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Westmount (Ville de) c. Klepper |
2013 QCCS 2972 |
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JM1838 |
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CANADA |
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PROVINCE OF QUEBEC |
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DISTRICT OF |
MONTREAL |
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No: |
500-17-065622-113 |
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DATE: |
July 2nd, 2013 |
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______________________________________________________________________ |
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UNDER THE PRESIDENCY OF: |
THE HONOURABLE |
ROBERT MONGEON, J.S.C. |
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______________________________________________________________________ |
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VILLE DE WESTMOUNT |
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Plaintiff |
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v. |
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LAWRENCE KLEPPER |
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Defendant |
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JUDGMENT |
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______________________________________________________________________ |
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[1] Robert Klepper is a resident of the City of Westmount. He also loves animals, not necessarily domestic animals but wild ones, which have adapted to urban environment, such as squirrels, pigeons, skunks and racoons.
[2] Robert Klepper also thinks that these wild creatures are starving and need to be fed.
[3] The problem is that feeding wild animals is forbidden on the territory of the City of Westmount, as it is in many, if not all, municipalities on the island of Montreal.
[4] Westmount Public Safety Officers have taken steps to control Mr. Klepper’s feeding mission. He has been the object of surveillance, received contraventions under the appropriate city by-law, summoned before the Westmount Municipal Court and condemned to pay several fines.
[5] However, Mr. Klepper takes the view that he should rather be ticketed, charged before the municipal court and pay fines, than stopping his feeding activities.
[6] Seeing that its interventions would not bring Mr. Klepper to reason, the City of Westmount sought advice and decided to proceed by way of interlocutory and permanent injunction to stop Mr. Klepper’s activities.
[7] On 28 July 2010, the City of Westmount instituted a first Motion for Provisional Interlocutory and Permanent Injunction[1], to enjoin Mr. Klepper from feeding wild animals or to leave food for such purpose anywhere on the territory of the City. This first Motion alleged that Mr. Klepper’s illicit feeding activities date back to 2006 and that he had been feeding wild animals with such quantities of food that even rats were attracted in large quantities in the area[2], the whole in contravention of By-Law 257 of the City of Westmount.
[8] The said Motion further alleged that Mr. Klepper had been observed to feed animals by Public Safety Agents on the following dates:
a) 11 June 2006
b) 19 August 2006
c) 15 December 2006
d) 16 March 2007
e) 27 March 2007
f) 29 September 2007
g) 30 September 2007
h) 21 October 2007
i) 11 April 2009
j) 2 March 2010
k) 3 March 2010
l) 19 March 2010
m) 21 March 2010
n) 1st April 2010
[9] All such events were documented by Exhibits P-2 to P-10 filed in support of this first Motion. In all, nine “constats d’infractions” and six “Rapports d’évènement” were filed evidencing the fifteen events above-noted.
[10] The day after the issuance of the first Motion, on July 29, 2010, without being represented by an attorney, Mr. Klepper signed a document reading as follows:
Montreal, July 29th
I, the undersigned Lawrence Klepper, solemnly promise to stop feeding wild animals everywhere and in any ways in the Town of Westmount, as of today, and if I start again, I will give my full consent to the injunctions asked by the Town of Westmount, Court file 500-17-059981-103.
[11] On September 2010, this time with the assistance of counsel, Lawrence Klepper executed the following document (Exhibit P-2):
In consideration of a Desistment, without costs, in the present case, I, the undersigned, LAWRENCE KLEPPER, residing at 4700 Ste-Catherine Street West, Apt. 603, in the City of Westmount, Province of Quebec, do hereby solemnly declare:-
1. I undertake not to feed wild animals (birds, squirrels, rats, etc.) in any way and by any means everywhere in the City of Westmount, and more specifically in parks (the “Feeding”).
2. In the event that I breach Condition 1 above, I irrevocably consent to an Order of Injunction to prevent me from Feeding, under pain of all legal penalties.
