Court File and Parties

COURT FILE NO.: CV-20-00648749-0000 DATE: 20210310 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: KIRIAKOS NENDOS Plaintiff – and – TORONTO ANIMAL SERVICES, ROXANNE STRUK, ELIZABETH GLIBBERY, KIM SMITHERS, JEAN KISSOON, SERGEANT/DETECTIVE LHAWANG JONGDONG, DETECTIVE GARY BURKE, POLICE CONSTABLE MICHAEL BURGESS, EMMA LUCA, CALI CHAPMAN, RAIMONDO MALTESE, GADI KATZ, BRENNAGH SMITH and VETERINARY SURGEON JOHN/JANE DOE Defendants

Counsel: Self-represented and acting in person (for the Plaintiff) Aidan Fishman, lawyer for the defendants

HEARD: March 8, 2021

Endorsement

DIAMOND J.:

Overview

[1] On October 2, 2020, the plaintiff commenced this legal proceeding against a variety of defendants. All of the plaintiff’s causes of action raised in his Statement of Claim arise out of two incidents in January and March 2016 when dogs owned or controlled by the plaintiff attacked other dogs and one individual. Both incidents ultimately resulted in proceedings initiated against the plaintiff under the Dog Owners’ Liability Act, R.S.O. 1990 c. D16 (“DOLA”). Additionally, the March 2016 incident led to criminal charges filed against the plaintiff.

[2] There are three main categories of defendants: various Toronto Police Services detectives and police officers (“the TPS defendants”), various employees of the legal services division of the City of Toronto (“the City Legal defendants”), and various employees of Toronto Animal Services (“the TAS defendants”).

[3] All of the defendants now bring a motion seeking an order striking out the entire Statement of Claim without leave to amend pursuant to Rules 21.01(1)(b), 21.01(3) and 25.11 of the Rules of Civil Procedure.

[4] At the conclusion of the hearing of the defendants’ motion, I took my decision under reserve.

The Statement of Claim

[5] The Statement of Claim is rather lengthy, consisting of 73 paragraphs over 28 pages. While it is not prolix, the recitation of facts set out therein is somewhat difficult to follow, in particular when attempting to marry up the relevant factual matrix to the causes of actions pleaded against the various defendants. I will endeavour to summarize the “nuts and bolts” of the Statement of Claim while giving it the generous and liberal reading it deserves on this motion.

[6] To begin, there are five dogs which show up throughout the narrative of the Statement of Claim. The dogs’ names are Maisy, Penthesila, Maison, Rhea and Phaedra. Maisy is an 11 ½ year old dog, and the mother of the other four dogs.

[7] While the plaintiff claims to be the owner of all five dogs, it is the position of the defendants that Rhea and Phaedra were in fact at all material times legally owned by the plaintiff’s father.

[8] As a result of two separate dog bite/attack incidents which occurred in January and March, 2016, the plaintiff alleges that between March 9, 2016 (the second incident) and March 14, 2016, various TPS defendants opened an investigation which culminated in the obtaining of a search warrant of the plaintiff’s premises.

[9] The TPS defendants attended the plaintiff’s residence on March 15, 2016 to carry out that search warrant. The five dogs were seized by the TPS defendants, and according to the Statement of Claim, the plaintiff was arrested and placed in a jail cell where he spent two consecutive days.

[10] The plaintiff was released from jail on or about March 17, 2016, and was shocked to discover that all five dogs remained “missing”.

[11] The plaintiff then details his four year “quest” to have the five dogs returned to him. Although not properly pleaded, the plaintiff seems to allege a conspiracy to injure him on the part of most, if not all, of the named defendants.

[12] The plaintiff alleges that “unauthorized and unlawful surgery” was performed on Maisy in April 2019 to ensure that she would not have “another litter of puppies”.

[13] The plaintiff sets out, in a convoluted manner, a history of his various criminal attendances from 2016 to the present, all allegedly brought about because of a conspiracy to injure him. While the plaintiff was criminally charged with other offences, there is no dispute that TAS initiated proceedings under the DOLA in mid-April 2016, and that two of the dogs (Rhea and Phaedra) were ultimately ordered to be permanently surrendered by the plaintiff’s father to TAS.

[14] In addition, in early January 2018 the plaintiff was convicted of both criminal charges (mischief to property and killing a dog) in the Ontario Court of Justice.

[15] In mid-October, 2018, the plaintiff was also convicted of criminal harassment.

