Court File and Parties

COURT FILE NO.: CV-20-00652528

DATE: 20210719

ONTARIO SUPERIOR COURT OF JUSTICE

RE: JACK OLIVEIRA AND LUIS CAMARA ON THEIR OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 Plaintiffs

and

MARIO OLIVEIRA, Defendant/Plaintiff by Counterclaim

and

JACK OLIVEIRA AND LUIS CAMARA ON THEIR 0WN BEHALF AND ON BEHALF OF ALL MEMBERS OF LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183, All MEMBERS OF LOCAL 183 (LOCAL 183), JACK OLIVEIRA, LUIS CAMARA, NELSON MELO, JOHN EVAN􀁊 JOSEPH MANCINELLI, JOHN OCCBIALIN'9 MARCO ANTONIO RINCON CRUZ, MICHAEL WRIGHT, YOUSSEF KODSY, WRIGHT HENRY LLP; DEPARTMENT OF JUSTICE CANADA, MINISTRY OF THE ATTOURNEY GENERAL, Hon. DAVID LAMETTI, Hon. DOUG DOWNEY, Hon. FILOMENA TASSI, TORONTO POLICE SERVICE,CAMERON ROSS, PRIVATE INVESTIGATIONS (To be named), Defendants by Counterclaim

BEFORE: F.L. Myers J.

COUNSEL: Mario Oliveira representing himself. Insiyah Kanjee for the defendant by counterclaim Hon. Doug Downey.

READ: July 17, 2021

ENDORSEMENT

Background

[1] By endorsement dated June 28, 2021, reported at 2021 ONSC 4592, I directed the registrar to send a Form 2.1A notice to advise Mario Oliveira that the court was considering whether to dismiss his counterclaim against a number of defendants by counterclaim under Rule 2.1 of Rules of Civil Procedure, RRO 1990 Reg 194 for being frivolous, vexatious, or an abuse of process.

[2] Mr. Oliveira has provided submissions in writing as requested.

Pleadings and Self-Represented Litigants

[3] In his submissions, Mr. Oliveira properly refers to case law for the proposition that Rule 2.1 should only be used in the clearest of cases. It is not a quick substitute for a motion under Rules 21 or 25 of the Rules of Civil Procedure. See: Khan v. Krylov & Company, 2017 ONCA 62. I agree.

[4] Mr. Oliveira also makes reference to an Alberta decision, Jonsson v Lymer, 2020 ABCA 167, that says that a court should not utilize its inherent jurisdiction to declare a litigant to be a “vexatious litigant” to deny him access to civil justice except under extreme circumstances. In Ontario, s. 140 of the Courts of Justice Act, RSO 1990, c C.43 provides for an application to declare someone to be a vexatious litigant if they repeatedly abuse the court system. That is not what is happening in this case. Under Rule 2.1, I am considering the appropriateness of one pleading in one case. I am not asked to declare Mr. Oliveira to be a vexatious litigant. That would be an entirely different proceeding. The Alberta case therefore is not relevant here.

[5] Mr. Oliveira makes numerous submissions about the decision of the Supreme Court of Canada in Pintea v Johns, 2017 SCC 23, in relation to the treatment of self-represented litigants before the court. I understand his concern that a self-represented litigant cannot compete against a trained and experienced lawyer in court. He has neither the formal education nor job training to level the playing field with an experienced litigator.

[6] Mr. Oliveira summarizes some of the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons as follows:

(I) Fair access to justice – This requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient, and accommodating. Judges and court administrators should do whatever is possible to provide a fair and impartial process, and prevent an unfair disadvantage to self-represented persons.

(II) Some leniency for minor deficiencies – Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

(III) Judges have a responsibility to inquire – Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

(IV) Rules should not be used to hinder – Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

[7] In the Rule 2.1 process, the court is reviewing a pleading. In this case it is a counterclaim. Mr. Oliveira has delivered the counterclaim to start a lawsuit as is his right. It is also a unilateral act. Mr. Oliveira had complete freedom to choose the people to sue and what he would plead against each of them. So this is not really an issue where an experienced lawyer can be seen to be taking advantage of Mr. Oliveira.

[8] But, pleading is not a simple matter. I recognize how difficult it can be for a party with no legal education to understand the technical requirements of pleading. In essence the plaintiff (or plaintiff by counterclaim) needs to identify one of more “causes of action”. A cause of action is a group of facts that have been recognized by legislation or the common law to provide a legal basis for a person to sue another person. For example, people can sue others for breach of contract. That is a recognized cause of action. The torts of negligence, defamation, and misrepresentation are common causes of action.

