COURT FILE NO.: CV-22-89835 DATE: 2023/02/01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE KINGDOM OF HEAVEN FOUND A SEAN (An Express Trust Organization) Plaintiff/Responding Party – and – TANJA JOHNSON, HALA TABL, and MICHAEL Von DEHN Defendants /Moving Party
Sean von Dehn, self-represented Susan Sack, counsel for the moving party, Hala Tabl
HEARD: November 3, 2022
HOOPER J.
[1] This is a motion brought pursuant to Rule 21 of the Rules of Civil Procedure R.R.O. 1990 Reg. 194, by the Defendant, Hala Tabl, to strike the Plaintiff’s Statement of Claim, without leave to amend, on the basis that it is deficient, an abuse of process, and has no chance of success.
[2] The litigation involves a dispute over the Estate of the late Joachim von Dehn (the “Deceased”) who died intestate on October 29, 2019. The Deceased is survived by three children – Sean von Dehn (who now refers to himself as King Sean), Tanja Johnson, and Michael von Dehn. The named plaintiff is “The Kingdom of Heaven Found a Sean,” which purports to be an “express trust organization” operated by King Sean. Within these reasons, the court will refer to King Sean by his legal name, Sean von Dehn.
[3] The moving party, Ms. Tabl, is a lawyer. She represented Tanja Johnson in relation to Ms. Johnson’s Application for a Certificate of Estate Trustee without a Will of the Estate of the Deceased (the “application”). Within that application, Ms. Johnson sought an order to dispense with the requirement to post a bond.
[4] Ms. Johnson’s application was initially brought before Justice Woodley in June 2020 during the suspension of court operations under COVID-19. Justice Woodley reviewed the application materials and the objection of Sean von Dehn, and made the following interim disposition:
- Having read the material filed, I am satisfied this matter requires the urgent attention of the Court to protect and preserve the assets for the intestate beneficiaries, namely, Tanja Johnson, Michael von Dehn, and Sean von Dehn (in equal parts).
- Given the urgency attached to the application, the Applicant may file her Notice of Application for Appointment as Estate Trustee without a Will, with the court, with the usual materials, and without the consent of the Respondent Sean von Dehn, which consent is dispensed with, pursuant to Section 29(1) and (2) of the Estates Act, which application shall be dealt with on an expedited basis.
- In the event the Respondent Sean von Dehn files the Notice of Objection as prepared by him with the Court, the within application shall return to any Justice of the Superior Court to determine whether the Notice of Objection should stand or be vacated and shall also consider whether an Estate Trustee During Litigation should be appointed on an urgent basis at that time.
- A copy of this Endorsement, together with a copy of the Application for Appointment of Estate Trustee Without a Will, shall be served on the Respondent Sean von Dehn by email.
[5] The application was thereafter refiled to be dealt with on an expedited basis and Sean von Dehn filed his objection.
[6] On May 6, 2022, Justice Castillo wrote the following endorsement:
Having reviewed the affidavit of Tanja Johnson sworn March 24, 2022, as well as the endorsement of Woodley J. dated June 4, 2020, and the Notice of Objection of King Sean, House of von Dehn, I am satisfied the Notice of Objection should be vacated. Given the value of the Estate, an Estate Trustee During Litigation is not warranted. Certificate may issue, and Order dispensing with bond has been executed.
[7] On August 24, 2022, the within statement of claim was issued. The claim is a long, rambling document; however, the paragraphs that relate to Ms. Tabl are reproduced below, exactly as stated within the claim:
[21] Sometime around May of 2020, Mike told Sean he was going to support an application by Tanja Johnson for a Certificate of Appointment of Estate Trustee over Joachim’s Estate.
[24] Sean agreed to support the application of Tanja Johnson under duress and on the condition that no legal fees be charged to the Estate, legal fees will be paid by Tanja Johnson.
[25] Tanja Johnson agreed to these conditions and Sean agreed to meet with her lawyer, Hala Tabl (hereby ‘Hala’) to provide his conditional consent.
[26] Hala refused to accept the conditional consent form Sean had prepared and insisted he sign the unconditional consent form without providing any disclosure of Estate assets or a copy of the application [for King] to consent to.
[27] Sean cannot in Good conscience consent to an application he has not seen.
[28] Tanja Johnson made an application for Certificate of appointment of Estate Trustee without Sean’s consent and requested that Honourable Justice Susan J. Woodley: (a) deny Sean his right to object to Tanja’s application; (b) deny Sean his right to make his own application; (c) For Sean to pay all legal fees and costs to be excluded from the proceeding.
