COURT FILE NO.: C19-00000007
DATE: 2022-01-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
900351 Ontario Inc.
Plaintiff
– and –
Martian Properties Inc., Douglas Smith aka Doug Smith, Gordon Smith aka Gord Smith, Cliff Barnes, Stavros Moutsatsos aka Steve Moutsatsos, Weaver Simmons, The Ontario Provincial Police, Joel Lavoie aka Joe Lavoie, Bonnie Coultis, John Robertson, Marie Ford
Defendants
Laura Pinkerton, as agent for the Plaintiff
Sabrina A. Lucenti, for Stavros Moutsatsos aka Steve Moutsatsos and Weaver Simmons
Alex Redinger, for The Ontario Provincial Police, Joel Lavoie aka Joe Lavoie, Bonnie Coultis, John Robertson, Marie Ford
HEARD: December 6, 2021, virtually at Gore Bay
DECISION ON MOTIONS
A.D. KURKE, J.
[1] The plaintiff brought this action against various defendants arising out of the transfer of real property situate in Gore Bay, Ontario (the “property”). The plaintiff claimed that the defendants Martian Properties Inc. (“Martian”) and its principals Douglas and Gordon Smith and Cliff Barnes (collectively the “Martian defendants”); Stavros Moutsatsos and Weaver Simmons (collectively the “WS defendants”); and The Ontario Provincial Police (the “OPP”) conspired together to strip the plaintiff of its property by fraud, and that OPP officers Joel Lavoie, Bonnie Coultis John Robertson, and Marie Ford (collectively with the OPP the “OPP defendants”) through their negligence assisted in and permitted this conspiracy to succeed.
[2] When this matter was originally returnable on October 17, 2019, the Martian defendants moved for summary judgment, among other headings of relief. The motions brought by the other defendants were adjourned at the request of Laura Pinkerton, agent for the plaintiff, ultimately to this hearing. On November 4, 2019, Gordon J. dismissed the plaintiff’s claim against the Martian defendants (2019 ONSC 6321).
[3] As a preliminary issue, the remaining moving parties point out that Ms. Pinkerton, who lays no claim to being a lawyer, but who is an officer and director of the plaintiff corporation, had never sought the consent of the court to represent the plaintiff, as required by r. 15.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. For the purpose of these motions Ms. Pinkerton sought and was granted permission to represent the plaintiff corporation.
[4] The plaintiff responded to the motions by the three sets of defendants collectively. The motions by the WS defendants and the OPP defendants that remain after dismissal of the claim against the Martian defendants were heard at the same hearing, on the same date, and the parties agreed that one set of reasons could be issued for both motions.
[5] For the following reasons I conclude that the proceedings must be struck against the WS defendants and the OPP defendants, pursuant to r. 21.01(1)(b). It is plain and obvious that the claims cannot succeed. I also conclude that leave should not be granted to amend the statement of claim.
Rule 21.01(1)(b)
[6] Pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, a statement of claim may be struck if: 1) a plaintiff pleads allegations that do not give rise to a recognized cause of action, 2) a plaintiff fails to plead the necessary elements of a recognized cause of action, or 3) the allegations in the pleading are simply conjecture, assumptions, or speculation unsupported by material facts, or mere conclusions of law are asserted, though drafting deficiencies must be given generous accommodation: Hunter v. Bravener, [2003] O.J. No. 1613 (C.A.), at paras. 3-5; Deep v. Ontario, [2004] O.J. No. 2734 (S.C.J.), at paras. 33-34, aff’d [2005] O.J. No. 1294 (C.A.); Smith v. Ontario (Attorney General), 2018 ONSC 993 (Div. Ct.), at para. 12.
[7] Where it is “plain and obvious” that the claim has no reasonable prospect of success, it may be struck: Hunt v. Carey Canada Inc., 1990 SCC 90, at para. 33; Lee v. Magna International Inc., 2019 ONSC 102, at paras. 28-29.
