COURT FILE NO.: CV-12-109093

DATE: 20150917

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sylviette Rita Brown, Trustee,

Murray Brown and Sylviette Brown as spouse

Plaintiffs

– and –

Ministry of the Attorney General/Ontario

– and –

Regional Municipality of York Police Services Board, Eric Jolliffe, Chief of Police for the Regional Municipality of York, Paul Pedersen, York Regional Police Superintendent, Keith Merith, York Regional Police Superintendent, Christopher Armstrong, York Regional Police Detective Constable, Jim Wright, York Regional Police Detective Constable and Jaylyn Casey

Defendants

Self-represented

David H. Elman, for the Defendants (except the Ministry of the Attorney General/Ontario and Jaylyn Casey)

HEARD: March 20, 2015

REASONS

edwards j.:

Overview

[1] The plaintiff, Sylviette Brown, Trustee, (“Brown”), seeks leave to amend her statement of claim which was filed in the Superior Court of Justice on May 22, 2012. A fresh amended statement of claim was attached to Brown’s motion record, which was filed with the Superior Court of Justice on July 3, 2014. Brown’s motion record was filed in response to the moving defendants’ motion to strike the original statement of claim, which was scheduled on April 11, 2013 to be heard on September 16, 2013. As a result of various adjournments, the moving defendants’ motion to strike was adjourned to July 4, 2014. Essentially then, Brown’s motion to amend was served and placed before the Court in response to the moving defendants’ motion to strike.

[2] As a result of a number of other adjournments, Brown’s motion to amend and the moving defendants motion to strike did not come back before the Court until March 20, 2015, at which time Brown filed with the Court yet another fresh as amended statement of claim in which Brown not only seeks to make amendments, but also add as plaintiffs Murray Brown and Sylviette Brown as spouse, and add new proposed defendants including the Ministry of the Attorney General/Ontario, Regional Municipality of York Police Services Board and Jaylyn Casey.

[3] By any stretch of the imagination the proposed pleadings of the plaintiff, or by now plaintiffs, has had a tortuous and checkered history. Counsel for the moving defendants quite properly, in my opinion, urged the Court to only address Brown’s motion to amend the statement of claim, filed as part of Brown’s motion record of July 3, 2014. I intend to deal with the “Fresh as Amended Statement of Claim II”, as filed with the Court on March 20, 2015, to bring some finality to this pleadings motion. In my view, by dealing with the new proposed amended claim in the context of the moving defendants motion to strike, I will achieve a just and more expeditious and less expensive determination of what would inevitably have been a further motion to amend, and yet a further motion to strike. I will refer to the Fresh as Amended Statement of Claim II as the new claim.

The Facts

[4] The moving defendants who sought to strike Brown’s original statement of claim were Eric Jolliffe, Paul Pedersen, Keith Merith, Christopher Armstrong and Jim Wright. I will refer to these defendants as the defendants.

[5] The plaintiff, as previously noted, commenced her claim by way of notice of action on April 20, 2012. The defendants are members of the York Regional Police Services (“YRPS”). On May 9, 2013, the plaintiff Brown was given leave to add the Regional Municipality of York Police Services Board (“the Board”), as a defendant to the original claim. Until the plaintiff Brown filed the new claim with the Court on March 20, 2015, she had not actually named the Board as a defendant.

[6] On April 11, 2013, the defendants scheduled a motion to strike the existing claim, which was returnable on September 16, 2013. The defendants’ motion record was served on February 27, 2013, with a factum which was served on September 4, 2013.

[7] The plaintiff sought, and an adjournment was granted, with respect to the motion to strike from September 16, 2013 to July 4, 2014. On July 3, 2014, i.e. the day before the second return date of the defendants’ motion to strike, the plaintiff Brown delivered a motion record seeking to amend the original claim.

[8] The plaintiffs are self-representing themselves, as is their right.

The Leave to Amend Motion

[9] The plaintiffs’ motion seeking leave to amend raises the fundamental issue as to whether leave should be granted, pursuant to Rule 26.01 of the Rules of Civil Procedure (“the Rules”).

