ONTARIO
SUPERIOR COURT OF JUSTICE
BARRIE COURT FILE NO.: 07-0958
DATE: 20120111
BETWEEN:
CINDY MCNEILL Plaintiff – and – SUN LIFE ASSURANCE COMPANY OF CANADA Defendant
Andrew R. Kerr, for the Plaintiff
Donna M. Kraft, for the Defendant
HEARD: December 20, 2011
HEALEY, J.
[ 1 ] This is a motion to strike portions of the statement of claim as an abuse of process of the court pursuant to rule 25.11 (c) of the Rules of Civil Procedure R.R.O 1990, Reg. 194.
[ 2 ] By order dated September 30, 2009, McIsaac J. made an order that the plaintiff's action, in respect of her wrongful dismissal and long-term disability (“LTD”) claims, could not proceed due to delay.
[ 3 ] The parties were thereafter unable to agree upon the amendments to the claim to bring it into compliance with that order. The order was ultimately settled without an amended claim being attached as a schedule to the order, on the understanding between counsel that the issue of the proper content of the revised statement of claim had not been resolved.
[ 4 ] The plaintiff appealed McIsaac J.'s order but her appeal was dismissed by the Registrar of the Court of Appeal for delay. The plaintiff then moved to set aside the Registrar's dismissal order; her motion was dismissed by that Court on September 1, 2010.
[ 5 ] The plaintiff issued a new statement of claim under the existing court file on February 17, 2011.
[ 6 ] The defendant brings this motion on the basis that the new statement of claim includes facts and allegations primarily relevant to the wrongful dismissal and LTD claims, which were barred by McIsaac J.’s order.
[ 7 ] The position of the plaintiff is that the new statement of claim deletes references bearing exclusively upon the former wrongful dismissal or LTD claims, but retains the facts and allegations that support the plaintiff's claims for general, aggravated and punitive damages. The general damages are sought for various claims made throughout the pleading, including: damages for unpaid commissions and other benefits arising from the termination of the employment relationship, the tort of fraudulent or negligent misrepresentation, a personal injury damage claim arising from the alleged effects of the defendant’s conduct during the employment relationship, what the plaintiff's counsel described as the “tort of retaliation” for the plaintiff's whistleblowing while working for the defendant, as well as a novel tort which he describes as a failure to protect the plaintiff following her whistleblowing. In summary, the plaintiff's claim is an expansive pleading that seeks damages for breach of contract and at least four different categories of tortious behaviour.
[ 8 ] The new statement of claim is identical to the original statement of claim with the exception that five of its initial 31 paragraphs have been deleted.
[ 9 ] The defendant’s counsel does not argue that the constituent elements of the remaining claims are improperly pleaded, but instead argues that the new statement of claim is rife with irrelevant facts and evidence that support the wrongful dismissal and LTD claims.
[ 10 ] As stated by Farley J. in National Trust Co. v. Furbacher , [1994] O. J. No. 2385, 50 A.C.W.S. (3d) 1196 (Gen. Div.), at para. 9 , pleadings have a threefold function. They should:
Define with clarity the questions in controversy between the litigants;
Give fair notice of the precise case which is required to be met and the precise remedies sought; and
Assist the court in its investigation of the truth of the allegations made.
[ 11 ] With this in mind, R. 25.06 (1) provides that a pleading shall contain a precise statement of the material facts upon which a party relies, but not the evidence by which those facts are to be proved.
[ 12 ] Amendments have to comply with the usual rules of pleading and may be rejected if they are scandalous, frivolous, vexatious, an abuse of the courts process, or if they disclose no reasonable cause of action: Anderson Consulting Ltd. v. Canada (Attorney General) , 2001 ONCA 8587 , [2001] O.J. No. 3576, 150 O.A.C. 177 (C. A.), at para. 37 .
[ 13 ] This issue was canvassed by Shaw, J. in Jourdain v. Ontario (2008) 2008 ONSC 35684 , 91 O.R. (3d) 506, 169 A.C.W.S. (3d) 309 (S.C.J.) at para. 38 , where he wrote:
While pleadings must not offend the Rules, it is well established that counsel may frame their pleadings as they deem advisable and this right should not be lightly infringed by the court. The inclusion of unnecessary detail or excessive verbosity in a pleading is not of itself a reason for striking out a pleading. It is incumbent upon the party seeking to strike out pleadings to show that he or she is prejudiced or embarrassed by the pleading or that a fair trial will be delayed by the irregularity. See Toronto (City) v. British American Oil Co. , 1948 ONCA 80 , [1949] O.R. 143 (C.A.).
[ 14 ] As noted by Master McLeod in Toronto (City) v. MFP Financial Services Ltd ., [2005] O.J. No. 3214 , 17 C.P.C. (6 th ) 338 (S.C.J.) , at para. 15 , the distinction between material facts, particulars, and evidence is not a "bright line".
[ 15 ] In the pleading at issue, the difference between material facts and evidence is not so glaring as to strike portions of the claim based on the fact that evidence has been pled.
[ 16 ] However, after reviewing the new statement of claim I am of the view that a small portion of it does plead facts that are not germane to any of the claims still being pursued by the plaintiff. These portions add no clarity to the claims before the court, and in fact confuse the issues because the allegations address matters that are either irrelevant to the claims or relevant only to a wrongful dismissal action. The plaintiff's counsel argued that it may be important to describe the nature of the employment contract in detail because the damages for the whistleblowing claim may be affected by whether the plaintiff is characterized as an independent contractor or an employee. He provided no authority for such a proposition. It must be remembered that R. 25.06 (1) requires a precise statement of facts that are material . In this case the claim is already quite extensive and advances multiple claims that have not been pled with particular clarity. I am satisfied that the test set out in Jourdain v. Ontario has been met by the defendant, in that a fair trial will be delayed by the pursuit of issues and evidence related to allegations that are irrelevant to the causes of action as pled. I am satisfied that leaving the pleading as it is will increase the cost and time having to be devoted to this action by both parties, and that removing even these few portions of the claim will contribute to a more expeditious determination of the proceeding on its merits.
[ 17 ] In particular, the offending portions that I order to be struck are at paragraph 4, the last of four sentences and paragraph 7 in its entirety.
[ 18 ] Beyond that, I agree with the comment in Jourdain v. Ontario that interference with the right of plaintiff’s counsel to draft his client’s pleading as he sees fit should be avoided by the court unless there is a clear prejudice to the opposing party.
[ 19 ] If the parties are unable to agree upon the costs of this motion they may make brief written submissions, the moving party’s due by January 18, the respondent’s by January 25, 2012 and any reply by January 27, 2012.
HEALEY, J.
Released: January 11, 2012