CITATION: Atkin v. Pepin v OPP, 2016 ONSC 679
COURT FILE NO.: 75/15 SR
DATE: 20160127
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wendy Lynn Atkin and Steven Joseph Lesperance
Responding Party/Plaintiffs
AND:
Henry Pepin and Laurie Pepin
Defendants
AND:
Her Majesty the Queen in Right of Ontario
(Ontario Provincial Police)
Moving Party/Defendant
BEFORE: Ferguson J.
COUNSEL: Nathan M. Ross, Counsel, for the Responding Party/Plaintiffs
David J.M. O’Neil, Counsel, for the Defendants (not present at motion)
Rina M. Li, Counsel, for the Moving Party/Defendant
HEARD: January 22, 2016
RULING on motion
[1] Her Majesty the Queen in Right of Ontario acting for the Ontario Provincial Police (“the O.P.P.”) brings a motion pursuant to Rule 21.01(1)(b) striking out certain paragraphs of the amended amended statement of claim for failing to disclose a reasonable cause of action as against them. The O.P.P. has not filed a statement of defence.
[2] Since the motion materials and factums were filed the plaintiffs have filed the amended amended statement of claim. The other defendants took no position on the motion. At issue are now two torts:
(i) Misfeasance in public office
(ii) Intimidation
[3] The parties agree that the constitute elements of misfeasance in public office are as follows:
(i) The defendant is a public official or a public authority;
(ii) The defendant engaged in deliberate and unlawful conduct in his/her or its capacity as a public official or public authority;
(iii) The defendant had a culpable mental state; namely, the public official or public authority was aware that:
(a) The conduct was unlawful and
(b) That the conduct was likely to harm the plaintiff
(iv) The conduct caused the plaintiff harm; and
(v) The harm is compensable under tort law.
[4] The elements of the tort of intimidation are:
(i) The defendant made a threat of an unlawful act to the plaintiff;
(ii) The defendant intended to injure or cause damage to the plaintiff;
(iii) The plaintiff complied with the threat or demand, some act was taken or forgone as a result of the threat; and
(iv) As a result of which the plaintiff suffered damage.
[5] There are two issues which I will immediately deal with. The first is whether the plaintiff’s claim collaterally attacks an order of the Ontario Landlord and Tenant Board? It does not and I will spend no further time dealing with this issue.
[6] The second is that there is an allegation that the moving party has been dilatory in bringing this motion. She was not and I will say nothing further about that.
[7] The facts agreed upon are as follows:
(i) On or about October 2012 the plaintiffs were renting a property near North Bay.
(ii) The co-defendants, Henry Pepin and Laurie Pepin (“the landlords”) were at all material times the owners of the rental property.
(iii) On or about July 24, 2013 the O.P.P. attended the property to oversee the eviction of the plaintiffs from their rental property.
(iv) On or about May 1, 2013 the landlords told the plaintiffs that they had sold the property and that they had to vacate by June 30, 2013. The plaintiffs state that the landlords did not provide a copy of the Purchase and Sale Agreement, nor did they obtain an N12 form as required under the Residential Tenancies Act.
(v) The plaintiffs claim the landlords gave the order to the O.P.P., who stated that since the Landlord Tenants Act did not apply, the plaintiffs were in breach of the Trespass to Property Act.
(vi) On or about July 24, 2013, the plaintiffs claim that three moving trucks, 16 police officers and 12 police vehicles attended at the premises to forcibly evict the plaintiffs without any notice.
(vii)Various causes of action initially arose from that eviction, namely, abuse of
process, intimidation, trespass, negligent investigation and wilful damage to
property. As of the date of this motion only intimidation and misfeasance in
public office remain in the pleadings.
The Law
[8] Rule 21.01(1)(b) of the Rules of Civil Procedure allows for a motion to strike out a pleading on the ground that it discloses no reasonable cause of action.
[9] The Supreme Court of Canada has re-iterated that the procedure is a tool that must be used with care. Reference, R. v. Imperial Tobacco 2011 SCC 42, 2011 3 SCR 45, para.21.
[10] As such on a Rule 21 motion the facts set out in the plaintiff’s pleadings “must be read generously to allow for drafting deficiencies”. Mackinnon v. Ontario Municipal Employees Retirement Board et al, 2007 ONCA 874 at para.20.
[11] Deference is to be accorded to a statement of claim when determining whether the pleading discloses a cause of action.
(a) A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. In other words, the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists the matter should be allowed to proceed to trial. R. v. Imperial Tobacco, supra at 17.
(b) The material facts in the impugned pleading are to be taken to be true or proven unless they are based on assumption or speculation that is incapable of proof. Ibid at para.22
(c) A Rule 21 motion to strike proceeds not on the basis of evidence but on the basis that the facts pleaded are true. Ibid at para 23.
[12] I have now reviewed the amended statement of claim. Although the pleading is not “the best in the world” and lacks a lot of details, paragraphs 8, 9, 10, 12, 14, 15, 16, 17, 18, 20, 21 set out the necessary material facts. The amended amended statement of claim discloses reasonable causes of action.
[13] This action shall proceed. The defendant needs to file a statement of defence and will do so within 20 days.
Judge
Date: 27 January, 2016