2023 MBKB 79, 2023 MBKB 79

Date: 20230512 Docket: CI 20-01-28994 (Winnipeg Centre) Indexed as: 7602678 Manitoba Ltd. v. 6399500 Manitoba Ltd., et al. Cited as: 2023 MBKB 79 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: 7602678 MANITOBA LTD., ) ) DAKSH JHANJI plaintiff, ) ) as an officer of the plaintiff - and - ) ) 6399500 MANITOBA LTD., ) THOMAS FROHLINGER LANDMHEL REAL ESTATE SERVICES INC., ) for the defendant, 6399500 defendants. ) ) ANDREW BOUMFORD ) for the defendant, Landmhel ) ) ) ) ) Judgment Delivered: ) May 12, 2023 MASTER PATTERSON Introduction [ 1 ] This case involves much more than a failed real estate transaction.

It has included a number of preliminary issues which required determination, such as but not limited to the rights and restrictions with respect to non-practicing lawyers, agents and self- represented litigants appearing before this Court, as well as intervention by a self-regulating professional body. [ 2 ] At this stage in the proceedings, yet another preliminary or procedural issue has commanded considerable focus from the Court.

Defendant’s Motions [ 3 ] The Defendant 6399500 Manitoba Ltd. (the “Defendant 639”) filed a motion on January 21, 2021 (the “639 Motion”), which among other relief, sought the following:

a) an order striking the “Claim” filed on behalf of 7602678 Manitoba Ltd. (the “Plaintiff”) and Vibhu Jhanji (“Jhanji ”); and

b) solicitor and client costs. [ 4 ] In addition, the Defendant Landmhel Real Estate Services Inc. (the “Defendant Landmhel”) filed a motion on February 12, 2021 (the “Landmhel Motion”), which among other relief, requested the following:

a) striking the Claim filed on behalf of the Plaintiff and Jhanji, without leave to amend;

b) an extension of time for the Defendant Landmhel to file a defence, pending determination of the Landmhel Motion; and

c) solicitor and client costs. [ 5 ] As a result, the Court must now determine whether the Claim should be struck, in whole or in part, with or without leave to amend, for failure to disclose a reasonable cause of action.

Background [ 6 ] An offer to purchase dated July 2, 2020 (the “Offer”) was made in writing by the Plaintiff to the Defendant 639 for purchase of the lands and premises owned by the Defendant 639 that are located at 9158 Quarry Road E., Stony Mountain, Manitoba (which is the site of a former gas station and convenience store, and hereinafter the “Property”). [ 7 ] Jhanji signed the Offer as agent on behalf of the Plaintiff. [ 8 ] At the time of making the Offer, Jhanji’s son, Daksh Jhanji (“Daksh”), was the sole director, officer and shareholder of the Plaintiff. [ 9 ] The Offer of 760 was accepted by the Defendant 639 on July 7, 2020.

The Possession and Closing Date was scheduled for September 15, 2020. [ 10 ] The Defendant Landmhel was the listing broker for the Property on behalf of the Defendant 639.

Edward Xu (“Xu”) served as listing agent for the Property. [ 11 ] For clarification, the Plaintiff, the Defendant 639 and the Defendant Landmhel are all corporations that were incorporated in Manitoba. [ 12 ] A dispute arose between the Plaintiff and the Defendant 639 prior to the Possession and Closing Date, which included but was not limited to a disagreement with respect to responsibility for remediation of the Property, based upon the outcome of a phase 2 environmental report that had been completed. [ 13 ] As a consequence, the intended closing for purchase of the Property by the Plaintiff did not proceed on September 15, 2020. [ 14 ] The Claim was subsequently filed on behalf of the Plaintiff and Jhanji on November 3, 2020. [ 15 ] On November 13, 2020, a motion was filed on behalf of the Plaintiff and Jhanji, requesting pronouncement of a pending litigation order against title to the Property (the “PLO Motion”). [ 16 ] The Defendant 639 and the Defendant Landmhel then proceeded to file the 639 Motion and the Landmhel Motion respectively. [ 17 ] A statement of defence has not been filed on behalf of the Defendant 639 or the Defendant Landmhel, pending the outcome of the 639 Motion and the Landmhel Motion. [18] Thus far, I have pronounced four (4) orders in these proceedings:

a) the “Law Society Intervention Order” filed May 31, 2021 with respect to the motion filed by the Law Society of Manitoba (the “Law Society”) on March 19, 2021, whereby leave was granted to the Law Society to intervene and participate as a party to a specific portion of these proceedings (pursuant to my Reasons for Decision dated May 18, 2021);

b) the “Stay Order” pronounced July 20, 2021 in relation to the motion filed by the Plaintiff (and Jhanji) on June 22, 2021, whereby I dismissed the request for a stay of proceedings pending hearing of the appeal concerning the Law Society Intervention Order (the appeal

was subsequently dismissed);

c) the “Representation Order” in accordance with my Reasons for Decision dated January 24, 2022, whereby Jhanji was struck as a party and co-Plaintiff, and is no longer permitted to serve as an agent for and represent the Plaintiff with respect to these proceedings (the Plaintiff appealed the Representation Order, which has also been dismissed); and

d) the “Costs Order” pursuant to my Reasons for Decision dated April 28, 2022, whereby a costs award was made against the Plaintiff (and Jhanji) in favour of the Law Society as well as the Defendant 639 (the Defendant Landmhel participated on a “watching brief” basis concerning the motions which resulted in the aforementioned Orders, and costs were not requested). [19] It is because of the Representation Order that reference to the Plaintiff for purposes of this decision does not include Jhanji. [20] Extensive briefs with numerous authorities have been filed on behalf of the Plaintiff, the Defendant 639 and the Defendant Landmhel. [21] For completeness sake, a further motion was filed on behalf of the Defendant 639 on March 4, 2021 (the “Second 639 Motion”), wherein the following relief was requested:

a) an order expunging all or portions of Jhanji's affidavit affirmed February 17, 2021 as well as Jhanji’s affidavit affirmed on November 13, 2021;

b) an order expunging portions of the Responding Motion Brief filed on behalf of the Plaintiff and Jhanji on February 17, 2021;

c) an order for security for costs against the Plaintiff and Jhanji; and

d) costs on a solicitor and client basis. [22] The Second 639 Motion has been adjourned, pending the outcome of the 639 Motion and the Landmhel Motion. [23] In addition, the PLO Motion has been adjourned awaiting the result of the 639 Motion and the Landmhel Motion. [24] Jhanji is currently suspended from practicing law in Manitoba (his suspension was effective as of December 12, 2018). Jhanji has been vehemently opposed to the outcome of the Law Society's disciplinary proceedings. His appeal, however, was dismissed by the Manitoba Court of Appeal on September 29, 2022.

Jhanji sought a re-hearing, which was also dismissed ( Jhanji v. The Law Society of Manitoba , 2023 MBCA 15 ). Position of Defendant 639 Legal concepts [25] Paragraph 4 of the Defendant 639’s Motion Brief summarizes the grounds upon which it is requested that the Claim be struck by the Court pursuant to the Court of King's Bench Rules , Man. Reg. 553/88 (the “ Rules "), and in particular, Rule 25.11(1) :

a) The Claim fails to disclose a cause of action;

b) The Claim fails to establish relevant and material facts;

c) The Claim fails to disclose the nature of the Claim in a clear and concise manner and is incomprehensible;

d) The Claim contains argument and findings of law;

e) The Claim fails to disclose a nexus between the material facts claimed and the relief sought; [and]

f) The Claim fails to comply with the Court of Queen’s [King’s] Bench Rules. [26] Counsel for the Defendant 639 further articulated (at paragraph 10 of the Defendant 639’s Motion Brief) that: The test to be applied on a motion to strike the Statement of Claim for failing to disclose a reasonable cause of action , as set out in Robertson v.

