Bilich v. Toronto Police Services Board, 2013 ONSC 1445

Court File and Parties

COURT FILE NO.: CV-09-391788

DATE: 20130308

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Bilich (Plaintiff) and Toronto Police Services Board, William Blair, Mark Pugash, Reuben Stroble, Blake Shreve, Suzanne Pinto, Stephen Ruffino, Ian Sapsford, Candy Graham, Victoria Balice and Wendy Drummond (Defendants)

BEFORE: Frank J.

COUNSEL: Robert Bilich, in person Kathryn E. Kirkpatrick, for the Defendants

HEARD: February 13, 2013

ENDORSEMENT

1The defendants bring this motion pursuant to rules 21.01(a) and (b), 25.10 and 25.11 to strike all of the plaintiff’s statement of claim and for particulars.

2The plaintiff¹ commenced this action as a result of his having been arrested and charged with criminal harassment on June 22, 2008. What gave rise to this charge was his alleged harassment of a parking enforcement officer the previous day. The Toronto Police Services reported the fact of the charge and the plaintiff’s identity in a news release. In September 2009, the charges were withdrawn when the plaintiff entered into a recognizance to keep the peace and issued a letter of apology to the parking enforcement officer.²

3The plaintiff seeks damages in this action based on the alleged conduct of the members of the Toronto Police Services, the Toronto Police Services Board and the Toronto Chief of Police in arresting him and with respect to events subsequent to his arrest.

4The plaintiff is unrepresented, and as such, personally drafted the statement of claim. It consists of 183 paragraphs and claims $10 million in damages. Generally, the plaintiff’s claim is for damages based on the alleged libel, false arrest, negligent investigation, assault, intimidation, abuse of power and breach of Charter protected rights.

5The defendants submit that the plaintiff has pleaded causes of action that are not known to law, has pleaded claims that have no reasonable prospect of success, and that portions of the claim are scandalous, frivolous or vexations and are an abuse of the process of the court. They seek to have the claim struck in its entirety without leave to amend.

6The plaintiff, in his factum, raises the issue of the defendants’ entitlement to bring this motion in light of their having delivered a defence. In the circumstances, the defence filed – three paragraphs consisting of a complete denial of the allegations in the statement of claim, notice that the defendants continue to await the plaintiff’s response to their demand for particulars, and a reservation of the right to file an amended statement of defence – does not preclude the bringing of this motion.

7It is apparent from the pleading and from the affidavit evidence before me that the defence was filed for the purpose of avoiding the noting in default of the defendants while they addressed the inadequacies of the plaintiff’s response to the demand for particulars. Without commenting on whether there might have been a better means of avoiding being noted in default, the motive behind the filing of the ‘pro forma’ statement of defence being to avoid the wastefulness of having to bring a motion to set aside a noting in default, it would be inconsistent with the underlying purpose of the rules to foreclose the bringing of this motion on the basis of the filed defence. If leave is required for the defendants to proceed with this motion, that leave is granted.

8The plaintiff also raises the issue of the defendants’ delay in bringing this motion. While there is ample basis for criticizing the defendants for their delay in addressing the pleadings issues, in the circumstances, the delay is a matter more appropriately considered in regards to the issue of costs. First, the delay must be considered in the context of this motion having first been scheduled to be heard within nine months after the defendants’ receipt of the plaintiff’s reply to the demand for particulars at the end of 2009. The initial delay was one of months, not years. Second, there have been proceedings in the interim that served to delay the hearing of this motion. Finally, it would be inconsistent with the principle enunciated in rule 1.04(1), that the rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding, to prevent the defendants from bringing this motion. The action cannot proceed in a reasonable and efficient manner without the pleading issues being addressed.

The rules of pleading

9As the courts have repeatedly commented, the importance of pleadings cannot be overstated. The purpose of a statement of claim is to precisely frame the issues and matters before the court. As well, the pleading determines the scope of documentary and oral discoveries. As a result, a pleading that does not adhere to the rules is likely to result in proceedings that are inefficient, wasteful and unnecessarily costly to not only the parties but to the administration of justice, as well.

