Court File and Parties

COURT FILE NO.: CV-21-00001795-0000 DATE: 2023/08/04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL FRANK KUTTSCHRUTTER, Plaintiff AND: THE CORPORATION OF THE TOWN OF ST. MARYS, BRENT KITTMER, AL STRATHDEE, JIM CRAIGMILE, LYNN HAINER, MARG LUNA, ROBERT EDNEY and TONY WINTER, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: The Plaintiff Mr Kuttschrutter self-representing Mario Delgado and Raya Sidhu, for the Defendants

HEARD: August 4, 2023

Endorsement

Introduction

[1] Before me is a motion brought by the individuals named, along with the defendant Township, as defendants to this action commenced by Mr Kuttschrutter.

[2] Relying primarily on Rule 21.01(1)(b) of the Rules of Civil Procedure, the moving defendants seek an order striking the pleaded claims against them, on the ground they disclose no reasonable cause of action.

[3] The motion came before me today in a very busy “regular motions” day here in London; i.e., a day devoted to hearing “short” motions capable of being argued in 60 minutes or less. Given the nature of the motion, and the nature and extent of material filed by the parties, (primarily by the moving defendants), I frankly was doubtful that it could or would be argued within the 60 minute time limit for such motions. It also seemed to me that a motion of this nature inherently was more amenable to the more in-depth argument and analysis facilitated by a special appointment hearing.

[4] However, as both the moving defendants and the plaintiff were eager to obtain a ruling on the motion sooner rather than later in order to move the litigation forward, both sides committed to abbreviate their submissions to ensure the matter was argued in under an hour, and I already had spent considerable time yesterday evening reviewing and considering the material filed by the parties, I proceeded to hear the motion.

[5] The reasons and decision that follow will not be as fulsome, detailed and ordered as they otherwise might have been had I more time to render them. However, the parties adhered to their promised time limits, and I correspondingly will endeavor to provide them with the early decision they desired.

General principles – Motions to strike claims for disclosing no reasonable cause of action

[6] As the moving defendants seek to strike the pleaded claims against them pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, I am mindful of Rule 21.01(2)(b), which prevents the admissibility of evidence in relation to such a motion. In that regard:

a. A court hearing a Rule 21.01(1)(b) motion is permitted to have regard to facts pleaded by the claimant, as well as documents essentially incorporated by reference into the claimant’s pleading or pleadings. [1]

b. It nevertheless is impermissible for a party moving under Rule 21.01(1)(b) to attempt the proof of the existence of a by-law not pleaded and relied upon by the claimant; something properly regarded as a matter of fact that would have to be established by evidence. [2]

[7] I also am mindful of numerous general principles which have been emphasized by the many authorities which have considered the aforesaid provisions of Rule 21. Without limiting the generality of the foregoing, such principles include the following:

a. The purpose of Rule 21.01(1)(b) is to eliminate or “weed out” hopeless claims at an early stage of proceedings, and permits claims to be struck out where it is plain and obvious, or beyond reasonable doubt, that the claimant’s pleading discloses no reasonable cause of action; i.e., that the claim as pleaded has no reasonable prospect of success. The test is rooted in the need for courts to ensure that their process is not abused. [3]

b. On such a motion to strike a pleaded claim as disclosing no reasonable cause of action, pursuant to Rule 21.01(1)(b):

i. The facts pleaded by the claimant are taken as true, unless patently ridiculous or manifestly incapable of being proven; e.g., because they are assumptive or speculative conclusions which are incapable of proof. [4] In that regard, it should be remembered that a claimant’s pleading includes not only his or her statement of claim, but also any reply the claimant may have delivered. [5]

ii. Novelty of a cause of action is no concern, the claimant’s pleadings are read generously to accommodate drafting deficiencies, and the claim should be allowed to proceed if it has some chance of success. [6]

Overview of the plaintiff’s pleadings

[8] Having regard to the above principles, I have studied with care the statement of claim issued by Mr Kuttschrutter on October 21, 2021, and the reply Mr Kuttschrutter delivered on or about March 2, 2023. [7] My failure to outline all aspects of Mr Kuttschrutter’s pleadings reflects present time constraints, and should not suggest that I have not reviewed and considered them in their totality.

