Vandermaas v. HMTQ, 2014 5179
COURT FILE NO.: 07-102 (Cayuga)
COURT FILE NO.: 07-103 (Cayuga)
DATE: 2014-09-22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Gary McHale, Plaintiff
and
Her Majesty the Queen in Right of Ontario, Respondent
AND RE: Mark Vandermaas, Plaintiff
and
Her Majesty the Queen in Right of Ontario, Respondent
BEFORE: The Honourable Mr. Justice D.J. Gordon
COUNSEL: J.W. Findlay for Gary McHale and Mark Vandermaas
E. Bala and J. Hunter for Her Majesty the Queen in Right of Ontario
HEARD: July 21, 2014
ENDORSEMENT
[1] Two motions in both actions require determination:
i) the plaintiffs’ motion to amend the statement of claim; and
ii) the defendant’s motion to strike portions of the statement of claim.
[2] By agreement of counsel, submissions were presented in the action commenced by Mr. McHale with the ruling to apply to the action of Mr. Vandermaas. Both cases pertain to similar or the same events with the claims and allegations of Mr. McHale being more expansive.
Background
[3] Construction had commenced in a new residential subdivision in Caledonia, known as Douglas Creek Estates, when, in February 2006, certain native protestors took occupation of the property. Their actions were said to relate to the long outstanding land claims.
[4] The proper owner, Henco Industries Limited, applied for and was granted injunctive relief in March 2006. The Ontario Provincial Police declined to enforce the court orders.
[5] The native protest continued and conflict in the community developed. In July 2006, the provincial government purchased the subdivision lots from Henco. The subdivision continues to be occupied by members of the native community.
[6] The manner in which the Ontario Provincial Police and other government agencies addressed the native occupation of the property attracted opposition from a number of individuals, including Gary McHale and Mark Vandermaas, the plaintiffs in these actions.
[7] Counter protest demonstrations took place in Caledonia. Mr. McHale and Mr. Vandermaas, on numerous occasions, were placed under arrest by officers from the Ontario Provincial Police. None of the resultant criminal charges, however, proceeded to trial.
[8] In these actions, Mr. McHale and Mr. Vandermaas seek general, aggravated and punitive damages for wrongful arrest and violation of their Charter rights. Mr. McHale presents an additional claim for defamation, regarding certain comments made by then Commissioner, Julian Fantino, and with respect to additional events.
[9] A notice of action was issued on May 18, 2007 and the statement of claim followed on June 18, 2007. The statement of defence is dated June 28, 2008. For unknown reasons, the actions have been dormant for several years.
Motion to Amend
[10] On October 10, 2013, Mr. Findlay, counsel for Mr. McHale, gave notice of the proposed amended claim pursuant to section 7, Proceedings Against the Crown Act. A draft amended statement of claim accompanied the notice delivered to Mr. Bala, counsel with the Ministry of the Attorney General. The final amended statement of claim is dated February 4, 2014. It was served along with the motion of the same date. Mr. McHale seeks leave to amend the statement of claim pursuant to Rule 26.01, Rules of Civil Procedure.
[11] The proposed amendments are said to more particularize the alleged facts and to expand the claim regarding events that occurred since the statement of claim was issued in 2007. Many, but not all, of the proposed amendments are opposed by the defendant, H.M.T.Q.
Motion to Strike
[12] By cross-motion dated May 22, 2014, H.M.T.Q. requests certain portions of the statement of claim and amended statement of claim be struck, without leave to further amend, pursuant to Rules 21.01 and 25.11. The grounds advanced by Mr. Bala and Mr. Hunter were articulated as follows:
a) facts pleaded do not satisfy the elements of the torts alleged;
b) several causes of action are statute barred by the passage of time; and
c) the pleading contains immaterial facts.
Preliminary Comments
[13] Rule 26.01 directs leave to amend a pleading “shall” be granted and hence, Mr. McHale is presumptively entitled to the relief claimed, subject to the following criteria:
a) an amendment should be allowed unless it would cause an injustice not compensable in costs;
b) the proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious;
c) no amendment should be allowed which, if originally pleaded would have been struck; and
d) the proposed amendment must contain sufficient particulars.
See: Marks v. Ottawa (City), 2011 ONCA 248, at para. 19.
[14] In result, at the motion hearing, counsel focused on the objections to the amendments and the grounds to strike.
