Court File and Parties

COURT FILE NO.: CV-18-591796 MOTION HEARD: 20181129 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amnon Allan Medad, Plaintiff AND: Kyung-Ja Ahn Steinberg also known as Anne Steinberg, Defendant

BEFORE: Master P.T. Sugunasiri

COUNSEL: Poon, N., Counsel for the Defendant/Plaintiff by Counterclaim, Moving Party Colangelo, A., Counsel for the Plaintiff/ Defendant by Counterclaim

HEARD: November 29, 2018

Reasons for Decision

Overview

[1] The Defendant brings a motion to strike parts of the Plaintiff’s Reply and Defence to Counterclaim (“Reply and Defence to CC”). Medad is suing Steinberg pursuant to a cohabitation agreement alleged to have been entered into as they fused their lives together. It appears Medad is also alleging “wrongful conduct” towards him that has caused him harm.

[2] The Court dissuades procedural motions such as this unless the clean-up of the pleadings promotes a cost effective, efficient and just resolution of the case. There is rarely a perfect pleading that complies fully with Rule 25. In the present case, I agree that some parts of the Reply and Defence to CC are prejudicial. The other impugned paragraphs contain technical violations that are immaterial to the advancement of the litigation.

[3] Law and Analysis:

[4] The rules of pleadings are set out in Rule 25 of the Rules of Civil Procedure (“Rules”). Pleadings in an action can include a statement of claim, statement of defence, counterclaim and reply. Rule 25.06 applies to all pleadings. Rule 25.07 governs defences. Rule 25.08 refers to replies. Rule 25.11 gives the court discretion to strike pleadings if they are frivolous, vexatious or an abuse of process. All of these sub-rules apply to the issue to be resolved in the within motion, namely if portions of Medad’s Reply and Defence to CC ought to be struck. I set out the relevant portions of the rules below:

Material Facts

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.

Pleading Law

(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.

25.07 (1) In a defence, a party shall admit every allegation of fact in the opposite party's pleading that the party does not dispute.

Denials in a Defence

(2) Subject to subrule (6), all allegations of fact that are not denied in a party's defence shall be deemed to be admitted unless the party pleads having no knowledge in respect of the fact.

Different Version of Facts

(3) Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead the party's own version of the facts in the defence.

25.08 (1) A party who intends to prove a version of the facts different from that pleaded in the opposite party's defence shall deliver a reply setting out the different version, unless it has already been pleaded in the claim.

Affirmative Reply

(2) A party who intends to reply in response to a defence on any matter that might, if not specifically pleaded, take the opposite party by surprise or raise an issue that has not been raised by a previous pleading shall deliver a reply setting out that matter, subject to subrule 25.06 (5) (inconsistent claims or new claims).

Reply Only Where Required

(3) A party shall not deliver a reply except where required to do so by subrule (1) or (2).

Deemed Denial of Allegations Where No Reply

(4) A party who does not deliver a reply within the prescribed time shall be deemed to deny the allegations of fact made in the defence of the opposite party.

Pleadings is scandalous, frivolous or vexatious

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(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.

[5] In addition to the application of these rules in determining the propriety of pleadings, a court should be mindful of the following general principles:

a. Pleadings that are irrelevant, argumentative or inserted for colour, or that constitute bare unfounded allegations should be struck out as scandalous; [1] b. A material fact is a fact that is necessary for a complete cause of action and a fact that can have an effect on the determination of a party’s rights; [2] c. A pleading that raises an issue that can have no effect upon the outcome of the action is embarrassing and may be struck out; [3] d. A pleading should not describe the evidence that will prove a material fact. What this prohibition is designed to do is restrain the pleading of facts that are subordinate and that merely tend to prove the truth of the substantial facts in issue; [4] e. The distinction between material facts, particulars, and evidence is not a "bright line". There will be situations where the minimum level of fact disclosure may require a pleading of material facts that might also be regarded as evidence. [5] f. A pleading cannot be scandalous if it is relevant; [6] g. A defendant is entitled to plead whatever material facts it chooses in response to the plaintiff’s allegations, provided the facts alleged by the defence are relevant and at least of marginal probative value that is not outweighed by their prejudicial effect. It is not for the court the prune the case at the pleadings stage and limit allegations to what the court considers is a reasonable defence; [7] h. While pleadings must not offend the Rules, it is well established that counsel may frame their pleadings as they deem advisable and this right should not be lightly infringed by the court. The inclusion of unnecessary detail or excessive verbosity in a pleading is not of itself a reason for striking out a pleading. It is incumbent upon the party seeking to strike out pleadings to show that he or she is prejudiced or embarrassed by the pleading or that a fair trial will be delayed by the irregularity; [8] and i. If a part of a pleading is struck out because it is pleading evidence, then that would not preclude the admissibility of the evidence as proof of the plaintiff’s cause of action. [9] I would add that such admissibility is subject to any privileges or other evidentiary exclusions that the trier of fact applies. I would also add that striking a pleadings as evidence does not preclude an exploration of that evidence at discovery.

