ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-0264

DATE: 20140108

BETWEEN:

RODERICK CATFORD
Plaintiff

– and –

ERIKA ADELE CATFORD
Defendant

The Plaintiff, Self-Represented

M. Miller, for the Defendant

HEARD: January 3, 2014

HEALEY J.

Nature of the Motion

[1] This is a motion brought by the defendant pursuant to Rule 21 to strike out claims made against her, including interference with inheritance, conspiracy, alienation of affection, intentional infliction of mental suffering and negligence.

[2] The moving party also seeks an order expunging five paragraphs of the claim pursuant to Rule 25.11 on the grounds that their content is scandalous, frivolous and vexatious.

Claim in Court File No. CV-11-0642

[3] The moving party is the plaintiff’s niece, the daughter of his brother Peter Catford.

[4] The plaintiff commenced a similar claim in 2011 against his brother, his sister-in-law Ellen Catford, and his daughter Jane Catford. In that claim he sought damages for defamation, intentional infliction of mental suffering, fraud, deceit, conspiracy, intentional interference with economic relations, tortious interference with inheritance rights and breach of fiduciary duty.

[5] On a motion for summary judgment, this court ordered that only the claim for defamation could continue, as there was no evidence to support the other claims. The plaintiff appealed on the claim of mental suffering only, and the dismissal was upheld by the Court of Appeal Catford v. Catford, 2013 ONCA 57.

[6] The two claims are largely based on the same allegations which boil down to this: Jane and her father became estranged for reasons that are in dispute. Jane eventually came into the care of her father’s family, being her uncle and aunt, Peter and Ellen Catford, and her cousin, Erika Catford. Those family members then conspired to further alienate Jane from her father by spreading untruths about the reasons for the Jane’s behaviour, his treatment of Jane, and his character. These untruths were also told to the plaintiff’s mother, and adversely affected his relationship with her as well. In their essence, both are defamation actions.

The Law

[7] Rule 21.01(1)(b) provides that a party may move before a judge 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.

[8] As the rule provides that no evidence is admissible on this motion, I am disregarding the affidavits filed by both parties.

[9] The leading case to interpret Rule 21.01(1)(b) is Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, where the court articulated the test to be applied as follows, at p. 980:

…assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff’s claim be struck out under Rule 19(24)(a).

[10] Accordingly, the question to be answered on this motion is whether any of the plaintiff’s claims disclose a reasonable cause of action, or whether it is “plain and obvious” that the claims cannot possibly succeed.

[11] Each of the plaintiff’s claims will be examined in turn.

Special Damages in the amount of $670,000 or such other sum as may represent one-third of the Catford family estate – Paras. 1(c) and 21

[12] The fact pled in support of the claim for special compensation is that the plaintiff’s mother, Irene Catford, has now asserted that she has severed ties with the plaintiff and “all support”, from which the plaintiff pleads that he has drawn the inference that he will no longer share in her estate. This is pled as being a foreseeable consequence of the defendant’s actions in “demonizing the plaintiff to his mother”.

[13] This claim has no chance of success. It is speculative and speaks to a possible future harm. Irene Catford is alive and retains full discretion as to how to dispose of her estate. At this point in time the plaintiff has no interest in Irene Catford’s assets and, therefore cannot base a claim upon “losing” his speculative future entitlement. There is no tort of interference with future inheritance. If the defendant unduly influenced Irene Catford to alter her will the plaintiff may have a remedy available to him at law in the future. Finally, even if this damage claim purports to have its basis in defamation, the plaintiff has failed to plead the specific words alleged to have been said by the defendant to Irene Catford. At best, he has referred to the defendants “actions in demonizing the plaintiff to his mother”, which allegation is vague and could never support a finding of defamation, even at its most generous reading.

Allegation of Conspiracy – Paras. 9, 11, 12, 14, 15, 16 and 19

[14] The plaintiff in argument conceded that he does not intend to proceed on the allegations of conspiracy.

[15] Even without that concession, the claim would fail. The tort of conspiracy does not permit an action against a single defendant, but rather requires two or more acting in concert to cause injury to a plaintiff: Cement LaFarge v. B.C. Lightweight Aggregate, 1983 23 (SCC), [1983] 1 S.C.R. 452 at pp. 471-472.

Alienation of Affection – Paras. 11, 17, 18, 19, 20 and 23

[16] In Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, the majority held that such a tort does not exist in Canadian law. In discussing the development of a possible remedy to assist parents whose access rights have been interfered with, Lamer, J. identified the desirability of avoiding exactly the type of lawsuit initiated by the plaintiff. At p. 110 he wrote:

It would, of course, be possible for the courts to devise a new tort to meet the situation. And the temptation to do so is clearly present, for one cannot help but feel sympathy for the appellant and others in like situations. But there are formidable arguments against the creation of such a remedy. I have already mentioned the undesirability of provoking suits within the family circle. The spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, for interfering with rights of access is one that invites one to pause. The disruption of the familial and social environment so important to a child’s welfare may well have been considered reason enough for the laws inaction, though there are others.

Intentional Infliction of Mental Suffering – Paras. 20 and 22

[17] The plaintiff conceded that he will not pursue this claim. Had that concession not been made, the claim would still be struck. The plaintiff has pled no facts by which he could prove that he has developed a recognizable illness for which he has had to seek treatment as a result of the defendant’s actions. As explained in my Ruling in court file number 11-0642, this is the level of proof required by the law: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A.).

Negligence – Para. 23

[18] The only reference to a claim for negligence is found in a single paragraph that states:

23. The plaintiff asserts that the torts were intentionally committed and the affect [sic] foreseeable. The plaintiff also pleads in the alternative, that the defendant acted with negligence and knew or ought to have known the consequences of her tortious actions.

[19] No particulars of the negligence are pled. No allegation is made regarding a duty of care. No allegation is made with respect to a standard of care or the way in which it may have been breached. There is no reference to the specific damages caused by the alleged negligence. Accordingly, all facts supporting the constituent elements of negligence are absent. As such it is plain and obvious that such a claim must fail.

[20] In the result, this court orders that the following paragraphs of the statement of claim shall be struck, or struck in part where indicated: 1(e), 11, 12, 14, 15(only the words “the conspiracy of purveying”), 16 (everything following after the word “other”), 17, 20 (only the words “and the intentional infliction of mental suffering”), 21, 22 and 23.

[21] Of the paragraphs remaining, the moving party also seeks to strike paragraphs 18 and 19 on the basis of Rule 25.11(b). Those paragraphs appear to be pled in support of the plaintiff’s punitive and exemplary damage claims, and accordingly are not purely argumentative or inserted for “colour”, and shall remain.

[22] This court further orders that the plaintiff shall amend his pleading in accordance with this order and serve and file same within 20 days.

[23] If the parties are unable to agree upon the costs of this motion they may make brief submissions in writing not exceeding two double-spaced pages together with a cost outline, and any offers to settle on which they rely. The moving party’s are due by January 17, 2014 and the respondent party’s are due by January 24, 2014, and any reply by January 29, 2014, to be filed with my judicial assistant in Barrie.

HEALEY J.

Released: January 8, 2014