NORTH BAY COURT FILE NO.: CV-20-00000209-0000
DATE: 2021/01/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ronald Montreuil, Plaintiff
AND:
Weaver Simmons, Defendant
BEFORE: Justice K.E. Cullin
COUNSEL: Ronald Montreuil, Plaintiff, Self-Represented
Peter Diavolitsis / Weaver Simmons, Defendant
HEARD: January 15, 2021
ENDORSEMENT
[1] On December 10, 2020, I issued an Endorsement in this matter directing the Registrar, pursuant to Rule 2.1.01(3), to give notice in Form 2.1A to the Plaintiff, Ronald Montreuil, with respect to this action. I have now received the written submissions of Mr. Montreuil and of Weaver Simmons with respect to the notice. This Endorsement sets out my decision with respect to that notice.
Factual Background
[2] On December 7, 2020, Mr. Montreuil issued a Statement of Claim against Weaver Simmons. The claim pertains to legal services which are being provided by Weaver Simmons to Larmer Stickland, a Defendant in an action in which Mr. Montreuil is also a Plaintiff.
[3] This action is the third proceeding commenced by Mr. Montreuil in connection with a contentious business transaction involving Mr. Montreuil and the other shareholders in a corporation known as R.J.M. Garnets Inc. The business transaction involves a group of mining claims which were originally owned by Mr. Montreuil near Mattawa, Ontario, and which he hopes to develop into a garnet mine.
[4] Mr. Montreuil’s first Statement of Claim was issued on April 5, 2017. That claim names as Defendants R.J.M. Garnets Inc., its other shareholders (Tammy Cross, Rodney Cross, Marty Williams and Stan Bovey) and William Sangster, a lawyer who provided legal services to the corporation and its shareholders when the business transaction was initiated. That claim was issued at North Bay under Court File No. CV-17-6731 (“the Main Action”).
[5] The Plaintiff issued the Main Action on his own behalf and has for the most part been self-represented in that proceeding. The Defendants Rodney Cross, Marty Williams and Stan Bovey have been represented by Geoffrey LaPlante. The Defendant Tammy Cross has been represented by Jerry Herszkopf. The Defendant William Sangster has been represented by Gavin Tighe and Alexander Melfi. R.J.M. Garnets Inc. is represented in the litigation by Wayne Stickland; John D’Agostino is corporate counsel for R.J.M. Garnets Inc.
[6] On January 2, 2020, the Plaintiff issued a Statement of Claim against Larmer Stickland, Geoffrey LaPlante, John D’Agostino and James Ireland (a mining consultant involved in the development of the claims). The claim was issued at North Bay under Court File No. CV-20-002-0000 (“the Second Action”). It alleges that the Defendants have engaged in negligent and unlawful acts in providing services to the Defendants in the Main Action and generally in providing legal services to R.J.M. Garnets Inc. The Plaintiff is also self-represented in that proceeding.
[7] Weaver Simmons, the Defendant in this action, represents Larmer Stickland in the Second Action. On December 7, 2020, the Plaintiff issued a Statement of Claim against Weaver Simmons; the claim was issued at North Bay under Court File No. CV-20-00000209-0000 (“the Third Action”). The Third Action arises as a result of a motion commenced by Weaver Simmons seeking to address procedural irregularities with the Second Action. It seeks $1,000,000.00 in damages as a result of alleged errors in the motion. It also alleges that Weaver Simmons is unlawfully acting as the lawyer of record for R.J.M. Garnets Inc.
[8] The motion which gives rise to the Third Action sought an Order requiring the Plaintiff to regularize his pleadings after the Plaintiff altered the issued Statement of Claim to create separate, individualized pleadings which he then served on each of the Defendants. The motion also sought the appointment of a single Judge to provide case management and to hear all motions in both the Main Action and the Second Action.
[9] A case management Judge was subsequently appointed by Regional Senior Justice Ellies. Justice Kurke was initially assigned as the case management Judge. As a result of the re-allocation of judicial resources due to the COVID-19 pandemic, and before Justice Kurke performed any case management functions, I was assigned as the case management Judge.
[10] The balance of the motion was argued before me on November 26, 2020. All of the Defendants supported the motion, and one of the Defendants (John D’Agostino) brought a similar motion. On January 15, 2021, I issued an Endorsement granting the Defendants’ motion and ordering the Plaintiff to prepare, issue and serve a Fresh as Amended Statement of Claim.