The Impugned Paragraphs of the Reply and Defence:

Paragraph 6 is Not Struck

[6] Paragraph 6 reads as follows and I have underlined the portions that are in issue:

In response to paragraphs 11-13, Medad repeats and relies on the statements made in the statement of claim and states that it was Steinberg who approached him with a view to listing the property because she had a friend who had expertise in selling rural property. Steinberg specifically told Medad that she would apply her share of the commissions to their joint travel account. In fact, although Steinberg received a commission on the sale, she was not involved in the sale because during that time that the property was on the market, she was in Mexico with Medad. It was Medad who ultimately directed Ray Sutton and Steinberg to the ultimate purchaser of the property.

[7] This paragraph relates to the issue raised by Medad in paragraph 11 of the Statement of Claim (“Claim”) and Steinberg’s defence to that claim as pleaded in paragraphs 11-13 of the Statement of Defence and Counterclaim (“Defence and CC”). These paragraphs relate to the sale of Medad’s farm in October of 2016. The issue is the allocation of Steinberg’s 1% commission from that sale. Medad claims that the commission was to be allocated to the couple’s future travel budget. Steinberg claims the entire amount should be hers.

[8] Based on my review of the pleadings in their entirety, there may be one or two sentences in this paragraph that are evidence. However, it is not this court’s function or preference to forensically excise every part of a pleading that may offend a rule just for the sake of it. The evidence pleaded in this paragraph of what Steinberg told Medad, is harmless.

[9] The balance of the paragraph addresses an issue of entitlement to the commission as implicitly raised by Steinberg at paragraph 13 of her Defence and CC when she states “As a result of the services provided by Anne to the Plaintiff pursuant to the listing agreement, including marketing efforts and out-of-pocket expenses, the Caledon Property was sold…” Medad is entitled to respond her allegation of entitlement and does so by saying that she was out of the country when the sale occurred.

Paragraph 7 is Not Struck

[10] Paragraph 7 reads as follows and I have underlined the portions that are in issue:

In response to paragraphs 14-19, Medad repeats once again the statements made by him regarding the John Street property in the Statement of Claim. Medad states again that the down payment was to be made by Steinberg because she was in fact the purchaser of the property. At all times she acted as the realtor and collected commissions on the purchase of the property. In fact Steinberg in the September Agreement specifically agreed that John Street was hers and that from the date of the agreement onwards she would be fully responsible for the John Street property. He denies specifically Steinberg’s allegations in paragraph 17…

[11] Steinberg argues that this paragraph repeats what is in the Claim and pleads irrelevant information like the fact the Steinberg was the realtor. I agree that this paragraph may repeat some aspects of the Claim but again, there is no need to forensically excise parts of this paragraph unless leaving it intact causes some material prejudice to the defendant or trial fairness. While I agree that the purpose of a Reply is not to simply have the last word on an issue that a plaintiff has already pleaded, it is in my view an even more wasteful exercise to hand a scalpel to the court to remove minor excesses. I am also not prepared to conclude at this early juncture that any part of paragraph 7 is irrelevant.

[12] I further note that Steinberg’s counterclaim incorporates the statements made in her defence. As such, Medad is not restricted to reply rules to respond to her. In any event, even if he were so restricted, the goal of promoting the proportional, cost effective and expeditious resolution of cases on their merits affords litigants leeway for imperfect pleadings unless there is a need to interfere with them.

Paragraph 8 is Not Struck

[13] Paragraph 8 reads as follows and I have underlined the portions that are in issue:

In response to paragraphs 20 to 24 of Steinberg’s defence and counterclaim, Medad states that there is no merit to the allegation that either Medad was controlling and/or that Medad assaulted Steinberg. In fact, during these trips, Steinberg’s mental affliction became more noticeable. It was Medad who in front of witnesses was physically assaulted by Steinberg, It was Steinberg who as a result of her episodic outburst of anger and paranoia decided to leave Italy and later return again.

[14] Steinberg complains that this paragraph is repetitive, contains evidence and is highly prejudicial. In my view, it is no more prejudicial than Steinberg’s own allegations of what happened on the Italy trip. Medad’s only plea about Italy was that “shortly after and while on a trip to Italy, Anne commenced exhibiting behaviour which greatly concerned Allan. On the return to Canada, Allan insisted that Anne and he attend therapy together, partially as a strategy to have Anne address psychological issues which were beginning to worry Allan greatly and raised concerns about Anne’s mental well-being.”