[9] With that caveat in mind and at the risk of over-simplification, (and noting that I intend to return to further aspects of the plaintiff’s pleadings during the course of these reasons), important matters pleaded and relied upon by Mr Kuttschrutter include the following:

a. The claims advanced in Mr Kuttschrutter’s pleadings centre on a decision made during the recent COVID-19 pandemic, whereby the defendant municipal corporation, (i.e., the Corporation of the Town of St Mary’s, or “the Town”), adopted a policy requiring its employees to get a COVID-19 vaccine.

b. The aforesaid policy was adopted by the Town through a formal vote taken by the Town’s municipal council on September 14, 2021, during which council members Al Strathdee, Jim Craigmile, Lynn Hainer, Marg Luna, Robert Edney and Tony Winter voted in favour of the policy being adopted by the Town. Only one member of the council, (expressly not named by Mr Kuttschrutter as a defendant to this proceeding), voted against adoption of the policy.

c. The following day, (i.e., on September 15, 2021), the aforesaid policy adopted by the Town was communicated to all of the Town’s employees, including the plaintiff Mr Kuttschrutter, via an email sent to all of those employees by the Town’s Chief Administrative Officer, Brent Kittmer.

d. At the time of the aforesaid policy’s adoption, Mr Kuttschrutter had been employed by the Town for 15 years, was an employee in good standing, and did not wish to leave his employment. His contract of employment with the Town included no provision for mandatory medical testing, vaccinations, or other procedures as a requirement of continued employment, and Mr Kuttschrutter did not agree with the Town’s unilateral adoption and implementation of the aforesaid policy. To the contrary, Mr Kuttschrutter was concerned that the COVID-19 vaccines in question had not undergone the usual and customary testing and scrutiny to which vaccines normally are subjected before they are approved for use, that their efficacy could not be proven, and that there accordingly was no guarantee that he would not be irreparably harmed if he was forced to take the COVID-19 vaccines. Mr Kuttschrutter also had what he regarded as legitimate “religious/ethical” objections to the medical disclosure and vaccination procedure requirements which the policy adopted by the Town effectively but unilaterally would be adding to his contract of employment, without his consent.

e. When Mr Kuttschrutter thereafter refused to comply with the aforesaid policy, (e.g., by refusing to self-administer COVID-19 tests supplied to him or disclose his testing status in that regard, and by refusing to receive any of the COVID-19 vaccines or provide any letter from his “spiritual leader” to confirm the existence of a religious objection to receiving such vaccines), Mr Kuttschrutter was informed on or about September 22, 2021, that the Town was terminating his employment “for cause”.

[10] Reading Mr Kuttschrutter’s pleadings generously as required, (and bearing in mind that they were drafted by a lay person), relief sought by Mr Kuttschrutter through this proceeding effectively includes the following:

a. damages for wrongful termination, which Mr Kuttschrutter describes as an order requiring the payment of “severance”;

b. in the alternative, an order that Mr Kuttschrutter’s employment be reinstated, with a “lump sum payment” representing payment of his usual remuneration “from the time he was fired” to the time of his reinstatement;

c. a declaration that the actions taken by the defendants in relation to Mr Kuttschrutter were unlawful;

d. a “criminal referral” by this court to the Crown prosecution service, requiring each of the named defendants to be charged with violation of numerous statutes; and

e. various forms of interim, interlocutory and permanent injunctive relief preventing the defendants “from forcing employees to undergo any medical procedure in order to be employed by them”.

Overview of the moving defendants’ motion

[11] At the risk of similar over-simplification, the moving defendants essentially ask that the claims pleaded against them be struck out as disclosing no reasonable cause of action against them for two principal reasons:

a. It was submitted that the claims Mr Kuttschrutter has pleaded against the defendant individuals, (as opposed to the claims asserted against the defendant Town), have no prospect of success as they fall, (according to the facts and circumstances Mr Kuttschrutter has pleaded), within the immunity conferred by s.448(1) of the Municipal Act, 2001, S.O. 2001, c.25, which reads as follows:

448. (1) No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it for any alleged neglect or default in the performance in good faith of the duty or authority.

b. It was submitted that the claims Mr Kuttschrutter has pleaded against the defendant individuals, (as opposed to the claims asserted against the defendant Town), have no prospect of success in any event insofar as Mr Kuttschrutter has failed to plead any allegations that the defendant individuals committed any independent tortious or wrongful conduct outside the ambit of their employment by the corporate defendant, or in any way acted outside the scope of that employment, such that Mr Kuttschrutter’s pleadings assert/disclose no reasonable cause of action against any of the defendant individuals.

