Ontario Superior Court of Justice

Court File No.: CV-23-1606
Date: 2025-03-04
Heard: 2024-11-01

Between:
Susan Lorraine Jones-Moore (also known as Susan Lorraine Moore nee Jones), Plaintiff
– and –
Damien Albert Moore, Redmore Properties Inc., Hauskey Inc., and Hauskey Realty Inc., Defendants

Appearances:

• Susan Jones-Moore, Self-Represented
• Mary Anne Cummings, for the Defendants Damien Albert Moore and Redmore Properties Inc.
• Dara Shane Hirbod, for the Defendants Hauskey Inc. and Hauskey Realty Inc.

Reasons for Decision
C.F. de Sa

Overview

[1] The Defendants, Damian Albert Moore (the “Defendant Moore” or “Damien”), Redmore Properties Inc. (collectively the “Defendants Moore and Redmore”), Hauskey Inc. and Hauskey Realty Inc. (“Hauskey”) have brought a motion pursuant to r. 21 and r. 25.11 of the Rules of Civil Procedure to strike the statement of claim of the Plaintiff Susan Jones-Moore (the “Plaintiff”).

[2] On September 22, 2023, the Plaintiff issued a Notice of Action in Court File No. CV-23-00001606. The Statement of Claim was served on December 19, 2023. The Plaintiff amended the Statement of Claim on January 16, 2024 (the Amended Statement of Claim is hereinafter referred to as the “Claim” or the “Plaintiff’s Claim” and the action as the “2023 Action”).

[3] The Defendants maintain that the Claim is an attempt to circumvent final decisions of the Superior Court in Family Court File # 07-FD-325121 (the “2007 Action”).

[4] The Defendants also take the position that the Plaintiff's claim is vexatious, fails to disclose any reasonable cause of action, fails to accord with the rules of pleadings, is barred by the passage of time, raises claims unknown in law, advances allegations incapable of proof, and is abusive in nature. The Defendants seek to have the Statement of Claim dismissed.

[5] Having reviewed the materials filed on the motion, and having heard from the parties, I am satisfied that the Claim is vexatious and an abuse of the court’s process and accordingly should be dismissed.

[6] The reasons for my decision are outlined below.

Summary of Facts

Background

[7] The Plaintiff and the Defendant Moore married on April 11, 2002, and separated on October 19, 2006. They divorced in 2008.

[8] The Plaintiff and the Defendant Moore have been engaged in acrimonious family litigation (Court File # 07-FD-325121) since 2007. The Plaintiff herself described the process as “many years of protracted and expensive litigation dating back to 2007”.

[9] The resolution of the family matter was formalized in a final court order of the Ontario Superior Court of Justice dated January 13, 2023.

[10] In 2023, while the Plaintiff was making attempts to reopen matters in the 2007 action, File # 07-FD-325121, she also filed her claim in CV-23-00001606, the 2023 Action.

[11] The chronology of the 2023 Action is as follows:

a. On September 22, 2023, the Plaintiff issued her Notice of Action;
b. In October 2023, the Plaintiff finalized the Statement of Claim;
c. On January 16, 2024, the Plaintiff amended her Statement of Claim;
d. The Defendants Moore and Redmore requested a waiver of filing a defence to allow the motion to strike the claim. It was refused. The Defendants Moore and Redmore delivered their Statement of Defence on January 23, 2024;
e. Hauskey delivered its Statement of Defence on January 19, 2024, as a “placeholder” defence.

[12] Much of the Plaintiff’s Claim is focused on the separation between the Plaintiff and Damien, their shared parenting of their children, James and Matthew, and Damien’s alleged abusive and harassing acts towards the Plaintiff between 2006 and 2022. The allegations include claims of stalking, invasion of privacy, sexual harassment, libel and slander.

[13] In the Claim, the Plaintiff also identifies Damien as an employee and Chief Operating Officer (“COO”) of Hauskey and alleges that Hauskey was vicariously liable for the conduct of Damien in sexually assaulting her.

[14] In addition, the Plaintiff asserts that:

The corporate defendant, Hauskey Inc. participated in the abuse by providing support and resources to [Damien]. [Damien], in his position as COO of Hauskey Inc. has access to and has utilized the services of agents/contractors who have cell phone and internet hacking capabilities and have been responsible for the ongoing intrusion and harassment of [the Plaintiff]. (para. 12).

On the date of the sexual battery/assault at [the Plaintiff’s] home, [Damien] was acting as the Broker of Record for Hauskey Realty and had offered [the Plaintiff] a job as a real estate salesperson for his company, in lieu of child support, just prior to the assault. (paras. 13 and 55).

Analysis

[15] The motion is brought by the Defendants under r. 21 and r. 25.11 of the Rules of Civil Procedure. The issue on this motion is whether the Claim of the Plaintiff should be struck:

a. pursuant to r. 25 as it is scandalous, frivolous or vexatious; or, is an abuse of the process of the court; or,
b. pursuant to r. 21 as it:
i. discloses no cause of action;
ii. is statute barred under the Limitations Act, 2002, s. 4; or,
iii. is frivolous or vexatious or otherwise an abuse of process of the court.

