COURT FILE NO.: CV-20-00003736
DATE: 20220804
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Francesco Villi, Plaintiff
AND:
Rita Camilleri, Dino Colalillo, Naveed Dada, Russell Manock, John Di Nino, and Patricia De Sario, Defendants
BEFORE: Justice J. Di Luca
COUNSEL: Francesco Villi, on his own behalf
Tim Gillibrand, for the Defendants
HEARD: July 27, 2022
ENDORSEMENT
[1] The defendants bring a motion, pursuant to Rule 21.01(1)(b) and 21.01(3) of the Rules of Civil Procedure, to strike out the statement of claim on the basis that it discloses no reasonable cause of action and/or is frivolous, vexatious or an abuse of process.
The Claim and Background to the Claim
[2] Mr. Villi is a resident in a condominium administered by York Region Standard Condominium Corporation No. 1139 (“the Corporation”). At the time the claim was issued on December 15, 2020, the defendants were directors and officers of the Corporation, though this fact cannot be discerned from the statement of claim.
[3] The claim seeks, inter alia, payment of $2,000,000 from all defendants jointly, damages in the amount of $2,000,000, aggravated damages of $100,000 from each defendant, and punitive damages of $2,000,000. While the Corporation is not a party to the action, the plaintiff seeks an order compelling the Corporation to comply with a list of repairs directed by the plaintiff.
[4] The claim alleges that the defendants have committed “Acts of Crime and Criminality” from 2010 onwards. It also alleges that the defendants have, for their own personal gain, reasons and purposes, “negligently purposely” caused him harm, pain, suffering, stress, damage to physical and mental health and his financial well being.
[5] The statement of claim also states that Mr. Villi has reasonable and probable grounds to believe that each of the defendants has committed criminal offences, including perjury, extortion, fraud, criminal harassment, criminal intimidation, defamatory libel and slander. Each alleged criminal offence is also pleaded as an offence of accessoryship and conspiracy. These various criminal allegations are pleaded using the standard form language normally used for criminal charges in a sworn information.
[6] Lastly, the claim seeks damages of $250,000 from each defendant for “abusively abusing” their power and “deliberately causing harm, stress physically, mentally, financially, confusion inability to rest and sleep for over 5 years, torment, torture that cannot be explain [sic] in words.”
[7] By way of background, in November of 2018, the Corporation commenced an application against Mr. Villi pursuant to the Condominium Act, 1998, seeking to restrain Mr. Villi’s allegedly threatening, abusive, intimidating and harassing behaviour towards the Corporation’s board of directors, property management, workers and residents of the condominium.
[8] In June of 2019, Mr. Villi commenced an application against the Corporation relating to issues stemming from an electrical room beneath his unit and also relating to alleged oppressive conduct on the part of the Corporation.
[9] By Orders of Perell J. dated October 24, 2019, the applications were converted into actions and consolidated into one action to be heard in Newmarket. Perell J. also ordered Mr. Villi to refrain from recording board members, management, residents, or employees of the Corporation, to refrain from making social media posts about the proceedings and to only communicate with the Corporation in writing, except in an emergency.
[10] On September 13, 2021, Vallee J. found Mr. Villi in contempt of Perell J.’s Orders for communicating with staff employed by the Corporation.
Legal Test and Related Principles
[11] Rule 21.01(1)(b) of the Rules allows a judge to strike a plaintiff’s pleading on the ground that it discloses no reasonable cause of action. A pleading should only be struck where it is “plain and obvious” that it discloses no reasonable cause of action, see Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959. In other words, 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, at para. 19 and Asghar v. Toronto Police Services Board, 2019 ONCA 479at para. 8.
[12] This test is satisfied where a party fails to plead necessary elements of a recognized cause of action or where the allegations are legally insufficient, see Hillier and Maverick Paintball Inc. v. Hutchens et al., 2014 ONSC 1579 at para. 39. The threshold for sustaining a pleading is not high. In making its determination, the court gives the statement of claim a generous reading allowing for inadequacies due to drafting the deficiencies. The court also assumes that the facts pleaded are true unless they are patently ridiculous or incapable of proof, see Lysko v. Braley (2006), 2006 11846 (ON CA), 79 O.R. (3d) 721 at para. 3 (Ont.C.A.).
