COURT FILE NO.: CV-20-651098 and CV-20-651253
DATE: 20210412
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andrew Jonathan Curnew
AND:
Adam Gee Kin Loo et al.
AND RE: Andrew Jonathan Curnew
AND:
Revera Inc. et al.
BEFORE: J.T. Akbarali J.
COUNSEL: Andrew Curnew, in person
Jayson Thomas, for the moving party defendants
HEARD: April 7, 2021
ENDORSEMENT
Overview
[1] The defendants in each of the two actions before me bring motions seeking orders striking the plaintiff’s statements of claim without leave to amend, because they are scandalous, frivolous, vexatious, and an abuse of process, and because they disclose no reasonable cause of action.
Background: The Claims
[2] The genesis of these proceedings is a failed transaction for the purchase of dental practices. The purchasers in the transaction were 2th, Inc. Brian Holland, Dr. Mislav Pavelic and Dr. Mislav Pavelic Dentistry Professional Corporation (“Pavelic PC#1). The vendors were Dr. Rita Kilislian, (who is the wife of the plaintiff, Andre Curnew), and KI Equity Corp.
[3] The failure of the transaction has led to four actions. First, I understand there is an action ongoing in which Dr. Kilislian and KI Equity Corp. are the plaintiffs and 2th, Inc., Mr. Holland, Dr. Pavelic and Pavelic PC#1 are the defendants. That action is not before me today, but to the extent I need to refer to it, I will call it the “Kilislian action.”
[4] Second, Mr. Curnew commenced an action on September 23, 2020 against Mr. Holland, Dr. Pavelic, 2th, Inc., Dr. Mislav S. Pavelic Dentistry Professional Corporation (“Pavelic PC#2), Calvin Jiang (a friend of Mr. Holland’s) and 2th Willowdale, Inc. In this action, Mr. Kearney claims damages of $250,000 arising out of what he alleges are services he rendered to the defendants in connection with a dental consulting contract. This action is also not before me, but to the extent I need to refer to it, I will call it Curnew Action No. 1.
[5] The defendants in Curnew Action No. 1 counterclaimed, and added as parties Dr. Kilislian, and her professional corporations, Dr. R. Kilislian Dentistry Professional Corporation, R. Kilislian Dentistry Professional Corporation, Doctor Rita Kilislian Dentistry Professional Corporation, and Kilislian Dentistry Professional Corporation. The counterclaim seeks damages in the amount of $1 million on the basis of breach of contract, intentional interference with contractual relations, and inducing breach of contract, arising out of what is alleged to be the actions of the defendants by counterclaim which interfered with the ability of the plaintiffs by counterclaim to complete the purchase of the dental practices. The counterclaim was issued on October 26, 2020.
[6] Mr. Curnew then commenced an action on November 12, 2020 against Adam Gee Kin Loo, Rajah Singh Lehal, Cobalt Lawyers, Cobalt Business Counsel Professional Corporation, Jayson Wesley Thomas, Fuerst Ittleman David & Joseph PL, Miguel Amaral, KPMG LLP, Dr. Pavelic, Pavelic PC #2, Mr. Holland and Stephanie Holland (Mr. Holland’s wife). These defendants are mostly professional advisors to the purchasers in the transaction, or entities connected, or alleged to be connected, to the advisors. KPMG was both an advisor on the transaction and is Stephanie Holland’s employer. This action seeks general damages in the amount of $25 million, and punitive damages in the amount of $10 million. The claim makes allegations of conspiracy, fraud, harassment, misrepresentation, extortion, malicious prosecution, defamation, and false imprisonment. I will refer to this as Curnew Action No. 2. Curnew Action No. 2 is before me. The defendants against whom the claim has not already been dismissed or discontinued seek to strike the claim or stay the action in this motion.