10It is of particular importance that a pleading be proper where it makes serious allegations of intentional wrongdoing against a defendant. A pleading that does not set out the allegations against the alleged wrongdoer with precision may make it impossible to properly respond to the claim.³

Framework for the rule 21 analysis

11In deciding whether the defendants are entitled to the relief they seek pursuant to both Rule 21.01(1)(a) and (b) and 21.01(3)(d), I must:

(a) accept the pleaded allegations of fact as proven unless they are patently ridiculous or incapable of proof;⁴

(b) read the pleading generously with allowance for inadequacies due to drafting deficiencies; and,

(c) consider only the statement of claim and the documents to which it specifically refers and relies on, along with any answers to a demand for particulars.⁵

12The test the defendants must meet is stringent. They must show that the allegations pleaded are incapable of supporting the pleaded cause of actions and that it is plain and obvious that the claim has no reasonable prospect of success.⁶

Failure to disclose a reasonable cause of action

(a) false arrest and imprisonment

13The defendants submit that the claims of false arrest and imprisonment must fail because the statement of claim does not plead any facts to support the claim that the officers did not have reasonable and probable grounds to arrest the plaintiff.

14In order to succeed in a claim for unlawful or false arrest, the plaintiff must prove that he was arrested or detained and that the defendants caused the arrest or detention. The onus then shifts to the defendants to establish that the arrest was justifiable. This requires that the officers demonstrate that they had reasonable and probably grounds to arrest.⁷ If the arrest is justifiable, there can be no false arrest or imprisonment.

15Although the statement of claim alleges that the officers did not have reasonable and probable grounds, this allegation is unsupported by any pleading that suggests that the officers did not have the subjective belief that they had reasonable and probable grounds or that their belief was not objectively reasonable. A speculative allegation such as this is inadequate as a basis for a necessary element of a cause of action. The facts supporting the allegation must be pleaded.⁸

16As the pleading does not include any material facts that would indicate that it was not objectively reasonable for the officers to form the belief that the plaintiff was guilty of the criminal offence, or that would preclude the officers from forming an honest belief in the guilt of the plaintiff on the basis of the complaints made by the complainant, the claim fails.

17Paragraphs 36 through 66 being the paragraphs under the heading “false arrest’, and paragraphs 95 through 105 under the heading ‘false imprisonment’ must be struck.

(b) assault

18The plaintiff alleges that the police officers assaulted him when they arrested him. The pleading sets out the alleged actions of the officers. However, it is silent as to on what basis those actions amount to an assault.

19Based on section 25(1) of the Criminal Code, a police officer is justified in using necessary force in arresting a person if the officer acts on reasonable grounds. But, the plaintiff has not pleaded any facts that support that the officers were acting without reasonable and probable grounds in arresting him. Without such facts, the claim cannot succeed.

20Paragraphs 67 through 74 must be struck.

(c) wrongful investigative detention

21The paragraphs under this heading include what appear to be Charter claims, a claim in negligence and claims based on wrongful arrest and detention. They contain evidence, particularly at paragraph 91. It is an understatement to say that they are vague and ambiguous.

22To the extent that the plaintiff is claiming breaches of his Charter protected rights, he has not made it sufficiently clear what rights he relies on. If the plaintiff’s pleading is based on ‘wrongful investigative detention’, that is not a cause of action known to law. It may be that this aspect of the pleading actually relates to the wrongful arrest and detention claims.

23The paragraphs under this heading leave one struggling to try to determine what the plaintiff is attempting to plead and to make sense of the words. It would be impossible for the defendants to plead to them in response.

24Paragraphs 84 through 94 must be struck.

(d) intimidation

25Included in the relief sought in the plaintiff’s prayer for relief is a declaration that Officer Pinto committed the tort of intentional systematic tortious intimidation. The pleading includes the heading “ Systemic Intimidation with Actual Intention to Harm.”

