Court File and Parties

Court File No.: CV-13-00002155 CV-24-00001793 Date: 2024-12-31 Superior Court of Justice – Ontario

BETWEEN: THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA, Plaintiff

• and –

ROYAL BANK OF CANADA, GURRAPPADI, Siva, SYKES, William, RADHAKRISHAN, Usha, WILSON, Sheila, ATTORNEY GENERAL OF CANADA, CARVER, Phillip, YANG, Albert, and THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO, Defendants

AND BETWEEN: ROYAL BANK OF CANADA, Plaintiff

• and –

SHANTA M. KUMAR aka SHANTHAKUMAR MYLABATHULA aka SHANTHA KUMAR MYLABATHULA aka SULOCHANA SHANTHAKUMAR aka SANTHA A. MYLABATHULA aka SANTHAKUMAR MYLABATHULA aka SANTHA KUMAR MYLABATHULA aka SANTHA MYLABATHULA aka SANTA KUMAR MYLABATHULA and THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA, Defendants

AND BETWEEN: SANTA KUMAR MYLABATHULA and THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA, Plaintiffs by Counterclaim

-and-

ROYAL BANK OF CANADA and GREGORY BOWDEN, Defendants by Counterclaim

Before: LEMAY J

Counsel: Peter M. Callahan, for the plaintiff (pcallahan@pmclaw.ca) Gregory W. Bowden, for the defendants ROYAL BANK OF CANADA; GURRAPPADI, Siva; SYKES, William; RADHAKRISHAN, Usha and WILSON, Sheila (gwb@lbnfirm.com) Karen Watt, for the defendants ATTORNEY GENERAL OF CANADA, CARVER, Phillip and YANG, Albert (Karen.watt@justice.gc.ca) Niki Manwani, for an interested party LD Law LLP (nmanwani@kmlaw.ca) (Not appearing) Gregory W. Bowden, for the Plaintiffs (in the RBC action) Peter M. Callahan, for the Defendants (in the RBC action) Peter M. Callahan, for the Plaintiffs by Counterclaim Gregory W. Bowden, for the Defendant by Counterclaim

Heard: July 15, 2024

Reasons for Judgment

Overview

[1] I have been case-managing this series of actions for a considerable period of time. The original action involved a series of claims brought by the late Ms. Sulochana Shanthakumar against the Royal Bank of Canada as a result of an alleged wrongful arrest in 2010. Ms. Shanthakumar was arrested and charged after she sought to borrow money from RBC with her husband, Mr. Santha Kumar Mylabathula, purportedly for a plastics business. However, both RBC and the RCMP, which was also a party to the original action, believed that Ms. Shanthakumar and Mr. Mylabathula were attempting to defraud RBC with the loan.

[2] The original action sought damages for negligence, negligent investigation, malicious prosecution, defamation, breach of statutory duty, conspiracy to breach statutory duty, breach of Charter rights and interference with economic relationships. The original action languished before the Courts for a long period of time.

[3] Ms. Shanthakumar passed away in the summer of 2021, and the action was continued by her Estate, which was represented by Mr. Mylabathula. Ultimately, the claims in the original action against RBC and the various individuals employed by RBC were dismissed by Ricchetti J. (see 2023 ONSC 6100).

[4] However, that was not the end of the matter. After Ms. Shanthakumar died, and while the original action was still before the Courts, a property that she owned was transferred from her name to the name of her Estate and then, ultimately, to Mr. Mylabathula. These transfers took place at a point when there were outstanding costs awards against Ms. Shanthakumar’s estate. Some of those costs awards have subsequently been paid. However, at this point, the estate still owes RBC in excess of $100,000 in costs on account of various steps in the original claim. The RCMP is also owed money on account of various steps in the original claim.

[5] RBC alleged that the transfer of the property originally owned by Ms. Shanthakumar was fraudulent. They sought an order requiring Mr. Mylabathula to pass the accounts of Ms. Shanthakumar’s estate. I granted that order while the original claim was before the Courts (see 2023 ONSC 2209). In addition, as part of the steps that RBC took to enforce the costs awards, it brought a further claim against Mr. Mylabathula and the Estate of Ms. Shanthakumar.

[6] This new action is, essentially, a claim that Mr. Mylabathula fraudulently transferred the property from Ms. Shanthakumar’s Estate to himself as the beneficiary of the estate. At the time of the transfer, the Estate owed costs awards to RBC as a result of the original action. At the time the property was transferred, Mr. Mylabathula signed documentation indicating that “the debts of the deceased are paid in full.” Some costs awards have been made and other costs have been awarded against the Estate since the transfer took place.

[7] Mr. Mylabathula and the Estate of Ms. Shanthakumar brought a counterclaim, alleging that both RBC and their counsel, Mr. Bowden, discriminated against both Mr. Mylabathula and Ms. Shanthakumar. This discrimination is alleged to have taken the form of defamatory statements about them being fraudsters. It also includes allegations that Mr. Bowden “blatantly committed intentional torts against” both Mr. Mylabathula and Ms. Shanthakumar that were beyond the scope of his role as RBC’s counsel. RBC’s new claim and the counterclaim brought by Mr. Mylabathula are in their infancy.

[8] As part of the case management process, I directed that the parties deal with two issues together. The first was the question of whether Mr. Callahan, counsel for Mr. Mylabathula, could continue to act on this matter given the possibility of him becoming a witness. The second was the question of whether the counterclaims against RBC and/or Mr. Bowen should be dismissed.

[9] For the reasons that follow, I have determined that Mr. Callahan is inevitably going to be a witness in RBC’s new action. Therefore, he cannot continue as counsel. I have also determined that the counterclaim against RBC and Mr. Bowen should be struck, but that Mr. Mylabathula should be given a limited leave to amend some parts of his counterclaim against RBC within forty-five (45) days of today’s date. The counterclaim brought by Ms. Shanthakumar’s Estate is struck without leave to amend, as is Mr. Mylabathula’s claim against Mr. Bowden.

Background Facts

a) The Original Litigation

[10] As noted above, in 2010, Ms. Shanthakumar attempted to borrow money from RBC for a plastics business. Mr. Mylabathula was also involved in the loan application. Mr. Mylabathula had a previous relationship with RBC that was terminated as a result of allegedly fraudulent conduct on the part of Mr. Mylabathula.

[11] Staff at RBC became suspicious of this loan request and conducted further investigations. These further investigations led to criminal charges being laid by the RCMP against Ms. Shanthakumar and Mr. Mylabathula. These criminal charges were ultimately stayed.

