COURT OF QUEEN S BENCH OF MANITOBA

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1 Date: Docket: CI (Winnipeg Centre) Indexed as: Paterson et al. v. Walker et al. Cited as: 2018 MBQB 150 COURT OF QUEEN S BENCH OF MANITOBA B E T W E E N: SHARRON PATERSON AND ) RUSSELL PATERSON, ) plaintiffs, ) - and - ) Counsel: ) EVELYN WALKER, DIRECTOR OF PARKS ) Rodney E. Shannon and AND NATURAL AREAS AND THE ) Catherine E. Howden GOVERNMENT OF Manitoba, ) for the plaintiffs ) defendants, ) (by original action) ) ) William S. Gange and RUSSELL PATERSON, AS ADMINISTRATOR ) Thomas K. Reimer OF THE ESTATE OF SHARRON PATERSON, ) for the moving defendants DECEASED AND RUSSELL PATERSON, ) ) plaintiffs, ) - and - ) Denis G. Guénette and ) Ivan J. Wiebe EVELYN WALKER, EDWARD WALKER, ) for the defendants, MICHAEL WALKER, VICTOR WALKER, ) Director of Parks and DAVID WALKER, DANIEL WALKER, ) Natural Areas and The DIRECTOR OF PARKS AND NATURAL ) Government of Manitoba AREAS AND THE GOVERNMENT OF ) MANITOBA, ) ) defendants. ) ) JUDGMENT DELIVERED: (by Order dated August 12, 2015) ) September 14, 2018 McCAWLEY J.

2 2 [1] The defendants, Evelyn Walker, Edward Walker, Michael Walker, Victor Walker, David Walker and Daniel Walker (the Walkers ), bring a motion to strike the amended statement of claim as against the Walkers, without leave to amend, pursuant to Queen s Bench Rule 25, on the grounds that the amended statement of claim does not disclose a reasonable cause of action as against the Walkers and constitutes an abuse of process. [2] In support of their motion, the Walkers say that the claim against them is ostensibly in negligence, but no duty of care is alleged or owed by them to the plaintiffs. Further, even if the court were inclined to find a duty of care and a breach, the damages claimed are pure economic loss and are not within the allowable exceptions to the prohibition against a claim for economic loss. And, they say the prayer for relief seeking removal of buildings is in the nature of a permanent mandatory injunction, but the necessary supporting material and facts have not been alleged. [3] The plaintiffs, Russell Paterson, as administrator of the Estate of Sharron Paterson, deceased, and Russell Paterson (the Patersons ), say that the Walkers are precluded from bringing the motion because a statement of defence was filed in response to the original statement of claim, there has been a significant delay in the bringing of the motion, and it is not plain and obvious that there is no cause of action based on the neighbour principle and proximity. Further, they argue that the development of the law of liability for economic loss includes a duty

3 3 of care based on proximity and it is up to the trial judge to determine what remedies would be appropriate. Facts [4] Very briefly, this matter concerns a dispute between neighbouring cottage owners. The plaintiffs say that the Walkers erected buildings on their property, which violate the applicable rules and regulations with respect to size and use, as a consequence of which they have diminished the Patersons use and enjoyment of their property including their view of the lake. In addition to suing the Walkers, they have sued the Director of Parks and Natural Areas and the Government of Manitoba for their failure to enforce the applicable regulatory scheme. [5] There is no contest with respect to the relevant law. It was agreed that the material facts contained in the amended statement of claim are assumed to be true, no evidence is admissible on a motion to strike, and unless it is plain and obvious that the amended statement of claim does not disclose a reasonable cause of action, it should not be struck. Decision and Analysis [6] The plaintiffs argue that the Walkers are precluded from bringing the motion because of delay, but more significantly, because a statement of defence was filed on their behalf in response to the original statement of claim. The original statement of claim was filed on August 30, 2013, and the amended statement of claim was filed on December 17, There have been numerous interlocutory

4 4 proceedings throughout the history of this case, which have brought the parties to the present point in the litigation including change of counsel. [7] The cases cited in support of their argument (Davis v. Cote (2000), 157 Man.R. (2d) 1); Centaur Products Inc. v. Finmac Lumber Ltd., 2005 MBQB 98, 193 Man.R. (2d) 282; Abas Auto Inc. v. Superior General Partner Inc., 2014 MBQB 231) are decisions of the Masters which rely on the 1987 decision of McCurdy v. McKenzie (1987), 45 Man.R. (2d) 92 (C.A.). That decision by the Manitoba Court of Appeal is frequently referred to in support of the proposition that it is not open to a judge to dismiss a statement of claim on the ground of failure to disclose a cause of action after a statement of defence has been filed. However, Queen s Bench Rule 25.11(1), which came into force in 1988, provides as follows: 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) (b) (c) (d) may prejudice or delay the fair trial of the action; is scandalous, frivolous or vexatious; is an abuse of the process of the court; or does not disclose a reasonable cause of action or defence. [8] Although it was argued that other provinces with similar legislation specifically provide that a motion to strike can be brought at any stage of the proceedings, and no such authority is provided for in the Manitoba statute, there is also no prohibition in Queen s Bench Rule 25.11(1) against the striking out

