Court File and Parties
COURT FILE NO.: CV-22-00676111-0000 DATE: 2024-07-04 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MARIO PARRAVANO, Plaintiff AND: THE CITY OF RICHMOND HILL, ONTARIO, DON GUY and KEITH CHAMBERS, Defendants
BEFORE: Parghi J.
COUNSEL: Lenard Kotylo, for the Plaintiff Tal Letourneau, for the Defendants
HEARD: June 19, 2024
Endorsement
[1] The Defendants seek an order striking the Statement of Claim, without leave to amend, on the basis that it discloses no reasonable cause of action under Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In the alternative, they seek an order dismissing the action on the ground that it is an abuse of process of the court under Rule 21.01(3)(d).
[2] The action was commenced on February 1, 2022 against the Defendant municipality (“the City”) and two of its employees. It alleges harassment, threats, family division, damage to the Plaintiff’s reputation, and malicious prosecution, all in connection with charges laid by the City under the Planning Act, R.S.O. 1990, c. P.13. against the Plaintiff’s brother and now-deceased father.
[3] For the reasons below, I grant the Defendants’ motion under Rule 21.01(1)(b) and order that the Statement of Claim be struck, without leave to amend, on the basis that it discloses no reasonable cause of action. I would also, in the alternative, grant the Defendants’ motion under Rule 21.01(3)(d) and order that the action be dismissed on the basis that it is an abuse of process of the court.
A. Background
[4] On April 22, 2021, the City issued a Notice of Zoning Contravention addressed to the Plaintiff’s brother, informing him that an inspection had been done of his property during which it was noted that the property was being used as a salvage yard. The Notice required the Plaintiff’s brother to remove all vehicles, parts, debris and equipment on the property. On February 7, 2022, the Plaintiff’s brother and father were each charged with the offence of using a building, structure, or land not in accordance with the City’s zoning by-laws, contrary to the requirements of the Planning Act. Proceedings were commenced in the Ontario Court of Justice in respect of these charges. On January 18, 2023, the charge against the Plaintiff’s father was stayed because he had passed away. On October 23, 2023, the Plaintiff’s brother pleaded guilty to the charge laid against him.
[5] These interactions among the City and the Plaintiff’s brother and father, culminating in the stay of charges and guilty plea, form the subject matter of the action. The Plaintiff himself was never charged with any offences under the Planning Act.
[6] The Plaintiff commenced his action a few months after the Notice of Zoning Contravention was issued and days before the Planning Act charges were laid. In the Statement of Claim, the Plaintiff purports to bring the action in his individual capacity and as a “trustee” for two of the properties subject to the charges, one owned by his brother and the other previously owned by his father. To date, the Plaintiff has not been named as a trustee of his father’s estate.
B. Preliminary issue: Use of affidavits on motion
[7] Both parties sought to tender affidavit evidence on the motion. The Plaintiff sought to rely on his own affidavit. The Defendants sought to rely on an affidavit from another lawyer at their counsel’s firm.
[8] Rule 21.01(2)(b) is clear that no evidence is admissible on a motion under Rule 21.01(1)(b). The judge on such a motion is to take the pleaded facts as provable and true; as such, evidence is neither necessary nor permissible (McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 29).
[9] However, the Rules do not preclude the use of evidence on a motion under Rule 21.01(3)(d). I therefore was required to determine which, if any, portions of the affidavit evidence were admissible for use in the Rule 21.01(3)(d) branch of the motion.