[10] Rule 26.01 is drafted in language which dictates that the Court “shall” grant leave to amend on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[11] It is clear from a recent decision of the Ontario Court of Appeal in Marks v. Ottawa (City), 2011 ONCA 248 at para. 19, that while Rule 26.01 is drafted in mandatory terms, there is no absolute right to amend pleadings. The Court has a residual right to deny amendments where appropriate. In that regard, an amendment should not be allowed unless it is shown to raise an issue worthy of a trial and is prima facia meritorious. As well, an amendment should not be allowed, which if originally pleaded, would have been struck. Finally, proposed amendments must contain sufficient particulars and clarity to allow the responding defendants to understand the case that they have to meet.

[12] The defendants take the position that the proposed amendments are untenable for a number of reasons. First, and perhaps the easiest amendments to deal with, are those that relate to events which are out of time. At paragraph 19 of the new claim, the plaintiff claims damages with respect to events that took place in 2001. As well, at paragraphs 24 and 58 the plaintiff claims damages with respect to an event that took place on January 5, 2009.

[13] The plaintiffs’ notice of action was issued on April 20, 2012. There was nothing in the new claim that suggests any facts concerning claims made, with respect to the events in 2001 and 2009, were discovered at a date other than the date that they occurred. As such, I agree with the position of the defendants that the amendments in the new claim, insofar as they relate to events that occurred in 2001 and 2009, are untenable by virtue of the operation of the Public Authorities Protection Act, and/or the Limitations Act 2002.

[14] The defendants also take issue with respect to any amendment that would seek to reveal the identity of a confidential informant. It is well established that subject to an “innocence at stake” exception, which does not apply in this case, that both with respect to any claim made in a civil action and in a criminal matter the identity of a confidential informant is subject to an absolute privilege against disclosure. See Named Person v. Vancouver Sun, 2007 SCC 43 at para. 27. To the extent that the new claim seeks to reveal and/or obtain any information concerning the identity of a confidential informant, the amendment sought would amount to an abuse of process. In that regard, paragraph 50 of the new claim must be struck out. I note in that regard as well, that during the course of oral argument Brown agreed that she would not be proceeding with any part of her claim that would seek to reveal the name of the confidential informant.

Position of the Defendants

[15] Essentially, the position of the defendants as it relates to the fresh as amended statement of claim filed in July 2014 is as follows:

1. that it did not allow the defendants to understand the case that they needed to meet;

2. that it consists of bald allegations, unsupported legal conclusions and allegations that are both irrelevant and scandalous;

3. that it relates to events with respect to which the limitation period has expired;

4. that it seeks to advance causes of action not recognized at law; and

5. that it fails to plead the elements of those recognized causes of action that it seeks to advance.

[16] In dealing with the new claim filed with the Court on March 20, 2015, I have adapted the aforesaid submissions of counsel for the moving defendants with respect to this document.

Position of the Plaintiffs

[17] Brown filed a document entitled Response to Defendants Rule 21 Motion, that was received by me in Court on March 20, 2015. Brown takes the position, in her written argument, that Rule 21 of the Rules of Civil Procedure is a procedural rule to determine questions of law and that it is subservient to the Canadian Charter of Rights and Freedoms, Canadian Bill of Rights and the Criminal Code. I have considered Brown’s written response, as well as her oral submissions, which in part included the suggestion that it would be unfair to strike the plaintiffs’ claim where information only became available in late 2014.

Analysis

[18] Much of the plaintiffs’ new claim remains incoherent and pleads causes of action that are not known to law. As my Reasons unfold, to that extent the new claim will have to be struck. I am of the view that the new claim does, however, allege some recognized causes of action. These recognized causes of action include:

1. negligent investigation;

2. defamation;

3. abuse of authority;

4. deceit;

5. breach of sections 7, 8 and 15 of the Charter of Rights; and

6. conspiracy.

[19] While the new claim purports to plead the aforesaid recognized causes of action, for the most part the plaintiffs fail to plead even the most basic elements of these causes of action. Rather, the plaintiffs’ claim amounts to bald allegations and, as such, these claims must be struck. This includes the claim for defamation (paragraph 20), the claim of deceit, and the claim of conspiracy.

