COURT FILE NO.: CV-19-82332
DATE: 2023/02/15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRYANT COUGLE
Plaintiff
– and –
DOUGLAS G. MENZIES, MENZIESBANK CORPORATION, FAINT LAST HOPE CONSTRUCTION and D.G.M. MANAGEMENT CORPORATION
Respondents
Plaintiff is self-represented (responding party to the motions and appearing solely on the request for an adjournment)
Matthew E. Taft, counsel for the defendant, Douglas G. Menzies (moving party)
Christopher Trivisonno and Maritza Woel, counsel for all corporate defendants (moving parties)
HEARD: January 31, 2023 (By Video Conference)
RULING ON MOTION
Corthorn J.
Introduction
[1] The action was commenced in 2019. The statement of claim identifies that the action is brought pursuant to the simplified procedure set out in Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The damages claimed are $2,294,000.
[2] The title of proceeding in the statement of claim, as originally prepared, includes two plaintiffs – Bryant F. Cougle and “Brylin Construction Ltd.” On the front page of the pleading, the corporation’s name is, however, struck out and the initials “BC” appear to have been handwritten beside the striking out of the corporation’s name.
[3] In the body or substantive text of the statement of claim, reference is made to “the Plaintiffs”; the short form “BFC” is used, at times, in place of “the Plaintiffs”. There is no reference in either the body or the substantive text of the statement of claim to Mr. Cougle as an individual or a singular plaintiff. I note, however, that the only plaintiff identified on the final page of the statement of claim – immediately below the final paragraph and the date of the document – is Bryant F. Cougle.
[4] The statement of defence on behalf of all defendants is addressed only to Mr. Cougle. That pleading was served before the individual defendant and the corporate defendants retained separate counsel.
[5] I find that the action was commenced solely by Mr. Cougle.
[6] In their pleading, the defendants (a) deny that the statement of claim discloses a cause of action, and (b) allege that the action “should be dismissed with costs on a full indemnity basis as being a complete waste of the Defendants’ time, effort and money and the Court’s time”: January 6, 2020 statement of defence, at para. 10.
[7] Mr. Cougle did not deliver a reply to the defendants’ pleading. He has taken no steps to advance the action.
[8] In early 2020, MacLeod R.S.J. released reasons in response to a requisition, filed by the defendants, for the action to be dismissed pursuant to r. 2.1.01: Cougle v. Menzies (28 January 2020),Ottawa, 19/82332 (S.C.).[^1] MacLeod R.S.J. found that some aspects of the statement of claim are “problematic”: at para. 4. Despite that finding, the defendants’ request for dismissal of the action under r. 2.1.01 was dismissed: at para. 6. MacLeod R.S.J. highlighted that, “The defendants are at liberty to take such other steps as may be appropriate”: ibid.
[9] The defendants are now separately represented – with Mr. Menzies represented by Cavanagh LLP and the corporate defendants by Conway Baxter Wilson LLP/s.r.l.
[10] Mr. Menzies and the corporate defendants each bring a motion for an order striking the statement of claim for one or more of several reasons. Before dealing with the substantive aspect of the defendants’ motions, I will first deal with the order made by Williams J. in November 2022 – namely that Mr. Cougle and Brylin Construction Ltd. are both vexatious litigants: The Corporation of the Municipality of Mississippi Mills v. Bryant Cougle et al., 2023 ONSC 459, at para. 63.
The November 2022 Order
[11] Having found Mr. Cougle and Brylin Construction Ltd. to both be vexatious litigants, Williams J. made the following order: “Similarly, no proceeding either Mr. Cougle or Brylin may have previously instituted shall be continued without leave of a judge of the Superior Court of Justice”: Mississippi Mills, at para. 64. At the same paragraph, Williams J. added, “I am not satisfied that Mr. Cougle’s vexatious use of the courts will stop without such an order.”
[12] A judgment in Mississippi Mills was issued and entered on November 21, 2022, in the Perth Courthouse.
