NEWMARKET COURT FILE NO.: CV-11-107341-00

DATE: 20130724

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PO LEUNG, Plaintiff

AND:

WENDY SHANKS, COLETTE RINSKE PYSELMAN, DR. COLETTE PYSELMAN MEDICINE PROFESSIONAL CORPORATION and MARKHAM FERTILITY CENTRE INC., Defendants

BEFORE: THE HON. MR. JUSTICE J.R. McCARTHY

COUNSEL:
L. Corrente, for the Plaintiff

C. Wayland and K. Kalogiros, for the Defendant Wendy Shanks

J. Laxer, for the Defendants Colette Rinske Pyselman, Dr. Colette Pyselman Medicine Professional Corporation and Markhan Fertility Centre Inc.

HEARD: June 21, 2013

ENDORSEMENT

[1] The Defendants move for an order striking out the entirety of the Amended Statement of Claim (“the pleading”) of the Plaintiff on the ground that it discloses no reasonable cause of action. The governing rule is 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which reads as follows:

21.01 ...

A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly

[2] The Defendant Shanks, only, moves under rule 25.11 for an order striking out the last sentence of paragraph 12 of the Statement of Claim, without leave to amend, on the basis that it is frivolous, vexatious, and/or scandalous.

[3] Rule 25.11 reads as follows:

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.

THE PLEADING

[4] The pleading was issued on December 8, 2011. It was amended on March 19, 2012. It contains 49 paragraphs. The Plaintiff seeks general damages for pain and suffering, breach of contract, intrusion upon seclusion and breach of privacy. The Plaintiff also seeks punitive, aggravated and exemplary damages.

[5] The Plaintiff further particularized the basis for her damages claim in paragraphs 2 and 3 of the pleading, alleging, inter alia, breach of duty of care and fiduciary duty, negligence, intentional and negligent infliction of mental distress, harassment, psychological abuse and conspiracy to injure. The Plaintiff’s claim against the Defendants Dr. Pyselman (Dr. P), Dr. Pyselman Professional Corporation and Markham Fertility Centre Inc. (“the clinic”) includes an allegation of vicarious liability for the actions of their employee, the Defendant Wendy Shanks (“Shanks”).

BACKGROUND

[6] The Plaintiff and her common law partner, Stuart Westcott (“Stuart”) began a relationship in or around 2006. They began to reside together in 2007. Beginning in May of that year, they became patients at the clinic for the purpose of fertility treatment. Dr. P became the treatment provider to the couple. Shanks was employed as a nurse and she became the primary contact for the couple. Treatment took place between 2007 and 2010. At some point during the course of the treatment, Shanks and Stuart became intimately involved. The relationship between the Plaintiff and Stuart came to an end in March 2010, shortly after the Plaintiff learned that she was pregnant. Stuart disclosed to the Plaintiff the truth about his relationship with Shanks.

THE POSITIONS OF THE MOVING PARTIES

(i) Dr. P and the Clinic

[7] These Defendants assert that the patchwork of claims against Dr. P and the clinic ranging from the vicarious liability to “intrusion upon seclusion”, should not be permitted to proceed to trial. The claims against them have no reasonable prospect for success. First, the law does not allow individuals to seek compensation from their ex-spouse or that person’s new partner (Shanks) for the anguish they suffer when the spouse ends the relationship. Secondly, even if there were a reasonable prospect that the Plaintiff could make out a claim against Shanks, the alleged wrongs are not sufficiently connected to her employment to give rise to vicarious liability. Finally, neither Dr. P nor the clinic can be directly liable to the Plaintiff on the facts pleaded.

(ii) Shanks

[8] This Defendant asserts that the Plaintiff’s claims do not exist in law. Canadian courts have consistently denied compensation to a spouse for emotional hardship arising from the other spouse’s decision to end the relationship, whether or not it involves an extra-marital affair. The claim against Shanks is defective and should be struck. In the alternative, the Plaintiff has pleaded facts which are neither material nor relevant to the causes of action advanced. They have been advanced merely to add colour to pleading. They are scandalous and vexatious and should therefore be struck.

