Court File and Parties

Court File No.: CV-22-00688384-0000 Date: 2023-01-11 Superior Court of Justice – Ontario

Re: GARY CURTIS and TANYA REBELLO, Plaintiffs (Respondents) And: McCAGUE BORLACK LLP, ERIC TURKIENICZ and MICHELLE TURKIENICZ, Defendants (Moving Parties)

Before: Koehnen J.

Counsel: Michael R. Kestenberg, for the moving party defendants Gary Curtis, on his own behalf

Heard: October 24, 2023

Endorsement

[1] The plaintiffs are two self represented individuals. Only Mr. Curtis appeared today. He initially stated that he was acting on behalf of himself and his co-plaintiff, Tanya Rebello. Mr. Curtis is not a lawyer. It appears that he has been warned on previous occasions that only lawyers are entitled to act on behalf of others on matters such as these. During the hearing I indicated that I would nevertheless permit Mr. Curtis to make submissions on behalf of Ms. Rebello but that he would not be permitted to make submissions on behalf of Ms. Rebello at any future hearing. My intention was to give Ms. Rebello the benefit of any helpful submissions that Mr. Curtis might make but not burden her with any unhelpful comments that Mr. Curtis might make. In a letter delivered to the Court on October 26, 2023 Mr. Curtis indicated that he was not acting for Ms. Rebello and that her submissions were limited to those contained in their joint factum. I will nevertheless give Ms. Rebello the benefit of any submissions Mr. Curtis made that are helpful to her.

[2] The plaintiffs have brought an action against the law firm McCague Borlack LLP, one of its lawyers, Eric Turkienicz and Mr. Turkienicz’s wife, Michelle Turkienicz. Ms. Turkienicz has no association with the law firm. The plaintiffs bring the action against the defendants based on actions that Mr. Turkienicz took in an underlying lawsuit that is ongoing. Mr Turkienicz does not act for the plaintiffs in the underlying lawsuit but acts for the parties adverse in interest to Mr. Curtis and Ms. Rebello in the underlying lawsuit.

[3] The defendants move to strike the statement of claim as disclosing no cause of action under Rule 21.01(1)(b) of the Rules of Civil Procedure.

[4] The plaintiffs have brought a cross-motion to stay the defendants’ motion and to seek a hearing date for their own motion for default judgment against the defendants.

[5] For the reasons set out below, I dismiss the plaintiffs’ cross-motion, grant the plaintiffs’ motion, and strike the statement of claim without leave to amend.

The Plaintiffs’ Cross Motion

[6] After the defendants served the motion to strike on the plaintiffs, the plaintiffs noted the defendants in default and attempted to obtain default judgment against them. As part of the relief they seek on this motion, the defendants seek an order, if necessary, setting aside the noting in default.

[7] The plaintiffs submit that the defendants were obligated to defend even in the face of a motion to strike the statement of claim as disclosing no reasonable cause of action. They further submit, that having failed to defend, the defendants have no right to bring the Rule 21 motion.

[8] In support of their position, the plaintiffs rely on Rebello v. The Bank of Nova Scotia et al., an unreported decision of Vella J., in which the plaintiffs submit Vella J. required the defendants to deliver a statement of defence even in the face of a motion to strike. I read that decision differently. At paragraph 5 of her reasons, Vella J. states:

After much discussion, it was agreed that the Defendants would serve and file a basic Statement of Defence by this Friday, February 5, 2021. However, the filing of the Statement of Defence is without prejudice to the Defendants’ ability to bring their motion to strike and/or dismiss the action on the various grounds articulated in their notice of motion. ….

[9] In other words, Vella J. did not find, as a matter of law, that a party who has filed a motion to strike must deliver a statement of defence before it can argue the motion to strike, rather she merely stated that the parties had reached an agreement to that effect on the motion before her. Mr. Curtis says the agreement was reached only because Vella J. indicated that she would require the defendants to deliver a statement of defence before the Rule 21 motion was argued. That is not, however, what Vella J. said in her reasons, nor is there any evidence to that effect before me. Moreover, even if that had been the case, I would decline to follow any such direction because it would not reflect the mainstream of jurisprudence and there is no good reason here to depart from that mainstream of jurisprudence. That mainstream is reflected in the Ontario Court of Appeal’s decision held in Potis Holdings Ltd. v. Law Society of Upper Canada, 2019 ONCA 618, where it held that “…generally a defendant should move to strike a claim as disclosing no reasonable cause of action before filing a statement of defence…”

[10] The plaintiffs rely on other cases that suggest that a noting in default is set aside only where the defendants are prepared to deliver a statement of defence. Those cases do not, however, involve situations where the defendant has moved to strike and are therefore distinguishable. In the absence of a motion to strike, it is not uncommon to set terms for setting aside a noting in default, which terms commonly include delivery of a statement of defence by a certain time. For example, see Schmidt v. Yacoub, 2017 ONSC 6305 at paras. 55 – 58; Intact Insurance Co. v. Kiel, 2015 ONCA 680 at paras. 28 – 29.

