Rayner v. McManus, 2016 ONSC 422

CITATION: Rayner v. McManus, 2016 ONSC 422

COURT FILE NO.: 11-22685-SR

DATE: 2016/01/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL RAYNER (Plaintiff)

And:

KERRY McMANUS (Defendant)

BEFORE: Justice I. F. Leach

COUNSEL: Martha Cook, for the plaintiff Michael A. Polvere, for the defendant Paul-Erik Veel for the proposed additional defendant, Dr. Marilyn Marshall

HEARD: July 21, 2015

ENDORSEMENT

Overview

[1] The plaintiff in this defamation action, (Mr Rayner), seeks leave to amend his statement of claim in a manner that:

a. would supplement his allegations against the current defendant, (Ms McManus), including a reference to her alleged repetition of earlier slanders and making of further allegations regarding the plaintiff, all of which are said to have led to a police application for a peace bond and corresponding emotional and financial hardship for the plaintiff; and

b. add Dr Marilyn Marshall, (a psychiatrist consulted by Ms McManus), as an additional defendant to the proceeding, who is alleged to have been negligent and/or responsible for intentional infliction of mental suffering vis-à-vis the plaintiff.

[2] Submissions by plaintiff counsel, made in support of the motion, include the following:

• The applicable rule governing pleading amendments vis-à-vis an existing defendant generally is mandatory, and presumptively requires the granting of leave to make amendments after the close of pleadings unless the amendments give rise to prejudice incapable of being compensated for by costs or an adjournment.
• While the applicable rule governing pleading amendments vis-à-vis a proposed additional defendant admittedly allows for some measure of discretion by the court, it too generally is mandatory, and presumptively requires the granting of leave to make amendments after the close of pleadings unless the amendments give rise to prejudice incapable of being compensated for by costs or an adjournment.
• Neither the existing defendant (Ms McManus) nor the proposed additional defendant (Dr Marshall) has satisfied her burden of establishing the existence of any such prejudice in the sense required.
• Without limiting the generality of the foregoing, it is said that Ms McManus has not established that the proposed amendments would add any new claims barred by applicable limitation periods, as the proposed amendments are said to merely supplement allegations relating to the scope of damages flowing from a cause of action already alleged by the plaintiff, without adding any new defamation claims to the proceeding. Nor has Ms McManus established that the proposed amendments fail to comply sufficiently with any other rules of pleading, including the need for enhanced specificity when it comes to defamation claims. In the alternative, it is said that any deficiencies in that regard are capable of being addressed through an appropriate demand for particulars.
• Similarly, without limiting the generality of the foregoing, it is said that Dr Marshall is unable to establish, at this stage of the proceeding, that the contemplated claims against the proposed additional defendant are legally untenable. In particular, while aspects of the proposed claims against Dr Marshall may be somewhat novel, assuming the facts alleged in the proposed pleading to be true, and reading the proposed pleading (including documents incorporated into the pleading by reference) in a generous manner, it is not plain and obvious that the contemplated claims are doomed to failure such that the plaintiff should be prevented, at the outset, from advancing them. It is also said that, in the circumstances underlying this litigation, Dr Marshall reasonably should be regarded as a necessary and proper party to this litigation.

[3] Ms McManus opposes the motion, and submissions by her counsel include the following:

• While many of the proposed amendments are not contentious, the proposed amendments found in paragraph 31 of the contemplated pleading are said to advance new claims that are barred by applicable limitation periods, thus giving rise to a presumption of prejudice, (not addressed or countered by the plaintiff), incapable of being remedied by an adjournment or costs. In particular, on the face of the contemplated pleading, the new and additional claims clearly are being advanced beyond the ostensible two year limitation period applicable to claims for slander, with no pleaded suggestion that the new claims were incapable of discovery within the applicable limitation period or periods. To the contrary, the contemplated pleading makes it clear that Mr Rayner knew or ought to have known, more than two years before the bringing of this motion, of the further alleged remarks made by Ms McManus that led to the police application for a peace bond.
• Additionally, or in the alternative, it is said that the proposed amendments in paragraph 31 of the contemplated pleading fail to meet the demanding standards for specificity in relation to defamation claims; e.g., insofar as they do not make clear what is alleged to have been said by Ms McManus, to whom she is alleged to have said it, and/or on what occasion or occasions she is alleged to have said it.

