COURT FILE NO.: CV-11-442307

DATE: 20140307

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICK WHITTY, RPR ENVIRONMENTAL INC., 1049585 ONTARIO INC. and 876947 ONTARIO LIMITED

Plaintiffs

– and –

EDWARD N. WELLS, EDWARD G. WELLS, BRADLEY MAY, RENZO BENOCCI, BRAD SIMPSON, MARK VANDERLAAN, PETER KENT, JOHN BAIRD, JIM PRENTICE, MANON BOMBARDIER, GORDON OWEN, SANDRA ANTONIANI, DIANA BALL, LUKE CAYLEY, ROB FORTIN, ERIN GILMER, JEFFREY GREEN, MELANIE GREGORICH, JULIE HORVATH, REBECCA HUEHN, ANNA LYN-KING, DOUGLAS LAING, DENISE MCGUIRE, JOHN MILLER, AMRICK SHERGILL, LORRAINE YOUNG and the ATTORNEY GENERAL OF CANADA

Defendants

Vilko Zbogar, for the Plaintiffs

Jacqueline Dais-Visca and Abigail Browne, for the Defendants Edward N. Wells, Edward G. Wells, Bradley May, Renzo Benocci, Brad Simpson, Mark Vanderlaan, Peter Kent, John Baird, Jim Prentice, Manon Bombardier, Gordon Owen, Diana Ball, Luke Cayley, Rob Fortin, Erin Gilmer, Jeffrey Green, Melanie Gregorich, Julie Horvath, Rebecca Huehn, Anna Lyn-King, Douglas Laing, Denise McGuire, John Miller, Amrick Shergill, a Lorraine Young and the Attorney General of Canada

John Evans, for the Defendant Sandra Antoniani

HEARD: December 16, 2013

t. mcewen j.

reasons for decision

introduction

[1] This matter has a long and complicated history. The plaintiffs, 876947 Ontario Limited (“876”), 1049585 Ontario Inc. (“104”) and RPR Environmental Inc. (“RPR”) are engaged in the business of hazardous waste disposal. They carry on business in Stoney Creek, Ontario. The plaintiff, Patrick Whitty (“Whitty”) is a director, officer and general manager of each of the companies.

[2] In or about 2005 to 2010, the Environmental Enforcement Directorate of Environment Canada (the “EC”) conducted a number of investigations into the plaintiffs’ business activities. The investigation surrounded suspected violations of the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations, SOR/2005-149 (the “regulations”).

[3] Pursuant to the investigations, two search warrants were obtained and executed by the EC against the plaintiffs. The first search warrant was carried out on August 9, 2007. The second search warrant was carried out on March 27, 2008.

[4] As a result of the EC’s investigation, numerous charges were laid against Whitty and RPR.

[5] On December 29, 2008, a notice was posted on an EC Environment Notifications webpage that erroneously stated that RPR had pleaded guilty in the Ontario Court of Justice to multiple counts of violating the regulations, amongst other things. Ultimately, RPR pleaded guilty to a single charge and received an absolute discharge in February 2009.

[6] In 2011, the plaintiffs discovered the existence of the aforementioned notice posted by the EC that included the false statements. The notice was removed from the EC website, but apparently was thereafter reposted.

[7] In or around January 2009, the staff at the EC allegedly attended the offices of various New York regulatory officials, and provided misleading information to those officials.

[8] As a result of the foregoing, 104 commenced 29 Small Claims Court actions against the Attorney General of Canada and various staff members of EC. Ultimately, the multitude of Small Claims Court actions were consolidated into three Small Claims Court actions. The plaintiffs brought a motion for, amongst other things, an order transferring the three Small Claims Court actions to the Superior Court of Justice and an order for consolidation.

[9] The defendants (the “Crown defendants”), with the exception of the defendant Sandra Antoniani (“Antoniani”), are represented by the Department of Justice.

[10] All of the defendants brought motions to dismiss or strike the plaintiffs’ action in this Court.

[11] The matter first proceeded before me on January 28, 2013. The parties have thereafter appeared before me on a number of occasions in an attempt to deal with the various pleadings and procedural issues that have arisen by virtue of the way 104 originally commenced its multitude of Small Claims Court actions and thereafter how the plaintiffs have pursued claims in this Court.

[12] As a result of the agreement of counsel and my earlier orders, the matter now stands as follows:

• The Small Claims Court actions have now been transferred to the Superior Court without any restriction on the monetary amount that can be claimed by the plaintiffs as per the Small Claims Court.