26Under that heading, the plaintiff has not pleaded any material facts to support the claim of intimidation. He has failed to plead:

(a) what Officer Pinto threatened to do;

(b) when or where any alleged threats were made;

(c) what acts any alleged threats caused the plaintiff to do or refrain from doing;

(d) how such acts done or refrained from caused damage to the plaintiff; and,

(e) the nature and extent of the resulting damage.

27As a result of the above failings, the claim as pleaded fails to give rise to a reasonable cause of action.⁹

28However, this claim highlights one of many problematic aspects of this pleading. While the plaintiff employs headings, presumably to distinguish which portions of the pleading deals with which aspects of the claim, a careful reading of the pleading reveals that the allegations that appear to relate to a specific claim can be found under an unrelated heading.

29Under the heading “Trespass to the Plaintiff – Assault”, found seventeen pages before the ‘intimidation’ heading, the plaintiff pleads:

70. Contrary to the wishes of the Plaintiff, the Defendant Sapsford physically blocked his movement and uttered a threat, enunciating each word with an elevated and belligerent voice inflection. This act caused the Plaintiff reasonably to apprehend that force would immediately be inflicted upon him.

71. The Plaintiff states that the Defendant Sapsford, armed with a variety of lethal and non-lethal weapons, was willfully engaging in a “ready, aim, fire bias”; engaging, that is, in the bias towards despotic or unjustifiable action rather than inaction.

72. The Plaintiff, fearful of the immediate, rather real, threat of physical bodily harm, put up no resistance, even though he did not yield his constitutional rights, in the course of the police conduct.

30This series of paragraphs, as problematic as they are, come much closer to pleading the tort of intimidation than does the pleading under that heading. But, the officer referred to in these paragraphs is not the officer against whom the claim of intimidation is made.

31Perhaps there is a claim here. But, it requires more than a generous reading of the pleading to decipher it. The role of a judge on a motion such as this cannot extend to attempting to properly construe the possible intentions of the party pleading where the pleading itself leaves the intention impenetrable. As a result, I can only conclude that those paragraphs under the plaintiff’s heading “ Systemic Intimidation with Actual Intention to Harm” having to be struck as failing to disclose a cause of action that has any chance of success.

32Paragraphs 144 through 150 must be struck.

(e) abuse of power

33Abuse of power is an element of the intentional tort of abuse of public office. It involves the intentional malicious abuse of power or authority by a pubic official causing damage to the plaintiff. ¹⁰

34The plaintiff has failed to plead sufficient facts to support his claim for damages for ‘abuse of power’. Full particulars of the material facts supporting the constituent elements of the tort must be pleaded.

35A claim of abuse of power cannot succeed unless the plaintiff establishes that the defendants acted with malice towards the plaintiff, with the knowledge that their conduct lacked statutory authority, and with the intent to injure the plaintiff or with knowledge that the act would do so.¹¹ The plaintiff has not pleaded any of these elements or pleaded any facts to support them.

36The pleading is no more than a bald allegation, not specifying against which of the defendants the claim is made, or when the alleged abuse of process was committed or precisely which acts constituted the abuse.

37The allegations fail to give rise to a reasonable cause of action.

38Under the heading “Continual or Recurrent Abuse of Power or Process” the plaintiff makes allegations based on the conduct of the proceedings in the underlying criminal matter. However, the setting of dates and directions regarding the service of summonses are in the control of the Crown, not the police. Claims based on the obligations or conduct of the Crown are not properly made against these defendants.

39Paragraphs 64 and 78 - 83, 131- 133, 135 – 137, 170 – 172 must be struck.

(f) abuse of process

40At paragraph 150 of the statement of claim, the plaintiff pleads that he required medical treatment as a result of the defendants’ abuse of process.

41But, as is the case with many of the claims pleaded, as I have already commented, what the plaintiff intends is unclear.