Analysis

[12] Having received and considered the written and oral submissions made by counsel for the moving defendants, (which included a factum and book of authorities), as well as the written and oral submissions made by the plaintiff Mr Kuttschrutter, (which included two substantive pages of text entitled “OPPOSITION TO MOTION”), I believe the moving defendants are entitled to the relief requested.

[13] I say that for a number of reasons.

[14] First, in my view, the claims advanced against the defendant individuals by Mr Kuttschrutter, as pleaded, do indeed fall within the immunity conferred upon those individuals by s.448(1) of the Municipal Act, 2001, supra. In that regard:

a. In the body of his statement of claim and reply, Mr Kuttschrutter does not always identify the particular subject or subjects of his pleaded allegations with the precision a lawyer might, but I believe he does so with reasonable clarity. In particular:

i. After naming all of the defendants in the statement of claim’s style of cause, Mr Kuttschrutter goes on to say, in paragraph 4 of the statement of claim, that the defendants are “a government corporation in Canada, and individuals who are in controlling positions within said corporation”.

ii. The “government corporation in Canada” is clearly a reference to the defendant Town; i.e., The Corporation of the Town of St. Marys.

iii. As for the defendant “individuals”, the only named defendant individual in respect of whom Mr Kuttschrutter expressly assigns a specific “controlling position”, via his statement of claim, is Brent Kittmer. In particular, in paragraph 15 of the statement of claim, Mr Kittmer is identified as the “CAO of The Corporation of the Town of St. Marys”. Moreover, in paragraph 1 of his Reply, Mr Kuttschrutter expressly admits the allegation pleaded in paragraph 7 of the statement of defence herein, indicating that “Brent Kittmer is the Chief Administrative Officer of the Town”. In that regard:

1. As a matter of law, the “Chief Administrative Officer” of a municipal corporation, (such as the defendant Town), is the most senior appointed official in that municipal corporation’s administrative structure. In particular, pursuant to section 229 of the Municipal Act, 2001, supra, the “Chief Administrative Officer” of a municipality is an official who is appointed by the municipal council, (and therefore not elected), and who is responsible for the overall administration and operation of the municipality; i.e., for “exercising general control and management of the affairs of the municipality for the purpose of ensuring the efficient and effective operation of the municipality” and “performing such other duties as are assigned by the municipality”.

2. As a matter of law, I also note that, as an “officer” of the municipality, one of Mr Kittmer’s specific legislated roles, pursuant to s.227(a) of the Municipal Act, 2001, supra, is to “implement council’s decisions and establish administrative practices and procedures to carry out council’s decisions”.

iv. As for the remaining non-corporate individuals identified as defendants in Mr Kuttschrutter’s statement of claim:

1. They are identified in paragraphs 14-16 of Mr Kuttschrutter’s statement of claim as “the voting members for the Town of St. Marys Ontario” who “took a vote on what they called a new policy”, (i.e., forcing employees of the Town “to receive a vaccination using the current emergency use vaccine for COVID19 as a requirement for retaining their employment” with the Town), and who “voted in favour of the forced vaccination, with only one member dissenting”, with Mr Kuttschrutter expressly indicating that the “dissenting member” was not named as a defendant to the proceeding.

2. Reading Mr Kuttschrutter’s statement of claim generously, and taking judicial notice of municipal law realities dictated in part by ss.5(1) and 5(3) of the Municipal Act, 2001, supra, which specify that a municipal corporation’s powers and authority generally must be exercised by its elected council, I think Mr Kuttschrutter’s pleadings in that regard clearly are referring to elected members of the Town’s municipal council entitled to vote in relation to such matters, with the exception of the sole dissenting member of that council who voted against adoption of the relevant policy identified in Mr Kuttschrutter’s pleadings.

