Reasons for Judgment
Court File No.: CV-24-101
Date: 2025-03-18
Ontario Superior Court of Justice
Between:
Wesley Moore, Plaintiff
– and –
Jordan Glick, Michael McClurg, Jay O’Neill, Todd Ruston, Julie Hebert, and Elizabeth Nieson, Defendants
Appearances:
- W. Moore for himself
- S. Clements for Michael McClurg, Jay O’Neill, Todd Ruston, and Julie Hebert
- M. Belanger for Jordan Glick
- M. Sherman for Elizabeth Nieson
Heard: March 5, 2025
Bordin, J.
Overview
1The Retirement Homes Regulatory Authority (the “RHRA”) regulates retirement homes in Ontario. This action relates to the investigation and subsequent application to the court by the RHRA to stop the plaintiff from operating an unlicenced retirement home (the “RHRA application”) called “The Village Manor”. In a nutshell, the statement of claim alleges that the defendants conspired against the plaintiff to cause him to lose his business and real property under the guise of an investigation into whether the plaintiff’s home for the aged was an unlicensed retirement home contrary to the Retirement Homes Act, 2010, S.O. 2010, c. 11 (the “Act”).
2The RHRA application was heard and determined by Koehnen J. in RHRA v. Wesley Moore, 2023 ONSC 2079. Koehnen J. held that the premises at issue fell within the definition of a retirement home under the Act and ordered the plaintiff to vacate the premises within six months and to sell it to a licensed provider. The order of Koehnen J. was subsequently upheld by the Court of Appeal for Ontario: Retirement Homes Regulatory Authority v. Moore, 2024 ONCA 585.
3The defendants move under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike out the statement of claim without leave to amend on the grounds that the claim discloses no reasonable cause of action. Alternatively, the defendants submit the claim should be struck out as it is frivolous, vexatious or an abuse of process pursuant to rr. 21.01(3)(d) and 25.11. The defendants also raise issues of statutory immunity and legislation preventing the plaintiff from relying on the evidence obtained in the RHRA application.
4The plaintiff opposes the motion and seeks disclosure and discovery, and his day in court. His submissions and factum focus on evidence that will be obtained and produced and on disputing the conclusions reached in the RHRA application. His factum is replete with detailed references to evidence obtained and filed in the RHRA application.
5As will be discussed, there are numerous obstacles to the plaintiff’s claim.
The RHRA Application
6The plaintiff’s statement of claim references the RHRA application as does his factum. To understand the statement of claim and the issues on this motion, it is necessary to consider some of the findings made by Koehnen J. in the RHRA application.
7Koehnen J. summarized the RHRA application at the beginning of his decision as follows, at paras. 1-2:
The retirement homes Regulatory Authority (“RHRA”) […] brings this application for an order directing the Respondents to cease illegally operating a retirement home at 29 Albert Street, St. Jacobs Ontario (the “Premises”) and for an order directing the respondents to wind up their business.
The Respondents resist by contending that they do not fall within the definition of a retirement home under the governing statute, the Retirement Homes Act, (the “Act”). That turns largely on whether the respondents “administered” drugs to residents at the Premises. I find that the respondents did administer drugs on the plain meaning of the term in the Act and on the respondent’s own definition of the term.
8Koehnen J. made findings of fact as to the ownership and operation of The Village Manor: at paras. 4-6, 99.
9Koehnen J. noted that the question he had to address was whether the evidence about the plaintiff’s conduct amounted to the administration of a drug or other substance: at paras. 12, 34. He reviewed how The Village Manor and its staff dealt with drugs and other substances. Koehnen J. found that the plaintiff was providing the service of “administration of a drug, as defined in the Drug and Pharmacies Regulation Act, or another substance”, as set out in s. 2(1)(b) of the Act: at para. 38. Koehnen J. found that it appeared that the plaintiff provided other services under the Act that would bring The Village Manor within the definition of a retirement home: at para. 73.
10The Court of Appeal dismissed the plaintiff’s appeal. The Court did not accept the plaintiff’s argument that Koehnen J. erred in finding that the plaintiff was operating an unlicenced retirement home contrary to the Act.
The Relevant Facts as Pleaded in the Statement of Claim
11The following is a summary of the allegations pleaded in the statement of claim in support of the claim, supplemented by findings of Koehnen J.