[12] In 2012, Ms. Shanthakumar commenced an action for various causes of action as described in paragraph 2, above. This action was brought against RBC, the RCMP and individual employees of each organization, and I will refer to it as the “original action” or “original claim” throughout these reasons. Mr. Mylabathula also commenced an action, but that action was stayed long before my involvement in this matter.

[13] Ms. Shanthakumar’s action languished for some considerable time. Indeed, it was administratively dismissed for delay. The decision to dismiss the action for delay was set aside by Fowler Byrne J. on October 26th, 2018, and the original action was allowed to proceed.

[14] There were some small steps taken to move the action forward in 2019, but it was not significantly advanced in that year either. The matter came before me in November of 2020, when the Plaintiff brought a motion to strike the Defendants’ pleadings. I dismissed that motion, required the parties to identify what other motions needed to be brought before this matter could proceed to trial and timetabled the matter. Ultimately, given the complexities that ensued in this case, I was appointed a case management judge by Ricchetti R.S.J.

[15] The only two issues that were left in November of 2020 before the matter would be ready for trial were potentially a motion to deal with undertakings flowing from discoveries and the Defendants’ motion to remove Ms. Shanthakumar’s litigation guardian. Sometime during the course of the original claim, Ms. Shanthakumar had developed dementia, and a litigation guardian had been appointed in 2018. The motion to remove the litigation guardian did not require leave from me to be brought, as RBC had been planning to bring that motion before the matter came before me in November of 2020.

b) The Passing of Ms. Shanthakumar and the Costs Awards

[16] The motion to remove Ms. Shanthakumar’s litigation guardian was heard by Trimble J. in May of 2021, and a decision was rendered removing the litigation guardian on July 14th, 2021 (see 2021 ONSC 4966). The motion was granted on the basis that the litigation guardian was in a conflict of interest with Ms. Shanthakumar. The litigation guardian, a Mr. Roy, had a large judgment against Ms. Shanthakumar which had never been satisfied.

[17] This decision was appealed to the Divisional Court. However, in the intervening time, Ms. Shanthakumar died on August 4th, 2021. Ms. Shanthakumar’s counsel, who was Mr. Callahan, advised the Court of Ms. Shanthakumar’s passing in early September of 2021 and an Order to Continue was granted. Mr. Callahan became the Estate’s counsel as well.

[18] In the meantime, Trimble J. issued a costs endorsement for the motion before him, requiring Ms. Shanthakumar to pay $15,000.00 inclusive of HST on account of the costs of the motion to remove the litigation guardian.

[19] Further proceedings were held before me on September 15th, 2021. At that time, over the opposition of Ms. Shanthakumar’s counsel, I ordered an extension to the deadline for examinations for discovery. On October 13th, 2021, I ordered that Ms. Shanthakumar’s Estate pay costs of $1,500.00 inclusive of HST and disbursements.

[20] I also provided further directions in respect of the outstanding undertakings and refusals. I had originally scheduled those matters to be heard before another judge. However, that judge adjourned the undertakings motion to a long motion date. As a result, I heard the undertakings motion myself and released detailed reasons on it (2022 ONSC 3787).

[21] A larger summary judgment motion on the whole matter was scheduled for October of 2022. I conducted a case conference with the parties in September of 2022, and confirmed that they were ready for the summary judgment motion in October of 2022.

[22] At the September 2022 case conference, I was advised that RBC was seeking leave to bring a motion staying Ms. Shanthakumar’s action on the basis that the Estate Trustee, Mr. Mylabathula, had improperly transferred assets from the Estate to himself and had failed to pay outstanding costs awards prior to doing so. I granted leave to bring this motion and placed a CPL on the property pending the hearing of that motion. That CPL had terms that would permit Mr. Mylabathula to have it lifted to address specific issues.

[23] The summary judgment motion was not heard in October of 2022 because counsel for RBC did not confirm the date with the trial office. As a result, the matter was struck from the list. In December of 2022, I set a further date for the return of the summary judgment motion in October of 2023.

[24] At that case conference, the issue of production of the real estate file of Mr. Mylabathula’s counsel (a firm known as LD Law) in respect of the transfer of the property from Ms. Shanthakumar’s name to her Estate and then to Mr. Myalabathula was raised. RBC was seeking this file in order to further its’ argument that Mr. Myalabathula had improperly transferred the property. I provided directions for scheduling that motion as well.

[25] I was scheduled to hear the privilege motion on February 13th, 2023. At that time, counsel for Ms. Shanthakumar’s Estate advised me that he was bringing a motion to have me recuse myself on the basis that there was a reasonable apprehension of bias as I had heard privileged settlement discussions. As a result, the privilege motion was moved to March 10th, 2023, and combined with the recusal motion and RBC’s request for an Order requiring Mr. Mylabathula to pass the Estate’s accounts.

[26] I dismissed the recusal motion from the bench without calling on counsel for RBC or the RCMP. I then heard the merits of the motion on the privileged file and the passing of the Estate’s accounts. On April 12th, 2023, I released reasons in which I determined that the real estate file from the transfer of Ms. Shanthakumar’s property was not protected by privilege and had to be disclosed (2023 ONSC 2209). In those same reasons, I directed that the accounts of the Estate were to be passed within forty-five (45) days. I do not believe that the accounts of the Estate have been passed yet, but the parties can confirm that at our next appearance.

[27] In any event, RBC’s motion to strike the Estate’s claim was heard by Mirza J. on June 14th, 2023. He adjourned this motion back to me to consider in part on the basis that the basis for RBC’s motion to have the Estate’s claim struck had shifted. I conducted a further case conference on the matter on July 15th, 2023.

[28] At that time, I discussed the motion to stay with the parties. Mr. Callahan confirmed that his client objected to me hearing the motion to stay the action. I advised that I did not believe that there was any impediment to me hearing that motion. However, I arranged for both the stay motion and the outstanding summary judgment motion to be heard by Ricchetti R.S.J.

c) The Disposition of the First Action and the Current Claims

[29] The stay motion was heard first, on September 26th, 2023 (2023 ONSC 6304). The stay was dismissed, and Ricchetti R.S.J. concluded that he could not decide whether there had been a fraudulent conveyance of the property on the materials filed in the motion to strike. He took the view that the disposition of this issue required a trial.

[30] The summary judgment motion was argued before Ricchetti R.S.J. on October 11th, 2023. Summary judgment was granted, and Ms. Shanthakumar’s claim was dismissed in its’ entirety.

[31] Ricchetti R.S.J. also awarded costs for the summary judgment motion. He awarded costs to the RCMP defendants on a partial indemnity basis. However, he awarded costs on a substantial indemnity basis to the RBC Defendants (2023 ONSC 7263). The total costs payable by Ms. Shanthakumar’s Estate to the RCMP parties were $27,548.26 and to the RBC parties $104,986.70. These amounts are inclusive of HST and disbursements.

