COURT FILE NO.: CV-22-126-00 DATE: 2023-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donald Marttunen Self Represented Plaintiff
- and -
City of Thunder Bay and Thunder Bay Police E. Prpic, for the Defendants Defendants
HEARD: October 7, 2022, at Thunder Bay, Ontario Madam Justice T. J. Nieckarz
Decision On Motion
[1] This is the Defendants’ motion to dismiss/strike the Statement of Claim in its entirety or parts thereof, either with or without leave to amend.
[2] The Defendants argue that the “City of Thunder Bay” and “Thunder Bay Police” are not proper parties to this action, that the action discloses no reasonable cause of action as against the Defendants or the Thunder Bay Police Services Board (the proper party); and that the action is scandalous, frivolous or vexatious. Overall, the Defendants argue that the Statement of Claim is so devoid of material facts and violates so many rules of pleadings that it is impossible for the Defendants to properly defend the claims. The Defendants seek to have the pleading struck.
[3] The Plaintiff acknowledges that there may be some deficiencies with his Statement of Claim. He acknowledges a lack of material facts, particularly with respect to defamation and argues this was intentional due to the sensitive nature of those facts. If there are deficiencies that warrant striking all or part of the pleading, he seeks leave to rectify the issues. He also disputes the Defendants’ claim that they are not the proper parties to the proceeding. He seeks summary judgment on his claims.
[4] At this stage we are dealing with a pleadings motion. The Defendants have not filed a Statement of Defence due to their concerns. A summary judgment motion is not appropriate at this time, nor was one properly brought.
[5] The question to be determined by me is whether the Plaintiff’s Statement of Claim should be struck for the reasons argued by the Defendants, and if so, with or without leave to amend.
[6] I advised the parties at the hearing of the motion that I would be striking the Statement of Claim, with leave to amend. I explained orally to the parties my reasons at the motion hearing but indicated that I would provide formal written reasons so that the Plaintiff in particular has a better understanding as to what must be rectified. These are my reasons.
FACTUAL BACKGROUND:
[7] The Plaintiff commenced this action against the Defendants in April 2022, claiming damages totalling $200,000 on account of alleged negligence, defamation, misfeasance in public office, and breach of Charter protected rights.
[8] In the Statement of Claim, the Plaintiff alleges:
a. That he has been the subject of ongoing stalking and other investigations by the police related to a person who has falsely accused him, when her and her family are the perpetrators of the stalking and harassment against him. b. He has been followed “relentlessly” by the police in his daily activities for a prolonged period of time. c. The police have attempted to entrap him by causing various young women to approach him in the hope he will make inappropriate advances towards them. d. The police are following him with victims or witnesses in tow, attempting to encourage them to falsely identify him and implicate him in a crime. e. That he is “confident” that the police have illegally obtained warrants to surveil his email, internet, phone conversations and text messages. f. The police are on a mission, not to investigate a crime, but to discredit him, and have devoted their vast resources to doing so. g. Two police officers in particular, have disclosed false information to the public repeatedly over the course of years, that has resulted in the termination of his employment and has otherwise damaged his reputation. They continue to do so. h. These malicious actions of these officers, and the police, have caused not only financial ruin for the Plaintiff but has damaged his reputation and ‘ruined his life’ to the point that he cannot even go to a restaurant without someone knowing about it.
[9] Aside from arguments raised in this motion related to the pleadings, the Defendants state that the Plaintiff has not been contacted by any member of the Thunder Bay Police Service for the purpose of an investigation or otherwise. He has not been arrested or charged with any offence. It is alleged by the Defendants that the Plaintiff’s allegations are nothing more than fantasy, based on speculation. The Defendants argue that there is no factual basis for the allegations.
[10] No Statement of Defence has been delivered pending the outcome of this motion.
ANALYSIS:
Rule 21 – No Reasonable Cause of Action
[11] Rule 21.01(1)(b) of the Rules of Civil Procedure governs the analysis of whether the Plaintiff’s claims are tenable, and whether a pleading should be struck in whole or in part.
[12] Rule 21.01(1)(b) gives the court the ability to strike a pleading if it discloses no reasonable cause of action or defence.
[13] Rule 21.01(3)(b) and (d) provide for a stay or dismissal of an action if the defendant does not have the legal capacity to be sued or if the action is otherwise frivolous or vexatious or an abuse of process of the court.
