Court File and Parties
COURT FILE NO.: CV-21-86203 DATE: 2022/09/16
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Deidre Ann Moore Plaintiff
– and –
Khaldoon Habib-Allah, Lamah El-Rayes, Diego Fernandez-Stoll, Jonathan Kiska, Ottawa Police Service Defendants
Counsel: Self-represented Christopher A. Moore, for the Defendant Khaldoon Habib-Allah Michael D. Swindley and Jennifer Ng, for the Defendant Lamah El-Rayes Kelli Day, for the Defendant Diego Fernandez-Stoll Charlotte Watson, for the Defendant Jonathan Kiska Michelle Doody, for the Defendant Ottawa Police Service
HEARD: June 7, 2022
REASONS FOR DECISION ON RULE 21 MOTIONS
RYAN BELL J.
Overview
[1] In her "Fresh Amended Statement of Claim" (the "Claim"), Deidre Ann Moore seeks:
(i) $500,000 in compensatory damages "due to the loss and/or theft of her property following an eviction scam, the de-frauding of her and/or the unjust enrichment enjoyed by" Khaldoon Habib-Allah (the "Landlord"), Lamah El-Rayes (the "Real Estate Agent"), Diego Fernandez-Stoll (the "Paralegal"), and Jonathan Kiska (the "Former Spouse");[^1]
(ii) $100,000 in pecuniary damages due to "negligence, the knowing assistance of fraud, defamation, intentional infliction of emotional suffering, malice and/or negligent infliction of emotional suffering" by the Ottawa Police Service (the "Police"); and
(iii) $100,000 in pecuniary damages due to the "intentional infliction of emotional suffering, malice and/or negligent infliction of emotional suffering" by the individual defendants.
[2] The Landlord, the Real Estate Agent, and the Former Spouse previously filed requisitions under r. 2.1 of the Rules of Civil Procedure[^2] seeking a stay or dismissal of Ms. Moore's action. In her May 10, 2021, endorsement, Gomery J. dismissed the requisitions because she could not "dismiss the possibility that Moore's core complaint – eviction from rented property and the dispossession of her furniture and belongings – could be legitimate and could give rise to a cause of action against at least some of the defendants." Ms. Moore then filed the Claim.
[3] The defendants now move under r. 21.01 of the Rules of Civil Procedure to strike the Claim, dismiss the action and/or stay the action. All the defendants allege that the Claim is within the exclusive jurisdiction of the Landlord and Tenant Board. All the defendants contend that the Claim discloses no reasonable cause of action against them.
[4] Some of the defendants raise additional arguments in support of their positions. The Real Estate Agent argues that the claims against him are statute barred by operation of the two-year limitation period under the Limitations Act, 2002.[^3] The Former Spouse argues that the subject matter of the claim pleaded against him is the subject matter of another proceeding pending in Ontario. The Paralegal and the Former Spouse argue that the claim is frivolous or vexatious or otherwise an abuse of the court's process.
[5] If their motions to dismiss the Claim are dismissed, the individual defendants, except the Real Estate Agent, seek orders requiring Ms. Moore to post security for costs.
[6] For the following reasons, the defendants' motions are granted. Ms. Moore's action is dismissed as against the individual defendants. The Claim is struck out in its entirety, without leave to amend.
The Allegations in the Claim
[7] In the Claim, Ms. Moore alleges that, as a result of matrimonial litigation between her and her Former Spouse, she was forced to sell her bungalow. Ms. Moore found a three-bedroom townhouse (the "Rental Property") available for rent. She contacted the Real Estate Agent who offered to hold the Rental Property for her until she was ready to move in. The Real Estate Agent also offered Ms. Moore a monthly, rather than a yearly, lease.
[8] The sale of Ms. Moore's bungalow closed on Labour Day weekend in 2018. Although she had intended to lease the Rental Property from November 1, 2018, Ms. Moore accepted the Real Estate Agent's offer that she begin renting the Property on October 1, 2018, in exchange for certain updates being made to it.
[9] In the following months, Ms. Moore identified deficiencies within the Rental Property that the Landlord failed to repair. As a result, beginning January 31, 2019, Ms. Moore withheld the rent due.
