ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-1454-00
DATE: 2014 06 09
BETWEEN:
PRITPAL MATHARU and GURDIAL MATHARU and KAMALJEET P[ARMAR and SEEMA BHATIA and KULVINDER VIRDEE and DALJEET MATHARU
Rishi Singh Bhasin, for the Plaintiffs
Plaintiffs
- and -
MANHEIM AUCTIONS, INC. and MANHEIM AUTO AUCTIONS COMPANY and CALGARY AUTO CONNECTION LTD. and GURBAX SANDHU and HERBERTH MEDINA and ALLSTATE INSURANCE COMPANY
Brendan Y.B. Wong, for the Defendant, Manheim Auto Auctions Company
Kristi Sargeant-Kerr, for the Defendant, Gurbax Sandhu
Todd J. McCarthy, for the Defendant, Allstate Insurance Company
Defendants
HEARD: March 5, 2014
REASONS FOR DECISION
EMERY J
[1] According to the amended statement of claim, the defendant Herberth Medina stole an Audi Q7 from the car lot owned by the defendant Manheim Auto Auctions Company (“Manheim”) on June 26, 2012. The defendant Medina was driving the stolen Audi some ten days later when he collided with the motor vehicle in which the plaintiffs Pritpal Matharu and Gurdial Matharu were riding as passengers. As a result of the collision, the plaintiffs Pritpal Matharu and Gurdial Matharu suffered severe injuries. Pritpal Matharu is now quadriplegic.
[2] The action names Manheim as the owner or alternatively, the party who had possession, care and control of the Audi Q7 at the time it was stolen. Gurbax Sandhu is named as the defendant who was at all material times the owner and driver of the vehicle in which the plaintiffs Pritpal Matharu and Gurdial Matharu were riding. The defendant Medina is named as the driver of the stolen Audi, and the defendant Allstate Insurance Company is joined as the insurer of the plaintiffs Pritpal Matharu and Gurdial Matharu under a motor vehicle liability insurance policy that included coverage pursuant to the provisions of section 265 of the Insurance Act.
[3] It is alleged that Allstate also provided additional insurance to these plaintiffs under coverage provided by their Family Protection Endorsement OPCF No. 44 R incorporated into and forming part of the policy. It is further alleged that the OPCF No. 44 Endorsement provided additional coverage to “insured persons” injured in motor vehicle collisions involving third-party motor vehicles (identified and unidentified) having inadequate automobile insurance to satisfy claims arising from those motor vehicle accidents.
[4] This motion is brought by Manheim under Rule 21.01(1)(b) to dismiss the action as against it for disclosing no reasonable cause of action. The motion is opposed by the plaintiffs and by the defendants Sandhu and Allstate Insurance Company. The defendant Medina did not appear, having been noted in default. The plaintiffs have already discontinued this action as against the defendant Manheim Auctions Inc. I am advised they may discontinue this action as against the defendant Calgary Auto Connection Ltd., if they have not done so already.
[5] In the alternative, Manheim brings its motion to strike various paragraphs from the amended statement of claim under Rules 21.01(3) and 25.11 alleging those paragraphs to be frivolous and vexatious or otherwise contrary to the rules of pleading.
MOTION TO DISMISS UNDER RULE 21.01(1)(b)
[6] Manheim moves under Rule 21.01(1)(b) to have the court dismiss the action as against it for disclosing no reasonable cause of action. Under Rule 21.01(2)(b), no evidence is admissible on this kind of motion. Therefore, I must decide this part of the motion without regard to any affidavit filed by the moving party or either responding party filed with respect to any other part of the motion.
[7] Rule 21.01(1)(b) reads as follows:
WHERE AVAILABLE
To Any Party on a Question of Law
21.01(1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1).
and the judge may make an order or grant judgment accordingly.
[8] The test for a motion under Rule 21.01(1)(b) is well known. An order to strike out a pleading or to dismiss an action for disclosing no reasonable cause of action should be granted only if it is “plain and obvious” the action as pleaded is certain to fail. That test has consistently been applied since it was formulated by the Supreme Court of Canada in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 SCR 959 (SCC) as follows:
33 Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).
