2021 NLSC 129, 2021 NLSC 129

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Farrell v. Wabush (Town) , 2021 NLSC 129 Date : October 8 , 2021 Docket : 202008G0047 Between: Joshua Peter Farrell Plaintiff And: Town of Wabush, NL Town Manager Charlie Perry First Defendant And: Colby Construction Inc, nl Owner Tony Parson Second Defendant And: Sutton Realty, nl Owner Roger Winsor Third Defendant And: CAPLYN HOLDINGS INC. Third PARTY Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador

Date of Hearing: November 23, 2020

Summary: The Defendants brought applications to strike the pleadings of the Plaintiff as disclosing no reasonable cause of action or a ruling perRule 38.01 that the Plaintiff was statute barred from bringing the claim as a result of the Limitations Act. In the alternative, they alsosought various amendments to the statement of claim. The applications to strike were allowed in part. The Court declined to considerwhether the Plaintiff was statute barred from bringing his claim.

Given that the Plaintiff was not represented by counsel, the Court wasnot satisfied it could rely on the statement of claim as drafted to provide an adequate evidentiary record to deal with the legal issue underRule 38.01. The Plaintiff was given leave to make several amendments to the statement of claim. Appearances: Joshua Peter Farrell Appearing on his own behalf Annette M. Conway Appearing on behalf of the First Defendant R. Paul Burgess, Q.C. Appearing on behalf of the Second Defendant Andrew J. Wadden, Q.C.

Appearing on behalf of the Third Defendant No appearance On behalf of the Third Party Authorities Cited: CASES CONSIDERED: Seascape 2000 Inc. v. Attorney General of Canada, 2012 NLTD(G) 185; Hunt v. T.L.N. plc - Carey CanadaInc. (Carey-Canadian Mines Ltd.) et al v. Hunt, T & N plc and Flintkote Mines Limited; Flintkote Mines Limited et al v. Hunt, T & N plcand Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959; Andrew v. Canada (Attorney General), 2009 NLCA 70; ElderAdvocates of Alberta Society v. Alberta, 2011 SCC 24; Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42; Montreal Trust Co. ofCanada v.

Hickman, 2001 NFCA 42; Squires v. Association of Newfoundland Surveyors, 2021 NLSC 60; Rubens v. Sansome, 2017NLCA 32; Moakler v. Conception Bay South (Town), 2006 NLCA 72; Ind-Red Highway Services Ltd. v. Miawpukek Band (1999), (NL CA), 172 Nfld. & P.E.I.R. 245, 33 C.P.C. (4th) 305 (Nfld. C.A.); Fillatre Estate v. Fillatre, 2016 NLCA 69;Seadane International Inc. v. Morgan International Marketing Co. (1999), (NL CA), 180 Nfld. & P.E.I.R. 97, 41C.P.C. (4th) 284, (Nfld. C.A.) STATUTES CONSIDERED: Urban and Rural Planning Act, 2000, SNL 2000, c. U-8; Limitations Act, S.N.L. 1995, c.

L-16.1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: Black’s Law Dictionary, 9th ed. (St. Paul, Minn.: West, 2009)

REASONS FOR JUDGMENT Knickle, J. : INTRODUCTION [ 1 ] In June 2020 the Plaintiff, Joshua Farrell, filed a statement of claim against a number of Defendants seeking over 2 million dollars in damages. He is not represented by counsel and appears to have drafted the statement of claim on his own. The Defendants have each filed interlocutory applications seeking various relief, including seeking to “strike” the statement of claim. The Defendants assert that the statement of claim either discloses no reasonable cause of action, or that Mr.

Farrell is statute barred by the applicable limitation period within which to commence the proceedings. [ 2 ] For ease of reference, although the Defendants are the Applicants and the Plaintiff is the Respondent in these applications, I refer to the parties as the Defendants or Plaintiff or their respective names in this judgment. The statement of claim [ 3 ] The statement of claim is poorly drafted. The formatting is confusing, referring to multiple paragraph numbers.

There is information in the pleadings that all three Defendants reasonably argue are not statements of fact necessary to ground the pleadings, but are matters of evidence. [ 4 ] In particular, while the statement of claim itself is seven pages, attached to same are no less than 26 pages of emails, two pages of copies of financial information, and 42 pages of what appear to be black and white photographs. None of this material is properly part of a set of pleadings or properly before the court, and I have not considered this material in these applications.

While there are also several statements within the pleadings that do not comport with the formal requirements, for the purposes of these applications I may refer to these statements as they provide some assistance in understanding how the action came about. [ 5 ] According to the statement of claim, in February of 2011 the Plaintiff, Joshua Farrell, purchased a newly constructed dwelling in the Town of Wabush, NL. Since purchasing the dwelling, he complains that because of the “spring snow melt and water run-off”, he has experienced “major water problems” and damage to his property. Mr.

Farrell alleges the water leaked into “my crawl space of my home, garage and caused major ground erosion to the back

section of my property” (statement of claim, paragraph 1). [ 6 ] Mr. Farrell states he spoke to members of the town council with the Town of Wabush.

He states a person named Melanie LaFosse (it was not clear from the statement of claim whether she was a town council member or employee of the Town) stated that: “It is not our problem, it is the responsibility for the contractor who purchased the land from the [T]own of Wabush to correctly develop the lots and fix the issue.” [ 7 ] The Plaintiff states she advised him that Tony Parsons was the owner of the company contracted to build the homes and had “made promises to finish what he had started”.

The Plaintiff states that his “thoughts” regarding the above statement were: “Ok the street is still in the development stage”. [ 8 ] In the summer of 2011, the Plaintiff decided to make improvements to his property by building an extension and landscaping a “back section” of his lot. Before construction could start in the spring of 2012, the problems with water run-off reoccurred.

The Plaintiff stated he again spoke to “the Town Council of Wabush” on at least two occasions, but was told that: “It is the responsibility of the homeowner to fix [the] back part of their property or you have to talk to the contractor.” [ 9 ] The Plaintiff then spoke to Tony Parsons. As a result of that conversation, Tony Parsons loaned Mr. Farrell an excavator and the Plaintiff arranged to have the property “benched and levelled the hill side”. The Plaintiff stated he also installed a retaining wall and “regrade[d] the ground on the back and sides of my property” (statement of claim, paragraph 2).

However, the problems with water leaking into his home did not end. The Plaintiff asserts that when he again approached Melanie LaFosse, she told the Plaintiff that the Town was “working with Tony Parsons to get him to follow through with his commitments” (statement of claim, paragraph 3) [1] . It is not clear from the statement of claim if the “commitments” to which Melanie LaFosse purportedly referred included addressing the Plaintiff’s problems with water leaking into his home. [ 10 ] The problems with excess water run-off continued in 2013.

