COURT FILE NO.: CV-18-0179-00
DATE: 2019-08-28
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: May 28, 2019, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Motions
Overview:
[1] In April of 2018 the Plaintiffs commenced an action for $150 million in alleged damages arising from the disconnection of power to their property by the Defendant, Hydro One Networks Inc. The Plaintiffs alleged that the Defendant improperly disconnected their power for a one-month period at the behest of a disgruntled family member, and in doing so, contravened both the Criminal Code of Canada and the Energy Act.
[2] The Defendant defended the action, claiming that it acted appropriately, in accordance with statute and contract. Specifically, the Defendant plead there were safety issues on the property that necessitated the disconnection of power, which was not in contravention of any contract or legislation. The Defendant denied that the Criminal Code of Canada applied, and further denied the existence of the Energy Act.
[3] The Plaintiffs and the Defendant each brought motions that I heard October 4, 2018. A decision was released on the motions on January 4, 2019 [2019 ONSC 103] that sets out the facts and issues in detail. The net result of that decision was that the Statement of Claim and Reply of the Plaintiffs were struck. In short, I found that the Plaintiffs’ pleadings disclosed no cause of action, did not define the issues, was replete with irrelevancies, and contained inflammatory statements about damages that are speculative at best.
[4] Being mindful of the fact that the Plaintiffs are self-represented and that the rules surrounding pleadings, as well as the substantive issues in the litigation are unfamiliar to them, I granted leave to the Plaintiffs to issue and serve a new, Amended Statement of Claim within 45 days of the release of my decision.
[5] The Plaintiffs were unable to issue and serve their new pleading within 45 days, not for lack of trying on their part, but largely because the order with respect to the previous motions had yet to be settled. While the Plaintiffs’ motion is not clear as to the exact relief sought, it would appear that they seek the following:
a. An order extending the time for issuing and serving the Amended Statement of Claim to correct the irregularity with the amended pleading having been issued and served beyond the timelines provided for in my previous order; and
b. An order granting leave to have the Amended Amended Statement of Claim issued.
[6] The Defendant does not oppose the extension request, but rather opposes the granting of leave to serve and/or file their amended pleadings based on non-compliance with Rules 25 and 26 of the Rules of Civil Procedure. In the event that leave is granted the Defendant has brought a cross-motion seeking to strike the Amended Statement of Claim in its entirety, as well as the Amended Amended Statement of Claim, if issued. In the further alternative, the Defendant seeks to strike various portions of the amended pleading. The Defendant further seeks payment of an outstanding costs order from the last motions, along with any costs order from these motions prior to granting the Plaintiffs’ relief.
[7] For the reasons that follow I find that it is appropriate to extend the time for the issuing and serving of the Amending Statement of Claim to correct the irregularity with respect to the timing of issuing and filing of the pleading. Having said this, the Amended Statement of Claim must be struck in its entirety. The Amended Statement of Claim is replete with the same problems that infected the Statement of Claim and caused that pleading to be struck. So too is the Amended Amended Statement of Claim. The Amended Amended Statement of Claim should not issue as currently drafted. Leave to have the Amended Amended Statement of Claim issued is denied.
Issues and Analysis:
- The Plaintiffs’ motion to file their pleading:
[8] Pursuant to my previous order, leave was granted for the Plaintiffs to have issued, and to serve a new pleading. The deadline for doing so was February 19, 2019.
[9] The Plaintiffs’ evidence is that they endeavoured to have their Amended Statement of Claim issued on January 25, 2019.
[10] The pleading was rejected by the Registrar’s office on the basis that the order providing for the filing of the document had not yet been issued. Suffice it to say that a disagreement arose as between the parties with respect to the issuing of the order, which further delayed matters.
[11] It does not appear that in the intervening period of time the Plaintiffs gave the Defendant notice of their intention to issue and serve an amended pleading.
[12] The Plaintiffs finally served their Amended Statement of Claim on March 4, 2019. They subsequently served an Amended Amended Statement of Claim on April 9, 2019, that had not been issued, along with this motion for an extension of time.
[13] The Plaintiffs take the position that they attempted to comply with my previous order but were unable to do so because of the issues pertaining to settling the order.
[14] The Defendant states that at no time did the Plaintiffs advise them of their intention or attempt to issue an amending pleading. The Defendant assumed that the Plaintiffs had chosen not to proceed with the action and treated it as at an end.