[9] In Nash v. Ontario, 1995 2934 (ON CA), [1995] 27 O.R. (3d) 1, also [1995] O.J. No. 4043, the Court of Appeal expanded the basis on which to determine a Rule 21 motion by saying:
11 …On a motion to strike out a pleading, the court must accept the facts alleged in the statement of claim as proven unless they are patently ridiculous or incapable of proof, and must read the statement of claim generously with allowance for inadequacies due to drafting deficiencies…
[10] Rule 21.01(1)(a) requires the court to make a prior determination of law raised by the pleadings if that determination “may dispose of all or part of the action, substantially shorten the trial, or result in a substantial saving of costs”. The same principles or tests apply whether the motion is brought under Rule 21.01(1)(a) or (b). Both involve a consideration of the legal principles relating to the civil wrong alleged against any defendant that apply to facts as set out in the pleadings: Toronto Dominion Bank v. Deloitte Haskins & Sells (1991), 1991 7366 (ON SC), 5 O.R. (3d) 417 (Gen. Div.) and MacDonald v. Ontario Hydro, 1995 10628 (ON SC), [1995] O.J. No. 3048 (Div. Ct.). These subrules are particularly effective when there is a discrete question of law that can be determined in isolation from contested issues of fact, rather than legal issues that may be intertwined with factual matters in dispute.
[11] It is from this perspective that the court must determine if it is plain and obvious that the plaintiffs have no reasonable cause of action on the facts pleaded in the amended statement of claim. If on those facts there is a chance that the plaintiffs might succeed, the claims made by the plaintiffs against Manheim as the moving party should not be dismissed, at least not at this stage.
[12] Manheim brings this motion stating that the plaintiffs have no reasonable cause of action as against it because, even if the Audi Q7 was stolen as a result of its negligence, as a car lot operator it cannot be held liable for the damages claimed in this action as it was not reasonably foreseeable that the car thief would operate the stolen car in a negligent manner and cause damage to others ten days later for the reasons expressed in Spagnolo v. Margesson’s Sports Ltd., [1983] O.J. No. 2956. In that case, the Ontario Court of Appeal considered the set of facts from a trial decision involving a motor vehicle stolen from a parking lot in downtown Toronto where the keys had been left in that vehicle. The motor vehicle was involved in an accident six days later. The parties injured in the accident brought an action against several defendants, including the owner of the parking lot (Y & R Properties). The parking lot owner was found liable at trial. The Court of Appeal set aside the judgment against Y & R Properties on the basis that it was not reasonably foreseeable for the Y & R Properties that the thief would drive the stolen car in a negligent fashion six days after the theft. Zuber, J.A., writing for the panel, framed the issue this way:
7 In any event, as this court has observed on another occasion, the term "reasonably foreseeable" contains more policy than fact as courts struggle with the issue of remoteness of damage:
see Kienzle v. Stringer (1981), 1981 1851 (ON CA), 35 O.R. (2d) 85, 130 D.L.R. (3d) 272, 21 R.P.R. 44.
8 A particular difficulty in this case arises from the time involved. The accident in which the plaintiffs suffered damage did not occur until six days after the theft. Even if it could be said that the negligent parking-lot operator should reasonably foresee damage to others at the hands of the negligent thief, how long does this responsibility endure or, put another way, how far should reasonable foreseeability extend?
9 Without doubt, the position of Y & R Properties Limited would be made more difficult if the damage to the plaintiffs had occurred in the course of the theft or even in the course of the immediate flight therefrom. It would be easier to argue that damage to third parties in these circumstances is reasonably foreseeable as an ordinary consequence of the nervousness and panic which may accompany the theft. That kind of case, however, must await another day for decision. In the case at hand we are far beyond that hypothetical case. I cannot conclude that the likelihood of damage to third parties six days after the theft is any greater with a thief at the wheel of the vehicle than with a driver lawfully in possession. …
[13] Counsel for Manheim argues that the existence of a cause of action against Manheim turns on one issue, and that one issue requires the court to answer two questions under Spagnolo. First, does Spagnolo stand for a general principle of law that it is not reasonably foreseeable for a car lot owner that a thief who steals a car from that car lot would drive that stolen car negligently ten days later? Second, are the deemed facts from the amended statement of claim sufficient to meet the exception that it is reasonably foreseeable for the car lot owner that the thief might cause damage to third parties “as an ordinary consequence of nervousness and panic which may accompany the theft”?
