Court File and Parties

OSHAWA COURT FILE NO.: CV-21-1752

DATE: 20220916

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MAEGAN ANNA MAYER, Plaintiff/Respondent

AND:

DIONISIOS ATHANASOPOULOS and JENNIFER COOK-ATHANASOPOULOS, Defendants/Moving Parties

BEFORE: The Honourable J. Dawe

COUNSEL: Fatma Uyuklu, Counsel, for the Plaintiff/Respondent

Sean Lakhan, Counsel, for the Defendants/Moving Parties

HEARD: September 1, 2022

ENDORSEMENT

[1] The plaintiff Maegan Mayer and the defendants, Dionisios Athanasopoulos and Jennifer Cooke (whose name is misspelled in the style of cause), are former next-door neighbours. They evidently did not get along. Ms. Mayer lived next door to the defendants for 2½ years. She eventually sold her home and moved away on November 1, 2019.

[2] Nearly two years later, on October 29, 2021, Ms. Mayer sued the defendants, seeking damages for the torts of trespass, intentional infliction of mental distress and nuisance. She has subsequently amended her pleadings to add a claim for “harassment”. Her Amended Statement of Claim also reduces the damages she claims, from over $150,000 to $35,000. Ms. Mayer apparently made this latter change with view to having her action transferred to Small Claims Court.

[3] The motion now before me is brought by the defendants, who seek to have Ms. Mayer’s Amended Statement of Claim struck without leave to amend, on either of two alternate bases.

[4] First, they seek an order under rule 21.01(1)(b) of the Rules of Civil Procedure striking Ms. Mayer’s pleadings on the ground that they “disclose no reasonable cause of action”. Second, in the alternative, they seek orders under rule 21.01(3)(d) or rule 25.11 dismissing her action or striking her pleadings as frivolous or vexatious or an abuse of process.

1) The governing legal principles

[5] Both lines of attack on Ms. Mayer’s pleadings require me to consider whether it is “plain and obvious” that her claims against the defendants cannot succeed.

[6] Under rule 21.01(1)(b) I must restrict my analysis to Ms. Mayer’s Amended Statement of Claim itself, since no extrinsic evidence is admissible: see rule 21.01(2)(b).

[7] As Brown J.A. explained in Brozmanova v. Tarshis, 2018 ONCA 523 at paras. 25-26:

Rule 21.01(1)(b) focuses on the legal sufficiency of a plaintiff’s pleading. As described by Perell & Morden [The Law of Civil Procedure in Ontario, 3d ed. (Toronto: LexisNexis Canada, 2017)], at p. 614:

The focus of the motion is the substantive legal adequacy of the claim or defence. The essence of the motion is that the defendant’s wrongdoing as described in the statement of claim is not a violation of the plaintiff’s legal rights, with the result that the plaintiff is not entitled to a remedy even if he or she were able to prove all the material facts set out in the statement of claim. [Footnotes omitted.]

Put another way, rule 21.01(1)(b) enables a defendant, before pleading over, to move to strike out a claim on the basis that it is plain and obvious that the plaintiff is not advancing a legally sufficient claim, even if all the facts she pleads can be proved at trial.

[8] The analysis under rule 21.01(1)(b) is not concerned with whether the plaintiff is likely to be able to prove the material facts he or she alleges, nor with whether he or she will likely be able to establish an entitlement to the damages being claimed.

[9] The analysis under rules 21.01(3)(d) and 25.11 is somewhat different, in part because extrinsic evidence is admissible on a motion brought under these provisions. However, the focus is still on whether it is “plain and obvious” that the action must necessarily fail because the plaintiff’s claim is fundamentally defective. As the Ontario Court of Appeal explained in Baradaran v. Alexanian, 2016 ONCA 533 at paras. 15-16:

The court will only strike out a claim on the basis that it is frivolous or vexatious or an abuse of the process of the court, in the clearest of cases and where it is plain and obvious that the case cannot succeed. One must guard against converting such motions into summary judgment motions: Miguna v. Toronto Police Services Board, 2008 ONCA 799, 243 O.A.C. 62, at paras. 16 and 21. In that case, Blair J.A. addressed the very point made by the respondents – that the motion judge was entitled to evaluate the merits of the appellants’ claims because affidavit evidence was admissible on the motion. He stated, at para. 34:

Evidence is admissible in relation to a rule 25.11 motion or in relation to the “frivolous and vexatious” aspect of a motion under rule 21.01(3)(d). It does not follow, however, that such a motion may be turned into an evidentiary disposition. The test remains: is it plain and obvious that the claim cannot succeed? The test is not whether it is unlikely the claim will succeed. Nor is the process one of weighing and assessing the evidence against the allegations as if the motion were a trial or a request for summary judgment.

