COURT FILE NO.: CV-22-00677169-0000 DATE: 20240308

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: CARMINE COCCIMIGLIO Plaintiff

• and – SAGE REAL ESTATE LTD., LARRY SAGE, HILARY BROWNING, NICHOLAS HUMPHRIES, ZANE MERSKY, KATHERINE MERSKY, SETH MERSKY and ALDA WARKETIN Defendants

Counsel: Carmine Coccimiglio, self-represented Plaintiff David Trafford for the Defendants Zane Mersky, Katherine Mersky, and Alda Warkentin Evan Farrugia for the Defendants Sage Real Estate Ltd., Larry Sage, Hilary Browning, and Nicholas Humphries

HEARD: March 7, 2024

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In this action, Carmine Coccimiglio sues Zane Mersky, Katherine Mersky (formerly Katherine Konn), Seth Mersky, Alda Warketin, Sage Real Estate Ltd., Larrry Sage, Hilary Browning, and Nicholas Humpries. The Defendants move to have Mr. Coccimiglio’s Statement of Claim struck without leave to amend on the grounds that: (a) the action is an abuse of process; (b) the action is frivolous and vexatious and doomed to fail; (c) the action is res judicata, and (d) Mr. Coccimiglio has not pled a reasonable cause of action. For the reasons that follow, the Defendants’ motions are granted.

B. Preliminary Matter No. 1.

[2] Mr. Coccimiglio is a self-represented plaintiff. He is a lawyer in good standing and licensed to practice law. He was called in 2001. He, however, has not been in practice since 2006. When he was practicing law, he was a corporate lawyer engaged in mergers and acquisitions at several tier one downtown Toronto law firms. He did not have expertise in real estate transactions. He was never a civil litigator.

[3] Mr. Coccimiglio drafted the Fresh as Amended Statement of Claim that is being attacked by the Defendants. In making their attack, the Defendants profess that Mr. Coccimiglio should be granted procedural indulgences and whatever assistance the court can properly give to a self-represented litigant while maintaining their role as a neutral adjudicator.

[4] I say profess because in their attack on the pleading, the Defendants’ rhetorically emphasize ad nauseum Mr. Coccimiglio’s background as a lawyer. In what follows, I shall treat Mr. Coccimiglio simply as a self-represented litigant. That he happens to be a lawyer is just a narrative fact.

C. Preliminary Matter No. 2

[5] As the factual and procedural background set out below will reveal, this litigation, which was commenced in 2022, is about Mr. Coccimiglio’s claim as a vendor in a real estate transaction. The transaction was abortive. Mr. Coccimiglio believes he was the innocent party. Mr. Coccimiglio believes that Zane and Katherine fundamentally breached the agreement of purchase and sale and, therefore, that he was entitled to keep the $100,000 deposit. Justice Schabas in an Endorsement dated June 26, 2020, however, ruled otherwise.

[6] Mr. Coccimiglio believes that the release of that judgment damaged his reputation. Indeed, in obvious emotional pain, Mr. Coccimiglio insists that he needs an opportunity to restore his reputation. He insists that there has never been a hearing of his side of the case with evidence and briefed with legal argument. He cannot understand why he lost an allegedly never argued case. His Fresh as Amended Statement of Claim is the means for Mr. Coccimiglio to have his day in court, and he asks that the court dismiss the Defendants’ motions to have the pleading struck.

[7] I do not doubt that Mr. Coccimiglio finds it incomprehensible and that he has been traumatized by a reported judgment of his having to return the $100,000 deposit. However, his subjective trauma is not a reason to dismiss the Defendants’ respective pleadings motion. Re-litigation will not restore Mr. Coccimiglio’s reputation, assuming it was actually damaged, which objectively may not be remotely true.

[8] For whatever solace it will give him, these Reasons for Decision will explain to Mr. Coccimiglio that he has had his day in court and why he was unsuccessful. I will explain why Justice Schabas’ decision is both comprehensible and sound. At the end of day, Mr. Coccimiglio just joins company with many others who have mistakenly breached a contract for the sale of real property because they have misunderstood and mishandled its intricacies.