[4] Dr Marshall also opposes the motion, and submissions by her counsel include the following:

• It is said that the pleading does not disclose a tenable cause of action against Dr Marshall in negligence. In particular, it said that the contemplated allegations are incapable of establishing a sufficient relationship of proximity between Dr Marshall and Mr Rayner to establish any applicable duty of care, and/or that there are policy considerations which would negative any prima facie duty of care that might otherwise exist in such circumstances.
• It is said that the pleading similarly does not disclose any tenable cause of action against Dr Marshall for intentional infliction of mental suffering. In particular, it is said that there has been no proper or adequate pleading of such a claim, (having regard to the elements of the tort), and that the contemplated allegations fail in any event to establish that anything done by Dr Marshall was “flagrant or outrageous”, or “calculated to produce harm” to Mr Rayner.

[5] I turn next to the background of this litigation, which involves underlying circumstances that are somewhat unusual.

Background

[6] In that regard, it should be emphasized that the factual allegations underlying this litigation have not yet been tested and resolved by any formal adjudication, and nothing herein should suggest the contrary.

[7] Moreover, nothing that follows should suggest that I am not keenly aware of my duty, (noted and discussed in more detail below), to focus exclusively on the plaintiff’s contemplated pleading, and accept the facts alleged therein as proven, (unless they are patently ridiculous or incapable of proof), when making determinations as to whether the contemplated pleading discloses a reasonable or tenable cause of action.

[8] However, as noted above, this motion raises issues that are not limited to whether the plaintiff’s contemplated pleading discloses certain tenable causes of action. Before turning to address such specific issues, I therefore intend to provide, if only by way of context, a background that makes reference not only to the facts and positions pleaded by the plaintiff Mr Rayner, but also to the positions asserted by Ms McManus and Dr Marshall.

[9] With the above in mind, I note that the underlying circumstances include the following:

• Mr Rayner, Ms McManus and Dr Marshall all reside within the City of Stratford.
• At all material times, Mr Rayner has lived with significant mental health challenges, which have been diagnosed as comorbid mood and anxiety disorder. He nevertheless has been active in a number of organizations, including service as a volunteer with a non-profit organization in Stratford known as “Common Action for the Restoration of the Environment”, (or “CARE”). He also has served as a volunteer board member with another non-profit corporation in Stratford known as “Perth County Greenworks” (“PCG”), and one of its subcommittees known as “Perth County Nature Network” (“PCNN”).
• Ms McManus is a high school teacher. She nevertheless also has served in public office, (e.g., as a city councillor in Stratford), and as a volunteer with a number of different environmental groups, including CARE.
• Dr Marshall is a physician licenced by the College of Physicians and Surgeons for the Province of Ontario (“CPSO”) to practice medicine in this province. She specializes in the field of psychiatry. She too has served as a volunteer in association with CARE.
• All three individuals were involved with CARE prior to 2009. In that regard, Ms McManus says that she worked with Mr Rayner on a number of environmental initiatives, and that the two developed and maintained a casual friendship.
• According to Ms McManus, there nevertheless were a number of developments which caused her concern in relation to Mr Rayner. For example, in May of 2008, Mr Rayner is said to have sent Ms McManus an email which she found disturbing and frightening. (In connection with her nomination for an award, Mr Rayner allegedly wrote to Ms McManus indicating that he was “tempted to kidnap … and imprison” her on an island where she would be “forced to chill and revel in luxuriant surroundings”.) Ms McManus says this was followed, in June of 2008, by a surprising development wherein a seemingly innocuous email exchange about the proper treatment of garlic mustard led to Mr Rayner taking offence and adopting a peculiar and hostile attitude. Notwithstanding such developments, (which are said to have put Ms McManus “on guard” in relation to Mr Rayner and what might offend him or “set him off”), the two nevertheless continued to interact with one other.
• In January of 2009, Mr Rayner resigned from CARE. He attributes that resignation to an unspecified “falling out” with Ms McManus, which she denies.
• From the perspective of Mr Rayner, he and Ms McManus then had “sporadic and mostly unpleasant” contact with each other between January and September of 2009. He says this culminated with his leaving an admittedly “intemperate message” on the Facebook of Ms McManus, after which she asked him not to contact her again, which in turn led to an agreement whereby the two would not communicate with each other. (Mr Rayner says he received an email from Ms McManus in October of 2009, promoting some community events in which he was involved, but he did not respond.)
• From her perspective, Ms McManus describes incidents during the same period, and into November of 2009, that caused her to have growing concerns about Mr Rayner. For example:
  • In January of 2009, Mr Rayner is said to have written a letter to the editor of the local newspaper, describing a meeting at the home of Ms McManus and suggesting that those in attendance were indifferent to the plight of those without doctors.
  • In March and April of 2009, Mr Rayner is said to have posted several comments on his Facebook page, (e.g., indicating that he was looking to “slay some trolls”, that he wanted to “unleash his inner Hulk”, and that he was “reconsidering his non-violent philosophy”), which Ms McManus found to be concerning and alarming.
  • On or about June 10, 2009, Mr Rayner is said to have sent an email to Ms McManus, which included indications that he had been “angered and disgusted” by her “behaviour over the past year”, and criticizing her for not “taking ownership” of the “rancor and ill-feeling” she was said to have created. After further criticism of Ms McManus for such matters as her alleged “ambition”, “self-serving behaviour”, “megalomania”, and damage inflicted by her on “the environmentally minded folk in Stratford”, Mr Rayner’s message included a reference to Ms McManus having sewn “the seeds of her own destruction”, and his hope that she would gain some insight “before it is too late”. Ms McManus says that she regarded Mr Rayner’s message as a “thinly veiled threat”, that she began to fear for her safety, and that she believed she might be in danger.
  • From the perspective of Ms McManus, events then became more ominous when peculiar and frightening objects began to appear mysteriously on her residential property from the summer of 2009 to November of that year. (For example, pairs of scissors and a dead sparrow hawk were found on her lawn, a decomposing rat and dead rabbit were found in her garden, and a conspicuous rock was left just outside her patio door.) Ms McManus admittedly had no information to confirm that Mr Rayner had left the mysterious objects on her property. However, the aforesaid email from Mr Rayner, and his 2009 Facebook postings relating to animals and infectious diseases, led Ms McManus to suspect that Mr Rayner had some involvement in those “intimidating and strange occurrences”.
  • The Stratford police were contacted in the wake of one of the dead animals being found on the property of Ms McManus. She identified Mr Rayner as someone who might have been responsible. The police offered to speak with Mr Rayner. However, Ms McManus initially indicated that she simply wanted the incident to be on file, and that she did not want the police to contact Mr Rayner “for fear of repercussions”. She nevertheless continued to remain in contact with the police.
• On or about November 16, 2009, Ms McManus initiated an email exchange with Dr Marshall, requesting her “insight” and “advice” in relation to the above situation and developments. The material filed on the motion by the plaintiff includes the full text of the four relevant emails, sent over the course of November 16-17, 2009. I will not replicate the emails in their entirety here, but by way of general description and summary:
  • In her initial email to Dr Marshall, Ms McManus described the finding of the various unusual objects on her property, and indicated her view that the “likely cause” of the “unusual events” was an unnamed “gentleman” who had sent Ms McManus an email telling her that she had done harm to the local environmental movement, and hopefully would figure that out “before it was too late”. Ms McManus noted that, while the police had offered to go speak to “the man” whom she suspected as being responsible for the objects, Ms McManus only had proof of the man’s online messages, and that she was worried of triggering “an escalation of some sort” if it was indeed the man she suspected. In that regard, Ms McManus indicated her understanding that the man in question had a diagnosis of “avoidant personality disorder”. She specifically asked for the “insight” and “advice” of Dr Marshall. In particular, she asked Dr Marshall for her opinion as to whether having the police speak with the man “would help or hinder the situation”.
