2017 ONSC 6271, 2017 ONSC 6271

CITATION: Eliot Shore v. Capital Sports Properties Inc. et al. 2017 ONSC 6271 COURT FILE NO.: 16-69624 DATE: 2017/10/19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Eliot Shore Plaintiff – and – Capital Sports Properties Inc., Capital Sports& Entertainment Inc., Senators Sports &Entertainment, The Ottawa Police ServicesBoard, Sergeant Robert Cairns, Officer PeterKoch, Officer Peter McKenna, Tina Scollan Defendants ) ) ) ) ) ) ) ) )) ) )))))) Lawrence Greenspon & Tina H.

Hill for thePlaintiff Jeremy Wright for the Defendants OttawaPolice Services Board, Sergeant Robert Cairns,Officer Peter Koch and Officer Peter McKenna ) HEARD: October 19, 2017 ENDORSEMENT o’bonsawin J. [1] The Defendants, the Ottawa Police Services Board, seek an order striking out paragraph 28 of the Statement of Claimwithout leave to amend. The Defendants rely, in particular, on Rules 1.04, 21.01(1), 25.06(1) and 25.11. Rule 1.04 states that the rulesare to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on itsmerits.

As per Rule 21.01(1)(b), a judge can strike out a pleading on the grounds that it discloses no reasonable cause of action. As perRule 25.06, pleadings must contain a concise statement of the material facts that the party relies on for the claim but not the evidence bywhich the facts are to be provided. Finally, Rule 25.11 allows a court to strike out or expunge all or part of a pleading with or withoutleave to amend if the pleading prejudices or delays the fair trial of the action, is scandalous, frivolous or vexation or is an abuse of theprocess of the court. [2] In Abdi Jama (Litigation Guardian of) v.

McDonald’s Restaurants of Canada Ltd., [2001] O.J. No. 1068, Nordheimer J.states in paragraph 21 that “motions under Rule 25.11 should only be granted in the “clearest of cases”. This finding is also repeated byBoswell J. in paragraph 19 of Bilotta et al. v. Barrie Police Services Board et al., 2010 ONSC 622: “[w]hen it is sought to strike out aclaim on the basis that it discloses no cause of action, the court will only do so in the clearest of cases where it is plain and obvious thatthe case cannot succeed”. [3] In paragraph 27 of Balanyk v.

University of Toronto, , Cameron J. determines that to assess the adequacyof pleadings under Rules 21.01, 25.06 and 25.11, the judge must keep in mind their purposes which are: (

a) to define clearly andprecisely the question in controversy between the litigants; (

b) give fair notice of the precise case which is required to be met and theprecise remedies sought; and (

c) assist the court in its investigation of the truth of the allegations made. [4] In Thode v. University of Ottawa, [2012] O.J. No. 6080, McNamara J. determined that the threshold for sustaining apleading is not a high one. Accordingly, “[m]otions under rule 21.01 will only succeed where it is plain and obvious, assuming the factsplead to be true, that the pleading discloses no reasonable cause of action. The approach must be generous and err on the side ofpermitting a novel but arguable claim to proceed.” [5] I make these findings in having considered the material provided including the caselaw and having heard the submissions of

the parties. Paragraph 28(

a) of the Plaintiff’s Statement of Claim appears to be a novel claim. With respect to paragraphs 28(

a) and (b), the issue remains that the Plaintiff has not provided sufficient material facts to support the allegations. As per Banalyk , the Plaintiff has not clearly and precisely defined the question in controversy between the litigants regarding the matter having a system in place and how the Board knew or ought to have known that the officers in question had a propensity and history of using excessive force and failed to take appropriate steps to address these propensities. In addition, it is difficult to see the nexus between these allegations in these pleadings and the facts provided. With regards to these paragraphs, I have determined that the Plaintiff’s pleading in paragraphs 28(

a) and (

b) do not provide a sufficient statement of material facts that he relies on for this part of his claim. [ 6 ] The Defendants in this case rely heavily on the decision of Bilotta et al. v. Barrie Police Services Board et al. , 2010 ONSC 622 . In this matter, the Police Services Board sought an order striking out portions of the Amended Statement of Claim relating specifically to it because they did not meet the minimum requirements for pleadings and/or did not disclose a cause of action against the Board.

Boswell J. struck out the paragraphs of the Amended Statement of Claim relating to the training and supervision. I have the benefit of comparing the paragraphs struck by Boswell J. since he added them in as Appendix “A” to his decision and those in paragraph 28 of the Plaintiff’s Statement of Claim. Based on the reasons in Bilotta , I strike out paragraphs 28(c), (

d) and (

e) of the Plaintiff’s Statement of Claim as they relate to training and supervision. [ 7 ] In conclusion, I order as follows: (

a) Paragraphs 28(

a) and (

b) of the Plaintiff’s Statement of Claim are struck with leave to amend; (

b) Paragraphs 28(c), (

d) and (

e) of the Plaintiff’s Statement of Claim are struck without leave to amend; and (

c) the Plaintiff shall pay the Defendants’ costs in the amount of $3,360.00 within the next 30 days. Justice M. O’Bonsawin Released: October 19, 2017 CITATION : Eliot Shore v. Capital Sports Properties Inc. et al. 2017 ONSC 6271 COURT FILE NO.: 16-69624 DATE: 2017/10/19

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Eliot Shore – and – Capital Sports Properties Inc., Capital Sports & Entertainment Inc., Senators Sports & Entertainment, The Ottawa Police Services Board, Sergeant Robert Cairns, Officer Peter Koch, Officer Peter McKenna, Tina Scollan ENDORSEMENT O’Bonsawin J. Released: October 19, 2017