3. It is understood that the present Undertaking shall be held in strict confidence by the attorneys for the Ville de Westmount and shall only be produced in the Court record in the event of subsequent injunction proceedings alleging that I have breached the present Undertaking.
AND I HAVE SIGNED
(s) Lawrence Klepper
LAWRENCE (LARRY) KLEPPER
SOLEMNLY DECLARED BEFORE ME AT
MONTREAL, THIS 20th DAY OF SEPTEMBER 2010.
(s) Commissioner of oaths
COMMISSIONER OF OATHS IN AND
FOR THE DISTSRICT OF MONTREAL
whereupon the City of Westmount filed a desistment of its first Motion for Injunction (P-3).
[12] However, contrary to his undertaking, Mr. Klepper did not stop feeding wild animals within the territory of the City of Westmount.
[13] On March 8, 2011, Mr. Klepper was issued two new “constats d’infraction” for “dropping seed” in two different places before walking into a grocery store. (“constats” no. 30-315247903 and 30-315247892 filed under Exhibit P-4).
[14] The City of Westmount then alleged these events in a legal letter, advising Mr. Klepper that, inasmuch as he had failed to respect the terms of his “Undertaking” dated
20 September 2010, new injunction proceedings would be issued and served forthwith (see Exhibit P-5).
[15] On 19 May 2011, a second Motion for permanent injunction was issued and served upon Mr. Klepper. It is very simply drafted as follows:
Au soutien de sa requête, la demanderesse expose ce qui suit:
1. Le 28 juillet 2010, la demanderesse intentait un recours en injonction contre le défendeur afin d’obtenir des ordonnances l’enjoignant de cesser de nourrir les animaux sauvages sur le terrain de la Ville de Westmount, tel qu’il appert d’une copie de cette requête produite comme pièce P-1;
2. En contrepartie d’un engagement écrit formel (« Undertaking ») dont copie est produite comme pièce P-2, la demanderesse s’est désistée de son recours, tel qu’il appert d’une copie de ce désistement produite comme pièce P-3;
3. Malgré cet engagement, le défendeur fut surpris à nourrir les animaux sauvages, le 8 mars 2011, tel qu’il appert des constats produits comme pièce P-4 (en liasse);
4. Le 17 mars 2011, les procureurs de la Ville avisèrent le défendeur que l’engagement (« Undertaking ») serait alors mis en exécution et que la Ville requérait alors un jugement contre le défendeur, tel qu’il appert de la pièce P-5;
5. Le fait de nourrir un animal sauvage est interdit et constitue une nuisance en vertu du Règlement no. 257 de la Ville de Westmount dont les extraits sont produits comme pièce P-5;
6. A ces causes, la demanderesse est bien fondée de requérir le respect de l’engagement (« Undertaking ») du 20 septembre 2010 et une ordonnance permanente contre le défendeur;
7. La présente requête est bien fondée en faits et en droit;
PAR CES MOTIFS, PLAISE À LA COUR :
DE PRENDRE acte de l’engagement du défendeur de ne plus nourrir les animaux sauvages, et de consentir aux conclusions recherchées par la Ville;
D’ACCUEILLIR la présente requête;
D’INTERDIRE au défendeur de nourrir directement ou indirectement les animaux sauvages sur tout le territoire de la Ville de Westmount, sous toutes peines que de droit;
D’INTERDIRE au défendeur de laisser de la nourriture dans les parcs et autres endroits de la Ville, dans le but de nourrir animaux sauvages, sous toutes peines que de droit;
AVEC DÉPENS
[16] It should be noted that no provisional or interlocutory injunction is sought. It should also be noted that the City’s recourse is based only on Mr. Klepper’s undertaking and the fact that he has broken the terms and conditions thereof.
