Li v. Michaud et al, 2021 ONSC 8143

COURT FILE NO.: CV-19-00081365-0000

MOTION HEARD: August 04, 2021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

HUI LING LI

Plaintiff

v.

DENIS MICHAUD, DEAN MICHAUD, 8443971 CANADA CORPORATION and 2336789 ONTARIO INC.

Defendants

BEFORE: Associate Justice M. Fortier

COUNSEL: Hui Ling Li, Self-Represented Plaintiff

J.F. Lalonde, for the Defendants

ENDORSEMENT

[1] This is a motion by the defendants for an order permitting them to amend their Statement of Defence pursuant to Rule 26 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 (“the Rules”). The plaintiff opposes the motion.

[2] For ease of reference, the draft amended statement of defence is appended to this endorsement as Schedule “A”.

Background

[3] The defendants are land developers who purchased and developed the property adjacent to the plaintiff’s property in the City of Ottawa. They built a small apartment building on the property between September 2017 and June 2018.

[4] There was a large maple tree (“the tree”) that straddled the property line. The defendants removed the roots of the maple tree that were located on their side of the property line during excavation as well as cut all the branches on their side of the property line to erect the apartment building. Following the removal of the roots and the cutting of the branches, the tree was declared dangerous and had to be removed.

[5] The plaintiff is a self-represented party. She is seeking special, general, punitive, and aggravated damages against the defendants related to the destruction/loss of the tree. The plaintiff is also seeking general damages for the stress caused by the defendants’ conduct.

[6] The plaintiff brought this action under the simplified procedure pursuant to Rule 76 of the Rules in September 2019. Aside from a motion for summary judgment brought by the defendants and dismissed by Justice Roger in March 2021, this matter has not moved beyond the exchange of pleadings and affidavits of documents. Examinations for discovery have yet to take place.

[7] The statement of claim was issued on September 10, 2019. The statement of defence was delivered on October 9, 2019 and a reply was delivered on October 24, 2019.

[8] This is a high conflict matter, necessitating a number of case conferences to date.

The Motion

[9] The defendants seek to amend their statement of defence to:

a) correct factual errors that were contained in the original statement of defence;

b) clarify defences that have been pleaded and to add particulars; and

c) plead new defences.

[10] The defendants are seeking to amend 7 paragraphs of their statement of defence and to add 27 new paragraphs.

[11] The plaintiff opposes the amendments on the basis that the amendments:

a) are an attempt by the defendants to withdraw admissions;

b) will cause non-compensable prejudice to the plaintiff because of the alleged expiry of a limitation period;

c) are an attempt by the defendants to avoid production;

d) will cause non-compensable prejudice to the plaintiff because of the lengthy and unjustified delays in seeking the amendments;

e) are untenable, lack particulars and would have been struck if originally pleaded; and

f) contain allegations that form part of a separate Small Claims Court proceeding by the defendants against the plaintiff. Accordingly, there are a multiplicity of proceedings dealing with the same allegations.

The Law

[12] Motions for leave to amend a pleading are governed by Rule 26.01 of the Rules of Civil Procedure, which provides:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[13] The general principles regarding pleading amendments may be summarized as follows:

a) Rule 26 requires the court to grant leave to amend unless:

• the responding party would suffer non-compensable prejudice;
• the amended pleadings are scandalous, frivolous vexatious or an abuse of the court’s process; or
• the pleading is untenable in law.[^1]

b) The onus to prove actual prejudice lies with the responding party.[^2]

c) The onus to rebut presumed prejudice lies with the moving party.[^3]

d) The court should not engage in a factual examination of the merits on pleadings or weigh evidence on amendment motions; in the absence of irremediable prejudice, amendments are to be granted unless the amended pleading is clearly impossible of success.[^4]

e) The court is not to concern itself with the credibility of the case presented by the party seeking an amendment nor whether the amending party is able to prove the amended pleading. The court must assume the facts pleaded in the proposed amendment are true. The only question is whether they disclose a tenable cause of action.[^5]

f) Amendments are to be read generously with allowance for deficiencies in drafting.[^6]

g) The amendment may be permitted at any stage of the action.

