Court File and Parties

COURT FILE NO.: CV-18-00601387-0000/CV-22-006843491-0000

DATE: 20230830

ONTARIO SUPERIOR COURT OF JUSTICE

RE: LESLIE ARTHUR SWAN Plaintiff

-and-

HIS MAJESTY THE KING IN RIGHT OF ONTARIO, as represented by the MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, THE FIREARMS SAFETY EDUCATION SERVICE OF ONTARIO and THE CHIEF FIREARMS OFFICE OF ONTARIO Defendants

LESLIE ARTHUR SWAN Plaintiff

-and-

FIREARMS SAFETY EDUCATION SERVICE OF ONTARIO, CINDY BALDREE, DOUG MARSHALL, DON BELL, BRYAN MARTIN, JANE DOE, JOHN DOE, ABC CORPORATION and XYZ CORPORATION Defendants

BEFORE: Justice Shin Doi

COUNSEL: Francis Marinic, for the Plaintiff Brendan Haynes and Michael Saad, for the defendant His Majesty the King in Right of Ontario Chris Afonso and Noah Eklove, for the defendants Firearms Safety Education Service of Ontario, Cindy Baldree, Doug Marshall, and Don Bell

HEARD: June 1, 2023

ENDORSEMENT

[1] The Plaintiff, Leslie Arthur Swan, commenced two actions, CV-18-00601387 (the “2018 Action”) and CV-22-00683491 (the “2022 Action”), which contain overlapping allegations based on the same underlying events. The Plaintiff commenced the 2018 Action against the Firearms Safety Education Service of Ontario (“FSESO”) and certain individuals (all collectively, the “FSESO Defendants”). The Plaintiff commenced the 2022 Action against the defendant His Majesty the King in Right of Ontario as well as the FSESO.

[2] The FSESO Defendants and the defendant His Majesty the King in Right of Ontario (collectively, the “Defendants”) brought motions to strike or stay certain claims.

[3] The Defendants argue that the 2022 Action was mostly duplicative of the 2018 Action. The Defendants also argue that there were procedural issues with the 2022 Action including lack of statutory notice pursuant to the Crown Liability and Proceedings Act, S.O. 2019, c. 7, s. 18(6), and that the 2022 Action was statute-barred for expiry of the limitation period pursuant to s. 4 of the Limitations Act, S.O. 2002, c. 24.

[4] Accordingly, near the end of the hearing of the motion, the Defendants proposed that the 2022 Action be struck or stayed and leave be granted to the Plaintiff to amend the Fresh as Amended Statement of Claim in the 2018 Action to incorporate the claims set out in the 2022 Action. The Defendants’ proposal was reasonable to move the parties forward. Therefore, I struck the 2022 Action, ordered the Plaintiff to amend the Fresh as Amended Statement of Claim in the 2108 Action within 30 days, and ordered the Defendants to file a Statement of Defence within 30 days.

[5] In setting out these reasons, I note that the 2022 Action should be struck as against the defendant His Majesty the King in Right of Ontario and that the claims in the 2022 Action involving the 2017 and 2018 incidents that are statute-barred by the limitation period in the 2022 Action should be struck as against the FSESO Defendants. The remaining claims in the 2022 Action involving the 2021 incidents should be stayed as against the FSESO Defendants for abuse of process.

[6] The following are my reasons.

Background Facts

[7] The Plaintiff was a licensed firearms instructor with the FSESO. The Chief Firearms Officer (“CFO”) suspended the Plaintiff’s license after one of the Plaintiff’s courses was audited by representatives of FSESO. The CFO informed the Plaintiff that the Plaintiff was suspended from teaching the Canadian Firearms Safety Course and the Canadian Restricted Firearms Course because there was a demonstration of unsafe muzzle control and waving a shotgun at the attendees. The Plaintiff was also accused of knowingly of submitting false documents to FSESO. The Plaintiff was de-designated and had a misconduct hearing in January 2018. The CFO reinstated the Plaintiff’s license and lifted the suspension but concluded that some of the allegations were substantiated or partially substantiated. The CFO imposed remedial measures including additional training hours and mandatory course audits. The Plaintiff’s member status was subsequently administratively suspended in July 2021 for failing to act in accordance with FSESO policies and procedures. The Plaintiff continued to teach the course even thought he was not permitted to do so. On August 31, 2021, the CFO informed the Plaintiff that his designation to instruct and examine had been rescinded because of his continued teaching while under administrative suspension.