3. The elected members of a municipal council inherently would not include an appointed (and therefore non-elected) Chief Administrative Officer of a municipal corporation, such as Mr Kittmer. [8]

4. Furthermore, in paragraph 1 of his reply pleading, Mr Kuttschrutter specifically admits the allegations pleaded in paragraphs 8, 9 and 10 of the defendants’ statement of defence. According to the additional material facts thereby effectively incorporated into the plaintiff’s pleadings:

a. “Al Strathdee is the mayor of the Town”, and thereby head of its municipal council as contemplated by s.225 of the Municipal Act, 2001, supra;

b. “Tony Winter is the deputy mayor and a councillor for the Town”, and thereby a member of the municipal council authorized to act in place of the mayor or “head of council” if and as necessary, pursuant to s.226 of the Municipal Act, 2001, supra; and

c. “Jim Craigmile, Lynn Hainer, Marg Luna and Robert Edney are [also] councillors for the Town”.

b. In my view, each of the named defendant individuals accordingly is a “member of council” or “officer” of a municipality, within the meaning of s.448(1) of the Municipal Act, 2001, supra.

c. As for whether the pleaded acts of those named defendant individuals were done “in the performance or intended performance of a duty or authority under the Municipal Act, 2001, supra, or a by-law passed under it”, as contemplated by s.448(1) of the Municipal Act, 2001, supra:

i. In his pleadings, Mr Kuttschrutter does not specifically allege that the named defendant individuals who are members of the Town’s municipal council did anything other than vote in favour of adopting the policy giving rise to Mr Kuttschrutter’s claim. In my view, a member of a municipal council voting in that capacity, in relation to the municipal corporation’s formal adoption of such a policy in relation to its employees, self-evidently would fall within the definition of an act done in the performance or intended performance of an authority conferred by the Municipal Act, 2001, supra; i.e., the authority conferred on a municipality pursuant to s.8(1) of the Municipal Act, 2001, supra, “to govern its affairs as it considers appropriate”. That authority is:

1. a power which must be exercised, if at all, by the municipal council and its members pursuant to s.5(1) of the Municipal Act, 2001, supra; and

2. a power to be exercised by members of the municipal counsel in order to fulfil of one of the specifically legislated roles of a municipal council outlined in s.224(b) of the Municipal Act, 2001, supra, namely the development and evaluation of policies for the municipality.

ii. In his pleadings, Mr Kuttschrutter does not specifically allege that the named defendant individual Mr Kittmer did anything other than send an email to all of the Town’s employees, (including Mr Kuttschrutter), advising the defendant individuals of the relevant policy adopted by the Town through the pleaded majority vote of its municipal council. In my view, such a communication task inherently and obviously falls within the job responsibilities of a municipality’s Chief Administration Officer, charged with responsibility for the overall administration and operation of the municipality pursuant to s.229 of the Municipal Act, 2001, supra, and whose specifically assigned roles pursuant to s.227(a) of that legislation includes providing assistance with the implementation of a municipal council’s decisions, including practices and procedures to help carry out those decisions.

iii. Even if Mr Kuttschrutter’s repeated use of the words “The Defendant” throughout his pleadings is taken on a very generous reading to be an oblique reference to the named defendant individuals as well as the Town, I cannot discern any of the pleaded acts of “The Defendant” as acts not done in the performance or intended performance of a duty or authority under the Municipal Act, 2001, supra, or a by-law passed under it, within the meaning of s.448(1) of that legislation. Without limiting the generality of the foregoing:

1. Mr Kuttschrutter clearly takes the position, reflected in his pleadings, and echoed in his written and oral submissions, that the relevant policy identified in his pleading should not have been adopted by the members of the Town’s municipal council who voted for it, and that the policy thus adopted should not have been implemented. He outlined numerous reasons for that position in his pleadings and submissions; e.g., that adoption of the policy was a violation of numerous other laws and/or a directive issued by “higher government”, and otherwise beyond the proper authority of the Town’s municipal council and employees.

2. However, even if his position in that regard and that reasons for that position are assumed to be correct, (i.e., that the decision to adopt the relevant policy should not have been taken, and that the policy once adopted should not have been implemented), in my view that does not alter the important reality for present purposes, which Mr Kuttschrutter himself effectively has pleaded, (albeit perhaps without detailed knowledge of the Municipal Act, 2001, supra), that all of the pleaded acts forming the basis of his claims were carried out by the defendants through an exercise or purported exercise of power and authority conferred by the Municipal Act, 2001, supra.