THE POSITION OF THE PLAINTIFF

[9] The Plaintiff contends that the Defendants motion must fail. She states that her claim is not based on the tort of alienation of affection. Rather, it is based upon the professional or fiduciary duties owed by medical professionals to their patients. It is not plain and obvious that the pleading discloses no reasonable cause of action; the claim has a reasonable prospect of success. The Plaintiff relies on the case of Szarfer v. Chodos (1986), 1986 2508 (ON SC), 54 O.R. (2d) 663 (H.C.J.), aff’d 1988 4778 (ON CA), 66 O.R. (2d) 350 (C.A.) wherein it was held that a lawyer breached the fiduciary duty owed to his client when he used confidential information disclosed in the course of his retainer to engage in a sexual relationship with the client’s spouse.

[10] The Plaintiff further submits that the issues raised in the claim are important in view of the rapid growth of fertility medicine and the unique and intimate relationship between infertility patient couples and their professionals. The allegations form part of the core facts in a claim based in tort for professional wrongdoing, negligence, and breach of fiduciary duty.

THE TEST ON A MOTION TO STRIKE

[11] The test on a motion to strike, as laid down in R v. Imperial Tobacco Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, is whether, on the facts pleaded, it is “plain and obvious” that the impugned pleading discloses no cause of action. It is incumbent on the Plaintiff to clearly plead the facts upon which it relies in making a claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses.

[12] In Imperial Tobacco, the Supreme Court addressed the particular problems raised by novel causes of action disclosed in pleadings. It held that the fact that a pleading reveals an arguable, difficult or important point of law cannot justify striking out part of the claim. Where a claim reveals a difficult and important point of law, it may be critical that the action proceed to trial. A court must, therefore, err on the side of permitting a novel but arguable claim to proceed.

[13] Lower court decisions have held that a claim is defective and should be struck if the allegations do not give rise to a recognized cause of action or if the necessary legal elements of the cause of action are not sufficiently pleaded (see McIntyre v. Connelly, [2008] O.J. No 1097 (S.C.)

THE ALLEGATIONS

[14] Set out below are the identified causes of action which the pleading purports to disclose, together with a synopsis of the arguments put forward by the Defendants in support of their position.

(a) Intentional and/or negligent infliction of mental distress, harassment and psychological abuse by Shanks

[15] The parties agree that the tort of alienation of affection in the family law context was rejected by the Supreme Court of Canada in the decision of Kungl v. Scheifer, 1962 5 (SCC), [1962] S.C.R. 443. The Defendants contend that the Plaintiff’s allegation of negligence and negligent infliction of mental distress cannot succeed because it is, in substance, merely a claim by the Plaintiff against another woman for interference with her spousal relationship. This is nothing more than the defunct tort of alienation of affection cloaked in terms of negligence.

[16] The Defendants placed considerable reliance on the Supreme Court of Canada’s decision in Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, in which Wilson J. determined that the torts of conspiracy or infliction of mental distress should not be permitted to extend to the family law context. To allow this would provide spouses with a means to exact revenge, potentially give rise to petty and spiteful litigation, and extortionate and vindictive behaviour. The Defendants urged upon this court to have regard to these policy considerations. They argue that the Plaintiff is seeking to circumvent a public policy pronouncement from the Supreme Court by tying the turmoil in her personal life to the medical and contractual context of the clinic. Rules of conduct for medical practitioners may forbid them from engaging in sexual relationships with patients, but the Plaintiff herself was not involved in the subject relationship. She therefore has no standing to bring a claim in that regard.

[17] In any event, the Defendants contend that the necessary elements of the tort of intentional infliction of mental distress have not been pleaded. The act complained of must be extreme, flagrant, or outrageous, it must be calculated to produce harm, and actually result in harm: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A.). The alleged harm suffered by the Plaintiff post-dated any conduct by Shanks. The pleading specifies that the mental distress stemmed from the break-up of the relationship between the Plaintiff and Stuart. The mental distress was at best a by-product of the alleged affair.

(b) Negligence on the part of Shanks to exercise all reasonable care and skill in the treatment of Po and to refrain from any conduct that could cause physical and/or psychological harm to Po

[18] The Defendants argue that there is nothing in the pleading to support the allegations that Shanks fell below the standard of care in terms of nursing care provided to the Plaintiff. In fact, the pleading states that the fertility treatment was ultimately successful in that the Plaintiff became pregnant on March 23, 2010. Moreover, the law does not permit a consensual sexual relationship to form the basis for a breach of contract or a claim in negligence: Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226.

