COURT FILE AND PARTIES
COURT FILE NO: 56120/15
DATE: 2015/12/03
ONTARIO
SUPERIOR COURT OF JUSTICE
5 WILLIAM JAMES LOUGHEED
LOUGHEED FAMILY ENTERPRISES
(aka THE LOUGHEED FAMILY TRUST)
Plaintiff/Responding Party and
10
15
20
25
HELEN JUNE LOUGHEED
JAMES FREDERICK LOUGHEED TODD LOUGHEED
FIONA LOUGHEED
MAR ION BATTERSBY
ASUMAN-BIRIKORANG aka RACH EL BATTERSBY
ISLAY SIEMINSKI
GAIL KASPRICK
Defendants/Moving Party
PROCEEDINGS
(at motion)
BEFORE THE HONOURABLE MADAM JUSTICE BRAID
on December 3, 2015, at ST. CATHARINES , Ontario
APPEARANCES:
30 M . Vanoostveen W . Lougheed
Counsel for the Moving Party/Defendants In person , self-represented , Respondent
(i)
Table of Contents
ONTARIO
SUPERIOR COURT OF JUSTICE
5 WITNESSES
10
Examination in-Chief
Cross
Examination
Re
Examination
15 EXHIBIT NUMBER
ENTERED ON PAGE
Order for Costs 7
20
25
Transcript Ordered :
30 Transcript Completed:
Ordering Party Notified:
January 15, 2016
February 11, 2016
February 16, 2016
REASONS FOR JUDGMENT
THURSDAY, DECEMBER 3, 2015
THE COURT: I have prepared brief oral reasons which I propose to read at this time.
5
REASONS FOR JUDGMENT
BRAID J. (Orally):
10 On September 23rct, 2015, a Statement of Claim was issued in court file number 56120/15 . The named Plaintiffs are William Lougheed and Lougheed Family Enterprises. The named Defendants are the parents of the Plaintiff, William Lougheed , and other family
15 members, neighbours and friends of the Lougheed family.
In this motion , the Defendants seek an order striking out the Statement of Claim on the grounds that it discloses no reasonable cause of action . The motion
20 has been brought under Rule 21 of the Rules of Civil
Procedure .
This motion was originally in court on October 22nct,
- On that date, Justice Walters made the following
25 endorsement :
Plaintiff has now served Defendants an amended Statement of Claim which has not yet been filed with the court. Plaintiff was
30 advised he should seek legal advice . Time
for defence to file amended Statement of
Reasons for Judgment - Braid, J.
Defence is extended to November 12, 2015.
The matter is adjourned to November 12, 2015, at 10:00 a.m. Costs of today reserved to November 12, 2015.
5
On November 12, 2015, the motion was back before the court. Justice McPherson made the following endorsement:
10 William Lougheed, Plaintiff, self-rep.
Mr. Vanoostveen, respondents, for moving
party . This is the second attendance wherein the Plaintiff is submitting that he wishes to amend the Statement of Claim. To date no
15 amended Statement of Claim has been filed,
although two such claims have been served on respondent counsel. Plaintiff submits that he is taking steps to retain counsel (Lancaster Brooks Welch) and requires
20 additional time to do so. The matter is adjourned to December 3, 2015 at 10:00 a.m. peremptory as against the Plaintiff. Costs of today reserved to December 3rct, 2015.
25 The Plaintiff, William Lougheed, referred to hereinafter as "the Plaintiff", attended to represent himself on today's date. He advised the court that he is formally withdrawing the claim against his parents,
Jim and June Lougheed. This effectively means that he
30 has withdrawn paragraph one of his Statement of Claim
amongst others.
Reasons for Judgment - Braid, J.
The Plaintiff advised the court that he will be representing himself throughout this action but states that he very recently retained counsel to assist with the drafting of a "fresh as new amended Statement of
5 Claim".
To date, the Plaintiff has provided counsel for the Defendants with four different versions of the Statement of Claim , the original Statement of Claim
10 before me plus three other amended versions, none of which have been filed with the court .
The Plaintiff verbally advised me today that he attempted to file the "fresh as new amended Statement
15 of Claim" yesterday but the court staff would not permit him to do so. He was directed to read Rule 26
of the Rules of Civil Procedure which sets out the process for filing an amended Statement of Claim. The Plaintiff admits that he was advised to read the rule
20 but has not yet done so.
Rule 26.02 sets out the process by which a Statement of Claim can be amended and reads as follows:
25 A party may amend the party's pleadings,
(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
30 action;
(b) on filing the consent of all parties and ,
4 .
Reasons for Judgment - Braid, J .
where a person is to be added or substituted as a party, the person's consent or;
(c) with leave of the court.
5
The Plaintiff wishes to delete two parties to the action in the new claim. As such he requires either the consent of the respondents, which I understand is not forthcoming, or leave of the court to amend the
10 claim.
The Plaintiff has not brought a motion to amend the Statement of Claim. He has been provided with ample opportunity to file amended material and/or to file a
15 motion to amend the claim but has failed to do so. Of course he did try to file an amended Statement of Claim
yesterday but the court staff properly pointed out the applicable rule . A motion must be brought or consent obtained.
20
The Plaintiff agrees that the Statement of Claim contains "21 errors". He says the Statement of Claim suffers from "lack of research”. He essentially consents to the claim being struck and/or seeks to
25 withdraw the claim.