D. Factual and Procedural Background

[9] In November 2019, Mr. Coccimiglio listed his home property at 102 Seaton St. in Toronto for sale. Mr. Coccimiglio’s real estate agent was Sage Real Estate Ltd., whose principal is Larry Sage. Hilary Browning and Nicholas Humphries were the sale agents on behalf of Mr. Coccimiglio.

[10] The property came to the attention of Zane Mersky and Katherine Konn. They were represented by a different real estate agent, Alda Warketin. She is a Re-Max sales agent.

[11] In 2019, Zane and Katherine were living in Germany and their plan was to marry and to return to Toronto in April 2021. There were discussions about Zane’s and Katherine’s plans, and Mr. Coccimiglio believed that Zane and Katherine would purchase his property and lease it back to him for a year. However, nothing formal was agreed upon.

[12] On January 11, 2020, Mr. Coccimiglio signed an offer to sell his home to Zane and Katherine. The purchase price was $1,785,000. The closing was scheduled for April 15, 2020. On January 13, 2020, which was twenty-four hours overdue, Zane and Katherine paid the deposit of $100,000 by a certified cheque to Sage Real Estate.

[13] Mr. Coccimiglio says that Sage Real Estate ought not to have accepted the deposit cheque and put it into a trust account because he had given instructions that the deposit was not to be accepted beyond the deadline prescribed. He says that his agents, contrary to his instructions, accepted the deposit because they did not want to lose their $90,000 commission on the completion of the sale.

[14] Mr. Coccimiglio, however, did not immediately protest to the purchasers. He did not immediately assert to them that the agreement of sale had lapsed or was void. Mr. Coccimiglio may have told his agents to do so, but this was a matter unknown to Zane and Katherine.

[15] Around this time, with the threat of a COVID pandemic looming, Zane and Katherine decided to return to Canada from Germany and their plans about living abroad until 2021 changed. They decided to move into the home that they had purchased from Mr. Coccimiglio. On January 14, 2020, Zane and Katherine had the property inspected, and on January 15, 2020, Zane and Katherine waived the conditions in the agreement of purchase and sale. Zane’s mother visited the premises to advise about interior design. Mr. Coccimiglio did not protest about any of these activities on a sale transaction that he says was void.

[16] On February 7, 2020, Mr. Coccimiglio was told that the property would not be rented to him. An angered Mr. Coccimiglio took to Facebook. He blasted Sage Real Estate for accepting the deposit and for failing to negotiate a lease for him. He alleged that he had agreed to a sale price that was below the list price on the understanding that the premises would be rented to him. He, however, still did not tell Zane and Katherine that they had no deal.

[17] It was only on February 20, 2020 that Mr. Coccimiglio declared the agreement of purchase and sale to be void because Zane and Katherine had paid the deposit past the deadline for doing so.

[18] Zane and Katherine treated Mr. Coccimiglio’s declaration as an anticipatory breach. Zane and Katherine commenced an action for specific performance. On February 25, 2020, they registered a caution against the title of 102 Seaton St. They paid the land transfer tax.

[19] On April 15, 2020, Zane and Katherine tendered. Mr. Coccimiglio refused to close the transaction.

[20] On May 1, 2020, having found another property to purchase, Zane and Katherine discontinued their action for specific performance. That day, they commenced a new action, and sued Mr. Coccimiglio for the return of the deposit and for damages for breach of contract. They sued Sage Real Estate as the stakeholder of the deposit and for damages for breach of trust in not returning the deposit.

[21] In the litigation, Zane and Katherine were represented by Jerome Morse of Morse Shannon LLP and by his associate David Trafford. Jeffrey Klein of Klein & Schonblum, a civil litigation boutique firm, acted for Sage Real Estate, Mr. Sage, Ms. Brunning, and Mr. Humphries. Mr. Coccimiglio was self-represented.