The Plaintiff states that he intended to approach Tony Parsons directly about the problem but before so doing, he asked for “any engineering plans, or development plans, or a copy of any contract between the Town and Mr. Parsons or his construction company from the Town”. It was at this time the Plaintiff asserts that Melanie LaFosse advised him that the Town of Wabush had no “contractual agreement in place with Colby Construction”. The Plaintiff asserts that it was for this reason he did not pursue the problems he was having with his home and water damage with Mr. Parsons. [ 11 ] Mr.

Farrell states that in 2015, he met with a lawyer, Edmund Montague, and paid him to “file a lawsuit” against the Defendants; however, no lawsuit was filed by Mr. Montague on behalf of the Plaintiff. There has been no explanation as to why this did not occur. There is also no statement of fact as to what transpired since 2015. [ 12 ] In June 2020, Mr. Farrell filed the statement of claim against the Defendants. The allegations of wrongdoing by the Defendants

[ 13 ] As poorly drafted as is the statement of claim, there is no confusion that the Plaintiff asserts that he has suffered not only damage to his home, but “mental stress, pain and suffering” to he and his family. He seeks total “relief” in the amount of $2,475,000. What is less clear is the basis upon which the Plaintiff claims that each of the Defendants are at fault for this damage or injury. [ 14 ] With respect to the First Defendants, “the Town of Wabush and Charlie Perry”, Mr.

Farrell states that the Town “improperly” allowed Tony Parsons and his construction company to proceed with development of the street where Mr. Farrell purchase his home. Mr.

Farrell stated (at what appears to be paragraph 7): The town council of Wabush gave Tony Parson permission to proceed with the development of three new street in the town of Wabush, Bowater Extension Drive, Winter Drive and Snows Drive without a development plan in place. [ 15 ] He then states: The town council made a professional decision to allow the development to move forward before having any engineering development plan completed, sign and or stamped civil engineer.

The town council of Wabush also made the decision to allow Tony Parson owner Colby Construction Inc. to change the old street development layout, they gave him permission to squeeze the lot sizes smaller to build more houses on the east side of Bowater Extension. By doing this they caused an even greater problem with melting ground water being bottle necked behind and between each home on the East side of Bowater Extension Drive. The Town of Wabush failed to follow the Newfoundland and Labrador Urban and Rural Planning Act, 2000

part 1,

part 2,

part 3. [ 16 ] Mr. Farrell goes on to cite

section 13 of the Urban and Rural Planning Act, 2000 , SNL 2000, c. U-8 , of which the Town failed to adhere, in support of his complaint against the Town. [ 17 ] Mr. Farrell does not state facts in support of his claim personally against Charlie Perry. [ 18 ] With respect to the Second Defendant, Tony Parsons, and his purported construction company “Colby Construction Inc, NL”, Mr. Farrell makes a similar complaint; citing the same legislation. [ 19 ] With respect to the Third Defendants, Roger Winsor personally, and “Sutton Realty, NL”, Mr. Farrell alleges that Mr.

Winsor failed to “follow the realtor Code of Ethics”, and “failed to ensure all documents such as permit to occupy was signed off by a qualified inspector before selling my home to me”.

He also states, “Roger Winsor failed to ensure document between him and my lawyer Edmund Montague were processed correctly before the closing of my home”. [ 20 ] He also states, at (what is labeled as) paragraph “A.(C)”: Roger Winsor owner of Sutton Realty made a professional decision to partake in the selling of homes for Tony Parson and Hubert Randell owner of Quality North Home builders who was the home builder for Tony Parson. [ 21 ] Mr. Farrell also alleges that all the Defendants, in “selling” the home to Mr.

Farrell, “deliberately and knowingly made a professional consensus decision to cut corners for a greater financial gain for themselves”. Mr. Farrell states that the Town “cut corners” by “not hiring a civil engineering firm to engineer, and plan correctly for the new development.” He then specifies that Tony Parsons “failed to ask for stamped engineered development drawing or made any attempt to pursue a civil engineering firm before starting on a new development for the Town of Wabush”. [ 22 ] Mr.

Farrell further states not only that Tony Parsons “failed to follow building construction code, permit processes and inspection processes for the installation of foundation for all homes built on Bowater extension Drive”; he “failed to follow permit and inspection processes for the structural and electrical integrity for my home built on Bowater Drive extension”. [ 23 ] Mr. Farrell does not state how Mr. Winsor breached an “ethical code”, nor how he or “Sutton Realty, NL” “cut corners”.

The interlocutory applications [ 24 ] Upon being served with the statement of claim, the Town and Roger Winsor filed their defences. The Town also named Caplyn Holdings Inc. as a Third Party seeking to have them indemnify the Town for any damages resulting should the Plaintiff be successful against the Town. Tony Parsons and “Colby Construction Inc, NL” have not yet filed a defence. [ 25 ] All three Defendants filed the within interlocutory applications. [ 26 ] The applications differ slightly in their approach as to not only the basis for the relief sought but the nature of that relief.

For this reason, before addressing the applications on their merits, it is helpful to explain the basis of each application and the relief sought. The application of the First Defendants, the “Town of Wabush, NL” and “Town manager” Charlie Perry [ 27 ] While contesting all of the allegations, for the purposes of their application the Town accepted that the statement of claim might disclose allegations in negligence; either for damage to property, or injury to the Plaintiff. The problem, asserts the Town, is that the Plaintiff is well past the expiry date under the Limitations Act, S.N.L. 1995, c.

L-16.1 to commence the within proceedings. The Town seeks to have the question of whether Mr. Farrell is statute barred determined under Rule 38.01 of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . If the Court is satisfied that Rule 38.01 is the appropriate vehicle to assess the limitations issue, and finds that Mr.

Farrell is statute barred, the Town seeks to have the statement of claim struck under Rule 14.24 or the proceedings dismissed under either Rules 38.01 or 33.03. [ 28 ] The Town submits that if the Court does not dismiss the statement of claim, the Town has not been properly named, and the style of cause needs to be amended. The Town submits that under Rule 15.01 reference to “NL” in the name needs to be deleted, and the Town be referred to by its official name “Town of Wabush”.

[ 29 ] Likewise, counsel for the Town further submits that regardless of the limitations issue, there is no reasonable cause of action asserted in the statement of claim as it relates to the individual Charlie Perry, and the action be discontinued as it relates to him personally. [ 30 ] Finally, the Town submits that the appendices of material included with the statement of claim must be deleted, as they are more properly evidence than part of pleadings, as per Rule 14.03. They should also be struck from the statement of claim.

The application of the Second Defendant, Tony Parsons, and “Colby Construction Inc, NL” [ 31 ] Tony Parsons submits that the statement of claim must be struck as it relates to allegations against “Colby Construction Inc, NL” as there is no such legal entity of which he is the owner. The written argument filed by counsel on behalf of Tony Parsons states that there was an entity known as Colby Construction Limited, which was duly incorporated in the Province of Newfoundland and Labrador, and of which Tony Parsons was a director.

