Court File and Parties
COURT FILE NO.: 16-1247 DATE: 2019-02-08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Chris Figliano, Plaintiff AND: Andrew Monkhouse, Defendant
BEFORE: Healey J.
COUNSEL: Chris Figliano, acting on his own behalf David Silver, for the Defendant Andrew Monkhouse
READ: February 4, 2019
Endorsement
[1]
Introduction and Procedural History
Counsel for the Defendant Andrew Monkhouse requests an order pursuant to rr. 2.1.01(1) and (6) of the Rules of Civil Procedure, dismissing this action on the grounds that it appears on its face to be frivolous, vexatious, and/or an abuse of process.
2Some procedural history is required for context. Other defendants have previously sought the same relief against this plaintiff - both the Attorney General representing the various named ‘federal defendants’, and Crown Law Office Civil, representing the Ontario Provincial Police and the Queen in Right of Ontario. On April 27, 2017, McCarthy J. ordered that the plaintiff be given notice of the request in accordance with r. 2.1.01(3). Mr. Figliano provided a response, which I have had the benefit of reading and which forms part of the basis for these reasons and the order made.
3The matter came before Vallee J., who declined to grant the relief sought. The crux of her reasons are:
There is no evidence before me that shows that this action is an attempt to re-litigate that matter or another matter that has already been before the court. I cannot determine whether this claim has been brought for a purpose other than the assertion of legitimate rights. Accordingly, I am unable to conclude that this action is frivolous, vexatious or an abuse of process.
The Federal defendants state in their requisition that there are no material facts pleaded against the Federal defendants that would establish a recognized cause of action in law. Rule 21.01(b) provides for the determination of issues such as this.
4A further request was made by counsel for the Crown’s office, asking for reconsideration of the matter. By endorsement dated December 12, 2018, after considering the matter, I ordered that Justice Vallee’s decision was not open for review by this court.
5Subsequently, I considered a request for a dismissal order pursuant to rr. 2.1.01(1) and (6) made by Andrew Monkhouse’s counsel in a different action (CV-15-1632). I granted the request: see Figliano v. Monkhouse, 2019 ONSC 583. As stated in that endorsement, Andrew Monkhouse has been sued by the plaintiff in at least four actions, all of which have now been dismissed under this rule.
6The court has discretion pursuant to r. 2.1.01(3) to relieve against the procedure for written submissions. I have determined that this is a case in which justice can still be served without providing the plaintiff with another opportunity to respond to a Form 2.1A notice. The reason for this is that the previous response, submitted by the plaintiff in 2017, outlines the basis for his claim not only against the federal and provincial Crown defendants, but also Andrew Monkhouse. Accordingly, there is no procedural unfairness created by denying the plaintiff a second opportunity to assert the merits of his pleading.
[7]
Analysis
Turning now to the pleading, the Fresh as Amended Statement of Claim asserts various causes of action and some material facts which are not always attributed to any particular one of the 19 named defendants. However, the two paragraphs that appear to pertain primarily to Andrew Monkhouse read as follows:
I tried to bring forward a claim and was threatened, intimidated and severely assaulted and almost killed and put in the hospital. Gilian Patterson hired a lawyer(s) and law firm to represent me while I was in the hospital and she had my case dismissed in court. I never consented to these lawyers representing me which includes but not limited to adding themselves as lawyer on record, amending the claim, and making submissions on my behalf. Several of the defendants committed perjury in court.
I filed a Statement of Claim which Andrew Monkhouse maliciously amended and sabotaged in order to have it dismissed, he nor anyone else from his law firm had my permission or consent to represent me in court.
8In his written response pursuant to r. 2.1.01(3), the plaintiff elaborates:
Recently, I was physically assaulted again to the point of needing hospitalization for my injuries. I am still suffering from head trauma and these injuries which of caused me immense physical mental pain and impairment. The people hired to assault me, identified the defendants and my lawsuits, as the reason for the assault, and left me with the threat that if I were to continue on with these various lawsuits against the defendants, especially and including openly testifying in an affidavit of service, that next time they would kill me. The police have also done worse to me in the past.
