COURT FILE NO.: CV-22-89205
DATE: 2022/12/07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Roland Eid
Plaintiff/Responding Party
– and –
The Attorney General of Canada
Defendant/Moving Party
Self Represented
Andrew Newman, for the Defendant
HEARD: July 7, 2022
REASONS FOR DECISION: MOTION TO STRIKE
H.J. Williams, J.
[1] The Attorney General of Canada ("AG") seeks an order striking the statement of claim without leave to amend.
[2] The AG argues the plaintiff has resurrected claims he made in a 2015 statement of claim which was struck without leave to amend by Warkentin J. in 2016.
[3] The AG argues the 2022 statement of claim should be struck on the basis of the doctrine of res judicata. The AG also argues it is plain and obvious that the claim cannot succeed, and it should be struck because it is frivolous, vexatious or otherwise an abuse of the process of the court.
[4] The AG relies on Rules 21.01(1), 21.01(3) and 25.11 of the Rules of Civil Procedure.
Mr. Eid's position
[5] Mr. Eid argues the 2022 action is completely different from the 2015 action.
[6] Mr. Eid argues the 2015 action was for negligence and was related primarily to events which took place in Lebanon from 2007 to 2012. Mr. Eid says the 2022 action is for recovery of more than $3.5M in receivables owed to his former company, ICI Construction Management.
[7] Mr. Eid also says he has obtained additional evidence since his claim was struck in 2016 and he is waiting to receive even more. Mr. Eid says, for example, his 2022 action asserts a claim against the Department of National Defence in respect of some mobile clinics. Mr. Eid says he did not have information about this claim in 2015.
[8] Mr. Eid also argues that when the parties appeared before Warkentin J. in 2016 on the AG's motion to strike the 2015 claim, someone had removed two volumes of evidence from a banker's box. Mr. Eid says that because these two volumes were missing, his claim was weak and easy to strike. Mr. Eid says he has evidence that a lawyer for the AG removed the two volumes. Mr. Eid says he now plans to appeal the 2016 decision on this basis.
The law
[9] A pleading may be struck under Rule 21.01(1)(b) where it discloses no reasonable cause of action. To succeed on such a motion, the moving party must establish that it is plain and obvious on the facts pleaded that the action cannot succeed. (Hunt v. Carey Canada Inc, 1990 90 (SCC), [1990] 2 SCR 959.)
[10] A pleading may be also struck under Rules 21.01(3)(d) and 25.11(c) where it is frivolous, vexatious or otherwise an abuse of the process of the court. The court will only strike out a claim on this basis in the clearest of cases and where is plain and obvious that the case cannot succeed. (Baradaran v Alexanian, 2016 ONCA 533, at para 15.)
[11] Generally, the principle of abuse of process prevents a person who was a party to earlier litigation from relitigating issues decided in the earlier litigation. (Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63.)
[12] Evidence is not admissible on a motion under Rule 21.01(1)(b) but there is no prohibition on evidence on a motion under Rule 21.01(3) or Rule 25.11. However, while evidence is admissible under Rule 21.01(3) and Rule 25.11, it 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 of the case but to decide whether the pleading should be struck. (Barabaran, at para. 16.)
[13] In this case, Mr. Eid filed an unsworn affidavit dated June 22, 2022. I treated the affidavit as though it had been sworn, but then concluded that it was not relevant to the issue of whether the statement of claim should be struck.
The 2022 statement of claim
[14] In the 2022 statement of claim, Mr. Eid pleads that he has received new evidence and is waiting for more. (Para. 2.) Mr. Eid refers to ICI as his "former company." (Para. 3.) Mr. Eid pleads that he believes he has strong grounds to bring this proceeding forward to recuperate the entire fund that is owed to him by Public Works for completed projects on multiple construction sites for the federal government. (Para. 3.)
[15] Mr. Eid pleads that Public Works owed ICI for completed construction work on multiple projects but that "the Plaintiff's former company" was never paid in full the amount owed, $3,438,929.05. (Para. 4.)
[16] Mr. Eid pleads that he ran ICI from April 2005 to December 2007. (Para. 5.)
[17] Mr. Eid pleads that he was involved in lucrative construction projects overseas, and that Canadian Foreign Affairs, the RCMP and CSIS were aware of these projects and gave Mr. Eid their blessing in exchange for "valuable Intel." (Paras. 6 and 7.)