[8] In the 2018 Action, the Plaintiff alleges there were clandestine audits involving fraudulent misrepresentation, inducing breach of contract, and intentional interference with economic relations. The Plaintiff further alleges defamation and negligence. The Plaintiff pleads that he lost business revenue and income from the course and suffered damages and devaluation of his reputation.

[9] In the 2022 Action, the Plaintiff alleges conspiracy to injure and defamation. The Plaintiff cites the same audit by the FSESO representatives referenced in the 2018 Action. The Plaintiff alleges the same defamatory conduct in the 2018 Action leading to loss of reputation. The Plaintiff also alleges defamation following de-designation in 2021. The Plaintiff further alleges conspiratorial conduct following his inquiries into allegations of financial mismanagement by FSESO. The Plaintiff then argues that the administrative suspension is non-binding and complains about the de-designation by the CFO.

[10] Notably, the Plaintiff had retained two lawyers, one after the other, for his 2018 Action and then they were each removed. The Plaintiff then retained his current lawyer for the 2018 Action and 2022 Action.

Duplicative Claims and Abuse of Process of the Court

[11] It is clear from a review of the pleadings that the 2022 Action is significantly duplicative of the 2018 Action. The Fresh as Amended Statement of Claim of the 2018 Action includes allegations of fraudulent representations, defamation, conspiracy, and negligence arising from the same underlying events referenced in the Statement of Claim of the 2022 Action, namely those relating to the audit and suspension and revocation of the Plaintiff’s license. The Defendants are correct that the only substantial difference between the two actions is that the Plaintiff added new allegations of an alleged second conspiracy and defamation in respect of his license in the 2022 Action.

[12] The Defendants also argued that it would be an abuse of process if there were two sets of discoveries, two sets of productions, and two trials. Significant time and legal costs may be wasted to defend two proceedings.

[13] Rule 21.01(3)(c) and (d) of the Rules of Civil Procedure provide as follows:

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01(3).

[14] Pursuant to Rule 21.01(3)(c) and (d) and Birdseye Security Inc. v. Milocevic, 2020 ONCA 355, the duplicative claims in the 2022 Action should be stayed. The remaining claims in the 2022 Action should also be stayed as an abuse of the process of the court. However, due to procedural issues with the 2022 Action as discussed below, certain claims in the 2022 Action are struck instead of stayed.

No Notice to the Crown

[15] The Plaintiff did not give proper notice of the claim to the defendant His Majesty the King in Right of Ontario. Section 18(1) of the Crown Liability and Proceedings Act, 2019, SO 2019, c. 7, Sched 17 (“CLPA”) requires a plaintiff to provide at least 60 days’ notice before the commencement of an action against the Crown. The document must be served personally and the notice must include sufficient particulars.

[16] The 2022 Action was issued on July 4, 2022 and the Plaintiff did not provide the required notice of the action. The Plaintiff’s counsel submitted that she had logistical difficulties in locating the proper office in providing the notice and service. The Ontario Court of Appeal in Corrigan v. Ontario, 2023 ONCA 39 held that a claim is a nullity and can be struck and dismissed as against the Crown if proper notice is not given.

[17] Accordingly, the 2022 Action as against the defendant His Majesty the King in Right of Ontario should be struck.

Expiry of the Limitation Period

[18] Certain claims in the 2022 Action are also statute-barred because the limitation period has expired.