[15] The amended statement of claim is a lengthy document, many of the paragraphs being addressed in these motions. For ease of reference, a copy is attached to this endorsement as Schedule “A”.
Discussion and Analysis
i) Limitations Act, 2002
[16] Section 4, Limitations Act, 2002, provides for a basic limitation period of two years. Objection is taken by H.M.T.Q. regarding several claims advanced in the amended statement of claim in this regard.
[17] In the original statement of claim, dated June 18, 2007, Mr. McHale alleged the following torts:
a) wrongful arrest and violation of section 2 Charter rights on December 16 and 17, 2006 (paragraphs 17-25); and
b) defamation on January 8, 2007, January 18, 2007, January 19, 2007 and March 3, 2007 (paragraphs 26-39).
[18] The amended statement of claim, dated February 4, 2014 advances the following alleged torts, as I understand the pleading:
c) conspiracy involving Commissioner Fantino and others, between December 3, 2006 and December 16, 2006 (paragraph 16I);
d) conspiracy and violation of Charter rights between December 16, 2006 and December 2007 (paragraphs 111-118);
e) violation of section 2 Charter rights on January 20, 2007 (paragraphs 25A and 40-44);
f) wrongful arrest on December 7, 2007 (paragraphs 45-50);
g) wrongful arrest on March 17, 2011 (paragraphs 51-62);
h) wrongful arrest on January 27, 2012 (paragraphs 63-67);
i) wrongful arrest on February 18, 2012 (paragraphs 68-88);
j) wrongful arrest on August 26, 2012 (paragraphs 89-94);
k) wrongful arrest and violation of sections 7 and 15 Charter rights on September 2, 2012 (paragraphs 95-104); and
l) harassment on December 12, 2012 (paragraphs 105-110).
[19] Mr. Bala and Mr. Hunter submit the claims in (c) to (g) above are statute barred as such are based on new events. In their factum and submissions, counsel also included the defamation allegations in paragraphs 30 and 31 as being in March 2011. According to the documents I was provided with, this argument is incorrect. Although the paragraphs are underlined, suggesting an amendment, the words used are identical to those in the original pleading. The event is alleged to have occurred in March 2007. As the claim was advanced in the original statement of claim, it is not statute barred.
[20] Mr. Findlay responds to the argument saying:
a) the events are part of a continuing violation of Mr. McHale’s Charter rights;
b) limitation periods regarding Charter claims are subject to the discretion of the court and ought not be determined at this stage; and
c) the alleged events are relevant to an assessment of aggravated damages and necessitates consideration of all of the police conduct by the trier of fact.
[21] A continuing tort has been defined as being still in the course of commitment and not wholly past. See: Roberts v. Portage la Prairie (City), 1971 128 (SCC), [1971] S.C.R. 481, citing Salmond on Torts, 15th ed., at p. 791, a case involving the escape of polluted water from a sewage lagoon, the claim being founded in nuisance.
[22] Section 24 of the Charter provides for a remedy, in civil actions such being a damage award regarding a specific Charter violation. See Vancouver (City) v. Ward, 2010 SCC 27, at paragraph 23, a case involving a breach of section 8.
[23] Accepting, as required at this stage, the truth of the facts as alleged, there is some merit in suggesting a continuous violation of Charter rights given the similarity of the events. However, the claim relates to distinct acts separated in time. The conduct may be the same but a Charter violation pertaining to a wrongful arrest in 2011, for example, is not a continuation of one occurring in 2006. Each event gives rise to a separate claim. Such acts are not comparable to those in nuisance claims.
[24] Accordingly, I conclude this is not a continuing tort. Each event and claim is separate.
[25] The Limitations Act, 2002 is a statue of general application in all civil actions, including claims based on Charter violations. See: Alexis v. Darnley, 2009 ONCA 847, at paragraphs 13-17, distinguishing Prete v. Ontario (1993), 1993 3386 (ON CA), 16 O.R. (3d) 161 (Ont.C.A.), on which Mr. Findlay relies, where, at paragraph 9, it was held the specific limitation period in the Public Authorities Protection Act could not infringe on a section 24 Charter remedy.
[26] Therefore, the issue as to whether claims are statute barred need not be left for determination at trial.