[9] Each cause of action is made up of a number of constituent facts. For example, to plead a breach of contract case, there has to be a contract; the defendant has to have violated one of the terms of the contract; and the violation must have caused the plaintiff to suffer loss or damages. There is case law fleshing out the meaning of each of those elements.

[10] There are whole textbooks devoted to the topic of identifying the required elements of various causes of action.

[11] A plaintiff who wants to sue someone has to find a cause of action that fits the facts of the case and plead a story that includes each of the constituent facts for each of the causes of action alleged in the claim or counterclaim. Rule 25.06 (1) requires a pleading to contain “a concise statement of material facts” relied upon for a claim or defence. That means that a counterclaim must contain a concise story that sets out the facts alleged by the plaintiff by counterclaim that amount of a cause of action against each of the defendants by counterclaim.

[12] One can readily understand how a person without formal legal training might not be able to parse a story to identify and set out with particularity each of the constituent facts required for each cause of action asserted. But, those with experience in the field are quite used to doing so. Experienced practitioners, judges, and Case Management Masters can fairly readily look at a pleading and assess whether it sets out the gist of a recognized claim.

[13] If a pleading is close but is just missing a technical point or two, as long as the defendant knows the case she has to meet, the judge or Case Management Master is unlikely to dismiss the claim. If there is an important point missing form a pleading, the judge or Case Management Master is likely to tell the pleading party what is wrong and let him or her try to fix it. That is what is involved in “reading a pleading generously”. The court will not readily stop a claim from being brought where there is a pleading issue that can be fixed by an amendment to the pleading. The goal is to give the defendant fair notice of the elements of the cause(s) of action asserted against him or her.

Rule 2.1 Process

[14] Rule 2.1 is concerned with pleadings that on their face may be frivolous, vexatious, or an abuse of process. The court also considers whether the case is one in which requiring a defendant to bring a motion for dismissal of the claim would itself risk being abusive. Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733.

[15] Rule 2.1 does not require a judge to draft an endorsement that explains why he or she directs the registrar to give notice to a party that their pleading is under review. Directing a registrar to send a notice is an administrative act. However, being aware that pleading is a difficult task at the best of times, I drafted an endorsement to be transparent and to try to ensure that Mr. Oliveira understood my concerns.

[16] My endorsement included the following:

[6] There are no allegations of fact pleaded against Hon. Doug Downey in the counterclaim. Under Rule 25.06 (1), claims must contain a concise statement of the facts alleged against each defendant to put them on notice of why they are being sued. The allegations of fact must state a basis on which the plaintiff by counterclaim may be entitled to a judgment against each defendant if the facts alleged are later proven to be true at a trial. As no allegations at all are made against Mr. Downey, it appears that the counterclaim against him may be frivolous i.e. bound to fail.

[7] Although the request to review the counterclaim was made only by counsel for Hon. Doug Downey, to avoid a multiplicity of proceedings and repetitive reviews as each defendant in the counterclaim comes forward, at my own initiative under Rule 2.1.01, I reviewed the counterclaim to consider whether it may be frivolous, vexatious, or an abuse of process on its face in relation to the claims against other defendants by counterclaim. P.Y. v. Catholic Children's Aid Society of Toronto, 2020 ONSC 6660, aff’d 2021 ONCA 248,

[8] Without commenting on the proprietary of the scope or drafting of the counterclaim, it is apparent that on its face it pleads facts supporting several causes of action against union officials and others connected to the union including the torts of intimidation, conspiracy, and intentional infliction of mental distress. Whether the pleading states a reasonable cause of action or is sufficient to meet the standards of pleading under Rule 25 may be issues for a motion. But Rule 2.1 is not engaged.

[9] However, I am concerned that the Mario Oliveira may have overreached. The pleadings against the Department of Justice, do not appear to be a basis for a civil claim. Moreover, like Hon. Doug

Downey, there is nothing at all pleaded against the defendants by counterclaim: Ministry of the Attorney General, Hon. David Lametti, Hon. Filomena Tassi, Toronto Police Service, Cameron Ross, Private Investigations (To Be Named).

[10] The plaintiff should therefore be called upon to make written submissions of up to ten pages to explain why the case should not be dismissed under Rule 2.1.01(1) against all of the defendants by counterclaim listed in the preceding paragraph (including Mr. Downey) for being frivolous, vexatious, or an abuse of process.