[11] At the argument of the motion on November 26, 2020, the Plaintiff alluded to the fact that he was contemplating a claim against Weaver Simmons. The Plaintiff was strongly discouraged from proceeding with such a claim and was advised that if he continued to issue claims against lawyers acting for other parties, he could be faced consequences including adverse costs or a motion to have him designated as a vexatious litigant. I advised the Plaintiff that, based upon his comments, I was going to consider whether I should make an Order on my own motion placing limits on his ability to issue claims against any further parties or their counsel. The Plaintiff commenced the Third Action before I had an opportunity to decide that issue.
[12] On December 10, 2020, Peter Diavolitsis, counsel at Weaver Simmons, wrote to the Court to advise that his firm had been served with the Third Claim. He requested a Case Management Conference to discuss the claim and its implications on his involvement as counsel in the Second Claim. Instead, after reviewing the Statement of Claim, I directed the Registrar, pursuant to Rule 2.1.01(3), to give notice in Form 2.1A to the Plaintiff.
[13] In his submissions in response to the Form 2.1A notice, the Plaintiff argued, among other things, that his claim against the Defendant Weaver Simmons was appropriate, that the primary purpose of the Defendant’s motion in the Second Action was to seek the appointment of a “particular Judge” to hear the Plaintiff’s actions, that the Defendant was de facto acting for the corporation controlled by the Plaintiff (R.J.M. Garnets Inc.) and owed a duty of care to him, and that the legal test to grant relief pursuant to Rule 2.1 had not been satisfied in this case.
[14] In his responding submissions, Mr. Diavolitsis on behalf of Weaver Simmons argued that the claim against them appeared to be based upon the Plaintiff’s dissatisfaction with the contents of the Motion Record prepared by Weaver Simmons in the Second Action. Mr. Diavolitsis confirmed that Weaver Simmons is not acting for R.J.M. Garnets Inc. and that it does not owe either a contractual or a professional duty of care to the Plaintiff. Mr. Diavolitsis argued that the claim against Weaver Simmons ought to be dismissed as it is frivolous, vexatious, and an abuse of process.
The Law
[15] Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194 provides that, on its own initiative or at the request of any party, the Court may stay or dismiss a proceeding that it finds is frivolous, vexatious or otherwise an abuse of the process of the Court.
[16] The body of case law which has emerged regarding Rule 2.1 is relatively small. The applicable factors which have emerged, and have been endorsed by the Court of Appeal in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, are as follows:
a. A liberal and generous review of the Statement of Claim should reveal no discernable cause of action; and,
b. The pleadings should support the conclusion that it is appropriate for the Court to apply the peremptory procedure authorized in Rule 2.1. In particular, the Court should be concerned, having reviewed the Statement of Claim, that the Plaintiff will act vexatiously if permitted to proceed with the action.
Analysis
[17] I would note at the outset that I am sympathetic to the frustration of the Plaintiff in addressing his legal proceedings. The Plaintiff is a self-represented litigant who is attempting to navigate complex commercial litigation involving multiple lawyers. The litigation involves a mining project to which he has devoted his life’s work, and for which he has a very specific vision; it is very personal to the Plaintiff. It is understandable why he may feel that he is being wronged when positions are taken by the parties or decisions are made by the Court which compete with his view of how the litigation should proceed.
[18] As sympathetic as I may be to the Plaintiff, I cannot permit him to initiate further proceedings which appear to serve no purpose other than to express his frustration with counsel who have undertaken completely appropriate actions to defend the interests of their clients. To permit such litigation to proceed would be an abuse of the process of this Court.
[19] Neither Peter Diavolitsis nor any other lawyer at the firm of Weaver Simmons represent the Plaintiff or R.J.M. Garnets Inc. in any legal proceedings or otherwise. Mr. Diavolitsis represents Larmer Stickland in proceedings that have been commenced against them by the Plaintiff. Neither Mr. Diavolitsis nor Weaver Simmons owe any contractual, professional or other legal duty of care to the Plaintiff. This is an uncontroverted fact.
[20] The Plaintiff’s Statement of Claim also pleads that the Motion Record prepared by Weaver Simmons in the Second Action contained errors. This is a complaint, not a cause of action. The appropriate remedy for such a grievance is an award of costs should the motion be unsuccessful. The Plaintiff cannot sue the Defendant because he takes issue with the contents of a Motion Record prepared by the Defendant.