[18] Mr. Eid pleads that ICI wired $1.7 million overseas and that it was completing many projects in Ottawa for both the private and public sectors "for the overdue invoices of $3,593,645.70 (over the $1.7 million that was wired) against $953,736.59 in receivables." (Para. 8)
[19] Mr. Eid pleads that during his criminal trial, the court refused to consider that ICI should not have been forced into bankruptcy because its receivables exceeded its payables. Mr. Eid pleads that the court focused on ICI's $1.7 million transfer, even though it had been sanctioned by the federal government and CSIS. Mr. Eid pleads that if the RCMP had allowed the trustee to collect ICI's $3.5 million in receivables, it would have been easy for ICI pay the receivables of $900,000 and continue business as usual. (Para. 9.)
[20] Mr. Eid pleads that the RCMP, Public Works and Trisura, an insurance/bonding company, worked together so that the RCMP could keep the money that was owed to ICI. (Paras. 3 and 10.) Mr. Eid pleads that ICI was forced into bankruptcy but not because it did not have money and that the RCMP relied on fall loss amounts. (Para. 10.)
[21] Mr. Eid pleads that the RCMP forced the Caisse Populaire and the trustee to bankrupt ICI 15 days after the Caisse issued a $4,949.36 demand letter, when ICI was supposed to collect more than $3.5 million in receivables. (Para. 12.)
[22] Mr. Eid pleads that ICI was illegally bankrupted by the trustee and Caisse Populaire with the RCMP's blessing. (Para. 13.)
[23] Mr. Eid pleads that DND has been using "the Mobile Clinics" without paying rent to ICI and is refusing to return these mobile clinics to Mr. Eid. (Para. 14.)
[24] Mr. Eid pleads that the RCMP and Public Works entered into an illegal contract with Trisura in 2010, two years after ICI was forced into bankruptcy and that Public Works issued cheques to Trisura under ICI's name. (Para. 15.) Mr. Eid pleads that Trisua removed signed bonding certificates from ICI's offices without authorization and switched them with unsigned copies, to withhold payments from ICI's subcontractors, He pleads that the RCMP and Public Works turned a blind eye to Trisura's conduct, because they had agreed to enter into a side contract to complete construction of the RCMP's administration building two years after ICI would be forced into bankruptcy and hide the profit made by Trisura from ICI's creditors. (Para. 16.)
[25] Mr. Eid pleads that the Caisse Populaire lied on the documents that forced ICI into bankruptcy, and that the RCMP did not take issue with this, provided it was not going to pay what it owed to ICI for work on its projects. (Para. 17.)
[26] Mr. Eid pleads that ICI's business lawyer had a conflict of interest, enabling the Caisse to know all of ICI's inside information. (Para. 18.) Mr. Eid also pleads that two Public Works accountants lied and forged documents. (Para. 19.)
[27] Mr. Eid also pleads that the RCMP and Public Works allowed the trustee to collect money that was owed to ICI, to pay itself, thereby withholding it from ICI's creditors. (Para. 20.)
Analysis and conclusion
[28] For the reasons that follow, I have concluded that even when read generously, as it must be, it is plain and obvious that the 2022 statement of claim does not assert a cause of action that could possibly succeed. I have also concluded that it is clear that the 2022 statement of claim is an abuse of process.
[29] In my reading of the statement of claim and my interpretation of Mr. Eid's oral submissions on the motion, I made allowances for Mr. Eid's status as a self-represented litigant.
[30] An insurmountable problem with the statement of claim is that, with the exception of a claim for pain and suffering, which I will discuss below, Mr. Eid seeks relief for losses suffered not by him but by a company he once operated, ICI.
[31] Specifically, in the request for relief in the statement of claim, Mr. Eid seeks: (1) an order releasing financial documents seized from ICI by the RCMP; (2) an order to collect $3,438,929.05 from Public Works, the amount Mr. Eid says was never paid in full to ICI (statement of claim, para. 4); (3) an order requiring DND to surrender mobile clinics or to keep paying rent or to purchase them from the plaintiff;[^1] and (4) to recuperate loss of business for forcing ICI into an illegal bankruptcy.
[32] Mr. Eid has no legal capacity to advance claims on behalf of ICI, which is a separate legal person.