[20] The only events which are likely to support a cause of action include the following:

a) the alleged illegal warrant for search and seizure by police officer Detective Christopher Armstrong of 32 Shirlea Boulevard, Keswick, Ontario, on June 16, 2011;

b) the alleged illegal search and seizure with a warrant by Detective Keith Merith of 123 Macon on March 22, 2012; and

c) the alleged illegal search and seizure with a warrant by Detective Jim Wright of 32 Shirlea on March 22, 2012.

[21] In reviewing the plaintiffs’ pleading, this Court must construe the pleading as generously as possible, with a view to accommodating inadequacies in the form of the allegations due to drafting deficiencies. See Rauch v. Pickering (City), 2013 ONCA 740 at para. 94.

[22] In my review of the new claim, I have also focused on the substance of the pleading and not its form. While the plaintiffs may not have pleaded all the elements of the cause of action, as long as the existing pleading raises the factual matrix of concern to the plaintiffs and within which the defendants possible liability is to be located, the plaintiffs will be determined to have asserted a cause of action within the meaning of Rule 21.01. As such, as the Court of Appeal in Rauch stated at para. 95:

Thus, even if the plaintiff does not explicitly set out the technical cause of action on which it relies, if the facts pleaded implicitly advance such a claim the Court ought not to strike the pleadings.

Claims Based on Negligent Investigation

[23] In order to demonstrate negligent investigation, the plaintiffs must establish the following:

1. that the defendant officers owed a duty to the plaintiffs;

2. that these defendants breached the standard of care required of a reasonable police officer in similar circumstances;

3. that the plaintiff suffered a loss or damages that were compensable in tort law; and

4. there was a causal connection between the breach of the standard of care and the compensable damage suffered. See Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41.

[24] In the new claim, the plaintiffs have not overtly alleged that the defendant police officers owed them a duty of care.

[25] Applying the guidance provided by the Court of Appeal in Rauch, that a plaintiff does not have to specifically plead all elements of the cause of action so long as those elements are implicit in the rest of the pleadings, I am satisfied that it is implicit from the new claim that the investigating police officers owed the plaintiffs a duty of care when they conducted an investigation on the subject properties. The plaintiffs plead, at paragraph 26 of the new claim, that the police detectives had a duty to “protect the public from breaches of the Charter, Human Rights and Criminal Code protected rights”. The plaintiffs further plead at paragraph 26 that the “financial hardship” was “foreseeable”, and that it was “reasonably foreseeable” the police actions would cause the injury that resulted. The language of foreseeability demonstrates, in my view, that the plaintiffs allege that the police officers owed them a duty of care.

[26] As to the standard of care, this varies with respect to the various searches in question. With respect to the June 2011 search of 32 Shirlea, the negligence appears to be based on the fact that the police did not have proper grounds to conduct a search without a warrant. With respect to the March 2012 search of 123 Macon, the plaintiffs do not specifically plead that Detective Mason fell below the standard of care in the search of this property on March 22, 2012. Rather, the plaintiffs only state that the search was “a breach of trust” (paragraph 48), and that they suffered “economic loss” relating to the search (paragraph 18).

[27] With respect to the search of 32 Shirlea in March 2012, the plaintiffs allege that the police conduct fell below the standard of care in carrying out their search, as a result of the use of “excessive force” by using “multiple explosive devices and weaponry designed for demolition”, which was “unwarranted” given the circumstances of the search.

[28] As to the third part of the test in demonstrating negligent investigation, the plaintiffs much establish that they suffered loss in damages caused by the defendants’ conduct. In that regard, with respect to the June 2011 search of 32 Shirlea, there is no damage alleged as a result of this warrant for search and seizure.

[29] With respect to the March 2012 search of 123 Macon, the plaintiffs allege an $8,400.00 consequential loss of revenue; $2,500.00 for security cameras and security undertakings, and $2,500.00 for security cameras and security undertakings for 123 Macon Place, Markham, which arose from the March 22, 2012 warrant search at 32 Shirlea Boulevard, Keswick (see paragraph 18).