[8] In a motion under r. 21.01(1)(b), the facts in the claim are accepted as proven, and the court is left to consider the legal sufficiency of the plaintiff’s claim as pleaded, subject to the caveat that allegations based on assumptions or speculation do not need to be accepted as true: Deep v. Ontario, at para. 35.
Conspiracy and fraud
[9] Common to the claims made by the plaintiff against the defendants are allegations of conspiracy and fraud. Claims for bad faith torts such as these bring with them heightened requirements in pleadings.
[10] There are two torts of conspiracy in Canadian law: conspiracy to injure, and conspiracy to commit an unlawful act. The elements of the tort of conspiracy to injure include: (1) that the defendants acted in combination; (2) that the defendants intended to harm the plaintiff; and (3) that the defendants' conduct caused harm to the plaintiff. The elements of conspiracy to perform an unlawful act include: (1) that the defendants acted in combination; (2) that the defendants committed an unlawful act, i.e., a crime, tort, or breach of statute; (3) that the defendants knew or should have known that injury to the plaintiff was likely to occur from their misconduct; and (4) that the defendants' misconduct in furtherance of the conspiracy caused harm to the plaintiff: Robinson v. Medtronic, Inc., 2009 56746 (ON SC), [2009] O.J. No. 4366 (S.C.J.), at paras. 90-93.
[11] To plead civil conspiracy, a statement of claim must state with precision and clarity material facts as to: 1) the parties to the conspiracy and their relationship to each other; 2) the agreement among the defendants to conspire, including particulars as to the time, place, and mode of agreement; 3) the precise purpose or object of the conspiracy; 4) the overt acts alleged to have been done by each of the alleged conspirators in pursuance and furtherance of the conspiracy, including the time, place and nature of the acts; and 5) the injury and damage caused to the plaintiff as a result of the conspiracy: Ontario Consumers Home Services Inc. v. EnerCare Inc., [2014] O.J. No. 3285 (S.C.J.), at para. 24.
[12] The material facts of conspiracy must be pleaded with precision and clarity and – since conspiracy involves an allegation of serious wrongdoing – with “heightened particularity” and a higher level of disclosure of material facts. It is not sufficient simply to lump defendants together under a bald allegation that “they conspired”: Ontario Consumers, at paras. 25-26.
[13] Civil fraud involves elements of: 1) a false representation made by the defendant; 2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); 3) the false representation caused the plaintiff to act; and 4) the plaintiff’s action resulted in loss: Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, at para. 21.
[14] Intent is an essential element in conspiracy and fraud. Where, as here, malice or intent is alleged, r. 25.06(8) of the Rules of Civil Procedure requires that a pleading contain full particulars, setting out precisely each allegation of wrongful conduct, and the “when, what, by whom and to whom” of the alleged misconduct: MacLean v. National CarWash Solutions, 2020 ONSC 6032, at para. 19.
Background facts and proceedings
[15] Materials before the court provide the following background facts.
[16] The plaintiff 900351 Ontario Inc. (“900”) is a private corporation, of which Ms. Pinkerton, the agent for the plaintiff, is a director, secretary, and treasurer. Andrew John Pinkerton is president and a director. The Pinkertons are also principals and directors of 917488 Ontario Inc. (“917”).
[17] 917 purchased the property, known at the time as Gordon’s Lodge and located at 1 Water Street, Gore Bay, Ontario on November 14, 2007. On July 17, 2013, 917 mortgaged the property to APEA Investment Group Inc. (“APEA”) for $1,155,000. 917 defaulted on the mortgage on April 1, 2015, and on March 3, 2016 APEA obtained default judgment against 917 for the balance owing and for possession of the property. A writ of possession was issued in favour of APEA on April 8, 2016, and 917 was required to vacate the property on June 22, 2016.