Keewatinowi Okimakanak Inc. , 2011 MBCA 4 (“ Robertson ”) , is that assuming that the facts as stated in the Statement of Claim can be proved, is it plain and obvious that the plaintiff's claim discloses no reasonable cause of action ." (emphasis added) [27] At paragraph 21 in Robertson v. Keewatinowi Okimakanak Inc. , 2011 MBCA 4 (“ Robertson ”) , the Manitoba Court of Appeal adopted the following passage from an authority entitled Canadian Civil Procedure Law : The statement of claim is intended to set out the plaintiff’s view of the relevant events and other facts that give rise to the cause of action.

It is intended to provide a full and detailed breakdown of the case, and at the very least must allege sufficient facts to establish a basis for the claim. … [28] In Robertson , the Manitoba Court of Appeal (at paragraph 23) also relied upon the following passage from the well-known treatise of Bullen and Leake and Jacobs Precedent of Pleadings (which according to counsel for the Defendant 639, demonstrates “that there must be a legal nexus between the facts pleaded and the relief sought in a statement of claim”): It is not enough, however, for the statement of claim merely to state the material facts and to claim specific relief or remedy; there must be an inner connection, a legal nexus, between the facts relied on and the relief or remedy claimed.

The material facts relied on must disclose a reasonable cause of [action] against the defendant, otherwise the statement of claim is liable to be struck out precisely on the ground that it does not disclose a reasonable cause of action. … (emphasis added) Deficiencies with the Claim [29] Counsel for the Defendant 639 submits that “the Claim is fraught with material deficiencies”, and that the defects identified represent the “tip of the iceberg” (paragraph 13 of the Defendant 639’s Motion Brief). [30] It is further asserted by counsel for the Defendant 639 that the Claim is fundamentally flawed based upon the following primary grounds (paragraph 13 of the Defendant 639’s Motion Brief):

a) The Claim fails to state a cause of action;

b) The Claim fails to give rise to a cause for breach of contract as it fails to establish the existence of a contract, set out its terms, or the facts giving rise to the alleged breach; and

c) The Claim fails to state material facts in a logical, concise or chronological order. … [31] In accordance with the Defendant 639’s Motion Brief, as supplemented by submissions of counsel for the Defendant 639, the following represents a

summary of the arguments advanced on behalf of the Defendant 639 with respect to perceived deficiencies within the initial portion of the Claim:

a) Paragraph 1(a) : although the initial portion of paragraph 1(

a) of the Claim states “The Specific Performance Relief to transfer the Assets of 6399500 Manitoba Ltd. recited in The Offer to Purchase (OTP) upon the Defendants’ defaults into their dealings are…”, no material facts have been pleaded to support a claim for specific performance on behalf of the Plaintiff.

b) Paragraph 1(

a) I : the sentence which reads “The contract is voidable, as valid and enforceable” is made without provision of material facts, and is inconsistent with paragraph 1(

a) of the Claim (the request of the Plaintiff for specific performance);

c) Paragraph 1(

a) II : the wording that states "they defaulted in the discovery of toxic soil to make their Buildings unsafe by frustrating the payment exchange on its Closing-date ( September 15, 2020 )" is confusing, and material facts are not pleaded so as to link this assertion of the Plaintiff to the relief requested of specific performance;

d) Paragraph 1(

a) III : a legal conclusion is made, without foundational material facts, where it refers to it being a condition precedent of the Offer that there must be “subsequent actions taken to collaborate for regulatory compliances”;

e) Paragraph 1(

a) IV : while it is alleged, as an alternate argument, that the Defendant 639 had a “statutory duty” with respect to soil testing, this amounts to a legal conclusion, without material facts being provided to establish that a duty of care was owed to the Plaintiff;

f) Paragraph 1(

a) V : the wording “Any fault-element of toxic soil in the Licensed Testing, otherwise remained to be a compensatory- liability amongst its past owners” is not only legal argument, it is unclear as to meaning;

g) Paragraph 1(

a) VI : a legal conclusion is stated (which is also confusing) where it reads “But it cannot be contracted-out; made redundant; or pass-on in the OTP, to be extraneous for the Buyer’s interests”;

h) Paragraph 1(

a) VII : the wording “Flouting the law in writing OTP is actionable”, as well as “it is bad market practice in the Standard of Care in the Listing Agent’s duty…to induce wager contract” is uncertain, and represents legal argument;

i) Paragraph 1(

a) XV : the sentence that reads “Regardless, there was a valid legal controversy to invalidate the closing-date, due to self-induced defaults” is not clear, and is a legal conclusion;

j) Paragraph 1(b): the term “Consequent Order” is not defined, and there is uncertainty as to what is intended with this language;

k) Paragraph 1(c) : the wording “For the deposit of purchase money in the court after adjusting the disbursements” is confusing;

l) Paragraph 1(d) : a legal conclusion is made, without the material facts in support, where it reads “It attracted estoppel by conduct to avoid breaking the commercial deal on development”;

m) Paragraph 1(e) : it is not known what is being relied upon with reference to the “undue enrichment rule” (is it supposed to be “unjust enrichment”); and

n) Paragraph 1(f) : on page 7 of the Claim is where it is confirmed, for the first time, that general damages and special damages are being sought (which is inconsistent with the request for specific performance). [32] With respect to paragraphs 6 and 7 of the Claim, counsel for the Defendant 639 submits that there are further examples of inappropriate legal drafting:

a) Paragraph 6(a) : the clause that reads “To specifically remove any misunderstanding upon the term 'as-is' without an informed- decision, extraneous & illogical to contract unlimited risks of contaminated-soil, as illegal” is confusing, and a legal conclusion;

b) Paragraph 7(f): there is no duty upon counsel for the Defendant 639 to provide case law to counsel for the Plaintiff concerning The Code of Professional Conduct of the Law Society of Manitoba (the “Code”);

c) Paragraph 7(h): “In sum, the motives to pass on this statutory 'fault-element' in toxic soil of the past owners upon a buyer in ‘as-is’ term are the malpractices, to flout The Environment Act …” is an incomprehensible, confusing clause (based upon the portions of the Claim immediately prior to this sentence, it is not clear if it is intended to apply only to the Defendants, or if it is also extended to their respective counsel, who are not parties);

d) Paragraph 7(

h) III : the wording “flouting the prospective regulatory-approvals in the sale, speaking at law, against the defendants statutory duties” is difficult to understand, and amounts to a further attempt at legal argument;

e) Paragraph 7(

h) IV : no material facts are presented in support of there being a “duty of care” on the part of the “Listing Agent”; and

f) Paragraph 7(

h) V : the language “not pass-on statutory ‘fault-elements’ to deal with or else abandon the deal by the buyer, by colluding with the vendors” is a legal conclusion, and not entirely comprehensible. [33] Throughout paragraph 8 of the Claim, counsel for the Defendant 639 asserts that there are a number of clauses which contain a combination of evidence and legal argument. The instances noted are as follows:

a) Paragraph 8(a) : with respect to the allegation of the Plaintiff that the Defendants failed to act in good faith in relation to the Offer, the wording which reads “The toxic soil likely impacted the entire Buildings, in public-safety to frustrate the performances upon a speculative term ‘as-is’ as extraneous and illegal” is a conclusion of law, and incoherent;

b) Paragraph 8(e) : it is not entirely clear what the Plaintiff means with this sentence that reads “The OTP was otherwise subjected to the equitable rule over unexpected expenditure, to secure the regulatory-approval to revive the business, in their active deal”;

c) Paragraph 8(h) : the wording “They conducted oppressively to shift the non-payment fault, by exploiting the Closing-date terms in a straight-jacket view, solely to forfeit the deposit-money in their coercive threats” is incomprehensible, and amounts to legal argument as opposed to pleading material facts;

d) Paragraph 8(l) : the portion of this clause where it reads “any repudiation is contrary to the collaborative conduct, despite availing the professional services in the duty of care, by causing the collateral damages” is confusing, and does not provide material facts to establish a duty of care;

e) Paragraph 8(

o) IV : the wording that states “In fact, they ignored OTP terms that got amended by their subsequent actions in giving piecemeal permission on Licensed Soil-Testing to MWI” is unclear, and conclusion based;

f) Paragraph 8(p) : the Plaintiff does not identify the statute or regulation, nor any case law, as the basis for alleging that counsel for the Defendant 639 was obligated to supply case law concerning the Code, with the wording in the latter portion thereof being confusing, where it reads “duty for ILR, to make out their legal position void in content”; and

g) Paragraph 8(

p) II : the sentence “To shift a retrospective fault-element in the toxic soil liability of the past owners upon a buyer is extraneous to scheme of the Act to wriggle out, in such malpractice” is incomprehensible and represents legal argument. [34] Within paragraph 9 of the Claim, further concerns with the Claim are raised by counsel for the Defendant 639:

a) while the initial portion of Paragraph 9 states that “The Plaintiffs remained ready to pay the balance-money, but subject to the completion of the following steps” (five items are listed), the Claim does not indicate or confirm that the purchase price (subject to closing adjustments) was tendered, but not accepted, which it is submitted is required in conjunction with a request for specific performance; and

b) Paragraph 9(

a) of the Claim alleges that Defendant 639 did not “comply with the work-order of September 21, 2020 by the Regulator”, although it is acknowledged by the Plaintiff that the Offer did not contain any expressly stated conditions (it was made and accepted on an “as-is” basis).

