COURT FILE NO.: CV-18-599157
DATE: 2021/11/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AMANDA DUNNING, Plaintiff
-and-
INTERCITY REALTY INC. et al., Defendants
BEFORE: ASSOCIATE JUSTICE RONNA M. BROTT
COUNSEL: A. Dunning – Self-represented plaintiff Email – plaintiffamandadunning@gmail.com
F. Souza - For the Defendants Email – fsouza@lawtoronto.ca
ENDORSEMENT
[1] The plaintiff, Amanda Dunning, has sued for wrongful dismissal and for payment of substantial commissions allegedly owing to her for real estate transactions which she claims that she sourced for the defendant while employed by them from September 16, 2015 to April 26, 2016.
[2] In 2019, the defendants moved for summary judgment to dismiss the action on the basis of a limitation issue. By reasons dated May 28, 2019 Nakatsuru, J. held that there was a serious limitation issue requiring a trial.
[3] On June 11, 2020 the plaintiff, in writing, on an urgent basis and without notice, brought a motion to amend the Statement of Claim. Her proposed Fresh as Amended Statement of Claim was 85 pages long. By Endorsement dated June 11, 2020, Justice Myers declined to schedule the requested motion finding that the motion was neither urgent nor one that could be addressed “under the limited processes then available to deal with motions during the pandemic.”.
[4] On July 4, 2020 Ms. Dunning delivered a Request to schedule a short, opposed motion. By Order of July 6, 2020, Justice Myers declined to book the motion. Justice Myers found that the amendments raise “a large number of issues and new claims. It is replete with evidence and argument well beyond a ‘concise statement of material facts on which she relies (see: Rule 25.06(1) ) of the Rules of Civil Procedure, RRO 199, Reg. 194)”. He opined that Ms. Dunnings’s motion on its face may be frivolous. Justice Myers directed the Registrar to issue a Notice in Form 2.14 requiring Ms. Dunning to provide no more than 10 pages of written submissions explaining why her motion is not frivolous i.e. how it can succeed at law. Until the 2.1.02 issue was resolved, it was ordered that her motion dated May 30, 2020 and her short motion request form delivered July 4, 2020 were stayed pursuant to s. 106 of the Courts of Justice Act. The Registrar was directed not to accept any filings from Ms. Dunning concerning the motion other than her submissions under Rule 2.1.02.
[5] Ms. Dunning responded in writing. Justice Myers’ Endorsement of July 14, 2020 again noted that the plaintiff’s initial claim for wrongful dismissal and outstanding commissions, if the plaintiff’s allegations are accepted, appears compelling. However, he reiterated that on its face, “the motion cannot succeed as proposed as it is an improper pleading. It is replete with legal argument and evidence.” He found that the plaintiff’s proposed pleading was frivolous. Justice Myers urged the plaintiff to keep her case as narrow and tight as she can. That way, she “will need to prove the fewest facts possible to entitle her to judgment if she is believed.” The motion was ordered stayed. He stated:
“This order does not prevent the plaintiff from moving before a Master to add a party on proper notice and narrowly tailored evidence. The draft Fresh as Amended Statement of Claim referred to in this motion is not to be put forward again. It is probably a useful guide to the plaintiff or a lawyer for the plaintiff on a number of evidentiary issues. It just is not a pleading. However, if the plaintiff obtains advice and is able to put forward a draft pleading that complies with Rule 25.06(1) on its face, there is no reason that she cannot seek leave to amend from a Master on appropriately narrowly tailored evidence.”
[6] At the plaintiff’s request, in January 2021, the parties appeared before Justice Chalmers. Ms. Dunning was seeking production of documents in relation to various real estate deals which, in her view, generated commissions to which she is entitled. As well, she sought the court’s assistance with respect to scheduling examinations for discovery. She also again sought an Order granting her permission to amend the Statement of Claim. Justice Chalmers refused to grant any of the relief sought and advised the plaintiff that if she wished to proceed with a motion to amend, she could, at the same time include in the motion, the relief she was seeking with respect to the issue of documentary production and discovery.