d. The last component of s.448(1) of the Municipal Act to be considered, in determining whether the immunity granted therein applies in relation to the acts of the moving defendants pleaded and relied upon by Kuttschrutter, is whether the acts in question were done “in good faith”. In that regard:

i. I am mindful of authority indicating that a plaintiff cannot succeed in any claim for damages in tort with respect to the enactment, implementation or enforcement of a by-law unless the plaintiff is able to show bad faith of those who participated in such acts. In particular, a municipality and its employees have “the right to be wrong”, and not be held liable for damages, so long as there is an absence of bad faith, and are entitled to considerable deference in the passing and enforcement of the municipality’s by-laws. Moreover, a plaintiff’s subjective perception that certain actions were malicious to the point of mala fides or bad faith will not suffice. [9]

ii. I am also mindful of authority indicating that the existence or absence of good faith on the part of municipal employees targeted as named defendants usually is something appropriately addressed before trial by way of a Rule 20 motion for summary judgment, rather than a Rule 21 motion to strike a pleading for disclosing no reasonable cause of action; i.e., in a context where named defendants seeking the benefit of s.448(1) of the Municipal Act, 2001, supra, as a defence, can present affidavit evidence asserting their good faith and/or absence of bad faith when carrying out the acts pleaded and relied upon by a plaintiff. Such evidence, properly tendered in the context of a Rule 20 motion for summary judgment dismissing a claim against a municipal employee, can then be challenged by a plaintiff presenting evidence to the contrary and/or cross-examining defendants on their respective affidavits, after which the presiding judge can determine whether or not there is a genuine issue requiring a trial in relation to such an immunity defence. [10]

iii. At first blush, I accordingly was inclined to reject this first suggested basis for granting the relief sought by the moving defendants pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. In particular, my preliminary view was that application of the legislated immunity afforded by s.448(1) of the Municipal Act, 2001, supra, could not be determined in the absence of evidence of good faith (or absence of bad faith) in that regard, which the moving defendants could not present in this context but could present by way of a motion brought pursuant to Rule 20 of the Rules of Civil Procedure.

iv. However, further consideration and closer examination of the plaintiff’s pleadings led me to an opposite conclusion. In particular:

1. In the case before me, Mr Kuttschrutter’s statement of claim did not expressly plead and rely upon the existence of bad faith on the part of the named defendant individuals in carrying out the acts alleged in his statement of claim, but he arguably had no obligation to do so unless and until the immunity conferred by s.448(1) of the Municipal Act, 2001, supra, (i.e., for acts done in good faith in the performance or intended performance of a duty or authority under that Act or a by-law passed under it, or for any alleged neglect or default in the performance in good faith of the relevant duty or authority), effectively had been raised as a defence in the statement of defence to be delivered by those named defendant individuals.

2. However, once that had been done by the defendants in paragraph 38 of their statement of defence, (expressly pleading and relying upon “the fact that at all material times the Defendants acted in good faith”), Mr Kuttschrutter was faced with two further pleading options. In particular:

a. He could choose not to deliver a reply, in which case he would be deemed to deny all the allegations of fact made in the defence of the opposite party or parties, pursuant to Rule 25.10(4) of the Rules of Civil Procedure.

b. In the alternative, he could choose to deliver a reply, in which case, pursuant to Rule 25.09(1) of the Rules of Civil Procedure, he would be deemed to admit every allegation of fact in the opposite party’s defence that he did not expressly dispute.

3. Mr Kuttschrutter then chose to deliver a formal reply pleading, in which his express admissions and denials of allegations pleaded in the moving defendants’ statement of defence did not include any indicated dispute in relation to paragraph 38 of the defendants’ pleading. In the result, Mr Kuttschrutter is deemed to have admitted the moving defendants’ pleaded allegation of fact that, at all material times, they acted in good faith.

4. In my view, the final component of the defence relied upon by the moving defendants in this Rule 21 motion – i.e., legislated immunity pursuant to s.448(1) of the Municipal Act, 2001, supra – therefore effectively is established by Mr Kuttschrutter’s own pleadings.

e. As the pleaded acts of the defendants relied upon by Mr Kuttschrutter are all covered by the immunity extended to the named defendant individuals by s.448(1) of the Municipal Act, 2001, supra, I think it plain and obvious, in the circumstances, that his pleaded claims against those defendant individuals stand no reasonable prospect of success. The claims accordingly should be dismissed pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure for disclosing no reasonable cause of action.