[13] Under Rule 21.03(d), a defendant may move to have an action stayed or dismissed where the action is frivolous or vexatious, or is otherwise an abuse of the court’s process. The test under such a motion is similar to the test under Rule 21.01(b). A court will only dismiss a claim on the basis that it is frivolous or vexatious, or an abuse of the court’s process in the clearest of cases and where it is plain and obvious that the claim cannot succeed, see Baradaran v. Alexanian, 2016 ONCA 533 at para. 15, and Miguna v. Toronto Police Services Board, 2008 ONCA 799 at paras. 16 and 21.
[14] In terms of the rules of pleadings, I am guided by the helpful comments of Perell J. in Stedfasts Inc. v. Dynacare Laboratories, 2020 ONSC 8008 at paras. 29-36.
[15] No evidence is admissible on a motion brought under Rule 21.01(1)(b), though evidence is admissible in relation to a motion under Rule 21.01(3)(d), see Miguna at paras. 15-16.
[16] In many cases, when a pleading is struck, leave to amend the pleading is also granted. The principles that apply in determining whether leave to amend should be granted are set out in Spar Roofing & Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, 348 O.A.C. 330, at paras. 35-45. Leave to amend should, accordingly, be denied only in the clearest of cases: South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6; and Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26.
Law and Analysis
[17] In the course of his submissions, Mr. Villi spoke at length about the nature of the claim he seeks to advance. As I understand it, Mr. Villi believes that the electrical room which sits beneath his unit is improperly constructed, resulting in the emission of electromagnetic waves which have caused him significant pain and suffering over the years. Mr. Villi believes that the board members of the Corporation have actively engaged in efforts to intentionally harm him, likely at the behest of the powerful developer who built the condominium. Mr. Villi believes that all the individuals involved have not only conspired to harm him but have also conspired to ensure that the truth of the matter never surfaces.
[18] In examining the statement of claim, I note that it is drafted by a lay person and as such, it is not surprising that it does not set out the various claims with the degree of precision expected from counsel. The statement of claim reveals no basis connecting the defendants to the alleged acts. It simply alleges a number of criminal offences against a number of individuals. Indeed, the bulk of the statement of claim is essentially a criminal information.[^1] In other words, it is simply a list of “charges” against the defendants. As well, to the extent that some of the “charges” might also give rise to parallel civil causes of action, no material facts are pleaded. Lastly, even where the claim appears to advance civil claims, it again fails to relate any material facts in support of the claims. This is particularly problematic as the claims seek aggravated and punitive damages for, inter alia, fraudulent and malicious conduct.
[19] Ultimately, I conclude that the statement of claim is, on its face, fatally flawed. It is plain and obvious that it cannot succeed and therefore must be struck. I would also find that the claim is frivolous and/or vexatious as there is a complete absence of material facts pleaded in support of any of the claims raised. In view of these findings, I need not consider whether the claim is also an abuse of the court’s process, though I note that the core complaint is already before the courts in the consolidated action that is now in Newmarket by Order of Perell J.
[20] I consider next whether leave to amend the claim should be granted. Having listened to Mr. Villi’s submissions, I conclude that this is not an instance where there is any prospect that, if given the opportunity, Mr. Villi will amend the claim so as to make it even remotely viable. As such, I decline to grant leave to amend.
[21] The motion is allowed. The statement of claim is struck without leave to amend. Counsel is invited to prepare a draft order in accordance with this endorsement. Mr. Villi’s approval of the form and content of the order is dispensed with.
[22] In terms of costs, the defendants seek partial indemnity costs of approximately $10,900 all- inclusive based on full indemnity costs of $17,973.45. Mr. Villi is opposed to any order of costs.
[23] Having considered the costs outline in concert with the principles that guide the determination of costs, particularly reasonableness and proportionality, I find that the costs claimed are excessive when viewed in context with the nature of the issues raised and the relative simplicity of the motion and the efforts taken to date in response to the action. Costs are fixed at $2,500 all-inclusive, payable by Mr. Villi within 30 days.
Justice J. Di Luca
Released: August 4, 2022
[^1]: On this issue, I note that Mr. Villi indicates that he has attended before a Justice of the Peace in order to lay a private information and seek issuance of process against the named individuals. While Mr. Villi asserts that this process is unfolding in his favour, it is unclear whether that is actually the case.