[32] A further case conference was held before me on January 11th, 2024. Prior to that appearance, counsel for Ms. Shanthakumar’s Estate had brought a motion to have the CPL that I had been placed on the property lifted. Counsel for RBC opposed this motion. In my January 16th, 2024, endorsement, I noted that the scheduling of this motion by counsel for Ms. Shanthakumar’s Estate was improper in two respects. First, he breached the directions of Bielby J. (given much earlier in the action) requiring the parties to consult with each other in respect of motions dates. Second, the Estates issues were part of the group of matters that I was case-managing and the expectation was that these matters would be scheduled and managed by me.

[33] In that endorsement, I also set a schedule for a motion to deal with the Estate’s request that the CPL be lifted on a permanent basis. That motion was scheduled to be heard on July 15th, 2024. In addition, there were issues in respect of refinancing the property, and I set out a much tighter timetable for addressing those matters. From my perspective, ensuring that there was a prompt process to deal with the refinancing of the property was important to ensure that the Estate and Mr. Mylabathula were not unduly prejudiced by the CPL remaining on the property.

[34] In that respect, on February 1st, 2024, a further case conference was held. At that time, I issued an endorsement advising that I was satisfied that a temporary lifting of the CPL to replace the existing mortgage with a new one with a lower rate would be entirely appropriate. However, the paperwork would need to be supervised by the Court.

[35] A further case conference was held on February 13th, 2024. At that time, I ordered that the accounts of Ms. Shanthakumar’s Estate be passed by March 14th, 2024. I also set a timetable for objections to the passing of accounts and a timetable for cross-examinations on various Affidavits. It should be noted that the Estate had previously appealed my order requiring the passing of accounts as well as a stay of that Order. Both requests were unsuccessful. The stay was dismissed in August of 2023 (2023 ONSC 4806) and the appeal was dismissed on October 19th, 2023.

[36] A further case conference was held on April 2nd, 2024. At that time, we discussed refinancing the property and a general process was agreed-to. We also discussed the process for the resolution of various issues before the Court. At that point, RBC had not yet commenced its action. RBC was taking the position, based on an unreported case, that the proper way to deal with the claim of a fraudulent conveyance was through the vehicle of a passing of accounts.

[37] On the other hand, Ms. Shanthakumar’s Estate was taking the position that, since Ricchetti R.S.J. had dismissed the original action, the passing of the accounts was moot. In support of this position, Ms. Shanthakumar’s Estate also pointed to the fact that the costs orders that Trimble J. and I had made in 2021 had been paid in the fall of 2023, shortly before Ricchetti R.S.J. made his decision dismissing the entire action. Ms. Shanthakumar’s Estate also pointed to the fact that RBC had not started a separate action to challenge the transfer of the property.

[38] In response to this position, RBC advanced two points. First, RBC reiterated its’ position that the proper procedure for dealing with the fraudulent conveyance was a passing of accounts. Second, RBC argued that counsel for Ms. Shanthakumar’s Estate was in a conflict with Mr. Mylabathula, in both his personal capacity and in his role as Estate Trustee.

[39] The conflict issue had been raised some time previously. In my February 1st, 2024, endorsement, I described the potential conflict as follows:

[8] Finally, counsel for RBC pointed out a possible conflict of interest in this case. It flows from the statement that Mr. Mylabathula makes in his Affidavit (at paragraph 10). That statement is as follows: “At the time of the conveyance, I was not aware of the Trimble Order or the Lemay (sic) Order”. The problem with this statement is that the conveyance was in 2022 and the Orders were both made in 2021 and Mr. Callahan was aware of those Orders. As a result, it appears to me that either this statement is untruthful or that Mr. Callahan did not provide his client with the information. RBC’s counsel is correct in that there is a potential conflict of interest between Mr. Callahan and his client. It is possible that there may be a further explanation for the disconnect that I have identified above, but I have not yet heard it.

[40] The issue of what Mr. Mylabathula knew about the Estate has been a live issue since at least the appearance before me in September of 2022.

[41] After the April 2024, case conference, RBC issued its’ Statement of Claim. This claim named Mr. Mylabathula in both his personal capacity and in his capacity as Estate Trustee as well as the Estate. It alleged that the transfer of the property in the spring of 2022 was fraudulent. In addition to naming Mr. Mylabathula, the style of cause listed several additional names that I understand RBC believes are aliases that Mr. Mylabathula may have used over the years.

[42] A Statement of Defence and Counterclaim was issued by Mr. Mylabathula and Ms. Shanthakumar’s Estate. The counterclaim names Mr. Bowden, RBC’s counsel in this matter, personally. The counterclaim also advances allegations that RBC and Mr. Bowden discriminated against both Mr. Mylabathula and Ms. Shanthakumar on the basis of race and ethnic origin and committed intentional torts against them on the same basis during the course of the original litigation.

[43] A further case conference was held on June 5th, 2024. In an endorsement released that day (but, as a result of an oversight, dated April 3rd, 2024), I noted the developments described in the previous two paragraphs. I also noted that, on questioning, Mr. Mylabathula had refused a significant number of questions in respect of what he was told about the costs decisions and when. Finally, RBC advised me that they intended to bring a motion to have the Counterclaim struck out on the basis that it was an abuse of process.

[44] Based on those issues, I determined that the hearing on July 15th, 2024 should address the issue of whether the Counterclaim should be struck out as well as the issue of whether Mr. Callahan was in a conflict of interest in this case. I confirmed that the motion on July 15th, 2024, would be limited to those issues.

[45] Finally, in this case conference, I confirmed that the RCMP remained involved in this litigation, as they also had an unpaid costs award. However, counsel for the RCMP advised that she would be relying on RBC’s materials for this motion.

Issues

[46] As I identified above, the issues in this case are as follows:

a) Should Mr. Callahan be removed as counsel from this action? b) Whether the counterclaim against RBC and Mr. Bowen should be struck out under either Rule 21 or Rule 25.

[47] I will deal with each issue in turn. I should note two preliminary issues that were raised by Counsel for Mr. Mylabathula and Ms. Shanthakumar’s Estate. First, counsel argued that Mr. Bowden should not be appearing on this motion as he was personally named in the Counterclaim. I agree that counsel should generally not appear as counsel in a matter in which they are a party. However, an overly strict application of that principle would result in cases where a party could force the other side to incur the expense and inconvenience of being required to change counsel merely by naming their preferred counsel in a counterclaim regardless of whether the counterclaim had any merit.

