COURT FILE NO.: CV-22-126-00
DATE: 2023-06-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donald Marttunen
Self Represented
Plaintiff
- and -
City of Thunder Bay and Thunder Bay Police
E. Prpic, for the Defendants
Defendants
HEARD: March 2, 2023 at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Motion
Overview:
[1] This is the Defendant’s motion to dismiss/strike the Fresh As Amended Statement of Claim in its entirety or parts thereof, either with or without leave to amend. The motion is brought pursuant to Rule 21 of the Rules of Civil Procedure.
[2] The Plaintiff commenced an action against the City of Thunder Bay and Thunder Bay Police on April 1, 2022, claiming damages totalling $200,000.00, in addition to aggravated and punitive damages. He alleged negligence, defamation, misfeasance in public office, breach of his Charter rights, and aggravated and punitive damages.
[3] For reasons delivered on January 17, 2023 as Marttunen v. City of Thunder Bay et. al., 2023 ONSC 467 (the “Decision”), I struck the Plaintiff’s pleading in its entirety, with leave to deliver a fresh statement of claim as against the Thunder Bay Police Services Board (the correct named Defendant) that one that complies with the Rules of Civil Procedure and the rules of pleading. The Decision contains the background facts and relevant legal principles that have also been applied to this decision. I will not repeat them.
[4] On February 7, 2023, the Plaintiff delivered his Fresh as Amended Statement of Claim. The Plaintiff claims that he has been the victim of ongoing harassment by the Thunder Bay Police Department, and that he has been defamed by various individual police officers. He claims that this has caused him to lose his job and suffer emotionally from the ongoing harassment of him by police, who have spent vast resources over the years to persecute him without cause.
[5] The Defendant has not yet delivered a Statement of Defence but argues that the allegations are false. Pleadings issues aside, the Defendant argues that the Plaintiff’s allegations are flights of fancy that lack any factual basis. He has never even been interviewed by police in connection with an investigation, let alone charged.
[6] At this stage of the proceeding, the Defendant argues that while modest improvements have been made by the Plaintiff to his pleading, he has failed to correct deficiencies identified in the Decision, failed to plead material facts to support the torts being alleged, and plead facts that do not support a recognized cause of action against the Defendant. The Defendant further argues that portions of the pleading remain based on speculation and innuendo while being bereft of any material facts to support the “far-fetched” allegations.
[7] The question to be determined by me is whether the Plaintiff’s Fresh As Amended Statement of Claim should be struck for the reasons argued by the Defendant, and if so, with or without leave to amend. The Defendant argues that given this is the second time it has had to bring a pleadings motion for significant and glaring deficiencies and given the lack of any indication of material facts supporting a reasonable cause of action, leave should not be granted for further amendments.
[8] For the following reasons, the Fresh As Amended Statement of Claim (the “Amended Claim”) is struck.
ANALYSIS:
[9] The facts and the applicable legal principles were set out in the Decision. I have applied them to the issues to be determined on this motion.
[10] The issues raised by the Defendant’s motion are:
a. Does the Plaintiff’s action disclose a reasonable cause of action as against the Defendant?
b. Is the Plaintiff’s action scandalous, frivolous, or vexatious; and
c. Has the Plaintiff plead the necessary material facts to support the causes of action alleged?
No Reasonable Cause of Action:
[11] In paragraph 2 of the Amended Claim the Plaintiff alleges that in the Fall of 2021, he was present at a golf tournament and heard the spouse of Thunder Bay police officer Erin Lambert, claim “the Plaintiff was having sex with street prostitutes”. He alleges that when he confronted the spouse, the spouse said that his wife told him it was true. A few weeks later he overheard the same spouse of Officer Lambert ask her about an ongoing investigation about the Plaintiff. The Plaintiff alleges he was unaware of any investigation involving him. He does not plead what Officer Lambert said in response or what investigation they were talking about.
[12] Pursuant to section 50 (1) of the Police Services Act, R.S.O. 1990, c. P.15, the Thunder Bay Police Services Board is liable for torts committed by members of the Thunder Bay Police Service in the course of their employment. There is no liability on the part of the Defendant for actions of officers committed outside the course of their employment.
[13] The Defendant argues that given the conduct complained of relates to a spouse of a Thunder Bay police officer, the pleading discloses no reasonable cause of action. I agree that the Defendant cannot be held liable for the actions of spouses of officers. In this regard, the pleading discloses no reasonable cause of action as against the Defendant, and the Plaintiff has not named as Defendants the individuals alleged to have made the defamatory statements.
[14] The issue is whether the alleged disclosure to a spouse, of information alleged to have been received in the course of employment, violates s. 50(1). The Defendant argues that nothing has been plead that allows the court to determine whether there is a cause of action based on s. 50(1). I agree. The pleading currently before the court is devoid of material facts with respect to the allegation.