[7] One day after commencing Curnew Action No. 2, Mr. Curnew issued a claim against Revera Inc. (Mr. Holland’s employer), Barbara Holland (Mr. Holland’s mother), Calvin Jiang, 2th Real Estate, Inc., 2th Willowdale, Inc., 2th, Inc., 2thcorp Ltd., Kingsway Ridge Trust, Pinnacle Ridge Capital Group, Inc. (corporations connected to Mr. Holland), Holder Capital Inc. (a corporation connected to a friend of Mr. Holland), and Pavelic PC #1. In this claim, he seeks general damages of $45 million, and punitive damages of $10 million. This claim repeats many of the allegations made in Curnew Action No. 2. This claim is also before me. I will refer to it as Curnew Action No. 3. The defendants against whom this claim has not already been dismissed or discontinued seek to strike the claim or stay the action in this motion.
[8] In very broad terms, Curnew Action No. 2 and Curnew Action No. 3 allege that, in the course of the transactions for the purchase and sale of the dental practices, Mr. Curnew became aware that the purchasers were perpetrating a fraud, did not have the funds to close the transaction, and, moreover, were in breach of their obligations as dental professionals, including by endangering patients as a result of poor infection control practices, among other things. The claims allege that, in an effort to keep him from reporting the fraud and professional misconduct to regulators, the following occurred: (i) the purchasers and certain other defendants conspired to extort Mr. Curnew, by threatening to have him arrested for crimes he did not commit, (ii) certain defendants were abusive to staff at the dental practices, (iii) Mr. Holland crashed a birthday party at Mr. Curnew’s estate, drunk, possibly high on cocaine, with a nosebleed, and poured wine on Dr. Kilislian, and intimidated guests, and (iii) some of the defendants intimidated Dr. Kilislian to close the transaction while confining Mr. Curnew to a bedroom in his house.
[9] The claims allege that others associated with the purchasers are liable for Mr. Curnew’s damages because they were aware of the fraud but lent credence to the fraud, by, for example, associating with the fraudsters, or that they conspired with the fraudsters.
Procedural Issues
[10] On reviewing the material filed by Mr. Curnew for the hearing before me, I became concerned about several issues. As a result, at my direction, my assistant emailed counsel for the defendants and Mr. Curnew to raise, among other issues, the following:
a. I noted that Mr. Curnew had filed a notice of motion seeking relief, some of which was properly the subject of a motion before an Associate Judge. Mr. Curnew had attended before Justice Myers the week prior to the motions to seek permission to bring his cross-motion, but permission was denied. I thus indicated that I did not intend to hear Mr. Curnew’s motion, but only the defendants’ motions to strike the claims or stay the actions.
b. I noted that Mr. Curnew had filed voluminous material, consisting of over 2000 pages, attached to a very brief affidavit that provided no narrative to assist me in understanding the thousands of pages of exhibits attached to his affidavit. Much of that material appeared to be irrelevant to the defendants’ motions. It is not the role of the court to piece together Mr. Curnew’s case by trying to make sense of a voluminous document dump. I thus indicated that to the extent Mr. Curnew sought to rely on his evidence, he would have to take me to the relevant portions using the caselines page numbers. I indicated that counsel for the defendants should also prepare to refer me to evidence in the record by using the caselines page numbers.
c. I noted that Mr. Curnew’s pleadings made reference to an attendance of his before Dow J. in connection with an action against his prior criminal counsel arising out of charges laid against him in around 2002–2003. I advised the parties that, in attempting to locate those reasons, I located reasons from another attendance that Mr. Curnew had before Dow J. a year ago, on a motion in a different civil proceeding that resulted in Mr. Curnew’s claim being struck without leave to amend. I attached a copy of those reasons and noted Dow J.’s comments therein that, to the extent there was any agreement between the parties with respect to changes to the pleadings in issue on that motion, it would be useful for the court to have a draft reflecting them. I thus asked for draft pleading to reflect any agreements between the parties on the motions before me with respect to necessary amendments to the claims at issue in these motions.
[11] In response to my email, Mr. Curnew sent multiple emails attaching, among other things, a supplementary affidavit sworn two days before the return date of the motion, a legal opinion from Professor Emeritus Alan Young dealing with the merits of a 696.1 application to the Minister of Justice regarding a conviction entered against Mr. Curnew on April 6, 2005, and two proposed fresh as amended statements of claim, one in Curnew Action No. 2 and one in Curnew Action No. 3.