[22] On May 15, 2020, in anticipation of Zane and Katherine bringing a motion for a partial summary judgment, there was a case management conference. By May 2020, the COVID pandemic was disturbing court operations, and at the case conference, Justice Leiper scheduled the partial summary judgment motion to be heard in writing during the week of June 9-12, 2020. To Mr. Coccimiglio’s shock, Justice Leiper decided that the case was urgent enough to fall with the court’s guidelines for motion activity. Mr. Coccimiglio obsessively submits that Justice Leiper was deceived into thinking the matter was urgent. He says that Zane is related to a billionaire and there was no urgency in resolving the matter of a $100,000 deposit.

[23] On May 22, 2020, there was another case management conference, and Justice Leiper set the timetable for Zane and Katherine’s motion.

[24] On May 27, 2020, Zane and Katherine delivered a voluminous motion record. Mr. Coccimiglio immediately reversed his position about returning the deposit. He provided his consent in writing to the return of the deposit monies. He blamed the real estate agents for the delay of the return of funds. He said it was their responsibility not his.

[25] On the current motions, Mr. Coccimiglio submitted that his consent was not genuine because he was hounded by the lawyers and he was tired of being harassed by the real estate agents to settle the matter.

[26] In any event, in light of Mr. Coccimiglio’s concession, Zane and Katherine delivered a supplementary motion record, a factum. They sought costs on a substantial indemnity basis.

[27] The partial summary judgment motion came on before Justice Schabas on June 9, 2020. Mr. Coccimiglio did not file any responding material. He asked for an adjournment to retain counsel. Justice Schabas adjourned the motion to June 22, 2020 for submissions in writing.

[28] Mr. Coccimiglio was unable to retain counsel. He did not deliver costs submissions by June 22, 2020. Instead, he again requested an adjournment. Justice Schabas refused to adjourn the matter, and on June 26, 2020, Justice Schabas awarded Zane and Katherine a partial summary judgment for the return of the deposit plus costs of $26,875.00, on a substantial indemnity basis. [1] Justice Schabas stated that Mr. Coccimiglio had repudiated the agreement of purchase and sale and that Mr. Coccimiglio refused to consent to the return of the deposit. In his endorsement, Justice Schabas stated:

In my view, the claim for substantial indemnity costs against Coccimiglio should be granted. Coccimiglio has given no valid explanation for withholding his consent and for actively telling Sage not to release the funds. Coccimiglio is a lawyer with considerable experience of real estate transactions. He was belligerent and made unfounded accusations of harassment and threats to initiate complaints to the police, the Law Society, and the Human Rights Tribunal during the course of his dealings with the plaintiffs and their counsel. There were offers to settle, one of which appears to have been accepted and then Coccimiglio reneged on it, which could have resolved the matter. Case conferences were held, and the plaintiffs were required to prepare an extensive record, including two supplementary affidavits as Coccimiglio’s position changed, and a factum was almost complete when Coccimiglio capitulated. This conduct is deserving of censure by way of an elevated award of costs.

[29] Pausing here in the narrative, Justice Schabas was wrong in thinking that Mr. Coccimiglio had expertise in real estate, but nothing turns on that misunderstanding. The evidentiary record supports everything else that Justice Schabas set out in his short Endorsement. It cannot be successfully argued that Justice Schabas was mistaken in holding that Mr. Coccimiglio had repudiated the agreement. It was either an anticipatorily breach or an actual breach when Mr. Coccimiglio did not close the transaction on April 15, 2020. In these circumstances, Mr. Coccimiglio had no right to keep the deposit.

[30] Returning to the narrative, Mr. Coccimiglio sought leave to appeal to the Divisional Court. Leave to appeal to the Divisional Court was necessary because the appeal technically was about a costs award under $50,000 and not about the merits of the decision, for which the appeal would have been without leave to the Court of Appeal.

[31] Thus, the merits of Justice Schabas’ decision about the deposit were not in issue given Mr. Coccimiglio’s written consent to the return of the deposit. Notwithstanding that the merits were not technically the subject matter of appeal, this time with the aid of a legal counsel, Mr. Coccimiglio advanced arguments about the merits of Justice Schabas having ordered a refund of the $100,000 deposit and about Justice Schabas’ alleged failure to adjourn the partial summary judgment motion.

