COURT FILE NO.: CV-17-4031-00 DATE: 20190322

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PRZEMYSLAW BOBEL Self-represented Plaintiff

• and -

EDYTA MARIA HUMECKA and RAYMOND ALEXANDER PATTEN Alexander Boissonneau-Lehner, for the Defendants Defendants

HEARD: January 30, 2019

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] The defendants have brought a motion seeking the following relief:

• An order striking the Statement of Claim in its entirety, without leave to amend, on the basis that the action is scandalous, frivolous, vexatious, irrelevant and/or an abuse of process;
• In the alternative, an order striking certain paragraphs in the Statement of Claim, without leave to amend;
• An order removing the plaintiff’s affidavit of documents from the court file; and
• Their costs.

[2] The plaintiff also brought a motion for third-party production. Pursuant to my endorsement on January 30, 2019, that matter has been adjourned to a long motion on July 10, 2019.

Background

[3] The plaintiff Przemyslaw Bobel and the defendant Edyta Maria Humecka were involved in a romantic relationship. They resided together in residence that was jointly owned by Humecka (99%) and Bobel (1%), located at 1306-1 Elm Drive, Mississauga, Ontario (the “Residence”). On May 2, 2015, Humecka terminated the relationship.

[4] On or about August 28, 2015, the parties attempted to reconcile and resumed cohabitation for approximately one month. On September 26, 2015, Humecka again terminated the relationship and asked Bobel to leave the residence and return his keys. Humecka alleged that Bobel would not leave and remained in the apartment. She alleged that he was verbally and physically abusive to her, and she managed to escape with her dog. She left her keys and phone behind.

[5] The defendant Raymond Alexander Patten is Humecka’s friend. Following this incident, she asked Patten to assist her in keeping Bobel out of her residence and to accompany her to the police, where she intended to report the incident, on September 26, 2015.

[6] On or about September 29, 2015, Humecka filed a report with the Peel Regional Police and advised the police that Bobel still had her keys. The police subsequently charged Bobel with forcible confinement. He was released on the condition that he not communicate with Humecka.

[7] The charges were eventually not pursued by the police. The jointly-owned residence was sold in 2016, and Bobel received 1% of the net proceeds.

[8] On or about September 18, 2017, Bobel commenced this action, seeking a variety of damages, which include general damages of $125,000, special damages, punitive damages of $100,000, “aggregate” damages of $25,000, damages pursuant to s. 24(1) of the Charter of Rights and Freedoms, damages for lost opportunity and “damages related to MBA degree in the sum to be disclosed at trial.”

[9] In paragraph 6 of his Statement of Claim, Bobel has claimed damages as a result of being a victim of malicious prosecution, public mischief, negligence, negligent investigation, conspiracy and false imprisonment, all as a result of the defendants’ conduct. In paragraph 7 of his Statement of Claim, Bobel also alleges that Humecka committed the torts of nervous shock and libel. In paragraph 44, he also claims deception. In paragraph 57, Bobel claims the loss of care, guidance and compassion pursuant to the Family Law Act, R.S.O. 1990, c. F.3. In paragraph 28, Bobel claims that the defendants are liable for the violation of his rights under ss. 7, 9 and 12 of the Charter.

[10] The defendants allege that the Statement of Claim is replete with errors, contains improper and irrelevant allegations and discloses no cause of action against the defendants. In the alternative, they allege that almost half of the paragraphs in the Statement of Claim and more than half of Bobel’s Reply and Defence to Counterclaim should be struck as disclosing no cause of action, or for being either scandalous, frivolous, vexatious or an abuse of process.

Issues

[11] The following issues must be decided in this motion:

• Should the Statement of Claim or Reply to Defence and Counterclaim be struck?
• Should any of the paragraphs in the Statement of Claim and Reply to Defence and Counterclaim be struck?
• If all or part of the Statement of Defence and Reply to Defence and Counterclaim are struck, should this court grant leave to the plaintiff to amend that pleading?
• Should the plaintiff’s affidavit of documents be removed from the court file?