[16] The DOLA proceedings are currently ongoing, and have not been concluded. While the trial of those proceedings was originally set to be completed in the spring of 2020, the COVID-19 pandemic resulted in those trial dates being adjourned.

[17] The plaintiff sues all defendants for (a) trespass “with the characteristic of robbery”, (b) displacement of the dogs as his personal property, (c) misfeasance in public office, (d) negligence, and (e) intentional infliction of nervous shock.

[18] While no claim for malicious prosecution is advanced by the plaintiff, reading his Statement of Claim generously and liberally I interpret his claims for negligence to mean and/or include negligent investigation.

Rule 21 – Motion to Strike

[19] The assessment of the credibility of witnesses is especially important when bearing in mind the onus of proof. As the trial judge, I must decide whether a specific proposition of fact has or has not been established on a balance of probabilities by the party having the onus of proof. For a party to seek to discharge its legal onus of proof, I must first be satisfied with the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact.

[20] Put another way, a moving party has the onus of factual proof of the evidence necessary to satisfy its legal burden. As stated by Justice Stinson in Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810:

“In certain instances it is simply not possible to reconcile some aspects of the evidence that was presented by the witnesses at this trial. In part, I liken the situation to attempting to assemble several old jig-saw puzzles whose various parts have sat, co-mingled, in the bottom of an actively-used desk drawer for a decade: some pieces are missing, some are undecipherable, some have changed over time and no longer fit together, and some are not what they seem to be, all due to the passage of time and intervening events. In this case my task is to use the pieces of evidence to re-create as clear a picture of past events as I can give the foregoing limitations, applying the "real test of…truth" as described above, drawing inferences where appropriate, and applying the rules of burden and standard of proof, as required.”

[21] In evaluating the credibility or reliability of evidence, I look to a number of interrelated factors such as its probability, logical connection with other findings and support from independent facts or documents. As held by Justice Brown (as he then was) in Atlantic Financial Corp. v. Henderson, [2007] 15230 (S.C.J.):

“In deciding between these two diametrically opposed positions, I am guided by the observations made about assessing the credibility of witnesses by O’Halloran, J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) where he stated, at page 357:

‘The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.’”

The Claims against the TPS defendants

[22] It is difficult to appreciate the nature of the cause(s) of action being advanced against the TPS defendants. During argument, counsel for the TPS defendants focused his submissions upon the fact that the events giving rise to the plaintiff’s arrest and the seizure of the five dogs occurred in March 2016, more than four years prior to the commencement of this proceeding. The TPS defendants submit that as this proceeding was commenced outside the time provisions of the Limitations Act, 2002, S.O. 2002, c. 24 (“the Act”), the claims against the TPS defendants should be struck without leave to amend.

[23] Pursuant to section 5(1)(a) of the Act, a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of a person against whom the claim was made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

[24] Section 5(2) of the Act and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a plaintiff with necessary evidence.

[25] As the Court of Appeal for Ontario held in Miaskowski v. Persaud, 2015 ONCA 758, a plaintiff is presumed to have discovered the material facts upon which his/her claim against a defendant is based on the day the accident took place. There is an obligation upon a plaintiff to act with due diligence in determining if he/she has a claim. No limitation period will be tolled while a plaintiff sits idle and fails to take steps to investigate any of the matters referred to in section 5(1)(a) of the Act.

[26] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson, 2011 ONCA 102, “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”.

[27] I agree with the TPS defendants that any claims against them being advanced arising out of the March 2016 incidents are statute-barred and ought to be struck without leave to amend. The claims in negligent investigation must be struck as not only did the investigation occur more than four years prior to the claim being issued, but the criminal and quasi-criminal proceedings did not terminate in the plaintiff’s favour; this is a necessary element of the negligent investigation as held by the Court of Appeal for Ontario in Roda v. Toronto Police Services Board, 2017 ONCA 768.

[28] The difficulty I have with striking out the remaining claims against the TPS defendants without leave to amend is that it became apparent during the plaintiff’s responding submissions that he intended his Statement of Claim to allege that since March 2016, the TPS defendants in conjunction with the remaining defendants have all conspired to injure the plaintiff by way of harassing, persecuting and “drumming up” criminal charges against him with a view to dissuading him from proceeding with his quest to have the dogs returned to him.