[32] On February 8, 2021, the Divisional Court, without reasons, dismissed the motion for leave to appeal. [2] Mr. Coccimiglio was ordered to pay costs of $5,000.

[33] Then, a year passed, and on February 18, 2022, Mr. Coccimiglio commenced this action by Notice of Action. He sued Zane, Katherine, Ms. Warkentin, Sage Real Estate, Mr. Sage, Ms. Browning, and Mr. Humphries. Mr. Coccimiglio also sued Seth Mersky, who is Zane’s father. He attempted to resuscitate his claim to the deposit.

[34] On September 24, 2022, Mr. Coccimiglio delivered a Fresh as Amended Statement of Claim. The amended pleading is 54 pages long. It has 234 paragraphs not counting subparagraphs. The pleading requests 45 heads of relief. It advances 23 causes of action, some of them known to the law, other figments of Mr. Coccimiglio’s imagination. He disputes Zane’s and Katherine’s claim for damages from the abortive real estate transaction. He claims damages for himself of $240 million. He claims punitive damages of $100 million. He claims a return of the $100,000 deposit.

[35] For present purposes, it is sufficient without providing illustrations, to make the following general conclusions about the Mr. Coccimiglio’s pleading:

a. The pleading is an over-the-top rant about the deposit litigation brought by Zane and Katherine, which litigation produced the partial summary judgment decision of Justice Schabas, Mr. Coccimiglio alleges that the deposit litigation was a fraudulent conspiracy. The co-conspirators are Zane and Katherine, Zane’s father, the Mersky’s lawyers, the Sage Realty real estate agents, and the real estate agents’ lawyers. He says the conspiracy brought the administration of justice into disrepute and threatened the pillars of democracy.

b. In terms of its allegations of material facts, there is nothing in Mr. Coccimiglio’s pleading that is not connected to the factual and procedural narrative that was before Justice Schabas and the Divisional Court.

c. And this is critically important, in Mr. Coccimiglio’s pleading, the fundamental material facts (which are the legal premises for the 45 heads of relief and his indefinite number of causes of action and remedies) are all the same as the allegations that were found against Mr. Coccimiglio in the summary judgment decision of Justice Schabas, where Justice Schabas held that Mr. Coccimiglio had repudiated the agreement of purchase and sale and no reason to refuse to return the deposit.

d. And this is equally critically important, in Mr. Coccimiglio’s pleading, he seeks to set aside Justice Schabas’s decision, and he seeks a return of the $100,000 deposit on the grounds of fraud and coercion. Further, Mr. Coccimiglio seeks revocation of the costs orders of Justice Schabas and of the Divisional Court on the grounds of fraud. Further, inconsistently, Mr. Coccimiglio challenges the truth of the bill of costs that he seeks to have set aside on the grounds that the hours of work are excessive and unreasonable for a simple interlocutory motion. Moreover, Mr. Coccimiglio also seeks a dismissal of the balance of Zane and Katherine’s action against him.

e. Mr. Coccimiglio alleges that Justice Schabas made a grave error of law. Mr. Coccimiglio alleges that he was denied the opportunity to meet Zane and Katherine’s case and that Justice Schabas ought to have granted an adjournment so that he could get the legal assistance that he desperately needed to plead and prove his case.

f. In his pleading, Mr. Coccimiglio makes allegations against the Defendant Lawrence Enfield for registering the caution against the title to 102 Seaton St. Mr. Enfield, is a registrar at the Land Titles Office in Toronto; however, he is not named as a defendant in the style of cause, and if he were named, there is no pleaded material facts that implicate Mr. Enfield as liable for any wrongdoing.

g. As noted above, Mr. Coccimiglio joins Seth Mersky as a party defendant to his action. Mr. Coccimiglio pleads that Mr. Mersky is a very accomplished, very wealthy, and very powerful businessman who provided financial support to his children. No allegations of wrongdoing are actually pled against Mr. Mersky and being wealthy and supporting one’s children is not a tort.