This means that, while evidence is admissible in a motion under rules 25.11 and 21.01(3)(d), the evidence must be relevant to, and considered for the purposes of, the motion that is before the court. In other words, the ability to file evidence in a pleadings motion does not change the character of the motion, which is not to determine the merits, but to decide whether the pleading should be struck, as having no chance of success because it is frivolous and vexatious or an abuse of process.

[10] When pleadings are struck under either rules 21.01(1)(b) or 25.11, this may be done either with or without leave to amend. However, “leave to amend should be denied only in the clearest of cases”, particularly “where the deficiencies in the pleading may be cured by an appropriate amendment”: South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456 at para. 6.

2) Rule 21.01(1)(b): is it plain and obvious that Ms. Mayer’s tort claims cannot succeed?

[11] Ms. Mayer’s Amended Statement of Claim pleads four different torts: (i) trespass to property; (ii) nuisance; (iii) intentional infliction of mental suffering; and (iv) harassment. I will address each in turn.

a) Trespass to property

[12] Ms. Mayer’s pleadings allege that the defendants repeatedly entered onto her property without her permission. Specifically, she asserts that:

• From May to July 2017, a “weeping tile” drainage pipe extended from the defendants’ house onto her property. Ms. Mayer eventually removed the tile and replaced it with a “no trespassing” sign, pointed towards the defendants’ house. She later noticed that the “no trespassing” sign had been removed, and put a new sign on her back deck, also facing the defendants’ house. Ms. Mayer states that she also verbally told the defendants to stay off her property;

• The defendants would reach over the fence into Ms. Mayer’s yard, “pull the foliage from [her] property” and “throw it back onto [her] property”;

• At some point Ms. Mayer and Mr. Athanasopoulos jointly staked out their property line with string. Afterwards, according to Ms. Mayer’s pleadings, Ms. Cooke would “repeatedly trespass by moving the property line string” to get to the defendants’ property at the side of their house, rather than going through a gate a short distance further north. When Ms. Cooke did this, she would leave the string on Ms. Mayer’s property.

[13] In Grace v. Fort Erie, 2003 48456 (Ont. Sup. Ct), Crane J. provided the following summary of the elements of the tort of trespass (at para. 86):

The elements of trespass have been described as follows:

• Any direct and physical intrusion onto land that is in the possession of the plaintiff (indirect or consequential interference does not constitute trespass).

• The defendant’s act need not be intentional, but it must be voluntary.

• Trespass is actionable without proof of damage.

• While some form of physical entry onto or contact with the plaintiff’s land is essential to constitute a trespass, the act may involve placing or propelling an object, or discharging some substance onto the plaintiff’s land can constitute trespass.

[14] For the purposes of the rule 21.01(1)(b) analysis, the factual assertions in Ms. Mayer’s pleadings must be assumed to be true. Considered in this light, I do not think it is plain and obvious that Ms. Mayer’s trespass claim is doomed to fail.

[15] According to Ms. Mayer’s pleadings, the two defendants physically intruded onto her land at different times in different ways, either by entering onto her property themselves or by putting objects on it. It would be open to a trier of fact to draw the inference that at least some of their actions were volitional.

[16] Even though the trespasses Ms. Mayer alleges all strike me as extremely minor and unlikely to have caused her any significant injury, this has no bearing on the rule 21.01(1)(b) analysis, which is solely concerned with the viability of Ms. Mayer’s legal claim. She does not have to prove that she suffered any damages to have a viable cause of action against the defendants for trespass.

