Court File and Parties
CITATION: Pirani v. Canadian Imperial Bank of Commerce, 2019 ONSC 6185
DIVISIONAL COURT FILE NO.: 181/19
DATE: 20191023
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
NASEEM PIRANI Appellant/Plaintiff
– and –
CANADIAN IMPERIAL BANK OF COMMERCE Respondent/Defendant
COUNSEL: Alnaz I. Jiwa, for the Appellant/Plaintiff Edward O’Dwyer, for the Respondent/Defendant
HEARD at Toronto: October 23, 2019
Oral Reasons for Judgment
KITELEY J. (Orally)
[1] This is an appeal from the decision of Master Mills dated February 12, 2019 in which she refused the motion by the plaintiff to amend the Statement of Claim.
[2] The plaintiff had been employed by the CIBC as a financial advisor. In that position, she was required to hold an Investment Industry Regulatory Organization of Canada licence.
[3] The plaintiff alleges that her employment was wrongfully terminated on July 25, 2013. She immediately launched legal proceedings in which she claims damages for wrongful termination, damages for mental distress and moral damages based on the effective termination of her career in the banking and investment industry and loss of reputation.
[4] The plaintiff proposed to amend the Statement of Claim in several respects. The defendant did not oppose the amendments with one exception “1(d)(i) damages for defamation in the amount of $100,000.00”.
[5] The motion to amend to include the damages for defamation was heard February 12, 2019. The issue was whether the pleading disclosed a tenable cause of action for defamation.
[6] The endorsement of the Master is:
The Plaintiff brings this motion seeking leave to amend her Statement of Claim. The Defendant consents to all of the amendments but for the addition in para. 1(d)(i) which seeks to add damages for defamation in the amount of $100,000. There are no other amendments to the Statement of Claim which specify or particularize the alleged defamation. In his submissions today counsel confirmed that the reporting of allegations to the Ontario Securities Commission as pleaded in paragraphs 31 to 33 of the Statement of Claim may amount of [sic]defamation if the trial judge determined the allegations cannot be supported. Even if given a very generous reaching, [sic] the facts as presently pleaded in Plaintiff’s 31-33 cannot meet the modern test for a defamation pleading as set out in Lysko v Braley (2006 Carswell Ont 1758, para. 102). The defamation claim asserted by the Plaintiff is not sufficiently clear to enable the Defendant to plead to it. There is insufficient particularity or specificity to enable the Defendant to respond with appropriate defences. In the absence of submissions by counsel today, it would be entirely unclear as to what allegations were alleged to be defamatory. In its present form, the proposed amendment for defamation does not meet the test for a tenable cause of action in defamation. As such the amendment cannot be allowed in the face of the expired limitation period. (Ascent Inc. v Fox40 International Inc., 2009 Carswell, ON 4118). The facts as pleaded do not support the technical requirements for a claim founded in the defamation (130949 Ontario Inc. v BMO, 2011 ONSC 5505, para. 27).
The Plaintiff has failed to meet the test as set out in Farmers Oil and Gas Inc. v Ontario (2016 ONSC 6359) to satisfy me that the proposed amendment to add a claim of defamation arises out of the same facts or factual matrix as originally pleaded in the Statement of Claim. As such, the motion for leave to amend the Statement of Claims in this respect is refused. The balance of the amendments are acceptable to the Defendant and leave is hereby granted, on consent.
Having been wholly successful on the motion, the Defendant is entitled to its costs of today which I fix at $4,000 (inclusive) payable within 90 days. I am advised by counsel that the Plaintiff is currently off work as she recovers from a broken wrist and therefore I am inclined to grant her an indulgence from the usual requirement that costs be payable forthwith.
[7] This is an appeal by the plaintiff from the dismissal of its request to amend. Counsel agree the standard of review is correctness because the decision reflects the legal analysis and conclusion of the Master that the pleading did not disclose a tenable cause of action.