[18] By decision dated June 29, 2016 Justice R.D. Gordon refused to set aside the default judgment and writ of possession (2016 ONSC 4301). On July 21, 2016, the Ontario Court of Appeal dismissed 917’s motion to add 900 as a party to its appeal of that ruling and to stay the decision of Gordon J. 917’s appeal to the Ontario Court of Appeal was dismissed on September 19, 2016.
[19] On August 10, 2016, 917 registered a purported transfer of the property to the Pinkertons and on the same date, the Pinkertons registered purported transfer of the property to 900.
[20] On November 4, 2019, in dismissing the plaintiff’s claim against the Martian defendants, R.D. Gordon J. considered anew the plaintiff’s arguments that he had earlier dealt with on June 29, 2016 in dismissing 917’s efforts to set aside APEA’s default judgment:
a. that 900 was the lawful owner of the property;
b. that 900 had acquired the property from the Pinkertons, who had an interest in the property that took priority to APEA’s, based on a security interest they held in the property which had been registered under the Personal Property Security Act earlier in time than APEA’s mortgage (which had been registered under the Land Titles Act); and
c. that the APEA mortgage was void ab initio in any event because of its failure to comply with the Planning Act.
[21] In 2019, Gordon J. once again found the plaintiff’s arguments to be unconvincing and observed (2019 ONSC 6321, at para. 45) that “[s]igning a transfer of real property to which you have no title does nothing to establish your title.” He concluded (at para. 46) that:
It is well settled law that on a motion for summary judgment the parties must put their best foot forward to establish their case. On the evidence before me, the plaintiff has failed to establish any basis for its claim that the title of Martian Properties Inc. to [the property] is in any way unlawful or untenable. The legitimacy of that claim is fundamental to the plaintiff’s case. Its failure to raise a genuine issue requiring a trial on that issue leaves me with no choice but to grant the moving defendants’ motion for dismissal.
[22] The plaintiff’s motion for leave to appeal the decision of Gordon J. was dismissed by Divisional Court (2020 ONSC 6303). A motion to appeal that decision to the Ontario Court of Appeal was dismissed November 23, 2020.
[23] On May 29, 2017, APEA and Martian entered into an agreement of purchase and sale for the property, pursuant to APEA’s power of sale proceedings. Lawyer S. Moutsatsos had been retained by Cliff Barnes, a principal of Martian, to represent Martian in that purchase. The transfer of the property to Martian was completed June 29, 2017.
[24] The plaintiff issued its statement of claim on June 17, 2019. The statement of claim was served on OPP constable Stephen Redmond the same day, which, on the evidence before the court, was also the first notice in writing of the claim that was provided to any member of the OPP or any governmental actor.
[25] On July 9, 2019, counsel to the OPP defendants wrote to Ms. Pinkerton, agent for the plaintiff, advising of deficiencies in the claim, including the failure to provide notice. Counsel for the OPP defendants requested a discontinuance of the claim as against the OPP. This request was repeated in correspondence to Ms. Pinkerton on August 15, 2019.
Motion by the Weaver Simmons defendants
[26] The WS defendants have moved for an order striking or dismissing the action against them, pursuant to r. 21.01 or r. 20 of the Rules of Civil Procedure.
Averments in the statement of claim involving these defendants
[27] This action was commenced June 17, 2019. In the statement of claim, the plaintiff claims that 900 is the lawful owner of the property. For the purpose of r. 21.01(1)(b), this claim is presumed to be proven.
[28] In paras. 2 to 6 of the statement of claim the plaintiff identifies the plaintiff and defendants in the action. Nowhere in those paragraphs does it specifically identify the WS defendants. Nowhere in the entire claim does it explain who Mr. Moutsatsos is or what kind of entity Weaver Simmons is. Paragraph 3 claims that the “defendants” are the officers, directors, shareholders and directing minds behind the defendant Martian Properties and the Ontario Provincial Police, but it does not identify who of the many individual defendants set out in the style of cause as defendants it intends to include in this bald and unhelpful assertion.