42Though the defendants, in their submissions, approach this as a separate cause of action pleaded by the plaintiff, it appears to me that in using the phrase ‘abuse of process’ the plaintiff does not intend to plead a separate cause of action. These words appear in the heading “Continual or Recurrent Abuse of Power or Process,” suggesting that the plaintiff is not relying on abuse of process as a separate cause of action.

43If the plaintiff’s intention is to advance a claim based on abuse of process, his pleading is improper and must be struck as frivolous or vexatious. The plaintiff has not pleaded the elements of the tort¹², has not pleaded facts to support the bald allegation that the predominant purpose of the proceeding was improper, and has not specified which of the defendants were involved or what they did that constituted abuse of process. The pleading of abuse of process is frivolous or vexations.

44If the intention is that the reference to abuse of process is for the purpose of supporting the abuse of power claim, as I have found that claim to fail, the reference to abuse of process must also be struck.

45Paragraph 150 must be struck.

(g) breach of trust by a public officer

46The plaintiff relies on section 122 of the Criminal Code, R.S.C. 1985, c. C-46. This section deals with public officials. It has no application to this case. There is no need to look beyond that to address the fact that the pleading is inadequate.

47Paragraph 176 must be struck.

Questions of law

(a) investigative negligence

48The statement of claim includes various allegations involving the nature of the investigation as well as the alleged failure to investigate. One of the headings in the pleading is “Wrongful Investigation”. The defendants submit these allegations can best be characterized as a claim in negligent investigation, a submission with which I agree.

49The requisite elements for the tort of negligent investigation are:

(a) the proceedings must have been initiated by the defendants;

(b) the proceedings must have been terminated in favour of the plaintiff;

(c) there must have been an absence of reasonable and probable grounds to commence the proceedings against the plaintiff; and,

(d) in conducting the investigation the defendants owed a duty of care to the plaintiff and did not meet the objective standard of a reasonable police officer in similar circumstances.¹³

50The claims based on the police investigation or lack of investigation must fail because the proceedings were not terminated in favour of the plaintiff. The Crown withdrew the charges in return for the plaintiff entering into a peace bond. As the court stated in Romanic, “… this result prevents the accused from subsequently pursuing a malicious prosecution or negligent investigation action.”¹⁴

51During submissions the plaintiff disputed that he had entered into a peace bond and took the position that I could not assume otherwise on the record before me. However, Stinson J. refers to the manner in which the prosecution was concluded in his endorsement in an earlier motion in this action.¹⁵ The transcript of the criminal proceedings before Khawly J. was part of the record before Stinson J. The transcript discloses, and at para. 42 of his endorsement, Stinson J. states that the charge against the plaintiff was withdrawn on his entering into a peace bond and his signing of a letter of apology to the parking enforcement officer.

52The plaintiff’s denial of what the transcript of the proceedings discloses to have been the outcome of the prosecution cannot serve to prevent the striking of pleadings that cannot otherwise succeed.

53As a result, paragraphs 63, 90, 106 to 108, and 169 must be struck.

(b) defamation

54The plaintiff’s defamation claim is based on the Toronto Police Service news release dated June 23, 2008, entitled “Man charged in criminal harassment investigation.”

55The pleading is defective in that it does not set out the precise words published by the defendants of which the plaintiff complains. These words are material facts that are a fundamental requirement.¹⁶ It is defective, as well, in that it fails to set out the material facts that support the constituent elements of the tort.¹⁷

56However, amending the pleading to correct these defects would be pointless, as the claim cannot succeed.

57The release is a document referred to in the pleading and therefore can be considered on a rule 21 motion. The release sets out the facts that underlie the charge against the plaintiff; but in so doing states those facts to be ‘alleged’. The release also states that the plaintiff was charged with criminal harassment and provides the date on which he was scheduled to appear in court.