h) The prejudice must flow from the amendments and not from some other source.[^7]

i) The non-compensable prejudice may be actual prejudice, meaning evidence that the opposing party has lost an opportunity in the litigation that cannot be compensated due to the amendment. Specific details must be provided where such prejudice is alleged.[^8]

j) Prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial does not equate to non-compensable prejudice.[^9]

k) While delay is not in and of itself a basis for refusing an amendment, where delay in seeking an amendment is so lengthy and the justification so inadequate, prejudice to the responding party may be presumed.[^10]

[14] As Flynn J. stated in Sleep Clinic London Inc. v. Merchea: [^11]

22. Long gone are the days when pleadings motions could 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 that the Rules of pleadings are not violently offended and there is no prejudice to the other side.

Analysis and disposition

Withdrawal of Admissions (paragraphs 6, 12, 16)

[15] One of the most contentious issues on this motion has to do with the location of the maple tree.

[16] It is the defendants’ evidence that at the time of filing the statement of defence, they were under the impression that the tree was located on the plaintiff’s property and this was reflected in paragraphs 6, 12, 16 of their statement of defence. However, since the filing of the statement of defence and following the motion for summary judgment, a more in-depth investigation was undertaken by and on behalf of the defendants, which disclosed the tree’s encroachment on the defendants’ property. This investigation was said to have included interviewing witnesses, receipt of additional records and photographs, Google views, registry documents, architect drawings, and a surveyor’s report.

[17] The defendants now seek to correct those paragraphs of the statement of defence that state that the tree was located on the plaintiff’s property. For example, the defendants seek to amend paragraph 6 of the statement of defence by pleading that the maple tree was located on the parties’ property line rather than solely on the plaintiff’s property. In addition, at paragraph 26 of the amended statement of defence the defendants indicate that “As it was believed at the time that the trunk and remaining branches of the maple tree was on the plaintiff’s property, it was understood that the plaintiff she may be was solely responsible for its removal”.

[18] The plaintiff contends that it is the first time that the defendants are alleging that the tree is not on her property; it has always been understood in the dealings between the parties with respect to the tree, prior to and after the commencement of the action, that the tree was located on the plaintiff’s property.

[19] The plaintiff argues that the amendments dealing with the location of the tree should not be permitted because they involve a “withdrawal of the admission” that the tree was located solely on the plaintiff’s property thereby making it a boundary tree. The plaintiff argues that this withdrawal of admission is a wrongful attempt by the defendants to defeat the plaintiff’s claim for damages for destroying the tree and damages for trespass.

[20] The defendants argue that the statements in paragraphs 6, 12 and 16 of the statement of defence, that the tree was on the plaintiff’s property, should not be characterized as admissions. Rather, the defendants submit that these were ‘mis-pleadings’ and the result of words inadvertently chosen in the pleading based on a lack of understanding of the true facts at the time of drafting. Further, the defendants argue that it was never the defendants’ intention to deliberately concede that the entire tree was located on the plaintiff’s property.

[21] Withdrawals of admissions are governed by Rule 51.05 of the Rules of Civil Procedure which provides:

51.05 An admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.

[22] An admission must be an unambiguous, intentional concession to the opposing party and not merely the result of the words chosen in the pleading.[^12] Further, there is nothing in rule 51.05 which supports the concept of an inadvertent admission.[^13]

[23] I do not accept that the impugned paragraphs of the statement of defence dealing with the location of the tree were admissions within the meaning of Rule 51.05. In my view, the paragraphs were not an unambiguous, intentional concession to the plaintiff. Rather, in my opinion, they were mis-pleadings based on information that they relied upon when drafting their statement of defence. As a result of further investigations, the defendants have formed the view that the location of the tree may not have been accurately described in their statement of defence. As stated by Master MacLeod (as he was then) in Hughes v. Toronto Dominion Bank, 2002 CarswellOnt 1544, [2002] O.J. No. 2145 at para 9:

In a perfect world, all documents would be reviewed, and all witnesses interviewed before the pleadings were crafted but that is not the reality of practice. The governing principle of our rules as set out in Rule 1.04(1) is not furthered if parties are not allowed to correct mistakes in pleading if a full exploration of the facts and documents reveals them.

