DATE: 20061005

DOCKET: C44860

COURT OF APPEAL FOR ONTARIO

RE:

JEFF KOPPERSON, CARMELLA THOMPSON, PAYTON KOPPERSON and TAYLOR KOPPERSON by their litigation guardian, JEFF KOPPERSON (Plaintiffs/Appellants) v. BLOUNT CANADA LTD., EUGENE KRAEMER, BRENDA BOWER and ANGELA DAVIS (Defendants/Respondents)

BEFORE:

DOHERTY, SIMMONS and ROULEAU JJ.A.

COUNSEL:

Anthony M. Speciale

for the plaintiffs/appellants

Allyson M. Fischer

for the defendants/respondents, Blount Canada et al.

No one appearing for defendant/respondent, Davis

HEARD: September 27, 2006

RELEASED ORALLY: September 27, 2006

On appeal from the order of Justice L. Snowie of the Superior Court of Justice dated January 9, 2006.

E N D O R S E M E N T

[1] This is an appeal from an order striking various paragraphs from the appellants’ statement of claim. The respondents in this proceeding are three of the defendants; Blount Canada Ltd., Eugene Kraemer and Brenda Bower. Mr. Kraemer and Ms. Bower work for Blount Canada Ltd.

[2] Essentially, the claims sound in a wrongful dismissal allegation. Jeff Kopperson, the main appellant, contends that he went to his employer, Blount Canada, with a delicate personal problem arising out of a sexual relationship he had been involved with involving another Blount employee. Mr. Kopperson contends that Blount contrived to terminate his employment as a result of Mr. Kopperson’s initiation of this complaint and did not deal with him in good faith and in accordance with the company policies. Mr. Kopperson points to Mr. Kraemer and Ms. Bower as the individuals he dealt with in connection with his complaint.

[3] We agree with counsel for the respondents that the pleadings are confusing and convoluted.

[4] We also agree with the motion judge that many of the causes of action referred to in the statement of claim were not properly pleaded. Further, we agree that many of the specific pleadings do not comply with the basic rules governing the content of pleadings.

[5] We are satisfied, however, that the statement of claim adequately, albeit inelegantly, advances a claim for the intentional infliction of mental suffering (see paras. 48-54 of the statement of claim). This claim is adequately pleaded against Blount Canada as well as Mr. Kraemer and Ms. Bower in their personal capacities.

[6] Blount Canada does not suggest that the wrongful dismissal claim should be struck. It did, however, challenge many of the specific allegations in the claim relating to the wrongful dismissal allegation. We agree and conclude that the wrongful dismissal claim is so badly drawn that it must be redrawn in its entirety to comply with the Rules of Civil Procedures and afford the defendants a proper opportunity to respond.

[7] We are satisfied that apart from the wrongful dismissal claim and the intentional infliction of mental distress claim, there are no other causes of action properly pleaded as against Blount Canada Ltd., Mr. Kraemer and Ms. Bower. In so holding, we acknowledge that some of the facts pled by the appellants in relation to the other causes of action (e.g. the breach of confidence) may be germane to the wrongful dismissal claim or the intentional infliction of mental distress claim and, therefore, may properly find their way into a statement of claim dealing with those causes of action.

[8] The statement of claim must be rewritten in its entirety. We would grant leave to the appellants to serve and file an amended statement of claim. As against Blount Canada Ltd., Mr. Kraemer and Ms. Bower, the appellants may advance claims for wrongful dismissal and the intentional infliction of mental distress. They may not advance any of the other causes of action referred to in the present statement of claim. It also goes without saying that the appellants must advance their claims in a manner that complies with the rules governing the content of pleadings.

[9] There is another defendant, Angela Davis, the employee with whom Mr. Kopperson alleges he was having a sexual affair. Ms. Davis did not take part in the motion to strike the pleadings or in this appeal. She has served and filed a statement of defence to the claim as initially drawn.

[10] The motion judge struck some of the causes of action asserted against Ms. Davis and several of the paragraphs containing allegations involving Ms. Davis. She did so because, in her view, those claims were intertwined with the claims against the respondents that she concluded were improper and had to be struck.

[11] As Ms. Davis did not see fit to challenge the pleadings and indeed chose to defend those pleadings, we think the appellants are entitled to advance the same claims against Ms. Davis in their amended claim as they have advanced against her in the present claim. Should the appellants choose to maintain some of the claims against Ms. Davis which we have held cannot be brought against the respondents, those claims must be pleaded in the amended statement of claim in a manner which makes it clear that the claims are discrete claims against Ms. Davis only and are not claims against the other respondents.

[12] The motion judge also struck the derivative Family Law Act claims advanced on behalf of the appellants other than Mr. Kopperson. In our view, the propriety of advancing Family Law Act derivative claims can only be properly assessed in the context of an amended statement of claim that properly alleges wrongful dismissal and intentional infliction of mental distress. We see no value in evaluating the propriety of the Family Law Act claims in a pleading that must undergo substantial amendment if this matter is to proceed. If the Family Law Act claims are advanced in the amended pleadings, the respondents may, if so advised, move to strike those pleadings.

[13] The appellants also seek leave to appeal two costs orders made by the motion judge. The motion judge awarded costs on a substantial indemnity basis, despite the fact that the respondents had not sought substantial indemnity costs and the appellants had no opportunity to make submissions as to the appropriateness of costs on that scale. The order for substantial indemnity costs cannot stand.

[14] We are satisfied that the respondents were entitled to their costs on the motion. Those costs should be on a partial indemnity basis. We would fix costs of the motion and the subsequent proceedings arising out of the motion at $6,000, inclusive of disbursements and GST. In keeping with the Rules, those costs should be payable forthwith.

[15] The appellants shall have leave to file an amended statement of claim that accords with these reasons. That claim shall be filed within thirty (30) days of September 27, 2006. The defendants/respondents, Blount Canada Ltd., Eugene Kraemer and Brenda Bower shall have leave to file a defence in response to the amended statement of claim. That defence shall be filed within thirty (30) days of service of the amended statement of claim on them.

[16] The defendant, Ms. Davis, shall have leave if so advised to file a fresh statement of defence in response to the amended statement of claim. That amended statement of defence shall be served within thirty (30) days of Ms. Davis being served with the amended statement of claim.

[17] As success is mixed on the appeal, there shall be no order as to costs.

“Doherty J.A.”

“Janet Simmons J.A.”

“Paul Rouleau J.A.”