COURT FILE NO.: CV-12-54679
DATE: 2013/11/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ibrahim Said
Plaintiff
– and –
University of Ottawa, Jacques Bradwejn, Michael Vassilyadi, Melissa Forbes, Linda Wynne
Defendants
Ibrahim Said, Self‑Represented
Sally Gomery and Karen Jensen, Counsel for the Defendants
HEARD: September 26, 2013 (Ottawa)
REASONS FOR DECISION
BEAUDOIN J.
[1] The Defendants move under Rules 21.01(3)(d) and 25.11(c) of the Ontario Rules of Civil Procedure to dismiss this action as an abuse of process. In the alternative, the Defendants seek to strike the Statement of Claim or portions of it under Rule 21.01(1)(b) without leave to amend because it fails to disclose a reasonable cause of action.
Preliminary Issue
[2] The Defendants seek to strike the affidavit of Dr. Said dated March 28, 2013. This affidavit was filed in response to the Defendants’ notice of motion. The Defendants argue that the affidavit should be struck without leave to amend because:
(a) The affidavit is inadmissible because the jurat was improperly executed;
(b) The affidavit contains material that is inflammatory, scandalous, vexatious and/or an abuse of process of the courts; and
(c) The affidavit contains legal argument.
[3] The Affidavit in question was not sworn or affirmed before a person authorized to administer oaths or affirmations. Instead, on the line labelled “A Commissioner of Oath, etc.” Dr. Said has placed a personal seal in Hebrew identifying himself as an anaesthesiologist. A second version of the same affidavit was filed by Dr. Said and it contains a different jurat but it is still unclear whether or not the affidavit was sworn or affirmed before a person authorized to administer oaths or affirmations. This defect could be cured by permitting Dr. Said to take the stand and affirm the contents of his affidavit. There are, nevertheless, significant problems with that content.
[4] Rule 25.11(b) and (c) provide:
25.11 The court may strike out or expunge all or part of a pleading or other document [including an affidavit], with or without leave to amend, on the ground that the pleading or other document,
(a) …
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court. R.R.O. 1990, Reg. 194, r. 25.11.
[5] The Divisional Court has held that a document is scandalous if it contains offensive allegations made for the purpose of prejudicing the opposite party, allegations which are unbecoming for the Court to hear, contain unnecessarily inflammatory rhetoric or allegations bearing cruelly on the character of an individual.[^1]
[6] The Said affidavit contains numerous inflammatory facts of a personal nature against individual Defendants. I cite these examples:
(a) Dr. Said describes Dr. Bradwejn as a “tyrannical and oppressive decision‑maker” with a “low professional standard”. He describes Dr. Wynne as a “hypocrite” and her actions as “ignorant, arrogant and ‘evil’ ”.
(b) In a particularly caustic passage, Dr. Said states that Dr. Forbes, who made a sexual harassment complaint against him, “should be congratulated for having the courage to think, imagine, believe, want, wish, dream and desire that Dr. Said would want to have a relationship with her”.
[7] Such statements are scandalous and should be struck. The bulk of the Said affidavit contains legal argument. It is replete with references to case law with accompanying legal conclusions. These arguments properly belong in a factum and not in an affidavit.
[8] In the end, I have disregarded the bulk of Dr. Said’s affidavit and since he chose not to file a factum, I have considered those parts of his affidavit that contain legal argument as a substitute for that document. Dr. Said indicated that he had no time to prepare a factum as he had just arrived from Israel to attend this motion. The scheduling of this motion was the subject of two timetable case conferences before Master McLeod and he had ample time to prepare his factum. At the end of the Defendants’ argument, Dr. Said claimed he was too tired to present any oral argument in reply but that he would rely on the arguments set out in his affidavit. In the end, I strike paras. 11, 13, 18, 19, 20, 27, 28, 29, 31, 35, 36, 37, 38, 39, 47, 48, 52, 53, 54, 55, 56, 62, 63, 64, 65, 68, 69, 80, 81, 82, 93, 97, 98, 102, 103, 114, 115, 119, 120, 121, 125, 126, 131, 133, 134, 135, 139, 140, 142, 143, 144 and 145 from his affidavit as being scandalous and vexatious and an abuse of the court’s process.
