Court File and Parties

COURT FILE NO.: CV-22-00000174-0000 DATE: 20230728

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ZUBIN HOOSHANGI Plaintiff – and – JASON EMILIO RUFFOLO and LIMESTONE PROPERTY MANAGEMENT (2453819 ONTARIO INC.) Defendants/Moving Parties

Counsel: Plaintiff, appearing in person Matthew E. Taft, for the Defendants/moving parties

HEARD: February 6, 2023

Carey J.

Reasons on Motion to Strike

[1] The Plaintiff Hooshangi was briefly employed by Limestone (controlled by Ruffolo) as a Condominium Manager of an address in Kingston in 2019 - 20. After he left this employment, he applied for certification as a condominium manager based on his hours of work experience with the Defendants. The Condominium Management Regulatory Authority (CMRAO) turned down his request for certification based on the input of his employer, the Defendants, that he had not worked the minimum amount of hours (3000) required for certification.

[2] The Plaintiff’s response was to issue a 45 paragraph Statement of Claim (30 pages) against the Defendants. It seeks a total of $800,000 in damages for defamation and “active fraudulent concealment” as well as $500,00 in punitive, aggravated and exemplary damages. The claim also seeks an order requiring the Defendants to file a retraction with the CMRAO. It also seeks an injunction regarding online postings and published content concerning the Plaintiff and injunction to prevent the Defendants from further “acts of defamation, slander and/or libel”.

[3] A subsequent Amended Claim, of equal length, issued without the Defendants’ consent, after the Defendants brought this motion, seeks a further $50,000 for “appropriation of a person’s name or likeness” and $50,000 for “publicity placing person in false light”. The Amended Claim also amends “active fraudulent concealment” to “fraudulent misrepresentation”. In addition, the amendments add the words “interlocutory and permanent mandatory” to the orders sought. Finally, the amendments add to the request regarding online postings and published content, removal of content concerning the Plaintiff on the “Zoominfo.com platform”.

[4] The Defendants' Motion seeks to dismiss the claim pursuant to Rule 20.01(3) of the Rules of Civil Procedure as showing no cause of action, without leave to amend, as well as other relief in the alternative asserting that the action is frivolous and vexatious. They argue that the Amended Claim filed without consent or leave is a tacit admission of many of the deficiencies that are relied on by the Defendants.

[5] For the following reasons, I agree with the Defendants that the Claim and Amended Claim should be dismissed without leave to Amend. I have been mindful throughout that the Plaintiff is unassisted by counsel. I do note however that his pleadings are generally articulate, well organized and thorough.

[6] I will deal with the Defendants’ key arguments in order as set out in the Defendants’ Oral argument and Factum.

1. Fraudulent Concealment

[7] There is no cause of action known as fraudulent concealment. While fraudulent misrepresentation is a known cause of action and was pleaded to replace the impugned phrase in the disputed Amendment, there are no facts plead in the Claim that support that the Defendants fraudulently mislead the Plaintiff.

2. Defamation

[8] A claim for defamation must plead:

a. the particulars of the alleged defamatory words; b. publication of the defamatory words; c. to whom the words were published; and d. that the words were defamatory of the Plaintiff in their plain and ordinary way or by innuendo. See Welch v. Quast, 2021 ONSC 5083, paras 19-21 citing Veritas Investment Research Corp., 2017 ONCA 85, at paras 23-24.

[9] There are no words cited to support the allegation that the Plaintiff was defamed except “his total hours were 2200”. Nothing in the claim sets out how this is defamatory. It is clear the Plaintiff disagrees with the Defendants’ estimate of his total hours worked, and that it is below the hours that he claimed and needed for his certification. He alleges the hours submitted were false statements “maliciously” provided to the CMRAO. However, absent any further details in the very lengthy recitation of facts in the Claim, these words in their plain and ordinary meaning cannot amount to particulars of defamation.

[10] Further, the Plaintiff does not claim that the Defendants published these words, but that they appear in a publication of the CMRAO, and it is unclear for whom it was published besides the Plaintiff himself.

[11] Similarly, there are no particulars of the words used or how they were defamatory, in the alleged “insidiously defamatory” email to members of the “FCC7 Board” at paragraph 11(o) of the statement of claim. These particulars are also glaringly absent from the allegation at paragraph 11(q) that “Mr. Ruffalo repeatedly denigrated him”.

