OF ONTARIO (“ONTARIO”) and, but without limitation, ALL PAST AND PRESENT ASSIGNS AND AGENTS THEREOF AND ALL HEIRS AND SUCCESSORS OF SAME, Defendants,

BEFORE: Justice S. Nakatsuru

COUNSEL: Gary David Brown, Self-Represented, Plaintiff Adam C. Pantel, for the Defendants Mazo-Chowbay Susan M. Sack, for the Defendant Law Society of Ontario and its Predecessor the Law Society of Upper Canada Debra Eveleigh, for the Defendant Lawyers’ Professional Indemnity Company Nadia Laeeque, for the Defendant Her Majesty the Queen in Right of Ontario

HEARD: November 26, 2019

ENDORSEMENT

[1] All Defendants, except BTrust Supermarket Inc. (“BTrust”), bring motions to strike Mr. Brown’s Statement of Claim and dismiss his actions. They bring these motions under rule 21.01(1)(b) and rule 21.01(3)(d).

[2] Mr. Brown claims that he suffered damages from a slip and fall at the location of BTrust on Wilson Avenue in Toronto on August 7, 2017. To be clear, Mr. Brown’s claim against this Defendant will continue regardless of my decision.

[3] For the following reasons, the motions are allowed. Mr. Brown’s Statement of Claim is struck. There will be no leave to amend. In addition, his claims are dismissed as frivolous, vexatious, and an abuse of process.

A. The Claim against Mazo-Chowbay, Barristers and Solicitors (“Mazo”)

[4] At its core, Mr. Brown pleads that he retained Mazo to represent him on the slip and fall on September 1, 2017. On June 27, 2018, Mazo sent a letter advising him that he was being “abandoned”.

[5] The fundamental part of Mr. Brown’s claim against Mazo is found in paragraph 4.5 of the Statement of Claim. I find it plain and obvious that many of these claims are not causes of action known in law. With respect to others, Mr. Brown has not pleaded any material facts to substantiate his claims.

[6] Mazo opposed the granting of any leave to amend. I was concerned with whether leave to amend should not be granted to Mr. Brown. Leave to amend should not be withheld lightly. But I find that it is not possible on these facts to amend the claim to support a reasonable cause of action. The one allegation that initially caused me concern, Mr. Brown’s claim that Mazo refused to provide him with the information about BTrust, including the name, telephone number, and email address of its legal counsel and insurer, cannot lead to any claim for damages. Mr. Brown has now brought his claim against BTrust within the limitation period. In these circumstances, amendment cannot cure the deficiency that regardless of any failure to meet the standard of care expected of Mazo, Mr. Brown has not suffered any damages.

[7] I further find that the claim against Mazo should be dismissed as frivolous and vexatious. I have considered the affidavit of Mazo counsel under this Rule. As the affidavit of counsel shows, Mazo terminated the retainer after BTrust denied liability after conducting an investigation. Mazo confirmed by letter to Mr. Brown dated June 26, 2018, that they would not be pursuing Mr. Brown’s claim, advised him of the applicable limitation period, and recommended he seek other legal advice with respect to his tort claim if he wished to pursue it. It is obvious to me that this action cannot succeed and if allowed to proceed, would lead to no possible good since no reasonable person can reasonably expect to obtain relief.

B. The Claim against the Law Society of Ontario (“LSO”)

[8] The claim against the LSO is essentially found in paragraph 3 of the Statement of Claim. Mr. Brown claims that the LSO failed to warn him or the general public about the actual or potential incompetence of its members and failed to properly monitor or screen its members about their suitability to work. He also alleges malice against the LSO.

[9] I agree with the LSO that Mr. Brown’s allegations are vague, mainly incomprehensible, replete with bald assertions and do not meet any requirements of a recognized cause of action.

[10] In addition, the LSO enjoys statutory immunity: Edwards v. L.S.U.C., 3 S.C.R. 562. There are no material facts to support any allegation of malice or bad faith that would preclude reliance on this.

[11] It is further plain and obvious that no tenable cause of action is possible on the alleged facts and the defects go to the very root of the action. No leave to amend is granted.

