Larry Squires Applicant And: Association of Newfoundland land Surveyors Defendant, 2021 NLSC 60

Source: Supreme Court of Newfoundland and Labrador

Date: 2021-05-06

Jurisdiction: Federal

Docket: 201901G5917

Citation: 2021 NLSC 60

Opinion

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Squires v. Association of Newfoundland Surveyors , 2021 NLSC 60 Date : May 6, 2021 Docket : 201901G5917 Between: Larry Squires Applicant And: Association of Newfoundland land Surveyors Defendant Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 5, 2021

Summary: The Defendant brought an application pursuant to Rule 14.24(1)(

a) seeking to strike a Statement of Claim as failing to disclose a reasonable cause of action. The Court found that a reasonable cause of action could be discerned from the Statement of Claim but that it lacked particulars of allegations of bad faith. The Court concluded that the appropriate remedy was not to strike the action but to order the filing of particulars. Appearances: Larry Squires No Appearance

Giles W. Ayers Appearing on behalf of Association of Newfoundland Surveyors Authorities Cited: CASES CONSIDERED: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19; Zündel v. R., 2005 FC 1612; DeBourke v. EasternRegional Integrated Health Authority, 2019 NLSC 10; Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C. (T.D.)); Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42; Montreal Trust Co. ofCanada v. Hickman, 2001 NFCA 42; Conway v.

Law Society of Upper Canada, 2016 ONCA 72 STATUTES CONSIDERED: Land Surveyors Act, 1991, S.N.L. 1991, c. 37; Fraudulent Conveyances Act, R.S.N.L. 1990 c. F-24 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D EDITED REASONS FOR ORAL JUDGMENT Chaytor, J.: INTRODUCTION [1] Larry Squires, claims to have been a member of the Association of Newfoundland Land Surveyors for approximately 40 years.He issued a Statement of Claim on September 18, 2019 against the Association alleging that: In January 2014 I was suspended for 6 months for allegedly breaking of the by-laws of the association.

Rather than fighting theseallegations, I accepted the 6 month suspension I was offered by the association. When the 6 months was up, I asked for my license backand was refused. Ever since that time I have been trying to get it back and for excuse after another they have not given back my licence. [2] On October 4, 2019, the Association filed an application to strike the Statement of Claim pursuant to Rule 14.24(1)(

a) of theRules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D (“the Rules”) as disclosing no reasonable cause of action. The basis of theapplication is that the Statement of Claim does not plead material facts to support any reasonable cause of action, provides no particulars,and seeks no relief. [3] On November 14, 2019, the parties appeared on the application. The Court recommended that Mr. Squires seek legal adviceand he was given leave to file an amended Statement of Claim. [4] On January 29, 2020, Mr.

Squires filed an Amended Statement of Claim in which he added the following statement followingthe wording noted in paragraph 1 above: Thereby causing the Plaintiff damages because the actions of the Defendant are not in good faith and are contrary to

section 36 of theLand Surveyors Act, 1991, S.N.L. 1991, c. 37. [5] The amended pleading also added that Mr. Squires is seeking relief in the form of loss of professional income for the last 5years, loss of future income, general damages to be assessed, and such other relief as may be just and costs. [6] The Association takes the position that the amended pleading still failed to disclose a reasonable cause of action and soughtadjudication of its application. The matter next came before the Court on March 17, 2020.

Counsel for the Association advised of itsposition that the pleading remained deficient in that particulars of bad faith are not pled. The Court provided guidance to Mr. Squires asto Rule 14.11 in terms of the particulars expected when there is a claim of this nature. At that time, Mr. Squires advised the Court that hewas seeking legal counsel outside the province as he was having difficulty getting a lawyer in this province. The matter was adjournedfor 60 days to allow Mr. Squires to receive legal advice and attend to a further amendment of the pleading. The matter next came beforethe Court on January 12, 2021.

Mr. Squires had still not received legal advice and had not further amended the pleading. The applicationwas set on the long cause application list to be heard for a half day hearing. [7] The application came on for hearing on April 23, 2021. Mr. Squires advised he had retained John Duggan to represent him butthat Mr. Duggan was not available that day so he requested a postponement. The postponement was granted and set for hearing ontoday’s date. It was made clear to Mr. Squires that the application would proceed without further delay on today’s date. Mr. Squiresfailed to attend court today. Mr.

Duggan appeared but made it clear that he was doing so only as a courtesy to the Court. He was notofficially retained. His retainer had been contingent on Mr. Squires meeting with him before today’s appearance but Mr. Squires had

failed to show up and he was unable to reach him. Mr. Duggan withdrew and the Court proceeded to hear the application. It was theninth time the application had been called in Court. issue [8] Should the Amended Statement of Claim be struck as disclosing no reasonable cause of action pursuant to Rule 14.24(1)(a)? Ifnot, what if any other remedy is appropriate? analysis [9] Rule 14.24(1)(

a) states as follows: 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; [10] This Rule can be a useful tool to achieving efficiency in dealing with civil litigation claims that have no reasonable chance ofsuccess. In Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, the Supreme Court of Canada reiterated the importance of applicationsto strike as a mechanism in the promotion of timely and affordable access to the civil justice system.

