Court File and Parties

BROCKVILLE COURT FILE NO.: 15-0775 DATE: 20160630 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Marleau, Plaintiff AND: City of Brockville and Brockville Police Sgt. Todd Bertrend, Defendants

BEFORE: Madam Justice A.C. Trousdale

COUNSEL: Robert Marleau, self-represented John D. Simpson, Counsel for the Defendants

HEARD: March 16, 2016

Endorsement

[1] This was a motion by the Defendants, the City of Brockville and Brockville Police Sgt. Todd Bertrend (herein “the Defendants”) pursuant to Rule 2.1.01, Rule 21.01(1), Rule 21.01(3)(d), and Rule 25.11 (b) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requesting the following Order:

(a) striking out the Plaintiff’s Claim without leave to amend, (b) in the alternative, staying or dismissing the Plaintiff’s action; (c) in the further alternative, striking or expunging all or part of the Plaintiff’s Claim; and (d) Costs on a substantial indemnity basis.

[2] The basis for the motion is that the Defendants argue that the Plaintiff has not adhered to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Defendants claim that the Plaintiff’s pleadings are disorganized, are argumentative and do not plead the necessary facts to support his purported causes of action. Further the Defendants claim that the Plaintiff’s pleadings are abusive, and do not plead causes of action known to law. The Defendants claim that the Plaintiff’s claim is difficult to go through as it is more of a story rather than a pleading with an identified cause of action.

[3] The Defendant Orren Louch named as a Defendant in the Plaintiff’s Claim did not participate in this motion.

[4] On January 13, 2016, Justice Pedlar dismissed the Plaintiff’s Claim as against the Landlord and Tenant Board by way of a ruling pursuant to Rule 2.1 of the Rules of Civil Procedure, on the basis that the Landlord and Tenant Board are not a suable entity.

[5] The Plaintiff claims damages of $10,000,000 from the Defendant, City of Brockville for actions of their Police Force for:

(a) General Damages for infringement or denial of constitutional rights under the Canadian Charter of Rights and Freedoms for fair treatment, breach of statutory duty, abuse of process and power; (b) punitive, exemplary and aggravated damages for malicious actions; (c) harassment and intimidation by frivolous and vexatious applications; (d) continuous intentional infliction of nervous shock; (e) continuous organized deceits misrepresentations [sic]; (f) defamations against the claimant; (g) conspiracy by police; (h) special damages; (i) pre-judgment interest; (j) costs; and (k) denial of equal rights by police.

[6] The evidence filed on the motion by the Defendants was the Plaintiff’s Claim itself.

[7] The Plaintiff states that he has done his best as a self-represented party to put forward his claim and that his claim should not be struck out for lack of strict compliance with the Rules of Civil Procedure. He argues that he should be given leave to amend if his claim is found not to comply with the Rules of Civil Procedure. In response to the Defendant’s motion, the Plaintiff filed written submissions which were 263 pages in length. The submissions repeated a lot of material which was contained in the Plaintiff’s claim as well as additional material.

Background

[8] The Plaintiff claims that for a period of at least ten years the City of Brockville through the actions of the Brockville Police have abused their powers when dealing with him, have targeted him unfairly, have pursued numerous unjustified charges against him which were found in his favour, and have denied him his rights. The Plaintiff claims that this has gone on to such an extent that he is now prevented from ever calling on the Brockville Police to assist him regarding any crimes allegedly committed by others against him because the Brockville Police refuse to investigate such alleged crimes and refuse to have anything to do with him for no justified reason.

[9] The Plaintiff claims that as a result of the treatment of him by the Brockville Police, he has post-traumatic stress disorder. He further claims that the police are aware of this as he has told the police about his diagnosis. He claims, however, that the police have intentionally continued to harass him which has aggravated his condition.

[10] The Plaintiff’s claim against Brockville Police Sgt. Todd Bertrend relates to an incident which allegedly occurred in November, 2013. The Plaintiff alleges that he went to the Brockville police station to complain of illegal eviction, assault and death threats against him, and the theft of many of his belongings. The Plaintiff claims that Sgt. Bertrend made it clear to the Plaintiff that the Police had no intention of dealing with him, or helping him. The Plaintiff claims that Sgt. Bertrend in fact, threatened to arrest the Plaintiff. Sgt. Bertrend then followed the Plaintiff to a particular property at which the Plaintiff was allegedly a legal tenant and again threatened to arrest the Plaintiff if he set foot on that property.

[11] The Plaintiff claims that he has suffered damages as a result of the Brockville Police, and Sgt. Bertrend refusing to investigate crimes allegedly committed against him and as a result of their conduct towards him.

The Test For Striking Out A Pleading As Disclosing No Reasonable Cause of Action Or No Possibility of Success

[12] The test for determining whether a pleading should be struck out is set out in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the pleading discloses no reasonable cause of action? Only if the action is certain to fail because it contains a radical defect should it be struck out. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential of a strong defence should prevent the plaintiff from proceeding.