[24] Although the amendments sought by the defendants related to the location of the tree come as an unwelcome surprise to the plaintiff and may create certain challenges for her at trial, I am not satisfied, based on the evidence before me, that the plaintiff will suffer non-compensable prejudice if these amendments are granted. The courts have held that non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial.[^14] Trial fairness is promoted by permitting the parties to accurately plead the case that they propose to prove at trial. Accordingly, I am required pursuant to Rule 26.01, to grant the amendments to paragraphs 6, 12 and 16 (now paragraph 26 of the proposed amended statement of defence).

Expiry of Limitation Period

[25] The defendants seek to amend paragraph 13 of the statement of defence (paragraph 19 of the amended statement of defence) and to add paragraphs 20 and 21 by pleading that the cutting of the roots and branches of the tree was done by a subtrade.

[26] Paragraph 13 of the statement of defence at present simply states that “the defendants had branches of the maple tree removed …” The defendants submit that the amendments are requested to provide further particulars.

[27] The defendants also seek to amend the statement of defence by adding paragraphs 34, 35 and 36 to plead that the defendants are not vicariously liable for the actions of their subtrades in answer to the plaintiff’s allegations of nuisance and trespass in her statement of claim.

[28] The plaintiff argues that she will suffer non-compensable prejudice as a result of these amendments, stating that she no longer can pursue a claim against the subtrades, sub-contractors or utilities staff as the limitation period has now expired. She also argues that the amendments are ‘untenable, incapable of proof and contrary to the facts’.

[29] The defendants are entitled to raise a legally tenable defence to a claim that is asserted against them. My task on this pleadings’ amendment motion is not to engage in the factual examination of the merits but rather to assess whether the amendments raise a tenable defence; whether the defence will ultimately be successful is left to the trial judge. In my view, the defendants raise an arguable defence and any prejudice resulting from the potential success of the defendants’ plea does not equate to non-compensable prejudice.

[30] I am not persuaded that there is a limitations issue that properly arises in the circumstances.

[31] For these reasons these amendments are granted.

Avoiding Production

[32] Another contentious amendment is the removal of the word “video” from paragraph 14 of the statement of defence (paragraph 22 of the amended statement of defence).

[33] The defendants stated in paragraph 14 of their statement of defence: “As the tree branch removal was expected to be contentious, the defendants adequately documented the process using photographs and video”.

[34] It is the defendants’ submission that there is no video of the process of the tree branch removal and its inclusion in the statement of defence was an error. There was only one video, and it has been produced. The defendants have also produced affidavits confirming that there are no further videos; they have also offered to produce their cell phones to the plaintiff for inspection by a forensic engineer. The plaintiff declined the offer.

[35] The plaintiff served a request to inspect documents, which included the video. The plaintiff argues that the defendants are now attempting to avoid the production of the video by amending the statement of defence to delete a reference to the video.

[36] It is correct that a party cannot defeat the request to inspect documents by amending its pleadings to delete any reference to the document, where the opposing party has served a request to admit; the party’s entitlement to inspect the document “crystallizes” as soon as the request is served.[^15] Of course, that implies that the document actually exists. The subject whether such a video exists, or other issues related to the video is a legitimate area of enquiry on discovery.

[37] On this motion, I cannot concern myself with the defendants’ credibility with respect to an amendment. I must assume the facts pleaded in the proposed amendment are true. The defendants’ evidence is that the reference to a video in the statement of defence was made in error and they are seeking to correct the error. They are entitled to do so. Accordingly, the amendment is allowed.

Delay

[38] The plaintiff argues that she is prejudiced by the defendants’ lengthy and unjustified delay in bringing their pleadings amendment motion, and therefore the amendments should be denied.

[39] Amendments may be permitted at any stage of the action, including at trial. This action has yet to proceed to discoveries. Even if I did find that there had been delay in bringing the pleadings amendment motion, which I do not, delay is not in itself a basis for refusing an amendment.