[17] Mr. Klepper will answer this Motion through a virulent Plea and Cross-Demand raising the following points:
a) Mr. Klepper alleges to be 70 years old and that he suffers from an obsessive compulsive disorder condition[3] which makes him feed wild animals;
b) Mr. Klepper alleges that his consent to sign the Undertaking of September 20 was vitiated and was not free and enlightened. This would appear to be also true for the first handwritten document signed by Mr. Klepper on July 29, 2010. (See Exhibit D-16);
c) Mr. Klepper alleges that the City of Westmount knew that he was « not able to control his compulsion to feed and take care of animals, and this prior to the signature of the Undertaking »[4];
d) Mr. Klepper further alleges that he did not benefit from the advice of legal counsel when he signed the handwritten document D-16, and that, at the time, he “had absolutely no knowledge of his medical condition”[5];
e) Mr. Klepper further alleges that the City’s recourse has become without object given the fact that
- he has not breached By-Law 257 since March 8, 2011;
- he is regularly followed by a psychiatrist since “fall of 2010” (although he was first diagnosed with an alleged compulsive disorder on June 16, 2011!).
f) In addition, Mr. Klepper alleges that the real goal of the City of Westmount is to “reduce to silence a citizen of the City that has expressed his legitimate and credible contestation of the lack of transparency of the City in public expenditures”[6].
Mr. Klepper further alleges that the City persisted in issuing tickets to him and continued to apply and to mount a constant and abusive surveillance upon him, in full knowledge of the fact that the City knew that Mr. Klepper could not control himself, thus becoming a “target of harassment campaign from the City”.
g) Finally, at paragraphs 59.1 to 63 of his last amended Plea and Cross-Demand, Mr. Klepper suggests that he was defamed by the City of Westmount during some of the City meetings, as evidence by exhibits D-4, D-5 and D-6 for which he seeks damages.
[18] The City of Westmount, seeing that in fact the Defendant had ceased all illegal activities in contravention of By-Law 257, decided to desist from its second Motion for Injunction, in the hope of putting an end to this matter.
[19] The Desistment is dated February 1st, 2013.
[20] Mr. Klepper chose to pursue its Cross-Demand against the City and to proceed to trial thereon.
The evidence at trial
[21] As indicated above, the case proceeded only on Mr. Klepper’s Cross-Demand. The evidence and argument we heard on February 4 and 5, 2013. Several witnesses were adduced by Mr. Klepper and for the most part, these witnesses were not cross-examined by the City of Westmount, which did not call any witnesses, given that no proof of faulty conduct or behaviour was made by Defendant Cross-Plaintiff.
[22] Patrol Sergeant Robert Forbes was called to explain his involvement in the interception of Mr. Klepper on March 8, 2011. His verbal testimony confirms the contents of the “Rapport d’évènement” of even date filed as Exhibit P-4.
[23] Sergeant Forbes confirms however that although two “constats d’infraction” were prepared and delivered to Mr. Klepper. In addition, given the previous multiple violations of Mr. Klepper, it was decided not to proceed only with the issuance of tickets, resulting only in the payment of fines but to consider more definitive measures. In point of fact, Mr. Klepper’s acts, being in violation of his own undertakings, gave cause to the issuance of new injunction proceedings.
[24] Sergeant Forbes was also asked to comment on alleged increased patrols around the residence of the wife of Mr. Klepper, around December 19, 2012. He denied that such increased patrols took place but pointed out to the presence of a construction site in the immediate area which required a closer surveillance. However, he denied any specific patrols having the effect of targeting the activities of the Defendant or of his wife.
[25] Public Safety Director David Sedgewick was the second witness heard. He confirmed that around the month of February 2011, he had been advised that Mr. Klepper was again feeding wild animals contrary to his previous written undertakings. He did order a closer surveillance which led to the use of an unmarked SUV vehicle and the eventual interception of Mr. Klepper on March 8, 2011;
[26] Mr. Sedgewick also confirmed that in 2010, a series of incidents and complaints led to a situation which required a closer surveillance of Mr. Klepper’s activities.
