Accommodating judge gives disgruntled homeowner one last chance to sue city

by | Apr 13, 2023 | Litigation, Property Disputes, Real Estate Disputes

Judges will do all they can to prevent a lawsuit from falling at the first hurdle, but their patience has limits.

When launching their legal cases, many non-lawyers picture the process ending in vindication following their day in court. In reality, only a tiny minority of matters make it all the way to trial these days. In fact, without the assistance of counsel, it’s much more likely that a plaintiff’s claim will fail to advance beyond the pleading stages – the very first step in any civil action.

Ontario’s Rules of Civil Procedure set out strict requirements for the contents of statements of claim and defence, which describe the nature of their case and the facts they intend to rely on.

Self-represented plaintiffs with no legal training often have trouble ensuring their pleadings comply with the Rules, but as Ontario Superior Court Justice Joseph Di Luca’s decision in Francis v. City of Kawartha Lakes Building Department shows, courts will give them every opportunity to get it right.

In the end, Justice Di Luca struck the plaintiff’s faulty claim, but gave him one last chance to get his house in order. However, it seems unlikely that he will succeed unless he takes the judge’s advice and seeks the help of a lawyer before going any further.

The facts

The plaintiff’s relationship with the municipality appeared to get off to a good start when the City of Kawartha Lakes accepted a building permit application concerning a septic system on his property. However, things began to go off the rails when the city warned the property owner that his permit was in danger of being revoked because he had not started construction within six months.

A month later, the city revoked the permit after the property owner failed to submit a compliance schedule as requested. Shortly after, the plaintiff launched his action — naming the city’s building department and two employees as defendants.

He sought almost $60,000 in damages, complaining about how the building permit was revoked, the applicability of Building Code provisions and his treatment by various department officials.

After back-and-forth communications between the city and the property owner over the adequacy of his pleadings, the municipality moved to strike out his statement of claim because it disclosed no reasonable cause of action and was frivolous and vexatious. 

The results

After a Zoom hearing at which the plaintiff did not appear, the judge noted that pleadings are to be given a “generous reading” on applications to strike, to allow for drafting deficiencies — with stated facts assumed to be true unless they are “patently ridiculous or incapable of proof.”

However, even taking into account the low bar for sustaining a pleading, Justice Di Luca could not find a focused or specific cause of action in the pleadings before him:

“Instead, the claim essentially presents as a lengthy and rambling letter of complaint against the City. It is, in large part, also incomprehensible,” the judge wrote as he struck out the entire statement of claim.

Still, given the plaintiff’s self-represented status, the judge added that he was prepared to give him one final opportunity to deliver a viable amended claim. In his decision, Justice Di Luca wrote that he would be prepared to grant a motion for leave to deliver fresh pleadings, as long as he could come up with a Rules-compliant statement of claim within 30 days.

“If he does not bring such a motion within 30 days, the defendants can bring a motion to dismiss the action without notice and without further attendance before the court,” the decision reads. “While Mr. Francis is entitled to represent himself on this matter, he is strongly encouraged to seek the advice of counsel on how best to proceed.”

The lessons

This decision shows that judges are prepared to grant inexperienced litigants a certain amount of indulgence when articulating their claims in pleadings.

Laypeople representing themselves cannot be expected to match the standards of lawyers who have spent most of their working lives interacting with courts, but there is a point at which a line must be drawn.

In my view, the judge was fair in his ruling — to strike the claim while putting the onus on the plaintiff to bring a motion for leave. The defendant will not have to incur additional costs defending an amended claim the court did not approve. Setting a deadline for the delivery of pleadings that comply with the Rules of Civil Procedure is also good for the court system’s efficiency and keeping litigation costs in check as nobody benefits when an inadequately pleaded claim is allowed to drag on any longer than necessary.

The case is also a good reminder of best practice for anyone drafting pleadings, whether for themselves or on behalf of others: Ideally, a statement of claim will include proper causes of action, backed up by clear and concise statements of facts and allegations.