Ontario Superior Court of Justice

Court File No.: CV-24-00001592 (London)
Date: 2025-07-17

Between:
Mihrali Celik, Plaintiff
and
TD Canada Trust, Toronto-Dominion Bank, Defendants

Applicant: Mihrali Celik (self-represented)
Respondent Counsel: Amanda McInnis
Heard: July 14, 2025

Judge: Jasminka Kalajdzic

Endorsement

Introduction

[1] The plaintiff, Mihrali Celik, seeks repayment of $240,000 USD that he alleges the defendants took from him in 1995. In addition, he claims $1 million in damages for mental distress and over $600,000 in pre-judgment interest.

[2] The defendants move to strike the Statement of Claim without leave to amend on the basis that it is scandalous, frivolous, or vexatious and an abuse of process. The defendants argue that the action is the third attempt by the plaintiff to litigate the same claim involving the same parties, a claim that has already been struck or dismissed by two previous courts and the Court of Appeal.

[3] The plaintiff submits that no court has ever determined his claim on the merits. He wants his day in court.

[4] For the reasons that follow, I agree with the defendants that the plaintiff’s claim is barred by the operation of both issue and cause of action estoppel. I also find that the claim is an abuse of process. Accordingly, the claim is struck, without leave to amend.

Brief Chronology

[5] The dispute between Mr. Celik and TD Canada Trust dates back to March 13, 1995. On that day, he purchased a bank draft in the amount of $240,000 USD. The bank draft was deposited into the account of his sister-in-law, Homeira Mosalaei.

[6] On April 21, 1995, TD Canada Trust debited $240,000 USD, plus accumulated interest, from Ms. Mosalaei’s account and sent it to Citibank in New York City at Citibank’s request.

[7] Mr. Celik alleges that Citibank had no right to demand transfer of the funds and that a US judge ruled against Citibank. No details of this litigation or the judge’s reasons were included in any of the pleadings before me.

2015 Litigation

[8] Nine years after the funds were sent to Citibank, in October 2004, Ms. Mosalaei assigned her rights to Mr. Celik.

[9] In May 2015, Mr. Celik brought his first application against TD Canada Trust, demanding repayment of $240,000 USD. On October 4, 2016, Hockin J. dismissed the application. In reasons reported at 2016 ONSC 6171, His Honour found that because Mr. Celik’s cause of action was discoverable no later than December 21, 2003, the limitation period expired on December 21, 2005.

[10] In other words, Hockin J. found Mr. Celik had commenced his application almost ten years too late.

[11] Mr. Celik’s appeal of the decision of Hockin J. was dismissed on April 5, 2019 in reasons reported at 2019 ONCA 270.

2019 Litigation

[12] Within days of the release of the Court of Appeal’s decision, Mr. Celik commenced a new action against TD Canada Trust and TD Bank making the same allegations of misappropriation.

[13] On March 31, 2020, Pinto J. granted the defendants’ motion to strike the 2019 action without leave to amend. In reasons reported at 2020 ONSC 1714, Pinto J. held that both branches of res judicata applied because the expired limitation period was fundamental to the disposition of both the application and the 2019 action. He also found, at para. 41, that the plaintiff’s action was an abuse of process because “permitting the plaintiff’s action to proceed 24 years after the dispute arose would undermine the integrity of the civil litigation process”.

[14] More than three years later, Mr. Celik sought an extension of time to file an appeal of Pinto J.’s decision. On October 20, 2023, the Court of Appeal dismissed his motion. Paciocco J.A. found, in part, that the “appeal is, on its face, without merit.”

2024 Litigation

[15] On May 14, 2024, the plaintiff commenced the within action. He pleads that the defendants “fraudulently debit[ed] $240,501.15 USD from the account without authority or court order and [sent] it to Citibank N.A New York”.

Issues

[16] The issues to be determined are as follows:

a. Is Mr. Celik’s claim res judicata and does it, therefore, disclose no reasonable cause of action?

b. Is Mr. Celik’s claim frivolous, vexatious, or otherwise an abuse of process?

