Court File and Parties

COURT FILE NO.: CV-12-00053803

DATE: 20121220

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LINDA DESJARDINS, Plaintiff

AND:

THE SOCIETY OF OBSTETRICIANS AND GYNECOLOGISTS OF CANADA AND DR. ANDRE LALONDE, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Fay K. Brunning & Sasha Hart, Counsel for the Plaintiff Jacques Emond & Porter Heffernan, Counsel for the Defendant Society Janice Payne & Steve Levitt, Counsel for the Defendant Lalonde

HEARD: November 16, 2012

ENDORSEMENT

[1] This is a motion brought by the Defendant Dr. Andre Lalonde ["Lalonde"] for an order striking out the Statement of Claim as against him pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. As well, it is asserted that the action is frivolous, vexatious or an abuse of process of the court pursuant to Rule 21.01(3)(b).

[2] Alternatively, it is argued that the claim ought to be struck without leave to amend on the basis that the Statement of Claim will prejudice a fair trial, has improperly pleaded evidence, argument or contains allegations that are irrelevant, improper or otherwise scandalous, frivolous, vexatious, or an abuse of process pursuant to Rule 25.11 and 25.06 of the Rules.

[3] There is a companion motion launched by the co-defendant the Society of Obstetricians and Gynaecologists of Canada ["SOGC"] as well as a motion brought by the Plaintiff dealing with a Request to Admit. It was agreed by counsel that the motion brought by Lalonde would proceed first as clearly, there was not sufficient time for the proper hearing of all three of the motions.

[4] The primary thrust of the Lalonde motion was to strike the Statement of Claim as disclosing no reasonable cause of action pursuant to Rule 21(1)(b). No evidence is admissible on such a motion. This Defendant also relies on Rule 21.01(3) which provides that a Defendant may move before a judge to have an action dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court.

[5] Lalonde has not served a Statement of Defence although the SOGC has. Counsel for the Plaintiff wished to make reference to the Statement of Defence of the SOGC during her argument on this motion, which was opposed by the solicitor for the moving party. In my view, it is inappropriate to make reference to the Statement of Defence of the co-defendant in a motion brought pursuant to Rule 21 and consequently, I ruled that the motion be argued on the basis of the Statement of Claim only. In coming to this decision, I have taken the language of Rule 21 into consideration. In my view, no extrinsic evidence ought to be admitted on a motion to strike pursuant to Rule 21. The claim must succeed or fail based on a generous reading of the Statement of Claim only.

Background

[6] The Plaintiff Linda Desjardins ["Desjardins"] was employed by the Defendant SOGC as the Chief Financial Officer from 2001 until November 16 2011 when she was terminated. The Defendant Lalonde was the Executive Vice President until he resigned in August 2011. It is pleaded that Lalonde was the person to whom Desjardins reported.

[7] There was a Finance Committee which reviewed the financial operations of the SOGC, which had to be approved by Council. On an annual basis the financial operations were reviewed by an auditor. Desjardins and Lalonde were members of the Finance Committee, along with others.

[8] It is alleged that in June 2010 Lalonde caused a $1 million donation to be made to an organization that was managed by a woman with whom he was having an affair without Lalonde disclosing his conflict of interest. It is pleaded that approval of the donation was obtained from Council and Executive without consideration by the Finance Committee or Desjardins.

[9] In paragraph 13, it is stated that Desjardins had discovered in 2009 that Lalonde was carrying on an affair but she did not know the connection between the woman and the organization that was the recipient of the large donation from the SOGC. It is pleaded that Lalonde deceived the SOGC as well as Desjardins and she played no role in the deceit or in the approval of the donation. It is alleged that Lalonde bullied and harassed the Plaintiff.

[10] In paragraph 17, it is alleged that after Council approved the donation, the Plaintiff realized that the woman with whom Lalonde was having an affair was in charge of the company that received the large donation. Paragraph 18 pleads that the Plaintiff advised the external auditor of the conflict of interest of Lalonde, who brought it to the attention of Council. Lalonde was permitted to resign and the auditor investigated the financial operations of the SOGC to ascertain whether there were any financial improprieties.