12The plaintiff owned The Village Manor in St. Jacobs, Ontario and operated a home for the aged from the premises.
13The defendant, Jordan Glick ("Glick"), was at all material times the lawyer for the RHRA. The defendant, Michael McClurg ("McClurg"), was at all material times the Manager of Enforcement for the RHRA. The defendant, Jay O'Neill ("O'Neill"), was at all material times the Chief Executive Officer and Registrar of the RHRA. The defendant, Todd Ruston ("Ruston"), was at all material times the Director of Regulatory Operations for the RHRA. The defendant, Julie Hebert ("Hebert"), was at all material times an Investigator and Inspector for the RHRA.
14The Defendant, Elizabeth Nieson ("Nieson"), was at all material times the Director of Home & Community Care Support Services Waterloo Wellington (“HCCSS”), now known as Ontario Health at Home (“OHAH”).
15The plaintiff’s former spouse, Debbie Moore ("Debbie"), had a licence to operate a retirement home under the Act. However, the plaintiff was its manager and de-facto operator: RHRA v. Wesley Moore, at para. 5. The plaintiff became the sole owner of The Village Manor on April 21, 2017, after title was transferred to him by Debbie: at para. 6. The plaintiff continued to live at The Village Manor and took over control of the retirement home: at para. 6.
16According to the statement of claim, Debbie and the plaintiff continued to be involved with the operation of The Village Manor after their separation. Debbie also operated a home for the aged called The Carpenter House, across the street from The Village Manor. The plaintiff assisted her with its operation. After Debbie and the plaintiff separated, Debbie sold the Carpenter House to a non-party who leased it back to her, allowing her to continue operation of the home.
17Between June 2019 and May 2020, the RHRA issued orders against Debbie (the "RHRA Orders") under the Act. Debbie appealed most of the RHRA Orders.
18Between May 27, 2020 and June 7, 2020, Glick allegedly stated his intention to have the plaintiff put in jail if the plaintiff ever operated an unlicenced retirement home. There is no allegation that the plaintiff was ever imprisoned.
19On or about June 8, 2020, Debbie served a notice of withdrawal of her appeals and her RHRA license was revoked. Effective June 9, 2020, Debbie ended her involvement with the Carpenter House and the plaintiff took over.
20On June 29, 2020, Hebert allegedly confirmed that neither The Village Manor nor Carpenter House required an RHRA license as neither met the definition of a retirement home under the Act.
21In July 2020, St. Jacobs Carpenter House Inc., which was controlled by the plaintiff, began operating the Carpenter House.
22In or about August 2020, Debbie stopped operating The Village Manor and the plaintiff took over: RHRA v. Wesley Moore, at para. 10.
23In or about July 2021 the owner of the Carpenter House property gave notice that all occupants would have to vacate by January 31, 2022. The plaintiff made efforts to rehouse the occupants in the fall of 2021 and January 2022.
24The plaintiff alleges that prior to June 19, 2019, Nieson became upset because the plaintiff questioned the quality of work done by Personal Support Workers (“PSWs”) and spoke to his Member of Parliament about payment models for PSWs.
25The plaintiff contacted HCCSS and others for assistance in relocating residents of Carpenter House. He alleges that on January 18, 2022, Nieson, in retaliation for the plaintiff’s questioning of the PSWs, contacted Hebert to have her and others “unleash” RHRA’s statutory powers against the plaintiff. Nieson is said to have alleged to Hebert that the plaintiff might be operating an unlicenced retirement home at The Village Manor. The plaintiff pleads that the conspiracy began at this point.
26The plaintiff alleges that unnamed conspirators held meetings with “community partners” without inviting him. The conspiracy also allegedly included having some of the community partners meet with the plaintiff to set him up so that the RHRA could find that he was operating an unlicenced retirement home.
27The conspiracy included having the plaintiff accept into The Village Manor one of the occupants from the Carpenter House who was a quadriplegic, “RW”, knowing that RW required more than one service. This was so that they could find that The Village Manor was providing more than one care service which made it an unlicenced retirement home. This led to court proceedings against the plaintiff.