[17] The defendants submit that the allegations in the Statement of Claim are res judicata and therefore the claim discloses no reasonable cause of action. They also submit the action is an abuse of process and should be struck on that basis.

[18] The plaintiff submits that he has new evidence and has pleaded a new Canadian Charter of Rights and Freedoms claim and therefore res judicata does not apply.

Law and Analysis

a. Res Judicata

[19] Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits a party to move to strike out a pleading if it discloses no reasonable cause of action.

[20] The test to be applied on a motion to strike is well-settled:

a. The court assumes the facts as pleaded by the plaintiff are true, unless they are patently ridiculous or incapable of proof.

b. Assuming the facts pleaded are true, is it plain and obvious that no reasonable cause of action is disclosed?

c. The pleading should be read generously, with allowance for inadequacies due to drafting deficiencies.

d. While the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact unsupported by material facts.

See R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, para 17; Hunt v. Carey Canada Inc.; Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, para 15.

[21] Although used with care, a motion to strike is a valuable housekeeping measure to weed out claims that have no chance of success: Imperial Tobacco, at paras. 19-20.

[22] Res judicata operates through the application of two forms of estoppel: cause of action estoppel and issue estoppel. Issue estoppel prevents the re-litigation of any issue that has been litigated and decided between the same parties or their privies. Cause of action estoppel prevents both the same cause of action from being re-litigated as well as any claims that ought to have been raised in the prior proceedings.

Issue Estoppel

[23] Issue estoppel prevents a party from re-litigating an issue already decided in an earlier proceeding, even if the causes of action in the two proceedings differ: Minott v. O'Shanter Development Co., para 16.

[24] According to the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, para 25, there are three pre-conditions to issue estoppel: (i) the same question has been decided; (ii) the judicial decision which is said to create the estoppel was final; and, (iii) the parties to the judicial decision or their privies were the same persons as to the parties to the proceedings in which the estoppel was raised.

[25] The court has the discretion to refuse to apply issue estoppel when to do so would cause unfairness or work an injustice, taking into account the entirety of the circumstances, but this discretion must be “very limited in application”: Drizen v. Capital One Bank (Canada Branch), 2024 ONSC 4274, para 17.

[26] Mr. Celik’s current action satisfies all three preconditions established in Danyluk:

i. The central claim in the action is that the defendants unlawfully confiscated $240,000 USD in April 1995. This same allegation was central to both the 2016 and the 2019 proceedings. Hockin J. determined in 2016 that the claim was statute-barred. Although Mr. Celik characterizes this decision as a ‘technical’ disposition of his action, a defence based on a limitation period argument is a substantive one: Castillo v. Castillo, 2005 SCC 83. Mr. Celik’s claim was resolved in 2016. In 2020, Pinto J. determined that the 2019 action was an attempt to re-litigate the 2016 application and struck it on that basis.

ii. The decisions of Hockin J. and Pinto J. are both final. The Court of Appeal dismissed Mr. Celik’s appeal from Hockin J’s decision and later rejected Mr. Celik’s motion to extend the time to appeal Pinto J.’s decision. Notably, the Court of Appeal stated that the second appeal was “without merit”.

iii. The same defendants have been named in the current action as were named in the 2019 action. TD Canada Trust was named in the 2016 application, as well.

[27] I am satisfied that the question out of which the estoppel is said to arise was “fundamental to the decision arrived at” in the prior proceedings: see Danyluk, 2001 SCC 44, para 24. Whether described as a “misappropriation”, “mishandling”, “confiscation”, or “unauthorized debit”, Mr. Celik’s consistent claim has been that TD Canada Trust unlawfully took $240,000 USD from Ms. Mosalaei’s account. Two previous judges and the Court of Appeal have all determined that the expiration of a limitation period is a complete defence to Mr. Celik’s claim. The current action, therefore, is barred by issue estoppel.

[28] Mr. Celik submits that he has new evidence that was not before prior courts. He did not specify what new relevant evidence is available. In any event, under r. 21.01, no evidence may be considered. Mr. Celik did not plead any new facts in his Statement of Claim that, assuming them to be true, change the estoppel argument.

Cause of Action Estoppel

[29] Cause of action estoppel prohibits a litigant from bringing an action against another party when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction: Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, para 31.