[10] Upon reviewing the affidavits and hearing from the parties, I ruled that paragraphs 7, 11, and 12 of the Plaintiff’s affidavit, and paragraphs 11 and 12 and Exhibits A, B, and C of the Defendants’ affidavit, were relevant to and could be relied on for the Rule 21.01(3)(d) branch of the motion only. The Defendants assert that the Statement of Claim is an abuse of process under Rule 21.01(3)(d) because it is an improper collateral attack on the proceedings commenced by the City against the Plaintiff’s brother and father under the Planning Act. Portions of the affidavit evidence address the Planning Act proceedings and the Plaintiff’s commencement of the action “to defend” his parents “from the [City’s] claim.” As such, they are relevant to the collateral attack claim underlying the Rule 21.01(3)(d) branch of the motion. I ruled that the remaining affidavit evidence was not to be relied on in either branch of the motion.
[11] I also noted that, in any event, Exhibit A of the Defendants’ affidavit, which consisted of the Notice of Zoning Contravention issued to the Plaintiff’s brother on April 22, 2021, was referred to in the Statement of Claim. It therefore was incorporated by reference into the Statement of Claim and the court is entitled to read and rely on it (Trihar Holdings Ltd. v Lambton (County), 2008 ONCA 360, at para. 3).
C. Motion to strike the Statement of Claim for not disclosing a reasonable cause of action under Rule 21.01(1)(b)
1. Legal test
[12] In a motion to strike under Rule 21.01(1)(b), the test is whether, reading the Statement of Claim generously, and assuming that the facts in it can be proved, it is plain and obvious that there is no reasonable prospect that the action can succeed (Frank v. Legate, 2015 ONCA 631, 339 O.A.C. 359, at para. 36; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980).
[13] The facts pleaded in the Statement of Claim “are the firm basis upon which the possibility of success of the claim must be evaluated” under Rule 21.01(1)(b) (Floryan v. Luke et al., 2023 ONSC 5108, at para. 8). A party must plead all of the facts that it must prove to establish a cause of action (Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.), at para. 20; Floryan, at para. 8).
[14] All allegations of fact pleaded are generally assumed to be true for the purposes of this analysis. However, this principle does not apply if the pleaded factual allegations are patently ridiculous or manifestly incapable of proof (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 21-22). Nor does it apply to bald conclusory statements of fact unsupported by material facts (Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, 136 O.R. (3d) 654, at para. 15; Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721, at para 31). In this vein, the Court of Appeal has upheld a lower court’s decision to strike a portion of a pleading where “the brief reference to [the] tort in the pleading was so vague that a defendant who read it would have no idea what conduct was being alleged against them” (Frank, at para. 84).
[15] The court is to read the impugned pleading generously to allow for drafting deficiencies and the plaintiff's lack of access to key documents and discovery information (Transamerica Life Canada Inc. v. ING Canada Inc. (2003), 68 O.R. (3d) 457 (C.A.), at para. 38; Rausch v. Pickering (City), 2013 ONCA 740, 313 O.A.C. 202, at para. 34).
[16] This Court has recently commented on the policy rationale behind Rule 21.01(1)(b), observing in Floryan that
the power to strike claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial, thereby promoting two goods: correct results and efficiency in the conduct of litigation.
The importance of applying critical analysis to prevent untenable claims from proceeding has been emphasized increasingly in the current age of scarce judicial resources and systemic delay.
2. Statement of Claim
[17] Read generously, the causes of action advanced by the two-page Statement of Claim in this matter are malicious prosecution (for which the Plaintiff seeks $5 million), and threats, harassment, family division, and damage to the Plaintiff’s reputation (for which the Plaintiff seeks $2 million in punitive damages). The facts pleaded in in the Statement of Claim, again, read generously, are as follows:
a. That the rear portions of three properties owned by the Plaintiff and his family have been continually used to store private vehicles owned by the Plaintiff, and this is a “legal non-conforming use of the properties that can continue until the Plaintiff sells the properties or ceases use” and about which the Defendant City had no complaints “for over 45 years”;
b. That the Plaintiff was issued a building permit by the City in 1977 to build a garage and storage area on the rear portion of the properties, to be used to repair the Plaintiff’s vehicles and store auto parts and vehicles, and it has been used continuously for this purpose ever since;
c. That in 1983 the garage and certain automobiles were damaged in a fire, the garage was repaired immediately afterward, and it has been used continually ever since;
d. That in April 2021, the Defendants presented the Plaintiff with an Order to Comply to remove the vehicles, and have “continually harassed the Plaintiff ever since in this regard with letters and threats”. The Defendants have “exacerbated their harassment of the Plaintiff with threats of enforcement and seizure in letters, emails and discussions all without just cause” and have “provoked a family conflict in this regard by improperly, prejudicially, and illegally coercing and aligning with a family member against the Plaintiff, confirmed in documents, emails, and tape recording”; and
e. That the Plaintiff has tried, without success, to resolve the matter with the Defendants.
