COURT FILE NO.: CV-16-554153
MOTIONS HEARD: 20190815
REASONS RELEASED: 20191220
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
JASON NOEL and KELLY-ANN NOEL
Plaintiffs
- and-
ORLANDO JOHNSON, TAMARA SAMANTHA JOHNSON and PAFCO INSURANCE COMPANY
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Stephen Birman sbirman@thomsonrogers.com -counsel for the Plaintiffs Fax: 416-868-3134
Sonya Katrycz skatrycz@ztgh.com
-counsel for the Defendants Fax: 416-777-2050
REASONS RELEASED: December 20, 2019
Reasons for Judgment
Circumstances alter cases
I. Overview
[1] This is not your run-of-the-mill motor vehicle personal injury action. The plaintiff, Jason Noel, asserts that he was hit as a pedestrian by an automobile operated by the defendant Orlando Johnson on July 15, 2015.
[2] Apparently, the defendant driver, Orlando Johnson was the operator of the vehicle belonging to, Tamara Samantha Johnson, his co-defendant. It would seem that neither party has been able to be located for the purpose of serving them with any pleadings in this matter.
[3] As a consequence, the insurer of the vehicle brought a motion somewhat unusual motion before Master McAfee in 2018. However, the motion was not to be added as a statutory third-party but rather, to be named as a defendant in the main action. Perhaps there are tactical advantages to an insurer obtaining the right to file a Statement of Defence by virtue of being added as a defendant and not to be added statutory third-party.
[4] As a consequence, the only pleaded delivered on behalf of defence was delivered by Pafco Insurance Company, which company could potentially be entitled to succeed on a defence that would deny any liability for personal injuries suffered by the plaintiff, if the striking of the plaintiff pedestrian was not accidental.
[5] On this motion the plaintiffs seek to strike paragraphs in the proposed statement of defense is being prejudicial to the plaintiffs claim and not properly included in the insurer’s pleading at this stage
II. Underlying Event and Applicable Legislation
[6] In the Claim it is asserted that Jason suffered “physical and psychological injures and impairments, including the amputation of his left leg and a non-union fracture to his right leg, as a result of being struck, on July 15, 2015, by a motor vehicle negligently operated by Orlando Johnson”. and owned by Tamara Samantha Johnson (together the "Johnson Defendants"). The Johnson Defendants were insured by the Defendant, Pafco.
[7] Pafco has alleged that the Johnson Defendants have not co-operated in the defence, and that the Johnson Defendants committed an intentional act in relation to the July 2015 accident. Based on these allegations, Pafco has determined that the Johnson Defendants are not covered by their motor vehicle insurance policy.
[8] On-May 7, 2018, Pafco brought a Motion, on consent, to be added as a party Defendant in the within action.
[9] The Highway Traffic Act of Ontario has specific provisions dealing with situations involving accidents where there is only one motor vehicle involved. The provisions of interest in the present motion are as follows:
SECTION 193
Onus of disproving negligence
- (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.
Application
(2) This section does not apply in cases of a collision between motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.
[10] I note there is some potential ambiguity by virtue of whether the “not” applies to the term “improper conduct”.
[11] For the present purposes the plaintiffs assert that the onus is on the Defendants to prove that the losses and damages sustained by reason of the collision did not arise from negligence or “improper conduct” of Orlando Johnson. In that regard, the Plaintiffs plead and rely upon Section 193 of the Highway Traffic Act and assert that the onus of proof in this regard is upon the insurer.
[12] The plaintiffs assert that allegations concerning previous alleged activities of the injured plaintiff Jason, should not be allowed to be included in the insurer’s Statement of Defence.
III. Nature of Injuries
[13] In part, the Statement of Claim alleges that the collision with the pedestrian plaintiff had these consequences:
As a result of the collision, Jason sustained catastrophic injuries, including, but not limited to: a traumatic brain injury; an amputation of his left leg; cornminuted left subtrochanteric (femoral) fracture; left open comminuted distal tibia fractures with bone loss and shortening; left open extensively· comminuted proximal fibular fractures; right open extensively comminuted proximal tibia/fibular fractures; de-gloving injury to his right lower leg; together with bruising, swelling, tearing, and damage to the nerves, tendons, muscles, and ligaments throughout his entire body. These injuries have been accompanied by severe pain, suffering, and a loss of enjoyment of life.