[30] As articulated in Dosen, at para. 13, there are four elements to cause of action estoppel:

a. There is a final decision of a court of competent jurisdiction in a prior action;

b. The parties to the subsequent litigation were parties to, or in privy with, the parties to the prior action;

c. The cause of action in the prior action is not separate and distinct; and

d. The basis of the cause of the action and subsequent action was argued or could have been argued in the prior action, if the parties had exercised reasonable diligence.

[31] Mr. Celik argues that his Charter claims are new and therefore not subject to cause of action estoppel. He pleads that his rights under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms have been infringed because the defendants “unlawfully debited funds”, thus unreasonably seizing his property and jeopardizing his financial security.

[32] The impugned conduct that is said to have caused the violations, however, is the same conduct at the heart of his two earlier proceedings. The Charter claims, therefore, are causes of action that could have been argued in the prior actions.

[33] I find that the current action is barred by cause of action estoppel.

Conclusion – Res Judicata

[34] Mr. Celik is attempting to re-litigate a claim that ought to have been brought no later than 2005. His claim is statute-barred and constitutes res judicata.

[35] A claim that has previously been resolved is a claim that cannot succeed by operation of the doctrine of res judicata.

[36] As it is plain and obvious the claim cannot succeed, I strike the Statement of Claim without leave to amend.

b. Abuse of Process

[37] The authority to dismiss or stay an action that is an abuse of process derives from both rr. 21.01(3)(d) and 25.11 and the inherent jurisdiction of the court.

[38] Rule 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”. Rule 25.11 similarly provides that the court may strike out a pleading on the ground that is scandalous, frivolous, vexatious or an abuse of the process of the court.

[39] The abuse of process doctrine “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”: SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946, para 31.

[40] The doctrine of abuse of process is similar to res judicata in that it also seeks to prevent a multiplicity of proceedings.

[41] I have already determined that the current action is one that has no reasonable chance of success because the issues are res judicata. I will not repeat my analysis. The reasons for which Pinto J. found the 2019 action to be an abuse of process are even more acute now, 28 years after the impugned transaction, when the defendants would be severely prejudiced in their ability to marshal witnesses and other evidence. To paraphrase Pinto J., “permitting the plaintiff’s action to proceed [28] years after the dispute arose would undermine the integrity of the civil litigation process.”

[42] That this is the second time res judicata must be applied is also significant. The history of these proceedings demonstrates that the action is also vexatious.

[43] In addition, the failure of a party to pay the costs of previous unsuccessful proceedings is a factor to be considered in determining if a proceeding is vexatious: Re Lang Michener and Fabian.

[44] Mr. Celik has at least three outstanding costs orders dating back to 2016 and totalling over $23,000. His failure to pay these orders further supports a finding that the current action constitutes an abuse of process.

[45] Accordingly, I would also strike the Statement of Claim without leave to amend pursuant to rr. 21.01(3)(d) and 25.11 on the basis that the action is frivolous and vexatious and constitutes an abuse of process.

Conclusion and Costs

[46] Mr. Celik’s action is struck without leave to amend.

[47] Ms. McInnis submits that substantial indemnity costs are appropriate. She seeks $16,565.83, inclusive of fees, disbursements, and GST. Mr. Celik made no submissions as to costs other than to say he is a self-represented litigant and a senior citizen.

[48] The following factors under r. 57.01 apply on the facts of this case:

a. The amount claimed by Mr. Celik (over $2 million USD) was significant;

f. The action itself was vexatious and unnecessary; and

g. Mr. Celik refused to admit what should have been admitted – the duplication of his arguments.

[49] I disagree with Ms. McInnis that this was a complex matter. Much of her factum and argument repeated what was put to Pinto J. He awarded costs of $7,000.

[50] In addition, counsel slightly overestimated the time needed for today’s appearance; I have reduced the amount accordingly.

[51] Having regard to all the r. 57.01 factors and the principle of proportionality, I award costs, inclusive of fees, disbursements, and HST, in the amount of $13,000 payable by Mr. Celik to the defendants.

Jasminka Kalajdzic

Released: July 17, 2025