[13] Counsel for Mr. Menzies brought both the reasons for decision and judgment of Williams J. to the court’s attention. The judgment was not filed with the court as an exhibit to an affidavit. I therefore make the November 21, 2022 judgment of Williams J. in Mississippi Mills Exhibit “A” for the purpose of the two motions to strike before this court.
[14] Mr. Cougle did not serve a copy of the November 2022 judgment on the defendants in the matter before this court. By failing to do so, Mr. Cougle has failed to comply with paragraph 5 of that judgment. That paragraph mandates that Mr. Cougle and Brylin Construction Ltd. “deliver a copy of this Judgment to any person or body with whom they initiate or continue any complaint, including, without limitation, any court, administrative body and/or tribunal, regulatory body, the police and the Crown.”
[15] Mr. Cougle did not deliver any materials in response to the motions before this court; nor did he deliver any materials for a motion for an order for leave permitting him to continue this action.
[16] Pursuant to the terms of the judgment in Mississippi Mills, Mr. Cougle’s action against Mr. Menzies and the corporate defendants is stayed. The defendants’ respective motions raise the issue of whether the statement of claim is to be struck in its entirety and, if so, the action is to be dismissed in its entirety.
[17] Before dealing with the substantive elements of the motions, I will (a) review Mr. Cougle’s request for an adjournment of the motions, and (b) set out the reasons why that request was not granted.
The Request for an Adjournment
[18] Mr. Cougle’s request for an adjournment of the motions was refused. On January 31, 2023, I gave brief oral reasons. I informed the parties that I would include written reasons in my endorsement on the motions. The request for an adjournment was refused for the following reasons.
[19] In support of his request for an adjournment, Mr. Cougle referred to a court proceeding in which he believes Mr. Menzies will be involved in May 2023 in Prescott. Mr. Cougle asserted that the proceeding is related to the properties that are the subject of this action. Mr. Cougle provided no evidence in support of that assertion.
[20] In addition, Mr. Cougle submitted that it is unfair for him to be “vexed” and “blanketed” by the judgment of Williams J. in Mississippi Mills.
[21] In opposing the request for an adjournment, the defendants collectively relied on the following points:
• The request for an adjournment must be considered in the context of the November 2022 judgment in which Mr. Cougle is declared a vexatious litigant;
• The request for an adjournment was not made until the morning of January 30, 2023 (i.e., the day prior to the date on which the defendants’ motions were scheduled to be heard);
• The defendants’ motions were originally scheduled for a date in November 2022. The motions were adjourned administratively because of the lack of judicial resources. The date for the motions fell during the week of a judicial conference;
• The parties were notified on October 20, 2022 of the adjournment of the motions from the November 2022 date to January 31, 2023;
• Throughout the process, Mr. Cougle has been aware of the dates selected for the motion – both the November 2022 date and the January 2023 date. At no time did Mr. Cougle inform the court or counsel for the defendants that he intended to seek an adjournment of or that he would be filing materials in response to the motions;
• There is good reason to doubt the substance of Mr. Cougle’s description of the court event in which he alleges Mr. Menzies will be involved in May 2023. That said, the defendants acknowledge that Mr. Cougle has, in the past, made vague references to proceeding with a private prosecution against Mr. Menzies;
• In any event, the outcome of the May 2023 proceeding can have no bearing on the defendants’ motions. The motions are restricted to a determination of whether the statement of claim discloses a cause of action and whether Mr. Cougle has the capacity to bring the action; and
• The events which are the subject of the action occurred years ago. Any attempt by Mr. Cougle to amend his pleading to reframe the cause of action would be subject to a response that the proposed claim is barred because of the expiration of the applicable limitation period.
[22] In addition, the defendants point to s. 140(1)(d) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). That section precludes an individual who has been declared a vexatious litigant from continuing a proceeding commenced prior to the declaration being made. The matter before this court falls within the scope of s. 140(1)(d).
