



COURT OF APPEAL FOR ONTARIO

CITATION: Baradaran v. Alexanian, 2016 ONCA 533

DATE: 20160705

DOCKET: C61252

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Manoucher Baradaran

Plaintiff (Appellant)

and

Shahen A. Alexanian, Shahen A. Alexanian Law Firm,
Shahen Alexanian Professional Corporation

Defendants (Respondents)

Manoucher Baradaran, acting in person

Louis Century and Charles Sinclair, for the respondents

Heard: June 24, 2016

On appeal from the order of Justice Robert F. Goldstein
    of the Superior Court of Justice, dated October 14, 2015.

ENDORSEMENT

[1]

This is an appeal from an order striking certain
    paragraphs of a statement of claim.

[2]

The appellant commenced an action against the
    respondent Shahen Alexanian, a lawyer, and his law firm and professional
    corporation. The appellant claims damages for breach of certain service
    agreements under which he claims to be owed various fees for working on Mr. Alexanians
    client files. He also asserts claims for solicitors negligence in respect of
    five actions in the Superior Court.

[3]

The respondents moved to strike, without leave
    to amend, paragraphs 17 to 21 of the statement of claim. Each paragraph contained
    allegations of solicitors negligence in respect of a different underlying
    claim. The motion to strike was brought under rules 21.01(3)(d) and 25.11 of
    the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194,
on the basis that
    the relevant paragraphs were frivolous and vexatious or an abuse of the process
    of the court. The motion was supported by a lengthy affidavit from Mr.
    Alexanian. The appellant filed a lengthy affidavit in response to the motion.

[4]

The motion judge granted the motion and struck
    the impugned paragraphs, without leave to amend. He found the paragraphs to be
    clearly vexatious and an abuse of process.

[5]

Paragraphs 17 and 18 contain allegations of solicitors
    negligence in respect of an action against a dentist and an action against a
    former lawyer. The actions were dismissed or struck as statute-barred, and the motion
    judge noted that the appellant had not consulted Mr. Alexanian until the
    claims were barred and that he insisted on going ahead in the face of Mr.
    Alexanians advice (that the claims were likely statute-barred and had no
    chance of success). Paragraph 19 claims solicitors negligence in an action
    claiming the return of a deposit on a time share property. The motion judge
    struck the paragraph which he characterized as alleging a failure to attend at
    trial, on the basis that the appellant had delivered a notice of intention to
    act in person. Paragraph 20 sought damages for solicitors negligence in a
    personal injury action alleging that an object was dropped on the appellant in
    the course of a flight. The action was dismissed for delay by the Registrar and
    then restored, after which Mr. Alexanian was served with a notice of change of
    lawyer. Paragraph 21 sought damages for solicitors negligence in respect of
    the appellants representation by Mr. Alexanian in an action against a
    travel agency claiming damages, among other things, for lost luggage. The
    motion judge struck paragraphs 20 and 21, stating that Mr. Alexanian issued the
    claims, pursued productions and had scheduled discoveries when the appellant
    sued him, and that he ceased work for obvious reasons. The motion judge noted
    that the claims were still outstanding.

[6]

The motion judge awarded substantial indemnity
    costs against the appellant in the sum of $11,008.87.

[7]

The appellant raises two main issues on appeal.
    First, he alleges bias based on certain earlier dealings with the motion judge,
    and the way in which the motion was handled. The appellant also asserts that
    the motion judge ignored evidence that supported his claim, and that he was
    prevented from directing the motion judge to such evidence because of the way
    the motion was conducted.

[8]

The respondents deny that there was bias on the
    part of the motion judge, and contend that the hearing proceeded in a manner
    that was fair to the appellant, because he had the opportunity to address all
    of the motion judges justifiable concerns about his pleading. The motion
    judges decision to strike the impugned paragraphs of the statement of claim were
    based on Mr. Alexanians affidavit evidence that demonstrated that the claims
    against him were frivolous and an abuse of the process of the court. The court
    was entitled to receive affidavit evidence from both parties, and to prefer Mr.
    Alexanians evidence over that of the appellant.

[9]

For the reasons that follow, the appeal is
    allowed.

[10]

First, the motion judge erred in approaching the
    motion, which was a motion to strike pleadings under rules 21.01(3)(d) and
    25.11, as though he were determining a motion for summary judgment under rule
    20. While the motion judge could consider evidence on such a motion, the
    evidence on which he based his decision went to the merits of the claims. The
    motion judge accepted the solicitors evidence, that the appellant had been
    advised that two of the actions the respondent had been retained to litigate
    were ill-conceived and he accepted the solicitors account of what transpired
    in his handling of all of the actions. In doing so, the motion judge did not
    address obvious inconsistencies in the evidence, including the appellants
    assertion in his own affidavit that Mr. Alexanian said he had a great
    chance to win [the] claims. From comments in the transcript it is apparent
    that the motion judge considered the solicitors evidence to be uncontradicted.

