Court of Appeal for Ontario

Date: 20231222 Docket: C69793

Before: Tulloch C.J.O., Lauwers and Miller JJ.A.

Between:

Nathalie Xian Yi Yan Plaintiff/Responding Party (Appellant)

and

Cherie Alexa Ann Daniel Defendant/Moving Party (Respondent)

Counsel: Nathalie Xian Yi Yan, acting in person A. Shawn Richard, for the respondent

Heard: September 15, 2023

On appeal from the order of Justice Paul R. Sweeny of the Superior Court of Justice, dated July 5, 2021, with reasons at 2021 ONSC 4142.

Reasons for Decision

[1] The appellant, Nathalie Xian Yi Yan, appeals from an order striking her statement of claim without leave to amend pursuant to r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. For the reasons that follow, the appeal is dismissed.

[2] At the time of the events that form the basis of the appeal, the appellant was a student at Mohawk College in the Paralegal Program. The respondent was her professor.

[3] The appellant alleges that the respondent assigned students into groups to complete a classroom assignment on an administrative law agency but did not initially assign the appellant to a group. The appellant was then assigned to a group conducting research on the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (“CTCMPAO”).

[4] The appellant submits that she had a prior history with the CTCMPAO and, as such, did not wish to be placed in a group assigned to the CTCMPAO. The appellant sent numerous emails to the respondent advising that she did not want to be placed in this group. The respondent referred the matter to the Student Rights and Responsibilities Specialist Office.

[5] The appellant then agreed to complete the assignment alone and was assigned a different administrative agency.

[6] The appellant takes issue with having to complete the coursework alone, while other students were able to complete the assignment in collaboration with a group of their peers.

[7] The appellant further claims that the respondent contributed to delays in her career placement and alleges that she was the target of “email attacks” sent to students in the paralegal program.

[8] On the basis of these and other sets of facts, the appellant commenced 19 actions against various defendants in the Superior Court of Justice, including the respondent in this matter, and pled, among other things, that the respondent committed constructive discrimination and harassment, professional negligence, and defamation. Several of the defendants in these actions asked the court to dismiss the appellant’s various claims under r. 2.1.01(1) of the Rules of Civil Procedure. While the motion judge declined to dismiss the actions under r. 2.1.01, he observed that the defendants were able to attack the pleadings under the Rules of Civil Procedure and appointed himself as the judge to hear all motions arising in the course of the appellant’s claims. He directed defendants who intended to bring motions to schedule a case conference with him to address the method of hearing.

[9] The respondent subsequently brought a r. 21 motion to strike out the pleadings on the ground that they disclosed no reasonable cause of action. The motion was granted, and costs were awarded against the appellant fixed in the amount of $3,000.

[10] The appellant now appeals the motion judge’s decision, including the costs award. She asserts that the motion judge erred by incorrectly concluding that the statement of claim failed to disclose a reasonable cause of action. She also asserts that the motion judge erred in failing to not exercise his discretion to allow her to amend her claim.

[11] We disagree, and we see no reviewable error in the motion judge’s reasons.

[12] On the hearing of the motion, the appellant (through counsel appearing on a limited retainer) conceded that the torts of constructive discrimination and harassment are not recognized torts in Ontario: see Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, and Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494, leave to appeal refused, [2019] S.C.C.A. No. 174.

[13] The motion judge then proceeded to analyze whether the defamation and professional negligence claims disclosed a reasonable cause of action.

[14] In doing so, the motion judge cited and applied the correct legal principles on r. 21 motions, citing this court’s recent decision in The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, 150 O.R. (3d) 449.

[15] The motion judge assumed that the facts as pleaded were true, read the appellant’s claims generously, and determined that the claims had no reasonable prospect of success.

[16] With respect to the defamation claim, the motion judge set out the requisite elements to make out that cause of action, citing Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280. He closely analysed the two paragraphs of the statement of claim that the appellant suggested contained the material facts required to establish a defamation claim, but he ultimately concluded that neither paragraph contained a defamatory statement alleged to have been spoken by the respondent. Accordingly, the defamation claim disclosed no reasonable cause of action.

[17] The motion judge proceeded to analyze the professional negligence claim. Although he was prepared to accept that the professor/student relationship may impose a duty of care in some circumstances, the appellant did not allege a specific breach of the standard of care, nor did she plead that she suffered damages as a result of the respondent’s breach of the standard of care. As such, she failed to plead the material facts necessary to establish a professional negligence claim.

[18] The motion judge then turned his mind to whether the appellant should be granted leave to amend her claim.

[19] He noted that leave to amend should only be denied in “the clearest of cases” where “it is clear that the plaintiff cannot allege further material facts that [they know] to be true to support the allegations": Khursheed v. Venedig Capital SAS, 2019 ONSC 5190, at para. 37, citing Miguna v. Ontario (Attorney General) (2005), 205 O.A.C. 257 (C.A.), at para. 22.

[20] In this case, the motion judge noted that the appellant had already had an opportunity to amend her pleadings. Her amendments only resulted in “further unfocussed allegations and irrelevant facts asserted without any evidence”. Based on the pleadings and his knowledge of the proceedings, the motion judge believed that the appellant did not possess the material facts necessary to establish either cause of action and exercised his discretion to deny leave to amend accordingly.

[21] On appeal, the appellant failed to identify any specific reviewable error in the motion judge’s reasons. Moreover, reading the reasons as a whole, we are satisfied that the motion judge did not err.

[22] Accordingly, the appeal is dismissed with costs to the respondent, fixed at $5,000.

“M. Tulloch C.J.O.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”