COURT FILE NO.: 12-CV-451025
DATE: January 17, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT SCHULZ, ADAM HUFFMAN, WENDY KERUZORE, LISA KENNY, STEVEN BAYLEY, BARBARA BAYLEY, WARREN BAYLEY and the ESTATE OF KIMBERLEY SCHULZ, deceased, by her Trustee ROBERT SCHULZ
Plaintiffs
– and –
JARRETT JOHNS and THE CORPORATON OF THE CITY OF MISSISSAUGA
Defendants
Jerome R. Morse and Lionel J. Tupman for the Plaintiffs
Susanne Ilic for the Defendants
HEARD: January 14, 2014
PERELL, J.
REASONS FOR DECISION
[1] Relying on s. 74 of the Fire Prevention and Protection Act, 1997, S.O. 1997, c. 4 and pursuant to rules 21.01 (1)(a) and 21.01 (1)(b) of the Rules of Civil Procedure, the Defendants Jarrett Johns and the Corporation of the City of Mississauga move for an order dismissing the action against Mr. Johns as statute-barred and as not showing a reasonable cause of action.
[2] The Plaintiffs bring a cross-motion for leave to amend their Statement of Claim, which I shall immediately grant, and then I shall determine whether the Plaintiffs’ Amended Statement of Claim withstands the attack made on it by the Defendants.
[3] Mr. Johns is a firefighter employed by the City of Mississauga, and on March 6, 2011, he was driving a fire truck to an emergency. Unfortunately, the fire truck struck an automobile driven by Kimberley Schulz. She died as a result of the accident. In this action, Mrs. Schulz’s Estate and her family sue Mr. Johns and the City of Mississauga.
[4] Mr. Johns is sued for negligence. The Amended Statement of Claim does not allege that he was acting outside of his employment. It does not allege that he acted fraudulently or dishonestly. It does, however, allege that the accident was caused by Mr. John’s negligence, breach of duty, and his bad faith. Paragraph 10 of the Amended Statement of Claim states:
- The accident and resulting damages were caused by the negligence and breach of duty of the defendants, the particulars of which are as follows:
(a) As against the defendant Johns, for whose negligence the City of Mississauga is in law responsible:
(i) he drove the Mississauga Fire Truck into Kimberley’s car;
(ii) he failed to activate the Mississauga Fire Truck’s lights or sirens;
(iii) he failed to keep a proper lookout;
(iv) he was operating the Mississauga Fire Truck at an excessive rate of speed;
(v) he failed to slow down when the approached the intersection;
(vii) he failed to ensure the intersection was clear before proceeding into the intersection;
(viii) he drove dangerously and without regard for the safety of Kimberley Schulz;
(ix) he was an incompetent driver on the occasion in question;
(x) he failed to control the motor vehicle;
(xi) on the occasion in question his ability to operate the motor vehicle was impaired by drugs, alcohol, fatigue, illness, injury or combination of these;
(xii) he failed to follow the rules of the road;
(xiii) he placed Kimberley in a situation of danger from which she could not extricate herself; and
(xiv) in doing all of the foregoing acts, he acted in bad faith.
[5] The Defendants have delivered a Statement of Defence. In their pleading, they deny any negligence and rather allege that Mrs. Schulz’s own negligence was the cause of the unfortunate accident. The Defendants plead that the action is statute-barred against Mr. Johns pursuant to s.74 of the Fire Prevention and Protection Act, 1997.
[6] Section 74 of the Fire Prevention and Protection Act, 1997, states:
Protection from personal liability
- (1) No action or other proceeding for damages shall be instituted against a firefighter, a fire co-ordinator, a community fire safety officer, a member or employee of the Fire Safety Commission, an assistant to the Fire Marshal, the Deputy Fire Marshal, the Fire Marshal, or a person acting under his or her authority, for any act done in good faith in the execution or intended execution of his or her power or duty or for any alleged neglect or default in the execution in good faith of his or her power or duty.