[17] For the defendants, Mr. Lakhan notes that since Ms. Mayer commenced her action only a few days short of the second anniversary of the date that she sold her house, she may be statute-barred by the Limitations Act, 2002, S.O. c. 24, Sch. B., from pursuing at least some of her trespass claims. However, Ms. Uyuklu correctly observes that limitations periods were suspended in Ontario for 26 weeks on account of the COVID-19 pandemic between March 16, 2020 and September 13, 2020, inclusive (see O. Reg. 73/20: Limitations Period, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 S.O. 2020, c. 17).

[18] I agree with Mr. Lakhan that it is plain and obvious that Ms. Mayer will be statute-barred from pursuing a trespass claim based on her allegation that defendants’ weeping tile extended onto her property, since her pleadings disclose that she became aware of the offending tile in May 2017 and removed it from her property in July 2017. By the time she commenced her action in October 2021 it was well past “the second anniversary of the day on which the claim was discovered”: Limitations Act, 2002, s. 4. The same conclusion holds in relation to her claim that one of the defendants must have entered onto her property in or around July 2017 to remove the “no trespassing” sign that she had posted, pointing at their house, after she removed the weeping tile.

[19] However, Ms. Mayer may be able to prove that at least some of the other trespasses she alleges occurred during the two-year Limitations Act, 2002 window, as it was extended in response to the COVID-19 pandemic. It is not plain and obvious that Ms. Mayer’s entire cause of action in trespass is statute-barred.

[20] I see no merit in the other arguments Mr. Lakhan made in his factum in relation to the trespass claim, none of which he pursued in oral argument.

[21] First, he contends that the pleaded facts do not establish that the defendants committed the alleged trespasses “intentionally or negligently”. If the defendants really did do the things Ms. Mayer alleges, I think a trier of fact could reasonably infer that their conduct was volitional.

[22] Indeed, on Ms. Mayer’s version of events the defendants plainly would have known both that they were entering onto her property, and that they were doing so without her permission. However, Ms. Mayer is not required to prove either of these things to have a viable cause of action in trespass.

[23] Second, Mr. Lakhan argues that the pleaded facts do not show that Ms. Mayer suffered any “actual loss” as a result of the alleged trespasses by the defendants. While this is true, it is also beside the point, since as Mr. Lakhan acknowledges elsewhere in his factum, “nominal or punitive damages for this tort may be awarded without proof of loss, since this tort is actionable per se”.

[24] Third, Mr. Lakhan argues that Ms. Mayer’s pleaded claim that the defendants “destroy[ed] [her] personal real property”, by pulling foliage down from her side of the property and throwing it into her yard, is deficient because it does not state “how the leaves injured the Plaintiff’s real or personal property”, or identity “what real or personal property was in fact injured”. As I read Ms. Mayer’s pleadings, the “property” she alleges was damaged was the plants from which the foliage was removed, not the ground onto which the leaves were thrown.

[25] In any event, Ms. Mayer’s claim that the defendants reached over the property line to take the foliage and then threw the foliage back onto her property, if true, amounts to an allegation of trespass in and of itself, even if none of her property was damaged. As noted above, “trespass is actionable without proof of damage”.

[26] In summary, I am unable to conclude that the onerous test for striking a claim under rule 21.01(1)(b) is met in relation to the entirety of Ms. Mayer’s trespass to property claim.

[27] I would also not strike the paragraph of Ms. Mayer’s pleadings, para. 5(a), that sets out her allegations from the spring and summer of 2017 regarding the weeping tile that extended onto her property, and the defendants’ alleged entry to remove the “no trespassing” sign she posted in its place.

[28] I agree that Ms. Mayer is now statute-barred from claiming any damages for these alleged trespasses. However, I think the facts she alleges in this paragraph are material to her other trespass claims, in that they would, if true, tend to rebut any claim the defendants might make that they had Ms. Mayer’s permission to enter onto her property.

b) Nuisance

[29] In St. Pierre v. Ontario, 1987 60 (SCC), [1987] 1 S.C.R. 906 at pp. 914-15, McIntyre J. adopted the following summary of the elements of the tort of private nuisance:

A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.

[30] In this case, Ms. Mayer does not allege that the defendants caused any indirect physical injury to her property. The only physical damage to property she claims having suffered is the damage to her plants, which she alleges the defendants damaged directly rather than indirectly.

