Mahavalirajan v. Tesoc Multicultural Settlement Services, 2016 ONSC 6858

CITATION: Mahavalirajan v. Tesoc Multicultural Settlement Services, 2016 ONSC 6858

COURT FILE NO.: CV-14-496249

MOTION HEARD: 2016-08-03

REASONS RELEASED: 2016-11-17

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

Rajan Mahavalirajan Plaintiff

• and-

Tesoc Multicultural Settlement Services, Citizenship and Immigration Canada, Ministry of Citizenship and Immigration of Ontario, Mahendrarajah Markandu, Muthucoomaru Rajasingham, Arulpirabakar Nalliah, Devakumar Sabapathy, Sritharan Pasupathy, Ramachandran Thalayasingam, Tharmalingam Mahinthan, Augustine Jeevananthan Jegasothy, Sriranganayagi Srisatgurunathan and Murugupillai Pavalaghanthan Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Rajan Mahavalirajan Fax: (416) 431-0550 -Self-Represented Plaintiff/

Keith Lee-Whiting Fax: 1 (866) 662-7288 -for the Defendants/Responding Parties

REASONS RELEASED: November 17, 2016,

Reasons for Decision

I. Introduction

[1] One of the dilemmas arising from the cost of litigation is how the court is to deal with well-meaning, self-represented litigants who encounter difficulties with the requirements and restrictions inherent in the present Ontario civil litigation system.

[2] That system is guided by The Courts of Justice Act and the Rules of Civil Procedure. As well, in some cases, the restrictions of specific statutes raise additional hurdles.

[3] On the surface of the case before me, it appears to be a simple tort case seeking compensation for:

• discrimination of membership in a “government funded” Immigration Settlement organization; and

• an alleged physical assault and intimidation by an employee and/or director of the organization.

[4] However, based upon my review of the comprehensive Motion Records filed by both sides it would seem that the plaintiff seeks to have the Court try a case based on his assertion that the defendant Tesoc Multicultural Settlement Services (“TESOC”) is “a terrorist organization successfully infiltrating a Canadian funded settlement organization and manipulating the organization to achieve their goals.”

II. Motions

[5] The plaintiff moves for an order granting leave to deliver an Amended Statement of Claim, having previously appeared before Justice Stinson on a similar motion. On that earlier occasion his Honour determined that a large number of paragraphs were to be struck and granted leave to the plaintiff to bring a further motion seeking approval of the revised pleading.

[6] Since the date of filing of the original Statement of Claim the plaintiff has discontinued his action against Citizenship and Immigration Canada and Ontario Ministry of Citizenship and Immigration.

[7] In their responding record the remaining defendants deny that there is any reason to permit the plaintiff to continue with the pleading in the form and with the content proposed in the amended version before me. Instead, they seek an order dismissing the action, with substantial indemnity costs throughout.

III. Background

[8] The self-represented plaintiff is presently a Licensed Paralegal in Ontario. I accept his submission that the plaintiff has the right to file and carry out a legal action in the Canadian courts with or without the status of Licensed Paralegal. While a licensed paralegal is prohibited from practicing in the Superior Court, I do not regard the relevant provision as preventing such an individual acting on his own behalf. Despite the restriction on licensed paralegals practicing on behalf of others in this Court, I have no doubt a self-represented individual with those credentials is permitted to appear and advocate in Canadian courts, including this Court.

[9] The first drafting change requested by the plaintiff relates to an overall amendment of the Statement of Claim from a simple $100,000 claim to an action seeking a total recovery substantially in excess of that. As a consequence the proposed pleading no longer maintains the position that this is a Rule 76 Simplified Procedure case and has sought to abandon that designation for his action in light of the proposed newly added heads of damage.

[10] For reasons outlined later in this decision, I am not satisfied that this case ought to proceed, at least at this stage, other than as a Simplified Procedure matter.

[11] In essence the plaintiff asserts that he was assaulted on the premises of the defendant TESOC. His factum asserts

“The incident of December 7, 2012 was a terror unleashed by a proscribed terrorist organization on Canadian citizen.”

[12] The Defendants assert that TESOC is not, and never was, a “listed entity.”

[13] Most of the damages sought by the plaintiff flow from his claims regarding the legal position of TESOC. I therefore turn to a brief analysis of the Canadian statutory law in this area.

IV. Justice for Victims of Terrorism Act, S. C. 2012 c.1 s.2

[14] Canada has enacted a statute dealing with a wide range of globally identified terrorist organizations and the rights of victims of their terror related activities. The plaintiff’s factum asserts that “the cause of action is Justice for Victims of Terrorism Act.”