[11] On November 16, 2011, the SOCG terminated the employment of Desjardins, allegedly for cause. In paragraph 26, the Plaintiff states that the SOGC alleges that she allocated personal expenses of Lalonde to SOGC operating accounts, placed the SOGC at risk of tax liability for personal income taxes on bonuses/benefits paid to some staff members and that she failed to bring her concerns to the attention of the Executive or the external auditors. These allegations are denied by the Plaintiff.

[12] In paragraphs 39-43, the Plaintiff pleads that Lalonde is liable to her in general damages for committing 4 independent torts: intentionally interfering with contractual relations; inducing breach of contract; engaging in sexual harassment in the workplace; and deceit.

Position of the Defendant Lalonde

[13] A party moving under Rule 21 must rely on the Statement of Claim and assume the facts pleaded are true. The test is then whether it is "plain and obvious" that the claim has no possibility of success: Carey Canada Inc. v. Hunt[^1]. It is not alleged that Lalonde played any role in the termination of her employment. This Defendant submits that the torts that are pleaded against Lalonde are intentional torts and therefore, the Plaintiff must demonstrate that he intended to harm her. It is plain and obvious, it is submitted, that the Statement of Claim discloses no reasonable cause of action for any of these torts asserted against Lalonde.

[14] With respect to the tort of deceit, a Plaintiff must establish that a Defendant made a false representation which he knew was in fact false with the intent to deceive the Plaintiff. Further it must be proven that the Plaintiff relied on the representation, acted on it and suffered damages. In this case, it is alleged Lalonde lied about the affair and did not disclose his conflict of interest to the co-defendant SOGC. However, it is not pleaded that the Plaintiff relied in any way on the false representation nor that she relied on it so this claim has no chance of success and ought to be struck.

[15] With respect to the claim for the intentional interference with contractual relations, in order to be successful, a Plaintiff must demonstrate that the Defendant intended to injure the Plaintiff, the interference was by unlawful means and economic loss was suffered as a result.

[16] In the case at hand, the Statement of Claim does not assert that Lalonde intended to harm the Plaintiff, simply that he exhibited a "reckless disregard" for potential injury to the Plaintiff. This, it is submitted, is not sufficient. Intention is an essential element of this tort and it must be shown that the Defendant targeted the Plaintiff and intended to cause the breach of contract. In other words, the Plaintiff must show that Lalonde acted with the intention of causing the termination of her employment with SOGC. Even accepting the pleadings as true, it is impossible to conclude that Lalonde intended to cause an end to the Plaintiff's employment.

[17] Furthermore, the Statement of Claim does not indicate what "unlawful means" the Defendant allegedly used to commit this tort. It simply says that he engaged in an unlawful act to obtain the approval of Council to the donation. The case law is clear that an "unlawful" act must be one that is directed at a third party and actionable by that part. Thus, it is plain and obvious that this tort cannot succeed.

[18] Regarding the tort of inducing a breach of contract, a Plaintiff must show that there was a valid contract which the Defendant was aware of, and that he intended to cause a breach of the contract with resultant damages. In the case at hand, it is alleged that Lalonde is liable for inducing a breach of the employment contract "if SOGC proves cause for termination of her employment." However, it is not pleaded that Lalonde intended to create a breach of contract or that his conduct has caused such a breach. Again, intention is a necessary element of this tort and the requisite intent is not pleaded so this tort must fail.

[19] Finally, it is submitted that there is no free standing tort of harassment or sexual harassment. The Plaintiff alleges she was sexually harassed by Lalonde, an infringement of the Human Rights Code Amendment Act, 2006, SO 2006, c 30. S. 8. It is argued that the Code does not permit an individual to commence a civil action arising from an alleged infringement of a right under the Code so it ought to be struck.