According to the written argument, that corporation filed its last return in 2008 and amalgamated into a new corporation, Colby 2000 Limited. There was no evidence as to the current status of this new corporation.

Tony Parsons asserts that as there is no such legal entity “Colby Construction Inc, NL”, it must be struck as a party from the proceedings. [ 32 ] Tony Parsons further asserts that not only has he been improperly named, as he is not the “owner” of any entity known as “Colby Construction Inc, NL”, there is nothing in the statement of claim that discloses any reasonable cause of action as against him personally. Finally, like the Town of Wabush, Tony Parsons submits that even if the statement of claim discloses a cause of action in tort or contract, Mr.

Farrell is past the period permitted under the Limitations Act to bring his claim. Tony Parsons does not raise the limitations issue as a matter for determination under Rule 38.01 , but as one of the basis for striking the statement of claim under rule 14.24, in that because of limitations having expired, there is no reasonable cause of action. The application of the Third Defendants, Roger Winsor and “Sutton Realty, NL” [ 33 ] Roger Winsor asserts the statement of claim discloses no reasonable cause of action against Mr. Winsor personally.

The action also cannot succeed against “Sutton Realty, NL” as there is no such legal entity. Mr. Winsor, like the Town, also submits that even if a reasonable cause of action was disclosed in either tort or contract, Mr. Farrell is statute barred because of the Limitations Act . Like the Town, he raises the limitations issue as a request for a determination of a question of law under Rule 38.01, and if the Court is satisfied Mr. Farrell is precluded from bringing the action, the statement of claim should be struck. He also seeks to have the appendices filed with the statement of claim deleted. The response of Mr.

Farrell to the applications filed by the Defendants [ 34 ] Mr. Farrell did not file a response, per se , but filed his own interlocutory application, seeking not only an order for discovery under Rule 32.02, but also for the Court to answer seven (7) questions. The questions are evidentiary in nature and more properly a matter for the examination of the relevant witnesses at discovery, trial, or by way of interrogatories. However, some of the questions posed in Mr. Farrell’s interlocutory application affirm that he asserts that the Defendants, by way of their conduct, are at fault for the harm he has suffered.

For example, Mr. Farrell asks “Why did the develop[p]er start developing the land without an engineered plan put forward to the Town of Wabush?” Mr. Farrell’s application otherwise reiterates much of what is in the statement of claim. Mr. Farrell reattached the photographs and emails attached in the statement of claim. The hearing of the interlocutory applications [ 35 ] The applications were heard together. Prior to commencing the hearing, Mr. Farrell was asked about the fact that he had not filed a response to the three applications filed by the Defendants. Mr.

Farrell responded that his interlocutory application was his response to the applications. This is unfortunate, because Mr. Farrell’s response by way of this application does not articulate his position as to whether or not the proceedings ought to be struck or dismissed. [ 36 ] The applications by the Defendants proceeded. During submissions, Mr. Farrell conceded that there was no claim personally against Charlie Perry. He also expressed that he was willing to withdraw any claim against “Sutton Realty, NL” or Roger Winsor if there were to be no costs awarded against him.

At the conclusion of the hearing, I reserved my decision. ISSUES [ 37 ] The issues can be framed as follows: 1. Does the statement of claim disclose a reasonable cause of action against the Second and Third Defendants? 2. If the statement of claim discloses a cause of action, should the Court exercise its discretion under Rule 38.01 to determine whether the Plaintiff is precluded from pursuing his claims by virtue of the Limitations Act ? 3. Should the statement of claim be amended as requested by the Defendants?

ANALYSIS [ 38 ] The complaints of the Defendants illustrate the difficulties unrepresented litigants face in meeting the legal requirements in pursing court proceedings. The Defendants challenge the statement of claim both in form and substance. Given the poor manner in which the pleadings were drafted, I have sympathy for the complaints of the Defendants. The court is faced with the unenviable task of untangling the language in the statement of claim to discern whether or not, as constituted, it is capable of supporting proceeding with the action.

The words of Orsborn, C.J. (as he then was), in Seascape 2000 Inc. v . Attorney General of Canada , 2012 NLTD(G) 185, at paragraphs 31 to 34 are apposite to the circumstances here: 31 The purpose of pleadings has been stated many times. It is discouraging to see that, in too many cases, proper purpose is

forgotten in a claimant's desire to tell a story, express views, or otherwise set out matters that will be of no possible relevance to a judicialdetermination of the real factual and legal issues in dispute. 32 Simply put, pleadings represent the frame around which the litigation proceeds and is adjudicated.

They set out clearly andconcisely what relief the plaintiff is asking the court to order and the factual and legal bases of entitlement to the requested relief. 33 For the defendant the pleadings disclose the case to be met — the relevant matters on which issue is joined; for the trial judge,the pleadings disclose, no more or no less, the factual and legal questions not in dispute and those on which the parties differ and whichwill require a judicial determination following trial. 34 Proper pleadings do not require lengthy statements of evidence — the means by which a party proposes to prove a material fact;they do not require recitations of context or history; they do not require legal argument; in short, they do not require anything thatdetracts from or obscures or is irrelevant to the essential legal and factual matrix of the claim. [39] In assessing the statement of claim, it is not, and cannot be, the role of the Court to conduct litigation on behalf of anunrepresented litigant.

It is not the role of the Court to draft documents on behalf of a litigant. On the other hand, as an unrepresentedlitigant, Mr. Farrell has a fundamental right to have meaningful access to our system of justice to pursue his legal claims. He must beafforded latitude in the language used by him in formalizing his complaint in the statement of claim. Issue 1: Does the statement of claim disclose a reasonable cause of action against the Second and Third Defendants? [40] As stated, for the purpose of these applications, the First Defendant accepts that the statement of claim discloses a cause ofaction in negligence.

However, both the Second and Third Defendants submit no reasonable cause of action is disclosed as against them. [41] The authority to strike a statement of claim, on the basis that it discloses no reasonable cause of action is found in Rule 14.24 ofthe Supreme Court Rules. Rule 14.24 states: 14.24.

(1) The Court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struckout or amended on the ground that (

a) it discloses no reasonable cause of action or defence; (

b) it is false, scandalous, frivolous or vexatious; (

c) it may prejudice, embarrass or delay the fair trial of the proceeding; or (

d) it is otherwise an abuse of the process of the Court, and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly.

