SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-443179

MOTION HEARD: AUGUST 21, 2013

RE: Al Mabrook and Amina Reda v. The Corporation of the City of Toronto

BEFORE: MASTER R.A. MUIR

COUNSEL:
Al Mabrook in person

Christopher J. Henderson for the defendant

REASONS FOR DECISION

[1] There are two motions before the court. The plaintiffs bring a motion pursuant to Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting them leave to amend their statement of claim. The defendant opposes the relief sought on the plaintiffs’ motion except for one small proposed amendment it is prepared to accept.

[2] The defendant has also brought a motion. It seeks an order that this matter be assigned to case management.

BACKGROUND

[3] The plaintiffs’ statement of claim was issued on January 3, 2012. The defendant filed its statement of defence on January 23, 2012. Since then, a number of interlocutory steps have been taken. The defendant brought a motion for summary judgment. The plaintiffs then brought a motion for an order that their cross-examinations on that motion (and perhaps any future examinations for discovery) take place by way of written questions. It appears that the plaintiffs ultimately withdrew that motion and Mr. Mabrook attended at an oral cross-examination on December 5, 2012. The defendant’s motion for summary judgment came before Justice Perell on April 17, 2013. It was adjourned pending the outcome of this motion.

[4] The plaintiffs’ claim involves a dispute between the plaintiffs and the defendant with respect to property taxes. The plaintiffs allege that the defendant has improperly taken the position that the plaintiffs’ property taxes are in arrears. The plaintiffs also dispute the amount of certain increases to their property taxes. In addition, they claim that they should be entitled to relief from the payment of certain of these taxes pursuant to a program offered by the defendant to low-income seniors and disabled persons. The plaintiffs further allege that the defendant has improperly transferred utility charges to their tax account. Finally, the plaintiffs seek damages for harassment in connection with the defendant’s attempts to collect property tax arrears.

THE POSITION OF THE PARTIES

[5] Mr. Mabrook argues that all of the proposed amendments are necessary in order for the full factual basis for the plaintiffs’ claims to be before the court. Mr. Mabrook stated in argument that the original statement of claim was prepared in a rush at a time when the plaintiffs were facing the pressure of certain warrants the defendant has allegedly registered on title to the plaintiffs’ property. The plaintiffs seek leave to amend their statement of claim in order to “explain the case properly” and to include information discovered after the statement of claim was issued. Mr. Mabrook submitted that the amendments are necessary in order to preserve the plaintiffs’ “right to assert their case”.

[6] The defendant objects to the proposed amendments for several reasons. First, the defendant takes the position that certain of the proposed amendments deal with attempts to settle this proceeding and are subject to settlement privilege.

[7] Second, the defendant argues that certain other proposed amendments are not tenable at law.

[8] Third, the defendant takes the position that other proposed amendments are simply repetitive or irrelevant and do not otherwise comply with the general rules relating to pleadings.

ANALYSIS

[9] Rule 26.01 provides as follows:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[10] The language of Rule 26.01 is mandatory and, as a general rule, proposed amendments are presumptively approved. However, there is no absolute right to amend a pleading and the court retains a residual discretion to deny the right to amend in certain circumstances. The factors the court may consider have been summarized by the Court of Appeal as follows:

(a) an amendment should be allowed unless it would cause an injustice not compensable in costs;

(b) the proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious;

(c) no amendment should be allowed which, if originally pleaded, would have been struck; and,

(d) the proposed amendment must contain sufficient particulars.[^1]

[11] Of course, proposed amendments must also comply with the general rules applicable to all pleadings. Every pleading shall contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved. See Rule 25.06(1). It is important that a statement of claim, or any other pleading, precisely frame the issues and matters before the court. Pleadings define the scope of documentary and oral discovery and improperly drafted pleadings may lead to wasted time and expense to the parties and the court. See Bilich v. Toronto Police Services Board, 2013 ONSC 1445 (S.C.J.) at paragraph 9.