58It is a question of law whether allegedly libelous words are capable of being defamatory.¹⁸ In Miguna, the court considered the allegation that a similar release by the Toronto Police Service was defamatory. The court held that the release was not defamatory for the following reasons:

(a) the statement in the release that the plaintiff had been arrested and charged was true; and,

(b) the release referred to the facts as being ‘alleged’.¹⁹

59These reasons apply equally in this case. The words complained of are not capable of bearing the meanings alleged by the plaintiff.

60The pleading also includes allegations based on an article published in the Toronto Sun. But, the plaintiff acknowledges that the Sun used “false excerpts” from the news release. Even if the claim in defamation were viable, the claims based on the Sun article would be struck.

61As a result, paragraphs 11, 110 through 127 and 177 must be struck.

(c) breach of Charter rights

62The plaintiff pleads that his rights under sections 7, 8, 9 and 11 of the Canadian Charter of Rights and Freedoms have been breached giving rise to damages.

63As is the case with many portions of the pleading, the precise basis for the claim for the section 24(1) damages claimed by the plaintiff is unclear.

64Reading the pleading generously and allowing for drafting deficiencies, the meaning I take from the allegations in paragraphs 136 and 157 through 164 is that the plaintiff is relying on the alleged failure of the defendants to make full disclosure in the underlying criminal proceedings.

65However, the obligation to disclose is that of the Crown, not the police.²⁰ It is therefore, the Crown and not the police who would bear responsibility for any inadequacy in the disclosure. The Crown is not a party to this action. Therefore, the claims based on non-disclosure cannot succeed and must be struck.

66The plaintiff also pleads that his sections 7, 8, 9, 11(b) and 11(d) Charter rights were breached. The defendants submit that these Charter based claims cannot succeed on two grounds:

(a) they amount to a collateral attack on the criminal proceedings,

(b) the plaintiff has not pleaded bad faith, mala fides, malice, or improper purpose and these are a prerequisite to the recovery of the damages claimed under the Charter.

67I am not convinced based on the defendants’ submissions that the Charter claims are necessarily a collateral attack on the criminal proceedings. The case on which the defendants rely, Ferron v. Goodier, is distinguishable. In that case, the issues had been addressed in the criminal proceedings. None of the Charter issues on which the plaintiff bases his claim for damages were raised in his criminal proceedings. Even if this were to somehow be considered a collateral attack, that would not necessarily be determinative. In R. v. Domm,²¹ a decision relied on by the court in Ferron, Doherty J. cautioned that “…where constitutional rights are implicated, the court must be particularly concerned about the availability of an effective remedy apart from collateral attack when considering whether an exception should be made to the rule against collateral attack.”

68The defendants’ second ground also fails. The cases on which the defendants rely pre-date Vancouver (City) v. Ward²², a Supreme Court of Canada decision in which the court held that judicially prescribed conditions on section 24(1) such as bad faith, mala fides, malice, or improper purpose are improper.

69It may be that the plaintiff’s remedy for any breaches of his Charter rights was an application pursuant to section 24(b) in the criminal proceedings and that the availability of that remedy precludes his advancing the Charter claims in this action. However, the defendants have not brought any decision to my attention that would confirm this. I cannot strike the pleading on the basis that the plaintiff had alternative forms of redress available to him.

70The plaintiff’s claim pursuant to the section 11(b) right to be tried within a reasonable time is based on alleged delayed and inadequate disclosure causing the proceedings to be delayed. This claim must fail for the same reasons as the claim for failure to make full disclosure: disclosure is the obligation of the Crown.

71The plaintiff’s claim pursuant to the section 11(d) right to a presumption of innocence appears to be based on the alleged improper attitude of the police officers. However, the effect of section 11(d) is to create a procedural and evidence rule at trial. The facts pleaded do not support a claim pursuant to this section.

72Based on the above, paragraphs 101, 136, 139, 157-164, 173-175 must be struck.

(d) breach of duty to provide a proper record

73The plaintiff alleges a breach of duty on the part of police officers in the preparation of their notes. He pleads various ways in which they are inadequate or inappropriate and asserts that this constitutes a breach of duty to take reasonable care to provide a proper record. But, that is not an independent duty of care known to law.

