CITATION: Sagos v. Canada (Attorney General), 2017 ONSC 7201
COURT FILE NO.: 16-68597
DATE: 2017 Dec 5
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER SAGOS
Plaintiff
– and –
ATTORNEY GENERAL OF CANADA AND OTTAWA POLICE SERVICES BOARD
Defendants
Ian N. McLean, for the Plaintiff
Jennifer S. Bond, for the defendant, Attorney General of Canada
Mary Simms, for the defendant, Ottawa Police Services Board
HEARD at Ottawa: November 29, 2017
TRANMER, j.
MOTION DECISION
[1] The plaintiff moves to deliver and file a Fresh as Amended Statement of Claim. The defendants submit that the court should exercise its discretion to not allow the motion, or, in the alternative, if the court permits the plaintiff to file a Fresh as Amended Statement of Claim, the defendants move to strike out the proposed amendment as failing to comply with the rules relating to pleading the necessary material facts and for disclosing no reasonable cause of action.
Background
[2] As a self-represented litigant, the plaintiff filed the original Statement of Claim against the RCMP on May 16, 2016. He brought the action under the simplified procedure, but claimed damages in the amount of $1 million. His pleading is brief, claiming that the RCMP were conducting an ongoing illegal investigation against him, that they have interfered with his communications devices and violated his Charter human rights.
[3] The plaintiff retained counsel in about January of 2017 who then communicated with the defendant's counsel that he had been instructed to file a Fresh as Amended Statement of Claim.
[4] The draft proposed amended claim was forwarded to the defendant’s counsel on March 6, 2017. Counsel for the RCMP indicated that it could not consent to the amendment. The draft proposed amended claim sought to add as a party defendant the Ottawa Carleton Regional Police Services Board. That party was not provided with a copy of the proposed amendment until August 2017.
[5] On consent during the hearing before me, the defendants were properly named as the Attorney General of Canada and the Ottawa Police Services Board.
The Rules
[6] The following are the Rules most relevant to this motion.
25.06 (1) Material facts – 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.
(3) Condition precedent – Allegations of the performance or occurrence of all conditions precedent to the assertion of a claim or defence of a party are implied in the party’s pleading and need not be set out, and an opposite party who intends to contest the performance or occurrence of a condition precedent shall specify in the opposite party’s pleading the condition and its non-performance or non-occurrence.
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
26.02 A party may amend the party’s pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or
(c) with leave of the court.
1.04 (1) General principle – These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
5.03 (1) General rule – Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.
21.01 (1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(b) under clause (1) (b).
Caselaw
[7] Although Rule 26 states that the court shall grant leave to amend the pleading, unless prejudice would result that could not be compensated for by costs or an adjournment, the caselaw makes it clear that the court has a residual right to deny amendments where appropriate. Of particular relevance, factors to be considered include whether the proposed amendment shows an issue worthy of trial and is prima facie meritorious, whether the amendment if originally pleaded would have been struck out and whether the proposed amendment contained sufficient particulars. Marks v. Ottawa (City), 2011 ONCA 248, para.19.
[8] The mandatory nature of the rule underlies the principle of encouraging public access to the courts and affirms the role of the Superior Court to decide actions on their merits. Another purpose is to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes might be determined without the delay inconvenience and expense of separate actions. “The object of the rule requiring the court to grant leave to amend is not that the party’s case should be so framed as to succeed but that it be framed so that it can be adjudicated by the court, whether for or against the party”. Spar Roofing and Metal Supplies Ltd. v. Glynn, 2016 ONCA 296.
[9] The test on a motion to strike out a claim pursuant to Rule 21.01(1)(b) is that, assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious”, that the pleading discloses no reasonable cause of action. Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 SCR 959; Diaz v. Tossa, 2017 ONSC 54, para. 13.
[10] The tests for adding a party are set out in Plante v. Industrial Alliance, 2003 CanLII 64295 (ON SC), [2003] O.J. No. 3034, para. 27.
