COURT FILE NO.: CV-24-00717874-0000

DATE: 2024-05-06

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Maryam Furney, Alex Furney, and the Estate of Mamlekat Adhami, Plaintiffs

-and-

AND: Ann Downie, 2137073 Ontario Inc., Arye Lankar, Lina Balian, Shawn Gabriel, Elena Keimakh, 2380376 Ontario Limited, Steve Hazan, Dominion Lending Centres Inc., Ian Minton, Mark Buslovich, Ryan Atkinson, Atkinson Law, Avi Freedland, Jordan Sobel, Maniaci Sobel Associates, Samir Chhina, Richard K. Watson, Mary Panek, Emilio Bisceglia, and Bisceglia and Associates, Defendants

BEFORE: Robert Centa J.

COUNSEL: Maryam Furney appearing for the plaintiffs, self-represented

Sahil Kesar, for Dominion Lending Centres Inc., defendant

HEARD: May 6, 2024

ENDORSEMENT

[1] The registrar’s office referred this action to me pursuant to rule 2.1.01(7) of the following receipt of a written request from lawyers for the defendant, Dominion Lending Centres Inc., under rule 2.1.01(6).[^1]

[2] On April 12, 2024, I directed the registrar to give notice to the plaintiffs that the court was considering making an order dismissing the action under rule 2.1.01: Furney v. Downie, 2024 ONSC 2146. The registrar provided that notice and invited the plaintiffs to make written submissions explaining why the action should not be dismissed. I have now reviewed the submissions that I received, and I conclude that the action is frivolous, vexatious, and an abuse of process. I dismiss the action without costs.

Rule 2.1

[3] Rule 2.1.01 permits the court to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of process of the court. In Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, Myers J. explained:

Rule 2.1 is not meant to apply to close calls. It is not a short form of summary judgment. But that does not mean that it is not to be robustly interpreted and applied. Where a proceeding appears on its face to meet the standards of frivolous, vexatious or an abuse of process, the court should be prepared to rigorously enforce the rule to nip the proceeding in the bud. Rigorous enforcement of this rule will not only protect respondents from incurring unrecoverable costs, but should positively contribute to access to justice by freeing up judicial and administrative resources that are so acutely needed to implement the “culture shift” mandated by the Supreme Court of Canada. The new rule tailors appropriate procedural fairness for the category of cases involved and is an example of early resolution of civil cases that is very much in line with the goals set out in Hryniak.

[4] The Court of Appeal approved of this approach in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733.

[5] A frivolous or vexatious motion lacks a legal basis or legal merit or has been brought without reasonable grounds. Frivolous and vexatious proceedings are often identified by, among other features, their use of rambling language which makes discerning a legitimate cause of action very difficult: Van Sluytman v. Orillia Soldiers' Memorial Hospital, 2017 ONSC 692, at para. 11.

[6] The court is not to use rule 2.1.01 for close calls. However, neither the opposing parties nor the court should be required to devote scarce resources to proceedings or motions that are clearly frivolous and vexatious. Allowing such proceedings to occupy space on the court docket takes time away from other, more meritorious cases. There is simply no benefit to allowing clearly frivolous and vexatious proceedings to continue: Dunning v. Colliers Macaulay Nicolls Inc., 2023 ONSC 73, at para. 26; Foley v. Victoria Hospital London Health Services Centre, 2023 ONSC 4978, at para. 5.

The action is frivolous, vexatious and an abuse of process

[7] The plaintiffs commenced this action on April 5, 2024. I note that the third plaintiff is “The Estate of Mamlekat Adhami.” A proceeding may be brought by an executor, administrator or trustee as representing an estate.[^2] If this action were to continue, this deficiency would need to be remedied and the title of proceeding amended accordingly.[^3] Moreover, Ms. Furney (who is not a lawyer) would not be able to act on behalf of the executor, administrator, or trustee. Ms. Furney may act on her own behalf but is not able to act for another person.[^4]

[8] The plaintiffs seek to recover damages, aggravated damages, exemplary damages, and to obtain “specific performance” of a $7 million funding commitment for various mortgages. In total, the plaintiffs seek to recover over $20 million in damages. The plaintiffs describe the underlying misconduct as “mortgage fraud and syndicate fraud.” The plaintiffs submit that “the conduct of the defendants as outlined herein has been so callous, predatory, Sociopathic [sic], criminal negligence causing death of an innocent elderly tenant” as to justify exemplary damages.

[9] I find that the action is frivolous, vexatious, and an abuse of the court’s process for five reasons.

[10] First, it is difficult to discern a plausible cause of action in the statement of claim. The statement of action alleges a wide-ranging conspiracy, but the allegations contain no particulars and are very poorly explained. It is very difficult to see the factual basis for any of the claims asserted. This is not the first time that the Furneys’ pleadings have been criticized for this problem.[^5]

[11] Second, seven of the defendants appear to have been lawyers acting for parties opposed in interest to the plaintiffs (or some of them) at various times. This is a common feature of a vexatious pleading.[^6]

[12] Third, it appears that the claim is a collateral attack on judgments obtained in other proceedings. No such action could possibly succeed.

[13] Fourth, the plaintiffs’ submissions delivered in response to the notice from the court confirm that this action is frivolous and vexatious. The plaintiffs used this opportunity to criticize a decision of Dineen J. as “unjust” and stated that “Justice Dineen has harassed us to death for some reason.” Such comments are manifestly inappropriate and are indicative of a vexatious approach to litigation.

[14] Fifth, I do not accept the plaintiffs’ submission that any of the endorsements of Dineen J., which concerned a different proceeding, have any bearing on whether or not this action is frivolous, vexatious, or an abuse of process. Justice Dineen’s endorsement was limited to the case before him and did not determine that this action should be allowed to proceed. In my view, it should not be permitted to proceed.

[15] I find that the action is frivolous and vexatious and an abuse of the court’s process. The action is dismissed without costs.

Robert Centa J.

Date: May 6, 2024

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^2]: Rule 9.01(1), Rules of Civil Procedure, R.R.O. 1990, Reg 194. [^3]: Rule 9.03. [^4]: Direck v. Ontario (Attorney General), 2010 ONSC 6054. [^5]: 2137073 Ontario Inc. v. Furney, 2024 ONCA 37, at para. 6. [^6]: Lang Michener Lash Johnston v. Fabian 1987 172 (ON SC), 59 O.R. (2d) 353, at para. 20(d) (H.C.J.).