[21] The final concern raised by the Plaintiff both in his Statement of Claim and in his submissions in response to the Form 2.1A notice takes issue with the Defendant’s request in his Motion Record that a “particular Judge” be appointed to hear “all proceedings” commenced in the Superior Court of Justice in actions CV-17-6731 and CV-20-002-0000. The clear insinuation is that this request was an improper attempt by the Defendant to “Judge-shop”.
[22] Rule 37.15 provides a mechanism to appoint a single Judge to a proceeding in appropriate circumstances. The specific wording of the Rule is as follows:
Where a proceeding involves complicated issues or where there are two or more proceedings that involve similar issues, the Chief Justice or Associate Chief Justice of the Superior Court of Justice, the regional senior judge of the Superior Court of Justice or a judge designated by any of them may direct that all motions in the proceeding or proceedings be heard by a particular judge, and rule 37.03 (place of hearing of motions) does not apply to those motions.
[23] The purpose of Rule 37.15 is to provide access to case management in complex proceedings. By assigning motions to a single Judge, the Court provides continuity in the management of complex files. Judicial familiarity with the history and progress of the file benefits the parties and ensures the efficient allocation of the resources of the Court.
[24] The term “particular Judge” is the wording contained in the Rule. The assignment of a case management Judge is within the sole discretion of the Chief Justice, Associate Chief Justice or the regional senior judge who makes the assignment. The parties have no involvement in choosing the case management Judge assigned to their file and have no ability to request that a specific Judge be assigned to their file.
[25] In his Motion Record, Mr. Diavolitsis requested the appointment of a single case management Judge in the Main Action and the Second Action. It was his position that the claims arose from the same facts and circumstances, and that it was appropriate to ensure continuity in the management of the two proceedings.
[26] The Plaintiff disagrees with the assignment of a single case management Judge. It is his view that the Main Action involves civil claims against his business partners, whereas the Second Action involves what he has described as “criminal claims” against a group of professionals arising from the conduct of the Main Action and the development of the mining project. He views the actions as separate and distinct and is opposed to any attempt to group them together.
[27] While the Plaintiff is entitled to oppose the Defendant’s request to appoint a case management Judge, he is not entitled to sue the Defendant for making that request. The Defendant’s request was properly made under the Rules and was granted by the Court. There was nothing nefarious or underhanded about the Defendant’s request.
[28] The intention of Rule 2.1 is to address the very type of claim which has been commenced here by the Plaintiff. The Plaintiff’s claim discloses no discernable cause of action against the Defendant. Its sole purpose is to express frustration that Weaver Simmons has had the audacity to defend the proceedings commenced by the Plaintiff against its client, Larmer Stickland. It would be an abuse of the Court’s process to permit this claim to proceed.
[29] Having regard to the totality of the litigation commenced by the Plaintiff, it is also my view that the Plaintiff will act vexatiously if permitted to continue with this proceeding. This is now the second action that the Plaintiff has commenced against counsel who are representing other parties in his legal proceedings. If it is not made clear to the Plaintiff that this is an inappropriate litigation strategy, it is foreseeable that the Plaintiff’s Main Action will soon be eclipsed by an avalanche of claims commenced against counsel whose only offence was to act for their clients in a manner which displeased the Plaintiff. If that is not the very definition of frivolous and vexatious litigation, then I do not know what is.
Order
[30] For the reasons given above, I hereby make the following Orders:
a. That, pursuant to Rule 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Plaintiff’s claim against the Defendant is hereby dismissed.
b. That the Plaintiff shall pay costs to the Defendant in the amount of $1,500.00.
[31] In ordering costs, I have considered the fact that the Defendant has been put to the time and expense of having to review the Plaintiff’s claim, write to the Court to seek directions about the claim and to respond to the Plaintiff’s submissions with respect to the Form 2.1A notice. I have also considered my finding that the Plaintiff’s claim was frivolous, vexatious and an abuse of the process of this Court. This Court must send a clear message to the Plaintiff that opposing counsel have professional obligations to defend their clients, and that it is wholly inappropriate to commence proceedings against counsel personally for doing nothing more than discharging those obligations.
Cullin, J.
Date: January 15, 2021