Court File and Parties
COURT FILE NO.: CV-20-00635911-0000 DATE: 20201125 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hilda Larbi, Plaintiff AND: Antonella Addeo, Defendant
BEFORE: Justice J.A. Kimmel
SECOND ENDORSEMENT
Background
1This matter was referred to me by the Registrar’s office pursuant to Rule 2.1.01(7) of the Rules of Civil Procedure, following receipt of a written request from counsel for the defendant named under Rule 2.1.01(6), requesting an order dismissing this action under Rule 2.1.01(1).
2By endorsement dated November 3, 2020, I directed the registrar to send a notice in Form 2.1A to the plaintiff advising her that the court was considering dismissing this action under Rule 2.1 for being frivolous, vexatious or an abuse of process on its face. The Form 2.1A notice invited the plaintiff to deliver written submissions as to why the claim should not be dismissed. The registrar duly served a notice as directed.
3The plaintiff did not file any submissions within the fifteen (15) days that is allowed for under Rule 2.1.02(3).2. Nor did she provide the requested copy of the fake endorsement (alleged in the statement of claim to have been made in the family court proceeding identified in the statement of claim by court file no. FC-18-56927) that forms the factual predicate for the allegations contained in the statement of claim, as she was also invited to do by my earlier endorsement.
The Statement of Claim
4In my first endorsement I outlined what the pleaded causes of action in the statement of claim appear to be, and the concerns that I have with them. As I indicated therein, the statement of claim on its face:
a. Purports to claim $500,000.00 from the defendant for alleged financial loss, pain, anguish and trauma. These claimed losses and damages are said to have been caused by the defendant’s alleged use of her influence as a supervisor of the Family Court in Newmarket in a manner said to have delayed, frustrated and obstructed the plaintiff in her ongoing divorce proceeding pending before that court.
b. Asserts, but does not identify the basis of, a fiduciary duty said to be owed by the defendant (court staff) to the plaintiff (a party litigant in another proceeding), or how the pleaded actions of the defendant constitute breaches of said fiduciary duty.
c. Does not particularize circumstances from which any other cause of action or statutory or common law duty can be discerned, aside from a general and unparticularized allegation in paragraph 30 of the statement of claim of intentional acts of misconduct [setting up a fake email account to send out a fake endorsement said to be biased against the plaintiff] “…with regards to the ongoing divorce matter with the sole purpose of helping the Respondent [in the divorce matter] walk away with what I toiled and built with him.”
d. Pleads generally that the defendant has engaged in acts of bias and intentional obstruction of justice.
e. Appears to be seeking to relitigate or collaterally challenge prior decisions of the court made in the context of the plaintiff’s ongoing proceeding in family court and to hold the defendant responsible for the frustrations that she claims to have experienced in the progression of her family court proceeding, which would be an impermissible collateral attack on the family court proceeding
5Reading the statement of claim as generously as I can, what I have been able to discern is that it might be attempting to plead:
a. Breach of fiduciary duty, without setting forth a basis for the special relationship, loyalty and vulnerability that must exist for a fiduciary duty to arise.
b. Obstruction of justice, which is a remedial consideration but not a civil cause of action itself, that I am aware of.
c. Abuse of public office or power, without identifying any statutory power that is being exercised or misused by the defendant, who is an employee of the court services division.
d. Conspiracy with the predominant purpose of harming the plaintiff, without any indication of a motive for malice or intention to harm. This conspiracy is alleged to have been carried out through a fictitious email address set up by the defendant and used to send a fake endorsement to the plaintiff in the family court proceeding, but without any particulars as to how this fake endorsement was intended to, or did in fact, harm the plaintiff (the details of the endorsement itself not having been pleaded and my request to be provided with a copy of it having gone unanswered).
Analysis
6The allegations in the statement of claim, to the extent that they are discernable, and the associated relief claimed are either non-justiciable or fail to disclose a reasonable cause of action within the meaning of the Rules. See Brown v. Lloyd's of London Insurance Market, 2015 ONCA 235, at para. 6. Without belittling the plaintiff’s concerns and suggested experiences, the pleaded allegations do not disclose actionable complaints. See Brown, at para. 10.