74It may be that these allegations should be considered in the context of the claim of negligent investigation. But, either way, the pleadings with respect to this claim do not comply with the rules of pleading. Paragraph 165 contains argument and is a conclusion of law; paragraph 166 is vague and ambiguous and pleads evidence; paragraph 167 and 168 are argument. The first three paragraphs are inflammatory and inserted for colour.

75Accordingly, paragraphs 165 through 168 must be struck.

Legally untenable claims

(a) vicarious liability

76The plaintiff has pleaded that the defendant Mark Pugash is an employee of the Toronto Police Services Board and that this gives rise to vicarious liability on the part of the Board and the defendant William Blair for the braches of duty of Officer Pugash. However, there is no respondeat superior relationship between the Board or the Chief of Police and the police officers, as the officers are independent administrators of the Crown.²³

77Paragraph 30 of the statement of claim must therefore be struck.

78The plaintiff alleges that the defendant William Blair, the Chief of Police is “liable in negligence for the manner in which members of Toronto Police Services acted and implemented decisions” and for the “intentional manner in which member of the Toronto Police Services acted and implemented decisions” and should be held to have “directly and personally” committed the tort of defamation based on the news release with respect to the plaintiff’s arrest.

79As I said, above, the Police Chief is not vicariously liable for the acts committed by other police officers during the course of their employment.²⁴

80Further, broad allegations that the Chief of Police failed to carry out his duty without being properly framed in negligence with the requisite elements and supporting facts being pleaded cannot succeed.²⁵ The plaintiff has not specified in what manner or when Chief Blair was negligent or breached his duties. In effect, the plaintiff is asserting a claim of negligence against the office of the Chief of Police, rather than the Chief personally.²⁶ Such a claim cannot succeed.

81As such, paragraphs 30 and 109, 117 and 156, in so far as they relate to William Blair must be struck.

(b) liability of the Toronto Police Services Board

82The plaintiff claims the Toronto Police Services Board is liable for the manner in which members of the Toronto Police Services acted and implemented decisions. The plaintiff further pleads that the Board should be considered to have personally and directly committed the tort of defamation through the publication of the release regarding the plaintiff.

83However, the Board cannot perform or be held responsible for operational functions such as referred to in the statement of claim. The Board, a statutory body, is expressly precluded from supervising police officers. It is not responsible for “practices, standing and routine orders, directives, training programs and operational practices and structures.” ²⁷

84Accordingly, paragraphs 30 and 109, 117 and 156, in so far as they relate to the Board, must be struck.

The demand for particulars

85The first portion factual allegations in the pleading relate to what the plaintiff refers to as the first incident. The individuals of the Toronto Police Services with whom the plaintiff allegedly spoke in the context of the first incident are not identified. As well, the plaintiff alleges damages but does not specify the nature of those damages.

86The defendants sought particulars with respect to the above. The defendant did not provide them.

87The defendants are entitled to these particulars. Absent the identification of the individuals with whom the plaintiff claims to have had contact, the defendants cannot plead to the allegations. Similarly, absent any indication of the nature of the damages sustained, the defendants does not know what claim is must meet.

88The plaintiff is correct in his submissions with respect to the inadequacies of the affidavit evidence filed in support of the particulars portion of this motion. However, this does not preclude them from obtaining the order they seek as the portions of the pleadings with respect to which they seek particulars are so lacking in specifics as to make the defendants need for particulars apparent on its face.

The pleading is scandalous, frivolous or vexations and an abuse of the process of the court

89Pleadings that are irrelevant, argumentative or inserted for colour or that constitute bare allegations are scandalous and should therefore be struck. ²⁸ Pleadings that are not limited to material fact but, instead, consist of evidence are contrary to rule 25.06(1). So too are pleadings that state conclusions of law without setting out the material facts in support of them: rule 25.06(2).

90Much of the pleading that I have struck to this point offends these rules of pleading in addition to breaching the rules as identified above. What little remains of the pleading is subject to being struck on one or more of these bases.