[30] As to the March 2012 search of 32 Shirlea, the plaintiffs allege a loss of $76,441.00 for the use of the cottage; $2,849.89 for property damages and personal expenses; $581.89 for the cost of securing the lake front seasonal residence; and $24,000.00 for the direct loss of cottage rental income due to litigation disclosure delay, which prevented rehabilitation of the lake front property for its intended purpose (see paragraph 17).

[31] While the plaintiffs allege that the aforesaid losses were a result of the “illegal searches and seizures”, the plaintiffs do not explain how. The plaintiffs do not particularize how the loss of the use of the cottage at 32 Shirlea for 24 months, and the loss at the property at 123 Macon for six months, is causally related to the alleged tortious conduct of the defendants. The only loss that flows from the allegations of misconduct is the $2,849.89 in “property damages” at 32 Shirlea.

Abuse of Authority

[32] In order to demonstrate abuse of authority, the plaintiffs must plead the following:

1. that the public officer deliberately acted unlawfully, that is in bad faith and with an improper motive;

2. that the officer was aware that the conduct was unlawful and likely to injure the plaintiff;

3. the injuries suffered were otherwise compensable in tort; and

4. that the tortuous conduct was the legal cause of the plaintiff’s injuries. (See Odhavji Estate v. Woodhouse, 2003 SCC 69)

Conclusions

The alleged claims made in tort

[33] There are numerous deficiencies with respect to the pleading to the tort of negligent investigation. With respect to the alleged warrantless search of 32 Shirlea by Detective Armstrong on June 16, 2011, the plaintiffs fail to cite damages compensable in tort, or outline how those damages were caused by the alleged police negligence.

[34] With respect to the search of 123 Macon by Detective Merith on March 22, 2012, the plaintiffs fail to plead how Detective Merith fell below the standard of care, or how his negligence caused the alleged damages.

[35] With respect to the search of 32 Shirlea by Detective Wright on March 22, 2012, the plaintiffs fail to properly explain how the loss was caused by the defendants’ conduct. By way of example, how did the police conduct cause a loss of rental income for 24 months, and where does the loss of $581.95 for the “costs of securing the lake from seasonal residents” come from, and how does this relate to the police conduct.

[36] By giving the new statement of claim a reading as generous as possible with a view to accommodating inadequacies, the claim of negligent investigation relating to the March 22, 2012 search of 32 Shirlea resulting in $2,849.89 will not be struck. As well, the application of the same principle equally applies to the plaintiffs pleading with respect to the first two elements of the abuse of authority/misfeasance of public office concerning the alleged acts of bad faith of the police in conducting the search of 32 Shirlea on March 22, 2012. The claims in tort with respect to the searches of the other two properties, however, must be struck as they fail to plead all of the elements of the tort, nor can those elements be inferred from the pleading.

Alleged Breach of Section 8 Right to Unreasonable Search and Seizure Under the Charter

[37] In order to demonstrate a breach of their section 8 Charter rights, to be secure from unreasonable search and seizure the plaintiffs must plead the following:

1. that the plaintiffs had a reasonable expectation of privacy in the thing searched and seized;

2. that the search procedure was unreasonable in that:

a) the search was not authorized by law; or

b) the law authorizing the search was unreasonable; or

c) the manner in which the search was carried out was unreasonable. (See R. v. Collins, 1987 84 (SCC))

Reasonable Expectation of Privacy

[38] In order to establish a breach of their section 8 rights, the plaintiffs must establish that they had a reasonable expectation of privacy in the home at 123 Macon, and the cottage property at 32 Shirlea. A review of the new claim would establish that both of these properties appear to be residential properties. A police search of a residential property clearly invades a reasonable expectation of privacy (see R. v. Silviera, 1995 89 (SCC)). The issue presented by the new claim is whether the plaintiffs themselves had a reasonable expectation of privacy in these properties.

[39] According to the new claim at paragraph one, Brown is the owner in trust of the properties and chattels at both 123 Macon and 32 Shirlea. The plaintiff, Murray Brown, does not allege any interest in these properties, but only that he was the “target” of such searches (see paragraph 2). Mr. Brown admits that he is “limited in his ability to recover damages”, since the searches were “carried out at the third party residence” (see paragraph 24). As such, Mr. Brown’s claim for a violation of his section 8 rights must be struck as he pleads no reasonable expectation of privacy in the targeted properties.

