Court File and Parties

COURT FILE NO.: CV-20--00647486 DATE: 20210205 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: STEWART MCDONALD, Plaintiff and Respondent AND: THE CORPORATION OF THE CITY OF BELLEVILLE AND SAMANTHA SHORTT, Defendants and Moving Parties

BEFORE: S.F. Dunphy J.

COUNSEL: J. Savini, for the Moving Party Defendants Plaintiff representing himself.

HEARD at Toronto: February 5, 2021

Reasons for Decision

[1] This is a motion brought by the defendants pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure to strike out the plaintiff’s statement of claim as disclosing no reasonable cause of action. At the close of the hearing, I ordered that that the defendants’ motion was successful and that the statement of claim must be struck out as disclosing no reasonable cause of action, fixing costs at the sum of $3,500. I indicated that my reasons would follow, these are those reasons.

[2] The jurisprudence regarding the test to applied on such motions is well-established. A claim must be struck if it is plain and obvious, assuming the facts pleaded as true, that the pleading discloses no reasonable cause of action: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17. The requirement for it to be “plain and obvious” that a claim has no merit is intended to ensure that novel claims that may have merit are not prevented from moving forward since every development in the common law was novel once: Imperial Tobacco at para. 22. A large and liberal interpretation of the claim under review is required to ensure that potentially meritorious novel claims are not nipped in the bud before they have an opportunity to blossom.

[3] Pursuant to Rule 21.01(2) of the Rules of Civil Procedure, no evidence is admissible on this motion without leave of the court. The rationale for this rule is clear – it is the pleading itself that is under review. The correct forum for assessing the sufficiency of the evidence underlying a claim is summary judgment.

[4] For the purposes of this motion, all facts as pleaded are assumed to be true. That assumption does not extend to any law that is pleaded for the court is the one that must apply the law to the facts as pleaded.

[5] The moving party asked for leave to reference a single document – the property standards order dated May 27, 2020 which is referenced at numerous points throughout the statement of claim and is clearly the genesis of it. The text of that order is necessary in order to place the Statement of Claim into any kind of context and I granted such leave.

[6] The order in question was directed to the plaintiff Mr. McDonald and delivered by Registered Mail dated May 27, 2020. It reads in its operative portions as follows:

Your property described above and in Schedule "A" does not conform to the standards prescribed in the City of Belleville Property Standards By-Law 2012-79 as amended, particulars of which are as set out in Schedule "B" attached hereto. IT IS HEREBY ORDERED

1. Your property be repaired and maintained in accordance with the requirements in Schedule "B", such work to be carried out no later than June 19, 2020, and if such repairs are not carried out within such time, or the property is not maintained as required, the City of Belleville may carry out the repairs and maintenance work at your expense.

[7] The referenced Schedule B recites and quotes the relevant portions of the City of Belleville Property Standards By-law No. 2012-79 (s. 3.1, s. 3.10.1, s. 3.10.3 and s. 3.10.5) and contains the following description of the actions required to be performed:

Required Action

Cut and maintain all long grass and weeds at the above captioned property.

Remove ALL derelict vehicles from the above captioned property. including all discarded vehicle parts throughout the property.

All accessory structures must be in good repair and any building permits required must be submitted to the Building Department before work commences at the above captioned property.

Remove all garbage and debris at the above captioned property.

[8] Although the order provided information regarding the avenues and time limits to appeal the order made to the Property Standards Committee of the City of Belleville, the response to this order that emerged four months later was a 235-page Statement of Claim naming the City of Belleville and Ms. Shortt (the by-law officer who signed the order) that is the subject-matter of the motion before me.

[9] The statement of claim begins with 82 pages of “definitions” which appear to be lengthy but context-free extracts of various statutes and regulations as well as pages of extracts from Black’s Law Dictionary. The purpose of the inclusion of this vast and unsorted collection of words is not apparent.

[10] To the extent the beginning of a description of the claim can be found, it appears to start at page 83 of the Statement of Claim under the heading “Nature of the Action”. There follows a recitation of discussions held by “the home owner” (a term I assume means the plaintiff) with officials of a predecessor municipality, the fact that the home owner “declared the property “Private Property” and posted legal notices and signs to this effect”, a description of a prior dispute about another City by-law dealing with a driveway issue, an allegation that Ms. Shortt trespassed on to the property to take photographs in relation to “tall grass and weeds”, “derelict vehicles” and a “building structure”, culminating in the statement that the plaintiff “does not believe that a municipality has the authority to pass by-laws with respect to private property”.

[11] This last belief is then expanded upon in the paragraphs that follow, including statements that natural persons do not have the power to enslave another. There follow many pages cut and pasted from a variety of statutes apparently intended to underscore these points.

[12] The task of wading through this vast and prolix document is not a simple one. Pages and pages of apparently un-related statutes and regulations relating to such matters as sewage plants, public utilities and other matters are reproduced apparently in aid of assertions that the plaintiff believes municipal powers are restricted to public lands only.

[13] The moving party defendants have clearly expended considerable effort to tease out of this lengthy document any nuggets that appear to suggest facts that might be liberally construed as describing a claim.

[14] I attempted to secure from the plaintiff in oral argument any indications of what the nature of his claim was. He described various reasons why he felt the order made against him was not justified – his grass was cut, the cars are not derelict but in good repair, etc. These are all reasons that may well have formed the basis for an appeal to the Property Standards Committee and potentially thereafter to the Court, but they are not reasons that justify any portion of the Statement of Claim before me.

[15] To the extent the plaintiff was able to advance a legal justification for his claim, it appeared to lie in his core belief that he has the right to do anything he wishes with his private property and in that regard is not subject to any regulation by the municipality in which his property is situate. That mistaken belief has no foundation in law and cannot be resorted to in aid of the preservation of any portion of this statement of claim.

[16] I shall therefore briefly review the claims or potential claims that the moving party was able to sift out of this statement of claim. None of these appear fully-formed, all require a large and liberal interpretation of the document to be able to express the claims in question with any degree of precision. It is plain and obvious that each of the claims so described has no merit whatsoever, assuming all of the pleaded facts to be true.

(i) “no lawful authority to enforce by-laws”

[17] At the core of the plaintiff’s claim appears to lie the proposition – repeated in many ways throughout the document – that he is simply not subject to regulations of any kind as regards his use of private property. In this regard, the claim fits in the line of what has been described as “OPCA Claims” in the jurisprudence summarized by Leach J. in Wegner v. Her Majesty the Queen, 2016 ONSC 7906. This type of claim is utterly without merit and appears intended to introduce as much sand as possible into the gears of justice rather than to advance genuine claims with a view to their disposition on the merits.

[18] At the risk of being guilty of a penetrating glimpses into the obvious, the very private property that the plaintiff claims such absolute and sovereign title to derives from an original grant from the Crown, registered in a provincial Land Titles Office and subject to all of the rights and limitations associated with such ownership prescribed by the Province whose jurisdiction over property and civil rights and matters of a local and private nature is in turn grounded in section 92(13) and (16) of the Constitution Act, 1867, 30&31 Vict., c3.

[19] The authority of subordinate jurisdictions such as municipalities, including the defendant City, to enact by-laws governing land use and standards is contained in a variety of Ontario statutes. The authority to enact the property standards by-law that is the foundation of the order complained of in the statement of claim is found in s. 15.1 and following of the Building Code Act, 1992, SO 1992, c 23, in a section helpfully entitled “Property Standards”. Section 15.1(3) thereof specifically authorizes a municipality to pass a by-law “prescribing standards for the maintenance and occupancy of a property within the municipality” and “requiring property that does not conform with the standards to be repaired and maintained to conform to the standards or the site to be cleared of all … debris or refuse”.

[20] Whether the property conforms or does not conform to the standards prescribed by the by-law would have been a matter to be addressed in an appeal to the property standards committee had the plaintiff chosen to follow the instructions for launching an appeal of the order made. The claim that the by-law itself was made without lawful authority or that the City lacks authority to enforce it is utterly without merit.

(ii) trespass

[21] The statement of claim alleges that Ms. Shortt – the property standards officer who signed the order in question – trespassed on his property to take various photographs. Those statements must be assumed to be true. Do they give rise to a claim for damages arising from trespass to property?

[22] I start by noting that already I must give a large and liberal reading of the document to characterize the claim in this fashion. There is no trespass claim pleaded as such nor any pleading of damages alleged to flow form that alleged event. However, even viewed in that large and liberal light, the claim cannot succeed. S. 15.2 of the Building Code Act, 1992 specifically authorizes warrantless entry upon land for the purposes of an inspection. The Trespass to Property Act, R.S.O. 1990, c. T.21 excludes from its ambit anyone who acts under a right or authority conferred by law. This claim is without merit.

(iii) Breach of agreement

[23] Portions of the statement of claim discuss what is said to be a long history of harassment by municipal officials. Some of this historical discussion describes various discussions with officials as having resulted in an “agreement”. It is impossible to give any effect to these ill-defined claims. The descriptions of these pleaded “agreements” provide no particulars of the nature of the agreement alleged either as to content or even timing. More importantly, the action complained of is enforcement of a by-law and informal agreements of the sort discussed cannot override a by-law or provide a license for continued or future violation of it. These claims, such as they are, have no merit.

(iv) “double jeopardy”

[24] Whatever is meant by the reference in the statement of claim to “double jeopardy”, it cannot extend to authorizing on-going breaches of a by-law. The doctrine is a defence to the prosecution of an offence already prosecuted a first time and not the basis of a civil claim.

(v) Limitations

[25] Once again, the nature of the claim advanced under this heading is far from clear. As a general rule, claims may be struck out if initiated outside of any applicable limitations period but the passage of time is a defence to the claim to be struck and not the basis of a positive civil claim in its own right. A limitations period has no application to an on-going violation of a by-law at all events. This claim has no conceivable merit.

(vi) Legal non-conforming status

[26] The statement of claim suggests that the current state of the property is in some way cloaked with the status of “legal non-conforming” such that on-going violations of property standards by-laws are exempt. The “legal non-conforming” concept is applicable in some zoning contexts to structures enacted prior to a particular zoning law coming into effect. The concept has no application whatsoever to on-going violations of a property standards by-law. This claim has no merit.

(vii) Charter violations

[27] The statement of claim appears to ground its claimed absolute right to immunity from property standards by-laws on s. 26 of the Charter of Rights and Freedoms, The Constitution Act, 1982, Part I. Section 26 does not create any rights but simply provides that the rights and freedoms guaranteed therein “shall not be construed as denying the existence of any other rights or freedoms that exist in Canada”. Those “other” rights do not now nor have they ever extended to include the absolute claim to regulation-free enjoyment of private property claimed by the plaintiff in the statement of claim. This claim has no merit.

(viii) Alleged Criminal Code violations

[28] The statement of claim describes certain actions as amounting to violations of the Criminal Code. If so, those actions may form the basis of a criminal prosecution. They cannot create the right to a private civil action. This claim has no merit.

(ix) Harassment

[29] The statement of claim describes the behaviour of municipal officials as amounting to “harassment” on a number of occasions. There is no such civil claim actionable: Merrifield v. Canada (Attorney General), 2019 ONCA 205 at para. 43. This claim as pleaded is without merit.

(x) Slander

[30] The word is used in the statement of claim in relation to media articles concerning the plaintiff – without any particulars sufficient to permit identification of either the slanderous words, what about them was slanderous, who published them or when. Nothing in the pleading attributes the words to either defendant. The claim is too far from a meritorious one to be salvaged. It is without merit.

(xi) Claims against Ms. Shortt

[31] Ms. Shortt has been added to this claim but there are no allegations that she did anything in her personal capacity or in any way acted outside of the broad immunity conferred by statute upon public employees acting in the good faith performance of their duties: Building Code Act, 1992, s. 31(1) and Municipal Act, 2001 S.O. 2001, c 25, s. 448. This claim too is without merit and must be struck.

[32] For the foregoing reasons I have concluded that the statement of claim is hopelessly flawed and neither states a cognizable cause of action that has a chance of success nor can it reasonably be amended into a form that might. It must be struck pursuant to Rule 21.01(1)(b) and I so ordered.

[33] The moving party defendants presented a very modest claim for partial indemnity costs only in the amount of $3,500 all inclusive. The amount of work required to digest the vast amount of unsorted and unfocused material in a statement of claim designed more to obfuscate and confuse than to advance any concrete claim in good faith was doubtless considerable. I am satisfied that the costs claim advanced is eminently reasonable and indeed modest. The plaintiff will be ordered to pay $3,500 in costs to the defendants. Leave to amend would not be appropriate or desirable in this case.

S.F. Dunphy J. Date: February 5, 2021