Court File and Parties

COURT FILE NO.: CV-23-00704497-0000 DATE: 2024-06-14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KIRK BROWN, Plaintiff – and – WEIRFOULDS LLP, SANDRA ASTOLFO, GLENN ACKERLEY and ROBERT EISENBERG, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Kirk Brown, on his own behalf Shivani Chopra, for the Defendants

HEARD: June 10, 2024

MOTIONS TO add and subtract from CLAIM

[1] The Plaintiff brings a motion to add a new individual Defendant to the claim. The existing individual Defendants bring a motion under Rules 21.01 and 25.11 of the Rules of Civil Procedure to strike the claim as against themselves.

Background

[2] The Plaintiff was an associate lawyer with the law firm WeirFoulds LLP (“WeirFoulds” or “the Firm”) for roughly two and a half months, from April 4, 2023 to June 13, 2023. He resigned from the Firm on June 13, 2022. In his claim he pleads constructive dismissal, breach of employment contract, discrimination under the Human Rights Code (the “Code”), breach of the Special Responsibility Rule of the Law Society’s Rules of Professional Conduct (the “RPC”), defamation, and unlawful conspiracy.

[3] Prior to commencing the within action, in July 2023, the Plaintiff commenced a human rights application against the Firm. In that application, he alleged discrimination on the basis of family status with reference to his status as a parent. Several months after issuing the present claim, he withdrew the human rights application.

[4] In his Statement of Claim dated August 16, 2023, the Plaintiff advanced claims against his former employer, WeirFoulds, and three lawyers in the Firm – the Defendants, Sandra Astolfo, Glenn Ackerley, and Robert Eisenberg (the “Individual Defendants”). That claim alleged discrimination on the grounds of family status and race. The pleading was a lengthy one, weighing in at 165 pages. In addition to discrimination, it advanced a claim in constructive dismissal and defamation. On September 6, 2023, several weeks after issuing the claim, the Plaintiff served a Jury Notice.

[5] On September 22, 2023, the Plaintiff issued a Fresh as Amended Statement of Claim which reduced the number of pages, for the most part by removing various documents that had formed attachments to the original Claim. The amended Claim added a new cause of action of unlawful conduct conspiracy. In addition, it seeks an Order requiring the Defendants to disclose the identity of other alleged co-conspirators. The amended Claim also advances allegations of breach of Special Responsibility Rule of RPC, pleads an expanded theory of defamation, and requests additional monetary damages.

The Plaintiff’s Pleading

[6] The Individual Defendants seek to strike the amended Claim, or specific paragraphs thereof, under Rule 21.01 of the Rules of Civil Procedure, as containing no viable cause of action or no meaningful chance of success as against them. The Defendants, including WeirFoulds, also move to dismiss under Rule 25.11. That Rule authorizes the Court to strike out pleadings which are scandalous, frivolous or vexatious, or an abuse of the court process.

[7] Both Rule 21.01 and Rule 25.11 provide a basis for Courts to strike out claims asserting untenable pleas, arguments, insufficient material facts to support the allegations made. They also provide grounds to challenge pleadings that are prolix, vague, repetitive, or that contain spurious allegations and/or allegations included in order to impugn the behaviour or character of the opposing party.

[8] It is the view of the Defendants that the amended Claim contains details about the Plaintiff’s life, as well as professional information relating to the Individual Defendants, that are irrelevant to the causes of action. They contend that the pleading is replete with irrelevant facts about himself and others, non-viable causes of action, and inapplicable claims for relief, including declaratory relief. Counsel for the Defendants also point out that the amended Claim contains argument, is filled with the Plaintiff’s subjective thoughts and beliefs, makes reference to hearsay information, and uses language that is highly inflammatory.

[9] By way of illustration, the Fresh As Amended Statement of Claim identifies the Plaintiff, and in the course of doing so describes at length aspects of his parents’ life although his parents are not parties to the litigation and do not figure in the factual events at WeirFoulds that gave rise to the litigation. At paragraph 10 of his pleading, the Plaintiff relates having been “raised by a single mother who suffers from chronic depression and pos-traumatic stress disorder (‘PTSD’). The PTSD was caused by having survived a twenty year physically, emotionally, and mentally abusive relationship with [the Plaintiff’s] father.” While one sympathizes the Plaintiff’s parents’ life challenges contained in that description, it does not help define the wrongdoing alleged against the Firm and the Individual Defendants.

