ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KAREN MELCHER
Plaintiff (Respondent in Motion)
Self-Represented Plaintiff/Respondent
- and -
ADRIAN CLEAVER
Defendant (Moving Party)
Allison J. Klymyshyn for the Defendant/Moving Party
HEARD: August 1, 2017
REASONS FOR DECISION
James, J.
1This is a motion by the defendant to strike out the plaintiff’s claim because:
i. it does not disclose a claim recognized by the law, usually referred to as disclosing no reasonable cause of action or, alternatively,
ii. the claim is scandalous, frivolous, vexatious and an abuse of process of the court.
2The plaintiff is unrepresented and it is clear that the statement of claim has been prepared by a person without legal training and without regard to the rules of court on what a statement of claim should contain.
Facts
3The factual background may be briefly stated. The plaintiff was arrested three times in August, 2015 following complaints to the police by her neighbours.
4Following the third arrest on Friday, August 28th, the plaintiff was held in custody for a bail hearing. A neighbour reported that the plaintiff had been seen pointing a pistol at someone.
5The plaintiff contacted the defendant, a local lawyer, on the day she was arrested. The defendant commenced work on a bail plan to secure the plaintiff’s release. A bail hearing was scheduled for Tuesday, September 1st.
6The defendant was scheduled to work as a per diem assistant Crown Attorney on Monday, August 31st.
7The defendant appeared at the bail hearing on September 1st on the plaintiff’s behalf. The bail hearing was adjourned until the next day.
8The defendant says the plaintiff was released the next day pursuant to a consent arrangement with the prosecutor.
Applicable Principles
9On a motion to dismiss a claim because it does not disclose a reasonable cause of action, the allegations contained in the statement of claim are deemed to be true unless they are obviously unreasonable or incapable of proof.
10A review of the statement of claim discloses that a large portion of it is directed at complaints that are unconnected to the defendant or for which the defendant is clearly not responsible and are therefore irrelevant and immaterial.
11When the statement of claim is read generously in favour of the plaintiff and allowing for improper drafting and other errors in the preparation of the claim, it appears to me that there is a hint or glimpse of a cause of action against the defendant, subject to proof, in negligence or breach of contract. The plaintiff alleges the defendant did not schedule a bail hearing at the earliest opportunity because he was scheduled to work as a part time Crown Attorney on Monday, August 31st and therefore postponed the bail hearing to suit his schedule. The claim is arguably based in negligence because the plaintiff contends the defendant breached his duty of care or arguably based in contract because the defendant breached an implied term of the contract, in either case by failing to schedule a bail hearing as soon as possible, that is, on Monday, August 31st.
12At the same time, most of the statement of claim is directed at other complaints or is irrelevant to the essential elements of the causes of action that I have identified. The offending passages ought to be struck out.
13Having found that there is possibly a cause of action disclosed by the statement of claim or, expressed another way, that it is not plain and obvious that the plaintiff has no case even assuming the allegations in the statement of claim are true, the defendant’s request for alternative relief ought to be addressed.
14When a defendant requests that a statement of claim ought to be struck out as scandalous, frivolous, vexatious or as an abuse of process, evidence may be admitted on that part of the motion. The defendant has delivered an affidavit wherein the defendant deposes that on August 28, after speaking with the plaintiff, he immediately contacted a proposed surety. The affidavit does not address why a bail hearing could not have been scheduled for August 31st or whether the defendant’s unavailability on August 31, if indeed he was unavailable on that date, was discussed with the plaintiff.
15Conclusory statements as in paragraph 8 of the defendant’s affidavit are not particularly helpful.
16At his stage I am not prepared to completely deprive the plaintiff of the right to pursue her action on the basis that it is frivolous, etc. although, as indicated above, large portions of the statement of claim should be struck as improper. Portions of a statement of claim can be struck out because they are frivolous, vexatious or scandalous in relation to the cause of action identified in the statement of claim, without necessarily striking out the entire claim.
17In coming to this conclusion, I acknowledge that there may have been compelling reasons for the decision to adjourn the bail hearing to the following Tuesday but those details are not part of the evidence before me. Also, I am aware that bail hearings can be delayed for several days, even weeks, in order to assemble a viable bail plan.
18A similar situation was before the Court of Appeal in Currie v. Jaeger et al., 2003 7815 (ON CA). In that case, the allegation against the respondent was that “[The respondent] repeatedly and unlawfully urged and requested the defendant Owen Gray [a detective with the Halton Regional Police Services Board] to arrest the [plaintiff]”. The respondent moved for various relief including an order striking out the statement of claim as frivolous etc. and for summary judgment for dismissal. There was evidence on the motion from Detective Gray that it was solely his decision to arrest the plaintiff. The motion judge accepted the evidence of Detective Gray as determinative of the main factual issue, i.e. that the conduct of the respondent has nothing to do with the arrest and incarceration of the plaintiff and the Court of Appeal held that there was sufficient evidence to conclude that the action had no chance of success (para. 31). Armstrong J.A. commented that he “might have been inclined to dispose of this matter as a summary judgment motion” (para. 32).
Disposition
19Most of the allegations in the statement of claim offend the rules of court respecting the preparation of pleadings and ought to be struck out. Attached as a schedule to this endorsement is a copy of the statement of claim indicating the required deletions.
20The schedule summarizing the plaintiff’s alleged damages should not be struck out even if many of the items appear unreasonable, or unconnected to the claim against the defendant or are too remote. Once a potential cause of action has been made out, the plaintiff is at liberty to claim various types of expenses subject to proof at trial or a summary judgment motion for dismissal and subject to the costs rules regarding claims made in the wrong court, for example, where the amount recovered is $25,000 or less, the claim should be brought in Small Claims Court.
21To the extent that there are material facts to support the causes of action I have identified, essentially as set out in paragraph 6 of the claim, the plaintiff shall be entitled to maintain her claim and the defendant shall have 30 days to serve and file a statement of defence.
22On the issue of legal costs, the defendant has been partially, but not completely, successful. It appears to me that the plaintiff made an inadequate effort to comply with the rules of court respecting the preparation of statements of claim and therefore placed herself at risk of incurring an order for costs following a successful attack on her pleadings. There were reasonable grounds for the defendant to bring the motion. The defendant is entitled to an appropriate allowance for his legal costs associated with the motion because so much of the statement of claim was found to be unquestionably improper.
23The defendant has presented a costs outline claiming partial indemnity costs of $5,436.37. The outline includes a claim for over 25 hours for motion preparation on a relatively straightforward motion. While I am not prepared to say this is excessive, it is substantially more than ought to be paid by an unsuccessful respondent on this type of motion. Costs to the defendant fixed in the sum of $1,000 plus HST, payable by the plaintiff within 30 days.
Mr. Justice Martin James
DATE RELEASED: August 15, 2017
CITATION: Melcher v. Cleaver., 2017 ONSC 4847
COURT FILE NO.: CV-16-749
DATE: August 14, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KAREN MELCHER
Plaintiff (Respondent in Motion)
- and –
ADRIAN CLEAVER
Defendant (Moving Party)
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: August 15, 2017