[29] The statement of claim refers without distinction to the conduct of unidentified and undifferentiated “defendants” in paras. 11, 14, 16, 18, 19, 22, and 23.
[30] The only specific particularized mention of the WS defendants arises in para. 20(c) of the statement of claim:
- The Plaintiff pleads that the fraud was successful in whole or in part, due to the negligence of the Defendants Robertson, Coultis, Lavoie, Ford, said negligence including, but not limited to:
(c) they allowed themselves to be duped by Doug Smith, Gord Smith and Cliff Barnes and Steve Moutsatsos and Weaver Simmons as part of a conspiracy when they knew or ought to have known that they were outside of their jurisdiction and area of expertise and should have simply not got involved with said lands.
Analysis
[31] The powers granted by r. 21.01(1)(b) are sufficient to determine this matter. While I have been invited by the WS defendants to range more widely and “finally put to rest” Ms. Pinkerton’s arguments arising from the Planning Act by way of summary judgment, I decline to do so. I agree with and adopt Gordon J.’s findings in his ruling of November 4, 2019 (2019 ONSC 6321) concerning the subordination of any interest in the property by 900 to that of APEA, and the validity and lawfulness of the title of Martian Properties Inc. to the property. The Planning Act argument was thoroughly canvassed in that decision, and I see no utility in pursuing that issue any further.
[32] It is plain and obvious that the plaintiff’s claims against the WS defendants have no reasonable prospect of success. The statement of claim discloses no reasonable cause of action against them, either in negligence or any intentional tort.
[33] So vague is the statement of claim in setting out the acts of the WS defendants that are complained of, that it cannot clearly be said that the claim involves negligence, fraud, conspiracy, or a combination of torts. Nothing at all is presented in the statement of claim concerning negligence by WS defendants or any of them in particular, though the generalized claims made against “the defendants” could be argued to encompass the WS defendants also.
[34] Mr. Moutsatsos and “Weaver Simmons” are specifically named in para. 20(c) and only there in the body of the claim. There is no indication of what kind of legal person “Weaver Simmons” is. There is no indication of who Mr. Moutsatsos is. There is no indication of Mr. Moutsatsos’ relationship to Weaver Simmons, or by what theory Weaver Simmons is liable for anything.
[35] Moreover, the pleadings in this case do not begin to adequately plead any form of conspiracy or fraud or negligence of any sort by the WS defendants. There is only a conclusory statement that the WS defendants were somehow improperly aligned with principals of Martian, and no particularity or evidence offered that a conspiracy of any kind was formed, or details given concerning its formation. A mere assertion of conspiracy to defraud, and a claim of alignment, without more, is an insufficient basis to ground claims of conspiracy and fraud.
[36] There is no specific averment even of when or how or by what means or by whom in particular the WS defendants “duped” the defendant OPP officers, other than perhaps that it was done by Mr. Moutsatsos, if he was in some position that could be said to bind “Weaver Simmons”, which is nowhere stated in the statement of claim.
[37] The pleading as against the WS defendants is so devoid of content as to violate the principles of r. 21.01(1)(b) in every respect.
Motion by the OPP defendants
[38] The OPP defendants have moved to strike the statement of claim and dismiss the action as against them.
Pleading police negligence
[39] To adequately plead negligence, a plaintiff must plead: 1) that a duty of care was owed by the defendants to the plaintiff; 2) that there was a breach of that duty of care by the defendants; 3) that the breach caused harm to the plaintiff; and 4) that the damage caused to the plaintiff is compensable at law: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 3.
[40] Police officers owe a generalized duty of care to the public to investigate criminal acts, but that duty is not owed to any specific legal person. Police also owe a duty of care to suspects being investigated: Dafesh v. Amormino, 2017 ONSC 1748, at para. 60; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41.