[27] Mr. Denis Proulx of the Public Safety Department testified to a meeting he had with Mr. Klepper and a police officer of the SPVM to try to help him and bring his wildlife feeding habits to an end. It was an informal meeting.
[28] Questioned on an alleged incident on March 30, 2011, Mr. Proulx denied having followed Mr. Klepper. He also confirmed that, after the events of March 8, 2011, no specific instructions were issued with respect to Mr. Klepper.
[29] Mr. Gary Ikeman is a Westmount resident who lives in the same building as Mr. Klepper. Mr. Ikeman was also a City Councillor from 2009 onwards.
[30] Through Mr. Ikeman’s testimony, Mr. Klepper tried to show that he was somewhat persecuted by the City of Westmount. However, Mr. Ikeman’s testimony seems to have the opposite effect of showing the exasperation of Mr. Klepper’s neighbour as well as a vivid description of rats proliferating and pigeon droppings in areas where Mr. Klepper was feeding wild animals. Mr. Ikeman’s testimony ended in a passionate statement on Mr. Kleppper’s activities as being against City By-Laws and causing hazards.
[31] Mrs. Cynthia Lutham, another City Councillor from 1996 onwards, was Mr. Klepper’s next witness. She testified with respect to an incident which took place in June 2012 and unrelated to the feeding habits of Mr. Klepper, although she did notice Mr. Klepper throwing peanuts at squirrels in or about December 2012. Her testimony brings no support to Mr. Klepper’s case.
[32] Mr. Lawrence Klepper then took the stand to explain that although he admits feeding wild animals and recognized having been found guilty of all the facts in the numerous “constats d’infractions” which he received during the period 2006 to 2010, he could no longer live in peace, because of his fear of being brought back in Court, found to be in contempt and perhaps jailed as a result.
[33] Mr. Klepper considers that he is the subject of undue surveillance by the City of Westmount, that he is followed and that the City is after him in retaliation of his numerous interventions in the Westmount newspapers where he sometimes severely criticizes the local administration and municipal politics. He considers that he is being harassed for his love of animals.
[34] He complains having been unduly followed on March 30, 2011 and again on March 31.
[35] Mr. Klepper also claims that on December 19, 2012, he noticed that, after a meeting at his lawyer’s office, some peanuts had been “planted” near his home, suggesting that City Public Safety officers had tried to “frame” him. He claims that while he was with his lawyer, a telephone call was placed to the lawyer representing the City and suggesting that Me Poupart may have been involved in some way with this “planting of evidence”! This of course is flatly denied by Me Poupart.
[36] Mr. Klepper essentially wishes that his undertaking of September 20, 2010 be removed and annulled, so that he may stop living in fear. He acknowledges having a compulsive habit towards feeding wild animals and he is very much afraid that his actions will bring him in jail if the undertaking is allowed to remain in place.
[37] However, in cross-examination, Mr. Klepper explains his behaviour - which he does not deny - by his love of animals. He also admits having consulted a psychiatrist about his attitude towards animals.
[38] Mr. Klepper firmly believes that, in the winter time, wild animals are starving and need to be fed.
[39] Questioned about the tickets he received over the years, Mr. Klepper admitted the facts alleged against him, was condemned to pay the fines and paid therm.
[40] However, the last two contraventions he received in March 2011 were met with a plea of not guilty. He was found guilty before the Municipal Court and he appealed from the judgments pronouncing the condemnations before the Superior Court and his appeal was dismissed.
[41] Mr. Klepper states that he has not fed wild animals in Westmount since March 6, 2011. However, he admits feeding them elsewhere!