• The parties have agreed that instead of proceeding with the existing Amended Statement of Claim in the Superior Court, which bears Court File No. CV-11-442307, the plaintiffs will proceed with four separate Statements of Claim.

• The four Statements of Claim will deal with the first search warrant (“trigger 1”), the second search warrant (“trigger 2”), the New York slander action (“trigger 3”) and the website defamation action (“trigger 4”).

[13] After the structure was implemented with respect to how the causes of action will be advanced, the plaintiffs brought a motion on December 16, 2013 for leave to amend the existing Amended Statement of Claim into four Statements of Claim.

[14] I will deal with each in turn.

trigger 1 – the first search warrant of August 9, 2007

[15] Only the Crown defendants are involved in this pleadings dispute. The underlying Small Claims Court action 4755/09 was commenced within the two-year limitation period. New parties were added to the proposed Amended Statement of Claim in the Superior Court bearing Court File No. CV-13-488119. The Crown defendants do not take issue with the addition of parties. The Crown defendants do submit, however, that the claims for negligence, special, exemplary and punitive damages, as well as the claim for a breach of s. 8 of the Charter, were not contained in the underlying Small Claims Court claim and are therefore statute-barred.

[16] Sections 4, 5 and 21 of the Limitations Act, 2002, S.O. 2002, c. 24, provide as follows:

Definitions

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

[17] Rule 26 of the Rules of Civil Procedure governs the amending of pleading. Rule 26.01 states 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.

WHEN AMENDMENTS MAY BE MADE

26.01 A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or

(c) with leave of the court.

[18] Section 4 of the Limitations Act prohibits a party from commencing a proceeding in respect of a claim after the second anniversary of the day on which the claim was discovered.

[19] So long as the plaintiff has pleaded the material facts underlying his or her claim, an amended statement of claim adding an “alternative theory of liability” based on those allegations of fact is permissible under the Limitations Act: see Forjani v. Vali, 2010 ONSC 2225, at para. 45. Although such an amendment is not statute-barred by the Limitations Act, any amended pleading would still be subject to r. 26.01, which prohibits an amendment where prejudice would result that cannot be compensated for by costs or an adjournment.

[20] The Court of Appeal for Ontario recently dealt with this issue in Rausch v. Pickering (City), 2013 ONCA 740. The court held that the plaintiff’s original statement of claim, although not specifically pleading negligence, contained material facts necessary to support such a claim: see paras. 100-103. It further held that a court may ask itself whether the original pleadings contain the facts necessary to support the “alternative theory of liability” in the proposed amended claim.

[21] In Rausch, the court cited 1309489 Ontario Inc. v. BMO Bank of Montreal, et al, 2011 ONSC 5505 with approval. In BMO, Justice Lauwers (as he was then) observed, at para. 24, that when it is alleged that amendments raise a new, time-barred cause of action, the court should consider the constituent elements of the alleged new cause of action to determine whether the facts as originally pleaded, or as better particularized in the proposed new pleadings, could technically sustain that cause of action. Lauwers J. remarked, at paras. 27-28, that the defendant is entitled to have notice of the factual matrix out of which the claim for relief arises; he characterized this as whether the defendant knows whether the “litigation finger” is pointed at it. Lauwers J. also stated that when deciding Limitations Act questions, courts should not take a narrow approach to the issue, but rather should lean toward ensuring that a cause of action be decided on the merits rather than defeated on technical grounds: see paras. 21-22.

[22] Similarly, in Rausch, Epstein J.A. reaffirmed the principle that pleadings are to be construed as generously as possible with a view to accommodating any adequacies in the form of the allegations due to drafting deficiencies. In determining whether pleadings disclose a cause of action, the court must focus on the substance, not the form. In fact, the court stated that even if the plaintiff does not explicitly set out the technical cause of action, if the facts as pleaded implicitly advance such a claim, the court ought not strike the pleadings: see paras. 94-95. In Boyes Homes Inc. v. Payne, 2013 ONSC 1056, Wood J. encouraged a similar approach, at paras. 21-26.

[23] Other jurisprudence also suggests that amending pleadings to include additional heads of damage after the expiration of the limitation period is permissible so long as the material facts supporting the damages were pleaded in time. Courts have held that damages are a remedy, not a cause of action: see Dimartino v. Gacek, 2010 ONSC 2124; and Shubaly v. Coachman Insurance, 2012 ONSC 4951, 112 O.R. (3d) 620.

[24] Insofar as the claims in dispute are concerned I will deal with each one in turn.