Crown, municipality not relieved of liability
(2) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown or a municipal corporation of liability in respect of a tort committed by a person referred to in subsection (1) to which they would otherwise be subject.
[7] It is to be noted that the Defendants do not assert in their Statement of Defence that the Plaintiffs’ claim is legally untenable. Rather, after they had delivered their pleading, the Defendants asked the Plaintiffs to let Mr. Johns out of the action because of s. 74 of the Fire Prevention and Protection Act. The Defendants argued that there was no evidence of bad faith pleaded in the original Statement of Claim and, therefore, the action should be discontinued against Mr. Johns.
[8] The Plaintiffs’ response was to demand the delivery of Mr. John’s affidavit of documents so that they could investigate the good or bad faith of Mr. Johns’ conduct. The Defendants, however, refused to deliver an affidavit of documents for this purpose, and rather they threatened a summary judgment motion. However, that tactic was not pursued, and instead, the Defendants brought the motion now before the court pursuant to Rule 21.
[9] I intend to deal with the Defendants’ motion on its merits, but I wish to point out that their motion could have been dismissed because they took the further step or fresh step of delivering a pleading rather than bringing a motion to have the original Statement of Claim struck out.
[10] On this point, I agree with the analysis of Justice D. Brown in Bell v. Booth Centennial Healthcare Line Services, where he stated at paras. 5-6:
Rule 21.02 requires that a motion under Rule 21 be made “promptly”. Rule 2.02, the successor to the “fresh step” rule, requires that a motion to attack a document for irregularity shall not be made, without leave of the court, “if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity”. An allegation that a statement of claim fails to disclose a cause of action is an allegation that the claim is irregular. ….
The time for bringing a motion under Rule 21.01(1)(b) to strike a statement of claim as disclosing no cause of action is before the defendant pleads over. In my view the filing of a statement of defence signifies that the claim contains recognizable causes of action to which the defendant can respond and should prevent a defendant from complaining subsequently about an irregularity in the statement of claim. The defendants’ technique in this case of including in its Statement of Defence … assertions that portions of Mr. Bell’s Statement of Claim failed to plead reasonable causes of action is a practice that should be discouraged. Once pleadings closed in this action on July 19, 2006, the parties should have been ready to proceed to the discovery phase of the proceeding; instead, they remain mired in a pleadings motion. Such an approach to managing a case does nothing to promote the overall policy objectives of the Rules of Civil Procedure “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: Rule 1.04(1).
See also: Polytainers Inc. v. Armstrong, 2011 ONSC 4807; Tribar Industries Inc. v. KPMG LLP, 2009 9747 (ON SC).
[11] I appreciate that leave can be granted to bring the motion to strike the statement of claim notwithstanding that the defendant has delivered a statement of defence, and I appreciate that there is a line of authorities that suggest that leave is not necessary where the statement of defence expressly or implicitly disputes that a cause of action has been shown. See: Tancho-Defyrus (GP) Inc. v. Masotti, 2013 ONSC 2043; Lynch v. Westario Power Inc.; Deemar v. College of Veterinarians of Ontario; Seale & Associates Inc. v. Victor Aerospace Corp.; Markeljevic v. Financial Services Commission of Ontario.
[12] However, I agree with Justice Brown that the practice of delivering a statement of defence and then a rule 21.01 (1)(a) or (1)(b) motion should be discouraged.
[13] There is little to commend a snakes and ladders civil procedure that wastes time and costs by taking steps in an action that turn out to be unnecessary if the defendant is correct in his or her late-arriving challenge to the statement of claim. The case at bar demonstrates the point, the pleadings were closed in this case 19 months ago (in May 2012), and now the parties are embroiled in whether Mr. Johns should be put to the defence he has already delivered.
[14] In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 17-25, the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges and juries to focus their attention on claims with a reasonable chance of success. The efficiency of a rule 21 motion is enhanced if the motion to strike comes before and not after the pleadings have been closed.