[35] Counsel for the Defendant 639 noted that Paragraph 12 of the Claim refers to “Compensatory Claims,” which were not specifiedto be an alternative argument, and is contradictory to the request for specific performance. [36] As to Paragraph 13 of the Claim, the following issues have been advanced on behalf of the Defendant 639:

a) The initial portion of Paragraph 13 is not clear (where it is alleged that the Defendants “disregarded the Plaintiff’s interests toconduct coercively”);

b) Paragraph 13(b): the phrase “resile in estoppel” is confusing;

c) Paragraph 13(c): this clause represents the first time within the Claim that there is reference to alleged frustration in the performanceof the Offer;

d) Paragraph 13(d): the wording which states that the Defendants “flouted equitable norms for contributing in fair-market valuation orflip the offer, to conduct even-handedly” is incomprehensible; and

e) Paragraph 13(e): this sentence serves as another illustration of the Plaintiff providing evidence, not material facts, when saying therewere delays in plans and “loss on business revenues, growth and rental losses”. [37] Paragraph 14 of the Claim states that the Plaintiff “suffered mental stress to upset their plans”.

Counsel for the Defendant 639argues, however, that there are no material facts provided insofar as to the aspects of mental stress that are alleged to have been sufferedby the Plaintiff (all that is pleaded are situations which it is contended caused mental stress to the Plaintiff). [38] Counsel for the Defendant 639 submits that the following deficiencies exist within Paragraph 15 of the Claim:

a) Paragraph 15(c): while there is reference to “the general duty of good faith” as well as the decision of the Supreme Court of Canadain Bhasin v. Hrynew, 2014 SCC 71 (“Bhasin”), material facts were not pleaded in support of the supposed breach by theDefendants of an alleged duty of care in favour of the Plaintiff; and

b) Paragraph 15(c): the wording which reads “fulfill the mandatory performances in collaboration but not to resile in the motives” isconfusing, and focuses upon counsel for the Defendants, both of whom are not parties to this action. Contravention of the Rules [39] Counsel for the Defendant 639 submits that the Claim is contrary to Rule 25.06(1) because: a) “On a simple review of the Claim, the conclusion is inescapable that the claims made by the Plaintiff are not concise”; and

b) within the many instances identified by counsel for the Defendant 639, the Claim contains evidence, not material facts. [40] It is also asserted on behalf of the Defendant 639 that the Claim does not comply with Rule 25.06(3), as “conclusions of law maybe pleaded only if the material facts supporting them are pleaded.” [41] A further argument made by counsel for the Defendant 639 is that pursuant to Rule 25.06(4), and where an action is based uponan act or regulation, the specific sections being relied upon are to be set forth within the pleading.

As an illustration, and even thoughthe Claim does mention “The Environment Act”, the sections thereof which form a basis for the allegations made by the Plaintiff againstthe Defendant 639 are not confirmed. Delay and expense resulting from inadequate pleadings [42] Counsel for the Defendant 639 referred the Court to the Manitoba Court of Appeal decision, of Miller v. Jaguar Canada Inc. etal., (MB CA), [1998] 4WWR 352 (“Miller”), a case that involved allegations of delay in connection with multiple

interim proceedings. At paragraph 17 in Miller, the Honourable Chief Justice Scott stated as follows: This is yet another case where a certain casualness with respect to the pleadings has resulted in numerous interlocutory proceedings, andmuch delay and cost to both parties. As this court has in care emphasized on numerous occasions, pleadings, if properly done, to find theissues and by doing so direct the attention of both counsel and the court as they are intended to do, to the real matters in dispute betweenthe parties.

Failure to adhere to this common sense requirement (to say nothing of the Rules) will almost inevitably result in thekind of confusion and missteps well illustrated by the facts of this case. Had the issues here been properly spelled out early on,the matter would have been tried, or otherwise disposed of, long ago. Once again, we remind the judiciary and the profession topay closer attention to the essential requirement in civil proceedings for accurate and timely pleadings. (emphasis added) [43] Another decision of the Manitoba Court of Appeal that is relied upon by the Defendant 639 is Grant v.

Winnipeg RegionalHealth Authority et al., 2015 MBCA 44 (“Grant”). At paragraph 35 in Grant, the Honourable Justice Mainellaprovided the following commentary: The purpose of Queen’s Bench Rule 25.11(

d) is to ensure the effectiveness and fairness of the litigation process by the weeding out ofhopeless claims or defences, without the necessity and cost of the full civil process (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42at para. 19, [2011] 3 S.C.R. 45). Protracted proceedings are unnecessary if a pleading is substantially inadequate to make a claimor answer one (Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al., (ON CA). (emphasis added) [44] It has been argued on behalf of the Defendant 639 that “the Claim is substantially inadequate and should be ‘weeded out’.

If it isnot struck, it will cause significant delay and needless interlocutory proceedings. It will create confusing missteps and significant cost.

It will be a flagrant waste of the courts resources.” [45] According to counsel for the Defendant 639, one of the motivations for supporting the Court’s encouragement andrecommendation that the Plaintiff retain counsel was the potential prospect for there to be a proper pleading filed, as opposed to multiplemotions requesting to strike the Claim. [46] Aside from the Claim, the issues raised on behalf of the Defendant 639 in relation to the Offer can be summarized as follows:

a) Paragraph 5 on Page 2: with respect to the standard or boilerplate clauses within this portion of the Offer, which stipulate that theOffer will be terminated unless any conditions noted for the benefit of the Plaintiff as purchaser are satisfied, no conditions wereincluded by the Plaintiff. Instead, Jhanji added the word “none”, and placed his initials in proximity to this portion of the Offer (whichhe had struck out). As a result, the Defendant 639 is of the position that the Plaintiff did not make a conditional offer for the Property;

b) Paragraph 8: the wording within this portion of the Offer confirms that time is of the essence, although the Plaintiff failed to tenderthe balance due to close as required pursuant to the Offer. On this basis, the Defendant 639 contends that it is entitled to keep thedeposit, as a remedy for the Plaintiff not closing the intended transaction; and

c) Paragraph 10: the standard or boilerplate clauses within this portion of the Offer confirm that: i. anything that is not included within the Offer, in writing, “will have no force and effect”; ii. any amendments to the Offer “will have no force and effect whatsoever unless it is in writing, and signed byeach of the parties”; and iii. the Plaintiff as purchaser relies upon "its own inspection” of the Property, and any promises of theDefendant 639 as vendor that are “contained (and only those contained) in this Offer”.

In the case at bar, there were no promises orcovenants made by the Defendant 639 beyond what is stated within the body of the Offer. Responding Motion Brief of the Plaintiff [47] With respect to the Responding Motion Brief filed on behalf of the Plaintiff, counsel for the Defendant 639 made the followingcomments:

a) any suggestion that there was abusive advocacy on the part of counsel for the Defendant 639 is disputed, and was viewed as defamatory; and

b) should the Plaintiff believe there was “bad faith”, “wrongful gains” or “collusion” between the Defendants, it is necessary that material facts are pleaded, instead of making unsubstantiated legal conclusions.

