COURT FILE NO.: CV-18-0179-00 DATE: 2019-01-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLEM DINGEMANSE / MARYLIN DINGEMANSE Self-Represented, Plaintiffs Plaintiffs
- and -
HYDRO ONE NETWORKS INC. M. Caceres, for the Defendant Defendant
HEARD: October 4, 2018, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Motions
Overview:
[1] This is an action commenced by the Plaintiffs for significant damages arising from the disconnection of power to their property by the Defendant, Hydro One Networks Inc. The Plaintiffs allege that the Defendant improperly disconnected their power for a one month period commencing on or about August 8, 2017, at the behest of a disgruntled family member, and in doing so, contravened s. 422(1) of the Criminal Code of Canada and s. 31.1 of the Energy Act.
[2] The Defendant has defended the action, claiming that at all material times it acted pursuant to its statutory mandate, the Distribution System Code enacted by the Ontario Energy Board and its’ conditions of service contract with the Plaintiffs. Specifically, the Defendant pleads that there were safety issues arising from a downed overhead line that had been installed by the Plaintiffs, which they failed or refused to repair satisfactorily. This, the Defendant pleads, necessitated the disconnection of power to the property, which was not in contravention of any contract or legislation. The Defendant denies that the Criminal Code of Canada applies, and further denies the existence of the Energy Act.
[3] The Plaintiffs and the Defendant each have motions before the court. The motion of the Plaintiff is to “strike down Hydro One Network’s Statement of Defence reverse it to a Confession” [sic]. The grounds for the motion are as follows and are set out herein exactly as they appear in the Notice of Motion:
- “In Hydro One Networks INC did not address the claim.
- Did not give any material facts in the defence.
- Gave unnecessary frivolous statements.
- Hydro One based the defence on hearsay and innuendos without material facts.
- Admissions of guilt not a defence.
- Threating [sic] no matter what happens at trial, Hydro One is not going to pay for the damages.
- The Criminal Code does apply.
- No relevant information to the case.
- Hydro One Usurpation of the court’s authority by stating it is in the wrong court, Hydro One Networks states that the Dingemanse claim should be in small claims court.
- Hydro One Networks INC’s statement of defence is not a defence but a confession.”
[4] The Defendant has also brought a motion to strike the Plaintiffs’ claim in its entirety as disclosing no reasonable cause of action. The Defendant further seeks to strike the Reply. In the alternative, the Defendant seeks to strike out certain portions of the Statement of Claim and the Reply.
The Facts:
[5] The Plaintiffs live on a rural property from which they also run a business by the name of Candy Hill Farms Horse Hotel. The Defendant supplies electrical power to the property. The terms and conditions under which power is supplied by the Defendant and received by the Plaintiffs are set out in the Defendant’s Distribution Customers Conditions of Service, dated January 1, 2015 (the “Conditions of Service”).
[6] By virtue of the Distribution System Code enacted by the Ontario Energy Board, the Defendant’s Conditions of Service are incorporated into all of the Defendant’s contracts for the distribution and supply of electricity, including the contract as between the Defendant and the Plaintiffs.
[7] In the supply of electricity the Defendant is governed by the provisions of the Electricity Act, 1998, S.O. 1998, c.15 (“Electricity Act”) and the Ontario Energy Board Act, 1998, S.O. 1998, c.15, along with their respective regulations, codes and orders.
[8] On August 4, 2017, the Defendant received a call from an individual who reported a downed hydro wire at the Plaintiffs’ property. The Defendant pleads that it attended at the property and did in fact find a downed overhead line on the ground with wooden planks placed on the live line. The Defendant states that it also found other associated wires and equipment that were damaged. The line, wires and equipment were customer owned and installed equipment. As such, the Defendant states that pursuant to section 1.6C of the Conditions of Service, the responsibility for the repair fell on the Plaintiffs. The issue was discussed with the Plaintiff Marilyn Dingemanse, who agreed to repair the electrical service and to engage a qualified electrician to do so. The Defendant further pleads that the Plaintiffs were advised that if the repair was not completed then their hydro service would be immediately disconnected.