  • In her initial response to Ms McManus, Dr Marshall characterized the leaving of scissors as “menacing” and a “threat”, and the leaving of dead animals as an indication that Ms McManus was dealing with “a sick, and possibly crazy person”. Dr Marshall also indicated that the author of the email described by Ms McManus sounded “paranoid” and “even delusional”. She added that, “whoever this person is, he/she does NOT have an avoidant personality disorder”, as that denotes “a shy person, who [would] avoid a lot of frightening situations”. Dr Marshall went on to opine that “he/she may be psychotic (delusional and/or hallucinating), or have a paranoid or psychopathic personality”, which “can all be dangerous”. Dr Marshall recommended that Ms McManus follow the advice of the police, in terms of “talking with the person suspected”, as involving the police would be “more likely to de-escalate than escalate the situation”, which was “already plenty bad”.
  • In a follow up email to Dr Marshall, Ms McManus then forwarded the substantive text of the email sent by Mr Rayner on June 10, 2009, without indicating the name of its author.
  • In a further responding email, Dr Marshall characterized the forwarded email text as “paranoid for sure”, and opined that the reference to Ms McManus hopefully gaining insight “before it was too late” sounded “threatening”. She advised Ms McManus to speak to the police that day, (i.e., November 17, 2009).
• Mr Rayner says he was contacted by “Sergeant John Wilson” of the Stratford police on or about November 18, 2009, and asked to attend at the police station for an interview. Mr Rayner says that he did so, (without knowing the reason), and was then advised that the police were investigating a crime involving the leaving of a dead rabbit on the property of Ms McManus. Mr Rayner says he was “horrified” to learn that she had identified him as a potential suspect. However, no charges were laid.
• According to Ms McManus, she subsequently was advised by “Sergeant Detective John Wilson” of the Stratford Police that he had interviewed Mr Rayner, and that Mr Rayner had been directed by the police to cease contact with Ms McManus.
• Approximately one year later, in November of 2010, there nevertheless was further email contact between Mr Rayner and Ms McManus. In particular, on behalf of the PCNN, Mr Rayner sent a “bulk email” to a number of recipients, in order to raise awareness and encourage involvement in relation to local environmental issues. Mr Rayner says the email was sent to Ms McManus as “the appropriate contact person within the CARE organization”. However, sending of the email prompted efforts by Ms McManus to obtain information about the source and/or sender of the email. Those efforts included a telephone conversation between Ms McManus and Ms Bertrand on November 23, 2010, in which Ms McManus is alleged to have said:
  • that she needed to know who had sent the email because a member of PCG was not to contact her;
  • that the person knew who “he” was;
  • that the person had been approached by the police about not contacting Ms McManus; and
  • that Ms McManus needed to know who sent the email, so that she could then decide whether she should take further action.
• Mr Rayner says that the aforesaid comments of Ms McManus could only refer to him, (as he was the only male volunteer at PCG), and that Ms Bertrand subsequently repeated those comments to the PCG board of directors, with specific reference to Mr Rayner. The PCG board of directors then instructed Mr Rayner to cease work on behalf of the PCG if his involvement was “public in nature”.
• Ms McManus says she thereafter experienced the discovery of further strange objects being left outside her residence, including a rock or bone placed precariously on her fence on or about August 21, 2011, and a single screw placed outside her patio door on or about October 6, 2011. On the latter date, she also noticed gas pouring out of her lawnmower.
• Mr Rayner issued his original statement of claim herein on or about October 6, 2011, (i.e., the same day Ms McManus discovered the mysterious screw left outside her patio door). The full text of Mr Rayner’s original pleading is set forth in the plaintiff’s motion material. Generally, however, the original claim targets only Ms McManus, focuses upon the words spoken by her to Ms Bertrand during the telephone conversation on November 23, 2010, and seeks relief including general and aggravated damages for alleged defamation.
• On or about November 29, 2011, counsel for Ms McManus served a demand for particulars, in relation to Mr Rayner’s pleading. Plaintiff counsel delivered a response on or about January 31, 2012.
• Ms McManus delivered her statement of defence on or about March 13, 2012. In addition to numerous denials, (e.g., that the words spoken identified the plaintiff or were defamatory), her pleaded defences include justification and assertion of qualified privilege.
• In or about October of 2012, the Stratford police commenced an application pursuant to s.810 of the Criminal Code for imposition of a peace bond in relation to Mr Rayner. The application was based on the stated fear of Ms McManus that Mr Rayner would cause her personal injury, or damage her property, having regard to threats alleged to have been made between January 1, 2009, and October 3, 2012. The application was opposed by Mr Rayner, and proceeded to a hearing before a Justice of the Peace on October 24, 2012. During the hearing, Ms McManus was cross-examined at length by Mr Rayner’s counsel. In the result, the application was dismissed, primarily because there was no supporting evidence connecting Mr Rayner with the incidents giving rise to the fears of Ms McManus.
• On December 4, 2012, Mr Rayner brought a motion to strike allegations in the statement of defence of Ms McManus, relating to the further strange events and discoveries which were said to have happened after the conversation between Ms McManus and Ms Bertrand in November of 2010. The motion was heard and dismissed by Justice Morissette.
• The litigation proceeded to oral discovery examinations, including an examination of Ms McManus on August 13, 2013, during which Ms McManus was questioned by plaintiff counsel about various matters, including her email exchange with Dr Marshall. Ms McManus had not disclosed the email exchange prior to the date of her examination, and neither Mr Rayner nor his counsel had prior awareness of the email communication or its content.

