Moody v. Niagara Police Services Board, 2018 ONSC 3079

Court File No.: 11992/18

Date: 2018-05-16

Superior Court of Justice – Ontario

Re: Johnathon Moody, Plaintiff

And: Niagara Police Services Board et al., Defendants

Before: Mr Justice Ramsay

Counsel: Margaret Hoy for Plaintiff; Mickey Cruickshank for Defendant

Heard: May 16, 2018 at Welland

Endorsement

[1] The defendants move to strike 34 of the 76 paragraphs of the statement of claim for failure to comply with the rule of pleading. They do not object to leave to amend.

[2] The Rules of Civil Procedure provide:

25.06 (1) 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.

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded. …

[3] In Air Canada v. West Jest Airlines, 2004 66339 (ON SC), [2004] O.J. No. 5627, Nordheimer J. set out the principles that apply in motions to strike pleadings under Rule 25.11:

(a) motions under rule 25.11 should only be granted in the "clearest of cases" - see Wernikowski v. Kirkland, Murphy & Ain (2000), 1999 3822 (ON CA), 181 D.L.R. (4th) 625 (Ont. C.A.);

(b) any fact which can affect the determination of the rights of the parties can be pleaded but the court will not allow facts to be alleged that are immaterial or irrelevant to the issues in the action - see Duryea v. Kaufman (1910), 21 O.L.R. 161;

(c) portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous - see George v. Harris, [2000] O.J. No. 1762 (S.C.J.);

(d) facts may be pleaded but not the evidence by which those facts are to be proved - rule 25.06(1) of the Rules of Civil Procedure;

(e) similar facts may be pleaded as long as the added complexity arising from their pleading does not outweigh their potential probative value - see Garwood Financial Ltd. v. Wallace (1997), 1997 12276 (ON SC), 35 O.R. (3d) 280 (Gen. Div.).

[4] Strathy J. added the following in Canadian National Railway v. Maracle, 2009 32911 (ON SC), [2009] O.J. No. 2661:

27 A pleading must 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; Davis v. Canada (Attorney General) 2004 NLSCTD 153, 240 Nfld. & P.E.I.R. 21, [2004] N.J. No. 274. Unnecessary paragraphs should be struck so as to refine and focus the pleading. A pleading or a portion of a pleading may be struck if it is scandalous, frivolous or vexatious, may prejudice or delay the fair trial of the action, or is an abuse of the process of the court: rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. No pleaded fact that is relevant can be scandalous: Duryea v. Kaufman (1910), 21 O.L.R. 161 (H.C.J.) at 168:

Anything which can have any effect at all in determining the rights of the parties can be proved, and consequently can be pleaded - but the Court will not allow any fact to be alleged which is wholly immaterial and can have no effect on the result. ...

28 A pleading of fact will be struck if it cannot be the basis of a claim or a defence in the action and is designed solely for the purpose of atmosphere: Wilson v. Wilson, [1948] O.J. No. 62 (H.C.J.). If the only purpose of the pleading is to cast the opposing party in a bad light, it will be struck. Pleadings of historical facts, whether those facts are true or not, that have no relevance to the proceeding, will also be struck: see, for example, Davis v. Canada (Attorney-General), above; Desjarlais v. Canada (2002), 2002 FCT 973, 224 F.T.R. 37, [2002] F.C.J. No. 1272.

29 One of the reasons for this rule is that the pleadings define the issues in the action. If a party is required to respond to irrelevant facts, inquire into those facts on discovery, and respond to evidence of those facts at trial, the litigation and trial will be diverted by inquiries into facts that have no connection to the real issue before the court.

[5] The essence of the plaintiff’s claim is that his mother called the police to check on his welfare. She was worried because of his mental illness. The police saw him walking down the street and took him to the hospital. He says that they arrested him without grounds and with excessive force and that they stole his wallet. All this caused him psychological injury for which he seeks compensation in damages.