[48] In this case, the argument being advanced by RBC and Mr. Bowden is, inter alia, that the counterclaim is frivolous and vexatious as it captures statements that are covered by absolute privilege. That argument does not require much, if any, evidence to advance. As a result, there is no prejudice to the Estate or to Mr. Mylabathula (or the administration of justice) in having Mr. Bowden advance that argument.

[49] This brings me to the related argument that counsel for Mr. Mylabathula and the Estate advances. He argues that the evidence on this motion comes from Mr. Bowden’s legal assistant, that she is not a proper witness in this case, and that I should not give this evidence any weight. As will be seen, the bulk of this motion is being disposed of on the basis of the pleadings and previous Court decisions. To the extent that evidence is required, I am largely relying on statements that Mr. Mylabathula has made under oath. However, I would also note that much of the Affidavit covers facts that are well-known to the Court and are included in previous decisions. To the extent that there is argument in the Affidavit, I have disregarded it.

Issue #1- Should Mr. Callahan Be Removed as Counsel?

[50] I start with the observation that the test for removing counsel is very high. Removal motions should only be granted in the rarest of cases. Best v. Cox, 2013 ONCA 695, Notay v. Bahra 2017 ONSC 1755 at para. 17. Part of the reason for this reluctance is the fact that litigants should not be deprived of their choice of counsel without good cause. MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235.

[51] The test for removal of counsel has been described as whether a fair minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice. Carterra Management Inc. v. Palm Holdings Canada Inc., 2011 ONSC 7087 at para. 6.

[52] In cases where there is a real possibility that counsel for one party or the other is going to be a witness, then the factors that the Court considers are those that are set out in Essa (Township) v. Guergis, (1993) 15 O.R. (3d) 573:

-- the stage of the proceedings; -- the likelihood that the witness will be called; -- the good faith (or otherwise) of the party making the application; -- the significance of the evidence to be led; -- the impact of removing counsel on the party's right to be represented by counsel of choice; -- whether trial is by judge or jury; -- the likelihood of a real conflict arising or that the evidence will be "tainted"; -- who will call the witness if, for example, there is a probability counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising; -- the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

[53] In this case, the key factors are the likelihood that Mr. Callahan will be called and the significance of the evidence to be led. Both of those factors very strongly favour RBC’s position that Mr. Callahan should not be permitted to continue acting.

[54] The ultimate issue in both the passing of accounts and in RBC’s new action is whether the transfer of the property in June of 2022 was fraudulent. In his Affidavit sworn January 25th, 2024, Mr. Mylabathula states (at para. 10):

10. At the time of the conveyance, I was not aware of the Trimble Order or of the Lemay [sic] Order. Furthermore, I did not know about any writ or writs having been registered against the Estate by the RBC defendants. I relied entirely on LD Law to handle all aspects of the administration of the Estate.

[55] The conveyance, on Mr. Mylabathula’s evidence, took place on June 8th, 2022. The Orders of both Trimble J. and myself in respect of costs were made in the summer or early fall of 2021 and were communicated to Mr. Callahan by the Court staff around the time that they were made.

[56] As a result, if Mr. Mylabathula’s statement is true, then there is a real possibility that Mr. Callahan failed to communicate two outstanding costs orders to Mr. Mylabathula. If, on the other hand, Mr. Mylabathula’s statement is false, then RBC’s case that the transfer of the property was a fraudulent conveyance would be strengthened, perhaps significantly, as Mr. Mylabathula would have known about the costs awards when he signed the documentation transferring the property.

[57] I reach no conclusion about what actually happened in this case. I am not in a position to make that determination. All I can do is note the possibilities and observe that Mr. Callahan has evidence that is almost inevitably going to be necessary to determine Mr. Mylabathula’s knowledge about the costs awards at the time that the property was transferred.

[58] In this respect, I am mindful of the points set out in Mazinani v. Bindoo, 2013 ONSC 4744 at para. 60:

(x) Courts should be reluctant to make what may be premature orders preventing lawyers from continuing to act. If the evidence does not necessarily have to come from the lawyer and may be obtained through admissions or documentary productions, a removal order will be premature (Essa (Township) v. Guergis; Membery v. Hill, [2003] O.J. No. 2581 (Div. Ct.) (“Essa”), at para. 43; Lesniowski v. H.B. Group Insurance Management Ltd., [2002] O.J. No. 3194 (S.C.J. - Mast.) (“Lesniowski”), at para. 15);

(xi) If there is some doubt or “merely a potential” that a lawyer will be called as a witness at trial, the courts should be more generous in allowing the lawyer to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge (George S. Szeto Investments Ltd. et al v. Ott (Ont. S.C.J. - Mast.) (“George S. Szeto”), at para. 13);

[59] These principles were also adopted by the Divisional Court in Lepan v. Lofranco, 2021 ONSC 1757. They support the view that the issue of removing counsel of record for a party is something that should only be done in clear circumstances.

[60] In this case, the only people who know whether Mr. Mylabathula was sent a copy of the costs awards of myself and Trimble J. are Mr. Mylabathula and Mr. Callahan. As a result, I am of the view that there is much more than “merely a potential” that Mr. Callahan will be a witness in this case. There is a real possibility that he will be a witness.

[61] As Perell J. noted in Bose v. Bangiya Parishad Toronto, 2018 ONSC 7639 (at para. 98):

[98] If it is clear from the outset of a proceeding or if it becomes clear during the proceeding that the advocate will be a material witness, he or she should be disqualified and removed as lawyer of record. The disqualification arises even if counsel does not intend to testify because his or her involvement in the matter based on participation and actual knowledge of the events rather than based on just taking instructions from his client creates a conflict between his or her duty to the court and his or her duty to the client.

[62] Two key arguments in favour of permitting Mr. Callahan to remain as counsel are that the communications between him and Mr. Mylabathula are privileged and that Mr. Callahan does not intend to testify. Given that there has already been a motion over the privilege of the LD Law file, I anticipate that there is going to be a motion over the privilege of Mr. Callahan’s communications with Mr. Mylabathula, at least to the extent of whether the costs awards are communicated. I also anticipate that there will be an attempt by RBC to call Mr. Callahan as a witness. They have certainly indicated an intention to do so.