[12] At the outset of the hearing, I inquired whether Mr. Curnew was proposing that his fresh as amended statements of claim be used in evaluating the merits of the defendants’ motions. Mr. Curnew indicated that he did not consent to an order striking his issued statements of claim, and intended to argue that the issued statements of claim, as drafted, were appropriate. It was thus unclear what the purpose of the draft fresh as amended statements of claim was. Mr. Curnew began to make submissions, including to suggest that the defined terms he had employed in his claims – one of the issues raised by the defendants - were appropriate. These defined terms include, for example, defining Mr. Brian Holland as “B-Ho,” and defining other defendants as “Boss-Lawyer,” “Florida-Jason,” “Sanctioned Dentist,” and “Can’t Trust,” among others.
[13] I indicated to Mr. Curnew that he was free to use his oral argument to try to convince me that the pleadings, as drafted, were not scandalous, but that it appeared plain on the face of the statements of claim that the claims were inappropriate in many respects (for example, the definitions referred to above), and replete with irrelevant pleadings of facts, many of which relate to his criminal proceedings in the early 2000s. By way of example, I quote some paragraphs from the claims below:
a. Dr. King’s assassination was on the 4th day of April. The Metro Toronto Police (as it was then known) 55 Division caused a weapon to be planted in Curnew’s parents’ residence leading to his wrongful conviction on the 4th day of April (para. 30, Curnew Action No. 3)
b. Subsequently, Toronto Police Services, 55 Division were persuaded by the former police officers to charge Curnew with 10 more charges including for ordering a veal sandwich (with cheese and a side of vinegar) at an Italian sandwich store, which Curnew attended following a visit to an adjacent Scotiabank branch, which is one of Curnew’s primary banking institutions. In this regard, the former police officers alleged that a cashier working at the Italian sandwich store was previously in a relationship with one of the former police officers and that Curnew’s lunch decision that day somehow represented a form of intimidation against the former police officers. Curnew’s animus toward Toronto police is well reported in the media and various outlets. Curnew has suffered multiple injuries from assaults by the police. Curnew’s parents and wife have been terrorized by individual Toronto police officers (para. 39 Curnew Action No. 2 and para. 42(w) Curnew Action No. 3)
c. Curnew was nearly murdered in prison. Curnew alleges that the prison guards orchestrated the attempt to murder him. Later, through civil litigation, Curnew was successful in securing a monetary settlement from the prison officials (para. 17 Curnew Action No. 2 and para. 42(b) Curnew Action No. 3)
d. In the years following his release from prison, Curnew attended the McGill University, the Rotman School of Business (at the University of Toronto), Ivey Business School (at the University of Western Ontario), Harvard University, and the University of Oxford. Curnew obtained a Masters of Business Administration degree and was runner-up valedictorian. Curnew holds an ICD designation from the Institute of Corporate Directors for best practices in board governance. Curnew was named top 4 under 40 in business by the local Chamber of Commerce, and his birthday parties are attended by royalty, celebrities, government officials, academics, more than one Canadian billionaire, and although uninvited, some of the defendants and their business partners (para. 19 Curnew Action No. 2 and para. 42(c), Curnew Action No. 3)
e. Curnew is currently enrolled in the LLM program at Osgoode Hall Law School, at York University, and frequently reminds everyone of this (para. 20 Curnew Action No. 2 and para. 42(d) Curnew Action No. 3)
f. Curnew’s net worth is over $40 million. Curnew lives in a $17 million estate in the Bridle Path (an upscale residential neighbourhood in Toronto, Ontario) with his wife Dr. Rita Kilislian, their daughter, and their son who is in undergrad preparing to apply to dental school. Curnew’s neighbour (across the street) is world-renowned Canadian musician, Drake. Curnew’s estate was formerly owned by the Louis Vuitton family (para. 22 Curnew Action No. 2 and para. 42(f) Curnew Action No. 3).
g. Curnew is a well-known and regarded philanthropist who regularly donates hundreds of thousands of dollars to causes important to him. Curnew is also an accomplished artist who has celebrities who collect his work (para. 24 Curnew Action No. 2 and para. 42(h) Curnew Action No. 3).
h. Curnew is a sympathizer of the struggle of racial minorities and champions causes against civil and human rights violations (para. 31 Curnew Action No. 3).
i. Curnew has over 160,000 followers on social media and has achieved Instagram verified influencer status (para. 26 Curnew Action No. 2 and para.42(j) Curnew Action No. 3).
j. In or about May 2020, George Floyd was publicly murdered by police officers (para 42 Curnew Action No. 2 and para. 42(z) Curnew Action No. 3).