[19] The Limitations Act, 2002, s. 4 provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[20] The 2022 Action contains allegations of tortious conduct arising from events in 2017 and 2018. The Defendants argue that the latest that the Plaintiff could reasonably be expected to have discovered the claim is July 11, 2018 when the First Action was issued. It is appropriate to strike a claim where there is no question about the discoverability of a limitation period (Davidoff v. Sobeys Ontario, 2019 ONCA 685, Rousseau v. Scotia Mortgage Corporation et al., 2013 ONSC 677). The Defendants are correct that the discoverability of the claims are evidenced by the contents of the 2018 Action.

[21] The 2022 Action also contains allegations that are based on events in 2021. While I agree that the claims based on events in 2017 and 2018 are statute-barred by the limitation period, those claims based on the events in 2021 would not be statute-barred by the limitation period. But those claims would be stayed due to abuse of the process of the court as discussed above.

Proposal by the Defendants

[22] Near the conclusion of the hearing, the Defendants made a proposal to move the parties forward. The Defendants proposed that the 2022 Action be struck or stayed and leave be granted to the Plaintiff to amend the Statement of Claim in the 2018 Action to incorporate the claims in the 2022 Action. In my view, that proposal is reasonable because the parties are still at the pleadings stage and the steps will assist the parties to move forward efficiently. The proposal also does not prejudice any party.

[23] I accept the proposal because I disagree with the FSESO Defendants that there are grounds to strike the 2018 Action. I disagree that the 2018 Action fails to disclose a reasonable cause of action. The FSESO Defendants complain that the Fresh as Amended Statement of Claim in the 2018 Action was 106 pages and not a concise statement of the material facts. The FSESO Defendants cite Mudrick v. Mississauga Oakville Veterinary Emergency Professional Corp. [2008] O.J. No. 4512 (S.C.J.) for the proposition that repetition should be avoided and superfluous detail should be eliminated. The leave granted to the Plaintiff to amend the Statement of Claim in the 2018 Action gives the Plaintiff the opportunity to make the Statement of Claim more concise.

[24] The FSESO Defendants also argue that the defamation claims are reliant upon privileged statements. The FSESO Defendants further submitted that the causes of action including the claims for negligence, fraudulent and negligent misrepresentation, inducing breach of contract and interference with economic relations, conspiracy, unjust enrichment and deceit have no reasonable prospect of success. In my view, those are all triable issues. Hence, the claims in the Fresh as Amended Statement of Claim in the 2018 Action are not struck.

[25] I note that the Plaintiff proposed to merge the 2018 Action into the 2022 Action if leave to amend was granted to the Plaintiff. However, as discussed above, the 2022 Action faces procedural issues and must be struck or stayed.

[26] Lastly, I note that the Plaintiff complains that the Defendants have not filed Statements of Defence. The proposal by the Defendants require them to file Statements of Defence.

Outcome

[27] The 2022 Action is struck as against the defendant His Majesty the King in Right of Ontario. The claims in the 2022 Action that are statute-barred by the limitation period are also struck as against the FSESO Defendants. The remaining claims in the 2022 Action are stayed as against the FSESO Defendants. In accordance with the proposal by the Defendants, the Plaintiff is granted leave to amend the Fresh as Amended Statement of Claim in the 2018 Action to incorporate the struck or stayed claims from the 2022 Action. The Defendants shall then file their Statements of Defence once the amendments are made.

Costs

[28] The Plaintiff is ordered to pay costs on a partial indemnity basis in the sum of $22,890.00 to the defendant, His Majesty the King in Right of Ontario; and the sum of $14,121.96 to the FSESO Defendants. In awarding costs, I took into account the costs submissions made by the parties and the proposal made by the Defendants. I did not award any costs to the FSESO Defendants for their motion to strike the 2018 Action.

JUSTICE SHIN DOI

Date: August 30, 2023