[23] I agree with the defendants that Mr. Cougle’s request for an adjournment amounts to continuing a proceeding. As a result, Mr. Cougle was required to obtain leave of the court before he requested an adjournment. As already noted, Mr. Cougle did not file any materials in support of a motion for leave to continue the action. Mr. Cougle did not, prior to requesting the adjournment, seek leave of the court to continue the action. In summary, Mr. Cougle was granted an indulgence by the court to even be permitted to make submissions in support of his request for an adjournment of the motions.
[24] Last, the defendants rely on s. 140(5) of the CJA. That section states that nothing elsewhere in s. 140 “limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.”
[25] During his submissions in support of the request for an adjournment, Mr. Cougle made mention of having retained counsel to represent or assist him in an appeal from the decision of Williams J. in Mississippi Mills. Whether with the assistance of counsel or not, Mr. Cougle has had two months within which to address the impact of the decision in Mississippi Mills on his rights in the matter before this court. Yet he did nothing in that regard.
[26] Mr. Cougle is not a neophyte as a litigant. In her reasons in Mississippi Mills, Williams J. refers to two actions commenced by Mr. Cougle in Small Claims Court in 2012; an action commenced by Mr. Cougle and his spouse in this court in 2018; two actions commenced by Brylin Construction Ltd. in 2019 (one in Smalls Claims Court and the other in this court); and an action commenced in 2020 by Mr. Cougle and Brylin Construction Ltd. Williams J. also refers to motions brought within those proceedings.
[27] Nor is Mr. Cougle a neophyte when it comes to requests for adjournment. In her reasons in Mississippi Mills, Williams J. refused Mr. Cougle’s request for an adjournment of the hearing in that matter – his second such request.
[28] For the motions before this court, when the grounds in support of the request for an adjournment are weighed against the grounds raised in opposing that request, the balance is tipped heavily in favour of refusing the request for an adjournment.
[29] I pause to note that, because of where this matter fell on the court’s docket for January 31, 2023, the request for an adjournment was argued and oral reasons given between approximately 12:15 and 1:00 p.m. Mr. Cougle informed the court that he had to leave shortly after 1:00 p.m., because of his responsibilities as a school bus driver.
[30] As I informed the parties during the oral reasons, I am satisfied that Mr. Cougle is not prejudiced by the fact that the substantive portions of the defendants’ respective motions were heard after the lunch break, at a time when Mr. Cougle was not available. Because of his failure to comply with the judgment of Williams J., Mr. Cougle would not, in any event, have been entitled to make submissions on the substantive motions.
The Law
[31] The defendants rely on rr. 21.01(1)(b), (3)(b), and (3)(d):
• r. 21.01(1)(b) permits a party to bring a motion before a judge for an order striking out a pleading “on the ground that it discloses no reasonable cause of action or defence”. The pleading will be struck if it is plain, obvious and beyond reasonable doubt that the plaintiff cannot succeed with the claim: Fasteners & Fittings Inc. v. Wang, 2020 ONSC 1649, at para. 65.
• r. 21.01(3)(b) permits a defendant to bring a motion before a judge “to have an action stayed or dismissed on the ground that [ ] the plaintiff is without legal capacity to commence or continue the action”. A plaintiff who does not have a personal claim against the defendant may not have legal capacity to bring an action. An example of a lack of capacity is a plaintiff who advances a claim related to property owned by someone other than the plaintiff: Sutherland Lofts Inc. v. McGee, 2011 ONSC 5160, at para. 33; and Ora Trustees Ltd., et al. v. Wade, et al., 2022 ONSC 1427, at para. 36; and
• r. 21.01(3)(d) permits a defendant to bring a motion before a judge “to have an action stayed or dismissed on the ground that [ ] the action is frivolous or vexatious or is otherwise an abuse of the process of the court.” Once again, the applicable test is that of “plain and obvious”: Fasteners, at para. 60; see also r. 25.11.
[32] Is Mr. Cougle’s statement of claim to be struck?
