Court File and Parties

COURT FILE NO.: CV-22-52 DATE: 2023/05/01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephen Massey, Plaintiff AND: Ralph A. Lee Law Office and Ralph A. Lee, Defendants

BEFORE: Somji J.

COUNSEL: Plaintiff, Self-Represented Stephen Cavanagh Counsel, for the Defendants

HEARD: January 13, 2023-Perth

Decision on Motion to Strike Statement of Claim

[1] The plaintiff brought a claim of negligence against defendant Ralph Lee who previously acted as counsel for him in a family law matter. The plaintiff seeks $7 million in damages. The thrust of the plaintiff’s action is that defendant inadequately represented him.

[2] The plaintiff issued a Statement of Claim on May 24, 2022 (“Statement”) alleging ten causes of action. On November 30, 2022, the defendant brought a motion for an order to strike the Statement without leave to amend pursuant to r. 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendant claims the plaintiff has failed to properly plead the elements for each cause of action, and in some cases, the pleading is too vague to identify any recognizable cause of action. The defendant claims the Statement is so deficient that the action should be dismissed in its entirety. Alternatively, if the plaintiff is granted leave to amend the Statement, the defendant seeks an order for security of costs pursuant to r. 56.01(1)(c) and (e).

[3] The plaintiff is self-represented. He neither filed a response to the motion nor attended the motion hearing. The plaintiff has brought similar actions against other lawyers and the Ottawa Police. Defendant’s counsel is also counsel on some of the other actions and reports that since the motion materials were filed in November 2022, he has not heard from the plaintiff on this or the others matters in which he is involved.

[4] The issues to be decided are:

1. Should all or a portion of the pleadings be struck pursuant to r. 25.11? If deficiencies are found in the Statement, should the plaintiff be granted an opportunity to amend?
2. Should the plaintiff’s Statement be dismissed in its entirety?
3. If amendments are ordered, should there be an order for security of costs?

Issue 1: Should all or a portion of the pleadings be struck pursuant to r. 25.11?

[5] Rule 25.11 states as follows:

Striking out a Pleading or Other Document

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

[6] As explained in Prestige Toys Ltd. v Smith, 2011 ONSC 8003 at para 24, defendants are entitled to know with certainty the case they have to meet and should not have to parse through “unintelligible, longwinded pleadings” to understand the basis of the claim against them. Consequently, every pleading must contain a concise statement of the material facts relied on: Prestige Toys at para 24. Where the materials facts are not sufficiently pled to understand the claim or the claim contains numerous deficiencies, the court may strike the pleading altogether: Morrison v Partington at para 20; Yordanes v Bank of Nova Scotia. Other deficiencies include the failure to properly plead the elements for the causes of action alleged: Kaynes v BP p.l.c., 2021 ONCA 36 at para 46.

[7] In addition, a pleading that raises irrelevant or superfluous allegations that cannot affect the outcome of an action is scandalous, frivolous, or vexatious and should be struck out: Huachangda Canada Holdings Inc. v Solcz Group Inc., 2019 ONCA 649 at para 15.

[8] However, it is only in the rarest of cases that a pleading will be struck without providing a party leave to amend: York Condominium Corporation No. 21 v All Unit Owners and Mortgagees of Record of York Condominium Corporation No. 21, 2021 ONSC 4600 at para 39. The moving party must show that the application does not disclose a cause of action: Grain Farmers of Ontario v Ontario (Environment and Climate Change), 2016 ONCA 283. The threshold is high. A reviewing justice must be satisfied that it is “plain, obvious and beyond doubt that the application cannot succeed:” National Steel Car Limited v Independent Electricity Systems Operator, 2019 ONCA 929, at para. 24; Prestige at para 25; Tataryn v Diamond & Diamond, 2021 ONSC 2624 at para 67.

[9] In determining whether to allow leave to amend, the court must consider only whether there is a prima facie meritorious case set out in the pleading and not the merits of the factual basis for the proposed amendment: Prestige at para 29.

[10] The defendant argues that the pleadings are sufficiently deficient that the Statement should be struck in its entirety. In particular, they argue that the plaintiff has failed to adequately plead the elements in support of the following causes of action: negligent misrepresentation, breach of contract, breach of trust, breach of confidence and intentional infliction of mental distress. In addition, the defendant claims the pleadings for alleged malice, malpractice, and breach of duty of care are too vague to point to any recognizable cause of action.