As a further result of the collision and the above-mentioned injuries, Jason sustained catastrophic impairments of important physical, mental, and/or psychological functions…. These impairments have been accompanied by great pain and suffering, along with profound physical and emotional shock.
As a result of his injuries and impairments, Jason has been and will continue to be required to undergo invasive surgical and medical assessments, treatments, and procedures, including, but not limited to: left leg amputation with skin grafting on the left leg amputation stump; surgical fixation of his left femur with the insertion of an external fixator; right lower leg irrigation and debtidement plus application of external fixator and VAC dressing; right lower leg irrigation and debridement; open reduction and internal fixation of his left femur; femoral bypass surgery on his right leg; intubation; catheterization; physiotherapy; occupational therapy, psychological counselling; chiropractic treatments rehabilitation therapy and diagnostic imaging. Jason has also been required to ingest large quantities of medication, including pain medication, as a result of his injuries. The Plaintiffs plead and the fact is that Jason has required 24 hour a day attendant care since the collision and will require attendant care on into the future. Jason has been and will continue to be put to· hospital, medical, rehabilitative, attendant care and other out-of-pocket expenses, the value- and costs of which he claims and the particulars of which will be provided prior to the trial of this action.
[14] The plaintiff Kelly-Ann is Jason’s sister and brings her claim pursuant to the provisions of the Family Law Act R.S.O. 1990, C. F3 for losses and damages she suffered as a result of the injuries sustained by Jason. The pleading particularly asserts these claims on her behalf:
“15. As a further result of the accident, Kelly-Ann has sustained a loss of care, comfort, guidance, companionship, services, and/or support that she would have otherwise expected to receive from Jason.
- In addition, Kelly-Ann has provided and/or will provide attendant care, housekeeping, home maintenance, caregiving, and/or other services for Jason; the value and costs of which she claims or her income lost in doing so, as well as her out-of-pocket expenses incurred. The particulars of Kelly-Ann's Family Law Act claims will be provided prior to the trial of this action.”
[15] There is no suggestion in the proposed pleading of any improper activities or actions taken by this individual at any time. This element, in my view, militates for the plaintiffs’ position.
IV. Challenged Portions of Defence
[16] As I have noted it is unusual for an insurer to apply to be added when not sued by plaintiff. Similarly, it is uncommon for the plaintiff to move to strike allegations contained in a Statement of Defence.
[17] The paragraphs challenged by the plaintiff and in issue in this motion are Paragraphs 6, 7, 8, and/or 20 (the "Offending Paragraphs") of the Statement of Defence which, with my emphasis added, read, in part, as follows:
“6. This Defendant states that the Plaintiff Jason Noel had and has a serious criminal record before this incident in question. He was, before this incident charged and/or convicted of the following offences between the years of 2003 to the time of this incident:
Trespassing, manslaughter, resist arrest, uttering threats, fail to comply, unlawfully at large and assault
This Defendant further alleges that Jason Noel's propensity and history of criminal behaviour led to this assault upon Orlando Johnson. This Defendant states that this incident occurred as a result of the criminal behaviour of the Plaintiff Jason Noel and that this attempted assault on Orlando Johnson as set out above, was the sole cause of this incident and his injuries as alleged.
In the alternative, this Defendant states that the above mentioned injuries and damages were caused or contributed solely to by Jason Noel (the "Plaintiff') as follows:
a) The Plaintiff was a member of a gang and as such, he knew or ought to have known that violence he was involved in could lead to the incident as set out above;
b) He had a history of committing assaults and physically aggressive behaviour which caused, contributed or led to the incident as set out above;
c) He has involved in criminal behaviour which he knew or ought to have known could lead to incidents as set out above;
d) He was a member of a gang which was involved in violence which lead to events similar to the incident set out above;
e) He was involved in a drug deal that went bad and has a history of involvement in drugs;
f) He and his colleagues were trying to kill the Defendant Orlando thereby causing this act to occur in self-defence or otherwise;
g) He failed to take any precautions whatsoever for his safety before the incident in question;
(h) He did not avoid the incident which he knew or should have known would occur and he could have done so by the exercise of reasonable care and skill. He created a situation of emergency and danger for himself;
(i) He was involved in an assault with the Defendant, Orlando Johnson and he and his colleagues were trying to kill the Defendant Orlando Johnson, which lead to the incident as set out above;
(j) He knew or ought to have known that his actions were unsafe but willingly assumed the risk of placing himself where he did when he knew or ought to have known that this would create a situation of danger for himself and that it would place himself at risk of injury.