[25] First, I allow the claims for special, exemplary and punitive damages. Based on the above-noted jurisprudence, these claims can be brought so long as the material facts supporting the damage were pleaded in time. That did occur in this case and accordingly, since damages are a remedy and not a cause of action, they ought to be allowed.

[26] Second, insofar as the claim for negligence is concerned, I would allow it based on the pleadings in the original Small Claims Court action. In my view, the plaintiff pleaded the material facts underlying its claim in negligence. The pleadings are far from perfect, but the plaintiff was self-represented. Based on the finding in Rausch that pleadings are to be construed as generously as possible with a view to accommodating inadequacies, a pleading in negligence ought to be allowed. I am also mindful of the comment of Lauwers J. in BMO wherein he stated that a cause of action ought to be decided on the merits rather than defeated on technical grounds.

[27] Third, insofar as the claim for breach of s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) is concerned, I find that the factual matrix established in the plaintiff’s Small Claims Court pleadings 4755/09 supports the alternative theory of liability that the Attorney General of Canada breached the plaintiff’s rights against unreasonable search and seizure under s. 8 of Charter. In Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, the Supreme Court held that s. 24(1) of the Charter permits claimants to pursue damages based on a breach of their Charter rights.

[28] In Ward, the court established that in order to establish damages under s. 24(1), a claimant must demonstrate that: (1) his or her Charter rights were breached; and (2) damages are a just and appropriate remedy, having regard to the related functions of compensation, vindication of the right in question and/or deterrence of future breaches: see paras. 23-31.

[29] Section 8 of the Charter guarantees a right to be secure against unreasonable search and seizure. The section protects an individual’s reasonable expectation of privacy: see Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. Moreover, the Supreme Court has held that prior authorization of searches is a “cornerstone of our search and seizure law”. Even where authorities have obtained a warrant, they must execute the search in a reasonable manner: see R. v. Vu, 2013 SCC 60, at paras. 46, 61.

[30] In the Small Claims pleadings, the plaintiffs allege that EC officials seized materials beyond the scope of the warrant, did not allow the plaintiffs to identify or log seized materials and named the wrong company on the warrant. In other words, they allege that aspects of the search were either not authorized by the warrant or not conducted reasonably.

[31] Accordingly, I find that 104 established a factual matrix in its original statement of claim supporting an allegation that its right against unreasonable search or seizure was breached. The plaintiffs’ proposal to amend their statement of claim to include s. 8 Charter breaches is therefore granted.

[32] In conclusion, I allow the above claims sought by the plaintiffs.

trigger 2 – the second search warrant of march 27, 2008

[33] Generally speaking, Trigger 2 refers to allegations that the plaintiff argues gave rise to two different claims. First, the plaintiffs allege that various members of the EC conducted a tortious search of their premises in March 2008. In response, the plaintiffs issued the underlying Small Claims Court action 6826/10 (“6286/10) in 2010. It is not disputed that this claim was commenced in time. Second, the plaintiffs further allege that they later discovered in July 2010 that this search was undertaken for an improper purpose, and involved the participation of parties of which they had previously been unaware. Accordingly, the plaintiffs issued Statement of Claim bearing Superior Court File No. CV-11-442307 (“CV-11-442307”) in December 2011.

[34] In essence, 6826/10 sets out the following:

• That the plaintiff is 104;

• That the plaintiff is seeking compensation from the defendants the Attorney General of Canada, Amrick Shergill (“Shergill”), Diana Ball (“Ball”), Doug Laing (“Laing”), Edward Nicholas Wells (“EN Wells”), Edwards Glenn Wells (“EG Wells”), John Miller (“Miller”), Julie Horvath (“Horvath”), Luke Cayley (“Cayley”), Mark Vanderlaan (“Vanderlaan”), Melanie Gregorich (“Gregorich”), Rebecca Huehn (“Huehn”), Rob Fortin (“Fortin”), and Erin Gilmer (“Gilmer”);

• On March 27, 2008, Environment Canada’s “enforcement division” entered 104’s premises with a search warrant;

• The warrant named RPR, a distinct entity from 104;

• EC officials did not inform the Justice of the Peace (the “JP”) that they had already executed a similar warrant in 2007. This may have affected his decision to sign the warrant;

• EC illegally brought a locksmith without permission from the JP, to illegally gain access to rooms and file storage. This nullified the validity of the materials seized;

• Exact copies of the documents listed in the warrant were already in the possession of EC;

• Sensitive and privileged information (e.g. solicitor-client communications) were examined;

• Other documentation was removed and not properly logged by EC;

• The officers did not apply the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (“CEPA”) in a fair and predictable manner, as mandated by the statute;

• Contrary to s. 14.4 of CEPA, the investigators did not use the enforcement tool of a “warning”, as is appropriate for matters of minimal threat to the environment or human health; and

• The search caused significant economic damage to “RPR”.

