Ali v. Region of Waterloo et al., 2017 ONSC 986

CITATION: Ali v. Region of Waterloo et al., 2017 ONSC 986

DIVISIONAL COURT FILE NO.: DC-16-761 DATE: 2017-02-09

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, STEWART and SPIES JJ.

BETWEEN:

AHMED MOHAMMED ALI

Plaintiff

(Respondent)

– and –

REGION OF WATERLOO (PUBLIC HEATH INFECTIOUS DISEASES, DENTAL AND SEXUAL HEALTH CENTRE), VICTORIA HO, MARTIN STRBAN, ERIC HENTSCHEL, ROBERT CHERNISH, ANIL NAGPAL, GLENNA MURRAY, JOHN DOE 1, JOHN DOE 2, UNIVERSITY OF WATERLOO (OCULAR HEALTH CLINIC), ALISSA BREARLEY, T. DAVID WILLIAMS, SANDIP RANDHAWA, JOHN DOE 3, JOHN DOE 4, HANY S. MILIO, and KIMBERLY TREMBLAY

Defendants

(Appellants)

Gary Mazin and Supriya Sharma, for the Plaintiff (Respondent)

Sarah L. Jones, for the Defendants (Appellants)

HEARD at Hamilton: February 9, 2017

SACHS J.: (Orally)

[1] This is an appeal by the Defendants from the interlocutory decision of Reilly J., dated April 6, 2012, granting the Plaintiff’s motion to add Kimberly Tremblay, a receptionist of the Defendant University of Waterloo (Ocular Health Clinic) as an individual defendant to this action.

[2] The endorsement of the motion judge offers no basis for us to understand why he granted the relief he did. However, we are satisfied that given the case law and the proposed pleading, it is clear that the motion judge’s decision cannot stand.

[3] On a motion to amend a statement of claim, the court should deny any proposed amendment which, if originally pleaded, would have been struck: Marks v. Ottawa (City), 2011 ONCA 248. In order to strike a pleading, the court must be satisfied that it is plain and obvious that the proposed pleading fails to disclose a reasonable cause of action against the proposed defendant: Hunt v. Carey, [1990] SCR 959.

[4] In conducting its analysis on whether to strike a pleading, the court is not concerned with the factual and evidentiary merits of the claim against the proposed new defendant, nor with the credibility of the moving party, but only with whether the pleading itself is tenable at law (Brown v. University of Windsor, 2014 ONSC 4666 at para. 28).

[5] It is only in the rare case that a claim for personal liability is allowed against an individual employee of a corporate defendant. This is because the corporation is not capable of its own actions, but rather acts through the actions of its directors, officers, and employees. In Montreal Trust Company of Canada v. ScotiaMcLeod, 1995 1301 (ON CA), [1995] 129 DLR (4th) 711 at para. 25, the Ontario Court of Appeal defined the test for when an employee of a corporation can be held personally liable as follows:

The decided cases in which employees and officers of companies have been found personally liable for actions ostensibly carried out under a corporate name are fact- specific. In the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers, they are also rare. Those cases in which the corporate veil has been pierced usually involve transactions where the use of the corporate structure was a sham from the outset or was an afterthought to a deal which had gone sour. There is also a considerable body of case-law wherein injured parties to actions for breach of contract have attempted to extend liability to the principals of the company by pleading that the principals were privy to the tort of inducing breach of contract between the company and the plaintiff: see Ontario Store Fixtures Inc. v. Mmmuffins Inc. (1989), 1989 4229 (ON SC), 70 O.R. (2d) 42 (H.C.J.), and the cases referred to therein. Additionally there have been attempts by injured parties to attach liability to the principals of failed businesses through insolvency litigation. In every case, however, the facts giving rise to personal liability were specifically pleaded. Absent allegations which fit within the categories described above, officers or employees of limited companies are protected from personal liability unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the company so as to make the act or conduct complained of their own.

[6] When “a plaintiff purports to sue both a corporation and individuals within that corporation (whether officers, directors or employees) the plaintiff must plead sufficient particulars which disclose a basis for attaching liability to the individuals in their personal capacities” (Tran v. University of Western Ontario, 2015 ONCA 295 at para. 17).

[7] In this case, the proposed pleading makes the following specific allegations against Ms. Tremblay:

(1) At paragraph 19, the pleading states that Ms. Tremblay was a receptionist employed at the Ocular Health Clinic.

(2) Paragraph 30 of the proposed pleadings states as follows:

The Plaintiff claims that the casualty aforementioned was caused as a result of the negligence and/or wilful misrepresentation of Kimberly Tremblay, the particulars of which include:

(a) She did not provide a chart or similar chart to the one entitled “VF IOP Photos G-WK-UP DRY/EYE/PLUGS OTHER TEST” to Mr. Ali’s treating health provider Ms. Christian of the Ocular Health Clinic or anyone at the Ocular Health Clinic;

(b) She did not fill out the chart that she was supposed to fill out tracking the notifications to Mr. Ali to show up for optometry checks;

(c) She did not contact and/or properly attempt to contact Mr. Ali in relation to coming for an appointment at the Ocular Health Clinic;

(d) She did not properly document what were the “Numerous attempts were made to Mr. Ali in order to book the follow-up appointment” in the letter she signed containing the statement in quotes on March 21, 2013; and

(e) She did not provide the expected secretarial and/or administrative assistant services that the Plaintiff, Mr. Ali, expected of tracking and making the important and time sensitive appointments in relation to his eyes.