[9] The Defendant pleads that on August 8, 2017 it received yet another call of downed wires at the Plaintiffs’ property. The caller alleged that someone had already been “shocked” by the downed wires and that the wires presented a risk to the frequent visitors that attended at the property. As a result of the call the Defendant re-attended at the property and found that the line was still on the ground, still covered by wooden planks and the equipment had still not been repaired.
[10] Both calls were made by Jesse Dingemanse, the grandson of the Plaintiffs. The Plaintiffs claim that their grandson suffers from hallucinations, is a drug addict, is capable of murder and wanted to put them in an “old age home”. The Plaintiffs allege that Jesse Dingemanse has threatened to harm them in the past and their business, and that his actions in contacting the Defendant were malicious.
[11] After having re-attended at the property the second time, the Defendant contacted the Electrical Safety Authority (“ESA”) and were advised by the ESA to disconnect service. On August 8, 2017 the Defendant performed an emergency disconnection of power for safety reasons, and notified the Plaintiffs accordingly.
[12] The Plaintiffs plead that the disconnection was unlawful. Specifically, the Plaintiffs plead in paragraph 2 of the Statement of Claim that the disconnection contravenes s. 422(1) of the Criminal Code of Canada, which reads:
Every one who wilfully breaks a contract, knowing or having reasonable cause to believe that the probable consequences of doing so, whether alone or in combination with others, will be a) to endanger human life, b) to cause serious bodily injury, c) to expose valuable property, real or personal, to destruction or serious injury, d) to deprive the inhabitants of a city or place, or part thereof, wholly or to a great extent, of their supply of light, power, gas or water, or e) to delay or prevent the running of any locomotive engine, tender, freight or passenger train or car, on a railway that is a common carrier, is guilty of f) an indictable offence and liable to imprisonment for a term not exceeding five years, or g) an offence punishable on summary conviction.
[13] The Plaintiffs further plead that the Defendant breached s. 31.1 of the “Energy Act”. In all likelihood they are referring to s. 31.1 of the Electricity Act, which permits the shut off of electricity to a property without notice for safety reasons. The Plaintiffs plead that the Defendant breached s. 31.1(2) of said Act, which requires that written notice be provided as soon as possible after shut-off and the posting of a notice in a conspicuous location within 10 days after shut-off.
[14] The Plaintiff’s further plead:
a) In paragraph 4 of the Statement of Claim that the Defendant breached s. 442 of the Criminal Code and “voided the contract” based on a wild imaginative story as told by Jesse Dingemanse; b) In paragraph 6 of the Statement of Claim that by refusing to disclose what was said by Jesse Dingemanse the Defendant has breached the Freedom of Information Act and thereby prevented the Plaintiffs from ‘charging’ Jesse Dingemanse with mischief under the Criminal Code of Canada; c) The Defendant’s actions in shutting off the power caused considerable damage ranging from flooding in the home as a result of the sump pump not working, to loss of income from their business and ultimate demise of their business, to arthritis to the Plaintiff, Willem Dingemanse’s shoulder; and d) The Defendant’s actions have caused the Plaintiffs fear for their lives because they could not see properly on their property, put them at greater risk for thieves and vandals because of the loss of power to their surveillance cameras, and placed the Plaintiffs and their family members, along with the general public at risk of harm.
[15] The Plaintiffs issued their Statement of Claim under the simplified procedure on April 24, 2018. While not specified in the Statement of Claim itself, it later became evident when the Plaintiffs attempted to obtain default judgment as against the Defendant that the damages sought were in excess of $150 million.
[16] On or about June 12, 2018 the Defendant delivered a Statement of Defence. On June 22, 2018 the Statement of Defence was amended. The Defendant denies the Plaintiff’s allegations and as indicated above, pleads that its actions were lawful and consistent with the Conditions of Service. The Defendant pleads various sections of the Conditions of Service, including but not limited to section 1.9, which provides as follows:
1.9 Liability
Hydro One shall be liable to a Customer and a Customer shall be liable to Hydro One only for any damages that arise directly out of the wilful misconduct or negligence of:
(i) Hydro One in providing Distribution Services to the Customer; (ii) the Customer in being connected to the distribution System; or (iii) Hydro One or the Customer in meeting their respective obligations or exercising their respective rights under these conditions of Service, their licences and any other Applicable Laws.