Factual Background
[9] The Plaintiff, Dr. Said, was a paediatric anaesthetist at the Children’s Hospital of Eastern Ontario (“CHEO”) and Assistant Professor at the Faculty of Medicine at the Defendant University of Ottawa (“University”). As a result of his appointment to the faculty, Dr. Said was subject to University policies including:
(a) The Standards and Procedure for Promotion of Clinical Faculty, Faculty of Medicine, University of Ottawa;
(b) Policy 67a: Policy on sexual harassment applicable to all members of the University community except when the respondent is an APUO member (“Policy 67a”).
[10] The Defendant Jacques Bradwejn is the Dean of the University’s faculty of medicine. The Defendants Michael Vassilyadi and Linda Wynne hold positions in that faculty. The Defendant Melissa Forbes was, at the time relevant to this claim, a student enrolled in the faculty.
[11] In March 2008, Dr. Forbes submitted a sexual harassment complaint against Dr. Said. The University of Ottawa investigated the complaint in accordance with Policy 67a. Dr. Bradwejn, in his role as the Dean, found that Dr. Said had sexually harassed Dr. Forbes. Dr. Bradwejn also found that Dr. Said led Dr. Forbes to believe that resisting his advances could jeopardize her performance evaluation. Dr. Bradwejn forwarded his report to the Administrative Committee, including his recommendation that the faculty of medicine remove Dr. Said’s appointment as an Assistant Professor. The Administrative Committee did not remove Dr. Said’s appointment as an Assistant Professor but placed Dr. Said on one year probation commencing November 11, 2009.
[12] Dr. Said did not bring an application for judicial review to either challenge the finding that he had sexually harassed Dr. Forbes or the decision to place him on probation.
[13] In August 2009, Dr. Said applied for promotion to Associate Professor. The procedure for the consideration for promotion and the requirements for promotion are set out in the Standards and Procedures for Promotion:
(a) A faculty member initiates the application for promotion to the Dean of the faculty of medicine and the Chair of his or her department. The Chair of the Department and the relevant Departmental Teaching Personnel Committee evaluate the application and forward their recommendations to the Dean and the Clinical Teaching Personnel Committee (the “CTPC”). The CTPC is composed of faculty members, with the Dean as the non‑voting chair.
(b) The CTPC considers the application and forwards its recommendation to the Joint Committee through the Dean. The Dean is also required to provide the Joint Committee with his own recommendation. If the CTPC makes an unfavourable recommendation, the applicant is given an opportunity to provide comments to the Dean before he makes his recommendation.
(c) The Joint Committee then meets and makes its decision on promotion. The Joint Committee has the sole authority to decide this issue whether or not to promote a faculty member.
[14] The CTPC met to consider Dr. Said’s application for academic promotion in January 2010. At that time, Dr. Said was still on probation following the finding that he had sexually harassed a medical resident. The CTPC voted unanimously to make a negative recommendation. The CTPC met again in April 2010 to hear submissions from Dr. Said. The CTPC again voted unanimously to make a negative recommendation. The Joint Committee met on June 15, 2010 and denied Dr. Said’s application for promotion because he did not meet the professional standards for promotion under the prescribed Standards and Procedures.
[15] In October 2010, Dr. Said commenced an application for judicial review of the Joint Committee’s decision. Dr. Said alleged that: (1) the Joint Committee’s decision did not provide sufficient reasons; (2) Dr. Bradwejn erred in concluding that Dr. Said sexually harassed Dr. Forbes; (3) the Joint Committee failed to consider whether Dr. Said otherwise met the required standards for promotion; and (4) Dr. Bradwejn’s involvement in the process raised a reasonable apprehension of bias.
[16] In Reasons released in December 2011, the Divisional Court agreed that Dr. Bradwejn’s involvement in both the investigation of the sexual harassment complaint and his participation in the CTPC hearing that resulted in the negative recommendation gave rise to a reasonable apprehension of bias. Given its finding on the bias issue, the court did not go on to consider the other grounds, but simply set aside the Joint Committee’s decision.