[11]

The propriety of the use of rules 21 and 25 was
    not addressed by the motion judge in the court below.

[12]

In this court, the respondents sought to justify
    the decision of the motion judge as being properly made under rule 25.11. First,
    the respondents asserted that, since rule 25.11 permitted evidence to be filed
    on such a motion, the judge did not err in considering such evidence in making
    his decision, even if the evidence he considered went to the merits. Second,
    the respondents argued that the motion judge could have converted the pleadings
    motion into a motion for summary judgment and that no prejudice resulted to the
    appellant because he knew the issues he had to meet.

[13]

We reject these
    arguments.

[14]

The purpose of a motion to strike paragraphs in
    a statement of claim is to weed out claims that have no possibility of success.
    Pleadings motions are brought early in the litigation and before the opposing
    party has pleaded in response. When a pleading is struck, the court must
    consider whether to grant leave to amend. A summary judgment motion, by
    contrast, can only be brought after pleadings are exchanged: rule 20.01(3).
    This is for good reason. Summary judgment disposes of the merits of a claim or
    defence.

[15]

The court will only strike out a claim on the basis that it is
    frivolous or vexatious or an abuse of the process of the court, in the clearest
    of cases and where it is plain and obvious that the case cannot succeed. One
    must guard against converting such motions into summary judgment motions:
Miguna
    v. Toronto Police Services Board
, 2008 ONCA 799, 243 O.A.C. 62, at paras.
    16 and 21. In that case, Blair J.A. addressed the very point made by the
    respondents  that the motion judge was entitled to evaluate the merits of the
    appellants claims because affidavit evidence was admissible on the motion. He
    stated, at para. 34:

Evidence is admissible in relation to a rule 25.11 motion
    or in relation to the "frivolous and vexatious" aspect of a motion
    under rule 21.01(3)(d)
. It does not
    follow, however, that such a motion may be turned into an evidentiary
    disposition. The test remains: is it plain and obvious that the claim cannot
    succeed? The test is not whether it is unlikely the claim will succeed. Nor is
    the process one of weighing and assessing the evidence against the allegations
    as if the motion were a trial or a request for summary judgment.

[16]

This means that, while evidence is admissible in
    a motion under rules 25.11 and 21.01(3)(d), the evidence must be relevant to,
    and considered for the purposes of, the motion that is before the court. In
    other words, the ability to file evidence in a pleadings motion does not change
    the character of the motion, which is not to determine the merits, but to
    decide whether the pleading should be struck, as having no chance of success
    because it is frivolous and vexatious or an abuse of process. For these
    reasons, we reject the respondents contention that the motion judge was acting
    within the proper scope of rules 21.01(3)(d) and 25.11 in striking the relevant
    paragraphs of the statement of claim based on Mr. Alexanians affidavit
    evidence.

[17]

We also reject the respondents alternative
    argument that the motion judge was entitled to convert the motion to a summary
    judgment motion, where the appellant had the opportunity to tender evidence and
    to respond to the motion judges questions about the merits of his claim. Rule
    20 permits a summary judgment motion to be brought only after pleadings have
    been exchanged: in this case no statement of defence had been delivered. Further,
    the appellant was entitled to rely on the notice of motion, and the relief
    sought by the respondents, which was to strike certain paragraphs in his
    pleading, and not for summary judgment. Finally, certain interchanges in the
    transcript show that the appellant was taken by surprise at the motion judges
    approach, when he was challenged on the merits of the claim. And, to the extent
    that the motion judge considered the merits, he was wrong to state that there
    was no evidence to contradict that of Mr. Alexanian.

[18]

It is clear from both the endorsement and the
    transcript of the hearing before the motion judge, that he approached this case
    as a summary judgment motion. While he used the term vexatious liberally in
    both his endorsement and his comments in court, and labeled the paragraphs in
    the pleading as well as the entire action as vexatious and an abuse of process,
    the motion judge conducted a merits-based analysis of the evidence. Indeed, he
    commented at the end of his endorsement that the appellants claim was
    entirely without merit. Further, the fact that the motion judge struck the
    paragraphs without leave to amend, without giving proper or any consideration
    to whether the claims were capable of being amended, reinforces the conclusion
    that he approached the motion as a summary judgment motion and not as a motion
    respecting pleadings.

[19]

Finally, we note that there were issues raised
    by the appellant about bias, and his concerns with respect to how the matter
    proceeded and comments made at the hearing. In light of our decision, we need
    not deal with that ground of appeal.

[20]

For these reasons the appeal is allowed. The
    order striking paragraphs of the appellants statement of claim is set aside,
    as is the order of the motion judge granting substantial indemnity costs
    against the appellant. The respondents will have 20 days to deliver their statement
    of defence. There will be no costs of the motion at first instance. Costs of
    the appeal are fixed in the sum of $2,000, inclusive of disbursements and
    applicable taxes, payable by the respondents to the appellant.

Paul Rouleau J.A.

K. van Rensburg J.A.

M.L. Benotto J.A.


