De Pinto v. Toronto Community Housing Corporation et al., 2013 ONSC 2479

SUPERIOR COURT OF JUSTICE

COURT FILE NO. CV-12-466000

DATE: 20130426

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL DE PINTO and ROQUELINA C MORAVUS

Plaintiffs

Appeared in person/Self-represented

• and -

TORONTO COMMUNITY HOUSING CORPORATION and TORONTO POLICE SERVICES BOARD

Defendants

Ms. Orna Raubfogel for Toronto Community Housing Corporation Defendant

Ms. Amy Murakami for Toronto Police Services Board Defendant

HEARD: February 14, 2013

M.A. SANDERSON J.

Reasons for DECISION

Preliminary Matter

1On consent, leave is granted to bring this motion despite the filing of a Statement of Defence.

Introduction

2The Toronto Community Housing Corporation ("TCHC") and the Toronto Police Services Board (the "Police Board") (also collectively referred to as the "Defendants") bring this motion under Rules 21 and 25 of the Rules of Civil Procedure (to strike out a pleading as disclosing no real cause of action) for an Order striking out the Plaintiff’s claim without leave to amend or re-file, and dismissing this action as against them on the grounds that their claim is statute-barred, discloses no reasonable cause of action, and is frivolous, vexatious, scandalous and an abuse of process.

3In the alternative, TCHC and the Police Board bring this motion seeking an Order striking out portions of the Plaintiffs’ Claim without leave to amend on the grounds that portions of the Claim disclose no reasonable cause of action, and/or are frivolous, vexatious, scandalous and/or otherwise an abuse of process, and/or are time-barred by operation of the Residential Tenancies Act, 2006 SO 2006, c 17 (the "Act") and/or by operation of the Limitations Act, 2002 SO 2002, c 24 ("the Limitations Act.")

4If the claim against TCHC is not struck in its entirety, TCHC seeks leave to amend its Statement of Defence.

Background Facts

5TCHC is a social housing landlord that owns and operates a residential complex at 7 Arleta Avenue, Toronto, Ontario.

6The Plaintiffs, husband ("De Pinto") and wife ("Moravus"), are resident tenants of TCHC in Units 129 and 230 at 7 Arleta.

7The Police Board is a legal entity created under the authority of s. 27 of the Police Services Act, R.S.O. 1990, c. P.15.

8The Plaintiffs have brought an action claiming damages of $500,000 against TCHC and the Police Board, alleging inter alia that they have caused “multiple injuries, trauma, duress, disability, loss of vision" to De Pinto's right eye, and "permanent disfiguration" of his left ankle. They have also claimed damages for the "ongoing harassment, intimidation, bullying, provocation to violence, abuses and life-threats" they have suffered at 7 Arleta at the hands of specified parties (the "assailants.")

9De Pinto alleged that from the summer of 1990 to September 2012, he and his wife have been repeatedly and persistently bullied at their residence. He submitted that the superintendent, Mr. Gus Camarda ("Camarda"), a long-time-employee of TCHC at 7 Arleta, has allowed a number of residents and others to harass him and his wife. De Pinto alleged that when the wrongdoers made reports to the Superintendent making it appear that De Pinto was the perpetrator, the Superintendent believed them and on one occasion reported De Pinto to the police.

10The Plaintiffs' claim against TCHC is based on an alleged failure of the landlord to protect them from the injuries caused by these third parties.

11The Plaintiffs' claim against the Police Board is based on the Police Board's alleged ineffectiveness of their service to arrest and bring [them] to answer to the law.

12The Plaintiffs have pleaded that the Police Board is vicariously liable for the acts and neglects of their employees, namely PC1 Carbray, PC1 Sylvester, PC1 Kramer and PC1 Williams, for failing to arrest two assailants, accusing the Plaintiffs of being "outright liars," showing disregard for the welfare of the Plaintiffs (the victims,) and siding with the "repeated malicious wrongdoers," irrationally threatening De Pinto that "if he should be called again, he would be taking Mr. De Pinto in."

Action Against TCHC

13The primary submission of counsel for TCHC was that the pleadings against it fail to disclose a reasonable cause of action.