[27] The assessment of aggravated damages permits consideration of the entire conduct of a defendant from prior to the event and continuing through to the conclusion of trial. See: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at paragraph 189. However, I do not read Hill as permitting a pleading to advance a claim that is statute barred.
[28] Mr. McHale had ample opportunity to amend the statement of claim on a timely basis. By virtue of the initial pleading, it is clear that Mr. McHale was well aware of his Charter rights and the nature of his claims. The amendments are similar to the initial allegations. The delay in proceeding with this case in a timely manner is now fatal regarding certain claims.
[29] In result, I conclude the claims in (c) to (g), as above, are statute barred. The following paragraphs in the amended statement of claim are struck, without leave to further amend:
i) 2B, regarding the reference to December 1, 2007 and February 28, 2011;
ii) 2B (b) and (c);
iii) 16I;
iv) 111-118;
v) 25A and 40-44;
vi) 45-50; and
vii) 51-62.
[30] Further, the reference to the January 19, 2007 news release in paragraph 31 must also be struck as the allegation in paragraph 29 was deleted in the amendment. Presumably, the deletion resulted from a ruling on that specific news release in Lorch v. McHale (2008), 2008 35685 (ON SC), 92 O.R. (3d) 305 (Ont. S.C.J.).
ii) Essential Elements of Torts
[31] Four causes of action are challenged by H.M.T.Q. on the basis of defective pleading.
a) Conspiracy
[32] Mr. McHale alleges officers with the Ontario Provincial Police and other government officials conspired to repeatedly wrongfully arrest him and intentionally violate his Charter rights, as a result of his political views, and to prevent him from engaging in legitimate protest in Caledonia.
[33] Paragraphs 2C, 2F, 2S, 16I, 21, 23B, 61-62 and 118 in the amended statement of claim address this cause of action. Paragraphs 16I, 61-62 and 118 have already been struck as statute barred. The remaining paragraphs will be addressed here.
[34] The position of H.M.T.Q. is that the identified paragraphs are simply a bald allegation without sufficient particulars. Mr. McHale says sufficient particulars are pleaded and that specific detail would be too onerous at this stage without disclosure and discovery.
[35] Rule 25.06 (8) requires a pleading to contain full particulars when, as here, the allegation pertains to a “condition of mind” such as “malice or intent”.
[36] The test for the tort of conspiracy required the following factors:
a) an agreement between two or more persons to perform specific acts to injure the plaintiff;
b) the defendants acted in furtherance of that agreement;
c) the predominate purpose of the agreement was to injure the plaintiff or the defendant’s conduct was unlawful, directed towards the plaintiff alone or with others, and the defendant should have known that injury to the plaintiff was likely; and
d) the plaintiff was injured as a result of the conspiracy.
See: Aristocrat Restaurants Ltd. (C.O.B. Tony’s East) v. Ontario, [2003] O.J. No. 5331 (Ont. S.C.J.), at paragraph 39, citing Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452.
[37] In an action for conspiracy, the pleading must include, “with clarity and precision”, the following particulars:
a) the parties and their relationship;
b) an agreement to conspire;
c) the precise purpose or objects of the alleged conspiracy;
d) the overt acts that are alleged to have been done by each of the conspirators; and
e) the injury and particulars of the special damage suffered by the plaintiff by reason of the conspiracy.
See: Aristocrat Restaurants, supra, at paragraph 40, citing Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97 (Ont. C.A.) and D.G. Jewelry Inc. v. Cyberdiam Canada Ltd., [2002] O.J. No. 1465 (Ont. C.A.).
[38] I agree with the submissions of Mr. Bala. The impugned paragraphs are merely bald allegations. There are no particulars identifying who was involved, what acts were done and what injury resulted.
[39] I am mindful of the particulars alleged regarding wrongful arrests and violation of Charter rights. It may be said, in part, such acts pertain to the conspiracy. However, in so doing, the issue of merger of the conspiracy and the actual tort committed arises. The damages pertaining to the conspiracy may well be subsumed in the other torts. See: Aristocrat Restaurants, supra, at paragraphs 41-42.
[40] In result, I conclude the amended statement of claim does not properly plead conspiracy. In result, paragraphs 2C, 2F, 2S, 21 and 23B are struck.