Particulars

[40] The defendants submit that paragraphs 13-18, 23, 24, 29-33, 40, 44, and 45 were added to the amended statement of defence to provide particulars.

[41] The defendants also seek to amend the statement of defence by adding paragraphs 37, 38 and 39 to raise the “crumbling skull” defence, to plead that the plaintiff is predisposed to “exceptional susceptibility to mental stress” or in the alternative to plead that the plaintiff is exaggerating her claims that the defendants’ conduct caused her emotional and mental torment.

[42] The plaintiff opposes the amendments claiming that the amendments contain argument and speculation, are not supported by the facts, and are not tenable.

[43] Based on the record and pleadings, I am not prepared to draw these conclusions. In my view, the defendants are allowed to a generous reading of paragraphs 13-18, 23, 24, 29-33, 37-40, 44 and 45 of the amended statement of defence, with allowances for drafting deficiencies and the latitude to draft the amended statement of defence as they see fit. I am to assume that the facts pleaded in the proposed amendments are true, unless ridiculous or incapable of proof, which is not the case. Most significantly, the additional paragraphs appear to fall within the bounds of relevancy. The amendments are therefore granted.

Defamation

[44] Paragraphs 41 and 42 of the defendants’ amended statement of defence allege that the plaintiff engaged in a ‘very public defamatory campaign’ against the defendants.

[45] The plaintiff argues that the paragraphs do not contain particulars of the alleged defamation and should not be allowed. The plaintiff contends that there are no particulars of the impugned statements made by her, to whom the statements were made or the particulars of the ascribed meanings of the alleged statements. Moreover, the defendants have brought a Small Claims Court action against her for damages for defamation; if the allegation of defamation is allowed to stand in the present case, the plaintiff asserts that there is a risk of inconsistent findings between the two proceedings.

[46] The impugned paragraphs are as follows:

41. The defendants further state that on or about February 10, 2018, when the plaintiff determined that she was not going to secure the amount of compensation that she desired to obtain from the defendant owner, she engaged in a very public defamatory campaign against the defendants to members of the public, including staff members of the City of Ottawa, staff members of politicians, and members of the Ottawa Police Service.

42. The plaintiff went so far as to try and convince the City of Ottawa to issue Stop Work Orders, Orders to Comply, and Orders to Demolish against the owner of 41 Concord. She defamed the defendants in calling them “abusive”, “immoral”, “bullies”, “law breaking”, “liars”, “dirty”, and “corrupt” to staff members of the City of Ottawa, politicians, and the Ottawa Police.

[47] I am of the view that the defendants’ allegations are inappropriate and should not be allowed. This would be a potential abuse of process. It is also unclear as to what relevance this may have to the property issues pertaining to the tree which is the subject matter of the action. The relevance of these two pleadings is difficult to appreciate. I consider these two paragraphs to be vexatious and therefore refuse leave to amend with respect to them.

Bad Faith

[48] In paragraph 43 of their amended statement of their amended statement of defence, the defendants simply state:

43. The plaintiff’s conduct was in bad faith

[49] The plaintiff opposes this amendment as it is a bald statement without any particulars. The plaintiff does not know if the defendants are claiming that the alleged defaming conduct is in bad faith, or if they are referring to other conduct.

[50] Bad faith is a legal conclusion and can be made out in a wide variety of circumstances. However, the pleading must be supported by sufficient particulars that support a conclusion of bad faith and identify the conduct on which this conclusion is put forward. Using the words “bad faith” or “unfair” in a pleading is not enough. As stated by Master McGraw in the recent case of Hillsborough[^16]:

[23] The term bad faith is a legal conclusion which cannot be pleaded without sufficient particulars. As explained by Spence J. in Deep v. Ontario, [2004] O.J. No. 2734:

“Bad faith is a legal conclusion. It has been held to involve an allegation of an intent to deceive or to make someone believe what is false. It has been said to be equivalent to an allegation of dishonesty. Where a plaintiff’s claim includes an allegation of bad faith, the pleading must be supported by sufficient particulars that support a legal conclusion of bad faith. If it does not, the pleading should be struck”[^17].