[20] Alternatively and additionally, it is argued that the entire action against Lalonde is frivolous, vexatious or otherwise an abuse of the process of the court pursuant to Rule 21.03(3)(d). The claims against Lalonde have no basis in law and cannot succeed and ought to be struck at this stage.

[21] In sum, it is the position of Lalonde that the claims against him are fundamentally flawed with no chance of success and ought to be struck without leave to amend.

Position of the Plaintiff

[22] The solicitor for the Plaintiff submits that the relief sought by Lalonde is drastic, the dismissal of the claim against him, and thus, the Plaintiff ought to be granted leave to amend if the Court finds the Statement of Claim deficient.

[23] With respect to the tort of deceit, it is submitted the various acts of deceit of Lalonde are pleaded in paragraphs 10, 12, 13, 15, 17, 39 and 40. He actively concealed his affair and made a request for the donation to the company run by his lover. It is submitted the Plaintiff relied on his deceit, which is an essential element of this tort so this claim can be made out.

[24] Concerning the intentional interference with contractual relations, the case law is clear that a Plaintiff need not establish the predominant purpose of the Defendant's actions was to injure her; it is sufficient to establish that the unlawful act was in some measure directed against her. In this case, the unlawful act was that the Defendant did not pursue the usual route to obtain approval of the donation. He also engaged in bullying behaviour which can also be unlawful conduct.

[25] On the tort of inducing a breach of contract, it is pleaded that the Plaintiff had a valid employment contract with SOGC. Lalonde procured a breach of this contract which resulted in the Plaintiff losing her job and suffering damages so it cannot be said that this tort has no chance of success.

[26] On the tort of sexual harassment, the facts underlying this claim are set out in the Statement of Claim. It is submitted that sexual harassment may take different forms and is characterized by conduct that is unwelcome and offensive. While it is conceded that the Code does not allow a Plaintiff to commence an action based solely on an infringement of a right, in this case, the action against Lalonde is based on numerous causes of action in addition to the claims for sexual harassment. The interpretation of s. 46.1(2) of the Code that is being suggested by the Defendant Lalonde is far too narrow and undermines the purpose of the Code.

[27] Finally, on the submission that the claim is frivolous and vexatious and ought to be struck on this basis, counsel argued that the claim need not provide evidence and the existing claim makes it clear what is being sought against Lalonde. If counsel requires further information, they can serve a demand for particulars or move to discovery and ask questions to elicit particulars. It was noted that the onus on a party seeking to dismiss a claim on this basis is very high and the Court ought to strike only in the very clearest of cases. The fact that a claim may have dubious success potential is not sufficient.

Analysis

[28] In Alliance H. Inc. v. Henry Schein Ash Arcona Inc.[^2] I quoted from Dale v. TREB[^3] where the Defendants brought a motion pursuant to Rule 21.01(1)(b) to strike out the Plaintiffs's claim as disclosing no reasonable cause of action. This is the same Rule as the Defendants move under in the case at bar. Dale v. TREB, supra, summarizes the principles for consideration by the Court on rule 21.01 motions and I find that to be of assistance to me in the case at hand:

There are a number of well-settled legal principles that provide the framework of analysis for the determination of this motion. First, according to rule 21.01(2)(b), "no evidence is admissible" on a motion to strike out a claim for disclosing no reasonable cause of action. Rather, the motion must be determined on the adequacy of the contents of the impugned claim and any documents that may have been incorporated into the claim by reference. Second, the law is clear that motions to strike can only succeed if the defendants establish that it is "plain and obvious" that the claim discloses no cause of action. In other words, the claim should only be struck if it is "beyond doubt" that the claim will not succeed at trial. If the claim has some chance of success, it should be permitted to proceed. Third, for the purpose of determining such motions, the court must accept the facts as alleged by the plaintiff in the claim as proven unless they are patently ridiculous or incapable of proof. Fourth, the court must read the statement of claim generously, recognizing that there must be allowances made for drafting deficiencies. Fifth, the potential length and complexity of the issues, the legal novelty of the alleged cause of action, and/or the potential for the defendants to mount a strong and persuasive defence are not factors that should prevent the plaintiff from proceeding. The combined application of these principles creates a "stringent" legal test for defendants moving to strike out a statement of claim, while creating a threshold for plaintiffs which is "not high." See generally: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at pp. 971-980; Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.) at p. 7; MacKinnon v. Ontario Municipal Employees Retirement Board (2007), 2007 ONCA 874, 88 O.R. (3d) 269 (C.A.) at para. 19-21; Piedra v. Copper Mesa Mining Corp. 2011 ONCA 191, [2011] O.J. No. 1041 (C.A.) at para. 36; P. Perell and J.W. Morden, The Law of Civil Procedure in Ontario (2010, 1st ed.) at pp. 444-445.