(2) Unless the Court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under rule14.24(1)( a). [42] What constitutes “no reasonable cause of action” was described by Wilson, J. in Hunt v. T.L.N. plc - Carey Canada Inc.(Carey-Canadian Mines Ltd.) et al v. Hunt, T & N plc and Flintkote Mines Limited; Flintkote Mines Limited et al v. Hunt, T & N plc andCarey Canada Inc., (SCC), [1990] 2 S.C.R. 959, at paragraphs 36 and 37: 36 Thus, the test in Canada governing the application of provisions like R. 19(24)(

a) of the British Columbia Rules of Court is thesame as the one that governs an application under R.S.C., O. 18, r. 19: assuming that the facts as stated in the statement of claim can beproved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there isa chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat".

Neither the length andcomplexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should preventthe plaintiff from proceeding with his or her case.

Only if the action is certain to fail because it contains a radical defect ranking with theothers listed in R. 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struckout under R. 19(24)(a). 37 The question therefore to which we must now turn in this appeal is whether it is "plain and obvious" that the plaintiff's claims inthe tort of conspiracy disclose no reasonable cause of action or whether the plaintiff has presented a case that is "fit to be tried", eventhough it may call for a complex or novel application of the tort of conspiracy. [43] As stated above, the question is, is it plain and obvious that the statement of claim cannot succeed (see also Welsh, J.A. inAndrew v.

Canada (Attorney General), 2009 NLCA 70 at paragraph 64). Similarly, in Seascape, at paragraphs 15 and 16, Orsborn, C.J.referred to Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24 per McLachlin, C.J.C., at paragraph 20 and to Knight v. ImperialTobacco Canada Ltd., 2011 SCC 42 at paragraph 17. Orsborn, C.J. noted that these decisions from the Supreme Court of Canada alsorestated the test as to whether or not the claim has “any reasonable prospect of success”. [44] The determination does not take into account possible defences, but on the pleadings themselves. Thus, the fact that there may

be viable, even strong defences, is not part of the determination. That is a matter for trial. Nor is it appropriate to strike a statement ofclaim because the issues are complex, or that an argument is novel. As McLachlin stated in Knight at paragraph 21 (also quoted byOrsborn, C.J. at paragraph 18): 21 Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions thatyesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, (FOREP), [1932]A.C. 562 (U.K.

H.L.) introduced a general duty of care to one's neighbour premised on foreseeability, few would have predicted that,absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snailin a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action fornegligent misstatement would have been regarded as incapable of success.

The history of our law reveals that often new developments inthe law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson.Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather askwhether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed.

The approach must be generousand err on the side of permitting a novel but arguable claim to proceed to trial. [45] I take the above excerpts from Knight, Hunt and Elder Advocates to mean that a court must be cautious before precluding aplaintiff from pursuing an action. It is only if it is “plain and obvious” that the claim cannot succeed should the proceedings be struck.

Even where a court might be satisfied that the statement of claim discloses no reasonable cause of action, before striking the statement ofclaim, the court should consider whether any deficiencies can be cured by amendment (see Montreal Trust Co. of Canada v. Hickman,2001 NFCA 42 at paragraph 12. See also Squires v. Association of Newfoundland Surveyors, 2021 NLSC 60 at paragraph 19). [46] The pleadings as filed by Mr. Farrell are anything but clear or concise, and instead reflect his “desire” to “tell a story” and referto matters that are likely “irrelevant”.

On the other hand, perfection is not the standard in how pleadings are drafted. While concisionand clarity may be the goals, so that the defendant knows what it is they are alleged to have done, and the court knows what it is uponwhich it is being asked to adjudicate, it must be remembered that there is no requirement that a cause of action be specifically named. As stated by the Newfoundland and Labrador Court of Appeal in Rubens v. Sansome, 2017 NLCA 32, at paragraphs 22 to 23: 22 A statement of claim is meant to allege facts to support a cause of action.

The cause of action is usually specifically named,although that is not a requirement of pleading. In this case, facts were alleged, and some causes of action were specifically named, butnegligence as a cause of action was not specifically named or pleaded. In such a situation, the question becomes whether the facts allegedsupport a cause of action known to law despite it not being named in the pleading (Popular Shoe Store Ltd. v. Simoni (1998), (NL CA), 163 Nfld. & P.E.I.R. 100 (Nfld.

C.A.)). 23 In Popular, the self-represented plaintiff’s statement of claim alleged certain facts but did not name a specific cause of action. Inruling that a trial judge has a duty to determine whether the facts alleged in a statement of claim constitute a cause of action known to lawregardless of whether the particular cause of action has been named or pleaded, Green J.A., writing for the Court, made the followingcomments at paragraph 23: ...

Even in superior court, the basic rule of pleading is that a party must plead material facts and is not required, as a condition of relief, tobe correct in fitting those facts, as a matter of pleading, into a particular legal pigeon-hole. If a claimant by his or her pleading orevidence states facts which, if accepted by the trier of fact, constitute a cause of action known to the law, the claimant should prima faciebe entitled to the remedy claimed if that is appropriate to vindicate that cause of action.

The only limitation would be the obvious onethat if the case takes a turn completely different from that disclosed or inferentially referenced in the statement of claim, thereby causingprejudice to the other side in being able properly to prepare for or respond thereto, the court may either decline to give relief or allowfurther time to the other side to make a proper response. [47] Given this, it is not necessary that Mr. Farrell identify specific causes of action to properly plead his claim. It will be enough ifthe facts he states disclose a reasonable cause of action.

In these circumstances, I am satisfied the statement of claim discloses areasonable cause of action in the tort of negligence against the Second Defendants, and contingent upon further clarification by thePlaintiff, against the Third Defendants as well. [48] In Rubens, Hoegg, J.A., speaking for the unanimous court at paragraph 36, defined the elements of the tort of negligence thisway: 36 The tort of negligence comprises three essential elements: (1) the existence of a duty of care, (2) breach of that duty of care, and (3) injury to the claimant caused by the breach (Hanke v.

Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333 (S.C.C.) at para. 6). [49] Similarly, Black’s Law Dictionary, 9th ed. (St. Paul, Minn.: West, 2009), defines negligence as: The failure to exercise the standard of care of the reasonably prudent person would have exercised in a similar situation; any conduct thatfalls below the standard to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, orwillfully disregardful of others rights.

[ 50 ] Applying the above

definitions in Ruben and Black’s Law Dictionary , the language used by Mr.

Farrell in his statement of claim supports his allegation that the Defendants were negligent in their various capacities with respect to the development of the street and residences where he purchased his home. [ 51 ] The use of the language that the Defendants “failed” to take certain steps, or made certain decisions “without” requiring specific conditions to be met (for example a development plan, or following statutory requirements), is language consistent with, or capable of meaning that, the Defendants were negligent in their respective roles in this property development. [ 52 ] I note that Mr.

Farrell also uses language that suggests the conduct was “intentional”. He states specifically that the Defendants “deliberately” failed to adhere to their obligations by “cutting corners” for “the purpose of financial gain”. This is strong language. It is a serious allegation that the harm caused by the Defendants was intentional, if this is indeed what Mr. Farrell means by the above statements. It is unclear in the statement of claim upon what facts Mr. Farrell relies to support this contention.