Brown J., writing for the majoritystated at paragraph 18 that where possible courts should resolve legal disputes promptly, rather than referring them to a full trial. [11] In bringing this Application, the Association asserts deficiencies in the Statement of Claim such that no reasonable cause ofaction has been made out. One of the deficiencies set out in the application to strike was that there was no relief sought in the originalStatement of Claim.

The amended pleading filed January 29, 2020 specified the relief sought so that is no longer an issue. [12] The other deficiencies on which the Association bases its application is that the material facts are not pled to support anyreasonable cause of action and the pleading lacks particulars. The Association contends that this remains an issue with respect to theamended Statement of Claim. [13]

Section 36 of the Land Surveyors Act, 1991, S.N.L. 1991, c. 37 states that no action lies against the Association, the board, thecouncil, the discipline committee or a member or officer of them for proceedings taken in good faith or orders made or enforced underthe disciplinary provisions of the Act, the by-laws or the regulations. As such,

section 36 provides the Association with immunity fromclaims for mere negligence. This type of protection is found in many enabling statutes of professional regulators. The exception to thisimmunity is that it only protects acts that are done “in good faith.” Therefore an absence of good faith, or in other words, bad faith,involving malice or intent, would be sufficient to ground a properly pleaded cause of action against the Association. [14] Prior to the amendment of the Statement of Claim, the Association may have been able to rely on

Section 36 to found the basisof the application to strike. The amended pleading clarifies however that Mr. Squires is alleging the Association, in not reinstating hislicence after the expiry of the 6 month suspension, was not acting in good faith. If proven, this could take the action outside theprotection offered to the Association pursuant to

section 36. [15] The Association contends however that the amended Statement of Claim does not plead the material facts on which the badfaith claim is based. It does not provide particulars as to how the Association has allegedly acted in bad faith in refusing to reinstate Mr.Squires’ licence. The Association contends that the reinstatement of the licence was subject to certain conditions. It is uncertain to theAssociation the basis of the claim of bad faith including whether Mr.

Squires is alleging that those conditions were illegal or improper. [16] When pleading bad faith or abuse of power, it is not enough to assert, baldly, conclusory phrases such as “bad faith” (Zündel v.R., 2005 FC 1612). From a procedural perspective, this principle is encapsulated in Rule 14.11(1) of the Rules, which stipulates what isrequired to be set out in a pleading which alleges deliberate behavior such as bad faith: 14.11

(1) Subject to rule 14.11(2), every pleading shall contain the necessary particulars of any claim, defence or other matterpleaded, including (

a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies;and (

b) where a party pleading alleges any condition of the mind of any person, including any disorder or disability of mind or anymalice, or fraudulent intention, or other condition of mind except knowledge, particulars of the facts on which the party relies. [17] On an application pursuant to Rule 14.24(1)(a), the question of whether the pleadings disclose a reasonable cause of action is tobe assessed by the “plain and obvious test”. In other words, the pleading should not be rejected unless it is plain and obvious that itdiscloses no reasonable cause of action and is certain to fail [DeBourke v.

Eastern Regional Integrated Health Authority, 2019 NLSC10]. In Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C.(T.D.)) the Court noted that the threshold test is a low one. [18] The Court assumes that the facts as stated in the pleading can be proven and, then, reading the claim generously, it will assesswhether it is plain and obvious that the pleading discloses no reasonable cause of action, or put another way, the claim has no reasonableprospect of success [Knight v.

Imperial Tobacco Canada Ltd., 2011 SCC 42, at paragraph 17]. [19] In Montreal Trust Co. of Canada v. Hickman, 2001 NFCA 42, the Court of Appeal considered the issue of striking portions ofa statement of claim on the basis of there being no reasonable cause of action in the context of a pleading alleging fraud. Although thatcase involved allegations pursuant to the Fraudulent Conveyances Act, R.S.N.L. 1990 c. F-24, the principles enunciated regarding anapplication to strike a pleading for lack of particulars when reproachful conduct is alleged, are applicable to this case. The court

cautioned that striking a pleading is a drastic step and even in circumstances where the deficiencies amount to failure to plead particulars of fraud, as required by Rule 14.11, such deficiencies are not necessarily fatal.

Rather, before making an order to strike, the court should consider whether the deficiency can be cured by either an amendment to plead specific facts or by way of an order for particulars. [ 20 ] Further, at paragraph 12 the Court of Appeal stated: There will be many situations where a cause of action cannot be said to exist on the material facts as pleaded but it will be apparent what the intent of the pleader is and that by the addition of omitted material facts upon which the claimant will be relying or the variation of existing pleaded material, a cause of action known to the law would be said to exist.