[31] Rather, Ms. Mayer’s claim in nuisance appears to rest primarily on her allegation that the defendants “substantially interfer[ed]” with her “use or enjoyment” of her property by playing “loud, vulgar music directed at [her] home”.

[32] Ms. Mayer alleges that this started when she “used her Jacuzzi on winter weekends”. Since she moved away before the start of the winter of 2019, any such incidents must have occurred during the winters of either 2017-18 or 2018-19, which were the only two winters that Ms. Mayer lived next door to the defendants.

[33] Ms. Mayer did not commence her action until October 29, 2021. Even accounting for the 26 weeks in 2020 during which the limitations period was suspended, she is statute-barred from pursuing an action in nuisance against the defendants based on noise complaints dating back to the winter of 2019, or any time earlier.

[34] However, Ms. Mayer alleges further that in the “final months” before she moved away on November 1, 2019:

… this process was intensified every time [she] attempted to enjoy or work on tasks on her property outside her home. The very loud music would always cease when [she] went inside.

[35] Since the limitation period has been extended by 26 weeks on account of COVID-19, these latter claims do not appear to be barred by the Limitations Act, 2002.

[36] Mr. Lakhan argues that the facts Ms. Mayer has pleaded do not establish that her use and enjoyment of her property was interfered with to a substantial enough degree to support her action for nuisance.

[37] I agree that not every complaint about a neighbour playing loud music will give rise to a viable nuisance claim. Urban residents must put up with a certain amount of noise from their neighbours.

[38] However, for the purpose of the rule 21.01(1)(b) analysis, Ms. Mayer’s pleaded allegations must be taken at their highest. She asserts that over a period of several months the defendants blared loud music “every time” she went outside, and that the music would “always cease” when she went back inside. If this is what really happened, it could be inferred that the defendants were playing their music in a deliberate attempt to annoy Ms. Mayer.

[39] As noted above, the critical question is whether the resulting interference with Ms. Mayer’s enjoyment of her property was unreasonable “in the light of all the surrounding circumstances”. In my view, the defendants’ apparent purpose is a contextual factor a court could properly consider when assessing the “surrounding circumstances”.

[40] I am accordingly unable to conclude that it is plain and obvious that Ms. Mayer’s nuisance claim against the defendants is doomed to fail.

[41] However, I draw a different conclusion with respect to Ms. Mayer’s allegation that Mr. Athanasopoulos would use “excessive, and dangerous commercial torching equipment to burn weeds from the Defendants’ property as a form of removal”.

[42] To the extent that Ms. Mayer meant for this complaint to serve as part of the foundation for her action in nuisance, I think her pleadings fall short of the mark. She does not say that Mr. Athanasopoulos’s chosen method of weed control ever caused any damage to her land, nor does she allege that it produced smoke that interfered with her use or enjoyment of her property.

[43] In essence, Ms. Mayer’s complaint about Mr. Athanasopoulos’s “excessive and dangerous” weed control technique seems to be that she feared it would cause adverse consequences, such as starting a fire, that never materialized. I do not think that this fear on its own gives her a viable claim in nuisance.

[44] I would accordingly strike para. 5(d) of Ms. Mayer’s Amended Statement of Claim. However, I would not deny her leave to amend this paragraph, since I think its deficiencies are potentially curable. If Ms. Mayer were to plead additional facts that support the conclusion that Mr. Athanasopoulos’s weed-burning interfered with her use and enjoyment of her land in some tangible way, this might give her a viable claim in nuisance based on this allegation.

c) Intentional infliction of mental suffering

[45] Ms. Mayer also claims damages for the tort of intentional infliction of mental suffering.

[46] As the Ontario Court of Appeal explained in Prinzo v. Baycrest Centre for Geriatric Care, 2002 45005 at para. 48, a plaintiff advancing this cause of action must establish that the defendant engaged in (1) “flagrant or outrageous conduct” that was (2) “calculated to produce harm”; and that (3) “result[ed] in a visible and provable illness” suffered by the plaintiff.

[47] I should note that Ms. Mayer bases this claim on the same factual allegations that underpin her claims for the torts of trespass and nuisance.