[14] After I suggested to Mr. Curnew that he might prefer to focus on whether leave to amend his pleadings ought to be granted, Mr. Curnew indicated that was his intention. He thus abandoned his argument that his existing pleadings were appropriate.
[15] I reviewed with Mr. Curnew his assertions that he (i) is well-educated, having attended many prestigious universities; (ii) is an LLM candidate as Osgoode Hall Law School; and (iii) is a multi-millionaire. I also noted his experience as a self-represented litigant, including with the motion to strike arising out of his attendance before Dow J. last year. I asked whether he was before me seeking indulgences as a self-represented plaintiff or whether he was of the view that his experience and education meant that he should be held to the same standard as counsel on the motion. Mr. Curnew indicated that he was seeking indulgences as a self-represented plaintiff. I proceeded to give Mr. Curnew some leeway while he made his submissions. However, it is plain that Mr. Curnew has made a choice to act for himself on the motions and in the actions when he has the means to make a different choice. As a result, and given his experience and education, the leeway I am prepared to give Mr. Curnew on the issues raised in these motions is limited.
[16] Mr. Thomas, for the defendants in both actions, objected to the admissibility of some of the evidence led by Mr. Curnew. In particular, he raised:
a. A transcript of an “examination for discovery” of one of the employees of the dental practices, who is not a party to the actions. The examination was scheduled with less than two days’ notice to Mr. Thomas, after 5 p.m., on a day he was not available. Mr. Curnew argued that Mr. Thomas could have chosen to examine the witness himself earlier, and there is no reason for the court not to consider her evidence;
b. The affidavit of Andrew Simmons, filed by Mr. Curnew, that was sworn March 18, 2021, the day Mr. Thomas’s factum was due, and which, as a result, the defendants have been unable to address. Mr. Curnew’s motion material was due by February 25, 2021.
c. The supplementary affidavit of Mr. Curnew, sworn two days before the motion, outside of the court-ordered timeline which, as I have noted, required him to deliver his motion material by February 25, 2021.
[17] I indicated that I would address the admissibility of this evidence in my reasons on the motion. I do so now.
[18] I agree with Mr. Thomas that this evidence is inadmissible.
a. First, Mr. Curnew could have filed an affidavit from the employee rather than examining her. If he intended to examine her, he should have done so having obtained dates from Mr. Thomas when he was available to attend. It is not appropriate for Mr. Curnew to unilaterally schedule an examination, after 5 p.m., with less than two days’ notice to Mr. Thomas, on a date he knew Mr. Thomas was not available. Moreover, it is no answer to say that Mr. Thomas could have arranged an examination earlier; this was evidence Mr. Curnew wanted to call. It was up to him to do so appropriately, and in accordance with the court-ordered timetable.
b. Second, the affidavit of Mr. Simmons and the supplementary affidavit of Mr. Curnew were both delivered out of time and in circumstances in which the defendants could not reply to, or address, the evidence. A court-ordered timetable is not a suggestion; it is designed to ensure the fair and orderly hearing of a motion. Mr. Curnew’s self-represented status does not permit him to disregard the court’s order. As an experienced litigant and LLM candidate, he knows better.
c. In any event, none of the evidence set out in the transcript or the two affidavits in question is terribly relevant to the issues on the motion. The allegations in Mr. Simmons’ affidavit and the transcript support some of Mr. Curnew’s claims, but do not address the sufficiency of his pleading, or the abuse of process argument. Similarly, his supplementary affidavit focuses on supporting his allegations rather than addressing the alleged deficiencies in his pleadings or the abuse of process issues raised by the defendants. The affidavit also includes evidence that is irrelevant even to the merits of his claim, including Mr. Curnew’s friendship with Prince Rahim Aga Khan, and his intended generous donation to the Aga Khan Foundation/Museum “for purposes related to women in dentistry.” I will not speculate on why this affidavit was delivered on the eve of the motion, after Mr. Curnew became aware that I would be the motion judge hearing these matters.
