Deirdre Moore vs. Victor Vallance Blais

Rule 21 Motion

Victor Vallance Blais MAIN page || pfi.ROCKS School of Law!


  Moving Party’s Approach to starting the Motion
Heard by Justice Sally Gomery via ZOOM

February 18, 2021 || 10:30 – 12:45

Her Honour has reserved her decision

Housekeeping:

  1. Confirm judge has all documents
    1. Defendant’s Motion Record
    2. Defendant’s Factum
    3. Defendant’s Compendium of public records
    4. Plaintiff’s 20201216 e-mail
    5. Plaintiff”s Factum
  2. Cost outline: would you like mine now or at the end? (Judge states: leave it until the end)
  3. Breaks: would you like to pre-set the break times or not (Judge states: break at end of moving party’s submissions but acknowledges ZOOM fatigue
  4. Plaintiff’s Factum can be filed late on consent but the court should ignore the attachments which are evidence. (Defendant did not like that I included Ontario Works cheque stub. Defendant called it evidence and judge called it submissions. We were supposed to deal with my Factum at the end; however, I did not even go through my Factum … I simply refuted defendant’s arguments and completely forgot to present the ideas in my Factum. I had been up since midnight and was a little tired: mental note for next time.)
  5. Defendant’s Roadmap
    1. Address Plaintiff’s concerns regarding the “promptness” of the Motion
    2. Address Plaintiff’s criticism of notice of Motion and Motion record
    3. Address Rule 21 in three separate parts
    4. Address the Request for Stay pursuant to Rule 106
Moving Party’s Issues Moving Party’s Arguments
Issue #1 || Plaintiff’s concern that the promptness of the Motion violates the Rules of Civil Procedure

 

Argument #1 || The court will conclude that this Motion could not have been brought any sooner than it was.

She walked judge through Motion record and referenced the compendium to detail dates of multiple conferences and argued that since I requested permission to amend my Statement of Claim that they were not not in a position bring a Rule 21 Motion until 20201109 when I stated in (previous case management conference) that I would not be amending my Statement of Claim.

She asserted that the requirement of promptness had been met.

She asked permission to move to issue number two unless the judge had any questions. There were no questions.

Issue #2 || Plaintiff’s complaints about the Notice of Motion and the Motion Record Argument #2 || The court will gain comfort that there were no substantial procedural irregularities that should preclude this Motion.

She walked judge through my itemized list of complaints submitted by e-mail on 20201216:

    1. Promptness (already addressed)
    2. Notice of Motion is unlawful
      1. Notice of Motion form 37 was amended by Ministry of Attorney General 20200901; however, the amendment did not take effect until 20210101. Accordingly, at time of writing the Notice of Motion complied with the Rules of Civil Procedure.
      2. Courts of Justice Act was not referenced in the Notice of Motion: “I am not aware of any requirement that it be referenced” plus, CJA was cited and referenced.
      3. Teleconference information was not provided: “I am not aware of any requirement that teleconference information be provided” plus, it is provided by the court.
      4. Nothing precludes the defendant from relying on “catch-alls” in their Notice of Motion. She laughed as she stated that she was not relying on any additional materials.
      5. 21.01(2) (I did not quite catch this one: it had to do with a list of evidence.)
      6. Notice of Motion does not reference the form number. “I am not aware of any requirement to include the court reference number on the notice of Motion.” The absence of this reference number does not invalidate the Notice of Motion.
    3. Complaints of Motion Record
      1. There is a table of contents and there are no exhibits because there are no Affidavits and no viva voce evidence is being submitted by transcript; therefore, there is no basis for this complaint.
      2. The Motion Record contains zero affidavits because a Rule 21 does not permit evidence plus Rule 37.10(2) lists what shall go into a Motion Record but it is not required. (I interpreted shall to mean must; otherwise, the word should be may. However, I now see how I erred here.)
      3. The Motion Record has zero transcripts: again, no evidence is permitted. OK
      4. The Motion Record does contain pleadings which are from the court file. OK
      5. The Motion Record does not contain evidence: pleadings are not evidence. OK
      6. Re: 37.10(4) I believe that she misstated my complaint and claimed that I “misunderstood” the rule. (I disagree.)
    4. Length of the Factum was exceeded
      1. Judge agreed to ignore page 21 and the cover and back pages so that its Factum did not exceed the 20-page limit
Issue #3 || The Rule 21 Motion

 

Argument #3 || She asked if judge required a brief presentation of the facts and judge did not.