[42] In other words, Mr. Klepper acknowledges the fact that he has a compulsive habit of feeding animals which, he believes, would otherwise starve. He volunteers information suggesting that he was medically treated for this behaviour and admits that he still feeds wild animals… but outside the territorial limits of the City of Westmount!... Therefore, he continues to be a risk to the peaceful enjoyment of Westmount’s public parks and areas, by the other residents of the municipality.
[43] Sergeant-Detective Stéphane Brisson of the SPVM was then called to the witness stand to confirm the presence of rats in a public park near a child care centre. He states that Mr. Klepper’s case was analyzed to determine the possibility of filing charges under the Criminal Code but this analysis was soon dismissed.
[44] He states that Mr. Klepper called him on many instances to complain about the alleged harassment and persecution directed against him by the City of Westmount Public Safety Department.
[45] In point of fact, Mr. Klepper did file several statements with the SPVM alleging that he was the victim of criminal harassment but none of these complaints were retained by the police.
[46] Sergeant Brisson met with Mr. Klepper on 15 April 2011 on his complaint that Mr. Greg McBain was unduly pursuing surveillance upon the Defendant Cross-Plaintiff. On March 17, 2011, Sergeant Brisson met with Mr. McBain and the latter confirmed that no specific surveillance of Mr. Klepper was being done since the end of 2010.
[47] Mr. Klepper’s complaint was analyzed and it was found not to contain sufficient elements to pursue the matter. Therefore, the file was closed.
[48] Mr. Patrick Barnard testified to the apparent ill-treatment of Mr. Klepper by the City Council and by the Westmount Public Safety Department.
[49] He stated that, in his view, there was some abnormality in the manner in which the City representatives were focussing on Mr. Klepper’s behaviour.
[50] Mr. Barnard also stated that all this was causing stress upon his friend Mr. Klepper, as well as causing important costs in time and money.
[51] Mrs. Thérèse Nesciorek is Mr. Klepper’s wife.
[52] She alleges that she did see a black SUV vehicle following Mr. Klepper’s vehicle on March 31, 2011.
[53] She also alleges that she has noticed many patrol cars around her residence (yellow Public Safety vehicles). She suggests that a white SUV vehicle in which a person was operating a camera and a laptop computer.
[54] Mrs. Nesciorek also testified to the severe impact of all these legal proceedings upon Mr. Klepper and upon himself, causing great stress and anxiety.
[55] This summary of the evidence shows that Mr. Klepper is, by his own admission, convinced that he must feed wild animals, mainly because of his love for them and also because he is somewhat convinced that without his actions, these animals will die of starvation.
[56] The evidence also shows that the City of Westmount Public Safety Department is responsible for the application of By-Law 257 of the City of Westmount entitled By-Law concerning nuisances (Exhibit P-6) which states, in part, the following at Section 16(c):
“The feeding of any pigeon, seagull, squirrel, other wild animal or vermin in the City is hereby declared to be a nuisance and an infraction of this By-Law, and every person who feeds or causes or permits the feeding of any pigeon, seagull, squirrel, other wild animal or vermin shall incur the penalty hereinafter provided.”
[57] The penalties which may be imposed upon a person found to be in violation of Section 16(c) are set out in Section 18 of By-Law 257.
[58] Fines may be imposed, in the case of a natural person violating the By-Law from a minimum fine of $100.00 up to a maximum of $1,000.00 for a first infraction and in the case of a second or subsequent infraction, the fine shall not be less than $200.00 up to a maximum of $2,000.00.
[59] On January 25, 2013, Defendant filed a Re-Re-Amended Cross-demand seeking the following conclusions:
GRANT the present Re-Re-Amended Defence and Cross-Claim;
DISMISS the Introductory motion of Plaintiff;
CONDEMN Plaintiff to pay to
Defendant the sum of $25 000 as […] damages, with legal interest and
additional indemnity prescribed at Article
CONDEMN Plaintiff to pay to Defendant the sum of $75 000 as exemplary damages;
CONDEMN Plaintiff to reimburse to Defendant all the legal fees and expenses he had to incur in the present instance since December 20, 2012;
THE WHOLE, with costs against the Plaintiff.