[10] On April 8, 2019, the Landlord obtained an eviction order against Ms. Moore for immediate payment of outstanding amounts owing under the lease, failing which the lease would be terminated and the Landlord could move to evict Ms. Moore by filing the eviction order with the sheriff.
[11] In late April or early May 2019, following admission to a hospital in Quebec for a psychiatric assessment, Ms. Moore travelled to the United States.
[12] In May 2019, Ms. Moore first learned that she had been evicted from the Rental Property. The Real Estate Agent told her that she should contact the Paralegal or send a cheque to the Landlord: "[f]rom the moment that Moore learned that she had been evicted, she was advised to send various amounts by cheque to some address that she could not confirm; however, no one would provide to her the landlord's phone number or his email address."[^4] As a result, Ms. Moore was unable to send the Landlord any amount owed.
[13] In mid-May 2019, Ms. Moore informed her Former Spouse of her intention "to have the contents of her townhouse packed and stored between May 27-31, 2019." Her Former Spouse responded, "that he had spoken to Stoll and that he planned to buy the contents of her home unless she paid them in full by May 16, 2019."[^5]
[14] On May 25, 2019, the Paralegal emailed Ms. Moore that he could not assist her as it would represent a "conflict of interest" and advised her that she should deal directly with the Landlord and/or the Real Estate Agent.
[15] On June 14, 2019, Ms. Moore contacted the Real Estate Agent who told her not to contact him anymore.
[16] On June 29, 2019, after she had confirmed that the Rental Property had been emptied, Ms. Moore contacted the Landlord to request an email address so that she could transfer the necessary funds to him. Ms. Moore received no reply.
[17] In November 2019, after a period of time when she was "maliciously prosecuted" and incarcerated on charges of criminal harassment against her Former Spouse, Ms. Moore attended at a police station to file a criminal complaint against the individual defendants. Two weeks later, the Police advised her that her complaint was a civil matter. In early 2020, Ms. Moore was notified that her file with the Office of the Independent Police Review Director was closed without further investigation.
[18] While she was detained on the criminal harassment charges, Ms. Moore filed a complaint with the Law Society of Ontario against the Paralegal, who had been retained by the Landlord in connection with the Landlord and Tenant Board proceeding.
[19] Ms. Moore alleges that, as a result of the collective behaviour of the defendants, "[t]he contents of a well-appointed, three-bedroom home have been stolen from Moore and not one of the parties involved would tell her how to get her possessions back." Ms. Moore alleges that the Children's Aid Society has used the fact that she is "homeless" and has no income as one of the reasons why she should not be granted any parenting rights.[^6]
[20] Ms. Moore further alleges that the defendants knew or ought to have known that Ms. Moore was attempting to pay the outstanding rent to the Landlord and to recover her possessions. She alleges that "El-Rayes, Stoll and Allah deliberately assisted Kiska so that he would succeed in family court and completely alienate Moore from her beloved children."[^7]
[21] Ms. Moore alleges that the Police "have shown significant indifference and/or malice towards Moore on every police complaint that she has ever filed and, in contrast, assisted in her demise, by laying charges against her without the benefit of an interview – relying solely on the deceit of Kiska for 'information' and/or 'evidence'" and that "OPS continues to be negligent in the performance of its duties to Moore and her children at time of writing."[^8]
[22] The Claim alleges, at para. 99, that the acts and omissions of the individual defendants and the Police constitute complicity in:
a. the loss and/or theft of her property following an eviction scam, the de-frauding of her and/or the unjust enrichment enjoyed by Allah, El-Rayes, Stoll and/or Kiska,
b. negligence,
c. fraud and/or knowing assistance of fraud,
d. the intentional infliction of emotional suffering, malice and/or negligent infliction of emotional suffering.