[63] It is not necessary, however, to resolve those issues to dispose of these arguments. It is enough that Mr. Callahan has personal knowledge of the facts that will be in issue. As the Court stated in Young-Tangjerd v. Official Board of Calvary United Church, 2006 ONSC 2161, 2006 CarswellOnt 3286 (at para 7):

7 In my view, the issue is not the lawyer's position as a witness but his position as advocate. I doubt whether any party or a witness may be cross-examined by a lawyer who could cross-examine not on the basis of his brief but on the basis of his participation in the event or transaction cross-examined on. Any question, leading or not, once posed by the lawyer is unfair to the witness and carries with it the appearance of an unsworn offer of the advocate's version of the facts. In addition, questions put in cross-examination by the lawyer witness would create the uneasy feeling in the mind of the plaintiff in this case that the measure of his credibility could be based not on the basis of the evidence but the unsworn declaration of a judicial participant in the proceeding, the defendant's lawyer. It goes without saying that the lawyer cannot compartmentalize his or her mind to exclude actual knowledge of the event. As well, the court should ensure no conflict in the lawyer's duty as advocate and as an officer of the court. For example, what is the lawyer to do if his memory of the event differs from the evidence in-chief he hears from his witnesses.

[64] In this case, even if the communications between Mr. Callahan and Mr. Mylabathula remain privileged and Mr. Callahan is not called as a witness, he will still be in the position of having to conduct both examinations in chief and cross-examinations over facts that he has personal knowledge of. In the circumstances, Mr. Callahan cannot continue as counsel. The dangers described in Young-Tangjerd also arise in this case.

[65] Finally, there is the issue of prematurity. Some of the case-law that I was referred to suggested that this issue should be deferred to the trial judge or to a later point in the proceedings. Indeed, one of the Guergis factors is the stage of the proceedings, and we are at a very early stage in this one.

[66] However, the Courts have acknowledged that the later a removal order is made, the greater the adverse impact on the party whose lawyer is removed: Kitchen v. McMaster, 2018 ONSC 3717 at para. 35. In this case, I must balance off the early stage in the proceeding against the clear fact that Mr. Callahan has personal knowledge of relevant information that goes to a central issue in the case. While that evidence may not be led at trial, there are still the problems (as set out in Young-Tangjerd) that will inevitably flow from Mr. Callahan’s continued involvement as counsel.

[67] I am mindful of the fact that making an order removing Mr. Callahan as counsel of record will put Mr. Mylabathula and the Estate of Ms. Shanthakumar to additional expense and trouble. Mr. Callahan has been familiar with this case as he has been involved in it for more than ten years. However, this factor from Guergis must yield to the fact that, as noted in the previous paragraph, Mr. Callahan has personal knowledge of relevant information going to a central issue in the case.

[68] For the foregoing reasons, I am ordering that Mr. Callahan be removed as counsel of record for these matters.

Issue #2- Can The Claims Against RBC and Mr. Bowden Be Maintained?

[69] Both RBC and Mr. Bowden are moving to strike out portions of the Statement of Defence as well as the entirety of the Counterclaim under Rules 25 and 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[70] In addressing this issue, there are two separate claimants, and the legal analysis is different for each claimant. First, there are the claims brought by the Estate of Ms. Shanthakumar. Then, there are the claims brought by Mr. Mylabathula in his personal capacity. I will deal with each separately, although there is an overlap in some areas of the law.

[71] Before dealing with the legal issues in respect of each party’s claim, I should note that both Mr. Mylabathula and the Estate of Ms. Shanthakumar advance exactly the same claims. They are claims of defamatory statements and discriminatory conduct on the part of RBC and of Mr. Bowden. These claims are not particularized. From my review of the Statement of Defence and counterclaim, the factual basis for the claims is as follows:

a) The Statement of Defence and Counterclaim states that Ms. Shanthakumar and Mr. Mylabathula are racialized individuals who were born in India and who have dark brown skin. b) Paragraph 16 of the Statement of Defence and counterclaim states that both RBC and Mr. Bowden called both Ms. Shanthakumar and Mr. Mylabathula names, directed defamatory statements at them, and discriminated against them because of their race, their ethnic origin and the colour of their skin. The specific claim set out in this paragraph is that both Mr. Bowden and RBC referred to Ms. Shanthakumar and Mr. Mylabathula as “fraudsters”. c) Paragraph 17 of the Statement of Defence and Counterclaim states that both RBC and Bowden have engaged in a years-long campaign of racial discrimination against them, repeatedly accusing them of fraud without any basis. d) Paragraph 30 of the Statement of Defence and Counterclaim alleges that RBC has brought its’ claim knowing that it is without merit and that the decision to do so was racially motivated. e) Paragraph 31 of the Statement of Defence and counterclaim f) Paragraph 37 of the Statement of Defence and Counterclaim states that Mr. “Bowden blatantly committed intentional torts against the Defendants, causing them harm, and he is therefore personally liable for such conduct and the consequences thereof.”

[72] The Counterclaim begins at paragraph 33 of the Defence and Counterclaim. RBC and Mr. Bowden are seeking to strike the entire counterclaim, as well as paragraphs 16, 17, 30 and 31 of the Statement of Defence.

[73] With this factual background in mind, I now turn to the legal basis for RBC’s motion. I will lay out the law in respect of motions under Rules 21 and 25, and then review the claims by the Estate and by Mr. Mylabathula in light of that review.

a) The Applicable Legal Principles

Rule 21.01(1)(b)- No Reasonable Cause of Action

[74] RBC and Mr. Bowden have moved under Rules 21.01(1)(b), 21.01(3)(d), and 25.11(b) and (c) for orders to have the counterclaim struck out. The motion under Rules 25.11(b) and (c) also seeks to have paragraphs 16, 17, 30 and 31 of the Statement of Defence struck out.

[75] These are different rules with different tests that I have to consider. I will divide my discussion of the legal principles into a consideration of the two different grounds under which RBC and Mr. Bowden are moving.

[76] It is well-established that a pleading should not be struck out unless it is incurable by a proposed amendment: Dominion Bank v. Jacobs (ON HC), [1951] 3 D.L.R. 233.

[77] The test for striking a pleading under this rule was set out by the Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980. It has been repeated in many subsequent decisions, including in Shanthakumar v. Ming Pao Newspapers, 2017 ONSC 5553. That decision, which flowed from the factual nexus in this case, states (at para 27):

[27] The test for striking out a claim at the pleadings stage under Rule 21.01(b) is whether it is plain and obvious that the claim discloses no reasonable cause of action. A claim will be struck under Rule 21.01(b) when either the allegations in it do not give rise to a recognized cause of action, or fail to plead all the requisite elements of a recognized cause of action.

[78] However, it is necessary to plead all of the material facts to support all of the constituent elements of a cause of action. Kaissieh v. Done, 2022 ONSC 425 at para. 20, Powell v. Shirley, 2016 ONSC 3577 at para. 35.

Rule 21.01(3)(d) and Rule 25- Frivolous, Vexatious or an Abuse of Process

[79] Under Rule 21.01(3)(d) of the Rules, a Defendant may move before a judge to have an action dismissed on the grounds that is frivolous, vexatious or otherwise an abuse of process. A judge may grant judgment accordingly.