[15] That statute, with my emphasis added, reads in part:

Purpose

3. The purpose of this Act is to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters.

Action

4. (1) Any person that has suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code, may, in any court of competent jurisdiction, bring an action to recover an amount equal to the loss or damage proved to have been suffered by the person and obtain any additional amount that the court may allow, from any of the following:

(a) any listed entity, or foreign state whose immunity is lifted under section 6.1 of' the State Immunity Act, or other person that committed the act or omission that resulted in the loss or damage; or

(b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, listed entity or other person that - for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) committed an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.

Conditions- hearing and determination of action by court

(2) A court may hear and determine the action referred to in subsection(1) only if the action has a real and substantial connection to Canada or the plaintiff is a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act."

[16] The relevant portion of the regulation identifying the “listed entities” reads in part:

Liberation Tigers of Tamil Eelam (LTTE)

Also known as

The Tamil Tigers, the Eellalan Force, the Ellalan Force, the Tiger Movement, the Sangilian Force, the Air Tigers, the Black Tigers (Karum Puligal), the Sea Tigers, the Tiger Organization Security Intelligence Service (TOSIS) and the Women's Combat Force of Liberation Tigers (WCFLT).

Description

Founded in 1976, the Liberation Tigers of Tamil Eelam (LTTE) is a Sri Lankan-based terrorist organization that seeks the creation of an independent homeland called "Tamil Eelam" for Sri Lanka's ethnic Tamil minority. Over the years, the LTTE has waged a violent seccessionist campaign with the help of ground, air, and naval forces, as well as a dedicated suicide bomber wing. LTTE tactics have included full military operations, terror attacks against civilian centres, and political assassinations, such as the successful assassinations of Indian Prime Minister Rajiv Ghandi and Sri Lankan President Ranasinghe Premadasa. The LTTE has also had an extensive network of fundraisers, political and propaganda officers, and arms procurers operating in Sri Lanka and within the Tamil diaspora. Although the LTTE was militarily defeated in May 2009, subversion, destabilization, and fundraising continue, particularly in the diaspora.

Date listed

2006-04-08

Date reviewed

2014-11-20

World Tamil Movement (WTM)

Also known as

N/A

Description

The World Tamil Movement was created in 1986 and became a known and leading front organization for the Liberation Tigers of Tamil Eelam (LTTE) in Canada. The leadership of the WTM acts at the direction of the LTTE and has been instrumental in fundraising in Canada on behalf of the LTTE. WTM representatives canvas for donations amongst the Canadian Tamil population, and have been involved in acts of intimidation and extortion to secure funds.

Date listed

2008-06-13

Date reviewed

2014-11-20

[17] I regard it as quite significant that TESOC is not listed amongst the other names identified as being alternate names of LTTE nor WTM. As well the definitions were reviewed only two years ago when TESOC was already clearly in existence in Canada.

V. Plaintiff’s Position

[18] In his factum the plaintiff asserts:

“Liberation Tigers of Tamil Eelam, hereafter called LTTE and World Tamil Movement, hereafter called WTM are banned terrorist organizations in Canada. Despite the ban on the LTTE and WTM, their active members and supporters have infiltrated many cultural, and Canadian government funded community organizations.

TESOC … is clearly one of those organizations infiltrated by this banned terror group, LTTE. In order to maintain their secrecy, they are administering a tough membership selection. As a result, TESOC was filtering out those who oppose the terrorist organization, LTTE. Denial of membership, physical assault, intimidation, threats to kill the opponents' family members in Sri Lanka are all part of highly organized criminal activity staged by TESOC.”(my emphasis)

[19] At the outset of his factum the plaintiff relatively succinctly sets out the basis upon which he believes he is entitled to seek remedies flowing from the Justice for Victims of Terrorism Act:

Although, on the surface of the case it appears to be a simple tort case seeking compensation for discrimination of membership in a government funded Immigration Settlement organization, physical assault and intimidation by an employee and a director of the organization; however, it is actually a case about a terrorist organization successfully infiltrating a Canadian funded settlement organization and manipulating the organization to achieve their goals. The incident of December 7, 2012 was a terror unleashed by a proscribed terrorist organization on Canadian citizen.”

[20] Based on my reading of the legislation, I am not convinced that the evidence of the plaintiff, even if entirely true with respect to the incidents in which he was involved, will not meet the threshold established by the legislation. While he may believe that TESOC is an alter ego of a “listed entity”, I am not satisfied that the Justice for Victims of Terrorism Act would support a finding of liability for any proven damages under the present federal statute. It seems there may be an issue as to the purposed of the legislation. Remedies may well be available under Canada’s criminal law statutes; but without a previous event outside Canada I am not convinced there is a meaningful remedy, under the Victims Act, available to the plaintiff on the basis he asserts.

