COURT FILE NO.: CV-19-00142538

DATE: 20210629

SUPERIOR COURT OF JUSTICE - ONTARIO RE: ATTILA L. VINCZER, Plaintiff

AND:

CORPORATION OF THE TOWN OF NEWMARKET, TONY VAN BYNEN, JOHN TAYLOR, TOM VEGH, DAVE KERWIN, LINDA MORTON, BOB SHELTON, ESTHER ARMCHUK, RICK NETHERY, DAVE POTTER, CURTIS GREENHAM, MATTHEW GILL, GEOFF MCINTOSH, PRIESTLEY DEMOLITION INC, SOIL ENGINEERING

LTD. and BERNARD LEE, Defendants BEFORE: JUSTICE VERNER

COUNSEL: THE PLAINTIFF IS SELF-REPRESENTED

ALEX MICHEL, for the Defendants SOIL ENGINEERING AND BERNARD LEE

ALBERT M. ENGEL, for the Defendant PRIESTLY DEMOLITION INC.

HEARD: JUNE 16, 2021 via Zoom

ENDORSEMENT

[1] Soil Engineering, Bernard Lee and Priestly Demolition Inc. (the moving parties) sought to (1) strike the statement of claim as against them pursuant to rule 21.01(1)(b) on the basis it discloses no reasonable cause of action, without leave to amend, or alternatively,

(2) to dismiss the Statement of Claim on the basis it is frivolous, vexatious or an abuse of process pursuant to rules 21.01(3)(d) or 25.11.

(1) Should it be struck pursuant to rule 21.01(1)(b)

[2] The test for striking a Statement of Claim under rule 20.01(1)(b) was recently articulated by the court in Asghar v. Toronto Police Services Board, 2019 ONCA 479:

8 In a motion to strike a pleading as disclosing no reasonable cause of action under r. 21.01(1)(b), the moving party must show that it is "plain, obvious and beyond doubt that the claim will not succeed" at trial: MacKinnon v. Ontario (Municipal Employees Retirement Board), 2007 ONCA 874, 88 O.R. (3d)

269 (Ont. C.A.), at para. 19. The court added, at para. 20, that "[t]he statement of claim must be read generously to allow for drafting deficiencies" and "[i]f the claim has some chance of success, it must be permitted to proceed." The court concluded, at para. 21, that "the threshold for sustaining a pleading on a Rule 21 motion is not high." See also Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 CanLII 6611 (ON SC), 74 O.R. (2d) 225 (Ont. Div. Ct.) , leave to appeal refused, 1991 CanLII 7565 (ON CA), [1991] O.J. No. 3673 (Ont. C.A.).

9 The usual result when a pleading is struck is to grant leave to amend. The principles are set out in Spar Roofing & Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, 348 O.A.C. 330 (Ont. C.A.) , at paras. 35-45, where Weiler J.A. pointed out that this approach is consistent with the generous approach to pleadings amendment under r. 26. Leave to amend should accordingly be denied only in the clearest of cases: Adelaide Capital Corp. v. Toronto Dominion Bank, 2007 ONCA 456 (Ont. C.A.) , at para. 6; and Tran v. University of Western Ontario, 2015 ONCA 295 (Ont. C.A.) , at para. 26.

10 Read generously, with due allowance for the fact that the appellant is self- represented and is not a lawyer, the nub of the claim is for negligent investigation, and malicious prosecution on the part of the investigating officer, together with conspiracy in relation to these torts.

[3] Although leave to amend should be rarely denied, leave will not be granted if the “facts as alleged” could not support a cause of action. As stated by the court in Conway v. Law Society of Upper Canada, 2016 ONCA 72:

The decision not to grant leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: Adelaide Capital Corp. v. Toronto Dominion Bank, 2007 ONCA 456 (Ont. C.A.), at para. 6.

See also: Mitchell v. Lewis, 2016 ONCA 903

The submissions of the parties as to whether the Statement of Claim disclosed a reasonable cause of action in relation to the moving parties

[4] The Plaintiff acknowledged, that the focus of this Action is on his claims against the Town of Newmarket. The Plaintiff sought to build a home in Newmarket and his efforts to obtain the necessary building permits were, according to him, repeatedly frustrated by the Town. In his Statement of Claim, he made a number of claims against the Town in relation to these frustrations. The issue before me is whether there were claims against the moving parties that, if true, were sufficient to support a cause of action.

[5] With respect to the moving parties Soil Engineering and Bernard Lee, the Statement of Claim does not mention them once outside the style of cause. There is nothing to assist

with how they even relate to any of the other parties mentioned and more importantly, how they relate to any of the claims in the pleadings. There are clearly no claims in the Statement of Claim to support a cause of action against either of them.

[6] With respect to the moving party Priestley Demolition Inc. (PDI), it is mentioned a single time in the Statement of Claim outside the style of cause. In particular, it was mentioned in the following paragraph:

Michael Goldfarb left the site and attended a meeting at the Town of Newmarket where he learned the Town had no intention of cooperating with a shoring plan that would have cost less than $30,000. Instead, the Town had already engaged Priestly Demolition Inc. to do remedial work to as high as about $150,000.