[80] Under Rule 25.11 of the Rules, a court may strike out a pleading that may prejudice or delay the fair trial of the action (subsection (a)), or a pleading that is scandalous, frivolous, vexatious (subsection (b)) or an abuse of process (subsection (c)).

[81] There is a degree of overlap in these terms. However, for both Rule 21 and Rule 25, a pleading will be viewed as being frivolous if it does not contain the minimum level of factual disclosure. For example, in White v. Canada, 2011 ONSC 5816, at para. 20, the Court noted that “[w]here the minimum level of factual disclosure has not been attained, the granting of a motion to strike pursuant to Rule 21 is an appropriate remedy.”

[82] Similarly, in respect of Rule 25.11, the Court in George v. Harris, [2000] O.J. No. 1762 (Ont. S.C.J.) stated:

It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety. [Citations omitted.]

[83] In other words, there have to be material facts to support the pleading. Otherwise it will be struck.

[84] Again, however, motions to strike pleadings should be approached generously, erring on the side of allowing novel but arguable claims to proceed. The pleadings should be read generously on a motion to strike. O’Farrell v. Canada (Attorney General), (2016) 134 O.R.(3d) 603 (S.C.J.) at para. 37.

[85] I will now consider the various claims in light of these principles.

b) Claims by the Estate

[86] Over and above the Rule 21 and 25 issues, there are two problems with the claims made by the Estate. First, they are governed by the limitations period in the Limitations Act. Second, they are claims that the Estate cannot advance in any event. Either one of these problems is fatal to the claim.

[87] I start with the limitations issue. Section 38 of the Trustee Act, R.S.O. 1990, c. T 23 states:

38 (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

Actions against executors and administrators for torts

(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

Limitation of actions

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

[88] For the purposes of the limitations issue, the key provision is section 38(3). It provides a two-year limitation period from the date of death. Ms. Shanthakumar died in August of 2021, and the claims were not brought until the spring of 2024. There is nothing in the Statement of Defence and Counterclaim that would suggest that there was a discoverability issue at play in this case.

[89] However, even if there was a discoverability issue, the limitations period under the Trustee Act is inflexible. The Court of Appeal considered section 38(3) in Waschkowski v. Hopkinson Estate, (2000) 47 O.R. (3d) 370. At paragraph 8, the Court stated:

[8] In s. 38(3) of the Trustee Act, the limitation period runs from a death. Unlike cases where the wording of the limitation period permits the time to run, for example, from "when the damage was sustained" (Peixeiro) or when the cause of action arose (Kamloops), there is no temporal elasticity possible when the pivotal event is the date of a death. Regardless of when the injuries occurred or matured into an actionable wrong, s. 38(3) of the Trustee Act prevents their transformation into a legal claim unless that claim is brought within two years of the death of the wrongdoer or the person wronged.

[90] This Court has already had the opportunity to consider, and conclude, that Ms. Shanthakumar passed away in August of 2021. The claim on behalf of Ms. Shanthakumar’s Estate has not been brought in a timely manner, and there is no basis to extend the limitations period. The Estate’s action must be dismissed on that basis alone.

[91] This brings me to the second issue, which is that the claims in this matter are not claims that the Estate can advance in any event. As currently pleaded, the claims of the Estate are a defamation action. As noted by Ricchetti J. in his summary judgment decision (at para. 37-41), at common law a person’s claim in tort expires upon that person’s death. While that rule was modified by statute, section 38 of the Trustee Act specifically excluded libel and slander from the modifications.

[92] As a result, the common law rule continues to apply and a claim of defamation cannot be sustained by Ms. Shanthakumar’s Estate.

[93] This brings me to the question of whether leave should be given to Ms. Shanthakumar’s Estate to amend the claims. The case-law is clear that leave to amend should be denied only in the clearest of cases. Tran v. University of Western Ontario, 2015 ONCA 295 at para. 26, TSI International Group Inc. v. Formosa, 2017 ONCA 261 at para. 2, Conway v. Law Society of Upper Canada, (2016) 2016 ONCA 72, 395 D.L.R. (4th) 100 at para 16.

[94] I am of the view that this is one of the “clearest cases” and that leave to amend should be denied. I reach this conclusion for two reasons:

a) As a matter of law, the Estate cannot sustain any defamation claim. As a result, no matter how the claim is amended, a defamation claim clearly cannot succeed. b) Even if Ms. Shanthakumar’s Estate is able to particularize and re-cast these allegations to fit within another tort beyond defamation, the limitations period will still act as a complete bar to these claims. Ms. Shanthakumar died in August of 2021. These claims were not advanced in any way for more than two years after her death and there does not appear to be any way that the limitations period can be circumvented.

[95] As a final matter, on this portion of the pleading, I note that it is not necessary to determine whether the other arguments that RBC and Mr. Bowden have made in respect of Rules 21 and 25 of the Rules are meritorious in order to strike this claim out. However, to the extent that there is any issue, I note that the application of those rules to Mr. Mylabathula’s claims, as set out in the next section, applies to the Estate’s claims as well. That analysis would operate to strike out the Estate’s claims even in the absence of the limitations issues. This is particularly true in respect of the analysis of the claim brought against Mr. Bowden.

[96] For these reasons, the counterclaim brought by Ms. Shanthakumar’s Estate as against Mr. Bowden and RBC is struck without leave to amend.

b) Claims by Mr. Mylabathula

[97] There are a number of different causes of action alleged in the Counterclaim. Specifically, the claim seeks general damages for “harassment, intimidation, denigration, embarrassment, prejudice, intentional infliction of harm and racial discrimination.”

[98] There are three events that are specifically addressed in the pleadings at paragraphs 45 to 47 of the Counterclaim. Given the obligation to plead all material facts, I am presuming that these are the only three events that Mr. Mylabathula can rely on in support of his various claims. Those three events are:

a) An e-mail that was sent by Mr. Bowden to Mr. Callahan, Ms. Watt (counsel for the RCMP parties) and Mr. Yiokaris (counsel for LD Law) on November 11th, 2022 that the conveyance of the property was a fraud, and that this was not the first time that Mr. Mylabathula had been involved in a fraudulent transaction. b) On November 22nd, 2022, a further e-mail was sent by Mr. Bowden to some of the same people as in paragraph (a) stating, inter alia, that the transfer of the property was not the first fraudulent conveyance that Mr. Mylabathula was involved in. c) On May 11th, 2023 an examination of Mr. Edward Carmichael was conducted by Mr. Bowden in furtherance of this action. In that examination, Mr. Bowden asked questions that suggested that Mr. Mylabathula had made considerable sums of money through fraudulent means.