[14] The test for dismissal under Rule 21.01(1)(b) is a stringent one. It must be plain and obvious that the pleading discloses no cause of action: Deep v. Ontario, [2004] O.J. No. 2734 (S.C.J.), at para. 32, citing Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at paras. 976-977.
[15] A claim will be found to be insufficient when the allegations do not give rise to a recognized cause of action, or it fails to plead the necessary legal elements of an otherwise recognized cause of action: Deep v. Ontario, at para. 33.
[16] The absence of a necessary element of the cause of action will constitute a radical defect that will necessitate the striking of a claim: Deep v. Ontario, at para. 34.
[17] Since the only issue on such a motion is the sufficiency of the pleading that is being attacked, no evidence is admissible: Rule 21.01(2)(b); NAN Corporate Services v. Kocsis, 2015 ONSC 6651, para. 13. For this reason I am unable to supplement the Statement of Claim with the contents of the Plaintiff’s affidavit.
[18] On a Rule 21 motion, the facts as pleaded are assumed to be true, or capable of being proven. The pleading must be read generously in favour of the Plaintiff, with allowances for drafting deficiencies. Having said this, a court is not required to assume that allegations based on assumptions and speculation, as opposed to material facts, are true for the purpose of assessing the cause of action: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; Deep v. Ontario, at para. 35.
[19] By virtue of s. 31(1) of the Police Services Act, R.S.O. c.P.15, the Thunder Bay Police Services Board (the “Board”) is responsible for police services in the City of Thunder Bay. Pursuant to s. 31(1)(a) of the Act, the Board appoints members of the municipal police force.
[20] Pursuant to s. 50(1) of the Police Services Act, the Board is liable for torts committed by members of the police force in the course of their employment.
[21] The Plaintiff has sued the City of Thunder Bay and Thunder Bay Police. I agree with the Defendants that neither are suable entities as it relates to torts committed by members of a municipal police force. By virtue of s. 50(1), only the Board is liable for torts committed by members of the Thunder Bay Police Service. Neither of the two current defendants have vicarious liability for any tort committed by members of the police service.
[22] Therefore, the claim is dismissed as against the Defendants pursuant to Rule 21.01(3)(b), as neither defendant has the legal capacity to be sued in these circumstances. Leave is granted to name the Thunder Bay Police Services Board as the proper Defendant.
[23] The Plaintiff argues that s. 50(1) does not apply because individual officers did not necessarily act in the course of their employment with respect to the acts complained of. The Plaintiff does not seek leave to amend to add any individual officers as Defendants but wishes to maintain the existing named Defendants to the litigation. Firstly, no action, based on the limited facts available at this time can be maintained against the named Defendants for the reasons already stated. Secondly, it is difficult for the court and/or Defendants to assess the Plaintiff’s arguments that certain parts of his claims would fall outside s. 50(1) because officers acted outside the course of their employment. The argument cannot be assessed without having the material facts on which the Plaintiff’s claims are based. Even if the Plaintiff is correct, this is not a basis for liability against the current named Defendants. It merely means that the Board may not be vicariously liable for the actions of individual officers, and that the officers personally must be named. Not knowing particulars of the allegations, it is also difficult to assess whether any claims against any individuals personally may be statute barred. This order is without prejudice to the right of the Plaintiff to later seek leave to add such individual defendants as may be appropriate in amending the Statement of Claim, and without prejudice to any defences those defendants may have.
[24] This is not simply a case of misnomer as the Plaintiff argues. The Plaintiff seeks leave to name the proper parties and continue with the action as plead. The pleading is too deficient, as drafted, for the action to continue with the current pleading. The pleading appears to allege misfeasance in public office, defamation and/or libel, and a breach of Charter rights. As will be discussed, the material facts necessary for the claims being advanced have not been plead. The pleading fails on the basis of Rule 21.01(1)(b), in that it discloses no reasonable cause of action by virtue of the essential elements of the torts alleged not having been pleaded. More will be said about this when I analyze specific portions of the Statement of Claim.
Rule 25 – Pleadings:
[25] Even if the pleading is able to survive a review pursuant to Rule 21.01(1), which it is not, I would strike the Statement of Claim, with leave to amend, pursuant to Rule 25 of the Rules of Civil Procedure.
[26] The purpose of a pleading is three-fold:
a. to define or clarify the issues; b. to give notice of the case to be met and the remedies sought; and c. to apprise the court as to what is in issue.
See Somerleigh v. Lakehead Region Conservation Authority 2005, CarswellOnt 2546 at para. 5. The caselaw and rules surrounding pleadings set out the requirements to ensure these aims may be met, and the remedies if they are not.