[11] The decision of this court in Diaz also holds that bald allegations are insufficient for the purposes of pleading. This is particularly so where allegations of intentional or malicious conduct are made. The plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer intentional or malicious conduct. Further, the plaintiff must at a minimum plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. The absence of the necessary element of the cause of action will constitute a radical defect and the basis on which it is plain and obvious of the plaintiff cannot succeed and accordingly the claim should be struck.
Decision
[12] In the circumstances of this case, I prefer to act pursuant to the mandatory language of Rule 26.01 and to grant the amendment. There is no prejudice to the defendants. I prefer not to exercise the residual discretion that I have to disallow the proposed amendment. Leave to deliver and file the Fresh as Amended Statement of Claim is granted.
[13] My decision with respect to the defendants’ motion to strike the amended statement of claim requires consideration of the paragraphs in order.
[14] Paragraphs 5 to 8 provide contextual background to the claim and should be permitted to that extent.
[15] Paragraphs 9 and 11 plead facts and are proper.
[16] Paragraph 10 is irrelevant and is struck.
[17] Paragraphs 12 to 16 plead facts as to the conduct attributed to the RCMP. As such, they are proper. The informants alleged have been identified in a letter by the plaintiff to the defendant’s counsel.
[18] Paragraph 17 is statute barred against the Ottawa Police Services Board as a plain reading of it attributes the conduct on the part of the Ottawa police service to have occurred on May 7, 2015.
[19] Paragraphs 18, 19 and 20 attribute conduct to the RCMP, and the OPSB, para. 19. These are pleaded as facts and are proper.
[20] The pleading of negligent investigation, in paragraph 21, founded on the facts set out in the previous paragraphs of the proposed amendment is proper in my view. It can be argued that with no charges having been laid the investigation has been resolved in favour of the plaintiff. See also para. 11 of the proposed amendment.
[21] With respect to the claim in harassment in paragraph 22, based on the facts pleaded, it cannot be said that it is plain and obvious that such a claim would fail.
[22] With respect to the Charter violations alleged, those with respect to sections 10a and 10b are struck as there are no facts pleaded with respect to arrest or detention. The claims under sections 7, 8 and 9 cannot be said to be clearly and obviously destined to failure.
[23] The claim in paragraph 24 is struck as there is no third party involvement pleaded.
[24] With respect to paragraph 25, the allegations of stalking, harassment and intimidation are allowed to the extent of the facts pleaded in the prior paragraphs. The only threat identified in the proposed amendment is set out in paragraph 17, which is struck as against the OPSB for the reasons already given. The alleged threat in paragraph 25, and the alleged unlawful entry and unlawful detention based upon break and entry into his house either relate to the statute barred claim in paragraph 17, which I have struck out, or are insufficiently supported by the facts pleaded and are struck.
[25] The references to “the actions of the defendant jointly and severally” in paragraph 26, 27 and 28 are permitted to the extent of the facts pleaded in the previous paragraphs of the proposed amendment as I have allowed.
Summary
[26] The proposed Fresh as Amended Statement of Claim shall be delivered and filed forthwith subject to the portions thereof which I have struck out in accordance with the foregoing reasons.
[27] The defendants shall have 30 days from receipt of the amended claim to deliver their statements of defence.
Costs
[28] If the parties are unable to come to an agreement as to the costs of this motion, which resulted in divided success, and after bona fide efforts to come to such an agreement, the plaintiff may make submissions as to costs limited to 2 written pages within 7 days of receipt of these reasons. The defendant may respond within 5 days of receipt of those submissions also limited to 2 written pages. I note that the hearing on November 29, 2017 took 1 hour and 15 minutes in court. If the court has not heard from the parties within 15 days of receipt of these reasons, the disposition as to costs will be an order of no costs.
Honourable Mr. Justice Gary W. Tranmer
Released: December 5, 2017
CITATION: Sagos v. Canada (Attorney General), 2017 ONSC 7201
COURT FILE NO.: 16-68597
DATE: 2017 Dec 5
PETER SAGOS
Plaintiff
– and –
ATTORNEY GENERAL OF CANADA AND OTTAWA POLICE SERVICES BOARD
Defendants
MOTION decision
Tranmer, J.
Released: December 5, 2017