[15] Leave had previously been granted to the Plaintiffs to amend their previously struck Statement of Claim. The only real issue is whether the irregularity with respect to their timing of doing so should be granted. I am satisfied that the Plaintiffs did not simply ignore the timelines provided for in my previous order, and that they attempted to issue their amended pleading well within the timelines provided for in that order. There is no evidence of any prejudice to the Defendant as a result of the brief delay.
[16] Leave is hereby granted to the Plaintiffs to extend the time to have the Amended Statement of Claim issued and served to March 6, 2019 to correct the irregularity with respect to late compliance with my previous order. For the reasons that follow, leave is denied to have the Amended Amended Statement of Claim issued.
- The Defendant’s motion:
[17] The Defendant seeks to strike the Amended Statement of Claim. It takes the position that leave should not be granted to permit the Plaintiffs to further amend their pleading in the form of the Amended Amended Statement of Claim that has been filed by the Plaintiffs. Alternatively, the Amended Amended Statement of Claim should be struck. It alleges that:
a. The amending pleadings are largely incomprehensible and confusing, containing throughout:
i. Evidence, including the contents of letters and conversations that are not material to any pleaded cause of action;
ii. Scandalous and inflammatory statements designed to embarrass the Defendant;
iii. Opinions of the Plaintiffs, lawyers and others as to the merits of their claim; and
iv. Irrelevant information,
all of which violate the established rules of pleading.
b. The Plaintiffs continue to assert breaches of statutes, such as the Criminal Code as their cause of action. They also plead and rely upon statutory provisions that are not in fact provisions within the statutes, were not in force at the relevant times, do not apply to the Defendant, or are unsupported interpretations of those statutes.
c. The Plaintiffs’ pleadings are frivolous, vexatious or an abuse of process of the court as they continue to plead causes of action that were previously struck.
d. The Amended Statement of Claim makes it difficult for the Defendant to know the case it must meet and to prepare a Statement of Defence.
[18] The Plaintiffs’ position at the motion focused largely on the merits of their claim as opposed to the appropriateness of the pleading.
[19] Once again, I must conclude that the Plaintiffs’ pleadings are extremely problematic as currently drafted. Complicating matters is the fact that the Plaintiffs seek to issue an Amended Amended Statement of Claim. That document does not indicate where the amendments have been made. As with the Amended Statement of Claim, the entire document is underlined, rather than simply underlining the amendments made as required by Rule 26.03(3) of the Rules of Civil Procedure. The Amended Amended Statement of Claim is not identical to the Amended pleading but appears to be substantially similar.
[20] These pleadings cannot be repaired by merely deleting certain offending lines or paragraphs. I have considered this type of solution. The difficulty is that there are far too many issues with the pleadings for this type of solution. If only offending portions of the Amended Statement of Claim, and the Amended Amended Statement of Claim are struck, this will make for an extremely confusing pleading. Not only do entire pages of text and entire paragraphs need to be struck, portions of paragraphs also need to be struck such that potentially one sentence or the part of a sentence of an entire paragraph is all that stands. The text that remains will make for a confusing pleading at best.
[21] I agree with the Defendant’s assessment of the Plaintiffs’ amended pleadings. The document is difficult to follow, pleads evidence as opposed to material facts, relies largely upon allegations of breaches of statutes without having established any independent cause of action, contains irrelevancies and contains numerous scandalous and inflammatory statements, many of which are based on hearsay.
[22] A party may amend a pleading with leave of the court. The court will not conduct a detailed examination of the merits of the amendment, but the amendment must comply with the established rules of pleading and must be legally tenable: Rules of Civil Procedure, Rule 26.02(c) and Plante v. Industrial Alliance Life Insurance Co., 2003 64295 (ON SC), [2003] O.J. No. 3034 (ONSC) at para. 19.
[23] Every 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: Rules of Civil Procedure, Rule 25.06(1).
[24] A party may not plead irrelevant, immaterial or argumentative facts. Any allegations that are inserted into the pleading that are simply for colour, and are not relevant to any matters in issue, fall under the category of “scandalous” and will not be permitted. Opinions of the parties or counsel are irrelevant and may be deemed to be scandalous, frivolous or vexatious: Cerqueira v. Ontario, 2010 ONSC 3954 at para. 11(d); Pineau v. Ontario Lottery & Gaming Corp., 2011 ONSC 5822 at para. 57; Pinder v. Sproule, 2003 ABQB 33 at para. 27; and Fockler v. Elsen, 2012 ONSC 5435 at para. 38.
