Court File and Parties

COURT FILE NO.: CV-23-00693906-0000 DATE: 20240412 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Vahe Avagyan and Ava Law Professional Corporation, Plaintiffs -and- Elen Gasparyan, Elen Avagyan, Elina Marinosyan, Ani Davtyan, Anastasia Chinah, Health Bound Health Network Inc, Dragi Zekavica, John Doe and/or Jane Doe, Defendants

BEFORE: Robert Centa J.

COUNSEL: No one appearing for the plaintiffs Kathryn Marshall and Jeff Buchan, for the defendant Elen Gasparyan Elen Avagyan, self-represented defendant Charles Sinclair and Melanie Anderson, for defendants Dragi Zekavica and Elina Marinosyan Cameron Rempel, for the defendant Anastasia Chinh Alexander Voudouris, for the defendants Health Bound Network Inc. and Ani Davtyan

HEARD: April 12, 2024

Endorsement

[1] The defendants bring this motion to strike out the plaintiff’s amended statement of claim on the ground that it discloses no reasonable cause of action (rule 21.01(1)b)) and because the pleading is frivolous, vexatious, or an abuse of process (rule 25.11).

[2] The individual plaintiff is a lawyer, and the corporate plaintiff is his law firm. The Law Society of Ontario has suspended the plaintiff’s licence after its Tribunal found that he had engaged in professional misconduct. The plaintiffs did not file any affidavit evidence in response to the defendants’ motions under rule 25.11. They did not cross-examine on the defendants’ evidence. Despite the terms of my scheduling order, they did not file a factum on this motion. When counsel for the defendants attempted to contact the plaintiffs to ask about their overdue factum, they received no response. No one appeared on behalf of the plaintiffs at the hearing of this motion.

[3] While it is possible that the plaintiffs could have persuaded me that their claim disclosed a reasonable cause of action and that this action was not frivolous, vexatious, and an abuse of the court’s process, they have not done so. The claim is struck out in its entirety. Moreover, the plaintiffs’ failure to comply with my scheduling order, and their failure to engage meaningfully in this litigation (which, of course, they started) satisfies me that I should not grant them leave to amend this claim.

[4] The statement of claim is struck out in its entirety without leave to amend. The action is dismissed.

Parties and procedural history

[5] Mr. Avagyan is a lawyer. His licence to practice has been suspended by the Law Society after the Law Society Tribunal found him to have committed acts of professional misconduct.

[6] The defendants are a former articling student who worked for the plaintiffs and a group of articling students, lawyers, and friends of that articling student. The plaintiffs’ claims against this group of defendants are, viewed fairly, bizarre and difficult to follow. Putting the claims at their highest, the defendants (or some of them) are alleged to have:

a. falsely represented "sexual interest" in Mr. Avagyan and/or promised an intimate relationship with him, in one case allegedly in exchange for a job with the plaintiffs; b. "cyber-flirted" with Mr. Avagyan; c. conspired to injure the plaintiffs; d. defamed the plaintiffs; e. obtained, disclosed, threatened to use, and did use private and confidential information about the plaintiff and his family to obtain a financial benefit and advantage in a criminal proceeding; and f. withheld facts from the police.

[7] I was assigned to preside over a case conference in this matter on June 21, 2023. The defendants provided detailed and helpful memos in advance of the case conference. I set a timetable for the exchange of motion records, cross-examinations, and factums, and scheduled the motion to be heard today before me.

[8] The defendants filed their motion records, several of which contained affidavits. The plaintiffs filed a responding motion record that contained the pleadings, some requests to admit, demands for particulars and responses, but no affidavit.

[9] As the defendants intended to advance similar arguments, I directed that the defendants collaborate and file a “global factum” of no more than 20 pages to address common issues and a short rider of no more than 5 pages to address the particular situation of each defendant. This approach worked very well. It avoided needless duplication and produced focussed and helpful written submissions. I would encourage all litigants to adopt this approach in appropriate circumstances.

[10] As mentioned, despite my order, the plaintiffs did not file a factum and they did not appear at the hearing of the motions. The plaintiffs, therefore, have made no submissions to explain or support their statement of claim.

The statement of claim should be struck out under rule 21.01(1)(b)

[11] The proper approach on a rule 21.01(1)(b) motion is well settled. I am to take the facts asserted in the statement of claim as true unless they are patently incapable of proof or are merely bald conclusory statements of fact, unsupported by material facts. I am to read the statement of claim generously. The ultimate question is whether it is plain and obvious, assuming the facts pleaded to be true, that each of the pleaded claims discloses no reasonable cause of action. This is true where:

a. the allegations do not give rise to a cause of action; b. the plaintiff fails to plead a necessary element of a cause of action; or c. the allegations in the pleading are conjecture, assumptions, or speculation unsupported by material facts.