Summary of basis for striking the Claim [48] Counsel for the Defendant 639 has acknowledged that striking out a pleading is to be done "sparingly”, and “only in the clearest of cases" (paragraph 36 of Grant ). [49] In the circumstances, however, counsel for the Defendant 639 described the Claim as a "word salad”. [50] Ultimately, it is the position of the Defendant 639 that it is uncertain from the Claim what it is specifically that the Defendant 639 is to defend.

If there is anything which is plain and obvious to counsel for the Defendant 639, it is that the “Claim is undecipherable”. [51] The Defendant 639 takes the position that an award of costs against the Plaintiff, on a solicitor and client basis, is warranted given the significant deficiencies raised concerning the Claim.

Leave to Amend the Claim should not be granted [52] It has also been articulated by counsel for the Defendant 639 that the Claim is “replete with significant and fundamental errors and lacks any cohesion, logic or structure” and that “any amended version of the Claim would create further confusion and result in missteps”. [53] With reliance upon Miller , the Defendant 639 submits that the Claim is irreparable, and cannot be rehabilitated, such that leave to amend ought not to be approved. [54] When responding to a question from the Court as to whether the Court should exercise its discretion to strike only the portions of the Claim which, for instance, are not in compliance with Rule 25.06(1), counsel for the Defendant 639 submitted that the Claim is poorly framed, does not disclose a reasonable cause of action(

s) and cannot be remediated. As a result, counsel for the Defendant 639 asserted that leave to amend the Claim should not be permitted by the Court.

Position of Defendant Landmhel Legal concepts [55] At the outset, it was confirmed within the Defendant Landmhel’s Motion Brief that the authorities and arguments set forth within the Defendant 639’s Motion Brief (specifically paragraphs 9 to 28) are relied upon and adopted concerning the Landmhel Motion. [56] The authority that was referenced primarily by counsel for the Defendant Landmhel is the thorough decision of my colleague, the Honourable Master Clearwater as she was then, in Dowd et al. v.

Skip The Dishes Restaurant Services Inc. et al. , 2019 MBQB 63 (“ Skip the Dishes ”) . [57] In Skip the Dishes , the defendants filed a motion to strike the statement of claim (without leave to amend), or in the alternative, that portions of the statement of claim be struck against certain defendants, with particulars to be provided.

Master Clearwater concluded, at paragraph 161 of this decision, that the statement of claim in question ought to be struck, without leave to amend as “… in my view, maintaining the claim against this defendant would give rise to an abuse of process”. [58] At paragraphs 51 and 53 of Skip the Dishes , the test to be applied is discussed by Master Clearwater: [51] The legal test and process to be applied on a motion pursuant to Rule 25.11(1)(

d) is long settled. Both parties accept that the motion to strike for failure to disclose a reasonable cause of action is to be considered on the face of the pleadings, which in this case will include the particulars filed.

The law says that it is only appropriate to strike pleadings in the clearest of cases, where the court is satisfied that it is plain and obvious that the pleadings fail to disclose a reasonable cause of action, (See R. v Imperial Tobacco Ltd. , 2011 SCC 42 , at para 17 , and the decision of the master in Ebb and Flow First Nation et al v The Attorney General of Canada et al ., 2013 MBQB 104 at page 12) . … [53] It is also important to note on a motion to strike that, while the facts are deemed to be true for the purposes of assessing such a motion, the fundamental rules of pleading must be followed.

The claim cannot be based on mere speculation, or the plaintiffs’ view that discovery will uncover the necessary facts (see Imperial Tobacco , para. 22). (emphasis added)

[59] Master Clearwater confirmed one of the primary goals of pleadings at paragraph 115 in Skip the Dishes : The core purpose of pleadings is to ensure the defendant knows the case it must meet, and can properly respond, beyond a mere denial. The plaintiff is in charge of the pleadings, and in this case, as a result of the choices made by the plaintiffs, these defendants cannot easily do this. ( emphasis added ) [60] Counsel for the Defendant Landmhel also referred the Court to paragraph 3 of the Defendant Landmhel’s Motion Brief, which reproduces paragraph 12 from Vermeylen v.

Manitoba (Government) , 2008 MBQB 70 (“ Vermeylen ”) : To constitute a proper pleading, the Statement of Claim must contain: “…every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.” Rules must be enforced, even against self-represented litigants [61] According to counsel for the Defendant Landmhel, the Court “must enforce the Rules and cannot make an exception merely because a litigant is unrepresented”, noting paragraph 10 from Vermelylen which stated as follows: Similar sentiment was expressed by Platana, J. in Baziuk v.

BDO Dunwoody Ward Mallette (1997) 13 C.P.C. (4 th ) 156 (Ont. Gen. Div.) , where at para 18 he wrote: 18. The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issue of fairness and be mindful of both, or all parties.

Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed.

A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to the unrepresented litigant is permitted to over ride (sic) the rights of a defendant party. (emphasis added) Deficiencies with the Claim [62] As a general overview, it was articulated as follows at paragraph 5 of the Defendant Landmhel’s Motion Brief: The Statement of Claim is so unintelligible, confusing and fraught with incomprehensible language that this Defendant cannot know the case against it or properly respond with a Statement of Defence.

This Defendant therefore submits that the Statement of Claim be struck on the grounds that it does not disclose a reasonable cause of action, is vexatious and an abuse of process. [63] Pursuant to the Defendant Landmhel’s Motion Brief, as expanded upon during submissions of counsel for the Defendant Landmehl, the following represents a sampling of perceived deficiencies within the Claim:

a) Paragraph 1(

a) VII : the clause that reads “Inversely, it is bad market practice in the Standard of Care in a Listing Agent’s duty, to pass-on the unlimited risks or induce wager contract, into the regulatory schemes” is confusing, does not mention the Defendant Landmhel, and refers to Edward Xu (“Xu”), who is not a party to this action;

b) Paragraph 5 II : while there is confirmation within this portion of the Offer that the Defendant Landmhel is the broker, with Xu serving as listing agent, no material facts have been pleaded to substantiate the allegation of regulatory impropriety (at paragraph 7 on page 11 of the Claim);

c) Paragraph 15 (b) : it is alleged that there was a breach of the standard of care reasonably expected by the Plaintiff, although this clause mentions only Xu, not the Defendant Landmhel; and

d) Paragraph 15 (c) : despite referring to only Xu within paragraph 15(b), the wording reads that “Both professionals are to prevent statutory defaults in their ethical duty”, and goes on to state “to fulfill the mandatory performances in collaboration but not to resile in the motives”, all of which is confusing.

Summary of basis for striking the Claim [64] It is submitted on behalf of the Defendant Landmhel that the Claim is devoid of material facts and applicable law, and is contrary to Rule 25.11(1)(d), because it does not disclose a reasonable cause of action. [65] Even with the most generous or “charitable” reading of the Claim, counsel for the Defendant Landmhel asserts that the Claim does not reasonably establish grounds for a finding of tortious or contractual liability against the Defendant Landmhel.

In particular, it is argued that there has been no nexus established between the Plaintiff and the Defendant Landmhel, and an absence of facts that tangently connects the Defendant Landmhel to a tort or breach of contract action involving the Plaintiff. [66] The Defendant Landmhel takes the position that there was no duty of care owed in favour of the Plaintiff by the Defendant Landmhel as broker, or by Xu as listing agent (the Defendant Landmhel and Xu are not parties to the Offer, and were retained by and worked with the Defendant 639). [67] As outlined at paragraph 79 of Skip the Dishes , in order to plead negligence, the essential elements must be set forth, namely, provision of particulars to establish there was a duty of care, breach of the reasonably expected standard of care, causation and resulting damages.

It is argued on behalf of the Defendant Landmhel that this is simply not accomplished within the Claim. [68] Counsel for the Defendant Landmhel also echoed the sentiments of counsel for the Defendant 639, pointing out that paragraph 6 of the Offer clearly stipulates that it was made and accepted on an “as-is” basis. [69] In Skip the Dishes , there was concern raised by the defendants about various causes of action being “lumped together”. Counsel for the Defendant Landmhel submits that a similar scenario exists in the case at bar.

