CITATION: Dolan v. CCOC, 2015 ONSC 2145

COURT FILE NO.: 14-61011

DATE: April 2, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUSAN DOLAN, Plaintiff

AND:

CENTRETOWN CITIZENS OTTAWA CORPORATION

and MICHAEL THIELE, Defendants

BEFORE: MASTER MACLEOD

APPEARING:

Susan Dolan, Plaintiff, in person

Joseph Y. Obagi for the defendant Thiele

Robert J. DeToni for the defendant CCOC

HEARD: March 10, 2015

ENDORSEMENT

[1] The plaintiff, Ms. Dolan, has good reason to feel aggrieved.

[2] Between October 2011 and January of 2013 she was a tenant of the defendant CCOC which is a provider of public housing in Ottawa. In June of 2012 she reported water infiltration and mould to the landlord and in August of 2012 she reported the unresolved problem to the City of Ottawa.

[3] Her complaint to the property standards office resulted in a determination by the City that “the unit is not a habitable space” and an order requiring the landlord to gut and renovate the rental unit or pay a $100,000.00 fine. The landlord offered alternative accommodation on terms which the tenant found unfair and unreasonable. As a consequence of the inability to agree on terms, the landlord commenced eviction proceedings and obtained an extension of time to comply with the order by appealing to the Property Standards Appeal Committee. The extension was granted.

[4] On December 3, 2012 at a hearing before the Landlord and Tenant Board the plaintiff was evicted from the premises effective January 31, 2014. According to the plaintiff she and her son were then homeless for a period of time.

[5] She feels that the corporation failed in its obligation as a landlord to provide secure habitable premises, failed in its mandate as a public service corporation to provide accommodation for vulnerable individuals such as herself, attempted to coerce her, misused the eviction process and caused her financial and emotional damage and damage to her health. She blames the corporation but she also blames the corporation’s lawyer, Michael Thiele who acted for the defendant during the eviction process. On June 2nd, 2014 she sued CCOC and she sued Mr. Thiele.

[6] Neither of the defendants have filed defences. Instead they have instructed their counsel to bring motions to strike out the statement of claim under Rule 25.11 of the Rules of Civil Procedure. This is the motion before the court. The defendants both ask that the statement of claim be struck out without leave to amend.

[7] Let me say at the outset that I feel a great deal of sympathy for the plaintiff. She is representing herself. She appeared in court against two able lawyers. She held her ground. She was respectful, articulate and intelligent. She had researched case law and she had drafted her pleadings as well as she could. She was quite prepared to amend the pleading to correct any deficiencies. Unfortunately for her these pleadings are incapable of correction. For the reasons that follow I am obliged to grant the motions.

General Principles

[8] Not every sense of wrong gives rise to a right to seek damages in court. To render a defendant liable in this court the wrongful act or omission must occur in circumstances recognized by law as actionable. The plaintiff must comply with fundamental process requirements and if she has a right of action, she must exercise it within the time prescribed for so doing. Parties to civil proceedings must also follow the procedures prescribed by the Rules of Civil Procedure and the prescribed forms.

[9] All litigants, whether representing themselves or represented by counsel must follow the procedural requirements set out in these rules. The intent is not to enforce rigid and sterile technical compliance. To the contrary, the objective of the rules is to ensure access to justice and it is often said that the rules are the servants of justice and not its master. This is encapsulated in the general interpretive provision requiring the court to interpret the rules liberally to ensure the “just most expeditious and least expensive determination” of every civil proceeding “on its merits”. Failure to comply with the rules is generally to be regarded as an “irregularity” and the court is enabled to grant all “necessary amendments or other relief on such terms as are just” to secure the “just determination of the real matters in dispute”.

[10] So the Rules are not to be treated as technical minefields. Whenever it is reasonable to do so, parties are permitted to rectify defects in procedure. On the other hand justice must be even handed and it must be administered in accordance with legal and equitable principles. It is not fair to a defendant to require it to respond to a case that has no merit or one that is ill defined, vague and ambiguous or involves allegations that can have no legal significance.

