Court File and Parties

Court File No.: CV-20-334-00 Date: 2021-07-14 Superior Court of Justice - Ontario

Re: A.S., Plaintiff And: Brian Joseph Lucy, The Roman Catholic Archdiocese of Kingston, Knights of Columbus and Ontario Knights of Columbus Corporation, Defendants

Before: Mr. Justice Mew

Counsel: Andrea Risk and Liam McMunagle, for the The Roman Catholic Archdiocese of Kingston (Moving Party) Elizabeth Grace and Carly Moore, for the Plaintiff (Responding Party) Nicole Chutko for Knights of Columbus and Ontario Knights of Columbus Corporation

Heard: 13 May 2021, at Kingston (by videoconference)

Endorsement

[1] The defendant Archdiocese moves to strike out two paragraphs of a statement of claim which it says are scandalous, frivolous and vexatious and, if allowed to remain, may prejudice or delay the fair trial of this action.

[2] The plaintiff, who is now in his forties, alleges that while he was an altar boy and a "Junior Knight", he was sexually abused by the defendant Brian Lucy, who held leadership roles in the church and the Knights of Columbus.

[3] As against the moving party, it is alleged that it is vicariously liable for Mr. Lucy's actions and that it knew or should have known about Mr. Lucy's abusive predilections before the abuse of the plaintiff began, but failed to investigate or take appropriate actions to warn or protect potential victims and their families.

[4] The moving party does not object to paragraphs 13 and 14 of the statement of claim, which (anonymised) provide:

13. In or around 2013, Lucy was convicted of indecent assault and gross indecency against two child victims. Lucy was also convicted of possession of child pornography. These crimes occurred in the 1970s and 1980s in Gananoque. Lucy served a 5-year sentence at Joyceville Institution as a result.

14. In or around 2016, Lucy was charged with a sexual offence in regard to A.S. when he was a child. On or about January 29, 2018, Lucy pled guilty before Justice J.M. Johnson of the Ontario Superior Court of Justice at Brockville, Ontario to a count of sexual exploitation of A.S. contrary to s. 153(1)(a) of the Criminal Code. Lucy was subsequently sentenced on or about May 28, 2018 to three years in prison.

[5] The two paragraphs to which objection is taken are:

15. In or around 2016, Lucy was also charged with gross indecency in regard to another child victim, R.W. On or about January 26, 2017, the charges against Lucy in relation to both A.S. and R.W. were the subject of a preliminary inquiry before Justice K.E.M. Moore of the Ontario Court of Justice at Brockville, Ontario. At its conclusion, Lucy was committed to stand trial for charges in relation to both A.S. and R.W. However, R.W. died shortly thereafter and, as a result, Lucy was only convicted and sentenced in relation to his sexualized misconduct against A.S.

16. Lucy's misconduct against R.W. occurred in or around 1979 to 1980 in Gananoque, and included Lucy grooming R.W., luring R.W. to his residence, plying R.W. with alcohol, and performing oral sex on R.W. R.W. was approximately 16 years old at the time of these alleged incidents.

[6] The moving parties assert that these paragraphs plead a combination of evidence and similar facts that add complexity to the pleading which outweighs the potential probative value of those facts.

[7] Rule 25.11 of the Rules of Civil Procedure provides:

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.

[8] The test to be applied in determining whether to strike pleadings was summarised by Nordheimer J. in Abdi Jama (Litigation Guardian of) v. McDonalds Restaurants of Canada Ltd., 2001 CarswellOnt 939, [2001] O.J. No. 1068, [2001] O.T.C. 203, 104 A.C.W.S. (3d) 66, at para. 21, as follows:

a) motions under Rule 25.11 should only be granted in the "clearest of cases" — see Wernikowski v. Kirkland, Murphy & Ain (1999), 1999 3822 (ON CA), 181 D.L.R. (4th) 625 (Ont. C.A.);

b) any fact which can effect the determination of the rights of the parties can be pleaded but the court will not allow facts to be alleged that are immaterial or irrelevant to the issues in the action — see Duryea v. Kaufman (1910), 21 O.L.R. 161 (Ont. Master);

c) portions of a pleading that are irrelevant, argumentative, or inserted for colour or that constitute bare allegations should be struck out as scandalous — see George v. Harris, [2000] O.J. No. 1762 (Ont. S.C.J.);

d) facts may be pleaded but not the evidence by which those facts are to be proved — rule 25.06 (1) of the Rules of Civil Procedure;

e) similar facts may be pleaded as long as the added complexity arising from their pleading does not outweigh their potential probative value — see Garwood Financial Ltd. v. Wallace (1997), 1997 12276 (ON SC), 35 O.R. (3d) 280 (Ont. Gen. Div.)

[9] In Toronto (City) v. MFP Financial Services Ltd., (2005), 17 C.P.C. (6th) 338 (Ont. S.C.J.), Maser MacLeod, at para. 15, observed:

The distinction between material facts, particulars and evidence is not a bright line and there will be situations in which the level of detail required to provide adequate particulars sets out material facts that might also be regarded as evidence. Furthermore, pleadings motions should not be approached in an overly technical manner. Generally speaking a party should be at liberty to craft a pleading in the manner it chooses providing the rules of pleading are not violently offended and there is no prejudice to the other side.

[10] Perell J. provides the following comprehensive direction in Jacobson v. Skurka, 2015 ONSC 1699, at paras. 43-44:

[43] Rule 25.06 (1) draws a distinction between the "material facts" and "the evidence by which those facts are to be proved." A material fact may itself be relevant evidence and particulars of material facts may also be relevant evidence, so the distinction drawn in the rule is not a litmus test clear differentiation, but the essence of the directive of rule 25.06 is clear enough that a pleading is not the place for a party to lead relevant evidence and to present argument to prove his claim or defence.

[44] A pleading should not describe the evidence that will prove a material fact; pleadings of evidence may be struck out: Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd. (1991), 1991 7050 (ON SC), 3 O.R. (3d) 684 (Gen. Div.). The difference between pleading material facts and pleading evidence is a difference in degree and not of kind: Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214 at para. 15 (Master). What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts: Grace v. Usalkas, [1959] O.W.N. 237 (Ont. H.C.J.); Phillips v. Phillips (1878), 4 Q.B.D. 127 (C.A.). Even a pleading of an admission, which is a type of evidence, may be struck out: Davy v. Garrett (1878), 7 Ch. D. 473 (C.A.); Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd., supra.

[11] Aside from the plaintiff, Mr. Lucy is alleged to have sexually assaulted three boys in a similar manner. Particulars of his convictions for assault and gross indecency relating to two of those victims, in addition to Mr. Lucy, have been pleaded without objection.

[12] According to the moving party, paragraphs 15 and 16 contain evidence in support of the allegations (material facts) made in other paragraphs that there was a pattern of misconduct, as well as pleaded claims that the Archdiocese knew or ought to have known about the pattern and is therefore is liable for punitive damages.

[13] The Archdiocese does not explain why it does not also challenge the contents of paragraph 13 of the statement of claim (concerning the convictions relating to two other victims) on the basis that it, too, pleads evidence.

[14] The fact that criminal charges were laid against Mr. Lucy in relation to the alleged abuse of the plaintiff and non-party, R.W. are matters of public record and, thus, not controversial. The plaintiff explains that he intends to prove a pattern of conduct which the moving party should be held responsible for, alleging that over the course of several decades prior to his abuse of the plaintiff.

[15] The pleading of undisputed elements of the history of charges and convictions arising from Mr. Lucy's alleged abuse of other individuals does not strike me as pleading evidence. These are material facts in a claim against an institutional defendant which is alleged to have failed in its duty to the plaintiff by enabling or not preventing such abuse.

[16] I would therefore reject the attack on the impugned paragraphs on the basis that they plead evidence.

[17] I do, however, find that the bracketed words in the last sentence of paragraph 15, namely "... [and, as a result], Lucy was [only] convicted and sentenced in relation to his sexualized misconduct against A.S" offends the prohibition against pleading argument to support a claim. The fact is that Mr. Lucy was not tried on the charges involving R.W. He is entitled to the presumption of innocence. It is a matter of pure speculation whether, but for R.W.'s death, Mr. Lucy would have been convicted of sexualised misconduct against both the plaintiff and R.W. Those words will be struck out.

[18] The other references to R.W. in paragraph 15 are said by the Archdiocese to open the door to expanded discovery that would delve into sensitive matters involving the privacy concerns of R.W.'s estate and family members.

[19] I disagree. Whether or not the pleading of the committal for trial and charges involving R.W. is pleaded, the plaintiff would be at liberty to try and gather evidence about Mr. Lucy's conduct towards others. Although R.W. died before Mr. Lucy could be tried on the charges which concerned him, R.W.'s testimony at the preliminary inquiry remains available. The admissibility, and if admitted, the probative value of that evidence, will ultimately be a matter for the trial judge. Allowing the pleading to stand does not automatically licence the admissibility of such evidence. Nor does it unduly broaden the scope of discovery.

[20] What of the moving party's concerns about the pleading of similar facts?

[21] The qualified propriety of pleading similar facts was elaborated on by Master Egan in Prism Data Services Ltd. v. Neopost Inc., [2003] O.J. No. 2994 (S.C.J.) at para. 9:

The following principles apply when a party seeks to plead allegations of similar facts:

(a) such allegations are proper as long as the added complexity resulting therefrom does not outweigh the probative value;

(b) similar acts are not probative if there is not a sufficient degree of similarity;

(c) the similarity must be provable without a prolonged inquiry although, inevitably, the litigation process will be lengthened to some extent as a result of proper similar fact allegations;

(d) the added complexity should not lead to undue oppression or unfairness; and

(e) if a system or scheme of conduct is alleged the past similar acts must have sufficient common features to constitute the system or scheme.

[22] Bearing in mind that the statement of claim already contains allegations that Mr. Lucy was convicted of sexual offences against two other child victims, it is difficult to conceive how also including the allegations involving R.W. adds greatly to the complexity of the case. Nor, in my view, are any of the other concerns articulated in Prism Data Services engaged.

[23] Paragraph 16 contains particulars of the allegations made. These are the things which Mr. Lucy is said to have done. If they were not pleaded, the Archdiocese might well be complaining that the pleading consists of bald allegations which do not sufficiently disclose the case it will be asked to meet.

[24] For the foregoing reasons, with the exception of striking the words at the end of paragraph 15 that I have made reference to, the moving party's motion is dismissed.

[25] If the parties are unable to agree on the disposition of costs within 14 days following the release of these reasons, I may be spoken to via my judicial assistant.

Graeme Mew J.

Date: 14 July 2021