[7] On January 27, 2021 the parties attended at a Zoom conference with me to schedule the plaintiff’s motions. Despite the court’s urging to move forward with the action and to proceed to examinations for discovery, the plaintiff chose instead to proceed with interlocutory motions.
THIS MOTION
[8] Ms. Dunning seeks to add party defendants to this action and to amend the Statement of Claim in accordance with the proposed Fresh as Amended Statement of Claim. As well, Ms. Dunning seeks to compel certain individuals to attend examinations for discovery on behalf of the defendants and she seeks to compel production of additional documents.
[9] Ms. Dunning delivered eleven volumes of materials with her Affidavit sworn April 6, 2021 in support of this motion. The respondent’s motion record was served April 29, 2021. On May 18, 2021, at the plaintiff’s request, the parties attended at a telephone conference with Justice Vermette. (Given the conference was with respect to this motion the conference should have proceeded before me). The plaintiff objected to the defendants’ inclusion in their responding materials of the 85-page proposed Statement of Claim that Ms. Dunning had attempted to have approved before Justice Myers. Her Honour held that “the inclusion of the plaintiff’s earlier proposed pleading in the defendants’ responding Motion Record is not improper”.
ISSUES
[10] They are as follows:
Does the proposed Fresh as Amended Statement of Claim satisfy the rules of pleading?
Can the plaintiff obtain an order to add new parties?
Should there be an order for a Further and Better Affidavit of Documents?
Who should be examined for discovery?
Issue #1 – Amendments to the Statement of Claim
[11] Rule 26.01 provides:
On motion, at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[12] Despite the mandatory language of Rule 26.01, parties must comply with the general rules of pleading before amendments may be approved. Rule 25.06(1) states that every pleading “shall 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”.
[13] Rule 25.11 permits a court to strike a pleading on the ground that the pleading is:
(b) scandalous, frivolous or vexatious ; or
(c) is an abuse of the process of the court.
[14] The original Statement of Claim is 25 pages and 56 paragraphs. The proposed Fresh as Amended Statement of Claim is 20 pages single-spaced and consists of 165 paragraphs.
[15] Cameron J in Balanyk v University of Toronto, [199] O.J. No. 2162 (S.C.J.) at para. 46 states:
Neither the opposite party nor the court should be forced to nit-pick their way through a long, complex and sometimes redundant and split pleading, parsing each paragraph and each sentence with a view to extracting the claims and related materials facts and redrafting them into a clear and precise pleading. It is the responsibility of the party pleading to plead in accordance with the requirements of our law and the purposes of pleading.
[16] For this court to examine each of the additional paragraphs individually and rule on them as such would be unwieldy. A review of the content of the proposed Fresh as Amended Statement of Claim contains lengthy, argumentative evidence. The plaintiff details conversations that occurred at the coffee station. The pleading notes the type of luxury vehicles her bosses drove. The pleading reports on text messages that the plaintiff received. A few examples of the proposed amendments are as follows:
The plaintiff arranged a meeting with the Ontario Real Estate Association College to view her exam which they would not allow her to physically see it. The female attendant was secretive, curt and abrupt with the plaintiff. The had to restudy and retake the exam that summer. The plaintiff submitted research on every province response to their testing practices and exams. Her fight would go all the way to the Ministry who soon after revoked OREA’s ability to even administer the courses entirely which was satisfying.
The plaintiff alleges Mr. Sam Pisani experienced a true rag to riches story, prior to April 21st, 2016 he drove an older model Honda, lived in a rental apartment, estranged from his sons and was not solvent; happy to receive a $200 dollar cheque for one day of work assisting on a new home site, he also mumbled something about gambling debts. Mr. Sam Pisani suddenly had two million dollars in his hand and presumably poor credit history able to purchase that side-by-side property, where he planned to dupe the owner. There are a minimum of 4 sales around that time.
On July 16, 2016, the plaintiff applied for employment insurance benefits. The defendants lied stating she quit and refused to take Service Canada’s call delaying the receipt of the benefits.