[40] Brown’s claim is, however, more complicated than the claim of Mr. Brown. The pleading, as it is presently framed, provides insufficient information as to whether or not she is pleading a reasonable expectation of privacy at the subject properties. In R. v. Edwards, 1996 255 (SCC), the Supreme Court of Canada notes that a person asserting a section 8 interest must arise from more than a mere proprietary interest in the property. The reason for this is because section 8 is a personal right which protects people and not places.

With the guidance accorded by the Supreme Court, a reasonable expectation of privacy must be determined on the basis of the totality of the circumstances, including the following:

I. presence at the time of the search;
II. possession or control over the property of place searched;
III. ownership of the property or place;
IV. historical use of the property or item;
V. the ability to regulate access, including the right to admit or exclude others from the place;
VI. the existence of a subjective expectation of privacy;
VII. the objective reasonableness of the expectation.

[41] The only information provided by the new claim is that Brown was the owner in trust of the home at 123 Macon, and the cottage property at 32 Shirlea. The new claim establishes that she was not present at the time of the search. The new claim does not establish whether she had possession or control over the properties; the historical use of the properties; whether she had the ability to regulate access, including the right to admit or exclude others from the property. Further particulars with respect to this claim must, therefore, be provided by Brown.

Reasonableness of the Search and Seizure

Warrantless search of 32 Shirlea

[42] A search without a warrant is presumptively unreasonable, see Hunter v. Southam Inc., 1984 33 (SCC). When a search is made without a warrant, the police must show something else that would make the search lawful, such as exigent circumstances or search incident to arrest. In this case, the plaintiff has pleaded at paragraph 41 of the new claim that the search of 32 Shirlea on June 16, 2011 was made without a warrant. The plaintiffs further plead at paragraphs 41 and 53 that no exigent circumstances existed at the time to justify the search. As such, the plaintiffs have sufficiently pleaded this element to establish that the search was unreasonable.

Search with a Warrant of 32 Shirlea and 123 Macon

[43] Where the police have obtained a warrant, the plaintiffs must either plead; (a) facts to demonstrate that the search was not authorized by law (i.e. the warrant was obtained on false pretences or without the requisite reasonable and probable grounds), or (b) that the search was carried out in an unreasonable manner.

[44] In the new claim, the plaintiffs have pleaded facts to suggest that the warrant for the search of 32 Shirlea should be set aside. At paragraph 43 of the new claim, the plaintiffs plead that Detectives Wright and Armstrong misled two justices of the peace respecting the probability of a prohibited firearm being found at the cottage at 32 Shirlea.

[45] As well, the plaintiffs have pleaded that the search at 123 Macon was “procured in the same deceitful manner” as the warrant for 32 Shirlea. The plaintiffs, however, do not provide any particulars as to how these defendant officers mislead the justice of the peace in obtaining the warrant. The plaintiffs only make reference to a much older warrant application from 2001 for a search of the same property, which was based on a search for a “fictitious weapon” and was “riddled with deceitfulness, gross information…”. In order to remedy the deficiency in this pleading, the plaintiffs must plead specific grounds on which they believe that the warrant for 123 Macon should be set aside.

[46] The plaintiffs also plead that the search of 32 Shirlea was carried out in an unreasonable manner, through the application of excess and unnecessary force used by the police (see paragraph 26).

Charter Remedy

[47] The plaintiffs seek a declaration that their Charter Rights under section 8 have been infringed (see paragraph 11). The plaintiffs further claim a right to a damage award to remedy the infringement of the rights under section 24(1) of the Charter (see paragraphs 11, 40 and 43). The plaintiffs specifically claim punitive damages to remedy the infringement, at paragraph 26 of the new claim, outlining the specific conduct which warrants these punitive damages.

[48] Whether the plaintiffs are entitled to claim damages at large with respect to the alleged breach of their Charter rights, in addition to a claim for punitive damages, is open to debate. The Supreme Court of Canada in Guimond c. Quebec (Procurur General), 1996 175 (SCC) determined that a plaintiff may not be limited to an action for damages under the general law of civil liability, but may be entitled to seek compensatory and punitive damages as an “appropriate and just” remedy under section 24(1) of the Charter. In Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 1998 14826 (ON SC), it was determined that where compensatory civil damage had been awarded, no additional Charter damages should flow as this would constitute “double compensation”.