[48] With respect to the first element of the tort of intentional infliction of mental suffering, Ms. Mayer pleads that the defendants’ “conduct as stated herein is so outrageous in character, duration and extreme in degree as to go beyond all possible bounds of decency and tolerance”. However, as Perell J. noted in Iluyomade v. Toronto Community Housing Corp., 2018 ONSC 7727 at para 95 (italics in original):

It is not enough for a plaintiff to simply submit that the pleaded conduct is extreme, flagrant and outrageous; a plaintiff is required to actually plead conduct that is extreme, flagrant and outrageous …

[49] The terms “extreme, flagrant and outrageous” are not well-defined and are at least somewhat subjective. As Juriansz J.A. observed in Piresferreira v. Ayotte, 2010 ONCA 384 at para. 70, “the ambit of what the case law considers ‘flagrant and outrageous’ is expanding as this tort evolves”.

[50] In Fitzpatrick v. Orwin, 2012 ONSC 3492 at para. 117, Stinson J. described the defendant’s actions in disconnecting the plaintiffs’ security camera and placing a dead coyote on the hood of their truck as “the epitome of flagrant and outrageous conduct”.

[51] The alleged conduct of the defendants in the case at bar is far less egregious. However, Ms. Mayer alleges that, among other things, they threw vegetation across the fence into her yard and intentionally blared loud music at her every time she went outside. If this really happened as she claimed, I cannot say that it is “plain and obvious” that a court would not find that the first element of the tort has been established.

[52] Moreover, if the defendants really did the things Ms. Mayer alleges, I think it could readily be inferred that they were at least trying to annoy her. I appreciate that there is a significant difference between conduct meant to annoy and conduct that is “calculated to produce harm”. Nevertheless, I am not satisfied that it is “plain and obvious” that Ms. Mayer’s claim will inevitably fail at the second stage of the test.

[53] As Juriansz J.A. explained in Piresferreira v. Ayotte, 2010 ONCA 384 at para. 78, the second element of the tort requires the plaintiff to prove that the defendant:

… desired to produce the kind of harm that was suffered or knew that it was substantially certain to follow. … The extent of the harm need not be anticipated, but the kind of harm must have been intended or known to be substantially certain to follow.

[54] In this case, I cannot rule out the possibility that a trier of fact who found that the defendants deliberately played loud music whenever Ms. Mayer went outside, in order to annoy her, would also conclude that they would have foreseen that this might cause Ms. Mayer some “fear, anxiety [and] emotional upset”, even if it they would not have anticipated that she would suffer these harms as severely as she now claims.

[55] The third branch of the tort requires Ms. Mayer to plead facts that would, if established, support a finding that she suffered a “visible and provable illness” that was caused by the defendants’ conduct.

[56] Her original pleadings did not address this requirement at all, but her amended pleadings do so briefly, asserting first that the defendants intended their conduct to “cause fear, anxiety [and] emotional upset” to Ms. Mayer, and then adding that she “suffered the harm intended by the Defendants”.

[57] The Supreme Court of Canada’s decision in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 SCR 263, can be read as holding that even a bare and conclusory assertion by a plaintiff that he or she has suffered some form of psychiatric harm will be sufficient. Iacobucci J. explained at para. 41 that:

[T]he causation and magnitude of psychiatric damage are matters to be determined at trial. At the pleadings stage, it is sufficient that the statement of claim alleges that the plaintiffs have suffered mental distress, anger, depression and anxiety as a consequence of the alleged misconduct.

[58] Although Odhavji Estate involved a different tort, misfeasance in public office, in Miguna v. Toronto Police Services Board, 2007 3674 at para. 304 (Ont. Sup. Ct.), Spence J. relied on Odhavji Estate to conclude in the context of an action for the intentional infliction of emotional distress that the plaintiff’s bare pleading he had suffered “emotional damage” and “emotional stress and psychological trauma” was “an adequate pleading in respect of emotional harm”.

[59] I would also note that Ms. Mayer’s failure to plead that she ever sought or obtained medical treatment for the emotional harm she now claims to have suffered as a result of the defendants’ alleged conduct does not in itself make it “plain and obvious” that her claim will fail: see, e.g., Tran v. Financial Debt Recovery Ltd., 2000 22621 (Ont. Sup. Ct.).

