COURT FILE AND PARTIES
COURT FILE NO.: CV-11-418799
DATE: 20121018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MASON ROSS, Plaintiff/Responding Party
AND:
GLAXOSMITHKLINE INC., Defendant/Moving Party
BEFORE: J. Macdonald J.
COUNSEL: Daniel A. Lublin , for the Plaintiff/Responding Party
Anne Gallop , for the Defendant/Moving Party
HEARD: October 18, 2012
transcription of handwritten ENDORSEMENT
ENDORSEMENT
[ 1 ] Motion to strike various paragraphs in the amended Statement of Claim pursuant to Rules 21.01 (1)(b) and 25.11. In argument, the applicant narrowed the R. 25.11 grounds to those in R. 25.11 (b).
[ 2 ] Interestingly, the Master made the Order amending the Statement of Claim on the basis of a finding that the present applicant consented to them. The applicant thus moves to strike out amendments made with its consent. While the respondent raises this issue in “Part 3 – Facts” of his Factum, it is not raised in “Part 4 – Issues”. I base my decision on the merits, in these circumstances, and do not need to consider this issue.
[ 3 ] The R. 21 test is clearly established: see R v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45 at paras 17-25. Assuming the facts pleaded to be true, a claim or paragraphs of a Statement of Claim said to be relevant to a claim will only be struck out if it is plain and obvious that the pleading discloses no reasonable cause of action. If a claim has not been recognized in law (an argument made by the applicant herein), the court assumes the facts pleaded to be true and asks itself whether there is a reasonable prospect that the claim will succeed. This latter approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. There was no suggestion in argument that the facts as pleaded should not be assumed to be true because they are manifestly incapable of being proven, as in Operation Dismantle v. The Queen, (1985) 1 SCR 441 at p. 455.
[ 4 ] R. 25.11 motions also proceed on the basis of the facts as pleaded. The common thread of the R. 25.11 criteria is that the facts pleaded are irrelevant to the issues before the Court, or are so prejudicial that the impugned parts of the pleading should be struck in spite of their relevance: see Carney Timber Co. v Pabedinskas, 2008 63163 (ON SC), [2008] OJ No. 4818 at para. 17 per Strathy, J. In addition, where the law applicable to the claims as pleaded is not fully settled, the claim should not be struck out pursuant to this rule: RD Belanger & Assocs. Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 5 OR (3d) 778 (C.A.) at p. 782. Again, there was no argument that the facts as pleaded should not be assumed to be true for the purpose of this branch of the argument, on the basis that the allegations are ridiculous or incapable of proof, as in Nash v. Ontario (1995), 27 OR (3d) 1 (C.A.) at para. 11.
[ 5 ] The respondent (plaintiff) sues not only for compensatory damages for wrongful dismissal, he also claims, inter alia , aggravated and punitive damages. The aggravated damages are said, in the pleadings, to be “Keays damages” (a reference to Keays v. Honda Canada Inc., 2008 SCC 39 [2008] 2 SCR 362), which are for “mental distress”: see amended Statement of Claim, para. 1(h). Para. 64 of the amended Statement of Claim amplifies this: the applicant (defendant) breached an obligation of good faith and fair dealing in the “manner of dismissal” and otherwise by “deceitfully terminating the plaitiff in reprisal” for his complaints about harassment and the applicant’s (defendants) inappropriate marketing practices. The plaintiff then in para. 64(g) of the amended Statement of Claim amplifies this allegation with “additional facts in support of this claim”, adding that he was terminated for “whistle blowing” in respect of the aforesaid marketing (i.e. promotional) practices. In respect of punitive damages, the respondent (plaintiff) simply relies on the applicant’s (defendants) “conduct”, inferentially its conduct as pleaded in detail elsewhere in the amended Statement of Claim.
[ 6 ] The impugned paras of the amended Statement of Claim (narrowed in argument to those parts of paras 41, 42, 43, 45 & 48(c) of the amended Statement of Claim which are within the square brackets in these paras as found in Tab 2(I), of the Motion Record) all relate to the claims of aggravated ( Keays ) damages and punitive damages.
[ 7 ] In Keays v. Honda , ( supra ), Bastarache, J. for the majority, at para. [57] held that damages resulting from the manner of dismissal are available only if they result from the employer engaging in conduct during the course of dismissal that is “unfair, or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”. At para. [59] Bastarache, J. referred to the dismissed employee’s entitlement to damages if he/she can prove “that the manner of dismissal caused mental distress that was in the contemplation of the parties …”. One example given of conduct in dismissal which may result in such damages is “misrepresentation regarding the reason for decision”, an allegation which is made by the respondent (plaintiff) here. This is a clear and definitive statement of the scope of the legal right to recover aggravated damages in an employment termination case.