14In Aristocrat Restaurants v. Ontario 2003 O.J. 5331, Epstein J. set out the test to be applied at paras 16, 18-21:

16. Rule 21.01(1)(b) is designed to ensure that the court's process is not abused. It provides that a judge may strike out a pleading if it discloses no reasonable cause of action. The purpose of the rule is to test whether a plaintiff's allegations state a legally sufficient or substantively adequate claim. Where the alleged facts fail to disclose such a claim, it should be struck. However, the Supreme Court of Canada in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 made it clear that before a statement of claim is struck out, it must be plain and obvious that it discloses no cause of action.

18 The failure to properly establish a cause of action can occur in one of two ways. A claim will be found to be legally insufficient when either the allegations it contains 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. See: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (C.A.) at pg. 264.

19 In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for an opposing party to reply should be struck. The court is permitted to strike out less than the entire pleading where the portion being struck is distinct.

20 Pleadings must contain material facts. Rule 25.06 provides that every pleading must contain a concise statement of the material facts on which the party relies for the claim or defence. Furthermore, a party must plead all of the facts that it must prove to establish a cause of action that is legally complete.

21 A pleading that shows a complete absence of material facts is considered frivolous and vexatious. Bare allegations should be struck as scandalous. This is particularly so where allegations of intentional or malicious conduct are made. See: Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at paras. 66-67 (S.C.J.), aff'd., 2002 4770 (ON CA), [2002] O.J. No. 383 (C.A.). Rule 25.11 empowers the court to strike out pleadings on the ground that the pleading is scandalous, frivolous or vexatious. See: Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at paras. 66-67 (S.C.J.), aff'd., [2002] O.J.

15Counsel for TCHC submitted the Plaintiffs have not pleaded that TCHC abused, harassed, or otherwise injured De Pinto or Moravus, or that the assailants were acting on behalf of the landlord. The Statement of Claim includes no particulars of wrongful conduct by Camarda or any other staff member of TCHC. Residential landlords have no duty to their tenants to protect them from unforeseen, unforeseeable, malicious and/or criminal acts of third parties.

16The relationship between a residential landlord and its tenants is governed by the Residential Tenancies Act. Section 22 of the Act provides as follows:

A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.

17While a landlord may have a duty to intervene in relation to third parties to provide quiet enjoyment to a tenant, it has no duty at law to predict or stop the actions of third parties unless they are repeated and foreseeable. Knowledge and persistence of the conduct complained of, are required to ground liability under the Act. A landlord's duty to intervene where tenants make complaints against other tenants arises only after it has been notified of such complaints. Once notified, landlords must investigate and take reasonable actions to prevent interference with the tenant’s reasonable enjoyment of his unit or the residential complex.

18The Plaintiffs have not pled the Act or alleged any breach thereof.

19Many of the incidents mentioned in the Statement of Claim were not reported to the TCHC, including those involving Culleton on June 23, 2001; Squires in July 2006; Hicks in July 2006; Roland on August 31, 2010; Pino on June 23, 2012, June 25, 2012 and September 6, 2012; Catenari on June 25, 2012 and September 6, 2012; and Culleton on September 26, 2012.

20Since the Plaintiffs have not pled that that they ever complained about the matters identified in paragraphs 2, 7, 10, 11, or 12 of the Claim, or that the landlord was ever aware of them, paragraphs 2, 7, 10, 11 and 12 should be struck.

21Counsel for TCHC submitted the Plaintiffs have alleged that it is liable for a number of one-off incidents. It could not have anticipated the occurrence of those incidents.

22De Pinto seeks damages in relation to injuries to his eye and ankle sustained in a fight with Hicks. However, he does not allege in the Claim that the TCHC could have anticipated the fight or that it was told about it or that its failure to respond caused any losses to the Plaintiffs.

23Those portions of paragraphs 1-3, 4-6, and 7-9 insofar as they relate to incidents involving Arthur Culleton, Hicks, Nemeth, Roland and Anderson ought to be struck. Counsel for TCHC submitted the Claim refers to only one incident involving each of Nemeth, Roland and Anderson. It does not allege any further problems with any of them.

24Counsel for TCHC submitted where the Plaintiffs have alleged that they reported the incidents to TCHC, they have not pleaded that its reaction was unreasonable or inappropriate. They have not alleged that it failed to investigate incidents it knew about, or that it failed to take reasonable actions based on such investigations.