The questions
[60] The Cross-demand raises the following issues:
a) Was the institution of an action for injunction by the City of Westmount abusive?
b) Is there any evidence supporting the claims of Mr. Klepper against the City of Westmount
i) supporting his demand for annulment of the “Undertaking” signed by Mr. Klepper on September 20, 2011 on the basis of absence of valid consent as well as an invalid renunciation to a defence upon a subsequent injunction sought against him?
ii) for allegedly causing a situation of “entrapment” of Mr. Klepper into legal proceedings?
iii) for defamation of Mr. Klepper in its deliberations and/or minutes of meetings?
c) Is Mr. Klepper entitled to the reimbursement of his extra-judicial fees and disbursements as a result of the attitude of the City of Westmount towards him?
Discussion
The City’s alleged abuse of rights
[61] Seeing that Mr. Klepper’s attitude was not changing and that he wilfully continued to violate By-Law 257, the City had a limited choice of actions. No action would have meant that Mr. Klepper’s activities would continue and most probably increase and injunctive proceedings appeared to be the only logical way to enforce Mr. Klepper’s own undertakings.
[62] Mr. Klepper claims that he is not responsible for his acts because of an obsessive compulsion to feed wild animals which he cannot control. However, Mr. Klepper has been controlling himself since March 2011. It is for this very reason that the City of Westmount elected to desist itself from its action for a permanent injunction prior to trial.
[63] The Court finds that the City was perfectly justified in issuing new legal proceedings in May 2011 seeking to enforce Mr. Klepper’s undertaking of September 2010.
[64] As for Mr. Klepper’s argument that such undertaking was null and void as being “not free and enlightened”, it has no merit whatsoever. When he signed the Undertaking of September 20, 2010, he was assisted and counselled by a very senior and highly respected member of the Bar. Frankly, the undertaking is the only logical way to avoid a trial on the first injunctive proceedings instituted in 2010.
The alleged defamation of Defendant by Plaintiff
[65] There is simply no evidence supporting this claim. None of the allegations of Mr. Klepper show any defamatory content by and/or from the City of Westmount.
The claim for extra-judicial fees and disbursements
[66] Me. Klepper must show an abuse of the City’s right to use the judicial process in order to have a right of action on this point.
[67]
See Royal LePage Commercial Inc. c. 109650 Canada Inc.,
[68] In Royal LePage, the Court of appeal wrote (per Dalphond, J.):
Tout en reconnaissant que la
mauvaise foi et la témérité peuvent constituer un abus de droit et qu’une
partie en justice qui réalise son erreur et s’acharne malgré tout à poursuivre
inutilement le débat judiciaire peut être tenue responsable du coût des
honoraires extrajudiciaires de la partie adverse, selon les enseignements de
l’arrêt Viel c. Entreprises
immobilières du Terroir ltée, 2002 CanLII
41120 (QC CA),
[69] In Viel : Rochon J. wrote :
74. Avant d'examiner plus avant cette question, il importe de distinguer et de définir l'abus de droit sur le fond du litige (l'abus sur le fond) de l'abus du droit d'ester en justice. L'abus sur le fond intervient avant que ne débutent les procédures judiciaires. L'abus sur le fond se produit au moment de la faute contractuelle ou extracontractuelle. Il a pour effet de qualifier cette faute. La partie abuse de son droit par une conduite répréhensible, outrageante, abusive, de mauvaise foi. Au moment où l'abus sur le fond se cristallise, il n'y a aucune procédure judiciaire d'entreprise. C'est précisément cet abus sur le fond qui incitera la partie adverse à s'adresser aux tribunaux pour obtenir la sanction d'un droit ou une juste réparation.
