CITATION: Sachedina v. De Rose, 2017 ONSC 6560

COURT FILE NO.: CV-16-2372-00

DATE: 2017 11 02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

AMIN SACHEDINA

Self-Represented

Plaintiff

• and -

DE ROSE BARRISTERS AND SOLICITORS PROFESSIONAL CORPORATION, DOMINIC DE ROSE, MARIA FRANCESCA DE ROSE, a.k.a. MARY DE ROSE AND ALFRED T. MAY a.k.a. FRED MAY

Emilio Bisceglia, for the Defendants.

Defendants

HEARD: October 18, 2017

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

1Before me are two motions. The defendants seek an order to amend their Statement of Defence to plead a limitation defence and an order striking out the plaintiff’s, Fresh as Amended Statement of Claim.

2The plaintiff seeks an order striking out the Statement of Defence and an order amending the order of Barnes J., dated July 13, 2017, in regards to the service of documents.

3At the outset I advised counsel that I would not likely hear the motion to strike the Statement of Defence. I first need to determine if the motion to strike the Statement of Claim (the “claim”) is to be dismissed or if the claim is to be amended or struck.

4The plaintiff is a lawyer who formerly worked for the defendant, De Rose Barristers and Solicitors Professional Corporation (the “firm”). The plaintiff alleges that he was an independent contractor retained by the firm by means of a verbal contract and that by letter dated May 27, 2014, the firm wrongfully terminated the plaintiff’s services.

5The plaintiff commenced these proceedings by Notice of Action, issued on May 20, 2016, three days short of the second anniversary of his termination. The claim was issued in June, 2016. Thereafter it was amended on two occasions, the last and most current being, December 19, 2016. The current claim is entitled, FRESH as AMENDED STATEMENT OF CLAIM.

6The claim is 87 pages in length and contains 259 paragraphs.

7The individual defendants are principals, lawyers and paralegals within the firm, both past and present.

8When first served with the claim counsel for the defendants advised the plaintiff that the claim did not comply with the Rules of Practice.

9Despite the amendments to the claim the defendants maintain that the claim ought to be struck. In February, 2017, the defendants obtained a long motion date of October 18, 2017, and delivered their motion to strike.

10It seems, that at some point, the plaintiff refused to waive the filing of a defence prior to the hearing of the motion, and the defendants, to avoid being noted in default, filed a Statement of Defence. Therein they denied the allegations contained in the claim and stated the claim is improper because it contravenes the Rules of Civil Procedure, pleads evidence as opposed to material facts, and breaches solicitor and client privilege. The pleading states that the Statement of Defence was filed because the plaintiff has refused to waive the filing of a Statement of Defence pending the outcome of the motion to strike.

11The plaintiff’s motion to strike the Statement of Defence was originally returnable in July, 2017, but was adjourned to the long motion date.

THE LAW

MOTIONS TO STRIKE PLEADINGS

12A pleadings may be struck if it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly (Rule 21.01(1)(b)).

13Every 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 (Rule 25.06(1)).

14A pleading that may prejudice or delay the fair trial of an action, or is scandalous, frivolous or vexatious or is an abuse of process may be struck. (Rule 25.11))

15The court shall grant leave to amend a pleading at any stage unless prejudice would result that could not be compensated by costs or an adjournment (Rule 26.01).

16The purpose of pleadings is three-fold: (i) to define or clarify the issues; (ii) to give notice of the case to be met and the remedies sought; and (iii) to apprise the court as to what is in issue (Somerleigh v. Lakehead Region Conservation Authority 2005 CarswellOnt 2546, para. 5).

17A careful draftsman will distill the essence of an event to plead what occurred when it is legally significant or material to the case (Somerleigh, para. 12).

18Embellishment adds length to a pleading without adding substance (Somerleigh, para. 23).

19Argument is not to be included in a pleading (Somerleigh, paras. 27 – 30).

20Irrelevancies obscure the issues (Somerleigh, para. 35).

21A pleading is intended to provide a reader with the skeleton, rather than a fully fleshed out body detailing the events (Mudrick v. Mississauga Oakville Veterinary Emergency Professional Corp. 2008 CarswellOnt 6682, para. 21).