[23] Ms. Moore pleads that because of the wrongful acts and/or omissions of the defendants, she has suffered and continues to suffer the following damages:
a. the loss of the ability to enjoy her possessions – the fruits of her very successful career,
b. the loss of her ability to care for, love, parent and protect her children (and her pets) to Kiska – the man that she knows enjoys verbally, emotionally and psychologically abusing her children (because she lived it),
c. severe emotional distress and damage, including mental distress and humiliation, as a result of lack of wardrobe, furniture, household items, safe living arrangements – all symbols of her success,
d. the loss of enjoyment as she has been unable to participate in most of the activities of her former life, and
e. injury and damage to her sense of worth, sense of security and her deeply personal interests to assist other victims of domestic violence.[^9]
[24] At para. 103 of the Claim, Ms. Moore alleges that "this eviction was part of the new-age domestic violence and/or domestic terrorism that is utilized when a loving mother in Ottawa wants to protect her vulnerable children by divorcing a horrible man connected to white-collar, blue-collar, no collar crime" (emphasis in original).
Rule 21.01
[25] The various provisions of r. 21.01 of the Rules of Civil Procedure engaged on these motions are as follows:
(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(b) under clause (1)(b).
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(a) Jurisdiction – the court has no jurisdiction over the subject matter of the action;
(c) Another Proceeding Pending – another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or
(d) Action Frivolous, Vexatious or Abuse of Process – the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
[26] A pleading will be struck out under r. 21.01(1)(b) only if it is plain and obvious, assuming the facts pleaded to be true, that it discloses no reasonable cause of action.
[27] By contrast, evidence is admissible on a motion to determine jurisdiction; a court cannot resolve a question of subject matter jurisdiction without a factual foundation: Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, 2011 ONCA 728, at para. 10. [^10]
The Real Estate Agent
[28] The Real Estate Agent's primary position is that the subject matter of the claims against him fall within the exclusive jurisdiction of the Landlord and Tenant Board. In the alternative, the Real Estate Agent argues that Ms. Moore's claims against him are statute barred as they are premised on allegations arising from Ms. Moore's interactions with the Real Estate Agent which occurred more than two years before the action was commenced. In the further alternative, the Real Estate Agent argues that the Claim discloses no reasonable cause of action against him.
(i) Landlord and Tenant Board has exclusive jurisdiction
[29] To determine whether the Landlord and Tenant Board has exclusive jurisdiction over Ms. Moore's claims against the Real Estate Agent (and, indeed, the other defendants), the essential character of the dispute must be determined. This determination is neither "a matter of semantics nor of the legal labels attached to the claims by one of the parties to the dispute – it is the true substance of the dispute that is determinative": AC Concrete Forming Ltd. v. The Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity, 2008 ONCA 864, at para. 16.[^11] The essential character of the dispute is determined by reference to the factual matrix of the dispute: AC Concrete Forming, citing Myrtezaj v. Cintas Canada Ltd., 2008 ONCA 277, at para. 55.[^12]
[30] Ms. Moore's claims against the individual defendants are based on negligence, fraud, unjust enrichment, intentional or negligent infliction of emotional suffering, and malice, arising from Ms. Moore's eviction from the Rental Property – described in the Claim as "an eviction scam." There can be no doubt that the essential character of Ms. Moore's claims against the Real Estate Agent arise from her eviction from the Rental Property in respect of which he was the listing agent. The terms of Ms. Moore's tenancy of the Rental Property were governed by the residential lease between Ms. Moore and the Landlord, subject to the jurisdiction of the Landlord and Tenant Board in accordance with the Residential Tenancies Act, 2006.[^13]
[31] The Landlord and Tenant Board has exclusive jurisdiction to determine all applications under the Residential Tenancies Act, 2006 and with respect to all matters in which jurisdiction is conferred on it by the Act.[^14] Section 37(1) provides that a tenancy may be terminated only in accordance with the Act. Section 39(b) provides that a landlord shall not recover possession of a rental unit subject to a tenancy unless an order of the Landlord and Tenant Board evicting the tenant has authorized possession.
[32] I agree with the Real Estate Agent's submission that the issues arising under the residential lease governing the Rental Property – disrepair, eviction, and the application for vacant possession, as pleaded in the Claim – constitute the essential character of the claims against him. Ms. Moore's claims against the Real Estate Agent are confined to her lease and occupation of the Rental Property, her complaints about the state of the rented premises, and the termination of her lease and eviction from the premises in accordance with the order granting vacant possession to the Landlord. These are all matters over which the Landlord and Tenant Board retains exclusive jurisdiction: Fraser v. Beach, 2005 14309 (ON CA), at paras. 14-15.[^15] An order of the Landlord and Tenant Board is final and binding, subject only to the appeal routes as provided for under the Residential Tenancies Act, 2006. Ms. Moore did not pursue her appeal rights under the Act.