[12] This is a stringent test and the moving party must satisfy a very high threshold. However, if the claim has no reasonable prospect of success, where it is plain and obvious that the action cannot succeed, it should not be allowed to proceed to trial. Plaintiffs may not plead bald conclusions. If plaintiffs lack knowledge of the facts necessary to support the causes of action, they ought not to make the allegation in the statement of claim.

[13] Viewed generously, the statement of claim advances the following torts:

a. Intentional infliction of mental distress; b. Conspiracy; c. Defamation; d. Public disclosure of private facts; e. Malicious prosecution; and f. Intimidation

[14] The plaintiffs’ statement of claim is plainly deficient with respect to each of these torts. The plaintiffs fail to plead the required elements of many of the torts. Where the plaintiffs have pleaded the required elements of the torts, they have failed to plead material facts in support of those allegations. The plaintiffs have not pleaded the full particulars necessary to make out the pleadings of bad faith, where they have pleaded bad faith at all.

[15] The plaintiffs’ claim is a confusing and unfocussed document. In many cases, it is impossible to discern what the plaintiffs are even attempting to allege. This confusion is heightened by some of the plaintiffs’ responses to the demands for particulars. The particulars provided raise more questions than they answer.

[16] Moreover, the plaintiffs have not clearly pleaded what damages they have suffered and how those damages are linked to the each of the defendant’s alleged actions.

[17] In find that all of the claims are bound to fail. The statement of claim is struck out in its entirety.

Leave to amend should not be granted

[18] Leave to amend a claim should be denied only in the clearest of cases. While a party should not be given unlimited scope to amend its pleading, normally the court is reluctant to deprive plaintiffs of an opportunity to remedy a deficient pleading.

[19] On the other hand, where the challenged paragraphs are scandalous, frivolous or vexatious, a court is not required to grant leave to amend.

[20] In my view, this is an appropriate case to deny leave to amend. The statement of claim appears frivolous or vexatious. Moreover, the complete failure of the plaintiffs to follow my order regarding the delivery of their factum, and their failure to engage meaningfully in the defendants’ motion to strike the claim satisfy me that this entire action is frivolous, vexatious, and an abuse of the court’s processes. The plaintiffs have wasted the time and resources of the defendants and the court. I see no reason to allow this action to continue.

[21] I deny leave to the plaintiffs to amend the claim and dismiss the action in its entirety.

Costs

[22] Each of the represented defendants uploaded a costs outline prior to oral argument.

[23] Fixing costs is a discretionary decision under s. 131 of the Courts of Justice Act. In exercising my discretion, I may consider the result in the proceeding, any offer to settle or to contribute made in writing, and the factors listed in rule 57.01 of the Rules of Civil Procedure. These factors include but are not limited to: (i) the result in the proceeding; (ii) the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (iii) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (iv) the amount claimed and the amount recovered in the proceeding; (v) the complexity of the proceeding; (vi) the importance of the issues; and (vii) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding. Rule 57.01(1)(f) provides that the court may also consider “any other matter relevant to the question of costs.”

[24] In exercising my discretion to fix costs, I must consider what is fair and reasonable for the unsuccessful party to pay in this proceeding and balance the compensation of the successful party with the goal of fostering access to justice.

[25] In my view, it is appropriate to award each defendant their costs on a substantial indemnity basis. Litigation tactics that are improper and vexatious may be sanctioned through an award of costs. Given the frivolous and vexatious nature of the pleading, as well as the plaintiffs’ failure to comply with prior orders and to participate meaningfully in this action, I find that it is appropriate to award costs on a substantial indemnity scale.

[26] I find that amounts claimed by the following parties are fair and reasonable and I order the plaintiffs to pay to the following defendants these amounts, which are inclusive of HST and disbursements, as costs of the action:

a. Elen Gasparyan: $12,114.34 b. Anastasia Chinah: $15,915.55 c. Dragi Zekavica and Elina Marinosyan: $18,604.91 (while this amount is slightly higher than the other counsel, I was advised that counsel for these parties took the lead on the global factum, which explains the additional time).

[27] The costs claimed by counsel for Ani Davtyan and Health Bound Health Network significantly exceed those claimed by the other counsel. In my view, it is not fair and reasonable to require the plaintiffs to pay that amount in costs. I award these defendants $15,000 in costs.

[28] Elen Avagyan appeared self-represented on this motion. She did not have a costs outline but requested a costs order of $4,000 in respect of legal advice she obtained. I decline to make a costs order in her favour as there is insufficient evidence before me to justify that request.

[29] The defendants may deliver an order to my judicial assistant for my review and signature without the need to seek or obtain the consent of the plaintiffs as to its form and content.

Robert Centa J. Date: April 12, 2024