[41] It may be that Mr. McHale can correct the deficiency in the pleading and I will allow him 30 days to serve a further amended statement of claim in this regard. If such occurs, the issue of merger may have to be addressed.
b) Civil Harassment
[42] Mr. McHale alleges officers with the Ontario Provincial Police permitted members of the native protest group to harass him and his wife during and after a court appearance when he was a Crown witness, took no steps to prevent the harassment and failed or refused to provide security at the courthouse.
[43] Paragraphs 105-110 in the amended statement of claim address this cause of action.
[44] In an action for harassment, a plaintiff must establish:
a) outrageous conduct by the defendant;
b) the defendant’s intention of causing or reckless disregard of causing emotional distress;
c) the plaintiff suffered severe or extreme emotional distress; and
d) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
See: Lynch v. Western Ontario Power Inc., [2009] O.J. No. 4927 (Ont. S.C.J.), at paragraphs 66-71, citing Mainland Sawmills Limited v. IWA-Canada, Local 1 – 3567 Society, 2006 BCSC 1195, [2006] B.C.J. No. 1814.
[45] The position of H.M.T.Q. is that insufficient particulars are set out in the amended statement of claim to establish the elements of the tort. Further, they say the harassment, if any, was committed by other persons and that the police do not have a private law duty of care to prevent such occurring.
[46] Mr. McHale says sufficient particulars are pleaded and that the conduct of the police officers must be considered with respect to all matters in the assessment of damages.
[47] I well understand that part of Mr. McHale’s complaint regarding security of the courthouse in Cayuga. Indeed, security is a matter I have raised with Ministry officials and the Ontario Provincial Police, without success, for several years. It is unacceptable that court staff, litigants, witnesses, lawyers and others attending the courthouse in Cayuga are provided with a much lesser standard of security than provided at most other courthouses in Ontario.
[48] The Ontario Provincial Police have a statutory duty to provide courthouse security in Cayuga. That obligation may establish a duty of care. The standard of care has not been addressed but may now be established by the level of security being provided elsewhere.
[49] Whether the impugned conduct of the police officers ought be considered within the framework of the tort of conspiracy or in some other form is not a matter requiring determination at this stage. However, in pleading harassment, Mr. McHale has not set out with sufficient particularity the elements of the tort.
[50] Further, I am not persuaded Ministers of the Crown have an obligation, at least in law, to respond to a plaintiff’s correspondence. This complaint, in paragraphs 109-110, cannot stand. It may be an evidentiary issue for the trial judge to address.
[51] In result, paragraphs 105-110 of the amended statement of claim are struck. As before, it may be that Mr. McHale can correct the deficiency in paragraphs 105-108 and I will allow him 30 days to serve a further amended statement of claim in this regard. Leave to further amend paragraphs 109-110 is denied.
c) Defamation
[52] In paragraph 1 (b) of the original statement of claim, Mr. McHale seeks general and aggravated damages for defamation. The amended pleading increases the amount claimed.
[53] The alleged defamatory remarks are said to have been made by Ontario Provincial Police Officers, in particular, Commissioner Fantino, on several occasions, namely: January 8, 2007 (paragraph 26); January 18, 2007 (paragraph 27); January 19, 2007 (paragraph 29 but deleted in the amended statement of claim); and March 3, 2007 (paragraph 30).
[54] The sole issue on this motion is with the identification of Mr. McHale in the impugned remarks. H.M.T.Q. says the claim cannot succeed as Mr. McHale is not so identified and the remarks are not capable of referring to him. Mr. McHale acknowledges a lack of specific identification (paragraph 31) but, in the circumstances, submits the remarks are capable of referring to him.
[55] An action for defamation is personal in nature. The words said must be understood as being made of and concerning the plaintiff. See: Seafarer’s International Union of Canada et al v. Lawrence (1979), 1979 2110 (ON CA), 24 O.R. (2d) 257 (Ont. C.A.), citing Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.).
[56] When the remarks do not specifically identify the plaintiff, it must be shown the words used are “capable” of leading persons to understand it was the plaintiff to whom the defendant referred. That is a question of law. Whether the words did, in fact, refer to the plaintiff is a question of fact. Only the former issue can be addressed at this stage. See: Grant v. Cormier-Grant (2001), 2001 3041 (ON CA), 56 O.R. (3d) 215 (Ont. C.A.) at paragraphs 19-30.
