Court File and Parties

COURT FILE NO.: 16-69896 DATE: 2017/06/19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Besner-Vered (1980) Limited, Plaintiff AND 561028 Ontario Limited and Paul Ziebarth Holdings Inc., Defendants

BEFORE: Madam Justice Robyn M. Ryan Bell

COUNSEL: David Cutler, counsel for the Plaintiff Cheryl Gerhardt McLuckie, counsel for the Defendants

HEARD: May 8, 2017

Endorsement

Introduction

[1] The plaintiff moves to strike out the Statement of Defence and Counterclaim in its entirety, with leave to amend, on the basis that the pleading contravenes Rule 25 of the Rules of Civil Procedure. In the alternative, the plaintiff seeks an order striking out specific paragraphs and sentences of the pleading, with leave to amend. The plaintiff’s position is that the Statement of Defence and Counterclaim pleads evidence, and in particular, opinion evidence, improperly refers to legal counsel and contains argument.

[2] The defendants’ position, in summary, is that the Statement of Defence and Counterclaim contains material facts that are responsive to the allegations in the Statement of Claim and are relevant to their limitations defence.

[3] The plaintiff is the owner of 87 Bentley Avenue, Ottawa. The defendant 561028 Ontario Limited is the former owner and the defendant Paul Ziebarth Holdings is the current owner of 89 Bentley Avenue, Ottawa. 87 Bentley Avenue and 89 Bentley Avenue are adjacent properties. The parties blame each other for causing environmental contamination to migrate onto their land.

[4] For the reasons which follow, certain paragraphs and sentences of the Statement of Defence and Counterclaim shall be struck out on the basis that they fail to comply with the rules of pleading. The pleading is not, however, so deficient that it should be struck out in its entirety.

Rule 25

[5] The plaintiff relies on Rules 25.06 and 25.11 of the Rules of Civil Procedure in support of its motion. Rule 25.06(1), applicable to all pleadings, provides 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.”

[6] Rule 25.11 permits the court to strike out all or part of a pleading which:

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.

[7] Rule 25.06(7), on which the defendants rely, provides that the effect of a document, if material, shall be pleaded as briefly as possible, but the precise words of the document need not be pleaded unless the words are themselves material. The defendants also rely on Rule 25.07(3): where a defendant intends to prove a version of the facts different from that pleaded by the plaintiff, the defendant is required to plead its own version of the facts.

Pleading Contains Opinion Evidence

[8] The plaintiff’s position is that paragraphs 9, 10, 14, 15, 17-26, 32, 41, 47 and 48 of the Statement of Defence and Counterclaim should be struck out on the basis that they plead evidence, and in particular, technical opinion evidence of various consultants, experts and regulators who have investigated the contamination issues over many years. The plaintiff says that the reports are not the type of documents to which Rule 25.06(7) refers; rather, the investigative reports referred to by the defendants are how the defendants intend to prove the material facts.

[9] The defendants’ position is that the impugned paragraphs plead material facts relevant to particular allegations in the Statement of Claim and to the limitations defence. They say that the fact that the plaintiff conducted investigations, when those investigations were conducted and the results of those investigations are all material facts. And, the defendants say that Rule 25.06(7) requires them to plead the effect of a document or a communication.

[10] A defendant is entitled to plead whatever material facts it chooses in response to the allegations in the statement of claim, provided that “the allegations are relevant and of at least marginal probative value and their probative value is not outweighed by their prejudicial effect.” (Quizno’s Canada Restaurant Corporation v. Kileel Developments Ltd., 2008 ONCA 644, at para. 23.) A pleading should not, however, describe or summarize the evidence that will prove a material fact. (See Jacobson v. Skurka, 2015 ONSC 1699, at para. 44.)

[11] The distinction between material facts, particulars and evidence is not always a bright line. (See Seguin v. Van Dyke, 2011 ONSC 2566, at para. 14.) Put another way, the difference between pleading materials facts and pleading evidence is a difference in degree and not of kind. (Jacobson v. Skurka, at para. 44 citing Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214, at para. 15.) The prohibition against pleading evidence is designed to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts. (Jacobson v. Skurka, at para. 44 citing Grace v. Usalkas, [1959] O.W.N. 237 (H.C.J.))