28The placement of RW into The Village Manor was said to have been done through unsuspecting employees of Community Care Concepts of Woolwich Wellesley and HCCSS. The plaintiff was made to acknowledge that he was required to follow the HCCSS rehousing plan for the occupants of Carpenter House, including RW. However, the plaintiff was concerned that accommodating RW at The Village House without RHRA approval might be a breach of the Act. He asked that RHRA be consulted before RW moved in. None of the alleged conspirators were at the meeting where this took place. Hebert allegedly knew of the plan to place RW in The Village Manor and intentionally said nothing to the plaintiff.
29In early February 2022, after RW was housed in The Village Manor, Hebert, having been authorized by other defendant conspirators, applied for, obtained, and executed a search warrant at The Village Manor.
30Hebert and other investigators exceeded their authority under the search warrant, intimidated and/or coerced occupants, misstated findings in their notes as to what employees and occupants at The Village Manor had told them, intentionally did not make recordings of any conversations and did not obtain any signed statements or consents from any occupants or employees. It is alleged the investigators knowingly failed to record plain and obvious exculpatory evidence.
31The investigators obtained records from The Village Manor. These records were used in the legal proceedings against the plaintiff. The conspirators are alleged to have started civil proceedings before the quasi-criminal proceeding to require the plaintiff to give his evidence in the civil proceeding so they could gather more evidence. The plaintiff asserts this breached his right to remain silent under the Canadian Charter of Rights and Freedoms.
32The plaintiff asserts others, including police officers, firefighters, and township employees, were recruited to launch unspecified proceedings against the plaintiff. The occupants of The Village Manor were said to be convinced by unspecified persons of its imminent closure. The township pursued zoning issues. Hebert is said to have suggested to the township that it and the RHRA work together in going after the plaintiff.
33Glick, on behalf of the RHRA, commenced the RHRA application. The plaintiff references conduct by the conspirators during the RHRA application, including hiding information, failing to disclose records, giving false testimony, and manipulating records and evidence. The plaintiff refers to a conversation between Glick and the plaintiff’s lawyer about convincing the judge about whether the plaintiff was licenced by the RHRA. It is said that Glick then allowed Nieson to swear to misleading information. The plaintiff says the conflicting notes, records and testimony is evidence of one or more of the conspirators attempting to cover up the conspiracy.
34The plaintiff asserts the predominant purpose of the defendants’ agreement and conduct was to cause crippling damage to him and destroy his business or have him incarcerated, even though some of the conspirators had never spoken to each other. Alternatively, they had constructive intent to cause him injury. He pleads their conduct was unlawful because they duped him, falsified notes and records, withheld notes and records, misstated information, gave false testimony, breached his Charter rights and coerced others to advance their objective. The plaintiff pleads that he has suffered damages because of the conspiracy, including loss of the business, Debbie commencing power of sale proceedings against The Village Manor property, loss of income, and loss of reputation. He claims damages for legal expenses and costs associated with the orders made against him.
35The plaintiff pleads that because of the conduct of O’Neill and Glick during the RHRA application, he received an adverse decision. He references improper conduct during the appeal to the Court of Appeal for Ontario. The plaintiff references a contempt motion against the plaintiff for which it is said the conspirators had no evidence of contempt.
36The plaintiff alleges the defendants conveyed information to a financial institution, leading to its refusal to renew his mortgage and resulting in significantly higher interest costs for the plaintiff. The defendants also allegedly pressured people to leave The Village Manor and induced breach of contract between the occupants and the plaintiff.
37Read generously, the allegations in the statement of claim can be broken down into the following categories of allegations:
a. Nieson, motivated by personal animus, set out to engage the other defendants against the plaintiff;
b. The plaintiff was duped into accepting RW into The Village Manor so that he could be found to be in violation of the Act in housing her there;
c. The investigation under the Act was instigated to retaliate against the plaintiff;
d. The conduct of the defendants during the investigation under the Act exceeded their authority and was improper;
e. Glick threatened to have the plaintiff put in jail if he operated an unlicenced retirement home;
f. The RHRA application was improperly used to obtain evidence against the plaintiff for use in a quasi-criminal prosecution;
g. The defendants engaged in improper conduct during the RHRA application with respect to evidence and disclosure;
h. Hebert and others persuaded other organizations or institutions, including the police, firefighters and the township to investigate the plaintiff; and
i. The conspirators conveyed information to others causing financial losses and causing residents to leave The Village Manor.