[41] Police work involves significant discretion, and the proper exercise of it is measured on a reasonableness scale. Perfection is not required, and any given decision may involve the selection of a reasonable course of action from a range of reasonable actions. Police officers, like other professionals, are permitted to make errors in judgment in the course of their work. Such errors can cause unfortunate results without breaching the standard of care: Hill, at para. 73.
Allegations in the claim
[42] In its statement of claim, the plaintiff claims the following with respect to the OPP defendants:
a. On February 22, 2017, the OPP participated in a conspiracy to divest the plaintiff of its interest in the property. The OPP officers provided the principals of the plaintiff with a trespass notice and told them not to return to the OPP detachment in Gore Bay, or they would be arrested. The same day, the OPP officers targeted, profiled, and threatened the owners of the plaintiff by stating that should they return to the property they would be arrested.
b. Still on the same day, the OPP officers “acted as lawyers” by indicating that certain legal documents were stale dated, and that a lawyer for the OPP was not necessary to interpret court orders, land transfers and property identification numbers. They did not obtain independent legal advice as to the legal effect of correctness of court orders, land transfers, and property identification numbers.
c. “Rogue” OPP officers did not state or reveal that they were aware of court orders, land transfers and property identification numbers indicating that the plaintiff was on title on June 28, 2017.
d. Martian made false representations to the OPP officers, causing them to agree to arrest the actual owner of the property, should the owner re-attend the property. The “owner” in the claim undoubtedly includes 900 and its officers the Pinkertons.
e. From February 22, 2017 to May 30, 2018, the officers of the plaintiff were under duress and were threatened with criminal charges, financial ruin, and the loss of access to the property, should they refuse to obey the OPP officers.
f. The other defendants knew that the opinion of the OPP officers was incorrect, and that the plaintiff was the actual owner of the property. Nonetheless, they enlisted the aid of the OPP to carry out their campaign of fraud and intimidation.
g. The OPP officers were negligent by giving an incorrect legal opinion about the ownership of the property, despite having no knowledge of or jurisdiction over land property ownership. They allowed themselves to be duped by other defendants as part of a conspiracy and did not seek the advice of their superiors or other governmental agencies in terms of what part, if any, the OPP should have taken in the dispute.
h. As the OPP officer defendants were all employed by the Ministry of Community Safety and Correctional Services and were all acting in the course of their employment when they committed the tortious acts in the claim, the Ontario Provincial Police are liable for their misconduct.
Analysis
[43] It is plain and obvious that the plaintiff’s claims against the OPP defendants have no reasonable prospect of success.
[44] With respect to negligence, the plaintiff has failed to show that it or its officers were suspects being investigated, so as to even be owed a duty of care by the defendant OPP officers. The claim also does not show that any such investigation, if there was one, failed to meet any requisite standard of care. The plaintiff has not set out facts to show any harm caused by the defendant OPP officers to the plaintiff or the Pinkertons, or that the harm was compensable at law. Conclusory allegations of “rogue” OPP officers, or of OPP officers taking part in a campaign of fraud and intimidation are serious, but unsupported and of no force.
[45] As to conspiracy and fraud, the claim has failed to plead any of the requisite elements with sufficient particularity. No evidence supports the allegations, and no particulars support any claim of intent or malice on the part of the defendant OPP officers. Those states of mind are essential for the intentional torts that are alleged. Bald allegations and assertions in the claim that the defendant OPP officers wanted to hurt the plaintiff can be given no weight. The claim fails to plead facts and circumstances that, presumed to be proven, would permit a court to find that the any of the OPP defendants acted with intent to harm the plaintiff.
[46] February 22, 2017 appears to have been a watershed date for 900 and its officers. Many claims of intentional and malicious police misconduct are made, but none is particularized in any fashion except by reference to that date. Documents are mentioned, but no particulars are provided. As in the case of defendant “Weaver Simmons”, the OPP officers are treated as joint actors, and no particularity of identity of any individual OPP officer or of his or her conduct is offered.