75. À l'opposé, l'abus du droit d'ester en justice est une faute commise à l'occasion d'un recours judiciaire. C'est le cas où la contestation judiciaire est, au départ, de mauvaise foi, soit en demande ou en défense. Ce sera encore le cas lorsqu'une partie de mauvaise foi, multiplie les procédures, poursuit inutilement et abusivement un débat judiciaire. Ce ne sont que des exemples. À l'aide d'hypothèses, Baudouin et Deslauriers cernent la nature de l'abus du droit d'ester en justice :
Fondement - La première hypothèse est celle où l'agent, de mauvaise foi, et conscient du fait qu'il n'a aucun droit à faire valoir, se sert de la justice comme s'il possédait véritablement un tel droit. Il n'agit pas alors dans le cadre de l'exercice ou de la défense de son droit, mais totalement en dehors de celui-ci. Une faute peut également être reprochée à l'agent qui, dans l'exercice d'un droit apparent, utilise les mécanismes judiciaires ou procéduraux sans cause raisonnable ou probable, sans motif valable, même de bonne foi. Tel est le cas de celui qui fait arrêter une personne sur de simples soupçons qu'une enquête rapide aurait suffi à dissiper. La mauvaise foi (c'est-à-dire l'intention de nuire) ou la témérité (c'est-à-dire l'absence de cause raisonnable et probable) restent donc les bases de l'abus de droit dans ce domaine. Contrairement à l'observation faite à propos du droit de propriété, il paraît difficile, sinon impossible, de concevoir un abus du droit au recours judiciaire dont le fondement ne serait pas une faute civile, mais le seul exercice antisocial du droit. Il ne saurait, en effet, y avoir abus lorsque, de bonne foi, et en ayant cause raisonnable et probable, un individu cause préjudice à autrui en recourant à la justice pour faire valoir ses droits. Ainsi, selon nous, celui qui utilise les recours que la loi met à sa disposition, dans un but strictement et exclusivement égoïste, mais de bonne foi et non témérairement, ne peut être tenu responsable des conséquences fâcheuses de son acte pour son adversaire.
[70] Nothing of the sort can be found here.
[71] A municipality has the obligation to enforce its valid by-laws. In doing so, it must act in good faith and within the limits of reason. Its employees must therefore act in good faith in the exercise of their powers and attributions. If the enforcement of by-laws means the exercise of adequate surveillance of those who repeatedly violate such by-laws, then let there be adequate and reasonable surveillance. Here, the Record shows no abusive surveillance and, to the contrary, adequate and reasonable action by the City’s Public Safety officers.
[72] In the presence of numerous infractions to its By-Law no. 257, the City of Westmount had to act in such a manner so as to cause the Defendant to stop his repetitive actions.
[73] Therefore, the Court sees nothing improper, abusive or constituting bad faith in the acts of the members of the Public Safety Department towards Mr. Klepper.
[74] Mr. Klepper readily admits continuing to feed wild animals outside the territorial limits of the City of Westmount. It is quite obvious, therefore, that there is valid reason to maintain a certain degree of surveillance over an individual who may at any time resume his illicit activities within the limits of the City of Westmount.
[75]
The employees of the City of Westmount have
never demonstrated an abusive use of their powers towards Mr. Klepper. Even
more, the said employees have acted within the notion of reasonable exercise of
a right as outlined in Houle c. Banque Canadienne Nationale,
[76] In addition, Mr. Klepper was neither defamed or unduly attacked by the Westmount City Council and/or any of its councillors. The mere fact that Mr. Klepper’s name or activities are mentioned at any municipal meeting does not constitute libel or defamation, more particularly if such activities require action in the public interest, i.e. putting an end to illicit activities, which Mr. Klepper readily admits having repeatedly committed.
[77] Mr. Klepper alleges that the City’s actions towards him are motivated by his own criticism of the municipal Council. While it is true that Mr. Klepper is an ardent opponent to some of the City’s actions, nothing in the evidence may link any of the City’s actions to some direct and/or indirect reaction to any of Mr. Klepper’s critiques.
