COURT FILE NO.: CV-14-511542
DATE: 20150824
ERRATUM RELEASED: 20150826
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NALINI SINGH-BOUTILIER
Plaintiff
– and –
ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICE WORKERS, KELLY A. MUNDAY, LESLIE DASS, WILLIAM MILLS, DEBORAH PAYNE ALSO KNOWN AS DEBORAH GUARDIA, EMMA BOTELHO, WEIRFOULDS LLP, M. JILL DOUGHERTY AND JORDAN GLICK
Defendants
Thomas Mathews, for the Plaintiff
Anne Spafford and Josh Koziebrocki, for the Defendants Ontario College of Social Workers and Social Service Workers, Kelly A. Munday, Leslie Dass, William Mills, Deborah Payne also known as Deborah Guardia and Emma Botelho
Peter Wardle & Brandon Stewart, for the Defendants WeirFoulds LLP, M. Jill Dougherty and Jordan Glick
HEARD: July 28, 2015
M. D. FAIETA, j
REASONS FOR DECISION
Corrected decision: The text of the original judgment was corrected on August 26, 2015 and a description of the correction is appended.
INTRODUCTION
[1] The plaintiff, Nalini Singh-Boutilier, claims that the defendant Ontario College of Social Workers and Social Service Workers revoked her registration after a complaints and disciplinary hearing process based on a malicious complaint and on evidence from witnesses that was untrue.
[2] The plaintiff brings this action for damages action against:
• the College claiming $1 million in general damages for malicious intent, malicious prosecution, breach of duty of care, breach of privacy, negligence, defamation, libel, injurious falsehood and unlawful interference with economic relations plus $200,000 for punitive damages;
• the complainant (William Mills, who was also a witness at the hearing) claiming $1 million in general damages for false allegations, perjury, malicious intent, mischief, defamation, slander, breach of privacy, injurious falsehood and unlawful interference with economic relations plus $400,000 for punitive damages;
• the witnesses that appeared at the hearing, Kelly A. Munday, Leslie Dass, Deborah Payne also known as Deborah Guardia and Emma Botelho, (“Witnesses”) claiming $500,000 in general damages for false allegations, perjury, malicious intent, mischief, defamation, slander, breach of privacy, injurious falsehood, and unlawful interference with economic relations plus $200,000 for punitive damages;
• counsel for the College, WeirFoulds LLP, M. Jill Dougherty and Jordan Glick, (“WeirFoulds”) claiming $1 million in general damages for professional negligence, malicious intent, defamation, slander, breach of duty of care and breach of privacy.
[3] The Claim includes the following allegations.
[4] The plaintiff was the Executive Director of Historia Specialized Care Inc. which is a facility that provides home care for adults with developmental and functional limitations. She alleges that the defendant Mills undertook a malicious campaign against her after he was terminated from a position at Historia. Amongst other things he alleged that the plaintiff provided inadequate services to the residents of Historia. These allegations led to two investigations by the Hamilton Police Service and the plaintiff’s false arrest and imprisonment. All charges were dropped. The plaintiff has commenced a separate civil action against the defendant Mills and the Hamilton Police Service.
[5] The College’s Complaints Committee considered the complaint. The plaintiff alleges that the Complaints Committee found that neither Mills nor Payne were credible witnesses. Nevertheless, the complaint was referred to the College’s Disciplinary Committee. The plaintiff alleges that Mills and the witnesses committed perjury at the hearing before the Discipline Committee. The Discipline Committee accepted the evidence of Mills and the witnesses and revoked the plaintiff’s certificate of registration.
[6] The plaintiff alleges that the College breached its duty of care towards the plaintiff to ensure that the complaint was made in good faith and without malicious intent. The plaintiff states that the College was either malicious or negligent in proceeding with Mills’ complaint.
[7] Amongst other things, the plaintiff states that Counsel for the College failed to abide by their professional obligation to look at the complaint objectively, to properly vet witnesses and to consider evidence from the plaintiff and to obtain information requested by the plaintiff that would discredit witnesses.
