Court File and Parties

Date: 2022-12-20 Superior Court of Justice - Ontario

Re: Grillone et al., Plaintiffs And: MacDonald, Dwayne, Defendant

Before: Vella J.

Counsel: Sergio Grillone, self-represented litigant for the Plaintiffs/Responding Parties Ian Sinke, for the Defendant/Moving Party

Heard: August 30, 2022

Endorsement

[1] This is a motion brought by Dwayne MacDonald to strike all or portions of the statement of claim, without leave to amend, under r. 21.01(1)(b) and r. 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] In brief, according to the statement of claim, Mr. Grillone and his law firm (collectively “Grillone”) are suing Mr. MacDonald in his role as a process server. At all material times, Mr. MacDonald was employed by, or was an agent for, Omega Process Servers Inc. (“Omega”). Omega provided process services for Grillone for over 15 years.

[3] The gravamen of Grillone’s claim is that Omega and/or its principal Mr. DeLuca (both non-parties) fraudulently billed Grillone for process services not properly delivered to Grillone by reason of DeLuca allegedly forging Mr. MacDonald’s signature on the associated affidavits of service. Grillone only recently discovered this “decades” long practice. The claim further alleges that Mr. MacDonald was engaged in the overbilling or fraudulent billing with Omega and/or Mr. DeLuca and knew or ought to have known that Mr. DeLuca was forging his signature on affidavits of service that were then provided to Grillone.

[4] Grillone filed various documents with his responding record, such as copies of allegedly forged signatures attributed to Mr. MacDonald. He also filed a decision by Koehnen J. dated October 18, 2021, entitled Grillone v. Omega et al.

[5] As this motion is brought under r. 21.01(1)(b), no evidence is permitted: r. 21.01(2)(b). Only documents referenced in the statement of claim are properly before the court.

[6] The well-established test is that a claim will only be struck at this pleadings stage if it is plain and obvious, assuming the facts pleaded in the statement of claim to be true, that it fails to disclose a reasonable cause of action (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17).

[7] Furthermore, only facts that are capable of being proven will be assumed to be true (Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721, at para. 31).

[8] Finally, the statement of claim is to be read generously, to account for pleading deficiencies.

[9] The documents filed by Grillone were not referenced in his statement of claim. For that matter, they were not even attached as exhibits to an affidavit. Accordingly, they are not properly before this court and they form no part of my consideration. Grillone conceded this point during the course of oral argument.

The Statement of Claim – Causes of Action

[10] In the statement of claim, issued October 29, 2021, Grillone seeks, inter alia, the following relief:

(a) Damages for one million dollars for conspiracy;

(b) Damages for one million dollars for fraud,

(c) Damages for $500,000 for negligence.

[11] In the course of the pleading, Grillone arguably also pleads breach of contract.

[12] In addition, there are several paragraphs that can fairly be characterized as inflammatory.

[13] Grillone fairly conceded during the course of oral argument that the claims based in breach of contract ought to be struck. For one thing, Grillone does not plead privity of contract between the plaintiffs and the defendant. Based on the statement of claim, it is clear that it was Omega and/or Mr. DeLuca who were contracted to provide the process services to Grillone, not Mr. MacDonald. It is plain and obvious that the breach of contract claim has no chance of success. Accordingly, it is struck without leave to amend.

[14] Grillone also conceded during the course of oral argument that the “inflammatory” portions of the statement of claim regarding the allegations of perjury and unethical conduct ought to be struck. Those paragraphs, which I will identify at the conclusion of these Reasons, are also struck under r. 25.11(b).

Remaining portions of the Statement of Claim

[15] Mr. MacDonald requests that the claims based in negligence, conspiracy and fraud be struck, without leave to amend. I will review each of these in turn.

[16] A plaintiff is required to plead all material facts necessary to make out the causes of action.

[17] In Danovic v. Wagner, 2014 ONSC 2664, at para. 47, the court stated that defendants “should not be forced to box at shadows, or fire bullets into the darkness, in asking the court to determine that the pleading against them discloses no reasonable cause of action”.

