Court File and Parties

Court File No.: CV-23-0460-00 Date: 2024-09-26 Superior Court of Justice – Ontario

Between: Stephen Mikus, Self-Represented, for the Plaintiff And: Bank of Montreal, James Cook, for the Defendant

Heard: In writing

Before: Regional Senior Justice W.D. Newton

Decision on Motion

Overview

[1] On June 11, 2024 Warkentin J. made an endorsement which including the following:

[1] The plaintiff, Stephen Mikus commenced a Statement of Claim on November 23, 2023, against the Bank of Montreal. The Statement of Claim was apparently served on the Bank of Montreal via email. Rule 16.01 of the Rules of Civil Procedure require a Statement of Claim (originating process) to be personally served. No Statement of Defence has been filed.

[2] On June 5, 2024, the plaintiff filed 2 Notices of Motion. One to obtain default judgment against the Bank of Montreal and one seeking what appears to be a Sealing Order. Both motions indicate they are returnable on June 13, 2024, in person. There are no affidavits of service of these motions and no indication that the Defendant was served with these motions.

[3] This matter was referred to me by the registrar’s office and by Regional Senior Justice D. Newton for review pursuant to Rule 2.1 of the Rules of Civil Procedure.

[9] It is apparent on the face of the Statement of Claim that this action may be frivolous, vexatious, and an abuse of the process of the court. I therefore make the following orders:

a) Pursuant to Rule 2.1.03, numbers 1 and 3, the registrar is directed to give notice to the Plaintiff in Form 2.1 A that the Court is considering making an order under Sub-rule 2.1.01 dismissing the action;

b) Pending the outcome of the written hearing under rule 2.1 or further order of the court, the Plaintiff’s action is stayed pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c.C.43;

c) The registrar shall accept no further filings in this action excepting only the Plaintiff’s written submissions if delivered in accordance with sub-rule 2.1 .01(3).

Procedural History to Date

[2] Mr. Mikus originally commenced an action against the Bank of Montreal in this court in Toronto on March 17, 2021. By endorsement dated April 19, 2021 Myers J. stated:

The plaintiff has made no effort to set a concise set of facts upon which is loss is based. There is no way to know what the plaintiff says the bank has done wrong or how it differs from what is already before the Small Claims Court. There is no way for the bank to respond to the plaintiff’s claim in the absence of allegations of material fact upon which a claim can be based.

At a minimum, the Statement of Claim needs to be revised to set out the plaintiff’s story. If it is the same as the claim before the Small Claims Court, a second lawsuit for the same wrongdoing will not be allowed. If the plaintiff says that he has suffered damages in an amount greater than the Small Claims Court monetary limit, he must provide a detailed explanation in his Statement of Claim as to how this can be established.

[3] He also directed the registrar to give notice to the plaintiff that the court is considering making an order under Rule 2.1.01 dismissing this action.

[4] By endorsement dated May 3, 2021, Myers J. struck out the original statement of claim and gave the plaintiff 60 days in which to revise the statement of claim.

[5] Two- and one-half years later, the plaintiff commenced this action in Thunder Bay. The statement of claim contains detail that was not in the prior claim. As noted by Warkentin J., the statement of claim has not been properly served.

Response to 2.1 Notice

[6] By email dated June 18, 2024, Mr. Mikus delivered his response to the Rule 2.1 notice. The email was copied to Mr. James Cook, who identified himself as counsel for the defendant by Notice of Change of Lawyer served upon Mr. Mikus on June 14, 2024, by mail. The defendant did not file any submissions in response.

[7] Mr. Mikus’s response to the Rule 2.1 notice began by responding to Justice Warkentin’s comments in the endorsement of June 11, 2024 that the statement of claim has never been served. He asserts that “multiple people and parties including internal and external lawyers have been notified and served by email for this lawsuit.” The claim has not been served properly.