[19] Having reviewed this background, I turn to identify the issues before me, and their analysis.
Issues
[20] The issues before me on the motion are:
a. Should the statements of claim be struck out without leave to amend, because they are scandalous, frivolous, vexatious, or an abuse of process?
b. Should the statements of claim be struck because they disclose no reasonable cause of action? If so, should leave to amend be granted?
Are the statements of claim scandalous, frivolous, or vexatious, or an abuse of process?
[21] In advancing this argument, the defendants rely on rr. 21.01(3)(d) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[22] Rule 21.01(3)(d) provides that a party may move before a judge to have an action stayed or dismissed on the grounds that the action is frivolous or vexatious or as otherwise an abuse of process of the court.
[23] Rule 25.11 provides, among other things, that the court may strike out or expunge all or part of a pleading, with or without leave to amend on the ground that the pleading or document is scandalous, frivolous or vexatious, or is an abuse of process of the court.
[24] In Canadian National Railway v. Brant, 2009 32911, Strathy J. (as he then was) summarized the principles applicable to a motion to strike under rule 25.11, at paras. 27-30. These include:
a. the pleading must contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved;
b. no pleaded fact that is relevant can be scandalous;
c. a pleading of facts will be struck if it cannot be the basis of the claim or defence in the action and is designed solely for the purpose of atmosphere;
d. if the only purpose of the pleading is to cast the opposing party in a bad light, it will be struck;
e. pleadings of historical facts that have no relevance to the proceeding will also be struck;
f. pleadings define the issues in the action. If the party is required to respond to irrelevant facts, the litigation and the trial will be diverted into facts that have no connection to the real issues before the court.
[25] Justice Epstein (as she then was) considered the meaning of scandalous, frivolous or vexatious in George v. Harris, 2000 CarswellOnt 1714 (S.C.J.) at para. 20, finding that:
… [p]ortions of a pleading that are relevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious.
[26] The doctrine of the abuse of process seeks to promote judicial economy and avoid a multiplicity of actions and to uphold the integrity of the administration of justice: Maynes v. Allen-Vanuard Technologies Inc. (Med-Eng Systems Inc.,), 2011 ONCA 125, at para. 38.
[27] Courts have considered the hallmarks of vexatious proceedings in the context of an application to declare someone a vexatious litigant under s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. In Lang Michener Lash Johnston v. Fabian, Henry J. identified the following principles, among others:
a. where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
b. vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights:
c. it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against lawyers who acted for or against the litigant in earlier proceedings;
d. in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action.
[28] Although enunciated in a different context, I am satisfied that these hallmarks can assist to identify a vexatious or abusive proceeding or pleading, and assist in determining whether it is appropriate to grant leave to amend a pleading that must be struck because it is scandalous, frivolous, vexatious, or an abuse of process.
[29] Where parts of the pleading are proper, but the pleading as a whole is so contrary to the rules of proper pleading, it must be struck in its entirety: Stedfasts Inc. v. Dynacare Laboratories, 219 ONSC 6626, at para. 38.
