COURT FILE NO.: CV-20-85268
DATE: 2021/01/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nathanael Andoseh, Plaintiff
AND
ScotiaItrade & ScotiaBank, Defendants
BEFORE: Justice Sylvia Corthorn
COUNSEL: Mr. Andoseh, as a self-represented Plaintiff
Simon Gollish, for the Defendant, ScotiaBank
No one appearing for the Defendant, ScotiaItrade
HEARD: In writing
ENDORSEMENT
[1] In a letter dated December 29, 2020 addressed to the Registrar of this court (“the Letter”), counsel for The Bank of Nova Scotia (“the Bank”) makes a request in writing under r. 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). It appears that The Bank of Nova Scotia is improperly named in the title of proceeding as “ScotiaBank”.
[2] The Letter came before the court in January 2020. The Bank’s counsel requests that the court make an order under r. 2.1.01(1) dismissing the action against the Bank. In support of that request, the Bank’s counsel submits that the action against the Bank “appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the Court.” In three paragraphs that follow that request, the Bank’s counsel goes on to say:
• Mr. Andoseh has commenced eight similar actions in the past 1.5 years. The actions are repetitive and indicative that Mr. Andoseh is seeking “to use [this court] and its processes in an inappropriate manner”;
• The statement of claim in this action “does not disclose a proper cause of action and the damages are patently unreasonable”; and
• The outcome on the request pursuant to r. 2.1.01(6) is not a “close call”.
[3] The copy of the statement of claim included with the Letter does not have a court file number. The Bank was apparently served with a copy of the originating process that does not have a court file number. The Bank’s counsel understood that the originating process had been issued. A court file number for this action is set out in the Letter. With the assistance of the court staff, I confirmed that the court file number identified in the Letter is correct.
The Letter of Request
[4] Before turning to the substance of the request for the action against the Bank to be administratively dismissed, I first address its form. A request under r. 2.1.01 is to be restricted to “one or two lines” and limited to identifying the specific relief sought (Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 12). I find that the three paragraphs summarized in para. 2, above, consist of argument and are inappropriate.
[5] The Bank’s counsel included with the Letter, a copy of a statement of claim in Andoseh v. TD Canada Trust, Jordan, Hodges (“the TD Action”). The court file number for the TD Action is not included on the copy of the pleading enclosed with the Letter. The substance of the allegations in the TD Action are similar to the allegations against the Bank in this action. I find it appropriate for the Bank’s counsel to have included a copy the originating process in the TD Action in support of the request made under r. 2.1.01. The similarities between the two pleadings, without further submissions, provide context for the submission that the action against the Bank is “vexatious”.
The Statement of Claim
[6] The only date identified in the statement of claim in this action is “December 2020” (para. 4). The date in December 2020 upon which the events described therein are alleged to have occurred is not set out. Mr. Andoseh alleges that he was denied service in December 2020, when he attempted to make a withdrawal from his “TFSA Account”.
[7] Mr. Andoseh identifies other conduct on the part of “the Defendant” upon which he relies in support of his claim for damages. This other conduct includes the following:
• Refusing to release funds to Mr. Andoseh and “engineer[ing] an elaborate set-up process to put funds in limbo for use by their day traders” (para. 6); and
• Deliberately pushing Mr. Andoseh to sell off some of his investments and pay penalties for the early closing of a mortgage (para. 9).
[8] It is not clear whether the conduct alleged in paras. 6 and 9 of the statement of claim occurred prior to, during, or after December 2020.
[9] I agree with the Bank that there are a number of problems with the statement of claim. Those problems include the following:
• In para. 3, Mr. Andoseh refers to a singular defendant when there are two named defendants. He fails to meet the requirements for the identification or description of a corporation as a party to a proceeding. In its entirety, the description of the two defendants named in the action is that “[t]he Defendant is a Bank”; and
• Mr. Andoseh fails to meet the requirements of the Rules with respect to the identification of damages and losses he alleges he suffered as a result of the conduct of either of the named defendants.
[10] I find that the statement of claim has some of the hallmarks of litigation that is frivolous and vexatious. For example, it is somewhat rambling; at times, the sentence structure is such that the substantive text is difficult to understand. The causes of action that Mr. Andoseh is advancing are difficult to discern. As another example, at para. 6, Mr. Andoseh refers to matters that are not justiciable in this court. He therein complains about the wait time when attempting to do business with “the Defendant” by telephone.
Disposition
[11] Despite the problems with and deficiencies in the statement of claim, I recognize that “there may be a legitimate cause of action buried in the pleading”: Fleischhaker v. Royal Ottawa Health Care Group and Attwood, 2020 ONSC 980, at para. 7.
[12] In at least two decisions, the Ontario Court of Appeal highlighted that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases (Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 and Khan). I find it reasonable to allow Mr. Andoseh, who is self-represented, an opportunity to make submissions to the court before further consideration is given to making an order dismissing the action against the Bank.
[13] Under r. 2.1.01(1) of the Rules of Civil Procedure, a court “may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”. It is not clear what relationship, if any, the two defendants named in this action have. I find that it is both cost-effective and just to address the claims against ScotiaItrade at the same time as the claims against the Bank. To do otherwise could lead to inefficiencies and unnecessarily increase the costs to the parties.
[14] I therefore direct as follows:
a) The registrar shall give Mr. Andoseh notice informing him that the court is considering making an order for dismissal of the action in its entirety. A copy of this endorsement and a 2.1A notice shall be emailed to him;
b) Mr. Andoseh shall have 15 days after receiving notice to file responding written submissions by email. These submissions shall be no more than 10 pages in length;
c) If Mr. Andoseh does not file written submissions within the specified time frame, the court may, without further notice to Mr. Andoseh, make an order dismissing the action against both defendants;
d) If Mr. Andoseh files written submissions in accordance with this direction, the registrar shall provide a copy of Mr. Andoseh’s submissions to the defendants by emailing a copy of them to (i) the Bank’s counsel, and (ii) ScotiaItrade;
e) Each defendant may, no later than 10 days after receiving Mr. Andoseh’s submissions, file responding written submissions by email of no more than 10 pages in length. In that case, the responding defendant shall email a copy of their submissions to Mr. Andoseh and to the other defendant or their counsel as is appropriate;
f) The deadlines set out in this direction apply notwithstanding the current Covid-19 health crisis; and
g) After considering any submissions received pursuant to this order, the court shall determine whether the claim ought to be struck under r. 2.1.01.
[15] The action is stayed, pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, until this court has made a final decision on the requisition under r. 2.1.01 or it makes another order varying this direction.
[16] In the meantime, the Registrar shall not permit any party to file any procedures or documents except in accordance with this endorsement, and no dates for motions shall be scheduled.
Madam Justice Sylvia Corthorn
Date: January 25, 2021
COURT FILE NO.: CV-20-85268
DATE: 2021/01/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Nathanael Andoseh, Plaintiff
AND
ScotiaItrade & ScotiaBank, Defendants
BEFORE: Justice Sylvia Corthorn
COUNSEL: Mr. Andoseh, as a self-represented Plaintiff
Simon Gollish, for the Defendant, ScotiaBank
No one appearing for the Defendant, ScotiaItrade
HEARD: In writing
ENDORSEMENT
Corthorn J.
Released: January 25, 2021