- DATE: 20020402 DOCKET: C36288
COURT OF APPEAL FOR ONTARIO
RE:
ANNE MARIE POLLARD and HOWARD MICHAEL POLLARD (Appellants) – and – 984326 ONTARIO INC. carrying on business under the business name registration of INTERNATIONAL TECHNICAL SERVICES and WILLIAM ARTHUR GRAVES (Respondents)
BEFORE:
WEILER, CHARRON and SHARPE JJ.A.
COUNSEL:
Margaret A. Hoy for the appellants
Thomas F. Delorey for the respondents
HEARD:
March 25, 2002
ORALLY RELEASED:
March 25, 2002
On appeal from the Order of Mr. Justice Joseph W. Quinn dated April 6, 2001
E N D O R S E M E N T
[1] The appellants appeal from the dismissal of their claim against the individual respondent. The appellants’ action is framed in terms of wrongful dismissal. The appellant Anne Marie Pollard pleads that she was hired by 984326 Ontario Inc., carrying on business as International Technical Services, and that her employment with that entity was wrongly terminated.
[2] In our view, the statement of claim fails to plead material facts giving rise to an independent claim against the respondent Graves in his individual capacity. The theory originally advanced was that Graves committed the tort of inducing breach of contract by luring Anne Marie Pollard away from her previous employer. If true, that would be a tort upon which the previous employer could sue, not this appellant.
[3] We do not accept the submission that paragraph 7 of the statement of claim pleads facts giving rise to a claim of tortious misrepresentation, whether negligent or fraudulent, or to an independent claim in contract against Graves. While paragraph 7 pleads a representation, at best it amounts to an allegation of an inducement to accept the position with the corporate respondent. That is a factor that may bear upon the damages against the corporate respondent but it falls short of constituting a claim against Graves personally. Moreover, it is not alleged that Graves was acting other than bona fides or in the ordinary course of his duties as an officer of the numbered company. We note further that these allegations do not concern the appellant Howard Michael Pollard.
[4] We note that the motion was argued on the basis of a statement of claim that had been amended after the respondents served their notice of motion to strike the claim against Graves.
[5] In our view, in these circumstances, there is no basis to interfere with the motions court judge’s order dismissing the claim against Graves without leave to amend.
“Karen M. Weiler J.A.”
“Louise Charron J.A.”
“Robert J. Sharpe J.A.”