[29] I agree that the onus on a moving party is very high for a Rule 21.01 motion. Indeed, counsel do not dispute that a claim should only be struck if it is beyond doubt that the claim cannot succeed at trial. It is against this background that I consider the argument of counsel for Lalonde. I will determine this motion on the basis of the Statement of Claim as it currently exists, without any reference to the proposed amended Statement of Claim nor to the Statement of Defence of the co-defendant SOGC. In my view, this is the proper procedure for hearing a motion brought pursuant to Rule 21.01.

Tort of Deceit

[30] In Amertek Inc. v. Canadian Commercial Corporation et al[^4] the Ontario Court of Appeal set out the elements that must be proven to establish the tort of deceit: the Defendant made a false representation to the Plaintiff; the Defendant knew the representation was false; the Defendant intended the Plaintiff should rely on the representation and she did and by doing so suffered a loss.

[31] In the case before me, the Plaintiff pleads that Lalonde actively concealed the fact that he was having an affair with a woman who was an executive director of an organization that had sought funding from the SOGC. It is alleged that by doing so he deceived the SOGC and hid his conflict of interest from them.

[32] In reviewing the Statement of Claim, the Plaintiff does not plead that Lalonde made a false statement to her about his relationship with the woman who controlled the company that sought money from the SOGC. Rather, it is alleged he concealed this information from her and that she subsequently discovered that he was having an extra marital affair [paragraph 13]. Nowhere is it pleaded that there was any reliance on the misinformation concerning the affair, and reliance is an essential element of the tort of deceit.

[33] It is difficult to conceive of how the Plaintiff could possibly succeed on this tort when by her own pleading, she fails to articulate a representation that was made by Lalonde that she relied on and in doing so, suffered loss. On her own evidence, it appears that she discovered the affair in 2009 so even if a representation was made by Lalonde about the nature of his relationship with the woman, Desjardins cannot be heard to say that she relied on this falsehood and acted on it to her detriment.

[34] Similarly, I cannot conceive of how she could have acted on this statement when she had no involvement in the approval process for the grant money. There is no allegation that she made any representations to the Board on the basis of the false representation of Lalonde and that by doing so, she suffered damages. What is alleged is that Lalonde had a personal relationship with the woman who managed the company that sought a donation from SOGC and he hid this information from the Plaintiff and the SOGC and placed himself in a conflict of interest. Nowhere is there a suggestion that as a result of a false representation made by Lalonde to Desjardins she relied on it and acted on it.

[35] In my view, the essential elements of the tort of deceit are not pleaded and the claim against Lalonde on this head has no chance of success.

Tort of Intentional Interference with Contractual Relations

[36] Counsel agree that this tort has the following required elements: an intent to injure the Plaintiff; interference with her contractual relations by unlawful means; and there was economic loss suffered by the Plaintiff as a result: Alleslev-Krofchak v. Valcom Limited[^5].

[37] In the case at hand, it is imperative that the Plaintiff establish that Lalonde intended to harm her through his unlawful conduct, and that he intended that her employment contract would be affected. It is not sufficient for the Plaintiff to demonstrate that as a result of the conduct of Lalonde, she lost her job. To succeed on this tort, the Plaintiff must show that he intended to harm her through his actions and that his conduct resulted in the loss of her employment.