The Request for the Statement of Claim to be Struck
[33] The statement of claim is 10 paragraphs. In the first paragraph, Mr. Cougle claims damages of $2,294,000. The heads of damages under which Mr. Cougle is advancing a claim are not identified. The cause or causes of action upon which Mr. Cougle relies in support of his claim for damages are not identified.
[34] In paragraphs 2 through 10 of the statement of claim, Mr. Cougle describes eight properties in Prescott. Four of the properties are alleged to be situated on Wood Street and the other four on St. Lawrence Street (collectively, “the subject properties”). Nowhere in the statement of claim does Mr. Cougle allege that he owned the subject properties at any material time.
[35] There are several shortcomings in the statement of claim, including the following:
a) Although not clearly pleaded, it appears that Mr. Cougle is alleging that he suffered damages as a result of the sale of the subject properties. As noted in the preceding paragraphs, given that Mr. Cougle does not allege that he was an owner of the subject properties, he lacks the capacity to advance a claim in relation to the sale of the properties;
b) With respect to the corporate defendants, the statement of claim lacks allegations in support of a causal link between any conduct alleged on the part of the corporate defendants and the damages which Mr. Cougle alleges he suffered;
c) The statement of claim is entirely lacking as to the injuries and/or losses that Mr. Cougle suffered as a result of conduct alleged on the part of any one or more of the defendants;
d) Nowhere in the statement of claim does Mr. Cougle allege that any one of the defendants committed acts or omissions which constitute a tort. With respect to the corporate defendants, Mr. Cougle does not allege that any one of them owed him a duty of care or otherwise had any obligation to him;
e) Even if the statement of claim is read very generously, Mr. Cougle does not allege that any one of the defendants committed a breach of contract. The statement of claim lacks the particulars required to identify the requisite elements of a cause of action based on breach of contract: (i) the nature of the alleged contract, (ii) the parties to the alleged contract, (iii) the facts supporting privity of contract, (iv) the relevant terms of the alleged contract, (v) which term or terms of the alleged contract were breached, and (vi) the damages that flow from the alleged breach of the alleged contract (see: Fasteners, at para. 91);
By always referring to the defendants collectively as “DGM”, Mr. Cougle makes it impossible for the defendants and the court to ascertain which, if any of the allegations, are made against each of the defendants. For example, at paragraph 10 of the statement of claim, Mr. Cougle alleges that, as of the date on which the originating process was issued, “BFC has never received any reporting letters or correspondence concerning the above properties from DGM. This is a violation of the lawyer’s requirements.” Presumably, the reference to professional obligations of a lawyer is to those of the individual defendant – but that is not how the allegation is made. In any event, there are no particulars of the “lawyer’s requirements” which Mr. Cougle alleges that any one or more of the defendants ‘violated’;
f) Some of the allegations made at paragraph 3 are scandalous because they are immaterial and cannot have any impact on the outcome of the action. For example, it is alleged therein that “BFC” was defrauded by an individual non-party; and
g) The allegations made at paragraphs 5 and 9 are evidence and, as such, are subject to being struck in and of themselves.
[36] For the reasons set out above, I find that the defendants are entitled to the relief requested under each of rr. 21.01(1)(b), (3)(b), and (3)(d). The statement of claim is struck. The question that remains is whether Mr. Cougle should be granted leave to amend the statement of claim.
Mr. Cougle is not Granted Leave to Amend the Statement of Claim
[37] When a pleading is struck as defective, in whole or in part, leave to amend should be granted except in the clearest of cases – meaning that leave to amend will be denied when it is plain and obvious that no tenable cause of action is possible on the facts as alleged. If the plaintiff will be unable to improve his case by further and proper amendment, then leave to amend should be denied: Fasteners, at para. 63.
[38] I agree with the defendants that this action is one of “the clearest of cases” and that Mr. Cougle should not be granted leave to amend. Based on the contents of the Ianni affidavit included in the motion record delivered on behalf of the individual defendant, I find that Mr. Cougle was never an owner of the subject properties. He will be unable to improve his status from that of a non-owner to an owner.