[47] But there is a more fundamental reason to strike the claim against the OPP defendants: the failure to give proper notice in a proceeding against the Crown. As the OPP defendants point out, the proper party to be named as defendant and vicariously liable for torts committed by members of the OPP is Her Majesty the Queen in Right of Ontario, that is, the Crown: Proceedings Against the Crown Act, R.S.O. 1990, c. P27, ss. 5(1)(a) and 9 (the “PACA”); Police Services Act, R.S.O. 1990, c. P15, s. 50(1); Chmielewski v. Niagara (Regional Municipality) Police Services Board, 2004 4070 (ON SC), [2004] O.J. No. 3073 (S.C.J.), at para. 13.
[48] Section 7(1) of the PACA requires a claimant to provide the Crown with 60 days’ written notice of a claim, including sufficient particulars for the Crown to investigate the incident at issue, before launching an action against the Crown: Holstock v. Ontario (Ministry of Community Safety and Correction Services), 2015 ONSC 4516, at paras. 17-22. This precondition to a civil suit against the Crown is mandatory and inflexible, and a plaintiff has the burden of proving compliance: Conners v. Ontario (Minister of Community Safety and Correctional Services), 2016 ONSC 7238, at paras. 29 and 35; Holstock, at para. 19; Daoust-Crochetiere v. Ontario (Minister of Natural Resources), 2014 ONSC 1340, at para. 6, aff’d 2014 ONCA 776, at paras. 2 and 7. Failure to comply with this notice requirement renders the claim a nullity: Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346 (C.A.), at paras. 7-8.
[49] Ms. Pinkerton counters that on December 7, 2015, Cst. Bonnie Coultis, an OPP officer and named defendant in this action, was told, orally, that the police would be sued for their misconduct. Unfortunately for the plaintiff’s argument, this “notice” was given orally, and long precedes the dates of allegations in the statement of claim. In December 2015, there can have been no relevant particularization of any future misconduct by any OPP defendant. Whatever was said or done on December 7, 2015 cannot serve as notice of the allegations in the statement of claim, and the claim against the OPP defendants is a nullity.
Should leave be granted to amend?
[50] Ms. Pinkerton requests leave to amend the statement of claim to add additional particulars and evidence to make it compliant with the Rules. She submits that as a litigant without legal training, and unfamiliar with the Rules, she must be accorded some latitude to amend her statement of claim, as it is simply a matter of pleading evidence that is available to her.
[51] The law is clear that only in the clearest of cases should leave to amend be denied: Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191, at paras. 93-94.
[52] This is one of those clearest of cases, for many reasons.
[53] Although r. 21.01(1)(b) generally treats facts and allegations in the statement of claim as proven, in making this determination of whether leave to amend should be granted, matters extraneous but relevant to the statement of claim should be considered and set against allegations in the statement of claim. Those matters overwhelmingly make clear that permitting amendment would accomplish nothing, and that the claims would still have no prospect of success.
[54] To begin, the claim as against the OPP defendants is a nullity by virtue of s. 7(1) of PACA, and no amendment can cure the failure to provide the required 60 days’ notice at this point. The December 7, 2015 notice that the plaintiff would plead would be insufficient, as given orally and long prior to the events that make up the allegations in the claim.
[55] The statement of claim is almost completely devoid of the particulars necessary to ground the claims for conspiracy and fraud, and with respect to negligence there is no indication that either the OPP officers or the WS defendants owed the plaintiff a duty of care that was breached.
[56] Presuming that any amendment adequately sets out that “Weaver Simmons” is a law firm, and that Mr. Moutsatsos a lawyer, as other evidence on these motions establishes, what then?
