Court File and Parties

COURT FILE NO.: CV-20-00643796

DATE: 20201027

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Muhammad Ali Bukhari, Plaintiff

AND:

Syed Atiqur Rahman, Asia Rahman and World Immigration Network Inc., Defendants

BEFORE: Madam Justice O’Brien

COUNSEL: A. Hussein, for the Plaintiff A. Dhillon, for the Defendants

HEARD: In writing

ENDORSEMENT

[1] This motion was referred to me by the registrar’s office pursuant to r. 2.1.01(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 following receipt of a written request by lawyers for the Defendants pursuant to r. 2.1.01(6).

[2] After careful consideration, I conclude that this proceeding should not be dismissed under r. 2.1. Although I am concerned that the Statement of Claim does not set out a viable cause of action, I conclude that making allowance for drafting deficiencies, there is the core of a complaint pleaded here. In addition, the claim does not include the hallmarks that typically justify an order to dismiss under r. 2.1. As such, there are other rules that are better suited to address the Defendants’ concerns.

[3] The allegations set out in the Statement of Claim are confusing. The Plaintiff claims general damages of $3,000,000 for “defamation, slander, negligence, mental stress, harassment, discrimination, and intention[al] infliction of mental distress” as well as pecuniary damages in an amount to be determined, and “punitive, aggravated and bad faith damages.” Much of the wording of the Statement of Claim is difficult to follow. I understand the basic thread of the allegations to be as follows: The Plaintiff states that he was at the relevant time a columnist and correspondent for various media outlets. He states that he received tips and comments from a reader, who brought to his attention allegations that the Defendant, Syed Atiqur Rahman was involved in “fraudulent work as an immigration consultant.” The Plaintiff alleges that in subsequent text exchange with Mr. Rahman, Mr. Rahman identified himself in his signature line as “Lawyer,” when he was not a lawyer but an immigration consultant. When the Plaintiff inquired as to why he called himself a lawyer, he received in return “defamatory comments.” These “defamatory comments” were via text message and stated: “Just shut up!” and called the Plaintiff a “mad person.”

[4] There are numerous further and other allegations against Mr. Rahman throughout the Claim, including several allegations generally to the effect that Mr. Rahman has publicly misrepresented his qualifications in various ways. In addition, the Claim pleads that the Defendant, Asia Rahman is Mr. Rahman’s spouse and that they collaborated with each other in their “deceitful activities.” The Rahmans were both employees of World Immigration Network, which is alleged to be jointly and severally liable for damages to the Plaintiff.

[5] The allegations are confusing, as it is not clear how Mr. Rahman’s alleged public misrepresentations are related to the Plaintiff or could cause the Plaintiff harm. In addition, there is a question as to whether the alleged text messages to the Plaintiff could meet the test for defamation, including in that it is not clear that they were sent to anybody other than the Plaintiff.

[6] However, in spite of the confusing nature of the pleading, there does appear to be the core of a complaint of defamation by the Plaintiff against Mr. Rahman. The Statement of Claim pleads as follows:

The Plaintiff alleges that the Defendant Rahman unfairly and wrongly disparaged and defamed him. Without limiting the generality of the foregoing, the Defendant fabricates and circulates false and defamatory allegations within the Bengali community, concerning the integrity of the Plaintiff.

[7] In addition, the Plaintiff has made allegations, which, although not clearly pleaded, could at their core be intended to constitute allegations of intentional infliction of mental suffering and/or the tort of intimidation. The Statement of Claim reads:

The Plaintiff pleads that the foregoing actions were taken with the knowledge that the allegations made by Rahman to the Plaintiff were not true and were undertaken with malice as the purpose of doing so was to intimidate the Plaintiff from collecting any further information regarding Rahman and his status of a lawyer, if that is even on his horizon.

[8] In Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at para. 9, the Court of Appeal endorsed the guidance provided by Myers, J. in Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 with respect to the interpretation of r. 2.1. Myers, J. referred to two conditions generally required for r. 2.1 to be applied. The first is that the frivolous, vexatious, abusive nature of the proceeding should be apparent on the face of the pleading. The second is that, generally, there should be a basis in the pleadings to support the resort to the attenuated process of r. 2.1. This is not a fixed requirement but instead a guideline that serves as a reminder that other rules may be available for the same subject matter. In Gao v. Ontario WSIB, 2014 ONSC 6497 (“Gao No. 2”), Myers, J. listed some of the hallmarks of querulous litigant behavior that would support the resort to the attenuated process, such as bringing multiple proceedings to re-determine an issue, rambling discourse and rhetorical questions.

[9] In Gao No. 2, at para. 18, Myers, J. also emphasized the importance of examining each potential r. 2.1.01 case closely, reading the claim generously and allowing for drafting deficiencies:

It should be borne in mind however, that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring to an early end to vexatious proceedings, the matters should not considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed.

[10] His comments in this respect were adopted by the Court of Appeal in Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 7.

[11] In this case, although I have a concern about whether the Plaintiff has articulated a viable cause of action, reading the pleading generously and allowing for drafting deficiencies, the Plaintiff may have a legitimate complaint about the communications or some of the communications of the Defendant, Mr. Rahman. In addition, this Claim does not otherwise contain many of the hallmarks of r. 2.1 cases. It is drafted in the usual format of a Statement of Claim. Indeed, the Plaintiff is represented by counsel. It is possible that some of the deficiencies in the Statement of Claim relate to language difficulties. In any event, the Claim does not include rambling discourse or grandiose claims. Accordingly, I conclude that the Statement of Claim does not meet the conditions generally found in r. 2.1 cases, as described in Scaduto.

[12] In view of this, I find that there is not a sufficient basis in this case to justify a resort to the attenuated process provided by r. 2.1. Accordingly, the motion is dismissed.

O’Brien. J.

Date: October 27, 2020