[14] The responding parties counter that it is not plain and obvious on the pleading that the plaintiffs action cannot succeed against Manheim. Even if Spagnolo raises issues of foreseeability for the plaintiffs, the responding parties argue that the exception expressed by the Court of Appeal is not exhaustive of facts and circumstances that could include the element of foreseeability as a component of the negligence alleged against Manheim in the amended statement of claim. Even if the exception set out in Spagnolo is exhaustive, the responding parties rely on the deemed facts set out in the amended statement of claim to show that it is not plain and obvious on a generous reading that the exception will not apply to the alleged facts to make Manheim liable to the plaintiffs for damages.
[15] In this action, the plaintiffs have pleaded in paragraph 8 of the amended statement of claim that Manheim was at all material times in the possession, care and control and/or was the owner of the stolen Audi that the defendant Medina was driving when the collision occurred. I take paragraph 8 to mean that the plaintiffs hold Manheim liable for the negligence of any person driving the Audi Q7 with its consent under section 192 of the Highway Traffic Act, or as a bailee having duties at law to keep the motor vehicle in its care from being stolen.
[16] Paragraph 15 of the amended statement of claim then alleges that:
On July 6, 2012, the plaintiffs, Pritpal and Gurdial Matharu were passengers in the Sandhu vehicle when they were rear-ended by Herberth Medina while he was operating the stolen Audi vehicle, on the highway 407 eastbound near the Pine Valley on-ramp in Vaughan.
[17] The amended statement of claim goes on to allege that the collision and resulting injuries were caused to the plaintiffs solely by the negligence of the defendants. These allegations of negligence were particularized in paragraphs 16 (a) to (z) of the initial statement of claim. In the amended statement of claim, the following two paragraphs were added with respect to facts alleged as against the defendant Medina:
(a) Herberth Medina stole the Audi vehicle from Manheim on June 26, 2012.
(b) Herberth Medina was dangerously driving a stolen vehicle, and may have been evading the police in the moments immediately preceding the accident.
[18] Subparagraphs (w) to (bb) were amended to delete Calgary Auto as a defendant to which the allegations in those paragraphs were directed, and subparagraphs 16(cc) to (gg) were added to the amended statement claim with respect to Manheim. Those latter subparagraphs read as follows:
(cc) Manheim was aware or should have been aware that the negligent driver, Herberth Medina, may have previously stolen another vehicle from their lot on or about June 17, 2012;
(dd) Manheim was aware or should have been aware that many other vehicles had previously been stolen from their lot, including two vehicles on June 17, 2012, and three vehicles on June 26, 2012, and yet still failed to make proper steps to prevent deaths from the law;
(ee) Manheim was aware or should have been aware that vehicles which had previously been stolen from their lot had been disproportionately involved in collisions;
(ff) Manheim was aware should have been aware most of these collisions where the fault of the drivers of the stolen vehicle;
(gg) Manheim was aware or should have been aware that some of these collisions resulted in injuries to drivers and passengers on the road;
[19] There is no allegation in the amended statement of claim that the defendant Medina was operating the Audi at the time of the collision with Manheim’s consent and therefore Manheim cannot be liable under section 192(1) and (6) of the Highway Traffic Act. In fact, the plaintiff alleges the car was stolen. Manheim argues the issues of reasonable foreseeability from its role as the operator of a car lot rather than a motor vehicle owner. The particulars of Manheim’s negligence in this regard are set out and assumed to be proven for the purposes of this motion in subparagraphs (w) to (dd) of the amended statement of claim. The sufficiency of these allegations as pleaded are not challenged on this part of the motion.
