ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-5077
DATE: 2012-02-01

B E T W E E N:

Semija Bulic

Robert S. Whitmore, for the Plaintiff/Responding Party

Plaintiff (Responding Party)

• and -

R. Denninger Limited

Stephen A. McArthur and Janet M. Callfas, for the Defendant/Moving Party

Defendant (Moving Party)

HEARD at Hamilton, Ontario: January 12, 2012

The Honourable Justice C. A. Tucker

ENDORSEMENT

Issue

[ 1 ] Should paragraph 1(b) of the plaintiff’s amended Statement of Claim be struck?

Background

[ 2 ] The defendant on this motion sought to strike paragraphs 1(b) and 1(c) of the plaintiff’s amended Statement of Claim. The plaintiff consented to paragraph 1(c) being struck, and I do so order.

[ 3 ] The defendant submits that it is plain and obvious that paragraph 1(b) of the amended Statement of Claim discloses no reasonable cause of action.

[ 4 ] The plaintiff argues that she has sufficiently pled a “factual matrix” which we must take as true for the purpose of this motion and that contrary to the defendant’s position it is not plain and obvious that there is no reasonable prospect of her succeeding in this cause of action. The plaintiff asserts as a preliminary matter two other issues; that of delay, and the fact that the trial record has been passed and the matter set for trial. I will deal with these preliminary objections first, prior to considering the substantive issue.

Delay and This Motion Being Brought After Record Passed

[ 5 ] It is the plaintiff’s argument that the defendant has waited far too long to bring this motion, suggesting that Rule 21.02 may be used by the court to strike this motion as a remedy for delay in addition to ordering costs.

[ 6 ] The defendant argues that the delay here has no consequences to the action given that no adjournment of the trial date is requested. It further argues the motion may reduce the time for trial required which is in part the reason for the rule in this regard. The defendant also suggests that the plaintiff acquiesced in the delay by agreeing that motions and discoveries could take place subsequent to the trial record being passed.

[ 7 ] The plaintiff points out Rule 48.04(1) which forbids a party who has consented to a matter being set down for trial to bring a motion without leave and only when there has been a substantial and unexpected change in circumstances. The plaintiff points out the 18 months that have passed since the claim was amended and defended.

[ 8 ] In the circumstances of this case, I will not prevent the hearing of the substantive issue for either of the two reasons cited. Although a strict interpretation of Rule 21.02 and Rule 48.04(4) could result in the motion being struck, there is an issue of consent which is alleged which appears to be partially substantiated and is not denied by the plaintiff. Accordingly, notwithstanding the lengthy delay and the consent to the passing of the trial record, I will not prevent the defendant from proceeding on this motion.

The Substantive Issue: Analysis and Decision

[ 9 ] The plaintiff in her amended claim seeks damages for “mental anxiety and intentional infliction of mental suffering”. She claims that these damages resulted from the false allegation of theft made against her by the defendant. It is this claim that the defendant, pursuant to Rule 21.01(1)(b), seeks to strike. It is argued by the defendant that the purpose of the rule is to allow the court to focus on claims that have a reasonable chance of success. The defendant in order to succeed must show that the plaintiff’s Statement of Claim discloses no reasonable cause of action and such must be plain and obvious. To make the analysis I may consider only the facts alleged in the pleadings in the context of the applicable law.

[ 10 ] Based upon the current state of the law as set out in the Ontario Court of Appeal decision of Piresferreira v. Ayotte, 2010 ONCA 384 , 319 D.L.R. (4 th ) 665, (Ont. C.A.) , the plaintiff must prove, in order to establish intentional infliction of mental suffering,

(a) flagrant or outrageous conduct by the defendant,

(b) calculated to prove harm,

(c) that results in a visible and provable illness.

By this decision, the Court has made it clear that only intentional infliction of harm can be claimed in an employment context.

[ 11 ] The defendant alleges that the pleadings fail to plead the first and second elements or to plead facts that satisfy these elements.

[ 12 ] In dealing with the first element the plaintiff claims that the nature of the false or unproven allegation of a theft itself is sufficient and that reference to “malicious” is also sufficient without requiring the words “flagrant” or “outrageous”. She asserts the alleged conduct of the defendant in asserting an unfounded claim of theft is the basis in itself which establishes the claim.

[ 13 ] At para. 70 of Piresferreira , supra , the Court, when considering the trial judge’s decision, stated that “the ambit of what the case law considers ‘flagrant and outrageous’ is expanding as this tort evolves”. We must recognize that evolution. I cannot find that the failure to specifically use the words “flagrant and outrageous” is a requirement of pleadings to establish this tort. If the alleged action is in itself flagrant and outrageous or alternate wording such as “malicious” is asserted, which occurred here, I find it sufficient to establish the first element of the tort as required at the pleadings stage. The false accusation of a criminal act by a long term employee who has been made a manager by the same defendant may be found by a trial judge after hearing the evidence to reach the level of “flagrant” or “outrageous” conduct. At this stage of the proceedings we cannot make that determination.

[ 14 ] In relation to the second and third elements of the tort, the defendant argues that the plaintiff has failed to show or claim or provide the facts that underline her claim.

[ 15 ] The plaintiff refers to the “factual matrix” discussed in the recent case of 1309489 Ontario Inc. v. BMO Bank of Montreal , 2011 ONSC 5505 , 107 O.R. (3d) 384 , to defend its pleadings. If l accept the pleadings as true, the plaintiff has asserted that the defendant knew that the false allegation would cause the harm suffered by the plaintiff which is described in detail in the claim. [Emphasis added.]

[ 16 ] Although the plaintiff acknowledges the taking of the goods without payment, nowhere does she admit theft. She has pled that she was a long term employee of the defendant and had been granted a managerial position by it prior to the “false” allegation of theft. I agree with the plaintiff that this creates a factual matrix sufficient to support the pleadings and the cause of action. I acknowledge it may be very difficult to prove the claim by evidence, but it is not “plain and obvious” that the claim is “certain to fail” at the pleadings stage just months before the trial is to be held on these very issues. It is clear that the pleadings bring the claim within a settled category of a cause of action. There is no substantive reason to deny the plaintiff her day in court on this issue at this late date.

[ 17 ] For the reasons given, I dismiss the defendant’s motion.

Costs

[ 18 ] If the parties are unable to agree upon costs, I may be spoken to.

Tucker, J.

Released: February 1, 2012

COURT FILE NO.: 08-5077
DATE: 2012-02-01

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Semija Bulic Plaintiff (Responding Party) - and – R. Denninger Limited Defendant (Moving Party) ENDORSEMENT Tucker, J.

Released: February 1, 2012