91Paragraphs 151, 152 and 153 have not already been struck for other reasons. They plead evidence and are inflammatory and inserted for colour. They must be struck.

92Paragraph 155 pleads argument to the extent that it refers to the plaintiff’s “longstanding ‘sacred’ common law right to the exclusive and unimpaired possession and enjoyment of property”. Paragraph 155 must be struck.

93The concluding paragraphs of the statement of claim are a summary of conduct on which the plaintiff relies. They are, for the most part, argumentative and inflammatory. With the exception of paragraph 179 that pleads the basis of the plaintiff’s entitlement to punitive damages, they are improper.

94Paragraphs 178, 180 and 181 must be struck.

Conclusions

95In reaching my conclusions, I have been mindful of the plaintiff’s submission that I must consider the pleading as a whole and that the whole informs the individual parts with which the defendants take issue.²⁹

96The plaintiff gives as an example of the defendants’ improper emphasis on individual words and phrases, their complaint regarding the plaintiff’s use of the phrase “willful blindness”. The defendants submit that this is not a cause of action recognizable in law. But, the plaintiff acknowledges that “willful blindness” is not a tort. He explains that his use of that phrase, like many others of which the defendants complain as not disclosing a cause of action, is intended as being explanatory of the overall picture.

97The difficulty with the plaintiff’s submissions is that they fail to recognize that his statement of claim must comply with the specific rules governing pleadings. Those things that are superfluous to the identification of the causes of action relied on and facts necessary to support those causes of action have no place in a pleading. The plaintiff cannot escape the application of the rules because he is unrepresented. His submission that though the pleading may not be to the standard of a reasonably competent lawyer, but is nonetheless sufficient is misguided. While it is true that allowances must be given for drafting deficiencies, the same rules govern the content of a pleading regardless of whether it has been drafted by a lawyer or unrepresented litigant.

98I have no doubt that the plaintiff believes that the words he has chosen and the detail he has gone into in pleading his claim are necessary for him to adequately advance it. But his genuine belief does not alter the tests to be applied in determining the sufficiency and propriety of a pleading.

99This pleading is not a concise statement of the material facts on which the plaintiff relies for his claims. It is a verbose, intemperate, disorganized, confusing, emotional diatribe against the defendants. The plaintiff’s incorporation of legal terminology in the pleading serves not to clarify the issues but rather to confuse them. The pleading, with the exception of the Charter based claims that are saved, must be struck.

100This leaves the question of the extent to which leave to amend should be granted.

101The plaintiff should be given the opportunity to properly plead those claims that, but for the inadequacies of the pleadings in their current form, are potentially viable claims. In granting leave to amend, I should not be taken as assuming that the facts exist that would meet the essential elements of these claims. They may not, in which case the plaintiff’s pleading will fail in spite of leave to amend having been granted.

102I will address leave in the same order as I dealt with the paragraphs in my reasons:

(a) paragraphs 36 through 66, which are the paragraphs under the heading “false arrest’ and paragraphs 95 through 105 which are under the heading false imprisonment are struck with leave to amend;

(b) paragraphs 67 through 74, which relate to the claim of assault are struck with leave to amend;

(c) paragraphs 144 through 150, which are under the heading ‘intimidation’ are struck with leave to amend;

(d) paragraphs 64 and 78 through 83, 150, and 170 through 172, relating to the abuse of power and abuse of process claims are struck with leave to amend; and,

(e) paragraph 155 is struck with leave to amend.

103The plaintiff is to deliver his amended pleading within 30 days of the date of this endorsement.

104The remaining paragraphs that have been struck, are struck without leave to amend.

105The plaintiff must provide the particulars set out above, under the heading ‘demand for particulars’. Those, too, are to be delivered within 30 days of the date of this endorsement.

106I now turn to costs. The plaintiff has made submissions with respect to costs in his factum filed in response to this motion. I will consider those submissions. As required, the defendants have provided me with their Cost Outline and their position with respect to costs in the event of complete success.

