Court File and Parties
COURT FILE NO.: CV-13-477848
MOTION HEARD: 20140124
REASONS RELEASED: 20141211
SUPERIOR COURT OF JUSTICE – ONTARIO
RE:
GOLNAZ SIMAEI
Plaintiff
- and-
JULIE K. HANNAFORD and JK HANNAFORD BARRISTERS (PROFESSIONAL CORPORATION)
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Howard Levitt Fax: 416 363.3100
for plaintiff
Melvyn L. Solmon Fax: 416-947-0079
for defendants (moving parties)
HEARD: January 24, 2014
Reasons for Decision
“The procedures of the law can be misused, and from this unfortunate truth emerges the idea that the court should have the power to respond to the abuse of its process. This idea has many manifestations.”
Preamble
[1] Pursuant to rule 25.11 of Ontario's Rules of Civil Procedure, the court may strike out all or part of a pleading or any other document with or without leave to amend on the ground that the pleading or document is scandalous or vexatious or an abuse of the process of the court. Rule 25.11 considers the substantive adequacy of the pleading and whether it conforms to the formalities of a proper pleading.
[2] In this case, the defendants move for a number of headings of relief, but primarily to strike large portions of the plaintiff’s statement of claim.
I. Overview
[3] This case has presented number of difficulties for me. When members of the bar feel obliged to litigate with each other in their personal capacities, unique difficulties may arise.
[4] Both parties have very skilled and experienced counsel and their advocacy, while focusing on all the salient arguments, having made my decision process somewhat more difficult.
[5] The motion, originally took more than a full day with counsel obliging me by arguing the concluding portion of the motion by an international telephone link on a weekend.
[6] From the parties’ perspective, the foregoing preamble is further exasperated by the systemic difficulties with scheduling this Toronto Long Motion which had to be addressed before the materials ever reached my bench.
[7] Against that background I now turn to endeavouring to resolve the issues raised on this motion.
II. Background
[8] The plaintiff, Golnaz Simaei was called to the bar in Ontario in 2008.
[9] From May 1, 2009 to March 2013, she was employed by the defendant firm JK Hannaford Barristers (“JKHB”). Her employment was terminated on or about March 18, 2013.
[10] A Notice of Action was issued less than a month later, on April 8, 2013 based on a claim of wrongful dismissal. That Notice set out a number of heads of damage with claims totalling in excess of 2.1 million dollars asserted against Julie Hannaford and the firm JKHB.
[11] A Statement of Claim was then issued in early May 2013. The text of the first paragraph, including the following:
“The Plaintiff claims against the Defendants, the following:
(a) $350,000 in wrongful dismissal damages;
(b) $250,000 for damages for intentional or, alternatively, negligent infliction of nervous shock;
(c) $100,000 for conversion of her personal e-mails and documentation;
(d) An Order that the Defendants deliver to the Plaintiff all of her personal documents and personal e-mails, and any other belongings of the Plaintiff, and thereafter delete the Plaintiff's personal documents and personal e-mails from the Defendants' computer system;
(e) $250,000 in Honda damages;
(f) $250,000 in moral damages;
(g) $250,000 in aggravated damages;
(h) $400,000 for defamation;
(i) $250,000 in punitive damages;
(j) Reimbursement for any and all expenses the Plaintiff incurs in an effort to mitigate the damages arising from the loss of her employment; accordance with the Courts of Justice Act, R.S.O_ 1990, c. C43, as amended; …”
[12] The defendants served a Notice of Intent to Defend on May 21, 2013.
[13] Thus within approximately 2 months of the date of the end of the employment relationship, the action was already at the stage where a Statement of Defence was technically due within another 10 days.
III. Procedural Fencing
[14] I say technically due, as it was my experience, when in practice that it was uncommon, for strict compliance with time limits to be enforced, particularly in an action having claims in excess of two million dollars and where there was clearly a genuine dispute between the parties. Having regard to the fact that the defendants in this case also changed counsel during the initial post-service 20 day period contemplated by the Rules, it would seem to me there was nothing to be gained by “playing hardball” at that early stage.
[15] I was surprised and disappointed to learn what it is asserted apparently occurred in the early stages of this action. An affidavit filed on behalf of the defendants new counsel (“SRG”) details their perspective on the service issues that were being addressed by the parties. :
“19. By May 29, 2013 the Statement of Claim had been reviewed and late that day, SRG served a Notice of Motion to expunge all or part of the Statement of Claim, returnable December 4, 2013 (the "Motion to Expunge Parts of the Claim")(later rescheduled to December 16, 2013 as
December 4, 2013 was not available.) Now shown … is a true copy of the two facsimile letters from SRG to Mr. Levitt dated May 29, 2013.
That letter stated:
"Having reviewed the Statement of Claim, I am of the view that it is unintelligible, contains irrelevant and scandalous allegations, pleads evidence, improperly, and does not support all of the causes of action alleged. It also alleges claims that are improper as a matter of law.
We enclose herein our Notice of Motion, which is served upon you pursuant to the Rules of Civil Procedure.
In light of the approach you have been instructed to take, we have chosen a date convenient to us. Should you agree to change your approach to this litigation and comply with the Rules of Civility, we would be pleased to agree to a mutually convenient date for the hearing of this Motion, if this date is inconvenient to you. This is the first date available for a two hour motion before a Master. If you are of the view that the Motion will take more than two hours please advise forthwith.
Please advise if you agree that you will not note my clients in default pending the hearing of the Motion. If I do not hear from you by 4:00 pm May 29, 2013, I will assume your instructions have not changed and that you intend to note my clients in default... ".
Mr. Levitt did not respond by this 4:00 p.m. deadline. His instructions did not change. He did not confirm that he would not attempt to note the Defendants in default.
As a result, on May 30, 2013, the Defendants served a Pro Tem Statement of Defence. This was delivered in order to avoid any default steps being taken by the Plaintiff on May 31, 2013. Now shown to me … a true copy of the letter from SRG to Mr. Levitt dated May 30, 2013. That letter stated:
"Enclosed herein is our Pro Tem Statement of Defence, which is served upon you pursuant to the Rules of Civil Procedure. This is being delivered in light of your threat to note my clients in default and your failure to respond to the 4:00pm May 29, 2013 deadline (which means your instructions have not changed and that you still are instructed to note my clients in default).
This pleading is delivered without prejudice to any of my clients' rights as a result of the Notice of Motion to strike all or part of the pleading that was served on May 29, 2013.
My clients will also be amending the Notice of Motion to include an Order for directions as to the date of service of the Statement of Claim and whatever relief may flow from that determination.” ...
Released: December 11, 2014
Master D. E. Short
DS/ R. 69