[18] Of note, Mr. Grillone advises that he has started a related action against Omega and is seeking to consolidate that action with this one, or have one tried after the other. This motion is apparently before Matheson J. In any event, it is not before me.

Fraud and Fraudulent Misrepresentation

[19] While the statement of claim is framed in fraud, it is clear that it is advancing fraudulent misrepresentation.

[20] It is essential that a plaintiff set out all the material facts supporting the elements of a claim based in fraudulent misrepresentation or any pleading based in fraud (r. 25.06(8)). Those elements are:

(a) The defendant made a false representation of fact;

(b) The defendant knew that the statement was false, or was reckless as to its truth at the time it was made;

(c) The defendant made the representation with the intention that the plaintiff would act on it;

(d) The plaintiff acted on that representation; and

(e) The plaintiff suffered damage as a result. (MacLean v. National CarWash Solutions, 2020 ONSC 6032, at para. 48, citing Parna v. G. & S. Properties Ltd., 1970 CanLII 25 (SCC), [1971] S.C.R. 306, at paras. 22-26).

[21] The statement of claim pleads fraud throughout and particularly at paras. 16, 17, 28, 29, 31, 32, 34 and 36. However, Grillone fails to plead the requisite elements saying only that he has been the victim of fraudulent overbilling for over a decade. He pleads the Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, and the Criminal Code of Canada, R.S.C. 1985, c. C-46, and alleges conspiracy between Mr. MacDonald and Omega and/or Mr. DeLuca.

[22] Grillone’s pleading is dominated by generalities and bald statements. There are insufficient facts pled against Mr. MacDonald. There are instead facts alleged against the non-party, Mr. DeLuca.

[23] There is no pleading, for example, of particulars of the damages allegedly suffered by Grillone. When it was pointed out that it would have been his clients who presumably paid the disbursements for the impugned process services, Grillone stated that sometimes he passed along these disbursements to his clients, and sometimes he did not. However, that is not in his statement of claim. He also has not pled whether any of the alleged forged affidavits of service resulted in any such services having been nullified or invalidated to the prejudice of any of his former clients. Needless to say, Mr. Grillone cannot assert damages that were allegedly incurred by his former clients.

[24] Accordingly, this cause of action is struck. However, I will grant leave to Grillone to amend to plead the material facts with the requisite specificity required by MacLean and Parna (the when, what, by whom and to whom to borrow from Braysan Properties Inc. “In Trust” v. Muchos et. al., 2022 ONSC 3703, at paras. 60-61).

Conspiracy

[25] Like fraud and fraudulent misrepresentation, the court and rules also require specificity in pleading a claim based in conspiracy (Ontario Consumers Home Services Inc. v. EnerCare Inc., 2014 ONSC 4154).

[26] The following elements must be pled to ground a claim in conspiracy:

(a) The parties to the conspiracy and their relationship to each other;

(b) An agreement between two parties, including time, place and mode of agreement;

(c) The precise purpose or object of the conspiracy;

(d) Concerted action taken pursuant to the agreement including the overt acts alleged to have been done by the alleged conspirators to further the conspiracy including time, place and nature of the acts; and

(e) Actual damage suffered by the plaintiff. (Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452, at p. 471; Ontario Consumers, at para. 24; Can-Dive Services Ltd. v. Pacific Coast Energy Corp., 1993 CanLII 6870 (BC CA), 96 B.C.L.R. (2d) 156 (C.A.), at para. 5).

[27] An examination of the statement of claim again reveals that it lacks the requisite level of particulars and specificity required for a plea alleging conspiracy. Essentially, the plaintiff alleges that the defendant has conspired with Mr. DeLuca for financial gain but does not plead facts to support this allegation. While Grillone pleads that he discovered the alleged fraudulent activity at the end of 2019, he merely states that there has been “decades” of improper activity and that the defendant knowingly assisted Mr. DeLuca in perpetrating this fraud of forging the defendant’s signature on affidavits of service.

[28] However, the claim does not plead material facts in support of this intentional tort.

