Smith v. Regional District (Central Okanagan),


2012 BCSC 1561

Date: 20121023

Docket: 95159

Registry: Kelowna


David Mervyn Smith



Central Okanagan Regional District,
Don Plamondon, Rhoda Mueller, Alan Dunkin,
Kellie Howe, Michal Pesta, Lynda Luscombe,
Dana Eklund, George Bandol



Corrected Decision:  The text of the judgment was corrected on the
front page on October 24, 2012

Before: Master B.M. Young

Reasons for Decision

Appearing on his own behalf:

D.M. Smith

Counsel for the Defendants:

B.S. Williamson

Place and Date of Hearing:

Kelowna, B.C.

July 9, 2012

Place and Date of Judgment:

Kelowna, B.C.

October 23, 2012


[1]             The defendants in this action apply to court for an order striking the notice of civil claim in its entirety, pursuant to Rules 9-5 of the Supreme Court Civil Rules. They have applied in the alternative under Rule 9-6 for an order granting summary judgment in favour of the defendants, and dismissal of the claim.

[2]             I will consider the application to strike the notice of civil claim under Rule 9-5 first. When considering whether to strike a claim under Rule 9-5 (1) (a) to strike the pleading because it discloses no reasonable claim, I have only relied on the pleading itself and not on the affidavits filed by the defendants. I refer to the affidavits to explain the context of the case. The affidavits were filed in support of the defendants’ assertions that this claim should also be struck because it is an abuse of process, and for the alternative claim for summary judgment.

The Notice of Civil Claim

[3]             The notice of civil claim was filed on May 3, 2012. In it the claimant seeks the following relief:

1          Relief Sought Against:


            A-Termination of employment for all employees who failed to investigate allegations.

            B)-Suspension of Don Plamondon

            C)-Termination of Dana Eklund’s position as court expert

            D)-The sum of $10,000 for legal expenses

            E)-The sum of $250,000 in punitive damages

            F)-Erase Diesel’s record totally.


            2-Don Plamondon - $50,000.00

            3-Rhoda Mueller - $50,000.00

            4-Alan Dunkin - $50,000.00

            5-Kellie Howe $50,000.00

            6- Michal Pesta $50,000.00

            7-Lynda Luscombe $50,000.00

            8-Dana Eklund - $50,000.00

            9-George Bandol - $50,000.00

[4]             The claimant’s stated legal basis for these claims, as set out in the notice of civil claim, is as follows:

1          1-Failure to perform basic job duties.

            2-Abuse of Authority

            3-Malicious prosecution/persecution

            3 [sic]-Failure to Observe Procedural Fairness

            4-Unprofessional Conduct


            6-Labor Code re- Reasons for Termination

            7-Character Assassination

            8-Psychological damage to both Diesel and Dave Smith

            9-Stress and Mental Distress caused by treatment by staff of animal control

            8 [sic]-False Declaration/Statement

            9 [sic]-Rogier v Halifax- Hfx No 302339

            10-Roden v Toronto Humane Society C40519 and C41024


[5]             This action arises out of incidents which led the Central Okanagan Regional District (“CORD”) animal control officer to apply to Provincial Court for an order under s. 49 of the Community Charter to have the claimant’s German shepherd-cross dog, Diesel, destroyed.

[6]             The claimant has many complaints about how the CORD handled the investigation and decision to proceed with this case. The defendants, Don Plamondon, Rhoda Mueller, Alan Dunkin, Kellie Howe and Michal Pesta are employees of CORD. The defendants Lynda Luscombe and George Bandol are citizens who complained that their dogs were attacked by Diesel. The defendant Dana Eklund is an expert witness for the CORD. She conducted an assessment of the claimant’s dog, Diesel, and provided an opinion that Diesel was likely to inflict injuries and potential death to a member of the public or another animal if released to the owner.

[7]             This lawsuit was commenced shortly before the s. 49 Community Charter hearing was to take place in the British Columbia Provincial Court, and the defendants allege that the timing of this lawsuit was to intimidate them as witnesses.

Claim Against Dog Owner for Spreading False Information

[8]             The notice of civil claim does not identify specific parties and link those parties to events that are described in part 1 statement of facts. For example, in paragraph 2 of the statement of facts, the claimant says:

In December 2008, there was an incident alleged against Diesel but the animal control officers did not investigate (documented). I offered to help the dog owner with payment and a ride to the vet, but when the dog owner started to spread lies about the incident I withdrew the offer. The dog owner’s statement itself is not accurate.

There is no connection between this statement and any of the named defendants. There is also no connection between this statement and how the allegation caused the claimant any damage. This statement does not raise any recognizable legal claim.

[9]             Although the claimant does not state this in his notice of civil claim, one assumes he is alleging defamation of character, but he provides no particulars other than to say the dog owner started to spread lies about the incident and went around soliciting people to lodge complaints about Diesel and him and spread false information and character slurs against him. The identity of the alleged defamer is not provided. The particulars of the defamatory statements are not provided.