As an illustration, the word “they” is used frequently within the Claim, which refers to whom? Is it intended to mean both Defendants, or only one of the Defendants? [70] At paragraph 58 in Skip the Dishes , counsel for the Defendant Landmhel noted that the necessity for clarity of pleadings when multiple parties are involved was reinforced by Master Clearwater: One final general comment found in the law presented by the parties relates to clarity of pleading. In particular, the courts have raised concerns with pleadings where the plaintiff has “lumped” a number of defendants together as one.

In this case, the plaintiffs have used defining statements, which include all the defendants, and then include blanket conclusory statements such as suggesting that the defendants were acting as “agents” of one another. [71] Master Clearwater continued within paragraph 59 of Skip the Dishes to emphasize that a party is ultimately responsible for their pleadings: In this respect, it is trite to say that a plaintiff is responsible for her own pleadings. The pleadings set the tone and the parameters of the claim before the court.

As a result, when a party advances a number of causes of action against several different parties, it is critical to ensure that they include sufficient material facts to support all of those causes of action against every named defendant, or to show the defendants are all in an identical relationship vis a vis the plaintiffs. (emphasis added) [72] Counsel for the Defendant Landmhel mirrored the sentiments of counsel for the Defendant 639, by articulating that conclusions of law can only be pleaded if material facts have first been provided, which it has been argued is absent from the Claim. [73] It has also been asserted on behalf of the Defendant Landmhel, that in consideration of Rule 25.11(1)(d), portions of the Claim could arguably be viewed as vexatious, frivolous or scandalous. [74] Costs are being requested by the Defendant Landmhel against the Plaintiff, on a solicitor and client basis, due to the manner in which the Claim has been drafted and necessity for multiple motions to be considered by the Court.

Leave to Amend should not be granted [75] From the perspective of counsel for the Defendant Landmhel, the Claim is fraught with unintelligible language.

As such, it is submitted that leave to amend the Claim should not be granted, as the Claim is not capable of being rehabilitated. [76] While the Defendant Landmhel is adamantly opposed, should it be the decision of the Court to grant leave in order for the Plaintiff to amend the Claim, counsel for the Defendant Landmhel requested that all costs ordered thus far in these proceedings (against the Plaintiff and Jhanji) be paid, in full, before an amended Claim could be filed.

In addition, counsel for the Defendant Landmhel requested the Court direct that the Plaintiff is to be represented by counsel (licensed to practice in Manitoba) for purposes of any further

proceedings involved with this action. Position of Plaintiff [77] Once counsel for the Defendants completed their respective submissions, the Court granted Daksh a recess to further prepare his submission on behalf of the Plaintiff. [78] Daksh initially made reference to an email sent by Xu to Jhanji dated Thursday, July 9, 2020, a copy of which is attached to the affidavit of Jhanji affirmed November 13, 2020 (the “July 2020 email”). In particular:

a) Within the July 2020 email, Xu confirmed that the Defendant 639 had granted permission for there to be certain due diligence testing completed at the Property; and

b) According to Daksh, and even if it is determined that the Offer was made and accepted on an “as-is” basis, the contract was varied as a result of the July 2020 email and its content (it being implied that the Plaintiff was to be satisfied with the results of any due diligence testing). [79] The next argument advanced on behalf of the Plaintiff was to the effect that regardless if the Court is to determine that the Offer was made and accepted on an “as-is” basis, with environmental remediation being required at the Property, it was an implied term of the Offer that the Property be fit for the intended use of the Plaintiff (a gas station and convenience store). [80] Daksh then turned to the affidavit of Jhanji affirmed April 13, 2022 (the “April 2022 Affidavit”).

Attached at Exhibit “1” to the April 2022 Affidavit is a copy of the Claim, entitled “Statement of Claim (Annotated Grounds on Facts-in-Issue)", or hereinafter, the “Annotated Claim”. [81] The April 2022 Affidavit was filed on April 13, 2022. Upon the fronter, it states “Affidavit of Vibhi Raj Jhanji (As supporting The Appeal to QB Judge & Stay of Proceedings) Hearing Date: April 19, 2022”. The hearing scheduled for April 19, 2022 was in relation to the Plaintiff’s appeal of the Representation Order. [82] Only three paragraphs are contained within the April 2022 Affidavit.

Two of these paragraphs concern the ongoing dispute of Jhanji with the Law Society, which was not relevant to the Defendants’ Motions. The other paragraph referred to an email sent by Jhanji to counsel for the Defendants dated December 7, 2021, which enclosed the Annotated Claim. [83] Counsel for the Defendants objected to the intended reliance by the Plaintiff upon the April 2022 Affidavit.

No affidavit of service had been filed, and there was no evidence that counsel for the Defendants had received this document. [84] For purposes of the Defendants’ Motions, the Plaintiff (and Jhanji) had already filed four affidavits (not counting the affidavit of Jhanji affirmed November 13, 2022 in relation to the PLO Motion). [85] Based upon the foregoing, the Court declined the request to consider the April 2022 Affidavit. In response, Daksh made a request for time to prepare and file additional written submissions.

This request was dismissed as well, as it was contrary to the objective of proportionality for this aspect of the proceedings to be delayed any further (the Defendants’ Motions were filed in January and February of 2021 respectively). [86] Other arguments advanced or issues raised during the course of Daksh’s submissions on behalf of the Plaintiff can be summarized as follows:

a) in addition to the deposit of $5,000.00 that had been paid by the Plaintiff in accordance with the Offer (which the Defendant 639 has retained, and contends has been forfeited), the Plaintiff also incurred an expense of $7,000.00 for a phase 2 environmental report at the Property;

b) it was submitted that the Offer was made upon the premise that there was no soil contamination at the Property;

c) the Defendant 639 granted permission to the Plaintiff for completion of a phase 2 environmental report concerning the Property once the parties became aware of the existence of an environmental report from 2006 (after the Offer was made and accepted);

d) according to the Plaintiff, there was “no meeting of the minds” between the parties concerning the Offer, as the Plaintiff learned of the existence of the environmental report concerning the Property from 2006 after the Offer was made and accepted;

e) contrary to the Defendants’ duty of good faith, the “as-is” term of the Offer is being “exploited” by the Defendant 639 in an effort to transfer all responsibility for any environmental liability and remediation expenses associated with the Property to the Plaintiff solely;

f) it is further submitted that the Defendant 639 should be estopped from relying upon the “as-is” term within the Offer, given the status of the Property (evidence of contamination from past usage and statutory liability of current and former owners);

g) by asserting that the Offer is voidable, at the Plaintiff’s option, it was argued that the Plaintiff could elect to terminate the Offer if the anticipated costs for remediation of the Property was determined by the Plaintiff to be excessive; and

h) it has also been argued that counsel for the Defendants bear responsibility and are “culpable" by participating in the attempted shifting of any liability associated with the Property to the Plaintiff solely, in contravention of a duty upon professionals to ensure there is compliance with applicable legal obligations. Reply of the Defendants [87] Counsel for the Defendant 639 briefly responded, and submits that what the Plaintiff is asking the Court to do is essentially “re- write the Offer” (which it should not contemplate doing).

According to counsel for the Defendant 639, the Offer was presented on an unconditional basis by the Plaintiff (this being one aspect of the case that is not unclear or confusing). [88] It was also argued that any courtesy granted by the Defendant 639 for there to be an inspection or testing at the Property, following acceptance of the Offer, does not amend the Offer (which is a position also shared by the Defendant Landmhel). [89] As to the allegation that the Defendant 639 breached the duty of good faith in its contractual dealings with the Plaintiff, counsel for the Defendant 639 denied that the Plaintiff had been exploited, reiterating for the Court that the Plaintiff had an opportunity but elected to proceed without including any due diligence conditions within the Offer. [90] Counsel for the Defendant Landmhel also replied briefly, and emphasized that even if the facts included within the Claim are deemed to be true (for these purposes), the Court should not proceed upon the basis that the legal conclusions alleged by the Plaintiff are also true.

