Court File and Parties
Court File No.: CV-22-00000041 Date: 2023-02-23 Superior Court of Justice - Ontario
Re: Sansidhan Francis, Plaintiff And: City of Kawartha Lakes Building Department, Susanne Murchison and Anne Elmhirst, Defendants/Moving Parties
Before: Justice J. Di Luca
Counsel: No one appearing for Sansidhan Francis Jenelle Westworth for the Defendants/Moving Parties
Heard: February 14, 2023
Endorsement
[1] The defendants bring a motion, pursuant to Rules 21.01(1)(b), 25.06(1) and (2) and 25.11 of the Rules of Civil Procedure, to strike out the statement of claim on the basis that it discloses no reasonable cause of action and/or is frivolous and vexatious.
[2] While Mr. Francis was properly served with the motion, he did not appear on Zoom when the motion was scheduled to be heard. As a courtesy, counsel sent him an email re-confirming the appearance and providing again the log-in details. The matter was held down for a period of time and when court reconvened, Mr. Francis was neither present nor had he responded to counsel’s email. As a result, the motion proceeded in his absence.
The Claim and Background to the Claim
[3] Mr. Francis is a resident of the City of Kawartha Lakes. He applied for and received a building permit for his property located at 274 McGuire Beach Road, Kirkland, Ontario. It appears that on February 11, 2022, Mr. Francis was advised that the building permit was eligible for revocation for failure to commence construction within six months of issuance. He was invited to submit a compliance schedule by March 1, 2022, though he failed to do so. On March 10, 2022, the building permit was revoked.
[4] Mr. Francis commenced his action on March 24, 2022.
[5] While the main defendant is named as the City of Kawartha Lakes Building Department, it is properly named the Corporation of the City of Kawartha Lakes (“the City”). The defendant Ms. Murchison is employed by the City as the Chief Building Official, Building and Septic Division, Development Services. The defendant Anne Elmhirst is also employed by the City as a Supervisor of Part 8 Sewage Systems.
[6] While it is difficult to discern, the statement of claim appears to relate to the manner in which Mr. Francis was treated by the defendants in relation to the building permit that was issued for a septic system at his residence. Mr. Francis appears to dispute the manner in which the building permit was revoked, the conduct of the inspectors he dealt with and the applicability of the relevant Building Code provisions.
[7] The claim seeks, inter alia, payment of $59,700.62 for damages in relation to the septic system, permit fees, and lost deposits paid to contractors, though it is unclear how these amounts are arrived at or broken down.
[8] On April 14, 2022, counsel for the defendants wrote to the plaintiff, enclosing the defendants’ Notice of Intent to Defend. Counsel requested that the plaintiff either discontinue the action and commence a proper proceeding or serve a fresh as amended statement of claim advancing the claim in a manner compliant with the Rules.
[9] On April 29, 2022, following exchanges of correspondence with counsel, Mr. Francis provided counsel with a document entitled “masony wheather or not” [sic] which appears to be a draft amended statement of claim. The document recites in greater detail a narrative of alleged events relating to the permit for the septic bed, including additional complaints involving a company called “new beginnings” [sic].
[10] Following counsel’s efforts to have Mr. Francis amend his pleadings, Mr. Francis engaged in a lengthy series of email communications with counsel and with the court. These email communications are replete with derogatory and offensive comments, abusive language, and implicit threats. The communications are also mainly incomprehensible.
Legal Test and Related Principles
[11] Rule 25.06 sets out the rules applicable to pleadings. In short, every pleading shall contain a concise statement of material facts on which the party relies on for the claim, but not the evidence by which those facts are to be proved. Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and where damages are claimed, the amounts claimed shall also be specified.
[12] In terms of the rules of pleadings, I am guided by the helpful comments of Perell J. in Stedfasts Inc. v. Dynacare Laboratories, 2020 ONSC 8008 at paras. 29-36. I have also considered Mudrick v. Mississauga Oakville Veterinary Emergency Professional Corp., [2008] O.J. No. 4512 (Master) at paras. 20-21, 25 and 39-41.
[13] Rule 21.01(1)(b) of the Rules allows a judge to strike a plaintiff’s pleading on the ground that it discloses no reasonable cause of action. A pleading should only be struck where it is “plain and obvious” that it discloses no reasonable cause of action, see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. In other words, the moving party must show that it is “plain, obvious and beyond doubt that the claim will not succeed” at trial: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 70, MacKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874, 88 O.R. (3d) 269, at para. 19 and Asghar v. Toronto Police Services Board, 2019 ONCA 479 at para. 8.
[14] This test is satisfied where a party fails to plead the necessary elements of a recognized cause of action or where the allegations are legally insufficient, see Hillier and Maverick Paintball Inc. v. Hutchens et al., 2014 ONSC 1579 at para. 39, and Coote v. Ontario (Human Rights Commission) at para. 39.
[15] The threshold for sustaining a pleading is not high. In making its determination, the court gives the statement of claim a generous reading allowing for inadequacies due to drafting the deficiencies. The court also assumes that the facts pleaded are true unless they are patently ridiculous or incapable of proof, see Lysko v. Braley (2006), 79 O.R. (3d) 721 at para. 3 (Ont.C.A.).
[16] No evidence is admissible on a motion brought under Rule 21.01(1)(b). The court must simply consider the impugned pleading on its face.
[17] Rule 25.11 allows a judge to strike out all or part of a pleading, with or without leave to amend, where the pleading, or portion thereof, may prejudice or delay the trial of an action; is scandalous, frivolous or vexatious; or is an abuse of the court’s process.