[11] The Statement is 37 pages and contains 195 paragraphs. The plaintiff pleads that the defendant was retained as counsel on a Legal Aid Certificate and represented him from December 18, 2019, until the summer of 2020 for the purposes of obtaining an order varying custody and child support as well as a restraining order against his spouse. The Statement is organized starting with a one-page summary of damages being sought for each cause of action followed by a 30 page chronology of the plaintiff’s family litigation. Littered within these 30 pages are multiple factual references to the defendant’s alleged failures in representing the plaintiff. The thrust of the plaintiff’s claims is that the defendant:

a. failed to properly advise the plaintiff on various legal issues such as the rights and requirements of a restraining order between the mother and his daughters; b. made misrepresentations on certain legal issues such as treatment of child support arrears; c. failed to rely on information the plaintiff provided in the pleadings and arguments before the court such as the conduct of the plaintiff’s spouse and her abuse of his children; d. failed to recognize the plaintiff’s health issues and the need to assist him in the preparation of his affidavit, and then later, when the defendant did assist in preparing an affidavit, deleted entire paragraphs or failed to make changes leaving the plaintiff with a deficient nine sentence affidavit; e. did not take proper notes of information provided during an interview; f. failed to maintain contact with the plaintiff and follow through on steps promised; g. stalled the plaintiff’s claim through the family courts; h. oscillated between representing the plaintiff and not representing him; and i. failed to advance the plaintiff’s legal issues in court.

[12] The plaintiff pleads that the defendant’s conduct caused a further decline in his mental health and resulted in injuries to his children who are now in the care and custody of his spouse. In the final six pages of the Statement in a section entitled “Liability of the Defendants” the plaintiff reviews the various causes of action. Below I review each cause of action and whether the plaintiff has adequately pled the elements and material facts in support of them.

i. Negligence and Negligent Misrepresentation

[13] In the section entitled “Liability of the Defendants” the plaintiff pleads the torts of negligence and negligent misrepresentation together.

[14] To establish negligence, the plaintiff must demonstrate (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach: Levac v James, 2023 ONCA 73 citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3.

[15] The elements that must be pleaded in a claim of negligent misrepresentation were recently summarized in Tataryn at para 30, citing Justice Mesbur in McCarthy Corporation PLC v KPMG LLP, at paras 41–42 as follows:

[41] A claim for negligent misrepresentation must plead the requisite facts to make out the essential elements of the claim, namely:

(a) The defendant must owe the plaintiff a duty of care based on a ‘special relationship’ between them; (b) the defendant must have made an untrue, inaccurate or misleading misrepresentation; (c) the defendant acted negligently in making the representation; (d) the plaintiff relied, in a reasonable manner, on the representation; and (e) the plaintiff suffered some detriment as a direct result of relying on the representation;

[42] In addition to these essential elements, the plaintiff must plead specific facts to identify the following in relation to each negligent misrepresentation:

(a) the alleged misrepresentation itself; (b) when, where, how, by whom and to whom it was made; (c) how it was false; (d) the inducement; (e) the defendant's intention that the plaintiff should rely on it; (f) how the plaintiff altered its position by relying on the representation; and (g) the plaintiff's loss or damage as a result.

[16] The defendant does not specifically address negligence in its factum.

[17] The Statement pleads that the defendant owed the plaintiff a duty of care by virtue of their solicitor-client relationship. The plaintiff makes bold assertions that the duty of care was breached by the failure of the defendant one, to bring certain matters to the attention of the court; two, to provide adequate legal advice; three, to take direction from third parties; four, to communicate to the plaintiff about legal rights and procedural steps; and five, to prepare and complete proper paperwork. Furthermore, the plaintiff also identifies specific representations made by the defendant to him in the course of the legal proceedings.

[18] There are shortcomings in the manner in which the pleadings on these two causes of action are presented. For example, the plaintiff refers to false representations, but does not necessarily clearly articulate why these representations are false. In other instances, the plaintiff claims he provided the defendant information which he failed to rely on but does not elaborate precisely how. I find, however, that these shortcomings can be addressed through redrafting because many of the material facts related to the specific elements are scattered throughout the pleadings.