I have reviewed the Statement of Claim and the factums provided by the parties. Even on a generous reading of the Statement of Claim I can find no reasonable cause
30 of action. The Plaintiff alleges that the "estate" of
his parents has suffered losses; however, his parents
Reasons for Judgment - Braid, J.
are still alive. The Plaintiff admits in paragraphs 62 and 74 of the claim that the Power of Attorney for the parents is held by others. He further admits that the property in question is held by his parents and he is
5 not on title to the property.
It is notable that there is no contract between the Plaintiffs and the Defendants. The Defendants did not owe the Plaintiffs a duty of care. There are no facts
10 to support vague allegations of libel and slander. In effect, there is no basis for monetary or other damages being sought in this claim.
In addition, this is not the proper process by which
15 the Plaintiff can obtain the remedy that he seeks or that I think he seeks. As far as I am aware there has been no finding of incapacity for either of the parents
and no finding that a person is in need of care .
20 There are existing Powers of Attorney. If there were no Power of Attorney and there were concerns about capacity, an application could be brought under the Substitute Decisions Act and/or the Healthcare Consent Act.
25
In the event that such an application were brought, the court would likely question the Plaintiff's interest in bringing such an application because of his admitted self-interest in using the parents' property for his
30 own benefit.
Reasons for Judgment - Braid , J.
Most concerning is paragraph 96 of the Statement of Claim , which is worth noting and which states as follows :
5 Throughout the remaining term of Jim and June's life the Plaintiffs would have reasonably expected to benefit substantially should the Defendants have honoured their promises and duties. The Plaintiffs are
10 therefore entitled to damages as a result of
their losses caused by the Defendants.
The court pointed out to the Plaintiff that this paragraph shows that the Plaintiff has his own self
15 interest at heart. The Plaintiff agreed that this paragraph appears to be worded in that fashion and says
that it was "awkwardly worded". This is one of the
paragraphs that the Plaintiff would remove from a
future amended claim . However, it is concerning to the
20 court that the Plaintiff seeks control over his parents' properties for his own self-interest.
The court has granted wide latitude to the Plaintiff in this case. Two adjournments were granted, at least one of which was on the understanding that he would retain
25 counsel. He has neglected to take basic steps to
request leave to amend his claim and he admits that the
original claim is deficient .
I find that the Statement of Claim discloses no
30 reasonable cause of action and it shall be struck. I
decline to grant leave to amend the claim .
7 .
Reasons for Judgment - Braid , J .
Although no amended claim is before me , I have urged
the Plaintiff to seriously consider whether he wishes
to file a new claim. If he does, I suspect that he can
expect that counsel for the Defendants will seriously
5 consider bringing a motion to strike the new claim. If that occurs, the Plaintiff may face additional cost consequences.
10
... SUBMISSIONS ON COSTS.
0 R D E R
15 BRAID J . (Orally):
It is indeed unfortunate that this matter has come to this stage. It is always troubling for the court to deal with matt ers that are family issues and that are
20 emotional and certainly dragging what one might
colloquial call "dirty laundry" before the court .
There is a very serious set of allegations that the Plaintiff has brought. There is a vague statement in
25 the claim as to fraud but it is the theme that runs throughout the claim and certainly on his submissions, the Plaintiff accused the Defendants of fraud. That was part of his oral submissions in the motion before me .
30 I am concerned about the nature of this action. I am
concerned about the Plaintiff 's self-interest in
Order for Costs - Braid, J .
bringing this action and even on his own submissions with respect to costs, makes a suggestion that somehow his father will end up being responsible for paying whatever costs order I make which I find to be
5 distasteful and disrespectful. In all of the circumstances a person who comes forward and claims to be acting in the best of interest of his father then says that his father will shoulder whatever costs of his actions.
10
I have considered the Bill of Costs and the submissions made by the counsel and by the Plaintiff. I am of the view that this entire action was improper, vexatious
and unnecessary. The correspondence provided by the
15 Plaintiff shows that he certainly has been very difficult with counsel for the respondents, who in my
view has been extremely civil and appropriate throughout this matter.
20 In all of the circumstances, I am prepared to order that the Plaintiff, Mr. William James Lougheed, personally shall pay the costs of the Defendants forthwith in the amount of $5,323.82, which is full indemnity plus HST. I believe that is the appropriate
25 amount.
I am not going to order anything more specific,
Mr . Vanoostveen , but I will say forthwith and you have a remedy if he does not pay in time.
30
MR . VANOOSTVEEN: Can I ask Your Honour to repeat the
Order for Costs - Braid , J.
amount just so I make sure I have it right?
THE COURT: Yes, $5,323.82 .
MR. VANOOSTVEEN : Thank you.
THE COURT: Actually, Mr. Lougheed , how long would it
5 take you to pay that?
MR. LOUGHEED : Your Honour, I'd ask for 30 days .
THE COURT : All right. So we'll order it to be pay, to be paid in 30 days. And, Mr. Vanoostveen , it can be paid to you on behalf of the Defendants, that's the
10 best way to do it?
MR. VANOOSTVEEN : Certainly.
THE COURT: We 'll give you until January the 4th .
Okay. Does that complete our list then?
MADAM REGISTRAR : It does, Your Honour .
15 THE COURT: All right. Thank you.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED.
C 0 U R T C 0 N C L U D E D
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FORM2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I, we Catherine Barrett , certify that
(Please print name of authorized person(s))
this document is a true and accurate transcript of the recording of December 3, 2015 Lougheed v. Lougheed et al in the Superior Court of Justice
(Name of Court)
held at St. Catharines , Ontario
(Court address)
taken from Recording No.
2111-CRT11-20151203-092817 , which has been certified in Form 1.
February 24, 2016
(Date)
Certificate of Transcript (rev.03/04)