[25] As I noted in my previous decision, 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.
[26] Leave will not be granted to amend a pleading, if the amendments violate these rules of pleading. Similarly, a pleading will be struck for violation of these rules: Rules of Civil Procedure, Rule 21.01(1)(b) re striking a pleading.
[27] Rule 25 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.
[28] The Plaintiffs’ Amended Statement of Claim and Amended Amended Statement of Claim do not satisfy the rules of pleading.
[29] As I pointed out in my previous decision, the relevant provisions of the Hydro One Networks Inc. Conditions of Service, and in particular section 1.9, provides for liability by Hydro One to a customer in the event of negligence or willful misconduct in providing distribution services to the customer. The Plaintiffs now assert negligence in this pleading, and breach of contract with respect to the Conditions of Service, but the basis for these claims and the important facts upon which they are based are still not clearly plead.
[30] By way of example, the specific provisions of the Conditions of Service that are alleged to have been breached are not clearly plead and are lost in numerous irrelevancies, inflammatory statements, hearsay statements, and misinterpretation of statutes. The crux of the claim appears to be that the Defendant acted negligently in the disconnection of power to the Plaintiffs, and in breach of the Conditions of Service. The difficulty is that the Plaintiffs have adopted a ‘kitchen sink’ approach of throwing into the pleading every possible complaint they feel is important, along with argument, such that the true legal issues and basis for their claims is negligence and breach of contract are lost.
[31] A further example of this is the Plaintiffs’ insistence on pleading a violation of the Criminal Code. Commencing at paragraph 34 of the pleading the Plaintiffs allege that the Defendant committed an illegal act, punishable under s. 422(1) of the Criminal Code by improperly disconnecting their power. This section of the Criminal Code makes it a criminal offence to willfully breach a contract, knowing or having reasonable cause to know that the consequences of doing so will be to endanger human life, cause serious bodily harm or expose valuable property to destruction or serious harm.
[32] Paragraph 43 of the Amended Amended Statement of Claim appears under the heading “Negligence” and provides in part as follows:
- Criminal Code 422(3) No Proceeding shall be instituted under this section without the consent of the Attorney General. The Dingemanse is asking the Attorney General to hold Hydro One Networks INC accountable and to start proceedings against Hydro One Networks under the Criminal Code. Since Hydro One Networks INC performed an emergency disconnection without cause, disregarding the investigators, disregarding the Electricity Act 31…
[33] In my previous decision I specifically found that the Plaintiffs’ reliance on the Criminal Code was improper and does not form the basis for a cause of action against the Defendant. Despite that finding the Plaintiffs have persisted in pleading violations of the Criminal Code. I also noted previously that the allegations of breaches of the Criminal Code attract criminal and not civil consequences. This court has no power to grant the relief sought of having the Attorney General “hold Hydro One Networks INC accountable and to start proceedings against Hydro One Networks under the Criminal Code”. The allegations of breach of the Criminal Code are irrelevant to this proceeding and should not be in the pleading at all.
[34] The Defendant points to numerous other examples of how the Amended Statement of Claim and Amended Amended Statement of Claim offend the rules of pleadings. I agree with the Defendant’s assessment. Some of those examples include, but are not limited to:
a. The Plaintiffs allege, in the Amended Statement of Claim and the Amended Amended Statement of Claim, allegations of breaches of ss. 40(b), 31(3)(b), 31(7), 31(9), 31.1(b), 31(9) and 31(9)(b) of the Electricity Act and ss. 1(8) of the Energy Consumer Protection Act, which are not provisions found in those statutes as plead. With respect to ss. 31(7) and (9), the Defendant states that these provisions are not yet in force.
b. The Plaintiffs plead negligence, but not the material facts in support of the negligence claim other than breaches of statutes that do not apply.
c. The Energy Consumer Protection Act is plead by the Plaintiffs but does not apply to the Defendant.
d. Evidence and contents of letters and conversations that are not material to any pleaded cause of action appear throughout the pleadings (paragraphs 5, 6-8, 10, 14, 17, 19-21, 24, 28, 41 and 67 of the Amended Amended Statement of Claim; paragraphs 6, 7-9, 11, 15, 17, 19-21, 24, 27, 32 and 47 of the Amended Statement of Claim).