[35] CV-11-442307 made a number of additional allegations involving several additional parties; namely May, Green and Antoniani. It also added the plaintiff 876, RPR and Whitty. CV-11-442307 essentially alleged that various officials in the EC, along with Antoniani, wrongfully and intentionally investigated and prosecuted the plaintiffs for improper purposes, including for the purpose of causing damage to the plaintiffs.

[36] The plaintiffs intend to proceed with both the claims alleged in 6826/10 and in CV-11-442307 in the proposed Statement of Claim bearing Superior Court File No. CV-13-488748 (“CV-13-488748”).

[37] In CV-13-488748, 104, 876, RPR and Whitty are plaintiffs. The proposed Crown defendants are the Attorney General of Canada, Shergill, Ball, Laing, EN Wells, EG Wells, Miller, Horvath, Cayley, Vanderlaan, Gregorich, Huehn, Fortin, Gilmer, Jeffrey Green (“Green”) and Bradley May (“May”). The defendant Antoniani is also named.

[38] CV-13-488748 alleges that the various defendants committed the torts of conversion, detinue and trespass to chattels, misfeasance in public office, abuse of process, malicious process and vexatious use of process, malicious prosecution, conspiracy, negligence, and a breach of s. 8 of the Charter. Different defendants are alleged to have committed different torts. The proposed claim seeks general, aggravated, special, punitive, exemplary and Charter damages.

[39] The Crown does not take issue with the claims made by the plaintiff 104 for negligence, conversion, detinue and trespass to chattels against all of the Crown defendants, except as against May and Green. Although 6826/10 was issued within the two-year limitation period, the Crown submits that it does not support any claims made by 876, RPR or Whitty, or any claims made by any plaintiff against May and Green. The Crown argues that 6826/10 also does not support the claims for misfeasance in public office, abuse of process, malicious process and vexatious use of process, malicious prosecution, conspiracy and breach of s. 8 of the Charter against any defendant. It asserts that these claims, as well as the addition of 876, RPR, Whitty, May and Green as parties, are statute-barred by the Limitations Act.

[40] The defendant Antoniani opposes all allegations made against her in proposed CV-13-488748 by all plaintiffs on the basis, inter alia, that they are statute-barred by the Limitations Act.

[41] As noted, CV-11-442307 was issued by the plaintiffs in December 2011. It is the first claim in which the plaintiffs specifically refer to the allegations of misfeasance in public office, malicious process, vexatious use of process and abuse of process; negligence, and malicious prosecution. Many of the factual allegations made in CV-13-488748 are very similar, and in some cases identical, to those pleaded in CV-11-442307. The plaintiffs submit that many of the claims in CV-11-442307 were not discoverable until July 2010. The Crown defendants and Antoniani dispute this assertion.

[42] CV-13-488748 can be broken down in terms of allegations and parties as follows:

• All four plaintiffs claim s. 8 Charter breaches against the Attorney General and seek damages under s. 24(1);

• All four plaintiffs claim against EN Wells and EG Wells, Green, May, Vanderlaan, Antoniani and the Attorney General for misfeasance in public office, abuse of process, malicious process and vexatious use of process, conspiracy, negligence and general, aggravated, special, punitive and exemplary damages;

• 104 against EN Wells, EG Wells, Ball, Cayley, Fortin, Gilmer, Gregorich, Horvath, Huehn, Laing, Miller, Shergill and the Attorney General for conversion, detinue and trespass to chattels, negligence and general, aggravated, special, punitive and exemplary damages;

• RPR and Patrick Whitty against EN Wells, EG Wells, May, Vanderlaan, Antoniani and the Attorney General for malicious prosecution, negligence (except against Antoniani) and general, aggravated, special, punitive and exemplary damages;

[43] I will deal with each in turn.

The Claim Under Section 8 of the Charter

[44] The plaintiffs appear to allege that their Charter rights under s. 8 were breached by the Attorney General for two reasons. First, they allege that the March 2008 search was conducted unreasonably and beyond the scope of the warrant. Second, they allege that the search was conducted for an improper purpose.

[45] The Crown defendants oppose the Charter allegations on the basis that they are statute-barred by the Limitations Act. It also opposes the addition of 876, Whitty and RPR as plaintiffs, arguing that their addition contravenes the Limitations Act.