[20] Manheim’s argument is principally that foreseeability is an essential element in the allegation of negligence against it and that it was not reasonably foreseeable to Manheim that the thief would cause an accident and damage to a third-party ten days later even if proper precautions and protocols were not in place to prevent the theft. Manheim argues that the authorities have consistently held that the propensity of a thief to drive a motor vehicle negligently, and to cause damage to third parties a number of days after the theft is not any greater than a driver in lawful possession of that motor vehicle: Spagnolo, supra, at para. 9, and Aldus v. Belair, [1992] O.J. No. 3908.
[21] The court in Spagnolo considered the evidence given at trial by the superintendent of insurance that stolen vehicles were more likely to be damaged than those that were not stolen. However, it was not apparent from the evidence given by the superintendent that this increased incidence of damage to stolen vehicles involved an increase of damage to third parties, or as to when such damage occurs. The Court of Appeal therefore found that the evidence from the superintendent of insurance did not support the conclusion that “a car driven by a thief is more likely to cause damage to others than a vehicle driven by someone lawfully in possession.”
[22] In my respectful view, the evidence of the superintendent of insurance in Spagnolo was pivotal to the conclusions reached on appeal. This evidence was the foundation of Justice Zuber’s analysis on what was reasonably foreseeable on the part of the parking lot owner. While the binding nature of the decision on cases involving the same factual components is undeniable, it may be another matter to consider whether Justice Zuber’s words in paragraph 8 and 9 of Spagnolo set out a principle of general application for the law on reasonable foreseeability in all car theft cases. This is particularly so given the scenarios described by the court in paragraph 9 as possible exceptions.
[23] No evidence of a statistical nature from the superintendent of insurance or from any other source was before me on this motion, nor could there be under Rule 21.01(1)(b). That alone distinguishes Spagnolo from this case.
[24] I am of the view that Justice Zuber did not intend to provide only one exception to the foreseeability issue in Spagnolo. Justice Zuber used the additional words in paragraph 9 “would be made more difficult” and “it would be easier to argue” to illustrate hypothetical scenarios that might support a different result. These qualifications are wide enough to suggest more than one possibility or set of facts where the court could find it reasonable foreseeable to a car lot operator that a car thief could subsequently drive a motor vehicle stolen from a car lot in a negligent manner and cause damage to others.
[25] In the event that I am wrong in my interpretation that Spagnolo provides more of an approach than a principle, or that it is subject to more than one exception, I am of the view that paragraph 16(b) in the amended statement claim raises a novel aspect to that exception. By that subparagraph, the plaintiffs plead that the defendant Medina was driving the stolen Audi in a dangerous manner, and may have been evading the police in the moments immediately preceding the accident. The pleading is broad enough to encompass the concepts that the defendant Medina was driving dangerously and that he may have been evading police just prior to the accident in order to link them together. Linked in that way, the allegations could be taken that the defendant Medina was driving the stolen Audi in a dangerous manner because he may have been evading police at the time.
[26] Counsel for Manheim cited Moore v. Fanning, 1987 4168 (ON SC), [1987] O.J. No. 620 to show how Spagnolo was applied in a case involving the police giving chase to the thief driving a stolen car. In Moore, Justice Trainor found as a fact that the thief was driving the stolen vehicle in a deliberate and wilful manner. The thief in Moore was bound and determined to take the risk of running red lights on the night in question. The police pursuit did not cause the thief to run the last red light, and was not the proximate cause of the accident. The court found as a fact that the police pursuit did not cause or contribute to the thief’s reckless driving.
[27] Moore v. Fanning can be distinguished from the deemed facts in the amended statement of claim. I draw the inference from paragraph 16(b) that the detection of a police presence may have caused the defendant Medina to take evasive action resulting in the negligent operation of the stolen Audi immediately before the accident. In Moore v. Fanning, it would appear the presence of police did not deter the thief or work an effect on his manner of driving.