Without more I am not satisfied that the pleadings reasonably disclose any intentional tort committed by the Defendants as against Mr. Farrell or his property. The allegations against Tony Parsons and “Colby Construction Inc, NL” [ 53 ] With respect to Tony Parsons and his construction company, the language supports the allegation that his company was responsible for the property development where Mr. Farrell purchased his home that has allegedly suffered damage. While not explicit, I am satisfied that Mr. Farrell asserts that as the construction company engaged in the development, it owed a duty of care to Mr.

Farrell to ensure the development occurred in such a way that would not result in harm to the homes built. It is also evident from the pleadings that Tony Parsons’ construction company is alleged to have breached that duty of care by failing to adhere to a certain standard of conduct in how the property was developed (e.g. requiring an engineering plan, requiring a development plan, failing to adhere to the requirements of URPA ). It is by this alleged negligent conduct that Mr.

Farrell asserts he has suffered harm. [ 54 ] For this reason, with respect to Tony Parsons insofar as his construction company is concerned, I am not persuaded that the statement of claim discloses “no reasonable cause of action” and that it is “plain and obvious” from the pleadings that the Plaintiff could not succeed. The allegations against Tony Parsons, personally [ 55 ] I am also not satisfied that the pleadings disclose no reasonable cause of action personally against Tony Parsons. Mr. Farrell uses the language that Tony Parsons “deliberately” “cut corners”. The allegations refer to both Mr.

Parsons personally and in his capacity as the owner of the particular construction company. [ 56 ] Although Tony Parsons submits that there was no construction company named “Colby Construction Inc, NL”, he does not dispute that he was involved in the construction. For this reason, at this stage it cannot be said that there is no reasonable cause of action disclosed against Tony Parsons personally. The allegations against Roger Winsor and “Sutton Realty, NL” [ 57 ] Similarly, with respect to Roger Winsor and “Sutton Realty, NL”, the pleadings refer to both entities having “failed” to take certain steps.

While I am satisfied this is also an allegation of negligence, it is less clear how these alleged failures caused the harm suffered by Mr. Farrell. Indeed, at the hearing, Mr. Farrell, in agreeing to withdraw the claims against Mr. Winsor and “Sutton Realty, NL”, seemed unsure that if there is fault to be assigned for the manner in which the development occurred that caused the damage to his property, whether it could be attributed to Mr. Winsor or his purported real estate company. [ 58 ] While the pleadings also assert that Mr.

Winsor “failed to follow the realtor Code of Ethics”, there is no statement as to the nature of the failure or how it relates to the harm suffered by Mr. Farrell’s property. This is different from the situation with the other Defendants of whom there was stated a factual nexus between their conduct and resulting harm in that they are alleged to have been responsible or engaged in the development that Mr. Farrell now alleges caused harm to his property. [ 59 ] I also accept that Mr. Farrell alleges that Mr. Winsor “deliberately” “cut corners”. This may be an effort to allege negligence on the part of Mr.

Winsor, but again, unlike the other Defendants, Mr. Farrell has not stated what conduct was “deliberate” or how it resulted in harm. Unlike his allegations against the Town and Mr. Parsons’ construction company, he does not articulate how Mr. Winsor’s conduct causes him to be liable for the harm Mr. Farrell has allegedly suffered. [ 60 ] The only role Mr. Winsor appears to have played in the development of the property is as the realtor of the property. The fact that he was the realtor does not mean he had any role as to the actual construction of the dwelling or property development.

The pleadings make no connection between Mr. Winsor’s alleged conduct such as the “failure to ensure all documents such as permit to occupy was signed off by a qualified inspector before selling my home to me” and the resulting harm suffered to Mr. Farrell’s property. I am of the same view with respect to the allegation that “Roger Winsor failed to ensure documents between him and my lawyer, Edmund Montague, were processed correctly”. It is not evident how this conduct, even if it was a breach of a duty of care owed to Mr. Farrell, caused the injury suffered by Mr.

Farrell’s property. [ 61 ] Without a statement as to how this conduct caused the harm suffered by Mr. Farrell or his property I do not see how his conduct might result in him being held liable for the alleged harm suffered by Mr. Farrell. Having said that, it may be that there are further facts that could explain how the conduct in question caused the harm. The deficiency of the allegations in this regard may be a consequence of Mr. Farrell having drafted the statement of claim on his own. [ 62 ] Although at the hearing Mr.

Farrell stated that if no costs were awarded against him he was agreeable to having the pleadings discontinued, I am not inclined at this stage to strike the proceedings, given that the Court ought to consider whether deficiencies in the statement of claim might be cured. Keeping in mind that Mr. Farrell is not represented by counsel, I will give leave to Mr. Farrell to either amend the statement of claim to state how the conduct of Roger Winsor caused the alleged harm or file a notice of discontinuance

against Mr. Winsor and “Sutton Realty, NL”, if that is his intention. An action in nuisance [63] I have also considered whether there may be a claim in the tort of nuisance, given that the problem with water leaking into Mr.Farrell’s home appeared to have continued. The tort of nuisance was considered in Moakler v. Conception Bay South (Town), 2006NLCA 72. At paragraph 23, the court explained the tort: 23 What constitutes the tort of nuisance is not in dispute. I will cite, as did the trial judge, the definition adopted by LaForest J.in Tock v. St.

John's (City) Metropolitan Area Board, (SCC), [1989] 2 S.C.R. 1181 (S.C.C.), at p. 1190: Generically, as Salmond on the Law of Torts, 17th ed. by R.F.V. Heuston, at p. 50, notes, "nuisances are caused by

an act or omission,whereby a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land". ... LaForest J. wrote further, at p. 1192: ... In the presence of actual physical damage to property, the courts have been quick to conclude that the interference does indeedconstitute a substantial and unreasonable inference with the enjoyment of property. As put by Westbury L.C. in St. Helen's Smelting Co.v.

Tipping, [(1865), 11 H.L.C. 642], at pp. 650-51: ... the submission which is required from persons living in society to that amount of discomfort which may be necessary for thelegitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensibleinjury to the value of the property. [64] Given the above definition, and the ongoing nature of the problems with water run-off to Mr. Farrell’s property, I am satisfiedthat the facts disclose a reasonable cause of action in nuisance against the Town.

The allegations against Charlie Perry [65] With respect to the claim against Charlie Perry personally, I agree the application to strike must succeed. Mr. Farrell alsoconceded at the hearing that there was no claim personally against this individual; the allegation is against the Town. Upon review ofthe statement of claim, there is no reference to Charlie Perry other than him being named in the style of cause. [66] Given this, I am satisfied that it is plain and obvious that the claim cannot succeed against Mr. Perry personally.