Rule 21.01(1)(b)
38The court may strike out a pleading under r. 21.01(1)(b) on the ground that it discloses no reasonable cause of action. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 17. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: Imperial Tobacco, at para. 17.
39The facts pleaded are assumed to be true unless they are manifestly incapable of being proven or are patently ridiculous: Imperial Tobacco, at para. 22; Rivard v. Ontario, 2025 ONCA 100, at para. 22. No evidence is admissible on the motion: Imperial Tobacco, at para. 22. A defendant who resorts to r. 21.01(1)(b) must take the plaintiff's pleaded claim at its provable highest: The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, at para. 45. The court must read the plaintiff's pleading generously, making allowances for drafting deficiencies and erring on the side of permitting an arguable claim to proceed to trial: Catalyst, at para. 46. Rule 21.01(1)(b) imposes a very high burden on the moving defendant of proving that the pleading does not disclose a reasonable cause of action: Catalyst, at para 47.
40The approach taken by the court must be generous and err on the side of permitting a novel but arguable claim to proceed to trial: Imperial Tobacco, at para. 21.
41A r. 21.01(1)(b) motion focuses on the legal sufficiency of a plaintiff's pleading, in the sense of determining whether the plaintiff has pleaded the material facts necessary to support a cause of action recognized by the law: Catalyst, at para. 39.
42Bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts are not assumed to be true: Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, at para. 11, citing Das v. George Weston Limited, 2018 ONCA 1053, at para. 74.
43If the claim has some chance of success, it must be permitted to proceed; the threshold for sustaining a pleading is not high: see Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, at para. 30; MacKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874, at para. 20.
Rules 21.01(3)(d) and 25.11 and Abuse of Process
44Rule 21.01(3)(d) provides that a defendant may move before a judge to have an action stayed or dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court.
45As held in Currie v. Halton Regional Police Services Board, at para. 17, there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. Any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example is the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction. Invoking the court’s authority under r. 21.01(3)(d) or pursuant to its inherent jurisdiction to dismiss or stay an action is appropriate only in the clearest of cases.
46Rule 25.11 provides that the court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document, may prejudice or delay the fair trial of the action, is scandalous, frivolous or vexatious, or is an abuse of the process of the court.
47Abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would bring the administration of justice into disrepute. An abuse of process occurs when litigants attempt to relitigate causes of action or issues that have already been decided by a court of competent jurisdiction. The doctrine of abuse of process is a flexible doctrine. It has been applied to preclude relitigation in circumstances where the strict requirements of issue estoppel are not met but where allowing the litigation to proceed would violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice. It does not require mutuality or privity where allowing the litigation to proceed would violate principles of finality and the integrity of the administration justice: see Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, at para. 37.
Analysis
Claims Barred by Abuse of Process
48The claim alleging that the RHRA application was improperly used to obtain evidence against the plaintiff for use in a quasi-criminal prosecution is an abuse of process. It was considered and disposed of by Koehnen J. and the Court of Appeal.
49Koehnen J. determined that proceeding with the RHRA application before the provincial offences was not improper given the Act contemplates both. Further, the plaintiff could have, but did not, move for a stay of the RHRA application pending a hearing of the provincial charge: at paras. 79-80.
50The Court of Appeal, at paras. 16-19, addressed this issue as well:
In addition to its attempt to argue that St. Jacobs Country Living [The Village Manor] was not a retirement home, the appellants sought to defend against the application by arguing that the RHRA contravened Mr. Moore’s Charter rights by strategically waiting until it had Mr. Moore’s evidence from the administrative application for a compliance order before laying regulatory charges. In effect, the appellants were arguing that the administrative proceedings were an abuse of process. That argument was not well-developed before the application judge, and we see no basis for interfering with his decision to reject it.
First, he was correct in noting that s. 97 of the Act contemplates regulatory prosecutions following an administrative compliance order. It is clear on its face that an order made under “this Part”, which includes s. 96.1 orders made by a court upon application by the registrar, “does not affect the liability of the person to conviction for an offence arising from the non-compliance”.