[28] It is early days in this action. There may be evidence forthcoming from either the defendant Medina himself, another witness, or from the Ontario Provincial Police as to what facts occurred immediately preceding the collision between the stolen Audi and the Sandhu vehicle. The presence of a police vehicle suggested by paragraph 16(b) of the amended statement claim introduces a causal connection between the deemed fact the defendant Medina was driving a stolen car and the negligent manner of his driving to cause an accident. It is at least arguable that it should have been reasonably foreseeable to Manheim that any encounter the car thief might have with police could cause nervousness and panic on the part of the thief because he would know he was driving a stolen car and knowing that it had likely been reported as stolen. It is arguable that the same pulse would quicken, the same adrenaline would rush, and the same nervous or panic reaction would affect the thief and his manner of driving upon the prospect of apprehension by the police regardless of the number of intervening days. For these reasons, I find the words “which may accompany the theft” are not necessarily temporal in nature.
[29] In Kalogeropoulos v. Ottawa (City of), [1996] O.J. No. 3449, the court held that nervousness and panic may be visited upon a thief driving a stolen motor vehicle in fear of apprehension. It is the nervousness and panic that causes the propensity of the thief to drive dangerously. Justice Morin found on the evidence in Kalogeropoulos that the defendant who was the lawful driver of the city vehicle was liable for leaving that vehicle running and unattended outside a coffee shop at three o’clock in the morning. The likelihood that the theft would be observed by patrons in the coffee shop and that a chase would ensue which would cause nervousness and perhaps panic to the thief was found to make it reasonably foreseeable to the lawful driver and his employer and vehicle owner that the thief could cause damage to others by his driving. The court concluded on those facts that the lawful driver by his negligence of leaving the truck unlocked and unattended with the engine running created a chain of events that led to a collision. That the lawful driver knew or ought to have known there was a real and substantial risk of damage to others if the truck was stolen because of his negligence resulted in the realization of one scenario contemplated in Spagnolo.
[30] Counsel for Manheim relies upon the decision of Justice Poulin in Aldus v. Belair. That case was distinguished on the facts in Kalogeropoulos because the lawful driver in that case had no reason to suspect that the would be thief would steal the car, there was good reason to leave the car running with the would be thief in it, and the subsequent accident occurred some distance from the place the car was stolen to find no liability against the lawful driver. On the amended statement of claim before the court, I also find Aldus v. Belair distinguishable on its facts. Even though the collision here occurred some distance away from the scene of the theft, there is no good reason for the deemed failure on the part of Manheim to prevent the defendant Medina from stealing the Audi Q7 that created the chain of events leading to the damage caused to the plaintiffs.
[31] On a generous reading of the allegations in paragraphs 15 and 16 of the amended statement of claim in this action, the facts stated to be capable of proof for the purposes of this motion could well fit into an exception under Spagnolo. Allowing for deficiencies to the pleading, I read the amended statement of claim to allege that Manhiem’s failure to take steps to prevent the theft of automobiles from its car lot included a deemed fact or inference that Manheim could reasonably foresee that a thief would suffer nervousness and panic as an ordinary consequence of operating that stolen vehicle when evading police. That nervousness or panic would increase the thief’s propensity to drive in a dangerous or negligent manner and therefore increase the likelihood to cause damage to a third party as a result.
[32] The allegations made in the amended statement of claim against the defendant Medina are also to be taken to be true or capable of being proved for the purposes of the motion. The plaintiffs plead the application of the Negligence Act in paragraphs 14, 16 and 24 of the amended statement of claim as allegations of fault or neglect are made against two or more persons in the action. Section 1 of the Negligence Act reads as follows:
Extent of liability, remedy over
- Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent. R.S.O. 1990, c. N.1, s. 1.
[33] The deemed facts, including but not limited to those set out in paragraph 15 and subparagraphs 16(a) to (o) of the amended statement of claim, are sufficient to disclose a reasonable cause of action against him in negligence. These allegations impute a foreseeability on his part that he would cause or contribute to the damages suffered by the plaintiffs as a result of that negligence. Those deemed facts as against the defendant Medina, coincident with the foreseeability of the defendant Manheim on the basis of the pleadings as against Manheim, are sufficient to satisfy me that the amended statement of claim makes out a reasonable cause of action against Manheim.