Law

A. Striking the Statement of Claim Pursuant to r. 21.01(1)(b)

[12] The court may order that a pleading be struck if it discloses no reasonable cause of action: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b). No evidence is admissible on such a motion: r. 21.01(2)(b).

[13] When determining whether a pleading should be struck, the court must assume that the facts as stated in the statement of claim can be proven. Then, based on this assumption, it must be determined if it “plain and obvious” that the plaintiff's statement of claim discloses no reasonable cause of action. If there is a chance that the plaintiff might succeed, then the plaintiff should be permitted to proceed with their claim. Neither the length and complexity of the issues, the novelty of the cause of action nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect should it be struck out: Hunt v Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980.

[14] The principles to be extracted from the case law under this rule have been succinctly summarized by Pepall J.A. in the case of McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39:

• In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping dimension underlies rule 21.
• If the cause of action pleaded has been recognized, all of its essential elements must be pleaded.
• If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed.
• The claim should not be struck merely because it is novel.
• Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion.
• The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading.
• No evidence is admissible on such a motion.
• The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
• A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence. [Citations omitted.]

[15] The plaintiff will have failed to properly establish a cause of action if (a) the allegations do not give rise to a recognized cause of action, or (b) the allegations in the claim fail to plead the necessary legal elements of a recognized cause of action: Fragomeni v. Greater Sudbury Police Service, 2015 ONSC 3984, at para. 31.

B. Striking All or Part of the Statement of Claim Pursuant to rr. 21.01(3)(d) and 25.11

[16] A defendant is entitled to seek an order that an action be dismissed as frivolous or vexatious or otherwise as an abuse of process: r. 21.01(3)(d). Evidence is admissible in support of this motion: Baradaran v. Alexanian, 2016 ONCA 533, 3 C.P.C. (8th) 131, at paras. 15-16.

[17] A court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is scandalous, frivolous or vexatious or is an abuse of process: r. 25.11(b) and (c). Accordingly, pursuant to r. 25.11, the court is permitted to strike specific paragraphs of a pleading and permit the remaining paragraphs to proceed. The parties can rely on evidence when seeking this relief: Baradaran, at paras. 15-16.

[18] The courts have tackled the definition of “scandalous”, “vexatious”, “frivolous” and what constitutes an “abuse of process” on many occasions. The principles can be summarized as follows:

• A fact that is relevant to a cause of action pleaded can be neither scandalous, frivolous nor vexatious: Brodie v. Thomson Kernaghan & Co. (2002), 27 B.L.R. (3d) 246 (S.C.), at para. 28.
• If a fact has no effect on the outcome of the proceedings, whether true or not, and is inserted solely for atmosphere, it is scandalous, frivolous and vexatious: Taylor v. Canada Cartage Systems Diversified GP Inc., 2018 ONSC 617, at paras. 26, 28, citing Canadian National Railway v. Brant (2009), 69 O.R. (3d) 734 (S.C.), at para. 28; and Brodie, at para. 26.
• If historical facts are pleaded and they have no relevance to the proceedings, they will be struck: Canadian National Railway, at para. 28.
• A scandalous pleading is one that is irrelevant, argumentative and inserted for colour; it is a pleading that contains bare allegations with no facts to support them or contains unfounded and inflammatory attacks on the integrity of a party: George v Harris, 2000 CarswellOnt 1714 (S.C.), at para. 20.
• A frivolous pleading is one that lacks a legal basis or legal merit, which is not serious and not reasonably purposeful: John v. Samuel, 2018 ONSC 5651, at para. 24. It includes an action that is so clearly and palpably bad as to require no argument to convince the courts and would be pronounced as an indication of bad faith on the basis of mere inspection: Eastside Apartments Limited v. Aird Berlis, 2015 ONSC 1379, at para. 44, citing 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 37 O.R. (3d) 70, at para. 18; and Vatamanu v. Baird, 2009 CarswellOnt 8045 (S.C.), at para. 36, citing Elguindy v. Koren, 2008 CarswellOnt 1081 (S.C.), at paras. 45-48.
• A vexatious pleading is one that is instituted without reasonable grounds: Vatamanu, at para. 36, citing Elguindy, at para. 46. A vexatious suit has been further defined as one instituted maliciously and without good cause: Samuel, at para. 24.
• An abuse of process requires the court to control its process and prevent the abuse of procedures that would place the administration of justice into disrepute: Samuel, at para. 24.
• An abuse of process may be established where the proceedings (a) are oppressive or vexatious and (b) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The doctrine evokes the public interest in a fair and just trial process and the proper administration of justice: Eastside Apartments Limited, at para. 46, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35.

