Court File and Parties

COURT FILE NO.: CV-14-536011

MOTION HEARD: 20160330 and 20160505

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALLISON BRUNN and KELLY BRUNN, Plaintiffs

AND

HALTON CHILDREN’S AID SOCIETY, KARINA CAL, and MARY LYNN KELLIE, Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL: Counsel for plaintiffs: Deborah Berlach and Gaetana Campisi, Stieber Berlach LLP Fax: 416-366-1466

Counsel for defendants: C. McGoogan, DuVernet, Stewart Fax: 416-234-0993

HEARD: March 30, 2016 and May 5, 2016

REASONS FOR ENDORSEMENT

[1] The defendants seek to strike portions of the Fresh As Amended Statement of Claim pursuant to rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, (“rules”) for being improper pleadings with leave to amend.

Background to Action

[2] This action arises out of a child protection proceeding brought by the defendant, Halton Children’s Aid Society (“the Society”), against the plaintiffs in relation to their twin children, G.B. and T.B. The proceeding was ultimately withdrawn and a costs motion was to be heard. The defendants, Karina Cal (“Cal”) and Mary Lynn Kellie (“Kellie”), were employees of the Society.

[3] In the child protection proceeding, the Society alleged that the plaintiffs’ prematurely born twins had suffered “suspicious injuries” and obtained an order making the children wards of the Society for seven months.

[4] In the case of the child, G.B., the suspicious injuries were a purported occipital head fracture, acute subdural hemorrhaging, and retinal hemorrhaging. These three symptoms were historically viewed by some members of the medical field as a “triad” of symptoms which indicated abuse, referred to as “shaken baby syndrome”. The “triad theory”, as it came to be known, has since been discredited in Ontario given the results of a public inquiry conducted by the Province of Ontario with respect to pediatric forensic pathology. The commissioner appointed to lead the public inquiry was Justice Stephen Goudge of the Ontario Court of Appeal. The inquiry’s report was released in 2008.

[5] In the case of the child, T.B., the Society alleged in the child protection proceeding that T.B. also had “suspicious injuries”, specifically a healed fracture of one of his rear ribs.

[6] After pursuing the child protection proceeding for over a year, the Society withdrew its application pursuant to a Voluntary Services Agreement between the plaintiffs and the Society.

This Action

[7] This action was commenced by notice of action on September 9, 2015 and the statement of claim was issued on October 7, 2015. On November 13, 2015, the statement of claim was amended.

[8] The plaintiffs seek declaratory relief, general damages for misfeasance in public office and infringement of their right to security of the person guaranteed by section 7 of the Canadian Charter of Rights and Freedoms (“Charter”), punitive damages, full indemnification for all legal fees and disbursements incurred in defending the child protection proceeding and costs of this action. They allege that the defendants abdicated their duty under the Child and Family Services Act, R.S.O. 1990, c. C.11, to act in the best interests of the children, and instead focused solely on winning the child protection proceeding. They further claim that the defendants acted in bad faith and without regard to the ethics of their profession, to their duties to the children, to the law or to the rules of the court.

[9] On December 8, 2015, Justice Archibald ordered that the plaintiffs’ costs motion in the child protection proceeding be transferred from the Ontario Court of Justice to the Supreme Court of Justice and heard together with this action. Subsequently, on December 17, 2015 the defendants filed a notice of intent to defend.

[10] The following month, in January 2016, the defendants sought a request for this motion to be assigned to the long motion list and the motion was ultimately heard on March 30, 2016 and May 5, 2016.

Motion to Strike Portions of the Fresh As Amended Statement of Claim

[11] The plaintiffs delivered a 70-page Fresh As Amended Statement of Claim (“statement of claim”) which contains 260 paragraphs. The defendants seek to strike 192 paragraphs on the grounds that large portions are scandalous, vexatious and/or frivolous, and large portions do not comply with rule 25.06 as they contain evidence, argument, immaterial allegations, colourful or inflammatory language and lack of material fact. The defendants claim that they are unable to respond to the statement of claim in its present form.