Notwithstanding the above, neither Hydro One nor the Customer shall be liable under any circumstances whatsoever for any loss of profits or revenues, business interruption losses, loss of contract or loss of goodwill, or for any indirect, consequential, incidental or special damages, including but not limited to punitive or exemplary damages, whether any of the said liability, loss or damages arise in contract, tort or otherwise.
[17] The Defendant further pleads that its actions were not contrary to s. 31.1 of the Electricity Act as it did not perform a disconnection without notice so as to trigger the requirements therein. With respect to damages, in addition to section 1.9 of the Conditions of Service the Defendant pleads the standard statements of the damages claimed being excessive, exaggerated, remote and that the Plaintiffs failed to mitigate.
The Law:
[18] The Plaintiffs have not cited the Rule upon which they rely in their motion to strike the Amended Statement of Defence. The Defendant relies primarily upon Rule 21.01(1)(b) of the Rules of Civil Procedure with respect to its motion.
[19] Rule 21.01(1)(b) of the Rules of Civil Procedure gives the court the ability to strike a pleading if it discloses no reasonable cause of action or defence. Since the only issue on such a motion is the sufficiency of the pleading that is being attacked, no evidence is admissible on a motion to strike; the pleading must stand or fall on its own. See Rule 21.01(2)(b) and NAN Corporate Services v. Kocsis, 2015 ONSC 6651, para. 13.
[20] The legal test to strike a pleading as disclosing no reasonable cause of action under Rule 21.01(1)(b) is as follows:
(a) The allegations of fact pleaded must be accepted as true; (b) The moving party must show that it is plain and obvious and beyond doubt that the plaintiff could not succeed if the matter were to proceed to trial; (c) The plaintiff must plead the necessary legal elements of a recognized cause of action as any omission or an element may render the pleading in error, indicate that the plaintiff cannot succeed; (d) The claim should not be struck merely because it is novel; (e) The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
See Williams v. Canada, 2009 ONCA 378, [2009] OJ No. 1819, paras. 10-11; and Brown v. Bell Canada Enterprises, 2015 ONSC 873, 2015 CarswellOnt 2247, paras. 6-7.
[21] Rule 25 of the Rules of Civil Procedure also governs pleadings and the striking of pleadings. Specifically, Rule 25.11 gives the court jurisdiction to strike all or part of a pleading, either with or without leave to amend, if the pleading:
(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.
Analysis:
The Plaintiffs’ Motion to Strike the Defence:
[22] Whether the Plaintiffs’ motion to strike the defence is pursuant to Rule 21.01(1)(b) or Rule 25.11 of the Rules of Civil Procedure it must fail. The Statement of Defence and Amended Statement of Defence comply with the rules of pleadings and disclose material facts in support of a reasonable defence to the Plaintiffs’ claims. The basis for the defence is that the Defendant acted lawfully in accordance with applicable legislation and the contract between the parties and is therefore not liable for any damages arising from the disconnection.
[23] The focus of the Plaintiffs in this motion appeared to be an argument of the case on the merits. The argument of the Plaintiffs was in some respects akin to a summary judgment claim. The Plaintiffs argued that the Defendant had admitted to the disconnection, which was in essence a confession that rendered it liable for their damages. The matter is not so simple given the facts as revealed by the pleadings and the provisions of the Conditions of Service. The Plaintiffs on the argument of this motion also made an emotional plea for the court to consider the damages suffered by them as a result of the disconnection and asked the court to rely on an Affidavit of Documents containing their “proof” of their claims. Again, this is not the focus of a motion to strike a pleading and such evidence is not admissible.