C. Granting a Party Leave to Amend

[19] While the court retains the discretion not to allow an amendment, the denial of leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: Mitchell v. Lewis, 2016 ONCA 903, 134 O.R. (3d) 524, at para. 21, citing South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6, and Conway v. Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 16.

Analysis

[20] I will analyze each paragraph of the Statement of Claim and Reply to Defence and Counterclaim and determine if any should be struck in accordance with the principles set forth above. Then, if a paragraph is struck, I shall consider whether leave to amend should be granted. Also, as the Statement of Claim is reviewed, the essential components of each of the causes of action will be outlined, if necessary.

A. Malicious Prosecution

[21] In paragraphs 38 and 45 of the Statement of Claim, Bobel claims that the defendants are liable for the police’s prosecution of Bobel. In particular, he claims that the defendants acted deliberately and with malice. The facts to support this claim are spread throughout the Statement of Claim.

[22] In order to successfully claim malicious prosecution, the plaintiff must prove that the prosecution was (a) initiated by the defendant, (b) terminated in favour of the plaintiff, (c) commenced or continued without reasonable and probable cause and (d) motivated by malice or for a primary reason other than carrying the law into effect: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 43, citing Kvello v. Miazga, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 53-56.

[23] Rule 25.06(8) states that if fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleadings must contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

[24] At paragraphs 38 and 45, Bobel pleads the four criteria of malicious prosecution, but a careful review of the pleading is necessary to ascertain if the necessary facts to support those criteria are alleged.

[25] A portion of paragraph 5 of the Statement of Claim contains the allegation that the prosecution was initiated by Patten, who advised Humecka to make false accusations about Bobel. In addition, in part of paragraph 7, Bobel alleges that Humecka filed a false police report and acted collectively with Patten in so doing. Accordingly, I am satisfied that the first criterion has been met.

[26] In paragraph 31, Bobel pleads that the charges were dismissed. This supports the second criterion.

[27] In paragraphs 10 through 25, Bobel attempts to plead that the conduct of the defendants shows that the prosecution was commenced or continued without reasonable or probable cause. These allegations go to the third criterion.

[28] In paragraphs 38 and 45, it is alleged that this conduct was done to cause injury to Bobel. In those paragraphs, it is also alleged that this was done to keep Bobel from the Residence. While the allegation that it was done “to cause injury” is insufficient, the allegation that it was done to keep Bobel from the Residence is sufficient to satisfy the fourth criterion.

[29] While the claim for malicious prosecution should remain, there are extraneous allegations made with respect to this claim that should not stand. In particular, in the Statement of Claim:

• Paragraph 5: the portion of the sentence reading “…given his previous incidents with the police and given his previous experiences in court.” should be struck. It is inserted solely to humiliate Patten and cast him in a bad light. Patten’s knowledge of the outcome of such a report is important for the purposes of malicious intent, but must be pled in a way that does not seek to humiliate or denigrate Patten’s character. Leave to amend that paragraph is permitted.
• Paragraph 7: this paragraphs supports the allegations, except for the words, “Ms. Humecka while in a relationship with Mr. Bobel had an affair with Mr. Patten while Ms. Patten was married to Ms. Casey Ferguson.” These words are irrelevant to the pleadings and, if proven, would have no effect on the outcome, including damages. There is no way that this fact could in any way support his claim, so leave to amend shall not be granted.
• Paragraph 8: the words “Mr. Patten is a divorced man with 2 kids. He met Ms. Humecka in 2011 while on vacation in China. Mr. Patten while married to Ms. Casey Ferguson had an affair with Ms. Humecka while Ms. Humecka was in a relationship with Mr. Bobel” are irrelevant and could in no way assist Bobel with any of the causes of action pleaded. They shall be struck with no leave granted to amend.
• Paragraph 9: the sentence “as stated during Mr. Bobel’s bail hearing on September 30, 2017” is a statement of evidence and prohibited by r. 25.06(1). The exact charge laid against Bobel may be pleaded; the evidence he intends to rely on to support his position may not. This shall be struck with leave to amend.
• Paragraph 11: the words “and could have placed a 911 call if she felt she was in any danger at any time during these events” are argumentative. The fact of her having a cell phone and whether she placed a call or not are relevant facts, but the argument in support of Bobel’s claim is not properly part of a pleading. This shall be struck with leave to amend.
• Paragraph 15: the words “and the use of narcotics, specifically cocaine, which Mr. Patten and Ms. Humecka indulged in on a regular basis” are irrelevant to the causes of action and are inserted solely to humiliate the defendants and cast them in a bad light. There is no situation in which these allegations, even if proven true, would have an impact on Bobel’s claim. Accordingly, there shall be no leave to amend.

B. False Imprisonment and Public Mischief

[30] Bobel claimed damages for false imprisonment and public mischief at paragraphs 6, 40, 47 and 53.

[31] The plaintiff must prove three elements to establish the tort of false imprisonment. He or she (a) must have been totally deprived of liberty; (b) this deprivation must have been against his or her will; and (c) it must be caused by the defendant. The onus then shifts to the defendant to justify the detention based on legal authority under common law or statute: Kovacs v. Ontario Jockey Club (1995), 126 D.L.R. (4th) 576 (Gen. Div.), at para. 45, citing Kendall v. Gambles Canada Ltd. (1981), 11 Sask. R. 361 (Q.B.), at p. 728.

[32] There is also case law in support of the premise that if there is judicial intervention or the arresting officer has some discretion, the defendant did not directly cause the arrest in providing information to the police officer, and therefore is not liable for false imprisonment: Diaz v. Tossa 2017 ONSC 54 at para. 21.

[33] It is not the role of the court at this juncture to determine if this cause of action will succeed, but simply to determine whether this cause of action is pleaded adequately. For the reasons set forth when reviewing the claim for malicious prosecution, this cause of action should stand. The facts that support the essential elements of the cause of action have been set out.

[34] With respect to the claim of public mischief, there is no such recognized tort. This is a criminal charge which could be initiated by a police force. If the police find that Humecka and Patten knowingly made a false report that resulted in a police investigation and arrest, it is within the purview of the police to lay these charges. No charges have been laid by the police in these circumstances.

[35] It appears that malicious prosecution already covers the claims that Bobel is trying to make, and is more broad. On the chance though that this is a novel claim, it is not appropriate to strike, and the issue should be left to the trial judge.

C. Negligence and Negligent Investigation

[36] In paragraph 6 of the Statement of Claim, Bobel states that he was a victim of negligence and negligent investigation. In paragraphs 39, 46 and 62 of the Statement of Claim Bobel pleads that the defendants owed him a duty of care to take reasonable care for his safety, relying on the Negligence Act, R.S.O. 1990, c. N.1. He further claims that they breached that duty and that he suffered injuries as a result. In paragraph 15 of the Reply to Defence and Counterclaim, Bobel claims the defendants owe a duty of care under the Charter.

[37] While Bobel has pleaded the essential elements of negligence, he has not pleaded any facts that support these elements. For example, there are no facts alleged that would support the position that the defendants owed a duty of care to Bobel. If there is no duty of care, there is no negligence. This is fatal to his claim. There are no facts alleged that would support his position that the defendants fell below the standard of care of whatever duty they are found to have to Bobel. These are bare allegations with no supporting facts, and are therefore scandalous and shall be struck.

[38] With respect to negligent investigation, neither Bobel nor the defendants have provided me for any legal basis for this cause of action. According to the facts alleged by Bobel, the police arrested Bobel based on a report by Humecka and Patten. There is no allegation that the defendants failed to investigate the matter. There is no allegation against the police that they failed to investigate properly. In fact, in paragraph 15 of the Reply and Defence to Counterclaim, Bobel pleads that the police are not permitted to apply any discretion and must arrest and lay charges.

