COURT FILE AND PARTIES

COURT FILE NO.: C-870-13

DATE: 2014-04-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Katelyn Pinos, a minor by her Litigation Guardian, Man-sze Wendy Kan, Man- sze Wendy Kan and Andrew Pinos, Plaintiffs/Respondents

AND:

Tyler David Williams, John Doe Employer and Blue Mountain Resorts Limited o/a The Westin Trillium House, Defendants/Applicants

BEFORE: The Honourable Mr. Justice J. W. Sloan

COUNSEL: Safina Lakhani, for the Defendants/Applicants

Justin Linden, for the Plaintiffs/Respondents

HEARD: April 3, 2014

ENDORSEMENT

[1] This is a motion brought by the defendant Williams to strike out several paragraphs in the plaintiff's statement of claim pursuant to Rule 25(11) (a) or in the alternative for particulars pursuant to Rule 25.10.

[2] The allegations are that Mr. Williams, who is from Vancouver, was sent by his employer to the Blue Mountain Resort in Ontario for a work conference.

[3] The plaintiffs allege that on or about May 24^th 2013, Williams broke in to the hotel room of the minor plaintiff and physically assaulted her while she was in bed.

[4] Paragraphs complained about are:

I.-10(f), which alleges Williams "knew or ought to have known that he was a danger to children and yet he failed to take appropriate measures to remove himself from the situation",

II.-12, which alleges, that prior to the assault, William’s employer knew or ought to have known that Williams, (a) committed acts of misconduct; (b) was a pedophile; (c) had abused children previously; (d) had entered into inappropriate relationships with children; (e) had been terminated and or removed and or been caused or allowed to leave other places of employment as a result of such conduct; and (f) had conducted himself or was of a disposition to likely conduct himself in a manner dangerous to children, which conduct included but was not limited to engaging in inappropriate physical contact with children.

III.-13(d), which alleges that Williams’ employer was negligent in part when, it “upon coming into suspicion, knowledge, information and belief that Williams had committed sexual assaults and/or that allegation had been leveled against him, it ought to not have permitted Williams to go on the conference and or to not have permitted him to stay accommodations. He could come into contact with children"

IV.-15 (m), which alleges that the sexual assault was caused and/or contributed to as a result of the negligence of the Westin, which consisted of among other things “its officers, servants, agents and/or employees knew or ought to have known that Williams caused other similar incidents previously and yet they failed to take appropriate steps in regard thereto"

[5] Although served with this motion no one appeared in support of it on behalf of the Westin or Mr. Williams employer now known to be Raymond James Ltd.

[6] Of note, there are no affidavits from Williams or any of the other defendants stating that they are unable to plead to the allegations as they are currently stated in the statement of claim.

[7] For the plaintiff to be successful in her claim in negligence and vicarious liability she is entitled to make inquiries into what William’s employer knew about him with respect to the nature of the allegations prior to the assault.

[8] The plaintiff would not have the particulars that Mr. Williams seeks. On the other hand the person with the most, if not all, of the knowledge with respect to the allegations is Mr. Williams.

[9] At this stage of the proceedings I am unable to conclude, as Williams lawyer suggests, that if the pleadings are allowed to stand, the parties will continually be back in court with various motions.

[10] The parties agree that paragraph 12 (a) should be struck. I find paragraph 12 (f), to essentially be a repeat of 12 (d). I find paragraph 13 (d) to be a submission and not an allegation.

[11] As a result I am striking paragraph 12 (a) & (f) and 13 (d) from the statement of claim.

[12] The defendants shall deliver their statement statements of defense within 20 days from the date of this order.

[13] If the parties are unable to agree on costs, Mr Linden shall forward his brief submissions on costs to me by April 18, 2014. Ms. Lakhani shall forward her brief response to me by April 25, 2014. Mr Linden shall then forward his reply, if any, to me by April 30, 2014. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca.

J. W. Sloan J.

Date: April 8, 2014