[46] I find that the factual matrix established in 104’s pleading in 6826/10 supports the alternative theory of liability that the Attorney General breached 104’s right against unreasonable search and seizure. In 6826/10, 104 essentially alleged that EC’s warrant was obtained by misinformation, that its property was seized illegally and that the search was executed unreasonably. As noted, Ward, Vu, and Southam together provide that Charter damages can arise from a search that is conducted in the absence of judicial authority, or that is otherwise conducted unreasonably. The damages under s. 24 are not a cause of action, but rather a remedy.

[47] Insofar as the plaintiffs allege that the search was executed for an improper purpose, whether these amendments ought to be permitted turns on whether CV-11-442307 was issued in time. The plaintiffs assert they discovered this claim in July 2010, and therefore the CV-11-442307 was issued in time. The Crown defendants disagree. At this stage in the matter, on a pleadings motion, I am not prepared to make a determination on whether CV-11-442307 is timely. The proper approach, in my view, is to grant the plaintiffs’ amendments, but also to grant leave to the Crown defendants to raise a limitation period defence.

[48] I would like to provide further guidance to the parties on the s. 8 Charter issue. To the extent that the plaintiffs argue that the March 2008 search was executed unreasonably or beyond the scope of the warrant, as originally alleged in 6826/10, only 104 ought to remain as the plaintiff in this regard. Only 104 was named as a plaintiff in 6826/10; Whitty, RPR and 876 were not. This is not a case of misnomer, and constitutes an attempt by the parties to add corporate affiliates that were not included when the claim was initiated: see Streamline Foods Ltd. v. Jantz Canada Corp., 2011 ONSC 1630 (Div. Ct.), aff’d 2012 ONCA 174; and Coffee Culture Systems Inc. v. Krukowski, 2013 ONSC 1588. Whether Whitty, RPR and 876 (with 104) are permitted to allege that their Charter rights were breached because the search was conducted for an improper purpose will depend on whether CV-11-442307 was issued in time.

The Claims for Misfeasance in Public Office, Abuse of Process, Malicious Process and Vexatious use of Process, Conspiracy, and Negligence

[49] These allegations are made by all four plaintiffs, and are made against the Attorney General, EN Wells, EG Wells, Green, May and Vanderlaan. The allegations are also made against Antoniani, except for negligence.

[50] The Crown objects to all claims against Green and May, and all claims made by RPR, Whitty and 876, on the basis that they were not named as defendants and or plaintiffs in 6826/10. Against the remaining Crown defendants, the Crown opposes all of the allegations except negligence. Antoniani objects to all claims against her on the basis that they are statute-barred by the Limitations Act.

[51] The plaintiffs allege that the defendants committed conspiracy by agreeing to take action against the plaintiffs for improper purposes. They did so by taking a number of improper and draconian measures against the plaintiffs. They allege that defendants agreed to solicit a complaint from a member of the public under s. 17 of CEPA in a further effort to cause damages to the plaintiffs. The plaintiffs allege that the defendants committed the torts of misfeasance in public office, abuse of process, malicious process and vexatious use of process by deliberately and unlawfully investigating and prosecuting the plaintiffs.

[52] The allegations of misfeasance in public office, abuse of process, malicious process and vexatious use of process and conspiracy were primarily raised in CV-11-442307. It is very similar, and in some ways identical, to CV-13-488748. Like some of the allegations supporting the s. 8 Charter breach, whether these amendments are appropriate will depend on whether CV-11-442307 was issued in time. Whether RPR, 876 and Whitty ought to be permitted to remain as plaintiffs, and May, Green and Antoniani to remain as defendants, also depends on whether CV-11-442307 was issued in time. If it was not issued in time, these plaintiffs will have been added out of time, and under the authority of Streamline and Coffee Culture, will not be permitted to remain as plaintiffs. The defendants May, Green and Antoniani would also have been added beyond the limitation period.

[53] For the same reasons as above, I grant the plaintiffs’ proposal to amend its statement of claim to include the claims for misfeasance in public office, abuse of process, malicious process and vexatious use of process, conspiracy, and negligence. I also grant the plaintiffs’ proposal to include RPR, 876 and Whitty as plaintiffs, and May, Green and Antoniani as defendants. The defendants are granted leave to raise limitation period defences in respect of these claims. The proposed claims for damages are permitted, as they are remedies, not causes of action.