[21] But that does not end the present motion.

VI. [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) R.S.C., 1985, c. C-46

[22] Canada has other legislation relating to Terrorism that does not require a defendant to be part of any specific organization. For example, the Criminal Code addresses this area, in part, as follows:

PART 11.1 Terrorism Interpretation

Definitions

83.01 (1) The following definitions apply in this Part.

Canadian means a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a body corporate incorporated and continued under the laws of Canada or a province.

entity means a person, group, trust, partnership or fund or an unincorporated association or organization.

listed entity means an entity on a list established by the Governor in Council under section 83.05.

terrorist activity means

(a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences:

(i) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970,

(ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23,1971,

(iii) the offences referred to in subsection 7(3) that implement the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973,

(x) the offences referred to in subsection 7(3.73) that implement the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999, or

(b) an act or omission, in or outside Canada, • (i) that is committed

(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and

(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and

• (ii) that intentionally

(A) causes death or serious bodily harm to a person by the use of violence,

(B) endangers a person's life,

(C) causes a serious risk to the health or safety of the public or any segment of the public,

(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or

(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C), and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.

terrorist group means

(a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or

(b) a listed entity, and includes an association of such entities.

[23] It is possible that the conduct complained of by the plaintiff, if proven, could violate some of the above activities. A conviction however might not result in any entitlement to a civil damage recovery by the plaintiff. Thus it is still necessary to evaluate the proposed pleading.

VII. Previous Order

[24] Justice Stinson made a handwritten endorsement on Feb 9 of this year which was stated as being supplemental to oral reasons “for striking various specific paragraphs” of the statement of claim.

[25] The defendants also moved before Justice Stinson to dismiss the action for delay and in the alternative to strike the statement of claim as being frivolous and vexatious under Rule 25.11.

[26] Justice Stinson felt that there had not been inordinate delay which would justify dismissing the action on that basis. He further observed:

“With respect to the attack on the current statement of claim, I agree that many of the paragraphs contained in it are objectionable, either on the grounds that they plead evidence or argument, or both. In my oral review the pleading with the parties, on the record. Today, I gave reasons for striking various specific paragraphs.”

[27] Somewhat unusually the original pleading seems to have two different sets of numbered paragraphs. Justice Stinson struck paragraphs 1(d), 4 to 9, 11 to 13, 15, and 17 to 31 of the first group. With respect to the second group he further struck paragraphs 1 to 3, and 6 through 22.

[28] Counsel for the Defendants calculates that 97% of the paragraphs in the original Statement of Claim were struck by Justice Stinson.

[29] At the time the motion was argued the plaintiff had served but not yet set down a motion to amend the statement of claim. Justice Stinson indicated that the plaintiff’s motion to amend was not before him. He therefore directed the plaintiff to reschedule “and re-serve motion to amend and to determine “if it can be heard by a Master”. Thereafter, the plaintiff brought this motion, before this master.

[30] To a large extent, the defendants’ argument on the motion before me was that the proposed pleading contains much of the same content as that previously rejected by Jjustice Stinson and that as a result I ought to dismiss the action at this point in time.

[31] Having considered those arguments I am satisfied that the plaintiff is entitled to one further chance.

VIII. Amendments Sought

[32] Many paragraphs in the proposed pleading, consist of broader allegations against various defendants. Large portions of the pleading are entirely underlined, indicating the additions proposed. I have set out the paragraphs in this section, reflecting the amount of underlined content.

[33] The proposed new pleading seeks damages against the first defendant, TESOC in these terms:

1. The plaintiff Rajan Mahavalirajan, claims from the defendant one, known in English as TESOC Multicultural Settlement Services of Canada, whom is also ' known in Tamil as the Tamil Eelam Society. The plaintiff claims the following:

• General damages for physical and mental pain and suffering, assault, battery, intimidation, intentional negligence, humiliation, breach of fiduciary duty to the occupants and,

• TESOC Multicultural Settlement Services of Canada is vicariously liable for battery of its employee, institutionalizing a policy of membership discrimination and housing members and supporters of a proscribed terrorist organization in Canada. For the above collection of cause of actions, claim amount is $50,000.00.

• Punitive and exemplary damages due to the defendant one's previous record of assault and battery and discrimination on members and prospective members of defendant one in the amount of $50,000.00.

• Pre-judgment and post-judgment interest pursuant to the Courts of Justice Act.

• Cost of this application on substantial indemnity basis in addition with post-judgment interest.

• Any additional relief this Honourable Court may deem just.