[57] Generally, a lawyer owes no duty to an opposing party, whether in the context of litigation or in a commercial transaction, in the absence of a special relationship of reasonable reliance by an opposing party on an undertaking or a representation by that lawyer: 368230 Ontario Limited, at paras. 26-34; Barbulov v. Huston, 2010 ONSC 3088, at paras. 16-20. A solicitor for the purchaser of property in a power of sale proceeding owes no duty of care to the prior defaulting property owners, especially once vacant possession has been ordered: Buchanan v. Gamo, 2011 ONSC 2977, at paras. 11-15.
[58] Does it make a difference that the plaintiff was unrepresented by counsel? The same legal rules apply. There is no indication in the statement of claim that the WS defendants had any contact with the plaintiff or its officers or directors that could have generated a special relationship of reliance by the plaintiff upon the WS defendants. In the absence of any such claim, the WS defendants cannot be shown to have owed any duty to the plaintiff, particularly in circumstances where the purchase of the property in which the WS defendants played a role took place after a writ of possession of the property was ordered and upheld on appeal.
[59] Moreover, also fatal to the claims against the WS defendants or the OPP defendants is the absence of any showing of intention by them to cause harm to 900 or any showing of harm caused by them to 900. By August 2016, when 917 purported to transfer the property to the Pinkertons and the Pinkertons to 900, the property was no longer 917’s to transfer. APEA’s right to the property was established in April 2016 and confirmed in June. In July 2016, the Ontario Court of Appeal refused 917’s bid to have 900 added to its appeal and to stay the writ of possession. 917’s appeal failed. 900, the plaintiff in this proceeding, cannot be shown to have suffered any harm from the loss of a property that did not belong to it, and no dealings by the WS defendants, the OPP defendants, or any of them, were directed against 900. These now indisputable facts cannot be ignored in assessing the plaintiff’s request for leave to amend.
[60] Likewise, the decision of this court relating to this very statement of claim, untouched on appeal, that Martian’s title to the property is in no way unlawful or untenable – which finding I have adopted as my own – and dismissing the claims of conspiracy and fraud levelled against Martian, necessarily insulates the WS defendants and the OPP defendants from claims of participating in an illegal and fraudulent conspiracy with Martian to divest the plaintiff of its ownership of the property, for there can have been no unlawful conspiracy. The plaintiff’s assertions have been weighed in the balance and found wanting.
[61] If there was no conspiracy or fraud, then Mr. Moutsatsos and Weaver Simmons did nothing other than assist Martian in properly purchasing the property and registering it. The property was lawfully sold by APEA in power of sale proceedings and pursuant to a lawful writ of possession. The OPP and OPP officers were not party to any conspiracy or negligently duped into assisting any conspirators, as there cannot be shown to have been any conspiracy or conspirators. The impugned OPP conduct – mostly that of refusing to recognize the plaintiff’s claims to ownership of the property and of warning off the plaintiff and its officers as trespassers from a property which it had been told to vacate – appears, in fact, justified.
[62] The statement of claim fails in any way to properly plead the torts it alleges against the WS defendants and the OPP defendants. The plaintiff has loaded up the statement of claim with unsupported allegations and sensational and bald assertions, without sufficient particularity or showings of evidence to support such serious claims. Amendment will accomplish nothing, given findings and evidence that compromise the ability of the allegations in the statement of claim to be substantiated, even if properly pleaded.
[63] The plaintiff’s request for leave to amend its pleadings is denied.
Conclusion
[64] Accordingly, for the above reasons, the claims brought by the plaintiff against defendants Stavros Moutsatsos aka Steve Moutsatsos, Weaver Simmons, The Ontario Provincial Police, Joel Lavoie aka Joe Lavoie, Bonnie Coultis, John Robertson, Marie Ford, are struck pursuant to r. 21.01(1)(b), without leave to amend.
[65] In the event that the parties are unable to agree on costs, the defendants will serve on the plaintiff no more than five double-spaced pages of submissions on costs within 20 days, and then file them with the court. The plaintiff will have a further 20 days to serve and file no more than six double-spaced pages of submissions on costs.
The Honourable Mr. Justice A.D. Kurke
Released: January 10, 2022