[8] The statement of claim seeks damages of $100,000, punitive damages of $1,250,000, and interim and permanent injunctions requiring the defendant to remove information from law firms, claims, court documents and restraining the defendant from publishing defamatory statements about the plaintiff. The statement of claim continues for 155 paragraphs and ends with copies of emails from bank personnel and then eight pages of documents from various websites. A recurring complaint is that a wire fee was non-refundable, and that the plaintiff had difficulty getting funds while he was stranded in Mexico due to the pandemic. He states that he commenced a small claims court action “thinking the bank would take this issue a little more seriously… .”

[9] With respect to damages, he states:

1. The closure of my accounts, the restrictions placed on my account I was unable to function normally.
2. I required loans from 3rd parties to fill the gap between my cash in hand and cash flow.
3. I ended up taking over $25,000 Cad in loans from 3rd party incurring large fees to go around the bank to get cash that took a large amount of time and energy.
4. I lost $50,000 cash in revenue, deposits through this endeavour.
5. I was denied the right to file for Covid Hascap business loan because Patricia Vanekenel ordered the business loan employee of BMO to refuse my loan process.
6. My business suffered horribly dealing with the bank over this $25 fee.
7. I lost customers because of this issue.

[10] Although it is difficult to discern the impression that I have is that the claim relates to the failure of the bank to provide services to the plaintiff and the closure or threats to close his account.

[11] His response to the Rule 2.1 notice refers to personal information issues raised in a Small Claims Court file. The Small Claims Court claim action begins with the following statement:

The Bank of Montreal during Covid refused provide a $25 refund on a wire. They then threatened me to Stop asking for a refund with a demand that they would close my account.

[12] That claim was against BMO Investorline, the president of Investorline, and senior lawyers at Borden Ladner Gervias. Deputy Judge Jamieson dismissed the claims against all the defendants at a settlement conference on June 7, 2023 as no reasonable cause of action was made out and, further, as the claims were a waste of time and a nuisance. (Rule 12.02(1)(c) of the Rules of the Small Claims Court). The defence filed in that case noted that Mr. Mikus had sued the Bank of Montreal in Small Claims Court in Toronto in 2001 seeking an order that the Bank not close his accounts. That action was dismissed as that court did not have jurisdiction to make that order.

The Test under Rule 2.1.01

[13] Rule 2.1.01 provides that 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.” Dismissal under this rule can also be requested by any party to a proceeding.

[14] This rule’s purpose is “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”. [1]

[15] The Court of Appeal has stated that this rule is:

…an extremely blunt instrument. It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment or a trial. [2]

[16] As Gomery J., as she then was, noted in Sumner v. Ottawa (City) Police Services [3]:

5. In considering whether a claim ought to be struck under r. 2.1.01, the judge must read the statement of claim generously. They must assume that the assertions of fact are true unless they are obviously implausible or ridiculous. They must carefully consider whether the plaintiff may have a viable cause of action, even if none is obviously pleaded. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt. This is particularly important if the plaintiff is self-represented.

Analysis

[17] To begin with, this claim has not been properly served. The statement of claim was to be served within the six months. It was not. No motion to extend the time for service was brought.

[18] Secondly, the claim as presently drafted is mostly incomprehensible. The part of the claim that is comprehensible is from paragraph 127 to 132 as reproduced above. The claim arises over an disagreement over a $25 refund and the closure of Mr. Mikus’s accounts.

[19] Mr. Mikus’s conduct in commencing multiple proceeds relating to the same claim is an abuse of process.

[20] Requiring the defendants to take any steps to defend this action or to present a motion to dismiss the action would be a waste of their time and resources and those of the court. This is a claim that has not been properly served and the time to serve the claim has expired.

[21] This action is dismissed.

“Original signed by” The Hon. Mr. Justice W.D. Newton, R.S.J.

Released: September 26, 2024

Citations

[1] Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664 at para. 3. [2] Khan v. Krylov & Company LLP, 2017 ONCA 625 at para. 12. [3] 2022 ONSC 1651.