Court File and Parties

COURT FILE NO.: CV-22-00685302 DATE: 20230725

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SEPIDEH MOAZZANI and ALI MOGHTADAEI Plaintiffs – and – AYNAZ EBRAHIMI, SOLMAZ EBRAHIMI, HASTI JAHANGIR, TALIEH KENTROS, BAHAR MATIN, FARHAD GHODRAT, (a.k.a. FRED GHODRAT), SAEED ROUDEHCHI GHIAS, KIAN KERMANI, PANIZ KERMANI, AKRAM TORKASHVAND, MARYAM TEHRANIAN, ELHAM GHADERIA, SHAKILA HESSARI, ASHLEY KADRI, NAZEM KADRI, AMIR OWLIAEI, GOLNAZ GOUDARZI and TAMINA EAPON Defendants

Counsel: No One Appeared for the Plaintiffs William McDowell and Derek Knoke, for the Defendant Tamina Eapen, wrongly named as Tamina Eapon

READ: July 24, 2023 Papageorgiou J.

Overview

[1] The Plaintiffs issued a Statement of Claim on August 10, 2022 against all of these defendants claiming that they launched a “vicious internet defamation campaign” together with two individuals who are not defendants, Michelle and Jeffrey Berk (the “Berks”).

[2] The Plaintiffs have sued the Berks in a separate legal proceeding.

[3] The Defendant Tamina Eapen, who is incorrectly named in the style of cause as “Tamina Eapon” says that there is no reasonable cause of action asserted against her. Ms. Eapen also asserts that the action is frivolous, vexatious and an abuse of the court’s process.

[4] She has brought a motion in writing to strike out the claim on notice to the Plaintiffs. She brought it in writing because in person motion dates were not available until December 2023. Motions in writing may provide a useful way of addressing the current backlog where appropriate.

[5] Ms. Eapen served her motion on March 10, 2023. The Plaintiffs did not file any responding materials or file any materials indicating that they objected to this motion being heard in writing.

[6] In my view, this is appropriately dealt with as a written motion.

Decision

[7] For the reasons that follow, I agree that there is no reasonable cause of action asserted against Ms. Eapen. I am granting the Plaintiffs leave to amend, with the proviso that Ms. Eapen may bring a subsequent motion to dismiss the Amended Statement of Claim if she is of the view that this Amended Statement of Claim also fails to disclose a reasonable cause of action. I am seized of this motion and it may be brought in writing.

[8] I am adjourning the motion to dismiss the Plaintiffs’ claim as frivolous, vexatious and an abuse of the Court’s process until after the Amended Statement of Claim is delivered. I am also seized of this motion and it may be brought in writing twenty days after the Amended Statement of Claim is delivered. Ms. Eapen shall serve a Notice of Return of Motion if this motion is still required.

Issues

[9] The issues before me are: 1) Is it plain and obvious that this Statement of Claim discloses no reasonable cause of action?; 2) Is the Claim frivolous, vexatious and an abuse of process?; and 3) What are the costs to which Ms. Eapen is entitled?

Issue 1: Is it plain and obvious that this Statement of Claim discloses no reasonable cause of action?

Analysis

[10] In order to address this issue, I will review the general principles for striking out a Statement of Claim, the specific rules of pleading in respect of the torts of civil conspiracy and defamation, and then consider whether the Statement of Claim sets out a reasonable cause of action and complies with the rules of pleading.

Rule 21.01(1)(b)

[11] Under Rule 21.01(1)(b) of the Rules of Civil Procedure, a party may move to strike out a pleading on the ground that it does not disclose a cause of action. On such a motion, the following principles apply:

a. All allegations of fact, unless plainly ridiculous or incapable of proof, must be accepted as proven;

b. The defendant, in order to succeed, must show that it is plain and obvious and beyond doubt that the plaintiff could not succeed in the claim;

c. The novelty of the action will not militate against the plaintiff;

d. The Statement of Claim must be read as generously as possible with a view to accommodating any inadequacies in the allegations due to drafting deficiencies. Jacobson v. Skurka, 2015 ONSC 1699, 125 O.R. (3d) 279, at para. 73; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at pp. 972-973; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 9.

e. A claim will be found legally insufficient when its allegations “do not give rise to a recognized cause of action or it fails to plead the necessary elements of an otherwise recognized cause of action…[A] plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for [the defendant] to reply should be struck”: Aristocrat Restaurants Ltd. v. Ontario, 2003 CarswellOnt 5574, at paras. 18-19.

[12] Leave to amend will only be denied in the clearest of cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment: Mitchell v. Lewis, 2016 ONCA 903, 134 O.R. (3d) 524, at para. 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 16; Adelaide Capital Corp. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.

Specific rules of pleading for the torts of defamation and conspiracy

[13] The tort of defamation has the following three elements:

a) The defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

b) The words refer to the plaintiff; and

c) The words were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp, 2009 SCC 61 at para 28.

[14] The tort of conspiracy requires a plaintiff to prove that the defendants agreed to act in concert or with a common design to carry out the underlying tort which in this case is defamation: Hunt v. Carey, [1990] 2 S.C.R. 959 at para 44.

[15] Civil conspiracy must be pleaded with precision and clarity in respect of each of the elements: Ontario Consumers Home Services v Enercare Inc., 2014 ONSC 4154 at para 24.

