COURT FILE NO.: CV-22-674722

DATE: December 19, 2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kevin Milanese and Luana Milanese v. Cindy Ka Kee Sham, Kar Cheong Lee, Joseph Ricupero and Yorkcrete Inc. operating as Yorkcrete & Landscaping;

BEFORE: ASSOCIATE JUSTICE C. WIEBE

COUNSEL: Diana Simonetti and Harold Rosenberg for Kevin Milanese and Luana Milanese;

Paul Portman for Joseph Ricupero and Yorkcrete Inc. operating as Yorkcrete & Landscaping (together “Yorkcrete”);

HEARD: December 19, 2022.

REASONS FOR DECISION

[1] The plaintiffs brought this motion for an order striking the following paragraphs and sentences from the statement of defence and counterclaim of Yorkcrete:

a) Paragraph 4: “The Plaintiffs have substantially warped the facts of this matter to suit their rhetoric and support their fabricated claims against the Defendants as a whole.”

b) Paragraph 5, last sentence: “He [the plaintiff, Kevin Melanese] has misrepresented his experience, express[ed] consent to the work done and his understanding of the matter at material time periods.”

c) Paragraph 7: “The main reason for the necessity of the work that Yorkcrete was hired by Cindy and Cheong to do in the first place was due to the negligence and misconduct of the Plaintiffs. For example, the Plaintiffs improperly used construction equipment while building their own home in such a way as to cause damage to the driveway and parts of the Defendants, Cindy and Cheong’s, property. The damage was so bad the Plaintiffs’ own children could not ride their bikes on the area.”

d) Paragraph 13, last sentence: “Various witnesses can attest to this.”

e) Paragraph 14, last sentence: “Various photographs and evidence exists with respect to same.”

f) Paragraph 24: “Kevin would often talk about his experience and contractor work with Yorkcrete and their subcontractors on site. He even asked if they could assist Kevin with swale issue on one of his own machines.”

g) Paragraph 26, first sentence: “Yorkcrete is a well-regarded and award-winning company that has operated for over 10 years.”

[2] I granted the motion concerning paragraph 1(a), 1(d), 1(e), 1(f) and 1(g), but not 1(b) and 1(c). The following are my reasons for this ruling.

[3] There was a preliminary submission from Mr. Portman. The evidence showed that there was a case conference on August 8, 2022 in this motion and in a motion brought by Yorkcrete attacking the plaintiffs’ inclusion of Mr. Ricupero as a defendant. The case conference was before Associate Justice McGraw. His Honour indicated that he was prepared to hear both motions together, but that Yorkcrete needed to decide as to whether to bring its motion under Rule 21, which requires that it be heard by a judge.

[4] Mr. Portman conceded that, because of a medical condition he then suffered, he did not engage Associate Justice McGraw to hear both motions, and scheduled the Yorkcrete motion separately for a date in April, 2023 as a result. Yet, he asked me to accelerate the Yorkcrete motion to be heard by me on December 19, 2022 arguing that both motions concern pleadings and should be heard together to save costs. I rejected that argument for several reasons: there was insufficient time for this motion; the plaintiffs were not prepared to respond to it as it was scheduled for a different date four months from now; and, most importantly, Yorkcrete had not complied with Associate Justice McGraw’s instruction to decide on whether to move under Rule 21. The filed material indicated that the motion was still under Rule 21, which excluded my jurisdiction.

[5] As for the motion before me, I review the background facts briefly. The action is by the plaintiffs against their neighbours, Cindy Ka Kee Sham and Kar Cheong Lee (together “Sham/Lee”), for damages resulting from landscaping work that the plaintiffs allege was done by Sham/Lee on their own property that resulted in the plaintiffs losing 15 trees planted along their side of the common property line. The landscaper that did the work, Yorkcrete, is joined in the action. The claim against Yorkcrete is for damages in nuisance, negligence and negligent misrepresentation.

[6] The motion was brough pursuant to Rule 25.06(1), the rule that requires the pleadings to contain a concise statement of “the material facts” on which the party rely for their claim or defence, “but not the evidence by which those facts are to be proved.” The motion was also pursuant to Rule 25.11, namely the rule which allows the court to strike pleadings which may prejudice or delay the fair trial of the action, or which are “scandalous, frivolous and vexatious.”

[7] The test on such motions was described by Justice Nordheimer in Abdi Jama (Litigation Guardian of) v. McDonald's Restaurants of Canada Ltd. 2001 CarswellOnt 939 at paragraph 21 as follows: the motions should be granted in only the clearest of cases; the court should not allow facts to be pleaded that are irrelevant or immaterial to the issues; pleadings that are argumentative, inserted for colour or are bare allegations should be struck; facts can be pleaded but not the evidence to prove them; and, concerning similar facts, these may be pleaded but only where the added complexity does not outweigh the potential probative value of the facts.