The application judge was also correct in noting that there are legal safeguards available to prevent self-incriminatory information secured during the administrative process from being used unfairly to support a quasi-criminal prosecution, such as applying for a stay of the administrative proceeding pending the completion of the prosecution (which was not done), or by invoking the protection of the Ontario Evidence Act, R.S.O. 1990, c. E.23.
We therefore deny this ground of appeal.
51In submissions, the plaintiff spent time asserting that the courts were wrong in their interpretation of “administering medication.” To the extent that the plaintiff’s claims assert that Koehnen J. reached the wrong conclusion on this or the other issues before him, the claim is an abuse of process.
52Such claims are also a collateral attack on the order of Koehnen J., which was upheld by the Court of Appeal. They rest on the theory that conclusions reached by Koehnen J. were wrong. Court orders are final and binding unless set aside or varied on appeal. Court orders may not be attacked collaterally: Lang Michener v. King, 2017 ONSC 1917, at paras. 26-32, rev’d on other grounds, 2018 ONCA 471.
Inadmissible Evidence
53The defendants submit that the claim cannot succeed because the plaintiff must rely on evidence obtained during the investigation and the RHRA application which is not admissible under ss. 113(5) and (6) of the Act. Those sections provide:
(5) No person shall be compelled to give testimony in any civil proceeding, other than a proceeding under this Act or an appeal or a judicial review relating to a proceeding under this Act, with regard to information obtained in the course of performing a duty or exercising a power under this Act.
(6) No record of a proceeding under this Act, no document or other thing prepared for, or statement given at, such a proceeding and no order or decision made in such a proceeding is admissible in any civil proceeding, other than a proceeding under this Act or an appeal or judicial review relating to a proceeding under this Act.
54I am advised by counsel that ss. 113(5) and (6) of the Act have not been considered by the courts. The defendants rely on cases interpreting ss. 36(2) and (3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), which provide:
(2) No person or member described in subsection (1) shall be compelled to give testimony in a civil proceeding with regard to matters that come to his or her knowledge in the course of his or her duties.
(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
55Sections 113(5) and (6) of the Act and ss. 36(2) and (3) of the RHPA contain similar language.
56The court in Conroy v. The College of Physicians and Surgeons of Ontario, 2011 ONSC 324, at para. 60 (aff’d on appeal, 2011 ONCA 517), dismissed the claim under r. 21 and considered the effect of s. 36(3) of the RHPA, concluding at para. 55 that “it is clear from the case law that s. 36(3) of the RHPA creates a blanket prohibition against the admissibility of all evidence collected during the course of the College’s investigation and this prohibition is an absolute one.” See also Yan v. Hutchinson, 2023 ONCA 97, at para. 15; Frank v. Legate, 2015 ONCA 631, at para. 61.
57The court in Conroy further noted the following, at para. 57:
[I]t is important to recognize that s. 36(3) effectively bars Dr. Conroy from relying on all of the other facts pleaded. Evidence of what transpired at the various proceedings, interviews, and the decisions of the various committees are fundamental to Dr. Conroy’s claims. It is difficult to imagine how the claim would proceed when the bulk of the evidence about what happened between Dr. Conroy and the College is inadmissible.
58The Court of Appeal for Ontario has held that s. 36(3) of the RHPA contains no exception for fraud or bad faith: Task Specific Rehabilitation Inc. v. Steinecke, at para. 22.
59I reach the same conclusions with respect to the effect of ss. 113(5) and (6) of the Act as in Conroy and Task Specific Rehabilitation Inc. In doing so I have considered the meaning of the Act as found by Koehnen J. in the RHRA application, the similarity of these sections to ss. 36(2) and (3) of the RHPA, the authorities interpreting the RHPA provisions, and the wording of ss. 113(5) and (6). These latter sections create a prohibition against the admissibility of all evidence collected during the investigation into and used in the prosecution of the RHRA application. Such evidence is inadmissible and cannot be used by the plaintiff in pursuing his claim. Further, no one involved in the investigation on behalf of the regulating entities can be compelled to testify. This makes the claim that the defendants engaged in improper conduct during the RHRA investigation and application with respect to evidence gathered, disclosed and used, untenable.
60However, the application of these sections and the inadmissibility of the subject evidence does not address the claims that relate to the alleged improper motivation of the defendants that do not rely upon the prohibited evidence. The defendants make additional arguments that such claims are barred.