[30] In this case, as I have already noted, the pleadings are scandalous on their face. I find that they are also frivolous, vexatious and abusive. In reaching this conclusion, I note, by way of example only:
a. the statements of claim are replete with inappropriate definitions designed to embarrass and mock the defendants, and which are used for colour only;
b. the statements of claim are replete with irrelevant statements of fact, some of which I have already reviewed, including (i) a historical narrative concerning the plaintiff’s involvement with the criminal justice system beginning in 2002, well before the failed transaction for the purchase and sale of dental practices was even contemplated, and (ii) statements about Mr. Curnew’s wealth, friends, and social media status;
c. the statements of claim are also replete with bare allegations and inflammatory allegations against the defendants, including that the defendants (i) have a low net worth, as apparently demonstrated by the fact that Mr. Holland and his wife drive a 2005 Acura SUV; (ii) that the name of the firm the defendants retained on the transaction – Cobalt – is a “ codename for a bunch of idiots”; and (iii) that Mr. Holland advised Mr. Curnew at the party Mr. Holland is alleged to have crashed that he had “2 escorts in the car waiting for him (gender not disclosed),” and that he was carrying a $7.00 bottle of wine in a paper bag”;
d. the statements of claim are repetitive, raising similar allegations in two separate actions, and claims against some of the same defendants arising out of the same events in three separate actions, leading to a multiplicity of proceedings.
[31] These conclusions apply equally to both pleadings at issue, as significant parts of the pleadings are identical.
[32] Moreover, I find that the statements of claim are vexatious and an abuse of process because they have been brought for an improper purpose, that is, to harass the defendants, and in particular, those defendants who were the intended purchasers of the dental practice. I reach this conclusion for the reasons set out below.
[33] There is evidence in the record that indicates that Mr. Curnew intended to seek revenge on the purchasers under the failed deal. In particular, there are emails in the record in which Mr. Curnew makes statements (errors in original) including:
a. Dr. P-Calvin, you guys going to get the bitch in line or we going to war…I prefer the war. You’ve participated in terrorizing my family and my business the last 7 months – I am happy to take my pound of flesh. The question you have to ask yourself is what is more likely to happen, Andy making good on his threats, or Brian making good on his promises.
b. We don’t want to be a party to any malfeasance other than continuing to insert abstract objects up the prison bitches ass until hes rehabilitation is successful…. So we can go forward my way which ensures a win-win, or Brian’s and everyone else ends up blowing their own heads off. Choice is yours.
c. This is where cobalt gets sued. They continued the ruse. And allowed Brian to bolster his bullshit fund manager story and being an uber connected guy. Cobalt law is fake it’s not a real firm and they are working on a piece of the deal. I can spin this to ensure the lawyers are held to task for this.
d. Brian, if you deviate in any way from my script to read to Sarah’s mother – I will have a little present from me to your wife.
e. You want to fuck with my family and my business, Eye for an eye bitch. Once you start excepting that I’m in charge everyone will be better off. This is the only way lawyers are getting paid which will be at a reduced amount. Everyone Calvin included is getting a haircut for what you attempted to do to the unit holders. You had a fiduciary duty that you a personally liable for. And I warned you countless times, Brian cross me I’ll destroy you and everything around you. Please I’m begging you to fuck off get out of my life.
f. Dr. Pavelic, I suggest you advise your partner to bend over and take what I’m about to jam up his ass for fucking around lying and playing games not just with me but the other unit holders too.
g. And if you make me declare war by not reigning your partner in, I will turn this up to a new level of warfare.
h. If you dont assist me in reigning your partner in, again, I will walk this over to the rcds tomorrow, bmo and td. I will ensure all of the loans are called and I will make it my full time job to ensure that I push this to a level of revenge that’s never been so creative.
i. Brian, I am going to metaphorically rape you like a prison bitch as that’s where you belong. The question is do you consent to the rape or are you going to make me knock you out then rape you.
j. I’m in charge. I call the shots, I hold the cards.
k. There won’t be two sides to this, there is one side, and that’s the best interests of the business which includes this maniac shooting himself and getting the fuck out of my way.
l. Again this isn’t a fucking democracy. I am the king of this castle until it closes. Everyone will do as I say or face serious reputation harm and litigation.
[34] I also note that many of the emails that Mr. Curnew sent were sent or copied to the Royal College of Dental Surgeons of Ontario, the Chartered Professional Accountants of Ontario, the Ontario Securities Commission and various banks. While there is nothing wrong with reporting concerning conduct to the appropriate regulator, the tone of Mr. Curnew’s emails, the frequency with which he sent them, and his suggestions that he would not report his concerns if the purchasers fell in line with his plans, all suggest that the purpose of Mr. Curnew’s emails was not to protect the public, but to get his way.