22Where pleadings do not comply with the Rules, the remedy is to move to strike under Rule 25.11 on the grounds that what is alleged may prejudice or delay the fair trial of the action, or where it is scandalous, frivolous or vexatious or where it constitutes an abuse of process (Mudrick, para. 26).

23Where a claim is pleaded properly a summary is unnecessary as it is repetitive (Mudrick, para. 32).

24From paragraphs 37 and 39, of the Mudrick decision I quote,

“The claim reads like an affidavit drafted by an irate client. Instead of setting out material facts, each allegation takes the form of evidence, replete with the type of minutia that has no place in a pleading. Details of who said what and when are included…

This pleading cannot be repaired by simply deleting a paragraph here or a line there. There are far too many problems with it for a “bandaid” solution. The claim must be struck in its entirety.”

25Cerqueira v. Ontario 2010 ONSC 3954 is an authority relied on by the defendants. The statement of claim therein was 94 paragraphs over 28 pages.

26From this authority comes some additional general principles governing pleadings (para. 11):

(a) The causes of action must be clearly identifiable from the material facts pleaded.

(b) A party is entitled to plead any fact that is relevant to the issues. It cannot contain irrelevant, immaterial or argumentative facts.

(c) Allegations made only for the purpose of colour are to be struck as scandalous.

(d) On a motion to strike on the ground that it discloses no cause of action, it must be shown that it is plain, obvious and beyond doubt that the claim cannot succeed. The pleading must be read generously and allegations of fact must be accepted as proven.

(e) Facts irrelevant or immaterial cannot be pleaded.

(f) Allegations of fraud, misrepresentation, negligence and conspiracy must be pleaded with particularity.

27McDowell and Aversa v. Fortress Real Capital Inc. 2017 CarswellOnt 12387 is a decision of Perell J. of the Ontario Superior Court of Justice. The court was considering a statement of claim that was 90 pages in length, with 214 main paragraphs.

28After setting out some examples of non-compliance, the court stated, at paragraph 69,

“While in individual instances the contraventions, standing alone, are not serious, taken together even the modest contraventions make for an unacceptable pleading. Combined with the many major contraventions, the whole pleading should be struck out. I however, grant the Plaintiffs leave to amend a Fresh as Amended Statement of Claim”.

29Mislovitch v. Bloom [1997] O.J. No. 5225, a decision of J. Macdonald J. From paragraph 9 I quote,

“On a motion to strike out a pleading, a court must read the Statement of Claim generously with allowance for inadequacies due to drafting deficiencies…In my opinion, it follows that in a motion to strike, when an allegation may be inferred from the words pleaded, it is appropriate to regard it as pleaded provided it falls within a generous reading of the Statement of Claim.”

30It is not the court’s function to do the editorial work of counsel (1239745 Ontario Ltd. v. Bank of America Canada [1999] O.J. No. 3178, para. 38).

31A motion to strike is a tool to be used with care. The law is not static or unchanging. Thus, the approach must be generous and err on the side of permitting novel but arguable claims (Bailey v. Milo-Food and Agricultural Infrastructure and Services Inc. 2017 ONSC 1789, para. 37).

ESTOPPEL

32The plaintiff raises a further issue which requires consideration. He submits that the defendants, having filed a Statement of Defence, are estopped from alleging the claim does not comply with the Rules. The filing of the defence, it is submitted, constitutes a fresh step.

33A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court, if the moving party has taken any further step in the proceeding after obtaining the knowledge of the irregularity (Rule 2.02(b)).

34Tribar Industries Inc. v. KPMG LLP 2009 9747 (ON SC), [2009] O.J. No. 959 is a decision of Brown J. of the Ontario Superior Court of Justice. Commencing at paragraph 21 he considers an allegation that the claim disclosed no reasonable cause of action further to Rule 21.01(1)(b). The argument was rejected. One of the grounds for doing so was that a statement of defence had already been filed. From paragraph 22, I quote,

“Having pleaded over to the Amended Claim, it is not open to him to bring a motion to strike, on the basis that the claim discloses no reasonable cause of action.”