[24] Pleading bad faith also engages Rule 25.06(8) which provides that where fraud, misrepresentation, breach of trust, malice or intent are alleged, the pleading shall contain full particulars. In my view, in addition to the confusion with respect to what causes of action the Defendants are advancing, they have not pleaded sufficient particulars in support of a claim for bad faith. While some particulars appear to be present, even on a generous reading with allowances for drafting deficiencies, it remains unclear.

[51] As stated above, bad faith is a legal conclusion that requires sufficient particulars when pleaded, otherwise the pleading will fail. In the present case, there is an absence of adequate particulars in support of the defendants’ claim for bad faith. Accordingly, the amendment is denied.

Corrections

[52] There are a series of typographical and/or drafting errors (e.g. paragraphs 19 and 39) in the amended statement of defence which appears to reflect a lack of diligence on the defendants’ part in proofreading their proposed amendments. I will grant leave to the defendants to correct these particulars.

[53] The defendants are also granted leave to correct errors in paragraphs 10 and 15 of the statement of defence as proposed in paragraphs 10 and 25 of the amended statement of defence.

Disposition and costs

[54] The defendants’ motion to amend its statement of defence is allowed in part as outlined in these reasons.

[55] The defendants shall deliver an amended statement of defence, in accordance with these reasons, within 30 days. The plaintiff may deliver an amended reply, if so advised, within 30 days of receipt of the amended statement of defence.

[56] The amendments sought here are the results of a lack of diligence on the part of the defendants in relation to the preparation of their original statement of defence. I exercise my discretion to deny costs to the defendants.

Associate Justice M. Fortier

DATE: December 10, 2021

Court File No. CV-19-00081365-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HUI LING LI

Plaintiff

and

DENIS MICHAUD, DEAN MICHAUD, 8443971 CANADA CORPORATION and 2336789 ONTARIO INC.

Defendants

AMENDED STATEMENT OF DEFENCE OF THE DEFENDANTS DENIS MICHAUD, DEAN MICHAUD, 8443971 CANADA CORPORATION and 2336789 ONTARIO INC.

1. The defendants admit none of the allegations contained in any of the paragraphs of the Statement of Claim.

2. The defendants deny and/or have no knowledge of the allegations contained in paragraphs 1 through 101 of the Statement of Claim.

3. The defendant 8443971 Canada Corporation (“8443971”) is a federal corporation and the registered owner of the property known municipally as 41 Concord Street, Ottawa, Ontario (“Subject Property”). 8443971 carries on business as a property investment firm.

4. The defendant 2336789 Ontario Inc. (“2336789”) is a management company that provides, inter alia, property and construction management services.

5. The defendants, Denis Michaud and Dean Michaud are directors, officers and shareholders of both 8443971 and 2336789.

6. The plaintiff is the owner of the property known municipally as 5 Montcalm Street, Ottawa, Ontario. The plaintiff’s property abuts the Subject Property. The maple tree, which is the subject of this action, was located solely on the plaintiff’s parties’ property line.

7. On or about May 2, 2016 the defendant 8443971 purchased the Subject Property for the proposes of a residential development.

8. In or about May 2016, 8443971 entered into a service agreement with 2236789 for the management of the planned construction at the Subject Property which consisted of the demolition of the existing structure and for the construction of a 3 story, 12-unit rental apartment building.

9. At all material times the defendants complied with the applicable laws and by-laws of the City of Ottawa with respect to the construction at the Subject Property.

10. The defendants received notice on or about August 4, 2017 that the City of Ottawa had approved the Site Plan Control Application for the development of the Subject Property. The defendants entered into a Site Plan Agreement with the City of Ottawa on September 1, 2017 August 4, 2017.

11. The Site Plan Agreement included various standards and specifications including with respect to the retention and protection of existing trees.

12. At all material times the defendants acted in accordance with the approved Site Plan Agreement, which contemplated the possibility of included the removal of branches of the maple tree located on the plaintiff’s property.