[16] A plaintiff must plead material facts about: a) the parties to the conspiracy and their relationship to each other; b) the agreement between the parties to the conspiracy including particulars about the time, place and mode of agreement; c) the precise purpose or object of the conspiracy; d) the overt acts alleged to have been done by each of the conspirators including the time, place and nature of the acts; and e) the injury and damage caused to the plaintiff: Enercare at para 24.

[17] A plaintiff cannot “lump some or all of the defendants together into a general allegation that they conspired”: Enercare at para 26.

[18] Although the modern, flexible approach to pleadings in a defamation action does not require full particulars, the Statement of Claim should still set out particulars of the defamatory statement, its defamatory meaning, the time and place of publication, the speaker, and the recipients of the statement: PMC York Properties Inc., v. Siudak, 2022 ONCA 635 at para 38, 42-44. The plaintiff must plead the gist of the defamatory words, and the defendant should know the case they have to meet: PMC York at paras 42-44.

The Statement of Claim

[19] The Statement of Claim does not comply with the above rules and does not set out any particulars of the case which Ms. Eapen must meet.

[20] There is a one paragraph pleading against all of the defendants for conspiracy to defame which conspiracy they are alleged to have participated in with the Berks as follows:

All of the Defendants in this claim participated in the Berk’s Defamation Campaign by providing the Berks with defamatory content, [by] publishing defamatory statements referring to the Plaintiff and by publicly commenting approvingly about the defamatory attacks published by the Berks. The participation of the Defendants in the Berks’ Defamation Campaign, described in detail below, caused and greatly increased the reputational harm suffered by the Plaintiffs.

[21] The remainder of the Statement of Claim sets out words and expressions which the Plaintiffs say were in furtherance of the alleged conspiracy to defame. Most of these were published by the Berks. The Plaintiffs have not attributed any of these words or expressions to Ms. Eapen.

[22] Further, the only place Ms. Eapen’s name appears besides the Style of Cause is paragraph 23 which states:

The Defendant, Tamina Eapon (“Eapon”) is a psychologist and an individual resident in the Province of Ontario.

[23] There are no material facts pleaded against Ms. Eapen at all.

[24] I am satisfied that it is plain and obvious that there is no reasonable cause of action pleaded as against Ms. Eapen.

[25] Therefore I am striking out the Statement of Claim as against Ms. Eapen but with leave to amend in accordance with binding appellate authority. Although the Plaintiffs requested that leave be denied, I am not satisfied that this is an appropriate case to deny leave. The Plaintiffs are self-represented. They may not understand the rules of pleading; there is no reason to suppose that they may not be able to improve this Claim with amendments.

Issue 2: Is the Claim frivolous, vexatious and an abuse of process?

[26] The motion to strike the claim as being frivolous, vexatious and an abuse of process is based upon: a) the absence of particulars regarding Ms. Eapen; and b) the fact that the Plaintiffs have commenced a separate action against the Berks, thus having brought multiple proceedings in respect of the same issue. Ms. Eapen says that this action is a fishing expedition.

[27] At this stage, prior to the amendment of the pleading, it is premature to make the finding requested. The Plaintiffs are self-represented and, as noted above, may not understand the rules of pleading. Even though the claims against Ms. Eapen should have been brought in the action against the Berks, if the Amended Statement of Claim otherwise complies with the rules of pleading and sets out a reasonable cause of action, it may be that the defect in respect of this claim being brought in a separate action can be remedied by consolidating the proceeding with the action against the Berks.

[28] In that regard, r. 2.01 of the Rules of Civil Procedure sets out that a failure to comply with the rules is an irregularity and the court may grant all necessary amendments or other relief on such terms as are just to secure the just determination of the real matters in dispute.

Issue 3: What are the costs to which Ms. Eapen is entitled?

[29] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court. Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (C.A.)., at para. 4; Boucher v. Public Accountants for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26; Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52; G.C. v. Ontario (Attorney General), 2014 ONSC 1191.

[30] Ms. Eapen claims costs in the amount of $9,802.52 on a partial indemnity basis or $15,003.80 on a substantial indemnity basis together with $1,024.91 in disbursements. She has provided full particulars.

[31] There is no basis for a costs award on a substantial indemnity basis.

[32] However, I am satisfied that the quantum claimed in respect of partial indemnity costs for a total of $10,827.43 is fair and reasonable and within the reasonable contemplation of the Plaintiffs. I am satisfied that the rates and hours billed are fair and reasonable.

Conclusion

[33] Therefore, the claim against Ms. Eapen is struck out with leave to amend. The Amended Statement of Claim shall be served on Ms. Eapen within 20 days with costs in the amount of $10,827.43 payable by the Plaintiffs within 30 days.

[34] Ms. Eapen may forward an Order for my execution. Approval as to form and content by the Plaintiffs and other Defendants is dispensed with.

Justice Papageorgiou Released: July 25, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SEPIDEH MOAZZANI and ALI MOGHTADAEI Plaintiffs – and – AYNAZ EBRAHIMI, SOLMAZ EBRAHIMI, HASTI JAHANGIR, TALIEH KENTROS, BAHAR MATIN, FARHAD GHODRAT, (a.k.a. FRED GHODRAT), SAEED ROUDEHCHI GHIAS, KIAN KERMANI, PANIZ KERMANI, AKRAM TORKASHVAND, MARYAM TEHRANIAN, ELHAM GHADERIA, SHAKILA HESSARI, ASHLEY KADRI, NAZEM KADRI, AMIR OWLIAEI, GOLNAZ GOUDARZI and TAMINA EAPON Defendants

REASONS FOR JUDGMENT Papageorgiou J. Released: July 25, 2023