h. Mr. Coccimiglio’s pleading is bloated with a surfeit of irrelevant, scandalous, bitter, slanderous (if outside of a pleading), unsupported, and unsupportable recriminations against Jerome Morse of Morse Shannon LLP and against his associate David Trafford.

i. The pleading is bloated with a surfeit of irrelevant, scandalous, bitter, slanderous (if outside of a pleading), unsupported, and unsupportable recriminations against Mr. Klein.

j. The pleading is saturated with pleas to the court to grant indulgences and to balance the litigation playing field for Mr. Coccimiglio, having regard to the fact that although Mr. Coccimiglio is a lawyer, he feels completely overmatched and overwhelmed by the bullying lawyers who have taken advantage of him.

k. The pleading makes numerous requests for procedural orders and disclosure orders and orders for examinations of witnesses with respect to the partial summary judgment motion that has already been decided adversely to Mr. Coccimiglio. The pleading seeks to have a rehearing of the merits of Mr. Coccimiglio’s claim to the $100,000 deposit.

l. The pleading is replete with a legal essay about the real estate law associated with contract repudiation, specific performance, and claims for a deposit. The pleading is spotted with allegations and legal arguments that are legally nonsensical.

m. The pleading is littered with claims for relief that are just instruments for revenge, calling for investigations, discipline proceedings, and criminal prosecutions including declarations that the real estate agents should not have access to insurance to pay for their mishandling of the deposit.

n. The pleading grossly violates the rules of pleading.

[36] On January 31, 2023, Justice Ramsey set the Defendants’ motions down for a full day hearing for March 7, 2024. Her Endorsement stated:

The defendants, collectively, will be bringing a motion to strike the amended statement of claim under r.21.01(3), 21.01(1)(b), and 25.11 of the Rules of Civil Procedure, on the basis that the claim is an abuse of process and is res judicata. The underlying action deals with a failed real estate transaction. The plaintiff’s deposits were released by the broker. The defendants submit that the plaintiff consented to a return of the deposit money, and the matter has made its way up to the Divisional Court. The plaintiff submits that only the issue of costs was determined by Justice Schabas. The motion is scheduled for March 7, 2024 and is set down for a full day. If the parties are unable to establish a timetable to govern the steps in the proceeding, they may re-attend at a CPC court, or, schedule a case conference with me to do so, […]

[37] Sometime in 2023, during the thirteen-month run up to the Defendants’ pleadings motions, Zane and Katherine settled the balance of their outstanding action against the real estate agents and against Mr. Coccimiglio. There were minutes of settlement that their action would be dismissed without costs. The parties, however, have not formalized the settlement. Practically speaking, Zane’s and Katherine’s 2020 deposit litigation is finished. But Mr. Coccimiglio’s 2022 action persists.

[38] On March 3, 2023, the real estate agent Defendants delivered their motion record supported by the affidavit of Mr. Klein. On April 3, 2023, the Mersky Defendants delivered their motion record, supported by the affidavit of Allyson Burns. Ms. Burns is a legal assistant at Morse Shannon LLP.

[39] There were no cross-examinations, and Mr. Coccimiglio did not deliver any responding materials.

[40] On January 17, 2024, the real estate agent Defendants delivered their factum for the pleadings motion. On February 12, 2024, the Mersky Defendants delivered their factum for the pleadings motion.

[41] On March 6, 2024, Mr. Coccimiglio communicated with court staff that he would be seeking an adjournment of the Defendants’ motion on the grounds that he was in ill health and unable to argue the motions without legal assistance. He was advised by court staff that it was too late to adjourn the matter without speaking to the matter. Later in the day, Mr. Coccimiglio delivered a factum. As an appendix to the factum, was a Fresh as New Amended Statement of Claim dated March 5, 2024.

[42] On March 7, 2024, the Defendants’ motions were heard remotely. Mr. Coccimiglio did request an adjournment on the grounds that he needed legal assistance. He said he had health problems but he was in his work office and he presented as intellectually high functioning. He explained that he had tried unsuccessfully for the last year to find legal assistance but was unable to do so. I explained that courts do not adjourn matters indefinitely and that since there was no reason to think that Mr. Coccimiglio’s circumstances were going to improve and since he had over a year to prepare for the motion and had delivered a factum for the motion, which I had read, that I would not adjourn the motions.