[12] As Master MacLeod (as he then was) stated in Seguin v. Van Dyke at para. 25, pleading evidence before the evidence has actually been given or admitted may be prejudicial. Where opinion evidence is pleaded, there is real mischief in allowing the pleading to stand. The trial judge will determine whether the opinion evidence is admissible.

[13] The defendant relies on the decision of Brunn v. Halton Children’s Aid Society, 2016 ONSC 6195, where Master Pope permitted the plaintiffs to plead particular recommendations of the Report of the Inquiry into Pediatric Forensic Pathology in Ontario (the “Goudge Report”). In Brunn, however, the Goudge Report was not evidence; rather, it was the standard which the plaintiffs alleged the Children’s Aid Society had failed to follow. I also note that in Brunn, a number of references to the opinions of treating physicians were struck from the claim on the basis that these references constituted evidence, not material facts.

[14] With these principles in mind, I turn now to the impugned paragraphs under this heading. Paragraph 9 of the Statement of Defence and Counterclaim summarizes the results of an investigation conducted by an engineering firm retained by the plaintiff with respect to the cause of environmental contamination at 87 Bentley. The defendants say that these are material facts known to the plaintiff in 2000. I agree with the plaintiff that the results of the investigation and the conclusions of the engineering firm are opinion evidence. As drafted, the paragraph contains opinion evidence and it will be struck out on this basis.

[15] The defendants say that paragraph 10 responds to the allegation in the claim that the investigation was not undertaken. I find that the first sentence of paragraph 10 provides context and it will not be struck. However, as drafted, the balance of paragraph 10 summarizes the opinion evidence from an environmental consultant retained by the defendants with respect to the likely cause of the contamination. It is opinion evidence and will be struck out.

[16] Paragraph 14 summarizes the opinion evidence from an environmental consultant retained by the defendants. This paragraph of the pleading reads more like an affidavit than a statement of defence. The evidence consists of “how” the defendants will prove the material facts on which they rely. This paragraph will be struck out on the basis that it is opinion evidence.

[17] The defendants say that paragraph 15 pleads material facts relevant to the limitations defence and responds to a number of allegations in the Statement of Claim. I find that as drafted, paragraph 15 is a recitation of opinion evidence from an engineering firm as to the cause of the environmental contamination. As such, it will be struck out.

[18] The defendants’ position with respect to paragraph 17 is similar to paragraph 9, except that the defendants say that paragraph 17 sets out material facts known to the plaintiff in 2008. I find that paragraph 17 constitutes a summary of opinion evidence from an engineering firm as to the cause of the environmental contamination. It is opinion evidence and will be struck out in its entirety.

[19] The defendants say that paragraph 18 responds to the plaintiff’s allegations that certain work was not conducted. I find that as drafted, the response in paragraph 18 contravenes the rules of pleading because it contains opinion evidence, including a reference to the conclusion of the defendants’ environmental consultant. For this reason, paragraph 18 will be struck out.

[20] In paragraph 19, the directive of the Ministry of Environment and Climate Change (“MOECC”) and the fact that the plaintiff has not undertaken remediation of 87 Bentley are properly pleaded. The first sentence of paragraph 19 constitutes opinion evidence and will be struck out.

[21] The defendants say that paragraph 20 contains material facts relevant to their limitations defence. I find that as drafted, paragraph 20 summarizes the opinion evidence of an engineering firm, allegedly retained by the plaintiff. It will be struck out on this basis.

[22] Paragraph 21 summarizes the conclusions of an engineering firm with respect to the cause of the environmental contamination. The conclusions are opinion evidence and will be struck out on this basis.

[23] The first sentence of paragraph 22 is a statement of material fact and narrative. I find that the balance of the paragraph summarizes opinion evidence, including from the defendant’s consultant, as to the source of the environmental contamination. The balance of paragraph 22 will be struck out.

[24] The first sentence of paragraph 23 is relevant to the plaintiff’s claim that the defendants are responsible for all remedial work required to rectify and remediate 87 Bentley and “any other properties adversely affected by the contamination on or about 87 Bentley…” and is properly pleaded. I find that the balance of the paragraph is opinion evidence and will be struck out on this basis.