Immunity of the Defendants
61All the RHRA defendants and Glick assert they have immunity under the Act. Section 28(1) of the Act provides that:
No action or other proceeding shall be instituted against a director or officer of the Authority, an inspector or any other person employed, retained or appointed by the Authority for any act done in good faith in the execution or intended execution of any duty imposed or power conferred by this Act or the regulations, or for any alleged omission in the execution in good faith of that duty or power.
62Nieson was a director for OHAH, a Crown agency, which is governed by legislation including the Connecting Care Act, 2019, S.O. 2019, c. 5, Sch. 1 (the “CCA”). Nieson submits that she has immunity under the CCA. Section 27.18(1) of the CCA provides that:
No cause of action arises against any current or former director, officer, employee, volunteer or adviser of the Service Organization for any act done in good faith in the exercise or performance, or intended exercise or performance, of the person’s powers, duties or functions under this Act or for any alleged neglect, default or other omission in the exercise or performance in good faith of those powers, duties or functions.
63Subsection 35.1(1) of the CCA’s predecessor legislation, the Local Health System Integration Act, 2006, S.O. 2006, c. 4, contained somewhat similar language.
64I am advised by counsel that the above provisions of the Act and the CCA have not been considered by the courts. The defendants rely by analogy on cases interpreting s. 38 of the RHPA. Section 38 of the RHPA provides that:
No action or other proceeding for damages shall be instituted against the Crown, the Minister, a College supervisor appointed under section 5.0.1 or his or her staff, an employee of the Crown, a College, a Council, or a member, officer, employee, agent or appointee of a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.
65In Conroy, at para. 60, the court held that the s. 38 RHPA immunity does not apply to bad faith actions, and if bad faith is properly pleaded, the action cannot be struck pursuant to s. 38 RHPA.
66The language of the three sections of the three acts is similar. None of the defendants asserted that s. 28 of the Act and s. 27.18(1) of the CCA grants them immunity from conduct undertaken in bad faith.
67I am satisfied that s. 28 of the Act and s. 27.18(1) of the CCA provide the defendants with immunity for actions taken in good faith, but do not provide immunity for bad faith actions and that if bad faith is properly pleaded, this action should not be struck under r. 21.
68I now turn to consider whether bad faith and conspiracy have been properly pleaded in the statement of claim.
Pleading Bad Faith and Conspiracy
69The self-represented plaintiff explicitly pleads conspiracy. The elements of the tort of conspiracy as pleaded are that the defendants made an agreement to injure the plaintiff and used lawful and unlawful means for the predominant purpose of injuring the plaintiff, the defendants acted on that agreement, and the plaintiff suffered damages as a result: see Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, at para. 24; Lilleyman v. Bumblebee Foods LLC, 2023 ONSC 4408, at para. 95, aff’d 2024 ONCA 606.
70Rule 25.06(8) requires a pleading that alleges bad faith to contain full particulars. Allegations of legal conclusions are not facts and are insufficient for the purposes of a pleading. This is particularly so where allegations of intentional or malicious conduct are made: Conroy, at para. 61. The rule also provides that knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
71At paras. 102-4 in Lilleyman, Perell J. considered what is required to plead conspiracy:
In pleading a conspiracy, material facts actions [sic] in furtherance of the conspiracy must be connected to the actors; in a conspiracy pleading, it is necessary to set out discretely the particular acts of each co-conspirator so that each defendant can know what he or she is alleged to have done as part of the conspiracy. A recitation of a series of events coupled with an assertion that they were intended to injure is insufficient, and it is not appropriate to group some or all of the defendants together into a general allegation that they conspired to injure the plaintiff.
Conspiracy allegations require particularity, including details of the acts alleged against each defendant. Pleadings of conspiracy cannot boil down to mere speculation or to a fishing expedition to find a cause of action, and if the plaintiff does not, at the time of pleading have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim.
Each individual defendant is entitled to know the case they must meet; this is particularly true for the conspiracy pleading because, although conspiracy is a tort committed by a group, the liability of each defendant arises because they individually participated as a member of the group.