[17] In May 2012, Dr. Said re‑applied for promotion to the rank of Associate Professor pursuant to the order of the Divisional Court. On October 17, 2012, the CTPC met (without the involvement of Dr. Bradwejn) to consider Dr. Said’s current application for promotion. The CTPC again voted unanimously to make a negative recommendation. This time, the CTPC concluded that the “total scholarly output (set out in Dr. Said’s application) is not adequate to support promotion to the level of Associate Professor”.
[18] The Joint Committee had not yet met to consider Dr. Said’s application for promotion by the time Dr. Said commenced this action and the Defendants had served their Notice of Motion. The Joint Committee subsequently met and decided to deny Dr. Said’s application for promotion. As of this date, Dr. Said has not commenced an application for judicial review of the Joint Committee’s decision.
Does this action constitute an abuse of process?
[19] In this action, Dr. Said is seeking a reversal of the University’s decision with respect to his application for promotion. Specifically, Dr. Said is seeking in para. 1:
A declaration that the CTPC decision taken on October 17, 2012 falls short of any sign of good faith and as such should be quashed and a promotion to the rank of Associate Professor at the faculty of medicine be granted.
[20] At para. 5 of the Statement of Claim, he seeks:
A declaration that the conduct expressed by Dr. Said toward Dr. Forbes is not sexual harassment.
[21] Dr. Said is also seeking damages of $20.5 million from the University and $30.1 million from the individual Defendants, including $5.6 million from Dr. Forbes. Dr. Said bases his claim for damages on numerous causes of action, including alleged breaches of his rights under the Charter of Rights and Freedoms; a claim for inducing breach of contract against the University; claim for conspiracy to injure against Dr. Wynne and Dr. Forbes; a claim for defamation against the University, Dr. Bradwejn, Dr. Wynne and Dr. Forbes; a claim for negligence against Dr. Bradwejn, Dr. Vassilyadi, Dr. Wynne and Dr. Forbes; a claim for intimidation against Dr. Bradwejn; and a claim for discrimination against Dr. Wynne.
[22] The Defendants say that although Dr. Said has based his claim for damages on numerous causes of action, his fundamental complaint is that the Defendants violated their own policies and acted improperly in connection with the University’s sexual harassment and academic promotion decisions. They argue that this action is an indirect attempt to appeal internal academic decisions that are properly the subject of judicial review.
[23] They refer to the Divisional Court’s previous decision which granted Dr. Said the remedy he sought. The Defendants submit that this Court should not permit Dr. Said to use the court’s process to circumvent the appeal and review process to which academic promotion decisions by the University are subject, or to re‑litigate matters already subject to final determination within such processes.
[24] Rule 21.01(3)(d) of the Rules of Civil Procedure permits the court to dismiss an action on the ground that it constitutes an abuse of process.[^2] Similarly, Rule 25.11(c) permits the court to strike a pleading in its entirety on the ground that the pleading is an abuse of process.
[25] Abuse of process concerns have frequently emerged in civil actions concerning universities’ internal academic decisions, whether having to do with the imposition of discipline of a student or the denial of promotion of a faculty member. Case law demonstrates that courts in Ontario and across Canada have been reluctant to interfere with universities’ internal academic decisions. They have held that such disputes are generally a matter to be resolved by the universities themselves, subject to judicial review. This case law was canvassed extensively by Justice Perell in Dawson v. University of Toronto, 2007 4311 (ON SC), [2007] O.J. No. 591 at paras. 18-19 (S.C.J.) aff’d 2007 ONCA 975:
18 Authorities such are Wong v. University of Toronto, 1990 8102 (ON SC), [1989] O.J. No. 979 (Div. Ct.), affd. [1992] O.J. No. 3608 (C.A.); Zabo v. University of Ottawa, [2004] O.J. No. 1499 (S.C.J), affd. 2005 22452 (ON CA), [2005] O.J. No. 2664 (C.A.); Warraich v. University of Manitoba, 2003 MBCA 58, [2003] M.J. No. 138 (C.A.); Re Polton and Governing Council of the University of Toronto (1976), 1975 709 (ON SC), 8 O.R. (2d) 749 (Div. Ct.); Derakhshan v. University of Toronto, [2000] O.J. No. 1463 (Sm. Clm. Ct.) establish that apart from a judicial review function about procedural fairness and natural justice, the court does not have jurisdiction over matters of an academic nature. Where the essential character of the dispute is of an academic nature, the dispute remains exclusively a matter to be dealt with by the school's own procedures provided that the school does not breach the principles of natural justice.