[12] The allegations at paragraph 30 and 37 of the Claim are likewise a barebones repetition of the Defendant Ruffalo’s reporting to the CMRAO of the Plaintiff’s 2200 total hours worked as “knowingly and maliciously” provided, without further explanation of how that is defamatory.

3. Injunctions

[13] Canadian law is clear that the granting of injunctive relief in defamation lawsuits should be rarely used and be restricted to the clearest cases. As I concluded above that the defamation alleged was not supported by particulars or that the Defendants themselves published the alleged defamatory words, it follows that that the injunctive relief claim must also be dismissed. I note as well, that the Defendants argue that as a request for injunctive relief is a bar to the Defendants’ filing a Jury notice under s. 108 of the Courts of Justice Act, that this offers further support for the dismissal of the injunctive relief claim.

No Other Causes of Action Pleaded

[14] As pointed out by the Defendants, there is no suggestion in the pleadings of negligence, violation of a statute nor a constructive dismissal claim.

[15] The Plaintiff alleges a written employment contract with Limestone only, and it follows that Mr. Ruffolo cannot be held liable for any alleged breach. The contract spelled out an expectation that he works “8 hours a day, anytime between 8 a.m. and 5 p.m. with flexibility during after-hours and on weekends, in case of emergency issues”. He further asserts that the contract contained an “unconscionable non-complete clause”. However, there is nothing to explain why it was so offending to the conscious, nor is there any damage alleged to have flowed from the clause.

[16] To support his contention that he worked 3090 hours for the Defendants between September 3, 2019, and February 19, 2020, the Plaintiff relies in his Claim (para. 10h) on “Limestone’s disturbingly troubled state” that required his “intensely working on average 18 to 21 hours and sometimes more per day”. While he pleads these hours were “meticulously and contemporaneously documented”, there are no details plead, and the Defendants set out in their brief his refusal to produce these documents, in response to their request to inspect.

[17] Even if I accept the Plaintiff’s hours of work claimed, to be true for the purpose of this motion, there is no claim that the Defendants required him to work 18 to 21 hours per day, seven days a week thus breaching the contract of employment. He simply alleges that he was required to be accessible and on call “24/7” and he “took it on as a challenge”, “confronting all the tasks and duties head on.” The employment contract hours of work as set out, do not strike me as either unusual or unreasonable for a residential condominium manager.

[18] It is important to pause in this analysis to note that this entire litigation was instituted by the Plaintiff only after the CMRAO denied the Plaintiff’s certification as a Condominium manager, because he had not satisfied the required 3000 hours of previous experience in his brief period of employment with the Defendants.

[19] There is no suggestion from the Plaintiff that he was unlawfully terminated. He states rather that he was hired on false pretenses as to the state of the company’s Condominium Management division and the reality was that “everything was in complete disarray” requiring the extra hours from the Plaintiff that, coincidently, in less than 26 weeks resulted in him working just over the required 3000 hours required for certification as a Condominium Manager. This was an average of 119 hours a week or about 17 hours a day 7 days a week. As noted before there has been a refusal by the Plaintiff to produce the meticulous documentation, he asserts supports his claim. I find the assertion of the hours worked by the Plaintiff are both beyond belief and not capable of being proven.

[20] He also claims to have suffered a relapse of an asthma condition because of the air quality and hazardous conditions in his workspace. The proper forum for any relief for this claim would be the WSIB.

Conclusion

[21] I find that at the heart of the Plaintiff’s Statement of Claim are untenable, and scandalous allegations made for a collateral purpose; that is for establishing a basis for his certification as a Condominium manager by the CMRAO. I also find that the Licensing Appeal Tribunal (LAT) where he initially filed an appeal of the CMRAO decision was the appropriate forum for him to dispute the CMRAO findings.

[22] I am satisfied on all the argument and caselaw presented by the Defendants and a thorough review of both the Plaintiff’s Statement of Claim and Amended Statement Claim that this is an appropriate case for striking both pleadings, without leave to amend, pursuant to the Rules of Civil Procedure, per the draft Judgment filed by the Defendants. Costs of the Motion to the Defendants fixed at $10,000 inclusive of disbursements payable forthwith.

Honourable Mr. Justice Thomas J. Carey

Released: July 28, 2023