[46] Tanja Johnson’s lawyer, Hala Tabl served Sean with a Notice of application for Certificate of appointment of Estate Trustee on March 24th, 2022 (for Tanja).
[47] No application for a Certificate of appointment of Estate Trustee was ever filed with the court by Tanja or her lawyer, Hala, on March 24th, 2022.
[48] Even after the Courts confirmed for Sean that there was no application before the Court for Joachim von Dehn’s Estate, Tanja and her lawyer insisted it was filed electronically by way of email but will not produce a receipt of their filings.
[49] Tanja’s (unfiled) court application indicated that Tanja is in possession of over forty-thousand dollars (Canadian) previously unaccounted for and above and beyond the surplus remainder funds from the power of sale.
[51] Hala Tabl is liable because she has a duty and obligation to advise Tanja of her Fiduciary obligations, and to Act in accordance with the Rule of Law and in the best interest of the entitled Beneficiaries,
[52] It is not the duty and obligation of a lawyer to pervert the Rule of Law and encourage Trustee potentials to take advantage of Estate Beneficiaries,
[53] Hala Tabl has a duty and obligation to Post a performance bond to ensure compliance with Fiduciary obligation and the Rule of Law.
Issues on this motion
[8] The moving party argues the claim should be struck on three grounds:
a. The statement of claim should be struck as void of merit as a lawyer does not owe a duty to a non-client. b. The statement of claim should be struck as it is a collateral attack on the order of Carusso J. dated May 4, 2022. c. The statement of claim should be struck as the plaintiff has no legal capacity.
Decision
[9] For the reasons that follow, the statement of claim will be struck as against Hala Tabl as the plaintiff has no legal capacity. The claim is struck without leave to amend to the stated plaintiff, the Kingdom of Heaven found a Sean. This does not restrict Sean von Dehn from commencing an action personally, although that proceeding will face the same scrutiny as to whether it discloses a reasonable cause of action.
Legal principles on a Motion to Strike
[10] Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allows the court to strike out a pleading on the ground that it discloses no reasonable cause of action:
Where available To any Party on a Question of Law
21.01 (1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
[11] The only issue on a motion under this rule is the sufficiency of the pleading. No evidence is admissible.
[12] The test on a motion to strike a claim is a stringent one – the pleading is not to be struck unless it is “plain and obvious” and “beyond doubt” that the claim discloses no cause of action. The facts as pleaded are deemed to have been proven for the purposes of the motion unless they are patently ridiculous or manifestly incapable of proof; Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview Casino Resort and OLG Casino Brantford), 2016 ONCA 458 at para 12.
[13] The test to determine legal capacity is whether it is “plain and obvious” that the plaintiff does not have legal capacity to bring a claim: Zuppinger v. Slightham, 2019 ONSC 5117, at para 9.
[14] To have legal capacity, a party must be a natural person, a corporation, or a body which has given that capacity by legislation: Jackson v. Toronto Police Association, at para 18, Ora Trustees Ltd, et al. v. Wade, et al., 2022 ONSC 1427, at para 36.
[15] The stated plaintiff has none of these characteristics. It is not a person, a corporation, and has not been given any legal capacity by legislation. As a result, the claim is struck on that basis.
[16] While the lack of legal capacity is dispositive of the motion, even if the claim had been brought by Sean von Dehn personally, I would have struck paragraphs 47, 48, 49 and 53 on the basis that these facts are patently ridiculous and are a collateral attack on the order of Justice Carusso. Justice Carusso’s endorsement is clear. There was obviously material before the court for this order to be granted. I further note that there was no appeal of that order. An appeal would have been the time to argue deficiencies in the evidence considered by the court.
[17] As for the argument that Ms. Tabl does not owe a duty of care to a non-client, it is not “plain and obvious” that a lawyer acting for a prospective Estate Trustee owes no duty of care to the estate’s beneficiaries. I would not have struck the claim on that basis alone.
Conclusion
[18] The statement of claim is struck as against Hala Tabl without leave to amend to the stated plaintiff, The Kingdom of Heaven found a Sean.
[19] The moving party filed a bill of costs seeking with the partial indemnity fees, HST and disbursements totaling $6,823.50. I find these costs to be reasonable and appropriate. As the stated plaintiff is not a legal entity, costs are awarded against Sean von Dehn personally for this amount.
Justice J. Hooper Released: February 1, 2023