19 … [The plaintiff]’s dispute is a disagreement about academic matters associated with the completion of her doctoral program and according to the authorities, these matters of university affairs are not the subject matter of breach of contract or tort claims.
[26] In Dawson, the plaintiff had lost an internal appeal of the university’s decision not to reinstate her into a doctoral program. Instead of bringing an application for judicial review, the plaintiff brought a claim for damages, negligence, mental distress and breach of contract. The court dismissed the claim as disclosing no reasonable cause of action. Justice Perell held that the essential character of the dispute was academic and that such disputes should be dealt with exclusively by the university’s own procedures, subject to the principles of natural justice.
[27] In upholding an appeal of the dismissal, the Court of Appeal stated as follows:
The appellant argues that her claim against Dr. Ten Cate for negligent advice represents an independent tort for which the university should be liable for damages and which she should be able to pursue independently of her academic dispute with the university. We do not agree.
In our view, the appellant's claim against Dr. Ten Cate is part and parcel of her academic dispute with the university and the particulars of her "negligence" claim demonstrate that this is so.
[28] In Gauthier c. Saint-Germain, 2010 ONCA 309, 264 O.A.C. 336, the Court of Appeal confirmed that an action may be dismissed or a statement of claim struck where it is little more than an indirect attempt to appeal an internal academic decision. The court confirmed that courts do have the necessary jurisdiction to adjudicate disputes over academic discipline decisions, but decline to do so where a student is attempting to re‑litigate complaints that have already been subject to an internal appeal process. The court wrote at para. 41:
41 Le principe qui se dégage de Dawson n'est donc pas que la cour n'est pas habilitée à trancher des différends de nature scolaire, mais plutôt que la demanderesse dans cette cause, s'étant vue refuser son appel interne par l'université, ne pouvait reformuler ce qui était essentiellement la même plainte devant les tribunaux en prétendant, toutefois, qu'elle se fondait cette fois sur un délit civil.
[29] In Turner v. York University, 2011 ONSC 6151, the court clarified that pleading the elements of a civil cause of action in an academic context is not sufficient to resist a motion to dismiss a claim or strike a statement of claim. In a very similar case, namely, Aba-Alkhail v. University of Ottawa, 2010 ONSC 2385, the plaintiff, a medical resident, brought an action for damages against the university and faculty members due to the fact that the plaintiff was terminated and then reinstated to the cardiac surgery program. The plaintiff alleged that the university failed to follow its own policies and procedures regarding academic probation and remediation and its own policies and procedures regarding appeals on such matters. The court struck out the statement of claim without leave to amend, finding that the subject‑matter of the litigation was within the university’s discretion and could only be dealt with on judicial review.
[30] The same medical resident subsequently brought a second claim[^3] along with two other medical residents against the university and various faculty members. The university brought a motion to strike the statement of claim as an abuse of process. While the plaintiffs in that action advanced a number of causes of action, the court found that the multiple claims in that case were simply “window dressing” and that the underlying complaint of each plaintiff was that they were not promoted in their programs or were dismissed in their programs. The court noted that the plaintiffs had already either brought unsuccessful applications for judicial review of these decisions or declined to seek judicial review. The court dismissed the action as an abuse of process because the plaintiffs had not shown that the university had exceeded its broad discretion and that the plaintiffs could only be successful if the court made findings of fact that departed from those already made in the university’s internal processes and by the Divisional Court.