[11] Mr. Curtis and Ms. Rebello are aware that the courts have interpreted the rules to prohibit a plaintiff from noting a defendant in default where the defendant has already served a motion to strike the claim as disclosing no cause of action. In Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127 at para. 20, the plaintiffs appear to have done the same thing in response to which Justice Myers stated:

There have been approximately 20 appearances in this proceeding in the year since its commencement. Although the plaintiff was told that the defendant was defending and moving to strike her claim, Mr. Curtis proceeded improperly to note the defendant in default. Master Short set aside the noting in default.

[12] In an earlier case conference involving the same issue, Justice Chalmers allowed the plaintiffs to argue the point on this motion but, in doing so, stated:

It is my view that where the defendants deliver a motion to strike pursuant to r. 21, the plaintiff should not note the defendant in default. Rule 21.01 (3) provides that a defendant may move before a Judge to have an action dismissed. There is no requirement that the r. 21 motion be brought only after a defence is delivered. This is to be contrasted with r. 20.01 (3) which provides that a defendant may move for summary judgment after delivering a Statement of Defence.

[13] I adopt those views here.

[14] In the case before me, the defendants moved promptly to set aside the noting in default as soon as they became aware of it. As a result, I set aside the noting in default.

[15] In a letter to the Court dated October 25, 2023 Mr. Curtis argues that there was an irregularity at the hearing of the motion because I did not address the default issue at the outset of the hearing as Mr. Curtis says Chalmers J. ordered should be done in his endorsement of April 17, 2023. Mr. Curtis submits that the effect of the noting in default should have been argued at the outset of the motion.

[16] To be clear, Chalmers J. did not direct that the court was required to address the effect of the noting in default at the outset of the motion. Rather, he said that the defendants could raise the issue at the outset of the hearing.

[17] Mr. Curtis did so and, rather than addressing the matter as a preliminary issue, I asked the parties to make submissions on the default issue as part of their overall submissions on the motion in the interests of making the most efficient use of the limited time available. When the defendants began their submissions, I advised counsel that I did not need to hear from him on the default issue. Mr. Curtis was permitted to and made full submissions on the default issue.

The Motion to Strike

[18] As noted, the defendants move to strike the statement of claim as disclosing no reasonable cause of action under rule 21.01 (1) (b). It is well-established that a claim will be struck if it is plain and obvious that the pleading discloses no reasonable cause of action. See Isaac v. Mesiano-Crookston, 2019 ONSC 6973 at paras. 36-37; Cleary v. Spiroff, 2022 ONSC 3974, paras. 18-21; Davidoff v. Paderewski, 2020 ONSC 1171 at para. 8-10, appeal dismissed, Davidoff v. Paderewski Society Home (Niagara), 2022 ONCA 18; motion for leave to appeal dismissed at Davidoff et al. v. Goerz et al., 2022 SCC 35; Potis Holdings Ltd. v. Law Society of Upper Canada, 2019 ONCA 618 at para. 14.

[19] On a motion to strike a pleading, the facts as pleaded are assumed to be true unless patently ridiculous or incapable of proof. Mosher v. Ontario at para. 9.

[20] The essence of the plaintiffs’ claim against the law firm and against Mr. Turkienicz is that Mr. Turkienicz acted improperly in an underlying, ongoing lawsuit in which Mr. Turkienicz acts for a party opposite in interest to that of Mr. Curtis and Ms. Rebello.

[21] That alone is enough to dismiss the claim because the conduct of a party in a lawsuit is subject to absolute privilege outside of the scope of the lawsuit in which the conduct is alleged to have occurred.

[22] The Ontario Court of Appeal recently summarized the principles in Amato v. Welsh, 2013 ONCA 258, where it stated at paragraph 34:

The nature and scope of the doctrine of absolute privilege lies at the heart of this appeal. That this doctrine is well-established at common law is beyond dispute. This court has repeatedly endorsed the definition of the doctrine set out in Halsbury’s Laws of England, vol. 28, 4th ed. (London, U.K.: Butterworths, 1997), at para. 97, which reads:

97. Absolute privilege. – No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. – The privilege extends to documents properly used and regularly prepared for use in the proceedings. Advocates, judges and juries are covered by this privilege. – However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.