[12] The plaintiffs strongly opposed this motion and made no concessions on any of the impugned paragraphs. They filed a 48-page factum that exceeded the maximum length for factums by 18 pages, in contravention of the Consolidated Practice Direction in the Toronto Region. They raised preliminary issues regarding the jurisdiction of a Master to hear the motion and the right of the defendants to bring this motion based on Rule 2.02(b) where rulings were required.

[13] The plaintiffs argue that they are required under the rules and the applicable authorities to plead full particulars of the allegations pled in the statement of claim of deliberate and unlawful conduct of the Society, and that the Society knew that its conduct was unlawful and that it was likely to harm the plaintiffs. In addition, they submit that full particulars are required to be pled given the allegations of intention and knowledge of the defendants in contravening the plaintiffs’ Charter rights.

Applicable Rules of Civil Procedure

[14] Regarding the rules of pleading, rule 25.06(1) requires a party to plead “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.”

[15] Rule 26.06(7) relates to documents and conversations. The rule states:

(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.

[16] However, rule 25.06(8) provides that in cases where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

[17] The defendants bring this motion pursuant to rule 25.11 which provides as follows:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[18] Also relevant are rules 1.04(1), 2.01(1)(a) and 2.03 which provide:

1.04(1) These rules shall be liberally construed to secure the just, most expeditous and least expensive determination of every civil proceeding on its merits.

2.01(1) a failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute;

2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.

Jurisdiction of a Master to Hear Motion

[19] The plaintiffs submit that a Master does not have jurisdiction to hear this motion on the grounds that what the defendants are really asserting in this motion is that the issues raised by the plaintiffs do not disclose a reasonable cause of action. In the alternative, the plaintiffs contend that the defendants are seeking to completely strike out a discrete legal issue, namely the applicability of and their compliance with the recommendations of a public inquiry. On either of those grounds, the plaintiffs state that a Master does not have jurisdiction to hear this motion.

[20] The plaintiffs rely on rules 25.11 and 21.01(1)(b). While rule 25.11 gives the “court” jurisdiction to strike a pleading as being prejudicial, scandalous, frivolous, vexatious or an abuse of process, only a Judge can strike out a pleading under rule 21.01(1)(b) as disclosing no reasonable cause of action or defence. The essential difference between the rules is that under rule 25.11, a Master would consider whether or not the pleading conformed to the rules of pleading found in rules 25.01 to 25.09.

[21] In order to decide whether a Master has jurisdiction to hear a motion to strike, a Master must determine the real basis for such motion. In other words, the Master must determine this jurisdictional issue regardless of the rule upon which the moving party purports to rely. The Master must scrutinize very carefully what the moving party is really trying to do and the real grounds for the attack. If the moving party is asking the Master to strike out a pleading, or paragraphs contained therein, which contain one or more discrete legal issues or causes of action, the Master is obliged to adjourn the motion to a judge. (Panalpina Inc. v. Sharma [1998] O.J. No. 1401 (Master))

[22] Using the words of Master Sandler in Panalpina at paragraph 10, in order to decide whether I have jurisdiction, I must ask the following question: Is this really a rule 25.11 motion or is it really a rule 21.01(1)(b) motion in the guise of a motion under rule 25.11? Master Sandler observed that the supervisory jurisdiction over pleadings is divided between judges and masters by rules 21.01 and 25.11.

[23] I concur with Master Sandler’s view that the jurisdictional problem is not solved in any case by the words used in the moving party’s notice of motion. As in this case, the defendants used the words “strike portions of Fresh As Amended Statement of Claim” and specifically rely on rule 25.11. The stated grounds for the motion are that large portions of the statement of claim are scandalous, vexatious and/or frivolous, and secondly that large portions contain evidence, argument, immaterial allegations, colourful or inflammatory language, and a lack of material fact. The impugned paragraphs are set out by number.

[24] The statement of claim is 70 pages long and contains 260 paragraphs. The defendants seek to strike 192 of the 260 paragraphs leaving 68 paragraphs in place.

[25] The grounds argued by defence counsel at the hearing of this motion were as strictly set out in the notice of motion, as set out in the above paragraphs.