[18] The Statement of Claim does not particularize or offer any facts in support of these broad allegations. It does not discuss any specific interactions between the City and the Plaintiff or his family members, either before or after the Notice of Zoning Contravention was issued. It does not provide any particulars on the dates or nature of the alleged harassment, threats, emails, or discussions. It does not explain the family conflict allegedly provoked by the Defendants or the allegedly illegal alignment between them and the Plaintiff’s family member. It does not explain how the Defendants’ conduct was improper, prejudicial, or illegal, or how it amounted to coercion. It does not discuss the Defendants’ alleged state of mind or motivation.
3. Causes of action against the City
[19] Below, I consider each of the purported causes of action advanced in the Statement of Claim and apply the Rule 21.01(1)(b) test to them.
Harassment
[20] The Statement of Claim alleges that the Defendants have engaged in “harassment” of the Plaintiff. Harassment is not a recognized tort under Ontario law. The Ontario Court of Appeal has declined to recognize harassment as a tort (Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494, at para. 43).
[21] The courts have expressly considered, and rejected, harassment claims in the context of disputes between municipalities and residents. In McDonald v. Belleville (City of), 2021 ONSC 1049, a resident to whom a municipal Property Standards Order was issued claimed harassment, among other things. The court struck the claim, citing Merrifield and holding that there “is no such civil claim actionable” (para. 29).
[22] I find that harassment is not a reasonable cause of action. Even if it were, adequate material facts have not been pleaded in its support, as discussed above.
Threats
[23] The Statement of Claim alleges that the Defendants have made “threats” against the Plaintiff. Threatening someone is not a recognized tort (The Score Television Network Ltd. v. Winner International Inc., 2007 ONCA 424, at para. 2).
[24] While “threats” are an element of the tort of intimidation, the tort of intimidation is not properly pleaded in the Statement of Claim. The tort of intimidation is recognized as having four elements: a threat, intent to injure, some act taken or foregone as a result of the threat, and resulting damages to the plaintiff (Score Television Network, at para. 1). Only the first of these four elements, a threat, is pleaded in the Statement of Claim. However, it is pleaded without any facts in support of it. This is a bald allegation that lacks particulars.
[25] The remaining three elements of the tort of intimidation are not pleaded at all. The Statement of Claim does seek “punitive damages caused by threats,” but punitive damages are not compensatory in nature and cannot be said to be tied to any damages that the Plaintiff has experienced.
[26] The Ontario Court of Appeal has reiterated that a claim that alleges intimidation but does not plead all of its elements may be struck (Score Television Network, at para. 1).
[27] I find that threats do not form a reasonable cause of action. Even if it were, adequate material facts have not been pleaded in its support, as discussed above.
Family division
[28] The Statement of Claim alleges that the Defendants have engaged in “family division”. This, too, is not a recognized tort. The Plaintiff offered no case law to suggest otherwise.
[29] I find that family division is not a reasonable cause of action. Even if it were, adequate material facts have not been pleaded in its support, as discussed above.
Damage to reputation
[30] The Statement of Claim alleges that the Defendants have brought about “damage to” the Plaintiff’s “reputation”. This is not a recognized tort. It is one element of the established tort of defamation. However, the Statement of Claim does not plead defamation. Nor does it identify or plead any defamatory statement.