[33] Accordingly, I dismiss the action against the Real Estate Agent on the basis that this court has no jurisdiction over the subject matter of the action against him.
(ii) Claim against the Real Estate Agent is statute barred
[34] In my view, Ms. Moore's claim against the Real Estate Agent is also statute barred. Courts may determine whether a claim is statute barred on a r. 21.01(1)(a) motion, where the determination of the issue does not depend on findings of fact. The court may determine a limitations issue on a r. 21.01(1)(a) motion before a statement of defence is filed, where discoverability is not in issue, and no additional facts could be pleaded that would alter the conclusion that a limitation period has expired: Kaynes v. BP, PLC, 2019 ONSC 6464, at paras. 109-110.[^16]
[35] The Real Estate Agent was the listing agent for the Rental Property. In relation to the alleged "Bizarre Circumstances of the Townhouse Rental", para. 21 of the Claim states that although Ms. Moore thought that the Real Estate Agent was "simply being sympathetic to Moore's situation", she was "being set up [by the Real Estate Agent] for an eviction scam and the theft of everything that she owned."
[36] I agree with the Real Estate Agent that the only material acts or omissions attributable to him that could have contributed to the alleged "eviction scam" were those in his capacity as listing agent and therefore, prior to October 1, 2018, the date of Ms. Moore's tenancy agreement. As Ms. Moore's original statement of claim was not issued until April 6, 2021, her claims against the Real Estate Agent are statute barred: Limitations Act, 2002, s. 4.
(iii) No reasonable cause of action against the Real Estate Agent
[37] Finally, the Claim does not disclose a reasonable cause of action against the Real Estate Agent. The constituent elements that must be pleaded when alleging negligence are: (i) the alleged duty of care owed by the defendant to the plaintiff; (ii) that the defendant breached the alleged duty of care; and (iii) that damage resulted from the breach: Baweja v. Royal Auto Collision, 2019 ONSC 7319, at paras. 53-55.[^17] I agree with the Real Estate Agent that the Claim fails to articulate what duty was owed by the Real Estate Agent to Ms. Moore and that there is a paucity of facts pleaded as to how any such duty was breached by the Real Estate Agent's acts or omissions. No material facts were pleaded suggesting that the Real Estate Agent exceeded his authority or acted outside his capacity as agent on behalf of the Landlord in any of his dealings with Ms. Moore.
[38] Ms. Moore also advances causes of action against the Real Estate Agent grounded in intentional torts, including conversion, fraud, and malice. Bald or vague assertions of intentional tortious conduct are insufficient to defeat a r. 21 motion; the pleading of intentional torts must be pleaded with "clarity and precision": Ceballos v. DCL International Inc., 2018 ONCA 49, at para. 12[^18]; Lysko v. Braley, 2006 11846 (ON CA), at para. 144.[^19]
[39] The necessary elements of a false representation of fact made by the Real Estate Agent to Ms. Moore and the knowledge of that representation to make out a claim for civil fraud have not been pleaded in the Claim. The Claim does not plead the precise agreement amongst the alleged conspirators, a necessary element of the tort of civil conspiracy. It is plain and obvious that these claims against the Real Estate Agent cannot succeed.
[40] With respect to the claim for unjust enrichment, there are no material facts pleaded that the Real Estate Agent was unjustly enriched, nor has Ms. Moore pleaded the absence of a juristic reason for the enrichment. This claim against the Real Estate Agent cannot succeed.