[26] Having reviewed carefully the statement of claim and the essential elements required to establish the allegations, it is my view that of the 68 paragraphs that the defendants do not attack, the pleading would contain all of the material facts on which the plaintiffs rely for the claims and full particulars of allegations of intent and knowledge being the necessary elements of the torts of misfeasance in public office and breach of Charter rights. The remaining paragraphs would also contain full particulars of numerous allegations, for example, that the Society failed to disclose its file, no valid reason for the Society’s requirements that the plaintiffs complete a parenting course, a parenting capacity assessment, and anger management counselling, and the Society’s failure to adhere to the recommendations of the Goudge Report. In addition, the remaining paragraphs would include allegations of the damages incurred by the plaintiffs as a result of the defendants’ actions, including the basis for the claim of punitive damages.

[27] However, having reached my conclusion above, to be clear, I am not necessarily concluding that all of the impugned paragraphs of the statement of claim are being struck. The above analysis considered primarily the non-impugned paragraphs to determine whether the defendants were really asking the court to strike out the statement of claim or paragraphs contained therein which contain one or more discrete legal issues or causes of action.

[28] For the reasons above, I find that the defendants’ motion seeks to strike the statement of claim under rule 25.11 and not to strike out the pleading under rule 21.02(1)(b) as disclosing no reasonable cause of action. Therefore, a master has jurisdiction to hear this motion.

Law

[29] Numerous authorities were cited by the parties regarding the principles of proper pleading. Although I do not intend to canvass them all, the following are the relevant principles.

(a) The purpose of pleadings is three-fold: to define or clarify the issues; to give notice of the case to be met and the remedies sought; and to apprise the court as to what is in issue. (Somerleigh v. Lakehead Regional Conservation Authority, 2005 CarswellOnt 3546, at para. 5)

(b) In considering whether a pleading ought to be struck out, the court must read it in context with a generous eye and only strike it out if it is “plain and obvious” that it must fail at trial. The party moving to strike has a heavy burden. This burden is at least as great, or even greater, where the pleading is said to be scandalous, frivolous, vexatious or an abuse of process than where the claim is said to disclose no reasonable cause of action. (Yearsley v. The Queen, 2001 FCT 732, 208 F.T.R. 38, at paras 10-11)

(c) Motions under rule 25.11 should only be granted in the “clearest of cases”. (Wernikowski v. Kirkland Murphy & Ain (1999), 1999 CanLII 3822 (ON CA), 181 D.L.R. (4^th) 625 (Ont.C.A.))

(d) While pleadings must not offend the Rules, it is well established that counsel may frame their pleadings as they deem advisable and this right should not be lightly infringed by the court. The inclusion of unnecessary detail or excessive verbosity in a pleading is not of itself a reason for striking out a pleading. It is incumbent upon the party seeking to strike out pleadings to show that he or she is prejudiced or embarrassed by the pleading or that a fair trial will be delayed by the irregularity. (Jourdain v. Ontario (2008), 2008 CanLII 35684 (ON SC), 91 O.R. (3d) 506, at para. 38)

(e) Perell J. in Jacobson v. Skurka (2015), 2015 ONSC 1699, 125 O.R. (3d) 279, explained the distinction between material facts and evidence as provided in Rule 25.06(1). He stated that the rule draws a distinction between the “material facts” and “the evidence by which those facts are to be proved”. He stated further at paragraph 43 that:

A material fact may itself be relevant evidence and particulars of material facts may also be relevant evidence, so the distinction drawn in the rule is not a litmus test clear differentiation, but the essence of the directive of rule 25.06 is clear enough that a pleading is not the place for a party to lead relevant evidence and to present argument to prove his claim or defence.

(f) What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts. (Jacobson, at para. 44, citing Grace v. Usalkas, [1950] O.W.N. 237 (H.C.J.))