[39] For the reasons set out in the previous section of this endorsement, Mr. Cougle has not identified any claims in tort or breach of contract as against any of the defendants. If Mr. Cougle were granted leave to amend the statement of claim to include causes of action in tort or breach of contract, he would be raising a new cause of action.
[40] Any new cause of action raised is subject to the presumptive two-year limitation period prescribed under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24. It is difficult to conceive how Mr. Cougle would be able to rely on the discoverability principle set out in s. 5 of that statute. Even if granted leave to amend, Mr. Cougle would not be entitled to plead a cause of action for which the limitation period has expired: Cosentino v. Dominaco Developments Inc., 2019 ONCA 426, at paras. 22-23.
[41] From 2019, when the statement of claim was issued and served, to the end of January 2023, Mr. Cougle did nothing to advance the action. In addition, Mr. Cougle has been aware for at least two months that he requires leave of the court to continue the action. As already noted, he took no steps whatsoever to address the impact of the November 2022 judgment on the matter now before the court. To grant Mr. Cougle leave to amend would be to circumvent the terms of the November 2022 judgment.
[42] In summary, the statement of claim is struck, without leave to amend.
Costs
[43] As the successful parties on the motions, the defendants are presumptively entitled to their respective costs of the motions: r. 57.01(1). The individual defendant and the corporate defendants each delivered a bill of costs. The defendants request their respective costs of the action on the partial indemnity scale to the date of the November 2022 judgment and on the substantial indemnity scale thereafter.
[44] I am satisfied that the defendants are entitled to their respective costs of the action:
• Mr. Cougle commenced an action in which he claimed damages in excess of $2,200,000. He had to expect that the action would be vigorously defended;
• The action is based on claims related to properties that Mr. Cougle does not allege that he owned;
• After being declared a vexatious litigant in the Mississippi Mills matter, Mr. Cougle failed to comply with the November 21, 2022 judgment and caused the defendants to incur costs they might not otherwise have incurred; and
• Mr. Cougle was not in any way pro-active in his response to the defendants’ respective motions. Mr. Cougle waited until the last minute (i.e., the day before the return of the motions) to notify the defendants that he intended to seek an adjournment.
[45] I turn next to the scale upon which costs are awarded and then the quantum.
a) The Scale Upon Which Costs are Awarded
[46] With respect to the change in the scale upon which costs are sought, the defendants submit that Mr. Cougle’s litigation conduct has, since the November 2022 judgment in Mississippi Mills, been reprehensible. The defendants rely on Mr. Cougle’s (a) failure to comply with paragraph 5 of that judgment, and (b) late-in-the-day approach to the request for an adjournment of a motion of which he has been aware since October 2022 (when the January 2023 date was set). The defendants submit that if they had been served with a copy of the November 2022 judgment, they might not have found it necessary to bring their respective motions.
[47] I am satisfied that Mr. Cougle’s claims against the defendants are entirely devoid of merit and that his failure to serve the November 2022 judgment resulted in increased costs to the defendants. I find that Mr. Cougle’s behaviour as a litigant warrants an award of substantial indemnity costs from the date of the November 2022 judgment forward.
b) The Quantum of Costs Awarded
▪ The Corporate Defendants
[48] The corporate defendants seek costs totaling $7,081.43. That amount is broken down as follows:
Fees unrelated to the motion (partial indemnity) $ 2,331.00
HST on fees unrelated to the motion $ 303.03
Disbursements unrelated to the motion (incl. HST) $ 45.84
Fees on motion (prior to Nov. 21/22 and partial indemnity) $ 647.10
HST on fees on motion (prior to Nov. 21/22) $ 84.12
Disbursements $ 320.00
Fees on motion (after Nov. 21/22 and substantial indemnity) $ 2,964.90
HST on fees on motion (after Nov. 21/22) $ 385.44
Total $ 7,081.43
[49] Counsel for the corporate defendants acknowledged that counsel for Mr. Menzies was the first to prepare the motion materials. As a result, counsel for the corporate defendants gained efficiencies when preparing the materials for their clients’ motion.