[41] The Claim seeks pecuniary damages against the individual defendants due to the intentional infliction of emotional suffering, malice and/or negligent infliction of emotional suffering. In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the Court of Appeal for Ontario set out a three-part test for establishing intentional infliction of mental suffering: (i) the conduct must be flagrant and outrageous; the conduct must be calculated to harm the plaintiff; and (iii) the conduct must have caused the plaintiff to suffer a visible and provable illness.[^20]
[42] In Merrifield, the Court of Appeal rejected the plaintiff's call for the creation of a tort of mental harassment. The Court determined that it was neither necessary nor desirable at this stage to create a new tort of mental harassment, given the similarities between the proposed tort and the already existing tort of intentional infliction of mental suffering. The Court of Appeal noted that the test for the proposed tort of mental harassment was less onerous than the test for a claim for intentional infliction of mental stress because the former tort is negligence-based, while the latter has an element of intent: Merrifield, at para. 48. Both require the element of outrageous conduct: Merrifield, at para. 47.
[43] The Claim does not plead facts that constitute high-handed or outrageous conduct on the part of the Real Estate Agent. The Claim does not allege that the conduct of the Real Estate Agent caused Ms. Moore to suffer a visible and provable illness; to the contrary, Ms. Moore pleads at para. 86 of the Claim that "the emotional suffering that has been endured by Moore due to the actions and inactions of the Defendants and the OPS is difficult to quantify." These claims, too, cannot succeed.
(iv) Summary
[44] In summary, the action against the Real Estate Agent is dismissed because the Landlord and Tenant Board has exclusive jurisdiction over the subject matter of the action against him. The action against the Real Estate Agent is also dismissed because it is statute barred. I would also strike out the Claim against the Real Estate Agent because it discloses no reasonable cause of action against him.
The Landlord
[45] The Landlord also argues that the Landlord and Tenant Board has exclusive jurisdiction over Ms. Moore's claims against the Landlord and that the Claim discloses no reasonable cause of action against him. The Landlord adopts the Real Estate Agent's submissions in relation to both issues.
[46] My analysis of these issues as they apply to the Landlord is the same as my analysis in relation to the Real Estate Agent. Therefore, for the reasons already given, the action against the Landlord is dismissed because the Landlord and Tenant Board has exclusive jurisdiction over the subject matter of the action against him. The Claim is also struck out against the Landlord because it discloses no reasonable cause of action against him.
The Paralegal
[47] For the reasons already given, the action against the Paralegal is dismissed on the basis that the Landlord and Tenant Board has exclusive jurisdiction over the subject matter of the action against him.
[48] The Claim is also struck out against the Paralegal because it discloses no reasonable cause of action against him. In particular, I note that the Paralegal was acting for the Landlord in the proceedings before the Landlord and Tenant Board. The Paralegal owed the Landlord duties of loyalty and confidentiality and was required to endeavour to obtain the benefit of every remedy authorized by law on his client's behalf: Paralegal Rules of Conduct, r. 3.03 and 4.01.[^21]
[49] However, a lawyer owes no duty of care to the party opposite in litigation: Davidoff v. Paderewski, 2020 ONSC 1162, at para. 22.[^22] Complaints related to an opposing lawyer's allegedly unethical conduct during proceedings do not provide a basis for a cause of action: Powell v. Shirley, 2016 ONSC 3577, at para. 55.[^23] There is no claim against a lawyer because they were the lawyer for the opposing party in litigation: Davidoff, at para. 22. These principles logically extend to a licensed paralegal.
[50] I would also dismiss the action as against the Paralegal because it is frivolous and vexatious. The Paralegal owed no duty of care to Ms. Moore and appears to have been dragged into this litigation for no reason other than his representation of the Landlord at the Landlord and Tenant Board hearing. In addition, Ms. Moore filed a complaint with the Law Society of Ontario regarding the Paralegal. The fact that a plaintiff has brought claims in court and before the Law Society against lawyers who acted opposite the plaintiff has been described as "one of the most telltale badges of a vexatious litigant": Yac v. Park, 2013 ONSC 1331, at para. 17.[^24] Ms. Moore's action against the Paralegal is frivolous and vexatious for the same reason.
The Former Spouse
[51] The Former Spouse argues the following in support of his motion:
(i) that the claim against him is within the exclusive jurisdiction of the Landlord and Tenant Board;
(ii) that the action does not disclose a reasonable cause of action against him;
(iii) that the subject matter of the claim against him is the subject matter of another proceeding pending in Ontario; and
(iv) that the action is frivolous, vexatious, or otherwise an abuse of the process of the court.