[6] The statement of claim breaches the rules of pleading in a number of ways that are repeated throughout the document. First, there is a pattern of pleading the irrelevant. For example, paragraphs 10 and 11 deal with a conversation the plaintiff’s mother had with a friend of hers about the plaintiff’s mental health.

[7] Another example of irrelevance is contained in paragraph 28, in which the Plaintiff complains about a “nightmare three week’s detention in hospital.” The police are not accountable for the hospital’s decision to detain the Plaintiff. The Plaintiff is entitled to plead that his treatment by the police injured him and necessitated a stay in hospital, but he has not done so intelligibly.

[8] The second feature is a pattern of pleading the evidence. For example, in paragraph 36, after averring that the police tackled him, the Plaintiff pleads, “When the Plaintiff looked up, he could see a person witnessing the event from a window pane up above in an apartment, over the lawn area, wherein the Defendant officers assaulted him.” Another example is contained in paragraphs 13 and 14, in which a conversation between the plaintiff’s mother and a police officer in the Welland detachment is set out in detail, including reference to another agency. There is also mention of a conversation with a Captain Picton. Since Niagara Regional Police has no rank of captain, the reference to this conversation is confusing to boot.

[9] The defendant is entitled to plead relevant facts however unpleasant they may be. But a third feature of the statement of claim is a pattern of statements that are argumentative, scandalous or designed only to put the defendants in a bad light. In the table that is appended to my reasons, I use the word “scandalous” to describe any one of these defects. For example, in paragraph 41, “The role of the defendants is not, by law, nor via the Police act and governing legislation, to scare, harass, assault, beat, intimidate, violate, nor abuse the members of the community, most especially the persons within a vulnerable and weakened mental state category.” This is not a statement of fact. Nor does it add anything to the facts of the alleged assault which are pleaded elsewhere. It only adds what the case law calls “atmosphere.”

[10] Fourth, the statement of claim is often repetitive.

[11] Finally, the statement of claim often makes detailed legal argument that has no place in a pleading. As Rule 25.06 (2) says, a party may raise a point of law and may state a legal conclusion if the supporting facts are pleaded. The Plaintiff is entitled to rely on the Police Services Act, the Ontario Human Rights Code, the Mental Health Act and any other relevant legislation and to say so. He can mention specific provisions of the acts if he wishes and say which provisions were contravened. But he is not entitled to argue his case in pleadings. Otherwise discovery and trial could be diverted from the facts to the legal argument of the parties to the confusion, and at the cost of both parties.

[12] All of the impugned passages in the pleadings, except in my view paragraphs 35 and 37, breach one or more of the rules of pleading. If left to stand they would complicate discovery and trial beyond reason. I strike the paragraphs or portions of paragraphs set out in the appendix to this endorsement. In the appendix, next to each paragraph I set out which rule of pleading I think was breached. The remnant of the statement of claim constitutes a valid pleading, but the Plaintiff may want to amend it. I give him leave to do so within 30 days.

[13] As to costs, the Defendant as successful party is entitled to partial indemnity. I fix costs of the motion at $1,500 and order the Plaintiff to pay them upon disposition of the action.

J.A. Ramsay J.

Date: 2018-05-16

Appendix

Paragraph	Reason for striking
10-12	Irrelevant.
13-14	Plead evidence.
15-16	Irrelevant.
20	Pleads evidence.
22	Pleads evidence.
28	Scandalous.
29	Scandalous.
31	The portion following the second sentence of the paragraph is scandalous.
32	The second sentence is scandalous.
36	The final sentence pleads evidence.
38	Scandalous and unintelligible.
41	Scandalous.
44-45	Legal argument.
46	Repetitive.
468 (48?)	Legal argument.
49	Legal argument. Scandalous. Irrelevant.
50	Scandalous. Irrelevant.
51	Legal argument. Scandalous.
52	Legal argument and irrelevant, except for the last sentence.
53	Legal argument.
54	Irrelevant.
56	Scandalous and irrelevant.
57	Scandalous.
68	Scandalous.
69	Scandalous.