[8] The plaintiff also alleges that the College committed a breach of privacy in that that the outcome of the disciplinary hearing against her was revealed to Mills prior to disciplinary process having been concluded. The plaintiff also alleges that the College defamed her when it published the plaintiff’s disciplinary record on its website.
[9] The defendants ask this Court to:
(a) strike out the claim under Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as disclosing no reasonable cause of action;
(b) strike out the claim under Rule 25.11 as frivolous and vexatious without leave to amend.
[10] On July 16, 2015 the plaintiff obtained a confidentiality and sealing order from this Court, without notice to the defendants, to have her responding motion materials be treated as confidential, sealed and not form part of the public record pursuant to subsection 137(2) of the Courts of Justice Act and for “solicitors’ eyes only”. At the hearing of this motion, I returned the sealed materials other than the Book of Authorities to the plaintiff as no evidence is admissible on a motion of this type.
[11] For the reasons below, I have granted the defendants’ motion.
SOCIAL WORK AND SOCIAL SERVICES WORK ACT, 1998
[12] The College is established under the Social Work and Social Services Work Act, 1998, S.O. 1998, c. 31. (“SWSSA”)
[13] The College’s primary duty is to serve and protect the public interest.[^1]
[14] The College’s objects include the following:
• to regulate the practice of social work and the practice of social service work and to govern its members;
• to develop, establish and maintain qualifications for membership in the College;
• to issue certificates of registration to members of the College and to renew, amend, suspend, cancel, revoke and reinstate those certificates;
• to receive and investigate complaints against members of the College and to deal with issues of discipline, professional misconduct, incompetency and incapacity;
• to promote high standards and quality assurance with respect to social work and social service work and to communicate with the public on behalf of its members.[^2]
[15] The College’s Council is comprised of a board of directors that manage and administer its affairs.[^3]
[16] The Registrar of the College is appointed by the Council.[^4] The Registrar is required to maintain a register that contains information about each member of the College, including any revocation, cancellation and suspension of the member’s certificate. Any person has the right to inspect the register.[^5]
[17] The Council of the College is required to establish five committees: Executive Committee, Registration Appeals Committee, Complaints Committee, Discipline Committee, and the Fitness to Practice Committee.[^6]
[18] Various acts of professional misconduct are prescribed by regulation.[^7]
[19] The Complaints Committee is, with certain exceptions, required to consider and investigate written complaints regarding the conduct or actions of members of the College.[^8]
[20] After the Complaints Committee gives the member an opportunity to respond to the complaint, the Committee may:
• direct the matter be referred, or not be referred, to the Discipline Committee or the Fitness to Practice Committee;
• require the person complained against to appear before the Complaints Committee to be cautioned;
• take any action that it considers appropriate.[^9]
[21] The Registrar shall provide the complainant and the person complained against with a copy of the written decision of the Complaints Committee and its reasons for decision.[^10]
[22] The Council or the Executive Committee may direct the Discipline Committee to hold a hearing and determine any allegation of professional misconduct or incompetence on the part of a member of the College.[^11]
[23] The Discipline Committee may, after a hearing, find a member of the College to be incompetent if, in its opinion, the member has displayed in his or her professional responsibilities a lack of knowledge, skill or judgment or disregard for the welfare of a person of a nature or extent that demonstrates that the member is unfit to continue to carry out his or her professional responsibilities or that a certificate of registration held by the member should be made subject to terms, conditions or limitations.[^12]
[24] If the Discipline Committee finds a member guilty of professional misconduct it may direct that the finding and order of the Committee be published, in detail or in summary, with or without the name of the member, in the official publication of the College and in any other manner or medium that the Committee considers appropriate in the particular case.[^13]
ISSUE #1: IS IT PLAIN AND OBVIOUS THAT THE CLAIM DISCLOSES NO REASONABLE CAUSE OF ACTION?
[25] Rule 21.01(1)(b) of the Rules of Civil Procedure states that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action, and the judge may make an order or grant judgment accordingly.