[11] There are a number of rules that permit the court to bring such actions to an early conclusion. The very first step in defining the issues is the pleadings. These are the foundational documents that define the issues in dispute and which in turn define the scope of documentary production and discovery as well as the scope of an eventual trial. In a statement of claim, the plaintiff is required to define the case with a reasonable degree of focus and precision. It is a fundamental principal of procedural justice that a litigant has notice of the case it must meet.

[12] Since the pleadings define the issues in dispute and the scope of the litigation they are tremendously important. Amongst other things, the pleadings confine and channel rights of documentary production, discovery and other pre-trial processes. They determine what facts and evidence are relevant and admissible. They allow parties to frame their responses, to marshal evidence, to consider settlement and they determine the proper ambit of the proceeding if it goes to trial.

[13] The requirements for a statement of claim are set out in Rule 25.06 and in Form 18A. As noted above, minor departures from the rule should be rectified by an order under Rule 2. A party who is not represented by a lawyer should be given reasonable latitude providing the pleading is comprehensible but a pleading that materially fails to comply with the objectives of Rule 25.06 should be struck out. Even a technically compliant pleading may be struck out however if it can be demonstrated that the pleading is such that it would create injustice. Specifically a pleading may be struck out if it will interfere with expedient and fair adjudication, will introduce irrelevant and scandalous allegations, is frivolous, vexatious or an abuse of process.

[14] Rule 25.11 is one of the mechanisms for controlling litigation that is not properly framed. The rule reads as follows:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

The Statement of Claim

[15] I turn now to the statement of claim in question. The pleading is titled “amended statement of claim”. It consists of 23 pages. The first 12 pages of the claim are what is usually known as the “prayer for relief”. In accordance with Form 18A this is to set out the precise relief claimed by the plaintiff. The plaintiff has duly set out a list of orders, judgments and declarations she is requesting against both of the defendants. In addition to numerous declarations of wrongdoing and breach of duty, she seeks, “punitive and aggravated damages” in an unspecified amount and “general and specific damages in an amount to be determined, not exceeding $100,000”.

[16] The declaratory relief she seeks includes declarations that the defendants owed contractual duties, owed fiduciary duties, owed duties of care and owed duties not to conduct themselves in conflict of interest. Under the paragraph requesting general damages, she includes various subparagraphs setting out the alleged basis for the damages such as “failure to comply with the City Order”, “breach of fiduciary duties”, “breach of contract”, “breach of charter rights”, and “intentional interference with contractual relations”.

[17] Paragraphs 4 – 14 which take up the balance of the statement of claim are supposed to be “each allegation of material fact relied on to substantiate the claim” and should consist of “the material facts on which the party relies … but not the evidence by which those facts are to be proved”. The plaintiff has properly identified the parties and set out certain facts and allegations relating to reporting mould to the corporate defendant, the subsequent work order, the eviction proceedings and the ultimate demolition and mould abatement.

[18] A major problem with the pleading is that it is liberally populated with conclusions and opinions and is not limited to material facts. Nor are specific facts pleaded to justify the conclusions. For example she alleges a conspiracy, perjury, abuse of process and using the courts for an improper purpose. Much of the claim is taken up with the eviction process and with the significance and seriousness of mould abatement and demolition procedures.

[19] In fairness to the plaintiff, read generously, it is possible to discern the core allegations that the corporation failed to keep the premises in good repair, that it failed to respond to her complaints, that the corporation had a duty to relocate her when her premises became uninhabitable and that evicting her without providing such an alternative accommodation was unreasonable. Unfortunately these allegations are incomplete, somewhat chaotic and mixed in with other allegations that are not clearly related to any particular cause of action.

[20] The pleading contains very few facts alleging any specific wrongdoing by Mr. Thiele and no facts to support any legal duty Mr. Thiele is alleged to have owed to the plaintiff.

[21] Ordinarily a non compliant pleading such as this would simply be struck with leave to amend. In this case however I must also consider the issues of abuse of process and whether the action is frivolous and vexatious.