[12] However, despite these general requirements, it is also my view that some allowance must be made for persons who are representing themselves and who are making a sincere effort to present their case using language and terminology they are comfortable with. Such parties must be given sufficient latitude to tell their story and to put their claims forward for the court’s consideration. The court should allow for some flexibility where it would not result in undue prejudice to an opposite party. An overly restrictive application of the Rules may lead to an injustice by effectively denying a party the right to fully plead his or her case.

THE PROPOSED AMENDMENTS

[13] The plaintiffs have put forward several different versions of their proposed amended statement of claim. It would appear that the current version was filed with the court on April 12, 2013.

[14] The defendant objects to paragraphs 12 and 34 of the proposed amended statement of claim on the basis that these paragraphs make reference to various attempts by the parties to settle some or all of the issues in this litigation. In my view, it is clear that these paragraphs deal with matters covered by settlement privilege. These proposed amendments, on their face, make reference to settlement efforts in connection with a proposed resolution of this very claim. Such communications are covered by settlement privilege. See Modine Manufacturing Co. v. Rose Corp., [2006] O.J. No. 5095 (S.C.J.) at paragraph 22. It is also clear from the pleading that the settlement efforts are not being raised in an attempt to litigate the existence, enforcement or interpretation of a settlement agreement. It would appear that the settlement references are being raised by the plaintiffs as part of their general allegations of misconduct on the part of the defendant. I have concluded that the proposed amendments at paragraphs 12 and 34 are improper. Leave is refused in respect of those paragraphs.

[15] The defendant objects to paragraphs 16-18 of the proposed amended statement of claim on the basis that they are not tenable at law. It is clear that the privacy related statutes the plaintiffs cite in these paragraphs do not apply to the defendant. They only apply to the federal and provincial governments. However, I am not satisfied that the plaintiffs’ allegations are completely incapable of supporting a claim against the defendant in the nature of breach of privacy. See for example the decision of the Court of Appeal in Jones v. Tsige, 2012 ONCA 32. I am therefore prepared to allow these proposed amendments on the condition that the references to the federal and provincial privacy statutes are removed.

[16] The defendant also objects to paragraphs 14 and 15 of the statement of claim on the basis that they are confusing and on the basis that the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Limitations Act”), as pleaded by the plaintiffs, does not apply to the facts of this action. I agree with the defendant that the Limitations Act has no application to the plaintiffs’ claim. Section 2 of the Limitations Act makes it clear that the Act only applies to claims pursued in court proceedings. There is no evidence that the defendant is making any claim against the plaintiffs in this or any other court proceeding. The defendant has filed a statement of defence in this action but there is no counterclaim of any kind. In my view, the allegations made in paragraphs 14 and 15 of the proposed amended statement of claim are not tenable at law. Leave is refused in respect of those paragraphs.

[17] The defendant objects to paragraph 11 of the proposed amended statement of claim. That paragraph purports to assert a claim based on an alleged breach of the plaintiffs’ equality rights found in section 15 of the Charter of Rights and Freedoms. I agree with the defendant that this proposed pleading is not tenable at law. The applicable authorities have clearly set out the specific requirements for pleading a breach of Charter rights. See Mackie v. Toronto (City), 2010 ONSC 3801 (S.C.J.) at paragraph 66. The plaintiffs’ pleading is clearly deficient having regard to the requirements set out in Mackie. The allegations made by the plaintiffs simply amount to general assertions of a denial of their equality rights on the basis of their age and disability. None of the specific requirements of Mackie have been included. Leave is refused in respect of paragraph 11, without prejudice to the plaintiffs seeking leave on a future motion to plead a breach of their Charter rights on the basis of a pleading that complies with the requirements referenced in Mackie.

[18] The defendant also objects to a number of paragraphs in the proposed amended statement of claim as being repetitive and argumentative or that they constitute evidence and not material facts. These proposed paragraphs deal with allegations relating to the plaintiffs’ payment of their taxes and their health issues they allege have arisen as a result of the conduct of the defendant.