[10] The notice of motion seeking leave to amend the plaintiff’s pleading was served on or about March 10, 2015.

[11] The precise amendments contemplated by the plaintiff are set forth in a draft amended pleading, attached to the notice of motion as Schedule “A”.

[12] Their general nature and purpose is described in the above “overview”, and I will not replicate all of the proposed amendments in their entirety here. However, by way of a more fulsome summary, they contemplate additional allegations that include the following:

• a prayer for relief as against Dr Marshall, which includes a request that the court award damages for “negligence and intentional infliction of mental suffering”, as well as aggravated damages;
• identification of Dr Marshall, including her residence, profession, speciality, and the manner in which she is licenced and regulated;
• a reference to the plaintiff having lived, at all material times, with significant mental challenges, diagnosed as comorbid mood and anxiety disorder;
• details of the aforesaid email exchange between Ms McManus and Dr Marshall, including acknowledgment that the “various unusual events” described by Ms McManus were ascribed “to a single but unidentified person”, (although she was speaking about the plaintiff), and that Dr Marshall’s opinion was solicited “about the unidentified person’s mental state”;
• emphasis on the fact that the situation described by Ms McManus was “not presented as a hypothetical but rather as a specific inquiry for insight into the unidentified person’s mental state”;
• characterization of Dr Marshall’s identified responding comments as a “third-party medical opinion” or “medical diagnosis” provided without the plaintiff’s knowledge or consent, and without any assessment of the plaintiff;
• an allegation that Dr Marshall provided her aforesaid “medical diagnosis” with the express intention that it would be relied upon by Ms McManus, and shared by her with others;
• an allegation that Ms McManus shared Dr Marshall’s “medical diagnosis” with the Stratford police “and other individuals”, (not identified in the contemplated pleading), without Ms McManus or Dr Marshall disclosing the existence or content of the “medical diagnosis” to the plaintiff;
• an allegation that a duty of care was owed by Dr Marshall to the plaintiff in the circumstances, including pleaded reliance on a specified CPSO policy statement, (provided in the plaintiff’s supplementary motion record), regarding third party medical reports;
• extended specification of what Dr Marshall’s alleged duty of care to the plaintiff is said to have required in the circumstances, (e.g., by way of subject identification, respect for privacy and dignity, obtaining the subject’s consent, acting with reasonable care and independence, making appropriate investigations and inquiries, and avoiding provision of “a false impression of diagnosis, recommendations, actions or other professional activities to a third party without being fully and properly informed” of the subject’s medical history and treatment);
• extended specification of how Dr Marshall is alleged to have acted negligently in the circumstances, (e.g., by generally failing to exercise reasonable care, diligence, judgment and independence, including provision of a “medical diagnosis about a specific but unidentified individual” that was also “inflammatory”, “inaccurate”, “unsubstantiated”, not “qualified”, “not reliable”, “not based on full knowledge”, “not based on complete investigation”, and given to Ms McManus without any corresponding warnings of such failings);
• allegations that Dr Marshall knew or ought to have known that Ms McManus and the Stratford would rely on the medical diagnosis, that the diagnosis “could lead to harm to the plaintiff”, and that the plaintiff was particularly vulnerable to such harm because of his mental illness;
• allegations that Dr Marshall’s conduct in rendering the “medical diagnosis” was “flagrant and outrageous”, and done in a manner “calculated to produce harm”;
• an allegation that the “medical diagnosis” informed the comments made by Ms McManus during her telephone conversation with Ms Bertrand on November 23, 2010, “and all other statements made by McManus about the plaintiff”;
• allegations, (advanced in paragraph 31 of the proposed amended pleading), that after commencement of this action, Ms McManus continued to repeat the allegedly defamatory words spoken to Ms Bertrand in the aforesaid telephone conversation, as well as “additional” but unspecified allegations against the plaintiff, “which resulted in Stratford Police Services seeking a peace bond against the plaintiff”, thereby putting him “to the emotional and financial hardship of defending a hearing”; and
• allegations that Dr Marshall’s “medical diagnosis” caused the plaintiff “serious injury”, including “visible and provable” deterioration of the plaintiff’s mental health status, including hospitalization, recurrent panic attacks, hopelessness, isolation, and avoidance of areas in Stratford where he might encounter Ms McManus and/or Dr Marshall.