72The self-represented plaintiff does not allege misfeasance in public office, but his pleading, read generously, raises the prospect of such a claim given that it pleads that the purpose underlying the actions of the public officers (which excludes Glick) was to deliberately harm the plaintiff: see Odhavji Estate v. Woodhouse, 2003 SCC 69, at paras. 22-32.
73To pass scrutiny under r. 21.01(1)(b), a pleading of misfeasance in public office must allege facts capable of establishing the ingredients of the tort, in addition to causation and damages. These ingredients are (1) the defendant must be a public official; (2) the claim must arise from the exercise of power as a public official; and (3) the public official must have acted with malice or bad faith so as to satisfy the mental element: Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, at para. 19.
The Claim Against Glick Discloses No Reasonable Cause of Action
74The plaintiff pleads that Glick, as the lawyer for the RHRA, acted “outside the scope of his authority when he conspired with the co-defendants to cause damages and losses to the Plaintiff.” This is an unparticularized legal conclusion that cannot sustain a pleading of conspiracy or bad faith.
75Paragraphs 17, 31, 33, 34, 35, 44 and 46 make specific allegations against Glick. The allegations in paras. 31, 34, 44, and 46 are an abuse of process and a collateral attack on the order of Koehnen J. which was upheld by the Court of Appeal. The allegations in paragraphs 31, 33, 34, 35, and 44 are barred by ss. 113(5) and (6) of the Act.
76Further, as the lawyer for the RHRA, Glick owed a duty to his client, not to the plaintiff: Yan, at para. 17. In addition, Glick’s conduct as alleged in the claim is protected by absolute privilege: see Amato v. Welsh, 2013 ONCA 258, at para. 34; Curtis v. McCague Borlack LLP, 2024 ONCA 729, at paras. 8-13.
77The balance of the claim in which allegations are made regarding the conduct of unidentified persons contains bald allegations or conclusory statements, does not properly plead bad faith or conspiracy against Glick, and does not contain sufficient particulars. The plaintiff does not discretely plead the particular acts of Glick in these paragraphs so that he can know what he is alleged to have done as part of the conspiracy.
78The claim against Glick discloses no reasonable cause of action, is untenable, and is struck out.
The Claim Against McClurg, O’Neill and Ruston Discloses No Reasonable Cause of Action
79Except for describing McClurg as a party and the conclusory statement that he acted outside the scope of his authority, McClurg is mentioned by name in the body of the claim only in paragraph 31. Except for describing O’Neill as a party and the conclusory statement that he acted outside the scope of his authority, O’Neill is mentioned by name in the body of the claim only in paragraphs 31, 33, and 44. The allegations in paragraphs 31, 33, and 44 are an abuse of process, a collateral attack on the order of Koehnen J., which was upheld by the Court of Appeal, and are barred by ss. 113(5) and (6) of the Act.
80Except for describing him as a party and the conclusory statement that he acted outside the scope of his authority, Ruston is not mentioned by name in the body of the claim.
81As is the case with Glick, the balance of the claim in which allegations are made regarding the conduct of unidentified persons contains bald allegations or conclusory statements, does not properly plead bad faith or conspiracy, and does not contain sufficient particulars. The plaintiff does not discretely plead the specific acts of McClurg, O’Neill and Ruston in these paragraphs so that each defendant can know what he is alleged to have done as part of the conspiracy. These defendants cannot know from the balance of the pleadings the case they are required to meet.
82The statement of claim discloses no reasonable cause of action against McClurg, O’Neill and Ruston, and is struck out against them.
The Claims Against Nieson and Hebert
83Except for describing Nieson as a party and the conclusory statement that she acted outside the scope of her authority, Nieson is mentioned by name in the body of the claim only in paragraphs 26 and 34. Paragraph 26 pleads bad conduct on the part of Nieson. It alleges Nieson was acting in retaliation against the plaintiff. The plaintiff might be able to establish this allegation without relying on evidence prohibited by s. 113(5) and (6) of the Act. Paragraph 34 alleges that Nieson swore a deceptive affidavit. The swearing of the affidavit is protected by absolute privilege and the evidence is barred by s. 113(6) of the Act.