The Claims for Conversion, Detinue and Trespass to Chattels, Negligence and General, Aggravated, Special, Punitive and Exemplary Damages

[54] These allegations are made only by 104, and are made with respect to EN Wells, EG Wells, Ball, Cayley, Fortin, Gilmer, Gregorich, Horvath, Huehn, Laing, Miller, Shergill and the Attorney General of Canada.

[55] The Crown does not object to the plaintiff, the defendants or the causes of action.

[56] The general theme of these allegations is that the March 2008 search was unauthorized, unreasonable and in breach of s. 8 of the Charter. Moreover, the plaintiffs allege that the second search team directly, intentionally and wrongfully interfered with 104’s possession of the property that was seized in the search.

[57] The outstanding issue with respect to these claims relates to the factual allegations that 104 may rely on to establish the torts of conversion, detinue and trespass to chattels and negligence. 6826/10 pleaded sufficient material facts to support a claim for negligence. CV-11-442307 contains factual allegations that arguably constitute more than mere particularization of the facts pleaded in 6826/10. These additional facts could possibly be alleged by the plaintiffs to further support these claims. Whether the plaintiffs are permitted to do so will depend on whether CV-11-442307 was issued in time.

[58] I grant the plaintiffs’ proposal to amend its statement of claim to include 104’s claims for conversion, detinue and trespass to chattels and negligence against the above noted defendants. The defendants are granted leave to argue that the factual allegations raised in CV-11-442307 were raised beyond the applicable limitation period. The proposed claims for damages are permitted, as they are remedies, not causes of action.

Malicious Prosecution, Negligence and General, Aggravated, Special, Punitive and Exemplary Damages.

[59] These allegations are made by RPR and Whitty against EN Wells, EG Wells, May, Vanderlaan and the Attorney General. The allegations are also made against Antoniani, except for the tort of negligence. The Crown objects to any causes of action against May. It also opposes the claims of malicious prosecution and conspiracy against all of the defendants. The defendant Antoniani opposes all of the allegations against her.

[60] The thrust of the malicious prosecution allegations are that the defendants charged the plaintiffs with offences despite knowing that reasonable grounds did not exist for those charges. The plaintiffs allege that Antoniani prosecuted the plaintiffs in the absence of an honest belief of their guilt, and did so for improper purposes.

[61] Like many of the allegations in CV-13-488748, whether the plaintiffs are permitted to make these allegations against May and Antoniani depend on whether CV-11-442307 was issued in time in December 2011. If eventually it is discovered that CV-11-442307 was issued beyond the applicable limitation period, then these allegations against May and Antoniani must fail. Neither party was named as a defendant in 6826/10. The same can be said for the plaintiffs RPR and Whitty.

[62] A further issue must be dealt with in respect of these claims. In CV-11-442307, the plaintiffs pleaded that RPR pled guilty to a single count of breaching s. 36 of the regulations. In CV-13-488748, some references to the guilty plea were removed. Antoniani submits that the admission to the guilty plea is fatal to the plaintiffs’ claim for malicious prosecution. Antoniani submits that allowing the plaintiffs to amend their pleadings to withdraw this admission results in prejudice to Antoniani that cannot be compensated by costs.

[63] In oral submissions, counsel for Antoniani directed the court to r. 51 of the Rules of Civil Procedure. Rule 51.05 provides that an admission in a pleading may be withdrawn on consent or with leave of the court. The jurisprudence suggests that a the party seeking to withdraw an admission must establish that: (1) the proposed amendment raises a triable issue; (2) the admission was inadvertent or resulted from wrong instructions; and (3) the withdrawal will not result in any prejudice that cannot be compensated for in costs: BNP Paribas v. Bartlett, 2012 ONSC 5315.

[64] In my view, this issue need not be resolved with resort to r. 51.05 or to its common law test. At paragraph 122 of CV-13-488748, the plaintiffs plead that in February 2009, RPR pleaded guilty to one count under the February 2008 indictment. As a result, Antoniani’s concern that the admission was removed from CV-11-442307 appears unfounded: the plaintiffs do not deny the guilty plea in the proposed new pleadings.

[65] I grant the plaintiffs’ proposal to amend its statement of claim to include RPR and Whitty’s claims for malicious prosecution and negligence against EN Wells, EG Wells, May, Vanderlaan and the Attorney General. I also grant the plaintiff’s proposal to amend its statement of claim to include RPR and Whitty’s claims for malicious prosecution against Antoniani. For the reasons given above, damages are remedies, not causes of action, and therefore the plaintiffs are granted leave to plead for general, aggravated, special, punitive and exemplary damages. The defendants are granted to leave to raise limitation period defences in respect of these claims.