[13] Before embarking on analysis of whether the plaintiff should be granted leave to make any or all of these particular proposed amendments, I turn next to consideration of the general principles which apply to such motions.

General principles – amendment of pleadings

[14] General principles applicable to motions for leave to amend pleadings include the following:

• Rule 26.01, (which sets out the general power of the court in relation to amendment of pleadings not involving the addition of a party), specifies that, on motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. The rule is mandatory, and applied liberally to permit amendments, provided there is no such prejudice that would result from the amendment.[^1]
• Rule 5.04(2) sets forth a similar rule which addresses, inter alia, situations involving amendment of pleadings to add a defendant. In particular, Rule 5.04 specifies in part that, “at any stage of a proceeding, the court may by order add … a party … on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment”. [Emphasis added.] As the wording of Rule 5.04(2) is similar to that of Rule 26.01, both rules generally are subject to the same tests, but Rule 5.04(2) is discretionary, not mandatory. Having said that, the discretion to refuse addition of a party, if all other tests applicable to pleading amendments are met, “is not whimsical but based on the principles of fairness and judicial efficiency”. For example, it would be appropriate to withhold consent if joining an additional party to the litigation would unduly complicate or delay the proceeding; if any circumstances exist which would justify relief against joinder under Rules 5.03(6) or 5.05; or if addition of a party appears to be an abuse of process. Subject to the court’s discretion, however, joinder generally should be granted to avoid multiplicity of proceedings and the risk of inconsistent determinations, and to ensure the participation of every proper party whose presence is necessary to adjudicate effectively and completely on issues raised in the proceeding.[^2]
• A motion for leave to amend must not effectively be treated as a motion for summary judgment. For example, at the pleading stage, the court must avoid weighing evidence, interpreting controversial contractual provisions, and making findings of fact. Desired amendments instead should instead be presumptively approved, unless they would occasion prejudice that cannot be compensated by costs or an adjournment.[^3]
• The burden of showing prejudice lies with the party opposing the amendment.[^4]
• The prejudice referred to in rule 26.01 does not include prejudice resulting from having to defend a claim a party is otherwise entitled to assert, or the success of the plea on its merits.[^5] However, although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings, and the court has a residual discretion to deny amendments were appropriate.[^6] For example, the court should not permit amendments which are shown to be scandalous, frivolous, vexatious, or an abuse of the court’s process, or which disclose no reasonable cause of action.[^7] In other words, the normal rules of pleading must be adhered to when seeking to amend, and no amendment should be allowed which, if originally pleaded, would have been struck.[^8] Nor should amendment of a pleading to raise a statute-barred claim be permitted.[^9] Proposed amendments also must otherwise comply with the rules of pleading, including the provision of sufficient particulars.[^10]

