Court File and Parties

COURT FILE NO.: CV-20-82889 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roger Callow, Plaintiff AND: Alexander Bissonnette Esq. (representing Towngate Family Medicine), Defendant

BEFORE: Master Kaufman

COUNSEL: Kristopher Dixon, Counsel for the Defendant

HEARD: In writing

Reasons for Decision

[1] On March 10, 2020, the defendant requested an Order under sub rule 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 dismissing this action on the ground that the Statement of Claim appeared on its face to be frivolous, vexatious or otherwise an abuse of process, and an Order that the action be stayed pending the resolution of this request. The defendant included with its request the reasons for decision of RSJ MacLeod which dismissed another of the plaintiff’s Statements of Claim and the pleadings in a related Small Claims Court action.

[2] I should note that on March 30, 2020, I dismissed under Rule 2.1 yet another of the plaintiff’s Statements of Claim, in which RSJ MacLeod himself was the named defendant. I concluded that the Statement of Claim was frivolous and vexatious on its face.

[3] Of course, the fact that some of the plaintiff’s other cases were dismissed under this Rule does not mean that all pleadings authored by this plaintiff will have the same fate. Each case must be considered independently. As Myers J. wrote in GAO v. Ontario WSIB, 2014 ONSC 6497 As Myers J. remarked in GAO v. Ontario WSIB, 2014 ONSC 6497, even a vexatious litigant can have a legitimate complaint, and it is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case.

[4] The Statement of Claim in this action names Alexander Bissonnette as a defendant. Mr. Bissonnette is identified as being a lawyer representing Towngate Family Medicine. At the heart of the plaintiff’s complaint is the suspension of his driver’s licence following the reporting of a medical concern to the Ministry of Transportation.

[5] It is not entirely clear what Mr. Bissonnette’s role would have been in the series of events that led to the suspension of the plaintiff’s drivers’ licence. The plaintiff pleads that « the defendant has willfully and wrongfully perpetrated a fraud […] by withholding disclosure which led to the cancellation of [his] driver’s licence in perpetuity ». He states that the defendant conspired with the Ontario Ministry of Transport and other unnamed family members. The plaintiff alleges that Mr. Bissonnette conducted himself « in such a fashion that the plaintiff would be denied access to this all important disclosure in both of the above actions». These allegations are contained in the first paragraph of the Statement of Claim.

[6] The next six paragraphs do not mention Mr. Bissonnette. They are included for context « to understand the case against Bissonnette ESQ ». These six paragraphs were also contained in the plaintiff’s other Statements of Claim (the ones that Justice MacLeod and I struck under Rule 2.1). The pertinent part of these paragraphs are the plaintiff’s allegations that the Doctor Jahagirdar was induced to breach her duties to the plaintiff, that the defendants made false statements to third parties with the intent to injure the plaintiff, that they « bad mouthed the plaintiff » and that they interfered with his relations with the Ministry of Transportation. The plaintiff wishes to obtain the disclosure Dr. Jahagirdar received and which caused her concerns.

[7] The plaintiff is self represented, and his claim must be read generously:

In determining whether a Statement of Claim or motion should be dismissed under Rule 2.1, the Statement of Claim, especially when drawn by a self-represented litigant as in this case, should be read generously. The words that the Plaintiff uses should be given their broadest ordinary meaning. The court should search for the cause of action which may be expressed inelegantly by the litigant, buried among statements that may be vexatious or superfluous, to find what Myers J called “a core complaint”. This does not mean, however, that the claim should be read over-broadly, that the words used should be given a tortured meaning, or the rules of pleading should be abandoned merely because the litigant the self-represented. The rules of pleading still apply. A cause of action and the facts supporting each of the elements of the cause of action must be pleaded. [1]

[8] Here, reading the claim generously, the plaintiff’s core complaint is that Mr. Bissonnette withheld information, which was presumably favourable to the plaintiff, and which led to the cancellation to his drivers’ licence. The defendant did so willfully and conspired with other defendants who provided false information to Dr. Jahagirdar. In determining whether a claim should be struck under Rule 2.1, the Court should proceed cautiously. Myers J. asked in Husain v. Craig, 2015 ONSC 1754, at para. 10: “what if the plaintiff's allegations are true?”

[9] These are serious allegations, and of course they may not be true. But as the Court of Appeal noted in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 “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” (at para. 8).

[10] Here, I conclude that the plaintiff has alleged facts which, if proven true, may give rise to a discernable cause of action. Once a pleading asserts a cause of action and does not bear the hallmarks of frivolous, vexatious or abusive litigation, resort to rule 2.1 is not appropriate as a means for bringing the action to an early end. [2] The Statement of Claim does suffer from drafting deficiencies, and the plaintiff could have been more specific in his allegations against Mr. Bissonnette, but this is not one of the clearest of cases where the abusive nature of the claim is apparent on the face of the pleading. If the defendant wishes to strike this claim, he should bring a motion under the appropriate rule.

[11] The defendant’s request is denied.

Master Kaufman Date: April 30, 2020

[1] T.B. v. OCL, 2016 ONSC 3816, at para 19. [2] Khan v. Krylov & Company LLP, 2017 ONCA 625, at para 14.