[17] I gave notice to Mr. Oliveira that his claims against union officials were not being considered for dismissal under Rule 2.1. Whether or not they are pleaded correctly technically, he pleaded enough facts to set out a cause of action that did not appear doomed to fail or abusive on the face of the counterclaim. That is all that is required to survive a review under Rule 2.1.

[18] I also told Mr. Oliveira that he has not pleaded any facts at all against numerous government defendants in his counterclaim and the few facts that he pleaded against the Ministry of Justice did not appear to provide any basis for him to sue. I explained to Mr. Oliveira that to sue someone, a plaintiff has to make allegations of facts to give the proposed defendant notice of why they are being sued. This is a basic and fundamental statement of procedural fairness and does not even require Mr. Oliveira to consider the complexities of finding and pleading causes of action.

[19] At para. 17 of his submissions, Mr. Oliveira wrote:

If the counterclaim is stayed or dismissed this would deny me redress against the false and fraudulent claims of the moving party the plaintiffs at a minimum, as well as other actionable claims against the other defendants by counterclaim.

[20] As noted above, I am not considering dismissing the counterclaim against the plaintiffs. However, I do find it helpful that Mr. Oliveira confirmed that he understands the concept of needing “actionable claims” against the other defendants to his counterclaim.

[21] At para. 18 of his submissions, Mr. Oliveira writes:

Rule (IV) of the Principles the evidentiary rules should not be used to hinder my legal interests as it relates to the counterclaim because it may be found to be lacking or far from acceptable legal standards that

otherwise might have been written by a qualified lawyer. This deficiency does not inherently suggest that the counterclaim is vexatious or that it lacks actionable merits for redress by the courts.

[22] I agree with his first sentence. But the second sentence assumes that any deficiency in pleading does not suggest that the counterclaim is vexatious. I cannot go quite that far. Whether the claim is frivolous or vexatious depends on the facts pleaded and the nature of the deficiency identified.

[23] Mr. Oliveira submits that he should not have to prove his causes of action against each defendant at this time.

Requiring the SLR to prove that each claim against each of the defendants in counterclaim is not vexatious or frivolous would become prohibitively exhaustive and best left up to the trial judge to decide. Such an endeavour would cause a mammoth burden on the SRL and strategically favourable for the defendants in the counterclaim. This creates an unfair advantage for the other parties. The defendant does not have resources, clerical staff, assistants and so on as the opposing parties do

[24] Again, I agree with him. The time for Mr. Oliveira to prove by evidence that the causes of action pleaded in his counterclaim are actually true is at the trial (or a prior motion for summary judgment perhaps). Right now, I am just reading his counterclaim and his submissions. There is no burden at all on Mr. Oliveira to prove any facts. I am not even allowed to look at any evidence at this stage. Scaduto, at paras. 11 and 12. I am just looking to see whether the counterclaim on its face and as explained in Mr. Oliveira’s submissions, is frivolous, vexatious, or an abuse of process.

[25] As noted previously, Mr. Oliveira’s counterclaim does not plead any facts at all against numerous government defendants. The issue is not one of proof. The question I raised and on which I invited submissions is whether there is a cause of action being asserted that is capable of success at trial.

[26] Mr. Oliveira must present a case that meets the requirements of the law. To be sure, I will assess what he pleads with flexibility and leniency for drafting issues. I look for the underlying germ of a cause of action recognizing that not everyone is able to articulate their claims with equal written language skills.

[27] In Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 18, I wrote:

[18] It should be borne in mind however, that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. 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.

The Counterclaim in this Case

[28] The plaintiff union sued Mr. Oliveira for allegedly taking a confidential list and using it unlawfully. Mr. Oliveira has responded to that claim by denying wrongdoing and asserting significant wrongdoing against the union and its officials.

[29] In his submissions, Mr. Oliveira now explains why he has added claims against both levels of government and various government officials. Although not pleaded in his counterclaim, Mr. Oliveira advises that he has been subject to fraudulent claims by the union before a motions judge.

[30] He writes:

25. The motions Judge deemed it necessary to find me contempt of court after I filed the contact “LIST” with my notice of appeal to the divisional court, this despite the fact I was not aware and understood that I could not use the “LIST” in my appeal. In the Pintea v Johns, 2017 SCC 2 the Supreme Court found that under the common law of civil contempt it must be proved beyond a reasonable doubt that a person had actual knowledge of the orders. The moving party did not satisfy this requirement for a finding of contempt. I was unfairly penalized as a self-represented litigant.