[99] I will address the issues in respect of Mr. Mylabathula’s claims against Mr. Bowden. I will then address each of the claims that arise.

The Claims Against Mr. Bowden

[100] In my view, the claims against Mr. Bowden all run up against the defence of absolute privilege and must be dismissed on that basis. I reach that conclusion on a review of the three incidents that were pled in the Statement of Defence and Counterclaim as set out at paragraph 98. They are all statements that Mr. Bowden is making in support of the position that RBC is taking in this litigation.

[101] The gravamen of RBC’s claim is that Mr. Mylabathula engaged in a fraudulent conveyance of the property from the Estate to himself and stated that the Estate had no debts when he knew full well that the Estate had debts. RBC also appears to be alleging that this fraudulent conduct is part of a pattern that Mr. Mylabathula has engaged in. They have certainly pointed to other evidence in support of that allegation (see 2023 ONSC 3787 at para. 72). Mr. Bowden is simply advancing his clients’ interests by making these statements.

[102] Absolute privilege was described in Kleynhans v. Zucker, 1997 CarswellOnt 3663 at para. 25 as follows:

25 The general principle to be drawn from the above cases is that the law protects solicitors by cloaking their words and writings within the doctrine of absolute privilege under circumstances where it may be said that they are furthering the interests of their clients in litigation, the obtaining of information to pursue litigation, the exchange of documents and information within the litigation and the necessary steps to investigate and obtain the evidence to allow the litigation to proceed. It is apparent from the authorities cited to me and the various authorities cited within those cases that the court has jealously guarded the absolute privilege granted to solicitors for matters said and done coram judice in order to avoid steps which might render that protection illusory.

[103] The goal of this absolute privilege is to create a zone of protection for lawyers acting in pursuit of their clients’ interests. It is not confined to statements made in Court and extends to all of the preparatory steps in the litigation as long as the step in question is directly related to an actual or contemplated proceeding. Wickham v. Hamdy, 2019 ONSC 1960 at para. 35.

[104] In this case, Mr. Bowden was sending correspondence and conducting examinations in which he was attempting to ascertain facts that relate to RBC’s claim against Mr. Mylabathula. RBC’s claim sounds in fraud and, as a result, in the pursuit of RBC’s interests it is inevitable that Mr. Bowden will allege that Mr. Mylabathula committed fraud, and perhaps did so on more than one occasion. Mr. Bowden’s statements in this regard are not actionable.

[105] In addition, the claim against Mr. Bowden is an abuse of process. As set out in Royal Bank v. Tehrani, 2009 CarswellOnt 5134 at para. 19:

19 The second and broader principle is that it is an abuse of process to sue opposing counsel, under the guise of any cause of action, for their conduct of a case. The logic of these authorities is similar to the privilege or immunity cases in defamation law, namely, that there is a public interest in encouraging and protecting fearless advocacy. The abuse of process cases also rely on the fact that counsel could not defend or explain their conduct of a case without delving into solicitor and client instructions which are, or course, protected under a different branch of the law of privilege. Finally, the abuse of process cases express concern that law suits against opposing counsel could easily become a tactical tool to deprive an opposing litigant of their choice of counsel and to force them to retain new counsel.

[106] In Tehrani, Code J. goes on to review the cases supporting the conclusion that suing opposing counsel is generally an abuse of process. He accepts, as do I, that generally a claim against opposing counsel should be struck on the basis that it is an abuse of process as well as on the basis of absolute privilege.

[107] In this case, I am of the view that the pleading as against Mr. Bowden should be struck in its entirety on the basis of both the doctrine of absolute privilege and on the basis that it is an abuse of process.

[108] I acknowledge that leave to amend should usually be granted when a pleading is deficient. However, I am denying Mr. Mylabathula leave to amend his pleading in respect of Mr. Bowden for two reasons, as follows:

a) In my view, the claims made against Mr. Bowden are a clear example of an abuse of process. They are designed primarily, if not solely, to delay the litigation and to make it more difficult for RBC to advance its’ position. Permitting leave to amend would simply be providing Mr. Mylabathula with a further opportunity to engage in an abuse of process. b) Mr. Mylabathula has had an extensive opportunity to consider these issues. I was not pointed to any better examples of justiciable claims against Mr. Bowden.

[109] For these reasons, Mr. Mylabathula’s claim as against Mr. Bowden is struck out without leave to amend. For clarity, although I did not have to deal with this issue in respect of the Estate’s claims, this analysis would have applied to its claims against Mr. Bowden as well.

Claims Against RBC

[110] The specific claims that are advanced are as follows:

a) Defamation; b) Harassment; c) Intimidation; d) Denigration; e) Embarrassment; f) Prejudice; g) Intentional Infliction of Harm; and, h) Racial discrimination.

[111] The claim of defamation is based on the three statements set out at paragraph 98 above. As those statements are all covered by absolute privilege, they cannot form the basis for a defamation claim against RBC either. In addition, these statements cannot found an action for defamation as they are part of the basis for RBC’s claim. RBC is entitled to have that claim adjudicated, and any impropriety that flows from RBC’s allegations of fraudulent conduct can be addressed at the end of the trial through a judgment and a costs award. Given the impossibility of sustaining a claim for these specific allegations, leave to amend the claim to address these allegations is denied. If there are other allegations of a different nature, then those can be advanced and leave is granted to add those allegations.

[112] Harassment simpliciter is not generally recognized as a tort in Ontario law. However, in Alberta, the Courts have set out four elements of the tort of harassment: Alberta Health Services v. Johnston, 2023 ABKB 209, (2023) 482 D.L.R. (4th) 725. Those requirements are:

a) repeated communications, threats, insults, stalking or other harassing behaviour; b) which was known to be, or ought to have been known to be, unwelcome; c) which impugns the dignity of the plaintiff, would cause a reasonable person to fear for their safety, the safety of their loved ones, or could foreseeably cause emotional distress; and

[113] None of these elements are pled in the Counterclaim. As a result, this claim must be struck under Rule 21.01(1)(b). Although I am prepared to permit Mr. Mylabathula to amend his pleading in this respect, it is difficult to see how harassment can be made out on the facts underlying this litigation. It is also difficult to see how this tort would exist in Ontario given the Court of Appeal’s reasons in Merrifield v. Canada (Attorney General), 2019 ONCA 205, (2019) 145 O.R. (3d) 194. In particular, the Court’s observations at paragraph 42 should be kept in mind.

