Court of Appeal for Ontario

Date: 2023-04-12 Docket: C69967

Fairburn A.C.J.O., MacPherson and Miller JJ.A.

Between:

Nathalie Xian Yi Yan Plaintiff (Appellant)

and

Emmanuel Castor Cortes Defendant (Respondent)

Counsel:

Nathalie Xian Yi Yan, acting in person Sara Libman and Leonard Libman, for the respondent

Heard and released orally: April 6, 2023

On appeal from the order of Regional Senior Justice Paul R. Sweeny of the Superior Court of Justice, dated September 28, 2021.

Reasons for Decision

[1] This is an appeal from a decision striking the appellant’s claim without leave to amend. The claim rests on allegations of defamation, constructive discrimination, and harassment. The parties were college students in the same class. The appellant claims that, both during and after a presentation that the respondent gave, the respondent behaved inappropriately. Months later, the appellant says that she fell.

[2] The appellant maintains that the motion judge erred in law as it relates to motions to strike. We disagree. The motion judge carefully recounted the law concerning motions to strike and specifically noted the requirement that he read the claim “generously” when determining whether it was plain and obvious that the claim could not succeed. He was also cognizant of the appellant’s self-represented status. He simply concluded that the claim did not give notice of the case to be met, did not clearly identify the causes of action other than listing them, and did not set out material facts to support the causes of action alleged. As the motion judge noted at paras. 18-19:

[18] There are no specific words alleged to have been uttered by the defendant. The allegations are that he was part of a group that did a presentation. He looked at the plaintiff during the presentation and after the presentation, he and others went into the hall and made noise. There is no allegation of any damages that the plaintiff has suffered relating to the alleged conduct of the defendant.

[19] The plaintiff alleges that she fell later in November and suffered some injury. Once again, this is not tied to the defendant.

[3] The motion judge’s refusal to grant leave to amend the pleadings is owed deference. We see no palpable or overriding error of law in this regard. He specifically turned his mind to whether an amendment to the pleadings could address the deficiency in them and concluded that it would not. We defer to that conclusion.

[4] The costs award is also owed deference on appeal. It was reasonable in the circumstances, reflected partial indemnity and was further reduced in light of the fact that the defendant had been noted in default and would have had to bring a motion to set aside the noting in default had the matter proceeded.

[5] The appeal is dismissed.

[6] Costs are awarded in the amount of $6,000, to be paid by the appellant to the respondent, all-inclusive.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”