Dunning v. Intercity Realty Inc., 2020 ONSC 4339

Court File and Parties

COURT FILE NO.: CV-18-599175 DATE: 20200714 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Amanda Dunning, Plaintiff

– and –

Intercity Realty Inc. et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Amanda Dunning, on her own behalf

READ: July 14, 2020

Endorsement

Background

1Ms. Dunning sued the defendants for wrongful dismissal and for payment of substantial commissions that she says are owing to her for real estate transactions that she sourced for the defendants. Her initial Statement of Claim is compelling. In just seven pages, Ms. Dunning puts forward claims that she was seriously mistreated by the defendants.

2The defendants moved for summary judgment to dismiss the action because, they say, Ms. Dunning commenced it after the limitation period had expired.

3By reasons dated May 28, 2019, Nakatsuru J. held there was a serious issue requiring a trial to determine if the time limit had passed before Ms. Dunning commenced her lawsuit. He noted that there were serious issues of credibility and reliability concerning the defendants’ evidence in particular.

4The plaintiff has changed her approach following the summary judgment motion. She has now delivered a proposed fresh as amended statement of claim that is some 85 pages long. It raises a large number of new issues and new claims. It is replete with evidence and argument well beyond a “concise statement of the material facts” on which she relies (see: Rule 25.06(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194). It is very difficult to read and understand.

5Despite efforts to have the plaintiff focus on what might be a compelling wrongful dismissal claim, she persists with seeking to convert this action into something that it cannot become. In her proposed new claim, Ms. Dunning raises numerous allegations of criminal activities and conspiracies in the Southern Ontario real estate market. To a certain extent, she has taken on the role of a whistleblower. I do not comment at all on the facts that she alleges and the evidence that she says supports her claims. However, I have an issue with the procedure. A wrongful dismissal lawsuit is not a judicial inquiry into corruption in regional real estate markets.

Procedural History and the Proposed Motion

6On June 11, 2020, Ms. Dunning submitted a request to bring an urgent motion under the processes then in place to deal with limitations on the court’s services caused by the Covid-19 pandemic.

7In her proposed notice of motion, Ms. Dunning sought the following heads of relief:

1. Approval of the plaintiff’s Fresh as Amended Statement of Claim.
2. A request for costs due to lying under oath and deliberately withholding evidence in hopes to keep millions of dollars in commissions for themselves that do not belong to the defendants.
3. A Court Order for photocopies of the transfer deed of land/land transfer tax affidavit on all parcels of land sold January 2016 to present that are over two acres in size from the municipalities primarily of Halton Hills, Milton, Oakville, Caledon, Whitechurch/Stouffeville, Brampton and Vaughan. Secondary from municipalities of Mississauga Burlington, City of Toronto, Markham, Newmarket, Aurora, Richmond Hill, King, East Gwillimbury, Oshawa, Whitby, Ajax, Pickering, and Clarington to determine land sales from the plaintiff’s work and sales which concluded that were a referral based upon the plaintiffs work and discover the off the books commissions received by the defendants or paid through a lawyer to them.
4. For a Court Order for photocopies of the transfer deed of land/land transfer tax affidavits on all sales by side parcels of land were [sic] both parcels were owned by the same owner and exchanged ownership title or personal property of over one acre in size that sold in the municipalities of Vaughan, Newmarket, Markham, Aurora, Richmond Hill, King, City of Toronto, Oakville, Brampton and Mississauga, Pickering, and Whitechurch/Stouffville to determine how many owners were duped into selling their land for half or less of its worth by defendants Mr. Sam Pisani.
5. A court order for investigation from FINTRAC (who has nothing to do by their public admission in a newspaper) of the plaintiffs findings from the municipalities excluding the real estate council of Ontario.
6. A court order to add Mrs. Alda Neves-Dube to the list of defendants due to their refusal to answer the questions under cross examination “who are the partners” and “what are their shares?” in addition to the statements made by the Mr. Vittorio Grossi concerning that “they” kept the plaintiffs commissions which included Mrs. Alda Neves-Dube.
7. A court order barring use for personal gain by any of the defendants, their clients, third parties, friends, relatives and/or the like any of the information contained in these proceedings, for example the Loblaws/Choice Properties development proposal is barred from use.

8The first paragraph of grounds relied upon in the notice of motion lists over 100 rules or sub-rules from the Rules of Civil Procedure. The grounds then discuss Ms. Dunning’s view of the improprieties committed by the defendants in connection with the motion for summary judgment and through the RCMP, the OPP, local police forces, FINTRAC, the Ontario Real Estate Association, the Real Estate Council of Ontario, and the Canada Revenue Agency. Amid her claims that she was denied funds to which she was due, she asks the court to undertake an investigation for adjoining landholders for whom, she asserts “no one cares.”