[114] Then, there is the claim of intimidation. This tort requires four elements: a threat; intent to injure; complying with the threat an action was taken or foregone; and damages. McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830 at para. 23. None of these elements are pled in the Counterclaim and, again, the claim must be struck on that basis. Again, however, leave is granted to amend the claim if the elements of this tort can be pleaded.

[115] Neither embarrassment nor denigration are causes of action in and of themselves. The fact that a statement is embarrassing does not amount to a cause of action. Instead, the cause of action is defamation. Denigration requires further explanation, which is not done in this pleading. These allegations are also struck. In this case, Mr. Mylabathula has leave to amend his pleading in respect of defamation if it relates to different allegations. Leave to amend is denied in respect of mere embarrassment as it is not a cause of action. Similarly, denigration must be tied to a cause of action.

[116] This brings me to prejudice. Again, I have no idea what cause of action is actually being alleged under the rubric of prejudice. If it is discrimination under the Canadian Human Rights Act, then I will address that allegation below. If it is some other form of prejudice, it is insufficiently particularized for me to even begin to consider whether it founds a cause of action. Again, this allegation is struck. The general allegation of “prejudice” is struck without leave to amend as there is no known tort of “prejudice” and no basis to establish a new tort of “prejudice”. The issue of the human rights claim is discussed further below.

[117] Then, there is the allegation of intentional infliction of mental stress. The elements of that tort are set out in Merrifield and in Lee v. Jung, 2019 ONSC 5950 at para. 116. They are: proof of outrageous/flagrant behaviour that is calculated to harm and which caused a visible and provable illness. Again, none of these elements are pled in the Counterclaim, and this cause of action is struck out but with leave to amend.

[118] Finally, there are the allegations of racial discrimination. These pleadings suffer from two flaws, both of which are fatal to them. First, there is no actual conduct that is alleged to be discriminatory, other than calling Mr. Mylabathula and Ms. Shanthakumar “fraudsters”. This is, as I have noted elsewhere, a defamation claim.

[119] Second, the Court’s ability to hear cases involving allegations of discrimination is limited to circumstances where there is another cause of action that the discrimination allegations are “tethered” to. Mohammed v. Her Majesty the Queen in Right of Ontario, 2019 ONSC 532 at para. 44. Given that the rest of the counterclaim has been struck, these allegations must also be struck.

[120] However, in the event that there are amendments to the pleadings and there is a claim to which discrimination is legally relevant, then these claims can be advanced. Mohammed, para. 45.

[121] As a result, for all of these reasons, I am dismissing the entirety of the counterclaim as against all parties. However, Mr. Mylabathula has leave to amend the claim in the following respects:

a) Mr. Mylabathula can advance claims of defamation against RBC if those claims are not related to RBC’s claims of fraud in this case. b) Mr. Mylabathula can advance a claim of harassment, as long as the issues in Merrifield are addressed and the factual elements underpinning the claims are pled. c) Mr. Mylabathula can advance claims of intimidation and intentional infliction of mental stress as long as Mr. Mylabathula pleads facts that support all of the elements of the underlying tort. d) If Mr. Mylabathula seeks to advance claims of denigration, then they must be tied to other issues. e) If Mr. Mylabathula can tie allegations of human rights breaches to other claims, then leave will be granted to advance these allegations as well.

[122] Finally, there are the four paragraphs of the Statement of Claim that RBC is also seeking to have struck. In my view, these paragraphs should be struck because they are irrelevant and argumentative. In addition, a pleading that raises an issue that cannot influence the outcome of the action is scandalous. Aviva Canada v. Lyons Auto Body Limited, 2019 ONSC 6778 at para. 36. As a result, paragraph 16, 17, 30 and 31 of the Statement of Defence are struck.

Conclusions and Costs

[123] For the foregoing reasons, I am ordering as follows:

a) Mr. Callahan is removed as counsel of record for both Mr. Mylabathula and the Estate of Ms. Shanthakumar. b) Mr. Mylabathula shall have sixty (60) days to either serve a notice of intention to act in person or appoint new counsel. I am providing sixty (60) days for that step in recognition of the fact that time of year at which this decision is being released and the complexity of the matter may make it more difficult to retain and instruct counsel. c) The counterclaim brought by the Estate of Sulochana Shanthakumar against both RBC and Mr. Bowden is struck out without leave to amend. d) The counterclaim brought by Mr. Mylabathula against Mr. Bowden is struck out without leave to amend. e) Mr. Mylabathula’s counterclaim against RBC is struck out, but with leave to amend within forty-five (45) calendar days from the release of these reasons but only to the extent set out in paragraph 121 above. Any amendments should address the Court’s concern with the paucity of the original pleading. f) Paragraphs 16, 17, 30 and 31 of the Statement of Defence are struck out, but with leave to amend. Again, any amendments should address the Court’s concern with the paucity of the original pleading.

[124] In order to provide the parties with some time to consider and act on this decision, I will convene a case management meeting in this matter in March of 2025. To that end, the parties are to advise my judicial assistant of their availability for a hearing by ZOOM at 9:15 a.m. on March 19th, 20th or 21st, 2025.

[125] In terms of my observation that I am giving the parties time to act on this matter, I am specifically providing Mr. Mylabathula with time to consider his position and, if he wishes, retain new counsel now that his counsel has been removed from the record. Therefore, I will be disinclined to provide any further adjournments or extend the time for completing the next steps for the purposes of retaining counsel when we re-convene in March.

[126] This brings me to the subject of costs. The parties are encouraged to agree on the costs of these matters. However, in the event that the parties are not able to agree on those costs, then RBC may serve, file and upload costs submissions of no more than two (2) single-spaced pages, exclusive of offers to settle, bills of costs and case-law by no later than January 10th, 2025.

[127] For the purposes of these costs submissions, Mr. Mylabathula must advise Mr. Bowden, by no later than January 6th, 2025, as to his e-mail address so that he may accept costs submissions directly. Alternatively, Mr. Mylabathula and Mr. Callahan may advise Mr. Bowden that Mr. Callahan will accept the costs submissions on behalf of the Defendants. A failure to communicate who is accepting the costs submissions on behalf of the Defendants within this deadline shall result in the costs submissions being deemed to have been served once they are uploaded to Case-Lines.

[128] Mr. Mylabathula and the Estate of Ms. Shanthakumar shall have until February 7th, 2025 to serve, file and upload costs submissions of no more than two (2) single-spaced pages, exclusive of offers to settle, bills of costs and case-law.

[129] There are to be no extensions of the timelines set out above, even on consent, without my leave. In the event that there are no costs submissions in accordance with this timetable, then there will be no order as to costs. Costs submissions are also to be sent to my judicial assistant, as set out in the e-mail transmitting this decision to the parties.

LEMAY J Released: December 31, 2024