[31] I find that damage to reputation is not a reasonable cause of action. Even if it were, adequate material facts have not been pleaded in its support, as discussed above.
Malicious prosecution
[32] The Statement of Claim alleges that the Defendants have engaged in malicious prosecution. This is a recognized tort. However, it is not supported by the pleadings or the factual allegations in the Statement of Claim.
[33] There are four elements to the tort of malicious prosecution: the defendant initiated a proceeding, the proceeding terminated in favour of the plaintiff, the defendant had no reasonable and probable cause to initiate the proceeding, and the defendant acted with malice. These elements must each be pleaded (Kvello v. Miazga, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 53-56).
[34] I find that these elements are not pleaded. The Statement of Claim does not assert that a proceeding was initiated against the Plaintiff. Indeed, it could not make such an allegation, because the proceedings at issue were initiated against the Plaintiff’s family members, and not the Plaintiff himself.
[35] Nor does the Statement of Claim plead that any proceeding terminated in favour of the Plaintiff. Indeed, because he was not charged, no proceeding could possibly have terminated in his favour. Nor did any proceedings terminate in favour of any of the Plaintiff’s family members: one charge was stayed, and one charge received a guilty plea.
[36] Finally, the Statement of Claim does not properly plead that any of the Defendants acted with malice. It pleads that the Defendants acted “without just cause” and “improperly, prejudicially, and illegally coercing and aligning with a family member against the Plaintiff”. However, these are not allegations of malice. They do not address the Defendants’ motivations or state of mind. Acting without justification, improperly, or illegally is not the same as acting with malice.
[37] Even if one read these assertions very expansively and concluded that they did somehow assert malice, they would amount only to bald allegation of malice, and nothing more. This is not adequate. Rule 25.06(8) is clear that, where malice is alleged, a pleading must contain “full particulars”. The courts have echoed this view, holding that where malice, or actions that can be characterized as malice, are pleaded, “there is a heavier onus to set out the material facts relied upon. The pleading must contain full particulars” (Sousa v. Attorney General of Ontario, 2022 ONSC 6730, at para. 30; Aristocrat Restaurants, at para. 21). The Statement of Claim contains neither allegations of malice nor particulars of any such allegations.
[38] I find that malicious prosecution, as pleaded in this Statement of Claim, is not a reasonable cause of action.
Conclusion
[39] Accordingly, I find that the Statement of Claim does not disclose any reasonable cause of action against the City.
4. Causes of action against individual City employees
[40] The action also names two individual Defendants. One of the Defendants is identified in the Notice of Zoning Contravention as the employee who conducted the inspection of the Plaintiff’s brother’s property which resulted in the City issuing the Notice of Zoning Contravention. No specific facts are pleaded in the Statement of Claim about that Defendant’s conduct. The second individual Defendant is not identified in the Notice of Zoning Contravention or discussed in the Statement of Claim itself. It is not clear what specific allegations, if any, are being made about either individual Defendant, or what material facts are being pleaded about either individual Defendant’s conduct. This approach to pleading is deficient.
[41] Its deficiency is even greater having regard to the immunity provision in section 448(1) of the Municipal Act, 2001, S.O. 2001, c. 25. That provision shields municipal employees from civil liability where they are acting in good faith. It provides:
448(1) No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.
[42] The effect of this provision is to require a pleading against a public employee to plead that the employee acted outside of the scope of their authority or in bad faith. If these are not pleaded, the immunity afforded to the employee under section 448(1) prevails, and no cause of action lies against them.
[43] The Statement of Claim does not allege that either individual Defendant acted in bad faith or outside of their duties or authorities as City employees. As noted above, it says nothing at all about either individual Defendant, except to the extent that the Notice of Zoning Contravention identifies one of the individual Defendants as having conducted a property inspection.