[31] The Court of Appeal has affirmed that a civil claim can be barred if it is an attempt to re‑litigate issues that were decided or could have been decided in the regulatory process, even if the plaintiff could not have obtained a damages award through these other proceedings. In Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, the court held at para. 88:
88 Moreover, I do not consider the fact that the HSARB [Health Services Appeal and Review Board] does not have jurisdiction to award damages to be dispositive of whether the regulatory proceedings can operate as a bar to the civil claim or parts of it. It may be open to a court to bar the re-litigation of factual issues if it concludes that those issues were finally determined or could have been determined in the regulatory proceedings in which Dr. Lipsitz participated.
[32] I conclude that the various claims that Dr. Said has put forward in the statement of claim are just “window dressing” as alleged by the Defendants. Dr. Said’s explicit goal in this action is to secure an appointment as an Associate Professor, in part and parcel by clearing his record for any past findings of sexual harassment. These can be seen in the allegations set out in paras. 85 to 94 of the statement of claim, in particular, the allegations that:
• The University failed to follow the Standards and Procedures for promotion in the course of processing Dr. Said’s application for academic promotion;
• The University unfairly denied Dr. Said a promotion;
• The Joint Committee’s decision on June 15, 2009 was unjust; and
• The CTPC decision of October 17, 2012 is unjustified, unfair, and is nothing more than an exercise to please the biased Dean and the University’s wish to see Dr. Said out of the University.
[33] Each of these allegations is the subject of an application for judicial review. Dr. Said himself has already brought an application for judicial review to challenge the University’s decision regarding his application for promotion, including the allegation that the process was biased because of the involvement of Dr. Bradwejn. Dr. Said was successful in the Divisional Court to set aside the Joint Committee’s decision to deny him promotion in 2010. The individual claims that Dr. Said has now made against a number of faculty members and a former medical resident all concern their involvement in the very decisions that Dr. Said is seeking to overturn in this action. I agree with the Defendants’ submissions that these alleged wrongs do not give rise to private causes of action against the individual Defendants, Dr. Bradwejn, Dr. Vassilyadi and Dr. Wynne since they were all acting within their discretion and within their obligations as officers and employees of the University in respect to academic matters. In addition, the case law is clear that no private cause of action can lie against Dr. Forbes for making a sexual harassment complaint in quasi‑judicial proceedings.[^4]
[34] The University’s decision not to promote Dr. Said to the position of Associate Professor is at the core of the University’s academic discretion. Dr. Said’s allegations in the statement of claim are in pith and substance academic matters and the claims against the various Defendants are part and parcel of the academic disputes.
[35] In a judicial review application of the Joint Committee’s second decision, Dr. Said could ask the Divisional Court to consider whether or not the University’s decision not to grant him an academic promotion was unreasonable or procedurally unfair. Through this action, Dr. Said is asking this Court to make the promotion decision for the University.
[36] I agree that Dr. Said is not entitled to use the process of this Court by attempting to re‑litigate the same facts and allegations raised in the University’s internal processes in his application for judicial review with respect to the Joint Committee’s first decision and in the application he may make with respect to the Joint Committee’s second decision. This action is an abuse of process and should be struck on that basis.
Failure to disclose a reasonable cause of action
[37] This Court can also strike out a statement of claim for failing to disclose a reasonable cause of action under Rule 21.01(1)(b). As set out in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at para. 34, the test pursuant to Rule 21.01(1)(b) is whether it is “plain and obvious” that the statement of claim or part of it discloses no reasonable cause of action, assuming that the facts in the statement of claim to be true. The Court should strike the claim if the allegations do not give rise to a recognized cause of action or if the plaintiff has not pleaded the necessary elements of the cause of action.
[38] The Defendants submit that this attempt to re‑litigate matters within the academic discretion of the University and subject to the overriding supervision of the Divisional Court is an abuse of process. In the alternative, they ask that the statement of claim be struck because the Plaintiff has not pleaded material facts to ground the causes of action plead against the Defendant faculty members and, in some circumstances, the individual Defendants are protected by absolute immunity.