  1. There is no cause of action
    1. The Plaintiff’s 
      1. Rule 21.01(1)(?) Defendant must prove that it is plain and obvious that the Plaintiff has no chance of success. Court must accept as true the material facts pleaded; that obligation, however, does not extend to bold conclusory statements of fact unsupported by material facts in the Statement of Claim. The pleading does not contain the necessary facts for the torts alleged against the defendant. She illustrates why the necessary material facts have not been pleaded to support the allegations of negligence and intentional/negligent infliction of mental suffering and emotional harm. Test for negligence is on page 11 ? and Culligan ?paragraph 41? It is unclear from the Statement of Claim:
        1. how or when the Defendant breached the standard of care
        2. what damage occurred from that breach
        3. that the damage flowed for the defendant’s conduct

        The necessary facts to meet the test are not contained within the Statement of Claim. The claim is a “collage” of complaints, most of which relate to the Plaintiff’s husband. There is no tie between how the complaints against the defendant indicate what the Defendant should have done, what it did not do and how that failure affected Plaintiff. (Judge interrupted: paras 50-52; implicit is that there should have been advice given. Some detail is not provided, however, there is some link.) There might be a couple of allegations that will survive. 22-40, 47, 49-52, 54, 55, 57, 60, 62, 73, 74 and 80. She laughingly states that all of those paragraphs do not contain any facts. The causal link between the harm alleged and the claims suffered. Even on a generous reading, there is no link to harm to conduct. (Judge interrupts: is it not natural that if the claim is for sub-standard service that a return of fees is linked. Or is the problem that it is not plead in contract.) This dove-tails into the request for Stay of Proceedings: it is difficult to conclude that the defendant provided no value. Her claim would have to be plead in contract. Do you need to hear more about a causal link for negligence? No.

      2. Re: Intentional/Negligent  test at paragraph 47 Requires some extreme/outrageous conduct with a purpose of harming the Plaintiff. I cannot perceive of any of the Defendant’s calculated conduct. Even if we assume it was intentional, no harm is linked back to the conduct. Thereofre, those aspects of the claim fail. There is a lack of nexus between the claim and the harm
      3. how or when Defendant breached the standard of care: this was skipped
  2. Frivolous, Vexacious and Abuse of Process
    1. 21.01(3)(b) plus 25.11 which I will not use. You have power to strike. This is the clearest of case that justifies dismissal. This is a broad discretionary remedy and no factors must be met. The court of appeal page 15 (the Line-Michener test) did some out some hallmarks: some of those hallmarks are present here: grounds and issued raised tend to be rolled into subsequent actions, repeated and supplemented
      1. This is the third action against the Defendant arising from the retainer (First two were abandoned. Take away allegations against husband and allegations from first claim, what is left? Quite a bit.) This current iteration is more wholesome; however, if you look at the hallmark it talks about repeating and supplementing. There is almost a harassment aspect and this is a hallmark of a vexatious proceeding. Viewing the proceeding as a whole: five claims against one defendant within one year and seven months has a hallmark of harassment paints and the current claim with an air of vexatiousness. With respect to abuse of process: it is discretionary. There is an overlap between vexatiousness and abuse of process. The multiplicity of proceeding and lack of purposefulness. There is no cause of action: there is a smattering of complaint but for no clear purpose due to the fragmented nature of the pleading . Therefore, the court should find that the pleading is an abuse of process.
  3. Leave to amend should not be granted:
    1. This is the third version of the claim
    2. She has had plenty of time to amend her claim
    3. She informed the court twice that she wanted to amend her claim but did not 
  4. (Judge interruptsPrior to your service of the Motion did she know that you were ??)
    1. Page 11, paragraph 40 Look at para 35, leave to amend should not be granted if the claim cannot be improved
Issue #4 || Alternative relief sought: Stay of Proceedings until the divorce is finalized