A separate action for malicious prosecution or the malicious institution or abuse of civil proceedings may lie independently of the law of defamation. [Citations omitted.]

See also Collins v. Canada Post Corporation, 2022 ONCA 295 at para. 11.

[23] Justice M. Labrosse recently applied the principle in Bluteau v. Griffiths, 2023 ONSC 1004. Bluteau is especially relevant because it also involved a case where a plaintiff sued a lawyer for the lawyer’s conduct in an underlying action in which the lawyer acted for a party adverse in interest to the plaintiff. In summarizing the principles, Labrosse J. noted at paragraph 29:

It is well established that the doctrine of absolute privilege prevents claims based on communications that take place during, incidental to, and in furtherance of a court proceeding. It makes no difference if the words used are knowingly false and spoken with malice: they are subject to immunity from suit.

[24] Those are the very allegations against Mr. Turkienicz. Namely that he knowingly allowed false statements to be made in an affidavit for the purpose of harming the plaintiffs.

[25] Labrosse J. went on in paragraph 30 to state:

In the present claim, the Plaintiff’s allegations against the Legal Defendants relate in large part to the Legal Defendants’ alleged knowledge that statements made in certain affidavits filed with the Court contained false allegations. I question if these statements are properly attributable to the Legal Defendants if they are found in affidavits signed by their respective clients.

[26] This is also particularly salient to the case before me. Mr. Curtis essentially alleges that Mr. Turkienicz knowingly allowed an employee of Paragon Security which provides security guard services in the building in which the plaintiffs live, to swear an affidavit which did not disclose particular security reports that the plaintiffs allege were relevant to the affidavit being sworn. As in Bluteau, even if that allegation is true, I would question whether that omission is one properly attributable to Mr. Turkienicz as opposed to the person who swore the affidavit.

[27] There are good policy reasons for the concept of absolute privilege. It is rooted in the principle that all matters relating to a particular lawsuit should be determined in the claim in which the conduct arises. To do otherwise would permit endless litigation. The unhappy litigant in action one would then commence a second action claiming misconduct on the part of a party or lawyer in action one. If the litigant failed again in the second action, they would commence a third action and so on. See Davidoff v. Paderewski, 2020 ONSC 1171 at para. 20.

[28] In addition, it is equally clear that Mr. Turkienicz owes the plaintiffs no duty of care in negligence or otherwise. Mr. Turkienicz’s duty in the underlying action is to pursue his own clients’ interests, not to pursue the interests of Mr. Curtis or Ms. Rebello. See Davidoff v. Paderewski, 2020 ONSC 1171 at para. 22. If it were otherwise, a lawyer would be in a constant conflict of interest between his own client and the opposing party. See 9383859 Canada Limited v. Saeed, 2020 ONSC 4883 at para. 32.

[29] So strong is the principle that courts have found it to be “an abuse of process to sue opposing counsel under the guise of any cause of action, for their conduct of the case”. See Royal Bank of Canada v. Tehrani, 2009 ONSC 4200 at para. 19; Hedary Hamilton PC v. Dil Muhammad, et al., 2013 ONSC 4938 at para. 22.

[30] Mr. Curtis submits that a claim for abuse of process requires evidence of such abuse and that there is no evidence in the record. Whether an allegation of abuse of process requires evidence depends on the nature of the allegation. Where, as here, it relates to the fundamental nature of the claim itself, the issue is determined by looking at the statement of claim, not to evidence. Given that the statement of claim is legally untenable, it amounts to an abuse of process.

[31] Mr. Curtis next submits that it would be improper to strike his statement of claim because he served notices of examination on Larry Scolaro, a corporate director of Paragon and Teresa Hartley, a partner at the defendant McCague Borlack. Both refused to attend the examinations. Mr. Curtis obtained certificates of non-attendance.

[32] The notices of examination are based on the fact that the defendants included in their motion record, a copy of a motion record for security for costs that they delivered in the underlying proceeding That underlying motion record contained affidavits from Mr. Scolaro and Ms. Hartley.