[78] On the issue of Mr. Klepper’s alleged obsessive compulsion to feed animals, the evidence is insufficient to allow it to be considered. A hand-written note scribbled by a doctor who was not called to testify and who did not provide the Court with a detailed opinion of Mr. Klepper’s condition does not allow the Court to draw any conclusion with respect to the alleged medical conclusion in question on the one hand and any alleged fault of the City. Furthermore, the facts do not support the Defendant’s allegation that he cannot control himself, when he readily admits that he has not breached By-Law 257 since March 8, 2011, a period of more than two years. This shows that despite his compulsion, Mr. Klepper can control himself!
[79] As a result, the Court must answer all questions raised herein in the negative.
[80] The City of Westmount did not act abusively in seeking an order of permanent injunction. In so doing, the City was only attempting to enforce Mr. Klepper’s own undertaking. At no time, did the City attempt to stop Mr. Klepper to present his case before the Court. No incidental proceedings or other interlocutory measures were pursued by the City of Westmount which could be interpreted as constituting an abusive conduct.
[81] In point of fact, the City of Westmount took the simplest and more efficient action it could take, after realizing that proceedings before the Municipal Court based on Section 16(c) of the By-Law were to no avail.
[82] As for the annulment of his Undertaking of September 20, 2010, this is simply not possible inasmuch as this document was filed into the Court Record and on the strength of which the City of Westmount decided to put an end to its original injunction proceedings. The removal of this Undertaking is therefore no longer possible. In any event, there is not a shred of evidence suggesting that this document was executed under any kind of duress or coercion by the City of Westmount.
[83] The desistment of the City of Westmount against Mr. Klepper a few weeks before the hearing on the merits is neither abusive or faulty in any manner. The City of Westmount positively considered the fact that Mr. Klepper had found ways to control his habit to feed wild animals since March 2010 and decided not to proceed to trial, in the hope that Mr. Klepper would also abandon his cross-demand. The Defendant decided to pursue his claim for damages against the Plaintiff and now this cross-demand is being dismissed as being totally ill founded both in fact and in law. Mr. Klepper’s cross-demand is totally without merit, although the original action of the City of Westmount did not show any sign of abusive recourse to the Courts, given the Undertaking of March 8, 2011.
[84] No evidence of “entrapment” or of defamation was brought. No abusive conduct of the City of Westmount in the institution or conduct of its original statement of claim can be found and, consequently, the reimbursement of Mr. Klepper’s extra-judicial fees cannot be considered.
[85] Accordingly, the cross-demand will be dismissed. Given the situation, the Court considers, however, that it cannot relieve the Defendant from his obligation to pay costs on such dismissal.
[86] FOR THESE REASONS, the Court
[87] TAKES ACT of the City of Westmount’s desistment of its proceedings in permanent injunction;
[88] WITH COSTS in favour of the Defendant Lawrence Klepper;
[89] DISMISSES the cross-demand of Defendant Lawrence Klepper;
[90] WITH COSTS in favour of the Plaintiff, the City of Westmount.
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__________________________________ ROBERT MONGEON, J.S.C. |
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Me Armand Poupart Jr. |
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Poupart & Poupart |
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Attorney for the Plaintiff |
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Me Marie-Hélène Desaunettes |
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Nelson Champagne |
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Attorney for the Defendant |
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Date of hearing: |
4th and 5th of February 2013 |
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[1] SCM 500-17-059981-103.
[2] Paragraph 5 of said Motion. Exhibit P-1 in the present instance.
[3] Allegedly diagnosed for the first time on June 16, 2011. See Exhibit D-1.
[4] Paragraph 14 of Defendant’s last amended Plea and Cross-Demand dated January 25, 2013.
[5] Paragraph 23 of the above-noted Plea.
[6] See paragraphs 46 to 52 of the above-noted Plea.
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