[49] It is conceivable that the plaintiffs may be able to recover a “symbolic” or “moral” damage award for the June 2011 search of 32 Shirlea, where no loss or injury was claimed. Similarly, the plaintiffs may be able to recover similar damages for the March 2012 search of 123 Macon, where the loss or injury claimed has not been properly linked to the conduct of the police. However, to the extent that the plaintiffs recover civil damages for the March 2012 search of 32 Shirlea, it is open to dispute whether Brown may or may not be able to recover additional Charter damages.

Conclusions Regarding Charter Breach Claim

[50] Most of the elements necessary to plead a claim for breach of Brown’s section 8 Charter rights are found in the new claim. In order, however, to move this part of her claim forward, her pleading requires further amendment and particulars in the following ways:

a) since Brown is only an owner in trust of the subject properties, she must plead the circumstances under which she has a reasonable expectation of privacy in these properties; and

b) she must plead the basis on which the officer or officers mislead the justice of the peace in procuring the warrant for the March 22, 2012 search of 123 Macon.

Conclusion

[51] The following claims may proceed with the amendments that I have referenced in my Reasons above:

1. negligent investigation of 32 Shirlea on March 22, 2012 (paragraph 17 and 26);

2. abuse of authority/misfeasance of public office in the same search at 32 Shirlea on March 22, 2012 (paragraph 17, 55 and 56).

[52] The following claims require additional elements to be plead:

1. negligent investigation of 32 Shirlea on June 16, 2011 (paragraphs 52 and 53). In that regard, the plaintiff must plead the loss/injury and how this was caused by the defendant police officers’ conduct;

2. negligent investigation of 123 Macon on March 22, 2012 (paragraphs 18 and 57). In that regard, the plaintiffs must plead the facts that show how the defendant Detective Merith fell below the standard of care;

3. the plaintiffs must also plead how the loss/injury was caused by the police conduct;

4. breach of section 8 rights (paragraphs 11, 12, 33, 37, 39, 40, 41, 42, 43 and 53). With respect to this claim, the plaintiff Brown must plead a reasonable expectation of privacy at the subject properties of 32 Shirlea and 123 Macon. With respect to the March 22, 2012 search of 123 Macon, the plaintiff must plead the facts demonstrating that the officers misled the justice of the peace in obtaining a warrant.

Claims that will be Struck

[53] The following claims shall be struck out, outright, with no leave to amend as being statute barred, disclosing no known cause of action, or by failing to plead any of the necessary elements.

Statute Barred Claims

[54] The claims at paragraph 19 with respect to the seizure of weaponry with a value of $350,000.00 by Keith Merith at 123 Macon in 2001, as well the claims at paragraph 24 and 58 with respect to the negligent investigation for break and enter at 123 Macon, reported on January 5, 2009.

No Cause of Action Known to Law

[55] The following paragraphs shall be struck with no leave to amend:

1. the declarations listed under paragraphs 7, 8, 9, 10, 13 and 14;

2. the economic loss relating to 23621 Park Road, Georgina (paragraph 22);

3. the special damages for interference with management of Trust Properties;

4. loss and enjoyment of Trust Properties (paragraph 23);

5. damages for concealment and redaction of partial resealing order, and failure to disclose unsealed documents (paragraphs 28, 29, 30, 31 and 32);

6. failure to execute a second warrant on principle residence, depriving defendants of a clear remedy at law (paragraph 35);

7. that the plaintiff, Mr. Brown, has no remedy or protection under the Criminal Code and the limited remedy under the Charter (paragraph 34);

8. unreasonably exposing the plaintiffs personal financial and moral liability associated with repeated searches to Trust Properties and chattels (paragraph 36);

9. that Brown may claim “spousal unity” to recover for violation of her husband’s rights (paragraph 38);

10. Police Services Board failure to ensure effective policing, as per the relevant provisions of the Police Service Act (paragraphs 45, 46 and 47);

11. breach of trust by searches, due to the fact that “reasons to believe” were motivated by ulterior purposes, and grounds were “fictitiously generated” since no criminal charges could ever result (paragraphs 48 and 49);

12. disclosing the identity of the confidential informant in an attempt to entice hatred and promote retaliation (paragraph 50).