5 5 of a pleading because a statement of defence was filed. The rule is silent on this point. [9] Queen s Bench Rule 25.11(1) came into force after the McCurdy decision and therefore overrules it. I am therefore satisfied that, in the absence of any prohibition, a motion to strike out can be brought at any time of the proceedings on the enumerated grounds. It should be left to the discretion of the court to determine whether the motion should be granted depending on the particular circumstances. [10] This approach is consistent with the new approach of proportionality and the screening functions which trial judges and pre-trial judges are expected to perform. In so saying, I rely on the decision of Supreme Court of Canada in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R [11] At paragraph 38 of Cody, the Supreme Court addressed the issue of trial judges using their case management powers to minimize delay, citing, for example, the ability of a trial judge before permitting an application to proceed, to consider whether it has a reasonable prospect of success. Exercising this screening function, a trial judge may, where it appears there is no basis upon which the application could succeed, dismiss the application summarily. [12] The court went on to state that, even where an application is permitted to proceed, a trial judge s screening function continues and trial judges should not hesitate to summarily dismiss applications and requests the moment it becomes

6 6 apparent they are frivolous. Cody was a criminal case which dealt with the granting of a stay of proceedings, but the rationale is equally applicable here. [13] The court also stated (at para. 39): [39] Trial judges should also be active in suggesting ways to improve efficiency and the conduct of legitimate applications and motions, such as proceeding on a documentary record alone. This responsibility is shared with counsel. [14] Paragraph 19 of the amended statement of claim alleges that the Walkers were negligent and breached a duty of care owed to the plaintiffs, but does not specify what duty of care is owed. Subparagraphs (a) to (e) set out what the Walkers failed to do as examples of the breach. These include their failure to inform the Patersons where their boathouse would be built and to ensure it would not interfere with the Patersons view of the lake; their failure to advise the Patersons of the use to be made of the garage; that they built structures which did not comply with the site plan certificate for the property and did not comply with a letter of support from the late Sharron Paterson; that the buildings exceeded the maximum allowable footprint; and that they relied on a site plan permit which they knew or ought to have known was issued in error. The remainder of the amended statement of claim deals with the other defendants. [15] The problem here is that, although a duty of care is alleged, no specific duty of care is identified. [16] In Kalo v. Gray Academy of Jewish Education, 2006 MBQB 260, 211 Man. R. (2d) 9, Master Sharp cited with approval the following passage from G.H.L.

7 7 Fridman, The Law of Torts In Canada, 2nd ed. (Toronto: Carswell, 2002) (at para. 10): Before there can be liability for negligence, before there is any need to consider whether the conduct of the defendant falls short of the standards that are to be applied to his behaviour, it must be established that he was under a duty to the particular plaintiff to take care in respect of the risk involved, and that such a duty was imposed by statute or the common law. Negligence is the neglect of some care which one is in duty bound to exercise towards somebody. It is not merely to avoid incurring the risk of injury. [17] In essence, the argument of the plaintiffs is that, by virtue of owning neighbouring properties there was a sufficiently close relationship between the Patersons and the Walkers to create a new duty of care based on the neighbour principle and their proximity. However, this was not pleaded in the amended statement of claim. Instead, it states that the Walkers were duty bound to consult with, advise, inform and obtain the approval of the Patersons before erecting any structures in addition to being in compliance with the applicable rules and regulations. Put simply, the implied duty is one of being a good and considerate neighbour. [18] It perhaps goes without saying that it is not sufficient to simply state that a duty of care exists without specifically identifying what duty of care is being relied upon and the legal and factual basis for it. That has not occurred here. [19] The court also is being asked to find that a new duty of care is implied and should be allowed to proceed based on the fact that the Patersons use and

8 8 enjoyment of their lake property has been diminished as a result of the conduct of the Walkers and possibly that the value of their property has also suffered. [20] In my view, it is plain and obvious on the face of the document that no specific duty of care is identified or pleaded. As well, no such duty of care currently exists in law and the appropriate defendants are those responsible for ensuring that the Walkers complied with their legal obligations in constructing the buildings and with respect to the use to which they are put. [21] Whereas I have every sympathy for the predicament in which the Patersons find themselves, based on the foregoing, I find that the amended statement of claim does not disclose a reasonable cause of action as against the Walkers. The provisions in the amended statement of claim against them should be struck without the right to amend. [22] In light of the foregoing, it is not necessary to deal with whether damages for economic loss as against the Walkers might succeed, or whether the nature of the other relief sought is essentially a permanent mandatory injunction, without the necessary supporting material facts alleged. Without a duty of care there can be no breach and therefore no damages payable by the Walkers to the plaintiffs. McCawley J.

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