[15] Second, although the above considerations are sufficient to warrant the relief sought by the moving defendants, in my view granting of that relief also is justified on the second basis relied upon by those defendants; i.e., that the claims pleaded against the moving defendants have no prospect of success, insofar as Mr Kuttschrutter has failed to plead any allegations that the defendant individuals committed any independent tortious or wrongful conduct and/or conduct outside the ambit of their employment by the corporate defendant, such that Mr Kuttschrutter’s pleadings assert/disclose no reasonable cause of action against any of the named defendant individuals in any event. In that regard:

a. General principles relevant to such determinations, emphasized by authorities such as Serel v. 371487 Ontario Ltd., [1996] O.J. No. 3988 (Gen.Div.), Kay Aviation b.v. v. Rofe, [2011] P.E.I.J. No. 48 (C.A.), Lobo v. Carleton University, 2012 ONCA 498, and Hartley v. York University et al., an apparently unreported decision of Justice Chambers rendered in this court on June 12, 2023, in Toronto court file no. CV-21-00661515-0000, include the following:

i. The imposition of personal liability on an employee, officer or director of a corporation is the exception rather than the rule.

ii. The criteria to establish such personal liability are:

1. a finding that the actions of such employees, officers or directors of a corporation are themselves tortious; or

2. a finding that the actions of such employees, officers or directors exhibit a separate identity or interest from that of the corporation or employer, so as to make the act or conduct complained of their own.

iii. To justify a departure from the general rule, a claimant must plead all the relevant material facts to establish that there is a reasonable cause of action personally against the director, officer or employee of a corporation. In the absence of such specifically pleaded material facts, the claims against a director, officer or employee of the corporation will be struck out.

b. In the case before me, (as in the case before Justice Chalmers in Hartley v. York University et al, supra), in my view:

i. there are no allegations of conduct on the part of the moving defendants, (e.g., claims in fraud, deceit, dishonest or want of authority), that would constitute a separate tortious liability on the part of the moving defendants;

ii. there similarly are no allegations that the moving defendants were acting outside the scope of their employment, or on a “lark of their own”;

iii. there also are no allegations that the moving defendants engaged in acts that would manifest a separate identity from the defendant municipal corporation; and

iv. to the contrary, for the reasons outlined above, in pith and substance the claims advanced against the moving defendants rely upon pleaded acts done by those moving defendants while carrying out their duties under the Municipal Act, 2001, supra, and/or their employment duties with and for the relevant municipal corporation.

c. Mr Kuttschrutter’s pleadings accordingly disclose no reasonable cause of action against the moving defendants in that regard either, such that his claims against the moving defendants must be struck out pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure in any event.

Conclusion

[16] For the above reasons, an order shall go striking out all of the plaintiff’s pleaded claims herein against the moving defendants, being all defendants herein other than The Corporation of the Town of St. Marys.

Denial of leave to Amend

[17] In the particular circumstances of this case, I am not inclined to grant the plaintiff Mr Kuttschrutter leave to amend his pleadings in an effort to salvage any such claims, for reasons that include the following:

a. When his statement of claim was issued, Mr Kuttschrutter was required to plead details and specifics of the material facts necessary to support his allegations and claims against the moving defendants, and cannot hope that such material facts will emerge as the litigation proceeds. [11]

b. In any event, there was no suggestion that anything new has occurred or been discovered since Mr Kuttschrutter drafted his pleadings. If the moving defendants had done anything to take their conduct outside the immunity granted by s.448(1) of the Municipal Act, 2001, supra, or to exhibit conduct manifesting a separate identity from the relevant municipal corporation, (i.e., the defendant Town), those facts ought to have been pleaded by Mr Kuttschrutter.

c. Mr Kuttschrutter did not or request or seek any leave to amend his pleadings. Nor did he provide any draft amended claim he would have sought to file if the relief sought by the moving defendants, for the reasons set forth in their material, (including their factum), was granted. If the identified defects in his claim were capable of being remedied, I think it was incumbent on him to do so.