[33] Mr. Curtis submits that the failure of Mr. Scolaro and Ms. Hartley to attend on cross examinations should result in their affidavits being struck from the record pursuant to rule 34.15(1)(c). The defendants did not rely on the affidavits in their factum or in oral argument. They included the motion record in the underlying action, including the decision arising out of it, as context to demonstrate the existence of the underlying action. In this regard it is noteworthy that a court may look at its own records and proceedings to take notice of their contents although they may not be formally before the Court by affidavit. See Mahmood v. Misir at para. 27. That said, I have not reviewed the affidavits. The defendants underscore that they are not relying on any evidence but are basing their claim solely on Rule 21.01 (1)(b) which does not permit any evidence to be adduced. Although I do not think it necessary to do so because I have not relied on the affidavits in any way on this motion, to the extent it is necessary to strike those affidavits from the record, I would do so.

[34] I have also considered whether there would be any unfairness to the plaintiffs in striking the claim because of some potential misconduct by Mr. Turkienicz that might call for an exception to absolute privilege. I am satisfied that there is not. As noted, Mr. Scolaro swore an affidavit on November 21, 2019 for a motion for security for costs. That affidavit had appended to it a number of incident reports from Paragon Security personnel relating to the plaintiffs’ conduct in the building in which they reside. Mr. Curtis alleges that Mr. Turkienicz knew of and did not disclose two incident reports that were relevant. Mr. Curtis further alleges that, in November 2020, an employee of Paragon had Mr. Curtis charged with an offence of some sort. Mr. Curtis says he discovered the two reports in December 2020 as part of the Crown’s disclosure. According to Mr. Curtis, had he known of the two incident reports, he would have presented them to the police which would have stopped them from laying charges or, alternatively, he would have brought an action against Paragon. According to Mr. Curtis, that would have put an end to charges against him. Mr. Curtis says the charges were eventually dropped but only 18 months later. I was given no particulars of the charge and was given no information about how the information in the two allegedly suppressed reports would have led police to refrain from charging Mr. Curtis as he alleges. Mr. Curtis says he has a copy of one of the reports at issue and has read the second report but does not have a copy of it. He did not explain the contents of either report.

[35] According to Mr. Curtis, Mr. Turkienicz knew about the two suppressed reports because Mr. Scolaro swore an affidavit in front of Mr. Turkienicz. Assuming for a moment that Mr. Curtis’ version of events is accurate, the simple fact that Mr. Scolaro swore an affidavit in front of Mr. Turkienicz does not mean that Mr. Turkienicz knew about things that were omitted from the affidavit. Mr. Curtis also says that had he known of the omitted reports, he would have brought an action against Paragon. But Mr. Curtis know of the reports in December of 2020 and could have commenced an action against Paragon then.

[36] I appreciate that Mr. Curtis’s explanation about the contents of the reports, the nature of the charge, and the nature of Mr. Turkienicz’s knowledge are, strictly speaking, not relevant to this motion. The motion is a pleadings motion which is based solely on the content of the statement of claim. Mr. Curtis’s explanation is relevant only in that I wanted to satisfy myself that no injustice was being done to him by striking the claim without leave to amend. In addition, I note that the statement of claim contains no information about these issues either.

[37] Mr. Curtis points to Fuss v. Fidelity Electronics of Canada Ltd. for the proposition that evidence is admissible on a rule 21 motion. That case, however, was decided under rule 21.01(3)(d) under which evidence is permitted.

The Claim Against Ms. Turkienicz

[38] The sole basis for the claim against Ms. Turkienicz is found in paragraph 7 of the statement of claim. It reads as follows.

The Defendant, Michelle Turkienicz (“Michelle”) is the wife of Eric Turkienicz, which all their assets are joint, (sic) whether in both names or in Michelle’s name, and all damages sought from Mr. Turkienicz, that are in Michelle’s name (sic) are collectible by the plaintiff’s (sic) in this action. Therefore, this defendant is jointly liable for all torts committed by Eric Turkienicz.

[39] To support this allegation, Mr. Curtis took me to a land transfer document which demonstrates that Mr. and Mrs. Turkienicz purchased their residential home as joint tenants in 2017.

[40] The simple fact that spouses hold joint title to assets cannot, without anything more, form the basis of a claim against a spouse who is in no way otherwise involved in the allegations on which the action is based. The claim against Ms. Turkienicz must therefore be dismissed.