[39] There are no facts alleged to support this cause of action as against the defendants. It is a bare allegation with no facts to support it, is scandalous and shall be struck, with leave to amend.

D. Deceit

[40] In paragraph 44 of the Statement of Claim, Bobel claims Humecka deceived him when she agreed to resume cohabitation before their final separation. He further claims this led to “damaging Mr. Bobel’s sense of reality and financial loss related to Ms. Humecka’s 31st birthday. The plaintiff further states that the defendant Ms. Humecka knew or ought to have known that her conduct would cause damage to Mr. Bobel’s psychological well-being and cause him financial strain.”

[41] In essence, Bobel is suing Humecka for ending their relationship. I am aware of no legal principle that requires a person to be truthful to their significant other or to not date more than one person at a time. There is no legal principle that prohibits a person from breaking up with their significant other if their significant other has recently spent money on their birthday or if their significant other would be upset by the breakup.

[42] This allegation is scandalous, as it is a bare allegation. It is also frivolous as it has no basis in law. Finally, it is vexatious as it was alleged maliciously and without good cause. Accordingly, paragraph 44 of the Statement of Claim is struck with no leave to amend.

E. Libel

[43] In paragraph 43 of the Statement of Claim and paragraphs 12 and 17 of the Reply to Defence and Counterclaim, Bobel pleads that Humecka made false statements to her friends and family members in order to damage Bobel’s reputation.

[44] Bobel pleads no particulars of these allegedly false statements. He does not specify exactly what was said, nor does he particularize to whom the statements were made. He also fails to particularize how such statements in any way caused Bobel any harm, financial or otherwise.

[45] The pleading requirements for claims of defamation was recently reviewed by the Court of Appeal. In the case of The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, 136 O.R. (3d) 23, Blair J.A. stated that, traditionally, pleadings in defamation actions have been held to a higher standard than is the case with other types of actions, in terms of the precision with which the material facts must be pleaded. Like any pleading, a statement of claim in a defamation action must set out a concise statement of the material facts on which the plaintiff relies, as set out in r. 25.06(1). The material facts must be sufficient, if proved, to establish a cause of action. In libel actions, the material facts to be pleaded are: (a) particulars of the allegedly defamatory words; (b) publication of the words by the defendant; (c) to whom the words were published; and (d) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo: at paras. 22-23.

[46] Blair J.A. then continued by stating that while the need for as much precision as possible and for enhanced judicial scrutiny continues, more recent authorities have applied greater flexibility in permitting defamation pleadings to stand in certain circumstances where the plaintiff is unable to provide full particulars of all allegations. These circumstances include situations where the plaintiff has revealed all the particulars within its knowledge, where the particulars are within the defendant’s knowledge and – importantly – where the plaintiff has otherwise established a prima facie case of defamation (including publication) in the pleading: at para. 25.

[47] In the case at hand, Bobel has failed to provide any particulars of the alleged defamation, except to state at paragraph 12 of the Reply to Defence and Counterclaim that Humecka made “a defamatory statement alleging the plaintiff spen[t] the night in jail.” Also, Bobel now claims in paragraph 17 of the same pleading that the Statement of Defence itself contains intentional defamatory statements.

[48] Despite the more relaxed approach to defamation pleadings, Bobel’s pleadings lack any specificity and make only bare allegations that libel occurred. The only example cited was that Humecka told someone that he spent the night in jail. No indication was given of when the statement was made or to whom.

[49] Accordingly, the paragraphs alleging libel are struck as scandalous and frivolous, with leave to amend.

F. Nervous Shock

[50] At paragraphs 41, 42, 48 and 56 of the Statement of Claim, Bobel alleges that he and his family suffered from nervous shock due to his imprisonment.

[51] In paragraph 41, Bobel alleges that not only did he suffer from nervous shock: so did various members of his family. This is alleged despite the fact that these various members of his family are not parties to this action and have made no such claim.