[34] The amended statement of claim contains allegations of fact that accommodate claims against both Manheim and the defendant Medina in negligence. The Negligence Act provides the court with the authority to apportion fault if and when negligence is found, or to make a finding of liability on a joint and several basis. Manheim is a necessary party to enable the trial judge to make findings of fact if the necessary evidence is given, and to exercise this authority to adjudicate the claim of the plaintiffs on the merits.
[35] Even if I am wrong in reading a reasonable cause of action into the allegations in the amended statement of claim pleaded as against Manheim or as against the defendant Medina or as against Manheim and the defendant Medina read together, or in my interpretation on the issue of reasonable foreseeability discussed in the Spagnolo case and any exception to that issue, I note that all of the decisions cited to me by the moving party are decisions or appeals from decisions made after a trial on the merits. In each case, the parties and the court had the benefit of the trial process. In those cases, the parties had made all amendments to the pleadings, received full disclosure from each other, and conducted examinations for discovery. The court heard the evidence of the parties and all witnesses to make its determination as to the reasonable foreseeability of the defendant in Manheim’s position. No authority has been given to me where a conclusive determination has been made that the plaintiffs have no reasonable cause of action as against a particular defendant in a car theft case at the pleading stage.
[36] The Divisional Court in MacDonald v. Ontario Hydro considered Rule 21.01(1)(b) to be discretionary in nature. I find this motion to be as premature in its timing as the motion in MacDonald was delayed. I am therefore exercising any residual discretion I may have under Rule 21.01(1)(b) to conclude that it would be unjust from a procedural fairness point of view to dismiss the amended statement of claim against Manheim.
Motion to Strike – Rules 21.01(3) and 25.11
[37] In the alternative, Manheim brings the motion under Rule 21.01(3) and Rule 25.11 to strike subparagraphs 16(bb) to (gg) as frivolous and vexatious pleadings. Manheim argues that these subparagraphs are directed to an alleged duty of care that Manheim owed to the plaintiffs, which goes to the liability issue against Manheim. Counsel for Manheim argues that on this ground the court must separate the facts alleged in the amended statement of claim against Manheim from the conclusions of fact or law that those subparagraphs contain.
[38] Rule 21.01(3)(d) provides as follows:
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
[39] Similarly, Rule 25.11 states that:
STRIKING OUT A PLEADING OR OTHER DOCUMENT
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(b) is scandalous, frivolous or vexatious; or
[40] It is significant to observe that Manheim does not rely upon that part of Rule 21.01(3) or Rule 25.11 to argue that the plaintiffs’ amendments to the statement of claim are an abuse of process of the court. Therefore, I have not considered that ground for my decision on this part of the motion.
[41] When looking at a pleading under Rule 21.01 to determine if the plaintiff has a reasonable cause of action against any defendant or if the pleading contains the necessary elements for the cause of action pleaded, the rules of pleadings apply, including but not limited to Rule 25.06(1) that reads:
25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for his or her claim or defence, but not the evidence by which those facts are to be proved.
[42] Manheim argues that it was improper for the plaintiffs to amend the statement of claim to inoculate themselves from any challenge under Rule 21 based on the pleading at the time. The affidavit material filed on this part of the motion shows that Mr. Wong wrote a letter on July 5, 2013 to Mr. Bhasin, counsel for the plaintiffs requesting him to amend the statement of claim to add the alleged date of the theft in question (June 26, 2012). That amendment was requested by Mr. Wong to suit his purposes, namely, to set up a motion under Rule 21. Counsel for the plaintiffs took the opportunity upon making that amendment to the statement of claim to have subparagraphs 16(a) and (b), and also to add paragraphs (aa) to (gg) at the same time. These amendments were allegations counsel for the plaintiffs thought necessary to make in order to advance the case and likely to protect the plaintiffs from attack.