[ 8 ] The applicant argues against the breadth of the Keays ratio, as aforesaid. The applicant submits that caselaw does not entitle a plaintiff in an employment termination case to aggravated or punitive damages where the termination is not for cause, as here. (The respondent plaintiff pleads that, and I assume it to be true. Interestingly, the applicant defendant delivered its Statement of Defence to the original Statement of Claim and it stands as its Statement of Defence to the amended Statement of Claim as well, and it admits that the termination was not for cause). The applicant does concede that one case, Andrachuk v. Bell Globe Media Publishing Inc. 2009 3974 (On. S.C.) per A. O’Marra, J. does give the plaintiff such an entitlement.
[ 9 ] In my view, the Andrachuck decision is correct and in accordance with the ratio in Keays , ( supra ). The jurisprudential circumstance noted by the applicant is not a basis for refusing to give effect to the Keays ratio. Further, the decision of this Court in Taylor v. Design Plaster Mouldings Ltd. [2010] OJ No. 45 per D.L. Corbett, J., upon which the applicant relies for the proposition that termination for “whistle blowing” which is misrepresented as something else to the employee cannot cause harm to the employee, does not stand for that legal proposition, in my opinion. It is true that my learned colleague stated that “the allegedly false explanation for termination is not one that would cause harm to Mr. Taylor.” As in every motion to strike pleadings, the facts in that case were based on what was pleaded in that case. The strength or weakness, correctness or falsity of a false explanation allegation, when and where it was made and its causal connection to harm suffered by a plaintiff could only have been based on the nature of the Statement of Claim in that case. The pleading itself is not mentioned in the reasons. In these circumstances, it is my view that the statement referred to in Taylor upon which the applicant relies is a conclusory statement which, whatever its basis, is not of universal application to all plaintiff’s who sue as a result of termination, no matter what their differing employment circumstances, termination experiences and individual make-up (e.g. vulnerabilities) may be alleged to be in their Statement of Claim. The statement is a reflection of the allegations as pleaded in that case, alone. I am therefore of the view that it is not plain and obvious that the impugned portions of the amended Statement of Claim fail to disclose a reasonable basis for an award of aggravated damages.
[ 10 ] Turning to punitive damages, an independent actionable wrong is not required: see Keays ( supra ) at para. 62, citing Whiten v. Pilot Insurance Co. 2002 SCC 18 () , [2002] 1 SCR 595. Breach of a contractual duty of good faith, such as a duty of good faith in the manner of termination, can qualify as the type of independent wrong sufficient to justify an award of punitive damages. I am therefore of the view that it is not plain and obvious that the impugned portions of the amended Statement of Claim fail to disclose a reasonable basis for an award of punitive damages.
[ 11 ] Turning to R. 25.11(b), the impugned portions of the amended Statement of Claim appear to me to be relevant to the claims made, including to the measure of damages which may be awarded if the respondent plaintiff is able to prove what he has pleaded. They are not scandalous, frivolous or vexatious, except to the extent that they are frivolous in the sense that they are of little worth as pleadings, disclosing and framing what is claimed, because of their use of unintelligible language. While the allegations attempted in paragraphs 41, 42 and 43 are permissible, the language used is largely impenetrable and unclear. So is the reference in para. 44 to “off label drug promotion”. No doubt the applicant defendant has a better understanding of the jargon found in its business than I do. The fact remains that in a public court, the Statement of Claim is a public document that members of the public should be able to understand. In addition, the trial Judge should have a clear statement of the issues to be tried. These paragraphs do not do that. They are capable of being seen as having a number of meanings.
[ 12 ] The motion is dismissed in the main, subject to this. I strike out paragraphs 41, 42, & 43 of the amended Statement of Claim and the reference to “off label drug promotion” in para. 44 thereof, and grant leave to the respondent plaintiff to amend its amended Statement of Claim to replead these matters in plain, ordinary English. The amendments shall be made within 30 days of the release of the Order.
[ 13 ] The respondent plaintiff has been substantially successful and I award the costs of this motion to him, on the partial indemnity scale, fixed in the following amounts: fees $7,500, disbursements $217.43, plus HST, payable forthwith.
J. Macdonald J.
Date: October 18, 2012