[44] The courts have struck claims against municipal employees, without leave to amend, based on section 448(1). They have done so in the specific context of by-law enforcement, which is the conduct at issue here. In one such case, the court held that there were “no allegations” that the defendant municipal employee “did anything in her personal capacity or in any way acted outside of the broad immunity conferred by statute upon public employees acting in the good faith performance of their duties” (McDonald, at para. 31).
[45] I find that the same principles apply here. The Statement of Claim does not plead that either of the individual Defendants acted in bad faith. Indeed, it makes no specific allegations about either of the individual Defendants. Even if one reads the Statement of Claim as advancing all of its allegations against all of the Defendants, it would still fall short of adequately pleading bad faith. It pleads that the Defendants acted “without just cause” and “improperly, prejudicially, and illegally coercing and aligning with a family member against the Plaintiff”. These are not allegations of bad faith. They do not address the individual Defendants’ motivations or state of mind. Even if they were found to be allegations of bad faith, they would be bald allegations, unsupported by any pleaded facts. There is accordingly no basis for an exception to the immunity afforded to the individual Defendants under the Municipal Act.
[46] I therefore find that the Statement of Claim does not disclose any reasonable cause of action against the individual Defendants.
5. Plaintiff’s late proposal to amend pleading
[47] In oral argument, counsel for the Plaintiff conceded that the tort of malicious prosecution is not properly pleaded. He advised, for the first time, that he is prepared to no longer advance the remaining purported causes of action (harassment, threats, family division, and damage to reputation) as self-standing causes of action. He is prepared to amend the Statement of Claim as follows:
a. By replacing the words “malicious prosecution” with “bad faith,” such that he would now be pursuing an action of “acting in bad faith” against the Defendants and abandoning the malicious prosecution claim;
b. By advancing the remaining allegations (of harassment, threats, family division, and damage to reputation) not as self-standing claims, but rather as facts relevant to the claim for damages under the cause of action of “acting in bad faith”;
c. By abandoning the claim for punitive damages; and
d. By not naming the two individual Defendants.
[48] The Plaintiff describes “acting in bad faith” as a self-standing tort that he wishes to now claim in place of malicious prosecution. Interpreting the Plaintiff’s submissions expansively, and having regard to the case law he cited during his submissions, it appears that the Plaintiff is now proposing to plead misfeasance in public office instead of malicious prosecution.
[49] Even if the pleading were amended in this fashion, it would still be inadequate. It would fail to plead the essential elements of misfeasance in public office, which include deliberate unlawful conduct in the exercise of public functions and awareness that such conduct is unlawful and likely to injure the plaintiff (Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 32). Neither of these is pleaded. At its highest, the Statement of Claim alleges unlawful conduct by the Defendants, but it does not claim that their conduct was deliberately unlawful. Nor does it claim that they were aware that their conduct was unlawful and likely to injure the Plaintiff, who was a third party to the Notice of Zoning Contravention and related enforcement proceedings. Nor are any material facts pleaded that, if assumed to be true, would support such pleadings.
[50] To the extent that the Plaintiff proposes to make a broader, self-standing claim of “bad faith” unrelated to misfeasance in public office, his proposed amendment would still be inadequate. He has provided no case law to support his assertion that “bad faith” is a self-standing claim, as a matter of law, in this factual context. In any event, as discussed above, I find that the Statement of Claim does not plead bad faith or any material facts in support of any claim of bad faith.
[51] As such, even if the tort of malicious prosecution were amended to be replaced with an allegation of “acting in bad faith,” as the Plaintiff now proposes, the Statement of Claim would not meet the requirements of Rule 21.01(1)(b).
[52] The Statement of Claim is therefore struck, without leave to amend. The amendments that the Plaintiff proposes to make will not save the pleading.