84Except for describing Hebert as a party and the conclusory statement that she acted outside the scope of her authority, Hebert is mentioned by name in the body of the claim only in paragraphs 20, 26, 29, 30 and 32. Paragraph 20 is not an allegation of bad faith. Paragraph 26 is directed at Nieson, not Hebert. Paragraph 29 suggests bad faith in pleading that Hebert was aware of the plan to house RW at The Village Manor and intentionally said nothing to the plaintiff. Paragraph 30 pleads bad faith on the part of Hebert in carrying out the search warrant and in her communications with occupants of The Village Manor. The balance of the paragraph deals with evidence obtained during the investigation. This evidence is not admissible. However, the plaintiff would not be precluded from calling the residents of The Village Manor or other witnesses not captured by ss. 113(5) and (6) of the Act to give evidence of the alleged bad faith conduct. Paragraph 32 pleads bad faith, at least by implication, on the part of Hebert in suggesting to the township that it work together with the RHRA to go after the plaintiff. Again, the plaintiff may be able to establish such an allegation without reference to prohibited evidence.
85As is the case with the other defendants, the balance of the claim in which allegations are made regarding the conduct of unidentified persons contains bald allegations or conclusory statements, does not properly plead bad faith or conspiracy, and does not contain sufficient particulars. The plaintiff does not discretely plead the specific acts of Nieson and Hebert in these paragraphs so that each defendant can know what she is alleged to have done as part of the conspiracy. These defendants cannot know from the balance of the pleadings the case they are required to meet.
86The defendants argue that the plaintiff’s claim of conspiracy or allegations of bad faith are an abuse of process and a collateral attack on decisions of the court in the RHRA application. They rely on Koehnen J.’s comments in para. 84 of his reasons:
Although the respondents have referred to allegedly improper motivations and dishonesty on the part of the applicant, I do not accept those submissions. Whatever the history between Mr. Moore and the regulator might be, the evidence is clear that the Premises were consistently engaging in the administration of drugs without having a license to do so.
87However, the motivation of the defendants was not the central issue before Koehnen J. in the RHRA application. He was addressing whether The Village Manor was being operated as a retirement home without a licence. Arguably, the motivations of the defendants in pursuing the application were not relevant to that issue. Further, Koehnen J.’s rejection of the submission in the above paragraph was not a fulsome consideration of the plaintiff’s claim of conspiracy or bad faith.
Leave to Amend Denied
88The result of the above analysis is that the only possible claims that remain are claims against Nieson and Hebert for which bad faith is pleaded.
89A pleading should not lightly be struck without leave to amend. Leave to amend should be denied only in the clearest of cases: South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6; Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26. This is particularly so where the deficiencies in the pleading may be cured by an appropriate amendment: South Holly Holdings, at para. 6; Tran, at para. 27.
90If a plaintiff does not have the particulars to properly plead its claim, the claim should be struck out: SNC, at para. 42. Where a plaintiff has not pleaded facts that support the claim, the appropriate remedy is to strike the claim rather than order the plaintiff to provide particulars: SNC, at para. 42.
91It is only where it is clear that the plaintiff cannot allege further material facts that he knows to be true to support the allegations that leave to amend will be refused: Miguna v. Ontario (Attorney General), at para. 22.
92The plaintiff did not tender a proposed amended statement of claim. It is difficult to conceive how the claim could be amended to survive the numerous issues confronting the plaintiff identified above. Further, the claim is filled with pleadings that are untenable, contain unparticularized allegations, bald assertions and conclusory statements, that are subject to absolute privilege, rely on inadmissible evidence, are an abuse of process and are collateral attacks on the findings and conclusions of Koehnen J and the Court of Appeal. The statement of claim only pleads bad faith against Nieson and Hebert, and barely so. Given all of this, the claim as drafted cannot be cured by amendment and leave should not be granted. The statement of claim must be struck out in its entirety.
Disposition
93The motion of the defendants striking out the claim is granted.
94If the parties cannot resolve the issue of costs, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages, together with excerpts of any legal authorities and any relevant offers to settle. The defendants’ submissions are to be served by no later than April 1, 2025; the plaintiff’s, by no later than April 15, 2025.
95All submissions are to be filed with the court and uploaded to Case Center, with a copy to the Trial Coordinator by end of day April 15, 2025. If no submissions or written consent to a reasonable extension are received by the court by April 15, 2025, the matter of costs will be deemed to have been settled.
Bordin, J.
Released: March 18, 2025