[38] In Correia et al. v. Canac Kitchens et al.[^6] the Ontario Court of Appeal noted that the tort of inducing breach of contract is "confined to cases where the defendant actually knew that its conduct would cause the third party to breach (it is not enough that the defendant ought reasonably to have known that its conduct would cause the third party to breach; the defendant must have intended the breach (it is not enough that a breach was merely a foreseeable consequence of the defendant's conduct);and there must be an actual breach (it is not enough for the conduct to merely hinder full performance of the contract)."

[39] In the case before me, the Plaintiff has failed to allege that the conduct of Lalonde was directed at her with the intended result that she would lose her job; rather, it seems that the conduct of the Defendant Lalonde had the intended outcome that the SOGC would grant money to the company run by his lover and his deception was directed to ensuring this goal was achieved.

[40] While there are numerous allegations of misconduct of Lalonde contained in the Statement of Claim, there is nothing to suggest that Desjardins was targeted by Lalonde with the intention that her employment with the SOGC would be terminated. The allegations of impropriety against Lalonde appear to be based on his conduct in 2009. He resigned from his position with the SOGC in August of 2011 and the Plaintiff was terminated November 16, 2011. The 2 year gap between the alleged unlawful acts of Lalonde and the loss of the employment contract makes the connection between the two events quite remote but more importantly, there is an absence of intent pleaded.

[41] At most, it is alleged that Lalonde demonstrated "reckless disregard" for the Plaintiff's continued employment with the SOGC [paragraph 39]. It is clear that even if recklessness could be proven, this is not sufficient for the claim to succeed. As stated by Justice Juriansz in Piresferreira v. Ayotte[^7], "Recklessness is a flexible term capable of different meanings in different contexts…Intentional torts provide remedies for advertent behaviour, rather than inadvertent behaviour. The law treats intentional torts more severely,…The test stated in Prinzo and reaffirmed in Correia maintains the distinction between intentional torts and negligence. As noted Weiler J.A. said in Prinzo that the "consequences must be known by the actor to be substantially certain to follow".

[42] As the Statement of Claim is currently worded, assuming the allegations are true, it is impossible to draw the conclusion that Lalonde intended to cause the Plaintiff to lose her employment with SOGC through his improper behaviour. It may be that Lalonde did not follow the correct procedure in securing the approval of the donation, he may have concealed his conflict of interest, but that does not equate with "unlawful conduct" which is a necessary component of this tort. As a result, on a plain reading, the Plaintiff's claim for the tort of intentional interference with contractual relations does not contain the necessary elements and therefore, cannot succeed.

Tort of Inducing Breach of Contract

[43] The necessary elements for this tort are: a valid and enforceable contract must exist; the Defendant must be aware of the existence of the contract; the Defendant intended to and did procure a breach of the contract; and the Plaintiff suffered damages as a result of the breach: Drouillard v. Cogeco Cable Inc.[^8]

[44] Paragraphs 40 and 41 of the Statement of Claim deal with this tort. It is pleaded that "if the SOGC proves cause for termination of her employment, which is not admitted but denied, Lalonde is liable for inducing such breach of contract by Desjardins. Lalonde is a bully who manipulated and deceived Desjardins, and invoked fear of retribution if she stepped outside of reporting lines to go to the Council or Executive about his conduct and/or conflict of interest…Lalonde's conduct in having AF make a direct appeal for $1 million donation to the Executive and Council, without prior consideration of the donation request by the Finance Committee, was intended to prevent Desjardins from fulfilling her fiduciary obligations to SOGC".