[57] Mr. Bala relies on Lorch v. McHale, supra, a prior action involving the same or similar parties as here. Lederman J. struck Mr. McHale’s pleading regarding the alleged defamatory remarks in the January 19, 2007 press release on the basis the words were not capable of referring specifically to Mr. McHale. Lorch is persuasive but not binding. Here, the impugned remarks pertain to several communications other than the January 19, 2007 press release.
[58] In my view, it must be recognized that Caledonia is a small community and that the native protest and counter protest events were extensively covered, particularly locally, in the media. The community, and its residents, were negatively impacted by the ongoing events, as recognized in the subsequent and settled class action. Hence, it is reasonable to infer that many individuals in Caledonia, if not elsewhere, were following the media reports. These reports included specific press releases from the Ontario Provincial Police. Police officers and others were interviewed in the media.
[59] In these circumstances, I agree with the submission of Mr. Findlay. I conclude the words spoken or published were “capable” of referring to Mr. McHale. Indeed, it begs the question if not Mr. McHale who was identified.
[60] Accordingly, H.M.T.Q.’s motion on this issue is dismissed. As stated previously, the reference to the January 19, 2007 press release in paragraph 31 of the amended statement of claim is struck as the allegation in paragraph 29 was withdrawn.
d) Sections 7 and 15 of the Charter
[61] In the amended statement of claim, reference is made to A Framework For Public Preparedness For Aboriginal Critical Incidents (“Framework”), said to be a policy statement of the Ontario Provincial Police. In paragraphs 101-104 of his pleading, Mr. McHale alleges the application of the Framework was a violation of his Charter rights under sections 7 and 15 as he was treated differently than native protestors. In his prayer for relief, Mr. McHale does not seek a declaratory order as to the Framework.
[62] Mr. McHale says the facts alleged in his pleading are to support his damage claim. The position of H.M.T.Q. is that the amended statement of claim is deficient in terms of the required elements of the purported Charter violation. Further, they say any claim would be dependant upon the Framework being struck down, such relief not being sought by Mr. McHale in this action or in any other action.
[63] As reference was made to the Framework in the pleadings, counsel for H.M.T.Q. provided a copy of the document in their motion record.
[64] The Framework, as I read it, is a policy statement. It is not a procedural directive. While it may provide guidance to police officers, the Framework does not instruct them as to any particular action to be taken. Of interest here are the following provisions:
INTRODUCTION
The Ontario Provincial Police (OPP) is committed to safeguarding the individual rights enshrined within Federal and Provincial laws, inclusive of those specifically respecting the rights of Aboriginal persons of Canada as set out in the Canadian Charter of Rights and Freedoms. The OPP recognizes that conflicts may arise as Aboriginal communities and the various levels of government work to resolve outstanding issues associated with matters such as land claims, self-determination and Aboriginal or treaty rights, which may relate to education, hunting and fishing. It is the role of the OPP and all of its employees to make every effort prior to a critical incident to understand the issues and to protect the rights of all involved parties throughout the cycle of conflict.
Purpose
The purposes of the document are threefold:
▪ promote an operationally sound, informed and flexible approach to resolving conflict and managing crisis in a consistent manner;
▪ offer a framework that demonstrates accommodation and mutual respect of differences, positions and interests of the involved Aboriginal community and the OPP; and
▪ promoting and developing strategies that minimize the use of force to the fullest extent possible.
Applicability
Critical Incidents are often avoidable. The benefits of this framework are maximized if put to use well before any Aboriginal related issue becomes a critical incident where the source of conflict may stem from assertions associated with Aboriginal or treaty rights, e.g. colour of right, a demonstration in support of a land claim, a blockade of a transportation route, an occupation of local government buildings, municipal premises, provincial/federal premises or First Nation buildings.
Recognizing that disputes may, and often do, originate with government agencies other than the police, this framework applies to the negotiation and mediation of police-related issues surrounding a dispute.
Use of Framework
Conflicts cycle through recognized stages, i.e. pre-critical incident, critical incident and post-critical incident. This Framework provides incident commanders, detachment and regional members with an overview of what signs, behaviours and cues may be present and suggests resolution techniques available at each of the 3 stages of conflict to avoid, de-escalate or appropriately manage the situation. It is strongly recommended that this Framework be used well before the existence of any critical incident requiring police action.
[65] Mr. Findlay submits a declaratory order striking down the Framework as violating the Charter is not required, that police powers wrongfully used can entitle a plaintiff to a damage award. With respect, save as hereafter discussed, I disagree.