[66] There is one additional issue I must address. The defendant Antoniani makes a number of other submissions as to why the plaintiffs’ proposed amendments in CV-13-488748 should not be granted. She argues that the original December 2011 claim does not possess the material facts to support an allegation of malice, a necessary element of the tort of malicious prosecution. She also submits that if the amendments are granted, the new claim ought to be struck because it discloses no tenable cause of action against Antoniani—Crown immunity only lifts against malicious prosecution. Antoniani also submits that there are a number of deficiencies in the new claim, namely that some allegations are not factually grounded, or are assumptions and speculations. Finally, Antoniani notes that many of the allegations in the December 2011 claim against her have been dropped in the new claim. For instance, claims against Antoniani for unreasonable search and seizure, conversion, detinue and trespass to chattels, and negligence are not continued in CV-13-488748. She seeks costs for having to defend against these claims.

[67] In my view, it would be inappropriate for me to make findings with respect to these submissions at this stage of the pleadings. The propriety of many of the plaintiffs’ allegations and claims will turn on whether CV-11-442307 was issued in time. I will leave the determination of Antoniani’s submissions to a later stage in the proceedings.

trigger 3 – the new york defamation action

[68] In this claim, only 104 is a plaintiff, and only the Attorney General of Canada and EN Wells are sued in the proposed Statement of Claim bearing Court File No. CV-13-488659. These Crown defendants do not oppose the form of the Statement of Claim with the exception of the claim against them for misfeasance in public office. These Crown defendants submit that the original pleadings in Small Claims Court Action No. 8973-10 do not support an allegation of misfeasance in public office as framed in the proposed Statement of Claim. Accordingly, the claim is now statute-barred. 104 submits that the allegations in the aforementioned Small Claims Court claim can support an allegation of misfeasance of public office.

[69] In essence, the Small Claims Court pleadings sets out the following:

• 104 is seeking compensation from the Attorney General and EN Wells for providing misleading information to the Environmental Protection Agency (the “EPA”) and the New York State Department of Environmental Conservation (“NYSDEC”);

• That someone at the EC (they believe EN Wells) made a comment to the EPA that RPR had a long history of violations, and had in the past shipped hazardous waste to the US labelled as non-hazardous;

• The investigation of RPR was the fifth investigation that EN Wells had personally pursued against RPR, and RPR believes there is some personal malice involved;

• That EN Wells had indicated that he is not properly trained;

• That EN Wells took advantage of the differences in regulations between Canada and the US;

• That RPR met with the EC to discuss EN Wells’ actions but had/did not hear back;

• That if there was an issue, the disputed waste drum could have been returned to RPR; and

• That 104 is seeking damages for costs of extra shipping.

[emphasis added]

[70] The proposed Amended Statement of Claim essentially sets out the following:

• EN Wells was an officer of the Crown engaged in an exercise of public functions;

• EC and its officials (including EN Wells) undertook a campaign of defamation and misrepresentation intended to interrupt the plaintiff’s supply chain and otherwise injure its business and reputation;

• EN Wells and/or other EC officials told an EPA employee that “RPR has a long history of violations” and that “this is not the first time they have shipped hazardous waste into the USA, labelled as non-hazardous”, along with other false and defamatory statements;

• Wells and/or other EC officials told the NYSDEC that “RPR has a long history of violations” and that “this is hazardous”, along with other false and defamatory statements. EN Wells and/or other EC officials made similar false and injurious statements to the plaintiff's business partners in the US, including the American Recycling Company (the “ARC”);

• EN Wells showed a copy of an “Enforcement Notification to the EPA, NYSDEC, and the ARC. The statements in the notification were false;

• EN Wells intentionally injured RPR through deliberate bad faith and unlawful conduct by deliberately disseminating false and injurious statements concerning the plaintiff to US regulatory officials. The purpose of Wells’ visit to NY was to harm the RPR Group’s business;

• EN Wells was aware that his misconduct was unlawful pursuant to ss. 272 and 272.1 of CEPA (providing misleading or false information with respect to a CEPA matter), that travelling to the US and uttering slanderous statements or providing libellous publications to regulatory authorities and key suppliers was an excess of his authority, that his conduct was generally abusive of the authority granted to him by CEPA and was otherwise unlawful; and

• EN Wells was aware that his conduct was likely to harm the plaintiff: he engaged in bad faith conduct with the intention to harm the plaintiff, and knew that his conduct would likely harm the plaintiff.