 

Argument #4 || Section 106: If you choose not to strike, a stay is appropriate because there are similar claims in the divorce file. Competing actions could result in different findings. We should wait for divorce to wind itself out. Outcome could illustrate that defendant’s conduct was appropriate. We should run the risk of different outcomes in the same system. This action should be stayed pending the outcome of the divorce. It is premature while family case is ongoing.

 

 

Summary of Approach || A lot of Ms. Sviergula’s time was spent tearing apart my e-mail to discredit me before getting to the specifics of the Rule 21 Motion and alternative relief sought of a Stay in Proceedings. The tone used throughout her arguments was designed to present me as a brainless idiot and that the defendant had been abundantly patient: the words were not slanderous; however, the tone was “offensive” and persuasive.

When she finally arrived at her Rule 21 Motion (following 32 minutes of highlighting to the judge how many mistakes I made in my e-mail), she used “subtle laughter” to compliment the judge, emphasize an area of law that she was attempting to exploit and mock my submissions.

The attack against my errors did not impact me one bit: I make lots of them. Plus, her Rule 21 Motion arguments were incredibly weak. I was able to refute most of her arguments and, if this is a legitimate judge, I am not sure how my Statement of Claim could be struck without the ability to amend. I do not think it should be stayed either. We shall see.

Ms. Sviergula’s style is markedly different from that of Wade Smith (who used an air of “begging/pleading” along with slander and material laden with false information) to dupe judges and Debora Scholey/Deborah Souder/Tara MacDougall who employ a 100% slander without any emotion whatsoever to accompany their defamatory Affidavits with fabricated evidence.

I get to watch Kiska’s new lawyer, Cheryl Hess, in action next week. My expectations are appropriately very low. They all mislead the court; the only difference is how.

Concluding Remarks || She asked if judge required clarification of the orders sought. Judge answered no but asked about possibility to strike with leave to amend after the divorce has been finalized which Ms. Sviergula agreed was within her Honour’s power.

 

 

 

Before we adjourned for a 15-minute break, I informed the judge that any improvement in my situation following the outcome of my divorce is due merely to my resilience, mental fortitude and the ability to learn law in criminal court, family court, CYFSA court, Small Claims court, Appellant court and now Civil court in my very first action that I did not have to drop due to severe technology hacking. 

My Approach My Arguments
I worked backwards so that I could refute that which was most freshly planted into the judge’s memory.

I should have followed my rebuttal with my own arguments; however, I was exhausted because I chose to work on my criminal file all night and simply forgot. I am not sure if the error will hurt me or was beneficial. The Factum was self-explanatory and by not presenting any fresh arguments,  Ms. Sviergula was not given any more opportunity to dupe the judge.

 

After my submissions, Ms. Sviergula, made a list of what she believed were “overlapping” damage claims:

Civil damages sought at:

  3-5 = 1, 2, 5 of my Amended Answer

  7 = 1, 2, 5 of my Amended Answer

  8 = 1, 2 of my Amended Answer

  9 = 1, 5 of my Amended Answer

This leaves only 1, 2, 6 and 10 in the Statement of Claim

I alerted judge that paragraphs 4 and 5 deal with pecuniary damages regarding recovering from emotional/psychological abuse and disclosed that, as the children had not heard my voice in over two years, that those damage may be used to assist other victims through my for-social-benefit company.