General Pleading Requirements

[16] The proper approach on a r. 21.01(1)(b) motion is well settled. I am to take the facts asserted in the statement of claim as true unless they are patently incapable of proof or are merely bald conclusory statements of fact, unsupported by material facts.

[17] A plaintiff may not plead bald conclusions. If a plaintiff lacks knowledge of the facts necessary to support the causes of action, they ought not to make the allegation in the statement of claim: Chowdhury v. Exquisite Bay Development Inc., 2024 ONSC 41.

[18] The ultimate question is whether it is plain and obvious, assuming the facts pleaded to be true, that each of the pleaded claims discloses no reasonable cause of action. This is true where:

a. the allegations do not give rise to a cause of action;
b. the plaintiff fails to plead a necessary element of a cause of action; or
c. the allegations in the pleading are conjecture, assumptions, or speculation unsupported by material facts.

Chowdhury v. Exquisite Bay Development Inc., at paras. 17-19.

[19] In Beardsley v. Ontario, para. 21, the Court of Appeal confirmed that a limitation issue can be decided under r. 21.01(1)(a) before a statement of defence is filed "where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired."

[20] The bar for striking a pleading is very high. As explained in PMC York Properties Inc. v. Siudak, 2022 ONCA 635 at para. 31:

In the case of a claim, the question is whether the action has no reasonable prospect of success or whether it is plain and obvious that the action cannot succeed. This high standard applies to determinations of fact, law, and mixed fact and law. The facts pleaded are treated as true unless they are manifestly incapable of being proven. And the pleadings should be read generously, accommodating any drafting deficiencies because cases should be determined on their merits based on the evidence presented before judges at trial. The court should always consider whether the deficiency can be addressed through an amendment to the pleadings and leave to amend should be denied only in the clearest of cases.

[21] While the threshold is high, the power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeds out the hopeless claims and ensures that those that have some chance of success go on to trial. R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, para. 19; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, para. 18.

Vexatious Proceedings and Abuse of Process

[22] Rule 21.01(3)(d) permits a court to dismiss a proceeding where it is frivolous or vexatious. The purpose of the section is to prevent people from abusing the system for improper purposes such as harassment or oppression. Dale Streiman & Kurz v. De Teresi, para. 7.

[23] Similarly, pursuant to r. 25.11, the court may also strike out a pleading where it is vexatious or an abuse of the process of the court.

[24] In Canam Enterprises Inc. v. Coles, Goudge J.A. stated at paras. 55-56 that the doctrine of abuse of process:

engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 [(C.A.)], at p. 358 ... [Emphasis added.]

[25] The doctrine of abuse of process exists to ensure that the administration of justice is not brought into disrepute. The administration of justice and fairness are at the heart of the doctrine of abuse of process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

Application to the Facts of the Case

[26] The Plaintiff maintains that the Claim is neither frivolous, vexatious nor an abuse of process. It spells out a long pattern of family violence including but not limited to threats, harassment, stalking, coercive control, sexual assault and financial abuse on the Plaintiff by the Defendant Moore.

[27] The Plaintiff submits that she is not re-litigating matters that proceeded through the family proceeding. The family court matter dealt with child support and disclosure. No remedy or ruling was sought on the issues of intentional infliction of emotional distress, stalking or libel. These issues have not been adjudicated. The final order of January 2023 was on consent, there was no cross-examination, witnesses or expert review of the material.

[28] I have reviewed the claim in this matter and most of the claims made by the Plaintiff are evidently without merit on their face, and clearly have no chance of succeeding at trial.

[29] In the allegation of stalking and invasion of privacy, the Plaintiff maintains that between the dates of March 16th and April 10th, 2014, she witnessed men in cars parking outside her home for hours at a time watching her and she recorded more than 100 attempts to hack her Microsoft account in those 20 days. It is unclear how these incidents have been connected to the Defendant.

[30] In late 2018, the Plaintiff maintains that she observed freshly cut ropes about a foot in length dangling from her garbage cans, and a neighbor observed a “service man” installing a cable from her roof into her internet box to record her internet activity. Again, it is unclear how these purported acts are connected to the Defendants.

[31] In December 2022, the Plaintiff asserts that she was forced out of her home as a result of strangers in cars parking within 10 feet of her home and she experienced internet and cell phone hacking. Again, the alleged hacking claims and the strangers outside her house have no apparent connection to the Defendant.

[32] With respect to the claim of intentional infliction of mental distress, the Claim maintains that for years, the Defendant made child exchanges stressful and chaotic by not being home for his weekend parenting even after agreeing to meet-up times. He further intensified the distress by sending intimidating mid-weekend texts, accusing Ms. Jones of breaching court orders, all with the clear intention of intimidating and mentally unsettling her.