[8] With respect to the claim of negligence, there is nothing in the claim that alleges that any of the actions pleaded were done outside the scope of Ms. Tremblay’s authority as a receptionist employed at the Ocular Health Clinic. In this sense, her actions are indistinguishable from the acts of the Ocular Health Clinic.

[9] If the Plaintiff’s intention is to assert that Ms. Tremblay was acting outside the scope of her authority because she failed to follow the procedures put in place for follow-up care by the Ocular Health Clinic, this is nothing more than an assertion of general negligence against Ms. Tremblay, i.e. she did not act reasonably, therefore she acted outside the scope of her authority.

[10] In Tran v. University of Western Ontario, 2014 ONSC 617 (SCJ), Morgan J. was critical of a similar pleading and found that it both contradicted the pleading that the employer was vicariously liable for the acts of its employees and undermined the authorities such as Montreal Trust (supra). As put by Morgan J. at paragraph 22 of his decision:

Moreover, as counsel for the Defendants submits, the Plaintiff’s position would entirely undermine the Montreal Trust and Lobo lines of authority. In effect, the Plaintiff would have it that any time an action is brought against a corporate defendant for failing to act reasonably, actions against the individual employees of the corporation could also be sustained. Since, as noted above, a corporation can only act through its employees, the separate identity of any personal defendant would always be readily established if the authority of employees were deemed to be circumscribed by a requirement that they act reasonably.

[11] Even if the negligence standard could be sufficient, the proposed pleading does not allege that Ms. Tremblay owed a duty of care to the Plaintiff that is separate and apart from the duties she owed as an employee of the Ocular Health Clinic.

[12] With respect to the pleaded tort of wilful misrepresentation, the proposed pleading contains no particulars that would make this cause of action a tenable one at law. The only potentially relevant particular pleaded is to the effect that Ms. Tremblay did not properly document what were the “numerous attempts” that she made to book follow-up appointments with the Plaintiff that she referred to in the letter of March the 21st, 2013. This is an allegation of failure to document, not an allegation of misrepresentation. If, as argued before us, the pleading is poorly drafted and is meant to be read as an allegation that Ms. Tremblay wilfully made a misrepresentation that she made numerous attempts to contact the Plaintiff when she had not, the pleadings would not be a tenable one for wilful misrepresentation. In order to succeed on this tort, there must be detrimental reliance on the misrepresentation by the person to whom the misrepresentation was made. The proposed pleading makes no allegation or reference to reliance. Further, it is difficult to understand how the Plaintiff could allege that the damage he is asserting he sustained was caused by the fact that he relied on Ms. Tremblay’s representation that numerous attempts were made to book a follow-up appointment with him when his position is that no such calls were made.

[13] Thus, even if the proposed pleading is read generously and allowing for any drafting deficiencies as the law requires, it is plain and obvious that there is no reasonable cause of action against Ms. Tremblay personally for either negligence or wilful misrepresentation.

[14] For these reasons, the appeal is allowed. The order of the motion judge is set aside and the Plaintiff’s request for an order to add Ms. Tremblay as an individual defendant is denied.

Sachs J.:

[15] “For reasons given orally, the appeal is allowed. The order of the motion judge is set aside and the Plaintiff’s request for an order amending his statement of claim to add Ms. Tremblay as an individual defendant is denied. As agreed by the parties, as the successful parties, the Defendants are entitled to their costs of this appeal and the motion for leave fixed in the amount of $9,000.00 all-inclusive.”

___________________________ Sachs J.

I agree

Stewart J.

I agree

Spies J.

Date of Reasons for Judgment: February 9, 2017

Date of Release: February 17, 2017

CITATION: Ali v. Region of Waterloo et al., 2017 ONSC 986

DIVISIONAL COURT FILE NO.: DC-16-761 DATE: 2017-02-09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, STEWART and SPIES JJ.

BETWEEN:

AHMED MOHAMMED ALI

Plaintiff

(Respondent)

– and –

REGION OF WATERLOO (PUBLIC HEATH INFECTIOUS DISEASES, DENTAL AND SEXUAL HEALTH CENTRE), VICTORIA HO, MARTIN STRBAN, ERIC HENTSCHEL, ROBERT CHERNISH, ANIL NAGPAL, GLENNA MURRAY, JOHN DOE 1, JOHN DOE 2, UNIVERSITY OF WATERLOO (OCULAR HEALTH CLINIC), ALISSA BREARLEY, T. DAVID WILLIAMS, SANDIP RANDHAWA, JOHN DOE 3, JOHN DOE 4, HANY S. MILIO, and KIMBERLY TREMBLAY

Defendants

(Appellants)

ORAL REASONS FOR JUDGMENT

SACHS J.

Date of Reasons for Judgment: February 9, 2017

Date of Release: February 17, 2017