[7] There is no suggestion of wrongdoing in this paragraph. Accordingly, even if all of the allegations in the Statement of Claim are proven to be true, PDI would still not be liable for any damages. In other words, there are no claims in the Statement of Claim that support a cause of action against PDI.

[8] The Plaintiff opposed the motion to strike the Statement of Claim as against the moving parties, but not strenuously. The focus of his argument was that he should be permitted to amend his Statement of Claim to reflect how the moving parties contributed to the damages.

[9] With respect to whether the Plaintiff should be permitted to amend, I note that despite the fact that for over a year, he was aware that this motion was going to be brought, he provided no information in writing (either before or at the hearing itself) that assisted in how the moving parties relate to the proceedings. During oral submissions, he provided for the first time, vague information about how the three moving parties contributed to the damages mentioned in his Statement of Claim. He emphasized that leave to amend should be granted except in the clearest of cases.

Analysis

[10] This Action should be struck as against the three moving parties, as there are clearly no claims in the Statement of Claim that support a cause of action against any of them. The issue, as was more or less acknowledged by the Plaintiff, is whether it should be struck “without leave to amend”.

[11] I find that this is a close call, since the Plaintiff had over a year to provide the court with information as to how these moving parties related to the damages claimed in the Statement of Claim and yet, only in oral submissions, did he provide vague information as to how the moving parties contributed to the damages. It is not clear that if the claims asserted during oral submissions are proven, the moving parties will be liable for any damages. However, it is possible that they will be. Accordingly, I reluctantly find that this is not one of the “clearest of cases” and I therefore order that the action be struck as

against the three moving parties, but do no order that it be struck “without leave to amend”.

(2) Should the Statement of Claim be dismissed pursuant to rule 21.01(3)(d) or 25.11?

[12] I now turn to the alternative argument being that the Statement of Claim should be dismissed on the basis it is frivolous, vexatious or an abuse of process. Since I have already found that the moving parties should be struck from the Statement of Claim, there is no need to assess whether the Action should be dismissed as against the three of them alone. The only issue is whether the Action should be dismissed in its entirety on the basis it is frivolous, vexatious or an abuse of process.

[13] The moving parties point out that the Statement of Claim contains several of the hallmarks of a vexatious proceeding, as those hallmarks are summarized by Myers J. in Gao v. Ontario (workplace Safety and Insurance Board), 2014 ONSC 6497, which was cited with approval by the Court of Appeal for Ontario in Khan v. Krylov & Company LLP, 2017 ONCA 625 at para. 13.

[14] However, even though the Statement of Claim has the hallmarks of a vexatious proceeding, it still may be valid. As noted in Gao, supra vexatious litigants may have legitimate complaints. The true issue is whether there are any claims that have a reasonable possibility of success. The Court of Appeal for Ontario emphasized this principle in Khan v. Krylov, supra:

10 However, in effect and read generously, the pleading alleges that the respondent law firms settled the motor vehicle action for much more than they told the appellant, and pocketed the difference between the higher amount of the settlement and the $82,500 stated in the release. In other words, the pleading alleges that the law firms conspired to defraud the appellant.

11 As distasteful as this allegation might be, it is not entirely implausible. A cautious approach must be taken, as Myers J. noted in Husain v. Craig, [2015 ONSC 1754](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc1754/2015onsc1754.html) (Ont. S.C.J.), at para. [10](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc1754/2015onsc1754.html), when he asked: "what if the plaintiff's allegations are true?"

12 Rule 2.1 is an extremely blunt instrument. It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial.

[Emphasis added.]

[15] Rules 21.01(3)(d) and 25.11 are equally blunt instruments and therefore Actions should not be dismissed pursuant to either of them on the basis of being frivolous, vexatious or abusive, except in the clearest of cases.

[16] In my opinion, there is no possibility that the Plaintiff in the case at bar will be awarded damages in relation to many if not the vast majority of the claims in the Statement of Claim. However, there are a few allegations that if proven, may result in damages being awarded. Specifically, the Plaintiff alleged that the Town of Newmarket overcharged him for a number of things related to the permit process, and caused unnecessary work to be done, which the Plaintiff had to pay for. These claims may result in damages being awarded. As mentioned above, the Plaintiff further asserted during oral submissions that the moving parties contributed to these damages. Although it is unclear from the Plaintiff’s allegations, whether the moving parties would be financially liable, it is also unclear that they wouldn’t be. Therefore, this is not one of the clearest of cases and I do not dismiss the Statement of Claim as being vexatious, frivolous or an abuse of process.

Conclusion

[17] I order that the Statement of Claim be struck as against the three moving parties.

[18] With respect to costs, I ask the parties to consult with one another in hopes of coming to an agreement. In the event the parties cannot agree, I invite the moving parties to provide a bill of costs, a costs outline and no more than three pages of submissions by July 26, 2021; and the Plaintiff to provide his response with the same limitations by July 30, 2021.

Justice Catriona J. Verner

Date: June 29, 2021