[33] In the alleged Civil Sexual Assault from 2018, the Plaintiff alleges that during a visit the Defendant made inappropriate sexual advances by asking for a tour of her bedroom and attempting to kiss her.

[34] According to the Plaintiff, the corporate defendant, Hauskey Inc. participated in the abuse by providing support and resources to Damien in his position as COO. The Plaintiff alleges that Damien has access to and has utilized the services of agents/contractors who have cell phone and internet hacking capabilities and have been responsible for the ongoing intrusion and harassment she has experienced.

[35] Again, apart from a mere assertion of a connection, it is unclear how the Plaintiff has connected Hauskey to the alleged hacking and harassment, or the alleged sexual assault.

[36] The Defendant Moore submits that the Plaintiff has named Hauskey to “embarrass” him in his business relationships, which is consistent with her past practice of discussing their family proceedings with employers, school, friends, family and business associates. I agree that appears to be the purpose for naming Hauskey in the action. It is unclear how Hauskey could otherwise meaningfully be implicated in the alleged conduct.

[37] Many of the allegations are clearly statute barred. The Plaintiff even admits this in her pleading. Kaynes v. BP, PLC, 2019 ONSC 6464, paras. 109-110.

[38] In Lang Michener and Fabian, Henry J. summarized vexatious proceedings:

a. to include the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
b. where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
c. to include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
d. as having a general characteristic where grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
e. in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
f. the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
g. the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[39] The Plaintiff’s Claim has many of the features typically associated with vexatious proceedings listed above.

[40] I agree with the Plaintiff that a litigant in a family matter is not precluded from bringing a separate civil action pertaining to conduct or events occurring during the marriage even after the family action has been resolved. Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, para. 39.

[41] That said, if the new action is nothing more than a veiled attempt to extend the family action or an effort by the plaintiff to revisit matters that were understood to be resolved through a prior settlement, the new action will amount to an abuse of the court’s process.

[42] In Chuvalo v. Worsoff, 2022 ONSC 4079, paras. 60-61, a family law litigant who settled her divorce proceeding attempted to start a civil action against her ex‑spouse’s children for conspiracy. Justice Chown, in dismissing the action, explained:

…When it came time for Joanne to settle the divorce proceedings, it ought to have occurred to her that by settling she was accepting that the divorce settlement was fair and appropriate. She should have recognized that she was agreeing to resolution of her issues with George, and that by settling she risked being precluded from making any closely related claims against others, especially where there was a possibility that those she sued might be able to claim over against George.

The doctrine of abuse of process by re-litigation can be used not only to prevent relitigation of issues that were actually determined but also those that could have been determined.

See also Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, para. 40.

[43] The Affidavit of the Plaintiff sworn May 24, 2022 in the family action resembles the 2023 Claim and lists many of the same allegations and claims as set out in the 2023 Action. The Amended Claim also refers to court documents filed in the 2007 Action, Court File No. 07-FD-325121. Indeed, the allegations here look to be nothing more than an attempt by the Plaintiff to resurrect the family matter.

[44] The Plaintiff has been litigating against the same party, the Defendant Moore, for 14 years and only after settlements had been reached did the Plaintiff commence the civil matter.

[45] It is evident that the Plaintiff was not happy with the outcome in the family matter. At para. 24 of the Plaintiff’s affidavit filed in response to the Defendants’ motion, the Plaintiff provides:

The final order of 2023 was a result of an unfortunate choice I made on consent. It was settled in a case conference after I filed for an urgent motion based on financial hardship. At the time, the Defendant for the last several years was not paying child support and had been keeping 100% of Matthew’s government social assistance payments. The case conference was held without evidence, without Hauskey and Redmore disclosure and I was self-represented. This occurred just two weeks after I moved from Meaford to a safe location. As I did in the past, I opted for a quick resolution and agreed to put aside the arrears owing in exchange for the return of control over the social assistance payments for Matthew. It was unfortunate that we did not plan for program increases and this became problematic when Matthew’s program increased by $12,000 annually a few months later. The Defendant refused to contribute to this and made demands instead to cash in Matthew’s RSDP to make up the short fall.

[46] When looking at the history of this matter in conjunction with the allegations, the Claim appears to have the simple objective of furthering the family litigation against the Defendant in the hopes of a better outcome. In my view, the claims are largely baseless allegations with no meaningful chance of success and appear to be directed primarily at harassing the Defendants.

[47] In the circumstances here, I am satisfied that to allow the Plaintiff’s claims to proceed would be an abuse of the court’s process and bring the administration of justice into disrepute.

[48] Having regard to the above, the Plaintiff’s claim is dismissed.

Costs

[49] I will receive submissions on costs from the Defendants within three (3) weeks of the release of this decision. The Plaintiff will have two (2) weeks thereafter to respond.

Justice C.F. de Sa
Released: March 4, 2025