9It was apparent from the draft notice of motion and proposed statement of claim that the motion was neither urgent nor one that could be addressed under the limited processes then available to deal with motions during the pandemic. Accordingly, by endorsement dated June 11, 2020, I declined to schedule the motion as requested. After setting out the reason for refusing to schedule the motion, the endorsement also advised the plaintiff as follows:

In addition, the Plaintiff needs to obtain legal advice about what relief is available from a court. At first blush, for example, I know of no basis to order the relief sought by the Plaintiff in paragraphs 3, 4, 5, and 7 of her notice of motion and I do not understand the relief sought in para 2.

The Law Society of Ontario provides a lawyer referral service. If the Plaintiff cannot find a lawyer she should consider approaching the Law Society at: lsrs[@]lso.ca/LSRS/welcome.

10On July 6, 2020, Ms. Dunning delivered a Request to Schedule Short, Opposed Motions and Applications to a Judge dated July 4, 2020 pursuant to the expanded services then available from the court. Ms. Dunning described the short motion that she proposed to bring as follows:

1. Approval Fresh as Amended Statement of Claim, Rules 26.01, 26.02b),c), 25.06(1), 25.06(2), 25.06(3), 25.06(5), 25.06(8), 25.06(9), 25.07(1) (the defendants admissions), 25.07(3), 25.09(2),26.05(1),
2. Maximum costs/reparations for lying under oath and withholding evidence to conceal untold million(s) of dollars in commissions recieved [sic] from the plaintiff's endeavour/work kept which totaled $3M as early as May 2016 from which the plaintiff was to recieve[sic] her commission percentage. Rules 57.01(1), d),e),f),g),i), 57.01(4), 20.06 a),b), 20.07, 21.01(1),a),b), 2.02, 2.1.01(1), 2.1.02(1), 2.1.02(3), 20.02(1), 20.02(2), 20.04(2.1), 20.04(3), 30.02(1), 30.06, 30.07a),b), 30.08(2)a),b),c), 31.08, 32.01(1), 34.10(2), 34.10(4), 34.14(1)a),b),c),d),34.14(2), 34.10(4), 34.14(2), 51.06(1)c),

The motion was indeed frivolous and an abuse of court process with ill intent.

The motion shouldn’t have been able to be pushed through underhandedly or mistakenly as it did evidenced on both chambers meeting tape recordings.

The plaintiff was indeed fired admitted twice in transcripts, this was not in dispute. Absolutely no reason whatsoever not to have paid me all of my commisons [sic] when they first came in and subsequently as they came in. This case, the prior motion and all the slander, harassment, interference was just for greed.

The defendants purposely denied and refused to admit things that should have been admitted and answer "flip flopped" ballooning the costs of the transcripts.

Gross imbalance here in time lost, procedural exchange and now finance again. (all the basic costs of the prior motion was deferred to the trial judge because of the computer interception mention and evidence).

3. Court order to add in name Alda Neves Dube who kept the plaintiff's commissions for herself along with the defendants according to the broker of record/defendant. Rules 8.05(1), 8.06(1)c), 5.03(1), 5.03(2), 5.03(4), 8.03(1), 8.03(2),10.01(3), 10.01(4),
4. Court orders for external verification of land sales.(this is available, its critical and pointless to continue proceedings without it, the defendants have no future plan on suddenly telling the truth). Rules 30.10(1)a),b), 30.10(5), 1.04(1), 1.05,20.04(5), 29.03(2)b),29.2.03(1),30.02(1)(Disclosure repeated), 30.02(4), 30.04(5), 30.04(7), 30.05,
5. Court order barring the use by the defendants or third parties any information I have provided thus far for personal gain ie. Loblaws/Choice Property business proposal.
6. Court order (good deed) discover during my own land confirmation search the identity of the side by side home owner(s) that was duped or attempted out of $2M by defendant Sam Pisani and if there is more then [sic] one. ie. the Yonge st and Riverside drive properties of interest and/or others? 30.11, 30.10(1)a),30.1.01(8),

11By order dated July 6, 2020, I gave triage directions declining to book the proposed motion and directing the Registrar to issue a notice to the Plaintiff under Rule 2.1.02 with the following endorsement:

The proposed motion is not a short motion. If it is to proceed, it will have to be scheduled as a long motion in Civil Practice Court when it reopens - possibly later this month.