Statutory Provisions (Striking Pleadings) [91] The following provisions from the Rules are applicable and relevant to this case: General principle 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Proportionality 1.04(1.1) In applying these rules in a proceeding, the court is to make orders and give directions that are proportionate to the following: (

a) the nature of the proceeding; (

b) the amount that is probably at issue in the proceeding; (

c) the complexity of the issues involved in the proceeding; (

d) the likely expense of the proceeding to the parties. … Not a nullity 2.01(1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court, (

a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or (

b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. …

Material facts 25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for a claim or defence, but not the evidence by which those facts are to be proved. Separate claims or defences 25.06(2) Where a party seeks relief in respect of separate and distinct claims, or raises separate and distinct grounds of defence, the material facts supporting each claim or ground of defence shall be stated separately as far as may be possible.

Pleading law 25.06(3) 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. Act or regulation 25.06(4) Where a party's claim or defence is founded on

an Act or Regulation, the specific sections relied on shall be pleaded. Condition precedent 25.06(5) Allegations of the performance or occurrence of all conditions precedent to the assertion of a claim or defence of a party are implied in the party's pleading and need not be set out, and where the opposite party intends to contest the performance or occurrence of a condition precedent, the pleadings of the opposite party shall specify the condition and its pleadings of non-performance or non- occurrence.

Inconsistent pleading 25.06(6) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative. Inconsistent or new claims 25.06(7) An allegation that is inconsistent with an allegation made in a party's previous pleading or that raises a new ground of claim shall not be made in a subsequent pleading but by way of amendment to the previous pleading. Notice 25.06(8) Where notice to a person is alleged, it is sufficient to allege notice as a fact unless the form or a precise term of the notice is material.

Documents or conversations 25.06(9) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material. Contract or relation 25.06(10) Where a contract or relation between persons does not arise from an express agreement, but is to be implied from a series of letters, communications, or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege the contract or relation as a fact.

Nature of act or condition of mind 25.06(11) Where fraud, misrepresentation or breach of trust is alleged, the pleading shall contain full particulars, but malice, intent or knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. Presumption of law 25.06(12) A party need not plead a fact which the law presumes to be in the party's favour, or as to which the burden of proof lies on the opposite party.

Claim for relief 25.06(13) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified either simply or alternatively, and, where damages are claimed, (

a) the nature of the relief claimed, including the amount of special damages, for each claimant in respect of each claim shall be stated; (

b) the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be filed and served as they become known; and (

c) the amount of general damages claimed need not be stated.

Claim for general relief implied 25.06(14) A claim for general relief will be implied in any pleading where relief is claimed. … STRIKING OUT OR EXPUNGING DOCUMENTS 25.11(1) The court may on motion 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; (

c) is an abuse of the process of the court; or (

d) does not disclose a reasonable cause of action or defence. … General power of court 26.01 On motion at any stage of an action the court may grant leave to amend a pleading on such terms as are just, unless prejudicewould result that could not be compensated for by costs or an adjournment. When amendments may be made 26.02 Generally, a party may amend a pleading, (

a) by requisition before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution ofa party to the action; (

b) on filing the written consent of all parties and, where a person is to be added or substituted as a party, the person's written consent; (

c) at any time on requisition to correct clerical errors; or (

d) with leave of the court. Case Law (Motions to Strike) [92] In Winnipeg (City) v. Caspian Projects Inc. et al., 2020 MBQB 129 ("Caspian"), the Honourable Chief Justice Joyal providedan extensive review of the applicable Rules and legal principles to be considered when determining if pleadings are deficient and shouldbe struck, whether in whole or in part (within paragraphs 22 through 24): Legal Framework [22] For the purposes of the determinations that I must make on this motion, Rule 25.06(1) and (11) have particular application.

Rule 25.06(1) requires that every pleading must “contain a concise statement of the material facts on which the party relies forits claim, but not the evidence by which those facts are to be proved.” Rule 25.06(11) provides that full particulars are required“where a fraud, misrepresentation or a breach of trust is alleged.” Yet malice, intent or knowledge may be alleged as a fact withoutpleading the circumstances from which it is to be inferred. [23] Along with and in addition to the above (to the extent that the defendants all argue to one degree or another that certain parts of thestatement of claim disclose no reasonable cause of action) the defendants rely upon Rule 25.11(1)(d).

This Court in turn must be guidedby the now well-established and connected test. That test was summarized by this Court in Company Ltd. et al. v. The WinningCombination Inc. et al., 2016 MBQB 180 (“Vitacea”) affirmed 2016 MBCA 126 (at para. 23): The jurisprudence explaining and identifying the limitations and scope of the test applicable to aspects of Rule 25.11 is well known. Legal direction respecting a motion to strike for failing to disclose a reasonable cause of action has been most recently given in Grant v.Winnipeg Regional Health Authority et al., 2015 MBCA 44, 319 Man.R. (2d) 67, Driskell v.

Dangerfield et al., 2008 MBCA 60 atparas. 33-34, 228 Man.R. (2d) 116, and Basaraba v. Manitoba Court of Queen’s Bench, 2006 MBCA 27 at paras. 25-26, 201 Man.R.

(2d) 302. In Grant, the Manitoba Court of Appeal summarized the applicable principles as follows (at paras. 35-37): (paragraph 35 from Grant already included at paragraph 43 herein) The remedy of striking out a pleading, however, is to be used sparingly. It is reserved only for the “clearest of cases” (Ellett andKyte v. Qualico Securities (Winnipeg) Ltd. et al. (1990), (MB CA), 64 Man.R. (2d) 318 (C.A.), at para. 6).

A claimor defence, or part thereof, should not be struck out unless the moving party demonstrates that it is “plain and obvious” that the cause ofaction or defence, as pleaded, is certain to fail (Odhavji Estate et al. v. Woodhouse et al., 2003 SCC 69 , [2003] 3 S.C.R. 263;312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, at para. 15). On a motion to strike, the claim or defence should be read generously notwithstanding any imprecision in the language used in it.

Factors such as the novelty of a claim or defence, the length or complexity of the issues raised by it, or the likelihood that the opposingparty has a strong position that will likely defeat the claim or defence are not reasons alone to strike out the pleading (Hunt , (SCC), [1990] CanLII 90 (SCC), [1990] 2 S.C.R. 959], at p. 980). If a claim or defence has a reasonableprospect of success, it should not be struck out (Imperial Tobacco Canada Ltd., at para. 17; Driskell v.

Dangerfield etal. (2008), 2008 MBCA 60 , 228 Man.R. (2d) 116; 427 W.A.C. 116; 2008 MBCA 60, at paras. 11-13). [24] The test was also further explained by Edmond J. in Rebillard v. Manitoba (A.G.) et al., 2014 MBQB 181 (“Rebillard”) citing the Supreme Court of Canada judgment in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (atpara. 15): The test applied to determine whether a statement of claim should be struck out for not disclosing a reasonable cause of action is setforth in R. v.

Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45: [17] The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(

a) of the B.C. Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struck if it is plainand obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v.Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959,at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success.

Where a reasonableprospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v.B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, (SCC), [1980] 2 S.C.R. 735. . . . . . [19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential toeffective and fair litigation.

It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have somechance of success go on to trial. [20] This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims thathave no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims,without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless.

The same applies tojudges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. The efficiencygained by weeding out unmeritorious claims in turn contributes to better justice.

The more the evidence and arguments are trained on thereal issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issuesand the merits of the case. . . . . . [22] A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true,unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1S.C.R. 441, at p. 455.

No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the SupremeCourt Civil Rules). It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is notentitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to provethe facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the

firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properlyconducted. (emphasis added) [93] In addition to the portions of Skip the Dishes that were cited and relied upon by the Defendant Landmhel, Master Clearwaterprovided other detailed analysis and observations within the following paragraphs of her reasons for decision concerning motions tostrike pleadings: [47] A motion to strike does not call for an assessment on the merits, based on evidence filed, nor is that permitted. The test isnot whether the plaintiff’s case is doomed to fail or, as per the [the] new

summary judgement rules, whether there is a genuineissue requiring a trial (see Free Enterprise Bus Lines Inc. et al. v Winnipeg Exclusive Bus Tours Inc. et al., 2018 MBQB64 (Greenberg

J) at para. 28). Instead, on a motion to strike, the court must come at the analysis from a pleadings perspective only, andensure that it is only in the clearest of cases, having considered all facts in the pleadings to be true, that the pleading should be struck forany of the reasons set out in Rule 25.11(1). … [49] Further, at all times, when assessing such issues, the court is bound by the principles of proportionality, fairness, cost andexpediency. These principles have been articulated by many courts, accepted in Manitoba on numerous occasions, and are nowenshrined in the Rules.

