Court File and Parties
Court File No.: CV-97-CU-119341 Date: 2020-07-28 Superior Court of Justice - Ontario
Re: Anderson T. Walcott, Plaintiff And: Ontario Provincial Government, Ministry of Citizenship Culture and Recreation, Ontario Human Rights Commission, Ministry of Environment and Energy, York (Ontario) Hydro, Ministry of the Attorney General, Etobicoke Small Claims Court, North York Small Claims Court, Masters Court, G.B.C. Canada Inc., Canada Trust Corporation, Toronto Transit Commission, Bell Canada, Schwerdt Map Art, Society of Management Accountants of Ontario, Bencharge Credit Service, All State Insurance of Canada, General Accident Assurance Co., General Motors Acceptance Corporation, Ontario Ministry of Finance and Ontario Insurance Commission, Defendants
Before: Schabas J.
Counsel: Anderson T. Walcott, in person Shannon Paine, Counsel, for the Defendant, Society of Management Accountants of Ontario
Heard: July 27, 2020
Endorsement
[1]
Background
In February 1997, the plaintiff commenced this action against 21 defendants, one of which was the Society of Management Accountants of Ontario, now the Chartered Professional Accountants of Ontario (“CPAO”). On April 1, 1997, Southey J. struck out the statement of claim against the CPAO on the ground that it failed to disclose a cause of action and ordered the plaintiff to pay $250 for its “costs of the action.” His endorsement did not address whether the claim could be amended, and the subsequent formal Order did not provide leave to amend.
2On April 9, 1997 Campbell J. struck out the action against another defendant, Canada Trust Company. Although I do not have a copy of Campbell J.’s Order, it seems that it specifically denied leave to amend, and the plaintiff appealed that Order.
3On April 7, 1997, however, the plaintiff served on the defendants, including the CPAO, an amended claim pleading various torts with more specificity. The CPAO took the position that the plaintiff was barred from amending the claim against it, citing Rule 26 of the Rules of Civil Procedure.
4In June 1997, Molloy J. struck out the action against General Motors Acceptance Corporation, and on July 18, 1997, Ground J. struck out the action against 15 other defendants, specifically without leave to amend. Justice Ground’s Reasons and Order are in the record before me. He addressed the motion to strike on the basis that the amendments to the claim had been made. However, as the action had already been struck out against the CPAO it did not participate in the motion before Justice Ground.
5The plaintiff appealed the Orders of Campbell J., Molloy J. and Ground J. to the Ontario Court of Appeal without success, and the Supreme Court of Canada dismissed the plaintiff’s application for leave to appeal on September 3, 1998.
6The plaintiff did not appeal the Order of Southey J.
7On November 6, 1998 the plaintiff was declared a vexatious litigant by Trainor J. That order was rescinded by Whittaker J. on August 18, 2010, but it was not until 2017 that the plaintiff attempted to continue the action against the CPAO. Since that time there have been a large number of appearances in Civil Practice Court, and before Masters and Judges, as the plaintiff has sought to pursue the action against the CPAO. The plaintiff has also attempted to note the CPAO in default which the registrar has refused to do.
[8]
The Motion to Note in Default
Although this motion seeks default judgment, the plaintiff agreed that the issue before me is whether the CPAO should first be noted in default for failing to defend the amended statement of claim served in April 1997. If so, a motion for default judgment would follow.
9The plaintiff’s position is that because Southey J.’s order is silent on the issue, he has the right to amend the claim against the CPAO and properly did so. The plaintiff, who is self-represented, advised me, however, that he raised the issue of whether he could amend the pleading with Southey J. who, according to the plaintiff, recommended the plaintiff to seek legal advice. There is no record before me of this exchange, which in any event does not assist the plaintiff in his submission that Southey J. must have intended that leave to amend be available to the plaintiff.
10The plaintiff also relies on the fact that Ground J. dealt with the motion to strike by other defendants on the basis of the amended claim and therefore, as the plaintiff put it, “approved the amendments.” This too does not assist the plaintiff. Ground J. properly considered the amended claim, as the plaintiff was entitled to amend the claim against those other defendants prior to those defendants’ motions, and it made practical sense to treat the claim as amended against them on the motion. However, Ground J. did not “approve the amendments”; indeed, he did not address the validity of the amendments against the CPAO, which was not a party to the motion before him, and he struck out the claim, as amended, against the 15 moving parties.
11In my view the motion to note the CPAO in default must be dismissed. Southey J. struck out the action against it on April 1, 1997. He did not give leave to amend. Rule 26.02 of the Rules of Civil Procedure permits amendments in three circumstances: with leave of the court, on consent, or “without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action.”
12In this case Southey J. did not grant leave to amend the claim, and it cannot be given implicitly. There was also no consent to amend. Further, when the plaintiff sought to amend his claim the CPAO was no longer a party to the action as the action had been struck out against it. Therefore, the plaintiff was required to seek leave to amend the claim to include the CPAO if he wished to pursue the CPAO as a defendant.
13As the plaintiff did not seek or obtain leave to amend his pleading, and did not appeal Southey J.’s Order, there is no action extant against the CPAO and it cannot be noted in default.
[14]
The Cross-Motion
The CPAO has brought a cross-motion seeking an order confirming that the plaintiff’s claim was struck out and never amended. My Reasons on the motion result in that conclusion.
15The CPAO also seeks an order pursuant to Rule 2.1.02(3) of the Rules of Civil Procedure, prohibiting the plaintiff from bringing further motions involving the CPAO without leave of the court, and an order relieving the CPAO from the requirement to respond to any further materials filed by the plaintiff in this action unless otherwise informed of a requirement to do so in writing by the Court. The CPAO submits that the plaintiff’s motion was doomed from the outset and that his conduct towards the CPAO in bringing the motion and pursuing the CPAO in the court is an abuse of the process. The CPAO notes that, since 2017, the plaintiff has brought at least 4 motions, 1 appeal, and caused, at minimum, 14 CPC appearances, 7 of which were scheduled by the plaintiff without notice to the other parties involved, including the CPAO, and that other judges have noted that the pleadings do not support CPAO’s involvement.
16In my view the relief sought under Rule 2.1 is unnecessary, or at least premature. Mr. Walcott understood that the first step, and a prerequisite, to pursuing the CPAO was to have them noted in default. He was entitled to bring his motion to obtain that remedy and has now been unsuccessful. If he wishes, he can seek to appeal this ruling. Should he take other steps in this court to pursue the action against the CPAO, then concerns may arise as to the propriety of them and the application of Rule 2.1 can be addressed at that time.
[17]
Disposition
Accordingly, the motion is dismissed. The cross-motion is granted insofar as it seeks an Order reflecting my findings on the motion, and the cross-motion for an order under Rule 2.1 is dismissed.
[18]
Costs
The CPAO may provide me with written submissions on costs, not exceeding three pages, not including any supporting documents, within 14 days of the release of these Reasons, and the plaintiff shall provide responding submissions with the same restrictions, within 10 days of the receipt of the CPAO’s materials.
Schabas J.
Date: 2020-07-28