[60] In summary, I am unable to conclude that Ms. Mayer’s cause of action for the tort of intentional infliction of mental suffering is so manifestly deficient that her claim is doomed to fail.

d) Harassment

[61] I reach a different conclusion with respect to Ms. Mayer’s attempt to plead “harassment” as a distinct cause of action.

[62] Ms. Uyuklu correctly observes that courts should be cautious about striking novel tort claims under rule 21.01(1)(b). As Epstein J.A. noted in Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526 at para 16:

The courts have emphasized that motions to strike must be approached “generously”, erring on the side of allowing novel but arguable claims to proceed to trial, as “actions that yesterday were deemed hopeless may tomorrow succeed”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 21.

[63] However, the Ontario Court of Appeal has repeatedly declined to recognize a new common law tort of harassment in Ontario: see Merrifield v. Canada (Attorney General), 2019 ONCA 205 at paras. 19-53; Flood v. Boutette, 2021 ONCA 515 at para. 113. Although the Court in Merrifield did not “foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts”, I see no realistic prospect that the Court of Appeal will recognize a new tort of harassment in the context of disputes between neighbours. Indeed, Ms. Mayer’s harassment claim is based on the same alleged acts she relies on to ground her claims for trespass, nuisance and intentional infliction of mental suffering, suggesting that that these established torts are fully adequate in these circumstances.

[64] In my view, Ms. Mayer’s reliance on Corbett J.’s recent decision in Caplan v. Atas, 2021 ONSC 670 is misplaced. The defendant in that case had made “many thousands” of posts on the internet defaming the plaintiffs. Corbett J. concluded (at para. 169) that in this context “the tort of intentional infliction of mental suffering is simply inadequate” because it requires the plaintiff to establish that he or she suffered “a visible and provable illness”. He explained (at para. 170) that in his view:

The law would be … deficient if it did not provide an efficient remedy until the consequences of this wrongful conduct caused visible and provable illness.

[65] These considerations led Corbett J. to recognize a new tort of “internet harassment”.

[66] In my view, the policy reasons relied on by Corbett J. in Caplan v. Atas as justifying recognition of this new tort in the context of the internet cannot be extrapolated to the very different circumstances in the case at bar. The civil law already gives property-owners access to “efficient remedies” when their neighbours trespass on their land or commit private nuisances. I am not persuaded that there is any need for the courts to create a new tort to deal with these types of disputes. I am also satisfied that any attempt by Ms. Mayer to have a new tort recognized in the circumstances of this case is doomed to fail.

[67] As a remedy, I would strike the word “harassment” from para. 10 of Ms. Mayer’s amended pleadings, without leave to amend.

[68] Ms. Mayer also asserts at para. 5 of her amended Statement of Claim that she was “continuously harassed” by the defendants. However, when read in context she appears to be using these words in this paragraph as a description of the defendants’ alleged misconduct, rather than to plead a free-standing cause of action. Accordingly, I see nothing objectionable about para. 5 as pleaded.

3) Rules 21.01(3)(d) and 25.11: is Ms. Mayer’s action frivolous, vexatious or an abuse of process?

[69] Rules 21.01(3)(d) and 25.11 both permit a court to take corrective action against pleadings that are “frivolous, vexatious or otherwise an abuse of process”. The remedy under rule 21.01(3)(d), available only to defendants, is an order staying or dismissing the action. The remedy under rule 25.11, available to either party, is to strike the offending portions of the pleadings, with or without leave to amend.

[70] As I noted previously, the Ontario Court of Appeal has cautioned judges not to treat motions under these rules as if they were summary judgment motions. To reiterate what the Court said in Baradaran, supra, at para. 16, the purpose of a motion under rules 21.01(3)(d) or rule 25.11 is:

… not to determine the merits, but to decide whether the pleading should be struck, as having no chance of success because it is frivolous and vexatious or an abuse of process.

[71] In Currie v. Halton (Region) Police Services Board, 2003 7815 at para. 14 (Ont. C.A.), Armstrong J.A. adopted the Black’s Law Dictionary definition of “frivolous” as “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”.