Failure to Plead the Elements of the Cause of Action/Bald Allegation

[56] The following paragraphs shall be struck with no leave to amend:

1. damages for constitutional breaches by administrative employee Gerri Wyatt (paragraph 15);

2. damages for violation of security of person (paragraph 16);

3. negligent investigation for break and enter at 123 Macon (paragraph 24 and 58);

4. economic loss for meddling in fire department attendances and Hydro One disconnect et cetera (paragraph 22);

5. interference with, loss of enjoyment of trust properties (paragraphs 21 and 23);

6. harassment, defamation, profiling/discrimination and mental distress (paragraphs 20, 23 and 58);

7. nervous shock (paragraph 23);

8. violation of sections 2, 7, 11(a), 12 and 15 of the Charter, and abuse of process (paragraphs 29 and 30);

9. malicious prosecution (paragraphs 21, 27 and 33);

10. violation of the Police Services Act and the conduct and duties of police officers respecting investigations by the SIU (paragraph 44); and

11. the police colluded and conspired against the plaintiffs (paragraphs 50 and 51).

[57] As well, paragraphs 3, 4 and 6 of the new claim are struck, as the plaintiffs have failed to establish a cause of action against these three organizations/individuals.

[58] It will be apparent to anyone reading these Reasons, and most importantly the plaintiffs, that I have construed the new claim as generously as possible, with a view to accommodating the inadequacies in the form of the allegations due to drafting deficiencies. I recognize that the plaintiffs are self-represented, and should be given every opportunity to present their case to the extent that the law provides.

[59] Where I have provided that the allegations in the new claim are to be struck with no leave to amend, I have done so as in my view the plaintiffs have been afforded every opportunity to put before the court a statement of claim that would survive an attack under Rule 21 by the moving defendants. As well most, if not all, of those parts of the new claim that have been struck stand no chance of rehabilitation such that they could survive any further attack by the moving defendants by way of a further motion to strike.

[60] Where I have required the plaintiffs to file a fresh as amended statement of claim addressing the concerns of this Court, the plaintiffs are required to do so no later than December 31, 2015. If an amended statement of claim is not filed with this Court by December 31, 2015, the plaintiffs shall be deemed to have abandoned those claims which this Court has required further amendments to.

[61] With the filing of a fresh as amended statement of claim that addresses the concerns of this Court, the defendants shall have until February 15, 2016 to file their statement of defence. The defendants shall be at liberty to plead any appropriate limitation defence with respect to any of the new parties and new claims that were not advanced in the fresh as amended statement of claim filed with the Court on July 3, 2014. As well, the defendants are not precluded from advancing any further motions with respect to limitation defences. The plaintiffs shall have until March 30, 2016 to file any reply. With the close of pleadings, the parties shall arrange a case conference with me as I intend to case manage this action. At the case conference to take place in early 2016, the parties shall attend with the expectation that a time table shall be fixed for the exchange of productions; the scheduling of examinations for discovery; and the scheduling of any interlocutory motion that might be required. It is my expectation that this action shall be ready for a judicial pre-trial by no later than March 30, 2017.

[62] While the plaintiffs’ new claim has, in a very limited respect, been allowed to proceed with further anticipated amendments, in my view the defendants were significantly more successful in the motion to strike than the plaintiffs were with respect to the motion to amend. This is particularly so, given that this Court provided the plaintiffs a significant indulgence by dealing with the plaintiffs’ new claim filed with the Court on the same day that the motion to strike was to be heard. In my view, the defendants are, subject to receiving submissions from the plaintiffs, entitled to their costs, including the various attendances before me prior to the hearing of the motion. I will receive written submissions from the parties with respect to the issue of costs, to be received no later than October 31, 2015. If written submissions have not been received by any of the parties prior to that date, the Court will assume that the issue of costs has been resolved by the parties.

Justice M.L. Edwards

Released: September 17, 2015