[10] A similar approach is taken in the Fresh As Amended Statement of Claim to the identification of the Firm as a Defendant, which delves into matters about WeirFoulds that are not at issue in the litigation. At paragraph 4 of his pleading, the Plaintiff describes the Firm as having “approximately 115 lawyers, which includes the former Chief Commissioner of the Human Rights Commission, Raj Anand. The firm has been in existence since 1860 and consistently ranks in the top 10 of Canadian Lawyer Magazine’s list of top Ontario regional law firms.” While one can appreciate the pedigree of WeirFoulds and some of its members, Raj Anand never figures in the factual events at issue in the litigation and the description of the Firm does not help define the rights asserted by the Plaintiff.

[11] The Defendants submit that all of this, and more, is inserted for improper purposes, to embarrass the Firm and its members, and to heighten the emotional impact of the pleading rather than to set out the objective facts on which the claim is based. They also submit that none of the several causes of action pleaded by the Plaintiff are legally cogent, and that none of them have a meaningful or “reasonable prospect of success”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45, at para. 17. Accordingly, they submit that the pleading must be struck and, ultimately, re-issued against the Firm alone and in accordance with the Rules.

[12] For the most part, the Individual Defendants’ complaints about the amended Claim are self-evident on the face of the Plaintiff’s pleading. It is necessary, however, to go through each cause of action pleaded in order to determine whether there is a viable claim against the Individual Defendants.

Causes of Action

Employment Claims

[13] The Plaintiff’s employer was WeirFoulds, not the Individual Defendants. That much is obvious from the offer of employment which the Plaintiff himself attached to the original Statement of Claim.

[14] In Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, at paras. 4, 5, the Court of Appeal observed that, “there is no general rule in Canada that an employee acting in the course of her employment cannot be sued personally for breaching a duty of care owed to a customer.” That said, the instances in which courts have departed from the rule that it is the employer, and not the employee, that is liable for wrongdoing where the employee was acting in an employment capacity, are rare.

[15] Justice Penny reviewed these few instances in Segal v. Hyperblock Inc., 2022 ONSC 8303, at para. 13:

The applicable law is not in controversy. A corporation is a distinct legal entity that can only act through its agents, employees, officers and directors. A plaintiff who is wronged by the actions of a corporation has a right to sue that corporation. However, that plaintiff does not automatically have a separate right to sue every employee who dealt with them on the corporation’s behalf. The mere fact of being an employee does not support an independent cause of action: see, for example, Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191, 332 D.L.R. (4th) 118, at para. 73. Nor, on the other hand, does being an employee necessarily immunize an Individual from suit: see, for example, Sataur v Starbucks Coffee Canada Inc., 2017 ONCA 1017, 140 O.R. (3d) 307. In the context of these two fundamental principles, the courts have limited the cases in which Individual employees can be held personally liable for acts done in the course of their employment by a corporation to one of the following two scenarios:

(i) Cases in which the alleged ‘actions of the employees are themselves tortious.’ In such cases, the employee-defendant is alleged to have committed a tort in their personal capacity, even if the conduct is also allegedly done to benefit the employer. In the case of negligence, this would require an allegation of a duty of care owed personally by the employee separate from any duty owed by the employer; and

(ii) Cases in which the actions of the employee exhibit a ‘separate identity or interest from that of the corporation or employer so as to make the act or conduct complained of their own’. In such cases, the alleged conduct is not pleaded to be done on behalf of or for the benefit of the employer, but is instead motivated by some ‘separate identity or interest.’ Courts have stressed that the “separate identity or interest” pleaded by the plaintiff must be real and substantial and that plaintiffs cannot simply ‘window dress the suggestion of a separate identity or interest’ where the ‘pith and substance’ of the allegations are indistinguishable from allegations levelled against their employer: Lobo v. Carleton University, 2012 ONCA 498 at paras. 6 and 7.