[22] As each of the defendants had a separate motion and as they are in different circumstances, I will consider each separately.

The claim against Michael Thiele

[23] Michael Thiele was at all material times the lawyer for the defendant CCOC. He presented her with the proposed agreement under which CCOC would provide her with alternative accommodation. He appeared for CCOC before the property standards committee and he acted for CCOC on the eviction hearing. The plaintiff has sued him alleging amongst other things that he breached a fiduciary duty, misrepresented facts to a tribunal, breached rules of professional conduct and was guilty of coercion.

[24] Even read generously there is nothing in the pleading that would establish any duty fiduciary or otherwise owed to the plaintiff by the lawyer for the housing corporation. There is no material fact pled that would demonstrate breach of such a duty if it did exist and there are no pleadings showing causal connection with specific damages.

[25] It is not uncommon for a party to a dispute to demonize the lawyer acting for the other party. As a general rule, however, it is not open to a party to sue the other party’s lawyer for actions taken in the interest of his or her client. There is no general duty owed by a lawyer to the opposing party. Attempts to bring such actions have frequently been held to be abuse of process and dismissed.

[26] Of course lawyers are not immune from liability in all circumstances but there are no facts pleaded in the statement of claim which would support any allegation that Mr. Thiele had assumed a duty of care to the plaintiff nor that he committed any actionable wrong. The statement of claim is not only defective in this regard but it discloses no cause of action. The attempt to sue the defendant’s lawyer is self evidently frivolous and vexatious.

[27] I asked the plaintiff what she felt the lawyer had done that would give rise to a cause of action against him. She makes three specific allegations. Firstly she says he made a misrepresentation to a tribunal. Secondly she states that he is liable for coercion. Thirdly she alleges that he induced breach of contract by advising his client not to relocate her but to evict her instead.

[28] In order to be as fair as possible to the plaintiff, I have considered the evidence she suggests is evidence of wrongdoing. Her complaint that the lawyer misled a tribunal flows from his advice to the Property Standards Appeals Committee to the effect that it was necessary to evict the plaintiff because she would not move voluntarily. Notwithstanding her view that this statement was inaccurate, it was not in fact misleading. The reality is that the corporation offered to relocate her to another unit on condition she sign an agreement she was not prepared to sign. On the other hand she made certain proposals to the corporation that it found unacceptable. In the absence of agreement on terms she did not leave voluntarily and an eviction order was necessary. Indeed she appeared at the eviction hearing in December and resisted the eviction.

[29] In any event the purpose of the hearing before the Property Standards Committee was to extend the time under the work order. This did not prejudice the plaintiff in any way. She attended that hearing. She agrees that more time was necessary to find a new place to live or to reach agreement with the corporation.

[30] With respect to the proposed agreement which she categorizes as coercive, the plaintiff may or may not be correct that the terms offered by the corporation (that she sign a waiver of certain rights) were unfair and unreasonable but the statement made to the Committee – to the effect that more time was required to comply with the work order because it would be necessary to evict the tenant – was not misleading and could not give rise to a claim for damages.

[31] The allegation about “coercion” is simply an allegation that the lawyer for the corporation attempted to pressure her to sign an unfair agreement failing which he advised she would be evicted. Even if this was harsh or unfair, it cannot be viewed as a civil wrong on the part of the lawyer. A lawyer who takes a firm and aggressive position on behalf of his or her client does not by doing so become liable to the opposing party. It is the lawyer’s duty to resolutely and firmly advance the interests of his or her client.

[32] Finally the allegation that the lawyer breached the rules of professional conduct is an allegation that the lawyer should not have acted on the instructions of the property manager. Rather he should have been conscious that his client was the corporation and the corporation has a mandate to provide social housing. The allegation is that by accepting these instructions and acting as he did he was acting against the mandate and interests of his real client, the corporation. Firstly, there is no evidence that the corporation has disavowed the actions of its officer or its lawyer. Secondly, the “indoor management” rule would apply. Finally, even if this allegation has substance, it cannot be converted into a duty to the plaintiff by the corporation’s lawyer that would give her a right of action against him.

