



COURT OF APPEAL FOR ONTARIO

CITATION: Arsenijevich v.
Ontario
    (Provincial Police)
, 2019 ONCA 150

DATE: 20190227

DOCKET: C64957

Pepall, Trotter and Harvison Young JJ.A.

BETWEEN

Branko Arsenijevich

Plaintiff (Appellant)

and

Adrian Garner (Badge #8155), Ontario Provincial
    Police, Her Majesty the Queen in Right of Ontario

Defendants (Respondents)

Branko Arsenijevich, acting in
    person

Colin Bourrier, for the respondents

Heard: February 7, 2019

On appeal from the
    order of Justice C. Stephen Glithero of the Superior Court of Justice, dated
    January 15, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from an order striking out his statement of claim
    as disclosing no reasonable cause of action and dismissing his action.

[2]

The action was commenced on October 2, 2015. The appellant claimed
    punitive damages, travel expenses, interest, and costs allegedly arising from
    the stopping, and subsequent detainment and impoundment of his vehicle by an
    OPP officer. He asserted that the respondents had breached his rights as
    guaranteed by s. 1(a) of the
Canadian Bill of Rights
, S.C. 1960, c. 44.

[3]

On its face, the pleading is wholly deficient.  On three or four
    occasions counsel for the respondents advised the appellant of the deficiencies.
    On December 17, 2015, counsel for the respondents wrote to the appellant
    encouraging him to seek legal advice and to consider discontinuing his action.
    The appellant did not respond and did not amend his pleading. Ultimately, the
    respondents successfully moved to strike out the claim under r. 21.01(1)(b) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[4]

On October 18, 2018, the appellant sought and was granted an adjournment
    to permit him to retain counsel for this appeal. No counsel appeared on his
    behalf at the hearing before this court and he proceeded as a self-represented
    litigant.

[5]

In striking out the statement of claim and dismissing the action, the motion
    judge applied the correct test. He recognized that the statement of claim fails
    to plead any material facts in support of the purported
Canadian Bill of
    Rights
breach and the theft allegation. There is nothing in the pleading
    that suggests that the respondents were acting outside the scope of their authority
    in stopping the appellant and causing the vehicle to be towed.

[6]

The motion judge correctly concluded that the OPP is not a legal entity
    capable of being sued: see
McNabb v. Ontario (Attorney General)
(2000),
    50 O.R. (3d) 402 (S.C.), at paras. 25-30. He also correctly concluded that the
    appellants claim, on its face, was incapable of success and that the action
    should be dismissed. We would note that this court upheld the dismissal of a claim
    mirroring the appellants on the basis that it lacked legal merit and was
    frivolous and vexatious: see
Corsi v. Skanes
, 2018 ONCA 661, 33 M.V.R.
    (7th) 252.

[7]

Although not raised at any stage in this action, we do note that the
    respondents had filed a statement of defence before bringing their motion to
    strike under r. 21.01(1)(b). Generally, a defendant should move to strike a
    claim as disclosing no reasonable cause of action prior to delivery of a
    statement of defence:
Brozmanova v. Tarshis
, 2018 ONCA 523, 81
    C.C.L.I. (5th) 1, at para. 26. However, where as in this case, the statement of
    claim is so facially deficient and largely incomprehensible, this step by the
    respondents is not fatal. In addition, it is evident from the contents of their
    pleading that the respondents took issue with the legal sufficiency of the appellants
    claim. Moreover, the motion judges determination was in keeping with the
    direction in r. 1.04 of the
Rules of Civil Procedure
that the rules be
    liberally construed to secure the just, most expeditious and least expensive
    determination of every civil proceeding on its merits.

[8]

The motion judge did not grant the appellant leave to amend. He noted
    that the appellant had ample opportunity to amend his pleading but had failed
    to do so. We see no reason to interfere with his disposition.

[9]

Lastly, we see no error in the motion judges conduct of the proceedings
    before him. He was correct that in the Superior Court of Justice, the appellant
    may either represent himself or be represented by counsel:
Rules of Civil
    Procedure
,

r. 15.01(3).
[1]
This is unlike proceedings under the
Provincial Offences Act
, R.S.O.
    1990, c. P. 33 in the Ontario Court of Justice where a defendant may act
    personally or by representative (as defined in s. 1(1) of the
Provincial
    Offences Act
), such as in the case of
R. v. Allahyar
, 2017 ONCA
    345, 138 O.R. (3d) 233. The appellants friend was welcome to attend at the
    Superior Court of Justice with the appellant but could not be his representative
    before that court and therefore could not make submissions on his behalf.

[10]

For these reasons, the appeal is dismissed with costs to be paid by the
    appellant to the respondents fixed in the amount of $1,000 inclusive of
    disbursements and applicable tax.

S.E. Pepall J.A.

G.T. Trotter J.A.

Harvison Young J.A.





[1]

Any other party to a proceeding may act in person or be
    represented by a lawyer: r. 15.01(3).