[34] Similarly against the first named individual defendant the plaintiff makes the latter three general claims above and seeks to add as well this specific amendment:

2. The plaintiff claims from defendant two, Augustine Jeevananthan Jegasothy, the following:

• General damages for his participation and failed fiduciary duty to the ' occupants with regard to physical and mental pain and suffering, assault, battery, intimidation, negligence, humiliation. Being the president of the non-profit organization and directors' liability under Canada Not-for- Profit Corporations Act. (SC 2009, C.23) Section 12, Part 9, Part 10. Lastly, defendant two also knowingly participated and supported a proscribed entity of terrorist organization under Criminal Code R.S.C., 1985, c. C-46 section. 83.05 For the above collection of cause of actions, claim amount is $50 000.00;

• Punitive and exemplary damages under Justice for Victims of Terrorism Act for knowingly and wilfully participating with terrorist, harbouring terrorist and causing intentional harm to the plaintiff in the amount of $50,000.00.

[35] Against an alleged assailant the claim seeks in part:

3. The plaintiff claims from defendant three, Devakumar Sabapathy, the following:

• General damages for physical and mental pain and suffering, assault, intimidation, negligence, humiliation, breach of fiduciary duty to the occupants, and directors'' liability under Canada Not-for-Profit Corporations Act. (SC 2009, C.23) Section 12, Part 9, Part 10; defendant three for his association with a listed entity of terrorist organization under Criminal Code R.S.C. 1985 c. C-46 section. 83.05.

• For the above collection of cause of actions claim amount is $50 000.00.

• Punitive and exemplary damages under Justice for Victims of Terrorism Act for assault and discrimination on membership, discriminatory, malicious, oppressive and terrorising practices of defendant three and for his association with a proscribed terrorist organization in Canada in the amount of $50,000.00.

[36] Similar allegations are sought against each of the other defendants depending on the nature of their alleged involvements.

[37] The plaintiff recognizes in his proposed pleading that this action really focuses on the legal issues as to whether or not TESOC is a defendant acting “acting as a front organization of a banned terrorist organization”. The proposed pleading asserts:

8. This lawsuit against defendant one involves the legal issues of whether or not defendant one was acting as a front organization of a banned terrorist organization, whether or not defendant one instituted a policy of intimidation, assault, and intentional discrimination of membership in order to maintain the secrecy of their involvement with the proscribed terrorist organizations LTTE and WTM: and whether or not defendant one is vicariously liable for the actions of Mahendrarajah Markandu, who will be referred to as defendant five hereafter, for assaulting and battering the plaintiff. Lastly, whether or not the remaining defendants (listed as defendants six through eleven) are liable for negligence as outlined in the Occupier's Liability Act section 3 subsection 1, and director's liability under the [Canada Not-for-Profit Corporations Act.]

9. Plaintiff went to get the membership with defendant one and defendant one refused to give membership on December 7, 2012. The plaintiff was then physically assaulted in front of two security guards from Magnum Protective Services Limited. …

[38] The next few paragraphs of the pleading describe the alleged assault and the roles of various defendants. These paragraphs were permitted to remain by Stinson, J.

[39] I have no problem with the concluding paragraph of the proposed pleading that now adds the identification of the various statutory provisions upon which the plaintiff relies.

[40] While the plaintiff wishes to champion the cause of “right” against what he regards as a continuing terrorist plot, I am not convinced that it would be in his best interests to mount that battle through this action.

[41] Any organizations or individuals which are found to be responsible to him for the damages caused to him may well be required to pay an amount of damages to him. Thankfully, his actual injuries do not appear to be too severe, with the result that the compensation that he may obtain may well prove to be less than the amount of any “without prejudice” offer to settle that might be made in the future by the defendants. Were that to happen it is very possible that as a consequence the plaintiff may end up having a significant personal cost exposure to the multiplicity of defendants he has joined in this action.

[42] In the defendant’s factum, they submit:

5. On a Motion to Amend a Statement of Claim, a Court will consider the tenability of the proposed Claim by applying the principles developed under Rule 21.01 (1)(b). That proposition was considered in Brookfield Financial Real Estate Group Ltd. v Azorim Canada (Adelaide Street) Inc. [2012 ONSC 3818, 111 O.R. (3d) 580, Para. 24]

What that means is that the Court should look at whether or not it discloses reasonable cause of action by looking at its tenability by applying the principle developed under the Rule 21.01 (1 )(b) analysis when applying Rule 26.01.

[43] Applying this analysis, I am satisfied that some of the amendments sought ought not to be permitted. My approach to the determination of the appropriate form of pleading requires a consideration of overarching principles regarding litigation in Ontario.

