ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV110000357800SR
DATE: 2012-06-22
B E T W E E N:
BRUCE EDWARDS
Plaintiff
- and -
MORNEAU SHEPELL LTD.
P. Miehls, for the defendant
Defendant
HEARD: June 20, 2012
Endorsement
Justice Thomas A. Bielby
[ 1 ] The defendant has before the court a motion to strike the statement of claim herein, without the right to amend, on the grounds that the document does not disclose a reasonable cause of action pursuant to Rule 21.01 (1)(b).
[ 2 ] Alternatively, the defendant submits the statement of claim is frivolous, vexatious and/or is otherwise an abuse of process pursuant to Rule 21.01(3)(d).
[ 3 ] The defendant also submits that the claim by the plaintiff is based on an interference in a family relationship, a tort not recognized in Ontario.
[ 4 ] The plaintiff is representing himself in this action and appeared on his own behalf before me. He alleges that the defendant provided an e-mail counsellor for his ex-partner, Sue Tapin, who is alleged to be an alcoholic. It is his position that his civil rights have been compromised by the actions and words of the counsellor, Cathryn Heyman, which caused his partner to end their relationship and put him out of her house where he had resided for a number of years.
[ 5 ] The statement of claim herein was issued on September 13, 2011 and was clearly prepared without the assistance of legal counsel.
[ 6 ] With respect to the issue of whether the claim discloses a cause of action, the appropriate test is, whether it is plain and obvious, that the pleading discloses no reasonable claim (Hunt v. Carey Canada Inc. 1990 90 (SCC), [1990] 2 S.C.R. 959).
[ 7 ] The statement of claim, under the subtitle “claim” at the top of the second page, reads as follows: “The plaintiff claims: (Five Million Dollars) for professional negligence.”
[ 8 ] The plaintiff made it clear that his real target in his lawsuit is the counsellor, Cathryn Heyman, and not the defendant. He submits he was forced to sue the defendant because it would not disclose contact information relating to the counsellor. In this regard, the defendant apparently claimed privilege.
[ 9 ] Since the identity of the counsellor is known, the plaintiff could have easily made her a party defendant. The issue of service of the statement of claim on her could have been addressed through the courts.
[ 10 ] In any event, when considering the issues before me, I will consider these issues having regard to the counsellor and to the named defendant.
[ 11 ] As set out at paragraph 3 of Mustapha v. Culligan of Canada Ltd. 2008 SCC 27 (), [2008] S.C.J. No. 27, an authority provided by the defendant, in a negligence action to be successful a plaintiff must demonstrate that the defendant owed him a duty of care, that the defendant’s behaviour breached the standard of care, that the plaintiff sustained damage, and that the damage was caused by the defendant’s breach.
[ 12 ] The defendant submits neither it nor the counsellor owed a duty of care to Mr. Edwards.
[ 13 ] The defendant relies on the authority Syl Apps Secure Treatment Centre v. B.D. 2007 SCC 38 (), [2007] S.C.J. No. 38. In that case, a child was counselled by one of the defendants. The plaintiffs, who were family members of the child, alleged that the counsellor breached its duty of care by treating the child as she had been abused by her family and such treatment deprived the family of a relationship with the child.
[ 14 ] The court concluded that the counsellor owed no duty of care to the plaintiffs. From paragraph 56 I quote:
Recognizing a duty to parents in this context could result in conflicting duties in the provision of medical treatment to children removed from their parents’ custody...It is very difficult to see how these professionals could all effectively work together if some of them owed a duty other than to the child/patient.
[ 15 ] Further, from paragraph 50 I quote:
They should not have to weigh what is best for the child on the scale with what would make the family happiest, finding themselves choosing between aggressive protection of the child and a lawsuit from the family.
[ 16 ] The court in Syl Apps allowed the appeal and struck out the statement of claim.
[ 17 ] This case is analogous to the matter before me. Both claim that a therapist/counsellor owed a duty of care to the client’s or patient’s family members. If Ms. Heyman owed a duty to the plaintiff, she would clearly be at risk of conflicting duties. It seems reasonable that, when counselling a client for alcohol abuse issues, the client’s family dynamics would be explored.
[ 18 ] Acting in the best interests of the plaintiff’s partner meant acting in a manner adverse to the plaintiff. Hence the conflict.
[ 19 ] Accordingly, the counsellor, Ms. Heyman, and the defendant cannot be said to owe a duty of care to the plaintiff. Without a duty, there can be no claim for professional negligence.
[ 20 ] Aside from the issue of professional negligence, I agree with counsel for the defendant who submitted that, in pith and substance, the plaintiff’s claim is for interfering with a family relationship. Such claims have historically been referred to as the alienation of affections, enticement and the intentional interference with familial relationships.
[ 21 ] In Frame v. Smith 1987 74 (SCC), [1987] S.C.J. No. 49, the Supreme Court of Canada discusses the tort of alienation of affection and at paragraph 7 acknowledged a previous decision of the same court which ruled that no such tort exists in Canada.
[ 22 ] In Dryden v. Dryden 2011 ONSC 7060 (), [2011] O.J. No. 5519, Justice Allen of the Ontario Superior Court of Justice at paragraph 33 discusses alienation of affection/intentional interference with familial relations and determined that no such cause of action exits.
[ 23 ] In the text, The Law of Torts in Canada, by Fridman, 2 nd ed., the author discusses interference with family relationships. At page 726, he states the torts in this area have been abolished and states that:
Abolition of other actions, viz., for harbouring, enticement, loss of consortium as occurred in British Columbia, Manitoba, Ontario, New Brunswick, Newfoundland and Saskatchewan. In none of these provinces can a husband now bring an action for interference, whether deliberate or unintentional, with the matrimonial relationship.
[ 24 ] In his responding material to this motion the plaintiff, towards the bottom of page 13, said:
In sight of the above bungling unprofessional conduct devastating my relationship, I respectfully ask the court to uphold my legal and civil rights.
[ 25 ] In his claim at paragraph 2, the plaintiff states:
Cathryn Heyman’s direction put an end to my seven year relationship which I worked exceedingly hard to maintain.
[ 26 ] At paragraph 6 of the claim, the plaintiff states that he wished to pursue a claim of retribution against the counsellor. Clearly, he targets the counsellor and seeks damages for her interference with the family relationship he had with his partner.
[ 27 ] The law no longer recognizes any such cause of action.
[ 28 ] While the claim does, at one point, use the word “defamation”, in my opinion the plaintiff is not pursuing such a claim. He is seeking damages for professional negligence and pursuing a claim which in reality is alleging an interference with a family relationship.
[ 29 ] Accordingly, even giving the statement of claim a liberal interpretation, it is plain and obvious that the claim as pleaded discloses no reasonable claim.
[ 30 ] The statement of claim is struck out with no leave to amend.
[ 31 ] On the issue of cost, any arguments in this regard can be made to me within 21 days of the release of this endorsement. The submissions are to be no more than 5 pages in length.
Bielby J.
Released: June 22, 2012
COURT FILE NO.: CV110000357800SR
DATE: 2012-06-22
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: BRUCE EDWARDS Plaintiff - and – MORNEAU SHEPELL LTD. Defendant ENDORSEMENT Bielby J.
Released: June 22, 2012