[18] While evidence is admissible on a motion under Rule 25.11, the focus nonetheless remains on assessing whether it is plain and obvious that the impugned pleadings ought to be struck in whole or in part, see Baradaran v. Alexanian, 2016 ONCA 533 at paras. 15-16.
[19] In cases where a pleading is struck, leave to amend the pleading may be granted. The principles that apply in determining whether leave to amend should be granted are set out in Spar Roofing & Metal Supplies Limited v. Glynn, 2016 ONCA 296, 348 O.A.C. 330, at paras. 35-45. Leave to amend should be denied only in the clearest of cases: South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6; and Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26.
Analysis and Findings
[20] In examining the statement of claim, I note that it is drafted by a lay person and as such, it is not surprising that it does not set out the various claims with the degree of precision expected from counsel.
[21] That said, even when read generously, the claim reveals no focussed or specific cause of action or claim. Instead, the claim essentially presents as a lengthy and rambling letter of complaint against the City. It is, in large part, also incomprehensible. The following passage taken from page 3 the statement of claim provides a window into the style and content of the pleading:
Relief from building code flaw which I don’t believe it to be true but told to me by inspector it is. If there is knowledge regarding the new designer process in case the existing designer dies. I'm being told by the septic department, that owner cannot continue with the design and I think that’s misinformed. If this is found by the court to be true then id like my money back because the inspectors phone calls only made this to happen this way. But I'm sure the building code doesn’t leave us without an answer. Because this is obvious and I don’t believe the answer is next time do septic design by owner. I don't believe next time is only what the code books allows, because it’s not written by uneducated Idiots or thieves and its been updated ( unless interpreters of the code book are interested in suggesting it is written by thieves. I'm asking the court and judge to decide the respects of these attitudes ) and this is a common recognizable flaw in the process. The septic permit goes together with the building permit so in the case. After back fill, while home is being built if the designer dies it would make it an attack to the process of the building. It becomes complicated because of this flaw. So its illegal to even move to start building and the building permit is invalid if there is no remedy for this except to take the old system out by a new designer and then even then that new designer can die or be coerced so I do not believe the building code allows this type of conduct.
[22] The claim appears to relate to the manner in which the plaintiff was treated by the defendants in regard to a building permit issued for a septic system, though the context in which this dispute arises is difficult to discern from the pleadings. As well, while it is clear that Mr. Francis is upset at how he was treated and by the positions taken by the City and its employees, it is difficult to discern what the “material facts” alleged are and how those facts relate to a viable cause of action.
[23] Furthermore, while the claim specifically names two employees of the City, it is unclear if any specific claim is being advanced against them personally and if so, on what basis. The claim merely refers to information provided by “Susan”, which is presumably a reference to the named defendant, Susanne Murchison. As well, while Anne Elmhirst is a named defendant, there does not appear to be any specific reference to her in the pleadings.
[24] I note that s. 448(1) of the Municipal Act provides that municipal employees can only be named in their personal capacities if allegations of bad faith are made. It is hard to see how the statement of claim advances viable claims of bad faith against either of the personally named defendants, see Bernard v. Godfrey, 2010 ONSC 10 at para. 18 and 28 and Losier v. MacKay, MacKay & Peters Ltd., 209 CarswellOnt 4934 (Ont. S.CJ.).
[25] In short, I conclude that the statement of claim is, on its face, fatally flawed. It is plain and obvious that it cannot succeed and therefore must be struck. It does not reveal a viable cause of action. I also find that the claim is frivolous and/or vexatious as it fails to concisely plead material facts in support of a discernible claim. It is prolix, convoluted and largely incomprehensible.
[26] I consider next whether leave to amend the claim should be granted. In my view, the failings of the pleadings are pervasive. This is not an instance where the pleading can be “cleaned up” with some editing and re-packaging. I also consider the proposed amended statement of claim prepared by the plaintiff. That document suffers from the same types of failings as the statement of claim. It is lengthy, argumentative and largely difficult to follow. It is also devoid of any clear and viable cause of action. Lastly, it also seeks to raise new complaints that did not form part of the original statement of claim. Taken together, I conclude that this is not likely an instance where there is a reasonable prospect that Mr. Francis will successfully amend the claim so as to make it viable.
[27] However, in view of the fact that Mr. Francis is a self-represented litigant, I am prepared to grant him one final opportunity to do so. As such, I am prepared to grant him leave to move for an order permitting him to deliver a fresh statement of claim that complies with the Rules within 30 days of the date of this order, failing which the defendants may move ex parte for an order dismissing the action.
[28] In other words, if Mr. Francis wishes to proceed with this action, he must prepare a fresh statement of claim that complies with the Rules. He then needs to bring a motion before the court presenting his fresh statement of claim and seeking the court’s permission to file the fresh statement of claim. The motion will only be granted if the fresh statement of claim complies with the Rules. If he does not bring such a motion within 30 days, the defendants can bring a motion to dismiss the action without notice and without further attendance before the court.
[29] While Mr. Francis is entitled to represent himself on this matter, he is strongly encouraged to seek the advice of counsel on how best to proceed.
[30] The motion is allowed. The statement of claim is struck. In order to maintain continuity, I remain seized of any further motions resulting from this Endorsement.
[31] In terms of costs, the defendants seek partial indemnity costs of approximately $11,083.28 all-inclusive based on full indemnity costs of approximately $16,534.00. While the motion was not particularly complex, I note that Mr. Francis’ email communications alone total approximately 450 pages and would have required additional time to review and digest.
[32] Having considered the costs outline in concert with the principles that guide the determination of costs, particularly reasonableness and proportionality, costs are fixed at $5,000 all-inclusive, payable by Mr. Francis within 30 days.
Justice J. Di Luca Released: February 23, 2023