Ms. Dunning apparently paid no heed to my expression of concern that she appears to be seeking relief that a court cannot grant. Before embarking down a path toward a long and costly motion that possibly cannot succeed, in my view, Ms. Dunning ought to be given an opportunity to make written submissions as to why her motion, set out in her notice of motion dated May 30/20 and her short motion request form of July 4, 2020 should not be stayed or dismissed. A proceeding that has no chance of success is “frivolous”. It appears that Ms. Dunning’s motion on its face may be frivolous, so Rule 2.1.02(1) applies. I direct the Registrar to issue a notice in Form 2.1A requiring Ms. Dunning to provide no more than 10 pages of written submissions explaining why her motion is not frivolous i.e. how it can succeed at law. The Registrar may serve the Rule 2.1A notice by email with this Endorsement. Until the 2.1.02 issue is resolved, I order the motion brought by Ms. Dunning’s notice of motion dated May 30, 2020 and her short motion request form delivered July 4, 2020 are stayed pursuant to s. 106 of the Courts of Justice Act. The Registrar is not to accept any filings from Ms. Dunning concerning this motion other than her submissions under 2.1.02. Ms. Dunning needs legal advice to understand what relief is and is not available to her in a motion in a proceeding. [Emphasis in original.]

The Plaintiff's Submissions

12The plaintiff has responded with written submissions. She expresses upset that the defendants brought their motion for summary judgment. Although she succeeded on the motion, she argues that her rights under the Charter of Rights were violated. She also claims that she should have been awarded costs of the motion rather than see them deferred to the trial as was apparently ordered. In addition, Ms. Dunning says that the defendants have slandered her. While over 300 builders were initially happy to speak with her, now, she says, 186 will not respond to her. She says that she has called the police, regulators, and the Toronto Star and no one will speak to her. From this, she concludes:

This evidence alone points to a commission agreement where the plaintiff is owed a lot of money on more than one property hence the orchestrated blocking. This corruption necessitates three court orders requesting external verification of land sales and data, one of which is a “good deed” to help another financial victim. Two charts on pages 75 and 76 in the Fresh as Amended Statement of claim show over 30 land sales in Halton Hills and Milton in 2016 alone where the roll number was absorbed by another nearby: in other words, a builder. The defendants have gone to the greatest of lengths to conceal the other land sales, there is no reason to tell the truth or produce documents now, we've had a “mini trial” already which proves their refusal to cooperate. To proceed without this motion is a waste of time.

13The rest of the plaintiff’s submissions under Rule 2.1.02 deal with the plaintiff’s detailed analysis of items from the defendants’ testimony on the summary judgment motion to establish her assertion that the defendants lied in that proceeding or otherwise to try establish the merits of her claim for commissions.

14Ms. Dunning concludes her submissions under Rule 2.1.02 as follows:

The plaintiff is insulted and/or wonders why her desire to have a Fresh as Amended Statement of Claim approved which the defendants suggested she create and to request court orders for external confirmation given the blatant corruption, lying and desperation to withhold information; How is it if a woman asserts herself she is assumed vengeful? Why in the unusual circumstances is her costs deferred? Why given the overwhelming evidence now and the rules to support it would the plaintiff not be awarded costs for sanctions for deliberate misuse of the rule and withholding of documents? The plaintiff put off much needed costly medical procedures and in helping her family with things to be able to pay for this case. Is what transpired just? Is she not going to receive the commission from all the other properties she is due, and they get away with this? [Emphasis in original.]

Analysis

15The plaintiff suffers from a lack of understanding of the civil legal process. I can try to point her to the areas where she needs help and explain the orders I am making. But I cannot be her lawyer. I cannot know if she is well advised to make the personal sacrifices that she is making to pursue the case. Neither has the court ever suggested that she is being vengeful. In fact, as best as I can tell, both Nakatsuru J. and I have suggested that on its face, the plaintiff’s initial claim for wrongful dismissal and outstanding commissions appears to be compellingly stated (assuming the facts pleaded are true).

Procedural Deficiencies of the Proposed Motion

16However, there are procedural laws that govern a lawsuit and what is and is not claimable. The plaintiff wishes to bring a motion in the lawsuit. On its face it is plain and obvious that the motion cannot succeed as currently proposed. Here is why:

a. The proposed Fresh as Amended Statement of Claim is not a proper pleading. As alluded to above, Rule 25.06(1) requires that a statement of claim simply set out factual assertions on which the plaintiff relies that, if proven at trial, would entitle her to judgment. The 85-page proposed draft is not a proper statement of claim. It is prolix in the extreme and is virtually unreadable. It is full of legal argument, evidence, and conspiracy theories. One cannot read through it and know what facts the plaintiff intends to prove that entitle her to judgment. While this could have gone to a Master, if it had been brought on its own, the deficiencies in the draft document are so extreme that the outcome is obvious on the face of the document. b. The court cannot hear a motion to reconsider the costs order made by Nakatsuru J. on the summary judgment motion. If the plaintiff wishes to challenge the costs order and raise the alleged misconduct of the defendants during that motion, she can consider if she has a basis to seek leave to appeal to the Divisional Court. Only an appellate court can alter a decision of a judge deferring the costs of a motion to the trial. c. In the discovery portion of the lawsuit, the plaintiff will be entitled to production of relevant documents in the possession, power, and control of the defendants under a discovery plan that is proportional to the seriousness of the issues. There is no process for the court to order external or independent verification of land sales. The plaintiff is free to undertake searches of the public land registries. She may wish to hire experts who might assist her so she can present at the trial whatever evidence she finds. There is no process for the court to require verifiable evidence collection process independent of the parties and their agents. d. A civil lawsuit is not a forum to advance claims for others as a “good deed”. People can sue only for themselves and those under their legal charge. e. There is no legal basis discernable in anything written by the plaintiff thus far to provide a basis for some form of confidentiality obligation or for an order enforcing a confidentiality term pending the trial. No such relief is pleaded as yet. f. A motion to add a party defendant may be made on proper grounds and notice. If done on a standalone basis, it may be that a motion to add a party could be heard before a Master. The plaintiff should expect that any order adding a party now will likely entitle that new party to raise at trial the question of whether the limitation period had already run out before he or she was added to the claim.

17The plaintiff is taking what appeared to be a compelling claim and weakening it by burying it amidst allegations of grandiose conspiracies that are neither necessary nor helpful in getting her case to court. If she is truly owed the commissions she seeks, it is in her interest to get to trial as quickly and economically as possible. That means, she should keep her case as narrow and tight as she can so that she needs to prove the fewest facts possible to entitle her to judgment if she is believed.

18Civil lawsuits are about money. Plaintiffs sue to be paid money to which they say they are entitled. It is open to the plaintiff to determine that it is a waste of time to proceed without an order of the court imposing an independent verification process on land title documents in Southern Ontario. It is certainly open to the plaintiff to decide whether the personal sacrifices involved in prosecuting the lawsuit justify the effort even if potentially successful. Questions regarding how to best prove a case and questions around the cost benefit calculus involved in the lawsuit process are fundamentally important issues on which a lawyer can provide experienced, expert advice. As a self-represented party, the plaintiff has every right to participate fully and knowingly in the proceeding. But she does not have the training or experience to know how to plead, how to prove land titles evidence, or how to balance the myriad of costs against the possible benefits of steps in the process and the process as a whole. There is nothing wrong with a person representing herself in court. But a layperson cannot expect to be able to understand procedural and substantive issues that take years of formal education to learn or to have advocacy skills that are honed over decades of skills training and experience.

Conclusion

19The plaintiff has brought a very significant lawsuit for a substantial amount of money. The issues appear to be serious. I say nothing on the merits as I have no basis to do so on this review process without evidence. I strongly encourage and advise the plaintiff to seek legal advice if only on a limited retainer basis to formulate a theory of the case to go forward. Having reviewed the plaintiff’s notice of motion dated May 30, 2020, and her motion request form, I am satisfied that the motion proposed cannot succeed and is frivolous. On its face and in the manner by which the plaintiff has presented this motion, it meets both branches of the test under Scaduto v Law Society of Upper Canada, 2015 ONCA 733. The motion is stayed and will not be scheduled in its current form.

20This order does not prevent the plaintiff from moving before a Master to add a party on proper notice and narrowly tailored evidence. The draft Fresh Amended Statement of Claim referred to in this motion is not to be put forward again. It is probably a useful guide to the plaintiff or a lawyer for the plaintiff on a number of evidentiary issues. It just is not a pleading. However, if the plaintiff obtains advice and is able to put forward a draft pleading that complies with Rule 25.06(1) on its face, there is no reason that she cannot seek leave to amend from a Master on appropriately narrowly tailored evidence.

21Finally, to answer the last question asked by the plaintiff in her submissions on this review, no one is suggesting that the defendants should be able to “get away with” illegal conduct. Rather, the court is trying to assist the plaintiff understand the procedural path for her to try to hold the defendants accountable in court if she can prove facts that establish a legal basis to do so.

Order

22Order to go staying the motion to a judge set out in the plaintiff’s notice of motion dated May 30 and referred to in the Request to Schedule Short, Opposed Motions and Applications to a Judge dated July 4, 2020 without prejudice to the plaintiff’s entitlement to move before a Master to add a party or to amend her statement of claim on properly narrowed evidence (and not advancing the draft Fresh as Amended Statement of Claim referred to in her notice of motion).

F.L. Myers J.