(g) Pleadings serve as a framework for the action, to be used for the purpose of disclosure and then at trial. That framework is then filled in through the discovery process. Pleadings should be viewed more as the synopsis, rather than the book. They should therefore be as precise as possible, but not overly detailed. The detail comes through the disclosure process. (Pineau v. Ontario Lottery and Gaming Corp. [2011] O.J. No. 4360 (Master), at para. 25)

(h) The effect of a document should be pleaded if it is material and then, as briefly as possible. The precise words of the document itself need not be pleaded unless the words, themselves, are material (Rule 25.06(7)). The emphasis is on “as briefly as possible” and only “if it is material” to do so.

(i) It is trite law that nothing which is relevant to the issues between the parties can be scandalous, frivolous or vexatious. (Moore v. Bertuzzi, [2008] O.J. No. 347 (Ont. Master), at para. 5)

(j) A pleading is frivolous when “it is clearly insufficient on its face and is presumably interposed for mere purposes of delay or to embarrass the opponent. A claim is frivolous if the proponent can present no rational argument based upon the evidence or law in support of that claim.” (Niro v. Niro, [2004] O.J. No. 342, at para. 35)

(k) If the statement of claim discloses a cause of action, then it is not scandalous, frivolous, vexatious or an abuse of process within the meaning of rule 25.11. (1239745 Ontario Ltd. v. Bank of America Canada, 1999 CarswellOnt 2665, (S.C.J.) at paras 41-42)

(l) Portions of pleadings that are irrelevant, argumentative, inserted for colour, constitute bare allegations, are replete with conclusions or expressions of opinions should be struck under the rules. Specifically:

There have been a number of descriptions provided in the multitude of authorities decided under this or similar rules. It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety. (George v. Harris [2000] O.J. No 342, at para. 35; Cerqueira v. Ontario 2010 ONSC 3954, at para 13)

(m) In Somerleigh, which involved a motion to strike portions of the statement of defence, the court made the following comments regarding prolix pleading:

I. Pleading Evidence Rather than Facts

12 There may be instances where what is fact and what is evidence overlap. A careful draftsman will distil the essence of an event to plead what occurred when it is legally significant, or material to the case.

22 From an advocacy perspective, the trial record, containing the statement of claim and the statement of defence, is the first and, generally, only document the trial judge will see before the case begins. A well-drawn pleading creates a first impression for the trial judge. It may suggest that counsel is in command of his or her case. It is an opportunity for each party to make a persuasive statement to the judge before any evidence is called.

2. Use of Embellishment

23 Embellishment adds length to a pleading without adding substance. While each pleading will reflect the style of the draftsman, too much embellishment obscures the issues and makes the pleading prolix.

3. Pleading Argument

27 Argument is a discrete and identifiable process in litigation. While argument may be oral or written, it is the culmination of the litigation process. It is the persuasion that comes at the end of a motion or trial. When it is inserted in a pleading, it is out of place, like the cart before the horse. It is a distraction and does not constitute proper pleading.

4. Irrelevancies

31 Irrelevancies make a pleading prolix and obscure the issues.

(n) In an action where pleadings of fraud and misrepresentation were in issue on a motion to strike paragraphs of the claim, the court in Mislovitch v. Bloom, 1997 CarswellOnt 5158, [1997] O.J. No. 5225, is instructive as it dealt with the overlap in mandatory rules 25.06(1) and 25.06(8) relating to pleading evidence. It states as follows:

The contents of the impugned pleadings also appear to be evidence. Rule 25.06(1) is mandatory in requiring that evidence not be pleaded. How is this overlap in mandatory rules to be resolved? In my opinion, pleadings which are full particulars pursuant to Rule 25.06(8) and also evidence contrary to Rule 25.06(1) should be allowed to stand in order to meet [the] objectives of Rule 25.06(8). These objectives are definition of the issues and disclosure of the case to be met. This interpretation of rule 25.06 is consistent with Rule 1.04(1). It is also akin to relief, of the kind mentioned in Rule 2.01(1), from the requirements of Rule 25.06(1). This interpretation and application of the Rules means that the ultimate exception to complying with the Rules, found in Rule 2.03, is unnecessary and thus unavailable.