[66] Mr. Hunter asserts, correctly in my view, a declaratory order is a pre-condition to a damage claim based on Charter violation and, further, until the Framework is struck down the police are entitled to rely on it as presumptively valid. See: Mackin v. Brunswick (Minister of Finance), 2002 SCC 13, at paragraph 78; and Vancouver, supra, at paragraph 39.
[67] Mr. McHale, in essence, is attempting to indirectly challenge the constitutional validity of the Framework. In my view, such must be done directly by an application under section 52, Constitution Act, 1982.
[68] Normally, such a claim is made in an independant action. As a general rule, a claim under section 52, Constitution Act, 1982, cannot be combined with a damage claim pursuant to section 24 of the Charter. See: Mackin, supra, at paragraphs 78-81; and Wynberg v. Ontario (2006), 2006 22919 (ON CA), 82 O.R. (3d) 561 (Ont. C.A.), at paragraphs 192-202.
[69] The exception is where the conduct of the state is “clearly wrong, in bad faith or abuse of power”. See: Mackin, supra, at paragraph 78; and Vancouver, supra, at paragraph 39.
[70] In this regard, the amended statement of claim does not sufficiently particularize the elements for the relief sought. Only a bald allegation is presented in paragraphs 101-104. The pleading must address the state conduct, as above, and the particular matters of the violation under sections 7 and 15 of the Charter. See: Canada (Attorney General) v. Bedford, 2013 SCC 72, as to section 7; and Quebec (Attorney General) v. A., 2013 SCC 5, as to section 15.
[71] In result, paragraphs 101-104 of the amended statement of claim are struck. It may be that Mr. McHale can correct the deficiency in his pleading and I will allow him 30 days to serve and file a further amended statement of claim in this regard.
iii) Immaterial Facts
[72] H.M.T.Q. complains of immaterial facts in the amended statement of claim with reference to paragraphs 2E, 2G-2O, 2T, 3-10, 12-15, 16C-16G, 18B, 48-49, 53, 56-59, 70, 72-75, 80-84, 94 and 105-118. Paragraphs 48-49, 53, 56-59 and 105-118 have already been struck as statute barred. The remaining paragraphs will be considered here.
[73] Mr. McHale says the impugned paragraphs are important facts required for an assessment of damages regarding the claim for Charter violations.
[74] Rule 25.06(1) requires a pleading to “contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved”. A material fact is one that is necessary for a complete cause of action and includes facts that establish the constituent elements of the claim. See: Kang v. Sun Life Assurance Co. of Canada, 2011 ONSC 6335, at paragraph 71, for a thorough analysis of material facts and pleadings.
[75] Rule 25.11 allows striking out all or a part of a pleading that:
a) may prejudice or delay the trial;
b) is scandalous, frivolous or vexatious; or
c) is an abuse of process.
A pleading that consists of commentary, argument or inserted for colour may be struck as scandalous. See: Canada (Royal Canadian Mounted Police) v. Canada (Attorney General), [2007] O.J. No. 4762 (Ont. S.C.J.), at paragraphs 18-19 for a helpful summary.
[76] The following addresses the challenged paragraphs in the amended statement of claim not already dealt with previously.
2E - satisfactory as related to claim for section 2 Charter violation.
2G-2O - struck – immaterial, evidence and commentary.
2T and 3A - struck – immaterial – may be revived if paragraphs 101-104 properly amended.
3-9 - satisfactory – while evidentiary in nature, they provide background and context.
9A - struck – immaterial, evidence and/or commentary.
10 - struck – evidence.
12-15 - struck – evidence.
16C-16 G - struck – evidence and/or commentary.
18B - struck – evidence.
70 - struck – evidence.
72-75 - struck – evidence and/or commentary.
80-84 - struck – evidence and/or commentary.
94 - struck – evidence and/or commentary.
SUMMARY
[77] For these reasons, both motions are granted in part, on the terms herein. A similar order is granted in the companion action of Mr. Vandermaas, for which I trust counsel can address. I may be spoken to, if necessary, regarding the ultimate orders.
[78] While there has been mixed success, if either party feels entitled to a cost award, brief written submissions are to be exchanged and delivered to my chambers in Cayuga within 30 days.
D.J. Gordon J.
Released: September 22, 2014