Court File and Parties
COURT FILE NO.: CV-11-437874
DATE: 20120416
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KENNETH QUARTEY, Plaintiff
AND:
PEEL POLICE SERVICES BOARD, CHAIRMAN EMAIL V. KOLB, CHIEF H. MIKE METCALF, OFFICER S. MENDYK, OFFICER V. RICHARD, DETECTIVE ST. JULES, ASSISTANT DETECTIVE DAN RICHARDSON, THE BOARD OF THE CITY OF BRAMPTON, MAYOR SUSAN FENNEL, IAN NEWMAN, BOARD OR ONTARIO CIVILIAN COMPLAINTS ON POLICE SERVICES and CHRISTINE ZABIELSKI, Defendants
BEFORE: B. P. O’Marra J.
COUNSEL:
Kenneth Quartey , in person as self-represented
Charles A. Painter , for the Defendants, The Board of the City of Brampton, Mayor Susan Fennel and Ian Newman
HEARD: March 28, 2012
ENDORSEMENT
[ 1 ] This is an application by three of the named Defendants for an order determining a question of law before trial and dismissing the action against those Defendants or for an order striking out the Statement of Claim, without leave to amend.
[ 2 ] The Statement of Claim was dated October 24, 2011. The three Defendants on this application (The Board of the City of Brampton, Mayor Susan Fennel and Ian Newman) denied liability in a Statement of Defence dated December 19, 2011. The Limitations Act was not specifically pleaded by the three Defendants.
[ 3 ] The Amended Notice of Motion by the three Defendants sought to strike out the Statement of Claim, without leave to amend, on the grounds that the pleading fails to disclose a tenable cause of action. There is no mention of the Limitations Act or an application to amend the Statement of Defence.
[ 4 ] In oral submissions on March 28, 2012 counsel for the Applicants applied without notice to amend the defence pleadings to specify the Limitations Act .
[ 5 ] In oral submissions counsel for the Applicants argued that the claim disclosed no reasonable cause of action. He specifically argued that the three Defendants lacked any statutory or common law duty to the Plaintiff and that the pleadings did not refer to any purported duty.
[ 6 ] On such an application the parties are required to serve and file a factum with a concise statement of the facts and law relied on. The Applicants’ factum was indeed concise but makes no reference to the facts and law relied on related to the important issue of whether any duty was owed by the Applicants.
Rule 21.03
[ 7 ] At the outset of the hearing of this motion the Respondent had requested an adjournment to respond and prepare. He had not filed a factum. After hearing both parties on the adjournment issue I ruled the matter should proceed. However, it was only in oral submissions that the Applicants sought leave to amend the defence pleadings without notice to specify the Limitations Act .
[ 8 ] At this stage I make the following orders:
Leave is granted to the Applicants to amend their pleadings to refer to the Limitations Act . The amended pleadings are to be served in accord with the Rules and the Respondent will have the right to respond.
The Applicants are to prepare and serve a more informative factum in accord with rule 21.03. The Respondent will have time to file a response.
Application is adjourned to be rescheduled after further filings.
[ 9 ] I am not seized of this matter but would be prepared to hear it on a date that fits the schedule of the parties and myself.
[ 10 ] Costs are deferred to the Justice who ultimately deals with the motion.
B. P. O’Marra J.
Date: April 16, 2012