7For these and the other reasons set out in my prior endorsement, I find that this action is frivolous, vexatious or otherwise an abuse of the process of the court. It cannot succeed as it sets out no recognizable causes of action, even when read generously. See Gao v. Ontario WSIB, 2014 ONSC 6497 at para. 22. It is also apparent on the face of the statement of claim that it bears some of the hallmarks of the type of proceedings that Rule 2.1 directed to, as set out in Gao, particularly having regard to its apparent collateral attack on the family court proceeding.
Disposition and Leave to Amend
8Accordingly, this action is dismissed under Rule 2.1.01(6), subject to any decision by me to grant leave to amend if the plaintiff avails herself of the procedure outlined at paragraphs 12 to 14 of this endorsement.
9As the court states in Gao (at para. 18):
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.
10I have been guided by these considerations, but have not been able to discern a legitimate core complaint. That said, I do not foreclose the possibility that the plaintiff might have pleaded this claim in a way that would take it outside of Rule 2.1. If the plaintiff had taken the opportunity that I offered her, to make submissions, I might have been persuaded of the prospect of some cause of action, not apparent to me on the face of the statement of claim, that could have passed the low threshold for pleadings purposes with an amendment.
11As was observed by Myers J. in Rallis v Scarborough Hospital, 2016 ONSC 2263:
[Where] there is a clear cause of action available to the plaintiff, the proper remedy is not to dismiss the proceeding under Rule 2.1. Rather, I strike out the statement of claim under Rule 25.06(1), Rule 25.11, and as an abuse of process in accordance with the court’s inherent jurisdiction. The plaintiff is to be given one chance to establish that he can carry a lawsuit within the Rules of Civil Procedure. If legal advice is not to his liking, he should at least consult a textbook that describes the rules of pleading such as Bullen & Leake & Jacob's Canadian Precedents of Pleadings, (Second Edition) (Carswell, 2013).
12If the plaintiff wishes to avail herself of the opportunity to persuade me of a clear cause of action that could be pleaded, she may file a request for a remote chambers appointment to be heard by video conference before me, which request must be made in consultation with and on notice to counsel for the defendant, through the online request procedure at: torontochambersappointments@ontario.ca
13Any such chambers appointment will be convened by me as Rule 50.13 case conference. Rule 2.1(3) contemplates that the court may allow for oral submissions and, if the plaintiff so requests, I will be prepared to hear from her through the mechanism of a Rule 50.13 case conference and the powers available to me under that rule, including under sub-Rule 50.13(6)(d). In the event that a case conference is convened, both parties should attend the case conference prepared to address why there is, or is not, any prospect for amendments to be made to the statement of claim that could disclose actionable complaints.
14This is not an open-ended invitation to the plaintiff. If no such request has been filed by December 7, 2020 for an appointment to take place before me prior to December 15, 2020, then my order herein for the dismissal of this action will become effective on December 15, 2020 without the necessity of the entry and issuance of any formal order (see Rule 1.04), although the defendant may take out an order to that effect should she wish to do so.
Costs
15The court dispenses with any requirement for the plaintiff to approve the form or content of the formal order dismissing the action without costs. The defendant shall serve a copy of any entered order on the plaintiff and file proof of its service with the registrar.
16The defendant maintains that she was never personally served with the statement of claim. She was nonetheless noted in default on March 16, 2020, the day after the suspension of normal court operations under the Notice to the Profession dated March 15, 2020 due to the COVID-19 pandemic and during the period in which procedural deadlines were retroactively suspended by the Emergency Order O. Reg. 73/20.
17The defendant has not brought a motion or taken steps that would be precluded her noting in default (if it was proper). This order is being made by the court on its own initiative under Rule 2.1(1). In the circumstances, I see no need for the defendant to be put to the expense of having to move to set aside the noting in default. Presumably, no steps have been taken by her since she was noted in default. Accordingly, I am not ordering any costs to be paid by the plaintiff to the defendant upon the dismissal of this action.
18The registrar will send a copy of this endorsement to the plaintiff and to counsel for the defendant by email, if it has their email addresses.
KIMMEL J.
Date: November 25, 2020