He may be amaterial witness in these proceedings, but there is nothing in the statement of claim that articulates why he would be named personally asa Defendant. The pleadings should be discontinued as against Mr. Perry. [67] Finally, the refusal of the Court to strike all of the claims cannot be taken as an endorsement of future success in proving ordefending the allegations. Whether the claims can be established is a matter for trial. The refusal to strike the claims at this stage(except as they relate to Charlie Perry), means no more than it cannot be said that that it is “plain and obvious” that Mr.

Farrell cannotsucceed. Issue 2: If the statement of claim discloses a reasonable cause of action, should the court exercise its discretion under Rule38.01 to determine whether the Plaintiff is precluded from pursuing his claim by virtue of the Limitations Act? [68] While I am satisfied that, on a generous

interpretation, the statement of claim may disclose a cause of action in negligenceand/or nuisance against the Town and negligence against Mr. Parsons, the construction company, Roger Winsor and “Sutton Realty,NL”, the Defendants submit that Mr. Farrell is statute barred from bringing the action because the applicable limitation period hasexpired. The applicable limitation period [69] The limitation period for an action in negligence or nuisance resulting in damage to property or personal injury is two (2) years,as per sections 5(

a) and (

b) of the Limitations Act. Sections 5(

a) and (b), of the Act states: 5. Following the expiration of 2 years after the date on which the right to do so arose, a person shall not bring an action (

a) for damages in respect of injury to a person or property, including economic loss arising from the injury whether based on contract,tort or statutory duty; (

b) for damages in respect of injury to person or property including economic loss arising from negligent misrepresentation and

professional negligence whether based on contract, tort or statutory duty; [70] As per

section 5 of the Act, the time limit does not commence running until the right to bring the action “arose”. Under section14, the right to bring an action is deemed to arise at the point that the plaintiff “knows or, considering all the circumstances, ought toknow that he or she has a cause of action”. [71] The Defendants submit that given that the pleadings show that Mr. Farrell knew as early as 2011 that he had suffered harm tohis property, he ought to have known that he may have a cause of action. The limitation period would have expired in 2013.

Evenaccepting that he did not know, the pleadings show that he knew of a possible claim in 2015 when he retained a lawyer and advised hislawyer to “file a lawsuit claim against the above 3 defendants”. This would still mean limitations expired. Two years from 2015 wouldbe 2017, and the action was not commenced until 2020. [72] The Defendants assert that this is a matter that can be appropriately addressed by way of Rule 38.01. I disagree. The principles governing an application under Rule 38.01 [73] Under Rule 38.01, an applicant may seek a determination of a legal, or factual question in advance of the trial.

The relevantportion of Rule 38.01 states: 38.01.

(1) The Court may, on the application of any party or on its own motion, at any time prior to a trial or hearing, (

a) determine any relevant question or issue of law or fact, or both; …

(2) Where in the opinion of the Court, the determination of any question or issue under rule 38.01(1) substantially disposes of the wholeproceeding, or any cause of action, ground of defence, or counterclaim, the Court may thereupon order the entry of such judgment ormake such order, as is just. [74] The approach under Rule 38 was established in Ind-Red Highway Services Ltd. v. Miawpukek Band (1999), (NL CA), 172 Nfld. & P.E.I.R. 245, 33 C.P.C. (4th) 305 (Nfld. C.A.).

Green, J.A., speaking for a unanimous court, at paragraphs 11 and12 stated that the decision to invoke the Rule is a “discretionary one” and as such, before proceeding, a judge must consider “certainthreshold questions”.

If a judge is not satisfied that it is appropriate to invoke the Rule, “it is the judge’s duty to refuse the application”.At paragraphs 14 to 20, Green, J.A. then described a number of considerations in deciding whether to proceed with an application underthe Rule. [75] First, as an exception to the general rule that all issues are dealt with at the same time within a proceeding, there must be a“discernable advantage” to deciding the particular issue, whether a question of law or fact, separate from the trial.

For example, if theresolution of the particular issue might dispose of the proceedings in its entirety, or assist in narrowing the issues for trial and save incosts for the parties, it may well be advantageous to decide the issue in advance of the trial under Rule 38.01. [76] Secondly, there must be a sufficient evidentiary record to enable the judge to decide the issue, and as the third point, Green,J.A. stated this means that generally the application should be supported by an agreed statement of facts, or the facts are a matter ofpublic record. [77] Further, continuing in the vein of the evidence required to support the application, the court should, only in exceptional cases,“receive” evidence that may be necessary to resolve the issue.

If the resolution of the issue may involve assessing the credibility of awitness, or the evidence proposed is intermingled with other evidence and other issues for trial that cannot be easily separated from theissue to be resolved, “it may be just as well to hold the trial”. In other words, it is unlikely the Rule is the “suitable vehicle” if it requiresthe applications judge to engage in the same tasks as would be more appropriate for the trial judge such as weighing evidence orassessing credibility.

Neither will it be an effective tool if the application requires the same extent of evidence that will be called at trial,or because the facts or legal issues are “complex” and “intermingled”. As stated by Green, J.A., at paragraph 18: 18 Fifthly, although Rule 38.01(1)(a) (as well as Rule 40.04) also contemplates the possibility of preliminary determination ofquestions of fact as opposed to questions of law, as a practical matter if the result would simply be a trial in another form there wouldgenerally be no justification for doing so.

If, on the other hand, the determination of one contentious issue has the reasonable prospect ofleading to a resolution of other issues thereby obviating the need for a further trial, or has the potential, if decided in a particular way, ofdisposing of the whole case or substantially simplifying the trial on remaining issues, there might well be justification for invoking therule. (See, e.g. Mutual Life Assurance Co. of Canada v. Porter (November 7, 1996), Doc. St. J. 2136/94 (Nfld.

T.D.) [78] A further consideration as to the “suitability” of Rule 38.01 is the extent to which there may be another rule or approach moreappropriate to deal with the issue. Green, J.A. used the example of where parties are not properly named or have been improperly joinedto the action, as is alleged here. Green, J.

A. stated at paragraph 20: 20 Seventhly, where the issue which is being sought to be determined as a preliminary point, either as a question of law or fact,involves the status of a party, it is generally more appropriate to determine that matter by way of an application under Rule 7.04 relatingto misjoinder of parties, rather than an application under Rule 38, even though examples do exist of issues of party status beingdetermined under the rubric of a Rule 38 application (Pelley Estate).

This is because the issue, whenever the status of a party is involved,is not simply whether the existing party is a proper party but also whether another, appropriate, party should be substituted. This followsfrom Rule 7.04(1) which provides that no proceeding will be defeated by the misjoinder on non-joinder of any party or person, and

from Rule 7.04 ( 2 ) which provides broad powers to the court to add, strike out or substitute parties, even on its own motion, to enable the matter to be effectually adjudicated. The danger in attempting to deal with such issues under Rule 38 is that attention may become deflected from the question as to whether the matter may nevertheless proceed with the addition of or change in status or description of a party and become immediately focused instead on issues of dismissal of the claims under Rule 38.01 ( 2 ). [ 79 ] The Newfoundland and Labrador Court of Appeal in Fillatre Estate v .