On October 22, 2018, the plaintiff’s cell phone was unlocked by an unknown external party which is 38 days after the plaintiff had submitted her Affidavit of Documents Schedule A which listed text messages as part of the evidence.
Lawyer Fernando Souza submitted those emails he sent to in a chambers brief shockingly but refused when the plaintiff asked what email address you are using, please send proof to me, i.e. Where are my documents, where did you send them?
Fast forward two years and the plaintiff would attempt to purchase a new laptop once again during covid. Because this computer was secure she alleges Fernando Souza or the defendants who are surveilling her bank/credit card accounts and emails opted to send several spam emails prompting her to click on them posing as a domain registration information taken from the credit card to her email address used with the courts. These emails were confirmed by the domain provider as not theirs and are fishing emails.
[17] Courts have consistently held that any portions of a pleading that are irrelevant, argumentative, or inserted for colour shall be struck as scandalous. Justice Epstein, as she then was, considered the meaning of scandalous, frivolous or vexation in George v Harris, 2000 CarswellOnt 1714 (S.C.J.) at para. 20 stating:
The next step is to consider the meaning of “scandalous”, “frivolous: or “vexatious”. There have been a number of descriptions provided in the multitude of authorities decided under this or similar rules. It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, 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 of 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.
[18] There is no question that the proposed pleading falls squarely within that described by Justice Epstein. The amendments are irrelevant and argumentative. They contain unfounded and inflammatory attacks on individuals. The proposed amendments are scandalous, frivolous and vexatious.
[19] The proposed Fresh as Amended Statement of Claim contains the same or substantially the same paragraphs as the proposed pleading that was before Justice Myers. Attached as Schedule “A” are the paragraphs that are substantially similar or identical to those in the proposed pleading that was before Justice Myers. He found that the proposed pleading was frivolous.
[20] It appears that the plaintiff, being granted the permission to bring this motion with the restriction referred to by Justice Myers – (i.e. “to add a party or to amend her Statement of Claim on properly narrowed evidence and not advancing the draft Fresh as Amended Statement of Claim referred to in her notice of Motion”), has ignored the Court’s direction and is simply seeking to obtain an Order permitting virtually the same draft pleading. Ignoring his Orders amounts to an abuse of process which shall not be condoned.
[21] The plaintiff has also sought to add new claims of slander, harassment, copyright infringement and ‘data privacy and data protection’. With respect to the slander allegation specifically, the exact statements complained of have not been pleaded. In regards to the claim for libel, there has been no libel notice served in accordance with Section 5 of the Libel and Slander Act. These claims as pleaded in the proposed claim lack particularity. There is no factual basis for any of the claims. They are not tenable causes of action and accordingly must be struck.
[22] In accordance with Balanyk v University of Toronto, this court will not redraft the pleading. That responsibility rests with the party pleading. The proposed Fresh as Amended Statement of Claim fails to comply with the Rules of pleading and is found to be frivolous, scandalous, vexatious and an abuse of process. Accordingly, leave to amend the Statement of Claim in these respects is denied.
Issue #2 – Adding New Parties
[23] Rule 5.04(2) states:
(2) At any stage of a proceeding the court may by order, add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[23] The plaintiff seeks to add Alda Neves-Dube as a party. She has never been served with this motion. Based on the affidavit evidence and the proposed pleading, it does not appear that there is any tenable cause of action against Ms. Neves-Dube. Ms. Neves-Dube was not a party to any alleged oral agreement with the parties to this action. The only reference about her is that “she controls everything” and the plaintiff became aware of this information on a secret tape recording which the plaintiff taped in 2016. The six paragraphs of the proposed pleading which mention this person are evidence and are improper. Accordingly, the paragraphs are struck and Ms. Neves-Dube is not to be added as a party to this proceeding.
[24] The other parties who Ms. Dunning seeks to add are “unnamed entity” and “unnamed lawyer”. As there are no clear facts pleaded nor any particularlity about these individuals, these claims are clearly untenable. Accordingly, these parties are not to be added.
