ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-468SR (Brantford)
DATE: 2013-03-06

BETWEEN:

Deanna Martyn

Plaintiff

– and –

Exel Canada Ltd.

Defendant

Matthew J. Lambert, for the Plaintiff
Casey Dockendorff, for the Defendant

HEARD: February 22, 2013

THE HONOURABLE MR. JUSTICE P.B. HAMBLY

reasons for judgment

[1] The defendant brings a motion for an order striking out paragraphs of a statement of claim for wrongful dismissal. The plaintiff has demanded particulars from the defendant but it has declined to provide them. The defendant, in the alternative, seeks an order that the plaintiff provide particulars. I agree with the defendant that the statement of claim violates the rules for pleading. I am of the view that the appropriate remedy is to strike the statement of claim with leave to the defendant to deliver a fresh statement of claim for wrongful dismissal and related claims.

The Statement of Claim

[2] The plaintiff (Deanna) issued and served a statement of claim on Exel Canada Ltd. (Exel) on November 21, 2012. As appears from the statement of claim, Deanna was employed by Exel as a forklift operator and subsequently lead hand from August 19, 2005 until August 31, 2012 when Exel terminated her employment in a letter dated August 31, 2012. She states that Exel did not provide sufficient notice or compensation in lieu of notice. She alleges wrongful dismissal. The reason for the termination was stated in the letter to be violation of Exel’s Class 2 Work Rule No. 1 or the Attendance at Work Policy. Deanna states that she has no knowledge of these items and that they do not exist. She states in paragraph 9 of the statement of claim that by making these allegations, Exel has defamed her in her trade and calling. She states that Exel compounded the defamation by making similar statements in her Record of Employment. She states that her annual remuneration package was approximately $43,000. She states that a fair and reasonable notice would have been between 9 months and 12 months. In paragraph 19 she states that the actions of Exel were underhanded and unjustifiable and entitle her to aggravated, exemplary and punitive damages against it.

[3] Her prayer for relief asks for the following:

1. The Plaintiff claims:

a. Damages for wrongful dismissal in the amount of $100,000.00;

b. General damages for mental distress in the amount of $50,000.00;

c. Punitive, exemplary and aggravated damages in the amount of $50,000.00;

Exel seeks an order striking out paragraphs 1(a), (b), (c), 9 and 19.

Relevant Rules of Civil Procedure

[4] 25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

(9) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where damages are claimed,

(a) The amount claimed for each claimant in respect of each claim shall be stated; and

(b) The amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before trial.

25.10 Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

Paragraph 1 (a) – Claim for damage of $100,000 for wrongful dismissal

[5] The plaintiff takes the position in her statement of claim that a “fair and reasonable notice period would be 9 to 12 months” and that her annual remuneration package was approximately $43,000. This is a statement of the law in which makes a concession that she need not make of the maximum amount of her claim. I agree with the defendant that there is a “disconnect” between her statement of the applicable law and her claim. The excess claim is not supported by the facts alleged as required by R. 25.11 and could be struck under R. 25.11. If this was the only complaint of the statement of claim there would be no justification in bringing a motion, as the plaintiff could simply abandon the excess at the trial.

Paragraph 1 (b) - $50,000 for Damages for Mental Distress

[6] Where a party suffers mental distress as a result of a breach of contract she is entitled to recover damages if it was in the reasonable contemplation of the parties when they entered into the contract that she would suffer mental stress as a result of a breach of the contract by the other party. (Fidler v. Sun Life, 2006 SCC 30, [2006] 2 S.C.R. 3 at para. 44) It is not necessary for the plaintiff to prove an independent cause of action (Fidler para. 55). An employee may recover damages for mental distress as a result of the manner in which she was dismissed (Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362 at paras. 56-59 and 114). The party must plead facts which she alleges supports her claim for mental distress. It is not enough simply to make a bald allegation. (Makkar v. Scarborough, [1985] O.J. No. 279) Nowhere in the statement of claim does the plaintiff allege facts that support her claim for damages for mental distress.