Fillatre , 2016 NLCA 69 had further occasion to consider an application under Rule 38.01. At paragraphs 14 to 20, the court reaffirmed the threshold considerations as stated in Ind-Rec Highway Services . Hoegg, J.A also reminded judges that the burden of establishing that the issue is appropriate for determination under Rule 38 lies with the party seeking the determination. At paragraph 20, Hoegg, J.A. stated: There is no burden on a respondent to establish an evidentiary record on a Rule 38 application. This is in contrast to the

summary trial procedure under Rule 17A, where a respondent is required to put his or her best foot forward at the hearing. This difference in burden explains, in some measure, why a Rule 38 application is expected, as a general rule, to proceed on the basis of an agreed statement of facts. [ 80 ] Applying the principles from Ind-Rec and Fillatre to the circumstances, I accept that there is a “discernable advantage” to addressing the limitations issue in advance of a trial in that it would dispose of the proceedings in their entirety. If it is clear that Mr.

Farrell has not brought his matter within the applicable limitation period, then the proceedings cannot continue and that will be the end of the matter. It is the other considerations under Ind-Rec that cause me concern. [ 81 ] In particular, I am concerned whether I have an adequate evidentiary record to deal with the limitations issue. Ind-Rec states that the evidentiary record upon which a Rule 38.01 application should be by way of agreed facts, or a matter of public record.

While the Defendants state that the pleadings may be taken as the agreed facts, I am not satisfied it is appropriate to rely on the pleadings for the purposes of the Rule 38.01 determination. [ 82 ] As stated, the pleadings are poorly drafted, and by an unrepresented litigant. I am not satisfied that they provide the necessary factual foundation to determine the legal issue of limitations in these circumstances. It is unlikely they were drafted with a Rule 38.01 application in mind. [ 83 ] There is no dispute that the pleadings provide a chronology of events that suggest that Mr.

Farrell knew as early as 2011 that he had property damage. However, that Mr. Farrell knew in 2011 that he was having problems with water damage to his home does not necessarily mean he knew why and at by whose fault this damage occurred. In fact, the statement of claim suggests that in 2011, because of statements made by the Town to Mr. Farrell, Mr. Farrell accepted that the area was “still being developed”.

This supports that he may not have suspected that any of the Defendants may have been negligent, at least before 2013. [ 84 ] I also accept that the statement of claim states that in 2015 he retained counsel to pursue a “lawsuit” against the Defendants. However, again, as a statement made by an unrepresented litigant, I am concerned that this statement may not represent his actual level of knowledge regarding his rights in respect of the harm he had allegedly suffered. [ 85 ] I have similar concerns with respect to the tort of nuisance, and at what point it can be said that Mr.

Farrell could be reasonably expected to have known that the Town or the construction company may be at fault for the harm he suffered. As the statement of claim is silent as to whether or not the nuisance continued past 2013, this might also have a bearing on the commencement of the limitation period (See Moakler , at paragraphs 24 to 25 ). [ 86 ] When I apply the principles in Ind-Rec to this application, I am not satisfied that there is an adequate evidentiary basis to decide the limitations issue under Rule 38.01.

I am concerned, as in Fillatre , that there was a genuine question as to when limitations began to run and may involve questions of discoverability; that is at what point did Mr. Farrell know, or ought to know the facts and to bring an action. [ 87 ] As stated in Fillatre , the resolution of an issue proposed to be determined by Rule 38.01 may more properly be the subject of an application under another rule, for example under Rule 17A, an application for

summary trial. In those circumstances, unlike Rule 38.01, Mr. Farrell can be expected to put his “best foot forward”. If there are additional facts that may be relevant to why Mr. Farrell should not be statute barred, he will be obliged to address this, or risk having the Court rule against him on the application. [ 88 ] For the above reasons, based on the evidence as presented in the facts as pleaded in the statement of claim, I exercise my discretion to decline hearing the application under Rule 38.01 to determine whether Mr.

Farrell’s cause of action in negligence or nuisance is barred because the Limitations Act . ISSUE 3: Should the statement of claim be amended as requested by the Defendants? [ 89 ] The Defendants also seek to have the statement of claim amended to strike references to alleged non-entities, or properly name a particular party. [ 90 ] The Town specified that Rule 15.01 was the rule to effect these amendments. Rule 15.01 states: 15.01.

(1) On such terms as it thinks just and in accordance with Rule 7, the Court may at any time, on application or on its own motion, grant an amendment which: (

a) adds, substitutes or corrects the name of a party to a proceeding; or (

b) alters the capacity of a party to a proceeding.

(2) A proceeding may be discontinued against a party in accordance with Rule 19.

(3) Notwithstanding the expiry of a relevant period of limitation, the Court may allow an amendment under paragraph (1) to rectify amistake even if the effect of the amendment will be to add a new party if the Court is satisfied that the mistake was genuine and notmisleading or such as to cause any reasonable doubt as to the identity of the party intending to bring or oppose the proceeding. [91] As an amendment is sought in respect of the parties named, Rule 7.04 is also relevant to the relief being sought in thesecircumstances. Rule 7.04 states: 7.04.

(1) No proceeding shall be defeated by reason of the misjoinder or nonjoinder of any party or person, and the Court maydetermine any question or issue in dispute in a proceeding so far as it affects the rights and interests of any party, saving the rights of anyperson who is not a party.

(2) At any stage of a proceeding the Court may, on such terms as it thinks just and either of its own motion or on application of any partyto the proceeding,

a) order any party who is not a proper or necessary party, to cease to be a party; or (

b) order any person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that allmatters in the proceeding may be effectually adjudicated upon, be added as a party, but no person shall be added as a plaintiff without the plaintiff's consent signified in writing or in such other manner as the Court mayorder. [92] However, it is not appropriate to address the amendments to the names of the parties as a matter under Rule 14.24. This wasexplained by Green, J.A. in Seadane International Inc. v.

Morgan International Marketing Co. (1999), (NL CA),180 Nfld. & P.E.I.R. 97, 41 C.P.C. (4th) 284, (Nfld.

C.A.): 31 To deal with the status of a party to maintain a claim on an application to strike will place the focus in the wrong place, namely,whether the existing plaintiff can as a matter of law maintain a claim; whereas the proper focus, in light of the admonition in Rule7.04(1) that no proceeding shall be defeated by misjoinder or non-joinder of a party, should additionally be whether, even if the existingplaintiff is inappropriate, the proceeding can nevertheless be continued by the substitution or addition of another person as party. 32 Indeed, rarely will an action be defeated by nonjoinder of a proper party.