- The Defendant states that subsequent to this incident, the Plaintiff has continued to act in a criminal manner including but not limited to charges against him for assault and sexual assault and Fail to Comply with Recognizance.”
V. Plaintiffs’ Submissions on Striking Out Paragraphs of Statement of Defence
[18] Counsel for the plaintiffs asserts that the Offending Paragraphs should be struck from Pafco's Statement of Defence on the grounds that these pleadings are “scandalous, frivolous, vexatious and/or an abuse of process of the Court.”
[19] In particular it is argued that the Offending Paragraphs plead “irrelevant evidence of the alleged commission, or conviction, of crimes by Jason, which either pre or post-date the accident.”. Counsel asserts:
“The alleged conduct of Jason described in the Offending Paragraphs, is irrelevant to Pafco's defences arising from the motor vehicle/pedestrian accident that occurred on July 15, 2015.
The alleged conduct of Jason described in the Offending Paragraphs is not relevant to the liability of the Johnson Defendants, nor is it relevant to the damages of the Plaintiffs.”
[20] The plaintiffs assert that it is fit and proper for this Court to grant an Order striking out the Offending Paragraphs and compelling the Defendant to produce a Fresh as Amended Statement of Defence.
VI. Case Law
[21] Rule 25.11 of the Rules of Civil Procedure states:
"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.
[22] Rule 25.06 of the Rules of Civil Procedure states that a pleading shall contain a concise statement of the material facts relied upon, but not the evidence by which those facts are to be proved.
[23] Generally, the functions of pleadings are to: (i) define with clarity and precision the question in controversy between the litigants; (ii) give fair notice of the precise case which is required to be met and the precise remedies sought; and (iii) assist the court in determining the issues in the case.
[24] The application of Rule 25.11 was considered by Epstein J. in George v. Harris [2000] OJ No 1762, 97 ACWS (3d) 225; 2000 CarswellOnt 1714. There her Honour stated as follows:
20 The next step is to consider the meaning of "scandalous", "frivolous" or "vexatious". There have been a number of descriptions provided in the multitude of authorities decided under this or similar rules. It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety. …
[25] My former colleague Master Haberman addressed similar issues in Witten v. Bhardwaj, [2008] O.J. No. 1769; 167 A.C.W.S. (3d) 254; 2008 ONSC 20994; 2008 CarswellOnt 2559. In that matter the defendant was moving to strike portions of the statement of claim.
[26] The headnote indicates that this was a motion to strike certain portions of statement of claim in plaintiff pedestrian's action seeking damages for injuries allegedly sustained when struck by a motor vehicle. In the impugned paragraphs, the plaintiff alleged that the defendant driver was charged and convicted of driving while his licence was suspended, and he had a pattern of reckless conduct. The issue was the extent to which the plaintiff ought to be permitted to plead that there were other occasions on which the plaintiff might have been exceeding the speed limit; about his driving habits, generally; and about his record as a driver, resulting in a possible licence suspension that was in effect at the time of the subject accident.
[27] The headnote reported that:
Even assuming the allegations in the first impugned paragraph were true, the court saw no obvious nexus between operating a vehicle while under suspension and driving it in a negligent manner on the occasion of the accident. Absent such a nexus, the assertion was not relevant, and thus not probative. The plaintiff was asking the court to sanction a fishing trip so they could proceed to discoveries and pose questions without a real foundation. As for the second impugned paragraph, assertions about [the Plaintiff’s] driving habits and that there was a pattern of reckless conduct including but not limited to prior occasions of speeding constituted evidence, not material fact. There was nothing in the claim that highlighted speeding as a major or even a significant cause of the accident. At the present time there was no real nexus between the allegation of speeding generally or a reckless pattern of behaviour and the assertions as to how the events giving rise to this accident unfolded.
[28] In her reasons Master Haberman observes:
14 The protocol for what belongs in a pleading is set out in subrule 25.06. Subrule 25.06(1) provides that a pleading should contain "a concise statement of the material facts on which the parties relies", but not the evidence that will be marshalled to prove those facts.
16 The application of these Rules has been interpreted by case law. Generally, a fact is considered "material" when it constitutes a necessary element of the cause of action grounding the suit and supports the theory of the case as advanced by the party pleading it in a legally relevant manner. For example, in a tort action such as this one, the material facts are those that:
explain who the parties are;
identify the event or events giving rise to the claim;
explain why each party has been sued, by listing what each has done or failed to do to cause or contribute to their damages; and
details the damages suffered and the ensuing losses.