It is true, as the plaintiffs point out, that the principle of proportionality may be applied differently from case tocase, depending on a number of factors. However, the proportionality principle, in accordance with the Rules, applies to all mattersbefore the courts, and has been considered by me in this case. … [52] A finding that the pleading fails to disclose a reasonable cause of action may be made for various reasons. It is oftenbecause the court has determined there is a complete failure to plead the material facts supporting a particular cause of action.

Alternatively, the court may determine the cause of action being pled is not one recognized by law. Finally, the court may strikethe claim because it has found the pleadings are so incomprehensible, or fatally flawed, that it is clear the defendant cannotreasonably be expected to understand the case it must meet (see Ebb and Flow). … [54] The idea that a plaintiff may be entitled to plead some facts, but then be permitted to proceed to discovery to determine theremainder of the material facts needed to prove a claim is also addressed by the Manitoba Court of Appeal in Robertson v.

ManitobaKeewatinowi Okimakanak Inc. et al., 2011 MBCA 4. At paragraph 56 of this case, the court holds: 56. …The discovery is not to be a fishing expedition to look for facts to fill the holes in a defective claim.

The whole purpose ofpermitting a party to challenge the sufficiency of the pleading is to weed out those claims for which there is not a sufficient foundation tosucceed at trial, so to permit a plaintiff to proceed to discoveries in the hope of obtaining material facts in support of the claim woulddefeat the purpose of requiring pleadings and make it impossible for the other party to know the case to be met. [55] Further, although we must assume the facts pled to be true in the consideration of such a motion, the same is not so forconclusions of law or bald assertions.

Conclusions of law can only be pled if the material facts have also been pled (Rule 25.06(3)).Failure to plead those material facts may lead to a determination that such conclusory statements are scandalous, frivolous orvexatious, and open to a strike motion (See Rebillard v Manitoba A.G. et al, 2014 MBQB 181, paragraphs 30 and 31). … [57] As set out by the Manitoba Court of Appeal in Dumont v Canada (A.G.), (MB CA), [1992] 2 C.N.L.R. 34, allpleadings are required to include sufficient material facts in order that they meet the following purposes:

(

a) to inform the Defendants of the nature of the case they have to meet as distinguished from the mode in which it is to be provided; (

b) to prevent the Defendants from being taken by surprise; (

c) to enable the Defendants to know what evidence they ought to be prepared with and to prepare for trial; (

d) to limit the generality of the Plaintiffs' claim; (

e) to limit and decide the issues to be tried, and as to which discovery is required; and (

f) to tie the hands of the Plaintiffs so that they cannot, without leave, go into any matters not included in their claim. (emphasis added) [94] Maquinay v. Greatway Financial Inc. et al., 2021 MBQB 35 (“Maquinay”) is a decision of the Honourable JusticeHarris, in which the function of pleadings is reviewed (at paragraph 4): [4] In Holmested and Watson, Ontario Civil Procedure, looseleaf (Toronto: Carswell, 1993-), the authors make the followingstatement respecting the function of pleadings (see vol. 4, 25§6): The information exchange provided by pleadings is essential to procedural fairness.

The right to participate in the proceedingand to be heard are of limited value unless the party knows the case alleged against him so that he can marshal the relevantevidence and argument to meet it. Further, pleadings assist in defining and recording the res judicata effect of judgment in an action. As stated in Williston and Rolls, The Law of Civil Procedure (1970), at p. 637: The function of pleadings is fourfold: 1. To define with clarity and precision the question in controversy between litigants. 2.

To give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed bythem. A defendant is entitled to know the nature of the defence raised in answer to his claim. 3. To assist the court in its investigation of the truth of the allegations made by the litigants. 4. To constitute a record of the issues involved in the action so as to prevent future litigation upon the matter adjudicatedbetween the parties. (as cited by Dewar J. in Peguis First Nation et al. v.

Canada (Attorney General), 2014 MBQB 98 at para. 5 (“Peguis”)) (emphasis added) [95] Fenton Group Investment Ltd. et al v.

Riverbend Realty Ltd. et al, 2021 MBQB 150 ("Fenton") is a decision fromanother one of my colleagues, the Honourable Master Goldenberg, which involved an action commenced in relation to sale of property(analogous to the case at bar). [96] While recognizing the principles set forth within the foregoing decisions, at paragraph 10 in Fenton, Master Goldenberg notedas follows concerning self-represented parties in the context of motions to strike pleadings: [10] While some leniency may be afforded to a self-represented litigant’s imperfect knowledge of rules and procedures, theremust be a balanced approach to ensure the right of the other party to know the legal and factual issues that must be met.

The

defending party still needs to know what to respond to (see Coleman v. Pateman Farms Ltd et al., 2001 MBCA 75, at para 75). (emphasis added) Leave to Amend [97] Within paragraph 18 of Fenton, and upon there being a determination that the statement of claim in that case failed to disclose areasonable cause of action, Master Goldenberg made the following findings insofar as whether the plaintiff ought to be granted leave tofile an amended statement of claim: [18] I find that there is no amendment that could raise a valid, arguable point that has merit.

Simply put, the claim is so deficient itcannot be rectified by an amendment. That is particularly the case where, as here, I find there is no identified or identifiable cause ofaction against the City based on the facts plead in the claim. As such, I am exercising the discretion afforded to me under Rule25.11(1) to strike the claim without leave to amend. (emphasis added) [98] Garang v. Grimolfson, 2021 MBQB 234 (“Garang”) is another decision from Master Goldenberg that involved amotion to strike pleadings.

At paragraphs 23 and 24 in Garang, Master Goldenberg explained her rationale for not granting leave for theplaintiff in that case to file an amended statement of claim: [23] I am satisfied that this is a case where I should exercise my discretion to not grant the plaintiff leave to amend the claim.It is fundamentally flawed and its deficiencies cannot be adequately addressed by a request for particulars or amendments ofspecific sections. The plaintiff has already amended his claim once prior to serving the claim on the defendant, and has already had anopportunity to clarify the claim.

The plaintiff submitted a further proposed amendment in his motion brief, which in no way helps toremedy the glaring deficiencies. Granting the plaintiff another opportunity to bolster his claim would only prolong the litigationunnecessarily when the claim is certain to fail. [24] I find that striking the claim in its entirety without leave to amend is the most proportional, fair, expedient and costeffective determination on the facts.

Further, I find that it is in the interest of justice for the court to do so. (emphasis added) Analysis Issue to be determined [99] Based upon the foregoing statutory provisions and relevant case law, the issue that I must decide is whether the Claim should bestruck, in whole or in part, with or without leave to amend, for failure to disclose a reasonable cause of action. In other words, is it plainand obvious that the Claim discloses no cause(

s) of action, even if the facts set forth therein are deemed to be accurate? Deficiencies with the Claim [100] Counsel for the Defendant 639 has outlined a number of perceived deficiencies within the Claim (confirmed primarily withinparagraphs 29 to 45, and paragraphs 48 to 54 herein).

These concerns can be summarized as including but not being limited to the Claimfailing to disclose any reasonable cause of action (based upon specific performance or breach of contract), that the Claim does notprovide material facts, and that the Claim contains evidence and conclusions of law, without citing the sections from legislation that isrelied upon.

Ultimately, it has been articulated on behalf of the Defendant 639 that the Claim is confusing and does not set forth materialfacts in a concise, chronological manner. [101] There are also numerous deficiencies with respect to the Claim that have been identified by counsel for the Defendant Landmhel(confirmed primarily within paragraphs 62 to 76 herein). These concerns can be summarized as including but not being limited to thereality that the Claim could arguably be considered as frivolous and an abuse of process, that no duty of care has been established

involving the Defendant Landmhel (given the absence of material facts provided), and that it is not clear what must be pleaded in response so as to meet the case being advanced by the Plaintiff.