(o) pleading full particulars of allegations means that the pleading must set out precisely what the wrongful act is and the when, what, by whom and to whom of the relevant circumstances. (Jourdain, at para. 37)

Claim for Misfeasance in Public Office

[30] An understanding of the tort of misfeasance is required to properly determine the issues on this motion.

[31] The leading case on misfeasance in Canada is Odhavji Estate v. Woodhouse, 2003 SCC 69, where the court considered a claim in misfeasance brought against members of the Metropolitan Toronto Police by the estate and family of Mr. Odhavji, who had been fatally shot by police officers. The following are the principles enunciated by the court.

[32] Misfeasance in a public office is an intentional tort that requires subjective awareness that harm to the plaintiff is a likely consequence of the alleged misconduct. Misfeasance may only be committed by public officials in the performance of their public duties. The elements of misfeasance are the following:

(a) a public officer;

(b) engaging in deliberate and unlawful conduct in his or her capacity as a public officer;

(c) with awareness both that the conduct is unlawful and that it is likely to harm the plaintiff, which may be based on actual knowledge, subjective recklessness or wilful blindness;

(d) causation; and

(e) compensable damages.

[33] The discussion in the authorities typically focus on the two core elements of the tort; namely, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public offer and, secondly, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff.

[34] The first element of the tort of misfeasance concerns unlawful conduct. Unlawful conduct is established where the acts or omissions either fall wholly outside the public officer’s statutory authority or if they are within it, then the acts or failure to act are carried out with an improper purpose. (P.(J.) v. British Columbia (Director of Child, Family and Community Services), 2015 BCSC 1216 (Supr.Ct.), at para. 565)

[35] The second element of the tort concerns the state of mind necessary to establish liability, which is knowledge both that the conduct is unlawful and that it is likely to harm the plaintiff. Neither standing alone is sufficient. The court in Odjavhi Estate made clear, at paragraphs 28-29, that the requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public officer requires an element of “bad faith” or “dishonesty”.

[36] The court in Odhavji Estate opined that misfeasance can arise in one of two ways. The first, referred to as Category A misfeasance, arises when the public officer’s conduct is “specifically intended to injure a person or class of persons”. Category B misfeasance arises where the public officer “acts with knowledge that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff”. (para. 22) Although both categories contain the same core elements, whether the tort arises by way of Category A or B dictates the manner in which the first and second elements are proven:

. . . In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff.

[37] In Category B, misfeasance is not limited to actual knowledge, and liability can be founded on subjective recklessness or wilful blindness.

[38] In summary, as bad faith or dishonesty is an essential element of the tort of misfeasance in public office, full particulars must be pleaded in accordance with rule 26.06(8).

Claim for Breach of Charter Rights

[39] The plaintiffs seek damages against the defendants under section 24 of the Charter for infringement of their right to security of the person guaranteed by section 7.

[40] Section 7 of the Charter provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

[41] Section 24 of the Charter provides that “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”.

[42] The Supreme Court of Canada recently considered the availability of damages as a remedy under section 24 of the Charter in a case where the Crown had wrongfully failed to disclose material evidence to the defence, resulting in a conviction. In that case, the court held that a cause of action will lie against the state, subject to proof of causation, where a prosecutor breaches an accused’s Charter rights by intentionally withholding information when he or she knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence”. (Henry v. British Columbia (Attorney General) 2015 SCC 24)

[43] The Supreme Court held, at paragraph 85, that in order to make out a claim for damages under section 24 of the Charter for wrongful non-disclosure, the plaintiff must prove:

(a) the prosecutor intentionally withheld information;

(b) the prosecutor knew or ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impinge on his or her ability to make full answer and defence;

(c) withholding the information violated his or her Charter rights; and

(d) he or she suffered harm as a result.

[44] In summary, the intention and knowledge of the defendant are essential elements of a claim for damages under section 24 of the Charter which must be pleaded in order to make out a claim.

[45] Therefore, since intent and knowledge are essential elements of the tort of breach of a person’s Charter rights, full particulars must be pleaded in accordance with rule 26.06(8).