[72] Armstrong J.A. also adopted the Court’s discussion of the meaning of the term “vexatious” in Foy v. Foy (No. 2), 1979 1631, 26 O.R. (2d) 220 at p. 226 (C.A.), where Howland C.J.O. explained:

The word “vexatious” has not been clearly defined. … In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground. As a result the proceedings were found to constitute an abuse of the process of the Court. An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction: Stevenson v. Garnett, [1898] 1 Q.B. 677 at pp. 680-1; Re Langton, [1966] 3 All. E.R. 576.

[73] If a legal claim is sufficiently well-crafted to survive a challenge under rule 21.01(1)(b), there will usually be no basis for striking it as frivolous or vexatious on its face. However, extrinsic evidence may reveal that a claim that is not facially deficient is nevertheless frivolous, vexatious or an abuse of process when it is considered in its full context. As Brown J.A. explained in Salasel v. Cuthbertson, 2015 ONCA 115 at para 8:

Any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process, with a common example being the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction. A court only invokes its authority under rule 21.01(3)(d) or pursuant to its inherent jurisdiction to dismiss or stay an action in the clearest of cases: Currie v. Halton (Region) Police Services Board, 2003 7815 (ON CA), [2003] O.J. No. 4516, 233 D.L.R. (4th) 657 (C.A.), at paras. 17 and 18.

[74] In this case, the defendants seek to support their argument that Ms. Mayer’s action is frivolous, vexatious or an abuse of process with an affidavit from Ms. Cooke.

[75] Much of this affidavit simply repeats the legal arguments in the defendants’ factum, stating that Ms. Cooke believes on the advice of her lawyer that Ms. Mayer’s pleadings are deficient in various ways. Her opinion adds nothing to the strength of these arguments.

[76] Ms. Cooke also complains about the way Ms. Mayer has conducted the case, questioning her decision to commence her action in the Superior Court rather than in Small Claims Court, and objecting to Ms. Mayer’s refusal to provide particulars, as demanded by the defendants’ counsel. Neither of these complaints in my view supports a finding that Ms. Mayer’s action is frivolous, vexatious or an abuse of process. I would also note that the defendants can bring a motion under rule 25.10 for an order that Ms. Mayer deliver particulars.

[77] However, Ms. Cooke’s affidavit also provides some additional factual information that bears on the rule 21.01(3)(d) and rule 25.11 inquiries.

[78] Ms. Cooke explains that in 2018 and 2019 Ms. Mayer made a series of police complaints against the her and her co-defendant. She appends the relevant police occurrence reports, which show that:

i) On March 10, 2018, Ms. Mayer called 911 to complain that the defendants were playing loud music. The police came and the issue was resolved by the defendants agreeing to turn their music down.

ii) On June 29, 2019, Ms. Mayer called the police to complain that the defendants were blowing leaves onto her property, and were also “pulling [her] own garden through the fence and tossing it back onto [her] yard”. The police occurrence report states:

Neighbour agreed to clean leaves and not blow anymore into comp property. Comp property is up for sale and she will be moving as soon as the property is sold. All parties agreed to live peaceful.

iii) On June 30, 2019, the day after she made her complaint about the leaves, Ms. Mayer called the police again to complain that Mr. Athanasopoulos had left a ladder sticking out into the road where it was impeding traffic. The police attended and seem to have dismissed the complaint as unfounded. The occurrence report states: “Ladder not impeding traffic. Not a police matter”.

[79] Ms. Cooke adds that on April 25, 2018, Ms. Mayer complained to the City of Pickering that the defendants had built a pergola in their yard without a building permit. City inspectors attended and determined that “[t]he rear yard pergola does not require a building permit and this complaint is not valid”.

[80] Ms. Cooke states further that Ms. Mayer made other complaints to the City “on numerous other occasions”, none of which led to any enforcement action being taken against the defendants. However, she provides no further details about these latter complaints.

[81] This evidence tends to suggest a tendency on Ms. Mayer’s part to unreasonably escalate her grievances against the defendants. However, I think it is significant that on the occasions where she called the police to complain about the same behaviour on which she now bases her tort claims – namely, the defendants blowing or throwing leaves onto her property, and their playing loud music – her complaints were not dismissed as completely unfounded. The police may not have considered her complaints to be particularly serious. However, that does not in itself mean that Ms. Mayer has no viable civil causes of action against the defendants. The tort of trespass to property, in particular, is actionable even when the plaintiff has suffered no damage.