[19] The pleadings disclose reasonable causes of action for both negligence and negligent misrepresentation, and consequently, the plaintiff should be given an opportunity to amend his claim with respect to both these causes of action. If amended, the Statement should be revised to contain a clear statement of the requisite elements for each tort along with the concise material facts in support of the elements to follow.

ii. Breach of fiduciary duty

[20] The elements of a claim for breach of fiduciary duty requires that the plaintiff plead the following material facts: (a) the nature or source of the fiduciary relationship; (b) the extent and content of the duty owed by the fiduciary to the beneficiary; (c) the specific breach of duty; (d) the specific ways in which the Defendant put his own interest ahead of that of the Plaintiff, and (e) the appropriate remedy: Tataryn at para 24.

[21] While a solicitor-client relationship can be described as a fiduciary relationship, not all duties of a solicitor are fiduciary duties: Morrison at para 27. Furthermore, an allegation of breach of fiduciary duty carries with it an element of dishonesty and therefore, where such is alleged, the pleading must contain full particulars of the breach: Morrison at para 27.

[22] In the portion of the Statement alleging a breach of fiduciary duty, the plaintiff provides a list of the defendant’s failures, i.e. failing to inform him of the steps in the case, failing to provide competent legal advice, or bullying him out of his family law claims, but does not particularize how each occurred, how the defendant put his own interests ahead of the plaintiff’s interest, and the appropriate remedy. While there are references in other parts of the pleadings to shortcomings in the defendant’s conduct, the claim is not adequately particularized.

[23] Given the requirement for clear particulars in cases where breach of fiduciary duty is pled, I find the pleadings related to this cause of action should be struck, but with leave to amend.

iii. Breach of contract

[24] Justice Perell set out the elements that must be pled for breach of contract in Fasteners & Fittings Inc. v Wang, 2020 ONSC 1649, at para. 91:

[91] A claim for breach of contract must contain sufficient particulars to identify: (a) the nature of the contract; (b) the parties to the contract; (c) the facts supporting privity of contract between the plaintiff and defendant; (d) the relevant terms of the contract; (e) which term or terms were breached; and (f) the damages that flow from the breach.

[25] This portion of the pleadings alleging breach of contract contains a list of the defendant’s alleged failures. It does not particularize the elements or the material facts in support. Having failed to identify what the defendant was required to do as per the terms of the retainer, it is impossible to discern if the defendant did or did not do these things as required or what damages flowed from the breach. However, the plaintiff does plead that there was a retainer between him and the defendant, that the terms of the retainer were breached, and that damages resulted. I find the pleadings in relation to this cause of action should be struck but with leave to amend.

iv. Breach of duty of care

[26] The plaintiff alleges a breach of duty of care but does not identify the elements of this particular cause of action or the material facts in support. It is unclear if this breach of duty of care is one and the same as the claim for breach of fiduciary duty. I find the pleading for breach of duty of care is too vague to constitute a reasonable cause of action and should be struck without leave to amend.

v. Breach of trust

[27] The plaintiff alleges a breach of trust, but it is unclear what is meant by this term. The plaintiff does not identify the elements of this particular cause of action, and if one exists, what precisely the trust relationship was. I find this pleading too vague to constitute a reasonable cause of action and should be struck without leave to amend.

vi. Breach of confidence

[28] As stated in Lysko v Braley, at para. 17, to establish a claim for breach of confidence, the plaintiff must proof the following three elements:

(1) that the information conveyed was confidential, (2) that the information was conveyed in confidence, and (3) that the confidential information was misused by the party to whom it was communicated to the detriment of the confider.

[29] While the plaintiff lists this cause of action at the outset of his Statement and seeks damages in the amount of $500,000, he neither addresses the elements nor the particulars for this claim anywhere else in the Statement. He does not address this cause of action in the section entitled “Liability of the Defendants” nor does he refer to any material facts in support of this cause of action. Given the entire solicitor-client relationship is governed by confidentiality, it is incumbent upon the plaintiff to identify what, if any, confidential information conveyed by him was conveyed and misused by the defendant and how it was to his detriment. I find the pleadings do not disclose a reasonable cause of action for breach of confidence and should be struck without leave to amend.

vii. Nervous shock or Intentional infliction of mental distress

[30] The plaintiff states at the outset of his Statement that he seeks damages for negligent infliction of mental distress in the amount of $1,000,000. He does not specifically address the elements of this tort but pleads that he suffered nervous shock as a consequence of the defendant’s actions. Even assuming that the defendant is referring to the tort of intentional infliction of mental distress when referring to nervous shock, I do not find that he has sufficiently pled the elements for this tort or the materials facts in support of it.

