Court of Appeal for Ontario

Date: 2017-03-01 Docket: C62535

Judges: Strathy C.J.O., Laskin and Trotter JJ.A.

Parties

Between

Ontario Psychological Association Plaintiff

and

Charlotte (Carla) Mardonet, Sarah Esaafi, Gabrial Bensusan, 2181420 Ontario Inc., BDO Canada LLP, Vern E. Penner and Dr. John Service Defendants

And Between

Charlotte (Carla) Mardonet Plaintiff by Counterclaim (Appellant)

and

Ontario Psychological Association, Janet Kasperski, Ryan Morley, Ruth Berman, Douglas Saunders, Margaret Weiser, Connie Kushnir and Jane Storrie Defendants to the Counterclaim (Respondents)

Counsel

Paul Stern, for the appellants

Simon Clements, for the respondent

Hearing and Appeal

Heard: February 24, 2017

On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice, dated July 15, 2016.

Appeal Book Endorsement

[1] The plaintiff by counterclaim Carla Mardonet appeals the decision of the motion judge striking out four paragraphs of her counterclaim. Those paragraphs claimed contribution and indemnity against the six named defendants to the counterclaim.

[2] The appellant was an employee of the Association. The six named defendants to the counterclaim were over the period the appellant was employed, officers and or directors of the Association. The motion judge, in essence, concluded that these six individuals owed no duty of care to the appellant. We agree with the motion judge's conclusion and substantially with his reasons.

[3] The appellant's argument in this court that the six individuals failed to supervise her properly is no more than a defence and does not translate into a legal duty to her.

[4] The appellant also argued in this court that the six individuals owed a duty to the Association, that they breached this duty, and that by doing so contributed to the Association's loss. The appellant seeks leave to amend her defence and counterclaim to assert this duty and a corresponding defence based on contributory negligence under the Negligence Act.

[5] We deny leave to amend. What the proposed amendment does not do is set out the scope of the six individuals' duty. And we see no tenable basis on which these individuals' duty to the Association could result in their being liable for the appellant's conversion of the Association's money.

[6] The appeal is therefore dismissed with costs fixed at $10,000 all inclusive.