[45] In this case, clearly the Plaintiff had a valid contract with the SOGC and Lalonde was aware of that fact. This tort requires intent on the part of the Defendant to procure the breach. I agree with the submission of counsel for Lalonde that if the SOGC had cause for terminating the employment contract of the Plaintiff, there can be no breach of contract and therefore no claim. The current pleading does not allege that Lalonde intended to cause a breach of the employment contract; rather, it is alleged that he intended to ensure that the Plaintiff was unable to fulfill her fiduciary commitments to SOGC, although it is not clear what precisely he intended to prevent her from doing. It is not alleged that the Plaintiff was terminated for failure to "fulfill her fiduciary obligations to SOGC" so it cannot be said that Lalonde acted with the intention to procure a breach of the employment contract by ensuring that she could not attend to her fiduciary obligations to SOGC.

[46] A plain reading of the pleading, therefore, does not include the requisite intent to cause the SOGC to breach the contract. Thus, it cannot succeed as an independent tort.

Tort of Harassment

[47] Paragraphs 42 and 43 plead that Lalonde engaged in sexual harassment in the workplace contrary to the Ontario Human Rights Code. Section 46.1(2) states that the Code "does not permit a person to commence an action based solely on an infringement of a right under Part 1." I agree with the submission of counsel for Lalonde that there is no freestanding tort of harassment. Even accepting that the conduct alleged in the Statement of Claim is true, that does not give rise to a claim against Lalonde based in harassment.

[48] Counsel for the Plaintiff argues that the conduct of Lalonde amounts to sexual harassment. Accepting that is true, it may give rise to a claim for damages. However, in order to comply with the Code, there must be another cause of action asserted in the civil action against the Defendant; the sexual harassment claim cannot be the only tort claimed against the Defendant.

[49] The solicitor for the Plaintiff cites Anderson v. Tasco Distributors[^9] as support for her position. However, in my view, this case does not assist the Plaintiff because it confirms that a claim for sexual harassment cannot stand alone. To put it another way, this claim cannot arise only from the breach of the Code. In the case at hand, there is no claim against Lalonde for wrongful dismissal. The Plaintiff cannot therefore assert a sexual harassment claim against Lalonde, given my rulings on the other independent torts alleged.

Claim that action is frivolous or vexatious pursuant to Rule 21.01(3)(d)

[50] This rule provides for the dismissal of an action that is frivolous, vexatious or an abuse of process, in the discretion of the Court. The onus on the moving party is very high. As Justice Armstrong noted in Currie v. Halton Regional Police Services Board[^10], "I am mindful that when the court invokes its authority under rule 21.01(3)(d) or pursuant to its inherent jurisdiction to dismiss or to stay an action, it does so only in the clearest of cases."

[51] A frivolous action has been defined as one that is without legal merit: Currie, supra. It is an action that cannot possibly succeed.

[52] A vexatious action is one that cannot succeed, would not lead to any relief, or is brought for an improper purpose: Lang Michener et al. v. Fabian[^11].

[53] An abuse of process is an "intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy…': Canam Enterprises Inc. v. Coles[^12] To put it another way, an abuse of process is litigation that brings the administration of justice into disrepute.

[54] The Rules do not contain any definition of what constitutes an action that is frivolous, vexatious, or otherwise an abuse of process pursuant to Rule 21. I agree with the comments of Justice Armstrong in Currie, supra, where he noted, "It is apparent that there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process…"[^13]

[55] I turn now to a consideration of whether the claim against Lalonde ought to be struck pursuant to Rule 21.01(3)(d). In order to do so, I must consider the nature of the claims asserted against Lalonde in the Statement of Claim.

[56] This is an action for wrongful termination of the employment of Desjardins. It is not pleaded that Lalonde was in any way involved in the decision of the SOCG to terminate the Plaintiff's job. Although he was the person to whom the Plaintiff reported in her job, he did not fire her. It is not suggested that in his capacity as her supervisor, he instructed her to take actions which were subsequently found to be grounds for her termination. What is alleged is that he had a conflict of interest in recommending to the Council/Executive that a large donation be made to a company which was run by a woman he was romantically involved with and that he failed to disclose this conflict. Assuming that to be true, I fail to see a basis for a claim against Lalonde arising from the loss of her employment contract.

