COURT FILE NO.: CV-23-00005068-0000 DATE: 20240402

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GAURAV TEWARI, Plaintiff, AND: TONY AZIZ, SHERRY AZIZ, AMIR QUALITY MEATS, AMIR SPECIALTY POULTRY, BRIE THI (STEPHEN), MARTIN CZENKI, and MALLOT CREEK, Defendants

BEFORE: C. M. SMITH J.

COUNSEL: Mr. Tewari, self-representing Plaintiff Susanne Balpataky, Counsel for the Defendants, Tony Aziz, Sherry Aziz, Amir Quality Meats and Amir Specialty Poultry Eva Lane, Counsel for the Defendants Martin Czenki and Mallot Creek

HEARD: March 27, 2024

ENDORSEMENT

Overview

[1] The Plaintiff brings a motion pursuant to Rule 39.03 for an order permitting him to examine witnesses on the defendants’ pending motion to strike his pleadings. Specifically, the Plaintiff seeks to examine Mr. Tallib Deen, the plant manager of the Defendant, Amir Specialty Poultry, and Mr. Aaron Hibma, the Director of Food Safety of the Defendant, Mallot Creek. The Plaintiff claims the evidence of these two individuals is “vital” for his response to the defendants’ motion to strike his pleadings.

[2] The two groups of Defendants have each brought a motion to strike the Plaintiff’s pleadings pursuant to Rule 21.01(1)(b), Rule 21.01(3)(d), and Rule 25.11. Those motions are scheduled to be heard on the Spring 2024 running list.

The position of the Plaintiff

[3] In support of his motion the Plaintiff has filed a factum, his own affidavit sworn February 20, 2024, and a document titled “Exhibit.”

[4] The Plaintiff’s affidavit and his factum both contain a lengthy and detailed recitation of the history and nature of his complaint against the defendants. He makes regular and frequent use of florid language and often makes inflammatory accusations, for example, his suggestion the proposed witnesses were engaged in a conspiracy with his former employers to dismiss the plaintiff from his employment.

[5] The Plaintiff’s affidavit also includes a variety of charts as well as some photographs of dead chickens and of the Plaintiff’s pet dog, all of which relate to his animal cruelty concerns. It also includes some legal argument which appears to have been excerpted directly from his factum.

[6] The exhibits referred to in the Plaintiff’s affidavit are filed collectively in the separate document entitled “Exhibit.” It consists of 2098 pages of documents, including the Statement of Claim, which itself runs to some 212 pages, some social media reports about the Plaintiff’s work against animal cruelty, and the Plaintiff’s motion record in support of a motion in another proceeding 1 in which he seeks the same relief he seeks in this proceeding. The Plaintiff also included a decision from a court in India and a copy of the National Chicken Council Guidelines for Animal Welfare.

[7] While those documents make for interesting reading, none appear to relate directly to the issue before this court, that being whether the Plaintiff should be allowed to examine the two witnesses in question prior to the hearing of the defendants’ motions to strike, having regard for the provisions of Rule 21.

The position of the Defendants

[8] The Defendants take the position their motions to strike are pleadings motions which do not require an evidentiary foundation. Therefore, no evidence is admissible, at the instance of either party, on such a motion.

[9] The motions judge hearing those matters will operate on the assumption the Plaintiff’s pleadings are truthful and will conduct a legal analysis of that pleading in order to determine whether it sets out a reasonable cause of action on its face. That analysis requires no evidence, only the pleading itself.

Relevant legal principles

1. Statutory

1 Tewari v. Hillyer, Walmart et al , CV-22-ooooo374- 0000

[10] Rule 21.01(1)(b) provides a party may move before a judge 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 ground judgment accordingly.

[11] Rule 21.01(2)(b) provides no evidence is admissible on emotion under clause (1)(b).

[12] Rule 25.11 provide said a court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground the pleading (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

[13] Rule 39.03(1) provides a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

2. Common law

[14] I have been provided with a number of common law authorities by both parties were an issue before me.

[15] The Plaintiff points to the decision in Charbonneau v First Choice Canada Inc., 2016 ONSC 7140, where Master Brott found the threshold on a Rule 39.03 motion is low and therefore granted the plaintiff in that case leave to examine a witness in advance of a summary judgment motion.

[16] That case is readily distinguishable from the case at hand because it involved a summary judgment motion which by definition requires an evidentiary foundation and a determination on the merits. A motion to strike does not require an evidentiary foundation per Rule 21.01(2)(b).

[17] The Plaintiff also points to the decision in Payne v. Ontario Human Rights Commission, a decision of the Ontario Court of Appeal allowing the plaintiff appellant leave to conduct a Rule 39.03 examination ahead of a judicial review hearing.

[18] That case is also readily distinguishable from this case because an applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal in question put before the court hearing the review. In other words, a full evidentiary record is required in such a case, whereas here it is not.

[19] The Defendants have supplied me with the case of Scott v Marchand, 2020 ONSC 5234, in which the court held the decision whether to strike all or part of a pleading is based on the pleading itself and is not dependent on the evidence of a party. Evidence regarding the factual basis for a cause of action is not relevant on the pleadings motion.

[20] Similarly, in Tewari v. Sundar, 2021 ONSC 8404, a decision involving the same plaintiff and the same issue 2, Charney J. ruled there was “no basis to entertain the plaintiffs request to examine witnesses or disclose documents prior to the hearing of the defendant’s motion to strike” because of the provisions of Rule 21.01(2)(b).

Application of the relevant legal principles to the facts of this case

[21] This situation is no different from the situation the Plaintiff faced in the Tewari v. Sundar case, cited above. He is seeking to examine witnesses in advance of a motion to strike his pleadings with a view toward using that evidence to support his position on the motions to strike.

[22] Rule 21.01(2)(b), and the related caselaw, is explicit: no evidence is admissible on a motion to strike under Rule 21.01(1)(b), full stop.

[23] While evidence of a very limited nature is admissible on a Rule 21.01(3)(d) motion to strike for being frivolous, vexatious, or an abuse of process, evidence relating to the merits of the case, such as the evidence sought by the Plaintiff in this motion, remains inadmissible. A determination on the merits is simply not the object or purpose of a motion to strike: see for example Kawa v. 1Plus Corporation, 2022 ONSC 6527.

[24] I agree with the Defendants. The Plaintiff is, in effect, trying to convert the motions to strike into a summary judgment motion on an evidentiary record. This is nothing more than a fishing expedition to obtain evidence for use on the motion or, if the action survives the Defendants’ motions, at some future point in this proceeding. The Court of Appeal cautions against attempts to do so: see Baradaran v Alexanian, 2016 ONCA 533.

[25] The Plaintiff’s motion is dismissed.

Costs

[26] The parties may address me in writing on the subject of costs. Each party shall serve and file no more than two pages of submissions, double spaced, and in no less than 12 point font. Each party shall file a bill of costs as well as any offers to settle served. The Defendants shall serve and file their submissions on or before April 15, 2024. The plaintiff shall serve and file his submissions on or before April 22, 2024.

C. M. SMITH J. Date: April 02, 2024

2 Mr. Twari has a lengthy litigation history, often involving issues similar to the issue in this case: see, for example, Tewari v. McHenry et al, 2022 ONCA 335, Tewari v. Sekhorn, 2024 ONCA 123, and Tewari v. V.G. Limited o/a VG Meats, 2013 HRTO 1642.