Costs

[18] In relation to costs of the motion, and the costs of the action relating to the struck claims advanced by Mr Kuttschrutter against the moving defendants:

a. Although I formally reserved my decision until I had time to write this endorsement after the close of motions court today, I invited the parties to indicate their respective positions regarding costs in the event of success or failure. In that regard:

i. Mr Kuttschrutter indicated that if he succeeded on the motion, he would not be seeking costs from the moving defendants, with the implicit if not explicit hope that the moving defendants would take a similar approach to the matter.

ii. While the moving defendants accordingly were not facing any claim for the adverse costs in the event of failure on the motion, counsel for those moving defendants submitted a Bill of Costs, (supported by significantly redacted docket entries, likely redacted to avoid the disclosure of privileged information relating to the litigation which will be continuing against the defendant Town), outlining the moving defendants’ cost claims in the event of their success on the motion. In accordance with that Bill of Costs, the moving defendants sought costs of the motion and action against them totaling $8,839.15 on a substantial indemnity basis, and $6,873.30 on a partial indemnity basis.

b. In my view, the moving defendants were entirely successful in relation to the motion, and therefore in relation to the claims against them which now have been struck out. They accordingly should be entitled to a measure of costs in relation to the motion and the action brought against the moving defendants by Mr Kuttschrutter.

c. I nevertheless see no basis for awarding any such costs on an elevated scale. In that regard:

i. Although the court has a broad discretion in relation to costs, confirmed by s.131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as expanded by Rule 57.01 of the Rules of Civil Procedure, our appellate courts repeatedly have emphasized that awards of costs on a partial indemnity basis generally strike the proper balance as to the burden of costs that should be borne by the “winner”, and that elevated cost awards should be reserved for “rare and most exceptional” cases. [12]

ii. The sort of conduct meriting elevated cost awards has been described in various ways. For example:

1. In Young v. Young, [1993] 4 S.C.R. 3, at p.134, McLachlin J. (as she then was) indicated that elevated cost awards are warranted “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”.

2. In Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.), and McBride Metal Fabricating Corp. v. H&W Sales Co. (2002), 59 O.R. (3d) 97, whose principles were echoed and emphasized again by the Court of Appeal in Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), conduct warranting elevated cost awards was described as “reprehensible”, “egregious”, or “acts that clearly indicated an abuse of process”, justifying enhanced costs as a form of chastisement.

iii. In this case, I saw nothing in the history of the matter, or in the proceedings that transpired before me, suggest any conduct of Mr Kuttschrutter, in the sense required, to warrant an award of costs on a substantial indemnity basis.

d. As for quantification of the partial indemnity costs to be awarded to the moving defendants, I have considered all the discretionary cost factors outlined in Rule 57.01 of the Rules of Civil Procedure, but note in particular the following additional considerations:

i. In relation to the principle of indemnity, I have no difficulty with the indicated hourly rates of the lawyers and law clerk who worked on the matter. However, although redaction of the dockets submitted by the moving defendants may have been justified to safeguard solicitor client privilege, it also deprives me of a basis for determining whether all of the time underlying the current claim for costs was devoted exclusively to this motion and/or defence of the claims advanced against the moving defendants, and to matters in respect of which the moving defendants were not entitled to advance a claim before costs before now. In my view, that is an important consideration in a situation such as this, where all of the defendants have been represented by the same law firm, and there have been earlier proceedings in relation to this matter, (i.e., successful efforts by the defendants to have default proceedings initiated by Mr Kuttschrutter), in respect of which Justice Nicholson expressly indicated that no costs should be awarded. Moreover, although the motion herein gave rise to demonstrated mentoring opportunities, I think it fair to say, (with no disrespect intended), that there really was no need for more senior counsel Mr Delgado to attend or participate in a motion that was capably argued by his junior counsel, Ms Sidhu. In fairness, Mr Kuttschrutter should not have to pay for overlapping or duplicated efforts in relation to preparation or argument of the motion, and/or defence of the claims Mr Kuttschrutter advanced against the moving defendants.

ii. I also think it likely that time spent by defence counsel on various aspects of this litigation, (e.g., reviewing the plaintiff’s pleadings, exploring the underlying circumstances of this case, and preparation of a defence pleading), enured to the benefit of the defendant Town as well, and the Town obviously remains a defendant to the remaining aspects of this ongoing litigation. In fairness, I think Mr Kuttschrutter accordingly should not have to pay for all of the costs incurred in that regard unless and until it is established that his claims against the Town will be unsuccessful as well.