[25] Paragraph 24 pleads material facts responsive to the allegation in paragraph 18(h) of the Statement of Claim. It will not be struck out.

[26] Paragraph 25 summarizes the conclusions of the defendants’ consultant’s report. It is opinion evidence and will be struck out on this basis.

[27] Paragraph 26 summarizes the opinions of the MOECC. As drafted, this paragraph reads like an affidavit as opposed to a pleading. This is opinion evidence, not material facts, and will be struck out.

[28] Paragraph 32 responds to the allegations of nuisance in paragraphs 13 and 14 of the Statement of Claim. In particular, the fourth sentence pleads material facts that respond to the allegation in paragraph 14 of the Statement of Claim that the plaintiff’s right to safely have use and enjoyment of its property has been damaged. Paragraph 32 will not be struck out.

[29] The defendants plead a limitations defence in the first, sixth and seventh sentences of paragraph 41. The references to reports in the other sentences of that paragraph are the evidence upon which the defendants intend to rely in arguing this defence. These sentences will be struck out on the basis that they plead evidence, not material facts.

[30] The plaintiff objects to the reference to “an ongoing investigation of 89 Bentley has disclosed” in paragraph 47 of the Statement of Defence and Counterclaim. On balance, I find that this is part of the narrative and the statement will not be struck out.

[31] I find that the first sentence of paragraph 48 is a pleading of evidence which the defendants intend to adduce to prove the statement of material fact pleaded in the second sentence. The first sentence of paragraph 48 will be struck out, but not the second.

References to Legal Counsel

[32] The plaintiff objects to the references to legal counsel in paragraphs 15 and 42 of the Statement of Defence and Counterclaim. The plaintiff says that these references are irrelevant and have been included in the pleading solely for colour. The defendants maintain that it is a material fact to the limitations defence that the plaintiff engaged legal counsel and when.

[33] Legal counsel is not a party to the litigation. I find that the references to legal counsel are irrelevant and are not material facts. The reference in paragraph 15 to legal counsel will also be struck out on this basis (the paragraph in its entirety is struck out for the reasons set out in paragraph 17 above). Paragraph 42 will be struck out in its entirety.

Pleading Contains Argument

[34] The plaintiff objects to certain statements in paragraphs 11 and 16 of the Statement of Defence and Counterclaim. Paragraph 11 responds to the allegation in the Statement of Claim that the contamination was caused by the current tenant. The plaintiff takes the position that the statement in this paragraph, “that there is no empirical evidence to suggest…” is argumentative. I agree. The statement will be struck out.

[35] In reference to paragraph 16, the defendants say that the direction of the groundwater flow is material. I find that as pleaded, the first sentence of paragraph 16 summarizes opinion evidence. I agree with the plaintiff that the second sentence is improperly included in an attempt to discredit the opinion evidence contained in the first sentence. Paragraph 16 will therefore be struck out.

Conclusion

[36] For the reasons set out above, paragraphs 9, 10, 14, 15, 16, 17, 18, 20, 21, 25, 26 and 42 of the Statement of Defence and Counterclaim will be struck out in their entirety, with leave to amend.

[37] For the reasons set out above, paragraph 11 (“that there is no empirical evidence to suggest”), paragraphs 19 and 48 (first sentence), paragraphs 22 and 23 (all but the first sentence), and paragraph 41 (second, third, fourth and fifth sentences) will be struck out, all with leave to amend.

[38] In the event the parties are unable to agree upon costs of the motion, they may make written submissions limited to a maximum of five pages, double-spaced, exclusive of a costs outline. Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this decision is released.

Madam Justice Robyn M. Ryan Bell Date: June 19, 2017

COURT FILE NO.: 16-69896 DATE: 2017/06/19 ONTARIO SUPERIOR COURT OF JUSTICE RE: Besner-Vered (1980) Limited, Plaintiff AND 561028 Ontario Limited and Paul Ziebarth Holdings Inc., Defendants BEFORE: Madam Justice Robyn M. Ryan Bell COUNSEL: David Cutler, for the Plaintiff Cheryl Gerhardt McLuckie, for the Defendants ENDORSEMENT Justice Ryan Bell Released: June 19, 2017