[29] While she acknowledges that if a defendant takes the position that the plaintiff has caused or contributed to his own damages that should also be pleaded as it is material to the theory of the defendant's case. She nevertheless limits such pleadings:
18 Only material facts can be included in a pleading, as distinct from the evidence by which those facts are intended to be proven. The distinction is not always an easy one to make, the more so in personal injury claims where a ream of particulars of negligence are routinely provided. Where one draws the line between particulars of negligence and evidence of that negligence may vary from case to case.
[30] The Master provides this further analysis :
23 In the only case provided by counsel that involves allegations of negligence in the context of a motor vehicle accident, Wilson v. Lind [1985] O.J. No. 535, similar fact allegations were struck. There, the plaintiff sought to allege prior and subsequent negligence and plead that the defendant habitually operated his vehicle while impaired. Plaintiff's counsel submitted that these assertions should be permitted to stand as they supported claims for punitive and exemplary damages. He conceded however, that they would otherwise not be relevant.
24 O'Brien J. began his analysis by relying on Brown v. The Eastern and Midlands Railway Company (1989), 22 Q.B.D. 391, to support the proposition that prior negligence of a party is generally irrelevant as proof of subsequent negligence. The court ruled out the ultimate availability of either exemplary or punitive damages in this case, finding that the allegations should therefore be struck as disclosing no cause of action, as well as under Rule 25.11 as prejudicial and scandalous.
[31] It is in the context of these principles that I must exercise my discretion and determine whether the provisions in issue can stand. This analysis supports my inclination to restrict the challenged paragraphs:
36 More importantly in a pleadings motion, it seems to me that assertions regarding prior incidents of speeding could never be anything more than evidence, rather than material fact. The material fact - that the defendant had been operating his vehicle at an excessive rate of speed - has been pleaded and can stand. The plaintiff's purpose in including these additional allegations about Paawan's driving patterns could only involve one of two issues: 1) to enable the plaintiff to ask the court to rely on Paawan's driving record when assessing whether he was likely speeding at the time of this accident; or, 2) to provide "colour" for the court, so that Paawan will be viewed as a bad driver generally, and hence, be seen as likely responsible for this accident. If the former, what the plaintiff seeks to plead in the impugned portion of paragraph 15 is clearly evidence, not material fact, and on that basis should be struck. If the latter, it is frivolous and should be struck.
[32] Similarly, when the commission of a crime is irrelevant to the proof of the pleader's claim or defence, pleading that the opponent was convicted of a criminal offence is a scandalous pleading that will be struck out. I adopt these portions of the moving parties’ factum:
- The Court has found that a pleading of an arrest and conviction on a criminal charge is "scandalous" and should be struck out, where the pleading was not relevant to the action.
Robinson v Robinson 1942 CarswellOnt 282, at paras 2-3 and 5,
- The Federal Court of Canada has held that “a scandalous pleading or document includes one which improperly casts a derogatory light on a person's moral character.”
Mennes v. Canada (Attorney General), [19981 F.C.J. No. 1075 at para
[33] In my view the Offending Paragraphs plead irrelevant evidence of the alleged commission, or conviction, of crimes by Jason, which either pre-date or post-date the accident. The Offending Paragraphs contain bare allegations which are irrelevant to Pafco's defence, which would seem to be that its insured committed an intentional act in self-defence.
[34] In this regard I accept the plaintiffs’ submission that:
“The question of whether Orlando Johnson committed an intentional
act in self-defence on July 15, 2015, is a question that is confined to the events that took place that evening. The Offending Paragraphs are replete with inflammatory attacks on Jason's character that are intended to distract from the issues in the litigation and to cast a derogatory light on Jason's moral character.”
VII. Further Cases Considered
[35] Another helpful case I considered was the decision of Justice Perell in Jevco Insurance Company v. Pacific Assessment Centre Inc.; 2014 ONSC 2244, 120 O.R. (3d) 43; 2014 ONSC 2244. In that case the corporate defendants provided medical and quasi-medical services to statutory accident benefits claimants insured by the plaintiff. The plaintiff sued the defendants, alleging that they hatched a scheme to submit false statutory accident benefits claims, causing it to pay out $500,000. The defendants brought a motion to strike claims for fraud, negligence, unjust enrichment and conspiracy.