[33] Blaming the lawyer for the harsh actions of his client is not uncommon. The advice given to the corporation and the instructions given to counsel are covered by privilege. Steps taken by counsel in a judicial proceeding are also privileged subject to proof of malice or bad faith and steps such as counsel took here are simply not actionable at the instance of the plaintiff. In short the evidence before me does not demonstrate any circumstance that could properly form the basis of a claim against Mr. Thiele. The plaintiff should not be permitted to amend the claim.

[34] It follows that in these circumstances, since the claim against him is struck out without leave to amend, the action against Thiele should be dismissed.

The claim against the corporation

[35] The situation is different with respect to the corporation. The pleading is not properly drafted and so it too must be struck out. Ordinarily however I would permit an amended pleading to claim damages for wrongdoing by the corporation. At the very least the plaintiff should be entitled to claim an abatement of rent for the period of time that she lived with water infiltration and mould.

[36] As noted above, the defendant landlord is well aware that buried in the pleading and contained in her submissions on the motion, the plaintiff claims damages against the corporation for failing to keep the premises in good repair, for failing to take reasonable steps to provide her with alternative accommodation when such accommodation was available, for acting in a high handed and unreasonable fashion and for evicting her without providing alternative accommodation when it knew she would be rendered homeless. Crafted properly these could be the basis for causes of action.

[37] The corporate defendant resists an order granting leave to amend for two reasons. With respect to the duty to accommodate, abuse of the eviction process and liability to relocate the plaintiff, the corporation argues these issues were before the Landlord and Tenant Board and are barred by issue estoppel or abuse of process. With respect to a claim for abatement, the corporation takes the position the claim is statute barred.

[38] The reasons of the Landlord and Tenant Board are before me. The parties were CCOC and the plaintiff. The plaintiff was present and represented herself. The corporation of course was represented by Mr. Thiele. At the proceeding before the Board the plaintiff alleged that the landlord was in serious breach of its obligations as landlord and requested that the eviction order be refused.

[39] It is important to understand that under the Residential Tenancies Act, 2006 issues relating to eviction of a tenant from residential premises are in the exclusive jurisdiction of the Board. The Board is also seized of issues relating to tenant compensation arising from eviction which rights are set out in the Act. I note there are modified duties and rights for non profit or social housing which may or may not apply. In any event a tenant who is evicted may seek compensation and may exercise other rights.

[40] A landlord may obtain an eviction order when vacant possession is necessary to repair a unit but the Board may refuse eviction if amongst other things, the landlord is found to be in “serious breach of the landlord’s obligations”. The Board found that the landlord was not in serious breach and granted the eviction order because “it would defy common sense to delay the eviction and to allow the Tenants to continue to expose themselves to the health risks associated with mould in this context”.

[41] The Board considered the fact that the “landlord sent the tenants a proposed agreement” and describes the terms of the proposed agreement as follows:

[42] This is important for two reasons. Firstly, the nature of the proposed agreement was before the Board. Secondly the plaintiff was well aware of a potential claim for abatement of rent. The Board found that the landlord had to terminate the tenancy to carry out the work and to comply with the municipal order in the only way it was possible for it to do. It did not find that the proposed terms of relocation were unreasonable and it specifically found that the landlord was not attempting to sidestep its responsibility to repair and maintain the unit. In fact the Board found on the authority of Puterbough v. Canada that simply because rental premises are in need of major repairs it does not follow that a landlord is in breach of the landlord’s obligation under s. 20 of the Act. The Board found that evicting the tenant in order to effect the repairs ordered by the City was an attempt to comply with the landlord’s duty under s. 20 to maintain a rental unit in good repair and fit for habitation. The eviction order was granted.