[52] In paragraph 48, he claims Patten is responsible for his nervous shock because of alleged negligence and false imprisonment perpetrated by Humecka. No other particulars are given.

[53] The required elements of the intentional infliction of nervous shock are (a) that an act or statement was made by the defendant that was extreme, flagrant or outrageous; (b) that the statement or act is calculated to produce harm; and (c) that the act or statement results in a visible and provable illness: Fragomeni, at para. 94, Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.), at para. 48.

[54] On a generous reading of the Statement of Claim, the elements have been sufficiently pleaded with respect to the claim against Humecka. The same cannot be said with respect to the claim made out against Patten or with respect to Bobel’s family members.

[55] Accordingly, any claim for nervous shock by Patten is struck with leave to amend. Given that Bobel’s family members are not parties, any allegations with respect to their claim for nervous shock is struck, with no leave to amend. Any action by Bobel’s family members at this time would be statute barred.

G. Conspiracy

[56] In paragraphs 49-52 of the Statement of Claim, Bobel claims against Humecka and Patten jointly for conspiracy to maintain baseless charges against him.

[57] A generous reading of the Statement of Claim does show that the basic requirements of conspiracy have been pleaded. The facts on which he maintains his claim for conspiracy are set out throughout the Statement of Claim, namely that Humecka and Patten together made a false report to the police, designed to injure Bobel and keep him out of the Residence.

[58] As stated before, the purpose of this motion is not to decide if a claim for conspiracy will succeed, but to determine if the plaintiff has sufficiently pleaded the allegation so that it may proceed. The plaintiff has done so.

H. Family Law Act Claim

[59] In paragraph 56 of the Statement of Claim, Bobel alleges that immediate family members have suffered emotional, psychological or mental trauma. No specific family members are named and no family members are parties to this action.

[60] In paragraph 57, Bobel claims damages on behalf of his family members for loss of care, guidance and compassion pursuant to the Family Law Act. No family members are mentioned, and again, no family members are parties to this action.

[61] Under s. 61 of the Family Law Act, if a person is injured by the fault of neglect of another in circumstances where the person is entitled to recover damages, that person’s spouse, children, grandchildren, parents, grandparents, brothers and sisters of that person are entitled to recover their pecuniary loss resulting from the injury. In particular, in s. 61(2)(e), these family members are entitled to compensation for loss of guidance, care and companionship (not “compassion”, as pleaded by Bobel).

[62] Bobel has no cause of action for loss of care, guidance or compassion, or even for loss of companionship. Only his family members can make this claim, and they have not. They are not parties to this action. This claim lacks any legal merit or basis. It can support no cause of action and is frivolous. Accordingly, paragraphs 56 and 57 of the Statement of Claim shall be struck in its entirety pursuant to r. 21.01(b).

[63] In these circumstances, Bobel is not granted leave to amend this claim. There is nothing he can plead that would allow him to claim damages for himself under the Family Law Act or for individuals who are not parties to this action. The events that form the basis of this claim occurred on September 28 to 29, 2015. He is long past the limitation period in which he can amend the claim to add parties. As stated by the Court of Appeal in Mitchell, this is one of those clearest of cases where it is plain and obvious that no tenable cause of action is possible on the facts as alleged.

E. Violation of Rights under Charter

[64] In paragraph 1(e) of the Statement of Claim, Bobel claims damages pursuant to s. 24(1) of the Charter.

[65] In paragraphs 58 through 60 of the Statement of Claim, Bobel alleges that the defendants are responsible for the violation of his Charter rights, which include the right of liberty and security of person. He claims that he was improperly detained as a result of the actions of the defendants, and he was subjected to cruel and unusual treatment.

[66] At paragraph 64, Bobel pleads and relies on the Charter.

[67] At paragraph 15 of Reply and Defence to Counterclaim, Bobel alleges that the defendants had a duty of care to him according to the Charter. In support of this claim, he further alleges that the defendants filed a false police statement, and that the police are not permitted to apply any discretion with regards to these allegations.

[68] All of these paragraphs shall be struck, with no leave to amend. These claims are without any legal basis or merit. It is plain and obvious they cannot succeed. They also clearly fall within the category of claims that are frivolous.