[24] The other concern expressed by the Plaintiffs on this motion was that the Defendant had not put forward in its defence sufficient evidence to support the defence. Rule 25.06(1) of the Rules of Civil Procedure provides that a pleading shall contain a concise statement of the material facts upon which a party relies for the claim or defence, but not the evidence by which those facts are proved. As such, the Plaintiffs’ reliance on the lack of evidence in the Defendant’s pleadings as a ground to strike fails to consider the rules of pleading. The Plaintiffs’ motion is dismissed.
The Defendant’s Motion to Strike the Plaintiffs’ Pleading:
[25] The Plaintiffs’ pleadings are extremely problematic as currently drafted. These pleadings cannot be repaired by merely deleting certain offending lines or paragraphs. There are far too many issues with them for this type of solution. The Statement of Claim and the Reply must be struck in their entirety.
[26] The Plaintiffs’ claim as currently drafted relies largely upon allegations of breaches of statutes as the basis for their claims. It discloses no reasonable cause of action. Specifically, the Plaintiffs allege breaches of the Criminal Code. An alleged breach of the Criminal Code is not a recognized cause of action in of itself. An alleged breach of s. 422 of the Criminal Code attracts criminal and not civil consequences. The Defendant states that the remedy for a breach under s. 31.1 of the Electricity Act is a proceeding before the Energy Board.
[27] Additionally, the Supreme Court of Canada has specifically stated that the court is adverse to the recognition of a nominate tort of statutory breach. While proof of statutory breach may be evidence of negligence, the breach itself, without any claim in negligence or something more cannot form the basis for a cause of action. See The Queen (Can.) v. Saskatchewan Wheat Pool at pp. 13-14.
[28] In striking the Plaintiffs’ pleadings I am also mindful of the purpose of pleadings. The purpose of a pleading 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.
See Somerleigh v. Lakehead Region Conservation Authority 2005, CarswellOnt 2546 at para. 5.
[29] Unfortunately the Plaintiffs’ Statement of Claim and Reply do not satisfy these goals. While one may be able to infer from the reference to s. 422(1) and statements made in paragraph 4 of the Statement of Claim that the Plaintiffs are alleging breach of contract, this issue is not clearly defined in the pleading and is not clearly plead. I am also mindful of the relevant provisions of the Conditions of Service plead by the Defendant, and in particular section 1.9. The Plaintiffs have not plead negligence or misconduct and it is unclear from the pleadings as to the particulars of the breach of contract. The Statement of Claim is also replete with irrelevancies pertaining to Jesse Dingemanse, and inflammatory statements about damages that are speculative at best. The true issues are obscured.
[30] With respect to the Reply, the document is not completed properly with the Plaintiffs not indicating which of the allegations are admitted, which are denied and which they have no knowledge of. The balance is largely unresponsive to allegations contained in the Statement of Defence and again, seems largely focused on an alleged lack of evidence within the defence to support it.
[31] In light of the foregoing the Statement of Claim and the Reply are struck, in their entirety. However, I am mindful of the fact that the Plaintiffs are self-represented and rules surrounding pleadings, issues of breach of contract and negligence are not likely familiar concepts. Leave is granted to the Plaintiffs to serve and file a new, Amended Statement of Claim within 45 days of the release of this decision. I strongly encourage the Plaintiffs to obtain legal advice with respect to their claims to ensure that their new pleading (if they choose to deliver one) complies with the legal principles set out in this decision pertaining to pleadings. This may assist the Plaintiffs in avoiding being faced with yet another motion to strike.
[32] I will accept written submissions as to costs, of no more than five pages in length, double spaced, together with a Bill of Costs or Summary of Costs. The Defendant must file such submissions within 21 days of the release of this ruling, failing which costs will be deemed to have been resolved. The Plaintiffs will have 14 days thereafter to respond.
The Hon. Madam Justice T. J. Nieckarz
Released: January 04, 2019
COURT FILE NO.: CV-18-0179-00 DATE: 2019-01-04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: WILLEM DINGEMANSE / MARYLIN DINGEMANSE Plaintiffs - and - HYDRO ONE NETWORKS INC. Defendant DECISION ON MOTIONS Nieckarz J. Released: January 04, 2019 /sab