[31] In High Parklane Consulting Inc. v Royal Group Technologies Limited at para 31, Justice Perell explained that the tort of intentional infliction of mental distress or shock has three elements: (1) an act or statement by the defendant that is extreme, flagrant, or outrageous; (2) the act or statement is calculated to produce harm; and (3) the act or statement causes harm.

[32] In this case, the plaintiff alleges that he suffered repeated anxiety, panic attacks, and depression during the 5 ½ months the defendant was representing him. However, he fails to particularize what act or statement the defendant engaged in to cause this, that it was calculated to produce the harm described, or that it resulted in the harm described. I find the pleading does not disclose a reasonable cause of action for intentional infliction of mental distress and should be struck without leave to amend.

viii. Malice or bad faith and malpractice

[33] The plaintiff claims at the outset of his Statement that he seeks damages in the amount of $500,000 for “malice and bad faith” but does not set out the elements of any such tort nor does he plead any material facts in support. He similarly claims damages for “malpractice” but does not address the elements of this tort or material facts to support it. I find the plaintiff has not identified any reasonable causes of action related to malice, bad faith, or malpractice and these portions of the pleadings should be struck without leave to amend.

[34] To summarize, I find the claims of negligence, negligent misrepresentation, breach of contract, and breach of fiduciary duty should be struck with leave to amend. However, I find the pleadings with respect to the remaining claims - breach of trust, breach of confidence, intentional infliction of mental distress, malice, bad faith, and malpractice - should be struck, without leave to amend because the pleadings in relation to these causes of action are seriously deficient and moreover, based on the information set out in the Statement, are not likely to succeed.

Issue 2: Should the plaintiff’s claim be struck in its entirety?

[35] The defendant seeks to strike out the Statement in its entirety on the grounds that it constitutes a scandalous, frivolous, or vexatious claim: r. 25.11. In short, the defendant argues that the accumulation of deficiencies amounts to a meritless claim that cannot be repaired.

[36] As already noted, dismissal of a claim in its entirety is reserved for only rare cases where the court is satisfied that the action is entirely without merit: York Condominium at para 29; Tataryn at para 70. Such is not the case here. The Statement does refer to material facts which, if re-organized and re-drafted, support the elements of at least some causes of actions.

[37] It is not the court’s role to re-draft the pleadings for the plaintiff or to identify every deficiency. The plaintiff is responsible for redrafting the Statement so that it conforms with the rules governing the proper drafting of pleadings, references the elements of the causes of actions, and particularizes the material facts in support of those elements for each cause of action without pleading evidence or being inflammatory: Tataryn at para 70.

[38] There will be an order that the plaintiff will file an amended Statement within 60 days.

Issue 3: Should there be an order for security of costs?

[39] If the court grants the plaintiff leave to amend, the defendant seeks an order for security of costs pursuant to r. 56.01(1)(c) and (e). These provisions read as follows:

Rule 56.01(1) provides:

56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,

(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part; (e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or

[40] The defendant argues that there is an order for costs against the plaintiff by Justice Robert Smith in another similar proceeding Massey v Gowling WLG, Court file #CV-17-00073919-000, and these costs orders have not been satisfied. There is also a motion for security of costs pending in that action. The plaintiff has brought similar lawsuits against lawyers at Langevin Morris et al. and David Howard et al. In each of these claims, the plaintiff seeks damages upwards of $6 million.

[41] In addition, the defendant argues that the plaintiff has pleaded that he is presently on ODSP which suggests that he would have insufficient assets in Ontario to pay the defendants costs should the plaintiff be unsuccessful in this lawsuit. The defendant argues that he should not be forced to run up large legal bills as a result of the plaintiff’s predilection for litigation against lawyers who have represented him without some means of protecting themselves against such expense.