[26] In Trillium Wind Power Corp. v. Ontario (Ministry of Natural Resources) [2013] O.J. No. 5117, 2013 ONCA 683, at paras. 30-31, the Ontario Court of Appeal stated:
The following principles apply to a Rule 21 motion to strike a pleading for failing to disclose a reasonable cause of action or defence: (a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof; (b) the claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings; (c) novelty of the cause of action is of no concern at this stage of the proceeding; (d) the statement of claim must be read generously to allow for drafting deficiencies; and (e) if the claim has some chance of success, it must be permitted to proceed.
The test is not in dispute: the claim will only be dismissed where it is "plain and obvious" that it has no reasonable prospect of success…While the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts.
[27] If a claim is found to disclose no reasonable cause of action, then it should not be struck without leave to amend except in the clearest of cases, for instance when the deficiencies in the pleading cannot cured by an appropriate amendment.[^14]
[28] The defendants submit that the Claim discloses no reasonable cause of action against them for the following reasons:
• the defendants are immune from an action for damages arising from the good faith performance of their duties or powers under section 49 of SWSSA;
• the defendant are immune from an action for damages under the doctrine of absolute privilege; and,
• in any event, the Claim fails to plead the necessary elements of the causes of action asserted against the defendants.
Statutory Immunity from Civil Action
[29] Section 49 of the SWSSWA states:
No proceeding for damages shall be instituted against the College, the Council, a committee of the College, or an officer, employee, agent or appointee of the College for any act done in good faith in the performance or intended performance of a duty or in the exercise of a power under this Act, a regulation or a by-law, or for any neglect or default in the performance or exercise in good faith of a duty or power. [emphasis added]
[30] This provision is typically found in the enabling legislation for regulatory bodies. It provides a broad immunity for the regulator and its staff that is only avoided if bad faith or malice is pleaded.[^15]
[31] Bad faith means an intention to deceive or to make someone believe what is false.[^16] Malice includes the use of authority for an improper purpose.[^17]
[32] Accordingly, section 49 of the SWSSA is a complete answer to the claims in negligence, defamation and slander.
[33] Section 49 of the SWSSA benefits not only the College but also WeirFoulds given that, in its capacity as external counsel to the College, it was an agent of the College.
[34] However this provision does not assist Mills or the Witnesses as they are not “…an officer, employee, agent or appointee of the College”.
Doctrine of Absolute Privilege
[35] In Amato v. Walsh 2013 ONCA 258, [2013] O.J. No. 1857, at para. 34, the Ontario Court of Appeal adopted the following description of the doctrine of absolute privilege:
No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before the court or judicial tribunal recognized by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. The privilege extends to documents properly used and regularly prepared for use in the proceedings. Advocates, judges and juries are covered by this privilege. However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.
[36] In Amato, at para. 35, the Court stated that the immunity afforded by the doctrine of absolute privilege extends to any action.
[37] Further, the doctrine of absolute privilege applies to quasi-judicial proceedings before a regulatory body.[^18]
[38] In my view, the doctrine of absolute privilege is a complete answer to the Claim against the witnesses given that the essence of the Claim against the witnesses is that the allegation that they committed perjury.
[39] Counsel for the witnesses submitted that the doctrine of absolute immunity also extends to the statements made by the complainant, the defendant Mills, to the College and its investigators on the basis of the British Columbia Court of Appeal’s decision in Hung v. Gardiner, 2003 BCCA 13, 13 B.C.L.R. (4th) 298, at para. 37. I note that the Ontario Court of Appeal cited Hung with approval in D’Mello v. Law Society of Upper Canada [2014] O.J. No. 6112, 2014 ONCA 912, at para. 21, where the Court found that “…the privilege extends to communications made by, as well as to, investigators.” Accordingly, the doctrine of absolute privilege is a complete answer to any claims related to complaints made by Mills to the College.
[40] Finally, the doctrine of absolute privilege also applies to the defendant WeirFoulds, as counsel to the College, to the extent that any claim relates to statements that it made to the College.