[69] Section 32 of the Charter clearly states:

32. (1) This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

[70] The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights within. The Charter regulates the relations between the government and private persons, but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the application of the Charter: Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, [1986] 2 SCR 573, at paras. 40-41. While this concept has been expanded to include institutions that are publicly funded, it has not been expanded to private individuals.

[71] Again, this is one of those clearest of cases where it is plain and obvious that no tenable cause of action regarding the breach of Bobel’s Charter rights is possible on the facts as alleged. These paragraphs are struck pursuant to r. 21.01(1)(b), with no leave to amend.

F. Miscellaneous Pleadings

[72] Many allegations in the Statement of Claim and in the Reply and Defence to Counterclaim are irrelevant to the causes of action pleaded and are inserted for no other reason than to embarrass the defendants and to cast them in a bad light.

[73] In addition to those allegations already referred to herein, the following allegations also fall into that category:

• Paragraph 12 of the Reply and Defence to Counterclaim, “aside from dropping off money and visiting Ms. Humecka’s father, between May 2, 2015 through September 2015 after asked to do so by her and her family, while he (Humecka’s father) was at the Toronto South Detention Centre awaiting sentencing”, shall be struck, without leave to amend.
• Paragraph 3 of the Statement of Claim shall be struck, with no leave to amend, as the truth of this allegation has no bearing on the outcome of this action.
• Paragraph 30 of the Statement of Claim pleads evidence and not facts, and shall therefore be struck, with leave to amend.
• Paragraphs 36 and 37 of the Statement of Claim shall be struck, with no leave to amend, as these allegations have no bearing on the outcome of this matter and are inserted solely to embarrass the defendants and cast them in a negative light.
• Paragraphs 2 and 3 of the Reply to Defence and Counterclaim shall be struck in their entirety, with no leave to amend, as these allegations are inserted solely to embarrass the defendants and have no bearing on the outcome of the action.
• All of subparagraph 6(vi) and the following line in subparagraph 6(viii) of the Reply to Defence and Counterclaim, “Either of them could have left the condo or called the police had they felt unsafe”, shall be struck, with leave to amend, as they are argumentative.
• The following line in paragraph 7 of the Reply to Defence and Counterclaim, “Had Ms. Humecka actually feared Ms. Bobel as alleged numerous times through the Statement of Defence, she would not have put herself in this situation”, shall be struck as argumentative, with leave to amend.
• The following line from paragraph 9 of the Reply to Defence and Counterclaim, “however he would like to first point out that this paragraph is very poorly written by the author and contains a number of fatal errors. The plaintiff will attempt to provide a response to the best of his ability making a number of inference and assumptions which might not be accurate” is struck as irrelevant, argumentative and having no bearing on the outcome of the action, with no leave to amend.
• Subparagraph 9(iv) and paragraphs 10 and 11 of the Reply to Defence and Counterclaim are struck, as they plead evidence, with leave to amend.
• Paragraph 14 of the Reply to Defence and Counterclaim shall be struck, with no leave to amend, as it discusses settlement efforts.
• Paragraph 16 of the Reply to Defence and Counterclaim shall be struck, with leave to amend, as it is evidence.
• The entirety of paragraph 17 of the Reply and Defence to Counterclaim, except for “the defendants are not entitled to recoup any costs and should be further penalized for frivolous litigation”, shall be struck, with no leave to amend, as it discusses settlement, pleads evidence, is inflammatory and is inserted only for colour.

G. Affidavit of Documents

[74] Rule 30.03(5) states that an affidavit of documents shall not be filed with the court unless it is relevant to an issue on a pending motion or at trial.

[75] The issue before me is one of pleadings. The pleadings have to stand on their own, in compliance with the rules, no matter what documentary evidence the plaintiff may have. The affidavit of documents is not relevant to proper pleadings.

[76] Accordingly, the affidavit of documents shall be removed.