[15] Steinberg does not complain about the relevance of this paragraph or its wording. Instead, she responds to it by alleging that Medad controlled her and physically assaulted her twice, in Italy. Having made such serious allegations, Medad is entitled to respond to it. I do not find the language in this paragraph anymore prejudicial nor colourful than any other of the Italy allegations launched by both sides.

[16] With respect to this paragraph containing evidence, I rely on my previous comments in paragraph 8 of these reasons.

Impugned Parts of Paragraph 9 are Struck

[17] Paragraph 9 reads as follows and I have underlined the portions that are in issue:

Specifically in response to paragraph 24, Medad states that he is prepared to seek the couple’s therapist’s notes if Steinberg is similarly inclined. The counselling was sought on account of Steinberg’s irrational and obsessive behaviour. Further at no time did Medad restrict Steinberg’s spending or Steinberg’s use of her credit cards.

[18] In my view, this paragraph is an unnecessary repetition and particularizing of Medad’s response to paragraph 24. It is colour that goes beyond the shade first introduced by Steinberg and is unduly prejudicial. I strike the impugned portion. The new paragraph should read:

Specifically in response to paragraph 24, Medad states that at no time did Medad restrict Steinberg’s spending or Steinberg’s use of her credit cards.

Paragraph 10 is Struck in Part

[19] Paragraph 10 reads as follows and I have underlined the portions that are in issue:

In response to paragraph 25 to 37, Medad repeats and relies on the statements made by him in the statement of claim regarding the various oral and written agreements, described in the statement of claim made between him and Steinberg. Medad states further that Steinberg is a sophisticated individual, involved in the real estate field for many years as a purchaser, flipper and contractor and as a duly licenced real estate agent, and understands the significance of both oral and written agreements and understands the nature and consequence of the making and entering of agreements, both oral and written. It is disingenuous to suggest that as a real estate agent and as an experience business person, Steinberg failed to understand the nature or import of the agreements she made with Medad, or that the agreements were not to be relied on.

[20] Steinberg argues that this paragraph consists of legal argument. I agree and strike the underlined portion but for the sentence “Medad states further that Steinberg is a sophisticated individual, involved in the real estate field for many years as a purchaser, flipper and contractor and as a duly licenced real estate agent.” This portion responds to Steinberg’s plea of non est factum and is proper.

Impugned Part of Paragraph 11 is Struck

[21] Paragraph 11 reads as follows and I have underlined the portions that are in issue:

Medad agrees that the cohabitation agreement described in paragraph 29 of the Steinberg’s defence and counterclaim was never executed by the parties but states that Steinberg and Medad reviewed its terms as it was being drafted, and in any event, the draft cohabitation agreement is further evidence of Medad’s and Steinberg’s intention to continue cohabitating and more fully define their living arrangements. The draft cohabitation agreement is also consistent with the agreements previously made by Medad and Steinberg and incorporates the terms of the September Agreement.

[22] The impugned parts of this paragraph is legal argument about the proper interpretation and/or construction to be given to the “September Agreement” and its impact. It is struck.

Impugned Part of Paragraph 12 is Struck

[23] Paragraph 12 reads as follows and I have underlined the portions that are in issue:

Medad further states in response to paragraph 30 of Steinberg’s defence and counterclaim that he in fact provided funds to Steinberg for the mortgage payments on the Fraser property, a fact further confirmed by the September Agreement.

[24] This statement is offered as evidence of the plea that Medad provided funds to Steinberg for mortgage payments. It is innocuous but should be struck only because it easily excisable.

Paragraph 13 is Struck in Part

[25] Paragraph 13 reads as follows and I have underlined the portions that are in issue:

In respect of the statements in paragraphs 38 to 49 of Steinberg’s defence and counterclaim regarding the November events, Medad states that it was he who had decided to leave the Fraser property as a result of Steinberg’s taunts, explosions and worsening psychotic events and that Steinberg enticed and asked Medad to return to the Fraser property. He states further that on November 11, 2017, he called 911 (and not Steinberg) because Steinberg was going through a psychotic episode and he was afraid for her safety and his. When the police attended, to appease her and to calm her down from the psychotic rage, he volunteered to leave the home for the night. Medad was not asked to leave the home and puts Steinberg to the strictest proof thereof. He states further that when he returned home to the Fraser property he did so knowing that Fraser was also his home.

[26] Steinberg argues that some of the impugned parts of this paragraph are repetitive while others are highly prejudicial. Medad argues that he has put Steinberg’s mental health into issue and that these are further material facts in this regard. Having reviewed paragraphs 38 to 49 of Steinberg’s Defence and CC, I agree that some portions of Medad’s Reply and CC should be struck as scandalous because they add unnecessary colour. While I allowed Medad some leeway in earlier paragraphs to respond to colourful allegations made against him, these further paragraphs are prejudicial and diminish the dignity of the pleadings. The details of this incident will no doubt be canvassed at discovery.