[41] I now turn to the various causes of action that are asserted against the defendants.
Tort of Malicious Intent
[42] The plaintiff asserts a cause of action of “malicious intent”. No such cause of action exists. The pleadings in the Claim related to malicious intent related are struck.
Tort of Malicious Prosecution
[43] The plaintiff asserts the tort of malicious prosecution against the College. The Ontario Court of Appeal in Biladeau v. Ministry of the Attorney General [2014] O.J. No. 5679, 2014 ONCA 848, at para. 17, stated:
The tort of malicious prosecution has four elements, namely, that the proceedings must have been: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause to commence or continue the prosecution; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect: …
[44] The claim alleges the College’s proceeding was terminated against the plaintiff. As a result the second required element of this tort is not made out. Accordingly, this aspect of the claim is struck as well.
Negligence and Breach of Duty
[45] The plaintiff alleges that the College was negligent and breached its duty of care to the plaintiff.
[46] In asking that these allegations be struck, the College relies on Rogers v. Faught 2002 CanLII 19268 (ON CA), [2002] O.J. No. 1451, at paras. 21-22. However, that decision standards for the principle “…that statutory regulators owe no private law duty of care to individual members of the public who deal with the organizations or individuals whose conduct is overseen by the regulators. Rather, where the governance mandate of such regulators is required to be discharged in the public interest, the duties of the regulators are owed to the public as a whole.”[^19]
[47] In my view, Rogers does not answer the question of whether a statutory regulator owes a duty of care to the regulated member rather that to the public.
[48] While there may be sufficient proximity between the College and the plaintiff given that she is a member of the College, it is my view that the statutory immunity afforded by section 49 of the SWSSA for good faith performance of duties and powers under the SWSSA indicates that the Legislature did not intend to create a duty relationship between the College and its members, and therefore this policy consideration is sufficient to preclude the imposition of a duty of care on the College.
[49] Further the plaintiff alleges that, amongst other things, WeirFoulds failed to abide by their professional obligations under Law Society of Upper Canada’s Rules of Professional Conduct and as a result were negligent in permitting witnesses to perjure themselves.
[50] The allegations related to a claim in negligence against WeirFoulds should be struck. A lawyer owes no duty of care to the opposite party in litigation. See Biron v. Aviva Insurance Co., [2014] O.J. No. 3436, 2014 ONCA 558, at para. 6.
[51] Accordingly, the pleadings related to negligence and breach of duty are struck as they do not disclose a reasonable cause of action.
Tort of Breach of Privacy
[52] The plaintiff also relies on the tort of breach of privacy.
[53] In Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, at para. 70, the Ontario Court of Appeal adopted the following test for the tort of breach of privacy:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy.
[54] The plaintiff alleges that WeirFoulds is liable based on the tort of breach of privacy. However, there are no material facts to support this claim. This aspect of the Claim is struck with leave to amend.
[55] The plaintiff alleges that the College is liable based on the tort of breach of privacy. The plaintiff alleges that, prior to its release, the outcome of the College’s disciplinary hearing was revealed to the defendant Mills. Further, the plaintiff alleges that the College published the plaintiff’s disciplinary record on its website.
[56] However the College does have statutory authority to publish its decisions under s. 26(5) of the SSWSA and, as a result, the allegation that the College published the plaintiff’s disciplinary record on its website is not actionable. Accordingly, the claim for breach of privacy against the College is struck with leave to amend other than with respect to the publication of the plaintiff’s disciplinary record on the College’s website.
[57] Further, the plaintiff pleads and relies upon the Freedom of Information and Protection and Privacy Act, R.S.O. 1990, Chapter F.31, as amended (“FIPPA”). FIPPA does not establish a statutory cause of action for breach of privacy.[^20] Had it been the legislative intent to do so, then express words would have been used as with section 99 of the Environmental Protection Act, R.S.O. 1990, Chap. E.10. I strike the pleading of FIPPA from the Claim.