26. Aside from the Plaintiffs counsel knowledge of their clients’ baseless claim, the plaintiffs counsel has conducted themselves in an abhorrent and egregious manner engaging in a campaign of terror

and bullying through the courts, gaming the system in an attempt to set-up and frame me, and have me unjustly incarcerated and with the assistance of the motions Judge.

27. The Motions and case management Judge, among the litany of misconduct issues (being raised in an appeal to dismiss the interlocutory order and subsequent endorsements of the motions judge at the Appellate Court of Ontario) in March of 2021, the Motions Judge ordered the defendant to comply with her instructions in order to purge his contempt. Once I, the defendant Mario Oliveira had complied, the motions Judge reneged in a classic bait and switch and refused to purge my contempt. The Motions Judge then made false claims, claims not supported in email communication between the parties and events, in order to justify the incarceration of the defendant Mario Oliveira in an effort of continued prejudice and appeasement of the plaintiff’s counsel. The motions judge also awarded the plaintiffs with what can only be described as an extortionist amount of money for their motions to incarcerate me and then bumped up that amount by nearly 25 thousand dollars more for good measure - more than the plaintiffs had requested and unfairly to the prejudice of the Defendant/Plaintiff Mario Oliveira.

28. The set up of the defendant Mario Oliveira by the plaintiffs, their lawyers and the courts Motions judge, all of whom are complicit in providing false evidence, false testimony and by false claims in order to falsely prove the defendant guilty of a crime for the purpose of a false imprisonment of the defendant Mario Oliveira is the cause of action in law and basis for the actionable claim against the justice department and the elected officials for the justice department. The culpability of the state in unlawfully incarcerating and denying its citizens rights under the charter is quantifiable and claimable. The law in intentional torts of false arrest and imprisonment and breach of Charter rights is well-settled. The Justice department, elected officials are not immune from liability under the law of negligence and the tort of negligence exists in Canada. The tort is consistent with the values of the Canadian Charter of Rights and Freedoms and fosters the public’s interest in responding to failures of the justice system.

29. Therefore, it is respectfully submitted that the state and thereby the justice department, the elected ministers of these departments of justice are liable for injury to defendant for attempting to falsely imprison me and denying me my Charter Rights. The Defendant Mario

Oliveira pleads that the state (crown) Justice department by way of the courts is liable for fraud, negligence, intentional infliction of emotional distress and a breach of fiduciary duty. [Bolded emphasis in the original.]

[31] Mr. Oliveira says he is entitled to sue the governments and officials because the motion judge was complicit in the union’s efforts to have him falsely imprisoned and held liable for exorbitant costs for contempt of court.

[32] Mr. Oliveira then submits:

34. I would ask that this Honourable Court give due consideration to both the application of the Principles, and the spirit of the Pintea decision in my case. [Emphasis in original.]

[33] Mr. Oliveira makes a mistake that is commonly made by self-represented litigants. He is trying to weaponize the Statement of Principles on Self-represented Litigants and Accused Persons. They are not an incantation that can be recited to trump the law or to invent a right of a self-represented party to sue whomever she or he wishes for every perceived wrong. As set out in the preamble to the Statement of Principles, they provide guidance to participants in the justice system “to ensure that self-represented persons are provided with fair access and equal treatment by the court.”

[34] In summarizing the CJC’s Statement of Principles on Self-represented Litigants and Accused Persons, Mr. Oliveira omitted an important section. He did not mention the burden on self-represented litigants who come to court to sue people:

Fort Self-Represented Persons

1. Self-represented persons are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case.

2. Self-represented persons are expected to prepare their own case.

3. Self-represented persons are required to be respectful of the court process and the officials within it. Vexatious litigants will not be permitted to abuse the process.

[35] While I can, should, and must give appropriate guidance and leeway to Mr. Oliveira’s expression of his position, he still has a burden to try to learn and meet the applicable law and practice as explained to him. He wants to sue people. To do so, he has to say what they have done to him that justifies putting them to the cost and distress of a lawsuit. The Statement of Principles on Self-represented Litigants and Accused Persons does not change the substantive or procedural law.