[8] Applying these principles to the pleadings in dispute, I found that paragraph 4 of the Yorkcrete pleading was an unsupported allegation of the lack of credibility of the plaintiffs. As such, at best, it was no more than an allegation concerning evidence, not material facts. But I found that the pleading was also scandalous and vexatious. It essentially alleges baldly that the plaintiffs fabricated their claim. I ordered that this paragraph be struck.

[9] I found that the last sentence of paragraph 13, the last sentence of paragraph 14 and the first sentence of paragraph 26 to be no more than evidence included to support the material facts pleaded in the remainder of those paragraphs. As a result, I ordered that these sentences be struck.

[10] I struggled somewhat with paragraph 24. But, in the end, I decided that it was also nothing but evidence as to the alleged material fact that Mr. Milanese had experience as a contractor and, as such, knew of, approved of or at least acquiesced in the means and methods used by Yorkcrete. As a result, I ordered that this paragraph be struck.

[11] Mr. Portman’s major argument concerning the above pleadings was that the plaintiffs engaged in the same practice. I was not convinced by the example he showed me of this alleged similar practice. In any event, the argument did not carry weight. The fact that the plaintiffs pleading may also be vulnerable to attack on these grounds does not denigrate from the fact that the subject Yorkcrete pleadings did not meet the standard of proper pleading.

[12] On the other hand, I did not strike paragraph 5. Mr. Portman clarified that the word, “express” in that paragraph should have read, “expressed.” While not pleaded with clarity, the paragraph, given a generous reading, pleads that the plaintiffs knew of and consented to the means and methods of Yorkcrete. As such, this is a material fact relevant to the Yorkcrete defence. This statement even applies to the first part of the sentence which alleges that Mr. Milanese misrepresented his experience. Being joined in the same sentence with the allegation of consent, I find that the experience misrepresentation pleaded here was as a material fact that the alleged consent was educated and informed consent. I ordered that this sentence remain.

[13] I also did not strike paragraph 7. In my view, this paragraph alleged the material fact that the plaintiffs caused or contributed to the damage in question. An example is given, namely the use by the plaintiffs of improper equipment that damaged the plaintiffs’ driveway and the defendants’ property. Mr. Rosenberg complained that this allegation unnecessarily expanded the scope of the issues into the history of the plaintiffs’ construction work on their own house. I agreed that the allegation did expand the relevant issues, but I disagreed that this expansion was unnecessary. I stated that contributory negligence is a common defence in negligence actions like this. Indeed, the causation of the damage and the apportionment of liability are central issues. If the plaintiffs’ caused or contributed to the damage by what they did, they should be held to account for that. I ruled that this paragraph remains.

[14] I ruled that Yorkcrete had up to and including January 31, 2023 to amend its pleading to conform to this order.

[15] Concerning costs, the plaintiffs filed a costs outline that showed $5,040 in partial indemnity costs. Ms. Simonetti submitted that her clients should be awarded this amount given the result. Yorkcrete filed a bill of costs showing $11,853.02 in full indemnity costs, $10,704.31 in substantial indemnity costs and $7,832.57 in partial indemnity costs. Mr. Portman argued that, given the result, Yorkcrete should be ordered to pay no more than $1,000 in partial indemnity costs.

[16] I found that Yorkcrete’s ill-fated and ill-considered attempt to accelerate its motion to today merited a higher award of costs in favour of the plaintiffs. I also found that, given the size of the Yorkcrete bill of costs, the plaintiffs’ costs outline was more than reasonable. I also found that the Yorkcrete pleadings were poorly drafted and not clear, even with the pleadings I did not strike, thereby contributing to the issues that led to the motion. This was another factor in my decision.

[17] I awarded the plaintiffs $4,500 in costs to be paid in 30 days. Mr. Portman wanted me to defer the payment to 90 days alleging that his client did not have the work or cash over the holiday period to pay. There was no evidence to support this position and I did not accept it. Rule 57.03(1) is clear that the default period for payment is 30 days. That is what I ordered.

[18] In summary, I ordered the following:

• Paragraph 4, the last sentence of paragraph 13, the last sentence of paragraph 14, paragraph 24 and the first sentence of paragraph 26 of the Yorkcrete Statement of Defence and Counterclaim are struck;

• Paragraphs 5 and 7 of the same pleading remain;

• Yorkcrete must amend its pleading to conform to this order on or before January 31, 2023; and

• Yorkcrete must pay the plaintiffs $4,500 in costs in thirty days from today.

DATE: December 19, 2022

ASSOCIATE JUSTICE C. WIEBE