[10]         The defendant, Ms. Luscombe, submits that it is wholly inadequate to plead that an unnamed dog owner spread unparticularized false information against the claimant and expect that this allegation would give rise to an award of damages.

[11]         Counsel for the defendants cites the case of Cimaco International Sales, Inc. v. British Columbia (Attorney General), 2010 BCCA 342 where a similar claim was struck because it did not outline the material facts required in what was then Rule 19(12) (now Rule 3-7(21)). In that case, the words of an alleged defamatory nature are not pleaded and the material facts of publication such as date were not pleaded. The claim was struck.

Decision on Pleading of the Claim Against Dog Owner for Spreading False Information and Character Slurs

[12]         I find that this pleading against the unnamed dog owner for spreading unspecified false information and character slurs must be struck for the same reason as set out in the Cimaco case.

Claim Against George Bandol for $50,000

[13]         An action is brought by the claimant against the defendant George Bandol for $50,000. There is no prayer for relief against Mr. Bandol except for a claim for $50,000. The reader has no idea what the basis of the claim is. Mr. Bandol swore an affidavit saying that his dog was attacked by Diesel in 2010, and he was pushed to the ground by the claimant. He says he was a victim of an assault, not the perpetrator.

Decision on the Pleading of the Claim Against George Bandol for $50,000

[14]         There is no recognizable claim in law being pleaded against George Bandol and so the claim against him should be struck.

Claim Against Dana Eklund

[15]         Dana Eklund is an expert witness who provided opinion evidence at the s. 49 Community Charter hearing. The claimant did not agree with her opinion, and apparently had his own expert give evidence. The fact that he did not agree with Ms. Eklund’s opinion does not translate into an actionable claim against her for $50,000.

[16]         Counsel for the defendants argues that Ms. Eklund is protected by witness immunity. In Mayer v. Mayer, [1994] B.C.J. No. 2425, at paragraph 13, Mr. Justice Hutchinson of the Supreme Court adopts the legal principle stated in R. v. Skinner (1771), Lofft. 55 in which Lord Mansfield said:

What Mr. Lucas has said is very just; neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office.

Justice Hutchinson says, at paragraph 16:

The general rule of witness immunity was applied in British Columbia by Huddart J. in Carnahan v. Coutes (1990), 47 B.C.L.R. (2d) 127 and the Court of Appeal in M.(N.) (Guardian ad litem of) v. M.(I.A.S.) (1992), 69 B.C.L.R. 99; …

Decision Regarding the Pleading of a Claim Against Dana Eklund

[17]         I find that the action against Ms. Eklund should be struck. Any statements she made or opinions she gave were spoken or written in office. There can be no claim against her for stating her professional opinion.

Actions Against CORD Employees for Failure to Investigate, Malicious Prosecution, Abuse of Authority and Misfeasance in Public Office

[18]         As against the CORD, the claimant seeks relief that this court has no jurisdiction to grant. He seeks to have all employees of the CORD terminated from their employment for failure to investigate allegations. Failure to investigate is not a cause of action. The court does not have jurisdiction to terminate employees’ contracts and the notice of civil claim does not set out any material facts to support the claim.

[19]         There is no legal claim for failure to investigate, but there does exist at law a claim for abuse of misfeasance of office.

[20]         Failure to properly name a cause of action is not fatal to the survival of the claim if there exists some foundation for the claim, as a party may be granted leave to amend their pleadings to properly name the cause of action. I have considered whether this notice of civil claim could survive with amendments to properly name the legal claim.

[21]         Abuse or misfeasance of office is an intentional tort and requires the public official to intentionally exercise the power of his or her office for the propose of causing injury. The public official must have acted knowing that he or she had no proper authority and knowing that his or her conduct would probably injure a party (Heckendorn v. Canada (Revenue Agency), 2009 BCSC 952).

[22]         In the pleadings before me there are no particular parties identified as the party who failed to investigate or who intentionally abused their authority, and there is no allegation of any intentional act of misfeasance.

[23]         Mr. Plamondon is the director of development services for the CORD. The notice of civil claim identifies him in connection with the allegations in paragraph 11 of the statement of facts, which says:

March 2012-I filed job complaints regarding the failure of the animal control officers to investigate and an incident of harassment by one of the staff at the Pound, but Don Plamondon at C.O.R.D. refused to do anything about it. This is documented.

[24]         In Stoneman v. Denman Island Local Trust Committee, 2010 BCSC 636, Mr. Justice Verhoeven discussed misfeasance in public office. At paragraph 55 Justice Verhoeven quoted Mr. Justice Iacobucci from Odhavji Estate v. Woodhouse, 2003 SCC 69:

[22]      … It is important, however, to recall that the two categories merely represent two different ways in which a public officer can commit the tort; in each instance, the plaintiff must prove each of the tort’s constituent elements. …

At paragraph 57 Mr. Justice Verhoeven says:

The tort is an intentional one: mere inadvertence or negligent performance of obligations is not sufficient: Odhavji at para. 26.