[36] While his Honour permitted elements of the pleading to stand, he did strikeout the pleading imputing breaches of the Criminal Code, should be struck as scandalous. In particular he held:
[92] In para. 94 of the fresh as amended statement of claim, Jevco pleads that the defendants have contravened s. 380(1) of the Criminal Code. This paragraph should be struck from the pleading.
[93] When the commission of a crime is irrelevant to the proof of the pleader's claim or defence, pleading that the opponent was convicted of a criminal offence is a scandalous pleading that will be struck out. Similarly, where the commission of a civil wrong is alleged, pleading that the opponent would be convicted of a Criminal Code offence is a scandalous pleading that should be struck out.
[37] InWernikowski v. Kirkland, Murphy & Ain; 1999 ONCA 3822, 50 O.R. (3d) 124, Justice Doherty writing for a panel in the Court of Appeal for Ontario, twenty years ago, observed:
[11] It would appear that the respondent's motion was brought under rule 25.11, Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:
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,
(c) is an abuse of the process of the court.
[12] Like other rules (e.g., rule 21.01), this provision is designed to allow for an early and expeditious determination of claims that cannot succeed. As the exercise of the power set out in rule 25.11 denies a litigant a full trial of the merits of the claim, it must be exercised only in the clearest of cases. Claims that are doubtful in law or factually weak should not be foreclosed. Allowance must also be made for inadequacies in the drafting of pleadings: Nash v. Ontario (1995), 1995 ONCA 2934, 27 O.R. (3d) 1 at pp. 5-6 (C.A.); Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 ONCA 7000, 73 O.R. (2d) 664 at p. 668, 38 O.A.C. 270 (C.A.).
[38] His Honour observed that for the purposes of the respondent's motion to strike parts of a Claim, it must be assumed that the allegations in the claim are true. In the case before him the defendant “vigorously disputed these allegations in his detailed correspondence with the Law Society. As well he noted that:
[14] While acknowledging that the remedial power in rule 25.11 must be used cautiously, there are cases in which pleadings are properly struck as an abuse of process where they amount to an improper attempt to relitigate issues that have been finally decided in earlier proceedings: Foy v. Foy (1978), 1978 ONCA 1394, 20 O.R. (2d) 747 at p. 748, 88 D.L.R. (3d) 761 (C.A.); Donmor Industries Ltd. v. Kremlin Canada Inc. (No. 1) (1991), 1991 ONSC 7360, 6 O.R. (3d) 501 at p. 506 (Gen. Div.).
[39] Here we are not dealing with assertions in a claim but rather elements in a defence which I see as requiring a slightly lesser degree of justification.
[40] I now turn to a more recent case dealing with issues in this area. Once again Justice Epstein is addressing these issues, but as a member of the Court of Appeal in Quizno's Canada Restaurant Corp. v. Kileel Developments Ltd.], 2008 ONCA 644, 92 O.R. (3d) 347.
[41] Writing for the Court, Justice Blair observes, in reversing an earlier decision:
[22] The motion judge neither considers nor explains how that allegation -- which was neither attacked nor struck -- can be permitted to stand but the defendants be precluded from pleading the facts relating to the franchise agreements that underpin such an allegation.
[42] However ,his decision turned on the meaning of “material facts”:
[23] This approach constituted an error in principle. The impugned paragraphs contain pleadings of material facts. They are not prolix, nor are they pleadings of evidence. A defendant is entitled to plead whatever material facts it chooses to in response to a plaintiff's allegations, provided the allegations are relevant and of at least marginal probative value and their probative value is not outweighed by their prejudicial effect. While the court will look at "[the extent to which] the particulars attacked are necessary to enable the defendant to prove its case", it is not for the court to prune the case at this stage and limit the allegations to what it considers a "reasonable defence". Moreover, even if the motion judge were applying the test that weighs relevance and probative value of the allegations, on the one hand, against prejudice, on the other, she made a palpable and overriding error in concluding that the impugned allegations were of only limited or marginal probative value.
[43] In the case before me I believe the prejudice outweighs the possible relevance or probative value contained within the challenged paragraphs.
[44] In Lee v The Globe and Mail; 2001 ONSC 28035, 52 OR (3d) 652; [2001] OJ No 317 Swinton J. noted:
[13] Given the inclusion of the reference to Mr. Lee's effort to demolish Mr. Nair's character in para. 8 of the Statement of Claim, and the defendants' defence of fair comment, para. 6(q) pleads facts relevant to the honesty of Mr. Nair's belief, as well as the defence in s. 24 of the Libel and Slander Act. Moreover, the facts alleged in this subparagraph are also relevant to support the argument of qualified privilege discussed below.
[45] In the present case no statutory defence is available that would require specifics within the Statement of Defence. As well, I note Her Honour’s identification of the need to consider both elements in undertaking a review such as this:
[14] It is true that the facts alleged in this paragraph will entail a wide-ranging factual inquiry. Nevertheless, as MacFarland J. has observed in Asper, a pleading should not be struck just because it is oppressive to the plaintiff; rather, there must be a consideration of both prejudice and relevance. Here, given the relevance to a number of aspects of the defendants' case, the pleading should not be struck, even if it appears burdensome to the plaintiff.
[46] In the present case I believe prejudice does outweigh relevance.
[47] In my view the different plaintiffs are both entitled to a day in court with respect to the injuries suffered without having to deal with the banks that did not flow from the July 2015 incident.
[48] I now turn to yet another decision in this area involving Justice Epstein, Garwood Financial Ltd. v. Wallace, 1997 ONSC 12276, 35 O.R. (3d) 280; [1997] O.J. No. 3358. In that case, the plaintiffs and the defendants entered into certain agreements under which the plaintiffs were to obtain venture capital financing for the defendants' business in part through a public offering. The public offering was not successful. Nevertheless, the plaintiffs claimed that they were entitled to the fee the defendants had agreed to pay or to damages for wrongful repudiation of the agreements.
[49] The headnote, in part, contains this summary:
Similar fact evidence is properly pleaded so long as the added complexity does not outweigh the potential probative value. In this case, it was not clear that allowing the pleading to stand would have such severe consequences as to warrant the court's intervention at this stage. To strike the paragraph in question without satisfactory evidence that its effect would be unduly oppressive or unfair could deprive the trial judge of a full understanding of the case that the defendants proposed to advance and might deprive the plaintiffs of an opportunity to prepare for this aspect of the defendants' case. Moreover, the failure to plead similar fact evidence could give rise to an objection to such evidence being led at trial, due to its not having been pleaded, thereby prejudicing the defendants and depriving the trial judge of potentially relevant information.
[50] While accepting those qualifications, I nevertheless believe that in this case the appropriate order is to strike the challenged paragraphs.
[51] Her Honour’s reasons, with my emphasis added, refer to the leading textbook on evidence:
In Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), the learned authors conclude their discussion of similar fact evidence by observing that the categories of relevance of that evidence are not closed and that such evidence should be admitted if it is logically probative to an issue in the case as long as it is not unduly oppressive or unfair. This view is supported in a decision of the British Columbia Court of Appeal decided in 1973, MacDonald v. Canada Kelp Co. (1973), 1973 BCCA 1087, 39 D.L.R. (3d) 617, [1973] 5 W.W.R. 689. Justice Maclean, for the majority, held that where an action is based on allegations of misrepresentation made by the defendant to the plaintiff, evidence that the defendant made similar representation to others is admissible to prove that the misrepresentations were made.
In recent years the practical tension created by the two propositions that a party is to plead material facts but not the evidence to prove them and that a party may plead any facts provable at trial has been resolved by giving primacy to the latter proposition. By applying this resolution to similar fact evidence, I come to the conclusion that it is properly pleaded as long as the added complexity does not outweigh the potential probative value.
As I have already indicated, I am not persuaded on the basis of Mr. Herschorn's affidavit that to proceed with the inquiry into similar fact evidence at this time would be "unduly oppressive or unfair". Based on the authorities the allegations have potential probative value. It is for the trial judge ultimately to rule on the relevance of these other dealings.
The purpose of pleadings is to define the issues for the court and to provide sufficient information to allow the other side to know the case to be met. To strike para. 75 without satisfactory evidence that its effect would be "unduly oppressive or unfair" could deprive the trial judge of a full understanding of the case that the defendants propose to advance and may deprive the plaintiffs of an opportunity to prepare for this aspect of the defendants' case. In the end the failure to plead similar fact evidence could also give rise to an objection to such evidence being led at trial (due to its not having been pleaded) thereby prejudicing the defendants and depriving the trial judge of potentially relevant information.
[52] This is not a case dealing with similar representations. It is a case dealing with a motor vehicle incident. I am not satisfied that the evidence that is purported to be supported by these pleadings is anything but unduly oppressive and unfair to the plaintiffs and particularly to Kelly-Ann Noel.
[53] Many of the case is considered above resulted in the contested portions of the various pleadings being permitted. Nevertheless, in appropriate circumstances the court should, and has struck out portions of materials filed with the court
[54] Justice Epstein in January 2000 delivered an endorsement in George v. Harris, [2000] O.J. No. 1762; 97 ACWS (3d) 225, 2000 CarswellOnt 1714.
[55] This was related to an application by the Premier of Ontario and the other defendants seeking inter alia an order restraining counsel for the plaintiff George's contacts with the media. George brought an action against the Premier and other officials regarding government actions and communications in connection with a particular incident. ….
[56] The headnote includes this description of the situation at a stage in the litigation:
The affiant relied on a confidential source for the allegation, and refused to answer any questions about the identity of the source. Harris then delivered an affidavit of documents, which resulted in a motion by George for relief in respect of alleged deficiencies in the affidavit. The parties agreed to have the cross-motion by Harris heard in advance of the main motion. Harris contended that certain paragraphs of George's notice of motion were scandalous, vexatious and an abuse of process.
[57] The result of the motion is summarized
All of the impugned paragraphs were struck. Some paragraphs contained inflammatory and unsupported attacks on the integrity of Harris and were therefore scandalous. Other paragraphs contained pure argument. Some comments were conclusory and argumentative, and were struck as an abuse of process. References to the issue of the anonymous source were conclusions disguised as facts. Three paragraphs invited the drawing of an inference based on unproven facts. The notice of motion in general appeared to have been worded for embarrassment rather than to advance concerns over documentary production, and was therefore abusive.
VIII. Disposition
[58] The decision in this case has potential impact on three litigants. The injured plaintiff, who has the presumption established by the Highway Traffic Act in his favor as a pedestrian, the insurer that has a potential large exposure for the injuries suffered and Kelly Ann Noel was seeking some contribution for the impact of this incident, which severely harmed her brother, has had upon her life.
[59] Weighing those diverse interests and abiding by rule 1.04 which directs that the rules be interpreted with a view to achieving a just result, I am convinced that an unfair burden will be placed on the plaintiffs if the challenged paragraphs are not struck at this point.
[60] If this was a normal personal injury accident, I believe the extent of the injuries suffered would gain sympathy from a jury or the court. If the insurer’s theory is proven, it will potentially have no liability however if that threshold is not met, then the jury will still be required to assess fair compensation for both plaintiffs.
[61] The material sought to be placed in issue by the defendant, is not the kind of evidence that can effectively be “disregarded”, if the court so directs
[62] admittedly this is a close call with no case law directly on point and a variety of rulings over the last three decades by experienced jurists.
[63] I am obliged to apply proportionality, which I interpret as including the avoidance of undue complications in the claim such as is before this court. I believe there will be too great and interference with a fair and just assessment of appropriate damages if a quasi-criminal trial is allowed to distract the triers of fact determination of the appropriate entitlement for individual as severely harmed as this plaintiff was.
[64] In the present case, I am satisfied that the challenged paragraphs should be struck . I accept and adopt the Plaintiffs’ counsel’s position their factum:
The Offending paragraphs are scandalous, frivolous, and/or vexatious for reasons that include the following:
a) they make allegations regarding the commission of criminal offences, or associations, which are irrelevant to Pafco's defence;
b) they improperly cast a derogatory light on Jason's character;
c) they are inflammatory attacks on Jason's integrity;
d) they constitute bare allegations; and,
e) they are irrelevant and inserted only for colour.
[65] The alleged past conduct and associations of Jason are irrelevant to Pafco's defences arising from the motor vehicle/pedestrian accident that occurred on July 15, 2015. These pleadings are an attempt to cast a derogatory light on Jason's character and I am ordering that they be struck.
[66] Both counsel made excellent presentations which both help and made more difficult my arriving at this decision.
[67] It was my understanding that costs of an earlier motion might have been awarded against the plaintiff. Rather than delay this matter further, Unless I misunderstood the discussion between counsel, at the conclusion of the motion, I have decided that the most efficient result is for there to be no costs payable to either side on either motion.
Released: December 20, 2019 ____________________
Master D. E. Short
DS/ R298