[27] Rule 25.11 gives the court jurisdiction to strike all or part of a pleading, either with or without leave to amend, if the pleading:
a. may prejudice or delay the fair trial of the action; b. is scandalous, frivolous or vexatious; or c. is an abuse of the process of the court.
[28] Every pleading must contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved: Rules of Civil Procedure, Rule 25.06(1).
[29] A party may not plead irrelevant, immaterial or argumentative facts. Any allegations that are inserted into the pleading that are simply for colour, and are not relevant to any matters in issue, fall under the category of “scandalous” and will not be permitted. Opinions of the parties or counsel are irrelevant and may be deemed to be scandalous, frivolous or vexatious: Cerqueira v. Ontario, 2010 ONSC 3954 at para. 11 (d); Pineau v. Ontario Lottery & Gaming Corp., 2011 ONSC 5822 at para. 57; Pinder v. Sproule, 2003 ABQB 33 at para. 27; and Fockler v. Elsen, 2012 ONSC 5435 at para. 38.
[30] A pleading that demonstrates a complete absence of material facts will be declared frivolous or vexatious.
[31] Speculative, unfounded allegations of defamation will be struck out as being scandalous: Deep v. Ontario, at para. 40.
[32] Rule 25.06(8) of the Rules of Civil Procedure requires a pleading to contain full particulars of any allegation of malice, fraud, misrepresentation or breach of trust.
[33] Specifically with respect to claims for misfeasance or abuse of public office, a Plaintiff must plead the necessary material facts to establish the following:
- The defendant (or the person through whose actions the defendant is vicariously liable) is a public officer;
- The defendant exercised his/her power as a public officer;
- The defendant was acting with malice or improper purpose;
- The plaintiff has sufficient legal interest to sue;
- There is a causal connection between the wrongful exercise of power by the defendant the plaintiff’s harm; and
- The plaintiff has suffered damages.
[34] This pleading violates all of the aforementioned rules of pleading. Some of the specific concerns with the pleading include:
a. Throughout the pleading there is a lack of material facts plead to establish the who, what, where and when (no dates) of the allegations. There is no way of ascertaining who is alleged to have done what, and when they are alleged to have done it. b. Paragraphs 1, 5, 7 and 8 contain allegations that based on speculation and innuendo, without any material facts that would allow the Defendants to properly defend the allegations. In paragraph 1, for example, the Plaintiff does not identify the individual he is alleged to have been stalking and who he believes continues to make unfounded allegations to the police, which they are alleged to be investigating ongoing. c. The majority of paragraph 1, and portions of paragraphs 5, 6, 7, 13, 14, 15, 18 and 20, are irrelevant, argumentative, inflammatory, inserted only for colour, and contain bare allegations that should be struck as scandalous. d. In particular, the conclusory statement in paragraph 1 that “The Thunder Bay Police have probably spent millions of dollars over many years to investigate Mr. Marttunen hoping to find some legal culpability on any charge.” can only be viewed as having been inserted for colour and is not a material fact. The same can be said of the allegation in paragraph 5 of the Statement of Claim that in illegally obtaining a search warrant, the police acted in a way that is not out of character for the current administration “according to press releases”. Similarly, the statement in paragraph 6 that the police are using their “immense resources” not to investigate a crime but rather to “find one” and “discredit Mr. Martunnen”. These are not appropriate conclusions/statements for a pleading. There are no material facts pleaded as to the details of these multiple investigations that are alleged to have taken place, including dates and what was being investigated. Similarly, the queries posed in paragraph 1 of “Why? Who in the Thunder Bay Police management authorized this investigation?” are not proper for a pleading, nor is the conclusory statement that “If they would have charged the person who falsely accused him and investigated her and her family this would have concluded long ago.” Conclusions of law may be pleaded, but only if the material facts necessary to make those conclusions have also been pleaded. The Plaintiff’s statements are not conclusions of law, and there are no material facts to support them. e. Paragraphs 2 and 3 plead that the Plaintiff has been followed “relentlessly”, and that the police have attempted to entrap him by having young women approach him with the hope that he makes inappropriate advances towards him. No material facts, including dates and places, are alleged, making it difficult to properly defend the allegations. f. In paragraph 5 the Plaintiff alleges that he is “confident” that the Thunder Bay Police have obtained warrants to surveil his communications and he “believes” they were obtained illegally, but no material facts are provided to support these allegations. Again, there are no dates or any facts that would help understand the basis for Mr. Marttunen’s belief. g. The Plaintiff pleads a violation of his s. 7, 8 and 12 Charter rights. Other than the bald