[15] In determining whether a proposed pleading discloses a reasonable cause of action, or “tenable” cause of action:

• The court applies the same test and general principles applicable to motions brought pursuant to Rule 21.01(1)(b), dealing with requests to strike out a pleading on the ground that it discloses “no reasonable cause of action”.
• It therefore is not necessary for the plaintiff to tender evidence to support the claim or claims contemplated by the pleading amendments. Nor is it necessary for the court to consider whether the amending party will be able to prove the amended claim. The court should not look beyond the pleadings to determine if the claim has any chance of success. The court instead must assume that the facts pleaded in the proposed amendment are true, (unless they are patently ridiculous or incapable of proof), read the pleading generously with allowance for drafting deficiencies, and grant leave permitting the amendments unless it is “plain and obvious” that the pleading discloses no reasonable cause of action; i.e., that success of the contemplated claim is clearly impossible.[^11]
• It is incumbent on a claimant to clearly plead the facts upon which he or she relies in making the claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion, and may only hope to prove them, but such facts must be pleaded as they are the firm basis on which the possibility of success of the claim must be evaluated.[^12]
• Moreover, allegations of legal conclusions are not facts, and by themselves are insufficient for the purposes of pleading. A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer or arrive at the desired legal conclusion.[^13]
• However, the threshold for sustaining a pleading as disclosing a reasonable cause of action is not a high one. In particular, novelty of the cause of action, (i.e., the fact that the law has not yet recognized a particular cause of action), is neither a concern nor a bar to the claim proceeding to trial. Indeed, the court generally should not, at an early stage of the proceedings, dispose of matters of law that are not fully settled in the jurisprudence. To the contrary, because the law is not static and unchanging, and actions formerly deemed hopeless may succeed with the passage of time, the courts must adopt a generous approach and err on the side of permitting a novel but arguable claim to proceed at trial.[^14]

[16] As for the restriction on granting leave to amend a claim, when doing so would allow the plaintiff to avoid an otherwise applicable limitation period:

• While the onus of proving prejudice normally is on the party resisting the proposed amendment, the situation is different in cases where a proposed amendment asserts a new cause of action after an applicable limitation period appears to have expired. In such cases, an inference of incompensible prejudice may be drawn, the onus shifts, and the party seeking the amendment must displace the presumption of prejudice; e.g., by demonstrating that discoverability is in issue.[^15]
• A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded, and no new facts are relied upon, amount simply to different legal conclusions drawn from the same set of facts, and/or simply provide particulars of an allegation already pled, or additional facts upon which the original right of action is based.[^16]

[17] With these general principles in mind, I now turn to determination of the particular leave application before me.

[18] In that regard, I start with proposed amendments that did not appear to be contentious.

Analysis

UNCONTESTED AMENDMENTS

[19] Neither Ms McManus nor Dr Marshall seemed to take any issue with the contemplated amendments indicated in the following portions of the proposed amended statement of claim:

a. the notice preamble, (referring to automatic dismissal of the action if not set down within five years);

b. paragraph 3, (referring to the plaintiff’s mental health challenges); and

c. paragraph 43, (referring to alleged deterioration of the plaintiff’s mental health status caused by the words spoken by Ms McManus to Ms Bertrand in the telephone conversation of November 23, 2010).

[20] I independently find that leave permitting those desired amendments should be granted, pursuant to Rule 26.01 and the authorities outlined above, and leave is granted accordingly.

ALLEGED REPETITION AND AUGMENTATION OF ORIGINAL SLANDER

[21] I turn next to the plaintiff’s desired amendments set forth in paragraph 31 of the proposed amended statement of claim, which was the focus of the objections raised by counsel for Ms McManus.

[22] That draft paragraph of the contemplated amended pleading reads in its entirety as follows:

Since this action began, McManus has continued to repeat the Words Spoken and made additional allegations against the Plaintiff, which resulted in Stratford Police Services seeking a peace bond against the Plaintiff as late as October 2012. The Plaintiff was put to the emotional and financial hardship of defending a hearing.