Lacking Material Facts / Scandalous, Frivolous and Vexatious:
[15] Overall, the Amended Claim remains devoid of the material facts necessary to establish a cause of action and allow the Defendant to properly defend the claims alleged. The pleading remains replete with assumptions, suspicions, speculation, and the Plaintiff’s own conclusions and beliefs regarding the conduct of the police. The pleading contains bald allegations, with few or no material facts to substantiate any of the claims. There are examples throughout the Amended Claim of statements made that are either irrelevant, argumentative, inflammatory, inserted only for colour, or constitute bare unfounded allegations. This renders the statements “scandalous” for the purpose of assessing the pleading. There remain too many problems with this pleading for it to be saved by merely striking offending portions.
[16] Specifically:
a. Paragraph 1 (Background) has no material facts to support the allegations that the Plaintiff was falsely accused of stalking someone. It does not specify when or who, just that it happened many years ago and that the Plaintiff is now being stalked by the alleged complainant, although he does not know who it is. The paragraph is based on speculation without any material facts. For example, the pleading states that “Mr. Marttunen believes they investigated and concluded the allegation of stalking was definitely false.” He later states that “…he believes the Thunder Bay Police are protecting this person; they may have personal or professional affiliation.” but does not plead the material facts in support of this belief. These are but a few examples from this lengthy paragraph. The plaintiff cannot rely on speculative allegations to support his claims against the Defendant, nor can the Court accept them as true for the purposes of this motion.
Paragraph 1 also contains argument and statements not appropriate for a pleading. This paragraph is not substantially different from paragraph 1 of the original statement of claim that I struck for a variety of reasons as set out in paragraph 34 (b)(c) and (d) of the Decision.
b. In paragraph 3 of the Amended Claim the Plaintiff alleges that his employment was terminated when a Thunder Bay Police Officer told Ben Letowski, a co-worker, that he was stalking a woman. Mr. Letowski is alleged to have told his employer. The Plaintiff goes on to state that he “had heard rumors that this occurred.” This statement is speculative. There are no material facts to support all of the speculation contained in this paragraph. The Plaintiff does not plead who the officer was. The Plaintiff also speculates that this is the reason why he lost his job, yet in submissions he revealed that he was never given a reason for his termination and at the time he was terminated, he filed a human rights complaint on the basis that he had heard rumours he was terminated because he was “old”. While evidence is not normally admissible in matters such as this, Mr. Marttunen’s submissions assisted me in having a better understanding as to what may have happened with respect to the termination of his employment.
Aside from these allegations being speculative and devoid of material facts, the claim is well beyond the 2-year limitation period and there does not appear to be any discoverability issues. The Plaintiff is likely out of time to make this claim, even based on the limited facts plead.
c. In paragraph 4 of the pleading the Plaintiff alleges that “Thunder Bay Police have disclosed inflammatory false information to the public over many years”. Other than the alleged disclosure to a co-worker and the disclosure complained of in paragraph 2 of the Amended Claim, there are no material facts plead. Later in paragraph 5, the Plaintiff references “these falsehoods”, without specifying what these falsehoods are.
This issue was raised with respect to the Plaintiff’s original Statement of Claim also. If the Plaintiff is going to maintain a claim for defamation, then he is required to particularize the false statements made by Thunder Bay police officers and when they were made. By failing to plead the necessary material facts as required by Rule 25.06(1) of the Rules of Civil Procedure, the claim advanced by the Plaintiff does not disclose a reasonable cause of action as required by Rule 21.01(1)(b).
d. In paragraph 6, the Plaintiff repeats an allegation that was contained in paragraph 13 of the original Statement of Claim that was struck out by me as being scandalous.
e. The Plaintiff does allege malice in paragraph 6, which is suggestive of the tort of misfeasance in public office. As set out in the Decision, the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, at para. 32, set out the essential ingredients of the tort of misfeasance in public office are as follows:
i) deliberate, unlawful conduct in the exercise of public functions;
ii) awareness that the conduct is unlawful and likely to injure the plaintiff;
iii) the conduct complained of was the legal cause of the plaintiff’s injuries; and
iv) the injuries suffered are compensable in tort law.
The plaintiff alleges that the Thunder Bay police “have acted with malice” and that the defendant’s failure to prevent the “wrongful conduct was unlawful and likely to injure the plaintiff” (paragraph 12). The Plaintiff has not plead any conduct on the part of the Thunder Bay police which was unlawful, which is a necessary ingredient of the tort. Other than bald assertions of harassment, speculative assertions of ongoing investigations, and that the conduct was “wrongful”, there are no material facts plead to support awareness that this alleged “wrongful conduct” was unlawful, which is also a necessary ingredient of the tort. By failing to plead the necessary material facts as required under Rule 25.06(1), the claim for misfeasance in public office advanced by the plaintiff does not disclose a reasonable cause of action as required under Rule 21.01(1)(b) and accordingly, should be struck out.