35Schulz v. Johns 2014 CarswellOnt 638, is a decision of Perell J. From paragraph 9, I quote,

“I intend to deal with the defendants’ motion on its merits, but I wish to point out that their motion could have been dismissed because they took the further step or fresh step of delivering a pleading rather than bringing a motion to have the original Statement of Claim struck out.”

36Perell J. went on to say, at paragraph 11,

“I appreciate that leave can be granted to bring the motion to strike the statement of claim notwithstanding that the defendant has delivered a statement of defence, and I appreciate that there are a line of authorities that suggest that leave is not necessary where the statement of defence expressly or implicitly disputes that a cause of action has been shown.”

37The judge went on to say (para. 12) that he agreed that the practice of delivering a statement of defence and then a Rule 21.01 motion ought to be discouraged. In any event he was not called upon to make a ruling on this issue as the plaintiff did not take issue with the fact the motion was delivered after the statement of defence was delivered.

38In regards to the issue of estoppel, I will grant leave to the defendants to bring their motion to strike notwithstanding their delivery of a Statement of Defence.

39The plaintiff was aware, from the outset that the defendants were challenging the validity of the claim. The plaintiff, in response, delivered a total of three versions of the claim. I accept it was unclear to the defendants whether or not they would be noted in default and for that reason delivered the Statement of Defence. The Statement of Defence explicitly takes issue with the claim and was an attempt to preserve their right to challenge the claim.

SOLICITOR AND CLIENT PRIVILEDGE

40Manning v. Epp 2006 CarswellOnt 4377 (appeal dismissed, 2007 ONCA 390) dealt with a motion to strike out a statement of claim which was 111 pages long with 322 paragraphs. Commencing at paragraph 35 the court considered whether certain paragraphs were to be struck as breaches of privilege.

41From paragraph 36 and 37 I quote,

“In summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to employees and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This privilege applies to all communications within the framework of the solicitor-client relationship which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.

Rule 25.11 permits the courts to strike out (or expunge) any part of a pleading that may prejudice or delay the fair trial of an action. A pleading of facts or documents that are inadmissible at trial will prejudice or delay the fair trial of an action and should be struck under this rule…Privileged communications are inadmissible.”

ANALYSIS

42A copy of the claim can be found in the plaintiff’s original motion record, Tab 5. In my opinion the claim ought to be struck out, in its entirety, with leave to amend. There are simply too many problems with it for a “band-aid solution”.

43The pleading is excessively long and thereby prohibits a detailed, paragraph by paragraph analysis. In the form it was drafted, I agree with counsel for the defendants that it would be almost impossible to compose an adequate statement of defence.

44The plaintiff concedes that he brought this action because his contract for hire was wrongfully terminated by the firm. However, it is not until near the end of the claim that the pleading first references receiving a letter of termination as a result of a missed limitation period.

45The claim does not contain particulars in regards to what actual damages flowed from the termination. How did it impact on his ability to obtain new employment or work?

46The claim goes well beyond setting out material facts. It contains page after page of evidence. It certainly cannot be considered a concise statement of the plaintiff’s claim. It is a “fleshed out body”, not a “skeleton”.

47The facts are embellished, for example by the repeated use of the word “heinous”.

48Irrelevant facts are pleaded.

49The claim includes, at the end, a 10 page, 46 paragraph, summary of pleadings that is simply repetitive and not part of a properly drafted statement of claim.

50The claim sets out the names of multiple clients, some facts and circumstances regarding their files, including in house discussions of counsel. In my opinion this may give rise to multiple breaches of solicitor-client privilege, especially the identification of clients and, as such, the offending paragraphs would be inadmissible. Certainly, the clients names out to be deleted or referenced only initials.

51While I recognize that provisions in the claim ought to be read generously, and the facts taken to be true, the plaintiff is an experienced lawyer and the claim, as drafted, represents an evidentiary diary of or story, detailing the inner workings of the firm and members of the firm.

52A sampling of the paragraphs in the claim support the need for the claim to be struck with leave to amend.