Fresh As Amended Statement of Claim (“statement of claim”)

[46] I will now turn to the statement of claim. As noted above, the pleading is 70 pages in length and 260 paragraphs where there are only two primary claims. I concur with Master Haberman’s comments in Pineau, at paragraph 40, where the pleading therein was 73 pages. She stated: “That, alone, is a clue to the fact that it is replete with evidence. There are few cases that require 73 pages in order to set out material facts. This is not one of them”. I have come to the same conclusion in this case.

[47] The plaintiffs have alleged two claims – misfeasance in public office and breach of their section 7 Charter rights. The essential elements of both claims are fundamentally knowledge and intent which, under the rules, require full particulars. The authorities have held that full particulars of the allegations must set out precisely the “what, when, by whom and to whom” of the relevant circumstances. It does not mean that every detail of each and every occurrence, meeting, conversation, etc. must be set out in the pleading. In my view, that is precisely what is contained in the statement of claim herein.

[48] The plaintiffs’ claims arise out of the same events; that is, the actions taken by the defendants after the birth of the plaintiffs’ twin children. The said events transpired over a relatively short period of time of some 18 months (see paragraph 250 of statement of claim).

[49] The heart of the plaintiffs’ case is that the defendants knew that the allegations of child abuse against the plaintiffs were unfounded and unsupported yet they pursued the claim fully for 18 months in order to pressure the plaintiffs into confessing to abuse. They say that the defendants were aware of the inadequacy of their medical opinion of abuse, yet they pursued their court application for wardship of the children knowing that the effect on the parents would be devastating.

[50] The allegations go further to assert that the defendants failed to adhere to the recommendations of the Goudge Report, in breach of their duty under the Child and Family Services Act to act in the best interests of the children.

[51] The pleading is divided into parts with subheadings and sub-subheadings. They are as follows:

Part I. Nature of This Action and Part II. The Parties. Parts one and two contain 14 paragraphs that summarize the plaintiffs’ case and describe the five parties.

Part III. Society’s Application against Allison and Kelly. This part spans 44 paragraphs and includes details of the births and the defendants’ subsequent actions thereafter including its court application for wardship, the grounds for the application based on “suspicious injuries” and the “triad theory” more commonly known as the shaken baby syndrome.

Part IV. Acts of Misfeasance. This part contains seven subsections as follows:

• Society Requests Parenting Course

• Abandonment of Motion for Parenting Capacity Assessment

• Failed Request For Anger Management Counselling. This claim spans over 17 paragraphs and four pages.

• Society Fails to Comply with Goudge Report. This subsection contains a further six subsections that allege failure to follow six recommendations of the Goudge Report. It spans 36 paragraphs over 10 pages.

• Society Fails to Obtain Second Opinion

• Society Attempt To Undermine Our Counsel

• Disposition of Society’s Application

[52] Reviewing the statement of claim generally, it contains 189 paragraphs to set out the material facts for the claim of misfeasance and breach of a Charter right.

[53] In my view, rather than being a framework for the action, this statement of claim is a book, as described by Master Haberman in Pineau, at paragraphs 25 and 44. I concur further with her statement that it will make both documentary and oral discoveries extremely and unnecessarily cumbersome.

General Observations

[54] The following are my general observations regarding the statement of claim.

[55] There are far too many allegations that are colourful, inflammatory and purely argumentative. By way of example:

(a) the defendants’ case being “doomed to failure”;

(b) determined to use all of the resources at their disposal to attempt to “grind the plaintiffs into submission”;

(c) they were determined to “win at all costs”;

(d) holding the children hostage;

(e) exploiting Allison’s maternal instincts;

(f) Cal’s request came “out of the blue”;

(g) statements such as, “She would not even greet Mr. DuVernet at Court, even when sitting right next to him! She was constantly pretending he didn’t exist . . . .”;

(h) further statements such as “. . . but this did not stop her from trying to undermine and end-run him”;

(i) Society’s motion for a parenting capacity assessment being an attempt to create opinion evidence;

(j) steps the police were capable of taking to compel the plaintiffs to submit to a parenting capacity assessment;

(k) the police would in effect have gotten the content of an assessment “via the back door, thereby end-running their constitutional right to remain silent in the criminal investigation”.