[50] I am satisfied that the time spent and the hourly rates for all timekeepers are reasonable. The disbursements incurred are minimal and include the $320 filing fee for the motion. The costs of the corporate defendants are fixed in the amount of $7,080.
▪ Mr. Menzies
[51] Mr. Menzies claims costs totaling $20,321.18. In the costs outline filed on behalf of Mr. Menzies, his costs are broken down as follows:
Fees unrelated to the motion (partial indemnity) $ 8,539.20
HST on fees unrelated to the motion $ 1,110.10
Disbursements unrelated to the motion (incl. HST) $ 1,184.41
Fees on motion (prior to Nov. 21/22 and partial indemnity) $ 3,519.60
HST on fees on motion (prior to Nov. 21/22) $ 457.55
Disbursements $ 1,241.46
Fees on motion (after Nov. 21/22 and substantial indemnity) $ 3,857.40
HST on fees on motion (after Nov. 21/22) $ 501.46
Total $ 20,411.18
[52] I am unable to explain the $90 difference between the amount of costs claimed and the total, as I calculate it. That difference is not, in any event, significant for the purpose of fixing costs of the motion.
[53] At first blush, it might appear that the fee portion of the costs in the pre-motion period are high – they are more than three times the fee portion of the costs claimed by the corporate defendants in the same period.
[54] I note, however, that the fees relate to “Case assessment, fact investigation, analysis, strategy; reporting to client”. Counsel for Mr. Menzies took the lead in terms of the approach to the defence and the investigation of the ownership of the properties. There are eight properties involved. In the circumstances, I find that the fees claimed for the pre-motion period are reasonable.
[55] The supporting affidavit explains the steps taken to investigate title to the eight properties. Title searches for eight properties no doubt explain the quantum of disbursements incurred.
[56] Addressing proportionality, counsel for Mr. Menzies highlighted that the costs claimed by Mr. Menzies represent approximately one per cent of the damages claimed. The fees claimed for the work on the motion are reasonable when considered in the context of counsel for Mr. Menzies taking the lead on the motion. I am satisfied that the time spent and the hourly rates for all timekeepers are reasonable.
[57] Mr. Menzies’ costs are fixed in the amount of $20,320.
Summary
[58] For the reasons set out above, the court makes an order in the form attached as Schedule ‘A’ to this endorsement. In summary:
• The statement of claim is struck without leave to amend;
• The defendants are awarded their costs of the action (a) on the partial indemnity scale to November 21, 2022, and (b) on the substantial indemnity scale from November 21, 2022 forward;
• The corporate defendants’ costs of the action are fixed in the amount of $7,080 for fees, disbursements, and applicable HST; and
• Mr. Menzies’ costs of the action are fixed in the amount of $20,320 for fees, disbursements, and HST.
• Costs are payable within 60 days of the date of the judgment.
[59] In closing, I wish to thank counsel for the high quality of their respective materials and oral submissions.
Madam Justice S. Corthorn
Date: February 15, 2023
COURT FILE NO.: CV-19-82332
DATE: 2023/02/15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRYANT COUGLE
Plaintiff
– and –
DOUGLAS G. MENZIES, MENZIESBANK CORPORATION, FAINT LAST HOPE CONSTRUCTION and D.G.M. MANAGEMENT CORPORATION
Respondents
RULING ON MOTION
Madam Justice S. Corthorn
Released: February 15, 2023
[^1]: A copy of the decision is included as an exhibit to the Ianni affidavit. The exhibit copy includes a citation: Cougle v. Menzies, 2020 ONSC 592. That citation appears in Schedule ‘A’ to the factum delivered on behalf of the individual defendant. Schedule ‘A’ does not include a hyperlink to the decision. The decision is not available on legal databases and does not appear on the Ontario Superior Court website.