allegations (without any material facts) of illegal search, there are no material facts plead to support these allegations. These claims fail to disclose a reasonable cause of action and may be struck under Rule 21.01(1)(b), but they also violate the rules of pleading and may be struck under Rule 25. h. In paragraphs 8 to 12 the Plaintiff claims that unspecified police officers disclosed “inflammatory false information” to the public. He also references “sensitive information”, “false allegations”, and “falsehoods”, but he does not say what the false information or falsehoods are, when they were uttered, and by who. Presumably these paragraphs form the basis for the defamation allegations but fail to set out the material facts necessary to establish the essential elements of the claim. There is reference to two officers in paragraph 10 and the individuals they are alleged to have disclosed information to, but it is unclear whether these are the only officers alleged to have made false or inflammatory statements about him. It is not clear from the pleading whether such statements were made to anyone other than the three individuals referred to in paragraph 10. More importantly, what they are alleged to have said is not pleaded, despite being a requirement for a defamation pleading. Again, this results in the pleading being struck both under Rule 21.01(1)(b) and Rule 25.06(1). i. The statement in paragraph 10 of the statement of claim that “There may have been more.”, in relation to alleged improper disclosures of information, are speculative and improper without any material facts being pleaded to support the statement. j. In paragraph 13 of the Statement of Claim the Plaintiff alleges malice and misfeasance in office. Particulars of the malice alleged have not been pleaded, which violates Rule 25.06(8) as set out above, and the essential elements of misfeasance in public office, that have been set out in paragraph 33 of this decision, have not been pleaded. The Plaintiff alleges in paragraph 18 “wrongful conduct” that was “unlawful and likely to injure the Plaintiff”, but he does not say what the unlawful conduct was, or when it is alleged to have occurred. Therefore, no reasonable cause of action is disclosed, and the pleading must be struck. k. Paragraph 13 also alleges that the police wilfully failed to comply with his constitutional rights, the Police Services Act, and Police Code of Conduct, but does not set out how, when or specifically what the statutory breaches were, or any material facts to support these breaches. No reasonable cause of action is disclosed due to the failure to plead material facts. l. There are no material facts to support the claims of damages suffered. The Plaintiff fails to plead any material facts to support a claim for damages flowing from any alleged misfeasance in public office or otherwise.
[35] Overall, the Statement of Claim is devoid of the material facts necessary to establish any reasonable cause of action and allow a defendant to properly defend the claims alleged. The pleading is replete with assumptions, suspicions, speculation, and the Plaintiff’s own conclusions regarding the conduct of the police. The pleading contains bald allegations, with no material facts to substantiate any of the claims. As drafted, it discloses no reasonable cause of action against anyone. There are too many problems with this pleading for it to be saved by merely striking offending portions.
ORDER:
[36] The action is struck as against the Defendants. Leave is granted to deliver a fresh statement of claim as against the Thunder Bay Police Services Board that complies with the rules of pleading and the Rules of Civil Procedure, within 30 days. If the Plaintiff seeks to add any other Defendants, he must first obtain leave of the court. I am not seized with the matter, and this motion may be heard before any judge.
[37] The Thunder Bay Police Services Board shall have 30 days, after having been served with the fresh statement of claim, to either deliver a Statement of Defence or alternatively bring a further motion to have the fresh statement of claim struck, or any of the claims dismissed, in whole or in part.
[38] Mr. Marttunen is strongly encouraged to obtain independent legal advice and assistance with his new pleading. There are financial consequences in the form of possible costs orders that may flow from not properly amending the Statement of Claim, and indeed from continuing with the claim. The Plaintiff should ensure that he is aware of the potential consequences before proceeding any further with this action.
[39] If the parties cannot agree, costs shall be determined by way of written submissions as follows:
a. The party claiming costs shall deliver (serve and file) written submissions, no more than 5 pages, double-spaced (excluding the Bill of Costs and other necessary attachments) within 45 days of this decision, failing which costs shall be deemed to have been resolved. b. The responding party shall deliver their written submissions, no more than 5 pages, double-spaced (excluding the Bill of Costs and other necessary attachments) within 30 days of receipt of the claiming party’s submissions; and c. Any reply shall be limited to 2 pages, double-spaced, delivered within 15 days of receipt of the reply.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz