COURT FILE NO.: CV-19-007-00
DATE: 2021-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Greg Sigurdson, Gina Sigurdson, and Miranda Sigurdson
Self-Represented, Plaintiffs
Plaintiffs
- and -
Norbord Inc. and Resolute FP Canada Inc.
Christian Breukelman, for the Defendants
Defendants
HEARD: April 23, 2021,
at Fort Frances, Ontario by Zoom videoconference
Madam Justice T. J. Nieckarz
Decision On Motion
Overview:
[1] This action arises out of the tragic death of 28-year old Joshua Sigurdson (“Joshua”), who died while he was in the course of performing work for his employer, the Defendant Norbord Inc. (“Norbord”).
[2] The Plaintiffs, Greg and Gina Sigurdson are Joshua’s parents, while Miranda is his sister. Their tremendous grief caused by the loss of Joshua is evident from both their pleadings and the submissions made eloquently by Miranda at the hearing of this motion.
[3] The Plaintiffs seek damages in negligence, under the Family Law Act, R.S.O. c. F.3 (“FLA”), and punitive damages.
[4] The Defendant, Resolute FP Canada Inc. (“Resolute”), is alleged to have held an overlapping Sustainable Forest License with Norbord for the location where Joshua died, which gives rise to certain duties under the Occupational Health and Safety Act, R.S.O. c. O.1 (“OHSA”).
[5] This decision relates to the Defendants’ motion for an order striking the Statement of Claim and Replies, with leave granted to the Plaintiffs to plead only their Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) claims.
[6] The Defendants argue that the negligence claims must be struck because they are not tenable at law. The Defendants assert that there is no recognized duty of care that was owed by them to the Plaintiffs, and no novel duty of care that should be recognized as owing to them. As the negligence claims are not tenable, the Plaintiffs’ claims for punitive damages must also be struck.
[7] The Defendants take the position that the only claims that can be permitted to stand are the FLA claims. Having said this, the Statement of Claim and the Replies should be struck in their entirety, with leave to amend, given the consistent violation of the rules of pleading. The Defendants allege that the Plaintiffs’ pleadings are prolix, plead evidence and not simply material facts, and are replete with allegations that are scandalous, vexatious, and amount to an abuse of process.
[8] The Plaintiffs argue that the Defendants have failed to meet the high threshold established for striking a claim pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The Plaintiffs allege a novel duty of care owed to them by the Defendants. The Plaintiffs further allege that this motion is not timely and should be dismissed accordingly. They deny that portions of their claim and Replies are inappropriate and assert that the pleading is necessary to establish the basis for questions in discovery that need to be answered in order to determine the viability of the claims at issue. For the Plaintiffs, this action is clearly not about recovering money but rather is about finding answers and ensuring accountability.
[9] For the reasons set out below, the Defendants’ motion is granted in part. I find that there was no duty of care owing from the Defendants to Gina and Miranda and therefore their claims in negligence must be struck in their entirety as it is plain and obvious that they have no reasonable prospect of success. With respect to Greg, the issue of whether the Defendants owed him a duty of care is not so plain and obvious that there is no reasonable prospect of success. The duty of care owed by the Defendants to Greg is a triable issue and should proceed. Having said this, the Statement of Claim and Replies are deficient as drafted and require significant amendments, such that they should be struck in their entirety, with leave to amend.
The Facts:
[10] Joshua was employed by Norbord as a Woodland Supervisor. As part of his employment, he was required to go to remote logging sites in the forest, alone, to perform various tasks.
[11] On March 23, 2017, Joshua went into the forest area where Norbord and Resolute held overlapping Sustainable Forest Licenses. As required by his employer, Joshua was wearing a GPS locator that was to be set to ten-minute tracking, and he was required to check in with his employer periodically.
[12] The GPS locator sent the last known movement for Joshua at 12:29 p.m., but then appears to have been turned off. Joshua made a required check-in at 12:45 p.m., but missed his required check-in between 4:00 and 5:00 p.m. The missed check-in went unnoticed until Joshua’s father, Greg, called his home at 7:30 p.m. and was advised by Joshua’s wife that he had not returned from work. The employer was notified, but it is alleged that the proper search teams were not immediately dispatched. Greg, fearing for his son, drove two-hours himself into the forest to search for Joshua. Greg also worked in the forest for a different employer and was familiar with the area.
[13] Greg found his son at 9:30 p.m., on the ground on a road in the forest. Joshua was already dead. A coroner’s investigation revealed that he likely suffered from a pre-existing myocardial infection that caused him to lose consciousness. He did not die from the myocarditis, but from hypothermia. Given that Joshua worked alone, there was no one around to seek the medical attention he needed. While the exact time of death could not be ascertained by the coroner, it is suspected that Joshua died slowly.
[14] The Plaintiffs allege that but for Norbord’s negligence in failing to respond to Joshua’s missed check-in by 5:00 p.m., Joshua may have been found sooner and his life saved. The Plaintiffs further allege that Norbord’s failure to dispatch proper search and rescue teams placed Greg in a position of having to risk his own life to go into the forest to find his son. The Plaintiffs allege mental injury suffered by each of them as a result of the negligence of the Defendants in failing to respond to Joshua’s missed check-in and otherwise in failing to follow their own safety policies. Particulars of the mental injury claimed are not plead but described as “incalculable”. The Plaintiffs also allege a loss of guidance, care and companionship, for which they claim damages under the FLA.
[15] A Notice of Action was issued on March 21, 2019 and a Statement of Claim on April 23, 2019. Statements of Defence were delivered in October 2019, with Replies to each of the defences delivered October 18, 2019.
[16] Joshua’s widow is in receipt of benefits through the Workplace Safety and Insurance Board (WSIB) of Ontario. Neither Joshua’s widow, nor his estate, are participating in this litigation.
[17] The Defendants have brought a Right to Sue Application pursuant to s. 31 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 (the “Act”) for determination by the WSIB as to whether the Plaintiffs have a right to sue for damages pursuant to s. 61 of the FLA. The Defendants take the position in that application that because Joshua’s death was an accident that occurred in the course of his employment, his right to sue is extinguished by the Act, and therefore the derivative FLA claims have no basis. That application was scheduled to be heard on June 28, 2021. The outcome, if any, as of the date of this decision is not known to me. The Defendants do not seek to strike the FLA claims at this time.
Legal Framework for the Motion:
[18] Rule 21.01(1)(b) of the Rules of Civil Procedure governs the analysis of whether the Plaintiffs’ claims in negligence are tenable.
[19] Rule 21.01(1)(b) gives the court the ability to strike a pleading if it discloses no reasonable cause of action or defence.
[20] Since the only issue on such a motion is the sufficiency of the pleading that is being attacked, no evidence is admissible. Documents pleaded in the Statement of Claim can be considered: Due v. Collings, 2018 ONSC 4003, at para. 10. In this case, those documents have included the coroner’s report, Ministry of Labour investigation report, Ontario Provincial Police death report, WSIB policies, the Right to Sue Statement, and various Norbord documents.
[21] The applicable principles on a Rule 21.01(1)(b) motion are:
(a) The allegations of fact pleaded must be accepted as true;
(b) The moving party must show that it is plain and obvious and beyond doubt that the plaintiff could not succeed if the matter were to proceed to trial;
(c) The plaintiff must plead the necessary legal elements of a recognized cause of action as any omission or an element may render the pleading in error, and indicate that the plaintiff cannot succeed;
(d) The claim should not be struck merely because it is novel; and
(e) The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
See: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; Hunt v. Carey Canada Inc., 1990 90 (SCC) at para. 36; Rausch v. Pickering (City), 2013 ONCA 740, at para. 34; Williams v. Canada, 2009 ONCA 378, [2009] O.J. No. 1819, paras. 10-11; and Brown v. Bell Canada Enterprises, 2015 ONSC 873, 2015 CarswellOnt 2247, paras. 6-7.
[22] The test on a Rule 21.01(1)(b) motion is a stringent one. A claim will only be struck when it has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial. See: R. v. Imperial Tobacco, at para. 17.
[23] 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.
Analysis:
Issue #1: Should the negligence claims be permitted to proceed:
The Positions of the Parties:
[24] In any claim for negligence, the claimant must show that the defendant owed a duty of care to the claimant to avoid the loss alleged; that the defendant breached that duty of care; that the claimant sustained damage; and that such damage was caused, in fact and in law by the defendant’s breach. See: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, aff’g 2006 41807 (ON CA), 84 O.R. (3d) 457, at para. 3.
[25] The issue for determination on this motion is whether there is any reasonable prospect of success of the Plaintiffs demonstrating at trial that the Defendants owed them a duty of care. The Defendants argue that there is not.
[26] While the Defendants acknowledge that they may have owed certain duties to Joshua himself, they argue that their duty of care does not extend to his family members as a recognized duty of care and should not be extended as a novel duty of care. There being no duty of care owing from the Defendants to the Plaintiffs, the Defendants argue that there is no cause of action capable of succeeding and the negligence claims should be struck.
[27] It is undisputed that there is no direct relationship as between the Plaintiffs and the Defendants. Joshua had a relationship with Norbord as its employee.
[28] The Defendants argue that there is no recognized duty of care governing the relationship between the Plaintiffs and the Defendants. There is no recognized duty of care as between an employer and its employee’s family members. There is also no recognized duty of care governing the relationship between an occupier of land on which an employee works (Resolute) and that employee’s family members.
[29] The Plaintiffs argue that other jurisdictions have recognized a duty of care in similar circumstances and this court should also. The Plaintiffs further argue that this case evokes a novel duty of care that should be recognized.
[30] The Plaintiffs argue:
(a) The Defendants owed a duty of care to Joshua. They should have known that their actions in not responding to a missed check-in would have caused concern and distress to the loved ones of their employee.
(b) Norbord’s lack of response caused Joshua’s father, Greg, to go search for him. The Statement of Claim alleges that Norbord’s inaction placed Greg in the position of having to be a first responder or “rescuer”. The position of the “rescuer” was recognized in Wagner v. International Railway Co., 232 N.Y. 176 at 180:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises [sic] them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer.
(c) The duty of care to a rescuer was also recognized by Lord Wilberforce in McLoughlin v. O’Brien, 1983, 1 AC 410, at 419B:
…that the principle of rescuers ought to be accepted. This is a particular instance where the law not only considers that the individual responsible for an accident should foresee that persons will come to the rescue and may be shocked by what they see but also considers it appropriate that he should owe to them a duty of care.
Into the same category, as it seems to me, fall the so called “rescue cases.” It is well established that the defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue and suffer injury in so doing.
(d) While the Plaintiffs Gina (mother) and Miranda (sister) were not rescuers, they argue that their direct and close relationship with Joshua and with Greg, who has been harmed psychologically as a result of having found Joshua, gives rise to a duty of care.
(e) For public policy reasons, the claim should be recognized and is not barred. Firstly, it would be a perverse result if surviving family members were barred from a claim simply because a surviving spouse opted to receive WSIB benefits. Secondly, there is no issue of indeterminate liability. By not responding appropriately to the missed check-in at the end of Joshua’s shift, the Defendants opened the door to the possibility that family members would become involved, and that their duty of care would be expanded accordingly. This was a reasonably foreseeable consequence of their inaction.
(f) The Defendants have escaped liability through police investigations, a coroner’s investigation, WSIB, and a Ministry of Labour investigation. This action is the Plaintiff’s only avenue of redress to hold the Defendants accountable. If the Right to Sue application is granted and if this motion is granted, the Defendants will escape all liability for Joshua’s death and the trauma suffered by Greg in finding him. The court should not permit this injustice.
The Analysis to be Undertaken:
[31] The issue of whether a duty of care is owed focuses on the relationship between the parties. The question to be answered is whether the relationship is so close that one party may reasonably be said to owe a duty to the other to take care not to injure them. Whether such a relationship exists is dependent upon foreseeability and moderated by policy considerations. See: Mustapha v. Culligan, at para. 4, citing Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (H.L.) and Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.).
[32] Quite often, the relationship between the parties is of a nature that has already been recognized by courts as giving rise to a duty of care.
[33] Where the relationship between the plaintiff and defendant is of a type that has already been judicially recognized as giving rise to a duty of care, or is analogous to a recognized duty, a court may usually infer that sufficient proximity is present and that if the risk of injury was foreseeable, a prima facie duty of care will arise. See: Paxton v. Ramji, 2008 ONCA 697 at para. 30 and authorities cited.
[34] If the duty of care alleged has been recognized at law, this ends the inquiry and there is no need to undertake a full-fledged duty of care analysis. See Mustapha v. Culligan, at para. 5.
[35] If no duty of care has been recognized, then this court must determine whether one should be recognized on the circumstances of the case.
[36] In determining whether a duty of care should be recognized, this court must consider the test originally set out in Anns v. Merton London Borough Council, as adopted by the Supreme Court of Canada in various cases, including Cooper v. Hobart, 2001 SCC 79.
[37] If there is no recognized duty of care, the Anns/Cooper analysis involves analyzing whether the harm that occurred was a reasonably foreseeable consequence of the defendant’s act. This involves a proximity analysis that focuses on factors arising from the relationship between a plaintiff and defendant. “Proximity” is a broad concept used to describe the close and direct relationship necessary to conclude that the defendant is under an obligation to be mindful of a plaintiff’s legitimate interests in conducting his or her affairs. See: Cooper v. Hobart, at paras. 29-33.
[38] If foreseeability and proximity are established, then a prima facie duty of care arises.
[39] If a plaintiff is successful in establishing a prima face duty of care, then the question at the next stage of the inquiry is whether there are policy considerations that justify denying imposition of a duty of care. These considerations have nothing to do with the relationship between the parties to the litigation, but rather broader considerations as to the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. See: Cooper v. Hobart, at paras. 37-39.
Application of the Test:
[40] In applying the test, none of the parties have been able to direct me to a recognized duty of care as owed between the Defendants and the Plaintiffs that arises simply because they are family members of an employee who suffered a workplace accident or as family members of someone who died on an occupier’s land.
[41] The Plaintiffs do rely on cases that have recognized a duty of care owed to rescuers, and to family members who witness the aftermath of an accident.
[42] In Joudrey v. Swissair Transport Company, 2004 NSSC 130, Pickup J., reviewed some of the caselaw that has established that a duty of care is owed to rescuers, including Videan v. British Transport Commission [1963] 2 Q.B. 650 (C.A.), adopted by the Surpeme Court of Canada in Corothers v. Slobodian (1974), 1974 187 (SCC), 3 N.R. 184 (S.C.C.). These cases have recognized that if a person, by his fault, creates a situation of peril, then he must answer to any person to attempts to rescue the person in danger. The duty is anchored in foreseeability; the notion that it is reasonably foreseeable that someone may respond to a situation of danger to another.
[43] In Snowball v. Ornge, 2017 ONSC 4601, Faieta J., refused Ornge’s motion under r. 21.01(1)(b) to dismiss the action of family members of a paramedic employee who died in an air crash. In doing so, Faieta J., at para. 16 referenced a number of cases in which claims in negligence for damages for mental injury suffered by a family member following the injury or death of another family member have been allowed. These cases arose from either witnessing the bodily injury or death of their loved one (which is not applicable here), from seeing the aftermath of the accident involving a family member, or from witnessing the accident or death of a stranger that the claimant tried to save or rescue.
[44] As Faieta J., also noted at para. 16, courts have refused to award damages for mental injury to a person who is merely informed of an accident.
[45] The loss of a child is every parent’s worst nightmare. Greg Sigurdson has not only suffered this unimaginable loss, but the trauma of having to go out searching for his son with the hope of rescuing him, only to find him already dead. The duty of care owed to rescuers and family members who witness the aftermath of an accident has been recognized in law in lesser circumstances than these.
[46] The Defendants correctly argue that simply witnessing the death of a family member or the immediate aftermath does not in itself give rise to a duty of care and that a proximity analysis is still required. In this case, based on the “rescuer” line of cases, I find that there was sufficient proximity between Greg and the Defendants (or at the very least, Norbord) for me to conclude that the Defendants have not satisfied their onus of demonstrating that this is a clear case in which there is no reasonable prospect of success for Greg establishing a duty of care.
[47] If I am incorrect in my conclusion based on there being a recognized duty of care owed to Greg, I would similarly find that the Defendants have failed to satisfy their onus with respect to this being a clear case of no reasonable prospect of success in conducting the balance of the Anns/Cooper analysis. I find that a duty of care should be recognized in this case given Greg’s position as a responder/rescuer and also given his relationship to Joshua. If the Defendants failed to send a rescue team as alleged by the Plaintiffs, it was reasonably foreseeable that another individual may respond and find Joshua on the lands occupied by the Defendants. There is sufficient locational proximity to give rise to a duty of care. The Defendants public policy arguments as set out below do not apply to this limited class of individual, namely someone who responded to there being a missing employee on their lands and who encountered the aftermath of the accident.
[48] My findings are different with respect to Miranda and Gina. The arguments of a duty of care owed by the Defendants to Miranda and Gina rest solely on the fact that they are family members of the deceased, Joshua, and of the rescuer, Greg. As indicated earlier in this decision, none of the parties could point me to a recognized duty of care owed to family members in these circumstances. In fact, the Defendants have pointed me to a body of law that suggests there is no duty of care owed to an individual simply because they are a family member of someone who suffered harm as a result of negligence. While these cases involve different facts, they are illustrative of the Defendants’ arguments with respect to proximity and family members. See: Wawrzyniak v. Livingstone, 2019 ONSC 4900; Nguyen v. Dam, 2019 ONSC 2614; C.R. v. Her Majesty in Right of Ontario, aff’d at 2020 ONCA 198, leave to appeal dismissed 2020 74015 (SCC); Connelly v. Toronto (Police Services Board), 2018 ONCA 368; Meekis v. Ontario (AG), 2019 ONSC 2370.
[49] There is no doubt that Gina and Miranda have also suffered a horrific loss. As much as I am sympathetic to their loss, I cannot find that a duty of care should be recognized as having been owed by the Defendants to them.
[50] The difficulty with Gina and Miranda’s claim is in the proximity and public policy analysis. As the Defendants point out, assessing proximity in the duty of care analysis entails asking whether the parties are in such a “close and direct” relationship that it would be “just and fair having regard to that relationship to impose a duty of care in law”. See: Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, at para. 25.
[51] The relationship between the alleged tortfeasor and the victim must be “of such nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs”. See: Saadati v. Moorhead, at para. 24.
[52] In the present case there is no direct relationship between Gina and Miranda and the Defendants. The only connection is through Joshua as the deceased and Greg as rescuer/witness to the aftermath. Their relationships are also not close enough to give rise to an obligation to be mindful of their interests.
[53] The Plaintiffs argue that the Defendants’ overlapping Sustainable Forest License may give rise to duties under the OHSA. While that may be the case, those duties are owed to the employees of the Defendants and not to their family members. The Supreme Court of Canada has recognized in the context of a different statute, that a statute designed to protect the interests of one person cannot be relied upon for a finding of relationship of proximity to another. See: OHSA, s. 24, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, at para. 46.
[54] Even if sufficient proximity could be found as between Gina and Miranda and the Defendants, public policy considerations militate against recognizing a duty of care in these circumstances. The Defendants argue that such a finding would lead to issues of indeterminate liability. I agree.
[55] Indeterminate liability can arise in three forms:
(a) Value indeterminacy (liability in an indeterminate amount);
(b) Temporal indeterminacy (liability for an indeterminate time); and
(c) Claimant indeterminacy (liability to an indeterminate class).
See: Deloitte v. Livent, at para. 43.
[56] The concern raised by the negligence claims of Gina and Miranda relate to claimant indeterminacy. If an employer such as Norbord owed a duty of care to every sufficiently close family member of its employees, it would lose meaningful control over the class of potential plaintiffs who may bring a claim against it. It would be impossible for Norbord to even know who it owed a duty to, as this would require contemplation of how many family members have close ties to each of its employees. Conceivably, this could extend to extended family members such as aunt, uncles, cousins, grandparents and others, depending on the circumstances of the individual employee. It could extend to close personal friends who are closer to the injured or deceased victim than their extended family members. There is also the risk of a duty of care being imposed towards family members who may appear close in class (i.e. sibling), but who in fact have no close relationship to the employee. The potential for liability becomes unwieldy.
[57] A similar argument arises with respect to the Defendants as occupiers and holders of the Sustainable Forest License. Furthermore, the Legislature has contemplated the duties of the Defendants under the Occupiers’ Liability Act, R.S.O. 1990, c.O.2 and the OHSA, but did not see fit to extend these statutory duties to family members. What the Legislature has contemplated for family members are claims under s. 61 of the FLA.
[58] The Plaintiffs argue that their claims under the FLA may not be permitted to proceed once the Defendants’ application is determined, and if their action is struck by this court, they will have no recourse to find the answers they so desperately seek to explain what happened to Joshua and why, and to ensure accountability for his death. While again, I am deeply sympathetic to their loss and their need for answers and accountability, the public policy reasons militating against recognizing such a novel duty of care outweigh those in favour.
[59] The Plaintiffs also argue that the Defendants should not be permitted to rely on the concept of indeterminate liability because, but for their own negligence, the door to indeterminate liability would not have been opened. This argument could be made in every case in which the issue of indeterminate liability is raised as a public policy consideration. Negligence alone should not open the gates to liability to those who could not have been reasonably foreseen as suffering harm.
[60] For the foregoing reasons I find that there is no recognized duty of care applicable to Gina and Miranda and I am satisfied that there is no reasonable prospect of success with respect to Gina and Miranda’s arguments in establishing a novel duty of care on the circumstances of this case.
Issue #2 – Should the Motion be Dismissed for Delay:
[61] The Defendants argue that the motion should be dismissed under Rule 21.02 for delay.
[62] Rule 21.02 requires that a motion under Rule 21.01 be made promptly, and a failure to do so may be taken into account by the court in awarding costs.
[63] In Fleet Street Financial corp. v. Levinson (2003), 2003 CarswellOnt 373, [2003] O.J. No. 441 (S.C.J.), the court held that delay in bringing a rule 21 motion is a sufficient ground to dismiss the motion, and not merely a matter affecting costs.
[64] The rule is discretionary. While I recognize that there has been a lengthy period of time between the close of pleadings and the bringing of this motion, which neither party has explained, the case has not gone past the pleadings stage. This motion will have the effect of summarily determining the negligence claims of Gina and Miranda on a final basis. I also recognize that in the months following the close of pleadings the global pandemic was declared, and the parties have also been awaiting a hearing of the WSIB application. In these circumstances, I decline to exercise my discretion in favour of dismissing the motion for delay.
Issue #3 - Striking the Plaintiffs’ Pleadings under Rule 25.11:
[65] The Plaintiffs’ pleadings are problematic as currently drafted and do not satisfy the rules of pleadings. The Statement of Claim and Replies frequently plead evidence as opposed to material facts, contains irrelevancies, plead caselaw, and contain argument.
[66] 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).
[67] 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.
[68] 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.
[69] A pleading will be struck in whole or part for violation of these rules.
[70] In addition to Rule 21, Rule 25 governs pleadings and the striking of pleadings. Specifically, as pointed out above, Rule 25.11 gives the court jurisdiction to strike all or part of a pleading, either with or without leave to amend.
[71] Attached as Schedule “A” is the Defendants’ chart of the Plaintiffs’ pleadings and the basis for striking each paragraph.
[72] Given my decision with respect to the striking of Gina and Miranda’s negligence claims, and in light of the numerous problematic paragraphs, I find that the pleadings are too difficult to salvage as is, and should be struck in their entirety, with leave to amend granted to plead Greg’s negligence claims and the FLA claims. I agree with the position of the Defendants with respect to the various paragraphs or portions of paragraphs in dispute in the Statement of Claim and Replies except for the following portions of the Statement of Claim:
(a) Paragraph 17: It is acceptable to plead that the coroner concluded that Joshua died slowly as a result of hyopthermia. This is a material fact. The coroner’s report is evidence and is not properly part of the pleading.
(b) Paragraph 19: The Defendants acknowledged at the hearing of the motion that this paragraph may remain.
(c) Paragraph 42: The reference to the Norboard Emergency Response Plan and the fact that it incorporates hyothermia and cardiac heart conditions as those warranting quick evacuation may be plead. The balance is argumentative and not permitted in a pleading.
(d) Paragraphs 45 and 46: The danger that Joshua, and Greg as his rescuer were placed in as a result of the alleged negligence may be plead, but the Charter of Rights and Freedoms should not be plead. It is not applicable.
(e) Paragraph 51: The fact that no standby helicopter or search and rescue team was deployed, and no RCMP call was made, may be plead. The balance of the paragraph is argumentative.
(f) Paragraphs 58 and 59: These paragraphs cannot stand as drafted, but Greg may plead mental injury arising out of the alleged negligence, and any necessary material facts to establish this claim, including that a duty of care was owed to him that was breached, and the nature of the damages suffered.
(g) Paragraphs 60(k) and (v) are acceptable.
(h) Paragraph 61 is acceptable.
(i) Paragraph 64 contains material facts, but currently as plead is argumentative.
(j) Paragraph 68 last sentence was agreed to be left in the pleading by the Defendants at the argument of this matter.
[73] If there is any dispute as to whether the Plaintiffs’ new pleadings (Statement of Claim and/or Replies) comply with the rules of pleading, then this matter shall be brought back before me for determination.
Order:
[74] In light of the foregoing it is ordered that the Statement of Claim and Replies of the Plaintiffs be struck, with leave to amend to plead Greg’s claim for damages related to negligence and the FLA claims.
[75] If the parties cannot agree on costs:
(a) The party claiming costs shall serve and file written submissions within 30 days of the date of this decision, limited to 5 pages, double-spaced excluding attached Bill of Costs, caselaw and any other necessary documents to support their claim, failing which costs shall be deemed to have been settled.
(b) The responding party shall serve and file a response within 30 days of receipt of the written submissions claiming costs, with the response similarly limited to five pages, double-spaced, excluding attachments.
(c) A reply may be delivered within 15 days of receipt of the response, limited to two pages, excluding attachments.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: July 23, 2021
COURT FILE NO.: CV-19-007-00
DATE: 2021-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Greg Sigurdson, Gina Sigurdson, and Miranda Sigurdson
Plaintiffs
- and -
Norbord Inc. and Resolute FP Canada Inc.
Defendants
DECISION ON MOTION
Nieckarz J.
Released: July 23, 2021