  1. Reasons to Stay
    1. re: Overlapping claims: I disagreed. There are some similar torts but committed at different times by different parties from which different harm flowed
    2. re: Outcome of divorce could show that advice was beneficial. Laughable.
      1. I was forced to sell my modest bungalow and move the kids for the third time in under two years in order to access the equity in the home to attempt to shield my children from ex’s financial abuse.
      2. Sean and Cate have not heard my voice in over two years
  2. Leave to amend Statement of Claim should not be granted
    1. re: Plaintiff had sufficient time already: I disagreed. It is a different type of amendment. I was going to add fresh facts regarding the harm that continues to flow from the defendant’s negligence not perfect a claim that does not properly present details
    2. re: an amendment would not improve Plaintiff’s chance of success: Of course it would; now, that I am more aware of the rules
  3. Frivolous/Vexatious/Abuse of Process
    1. re: Repeating and supplemental:
      1. I explained how the first claims issued dealt with a severely deficient Answer and that one had to be discontinued because of severe technology hacking which prevented me from continuing while surviving the divorce and the second one had to be discontinued because the firm changed its legal name without informing the court so it was impossible for me to continue.
      2. I detailed how when I attempted to serve my statements of claim properly, the defendant evaded service, called the police and/or defamed me.
      3. I detailed that its next door neighbour and ex’s lawyer, Bell Baker LLP, has actually issued a Notice of Trespass so that I cannot even serve any originating documents in person to highlight the degree of harassment by the legal community that I endure
    2. re: Hallmarks of vexatious/abuse of process: See comments above
    3. re: Two claims were previously dismissed as frivolous on their face: False, those were illegal dismissals as the defendant sent to Beaudoin evidence. (Judge asked if I appealed and I stated that at that time I was not aware of the appeal process plus I was arrested/incarcerated within two weeks of his decision so an appeal was impossible.)
    4. re: No cause of action: Perhaps, I was not clear enough. However, I have already been accused of offending “proportionality” with a “prolix” pleading in Family court (I referred the judge to Justice Summers’ decision  at paragraphs 28 and 29.)
    5. re: Test for intentional infliction emotional harm and mental suffering has been not met: I reminded the judge that I am also seeking damages for the negligent infliction emotional harm and mental suffering if the test for intentional is not met. Also, receiving a Happy Face emoji from the defendant when I stated that I had to end my claim because of the scandalous divorce proceedings supports my allegation that they are, at a minimum, unprofessional and possibly intentionally abusive (as also evidenced by their evasion of service, threat of police action and defamation).
    6. Rule 21 Motion:
      1. No cause of action and no chance of success: Really? Look at where I was in 2016 and where I am now
      2. Facts are not supported by material fact: proportionality
      3. Unclear how or when defendant breached standard of care: Really? How about:
        • Mediation resulting in shared parenting yet no sharing of expenses, no spousal support, no child support and the advice to deplete my own savings via a dividend which would severely impact future support calculations
        • No motion for occupational rent as ex squats in $1M+ matrimonial home 
        • No motion for interim support
        • Forcing mediation with a wicked, pathological lying ex
    7. Her statement is just a “collage” of “complaints”: I structured material facts as best I could
    8. No tie to damage: Lesson learned. I will be sure to itemize each specific harm and tie it to each specific tort in my future claims.
    9. Some complaints might survive: I included introductory paragraphs to demonstrate defendant’s behaviour. I also mentioned that I did initially merely approach them for a refund of fees; however, they refused.
  4. re: My complaints regarding the Notice of Motion and Motion Record
    1. I acknowledged my error regarding the coming into effect of the Ministry’s amendments and explained how I often receive legal documents laden with a variety of subtle mockery at my lack of legal prowess while referencing the strict Rules of Civil Procedure … while serving documents that do not comply with them (and referenced the Back Page of the Defendant’s Statement of Defense).
    2. I disagreed that “catch-alls” should be permitted in a Notice of Motion
    3. re: Rule 37.02 and how defendant interpreted it is different from mine
  5. re: Requirement of promptness is met: I disagreed and stated that instead of scheduling a case management conference in July 2019, they had the opportunity to bring a Rule 21 Motion then. I submitted that this was an opportunistic Rule 21 Motion brought on by my current state of desperation. It is this Motion that is vexatious and frivolous and not my Statement of Claim
  6. re: That only leaves costs: I did not spend much time on this as I did not think that it should have been scheduled in the first place.