Tort of Unlawful Interference with Economic Relations
[58] The plaintiff also asserts the tort of unlawful interference with economic relations against all defendants. The plaintiff alleges that the plaintiff suffered damage to her reputation causing unlawful interference with economic relations as a result of allegedly false allegations, slander, defamation and perjured evidence of Mills and the witnesses.
[59] The Ontario Court of Appeal in Gaur v. Datta 2015 ONCA 151, [2015] O.J. No. 1190, para. 25, explained the requirements of this tort as follows:
The tort requires the defendant to have committed an actionable wrong against a third party that intentionally caused the plaintiff economic harm. Conduct is unlawful if it is actionable by the third party, or would be actionable if the third party had suffered a resulting loss…
[60] The plaintiff does not assert that any of the defendants committed an actionable wrong against a third party that intentionally caused the plaintiff economic harm, nor does the plaintiff provide particulars with respect to the resulting economic harm that she suffered. Accordingly, this aspect of the Claim is struck with leave to amend.
Defamation and Slander
[61] The plaintiff alleges that the College defamed the plaintiff when it published the plaintiff’s disciplinary record on its website. The plaintiff alleges that the evidence of the witnesses and Mills defamed and slandered the plaintiff. Further, it appears that the Claim alleges that WeirFoulds facilitated the Witnesses in defaming the plaintiff.
[62] The test for defamation was described as follows in Gaur, at para. 8:
The tort of defamation requires the plaintiff to prove three elements: (1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) the words in fact refer to the plaintiff; and (3) the words were communicated to at least one person other than the plaintiff:
[63] The Claim baldly asserts defamation and slander against the defendants. It fails to plead the essential elements of such cause of action. Accordingly, this aspect of the Claim is struck with leave to amend.
Tort of Injurious Falsehood
[64] The tort of injurious falsehood is pleaded against all defendants on the basis of the alleged perjury of the witnesses and Mills.
[65] The test for the tort of injurious falsehood is as follows:
(a) the defendant communicated an untrue statement about the plaintiff or the plaintiff's property or business to a third party;
(b) that the defendant did so with malice; and
(c) that damage resulted to the plaintiff from such communication.[^21]
[66] The Claim fails to plead the essential elements of this cause of action. Accordingly, this aspect of the Claim is struck with leave to amend.
ISSUE #2: SHOULD THE CLAIM BE STRUCK UNDER RULE 25.11?
[67] A claim that demonstrates a complete absence of material facts is frivolous and vexatious may be struck under Rule 25.11(b) of the Rules of Civil Procedure.
[68] The purpose of pleadings is to give notice of the case to be met, to define the matters in issue for the parties and for the Court, and to provide a permanent record of the issues raised.[^22] It is improper to allow conclusions to be pleaded baldly and without any supporting facts.[^23]
[69] The defendants make two submissions:
(1) the claim should be dismissed as it pleads facts or should plead facts that cannot be proved at trial as a result of s. 50(6) of the SWSSA;
(2) there are insufficient material facts to support the pleadings of bad faith and punitive damages.
Inadmissibility of Evidence
[70] A plea of facts that cannot be proved at trial should be struck out under Rule 25.11 of the Rules of Civil Procedure.[^24]
[71] Subsection 50(6) of the SWSSA establishes a rule of evidence that prevents the use of certain material in a civil action:
No record of a proceeding under this Act and no document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in any civil proceeding, other than a proceeding under this Act or an appeal or judicial review relating to a proceeding under this Act. [emphasis added]
[72] This provision is very similar to subsection 36(3) of the Regulated Health Professions Act, S.O. 1991, c. 18, as amended, which states:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. [emphasis added]
[73] The Ontario Court of Appeal’s description of the purpose of that provision in M.F. v. Sutherland 2000 CanLII 5761 (ON CA), [2000] O.J. No. 2522, at para. 29, is applicable to s. 50(6) of the SWSSA as well:
The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action.