[35] Curnew Action No. 2 and Curnew Action No. 3 name as defendants parties who have no real connection with Mr. Curnew’s allegations, and appear to have been added for no reason other than to embarrass and harass the intended purchasers under the transaction. For example:
a. In Curnew Action No. 2, among others, the following defendants are named:
i. Adam Gee Kin Loo, Rajah Singh Lehal, Cobalt Lawyers and Cobalt Business Counsel Professional Corporation - these are the lawyers who acted for the purchasers in the failed transaction. The action has since been discontinued against them.
ii. Jayson Thomas and Fuerst Ittleman David & Joseph PL - Mr. Thomas’s counsel to the defendants on this motion. Fuerst Ittleman David & Joseph PL is a Florida law firm at which Mr. Thomas acts counsel as an attorney in the state of Florida. The plaintiff consented to an order dismissing them as defendants.
iii. Miguel Amaral and KPMG LLP - Mr. Amaral is an accountant employed by KPMG who was retained by the purchasers to perform financial and accounting services in relation to the transaction. The plaintiff consented to an order dismissing them as defendants. KPMG is also Mr. Holland’s wife’s employer.
iv. Stephanie Holland – Stephanie Holland is Mr. Holland’s wife. Mr. Curnew makes allegations that she was involved in the plot to intimidate him. Ms. Holland has not been released from the claim, but she was not involved in the transaction.
b. In Curnew Action No. 3, among others, the following defendants are named:
i. 2th, Inc., 2th Willowdale, Inc. and Calvin Jiang – 2th, Inc. was one of the intended purchasers under the transaction. These defendants are all defendants in Curnew Action No. 1. The corporate defendants are corporations associated with Mr. Holland. Mr. Jiang is alleged to be Mr. Holland’s business partner and close friend.
ii. Pavelic PC #1 – Pavelic PC #1 is one of the intended purchasers under the transaction and a defendant in the Kilislian action.
iii. Revera Inc. – Revera Inc. is Mr. Holland’s employer, which is unconnected with the transaction. This action was discontinued against it.
iv. 2th Real Estate, Inc., Kingsway Ridge Trust and Pinnacle Ridge Capital Group, Inc. - these are corporations that are alleged to have some connection to Mr. Holland;
v. Holder Capital Inc. - this company appears to be corporate entity related to a friend of Mr. Holland’s, neither of which was involved in the transaction. Mr. Curnew appears to allege that Holder capital Inc. knew or ought to have known that the intended purchase was a scam. There is no indication in the pleading as to why Holder capital Inc. would owe any duty to Mr. Curnew.
vi. Barbara Holland – Barbara Holland is Mr. Holland’s mother who appears to have had no involvement in the transaction.
[36] Mr. Curnew states that he is an LLM candidate. I infer therefore that he understands the concept of a duty of care, and the elements of a cause of action. The fact that Mr. Curnew consented to dismiss or discontinue the claims against many of these defendants indicates that he knew he had no real claims against them.
[37] Moreover, at the hearing, Mr. Curnew indicated that he probably would have released Barbara Holland from Curnew Action No. 3 if another lawyer, besides Mr. Thomas, had made the request. This suggests that Mr. Curnew is motivated, at least in part, by animus towards Mr. Thomas.
[38] I note that at the hearing, Mr. Curnew apologized to the court for his unprofessional pleadings. He stated that the defendants’ actions had provoked him to reacting emotionally. I note that a statement of claim is not something one drafts, issues, and serves in the heat of the moment. The claims at issue were drafted well after the events pleaded in them are alleged to have taken place, and issued months before this motion. If Mr. Curnew was initially emotional, he had plenty of time to calm down before issuing these claims, and plenty of time to consent to amending them before this motion.
[39] Mr. Curnew’s draft amended statements of claim were drafted much more appropriately, confirming that Mr. Curnew is able to produce a pleading that is not scandalous. However, in my view, in apologizing, Mr. Curnew was reacting to my comments about the impropriety of the pleadings that was evident on their face. He began his submissions on the motion indicating his intent to argue in support of the issued statements of claim. I find that his reversal on this point, and his apology, was strategic.