[42] In the seminal decision of Yaiguaje v Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, the Ontario Court of Appeal stated that in deciding motions for security for costs, judges are obliged to first consider the specific provisions of the Rules governing those motions. Next, judges are instructed to take a step back and consider the justness of the order sought in all the circumstances of the case, with the interests of justice at the forefront: Yaiguaje at paras 22 and 25. The overarching objective to be applied in all the circumstances is the justness of the order sought: Yaiguaje at para 19. Even where the requirements of the rule have been met, the court has discretion to refuse to make the order. Ravenda Homes Ltd. v 1372708 Ontario Inc., 2017 ONCA 556 at para 5.

[43] Upon review of the affidavit of Jody Hollohan, I am satisfied that the plaintiff has two cost awards issued against him by Justice Robert Smith in February 2019 and January 2022 totaling $7,000 both of which remain unpaid. I find the conditions of r. 56.01(e) have been met.

[44] The plaintiff did not respond to the motion to satisfy the court why an order for security of costs would be unjust in these circumstances. The costs of the action to date are just over $15,000, and the costs up to the completion of trial are estimated to be an additional $72,000. Upon consideration of the case as a whole and in the absence of any evidence from the defendant on this motion, I find that it is just in the circumstances to order security of costs.

[45] The court has broad discretion to determine a fair and reasonable amount of security which is substantially similar to the exercise of its discretion in fixing costs: Surefire Dividend Capture, LP v National Liability & Fire Insurance Company, 2022 ONSC 5516 at para 24; Canadian Metal Buildings Inc. v 1467344 Ontario Limited, 2019 ONSC 566, at para 27. Taking into consideration that the plaintiff is on ODSP and of limited means, I find that security of costs to be posted in the amount of $10,000 is fair and reasonable in the circumstances of this case.

[46] The plaintiff will post security in the amount of $10,000 within 60 days.

Costs of the Motion

[47] The defendant seeks full indemnity costs for the motion in the amount of $6,301.09 and additionally costs of the action to date in the amount of $8,933.93.

[48] The defendant is the successful party on this motion and presumptively entitled to costs.

[49] Courts have broad discretion to determine to whom costs should be paid and the quantum: s. 131(1) Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, as am. In exercising their discretion, judges may consider the factors set out in r. 57.01(1). These factors include: the experience of counsel and rates charged; ability to pay of unsuccessful party; amounts claimed and amount recovered; apportionment of liability; importance of issues and complexity of the proceedings; and the conduct of the parties.

[50] As a general rule, costs on a partial indemnity scale should follow the event and should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure, or oppressive or vexatious conduct: 1318706 Ontario Ltd. v Niagara (Regional Municipality) (2005), 75 O.R. (3d) 405 (C.A.) at para 51; 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10-14.

[51] In this case, the plaintiff failed to respond to the motion or to counsel’s queries regarding attendance at the motion hearing and this constitutes conduct that should be appropriately sanctioned in a costs award: 394 Lakeshore Oakville Holdings at para 10. In addition, while the issue on the motion was not complex, the unsupported allegations in the Statement for several causes of action justifies an elevated costs award: Murray v Lesk, 2011 ONSC 1144 at para 10.

[52] The defendant filed a bill of costs. Legal fees for the motion totaled $5,952 for 16.6 hours of work by lead counsel and associates. I find the billings are commensurate with the work required to be completed for the motion. The hourly rate charged of $350 is more than reasonable given lead counsel’s 33 years of experience.

[53] The plaintiff’s Statement suggests he is of limited financial means.

[54] In determining quantum, the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances rather than the amount of actual costs incurred by the successful party. Rule 57.01 (1) (0.b); see also Boucher v Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291 (C.A.) at para 38; Deonath v Iqbal, 2017 ONSC 3672 at para. 21.

[55] Considering all the relevant factors including the defendant’s success on the motion, its complexity, the plaintiff’s conduct, the time and rates charged to prepare for the motion, and the plaintiff’s ability to pay, I find that a costs award on a substantial indemnity basis consisting of fees, HST, and disbursements in the fixed amount of $5,000 is fair and reasonable.

[56] Given I have not ordered the action to be struck in its entirety, I find it is premature to make a finding for costs of the action. Those costs should be addressed upon final disposition.

Somji J. Released: May 01, 2023