[36] The counterclaim as explained by Mr. Oliveira cannot possibly succeed against either level of government or the Minsters of the Crown. There is no basis for a claim of false imprisonment against a government or a minister as a result of a wrongful conviction for contempt of court in civil litigation. The government’s only involvement is ostensibly through the judge. The government did not prosecute the case. The judge has absolute immunity from suit. There is no basis to sue the government for anything done or not done by the judge in the purported exercise of her office. Nor could a minister possibly be held personally liable on that basis whether for false imprisonment, negligence, or breach of the Charter of Rights.

[37] Mr. Oliveira’s remedy, first, is to appeal the order finding him in contempt of court. Until then, he cannot attack a subsisting order of the court. Claiming that an order is wrong when it remains in force is called a “collateral attack”. This is not permitted. The way to attack an unjust or wrong order is to appeal it to an appellate court.

[38] Based upon Mr. Oliveira’s own explanation, the unpleaded claims against government ministries and ministers are both frivolous and vexatious. They cannot succeed and they are brought to vex – to lash out at others who had nothing to do with the source of Mr. Oliveira’s complaints. The same is true of the few paragraphs setting out Mr. Oliveira’s claim against the federal Department of Justice. The Federal Government owed him no duties in relation to the contempt of court proceeding whether under the Charter of Rights or otherwise.

[39] Mr. Oliveira’s belief that he has or should have a right to sue the government and ministers personally as a result of his allegation that the motion judge was complicit in his wrongful conviction is not a correct statement of the law. The Statement of Principles on Self-represented Litigants and Accused Persons does not help him create a cause of action where none exists.

[40] Moreover, there is nothing that Mr. Oliveira can plead to advance a cognizable cause of action against the government or the officials sued on this basis. There is no germ of a cause of action waiting to bloom by a better pleading or by the court adopting a flexible view of his current pleading.

[41] In light of the nature of the claim brought against the government and ministers as explained in Mr. Oliveira’s submissions, I find that there is a basis to be concerned that requiring the governments and officials to bring a motion to extricate themselves would itself be abusive. With the claim based on seeing through judicial immunity and amounting to a collateral attack at its best, there is good reason to resort to the attenuated process of Rule 2.1. Requiring a motion would perpetuate a collateral attack.

[42] The action is therefore dismissed under Rule 2.1 as against the defendants by counterclaim Department of Justice Canada, Ministry of the Attorney General, Hon. David Lametti, Hon. Doug Downey, and the Hon. Filomena Tassi.

[43] Mr. Oliveira also provides submissions about the involvement of the Toronto Police Service and unnamed private investigators in helping the plaintiff union conduct surveillance and to harass Mr. Oliveira. While I cannot follow all of what Mr. Oliveira submits, it seems to me that properly pleaded, there could be a cause of action stated.

[44] I do not dismiss the claims as against the Toronto Police Service, Cameron Ross, and unnamed private investigators. However, I am advising Mr. Oliveira that he should consider amending his counterclaim against all the remaining defendants. He needs to be sure that he has set out material facts that amount to recognized causes of action against each person whom he wants to sue. Otherwise, he should expect to be on the receiving end of motions under Rule 21 or 25 in which he could find himself facing one or more orders to pay costs if his pleadings are struck out. .

[45] I strongly advise Mr. Oliveira to obtain legal advice even if limited in scope to identifying his causes of action and drafting an amended counterclaim. The Law Society of Ontario runs a referral service and will connect people with lawyers who practise civil litigation and who might take limited scope retainers. The Lawyer Referral Service can be reached at http://www.findlegalhelp.ca/.

[46] Law Help Ontario also provides free legal assistance at 393 University Ave Suite 110, Toronto, ON M5G 1E6 (416) 628-3552. In addition, Downtown Legal Services at the Faculty of Law of the University of Toronto can be reached at law.dls@utoronto.ca or 416 934-4535. Osgoode Hall Law School at York University also provides free legal services through Community & Legal Aid Services Programme (CLASP) that can be reached at (416) 736-5029.

[47] Mr. Oliveira seems to be able to source legal research. If he prefers to research causes of action himself, he may wish to consult Bullen & Leake & Jacob's Canadian Precedents of Pleadings, Sweet & Maxwell; 18th edition (Dec 10 2015) or Odgers' Principles Of Pleading And Practice In Civil Actions In The High Court Of Justice, Franklin Classics; (October 7, 2018).

[48] No costs.

F.L. Myers J.

Release Date: July 19, 2021