In addition, the Plaintiff has not plead sufficient material facts to support a claim for damages flowing from any alleged misfeasance in public office or any other tort. The Plaintiff has claimed damages for “personal injury” but has not plead any material facts to support any personal injury of any kind. By failing to plead the necessary material facts as required under Rule 25.06(1), the claim for damages advanced by the Plaintiff does not disclose a reasonable cause of action.
f. In paragraphs 7 to 11 of the Amended Claim, the Plaintiff alleges that he has been harassed by the Thunder Bay Police. The only material facts plead in support of this allegation are that:
i. In paragraph 8, the Plaintiff alleges that an incident occurred on April 7, 2022, in which an unknown Thunder Bay police officer drove by him very slowly, looked at him, turned around very slowly approximately 50 feet in front of him, drove by him again, gestured the middle finger, then drove away. He further alleges that he has seen this police officer “many times after that in different civilian clothes”. The Plaintiff does not indicate in his claim the circumstances surrounding these other incidents, such as when and where they may have occurred, and in doing so fails to plead the necessary material facts. Posing further difficulty is the allegation in paragraph 9 that once counsel for the Defendant was notified of these circumstances, “this police officer has not been seen again after reporting the incident to Mr. Prpic. The only plausible conclusion is Mr. Prpic contacted the Thunder Bay Police or someone in the City of Thunder Bay about the incident. Someone knows who the Officer is.”. This statement is impermissible speculation, devoid of any material facts.
ii. On September 11, 2022, at approximately 7 p.m., two patrol cars were parked outside of his residence for approximately one hour. The Plaintiff’s residence is the Strathcona Hotel.
These facts as plead, even if assumed to be true, do not disclose a recognized cause of the action against the Defendant, and accordingly, ought to be struck out. In Merrifield v. AG of Canada, 2019 ONCA 205, at para. 39, the Court of Appeal for Ontario specifically considered whether the tort of harassment should be recognized in the province of Ontario and rejected that proposition, saying “current Canadian legal authority does not support the recognition of a tort of harassment”. The plaintiff has plead facts in an attempt to support a tort which does not exist in law. As set out above, and previously in the Decision, the only possible tort that could be established based on what few facts are in the Amended Claim is misfeasance of public office. The Amended Claim does not plead sufficient material facts to establish unlawful conduct for the purpose of misfeasance.
g. Paragraph 8 refers to an email sent by the plaintiff to counsel for the defendant. It is not proper to refer to evidence (Rule 25.06(1)) or the precise words of a document when the words of the document are not themselves material (Rule 25.06(7)). Beyond that, the email referenced in the claim states “(t)his is obviously harassment. Why harass me if my claims aren’t true. I am thinking of contacting the OPP.” These types of conclusory, argumentative and speculative allegations are improper in a pleading.
h. In paragraphs 12 and 13, the Plaintiff repeats allegations that were made in paragraphs 15 and 18 of the original Statement of Claim that were struck by me as being scandalous.
i. The Plaintiff claims a violation of his constitutional rights and has referenced sections 7 and 8 of the Charter of Rights and Freedoms. There are no material facts plead that would support the violation of the Plaintiff’s section 7 (life, liberty & security of the person) or section 8 (search and seizure) Charter rights. Instead of pleading material facts, the Plaintiff has engaged in argument by referencing and quoting from court decisions. The lack of material facts plead to support a Charter violation was raised previously by me, in the Decision.
j. In paragraph #20, the Plaintiff has advanced claims for aggravated and punitive damages and has alleged wrongful conduct on the part of the defendant that was “willful, deliberate, wanton, entirely without care, high-handed, and in intentional disregard of the rights of the Plaintiff”. The plaintiff has plead no material facts to support any award of aggravated or punitive damages.
ORDER:
[17] The Plaintiff’s claim is struck with costs payable by the Plaintiff on a partial indemnity basis. The Defendant shall deliver (serve and file) a Bill of Costs and Costs Outline within 30 days of the date of this decision. The Plaintiff shall serve and file his response within 30 days of receipt of the Defendant’s Bill of Costs. Any Reply by the Defendant shall be delivered within 10 days of receipt of the Defendant’s response.
[18] If the Plaintiff seeks to deliver a further fresh statement of claim as against the Thunder Bay Police Services Board that complies with the rules of pleading and the Rules of Civil Procedure, and this decision, he must first obtain leave of the court. I am not seized with the matter, and this motion may be heard before any judge.
[19] Mr. Marttunen is once again strongly encouraged to obtain independent legal advice and assistance if he intends to deliver a new pleading. He will have costs to pay of this pleading motion that a motions judge may require him to pay before granting leave. A motions judge will want to be satisfied that there are sufficient material facts to plead a recognized cause of action. So far, I have not seen that there is one. As I warned previously, there are financial consequences that flow from not properly amending the Statement of Claim, and indeed from continuing with the claim. The Plaintiff should ensure that he is aware of the potential consequences before proceeding any further with this action.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
COURT FILE NO.: CV-22-126-00
DATE: 2023-06-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donald Marttunen
Plaintiff
- and -
City of Thunder Bay and Thunder Bay Police
Defendants
DECISION ON MOTION
Nieckarz J.
Released: June 5, 2023