[43] Despite some protest by the Defendants to the reception of the factum and Mr. Coccimiglio’s his new pleading, I accepted the documents.

[44] The Fresh as New Amended Statement of Claim (which oddly begins its numbering at paragraph 37) is 31 pages long and is comprised of 131 paragraphs not counting subparagraphs. This pleading repeats much of the Old Fresh as Amended Statement and is a marginally better pleading. The new pleading does reduce the causes of action and the claims for remedies and relief and it is much less airing of Mr. Coccimiglio’s grievances with his opponent’s lawyers.

[45] This pleadings’violations of the rules of pleading are not as egregious, but there are egregious violations and the pleading, once again, overall is substantially non-compliant with the rules of pleading. If anything, the revised pleading demonstrates that Mr. Coccimiglio should not be granted leave to deliver an amended pleading.

[46] And more to the point, the new pleading is again all about the deposit litigation and, once again, Mr. Coccimiglio seeks to relitigate his entitlement to the deposit and to overturn the findings and the outcome of the motion before Justice Schabas. The new pleading pleads copious amounts of evidence and an overwhelming amount of irrelevant material, including lamentations about Mr. Coccimiglio’s financial circumstances and his mental health and about his inability to retain counsel. The pleading is filled with legal arguments and conclusions about who breached the agreement and about Mr. Coccimiglio’s legal entitlements. The pleading once makes irrelevant allegations about Lawrence Enfield and about Seth Mersky, including details of his wealth and his philanthropy.

[47] On March 7, 2024, after hearing argument, I reserved judgment.

E. Discussion and Analysis

1. The Rules of Pleading

[48] Mr. Coccimiglio’s Fresh as Amended Statement of Claim should be struck out because it grossly offends the rules of pleading and cannot be saved by leave to amend.

[49] Rule 25.06 (1) of the Rules of Civil Procedure directs that every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. A pleading should be brief, clear, focused and contain the skeletal or core facts and not the evidence that details those facts unless particulars are required by the rules. [3]

[50] Material facts include facts that the party pleading is entitled to prove at trial, and at trial, anything that affects the determination of the party’s rights can be proved; accordingly, material facts includes facts that can have an effect on the determination of a party’s rights. [4] A fact that is not provable at the trial or that is incapable of affecting the outcome is immaterial and ought not to be pleaded. [5] A pleading of fact will be struck if it cannot be the basis of a claim or defence and is designed solely for the purposes of atmosphere or to cast the opposing party in a bad light. [6] As described by Riddell J. in Duryea v. Kaufman, [7] such a plea is said to be “embarrassing”.

[51] A pleading shall contain material facts, but it should not contain the evidence by which those facts are to be proved. [8] Pleadings of evidence may be struck out. [9] The prohibition against pleading evidence is designed to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts. [10]

[52] Under rule 25.11, the court may strike out a pleading that may prejudice or delay the fair trial of the action or that is scandalous, frivolous, vexatious or an abuse of process of the court. [11] The same test that is used for striking a pleading for the failure to show a reasonable cause of action; i.e., the plain and obvious test, is used to determine whether a pleading is scandalous, frivolous or an abuse of process of the court. [12]

[53] A claim may be found to be frivolous, vexatious or an abuse of process when it asserts untenable pleas, is argumentative, contains insufficient material facts to support the allegations made, or is made for an extraneous or collateral purpose. [13] For the purpose of rule 25.11, the term “scandalous”, includes allegations that are irrelevant, argumentative, simply inserted for colour or to impugn the behaviour or character of the other party unrelated to the issues in the litigation. [14]

[54] Parties are to be allowed a great deal of latitude in how they plead, but there are limits, and the court has the jurisdiction to strike a pleading to remove the pleading of evidence, prolix or vague allegations, repetitive or redundant allegations, or inconsistent allegations that are not clearly pled as alternatives and to direct a party to plead with certainty, precision and with sufficient particulars. [15]

