A Helpful Reminder about Pleadings
In Rivard v. Kingston Police, 2023 ONSC 6627, the Divisional Court simultaneously grappled with a motion to strike out an amended statement of claim, and a cross-motion for leave to amend the amended claim.
Context
On September 7, 2018, the plaintiff (respondent on appeal) was involved in an altercation with Kingston Police officers after being forcibly removed from a vehicle in which he was a passenger. The plaintiff alleged he was brutally beaten by the officers and sustained grievous bodily injuries.
The defendants (appellants on appeal) brought a motion to strike out an amended statement of claim against the Chief of the Kingston Police (“the Chief”) and the Kingston Police Services Board (“the Board”). J.M. Johnston J. of the Superior Court (“the motion judge”) dismissed the defendants’ motion to strike, and at the same time, granted the plaintiff’s cross-motion for leave to amend the amended claim in the form of a “Fresh as Amended Statement of Claim”.
The defendants were granted leave to appeal the interlocutory decision of the motion judge to the Divisional Court.
Decision
The appeal was allowed in part. Certain paragraphs of the pleading were struck on the basis that they did not disclose a recognizable cause of action. The respondent was granted leave to serve and file an “Amended Fresh as Amended Statement of Claim”, except that he could not rephrase the struck-out allegations.
The Applicable Rules
The defendants’ motion to strike the amended statement of claim was brought under Rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:
Rule 21.01
(1) A party may move before a judge,
[…]
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
[…]
(b) under clause (1) (b).
Rule 25.11
The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
The plaintiff’s cross-motion for leave to amend the amended claim was brought under Rule 26.01 of the Rules of Civil Procedure:
Rule 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.
The Court also considered the following paragraphs of Rule 25.06 of the Rules of Civil Procedure:
Rule 25.06
(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.
(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
As the Court noted, the standard of review on a Rule 21.01(1)(b) motion to strike is correctness (see, McCreight v. Canada (Attorney General), 2013 ONCA 483, para 38).
Reasons
The Court found that the claim meets the threshold of a valid pleading: it sets out the relief claimed, it describes the incident giving rise to the claim, and it describes in detail the altercation which led to the injuries allegedly sustained.
The motion judge did not fall into reversible error by considering what findings or inferences could be made at trial or by referring to the factual findings made by the criminal court judge, as in so doing, the motion judge was addressing the appellants’ argument that the pleadings were boiler plate or general allegations.
However, the motion judge erred in law by failing to apply the applicable rules of civil procedure to the allegations that pertained to after-the-fact conduct or misfeasance. The Court struck such allegations on the basis that they were irrelevant, non-material facts that cannot support a cause of action against the defendants.
Takeaways
This decision is a helpful reminder about the purpose of pleadings and what a pleading can and cannot contain. As Justice McCarthy eloquently states, “[pleadings] are about setting out material facts which, if proven, would tend to prove what is alleged” (para 28), not evidence, argument, proof, investigation, reports, will-says, references to documents or witness names. Furthermore, as per Rule 25.11, a Court may strike all or part of a pleading – thus, an issue with a pleading is not always entirely dispositive.