[74] Similarly, I adopt Justice Corrick’s view in Conroy v. College of Physicians and Surgeons of Ontario [2011] O.J. No.136, 2011 ONSC 324, para. 55, aff’d [2011] O.J. No. 3199, 2011 ONCA 517; leave to appeal refused [2011] S.C.C.A. No. 403, that:
…it is clear from the case law that s. 36(3) of the RHPA creates a blanket prohibition against the admissibility of all evidence collected during the course of the College’s investigation and this prohibition is an absolute one.
[75] Documents or things, such as the complaint from Mills or statements from the witnesses, prepared for the College, its Complaints Committee or Disciplinary Committee are inadmissible in this action. Statements given at the Complaints Committee and the Disciplinary Committee are inadmissible. The record of proceeding before the Complaints Committee or the Disciplinary Committee is also admissible as is any order or decision made in those proceedings.
[76] With this Claim the plaintiff essentially seeks to judicially review the College’s decision while seeking damages at the same time. The focus of the Claim is the complaint and the resulting disciplinary proceeding. However, no document or thing prepared by any person for the Complaints Committee proceeding or the Discipline Committee proceeding is admissible in this case, including the complaint provided by Mills to the College as well as any other documents prepared by the Committees, WeirFoulds, Mills and the witnesses for the proceedings of both Committees. Further, no statement made to the Complaints Committee or to the Discipline Committee by Mills or the witnesses is admissible in this action. In addition, the Claim, at paragraph 27, relies upon the “full evidentiary record from the College of the entire disciplinary process” to demonstrate that the Witnesses and Mills committed perjury. However, that record is also inadmissible under s. 50(6) of the SWSSA.
[77] In my view, the plea of facts in the Claim, particularly the allegations of perjury and bad faith, cannot be supported at trial given s. 50(6) of the SWSSA, except for the allegations in respect of the publishing of the plaintiff’s disciplinary record and the alleged disclosure to Mills of the Disciplinary Committee’s decision prior to its release which relate to matters that occurred after the proceeding rather matters done for, in or at the proceeding.
[78] The defendants advance two additional arguments below regarding the adequacy of the pleadings of bad faith and punitive damages.
Bad Faith
[79] The Claim makes several bald assertions of bad faith and/or malicious intent in the Claim, including at paragraphs 32-35 and 43, without providing particulars of such allegations as required by Rule 25.06(8) of the Rules of Civil Procedure which states:
Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
[80] In Deep v. Ontario [2004] O.J. No. 2734, Justice Mesbur, at para. 64, stated:
Bad faith is a legal conclusion. It has been held to involve an allegation of an intent to deceive or to make someone believe what is false. It has been said to be equivalent to an allegation of dishonesty. Where a plaintiff's claim includes an allegation of bad faith, the pleading must be supported by sufficient particulars that support a legal conclusion of bad faith. If it does not, the pleading should be struck.
[81] Accordingly, the allegations of bad faith and malicious intent are struck from the Claim with leave to amend.
Punitive Damages
[82] The plaintiff seeks punitive damages as a result of “malicious, high-handed, callous, and arrogant conduct of all defendants”.
[83] In Whiten v. Pilot Insurance Co. [2002] 1 S.C.R. 595, 2002 SCC 18, at para. 87 the Supreme Court of Canada stated:
One of the purposes of a statement of claim is to alert the defendant to the case it has to meet, and if at the end of the day the defendant is surprised by an award against it that is a multiple of what it thought was the amount in issue, there is an obvious unfairness. Moreover, the facts said to justify punitive damages should be pleaded with some particularity. The time-honoured adjectives describing conduct as “harsh, vindictive, reprehensible and malicious”…or their pejorative equivalent, however apt to capture the essence of the remedy, are conclusory rather than explanatory.
[84] In my view, the Claim fails to plead the material facts to support a claim for punitive damages. Accordingly, the claim for punitive damages is struck with leave to amend.