The Test For Striking or Expunging A Pleading As An Abuse Of The Process Of The Court

[13] The test for dismissing an action for abuse of process is set out in the case of Phillion v. Ontario (Attorney General) (2014), 2014 ONCA 567, 376 D.L.R. (4th) 618, 121 O.R. (3d) 289 (C.A.) at para. 49 where it is stated the orders dismissing actions for abuse of process are only to be granted in the clearest of cases and only when allowing the action to proceed would bring the administration of justice into disrepute.

Requirements for Pleadings

[14] Rule 25.06(1) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that every pleading shall 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.

Disposition

[15] The Plaintiff’s Claim is 47 pages long with 165 paragraphs. The Plaintiff sets out the nature of his Claims at the beginning of the Claim. However, thereafter, the Plaintiff has failed to recognize the necessity to properly plead the facts supporting his claims as opposed to improper pleading of evidence. Throughout much of the Plaintiff’s pleading, he pleads argument, law, opinion, and evidence which is not proper pleading. In a number of instances the pleading is repetitive. The Plaintiff has also failed to plead some or all of the necessary facts to support some of the torts for which he claims damages.

[16] I have gone through the Plaintiff’s Claim. I have come to the conclusion that the claim must be struck out entirely with leave to amend in accordance with the guidance set out in this endorsement as the amendments required are so substantial that preparation of a new Claim is required. The Plaintiff is advised that for each claim he makes, he needs to plead the dates, the connection to the Defendants against whom he claims, and the facts which supports the claim he makes. In preparing his new pleading the Plaintiff would be well advised to remove those claims which are not supported by the facts. Many of the claims made by the Plaintiff do not refer to the date at which the claim allegedly arose or only include the day and month but not the year.

[17] In his new pleading, the Plaintiff should not plead the law, nor caselaw, nor quote from books, nor make his arguments. The pleading should only set out the claims which the Plaintiff is making against the Defendants and the facts upon which the Plaintiff relies in support of those claims.

[18] I have determined that the Plaintiff should be given leave to amend as I am unable to find at this stage that it is plain and obvious that the Plaintiff’s Claim discloses no cause of action and that his claim will not succeed. Further, I am unable to find at this stage that allowing the action to proceed would bring the administration of justice into disrepute.

Plaintiff’s claim re constitutional rights and breach of statutory duty and abuse of process and power

[19] The Plaintiff claims that the Defendants are liable for general damages for infringement or denial of constitutional rights under the Canadian Charter of Rights and Freedoms for fair treatment. In connection to that, the Plaintiff has referred to “breach of statutory duty, abuse of process and power.” The Plaintiff also claims that there has been a denial of equal rights by police who had a double standard when dealing with the Plaintiff.

[20] I agree with the Defendants that the Plaintiff has not specifically pleaded which constitutional right has allegedly been violated. He pleads he has been denied “fair treatment” by the Defendants as well as he claims there has been a denial of equal rights to him by the police. Perhaps he is referring to Section 15 of the Canadian Charter of Rights and Freedoms to the right to equal protection and to equal benefit of the law, but this is unclear and must be remedied.

[21] The Plaintiff has pleaded breach of statutory duty, and abuse of process and power. The Plaintiff needs to provide the facts of when such alleged breaches and abuse took place, by whom those breaches were committed, and what acts constituted those breaches. In some respects, the Plaintiff has pleaded some facts against Brockville Police Sgt. Todd Bertrend regarding alleged breach of statutory duty and abuse of process, although the timing and facts of the events leading up to the Plaintiff’s report to Sgt. Todd Bertrend are not particularly clear. It appears that the Plaintiff may also be alleging the tort of negligent investigation against Sgt. Bertrend and against other Brockville Police Officers, although again this is not clearly stated.

[22] In addition, other instances of alleged breaches by the Defendants are not clear as to the facts of what are the alleged breaches, when they allegedly took place, who was involved and how the breaches took place. As argued by the Defendants and as set out in Lorch v. McHale, [2008] 35685 (Ont. S.C.J. aff’d [2009] ONCA 161 (Ont. C.A.):

In an action for abuse of process, a plaintiff must plead that (1) the original process was initiated for an improper and ….. collateral purpose and (2) that there existed some overt act or threat, separate and distinct from the proceedings themselves but related to the improper purpose.

[23] It appears that the Plaintiff may be alleging misfeasance in public office. The elements of the tort of misfeasance in public office were set out in the case of Odhavji Estate v. Woodhouse, 2003 SCC 69 where at para. 32, the Court states:

… the tort of misfeasance in public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.

Plaintiff’s claim for malicious actions and harassment and intimidation by frivolous and vexatious applications

[24] The Plaintiff claims that since 2005, there have been various acts of omission, aggression, malfeasance in public office, negligent police investigations, unnecessary police brutality, unlawful arrest and detention and other unwarranted actions by the Brockville Police and others against him. The Plaintiff needs to plead the facts of these alleged malicious actions including the time of such actions, what happened, where it happened, who was involved, and their connection to the Defendants. The Plaintiff’s pleading is deficient in that regard.