[39] Dr. Said has not pleaded material facts that would permit the court to find that the alleged wrongs committed by the Defendant faculty members, Dr. Bradwejn, Dr. Vassilyadi and Dr. Wynne, were committed in their personal capacity and not in their capacity as employees or officers of the University. In Lobo v. Carleton University, 2012 ONSC 254, [2012] O.J. No. 63, aff’d 2012 ONCA, Justice Roccamo considered a claim where a plaintiff sought to hold the officers or employees of a university liable for allegedly tortious conduct. She stated this at paras. 34 and 35:
ScotiaMcLeod Inc. v. Peoples Jewellers Limited (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 40, remains the seminal case cited for the criteria that need to be met to apportion personal liability. The criteria that must be shown are that: (1) the actions of the employees are themselves tortious, or (2) the actions of employees exhibit a separate identity or interest from that of the corporation, or employer, so as to make the act of the conduct complained of their own. The holding in ScotiaMcLeod departs from a long line of cases in which the conduct of employees and officers of companies have been examined for personal liability for conduct ostensibly carried out under the corporate name. All of these cases are fact specific. However, in the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers, the instances in which personal liability is found are rare.
In my opinion, the amended pleading before me does little more than "window dress" the suggestion of a separate identity or interest of the named Defendants from that of CU. There is no allegation of fraud, deceit, dishonesty or true want of authority. The new allegations do not cross into the category of rare cases where personal liability would be found. These claims are, therefore, struck without leave to amend.
[40] The allegations of probable causes of action in the statement of claim are based on decisions made by the Defendant faculty members within their ostensible authority as officers or employees of the University. In fact, Dr. Said specifically pleads as much in para. 89 where he claims that the University “permitted” Dr. Bradwejn and Dr. Wynne to commit the allegedly wrongful acts.
[41] As for Dr. Forbes, the jurisprudence is clear that a plaintiff does not have a probable cause of action against a complainant in a quasi‑judicial proceeding and this specifically targets Dr. Said’s claim for damages against Dr. Forbes in defamation, conspiracy to injure and negligence. The factual basis for all these claims is that Dr. Forbes made a “wreckless and baseless complaint”. All these claims against Dr. Forbes are grounded in the alleged defamation that is based on her complaint made in the course of a quasi‑judicial proceeding under Policy 67(a). The defence of absolute privilege applies even if the statements at issue were made with malice or without justification (which the Defendants denied). As set out by the Court of Appeal in Guergis v. Novak, 2013 ONCA 449, 38 O.A.C. 96 at paras. 84 and 93, a plaintiff cannot plead subsidiary torts based on the same alleged acts as the claim of defamation in order to evade the defence of absolute privilege.
[42] Accordingly, I strike the entire statement of claim for failure to disclose reasonable cause of action against the University or any of the individual Defendants. Although it is not necessary for me to decide the issue, I will deal with the further alternative submission of the Defendants that the court should strike the claims made in the statement of claim because Dr. Said has failed to or is unable to plead the requisite elements of the various causes of action. In my view, this further demonstrates that these additional claims are simply an attempt to “window dress” the pith and substance of his complaint against the University.
(a) Claim for inducing breach of contract against the University
[43] Dr. Said had a contract with CHEO and that the University attempted to cause a breach of contract. He does not plead that it actually breached its contract with him. Dr. Said merely pleads because he was denied a promotion; he lost his licence to practise medicine in Ontario and consequently lost his privileges at CHEO.
(a) Claim for conspiracy to injure against Dr. Wynne and Dr. Forbes
[44] Dr. Said does not plead that Dr. Wynne or Dr. Forbes entered into an agreement with each other or anyone else to perform specific tasks to injure Dr. Said. In fact, Dr. Said does not plead that Dr. Forbes intended to injure him, instead alleges that Dr. Forbes was misguided. In short, Dr. Said has not pleaded requisite elements to sustain a cause of action in a conspiracy to injure. Moreover, Drs. Wynne and Forbes are protected by absolute immunity to the extent that this allegation concerns the sexual harassment complaint levelled against Dr. Said.