D. Motion to dismiss the action as an abuse of process of the court under Rule 21.01(3)(d)
[53] The Plaintiff’s alternative request for relief is that the action be struck under Rule 21.01(3)(d) on the basis that it is frivolous, vexatious or otherwise an abuse of process. Although it is not necessary for me to consider this alternative request given my finding on the Rule 21.01(1)(b) branch, I would nonetheless grant the motion on the basis of Rule 21.01(3)(d) as well.
[54] In this branch of the motion, the Defendants have focused on the “abuse of process” language in Rule 21.01(3)(d). They submit that this action is an improper collateral attack on enforcement proceedings commenced by the City against the Plaintiff’s family members and resolved through a stay (in the case of the Plaintiff’s father) and a guilty plea (in the case of his brother). The Defendants submit that those proceedings have been concluded and that this action is an improper attempt to reopen them. They also submit that the Plaintiff himself was never the subject of those proceedings, and as such any attempt by him to relitigate them is doubly improper.
[55] I agree.
[56] The Plaintiff is a stranger to the Property Act proceedings that he impugns through this litigation. Although the Statement of Claim pleads that “[t]he Plaintiff and its family have owned, still own, and reside on” the properties subject to the Notice of Zoning Contravention, the Plaintiff did not, in fact, own either of the properties at the material time. This was not disputed during the hearing before me. Although the Statement of Claim pleads that “the Defendants presented the Plaintiff” with the Notice of Zoning Contravention, the Notice of Zoning Contravention was in fact issued in the name of the Plaintiff’s brother. The Plaintiff was never the subject of the Property Act proceedings. This, too, was not disputed during the hearing.
[57] Moreover, the goal of this litigation is essentially to relitigate the Property Act proceedings. The Statement of Claim seeks to advance a legal defence to the Property Act proceedings. It pleads, “The Plaintiff maintains that the vehicles [parked on the properties] are protected under the legal non-conforming use status of the properties and, as such, the Defendants are statute barred in this regard. The onus remains on the City to disprove non-conforming use.” That the Plaintiff is using this action to relitigate the Property Act proceedings is further underscored by his affidavit evidence that he commenced this action “on behalf of my elderly parents to defend them from the Town’s claim.” In the hearing, the Plaintiff’s counsel did not dispute that his client brings this action to re-argue the Property Act proceedings. He acknowledged it, and pointed to it as a reason why I should allow the Plaintiff to pursue this action.
[58] It would be an abuse of process for me to do so. The City commenced those proceedings not against the Plaintiff, but against his family members. Moreover, those proceedings are now resolved by a court of competent jurisdiction. The Plaintiff cannot re-open and re-litigate them. He cannot have another “kick at the can” on behalf of his family members. If he wished to advance, or encourage his family members to advance, the “legal non-conforming use” defence against the City, he should have done so during the Property Act proceedings. To allow him to do so now would be abusive. It would undermine important public policy objectives, including facilitating the finality of proceedings and the appropriate and efficient use of judicial resources (Re Lang Michener and Fabian (1987), 59 O.R. (2d) 353 (H.C.), cited in Currie v. Halton Regional Police Services Board (2003), 179 O.A.C. 67 (C.A.)). There are many examples in case law of the courts striking collateral attacks on administrative and judicial proceedings as abusive of process (see: Fragomeni v. Greater Sudbury Police Services, 2015 ONSC 3984; Becky v. London (City), 2015 ONSC 4456, Isaac v. LSUC, 2014 ONSC 6813).
[59] For the reasons outlined above, I find that the claim is an abuse of process under Rule 21.01(3)(d) and should be dismissed.
E. Conclusion
[60] I therefore grant the Defendants’ motion under Rule 21.01(1)(b) and order that the Statement of Claim be struck, without leave to amend. In the alternative, I would grant the Defendants’ motion under Rule 21.01(3)(d) and order that the action be dismissed as an abuse of process of the court.
[61] The parties are to work together to resolve the issue of costs. If they are unable to resolve the issue on their own within 30 days, they are to notify me.