25De Pinto submitted he is a survivor of many malicious and painful ordeals at 7 Arleta. Most were orally reported to Camarda. All of the occurrences were reported either orally or in writing. Carmada ignored De Pinto’s complaints and created an unsafe environment for De Pinto and Moravus.

26Moravus has suffered some ordeals.

27He submitted in argument he has pled all of the malicious actions of the assailants, namely: James Culleton, Anderson, Hicks, Squires, Arthur Culleton, Catenaro, Roland and Pino. He said he has no complaints against Nemeth.

28The Plaintiffs submitted the Statement of Claim should stand. In the alternative they should be given leave to amend.

Limitations

29Counsel for TCHC submitted s. 29(1) of the Residential Tenancies Act provides that tenants may apply for an order determining that the landlord breached s. 22 of the Act. Section 29(2) provides that no application for such an order may be made more than one year after the alleged conduct giving rise to the application.

30In Toronto Community Housing Corporation v Allan Vlahovich, 2010 ONSC 1686 (ON Div Ct), in oral reasons, Dambrot J. for the Divisional Court addressed the issue of the limitation period for claims under the Act at paragraph 9:

It is plain from the language of s.30(1) that the Board can only order a remedy under that provision in relation to a determination in an application under paragraph 1 of subsection 29(1) that a landlord has breached an obligation under subsection 20(1). In light of the one year limitation period in s.29(2), the Board can only make a determination that a landlord has breached an obligation under s.20(1) during the one year period before the making of the application. Accordingly, the remedy that may be granted may only be granted in relation to breaches during that one year period. While evidence of events prior to the commencement of the one year period may be admissible at a hearing before the Board, for example, to enable the Board to understand the cause of the disrepair, this does not permit the Board to extend the remedy back to a time prior to the commencement of the statutory limitation period.

[Emphasis added.]

31Whether or not the one-year limitation period set out in the Act applies, the Limitations Act provides at ss. 5(1) and 5(2) that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered, here on the dates when the incidents occurred.

32The allegations in paragraphs 2-9 of the Statement of Claim refer to interactions between mid July 2006 and September 14, 2010, more than two years before the Claim was issued, and should be struck because they are statute-barred.

33Counsel for TCHC submitted that the only remaining allegations disclose no reasonable cause of action against TCHC. Contained in paragraphs 13 and 14, the Plaintiffs allege that on September 15, 2012 Squires drove by De Pinto in his mobility scooter, De Pinto yelled at Squires, they swore at one another, Squires left the room; later the same day, Squires drove by Moravus, Squires made a complaint about De Pinto; two days later, Camarda spoke to De Pinto about Squires’ complaint; after De Pinto told Camarda his side of the story, Camarda took no action against De Pinto.

34Therefore, the Claim should be struck in its entirety.

35Counsel for TCHC submitted that leave to amend or re-file should not be granted.

Action Against the Police Board

36In the Statement of Claim, the Plaintiffs allege the Police Board failed to adequately investigate and charge individuals who were involved in altercations with them between July 2006 and September 2012.

37Counsel for the Police Board submitted that the Statement of Claim should be struck in its entirety as it discloses no reasonable cause of action. The facts, as alleged in the Statement of Claim, do not support a legally recognized cause of action. Leave to amend or re-file should not be granted.

38The Plaintiffs have not alleged that any members of the Police were directly involved in any of the altercations.

39The alleged incidents are summarized below:

Date of Incident

Report of Incident to the Police

July 2006

Not initially reported to the Police - information relayed to a Police Officer on August 26, 2010

September 2009

Not alleged to have been reported to Police.

August 24, 2010

Salvatore Catenaro called the Police. Investigation by Police, no charges laid.

August 25/26, 2010

Investigation by Police, no charges laid.

August 31, 2010

Not alleged to have been reported to Police.

September 13 and 14, 2010

Not alleged to have been reported to Police.

June 23, 2012

Investigation by Police.

June 25, 2012

Investigation by Police. No arrests were made. No charges were laid.

September 6, 2012

Not alleged to have been reported to Police.

September 15, 2012

Not alleged to have been reported to Police.

40Counsel for the Police Board submitted that to the extent the allegations relate to investigations carried out in response to the Plaintiffs' complaints, or to decisions made regarding charging and/or not charging certain individuals, they cannot found a cause of action as against the Police Board. In light of the discretion enjoyed by police in investigating complaints, a complainant cannot seek redress from the police for failure to conduct a sufficiently thorough investigation of a complaint.