[16] Given that WeirFoulds is a suable entity, there is nothing in principle to distinguish Justice Penny’s description of corporate liability from the liability of a partnership such as the Firm when it comes to its employees. For contract and employment law purposes, associate lawyers stand in relation to the Firm as employees do to a corporation, and partners stand in relation to the Firm as directors or officers do to a corporation.

[17] I can see no basis on which the Individual Defendants, who are members of the Firm but are not themselves the Plaintiff’s employer, could be liable for breach of contract. They are not themselves parties to any contract with the Plaintiff, and to the extent that they participated in the hiring and reviews of the Plaintiff they did so strictly in their employment capacity and on behalf of the Firm.

[18] The same analysis applies to the Plaintiff’s claim for termination pay under the Employment Standards Act, 2000 (“ESA”) or for common law damages for wrongful or constructive dismissal. There do not appear to me to be any material facts pleaded that would support an allegation that the acts done by the Individual Defendants in their employment capacity were in themselves tortious.

[19] Neither is there a basis in the pleading for alleging that the acts of the employees exhibit a separate identity or interest from that of he Firm. The contract and employment law claims against Individual Defendants do not have a meaningful chance of success if allowed to stand (or to be added).

Defamation

[20] As for the Plaintiff’s defamation claim, it is premised on the alleged act of constructive dismissal along with a single email that one Individual Defendant, Sandra Astolfo, writing on behalf of the construction law practice group to which the Plaintiff belonged, sent to the Plaintiff himself. The email is dated June 21, 2022 and was copied to one person – the Individual Defendant, Gleen Ackerley, the head of the WeirFoulds construction practice group. It reads in full:

Hi Kirk –

Further to our meeting of June 17, 2022, I am writing to confirm that your last day of employment is June 30th, per your notice of resignation that we received and accepted on June 13th.

As I indicated at our meeting, I spoke with Ellen about what you understood her to have said at our meeting on June 7. Her recollection of the conversation differed significantly.

Over the next two weeks, the Construction practice group and HR/Talent team will continue to work closely with you to complete the offboarding process.

If you have any further questions, please don’t hesitate to reach out to me or the HR/Talent team.

Thank you, Sandra

[21] In the first place, there is no evidence, and no allegation anywhere in the pleading, that this email was published or disseminated outside of the Firm or to any third party, including any uninvolved member of the Firm itself. It was copied to only one person – already one of the Individual Defendants – and was done so not to advise him of Ms. Astolfo’s communication with the Plaintiff, but to include him in it. It is clear to me that Mr. Ackerley was visibly by cc’d on Ms. Astolfo’s email in order to communicate to the Plaintiff that the head of the practice group was a part of the group authoring the email, not a third party.

[22] This method of communication follows a pattern commonly used in email correspondence, and is analogous to an email that might come from a corporate director and be cc’d to other board members. In this way, the communication is kept within the group already acting in an authorship capacity. I have no doubt that the Plaintiff himself understood the impugned email in that way, since it prompted him to name Mr. Ackerley as an Individual Defendant – i.e. to allege that he is an author of the defamation, and not just a reader or audience who received it.

[23] The British Columbia Supreme Court described this precise situation in Popat v. MacLennan, 2014 BCSC 1601, at para. 43:

But the email was not “published” in the sense the law requires for the alleged defamation to be communicated to a third party. Dr. Sanghera’s fellow defendants were not third parties. This was an internal communication between corporate directors, all of whom are parties to this litigation…

[24] It is fundamental to the law of defamation that the impugned message must be such that it would lower the reputation of the subject party in the eyes of a reasonable person: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640, at para. 28. The June 21, 2022 email at issue here cannot be said to have lowered the reputation of the Plaintiff in the eyes of a reasonable person, as it was not read by anyone outside of two of the parties hereto – i.e. by the very parties that sent it to the Plaintiff.

[25] Moreover, I have difficulty seeing anything that could be construed as defamatory in the language used in the email. It is the Plaintiff’s view that the statement that another lawyer’s recollection of a June 7 meeting “differed significantly” from his own is, in effect, an accusation that he was lying about what was said in that meeting. However, the carefully chosen words of the email suggest more that the author was straining not to make an accusatory statement.