[25] It is possible, although not totally clear, that the Plaintiff may be making a claim for malicious prosecution, in which case he needs to plead the necessary elements of that tort as set out by the Supreme Court of Canada in Miazga v. Kvello Estate, [2009] SCC 51 (S.C.C.), at paragraph 3:

To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect.

[26] If the Plaintiff is claiming that the Defendants are liable for the tort of intimidation, the Plaintiff must plead the necessary elements of the tort which in the case of The Score Television Network Ltd. v. Winner International Inc., 2007 ONCA 424 were set out as including 1) a threat and 2) intent to injure 3) some act taken or forgone as a result of the threat and 4) as a result of which the plaintiff suffered damages.

Continuous intentional infliction of nervous shock

[27] The Plaintiff is possibly referring to the tort of intentional infliction of mental suffering although this needs clarification. The tort of intentional infliction of mental suffering has three elements as set out in the case of Boucher v. Wal-Mart Canada Corp., [2014] ONCA 419, (Ont. C.A.), at para. 41. The Plaintiff must prove:

(1) The defendant’s conduct was flagrant and outrageous; (2) The defendant’s conduct was calculated to harm the Plaintiff; (3) The defendant’s conduct caused the Plaintiff to suffer a visible and provable illness.

[28] Accordingly, if pleading the claim of intentional infliction of mental suffering, the Plaintiff needs to plead the facts to establish the three aforesaid elements of the tort set out above.

Continuous organized deceits misrepresentations [sic]

[29] The Defendants argue that this is not a cause of action known to law and is patently on its face without merit and ought to be struck.

[30] There is a tort of civil fraud which is sometimes known as the tort of deceit. It is uncertain as to whether that is what the Plaintiff meant. In the case of Hryniak v. Mauldin (2014), 2014 SCC 7, 366 D.L.R. (4th) 641, 46 C.P.C. (7th) 217 (S.C.C.) at paras. 89-92, the Supreme Court of Canada set out the required elements of the tort of civil fraud as being:

(1) A false representation made by the defendant; (2) Some knowledge or recklessness as to the falsehood of the representation on the part of the defendant; (3) An intention on the part of the Defendant that the Plaintiff would act on the false representation; (4) As a result of the Plaintiff acting on the false representation, the Plaintiff suffered a loss.

[31] If the Plaintiff intends to make this claim, he will need to plead the facts necessary to prove the four aforesaid elements of that claim. If the Plaintiff does not have the facts to support this claim, he should delete this claim from his amended pleading.

Defamations Against the Plaintiff

[32] If the Plaintiff intends to continue with his claim for defamation, he will need to provide the facts to prove three elements as set out in Guergis v. Novak, 2013 ONCA 449 (Ont. C.A.) at para. 39:

A defamation claim requires the plaintiff to prove three elements: 1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; 2) the words in fact referred to the plaintiff; and 3) the words were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

[33] The Plaintiff will need to plead what were the statement(s) made, who made them, on what date, where they were made, and to what other persons other than the Plaintiff the words were communicated. The Plaintiff will also need to set out what damages he says resulted to his reputation and standing in the community as a result of the alleged defamation.

Conspiracy By Police

[34] To support a claim for conspiracy, the Plaintiff must plead the facts necessary to establish the following elements as set out in Normart Management Ltd. v. West Hill Redevelopment Co. Ltd., 37 O.R. (3d) 97, [1998] O.J. No. 391 (Ont. C.A.):

The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.

Special Damages

[35] The Plaintiff claims special damages. He will need to specify the amount of special damages claimed by him and what are the facts upon which he claims these special damages.

Other

[36] I would strongly suggest that if at all possible, the Plaintiff obtain some legal advice from a lawyer experienced in civil litigation with respect to the claims that he intends to pursue in his amended Claim to ensure that he has the factual grounds to make such claims and to ensure that he properly pleads the necessary facts to support those claims.

[37] The Plaintiff is cautioned that civil litigation is very expensive and that each party has the possibility of being responsible for the other parties’ legal costs if the claim or the defense is unsuccessful. This can run into large sums of money for the unsuccessful party.

Order

[38] The Plaintiff’s Claim is struck with leave to the Plaintiff to serve and file an amended Claim within 90 days of the release of this endorsement, and with the Defendants to have a 30 day right of Reply. The Plaintiff’s approval of the draft Order shall not be required.

Costs

[39] If the parties are unable to resolve the issue of costs between them, the Defendants may submit written submissions as to costs of no more than 4 typewritten pages plus a draft Bill of Costs by July 28, 2016. The Plaintiff may submit written submissions as to costs of no more than 4 typewritten pages plus a draft Bill of Costs by August 25, 2016. The Defendants may submit any reply by September 8, 2016. In default of any written submissions as to costs within the timelines set out herein, there shall be no order as to costs.

Madam Justice A.C. Trousdale Date: June 30, 2016

BROCKVILLE COURT FILE NO.: 15-0775 DATE: 20160630 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: Robert Marleau Plaintiff - and - City of Brockville and Brockville Police Sgt. Todd Bertrend Defendants ENDORSEMENT Trousdale J. Released: June 30, 2016