[55] A scandalous pleading refers to indecent or offensive allegations designed to prejudice the opponent or unnecessary allegations maliciously directed at the moral character of the opponent. [16] Pleadings that are irrelevant, argumentative or inserted only for colour, or that constitute bare unfounded allegations should be struck out as scandalous. [17] A pleading that raises an issue that cannot influence the outcome of the action is scandalous. [18] The pleading is struck out because it serves no purpose other than to add colour or argument and to disconcert or humiliate the opponent. [19] References in pleadings to settlement offers, discussions, and negotiations, which are privileged communications, are scandalous, frivolous or vexatious and should be struck from the pleading. [20]

[56] In the immediate case, Mr. Coccimiglio’s Fresh as Amended Statement of Claim is an extravaganza of pleading violations, and the pleading is all of embarrassing, scandalous, frivolous, and vexatious. (His new pleading is not much better.)

[57] Where a pleading is overborne by its improperly plead allegations, it should be struck out or amended in its entirety. [21]

[58] Mr. Coccimiglio’s pleading is incapable of being amended. For whatever solace this may give him, Mr. Coccimiglio would not have been assisted and the outcome of striking the pleading would have been no different had he had a competent lawyer acting for him throughout. His pleading cannot be saved by being amended by a competent lawyer. A competent lawyer would tell Mr. Coccimiglio that he was legally wrong in declaring the sale transaction at an end. A competent lawyer would tell Mr. Coccimiglio to refund the deposit. And a competent lawyer would have told him that he ought not commence another action about the deposit because it would be re-litigation. Litigation lawyers are not miracle workers, and nothing can be done to revive Mr. Coccimiglio’s claim to the $100,000 deposit.

2. Res judicata and Issue Estoppel

[59] The last comment is a segway to a second and mutually exclusive reason for striking Mr. Coccimiglio’s Fresh as Amended Statement of Claim. Mr. Coccimiglio’s action is barred because of the principles of issue estoppel.

[60] Issue estoppel precludes a person from re-litigating a decision about an issue that was decided in previous proceedings. Issue estoppel prevents a litigant from re-litigating an issue that has been clearly decided by a court of competent jurisdiction in a previous proceeding between the same parties or their privies even if the new litigation involves a different cause of action. [22]

[61] Issue estoppel is a type of res judicata. As noted above, the material facts that would support all of the multifarious causes of actions or remedies claimed by Mr. Coccimiglio have already been decided against him in the partial summary judgment decision of Justice Schabas. That decision forecloses any re-litigation about the $100,000 deposit.

3. Res judicata and Collateral Attack

[62] The last comment is a segway to a third and mutually exclusive reason for striking Mr. Coccimiglio’s Fresh as Amended Statement of Claim. Mr. Coccimiglio’s action is barred because of the principles that bar a collateral attack on a prior court order.

[63] A collateral attack is an attack against an order in proceedings other than the proceeding in which the order was made with the object of reversing, varying or nullifying the order; this is regard as an abuse of process. [23] The underlying policy of the collateral attack principle is that an order made by a court or tribunal having jurisdiction to make the order stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed in a proceeding to have the order set aside on grounds of fraud or new evidence. The result of the collateral attack principle is that a court will not entertain a collateral attack against an existing court order that has not been set aside. [24]

[64] Mr. Coccimiglio pleadings are a collateral attack on the judgment delivered by Justice Schabas. Justice Schabas’ decision once again forecloses any re-litigation about the $100,000 deposit.

F. Conclusion

[65] For the above reasons, the Defendants’ motion is granted and the Fresh as Amended Statement of Claim is struck without leave to amend. The Defendants may take out the order without Mr. Coccimiglio’s consent as to form and content.

[66] If the parties cannot agree as to the matter of costs, they may make submissions in writing beginning with the Defendants’ submissions within twenty days after the release of the Reasons for Decision followed by Mr. Coccimiglio’s submissions within a further twenty days.

Perell, J. Released: March 8, 2024