[26] As I suggested to the Plaintiff at the hearing, stating that one person had a different recollection of a meeting than another is not necessarily a statement that one of them is lying. It is often the case, especially in the context of a legal dispute, that two parties have different understandings, and therefore different recollections, of the same event or conversation, but that neither side is fabricating something or relating an untruth. Rather, they are each recalling their own version of the truth. One side recalls a half-eaten apple or a nearly performed contract, the other recalls a half-intact apple or a contract barely performed.

[27] One can easily imagine a similar clash of recollections flowing from a law firm’s performance review of an associate lawyer. The associate, fearing the worst, understands or recollects the negative review as a prelude to being fired from their job. The partner, hoping for the best, understands or recollects the negative review as a prelude to the young lawyer’s professional development and improvement. Neither side is lying; in fact, each side has his or her own sincerely held truth. Neither version is a fabrication, and neither can be said to be defamatory of the other.

[28] It is also the Plaintiff’s view that the very act of dismissal – assuming that the events in question amount to constructive dismissal – is itself harmful to his professional reputation and therefore defamatory. He argues that in the future a prospective employer may question his short tenure at the Firm, and will surmise that he was terminated for poor performance. To illustrate the point, he submits that Mr. Ackerley, the practice group leader cc’d on the impugned email, is a pillar of the construction law bar, and when asked about the Plaintiff by a prospective employer will likely not give a positive or supportive reference.

[29] In response, Defendants’ counsel submits, correctly, that the law of defamation is concerned with actual written or spoken words, not hypothetical future words. The record before me does not reveal Mr. Ackerley to have said anything about the Plaintiff to anyone outside the firm; and speculation about what he might one day say is not actionable.

[30] Moreover, the Firm’s position is that the Plaintiff resigned. That explanation for his departure is not defamatory. As the B.C. court has said, “employees regularly quit jobs for a variety of reasons and I fail to see how a simple statement that the plaintiff did so, even if it was untrue, was capable of being defamatory”: Balogun v. Deloitte & Touche, LLP, 2011 BCSC 1314, at para. 52. Although I understand the Plaintiff’s concern that his early departure from the Firm not be misconstrued, the departure alone does not amount to defamation.

Conspiracy

[31] The Individual Defendants also submit, correctly, that the Fresh As Amended Statement of Claim does not plead the essential elements of a cause of action in unlawful conduct conspiracy. For example, it does not allege or identify the agreement between the Defendants to conspire. It is well established that unlawful conspiracy must be pleaded so that those involved in the alleged conspiracy acted in a way that is both unlawful and in concert: Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, at paras. 26, 28. Neither of those are features of the Plaintiff’s claim.

[32] Each Individual Defendant is described as having acted within their employment capacity with no further collusion or collective action. They acted on behalf of the Firm and are all members of the Firm. In effect, the Plaintiff’s claim describes the Firm conspiring with itself, which is not a legally cogent claim.

[33] The Plaintiff’s pleading also fails to state with any precision the supposed purpose or objects of the conspiracy being alleged. In addition, it does not identify any overt acts which were done by each of the alleged conspirators in pursuing or in furthering the conspiracy.

[34] In short, the material facts set out in the Fresh As Amended Statement of Claim are all, in essence, facts relating to the Firm and to those who act on its behalf. The pleading does not support a cause of action in unlawful conspiracy as against any of the Individual Defendants.

Rules of Professional Conduct

[35] In addition, the courts have already held that a cause of action for breach of the RPC does not exist and cannot be brought against the Individual Defendants in a civil action. Breach of statute or regulation or set of rules such as the RPC can be the subject of regulatory action by the Law Society as regulator; but a breach of the Special Responsibility Rule or any other of the RPC does not create a private cause of action in this court: Bernal v. The Centre for Spanish Speaking Peoples, 2016 ONSC 7981, at para. 14.

Human Rights Code

[36] Finally, the allegations of a breach of the Code cannot be maintained against either the Individual Defendants in this action. It will be recalled that in Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 SCR 181, the Supreme Court of Canada rejected the recognition of an independent tort of discrimination and held that a civil cause of action cannot be grounded directly in an allegation of a breach of human rights legislation. This principle was reiterated in Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 SCR 362, at para. 63, where it was held that a breach of the Code is not an actionable tort or an “independently actionable wrong”.