[19] The Defendants further contend that no duty of care should be imposed on a nurse in Shanks’ position for public policy reasons. In the absence of Canadian authority directly on the point, the Defendants point to the case of Long v. Ostroff, 854 A.2d 524 (PA Super 2004), a decision of the Superior Court of Pennsylvania, which determined that a physician’s duty of care does not prohibit an extra-marital affair with a patient’s spouse.

(c) Conspiracy to injure

[20] The Defendants advance three reasons for why the pleading of conspiracy allegations should be struck: first, a claim in conspiracy cannot be advanced against a single defendant. By alleging a conspiracy between Shanks and Stuart to injure her but failing to name the latter as a Defendant, the pleading fails to disclose a reasonable cause of action in conspiracy. The Defendants rely on the decision of Master Haberman in Bledin v. Bledin, 2012 ONSC 1454, [2012] O.J. No. 995. In that case, the court reasoned as follows, at para. 50:

Simply naming a co-conspirator in the body of the claim also deprives them of a voice in a proceeding that is open to the public, such that they have no input into its resolution or its outcome. This is not a practice the court should endorse as it allows for a court-sanctioned form of defamation in a pleading with no possible repercussion to the plaintiff.

[21] Second, the claim alleges the tort of conspiracy in the domestic context and thereby runs contrary to the Supreme Court’s decision in Frame. As held by Justice Wilson, at para. 40:

It would be my view that the tort of conspiracy should not be extended to the family law context. Although the law concerning the tort of conspiracy is far from clear, the criticisms which have been levelled at the tort give good reason to pause before extending it beyond the commercial context.

[22] Finally, the Plaintiff’s allegation is deficient because it does not sufficiently plead the elements required: that the predominant purpose of the conduct was to cause harm to her; the precise purpose of the conspiracy; and the particulars of the agreement between the conspirators. The Defendants rely on the decision of this court in Dryden v. Dryden, 2011 ONSC 7060, [2011] O.J. No. 5519, at para. 21.

(iii) Breach of Contract

[23] The Defendants submit that there can be no reasonable cause of action in contract. Aside from the pronouncement from the Supreme Court in Norberg that liability in contract does not arise in circumstances of consensual extra-marital sexual relationships, the Defendants contend that the pleading contains none of the elements necessary to disclose a reasonable cause of action in contract. The pleading is lacking particulars of when the contract was entered into and between whom, the material terms of the contract, and the alleged manner in which it was breached. They rely on the case of Basdeo (Litigation Guardian of) v. University Health Network, [2002] O.J. No. 263 (S.C.). To the extent that there are particulars in the paragraph alleging a breach of contract, those particulars are vague and merely repeat the language from the claim in negligence. The contract between the parties was for the provision of medical services only. There is no allegation that the contract provided assurances to safeguard the mental or emotional well-being or the integrity of the Plaintiff’s private life. Implying terms into a written agreement will only be appropriate where it is necessary to provide business efficacy to the agreement between the parties.

(iv) Intrusion upon of Seclusion or Breach of Privacy

[24] The Defendants contend that the facts as pleaded do not meet the required elements of the test for establishing this tort. The pleading alleges that Shanks used the Plaintiff’s personal information to invade her privacy and cause her injury. This falls short of the necessary elements to constitute a cause of action. These were set out by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241. Because the Plaintiff voluntarily provided information to Shanks in the context of a legitimate professional situation, that information cannot be said to have been obtained without legal justification. Moreover, the pleading contains no material facts upon which a reasonable person would find the alleged invasion “highly offensive”. These elements are essential to support the tort in question. The failure to allege them is fatal to the pleading.

(v) Fiduciary Duty between Shanks and the Plaintiff

[25] The Defendant Shanks contends that the pleading contains insufficient particulars to establish the existence of a fiduciary duty between this Defendant and the Plaintiff. Moreover, the pleading fails to disclose a breach of any such duty even if it were established. She relies upon the three defining characteristics of a fiduciary relationship listed by Wilson J. in Frame v. Smith, at para. 60:

1. The fiduciary has scope for the exercise of some discretion or power;

2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests;

3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

[26] Since the pleading only states that Shanks provided “advice and care with respect to ...the administration or medication, the timing of retrievals and the selection of embryos”, there are no material facts alleged that could establish the existence of a fiduciary relationship. If Shanks did owe a fiduciary duty to the plaintiff, it is limited to the manner in which she exercised those duties and to the confidential patient information she acquired in her role. The alleged relationship with Stuart was unrelated to any duties she owed to the Plaintiff in a fiduciary capacity.

