Superior Court of Justice - Ontario

COURT FILE NO.: CV-19-00617232-0000

DATE: 2019-12-16

RE: Silvy Joyce D’Souza, Plaintiff

AND: Toronto Police Services Board, Zijin Lu, Jianyun Du, Marshall Yarmus, David Strashin, Pradip Sharma, Shareen Raj, Defendants

BEFORE: Justice W. Matheson

HEARD: In Writing

ENDORSEMENT

[1] This matter was referred to me by the Registrar’s office pursuant to Rule 2.1.01(7) of the Rules of Civil Procedure, following receipt of a written request from counsel to the defendant David Strashin. Strashin requested an order dismissing this action under Rule 2.1.01(1).

[2] By endorsement dated October 25, 2019, the Registrar was directed to give notice to the plaintiff that the Court was considering making an order under Rule 2.1.01. The plaintiff was given an opportunity to respond. No response has been received, although affidavits from the plaintiff were delivered in another action that is also before me under Rule 2.1, which I address below.

Statement of Claim

[3] In the statement of claim, the plaintiff seeks damages of $20 million, punitive damages of $20 million and other relief.

[4] The allegations in the statement of claim recount various steps taken by the plaintiff in relation to problems with her rental unit, problems with her landlords, complaints the plaintiff made to the police about her unit and her landlord, attendances by the police in response to complaints made by others regarding conduct of the plaintiff, and proceedings before the Landlord Tenant Board (“LTB”), the Divisional Court and the Superior Court.

[5] The defendants are as follows:

(i) Zijin Lu and Jianyun Du, the plaintiff’s landlords;

(ii) Marshall Yarmus, a paralegal;

(iii) David Strashin, a lawyer;

(iv) Pradip Sharma and Shareen Raj, other tenants in the building; and,

(v) the Toronto Police Service Board (“TPSB”).

[6] The section in the statement of claim entitled “Causes of Action” alleges harassment in relation to a rent payment. That rent payment was part of the basis for proceedings before the LTB resulting in an order that the plaintiff alleges is unconstitutional. Harassment is alleged against three of the defendants (the TPSB and the landlords). Elsewhere in the statement of claim, other things are mentioned, as follows: physical assault, breach of the Canadian Charter of Rights and Freedoms, intimidation, conspiracy, malfeasance of public office, discrimination, breach of the tenancy agreement, violation of the Residential Tenancies Act, obstruction of justice, miscarriage of justice, fraud, defamation, perjury, attempted extortion, trespass and contempt of court.

[7] The main focus of the statement of claim is a dispute about the condition of the plaintiff’s unit, unpaid rent and events that transpired regarding the tenancy relationship. There were proceedings before the Landlord Tenant Board regarding the tenancy issues, giving rise to an eviction order by the LTB that the plaintiff alleges is false, invalid and unconstitutional. As shown in the statement of claim, that order was appealed, unsuccessfully, to the Divisional Court. The plaintiff claims that the Divisional Court order is similarly flawed.

[8] Although the allegations in this action relate mainly to the Landlord Tenant Board issues and related court proceedings, the plaintiff also alleges that she was physically assaulted by police officers on two occasions. The alleged assaults are pleaded specifically in the statement of claim. Although those alleged events occurred in the course of the events related to the landlord tenant dispute, the alleged conduct does not fall within the scope of the matters before the LTB and related orders. As well, the plaintiff alleges that the defendants Pradip Sharma and Shareen Raj signed false letters against her. Based on the statement of claim, it is not clear that alleged false letters necessarily fall within the matters before the LTB and related orders.

Rule 2.1.01

[9] Rule 2.1.01(1) authorizes the court to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. The court does not consider evidence under Rule 2.1, only the pleadings and potentially judicial decisions in other cases.

[10] The court has recognized that Rule 2.1 “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”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, leave to appeal refused, [2015] S.C.C.A. No. 488, at paras. 7-9.

[11] However, Rule 2.1 should only be used for “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”: Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 8, citing Scaduto.

[12] Where appropriate, the court may dismiss the claim as against some of the defendants but not others: Brown v. Lloyd’s of London Insurance Market, 2015 ONCA 235.

Related proceedings

[13] The plaintiff has commenced at least two other actions that focus on her tenancy-related issues.

[14] One of the actions is referred in the statement of claim, specifically Court file No. CV-18-599357-0000 (the “2018 Action”). That action was dismissed under Rule 2.1.01 by decision of Favreau J. dated March 22, 2019 (2019 ONSC 1851). This action was commenced one week later, on March 29, 2019, naming all six defendants in 2018 Action, and adding the TPSB.

[15] The plaintiff now alleges that the motions judge erred in the Rule 2.1.101 decision dismissing the 2018 action. But there is no indication that the decision was appealed.

[16] It is apparent from the summary of the allegations in the reasons for decision that the 2018 action not only involved almost all the same parties, but it was also founded on the plaintiff’s tenancy issues.

[17] There is another action before me, also brought by this plaintiff and also the subject of a request under Rule 2.1. That action is CV-18-599366-0000. It names the LTB as the sole defendant. That action is focused mainly on the LTB proceedings and also substantially overlaps with this claim. By decision also of today, that proceeding is being dismissed under Rule 2.1.01 (2019 ONSC 7250).

Analysis

[18] In this action, the plaintiff is again attempting to relitigate issues already addressed before the LTB and the Divisional Court. She cannot do so. As stated by Favreau J. in the 2018 action, at para. 37:

Ms. D'Souza's claim that she was wrongfully evicted from her apartment has been finally decided. She has exhausted all available remedies. She cannot now seek to re-litigate this issue through this action. The principles of issue estoppel and res judicata apply. This application is nothing more than a collateral attack on the decisions of the Board and the Divisional Court.

[19] Bald allegations of conspiracy are also made in the statement of claim that relate to the tenancy issues and are so wanting in particularity that they are frivolous and vexatious.

[20] There are, however, two aspects of the claim that must be addressed separately:

1. The statement of claim alleges assault by police officers, an allegation that, if proved, may found a claim against the TPSB for damages. There are other allegations of police misconduct as well. These claims may be flawed, or incapable of proof, but at this early stage I am not prepared to dismiss the claims against the TPSB under Rule 2.1.01.

2. The tort of defamation is included in the statement of claim, and it is alleged that the defendants Pradip Sharma and Shareen Raj signed letters containing false statements against the plaintiff. The cause of action in defamation is not fully pleaded by the plaintiff. For example, the statement of claim does not state the words complained of in the letters. The plaintiff will need to address the pleading deficiencies to pursue that claim. However, at this juncture I am not prepared to dismiss the claim under Rule 2.1.01.

[21] This does not mean that the plaintiff will win her lawsuit against the TPSB, Pradip Sharma or Shareen Raj. In addition, the defendants may still bring motions seeking the early dismissal of the claims against them under other rules in the Rules of Civil Procedure.

[22] As stated in para. 2, above, the plaintiff filed no written submissions in response to the Rule 2.1 notice in this action. However, she did file two affidavits in the other action that is also before me under Rule 2.1 referred to above. I have considered the possibility that the plaintiff thought those two affidavits would be considered in this action too. I note that if they had been, they would not have affected the outcome.

[23] This action, except as against the TPSB, Pradip Sharma and Shareen Raj, is dismissed under Rule 2.1.01. The stay of proceedings ordered in the October 25, 2019 endorsement at para. 2(c), as against the TPSB, Pradip Sharma and Shareen Raj, shall end 60 days from today.

Justice W. Matheson

Date: December 16, 2019