13. The plaintiff’s backyard abuts the southern boundary of the defendant’s property. The plaintiff’s backyard was not fenced-in before, during, or after construction.

14. In September 2017, the defendant, 8443971 began excavation work at 41 Concord. The excavation work required the pruning of the tree’s roots on the defendant’s side of the property line. All of the roots that were pruned were located entirely on 8443971’s side of the property line (on 41 Concord Street). The roots were also pruned in accordance with the Tree Construction Report commissioned by the defendants and with strict adherence to the terms of the Site Plan Agreement, which included, but not limited to, taking root protection during excavation work, putting wax on the tree roots, applying burlap protection membrane, plastic membrane, and ensuring adequate water supply.

15. The maple was fairly large with a tree diameter of 0.6 metres at 1.2 metres above grade. At grade level, the centre of tree was located 0.2 metres south of the property line between 41 Concord Street and 5 Montcalm Street. The north edge of the tree encroached 0.1 metres onto 41 Concord Street, with the remainder of the tree on 5 Montcalm Street.

16. The tree also slanted to the north with the result that approximately half of the tree’s canopy was located in the airspace of 41 Concord Street.

17. The location of some of the tree’s branches, and canopy was such that it interfered with the construction of the southern lateral wall of the new building.

18. The construction of the building was done with strict adherence to the terms of the Site Plan Agreement.

19. On or about November 3, 2017, the defendants it became obvious that the tree would interfere with the construction of the southern lateral wall of the new building and a subtrade of the defendant 2336789, had certain branches of the maple tree removed in accordance with the Tree Construction Report commissioned by the defendants and with strict adherence to the City of Ottawa’s Urban Tree Conservation By-law including, but not limited to, taking prescribed root protection measures during excavation work, putting was on the tree branch stumps tree roots and ensuring adequate water supply.

20. All roots and branches pruned by the subtrade were located on the north side of the property line and onto 41 Concord Street.

21. The pruning activities of the tradesmen were conducted entirely on the defendant’s property and at no time did any of the defendants or tradesmen enter onto the lands or airspace of the plaintiff.

22. The defendants were aware that the plaintiff was unhappy with the ongoing construction, despite that all construction was carried out in accordance of the approved Site Plan Agreement. As the tree branch removal was expected to be contentious, t The defendants adequately documented the process using photographs and video.

23. The pruning of the tree roots and branches was conducted entirely on the defendant’s side of the property line.

24. The defendants further plead that at common law, an owner of land is entitled to cut branches or roots of a neighbour’s tree, which extend over the property line, even if it proves fatal to the tree.

25. The plaintiff, unhappy with the maple tree branch removal, reported the alleged maple tree damage to the City of Ottawa in or about February 2018 and it was determined on March 9, 2018 that the maple tree needed to be removed.

26. As it was believed at the time that the trunk and remaining branches of the maple tree was on the plaintiff’s property, it was understood that the plaintiff she may be was solely responsible for its removal. However, the defendants offered to remove the maple tree, at their expense, provided that the plaintiff sign a release consent form allowing the defendant’s agent to access her property in order to remove the tree. The plaintiff refused.

27. At the request of the Plaintiff, in or about late June 2018 the maple tree was removed by the City of Ottawa at its own expense.

28. With respect to the allegations made against any of the defendants, regarding alleged trickery, dishonesty, abuse, power imbalance, mental torment, nuisance, loss of enjoyment, trespass, and damages, these defendants deny any allegations and put the plaintiff to the strict proof thereof.

29. The defendants state that during the period of July 17, 2017 to February 10, 2018, the plaintiff expressly or implicitly consented to any acts of entry by the defendants, or the subcontractors, or the utilities, unto the lands of her backyard, which said alleged acts of entry are not admitted but denied.

30. During the period between July 17, 2017 and February 10, 2018, the parties were also in discussions about the construction activities including the maple tree and its potential removal. The defendants were also discussing with the plaintiff the potential of obtaining a temporary one metre easement along the plaintiff’s northern boundary line in order to facilitate the installation of scaffolding.