[29] As previously stated above, the plaintiff’s claims for conspiracy are not properly set out in the Statement of Claim. As held by the Court of Appeal for Ontario in Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, the tort of conspiracy to injury requires the following five elements to be pleaded:

(a) the defendants acted in commination, that is, in concert by agreement or with a common design;

(b) the defendants’ conduct is unlawful;

(c) the defendants’ conduct is directed towards the plaintiff;

(d) the defendants should know that, in the circumstances, injury to the plaintiff is likely to result; and

(e) the defendants caused injury to the plaintiff.

[30] There are no details surrounding the alleged agreement to conspire between the defendants, nor is it clear which defendants agreed to injure the plaintiff at any given time. It is also unclear what acts were carried out by each defendant in furtherance of the alleged conspiracy.

[31] That said, discoverability may play a role in a potential conspiracy to injure action that includes the TPS defendants. It stands to reason that the plaintiff may allege that he only learned about the existence of the alleged conspiracy after a certain point, or perhaps after a certain number of criminal charges.

[32] In summary, the claims against the TPS defendants directly arising from the March 2016 incidents are struck out without leave to amend. However, if the plaintiff seeks to pursue a conspiracy to injure claim that includes the TPS defendants, he shall be permitted to do so by way of a Fresh As Amended Statement of Claim (to be described hereinafter) that ensures that the necessary elements of the tort of conspiracy are properly and adequately pleaded.

The Claims against the City Legal defendants

[33] The plaintiff’s claims against the City Legal defendants seem to involve allegations that those defendants unfairly manipulated the DOLA proceedings and “drummed up” the additional criminal charges against him. Apart from the claims of misfeasance in public office, it is unclear whether the City Legal defendants are “roped in” with the negligent investigation claims advanced against the TPS defendants.

[34] The City Legal defendants are employees of the City of Toronto, and not part of the Crown Attorney’s office as alleged by the plaintiff in his Statement of Claim. There is no precedent for a finding that municipal staff can be found liable for misfeasance in public office, as they are not statutory office holders.

[35] Leaving that concern aside (as it is not the Court’s role to limit potentially novel claims), the fact remains that the plaintiff was eventually convicted of the criminal charges. It is difficult to understand how the alleged conduct of the City Legal defendants was unlawful if the plaintiff was ultimately convicted of the criminal charges.

[36] In any event, as with other aspects of the plaintiff’s Statement of Claim, the required elements for the tort of misfeasance in public office have not been adequately pleaded. I am prepared to strike out the claims against the City Legal defendants, but not without leave to amend.

The Claims against the TAS defendants

[37] The plaintiff made it very clear in his responding submissions that he was seeking damages and injunctive relief relating to the return of his dogs. While those causes of action, read generously and liberally, may survive this motion to strike, the problem is that the DOLA proceedings are still ongoing. Presumably, a termination of the DOLA proceedings in the plaintiff’s favour would likely result in the return of the dogs to him. If the DOLA proceedings do not go the plaintiff’s way, then there are appeal routes available.

[38] The DOLA proceedings are an ongoing process which has yet to be concluded. To permit this aspect of the plaintiff’s claim to proceed would risk duplicitous findings, and likely qualify as an abuse of process.

[39] Counsel for the defendants asked for this aspect of the plaintiff’s Statement of Claim to be struck out without leave to amend, together with an order permitting the plaintiff to commence a new proceeding in the event the DOLA proceedings are determined in his favour. In my view, if the provisions of Rule 21.03(3) empowers the Court to stay an action in favour of another pending proceeding between the parties, this is the better and more efficient result in this case (ie. staying the plaintiff’s claims against the TAS defendants until such time as the DOLA proceedings are concluded).

[40] Accordingly, the plaintiff’s Statement of Claim is struck out with leave to amend, subject to my specific findings set out in paragraph 32 herein.

[41] The plaintiff shall have 60 days to serve and file a Fresh As Amended Statement of Claim, which deletes any references to causes of action arising from the March 2016 incidents, and ensures that the surviving causes of action (conspiracy to injure and misfeasance in public office for example) are properly pleaded in accordance with the governing jurisprudence.

Costs

[42] If the parties are unable to resolve the costs of this motion, they may exchange and file written costs submissions totaling no more than five (5) pages, including a Costs Outline. Those submissions are to be exchanged in accordance with the following schedule:

(i) the defendants shall serve and file their written costs submissions within ten (10) business days of the release of this Endorsement; and

(ii) the plaintiff shall have an additional ten (10) business days from the receipt of the defendants’ written costs submissions to serve and file his own written costs submissions.

Diamond J.

Released: March 10, 2021