(vi) Vicarious Liability of Dr. P. and the Clinic

[27] The Defendants Dr. P and the clinic argue that the claim against them for vicarious liability should be struck: first, because the claims against Shanks are defective and second, because there is no vicarious liability on the facts pleaded. There is an insufficiently pleaded connection between the conduct complained of and the employment. On the facts as pleaded, the clinic was merely the venue where Shanks and Stuart met. The vast majority of the relationship took place outside of work and outside of Shanks’ official duties. Moreover, the employment itself did not materially enhance the risk of the alleged offending conduct occurring. The Defendants rely on the pronouncement of the Supreme Court of Canada in Bazley v. Curry, 1999 692 (SCC), [1999] 2 S.C.R. 534 at para. 37:

the question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.

(vii) Direct Liability of Dr. P and the Centre

(a) Breach of Confidence

[28] The Defendants Dr. P and the clinic assail these allegations on the following grounds: first, the claim for breach of confidence should fail because the fact that Shanks had an affair with Stuart was never confidential information. Second, any duty of confidentiality owing to the Plaintiff was in respect of her medical condition only. Third, the information allegedly disclosed only made its way back to Shanks and other persons involved in the Plaintiff’s care. Finally, the breach of confidence allegation is inconsistent with a further allegation that Dr. P had a duty to investigate and to penalize Shanks.

(b) Failure to Investigate and Take Action

[29] According to the Defendants, this portion of the claim must be struck because a failure to investigate a complaint is not a cause of action known at law: Carten v. Canada, 2009 FC 1233, [2009] F.C.J. No. 1551, at para. 55. As well, this alleged wrongdoing post-dated the loss suffered and is therefore not compensable.

(c) Negligence in Hiring, Training and Continuing to Employ Shanks.

[30] The Defendants state that the pleading fails to set out how the impugned conduct fell below the standard of care. As well, employers owe no duty to monitor the private lives of their staff. There was no duty owing to the Plaintiff to terminate the employee; in any event, any termination would have taken place after the alleged damages were suffered.

ANALYSIS

Overview

[31] This is not the trial of this action. This is not a summary judgment motion. The decision in Imperial Tobacco has confirmed that a pleading is only to be struck under Rule 21 if it is “plain and obvious” that the pleading discloses no reasonable cause of action and has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should proceed to trial. This would appear to impose a less stringent onus on the moving party than that which was suggested as appropriate in the decision of Cameron J. of this court in Kovacs v. TD Financial Group, 2010 ONSC 3469, 71 B.L.R. (4th) 57, where it was held that a claim with the “faintest chance of success” must be permitted to proceed to trial. I am of the view that the law has moved beyond the “faintest chance of success” test to the “reasonable prospect” test in Imperial Tobacco. Nevertheless, I agree with the Plaintiff that a Defendant on a Rule 21 motion faces a high threshold. Moreover, the proposition that the court must err on the side of permitting a novel but arguable claim to proceed, as suggested by Cameron J in Kovacs, was confirmed by the decision in Imperial Tobacco.

Fiduciary Duty

[32] In alleging the existence and a breach of a fiduciary duty, the pleading reveals some problems. It strikes me as confusing, cumbersome, and jumbled. The use of the word “excuse” in paragraph 35 was a poor choice. It does not properly serve the function of demonstrating clearly the cause of action alleged. However, by reading the phrase in the context of the paragraph and, in turn, reading the paragraph in the context of the entire claim, it becomes obvious that the allegation is simply that Shanks took advantage of the trust reposed in her by the nature of the relationship between nurse and patient to establish and advance an intimate relationship with the Plaintiff’s partner. This was to the detriment of the Plaintiff and therefore against her interests. It was for the benefit of the Defendant, Shanks. Moreover, it was counter-productive to the clearly defined goal of the treatment provided which was to promote the fertility and conception prospects of the Plaintiff and her partner as a couple, with the ultimate goal of the pair being able to start a family. It would be entirely open to a trial judge to find both the existence of a fiduciary relationship between the Plaintiff and Shanks, to define the duties flowing from that relationship, and to conclude that a breach has occurred. The use of the word “excuse” in paragraph 35 does confuse, but does not fatally obscure, this fundamental aspect of the pleading. Where a Defendant is alleged to use confidential personal information derived from the treatment of a patient as a means to further her own interests, it follows that the spectre of a breach of trust or fiduciary duty is raised. I agree with the Plaintiff that, when considered broadly and generously, the focus of the claim is on the medical context of the fertility treatment and the accompanying trust and reliance that formed part of it. This is sufficiently similar to the situation in Szarfer, which involved a fiduciary duty arising in the context of a solicitor-client relationship. In that case, the court stated the following:

In engaging in sexual intercourse with the plaintiff’s wife, the defendant was acting in his or her interest and to his personal benefit. Upon discovery of the affair, the client’s trust in the solicitor was destroyed. Such conduct vitiates trust, the essential element of a solicitor-client relationship…..I am satisfied that [the lawyer] used confidential information for his own purposes in order to obtain the delights and benefits of the affair (page 677).

[33] Viewed in this way, the wrong alleged is not the affair, but the breach of trust that accompanies any act of a fiduciary in furtherance of his own interests and contrary to the interests of the client. In my view, this would extend to the act of using information obtained in a fiduciary setting for purposes contrary to both the interests of the “client” and the purposes and goal of the treatment.

[34] I find that the fiduciary duty aspect of the claim can survive the plain and obvious test.

Breach of Contract

[35] I find that the breach of contract claim can also survive the plain and obvious test. The rudiments of a cause of action have been established throughout the claim, if somewhat disparately. The component parts of a cause of action can be found at paragraphs 9, 10, 11, 14 and 34. It is certainly possible to discern from the allegations when the contract was entered into, who the contract was between, the material terms of the contract, and the manner of the alleged breach. This is sufficient, in my view, to satisfy the test laid down in the case of Basdeo (Litigation Guardian of) v. University Health Network, at para 27. It might have been simpler to set out the various elements in a succession of paragraphs under a sub-heading with short, concise allegations of fact. Nevertheless, the pleading, when read liberally and across the breadth of its volume, contains sufficient facts which, if accepted, could lead a court to conclude that an object of the contract was to secure a psychological benefit for the Plaintiff and that she suffered a degree of mental suffering sufficient to warrant compensation (see Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, at para. 44).

Intrusion Upon Seclusion or Breach of Privacy

[36] In my view, the facts alleged at paragraph 35 of the pleading can be lined up with elements identified in the recent Court of Appeal decision in Jones v. Tsige. It is not plain and obvious to me that the claim would fail on the basis that Shanks, as a nurse, was entitled to access personal information. In considering the ultimate misuse made of the information, a trier of fact could conclude that the invasion of privacy was never authorized or permitted for the purposes which it served and, therefore, was not lawfully justified.

Conspiracy to Injure

[37] The allegations in support of conspiracy to injure are capable of supporting a cause of action. They are partially set out at paragraph 36 of the claim. One is then forced to scour the balance of the claim to find alleged acts done in furtherance of the conspiracy: Shanks and Stuart engaged in a secret affair (para. 19(i)) and the treatments continued while the pair kept the affair a secret (para. 19-22). Again, it would have been preferable for the pleading to set out the particular allegations and elements of the conspiracy in a concise and sequential fashion under a sub-heading. However, this is a matter of style rather than substance. There is case law to support the proposition that the failure to name all co-conspirators as defendants is not fatal: Fournier Leasing Company Ltd. v Mercedes-Benz Canada Inc., 2012 ONSC 2752. [2012] O.J. No. 2184.

Intentional Infliction of Mental Distress

[38] I agree with the Plaintiff that a trial judge would be in the best position to determine if the conduct of Shanks rises to the threshold level of extreme, flagrant, or outrageous, and whether it was calculated to produce harm. These allegations are adequately set out in the claim at paragraphs 20 and 32. On the question of whether Shanks desired to produce the consequences that followed from the act, or knew them to be substantially certain to follow, this is best left to the trier of fact. While the pleading specifically alleges that the traumatic break-up of her relationship with Stuart resulted in the deterioration of the Plaintiff’s mental/ physical condition and ultimate miscarriage, the consequences resulting out of the entirety of acts and events pleaded are sufficiently close in time, and sufficiently tied to the parties involved, to support that element of a reasonable cause of action in the tort of intentional infliction of mental distress. It is not plain and obvious that the plaintiff cannot succeed at trial on the facts pleaded; a cause of action has been made out.