31. On February 10, 2018, the plaintiff having realised that the defendants were not prepared to provide her with the amount of compensation that she insisted on and the length of fence that she insisted on, revoked in writing her consent for the use of her backyard (not that the defendants had been using it) and advised the defendants that she would not enter into any agreements with the defendant owner.

32. The defendants found a solution for the construction of the lateral wall that did not require the use of the plaintiff’s backyard and never entered onto her property before or after February 10, 2018.

33. As of February 10, 2018, the plaintiff became extremely difficult to deal with. She confronted the staff of utilities and subcontractors that were onsite. She called the police to complain about the construction activities. She contacted City of Ottawa staff members and requested that they issue Stop Work Orders, Orders to Comply, and Orders to Demolish. She contacted the offices of politicians and complained about the defendants and their construction activities.

34. With respect to the allegations of nuisance and trespass, the defendants specifically deny having committed any nuisance or trespass. If any aspect of the plaintiff’s property was used or accessed during construction, which is denied, such use or access was consented to, trivial, and done by staff members of utility companies such as Hydro Ottawa, Enbridge, or the City of Ottawa, and/or members of companies or businesses that sub-contracted with the defendant 2336789 Ontario Inc, including H. Ken Brown Excavation, for certain aspects of the construction work that related to the development at 41 Concord Street.

35. The defendants further plead that those individuals that have allegedly used or accessed the plaintiff’s backyard had a legal right to do so by means of easements, road cut permits, permits, and other legal means.

36. The defendants further plead that none of them are in any way responsible at law for the conduct of utility services and/or sub contractors, and specifically plead that the doctrine of vicarious liability or other doctrines of liability do not apply to any of the defendants.

37. The defendants further plead that the plaintiff is predisposed to “exceptional susceptibility to mental stress” or other mental health conditions such that it would be unreasonable to require the defendants to have in contemplation the possibility of harm to her, or to expect the defendants to take such care to avoid such harm.

38. The defendants specifically plead the crumbling skull rule and state that they are not liable in damages for the effects of the plaintiff’s medical conditions, which she would have experienced anyway.

39. In the alternative, the defendants plead that the plaintiff is exaggerating or faking her claims of alleged “mental torment” and other alleged mental or psychiatric injury, and that she is doing so for financial gain. The plaintiff specifically puts the plaintiff to the strict proof of her alleged mental distress and psychiatric injury.

40. The defendants further plead that the plaintiff was unreasonable and indecent in her dealings with the defendants in that she attempted to leverage the unfortunate loss of the maple tree to obtain excessive financial compensation, excessive new landscaping, and an excessively long new fence from the defendant owner. While the defendant owner was prepared and did in fact offer compensation in the form of a new tree, new landscaping, and a new fence along the boundary line, these offers were rejected by the plaintiff. The plaintiff’s refusals were unreasonable in the circumstances.

41. The defendants further state that on or about February 10, 2018, when the plaintiff determined that she was not going to secure the amount of compensation that she desired to obtain from the defendant owner, she engaged in a very public defamatory campaign against the defendants to members of the public, including staff members of the City of Ottawa, staff members of politicians, and members of the Ottawa Police Service.

42. The plaintiff went so far as to try and convince the City of Ottawa to issue Stop Work Orders, Orders to Comply, and Orders to Demolish against the owner of 41 Concord. She defamed the defendants in calling them “abusive”, “immoral”, “bullies”, “law breaking”, “liars”, “dirty”, and “corrupt” to staff members of the City of Ottawa, politicians, and the Ottawa Police.

43. The plaintiff’s conduct was in bad faith.

44. The defendant’s construction of the development at 41 Concord passed all City of Ottawa inspections and an Occupancy Permit was issued on June 15, 2018, at which point the construction activities were complete.