[43] The defendant argues that the issue of the bona fides of the eviction process was before the Board and has been decided. The plaintiff’s current attempt to claim that the eviction was improper, that the proposed agreement was coercive and the landlord was obliged to relocate her to alternative accommodation are all issues which were argued, on which additional evidence could have been introduced and which were decided by the Board.

[44] I agree with Mr. DeToni that seeking damages for the eviction on the basis that it was wrongful and improper is a collateral attack on the findings of the tribunal. I also agree that the nature of the terms proposed by the landlord for relocation of the tenant were in evidence and were considered by the Board. The plaintiff could have advanced a claim for compensation for the termination of the tenancy if she felt she was entitled to it under the Act and she did not do so. It follows that it is not open to the plaintiff to litigate issues in this forum that were either decided by the tribunal or should or could have been raised in that forum.

[45] A claim for abatement of rent during the time that the tenancy was in existence stands on slightly different ground. An order for abatement is provided for in s. 30 of the Act and requires a finding under s. 29 that the landlord has breached its s. 20 obligations, has interfered with quiet enjoyment, withheld a supply of a vital service or other similar findings. The Act confers exclusive jurisdiction on the Board for claims up to the small claims court limit ($25,000.00). s. 207 (2) of the Act provides that if the claim for compensation exceeds $25,000.00 then a claim may be brought in a court of competent jurisdiction and the court may exercise any power the Board could have exercised.

[46] For purposes of the motion I am prepared to assume that the issue of abatement was not before the Board in December of 2013. I would also hold that a claim for abatement is contained in the current claim though it is not clearly and appropriately pleaded. Thus, if the claim was timely when it was issued, I would permit the plaintiff to amend the claim in order to proceed with a claim for abatement in excess of $25,000.00.

[47] Unfortunately for the plaintiff, s. 29 (2) of the Act provides that no claim under that section may be advanced more than “one year after the day the alleged conduct giving rise to the application occurred.” There is binding authority to the effect that all claims which are of the nature described in the Act are captured by this limitation period and not the more general two year limitation period in the Limitations Act, 2002. It follows that the claim would have expired at the very latest in January of 2014 and probably much earlier. This claim was commenced in June of 2014 and was out of time. Under those circumstances it would not be reasonable to permit the plaintiff to amend the statement of claim as it is a claim that is impossible of success.

[48] I considered briefly whether the principle of discoverability might apply. This is a common law principle codified in s. 5 of the Limitations Act, 2002. S. 5 provides that in certain circumstances the limitation period under that act does not begin to run until the prospective plaintiff knew or ought to have known that a loss had occurred, that it was the fault of another, that the defendant was the person at fault and a legal proceeding would be appropriate remedy.

[49] This question was not argued so I decline to rule definitively on whether or not the discoverability principle can apply in the face of a limitation period that runs from “the day on which the alleged conduct giving rise to the application occurred”. Suffice to say that there is nothing in the pleading and nothing in the evidence before me to suggest that the plaintiff only discovered a potential claim for compensation on or after June 2nd, 2013; one year before she commenced the action. To the contrary, the plaintiff was conscious of a potential claim for abatement of rent in at least September of 2012 when she refused to waive that right.

[50] Consequently the claim against the corporation must also be struck without leave to amend. All aspects of the claim were either issues which were before the Board in the eviction proceeding or which should have been brought before the Board or the court more than one year before the action was commenced.

[51] As this leaves the plaintiff with no statement of claim and without leave to amend, the action against the corporate defendant must also be dismissed.

Summary & Conclusion

[52] Pursuant to Rule 25.11 the statement of claim is struck out as it fails to comply with the requirements of a proper pleading under Rule 25 and Form 18A and because under the circumstances the claims against each defendant are frivolous and vexatious and an abuse of process. The claim cannot be cured by amendment because no amendment contemplated by the plaintiff would cure the latter defects. For the reasons given above, neither the claim against the lawyer nor against CCOC are proper claims at this point and the action will be dismissed.

[53] I do not propose to award costs unless they are requested in writing within the next 15 days. In that case I will hear submissions.

___________________________

Master MacLeod