41Members of the Police have very wide discretion in exercising their investigative and prosecutorial-like functions.

42In R. v. Beare; R. v. Higgins, 1988 126 (SCC), [1988] 2 SCR 387 (QL), the Supreme Court of Canada discussed the scope of that discretion at paras 51-52:

Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

The Criminal Code provides no guidelines for the exercise of discretion in any of those areas. The day to day operation of law enforcement and the criminal justice system nonetheless depends on the exercise of that discretion.

43In Clemens v. Canada, [1995] OJ No. 1094 (QL), O'Driscoll J. quoted with approval the reasoning of Lord Denning M. R. in the case of R. v. Commissioner of Police of the Metropolis, Ex. p. Blackburn, [1968] 2 WLR 893 at pp. 902-903, in holding that the police in that case had a discretion to decide whether or not to proceed with an investigation:

Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter." [Emphasis added]

44In the decision of Lloyd v. Toronto (City) Police Services Board, [2003] OJ No. 83 (QL) (SCJ), Stinson J. wrote:

Mr. Lloyd’s submission would seek to extend liability for negligent investigation to circumstances where a complainant could seek redress from the police for failure to conduct a sufficiently thorough investigation of his or her complaint. In my view, that concept is ill-founded, as a matter of law.

45Counsel for the Police Board submitted while police must have a public duty to investigate and prevent crime, it is owed to the public at large, not to individuals.

46In Bhoopaul v. Canadian Imperial Bank of Commerce, [2011] OJ No. 2357 (QL) at paras 17-19 (SCJ), the Superior Court struck out a plaintiff's claim that the police should have conducted a more thorough investigation, and that it should have resulted in prosecutions, as follows:

It is clear in law that police officers have a discretion to decide whether or not to proceed with an investigation and that a complainant cannot seek redress from the police for failure to conduct a sufficiently thorough investigation of a complaint…the tort of negligent investigation relates to a duty to a potential accused person before charges are laid. That cannot be extended to a situation where the complainant seeks redress for the conduct of an insufficiently thorough investigation of her own complaints.

47Counsel for the Police Board submitted it is plain and obvious that the Plaintiffs' claims with respect to the investigation and with decisions regarding the laying of charges disclose no cause of action.

48Counsel for the Police Board also submitted the claim against it is statute barred. The Limitations Act, 2002, Sch. B. provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

49In Bhoopaul, supra, the Court concluded that the running of the limitation period for a claim founded in negligent investigation commenced on the date the police investigation concluded:

The last of the police investigations that fall within the 2001- December, 2007 time period that the plaintiff's claim circumscribes were launched and concluded by November 4, 2007 when the police attended at her residence following her break and enter complaint. The plaintiff knew or ought to have known that she had sustained damages as a result of the alleged improper conduct by the police by that time.

50Paragraphs 2-9 of the Statement of Claim refer to incidents that allegedly occurred between 2006 and 2010. Some of these incidents were reported to the Police; others were not. Where reported, the investigation ended more than two years before the Claim was commenced.

Conclusion re TCHC

51In my view, the pleadings in their current form disclose no cause of action recognized at law. A breach of quiet enjoyment under the Act has not been pleaded.

52Given Mr. De Pinto's oral submission that the incidents were reported and repeated, I would have been inclined to grant leave to amend to allow the Plaintiffs to plead that the incidents were foreseeable, that they were inadequately investigated and that appropriate steps were not taken to prevent their reoccurrence. However, given the timing of the issuance of the Statement of Claim well after two years from the occurrence of the incidents mentioned, I am of the view that apart from those in paragraphs 13 and 14, the claims against TCHC are statute barred since it appears that the claims set out in all but paragraphs 13 and 14 are statute-barred: no amendments could revive those claims.

53The matters set out in paragraphs 13 and 14 do not disclose a reasonable cause of action against TCHC, whether or not they were reported to TCHC and whether or not they were investigated by it.

Conclusion re the Police Board

54The allegations in the Statement of Claim disclose no reasonable cause of action against the Police Board and in any event are statute-barred.

Disposition

55The Plaintiffs' claim is dismissed.

56Brief written submissions on costs may be made in writing on or before May 17, 2013.