45. The defendants deny any nuisance as a result of their personal activities, or those of the utilities and/or tradesmen, for which they are not liable at law anyway. If the construction activities did in fact cause a nuisance, such nuisance was not substantial and did not unreasonably interfere with the plaintiff’s enjoyment of land. The defendants plead the further particulars:

(a) The plaintiff is excessively delicate;

(b) The plaintiff’s sensitivities are excessive;

(c) The plaintiff is exaggerating the alleged nuisance;

(d) The property is located in an area that is zoned for urban densification;

(e) The defendants’ development activities were useful

(f) The defendants’ construction activities were conducted in a professional and thoughtful manner keeping in mind those affected by said activities; and

(g) The nature and the purpose of the defendants’ conduct was reasonable.

46. The defendants deny that any of them owed a duty of care to the plaintiff.

47. If any of the defendants owed a duty of care to the plaintiff, which is not admitted but denied, the defendants did not breach their duty of care.

48. If the defendants did breach any duty of care, which is not admitted but denied, the plaintiff did not suffer any damages.

49. If the plaintiff did suffer damages, which is not admitted but denied, said damages were too remote.

50. The defendants request a bilingual trial pursuant to the Courts of Justice Act.

51. The defendants ask that this action be dismissed with costs.

October 9, 2019

Vice & Hunter LLP Barristers & Solicitors 101-85 Plymouth Street Ottawa, ON K1S 3E2 J.F. Lalonde LSUC# 50476V jflalonde@viceandhunter.ca Tel: 613-232-5773 Fax: 613-232-3509 Lawyers for the defendants

TO:

HUI LING LI 5 Montcalm Street Ottawa, ON K1S 0A2 plaintiff

HUI LING LI -and- DENIS MICHAUD et al.

Plaintiff Defendants

Court File No. CV-19-00081365-0000

ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT Ottawa

AMENDED Statement Of Defence

Vice & Hunter LLP Barristers & Solicitors 101-85 Plymouth Street Ottawa, ON K1S 3E2 J.F. Lalonde LSUC# 50476V jflalonde@viceandhunter.ca Tel: 613-232-5773 Fax: 613-232-3509 Lawyers for the defendants Box 407

COURT FILE NO.: CV-19-00081365-0000 DATE: 2021-Dec-10

SUPERIOR COURT OF JUSTICE - ONTARIO RE: LI v. MICHAUD et al BEFORE: Associate Justice M. Fortier COUNSEL: Hui Ling Li, Self-Represented Plaintiff J.F. Lalonde, for the Defendants

ENDORSEMENT Associate Justice M. Fortier DATE: December 10, 2021

[^1]: Anderson Consulting v Canada (Attorney General), 2001 8587 (ON CA), 2001 CarswellOnt 3139 at para 37. [^2]: 1588444 Ontario Ltd. v State Farm Fire and Casualty Co., 2017 ONCA 42 at para 25. [^3]: Ibid. [^4]: Belsat Video Marketing Inc. v Zellers Inc., 2003 CarswellOnt 3059 at para 17. [^5]: Essa v Panontin, 2010 ONSC 691 at para 8. [^6]: Ibid. [^7]: Iroquois Falls Power Corp. v Jacobs Canada Inc., 2009 ONCA 517 at paras 20-21. [^8]: 1588444 Ontario Ltd. v State Farm Fire and Casualty Co., 2017 ONCA 42 at para 25. [^9]: Ibid. [^10]: Family Delicatessen Ltd. v London (City), 2006 5135 at para 6. [^11]: Sleep Clinic London Inc. v Merchea, 2012 ONSC 3004, [2012] O.J. No. 2471 at para 22. [^12]: Belsat Video Marketing Inc. v Zellers Inc., 2003 CarswellOnt 3059, at para. 13; Hugues v Toronto Dominion Bank, 2002 CarswellOnt 1544, [2002] O.J. No. 2145 at paras 9 and 10. [^13]: Hughes, at para 9. [^14]: 1588444 Ontario Ltd. v State Farm Fire and Casualty Co., 2017 ONCA 42 at para 25. [^15]: Timminco Limited v Asensio, 2009 9431 at para 22. [^16]: Andrin Hillsborough Limited v Eliaszadeh, 2021 ONSC 3229 at para 23. [^17]: Deep v Ontario, [2004] O.J. No. 2734 at para 64; Tabrizi v Gervais et al, 2015 ONSC 1037 at paras 36-37.