Paragraph 1 (c) - $50,000 for punitive, exemplary and aggravated damages

[7] Punitive and exemplary damages are synonymous. The term more commonly used in the modern cases is punitive damages. (See the discussion throughout Whiten v. Pilot Insurance, 2002 SCC 18, [2002] 1 S.C.R. 595). Aggravated damages are used to describe damages sought for mental distress (See Fidler at para. 51). The failure to set out the amount in the statement of claim for each claim offends Rule 26.09 (9) (a). (see Phillips v. Ontario Racquet Club, 2012 ONSC 679)

[8] Punitive damages as the term implies are meant to punish. They are described in Fidler as follows:

62 By their nature, contract breaches will sometimes give rise to censure. But to attract punitive damages, the impugned conduct must depart markedly from ordinary standards of decency -- the exceptional case that can be described as malicious, oppressive or high-handed and that offends the court's sense of decency: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 196; Whiten, at para. 36. The misconduct must be of a nature as to take it beyond the usual opprobrium that surrounds breaking a contract. As stated in Whiten, at para. 36, "punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment)". Criminal law and quasi-criminal regulatory schemes are recognized as the primary vehicles for punishment. It is important that punitive damages be resorted to only in exceptional cases, and with restraint.

63 In Whiten, this Court set out the principles that govern the award of punitive damages and affirmed that in breach of contract cases, in addition to the requirement that the conduct constitute a marked departure from ordinary standards of decency, it must be independently actionable. …

To be entitled to punitive damages a plaintiff must plead facts to support the award. (See Sklar v. PCL Constructors, 2012 ONSC 6679. Paras. 26-28)

The Allegation of Defamation

[9] The plaintiff made an allegation of defamation against Exel. Wrongful dismissal is a form of breach contract. Defamation is a tort. She makes no claim for damages for defamation. This offends Rules 25.06(1) and (9). Rule 25.11 gives the court jurisdiction to strike it out. Lysko v. Braley, 2006 11846 (ON CA), [2006] O.J. No. 1137 is a case in which the plaintiff sued for breach of contract. The case is analogous to a claim for wrongful dismissal. The plaintiff alleged defamation in the statement of claim. The defendant brought a motion to strike out portions of the statement of claim including the allegation of defamation. The Court of Appeal, in the judgment of Justice Rosenberg, adopted the following statement of principle regarding pleadings in The Law of Defamation in Canada 2nd ed. (looseleaf, updated 1999) (Toronto: Carswell, 1994) at s. 19.3(2)(a)(i) by Raymond E. Brown as follows:

The more modern rule is to permit a plaintiff to plead and prove words that are substantially but not precisely the same as those words which were spoken. It is not necessary for the plaintiff to plead or allege verbatim the exact words; it is sufficient if they are set out with reasonable certainty. Not every word must be proved if the variance or omission does not substantially alter the sense of the meaning of the words set out in the pleading. The test is whether the claim is sufficiently clear to enable the defendant to plead to it. The words must be pleaded with sufficient particularity to enable the defendant to understand whether the words have the meaning as alleged or some other meaning, and to enter whatever defences are appropriate in light of that meaning. It is impossible to require absolute precision in the pleading of oral communications; it is sufficient if there is certainty as to what was charged. If the words proved are substantially to the same effect as those used in the pleading, the pleading should stand. [Footnotes omitted.]

[10] In Lysko at para. 108, Justice Rosenberg quoted from the decision of Justice Cory for the Supreme Court of Canada in Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3 as follows:

For the purposes of these reasons, it is sufficient to observe that a publication which tends to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., 1978 20 (SCC), [1979] 1 S.C.R. 1067 at 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994), R.E. Brown stated the following at p. 1-15:

[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which gives it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.

[11] The plaintiff in para. 9 of the statement of claim states the following:

By accusing Deanna of violating Exel's Attendance at Work Policy and Class 2 Work Rule No. 1 Exel defamed Deanna in her trade and calling. Exel compounded Deanna’s defamation by making a similar statement on her Record of Employment.

[12] She does not state how the words alleged lowered her in the estimation of right-thinking members of society or exposed her to hatred, contempt or ridicule. The pleading does not comply with the above stated principles.

Conclusion

[13] The plaintiff in her statement of claim takes legal terms and uses them without any precise meaning. I could strike individual paragraphs of the statement of claim and give her an opportunity to amend. I could also order the plaintiff to provide particulars. Rather than take either of these courses, I am ordering that the statement of claim be struck in its entirety. The plaintiff will have 14 days from the date of this judgment to file a fresh statement of claim.

[14] The defendant shall have 10 days from the date of this judgment to make written submissions on costs. The plaintiff shall have 10 days from her receipt of the defendant’s submissions to respond.

Justice P.B. Hambly

Released: March 6, 2013

COURT FILE NO.: CV-12-468SR (Brantford)
DATE: 2013-03-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Deanna Martyn

Plaintiff

– and –

Exel Canada Ltd.

Defendant

REASONS FOR JUDGMENT

Justice P.B. Hambly

Released: March 6, 2013