Conclusion

[77] As a result of the aforementioned reasons, I made the following orders:

• With respect to the Statement of Claim:
  1. Paragraphs 1(e), 3, 36, 37, 44, 56, 57, 58, 59, 60 and 64 shall be struck from the Statement of Claim, with no leave to amend.
  2. Paragraphs 30, 39, 43, 46, 48 and 62 of the statement of Claim are struck, with leave to amend.
  3. The following words or sentences shall be struck, with no leave to amend: 1 From paragraph 7: “Ms. Humecka while in a relationship with Mr. Bobel had an affair with Mr. Patten while Ms. Patten was married to Ms. Casey Ferguson.” 2 From paragraph 8: “Mr. Patten is a divorced man with 2 kids. He met Ms. Humecka in 2011 while on vacation in China. Mr. Patten while married to Ms. Casey Ferguson had an affair with Ms. Humecka while Ms. Humecka was in a relationship with Mr. Bobel”. 3 From paragraph 15: “and the use of narcotics, specifically cocaine, with Mr. Patten and Ms. Humecka indulged in on a regular basis”. 4 From paragraph 41: “and the family members involved”(from line 1 and 2). “and his family members” (from line 3). “While waiting for Mr. Bobel’s bail hearing his brother and father suffered from several emotional distress as they are not accustom to these situation and were not given adequate information from court officials. Further, upon Mr. Bobel’s return home the remaining 4 family members suffered emotional distress in seeking the condition Mr. Bobel was in as a result of the arrest resulting from Ms. Humecka’s false testimony.” “and the members of his family” (from the last line).
  4. The following words or phrases shall be struck, with leave to amend: 1 From paragraph 5: “given his previous incidents with the police and given his previous experiences in court.” 2 From paragraph 6: “negligent investigation”. 3 From paragraph 9: “as stated during Mr. Bobel’s bail hearing on September 30, 2017.” 4 From paragraph 11: “and could have placed a 911 call if she felt she was in any danger at any time during these events.”
• With respect to the Reply to Defence and Counterclaim:
  1. Paragraphs 2, 3, 14 and 15 shall be struck, with no leave to amend.
  2. Subparagraphs 6(vi) and 9(iv), and paragraphs 10, 11 and16 shall be struck, with leave to amend.
  3. The following sentences of phrases shall be struck, with no leave to amend: 1 From paragraph 9: “however he would like to first point out that this paragraph is very poorly written by the author and contains a number of fatal errors. The plaintiff will attempt to provide a response to the best of his ability making a number of inference and assumptions which might not be accurate”. 2 From paragraph 12: “aside from dropping off money and visiting Ms. Humecka’s father, between May 2, 2015 through September 2015 after asked to do so by her and her family, while he (Humecka’s father) was at the Toronto South Detention Centre awaiting sentencing.” 3 The entirety of paragraph 17, except for “the defendants are not entitled to recoup any costs and should be further penalized for frivolous litigation”.
• The following sentences of phrases shall be struck, with leave to amend: 1 From subparagraph 6(viii): “Either of them could have left the condo or called the police had they felt unsafe.” 2 From paragraph 7: “Had Ms. Humecka actually feared Ms. Bobel as alleged numerous times through the Statement of Defence, she would not have put herself in this situation.” 3 From paragraph 12: “and contrary to the defamatory statement alleging the plaintiff spend the night in jail, the plaintiff has never actually been to jail”.

[78] The plaintiff shall amend his Statement of Claim in accordance with this Order, and shall serve and file a Fresh as Amended Statement of Claim within 30 days.

[79] The plaintiff’s affidavit of documents shall be forthwith removed from the court file.

[80] The parties are encouraged to settle the issue of costs themselves. If they are unable to do so, the defendant shall serve and file their costs submissions by 4:30 p.m. on April 12, 2019, limited to two pages, single sided, double spaced, exclusive of a costs outline and case law. The plaintiff shall serve and file his responding costs submissions, with the same size restrictions, no later than 4:30 p.m. on April 26, 2019. Reply submissions, if necessary, shall be served and filed by 4:30 p.m. on May 3, 2019. If no costs submissions are received by the court by 4:30 p.m. on April 12, 2019, there shall be no costs.

Fowler Byrne J. Released: March 22, 2019