[37] It may be, however, that a breach of the Code is relevant to a claim based on breach of contract or some other private law cause of action. In fact, the Court of Appeal has upheld pleadings that incorporate allegations of discrimination in constructive dismissal actions: see L’Attiboudeaire v. Royal Bank of Canada. Accordingly, a human rights claim may proceed against a defendant in a civil action if, but only if it is closely connected with another reasonable cause of action; otherwise, the human rights claim will be struck with the other causes of action: Jaffer v. York University, [2010] OJ No. 252, at para. 44.

[38] In the present case, none of the causes of action alleged against the Individual Defendants – i.e. wrongful or constructive dismissal, breach of contract, unlawful conduct or conspiracy, defamation, and breach of the RPC – are legally viable. It is plain and obvious that they cannot succeed: Hunt v. Carey Canada Inc., [1990] 2 SCR 959. Once those causes of action are struck, the pleading would be left with a stand alone cause of action for breach of the Code, which is not maintainable against an individual in a civil action.

Motion to Add New Defendant

[39] The Plaintiff’s record in support of his motion to add a new individual Defendant does not contain the proposed new pleading. I do not know, exactly, what the claim will be, although his motion record asserts that, like the existing claim against the Individual Defendants, the newly proposed individual was a member of the Firm who was involved in his dismissal from the Firm. That is not sufficient support for the Order that he seeks.

[40] Moreover, I can only assume that any further amended pleading that includes the new individual as defendant will contain the same causes of action reviewed above. None of those are sustainable against an individual member of the Firm. If the new claim repeats those causes of action, it stands to reason that it will likewise not be sustainable as against a new individual member of the Firm named as a defendant.

Disposition

[41] The Fresh As Amended Statement of Claim is hereby struck.

[42] The Plaintiff’s motion to add a new Defendant to the claim is dismissed.

[43] The Plaintiff has leave to amend the claim as against WeirFoulds, but not as against any of the Individual Defendants. The causes of action that may be pleaded against WeirFoulds are breach of contract, wrongful (constructive) dismissal, and breach of the ESA. To the extent that a claim of discrimination in breach of the Code can be tethered to one of those causes of action, that too may be pleaded as against WeirFoulds alone. Any further amended claim issued by the Plaintiff as against the Firm is to contain statements of material facts and relevant background information in compliance with the Rules with respect to pleadings and as described earlier in these reasons.

Costs

[44] The parties have both provided me with Costs Outlines. The Defendants have incurred costs on a partial indemnity basis in the all-inclusive amount of $10,744.04 for their motion to strike and $7,875.31 for their response to the Plaintiff’s motion to amend. The Plaintiff has incurred partial indemnity costs in the all-inclusive amount of $15,050.00.

[45] Costs are discretionary under section 131 of the Courts of Justice Act. Rule 57.01(1)(0.b) of the Rules of Civil Procedure directs me to exercise my discretion so that the amount sought by the successful party is not beyond the reasonable expectations of the unsuccessful party. Given that the Plaintiff has incurred costs that are within $3,500 of the costs sought by the Defendants, he will not have been taken by surprise by the Defendants’ request.

[46] That said, I am hesitant to impose on a young lawyer in the Plaintiff’s situation a cost burden that will be too difficult for him to bear. I know that the Plaintiff is concerned that the events covered here might reduce his future employment prospects, and I certainly do not want to impinge on him more. I can only say that his concerns, while understandable, are unfortunate; from my vantage point, the Plaintiff is a confident advocate who is adept on his feet. I would hope that his experience as it has played out in this case will not follow him any further into what should be a successful legal career.

[47] Given that the Plaintiff did not pursue the motion to amend his Claim with much vigour, I am prepared to waive the costs attributable to that motion.

[48] Rounding the figures off for convenience, the Plaintiff shall pay costs to the Defendants in respect of both motions in the total amount of $10,000, inclusive of all fees, disbursements, and HST.

Date: June 14, 2024 Morgan J.