[19] I agree with the defendant that the proposed amended statement of claim is not perfect. Some of the allegations made by the plaintiffs are somewhat repetitive and do stray into evidence at times. However, I am prepared to allow these proposed amendments. As stated above, some latitude must be given to self-represented plaintiffs to present their case having due regard for their lack of legal expertise. I note that the plaintiffs have made several attempts to revise their proposed amended statement of claim in order to address the concerns of the defendant. In my view, the defendant will not be unduly prejudiced by the level of repetition and the pleading of evidence found in the proposed amended statement of claim. Justice requires that the plaintiffs be afforded a full opportunity to present their case.

[20] I do, however, agree with the defendant that the proposed amended statement of claim does contain a number of paragraphs that simply do not belong in a pleading, regardless of how generous the court may be with the plaintiffs’ drafting deficiencies.

[21] The proposed amended statement of claim contains a preamble explaining why the amendments are being requested. This is simply not an appropriate matter to include in the pleading itself, although I have certainly considered the issues raised in the preamble as part of my consideration of the plaintiffs' motion.

[22] The plaintiffs’ comments in paragraph 4 of the proposed amended statement of claim are also improper. These proposed amendments make the observation that in the past the City was run more efficiently and that taxes were more reasonable. These kind of general observations are simply not relevant to any of the issues raised by the plaintiffs in their statement of claim and should not be part of this action. Leave is refused in respect of this paragraph.

[23] Paragraph 20 is also improper. It deals with the earlier interlocutory dispute between the plaintiffs and the defendant over the manner in which cross-examinations and examinations for discovery were to be conducted in this action. References to interlocutory procedural steps and allegations about the defendant’s conduct of this proceeding do not belong in the statement of claim. Leave is refused in respect of this paragraph.

[24] I also agree with the defendant that paragraph 35 of the proposed amended statement of claim is improper. In this paragraph the plaintiffs put forward a series of what they describe as “test questions”. These appear to be questions they seek to have the court answer as part of its ultimate determination of the issues in this action. In my view, these “test questions” are simply argument. They are not material facts. They do not belong in a statement of claim. Leave is refused in respect of this paragraph.

[25] Finally, I agree with the defendant that paragraph 23 of the proposed amended statement of claim is also improper. That paragraph makes a number of general observations regarding an alleged social contract that exists between the defendant and the City’s taxpayers and how the defendant has breached that social contract resulting in damages to the citizens of Toronto as a whole. In my view, these observations are completely unrelated to the individual claims the plaintiffs are making. Paragraph 23 is not a proper form of pleading. Leave is refused in respect of this paragraph as well.

CASE MANAGEMENT

[26] The defendant’s cross-motion seeks an order assigning this matter to case management. I am not prepared to make an order for case management at this time. I appreciate that there have been a few scheduling difficulties encountered to date but it appears that the parties have been able to overcome those issues and progress has been made in terms of Mr. Mabrook attending at a cross-examination and the hearing of this motion. I note that this action involves only two parties and the issues involved are relatively straightforward. I am hopeful that the parties can work through any procedural difficulties going forward without the court’s continued intervention. I am therefore adjourning the defendant’s motion for case management without a date. However, I intend to remain seized of that motion. If the defendant wishes to renew its request for case management at some point in the future, based on further evidence, the parties may contact my assistant trial coordinator to arrange for a special motion appointment or case conference.

ORDER

[27] I therefore order as follows:

(a) the plaintiffs are hereby granted leave to amend their statement of claim in accordance with the latest version of their proposed amended statement of claim (including the handwritten additional paragraph 37 which I have initialed and attached to the proposed amended statement of claim), subject to the following:

• proposed paragraphs 4, 11, 12, 14, 15, 20, 23, 34 and 35 shall be deleted;

• the references to the privacy statutes in proposed paragraphs 16-18 shall be deleted; and,

• the preamble to the proposed amended statement of claim shall be deleted;

(b) the defendant’s motion for an order that this action be assigned to case management is adjourned without a date with any future hearing of the motion to be scheduled before me; and,

(c) if the parties encounter any difficulty with the form of this order or the amended statement of claim, or if they are unable to resolve the issue of the costs of this motion, they may schedule an appointment to appear before me by contacting my assistant trial coordinator.

Master R.A. Muir

DATE: October 21, 2013

[^1]: Marks v. Ottawa (City), 2011 ONCA 248 at paragraph 19.