[52] The Former Spouse's involvement in the alleged eviction scam is set out at paras. 58 and 59 of the Claim: following Ms. Moore's advice to her Former Spouse of her intention to have the contents of the Rental Property packed up and stored, he responded by telling her that he planned to buy the contents of her home unless she paid for them in full by May 16, 2019. Ms. Moore pleads that her Former Spouse "went on to mock Moore, insult Moore and state that she could eventually purchase her possessions back from him." There is no allegation that the Former Spouse was ever in possession of Ms. Moore's property.
[53] For reasons previously given, the Landlord and Tenant Board has exclusive jurisdiction regarding the eviction of Ms. Moore from the Rental Property. The alleged eviction scam is the true substance of the dispute between Ms. Moore and each of the individual defendants. Accordingly, the action against the Former Spouse is dismissed under r. 21.01(3)(a).
[54] Nor does the Claim disclose a reasonable cause of action against the Former Spouse. As with the other individual defendants, Ms. Moore advances causes of action against her Former Spouse grounded in intentional torts, including conversion, fraud, and malice. Ms. Moore has failed to plead any intentional tort with clarity and precision. Merely asserting a tort, without alleging the material facts capable of supporting it, discloses no cause of action: Moore v. Victor Vallance Blais LLP, 2021 ONSC 1400, at para. 29.[^25]
[55] With respect to the claim for unjust enrichment, there are no material facts pleaded that the Former Spouse was unjustly enriched. There is no allegation that the Former Spouse was ever in possession of Ms. Moore's property.
[56] The Claim does not allege any conduct by the Former Spouse that could constitute flagrant and outrageous conduct calculated to harm Ms. Moore and, as previously stated, Ms. Moore does not allege that she suffered any visible or provable illness arising from her Former Spouse's conduct.
[57] Accordingly, I would also strike out the Claim against the Former Spouse on the ground that it discloses no reasonable cause of action against him.
[58] In my view, the action against the Former Spouse is also frivolous and vexatious. The Claim is replete with bare allegations against the Former Spouse, unsupported by material facts. Ms. Moore alleges that her eviction was "part of the new-age domestic violence and domestic terrorism." Ms. Moore makes irrelevant allegations against her Former Souse relating to their marriage, the ongoing family law proceeding before the court, including allegations of fraud, defamation, and the custody of their children. In addition to her unsupported allegations against her Former Spouse, the Claim is replete with vexatious allegations against lawyers, paralegals, justices of the Superior Court of Justice and a psychiatrist. I would also dismiss the actin against the Landlord on this basis.
[59] Because of the conclusions I have reached in relation to r. 21.01(1)(b) and r. 21.01 (3)(a) and (d), it is not necessary for me to consider the Landlord's submission under r. 21.01(3)(c).
The Police
[60] The Claim does not allege that the Police were involved in Ms. Moore's eviction from the Rental Property. Instead, the allegations against the Police stem from Ms. Moore's efforts to have charges laid with respect to the alleged "eviction scam" as set out at paras. 73 to 77 of the Claim:
Immediately following her release, on November 4, 2019, Moore attended the OPS station on Elgin Street with a binder of evidence of the eviction scam which ultimately robbed her of all of her possessions worth approximately $500,000.
OPS Constable Andrew Reesor ("Reesor") was so verbally aggressive that Moore decided she should record their exchange after the first few minutes.
Moore described the fraud which had occurred during the Spring, provided Reesor with several pieces of evidence and offered more; however Reesor stated that further evidence was not required at the moment and that Moore should wait to hear from the assigned investigator.
Two weeks later, without notice to Moore, Reesor produced a brief report laden with errors, omissions and malicious obfuscation and closed the file – deeming it a "civil matter".
In December 2019, Moore followed up with OPS Sergeant Alex Bender without success.
[61] The police do not owe the victim of an alleged crime a private law duty of care in relation to the investigation of alleged crimes: Connelly v. Toronto (Police Services Board), 2018 ONCA 368, at para. 6[^26]; Wellington v. Ontario, 2011 ONCA 274, at para. 20.[^27] Ms. Moore's desire for a different outcome following the police investigation does not give rise to a relationship of proximity sufficient to ground an action for damages in tort: Wellington, at para. 33.