e. Opinions are improperly found in paragraphs 13 and 67 of the Amended Amended Statement of Claim, and in paragraphs 14 and 21 of the Amended Statement of Claim.
f. Irrelevant information is throughout the pleadings (paragraphs 11-13, 27, 40, 48, 49, 53-57, 59-65 of the Amended Amended Statement of Claim; paragraphs 12-14, 31, 46, 54-56, 60-64, and 66-71 of the Amended Statement of Claim).
g. Scandalous and inflammatory comments are also found throughout the pleadings, such as “employee said Hydro One does not care…” (paragraphs 3, 5-7, 12, 14, 23, 29, 32-35, 26, 41, 43, 44, 48, 62, 63-69 and the backsheet of the Amended Amended Statement of Claim; paragraphs 4, 6-8, 13, 15, 26, 33, 36-39, 47, 49, 50, 54 and the backsheet of the Amended Statement of Claim.
[35] I remain mindful of the fact that the Plaintiffs are self-represented, and clearly struggle to properly frame their claim in the pleading. A balance must be struck. While some latitude must be given to the Plaintiffs so they are not deprived of their ability to advance their claim by virtue of drafting deficiencies, the Defendant needs to know the case it must meet and the court knows the issues to be determined.
[36] It is also unfair to the Defendant to continue to visit upon it the costs of the Plaintiffs’ failure to comply with the rules of pleading. Costs orders are designed to partially indemnify a successful party in a step in the proceeding. There is an expectation that orders of the court will be complied with.
[37] On April 25, 2019 I ordered costs payable by the Plaintiffs to the Defendant for the previous motions to strike, in the amount of $4,698.00, payable within 30 days in accordance with Rule 57.03 of the Rules of Civil Procedure. That costs order remains unpaid yet the Defendant has found itself in the position of incurring further costs to bring another motion to strike the Amended Statement of Claim, which contains many of the same problems that infected the original Statement of Claim.
[38] Rule 57.03(2) provides that when a party fails to pay the costs of a motion as required, the court may dismiss or stay the party’s proceeding, or make such other order as is just.
[39] In the interests of fairness to all parties, the Plaintiffs should be able to have one final attempt at properly drafting their pleading and advancing their claim. Having said this, the Defendant has a right to expect that the April 25, 2019 costs order be paid prior to having to move forward with this litigation.
Order:
[40] In light of the foregoing, it is ordered that:
a. Leave is granted to extend the time for the Plaintiffs to issue and serve their Amended Statement of Claim to March 6, 2019 to correct the irregularity of the pleading having been issued and served outside the time provided for in my previous order.
b. The Amended Statement of Claim is struck in its entirety.
c. Leave to have issued the Amended Amended Statement of Claim is denied.
d. This order is without prejudice to the right of the Plaintiffs to bring a further motion, on notice to the Defendant, for leave to file an amended pleading that complies with the rules of pleading.
e. Any motion by the Plaintiffs for leave to file an amended pleading shall not be brought until the costs order dated April 25, 2019 is paid.
[41] In my previous decision I urged the Plaintiffs to obtain some legal advice if they were going to pursue this matter further and seek to amend the previously struck pleading, lest they face the same consequence of a successful motion to strike. It would appear that they did obtain some advice, but did not have the lawyer draft the pleading for them. The Plaintiffs are cautioned that the court may not continue to grant them the ability to amend deficient pleadings. At some point this matter must come to an end. I would expect that the cost of having legal counsel draft a pleading is less than the costs order that the Plaintiffs face in unsuccessfully obtaining leave to amend their pleadings or defending a motion to strike. The Plaintiffs would be wise to seriously consider this before seeking leave to file any further amended pleadings.
[42] If the Defendant choses to pursue costs, written submissions shall be served and filed within 21 days of the release of this decision, failing which costs will be deemed to have been resolved. The Plaintiffs shall have 14 days thereafter to serve and file a response. Any reply by the Defendant shall be delivered within 7 days after receiving the Plaintiffs’ submissions.
Submissions shall be no more than five pages in length, double spaced, together with a Bill of Costs or Summary of Costs.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: August 28, 2019
COURT FILE NO.: CV-18-0179-00
DATE: 2019-08-28
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: August 28, 2019
/lvp