[27] The new paragraph should read:

In respect of the statements in paragraphs 38 to 49 of Steinberg’s defence and counterclaim regarding the November events, Medad states that it was he who had decided to leave the Fraser property and that Steinberg enticed and asked Medad to return to the Fraser property. He states further that on November 11, 2017, he called 911 (and not Steinberg) because he was afraid for her safety and his. When the police attended, he volunteered to leave the home for the night. Medad was not asked to leave the home and puts Steinberg to the strictest proof thereof. He states further that when he returned home to the Fraser property he did so knowing that Fraser was also his home.

Impugned Part of Paragraph 14 ii is Struck

[28] Paragraph 14ii of the Reply to Defence and CC reads as follows and I have underlined the portions that are in issue:

In response to the counterclaim Medad states that he repeats and relies on the statements made by him in the statement of claim and in his defence to the counterclaim and denies all allegations made by Steinberg unless specifically admitted. He states further that:

ii. That Steinberg does not have any right to the John Street Property on the basis of alleged funds loaned to him. He states that prior to and during the commencement of litigation, he invited Steinberg directly and through her counsel to take over the John Street property on the payment to him of the $600,000 that he had advanced to Steinberg and that Steinberg refused and the Medad gave her notice of his intention to sell John Street with a view to recovering his funds;

[29] According to Medad, this plea is simply his version of the facts with respect to ownership of this property. I agree with Steinberg however that it veers closer to evidence of the assertion that Steinberg did not have any right to the John Street property. The issue of whether or not it is prejudicial and worthy of this motion is a matter of costs. Since some changes are already being made to the Reply and CC, I strike this portion of it.

Paragraph 14 iii is Struck in Part

[30] Paragraph 14iii of the Reply to Defence and CC reads as follows and I have underlined the portions that are in issue:

Alternatively, he further denies the allegations in paragraph 11 of the counterclaim but states further that the allegations in paragraph 11 are deficient, contrary to the rules of pleading, by neglecting to provide particulars of the allegations ‘of the intentions of the parties that the outstanding loan amounts advanced by Anne would be secured against the John Street Property’, and more important inconsistent with her statements in other parts of her pleadings that the parties never entered into any agreements oral or otherwise which would be binding,

[31] Medad submits that he is able to plead law pursuant to rule 25.06(2). He also relies on rule 25.06(8) which requires a higher level of pleading when alleging intent. I agree. Paragraph 11 of Steinberg’s counterclaim alleges that “it was the intention of the parties that the outstanding loan amounts advanced by Anne would be secured against the John Street Property.” Medad is entitled to plead that this paragraph lacks the particularity required by Rule 25.06(8).

[32] The last statement of the impugned paragraph is clear legal argument as opposed to a plea of law, and is struck. Again, I do so not because it is necessarily prejudicial but because the pleading needs to be amended in any event so further amendment here will not be unduly onerous.

[33] The new paragraph should read:

[34] Alternatively, he further denies the allegations in paragraph 11 of the counterclaim but states further that the allegations in paragraph 11 are deficient, contrary to the rules of pleading, by neglecting to provide particulars of the allegations ‘of the intentions of the parties that the outstanding loan amounts advanced by Anne would be secured against the John Street Property’.

Conclusion:

[35] For the foregoing reasons, I strike all of the impugned parts of paragraphs 9, 11, 12 and 14ii of the Reply and Defence to CC with no leave to amend. I also strike parts of paragraphs 10, 13 and 14iii with no leave to amend.

Costs:

[36] The parties made costs submissions and provided me with their outlines. In my view, the only paragraphs remotely prejudicial to Steinberg were the portions of paragraphs 9 and 13 that were struck. Those delved into unnecessary details and characterizations of her mental health.

[37] Issues of pleading evidence, pleading law and being repetitive in reply only matter to the proceeding if doing those things encumber the efficient and fair resolution of the case. In my view, even though I did strike some paragraphs for violating rules of pleading, my decision will have little or no impact on the just resolution of this case. I take this into consideration in deciding costs.

[38] Steinberg also made an offer to settle the motion. Notably, she hit the mark with respect to paragraphs 9 and was close with respect to paragraph 13. In my view Medad should have conceded the point with respect to these paragraphs. Overall, the offer to settle fared the same or better than my decision for 50% of the impugned paragraphs.

[39] Steinberg seeks $4100 in partial indemnity costs. Medad seeks half that amount. Discounting time wasted on immaterial issues and considering the factors in Rule 57.01, I award costs to Steinberg in the all-inclusive amount of $2000 payable within 30 days of today’s date.

Original signed Master P. Tamara Sugunasiri Date: March 4, 2019