[25]         In addition, the claimant must prove that the tortious conduct was the legal cause of the claimant’s loss or injury, and the claimant suffered a compensable loss as a result of the tortious conduct.

[26]         If the tort is an intentional one, mere inadvertence or neglect in the performance of official duties is insufficient.

Decision Regarding the Pleading of a Claim Against Mr. Plamondon, Ms. Mueller and Ms. Howe

[27]         It is clear to me none of these elements are pleaded in this notice of civil claim. Failure to investigate is not an intentional tort. There is no allegation of intentional abuse of authority and so the claims against these three employees of the CORD cannot survive and must be struck.

Malicious Prosecution

[28]         In the claimant’s list of legal basis for his claim, the claimant alleges the tort of malicious prosecution against an unidentified defendant.

[29]         The elements of malicious prosecution are set out in the case of Gamble v. Canada (Attorney General), 2011 BCCA 488 in which Mr. Justice Hinkson, at paragraph 29, quotes the case of Miazga v. Kvello Estate, 2009 SCC 51 at paragraph 3:

a)         That the prosecution was initiated by the defendant or defendants;

b)         That the prosecution was terminated in favour of the plaintiff;

c)         That the prosecution was undertaken without reasonable and probable cause; and

d)         That the prosecution was motivated by malice or a primary purpose other than that of carrying the law into effect.

Decision Regarding the Pleading Alleging a Malicious Prosecution Claim

[30]         By raising this claim in the notice of civil claim one assumes that the claimant accuses the CORD and its employees of maliciously prosecuting Diesel. There is no allegation contained in the pleading that the prosecution was without reasonable and probable cause, and there is no allegation that the prosecution was motivated by malice. This claim is not properly pleaded, and it must fail.

Pleading Alleging a Damage Claim

[31]         Causes of action have to be linked to claims for damage. Nothing in this claim provides a nexus between the action and the damages claimed. In the “Legal Basis” section of his notice of civil claim the claimant says, at paragraph 8: “Psychological damage to both Diesel and Dave Smith”, but he does not say who caused this psychological damage. At paragraph 9 he says: “Stress and Mental Distress caused by treatment by staff of animal control”.

[32]         I have reviewed the case of Fowler v. Canada (Attorney General), 2012 BCSC 367 where Associate Chief Justice Cullen had before him an application under Rule 9-5 to strike the pleadings as they disclosed no reasonable claim. In that case the action was brought by an inmate against Correctional Service of Canada for subjecting him to harassment for the use of inmate grievance procedure. At paragraph 29 of the decision Associate Chief Justice Cullen found that the claimant failed to plead sufficient facts to establish any actionable damages, and he struck the pleadings.

Decision Regarding the Pleading Alleging a Claim for Damages

[33]         This notice of civil claim before me provides no nexus between the defendants’ acts and the allegation of damages suffered. The damage claim is therefore struck.

Applicaton to Strike the Claim as Being an Abuse of Process of the Court

[34]         The defendants all allege in their affidavits that this claim was brought immediately before they were scheduled to testify at the s. 49 Community Charter hearing because the plaintiff was attempting to intimidate them from participating as a witness in the Regional District’s application to have Diesel destroyed. The defendants are speculating because of the timing of the action. I do not find that this was Mr. Smith’s motivation.

Application by the Defendants for Summary Judgment

[35]         I have struck the entire pleading for failure to disclosure a reasonable claim. It is not necessary therefore for me to consider the case on its merits or consider the evidence in the plaintiff or the defendants’ affidavits.


[36]         The defendants are entitled to their costs of this action. It was commenced, they were served, and they had to respond and prepare for this application. The action is not properly brought, and is being dismissed entirely. The defendants have been successful. The CORD has provided counsel for itself and its employees. That same counsel prepared affidavits for the non-employees and, it appears, prepared their responses to the notice of civil claim. I am uncertain whether the non-employees were responsible for paying the fees incurred on their behalf or whether the CORD covered all the legal fees.

[37]         Mr. Williamson asks for special costs for the defendants Lynda Luscombe, George Bandol and Dana Eklund because he claims that they were named as parties for the improper purpose of trying to dissuade them from participating in the forthcoming s. 49 application as witnesses. He submits that this case is analogous to lawsuits brought to intimidate persons from engaging in public debate and it is reprehensible and deserving of the court’s consensuses.

[38]         The timing of the filing of this claim appears to be strategic, but I have not made a finding that Mr. Smith’s intention was to intimidate the defendants from giving evidence at the s. 49 hearing.

[39]         I find that the defendants are certainly entitled to one set of costs for the action, to be assessed by the registrar at Scale B.

“B.M. Young”
Master B.M. Young