53Such an example can be found in the first paragraph of the claim. Therein the plaintiff claims declaratory relief. For the most part the court lacks the jurisdiction to do so, particularly when directed towards third parties (requesting the court to require the Law Society of Upper Canada to conduct an audit). The plaintiff is requesting the court to adjudicate on the firm’s internal operation and the handling of its clients. Further, the claims are irrelevant.

54The plaintiff was under contract to the firm over two periods of time. The first contract covered the period of 2006 and 2007. The second contract ran from June, 2009 until it was terminated on May 23, 2014.

55Paragraphs 12 to 33 recite facts relating to the first contract and are irrelevant and do not represent material facts. They contain breaches of solicitor client privilege. At their highest, they are no more than contextual evidence.

56Commencing at paragraph 34, the claim deals with the second contract. While likely most of the content is relevant, it is a recital of evidence. The evidence may be relevant and admissible at trial but does not represent a concise statement of the material facts.

57There are continued references to clients identified by name and by the nature of the work done for those clients.

58References to the termination of other employees while perhaps relevant are not material facts (para. 75).

59In regards to the claim of a breach of the Human Rights Code, I take no issue. It can be pleaded as a cause of action in a proceeding that alleges other causes of action but again must set out in a concise manner, material facts.

60Commencing at paragraph 151, the claim refers to the culture of intimidation at the firm. It again recited evidence of the inner workings of the firm without connecting any material facts to a cause of action.

61As noted previously, it is not until paragraph 191 that the claim makes reference to the plaintiff’s actual termination. Thereafter evidence continues to be pleaded beyond what can be considered material facts.

62The plaintiff submits that the claim, in its current form, and the facts alleged therein are necessary to provide context and understanding of his claim.

63He relies on the dicta found in the Mislovitch case, paragraph 12, where pleadings of evidence in some circumstances should be allowed to stand contrary to Rule 25.06.

64In my opinion the claim before me goes well beyond the recital of some evidence to particularize a claim. It is a comprehensive, evidentiary review of the plaintiff’s interaction with the defendants and while it may be admissible evidence at trial, such evidence, certainly to this extent, represents an improperly drafted claim that must be struck in its entirety, with leave to deliver an Amended Statement of Claim.

65While it is not the court’s job to do editorial work, it is the court’s job to ensure pleadings comply with the rules, albeit with a generous reading. The errors go well beyond deficiencies that can be overlooked.

66Many paragraphs in the claim are critical of the defendant, Fred May (Fred). Fred left the firm in 2013, more than two years from the date the original claim was issued. Accordingly, the defendants argue that there is no cause of action against Fred because the limitation period has expired.

67Whether or not there is a limitation defence is a question to be left to the trial judge. There may be issues of discoverability. The defendants will be allowed to plead the Limitations Act.

68The plaintiff, at least to this stage, has chosen to represent himself. Regardless of the fact that he is a lawyer, I recommend to him, in the strongest of terms, that he retain counsel, if not to draft a new statement of claim, to review any new claim drafted by him. The claim which is to be struck is clearly one that can be said to be like a document prepared by an irate client. There is an emotional and bias overlay to the pleading, representing a lack of objectivity which has resulted in an 87 page claim containing 259 paragraphs.

RULING

69The Statement of Claim, amended on December 19, is struck, in its entirety, with leave granted to the plaintiff to deliver a new, Amended Statement of Claim within 30 days of the release of this ruling.

70The defendants will have 30 days from the delivery of the Statement of Claim to either deliver a Statement of Defence or set down a motion challenging the new Statement of Claim. The Statement of Defence may plead a limitations defence.

71The plaintiff’s motion to strike the Statement of Defence is adjourned sine die, returnable on seven days’ notice but in any event is not returnable until the delivery of the Statement of Defence in response to the new, Amended Statement of Claim.

72The plaintiff’s request to amend the order of Barnes J., dated July 13, 2017, is dismissed. I find there is no need to amend it.

73I will accept written submissions as to costs, of no more than four pages in length, double spaced, together with a Bill of Costs or Summary of Costs. The defendants must file such submissions within 21 days of the release of this ruling and the respondent will have 10 days thereafter to respond.

Bielby J.