Issue #3 and #4 – Productions/ Further and Better Affidavit of Documents/ Parties to be examined for discovery
[25] The defendants submit that they have produced all relevant documentation in relation to the original Statement of Claim. While there are five properties mentioned in the original Statement of Claim, Intercity alleges that only one was sold by Intercity and accordingly they have produced all information in regards to that one sale.
[26] It is unnecessary at this stage for the defendants to produce any additional documentation. If, at a later time in the proceedings it becomes evident that there is additional documentation to be produced, then the defendants will be required to comply with their obligations under the Rules.
[27] At the conclusion of Ms. Dunnings’ submissions, she indicated that so long as she is able to add the unnamed entity and Ms. Neves-Dube, she “feels it is unnecessary to compel a further and better affidavit of Documents and to examine additional individuals for examination for discovery. She simply seeks to ‘add the new defendants’ and she will thereafter “bring a 30.10 motion for production of the Real Estate Council of Ontario documents which she submits are relevant.documents”. Given my ruling above, no further relief on this aspect is granted.
ISSUES ARISING AFTER THE HEARING OF THIS MOTION
[28] The hearing of this motion commenced on June 2, 2021. There was an internet interruption in the late morning. After waiting over 1.5 hours, and power was not restored, the balance of the motion was adjourned to June 23, 2021, as early a date as was possible, in order to accommodate the parties.
[29] After the hearing was concluded and put under reserve, the court received a plethora of correspondence from the plaintiff which included costs submissions, complaints about the length of time the parties had to wait to have the matter heard in the first instance, computer hacking allegations against the defendants, “the builders got Ontario Hydro to cut the power’, the time it takes to issue an Endorsement, the defendants’ delays, the court’s failure to request privileged information during and after this hearing, other “Masters’ shortfalls and incompetence in other unrelated matters, and numerous allegations against defence counsel including their involvement in criminal conspiracies against the plaintiff. (The plaintiff has already reported defence counsel to the Law Society and those complaints have been dismissed).
[30] I will not comment on these allegations other than to urge the plaintiff to follow the process and procedure of this court and to focus on what Justices Nakatsuru and Myers and this court have continuously indicated may well be a compelling wrongful dismissal claim.
[31] The plaintiff has now been given a number of opportunities to seek to amend the Statement of Claim and to compel productions. To provide her with additional opportunities to keep doing so when she has continued to ignore court orders, is contrary to Rule 1.04(1) which requires the Rules to “be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits and (1.1) which requires the court “to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”. The court cannot be the lawyer for any party. The plaintiff is once again urged to attempt to obtain legal advice.
[32] Taking into account the previous court orders, the Rules of Civil Procedure, the proposed Fresh as Amended Statement of Claim, the evidence before this court and caselaw on these issues, the plaintiff’s motion is dismissed in its entirety.
[33] It is ordered that the parties shall proceed directly to a mediation with a view to trying to resolve this action. Defence counsel shall forward to the plaintiff within 14 days, the names of five mediators specializing in employment law. Within ten days thereafter, the plaintiff shall choose one of them and shall forthwith advise defence counsel who shall arrange the mediation with the cost to be shared equally between the parties
[34] If the action does not settle at the mediation, the parties shall attend, within 30 days thereafter, at examinations for discovery. If, after all undertakings and questions refused have been answered or ordered answered, and the plaintiff continues to be of the view that the Statement of Claim requires amendment, she may then bring a motion for same – with the guidelines as previously ordered by Justice Myers and now this court, and excluding the disallowed amendments sought on this motion. The same applies with respect to a 30.10 motion for production from the Real Estate Council of Ontario. The plaintiff shall not bring any interlocutory motions until after the completion of examinations for discovery.
[35] I noted at the end of oral argument that the parties shall, following release of this decision, attempt to agree on the issue of costs but if unable to do so, they shall exchange costs outlines and submissions within 30 days. Having reconsidered, such an Order at this stage would simply serve to further delay this action. Accordingly, on the issue of costs, it is ordered that the costs of this motion are deferred to the Trial Judge.
ASSOCIATE JUSTICE RONNA M. BROTT
Date: November 8, 2021