[33] Mr. Eid did not plead that he had any ongoing interest in ICI or any right to advance a claim on behalf of ICI. In the 2022 statement of claim he acknowledges that ICI is his "former" company (paras. 3, 4 and the claim for relief following para. 20), that he operated the company only until December 2007 (para. 5) and that the company was assigned into bankruptcy in 2008 (para. 15.)
[34] In the 2015 statement of claim, Mr. Eid had made allegations in respect of ICI's bankruptcy similar to the allegations in the 2022 statement of claim, pleading that he suffered damages because of negligence that had caused the bankruptcy. In 2016, Warkentin J. struck those claims because they disclosed no reasonable cause of action and because Mr. Eid lacked the legal capacity to bring a claim on behalf of ICI.
[35] As I noted above, in the 2022 statement of claim, Mr. Eid seeks damages for pain and suffering. This is a request for damages on his own behalf. The 2022 statement of claim does not, however, allege that any wrong was committed against Mr. Eid personally. The alleged wrongs pleaded are in respect of ICI and its forced bankruptcy. Mr. Eid does not plead any material facts in support of a claim for damages for pain and suffering. I find that, as pleaded, Mr. Eid's claim for damages for pain and suffering cannot possibly succeed. (I note that in the 2015 statement of claim, Mr. Eid had requested damages for pain and suffering on behalf of himself and his family. Warkentin J. struck all of the claims pleaded that may have supported this request for damages on the basis that they had no reasonable prospect of success.)
[36] In conclusion, I find that Mr. Eid's 2022 statement of claim fails to disclose a reasonable cause of action. Mr. Eid has no standing to seek relief on behalf of ICI. There is no basis for his claim for damages for pain and suffering. I also find that the 2022 statement of claim repeats claims and raises issues Warkentin J. previously determined (1) do not disclose a cause of action; and (2) Mr. Eid has no legal status to assert.
[37] The 2022 statement of claim shall, therefore, be struck under Rule 21.01(b) because it discloses no reasonable cause of action. As the 2022 statement of claim asserts claims Warkentin J. previously determined could not possibly succeed, it shall also be struck under both Rule 21.01(3)(d) and 25.11(c), on the basis that it is an abuse of process.
[38] Leave to amend should be denied only in the clearest of cases: Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26. In my view, this is one of those very clear cases. Warkentin J. previously determined that Mr. Eid has no legal status to assert claims on behalf of ICI. Granting Mr. Eid leave to amend the 2022 statement of claim will not improve his status to assert these claims. Warkentin J. also determined that the claims Mr. Eid pleaded in the 2015 statement of claim that may have supported a request for damages for pain and suffering had no reasonable prospect of success. In the 2022 statement of claim, Mr. Eid repeated his claim for damages for pain and suffering but did not plead any material facts in support of the claim. As the wrongdoing pleaded by Mr. Eid in the 2022 statement of claim is in respect of ICI's bankruptcy, and particularly as ICI's bankruptcy took place only after Mr. Eid stopped operating ICI in December 2007, I conclude that there are no such material facts that could be pleaded.
Disposition
[39] The AG's motion is granted.
[40] The 2022 statement of claim is struck in its entirety without leave to amend.
Costs
[41] As the AG was the successful party, it shall have its costs. There is no reason to award costs on a basis other than partial indemnity. The AG filed a costs outline. Its partial indemnity costs are $3,071.50. Having considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, and for the sake of simplicity, I fix the AG's costs at $3,000, inclusive of fees, disbursements and HST. I consider this to be a fair and reasonable amount for Mr. Eid, the losing party, to pay.
Released: December 7, 2022
COURT FILE NO.: CV-22-89205
DATE: 2022/12/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROLAND EID
– and –
THE ATTORNEY GENERAL OF CANADA
Defendant/Moving Party
REASONS FOR decision
Justice H. J. Williams
Released: December 7, 2022
[^1]: In para. 14, Mr. Eid pleads that ICI "owed (sic) these Mobile Clinics out right." As Mr. Eid also pleaded that DND was using the clinics without paying rent to ICI, I understand the word "owed" to have been a typographical error and Mr. Eid to have intended to plead that ICI "owned" the clinics. The significance of this is that Mr. Eid pleaded that the clinics were owned by ICI and not by Mr. Eid personally.