[29] Accordingly, the pleading as it relates to conspiracy is struck out. However, I am granting leave to amend to plead the requisite level of specificity and particulars and to address the elements of this intentional tort.

Negligence

[30] The main problem with Grillone’s pleading as it relates to negligence is that he has failed to plead a tenable duty of care allegedly owed by Mr. MacDonald to him. He has framed his proximity of relationship as between him and Omega/Mr. DeLuca (see paragraphs 7 - 13 of the statement of claim) and grounds the negligence in the Commissioner for Taking Affidavits Act alleging that Mr. DeLuca forged Mr. MacDonald’s signature and then Mr. DeLuca commissioned the affidavit of service.

[31] The essence of this claim as pled is that Mr. MacDonald, in allowing Mr. DeLuca to forge his signature on certain affidavits of service in the course of performing his services for Grillone breached his duty of care owed to Grillone. Grillone relies on the Commissioners for Taking Affidavits Act and the Criminal Code as having been breached by Mr. MacDonald. There are two immediate problems with this plea. The first is that the common law does not recognize a breach of statute as giving rise to a cause of action unless the statute specifically provides for it. These statutes do not. Second, Mr. DeLuca was the commissioner of oaths in the subject affidavits of documents, not Mr. MacDonald. Therefore, the provisions of that statute do not apply to the misconduct alleged against Mr. MacDonald in any event. Even if the statute could have been used as evidence of negligence, this is not tenable as against Mr. MacDonald.

[32] At paragraphs 37 - 38 of the statement of claim, Grillone pleads that Mr. MacDonald owed a duty of care as a commissioner for taking oaths and the standard of care as that applicable to a commissioner of oaths in Ontario.

[33] While Grillone pleads that Mr. MacDonald was operating in the course of providing process services, the claim is not focused on Mr. MacDonald in his role as a process server but rather by virtue of his title as a commissioner of oaths.

[34] In his factum at para. 41, Grillone is clear that he is suing Mr. MacDonald with respect to “his obligations as a commissioner” and not as a process server. He further submitted that a process server “is not vested with the same duty” as a commissioner. I agree (Douglas v. Adams, 2018 ONSC 6329 at paras 21-23).

[35] Grillone did not advance any theory in negligence in which Mr. MacDonald allegedly breached his duty of care as a process server, yet this was the role he played in relation to the impugned affidavits of service. The cause of action in negligence is not tenable.

[36] Therefore, the paragraphs as related to the negligence plea are struck without leave to amend.

Disposition and Costs

[37] The following claims are struck without leave to amend:

(a) Breach of Contract;

(b) Negligence.

[38] The following claims are struck, with leave to amend:

(a) Fraudulent misrepresentation;

(b) Conspiracy.

[39] The following paragraphs are struck as scandalous, frivolous or vexatious: paragraphs 15, 26, 27, 28, 32, 33, 37, 38, 76 (sic), 78 (sic) and 79 (sic). These paragraphs make allegations that are inadmissible and/or irrelevant. They are inflammatory.

[40] The parties have provided their cost outlines.

[41] There is no reason why costs should not be awarded to Mr. MacDonald as the winning party.

[42] Grillone’s Cost Outline sought partial indemnity costs in the sum of $6,000 plus HST and disbursements. This is based on Grillone’s hourly rate as a lawyer of $600.00. However, Grillone self-represented himself and his law firm. He advised that he has undertaken not to practice law. Accordingly, he would only have been entitled to costs as a self-represented litigant. Nonetheless, his cost outline is useful as an indicator of the plaintiffs’ reasonable expectations.

[43] Mr. MacDonald is seeking partial indemnity costs in the sum of $5,139.77, inclusive of disbursements and HST.

[44] I find that Mr. MacDonald’s fees are fair and reasonable taking into account the factors enumerated in r. 57.01. I am therefore fixing his costs, on a partial indemnity basis, in the sum requested of $5,139.77. They are to be paid within 45 days from today.

Justice S. Vella

Date: December 20, 2022