Consistent with the Defendant 639, it has been argued by counsel for the Defendant Landmhel that the Claim is incomprehensible. [102] Despite the submissions made by Daksh (summarized within paragraphs 78 to 86 herein), I am satisfied that the Defendants have demonstrated, on a balance of probabilities, that the concerns raised about the Claim have merit when considering the Rules and applicable case law for motions to strike pleadings. [103] At the outset, I have concerns with respect to the following portions of the Claim (in addition to what has been raised by counsel for the Defendants):

a) Paragraph 1(

a) I : the wording “Specific Performance Relief to transfer the Assets of 6399500 Manitoba Ltd. recited in The Offer to Purchase (OTP)” is utilized, instead of simply specifying that the Offer was made for the Property;

b) Paragraph 1(

a) II : this clause makes reference to “Buildings”, but does not define this term, or provide material facts to describe or confirm the number or type of structures located upon the Property (until page 8 of the Claim);

c) Paragraph 1(

a) III : the term “Gas Station” is utilized but not defined (until page 8 of the Claim);

d) Paragraph 1(

a) VIII : the sentence that states “it is prescribed as dishonest dealings in the adverse impact by The Real Estate Brokers Act ” is legal argument, as well as confusing;

e) Paragraph 1(

a) X : it is not clear what is meant by the wording “estoppel to resile”;

f) Paragraph 1(

a) XII : in addition to being confusing, a legal conclusion is being asserted where it reads (as a title, immediately above this clause) “The Remediation Plan binds another buyer, but for the plaintiffs priority”;

g) Paragraphs 1(

a) X III : this clause is not clear, and represents argument as opposed to pleading material facts (“it applied prospectively to another buyer as similarly placed”);

h) Paragraph 1(

a) XIV : the intended meaning of this wording “it internally confirmed to the condition-precedent regulatory-approvals” is unclear, nor are there material facts provided to substantiate the allegation that there was a condition precedent operative in connection with the Offer;

i) Paragraph 1(g) : it takes until the bottom portion of page 7 of the Claim for there to be reference to a certificate of title number and the legal description of the Property that is the subject of the Offer; and

j) Paragraph 8(

o) III : further legal argument is contained (that is confusing), where it states “they exploited the inapplicable terms of the OTP in a straight-jacket view to abandon their regulatory-approvals.” [104] In addition to the above noted concerns, as well as the issues noted on behalf of the Defendants, I find that the Claim contravenes the Rules . In particular:

a) Rule 25.06(1): the Claim is to provide material facts, concisely stated, and not the evidence to prove such facts. Unfortunately, this is not the case within a number of portions of the Claim. For instance, at paragraph 1(

a) III of the Claim, it is alleged that there was a condition precedent applicable to the Offer requiring regulatory compliance, although no material facts are provided. As another illustration, at paragraph 7(

h) IV of the Claim, it states that the Xu, as the listing agent, had a duty of care in favour of the Plaintiff. No material facts are pleaded to substantiate this assertion (and the Plaintiff did not name Xu as a party to this action).

b) Rule 25.06(3): conclusions of law may only be included if the pleading also contains the material facts in support of such conclusions. Unfortunately, in many instances, the Claim does the exact opposite, advancing legal conclusions and argument without a factual underpinning. As an illustration, paragraph 1(

a) IV reads, in essence, that the Defendant 639 cannot contract out of the Offer or pass environmental liability and remediation responsibility to the Plaintiff (this is tantamount to a legal conclusion, without identifying

the material facts upon which this legal argument can be sustained). In addition, paragraph 1(

a) XV represents a legal conclusion when, without factual basis, it reads that there is an alleged “legal controversy to invalidate the closing-date, due to self-induced faults”.

c) Rule 25.06(4): if legislation is being relied upon, the

section in question must be pleaded. At paragraphs 6(s), 7(g), 7(

h) and 8(

p) of the Claim, however, there are no sections noted from The Environment Act , R.S.M., 1987, c. E26 (the “ MB EA ”). As will be reviewed within the balance of this decision, there is other legislation that is arguably more applicable to this situation than the MB EA . In addition, The Real Estate Brokers Act , R.S.M., 1987, c. R20 (the “ MB REBA ”) is mentioned within paragraphs 1(

a) VIII and 7(

g) of the Claim, but no section(

s) are pleaded (the MB REBA has since been repealed, with The Real Estate Services Act , R.S.M., 2015, c.R45 (the “ MB RESA ”) coming into effect as of January 1, 2022).

d) Rule 25.06(6): where alternative causes of action are pleaded, it must be done with clarity within the pleading. For instance, while paragraph 1(a)I of the Claim alleges that the Offer is voidable (at the option of the Plaintiff), it is not clearly stated as being an alternative argument to the claim for specific performance. [105] I also find that the Claim does not comply with the following applicable legal principles:

a) the Claim does not contain a concise statement of material facts, and instead provides evidence (confirmed at paragraph 22 of Caspian );

b) the Claim does not meet the purpose or function of pleadings (set forth at paragraph 97 of Skip the Dishes , which cites the Manitoba Court of Appeal decision in Dumont , and paragraph 4 of Maquinay ). [106] While it is recognized that the Claim could arguably be viewed as being compliant with Rule 25.06(2), as there are a number of descriptive headings inserted throughout the Claim where separate relief is sought, the Claim is 20 pages long. It is cumbersome. I am not minimizing the importance of the issues in dispute and financial implications to the parties, but this is not an overly complicated action.

Such a long pleading is not necessary here. [107] With the greatest of respect to the Plaintiff (and Jhanji), I also find the Claim to be confusing and extremely difficult to follow. [108] Quite frankly, within a number of paragraphs, the wording of the Claim is uncertain and incomprehensible. Without repeating every portion of the Claim where counsel for the Defendants, and I, have identified concerns, certain passages stand out:

a) What does “estoppel in resile” mean (a term that appears more than once within the Claim)?

b) What is intended to be conveyed by “They conducted oppressively to shift the non-payment fault, by exploiting the Closing-date terms in a straight-jacket view, solely to forfeit the deposit-money in their coercive threats” (paragraph 8(

a) of the Claim)?

c) Why did counsel for the Defendants have a “duty for ILR, to make out their legal position, void in content” (paragraph 8(

p) of the Claim)? [109] Even without reviewing the Annotated Claim (for the reasons set forth earlier), the very fact that the Annotated Claim was prepared speaks to the lack of clarity and deficiencies contained within the Claim as filed.

If the Claim was concise, clearly identified the causes of action being pursued, contained all material facts relied upon, and precisely cited the sections from relevant legislation, the Annotated Claim should not have been necessary. [110] From the Court’s perspective, it is not solely what is set forth within the Claim that creates pause for the Court. [111] As acknowledged by Daksh, the Plaintiff intends to advance arguments based upon details not expressly contained within the Claim. Case in point is the July 2020 email.

Daksh confirmed that if the Court is to determine that the Offer was made and accepted strictly on an “as-is” basis, the Plaintiff will assert that the July 2020 email represented a variation to the Offer, and that it was implied the Plaintiff must be satisfied with the results of its due diligence environmental testing at the Property. [112] The Plaintiff’s allegation concerning the July 2020 email is not set forth clearly within the Claim, and no motion to amend the Claim has been filed on behalf of the Plaintiff. [113] Proportionality, efficiency, fairness, and attempting to reasonably limit costs associated with the litigation process cannot be easily attained with incomplete pleadings.

In saying this, it is also appropriate to emphasize that parties must bear responsibility for their own pleadings.

[114] Ultimately, I accept the sentiments expressed by counsel on behalf of the Defendants as it is not entirely certain what must bepleaded in order to be in a position of meeting the case put forward on behalf of the Plaintiff. [115] The underlying premise or expectation, when undertaking an analysis of whether it is plain and obvious that a pleading disclosesno reasonable cause of action, is for the pleading itself to be clear. In the case at bar, however, the content of the Claim leads to andresults in uncertainty. [116] Based upon the foregoing, and in recognition of the principles articulated within Manitoba decisions

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