[56] In addition, the pleading contains excessive prolix and immaterial facts. Although the defendants do not take issue with it, it took seven paragraphs to describe the plaintiff’s pregnancy, rather than a “concise” statement of the material facts, as required in rule 25.06(1). The word “concise” is there for a reason which has been overlooked throughout this pleading.

[57] Other examples of prolix and immaterial facts are the history of the “triad theory”, the details of and deficiencies in Dr. Cory’s reports, deficiencies in Dr. Cory’s qualifications, details of the interrogation with Constable Zarowny, expectations and reactions of the plaintiffs to the request for a polygraph test, qualifications and experience of Mr. DuVernet, plaintiffs’ counsel, and the nature of and effect of a parenting capacity assessment.

[58] There are allegations made against the Halton Regional Police where there is no claim against it.

[59] There are an excessive number of paragraphs that plead evidence and are argument. By way of example:

(a) paragraphs 93 and 95;

(b) paragraphs that set out details of conversations between the plaintiffs and Cal using words such as “Cal told Allison”, “she advised the plaintiffs”, “Allison spoke with Ms. Cal”, “Allison enquired”;

(c) paragraphs 106 to 131 regarding the Society’s motion for a parenting capacity assessment;

(d) paragraphs 121 and 122 which lists nine questions that Mr. DuVernet asked the Society and the basis for his questions by reference to a legal article;

(e) paragraphs 132 and 133 that contain argument.

[60] In my view, the pleading would have been concise had it contained one paragraph that set out in enumerated form all the allegations that are set out as subheadings and sub-subheadings, as referred to above at paragraph 51. While I am cognizant that the plaintiffs were careful to plead full particulars of every event, in my view, they exceeded that requirement severely by pleading every piece of evidence upon which they intended to rely for fear that if they did not plead it, they would not be entitled to present it as evidence at trial. However, the case law is clear about the meaning of “full particulars” as set out in rule 25.06(8). Full particulars of allegations means that the pleading must set out precisely what the wrongful act is and the when, what, by whom and to whom of the relevant circumstances. (Jourdain, at para. 37)

[61] In addition, the plaintiffs quoted abundantly conversations and portions of conversations that took place between them and Cal. Rule 25.06(7) requires that the “purport of a conversation” shall be pleaded but only if it is material. If it is material then it is to be pleaded as briefly as possible. However, even if the purport of a conversation is material, the precise words of the conversation need not be pleaded unless the words are themselves material. In my view, a majority of those pleadings violate this rule.

[62] Moreover there are numerous allegations that make reference to a document. Again, rule 25.06(7) applies to pleading the “effect of a document” in the same way as pleading the “purport of a conversation,” which I set out in the previous paragraph. In my view, a majority of those pleadings violate this rule.

Allegations that Relate to the Goudge Report

[63] I will address this section of the fresh as amended statement of claim separately from the rest of the pleading.

[64] These allegations are contained in paragraphs 177 through 213 under the subheading, “Society Fails to Comply with Goudge Report”.

[65] Rule 25.06(7) is applicable to these allegations. The Goudge Report is, in my view, a document that falls under the purview of this rule. The rule provides as follows:

25.06(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.

[66] Paragraph 177 of the statement of claim sets out the history that led to the Goudge Report. It states that in 2008, four years before this action was commenced, the Honourable Stephen T. Goudge commissioned a public inquiry into pediatric pathology in Ontario and issued a report setting out the inquiry’s findings and recommendations.

[67] Paragraphs 178 and 179 plead that the Society was aware, or ought to have been aware, of the Goudge Report, however, despite being aware, the Society failed to adhere to several of its important recommendations in the course of its pursuit of a finding that the plaintiffs’ children were in need of protection. As a result, it is alleged that these failures increased the plaintiffs’ costs, prolonged the litigation and caused the plaintiffs significant prejudice in the proceeding.

[68] Paragraphs 180 through 213 set out by subheadings seven recommendations of the Goudge Report that the plaintiffs allege the Society violated. Each recommendation is followed by particulars including how and why the defendants failed to comply.