iii. Although Mr Kuttschrutter candidly indicated his expectation that the moving defendants would not be asked to pay anything to him by way of costs, had he been successful on the motion, I place little weight on that consideration. As a self-representing party, Mr Kuttschrutter reasonably could not be expected to incur litigation expense approximating anything close to that incurred by the moving defendants, who have been represented by counsel from the outset.

iv. The issues addressed by the motion were of modest to moderate complexity, as evidenced by the parties’ ability to argue those issues in less than 60 minutes during a “regular motions” day in London.

v. The issues nevertheless were of considerable importance to the parties involved, insofar as resolution of those issues would result in formal termination of the plaintiff’s claims against the moving defendants. Having said that, the plaintiff Mr Kuttschrutter is still left with his claims against the defendant Town, in respect of which there inherently will be few recovery issues in the event he is successful.

vi. In terms of party conduct that tended to shorten or lengthen unnecessarily the duration of the proceeding, I disregard the default proceedings initiated by Mr Kuttschrutter, which the moving defendants were obliged to reverse through the taking of formal and no doubt costly steps in this litigation. Again, Justice Nicholson already has ruled that there were to be no costs awarded in that regard. Beyond that, I saw nothing in the conduct of Mr Kuttschrutter that tended to lengthen the proceeding, apart from his refusal to concede the merits of the legal points raised by the moving defendants on this motion. However, as emphasized by our Court of Appeal in Foulis v. Robinson, supra, and Davies v. Clarington, supra, under our system, parties are entitled to have litigation opponents prove their case, and there is no obligation to settle an action.

[19] Having regard to all the factors set forth in Rule 57.01 of the Rules of Civil Procedure, and the particular circumstances of this case, in my view justice will be served if the plaintiff Mr Kuttschrutter is obliged to pay the moving defendants costs of this motion and of the claims advanced against the moving defendants, fixed in the all-inclusive amount of $3,500.00.

“Justice I.F. Leach” Justice I.F. Leach Date: August 4, 2023

[1] See Web Offset Publications Ltd. v. Vickery (1999), 43 O.R. (3d) 802 (C.A.).

[2] See Toronto v. Schein (1980), 19 C.P.C. 195 (Ont.H.C.). For purposes of this motion, I accordingly have no regard to the evidence effectively tendered by the moving defendants, via their Supplementary Factum, in relation to an earlier and separate by-law passed by the Town’s municipal council, (i.e., By-law Number 20 of 2016), setting forth the Town’s policy governing the calling, place and proceedings of the Town’s municipal council and committees; a by-law upon which the moving defendants sought to rely in order to emphasize why members of the municipal council voting on adoption of policies for the Town do so in the exercise or intended exercise of the authority conferred on such Council members by the Municipal Act, 2001, supra. Having said that, I also do not think such additional emphasis was necessary to establish the moving defendants’ desired point in that regard, for the reasons outlined below.

[3] See, for example: Hunt v. Carey Canada Inc.; R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 5 O.R. (3d) 778 (C.A.); Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; and Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458.

[4] See Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.); and Paton Estate v. Ontario Lottery and Gaming Corp., supra.

[5] See, for example, Miltenburg v. Ashfield (Township), [1996] O.R. No. 3089 (Gen.Div.).

[6] See Doe v. Metropolitan Toronto (Municipality)(Commissioners of Police), (1990), 75 O.R. (2d) 225 (Div.Ct.).

[7] The time span between the two pleadings stems in large measure from default proceedings initiated by Mr Kuttschrutter, which the defendants then moved to set aside, and which then were set aside by Order of Justice Nicholson on February 3, 2023.

[8] Again, see section 229 of the Municipal Act, 2001, supra.

[9] See, for example: Guimond v. Quebec (A.G.), [1996] 3 S.C.R. 347; Thirsty’s Bar and Grill v. Waterloo, [2000] O.J. No. 2986 (S.C.J.); and LaFrance v. Windsor (City), [2009] O.J. No. 2662 (S.C.J.).

[10] See, for example, LaFrance v. Windsor (City), supra, at paragraphs 48-59.

[11] See Hartley v. York University et al, supra, at paragraph 20.

[12] See, for example, Foulis v. Robinson (1987), 21 O.R. (2d) 769 (C.A.), and Isaacs v. MHG International Ltd., (1984), 45 O.R. (2d) 693 (C.A.).