(b) Claim for defamation against the University, Dr. Bradwejn, Dr. Wynne and Dr. Forbes
[45] These allegations are based on the sexual harassment investigation or findings under Policy 67a and are protected by absolute privilege.
(c) Claim for Charter breaches against the University, Dr. Bradwejn and Dr. Wynne
[46] Dr. Said alleges that these Defendants violated his rights under s. 15 of the Canadian Charter of Rights and Freedoms. It is a basic principle of constitutional right since the Charter only applies to “government”. In Lobo at paras. 6-21, the court held that universities are not “government” and to be found liable for a breach of a Charter right, it must be implementing “a particular activity that can be ascribed to government” for the Charter to apply. Dr. Said has not pleaded any material facts to establish that the University or any of the individual Defendants were implementing any government policy.
(d) Claim for negligence against Dr. Bradwejn, Dr. Vassilyadi, Dr. Wynne and Dr. Forbes
[47] While Dr. Said makes these claims in negligence, he has alleged in the statement of claim that the actions of Dr. Bradwejn, Dr. Vassilyadi, Dr. Wynne and Dr. Forbes with respect to the sexual harassment investigation and the academic promotion were, in fact, intentional. He has not made an alternative pleading that the faculty members’ actions were unintentional past the bulk pleadings that they were negligent. Dr. Said has not, accordingly, made out a reasonable cause of action in negligence against any party.
(e) Claim for intimidation against Dr. Bradwejn
[48] The requirements for the tort of intimidation were set in Metz v. Tremblay‑Hall, 2996 34443 at paras. 23-34 (ON SC). In order to establish a claim of intimidation, Dr. Said has to plead that Dr. Bradwejn, (1) threatened, (2) to do something unlawful, (3) unless he adopted a course of conduct suggested by Dr. Bradwejn nor that (4) he submitted to the threat by (5) doing or refraining from doing something he was entitled to.
(f) Claim for discrimination against Dr. Wynne
[49] The courts do not recognize an independent tort of discrimination.[^5]
(g) The limitation period
[50] Finally, Dr. Said’s claims against Dr. Wynne and Dr. Forbes are time‑barred by the expiration of the limitation period under the Limitations Act 2002, S.O. 2002, c. 24, Sched. B. All of the claims of Dr. Said against Dr. Wynne and Dr. Forbes are related to Dr. Forbes’ complaint of sexual harassment against Dr. Said. These complaints were made on March 18, 2009. Dr. Said pleads that he obtained a copy of Dr. Forbes’ complaint on March 23, 2009. The sexual harassment investigation was concluded and the result communicated to Dr. Said by November 29, 2009. As of that date at the latest, Dr. Said should have been aware of any potential causes of action that he had as a result of Dr. Wynne and Dr. Forbes participating in the sexual harassment investigation.
[51] For all of the above reasons, I strike these claims without leave to amend because Dr. Said has failed to plead the requisite elements of these causes of action. The parties are to make their brief written submissions with respect to costs of this motion within 20 days of the date of this decision.
Mr. Justice Robert N. Beaudoin
Released: November 20, 2013
COURT FILE NO.: CV-12-54679
DATE: 2013/11/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ibrahim Said
Plaintiff
– and –
University of Ottawa, Jacques Bradwejn, Michael Vassilyadi, Melissa Forbes, Linda Wynne
Defendants
REASONS FOR DECISION
Beaudoin J.
Released: November 20, 2013
[^1]: Ontario (Ministry of Natural Resources) v. Ontario Federation of Anglers and Hunters, 2001 Carswell 620 (WL Can) at para. 42 (SCJ), aff’d [2001] O.J. No. 5320 (Div. Ct).
[^2]: (3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (3).
[^3]: Aba-Alkhail v. University of Ottawa, 2013 ONSC 2127.
[^4]: Byrne v. Maas, 2007 49483 at paras. 5-8 (ON SC), Satkunan v. Gnanatheepam, 2012 44948 at paras. 13-14 (ON SC), Cimolai v. Hall et al., 2004 BCSC 153, aff’d 2007 BCCA 225.
[^5]: Jaffer v. York University, 2010 ONCA 654 at paras. 37-38.