[69] The defendants do not dispute that the plaintiffs are entitled to plead as material facts that the Society failed to comply with and/or follow the recommendations contained in the Goudge Report. Therefore, they submit that paragraphs 178 and 179 are the only pleadings required to assert those allegations. They submit that the statements in paragraphs 180 through 213 are not material facts, rather they are the particulars and the evidence upon which the plaintiffs intend to prove the facts alleged. They further submit that those pleadings are impermissible as they contain evidence, plead law, draw conclusions, state opinions and argument.

[70] I agree with the defendants’ position that paragraph 177 is unnecessary as it does not contain material facts upon which the plaintiffs rely for the claim and, further, it is evidence. However, for the following reasons, I find that it is permissible to plead the particular recommendations of the Goudge Report that the plaintiffs say the Society failed to follow. The mandatory language of rule 25.06(7), requires that the plaintiffs plead the effect of the Goudge Report, if material, as briefly as possible. This also applies to the effect of Dr. Cory’s reports as the plaintiffs plead that the effect of the doctor’s reports were not in compliance with the recommendations of the Goudge Report. Therefore, it is permissible that the plaintiffs plead the particulars of how the Society failed to comply with each of the seven recommendations; however, the pleading must be as brief as possible. In addition, the mandatory language of subrule 25.06(8) requires that where intent is alleged, as is the case herein, the pleading must contain full particulars.

[71] The above findings are not intended to mean that all allegations in paragraphs 180 through 213 are permissible. For the above reasons, my rulings are as set out in the defendants’ chart of paragraphs at issue, being Schedule “A” to the notice of motion.

Conclusion

[72] The defendants filed a helpful chart of the paragraphs at issue located at Schedule “A” to the notice of motion, for which I am thankful.

[73] I have completed my decision herein by setting out on the chart the paragraphs, or portions thereof, that are struck including short reasons. The completed chart is attached hereto.

[74] It is my view that although an abundance of paragraphs and portions thereof have been struck, the balance of the statement of claim contains the necessary pleadings that relate to the essential elements of the two claims of breach of misfeasance of public office and breach of Charter rights. I am also of the view that the defendants have established that they would be prejudiced should many of the impugned paragraphs not be struck as they would be unable to properly respond to the statement of claim in its present state and both documentary and oral discoveries would be unnecessarily cumbersome.

[75] Therefore, given the numerous paragraphs and portions thereof that have been struck, the defendants’ motion is hereby granted with leave to the plaintiffs to amend the statement of claim.

Costs

[76] As the defendants have been substantially successful they are entitled to costs of this motion on a partial indemnity scale. The plaintiffs made an offer to settle on March 10, 2016 which was not accepted by the defendants. The offer was to dismiss the motion with costs on a partial indemnity basis. Given the result of the motion, the plaintiff’s offer was obviously unrealistic and again it caused more work for defendants’ counsel.

[77] In fixing costs, I have taken into consideration that the plaintiffs took positions that were unsuccessful and which lengthened unnecessarily this motion to two days of argument. My ruling on the preliminary issue raised by the plaintiffs regarding the defendants being prohibited from bringing this motion under rule 2.02(b) are set out on the back page of the defendants’ motion record. My ruling on the plaintiffs’ second preliminary issue regarding the lack of jurisdiction of a master to hear this motion is contained herein.

[78] I have also considered the fact that the length of the plaintiffs’ factum far exceeded the allowable length as provided in the consolidated practice direction which, in effect, caused unnecessarily more work for defence counsel and this court.

[79] I have also considered the exorbitant amount of time this motion took to be argued given the excessive number of paragraphs in the statement of claim and the number of paragraphs sought to be struck. Moreover, I have also considered the extraordinary amount of judicial time this motion took to be argued and the decision written, which, in my view, offended the proportionality rule as provided in rule 1.04(1.1).

[80] Costs are fixed in the amount of $13,000 inclusive, payable within 30 days.

(original signed)

_________________________________ Master Lou Ann M. Pope

Released: October 4, 2016