CONCLUSIONS
[85] To summarize the outcome of this motion in relation to the array of claims and defences raised in respect of the many defendants, and for reasons given above, I order that:
• the Claim against the College and WeirFoulds is struck except that the plaintiff is granted leave to amend the claim by September 25, 2015 for: (1) breach of privacy, unlawful interference with economic relations, and injurious falsehood, and (2) bad faith and punitive damages, but only to the extent that she does not plead material facts protected by subsection 50(6) of the SWSSA or by the doctrine of absolute privilege; and,
• the Claim against Mills and the witnesses is dismissed without leave to amend the Claim as the doctrine of absolute privilege applies to all of the allegations made against them.
[86] I hereby Order costs in the amount of $5,000.00, inclusive of disbursements and taxes, to be paid within 30 days by the plaintiff to:
(a) the defendants College, Munday, Dass, Mills, Payne, and Botelho; and
(b) the defendants WeirFoulds, Dougherty and Glick.
[87] In my view, the above amount of costs is fair and reasonable to the plaintiff given that the defendants were largely successful on this motion and given the plaintiff’s claim for costs was more than $22,000 on a partial indemnity basis.
Mr. Justice M. D. Faieta
Released: August 26, 2015
Corrected decision: The following sentence in paragraph [75] replaces the corresponding sentence in the original judgment issued on August 24, 2015.
[75] The record of proceeding before the Complaints Committee or the Disciplinary Committee is also inadmissible as is any order or decision made in those proceedings.
COURT FILE NO.: CV-14-511542
DATE: 20150824
ERRATUM RELEASED: 20150826
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NALINI SINGH-BOUTILIER
Plaintiff
– and –
ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICE WORKERS, KELLY A. MUNDAY, LESLIE DASS, WILLIAM MILLS, DEBORAH PAYNE ALSO KNOWN AS DEBORAH GUARDIA, EMMA BOTELHO, WEIRFOULDS LLP, M. JILL DOUGHERTY AND JORDAN GLICK
Defendants
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: August 26, 2015
[^1]: SWSSA, s. 3(1).
[^2]: SWSSA, s. 3(2).
[^3]: SWSSA, s. 3(1)
[^4]: SWSSA, s. 9(2).
[^5]: SWSSA, s. 22.
[^6]: SWSSA, s. 14.
[^7]: Ontario Regulation 384/00.
[^8]: SWSSA, s. 24.
[^9]: SWSSA, s. 24(5).
[^10]: SWSSA, s. 24(7).
[^11]: SWSSA, s. 25(1).
[^12]: SWSSA, s. 26(3).
[^13]: SWSSA, s. 26(5).
[^14]: South Holly Holdings Ltd. v. Toronto-Dominion Bank, 2007 ONCA 456, [2007] O.J. No. 2445, para. 6 (C.A.).
[^15]: Gratton-Masuy Environmental Technologies Inc. v. Ontario (2010), 101 O.R. (3d) 321, 2010 ONCA 501, para. 87 (C.A.)
[^16]: Deep v. Ontario [2004] O.J. No. 2734, para. 64.
[^17]: Miazga v. Kvello Estate, [2009] 3 S.C.R. 339, 2009 SCC 51, paras. 78-89.
[^18]: Deep v. College of Physicians and Surgeons of Ontario, [2010] O.J. No. 4017, 2010 ONSC 5248, at para. 59; aff’d [2011] O.J. No. 1047, 2011 ONCA 196; leave to appeal refused [2011] S.C.C.A. No. 152.
[^19]: See Morgis v. Thomson Kernaghan 2003 CanLII 5999 (ON CA), [2003] O.J. No. 2504, (2003), 65 O.R. (3d) 321, at para. 27 (C.A.)
[^20]: Jones, para. 51.
[^21]: Boehringer Ingelheim (Canada) Ltd. Bristol-Myers Squibb Canada Inc., 1998 CanLII 14787 (ON SC), [1998] O.J. No. 1932, para. 9.
[^22]: Cerqueira v. Ontario 2010 ONSC 3954, [2010] O.J. No. 3037, paras. 11-13.
[^23]: Stead v. Canada (Revenue Agency), [2011] O.J. No. 3197, para.9.
[^24]: Pouget v. Saint Elizabeth Health Care, [2012] O.J. No. 3157, 2012 ONCA 461, para. 31.