[40] I have considered whether Mr. Curnew should be entitled to amend his claim against certain of the defendants. He makes allegations that are unusual, but that does not foreclose the possibility that they could be true. However, Mr. Curnew, in commencing Curnew Action No. 1, could have raised these issues. He did not. His claims were only made after the counterclaim was commenced in Curnew Action No. 1.
[41] In view of these factors, I conclude that Curnew Action No. 2 and Curnew Action No. 3 have been commenced for the purposes of harassing Dr. Pavelic and Mr. Holland, and not for any proper purpose. It follows that these proceedings are vexatious and abuses of the court’s process. I therefore strike the statements of claim without leave to amend.
[42] Given my conclusion, it is not necessary to consider whether the pleadings disclose a cause of action.
Costs
[43] I asked the parties in advance of the hearing to upload their costs outlines. Mr. Curnew and Mr. Thomas each made brief submissions about costs at the hearing, and agreed I could proceed to determine costs on the basis of their costs outlines and those submissions. I do so now.
[44] The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.
[45] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 14579 (Ont. C.A.), 71 O.R. (3d) 291, at paras. 4 and 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.
[46] The defendants are the successful parties in these motions. Although Mr. Curnew asks that costs be in the cause if he is unsuccessful, it is unclear what cause he means. I have struck the claims without leave to amend. Even if costs were in the cause, as the successful parties on the motions, and in the actions, the defendants are entitled to their costs.
[47] In my view, this is an appropriate case in which to order costs on a substantial indemnity scale. I have found that Curnew Action No. 2 and Curnew Action No. 3 were commenced for an improper purpose. The most important objective of costs in these circumstances is to discourage and sanction inappropriate behaviour. It is also important that the defendants receive some measure of indemnity for the costs they have incurred.
[48] With respect to the quantum of costs, I note the following:
a. The amounts claimed in the proceedings were significant – in the millions of dollars – and included claims for punitive damages.
b. The motions were rendered unnecessarily complex by virtue of the fact that Mr. Curnew attached thousands of pages of exhibits to his affidavit without narrative, unnecessarily increasing the defendants’ costs, because they had to review the material.
c. The proceedings themselves were unnecessary. The issues between the parties to the transaction are being addressed in the Kilislian action, and to the extent there are issues between the purchasers under the transaction and Mr. Curnew, those should have been addressed in one proceeding – Curnew Action No. 1.
d. Mr. Curnew failed to comply with the court-ordered timetable, sent an unreasonable number of emails to Mr. Thomas, many of which were not relevant to the litigation, and delivered materials that were largely irrelevant. I find these steps were taken to harass the defendants by driving up their costs.
e. Mr. Curnew, even at the outset of the motion after having delivered draft fresh as amended statements of claim, continued to maintain that he intended to argue that the issued statements of claim were appropriate when it was apparent on their face that they were not. He quickly abandoned this position, but having done so only after he commenced his submissions, he forced the defendants into bringing this motion and spending costs unnecessarily.
f. Mr. Thomas’s hourly rate is reasonable. His materials were very well prepared. In view of the manner in which Mr. Curnew litigated these motions, Mr. Thomas’s time spent was reasonable.
g. Mr. Curnew indicates that he spent 96 hours on these motions. This is more time than Mr. Thomas spent. It suggests that the defendants’ investment in these motions was within Mr. Curnew’s reasonable expectations.
[49] On a substantial indemnity basis, the defendants seek a total of $38,962.40 in fees and HST, plus $320.00 in disbursements. In my view, having regard to the factors described above, this amount is fair and reasonable, and shall be paid within thirty days.
Conclusion
[50] The defendants’ motions are granted. The statements of claim in Curnew Action No. 2 and Curnew Action No. 3 are struck without leave to amend.
[51] Mr. Curnew shall pay the defendants $39,012.40 in costs, all inclusive, within thirty days.
J.T. Akbarali J.
Date: April 12, 2021