[57] To the contrary, it is pleaded that at the time of the approval of the donation, Desjardins did not know that the woman Lalonde was having an affair with was the same individual whose company was receiving the large donation. Specifically, it is pleaded at paragraph 16, "Desjardins had no part in the deceit by Lalonde of SOGC and she did not have any part in the approval process by Council."

[58] It is further pleaded that after learning of the connection, the Plaintiff fulfilled her fiduciary duties to her employer and advised them of Lalonde's actions. The Plaintiff pleads that she is being singled out to take the blame for the actions of Lalonde, but this does not equate with her having a legitimate claim against him.

[59] Reading the Statement of Claim against Lalonde as a whole, I am of the view that it is not capable of success and therefore it is vexatious. While the conduct of Lalonde as set out in the claim, if proven, may be offensive, inappropriate and a host of other adjectives, I am not persuaded it gives rise to any valid claim in law.

[60] The solicitor for the Plaintiff submits that she included the claims against Lalonde because they all relate to the same series of occurrences and facts that form her allegations against the SOGC and that he is a necessary party. I disagree. The mere fact that a person may have been involved in the circumstances that give rise to a Plaintiff's claim does not mean that they are a proper party to a lawsuit. There must be a valid cause of action asserted against that individual, which in my view, is not the case with the present pleading. It must be struck.

Conclusion

[61] The action against Dr. Lalonde is struck. While the solicitor for Lalonde urged that there be no opportunity to amend as the claim is fundamentally flawed and there is prejudice to Lalonde which cannot be compensated for by the payment of costs, I do not agree with this submission at this juncture.

[62] The striking of a claim without the ability to amend to correct the deficiencies is a drastic remedy and may result in an injustice. The Plaintiff is granted leave to amend the existing claim against Lalonde.

[63] If counsel wish me to deal with the other motions which time precluded at the original hearing date, I may be contacted.

Costs

[64] The moving Defendant was successful on its motion. I see no reason why costs ought not to follow the event. In my view, this is not a case where an order of costs on a substantial indemnity basis is warranted. Lalonde is entitled to costs of the motion on a partial indemnity scale.

[65] I have reviewed the Costs Outline submitted by counsel. I have considered the factors enumerated under Rule 57, including the time spent, the results achieved, and the complexity of the matter, as well as the application of the principle of proportionality: Rule 1.04(1).

[66] Furthermore, I have taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON C.A.), (2004), 71 O.R. (3rd) 291 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. In my view, costs of $12,500 inclusive of fees, disbursements and taxes are appropriate and I fix them in that amount, payable by the Plaintiff to the Defendant Lalonde.

D. A. Wilson J.

Date: December 20, 2012

[^1]: Carey Canada Inc. v. Hunt (1990), 1990 90 (SCC), 74 D.L.R.(4th) 321 (SCC) [^2]: Alliance H. Inc. v. Henry Schein Ash Arcona Inc. 2012 CarswellOnt 12263 [^3]: Dale v. Toronto Real Estate Board 2012 CarswellOnt 896 (OSC) [^4]: Amertak Inc. et al. v. Canadian Commercial Corporation et al., 2005 23220 (ON CA), [2005] O.J. No. 2789 (ONCA) [^5]: Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557 [^6]: Correia et al. v. Canac Kitchens et al. 2008 ONCA 506, 91 O.R. (3d) 353 (O.C.A.) [^7]: Piresferreira v. Ayotte 2010 ONCA 384 [^8]: Drouillad v. Cogeco Cable Inc., 2007 ONCA 557 [^9]: Anderson v. Tasco Distributors 2011 ONSC 269 [^10]: Currie v. Halton Regional Police Services Board 2003 7815 (ON CA), [2003] 179 O.A.C. 67 [^11]: Lang Michener et al. v. Fabian et al., (1987) 1987 172 (ON SC), 59 O.R. (2d) 353 [^12]: Canam Enterprises Inc. v. Coles (2000) 2000 8514 (ON CA), 51 O.R. (3d) 481 (Ont.C.A.) [^13]: Currie, supra, paragraph 17.