Even when an application to join a person whosepresence as a party is necessary in a claim on an assignment is made at a late stage (at the conclusion of evidence) and even though thejoinder is not a mere formality, the proper party may, in the court's discretion, be added to enable the matter to be effectually adjudicated.See Sullivan v. Fortune (Town) (1952), (NL SC), 30 M.P.R. 332 (Nfld. T.D.). (See also Dacabest Ltd. v. Fost (1989), (NL SC), 79 Nfld. & P.E.I.R. 82 (Nfld.

T.D.) where an action on an assignment was dismissed for nonjoinder of theproper parties because an application to join the proper party had not been made and the court, in the exercise of its discretion declined,of its own motion at the time of entry of judgment, to order joinder because of potential prejudice to the proper party at such a late stageand because that person had had no involvement in the trial and there was no evidence that he consented to being added as a party). [93] The difficulty in trying to address the proposed amendments under Rule 14.24 is patent in these circumstances.

In particular,with respect to amending the name of the construction company owned by Mr. Parsons, as well as the realty company purportedlyowned by Roger Winsor, Sutton Realty, there was an absence of evidence explaining why the party named was not a legal entity, or theidentity of the legal entity that Mr. Farrell sought to name. [94] For example, while Tony Parsons submitted that the statement of claim must be struck against “Colby Construction Inc, NL”,as there is no such a legal entity against whom an action can be brought, evidence would be necessary to justify so finding.

Hence thedifficulty in trying to use Rule 24.14 to adjudicate such on the issue. Rule 14.24 requires a determination based on the pleadingsthemselves. The pleadings state both and “Colby Construction Inc, NL” and “Sutton Realty, NL” as two companies against whom it hasbrought its claims. Taking the pleadings as true, there is no basis to strike these entities as parties. [95] Without evidence, the Court has no means by which to determine whether in fact there is no such entity to warrant so amendingthe statement of claim.

There was no affidavit evidence to explain and establish that “Colby Construction Inc, NL” is not a legal entity. Further, the Defendants recognized that Mr. Farrell may have done no more than improperly name the corporation against whom heintended to bring this action. The statement of claim supports that his intention was to bring the action against the construction companyof which Tony Parsons is the purported owner. [96] Except for Mr. Farrell’s concession that he may not have properly named the Defendant construction company, I woulddismiss the application. Given Mr.

Farrell’s agreement, I accept that there is no such entity as “Colby Construction Inc, NL”. I permitMr. Farrell to amend the statement of claim to substitute the proper legal name of the construction company of which he intended to

bring the action. I see no prejudice, and counsel for Mr. Parsons raised none, in allowing Mr. Farrell to amend his statement of claim to properly name the construction company. [ 97 ] Similarly, there was nothing filed in support of this application regarding “Sutton Realty, NL”. There is nothing before the Court to discern whether or not “Sutton Realty, NL” is a legal entity. However, the parties agreed that “Sutton Realty, NL” referred to an entity that has no legal status. Given this, I give leave to Mr.

Farrell to further amend his statement of claim to properly name the legal entity against which he intends to proceed. If, as with Roger Winsor, Mr. Farrell does not intend to proceed against “Sutton Realty, NL”, he shall file a notice of discontinuance in accordance with the Rules . [ 98 ] Two further requests of the Town are easily addressed: that the attachments included with the statement of claim should be deleted from the statement of claim, and the style of cause to be amended to properly name the Town. Both of these requests are reasonable. Nor were they disputed by Mr.

Farrell. [ 99 ] Per rule 15.01, I order that the style of cause be amended by substituting the name “Town of Wabush, NL” with “Town of Wabush” and the Defendant shall be referred to as the “Town of Wabush” in all further court filings in this matter. [ 100 ] I further order that the attachments included with the statement of claim be removed from the statement of claim and returned to Mr.

Farrell. [ 101 ] I further order that within 30 days of the release of this judgment, Joshua Farrell file and serve on the appropriate defendants and named third parties an amended statement of claim as ordered above and in accordance with the Rules . The interlocutory application filed by Joshua Farrell [ 102 ] As stated earlier, after the Defendants filed their applications, Mr. Farrell did not file a response, but filed an interlocutory application seeking discovery of documents under Rule 32. However, he did not state what documents it is that he is seeking. It is unclear what Mr. Farrell is seeking.

His intention was not made clearer by his statement that the application was intended to serve as his response to the applications. I am dismissing this application, however, in the circumstances, I give leave for Mr. Farrell to file a new application under Rule 32. CONCLUSION [ 103 ] The applications by the First Defendant, the Town of Wabush and Charlie Perry, are allowed in part. The application of the Second Defendant, Tony Parsons, is allowed in part.

The application of the Third Defendant, Roger Winsor, is allowed in part. [ 104 ] The applications under Rule 14.24 are dismissed, except the application related to Charlie Perry.

I am not satisfied to strike the statement of claim on the basis that it discloses no reasonable cause of action under Rule 14.24 as against any of the Defendants except Charlie Perry. [ 105 ] The application for a legal determination under Rule 38.01 is dismissed as I am not satisfied I have an adequate evidentiary record to determine the issue. [ 106 ] The applications to amend the statement of claim are permitted as follows: 1) The statement of claim is to be amended by substituting the name “Town of Wabush, NL” with the name “Town of Wabush”. 2) The Plaintiff has leave to amend the statement of claim by substituting the name “Colby Construction Inc, NL” with the proper legal name of the defendant company owned and operated by Tony Parsons; 3) The Plaintiff has leave to amend the statement of claim by substituting the name “Sutton Realty, NL” with the proper legal name of the Defendant company owned and operated by Roger Winsor; unless the Plaintiff no longer intends to proceed against this Defendant, in which case he shall file a notice of discontinuance against the Defendant company. 4) The Plaintiff is given leave to file an amended statement of claim stating how the alleged negligent conduct of Roger Winsor caused harm to him or his property; unless the Plaintiff no longer intends to proceed against Roger Winsor, personally, in which case he shall file a notice of discontinuance against Roger Winsor. 5) The attachments to the statement of claim are to be removed and returned to the Plaintiff including emails, photographs, or any other written document attached with the statement of claim as filed. 6) The amended statement of claim shall be in a format that is in accordance with the Rules ; including that each paragraph of the pleadings shall be numbered consecutively with no more than one numeral or letter assigned to each paragraph. 7) The Plaintiff shall file and serve his amended statement of claim and/or notice of discontinuance, in accordance with the Rules , within 30 days of release of this judgment. [ 107 ] The Plaintiff has leave to file a new application under Rule 32. [ 108 ] Costs shall be in the cause. [ 109 ] Judgment accordingly.

_____________________________ Frances J. Knickle Justice