Court File and Parties

COURT FILE NO.: CV-24-00717422 DATE: 2024-09-16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LESLIE ARTHUR SWAN, Plaintiff

AND: TIMOTHY DUGGAN, CATHERINE DEBBERT, MCD ENTERPRISES, DURHAM CONDOMINIUM CORPORATION #45, ELIA ASSOCIATES, BRIAN HORLIC, AND SHELDON INKOL, Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Frances A. Marinic, for the Plaintiff James R. G. Cook, for the Defendants

READ: September 13, 2024

Endorsement

Overview

[1] In this proceeding the Plaintiff sues a number of Defendants for conspiracy and defamation. The Statement of Claim is 81 pages long.

[2] The Respondents made a request of the registrar pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an Order that this proceeding be dismissed on the basis that, on its face, it is frivolous, vexatious or an abuse of process.

[3] On June 24, 2024, I directed the registrar to give notice to the Plaintiff that the court is considering making an order under r. 2.1.01.

Decision

[4] For the reasons that follow, I am satisfied that this case should be dismissed pursuant to r. 2.1.01.

The Issue

[5] The only issue is whether this proceeding is frivolous, vexatious or an abuse of process on its face.

Analysis

[6] Rule 2.1.01(1) provides as follows:

The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[7] As set out by Myers, J. in Gao v. Ontario WSIB and Ontario Ombudsman, 2014 ONSC 6100, 37 C.L.R. (4th) 1, at para. 9, r. 2.1.01(1) “is not meant for close calls.”

[8] The Plaintiff’s claim relates to his election to the Board of Directors of the Defendant Condo corporation, various activities related to his short tenure on the Board, and various legal proceedings and Court orders already made against him related to his activities as a Board member or unit owner. He says that:

• In 2009 he was elected to the Board, that the Defendants sought to improperly invalidate his election, that he was excluded from participation in Board business, and prevented from accessing financial information about the Condo corporation to fulfill his duties.
• Also in 2009, he says that the Defendants improperly sought to remove him from his position as Director citing his failure to act honestly and in good faith and failure to exercise the diligence and skill a reasonable person would exercise. He says such communications were defamatory and that the Defendants conspired to remove him from the Board with dishonest and defamatory allegations because of his actions in seeking to ensure compliance by the Board with the Condominium Act. There is reference within the body of the Statement of Claim to a Small Claims Court action the Plaintiff took against certain Defendants for defamation as result of the allegedly defamatory words used against him in the Requisition to remove him. Paragraph 140 indicates that the Small Claims Court action was determined in favour of the Defendants.
• In or around 2013, the Condo corporation brought an Application against him seeking various declarations pursuant to the Condominium Act related to his tenure on the Board alleging: breach of his obligations; acting without Board authorization; interfering with a meeting to vote on his removal from the Board; commencing Small Claims Court actions against the property manager in the name of the Condo corporation without authorization; conducting himself in an aggressive and intimidating manner; and seeking orders of compliance with the Condominium Act. The Statement of Claim says that the Application was determined against the Plaintiff also in or around 2013.
• The Condo corporation registered a lien against his Condo unit in or around 2013 which included costs ordered against him in the above Application.
• The Plaintiff references a summary judgment decision made in 2019 in some proceeding that he expressly admits rejected his request for indemnity and which concluded that the Condo corporation had a lien entitlement under the Act. He says that the Judge erred in this conclusion. However, he admits that this Judge’s decision was affirmed by the Court of Appeal. He says that the Judge and the Court of Appeal “did not undertake any independent review of the evidence” and argues that a Judge who considered and determined the quantum of a lien recalculation in 2022 disregarded his submissions. However, he also admits that he appealed this decision and that the Court of Appeal upheld the Judge’s decision in 2023, concluding that his appeal was frivolous and vexatious. The Supreme Court of Canada dismissed his Application for leave to appeal.

[9] The Statement of Claim is an abuse of process because it is a collateral attack against decisions and outcomes that have already been litigated.

[10] The Plaintiff also references a proceeding that the Condo corporation brought against him in 2023 in the amount of $259,707 for failing to pay common expenses owed by him. He alleges that this claim is fraudulent because it is based upon the lien recalculation as well as an additional $57,000 which “accrued on a non-defined basis after the lien recalculation and in the absence of any proof of entitlement”. He also says that the Condo corporation’s conduct in this regard is unlawful because the Judge in the 2013 Application did not obtain a compliance order.

[11] In his response to my June 24, 2024 endorsement, the Plaintiff submitted an 8 page response that further explains that the Condo corporation is currently seeking to seize the Plaintiff’s property in an Oshawa court based on what it says is a fraudulent lien claim which he says is the subject of this proceeding. He says that he has new counsel who reviewed the Condo corporation’s invoices and that they reveal substantial irregularities as well as billings in respect of the 2013 Application that do not relate to it. The submission also argues that the lien claim is invalid because the court in 2013 did not make a compliance order and that counsel for the Condo corporation is falsely claiming that the Condo corporation obtained a compliance order as well as an award of costs in the amount of $218,000 which has then been registered as a lien.

[12] He also advises that there are 3 concurrent matters before the court attempting to dismiss the Plaintiff’s claims which he says is for the express purpose of ensuring that issues raised in this proceeding never proceed before the court.

[13] This is really the point. There are other proceedings currently litigated where the Plaintiff has already raised his claim that the lien is fraudulent or invalid such that raising it again in this separate proceeding is an abuse of process. Even if he has not raised the issue that the Condo corporation’s lien is invalid in the Oshawa proceeding because of the issues set out in this Statement of Claim, that is the place to do so, not in this separate and new proceeding.

[14] As well, the Statement of Claim includes some of the hallmarks of vexatious proceedings including its length and repetitive nature.

[15] Finally, the Plaintiff’s references to alleged conspiracy to injure and defamation set out in the Statement of Claim related to actions that the Condo corporation took to allegedly undermine Mr. the Plaintiff’s Presidency in 2009. These are clearly statute barred and there is no plausible claim that these claims are not discoverable.

[16] This is not like the cases referenced in the Plaintiff’s submission, Currie v. Halton Regional Police Services Board which related to a plaintiff’s claim of being wrongly convicted based upon outrageous misconduct by counsel. It is also unlike Khan v Krylov & Company, 2017 ONCA 625, where the plaintiff sued his lawyer alleging fraud in respect of a settlement of his claim.

[17] Neither of those cases involved an issue that had already been litigated and in neither case was there another ongoing proceeding where the issue had already been raised or could be raised as is the case here.

[18] Therefore, I am dismissing this Claim on the basis that it is frivolous and vexatious and an abuse of process.

Justice Papageorgiou Date: September 16, 2024