[71] The jurisprudence is settled that plaintiffs are permitted to amend pleadings to include facts that particularize those already pleaded: see Bazkur v. Coore, 2012 ONSC 3468 (Div. Ct.); and [Ascent Inc. v. Fox 40 International Inc., [2009] O.J. No. 2964]. In Boyes, Wood J. stated that where an existing pleading “skirts close” to dealing with the issue sought to be particularized, the surrounding circumstances should be examined to shed light on the reality of the litigation: see para. 22. The above comments in the Rausch and BMO cases also resonate here.

Misfeasance in Public Office

[72] The Ontario Court of Appeal in Trillium Power v. Ontario (Ministry of Natural Resources), 2013 ONCA 683, relied on the Supreme Court’s decision in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, in outlining the elements for the tort of malfeasance in public office. In addition to the usual requirements of causation and consequent damages, the court observed, at para. 38, that a plaintiff must also show the following:

a) The public official engaged in unlawful conduct in the exercise of his or her public functions; and,

b) The public official was aware that the conduct in question was unlawful and was likely to injure the plaintiff.

[73] The court also observed, at para. 39, that the Odhavji case made it clear that the “unlawful conduct” element could encompass bad faith conduct in the exercise of administrative or executive authority:

It is clear from Odhavji Estate, as well, that “bad faith” conduct in the exercise of executive or administrative authority -- that is, the exercise of power for an improper or ulterior purpose, such as doing so only for the specific purpose of injuring someone – may constitute the type of “unlawful conduct” required for the tort. It does not follow, however, that a public official may not make any decision that he or she knows may harm someone’s interests. Iacobucci J. addressed this issue as well, at para. 28:

The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of “bad faith” or “dishonesty”. In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may n good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office. [Emphasis added.]

[74] In my view, the original Small Claims Court pleadings did allege the facts that could support the alternative theory of liability of misfeasance in public office. EN Wells was exercising his public function as an enforcement officer for the EC when he engaged in the alleged misconduct. The original Small Claims Court pleadings alleged that EN Wells provided misleading information to the EPA and NYSDEC. This implies that EN Wells engaged in unlawful conduct. In any event, as stated in Trillium, unlawful conduct can encompass action taken in bad faith. The reference to personal malice in the Small Claims Court pleading, coupled with the allegation that Wells provided misleading information, make it clear that in the original pleading, 104 was alleging that EN Wells acted in bad faith.

[75] With respect to the second part of the test, although less clear, it is my view that the original Small Claims Court action, in expressly referring to personal malice on the part of EN Wells, implies or suggests that he was aware that his conduct was unlawful and in bad faith and likely to injure 104. It must also be kept in mind that at the time the Small Claims Court pleading was drafted, 104 was self-represented and its pleading would be less than precise.

[76] In these circumstances, I would allow the amendments as sought by 104 as set out in the draft attached to the motion record.

trigger 4 – the website defamation claim

[77] This claim is contained in Court File No. CV-11-442307. Antoniani is not named as a defendant in this action. The Crown defendants do not oppose the motion for leave to amend the Statement of Claim in the form set out in the motion record. An order shall go amending the claim as per the draft set out in the motion record.

disposition

[78] The aforementioned amendments are allowed and an order shall go in this regard. Costs are reserved to the further motion to strike, which should bring the pleadings disputes to an end.

[79] Based on the above, it is assumed that the plaintiffs will now prepare and serve their four statements of claim without any further additions of parties or causes of action.

[80] My assistant will schedule a conference call to discuss the further motion.

T. McEwen J.

Released: March 7, 2014

COURT FILE NO.: CV-11-442307

DATE: 20140307

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICK WHITTY, RPR ENVIRONMENTAL INC., 1049585 ONTARIO INC. and 876947 ONTARIO LIMITED

Plaintiffs

– and –

EDWARD N. WELLS, EDWARD G. WELLS, BRADLEY MAY, RENZO BENOCCI, BRAD SIMPSON, MARK VANDERLAAN, PETER KENT, JOHN BAIRD, JIM PRENTICE, MANON BOMBARDIER, GORDON OWEN, SANDRA ANTONIANI, DIANA BALL, LUKE CAYLEY, ROB FORTIN, ERIN GILMER, JEFFREY GREEN, MELANIE GREGORICH, JULIE HORVATH, REBECCA HUEHN, ANNA LYN-KING, DOUGLAS LAING, DENISE MCGUIRE, JOHN MILLER, AMRICK SHERGILL, LORRAINE YOUNG, and the ATTORNEY GENERAL OF CANADA

Defendants

REASONS FOR DECISION

T. McEwen J.

Released: March 7, 2014