107Although the defendants were largely successful, their success on this motion was not complete. The cost submissions should reflect this. I confirm that those submissions are to be limited in length to 3 pages, double-spaced. They are to be delivered to Judges’ Administration, 361 University Ave., by the defendants’ within 20 days of the date of this endorsement to be followed by the plaintiff’s within 5 days thereafter.

Frank J.

Footnotes

1. 1At the outset of the hearing, the plaintiff indicated that his preference was to be referred to as ‘the plaintiff’ rather than by name. I have complied with that request throughout these reasons.
2. 2See Bilich v. Toronto (City) Police Services Board
3. 3Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at para. 67
4. 4Operation Dimsantle v. The Queen, 1985 74 (SCC), [1985] S.C.J. No. 22 at para. 27, (S.C.C.)
5. 5Nash v. Ontario, 1995 2934 (ON CA), [1995] O.J. No. 4043 (C.A.)
6. 6R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17.
7. 7R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 (S.C.C) at para. 17.
8. 8Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346 at para. 18 (C.A.)
9. 9Central Canada Potash Co. v. Saskatchewan, 1978 21 (SCC), [1979] 1 S.C.R. 42 at pp. 81 and 87-88
10. 10Odhavji Estate v. Woodhouse, [2003] 3 S.C.R., at para. 23
11. 11Odhavji , at para. 32
12. 12The essential elements of the tort are: the plaintiff was subjected to a legal process by the defendant; this was done predominantly to further some indirect, collateral and improper purpose; some definite act or threat has been made in furtherance of that purpose; and some measure of special damages has resulted. (see: Metropolitan Separate School Board v. Taylor, [1994] O.J. No. 1870 at para. 3
13. 13Romanic v. Johnson, 2012 ONSC 3449, [2012] O.J. No. 2642, at para. 9
14. 14Romanic, para. 23
15. 15Bilich v. Toronto (City) Police Services Board, [2012] O.J. No. 1402, at para. 42
16. 16Roger D. McConchie and David A. Potts, Canadian Libel and Slander Actions, (Tronto: Irwin Law Inc., 2004) at p. 535-539
17. 17Mantini v. Smith Lyons LLP, 2003 22736 (ON CA), [2003] O.J. No. 1830 at para 11 (C.A.)
18. 18Mantini, at para. 10, quoting Hodgson v. Canadian Newspapers Co. (1998), 39 O.R. (3d) affd. (2000), 2000 14715 (ON CA), 49 O.R. (3d) 161 (C.A.)
19. 19Miguna, [2004] O.J. No. 2455 at paras. 7-11 (S.C.J.)
20. 20Ferron v. Goodier, [2010] O.J. No. 329 (S.C.J.) at para. 63
21. 211996 1331 (ON CA), [1996] O.J. No. 4300 (O.C.A.)
22. 222010 SCC 27, [2010] 2 S.C.R. 28
23. 23Re A Reference Under the Constitutional Questions Act, 1957 110 (ON CA), [1957] O.J. No. 616 at paras. 4-8, (C.A.); Police Services Act, R.S.O. 1990, c.P.15, s. 50
24. 24Pringle v. London (City) Police Force, [1997] O.J. No. 1834 at para. 2 (C.A.)
25. 25Romagnuolo v. York (Regional Municipality) Police, [2001] O.J. No. 3537 (S.C.J.) at paras. 23 and 52-55.
26. 26Walsh c. 1124660 Ontario Ltd. et al, Court File No. 00-CV-199959CM, Endorsement of Master Dash, Sept. 15, 2004
27. 27Deciantis v. Toronto (City) Police Services Board, [2001] O.J. No. 2615
28. 28Senechal v. Muskoka (District Municipality), [2003] O.J. No. 855 at para. 52
29. 29TPG Technology Consulting Ltd. v. Canada (Industry Canada), 2012 ONCA 87, at para. 22