[43] The amendments made by the plaintiffs to the statement of claim in the face of a threatened Rule 21 motion must be viewed within the overall principles under the Rules of Civil Procedure. Rule 1.04 sets out the general principle that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. In the absence of an argument that the amendment to add those additional subparagraphs to paragraph 16 of the statement of claim constituted an abuse of process, Manheim cannot now be heard to complain that the plaintiffs amended the statement claim when Manheim’s own counsel requested the plaintiffs to make one of those amendments.
[44] Mr. Bhasin, counsel for the plaintiffs wrote to Mr. Wong on July 12, 2013 to give him notice that he proposed to amend the statement of claim to allege at least that “previous vehicles had been stolen from Manheim auto, several of which had been involved in serious accidents”. In the same letter he asked 31 questions, two which he required Mr. want to answer expeditiously and the others he was content to explore in due course. Mr. Wong therefore had notice of what information the plaintiffs lacked as of that date, and the basis for making the further amendments to the amended statement claim. It follows that the plaintiffs would plead as broadly as they did to obtain full disclosure and to define the scope of examinations for discovery to seek that information.
[45] Manheim argues that those allegations of fact contained in paragraphs 16(ee), (ff) and (gg) are bald conclusions without the material facts on which they are based, and are therefore improper pleadings. Manheim argues that they are not pleadings of material fact and therefore fall outside of the requirements for pleading material facts set out in Rule 25.06(1). In Senechal v. Muskoka, [2003] O.J. No. 885, the court held that any pleading that demonstrates a complete absence of material facts will be declared to be frivolous or vexatious. Further, pleadings that are irrelevant, argumentative, inserted for colour or that constitute bare allegations should be struck out as scandalous. The allegations contained in paragraphs 16(ee), (ff) and (gg) are conclusions the plaintiffs seek to prove, and not statements of material fact as required by Rule 25.06(1) for pleadings.
[46] Manheim argues in the alternative that the amended statement of claim contains allegations of similar fact evidence that should be struck. The court was referred to the cases of Bennett v. Robert Simon Construction, [1977] O.J. No. 2377 and Amhil Enterprises Inc. v. Seawright Electric Ltd., [2010] O.J. No. 51702 as authority that the pleadings of a plaintiff ought not to cast the defendants into a negative light without adding to the material facts pleaded in support of the cause of action. A pleading alleging similar facts have occurred relevant to the defendant should not stand if they are of little probative value to the cause of action, and allegations of prior negligence of a party is not proof of its negligence in the action before the court.
[47] Applying these principles, I find that the conclusions expressed in subparagraphs (ff) and (gg) flow from the allegation in (ee) that Manheim was aware or should have been aware that vehicles which had been previously been stolen from their lot had been disproportionately involved in collisions is speculative in nature. They are nothing more than bald allegations of similar facts that are frivolous or vexatious. Accordingly, subparagraphs 16(ee), (ff) and (gg) must be struck from the amended statement of claim.
[48] For these reasons, the motion of the defendant Manheim Auto Auctions Company is therefore dismissed except for an order striking out subparagraphs 16(ee), (ff) and (gg) of the amended statement of claim.
[49] If the parties cannot agree on costs, I would invite those parties seeking costs to make submissions to me by fax at 905-456-4834 by June 23, 2014 consisting of no more than three pages each, and for the defendant Manheim Auto Auctions Company to make submissions to me by fax consisting of no more than six pages by June 30, 2014.
EMERY J
Released: June 9, 2014
COURT FILE NO.: CV-13-1454-00
DATE: 2014 06 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PRITPAL MATHARU and GURDIAL MATHARU and KAMALJEET P[ARMAR and SEEMA BHATIA and KULVINDER VIRDEE and DALJEET MATHARU
Plaintiffs
- and -
MANHEIM AUCTIONS, INC. and MANHEIM AUTO AUCTIONS COMPANY and CALGARY AUTO CONNECTION LTD. and GURBAX SANDHU and HERBERTH MEDINA and ALLSTATE INSURANCE COMPANY
Defendants
REASONS FOR Decision
EMERY J
Released: June 9, 2014