IX Proportionality

[44] Rule 1.05 permits, the court when making an order under the rules to impose such terms and give such directions as are just. In this respect I adopt a definition of “just” as being based on or behaving according to what is morally right and fair.

[45] In this case I am of the view that while amendments may be made to allow the action to continue, the granting of that permission ought to be subject to a broad range of constraints upon the character of the plaintiffs continuing action.

[46] In that regard I am guided by Rule 1.04 (1) which directs that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[47] In my view, based upon the evidence before me, the pleading needs to have references to any claim being based upon a violation of the Victims Act cannot stand and need to be struck.

[48] I have provided the parties the parties a redacted form of the plaintiffs proposed claim where I have crossed out what I regard as the offending portions. For example I stuck the allegations against most defendants that made assertions such as this:

“Lastly, defendant two also knowingly participated and supported a proscribed entity of terrorist organization under Criminal Code R.S.C., 1985, c. C-46 section. 83.05.”

[49] The plaintiff will still need to deliver a fresh as amended pleading and that may require some modifications flowing from the redacted portions, nevertheless, I believe that the plaintiff now has sufficient guidance to deliver an acceptable form of a Fresh as Amended Statement of Claim. As well, as indicated earlier in these reasons, I believe that this action ought to remain as a Simplified Procedure matter. That format should help to reduce the cost of the action to both sides without overly restricting the potential remedies available to the plaintiff.

[50] In particular, the terms of rule 76 provide for flexibility in cases such as this with numerous defendants:

AVAILABILITY OF SIMPL1FIED PROCEDURE

76.02 (1) When mandatory - The procedure set out in this Rule shall be used in an action if the following conditions are satisfied:

1.The plaintiff's claim is exclusively for one or more of the following:

(i) Money.

(ii) Real property.

(iii) Personal property. , .

2.The total of the following amounts is. $100,000 or less, exclusive of interest and costs:

(i) The amount of money claimed, if any.

(ii) The fair market value of any real property and of any personal property, as at the date the action is commenced.

(2) If there are two or more plaintiffs, the procedure set out in this Rule shall be used if each plaintiff's claim, considered separately, meets the requirements of subrule (1).

(2.1) If there are two or more defendants, the procedure set out in this Rule shall be used if the plaintiff's claim against each defendant, considered separately, meets the requirements of subrule (1). (3) When optional - The procedure set out in this Rule may be used in any other action at the option of the plaintiff, subject to subrules (4) to (9).

(my emphasis)

X. Guidance of Supreme Court in Hryniak v. Mauldin

[51] In coming to my conclusions in this matter, I am guided by the judgment of Justice Karakatsanis in the Supreme Court of Canada’s seminal decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; [2014] S.C.J. No. 7; 2014 SCC 7. There, in determining the general principles to be followed with respect to summary judgment, the court began with a review of the values underlying “timely, affordable and fair access to justice.” In this regard the court specifically focuses upon “Access to Civil Justice: A Necessary Culture Shift.”

[52] I have long championed the broad use of proportionality to seek to optimize the process to suit the dispute. In particular I have considered and annotated the following extracts from portions of the Supreme Court’s judgment:

23 . This appeal concerns the values and choices underlying our civil justice system, and the ability of ordinary Canadians to access that justice. Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.

24 However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes. The cost and delay associated with the traditional process means that, … the trial process denies ordinary people the opportunity to have adjudication. And while going to trial has long been seen as a last resort, other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.

25 Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law.

27 A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

28 This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible - proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. (my emphasis)

XI. Disposition

[53] In the result the plaintiff is partially successful with respect to the amendment sought in particular, leave to issue a fresh as amended claim reflecting the intent of these reasons is granted. This relief is granted on the condition that the Fresh as Amended pleading will continue within the Rule 76 Simplified Procedure framework.

[54] In order to keep the action moving am requiring that the fresh as amended pleading be served and filed with the court by December 30, 2016.

[55] In the result the Defendants’ motion to dismiss the action is dismissed.

X. Costs

[56] Costs were previously awarded against the plaintiff by Stinson J. in the amount of $2500. The plaintiff paid those costs.

[57] I have determined to not allow the case out of Simplified Procedure limits and that to me implies a lesser scale of compensation. Applying proportionality and recognizing the plaintiff is being given a further indulgence, I fix the costs of this motion at $1500 (all in) payable with 60 days to counsel for the defendant.

[58] It is my hope that the parties will endeavour to conduct a fresh mediation at an early stage, in order to seek a workable compromise before incurring substantial additional expense.

Released: November 17, 2016,

R.156/DS Master D. E. Short