[12] Mr. Brown has had long-standing complaints against the legal profession and others. In his oral submissions, Mr. Brown has passionately put forth his views on this. However, this is not the first time that Mr. Brown’s similar attempts at instituting legal proceedings has met the barrier of rule 21.01(3)(d): Brown v. Loblaws Companies Ltd. et al., 2015 ONSC 7629; Brown v. Lloyd’s of London Insurance Market et al., 2015 ONCA 235; Brown v. City of Toronto et al., 2017 ONSC 2237.

[13] Thus, I further find that his claim is frivolous, vexatious, and an abuse of process. It should be dismissed against the LSO for this reason.

C. The Claim against Lawyers’ Profession Indemnity Company (“LawPro”)

[14] Mr. Brown’s claims against LawPro are essentially found in paragraph 4.7 of the Statement of Claim.

[15] Mr. Brown claims, amongst other things, that LawPro negligently failed to warn, guide, monitor, sanction etc., any lawyers so that they do justice for their clients. There are also bald claims in contract, fiduciary duties, or other duties. His claim is largely unintelligible. Even read generously, it is difficult to find any cause of action in the claim that can succeed. This is plain and obvious.

[16] Even if one could read in a negligence claim, there are no material facts pleaded that supports a duty of care or any damages flowing from a breach: 101395 Ontario Inc. v. Julian G. Sakinofsky et al., unreported October 8, 2009, at para. 32; Harrison v. Ontario, 2007 56092.

[17] I find that leave to amend should not be granted. It is not possible that amendment can cure the defects.

[18] In a similar vein as the other Defendants, this claim also should be dismissed as frivolous, vexatious, and an abuse of process. LawPro relies on the previous cases that involved Mr. Brown.

D. The Claim against Her Majesty the Queen in Right of Ontario (“Ontario”)

[19] Mr. Brown’s claims against Ontario are found in paragraph 4.8 of the Statement of Claim. Read generously, Mr. Brown alleges negligence in that Ontario failed to investigate Mazo and failed to have policies in place relating to the investigation.

[20] I find it plain and obvious that there is no reasonable cause of action.

[21] First, I find that it is plain and obvious that Ontario owes no duty of care to Mr. Brown in the circumstances pleaded in the Statement of Claim: Norris v. Gatien, 2001 2486 (ON CA), [2001] O.J. No. 4415 (C.A.); Wellington v. Ontario, 2011 ONCA 274.

[22] No material facts are pleaded to support any duty. No facts are pleaded regarding any interaction between Mr. Brown and Ontario. Indeed, it is not possible to plead any facts that could sustain this claim. Leave to amend is denied.

[23] Mr. Brown also seeks an order that Ontario pay for his legal action. I find that there is no basis for which to grant any order to Mr. Brown that his legal costs should be covered by the Attorney General for Ontario. What is left now is a claim for negligence relating to an injury suffered in a grocery store. From what I know of Mr. Brown’s abilities, this is something that Mr. Brown is capable of litigating without such an exceptional order he is seeking against Ontario.

[24] For similar reasons that relate to the other Defendants, I find that the claim against Ontario is frivolous, vexatious, and an abuse of process and should be dismissed for that reason as well.

E. Costs

[25] I have received Bill of Costs of the Defendants and have given the parties an opportunity to make costs submissions.

[26] Pursuant to the Courts of Justice Act, s.131 (1), the Court has a broad discretion when determining the issue of costs. Rule 57.01 (1) sets out the factors to be considered by the court when determining the issue of costs.

[27] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON CA), 2004 14579 (Ont. C.A.). I have considered these factors, as well as the principle of proportionality (r. 1.01(1.1)), keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[28] In this case, I fully appreciate Mr. Brown’s situation. His life has not been easy. I also understand the importance of ensuring litigants who have little financial and social capital to have access to the courts. All that said, the civil justice system has finite capacity and resources. Furthermore, the Defendants were brought into these actions wholly without any merit. Counsel were required to bring this motion. Thus, as successful parties, some recognition must be given to their own situation. Considering all the appropriate factors relating to costs, I find that a fair and just order of costs is a nominal amount of $800 payable forthwith by Mr. Brown to each of the Defendants.

[29] I dispense with the Defendants seeking Mr. Brown’s approval in settling the order.

Justice S. Nakatsuru

Released: November 28, 2019