[62] There are no material facts pleaded to support the claim of fraud as against the Police. There are no material facts pleaded to support the claim of defamation as against the Police. Finally, it is unnecessary to repeat my analysis regarding the claims for intentional and/or negligent infliction of emotional suffering. The Claim does not allege any conduct by the Police that could constitute flagrant and outrageous conduct calculated to harm Ms. Moore, and Ms. Moore has not alleged that she suffered any visible or provable illness arising from Police conduct.
[63] The claims against the Police are bound to fail. The Claim against the Police is therefore struck out under r. 21.01(1)(b).
No leave to amend
[64] I would also not grant leave to amend the Claim. Amendments should not be granted where to do so would merely result in another proceeding to strike the claim as disclosing no reasonable cause of action. As the court stated in TSCC Corporation No. 2123 v. Times Group Principals, 2018 ONSC 4799, at para. 88, "[i]f it is clear that the plaintiff cannot allege further facts that they know to be true to support the allegations in the pleading, leave to amend will not be granted."[^28]
[65] Ms. Moore has already made one attempt to amend with her delivery of the Claim. It is plain and obvious that the Claim discloses no reasonable cause of action against any of the defendants. There is no basis to believe that Ms. Moore's case against any of the defendants could be improved by further amendment. In these circumstances, leave to amend is refused.
Security for costs
[66] Because I have dismissed the action as against all the individual defendants and I have struck out the Claim as against the Police, it is not necessary for me to address the alternative arguments raised by some of the defendants in relation to security for costs.
Disposition
[67] Ms. Moore's action is dismissed as against the individual defendants. The Claim is also struck out in its entirety, without leave to amend.
[68] In the event the parties are unable to agree on costs of the motions, they may make written submissions limited to a maximum of three pages. The defendants shall deliver their respective costs submissions by September 30, 2022. Ms. Moore shall deliver her responding submissions by October 14, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Madam Justice Robyn M. Ryan Bell
Released: September 16, 2022
COURT FILE NO.: CV-21-86203 DATE: 2022/09/16
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Deidre Ann Moore Plaintiff
– and –
Khaldoon Habib-Allah, Lamah El-Rayes, Diego Fernandez-Stoll, Jonathan Kiska, Ottawa Police Service Defendants
REASONS FOR DECISION ON RULE 21 MOTIONS
Ryan Bell J.
Released: September 16, 2022
[^1]: The titles given to these defendants are based on how they are described on the title of proceedings. [^2]: R.R.O. 1990, Reg. 194. [^3]: S.O. 2002, c. 24, Sched. B. [^4]: The Claim, at para. 65. [^5]: The Claim, at paras. 57-58. [^6]: The Claim, at paras. 83-85. [^7]: The Claim, at paras. 89-90. [^8]: The Claim, at paras. 92 and 94. [^9]: The Claim, at para. 100. [^10]: 2011 ONCA 728, 344 D.L.R. (4th) 332. [^11]: 2008 ONCA 864, 93 O.R. (3d) 529. [^12]: 2008 ONCA 277, 90 O.R. (3d) 384. [^13]: S.O. 2006, c. 17. [^14]: Residential Tenancies Act, 2006, at s. 168(2). [^15]: (2005), 2005 14309 (ON CA), 75 O.R. (3d) 383 (C.A.). [^16]: 2019 ONSC 6464. [^17]: 2019 ONSC 7319. [^18]: 2018 ONCA 49. [^19]: (2006), 2006 11846 (ON CA), 79 O.R. (3d) 721 (C.A.). [^20]: 2019 ONCA 205, 145 O.R. (3d) 494, rev'g 2017 ONSC 1333. [^21]: The Law Society of Ontario, Paralegal Rules of Conduct, Toronto: Law Society of Ontario, 2007. [^22]: 2020 ONSC 1162. [^23]: 2016 ONSC 3577. [^24]: 2013 ONSC 1331. [^25]: 2021 ONSC 1400. [^26]: 2018 ONCA 368. [^27]: 2011 ONCA 274, 105 O.R. (3d) 81. [^28]: 2018 ONSC 4799, 93 C.L.R. (4th) 24.