[15] Nevertheless, in the case at bar, the Plaintiffs did not object to the Defendants’ late-arriving Rule 21 motion and, therefore, I shall address the motion on its merits.
[16] Where a defendant submits that the plaintiff’s pleading does not disclose a reasonable cause or action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim: Hunt v. Carey Canada, 1990 90 (SCC), [1990] 2 S.C.R. 959; Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.). Matters of law that are not fully settled should not be disposed of on a motion to strike: Dawson v. Rexcraft Storage & Warehouse Inc., supra, and the court's power to strike a claim is exercised only in the clearest cases: Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).
[17] In assessing the cause of action or the defence, no evidence is admissible and the court accepts the pleaded allegations of fact as proven, unless they are patently ridiculous or incapable of proof; A-G. Canada v. Inuit Tapirisat of Canada, 1980 21 (SCC), [1980] 2 S.C.R. 735; Canada v. Operation Dismantle Inc., 1985 74 (SCC), [1985] 1 S.C.R. 441; Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.); Folland v. Ontario (2003), 2003 52139 (ON CA), 64 O.R. (3d) 89 (C.A).
[18] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff: Johnson v. Adamson (1981), 1981 1667 (ON CA), 34 O.R. (2d) 236 (C.A.), leave to appeal to the S.C.C. refused (1982), 35 O.R. (2d) 64n.
[19] Generally speaking, the case law imposes a very low standard for the demonstration of a cause of action, which is to say that, conversely, it is very difficult for a defendant to show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed with the claim.
[20] In the case at bar, there are two reasons for dismissing the Defendants’ motion and for holding that it is not plain, obvious, and beyond doubt that the Plaintiffs cannot succeed in their action against Mr. Johns.
[21] The first reason for dismissing the Defendants’ motion was not argued, and it did not dawn on me until I was preparing these Reasons for Decision.
[22] The first reason is that s. 74 of the Fire Prevention and Protection Act is a purely a matter of defence; it is a matter for the defendant to prove, much like a limitation period defence. In other words, there is no cause of action for the bad faith conduct of a firefighter, rather the firefighter has a defence for good faith conduct in the execution or intended execution of his or her duties.
[23] Thus, the plaintiff sues for negligence, and the firefighter defends by showing that he or she was acting in good faith. Viewed in this light, it is plain and obvious that the Plaintiffs may succeed if Mr. John’s fails to prove his defence based on s. 74 of the Fire Prevention and Protection Act. The Defendants were thus correct in their initial thought that a motion for a summary judgment or a trial is the proper way that the application of s. 74 will be determined.
[24] The second reason for dismissing the Defendant’s motion was argued.
[25] The Plaintiffs argued that there is as yet no case law interpreting the meaning and application of s. 74 of the Fire Prevention and Protection Act and, therefore, it is not plain and obvious that some or all of the acts pleaded in the paragraph 10 of the Statement of Claim would establish a claim against Mr. Johns.
[26] Although I now think that the first reason is the doctrinally or the analytically more sound argument and the proper way to approach the application of s. 74, I agree with the Plaintiffs’ argument.
[27] Therefore, I dismiss the Defendants’ motion.
[28] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Plaintiffs’ submissions within 20 days of the Release of these Reasons for Decision followed by the Defendants’ submissions within a further 20 days.
Perell, J.
Released: January 17, 2014
COURT FILE NO.: 12-CV-451025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT SCHULZ, ADAM HUFFMAN, WENDY KERUZORE, LISA KENNY, STEVEN BAYLEY, BARBARA BAYLEY, WARREN BAYLEY and the ESTATE OF KIMBERLEY SCHULZ, deceased, by her Trustee ROBERT SCHULZ
Plaintiffs
‑ and ‑
JARRETT JOHNS and THE CORPORATON OF THE CITY OF MISSISSAUGA
Defendants
REASONS FOR DECISION
Perell, J.
Released: January 17, 2014.