While currently under duress and fear for my life, I can’t even get proper legal advice or representation because the federal defendants have “paid off, bribed, coerced, and etc.” any lawyer whom I would attempt to consult with or hire. Or even in the case of Andrew Monkhouse Law Firm, to which I didn’t not agree to or consent to represent me, they represented me in court and purposely sabotaged my case when I had given NO consent for them to even represent me in the first place. The Andrew Monkhouse Law Firm, also one of the defendants/parties, was hired by the federal defendants in general (which of the federal defendants and the transaction is information that is not currently available to me and of which cannot be put in the statement of claim until this is made known to me).
I have made several requests for information from several of the defendants. For example, I have asked the Andrew Monkhouse Law Firm to provide their company and personal bank statements so that if a “bribe or payment” was made electronically via the federal defendants, then I could use this as my evidence. If unfortunately there is no paper trail to the transaction (like a bribe made in cash which criminals more likely do to attempt to cover their tracks) then I would have to of course rely on other evidence including but not limited to motive for example.
[9]
Frivolous and Vexatious Claims
Distilled, the plaintiff’s claims against Andrew Monkhouse are clearly frivolous and vexatious. He asserts:
that Andrew Monkhouse, a lawyer, was involved in hiring people to assault and injure the plaintiff because of the plaintiff’s lawsuits;
that the Andrew Monkhouse Law Firm was hired by the federal defendants to represent the plaintiff;
that this lawyer and/or firm were bribed or paid off by the federal defendants to purposely sabotage his case and have it dismissed;
Andrew Monkhouse maliciously amended and sabotaged one of the plaintiff’s previous statements of claim for the purpose of having the proceeding dismissed.
10This rule has been used to dismiss claims that fail to disclose a reasonable cause of action or are non-justiciable (Brown v. Lloyd’s of London Insurance Market, 2015 ONCA 235, at para. 6), or where the allegations have no chance of success (Shafirovitch v. Scarborough Hospital, 2015 ONSC 7627, at para. 5). It is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves: see Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488.
11Any one of those descriptors applies to this pleading. The plaintiff has written that he wants his day in court and I am cognizant that this rule is not to be used lightly. Yet the court should use this rule, where warranted, to ensure that defendants are not plagued by claims that have no chance of being successfully proven because, on their face, the allegations within, stretch beyond the limits of having any possible relationship to reality. In this case, I find that the Fresh as Amended Statement of Claim is frivolous and vexatious on its face.
12Further, this being the sixth claim that has come to my attention, in which the plaintiff has sued Andrew Monkhouse, it is clear that the plaintiff is using the court system in an abusive fashion. Five of those claims have now been dismissed under this rule.
13The Fresh as Amended Statement of Claim in this action provides, at para. 4, that “more details will follow in further amendments. Adding and or deletion of parties, and adding or deletion of causes of action to be allowed.” In his written response provided in May 2017, the plaintiff said that he would be “amending the statement of claim, as per my rights, again before and again after the close of pleadings.” These statements reveal Mr. Figliano’s misunderstanding that the court’s procedures are available to be used at his discretion. They are not.
[14]
Disposition
The action should be dismissed against Andrew Monkhouse. However, r. 2.1.01 does not expressly allow the court to dismiss or stay the claim against a single defendant. The facts of this proceeding appear to be unique, in that, as previously outlined, the action is currently going forward against the other named defendants as a result of Vallee J.’s order.
15In Scaduto, the Court of Appeal stated that r. 2.1.01 should be interpreted robustly so that the gatekeeping function of the motion judge can be effective (at para. 8). The Rules of Civil Procedure otherwise allow for discontinuance or dismissal against a particular defendant; for example, rr. 23.01(1) and 20.01(3). Only the Crown defendants have filed a Statement of Defence, without cross claims. Rules 1.04(1) and (2) provide a mechanism to determine matters not provided for in the rules by analogy, to secure an outcome that is just, most expeditious, and least expensive. This is a situation in which rr. 1.04(1) and (2) should be invoked to permit dismissal of the action against a single defendant.
16Accordingly, for the forgoing reasons, this court orders that the Statement of Claim shall be dismissed as against Andrew Monkhouse.
Healey J.
Date: February 8, 2019