Leave to Amend

[41] The defendants submit that the statement of claim should be struck out without leave to amend. I agree. Given the strength of the principle of absolute privilege and the absence of any duty on the part of Mr. Turkienicz to the plaintiffs, there is no amendment that could overcome the legal barrier to advancing the complaint the plaintiffs want to advance. Similarly, there is no amendment that could overcome the barrier to suing Ms. Turkienicz. During oral argument, Mr. Curtis agreed that there had been no transfer of assets from Mr. Turkienicz to Ms. Turkienicz about which he was complaining. Rather, his complaint is that in addition to them acquiring assets jointly, it is possible that Mr. Turkienicz could transfer his interest in assets to Ms. Turkienicz in the future. Although that concern is not articulated in the statement of claim, a fear that spouses might transfer property between each other in the future does not, without more, amount to a cause of action.

[42] Mr. Curtis submits that leave to amend has been granted in cases where plaintiffs sue lawyers. See for example: Mason v. Perras Mongenais, 2018 ONCA 978; Baradaran v. Alexanian, 2016 ONCA 533. Those cases, however, are ones in which a former client has sued their own former lawyer. Lawyers clearly owe duties of care and fiduciary duties to their own clients. They do not owe any such duties to parties opposite in interest.

Prohibition on Similar Proceedings

[43] In addition to striking the statement of claim, the defendants seek an order that would prohibit the plaintiffs from bringing any further actions against the defendants without leave of the court.

[44] The court has jurisdiction to make such orders under section 140 of the Courts of Justice Act and its inherent jurisdiction to control its own process. See Peoples Trust Company v. Atas, 2019 ONCA 359, para. 5.

[45] Mr. Curtis objects to the relief sought because, among other things, s. 140 of the Courts of Justice Act allows the court to make such orders on application of a party. Mr. Curtis notes that there has been no application here. While Mr. Curtis is correct that there has been no notice of application issued in this regard, the notice of motion clearly indicates that the defendants were seeking this relief. Moreover, s. 140 applies to general declarations that a party is a vexatious litigant which would prohibit them from commencing any proceeding against anyone without leave of the court. The relief sought here is much narrower. The defendants seek an order that prohibits the plaintiffs only from commencing actions against them without leave of the court.

[46] As the Ontario Court of Appeal noted in Peoples Trust Company v. Atas, 2019 ONCA 359, “unchecked, abusive and vexatious proceedings consume scarce resources at the expense of all litigants including other self-represented litigants who deserve ready access to justice.” This case has already had more than its fair share of judicial resources, especially for a case that is legally untenable. It also appears that the plaintiffs are frequent litigants.

[47] In my view it would be appropriate to grant the order sought both to protect the defendants against meritless claims and to protect scarce judicial resources and keep them available for meritorious claims. The relief sought is very limited. Given the strength of the principle of absolute privilege, the absence of any duty on the part of the defendants to the plaintiffs, and the absence of any involvement at all on the part of Ms. Turkienicz, it does not impose an unreasonable limit on the plaintiffs’ rights to require them to seek leave of the court before commencing any further proceedings against any of the defendants.

[48] While I am not sure that anything turns on it, I will nevertheless, out of courtesy, address a concern Mr. Curtis raises in his letter of October 25, 2023. It appears that Mr. Curtis had received a letter from the court on April 19, 2023 advising him that I would be hearing the motion. Mr. Curtis submits that this is irregular because judges are usually assigned to motions only a few days beforehand. He then notes that when he asked me at a Civil Practice Court session over which I happened to be presiding on September 26, 2023 whether I was hearing the motion, I denied that I was. He expresses concern in his letter about why it was necessary to assign me to the motion six months in advance and why I did not disclose on September 26, 2023 that I would be hearing the motion.

[49] I do not know why I was assigned to the motion in April of 2023. That was a decision of Chalmers J., the co-team lead of the civil list. My recollection of September 26 is a little different from that of Mr. Curtis. Mr. Curtis did ask me if I was hearing the motion. I advised that I was not aware that I was and that motions were usually not assigned until a few days before the motion. The Motions Co-ordinator then intervened in open court and advised that I had in fact been assigned to the motion and would be hearing it. I then told Mr. Curtis that it appeared that his information on that front was better than mine. The first time I was advised that I was assigned the motion was when the Motions Co-ordinator advised me of that in open court on September 26.

Conclusion and Costs

[50] For the reasons set out above I grant the defendants motion, strike out the statement of claim without leave to amend and order that the plaintiffs be precluded from bringing any further proceedings against the defendants without leave of the court.

[51] Both sides have posted cost outlines and submissions on CaseLines. On the hearing of the motion, we did not have time to address costs. If either side wishes to make additional cost submissions, they may do so within 10 days of the release of these reasons with a further 5 days for responding submissions.

Date: November 1, 2023 Koehnen J.