COURT FILE NO.: DC-09-1200
DATE: 20091019
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NARINE LOOJUNE
Plaintiff/Appellant
- and -
JOETT BAILEY, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, AS REPRESENTED BY THE MINISTER OF CITIZENSHIP AND IMMIGRATION, AND BY THE MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY, RESPECTFULLY
Defendants/Respondents
Counsel:
Asha James, for the Appellant
Stephen H. Gold, for the Respondents
HEARD: September 25, 2009
REASONS FOR ORDER
Lemon J.
Background
[1] The plaintiff appeals the order of the deputy judge made January 9, 2009 at the Brampton Small Claims Court. The motions court judge struck the plaintiff’s claim on a motion under rule 12.02(1) (a) of the Small Claims Court Rules on the ground that the claim disclosed no reasonable cause of action. He then dismissed the action with costs in the amount of $1,200.00.
[2] Rule 12.02 of the Small Claims Court Rules reads:
The court may, on motion, strike out or amend all or part of any document that,
a) discloses no reasonable cause of action or defence;
b) may delay or make it difficult to have a fair trial; or
c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.
[3] Mr. Loojune alleges in his claim that he was badly mistreated by customs officials as he passed through Toronto airport. He claims that he was assaulted and a number of his Charter rights were breached.
[4] In his reasons, the deputy judge stated:
The Plaintiff’s position is that his arm was twisted; that the officer threatened to break it and that he was struck across the back of the neck. Counsel takes the position this matter should go to trial at which time the facts of the assault will come out. Unfortunately for the Plaintiff this is one of those “best foot forward” situations. I have no doubt the Plaintiff’s arm was grabbed but there is no medical evidence of any injuries. Based on what is before me I see nothing that amounts to brutality or unreasonable force in the circumstances of a man refusing to stay where he was legally required to stay. Certainly I have not been shown sufficient evidence to warrant putting the officers through a trial. Not even a bruise. This is simply a man refusing to comply with any and all reasonable requests. Everyone from the immigration officer to the security guards acted reasonably in these circumstances. There is no evidence of discrimination; no evidence of unreasonable force and no evidence of any breach of Charter rights.
[5] The deputy judge endorsed the record “order to go as asked in the notice of motion. Costs to the Defendants”
[6] The appellant seeks an order that only the causes of action for breaches of section 6(1), 8 and 12 of the Charter of Rights and Freedoms and the claim for intentional infliction for emotional distress should be struck.
[7] For the reasons that follow, I would allow the appeal to the extent asked and allow the matter to go forward to trial.
The Test
[8] Both parties submitted that the deputy judge granted summary judgment. From the wording of both his reasons and his endorsement, it is clear to me that he struck the claim rather than granted summary judgment. The error was that he applied the test for a summary judgement motion rather than a motion to strike.
[9] I accept the principles of Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959. In a motion such as this, the facts of the pleading are to be taken as proven and true and the claim ought not be struck unless:
(a) the allegations are patently ridiculous or incapable of proof;
(b) it is plain and obvious that the pleading is unfounded or contains no reasonable cause of action ;
(c) there is not a “germ” or “scintilla” of a cause of action;
(d) the allegation does not give rise to recognized cause of action or the claim fails to plead the necessary elements for another to recognize the cause.
[10] Further, the pleading is to be read generously; the novelty of a claim does not prevent the plaintiff proceeding with its case; and the motions stage is not the time to determine the strength of the case or the likelihood of success.
[11] The motions judge clearly made findings of credibility on this motion to strike. Matters of credibility ought to be left to the trial judge who can hear the witnesses and make that determination.
[12] The appellant will certainly have a difficult case to try, but that is not the test here. It is not “plain and obvious” to me that the plaintiff’s claim raises no reasonable cause of action. I accept the proposition in Brown v. Regional Municipality of Durham Police Service, 1998 7198 (ON CA), 43 O.R. (3d) 223 (C.A.) that if the officers had an improper purpose for their actions, that may take their conduct beyond the protection of any authorizing legislation. That can only be determined upon the assessment of evidence led at trial. The motions judge should have allowed the plaintiff to move on to trial based on the pleading and should not have struck the claim based on the affidavit before him.
Evidence on Motion
[13] In their motion, the defendants relied upon an affidavit that was filed with the notice of motion. That affidavit attached the claim, the defence and statements of officers involved in the events. In this appeal, counsel raised the issue of whether or not the affidavit ought to have been allowed with the motion. Here, appellant’s counsel submits that no affidavit should have been allowed. In response, the respondent’s counsel argues that the Small Claims Court Rules require that an affidavit be filed with a notice of motion. It appears to me that this issue can be better resolved on other facts.
[14] I can well imagine that an affidavit would be required pursuant to Rule 12.02(1) to show that a document may delay or make it difficult to have a fair trial; is inflammatory; a waste of time, or an abuse of the court’s process. The way that a particular document might affect a particular trial might only be shown by affidavit evidence.
[15] However, in this case, the moving party wished the court to strike out a “document that discloses no reasonable cause of action”. It seems to me that the affect is much the same as a Rule 21 motion under the Rules of Civil Procedure. Under that rule, an affidavit is not allowed.
[16] Be that as it may, I do not need to determine that issue. Regardless of whether an affidavit could or should have been filed, the motions judge fully accepted the statements attached to the respondent’s affidavit, and he rejected the evidence of the appellant. He then required the appellant to respond with his “best foot forward”. That, in my view, is an error of law which allows this court to intervene.
Order
[17] Accordingly, the appeal is allowed and the order is set aside. In its place, there will be an order striking only the causes of action for breaches of sections 6(1), 8 and 12 of the Charter of Rights and Freedoms and the claim for intentional infliction of emotional distress. Further, the appellant is granted leave to amend the claim to particularize the facts for the causes of action for assault and the violations of sections 9 and 15(1) of the Charter.
[18] If the parties cannot agree on costs, written submissions may be made to me. The appellant, having been successful, shall provide his written submissions within the next thirty days and the respondents shall respond within thirty days thereafter. Both submissions shall be no more than 3 pages in length not including any offers to settle or bills of costs.
Lemon J.
Released: October 19, 2009
COURT FILE NO.: DC-09-1200
DATE: 20091019
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NARINE LOOJUNE
Plaintiff/Appellant
- and –
JOETT BAILEY, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, AS REPRESENTED BY THE MINISTER OF CITIZENSHIP AND IMMIGRATION, AND BY THE MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY, RESPECTFULLY
Defendants/Respondents
REASONS FOR JUDGMENT
Lemon J.
Released: October 19, 2009