[8] As indicated in the endorsement by the Master, the plaintiff relies on paragraphs 31 to 33 of the Statement of Claim:
Furthermore, the defendant reported its allegations to the Ontario Securities Commission (“OSC”), which has made it very difficult for the plaintiff to obtain similar employment.
The plaintiff had applied for and obtained employment in a similar environment after she was fired by the defendant, but was asked to resign or be fired when the new employer discovered the allegations made by the defendant to the OSC. To avoid being fired, the plaintiff resigned the position and since then has not been able to obtain similar employment.
The plaintiff pleads that she has suffered immensely from the improper termination and the reporting to the OSC, and as such she is entitled to an award of damages for termination pay and severance pay after taking into account her inability to work in similar employment, aggravated, exemplary, and punitive damages, and to be indemnified of all losses suffered by her.
[9] The defendant had filed a Statement of Defence to those three paragraphs and those are found in paragraphs 28 – 30 of the Statement of Defence:
Contrary to paragraph 31 of the Statement of Claim, CIBC did not make any report to the Ontario Securities Commission (“OSC”). CIBC’s Investment arm, CIBC Securities Inc., is the entity registered with the OSC as an investment dealer pursuant to the Securities Act, R.S.O., c.S.5. Accordingly, CIBC Securities Inc., is the entity that reported Pirani’s termination of employment to the OSC.
CIBC Securities Inc. is required by National Instrument 33-109 to, among other things, notify the OSC of the end of a sponsored individual’s employment with the firm by submitting a Form 33-109F1. In that regard, CIBC provided CIBC Securities Inc. with accurate and truthful information about the termination of Pirani’s employment. CIBC did not do anything that is deserving of an award of punitive, aggravated, or exemplary damages, all alleged in paragraphs 33 – 34 of the Statement of Claim.
Contrary to the allegations in the Statement of Claim, CIBC’s specific reporting to the OSC did not cause her to “lose” her IIROC licence. Mutual fund representatives’ licenses are automatically deregistered upon the cessation of their employment, regardless of whether they resign, are terminated without cause, or are terminated with cause. Upon sponsorship by another investment firm, mutual fund representatives have the opportunity to reactive their license.
[10] Before the Master and in this court, it is agreed that the three elements of the tort of defamation are that the plaintiff must allege:
(1) the words that are defamatory;
(2) by whom those words were uttered; and
(3) to whom those words were uttered.
[11] In this case, it was not really an issue as to by whom and to whom because it is apparent from the context that by whom is the defendant [or CIBC Securities Inc. which is not a defendant]* and to whom is the OSC. The focus was on whether the words alleged to be defamatory had been pleaded in such a way that a tenable cause of action was made out.
[12] I am not persuaded that the Master made an error of law in finding that the proposed amended Statement of Claim did not disclose a tenable cause of action in defamation.
[13] Unlike cases where the defamatory words were allegedly uttered and the plaintiff does not know what they were, the plaintiff has had a copy of the report to the OSC referenced in paragraphs 31 – 33 and responded to in the Statement of Defence in paragraphs 28 – 30. The plaintiff could easily have captured all of the words allegedly defamatory. I agree with the Master that the defendant ought not to be left to discern what words the plaintiff relies on.
[14] The fact that the CIBC [or CIBC Securities Inc.]*sent the report to the Securities Commission is part of the factual matrix. But without the plaintiff identifying which words are allegedly defamatory, it is not possible for the defendant or the Court to determine whether the alleged words are part of the factual matrix.
[15] The appeal is dismissed.
[16] I have endorsed the back of the Appeal Book and Compendium as follows: “For oral reasons given, appeal by the plaintiff from the decision of the Master dated February 12, 2019 is dismissed. Plaintiff shall pay costs to the defendant in the amount of $3,500.”
KITELEY J.
Date of Oral Reasons for Judgment: October 23, 2019 Date of Release: October 25, 2019
* Added in these written reasons to take into account paragraph 28 of the Statement of Defence.