It would be unfair to the pleader in such circumstances, and a violation of the principle that cases should, if possible, be disposed of on their merits, to strike the claim without allowing the pleader an opportunity to attempt to cure the defect (but with, perhaps, appropriate penalties in costs). [ 21 ] Based upon a generous reading of Mr. Squires’ claim as currently articulated, I cannot find that it is plain and obvious that the pleading discloses no reasonable cause of action. Rather, although lacking significant details, the pleading makes Mr. Squires’ intent apparent. Mr.

Squires’ amended Statement of Claim alleges facts about the way that he was treated by the Association. He claims that when allegations were made against him, he accepted the 6 month suspension period offered to him by the Association rather than contest the allegations. At the end of the suspension period, instead of having his license reinstated, as he understood would happen, the Association provided excuses for why that would not happen. Following these assertions, he then adds, “ Thereby causing the Plaintiff damages because the actions of the Defendant are not in good faith and are contrary to

section 36 of the Land Surveyors Act , 1991 .” Although Mr. Squires does not directly state that those assertions are indications that the Association deliberately acted in bad faith towards him, it is apparent to the Court that this is his intention.

In essence, he is alleging is that he was lured into accepting a defined disciplinary period, instead of contesting the allegations against him, and subsequently, the Association has not kept its word and reinstated his licence. [ 22 ] Possible causes of action that could be discerned from these facts include breach of fiduciary duty, or perhaps more likely, misfeasance in public office. In Conway v.

Law Society of Upper Canada , 2016 ONCA 72 , the Ontario Court of Appeal explained that the essence of the tort of misfeasance in public office is the deliberate and dishonest wrongful abuse of powers given to a public officer, together with the knowledge that the misconduct is likely to injure the plaintiff. Bad faith or dishonesty is an essential ingredient of that tort. It is with respect to this essential element that Mr.

Squires’ pleading remains deficient as bad faith must be particularized and that has not been done. [ 23 ] As such, I conclude that there is a sufficient indication in the Amended Statement of Claim of potential causes of action known to the law against the Association. In other words, to borrow the analogy utilized by Green J.A, in Montreal Trust Co. of Canada v. Hickman , 2001 NFCA 42 , the Court is satisfied that the “bare bones” of a cause of action has been made out.

However what is missing is the flesh on the skeleton to provide sufficient particulars of the alleged actions by the Association that are tantamount to not having acted in good faith. [ 24 ] Although the pleading does not particularize how the Association allegedly did not act in good faith, if those particulars were given, the Association should know the case it has to meet. Therefore, this is a case where the remedy for defective pleading is not to strike it out but to order further and better particulars. Mr. Squires has already had an opportunity to file an amended S tatement of Claim, and he has done so.

He is however a self-represented litigant and some latitude must be given in those circumstances. Fairness requires that he be given an opportunity to provide further particulars. [ 25 ] The Association is entitled to sufficient particulars of how it is alleged that it did not deal with Mr. Squires in good faith. Such information would be expected to include: (1) the specific information that Mr. Squires is alleging he was given that his licence would be reinstated at the end of 6 months including who gave him this information and when; (2) details of the “excuses” it is alleged Mr.

Squires received for not getting his licence back including who provided this information and when; (3) whether Mr. Squires is alleging that the Association was biased against him and if so, the specifics of the alleged bias; (4) whether Mr. Squires is contending that any of the conditions upon which his licence was to be reinstated were illegal or improper and if so which conditions and how is it alleged that those conditions were illegal or improper; and (5) whether Mr.

Squires is contending that he was entitled to a waiver from any conditions or whether the Association waived any conditions and if so which conditions and the specifics of the waiver. [ 26 ] The provision of these particulars should provide the Association with enough information to know the case it has to meet. Costs [ 27 ] The Association has had a degree of success in its application in that an Order has been made for Mr. Squires to provide particulars. Mr. Squires has been given ample opportunity to seek legal counsel and has been provided guidance on previous court occasions that he has not followed.

This has led to delay and numerous appearances on this application. These circumstances might well warrant an award of costs in favour of the Association. Counsel for the Association, however, graciously acknowledged Mr. Squires’ limited financial circumstances and therefore made no submission on costs. As such, costs of this application shall be in the cause.

summary and Disposition [ 28 ] The following Order is made: 1. Larry Squires is ordered to file and serve on the Association of Newfoundland Land Surveyors the following particulars within 30 days: (1) the specific information that Mr. Squires is alleging he was given that his licence would be reinstated at the end of 6 months including who gave him this information and when;

(2) details of the “excuses” it is alleged Mr. Squires received for not getting his licence back including who provided this information and when. (3) whether Mr. Squires is alleging that the Association was biased against him and if so, the specifics of the alleged bias; (4) whether Mr. Squires is contending that any of the conditions upon which his licence was to be reinstated were illegal or improper and if so which conditions and how is it alleged that those conditions were illegal or improper; and (5) whether Mr.

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