Negligence and Negligent Infliction of Mental Distress

[39] I am satisfied that the Plaintiff has made out a cause of action under the rubric of this tort. Health professionals owe a duty of care to their patients. A standard of care will be applied to the acts and omissions of that professional. The Defendants argue that there can be no duty imposed on a health care professional not to engage in sexual relations with a patient’s spouse both because of public policy reasons and because the Supreme Court in Norberg held that this cannot serve as the basis for liability in negligence. Moreover, they argue that there is nothing pleaded about the professional performance of Shanks. Any duty she owed was as a professional in the context of the treatment provided.

[40] I find that Szarfer is good authority for the proposition that a professional may be found to be in breach of her duty by engaging in sexual relations with a client’s spouse. Such a breach may constitute professional negligence because it amounts to an unreasonable exercise in judgement to the detriment of the interest of a client. Where a medical professional provides services and advice on delicate and personal issues such as fertility, family planning, and conception, it can certainly be argued that a unique standard of care may be imposed. That question is best left to a trier of fact. Context is critical and in this case the context in which the alleged act took place will be one wherein a wrongdoer’s actions are judged on a standard particular to that context.

ALLEGATIONS AGAINST DR P. AND THE CLINIC

Vicarious Liability

[41] It follows that if it is not plain and obvious that the Plaintiff’s claim for breach of fiduciary must fail, there exists the possibility of vicarious liability attaching to the employer. The aspect of vicarious liability which demands a finding that the venue or situation of employment contributed to, or materially enhanced the risk of the tort occurring, should best be left to the trier of fact. The test laid down in Bazley cannot be properly undertaken without some investigation done into the nexus or connection between the employer’s enterprise and the wrong complained of. At this stage, the pleading is sufficient to disclose a reasonable cause of action. It is not plain and obvious that Dr. P and the clinic would escape a finding of vicarious liability.

Direct Liability Against Dr. P and the Clinic

Breach of Confidence

[42] The Plaintiff points to paragraph 40 as containing sufficient facts to support a reasonable cause of action for the purposes of a Rule 21 motion. I agree. A careful reading of the allegation reveals that it was the revelation to Shanks of the privileged and confidential discussions between Dr. P and the Plaintiff that is at issue. This might include, but not be limited to, the actual fact of the alleged affair. It might also include confidential information pertaining to the impact of the affair upon the Plaintiff’s emotional state and her treatment. The allegation goes on to state that this confidential information was used for purposes which were detrimental to the interests of a party to those discussions. Courts should view “detriment” as a broad concept which could include emotional or psychological distress: Cadbury Schweppes Inc. v. FBI Foods Ltd., 1999 705 (SCC), [1999] 1 S.C.R. 142. As well, the allegation that these privileged details were disclosed to other doctors and staff was not limited to those working with the Plaintiff and Stuart. Finally, there is the possibility that the breach of confidence pleaded, even if it were not a direct cause of the Plaintiff’s compensatory damages, might well attract an award of punitive or exemplary damages.

Failure to Investigate and Take Action on Receiving Leung’s Allegations

[43] I agree with the Defendants that this allegation discloses no reasonable cause of action. Any action of this nature that the Defendant employer failed to take would have post-dated the alleged acts and omissions which caused the injury. No damages can flow out of a failure by Dr. P or the clinic to take action in the aftermath of the discovery of the affair. Moreover, I adopt and rely on the statement in Carten that a failure to investigate a complaint is not a cause of action known to law. It is plain and obvious that the Plaintiff cannot succeed in this regard. Accordingly, the last sentence in paragraph 41 of the pleading, which reads, “Moreover the Employer Defendants failed to take any steps to investigate the matter, to discipline Ms. Shanks, and to report Ms. Shanks to the College after Po advised the Employer Defendant of Ms. Shanks’ misconduct”, is hereby struck. Applying the same reasoning, the allegations in paragraph 42(b), (c), (e) are also struck. No damages can flow from this alleged breach of fiduciary duty after the fact.