[82] It is not sufficient under rule 21.01(3)(d) and rule 25.11 for the defendants to show that Ms. Mayer is suing over alleged misconduct by her neighbours that most homeowners might not think was sufficiently serious to justify litigation, particularly now that she has moved away and has no reason to fear a recurrence. The question of whether Ms. Mayer’s action is well-advised or sensible is different from the question of whether it is frivolous, vexatious or an abuse of process.

[83] Ms. Cooke also appends real estate listing documents showing that when Ms. Mayer sold her house in November 2019 she made a sizeable profit, selling the property for nearly $280,000 more than she had paid for it five years earlier. These documents also show that she sold it for only $9,900 less than the listing price.

[84] If accurate, these documents may undermine Ms. Mayer’s assertion in her pleadings that she was forced to “move her residence elsewhere at a tremendous and ongoing monetary loss”, as well as her claim to have sold her property for $29,900 less than the listing price.

[85] However, a motion under rule 21.01(3)(d) or rule 25.11 is not a summary judgment motion, and I cannot weigh and assess conflicting evidence.

[86] Moreover, even if Ms. Mayer did sell her property for substantially more than she originally paid for it, she may still be able to establish her claim that she could have sold it for an even higher price if she had not felt psychologically compelled to move because she could no longer stand living beside the defendants. To repeat Blair J.A.’s comment in Miguna v. Ontario, supra, “[t]he test is not whether it is unlikely the claim will succeed.” Rather, the question is whether it is plain and obvious that Ms. Mayer’s damages claims cannot succeed, such that they can be properly be characterized as frivolous, vexatious or an abuse of process.

[87] At subpara. 10(a) of her Amended Statement of Claim, Ms. Mayer seeks damages related to the sale of her home, including the supposedly reduced purchase price, her realtor and legal fees, moving and storage costs, and the land transfer tax payable on the new home that she purchased. In my view, it is at least arguable that these damages can be said to have “flow[ed] as a direct result” of the intentional torts Ms. Mayer accuses the defendants of committing: see Ronald Elwyn Lister Ltd. et al. v. Dayton Tire Canada Ltd., 1985 2249. I cannot dismiss this aspect of Ms. Mayer’s damages claim as inevitably doomed to fail.

[88] However, I draw a different conclusion with respect to her claim for damages at subpara. 10(b) of her Amended Statement of Claim.

[89] As best as I understand it, the damages sought in this paragraph arise out of Ms. Mayer’s dissatisfaction with her current home, which she bought after selling her previous home next door to the defendants’ residence in November 2019. She seeks additional damages to compensate her for the future losses she anticipates suffering if she were to move again, presumably to a new home that she imagines will suit her better.

[90] In my view, these claimed damages are too remote. As McLachlin C.J.C. explained in Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27 at para. 12, quoting from Linden and Feldthusen, Canadian Tort Law, 8th ed., “[t]he remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”. If Ms. Mayer finds herself unhappy with her current home and regrets having bought it almost three years ago, I do not think this can plausibly be viewed as the defendants’ fault.

[91] In my view, Ms. Mayer’s attempt to hold the defendants liable for the costs of a hypothetical future move she might decide to make can fairly be characterized as frivolous. I think it is plain and obvious that she has no realistic prospect of recovering these claimed damages, even if she is successful in establishing liability under one or more of her tort claims.

[92] I would accordingly strike para. 10(b) of Ms. Mayer’s Amended Statement of Claim, without leave to amend.

4) Disposition

[93] In the result, the motion is granted in part.

[94] Para. 5(d) of the plaintiff’s Amended Statement of Claim is struck with leave to amend. The word “harassment” is struck from para. 10, and subpara. 10(b) is struck in its entirety, both without leave to amend.

[95] The defendants also seek to have the style of cause amended to correct the misspelling of Ms. Cooke’s name. This request is unopposed, and is granted.

[96] In all other respects the motion is dismissed.

[97] Since there has been divided success on the motion, I consider this to be an appropriate case for the parties to each bear their own costs.

[97]

_____________________ The Honourable J. Dawe

Date: September 16, 2022