Negligence in the Hiring, Training and Supervising of Shanks

[44] In paragraphs 41 and 42, the pleading commingles allegations under this heading with allegations of failure to investigate, discipline, report, or terminate the employment of Shanks. This is irregular, distracting, and confusing. Nevertheless, the allegations in respect of hiring, training, and supervising an employee can survive the plain and obvious test. Sub-paragraphs 42 (f), (g) and (h) are sufficient for pleading purposes. Details of the training, supervision, and monitoring would be uniquely in the knowledge of the Defendants. The allegations in the pleading sufficiently define the overall obligations of an employer; the fine detail of what was done or not done can be properly fleshed out through production, discovery, and admissions. I was referred to no authority which would bar this cause of action at law. The allegations in this regard do not seek to impose a duty of care on employers to monitor the private lives of their staff; rather, they refer to professional duties and conflicts of interest, which are relevant in the employment and clinical setting.

CONCLUSION: RULE 21 MOTION

[45] Overall, I am satisfied that the facts pleaded, when taken as a whole, disclose several reasonable causes of action. The Defendants maintain the right to demand particulars, conduct examinations for discovery, seek summary judgment, and generally defend the claim throughout on its merits. Ultimately, they will have the opportunity to argue that the facts do not warrant the evidentiary findings and legal conclusions sought by the Plaintiff. It is not the role of the court to rewrite a pleading, nor to provide suggestions of what a pleading should contain. Nor is it the role of a judge in a Rule 21 motion to comment on what evidence might be called, what inferences should be drawn or what findings of fact and conclusions of law should be made. That is the role of the trial judge. The threads of this pleading, jangling and discordant as they are in portions of it, are still capable of being pieced together such that it is not plain and obvious that the pleading discloses no reasonable cause of action, or that the Plaintiff has no reasonable prospect of success at trial.

MOTION TO STRIKE UNDER RULE 25.11

[46] The Defendant Shanks, only, moves for an order striking the final sentence of paragraph 12 of the pleading. The entire paragraph is reproduced below with the impugned sentence in italics:

Between 2007 and 2010, after undergoing numerous tests and examinations at the Clinic to determine the causes of their infertility and their general health, Po and Stuart received infertility treatment at the Clinic by Dr. Pyselman and Ms. Shanks. In or around December 2007, the couple was first introduced to and began treatment with Ms. Shanks. At that time, Ms. Shanks was married with two (2) children.

[47] The Defendant Shanks argues that the sentence in question is irrelevant and inserted only for colour. The sentence does not add to the claim; the allegation has no role to play in advancing any of the causes of action. As such, it is scandalous and vexatious. The Defendant also raises the concern that, since questions at discovery are typically framed within the four corners of the pleading, the existence of the allegation will lead to unnecessary and invasive inquiries into Shanks’ private life.

[48] The Plaintiff submits that the allegation in question is a necessary part of the narrative. She adds that Shanks’ marital status is relevant to the issue of the reasonableness of the Plaintiff in reposing a significant degree of trust and confidence in Shanks.

ANALYSIS

[49] In my view, the sentence under challenge is entirely divorced from any of the underlying causes of action in the statement of claim. If the allegation belongs anywhere, it would be in either of paragraphs 16 or 18. But it does not belong. If it is narrative, then it is clearly irrelevant narrative, intended to add colour to the pleading. I find that the allegation cannot possibly advance the claim one iota. The pleading contains sufficient detail to define the issue of whether a fiduciary duty arose out of a nurse-patient relationship; the marital and familial situation of the alleged fiduciary can add nothing of utility to the landscape in which that legal issue needs to be explored. Pleadings that are irrelevant or inserted only for colour should be struck out as scandalous: Canada (Royal Canadian Mounted Police) v. Canada (Attorney General), [2007] O.J. No. 4762 (S.C.), at para. 19. The sentence found in paragraph 12 which reads, “At that time, Ms. Shanks was married with two (2) children” is therefore struck, without leave to amend the statement of claim.

DISPOSITION

[50] For the reasons set out above, the final sentence of paragraph 12 of the pleading is struck. The final sentence in paragraph 41 of the pleading is struck. Sub-paragraphs 42 (b), (c) and (e) are struck. The Plaintiff is granted leave to amend the pleading to reflect this order. The Plaintiff is not granted leave to rephrase or wordsmith those allegations that are struck by my order. I am of the view that no amount of rephrasing is capable of imbuing these allegations with the qualities necessary to disclose a reasonable cause of action. The balance of the motion of the Defendants is dismissed.

COSTS

[51] There has been divided success on the motion. If the parties are unable to agree on the issue of costs, then I direct the parties to make arrangements through the trial co-ordinator at Newmarket to take out an appointment to make submissions to the court on the issue.

McCARTHY J.

Date: July 24, 2013