[23] It should be emphasized that the term “Words Spoken”, as used in the above paragraph, and elsewhere throughout the plaintiff’s original claim and proposed amended claim, is a term specifically defined elsewhere in the plaintiff’s pleadings. In particular, both paragraph 10 of the original statement of claim and paragraph 23 of the propose amended statement of claim expressly indicate that the term “Words Spoken” refers to specifically identified words alleged to have been spoken by Ms McManus to Ms Bertrand during a telephone conversation between the two women on November 23, 2010.

[24] In my view, the plaintiff should be denied leave to amend his pleading so as to include the allegations set forth in paragraph 31 of the draft statement of claim.

[25] My concerns in that regard are based primarily on apparent expiry of an applicable limitation period.

[26] Without limiting the generality of the foregoing, I note the following:

• In Ontario, claims for slander are subject to the basic two year limitation period set forth in section 4 of the Limitations Act, 2002, S.O. 2002, c.24, which reads as follows: “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
• Pursuant to s.5(2) of the Limitations Act, 2002, supra, a person with a claim is presumed to have known of the matters required to make a claim “discovered” on the day the act or omission on which the claim is based took place, unless the contrary is proved.
• In this case, paragraph 31 of the proposed amended statement of claim effectively makes reference to Ms McManus having repeated the “Words Spoken” and having made “additional allegations against the Plaintiff” within a defined time period. In particular:
  • Paragraph 31 says the comments of Ms McManus referred to therein were made “since this action began”; i.e., after the plaintiff’s original statement of claim was issued on October 6, 2011.
  • However, paragraph 31 also makes it clear that the comments referred to therein are those “which resulted in Stratford Police Services seeking a peace bond against the Plaintiff as late as October 2012”. That application proceeded to a hearing and disposition on October 24, 2012, which in turn means that the comments referred to in paragraph 31 must refer to comments allegedly made by Ms McManus before that date.
  • By its own defined temporal parameters, paragraph 31 accordingly refers to comments allegedly made by Ms McManus between October 6, 2011, and October 24, 2012.
• The plaintiff’s motion to amend his pleading, so as to include reference to such further comments by Ms McManus, was not brought until March 10, 2015. In other words, the plaintiff did not take any formal measures to assert any claims relating to any comment allegedly made by Ms McManus during the period identified by paragraph 31 until more than two years had passed after that period.
• Nothing in the plaintiff’s proposed amended pleading alleges or suggests that the making of any such comment by Ms McManus, during the period identified by paragraph 31, was incapable of being discovered within two years of that period having passed.
• Similarly, nothing in the plaintiff’s motion material indicates or suggests that the making of any such comment by Ms McManus, during the period identified by paragraph 31, was incapable of being discovered within two years of that period having passed. (That omission stands in stark contrast to evidence in the plaintiff’s motion material expressly indicating and emphasizing that neither the plaintiff nor his counsel were aware of the fact or content of the email exchange between Ms McManus and Dr Marshall until the oral discovery examination of Ms McManus on August 13, 2013.)
• Moreover, I note that, through his counsel, the plaintiff obviously had and exercised a formal opportunity, during hearing of the application for a peace bond on October 24, 2012, to cross-examine Ms McManus under oath about all matters leading to the application for a peace bond.
• Plaintiff counsel did not dispute any of the above, but suggested that an attempt to plead reliance on such further comments made by Ms McManus, outside the two year limitation period from the time of the comments being made by Ms McManus, raised no concerns because doing so did not assert any new causes of action. In particular, it was suggested by plaintiff counsel that the amendments contemplated in paragraph 31 of the proposed amended statement of claim simply make reference to additional damages flowing from the same cause of action previously asserted against Ms McManus in her original claim. I disagree. In that regard:
  • “As a general rule, every publication of defamatory words or matter to a new person is a distinct publication and gives rise to a separate cause of action.”[^17]
  • In his original pleading, the plaintiff advanced a claim for defamation arising from specified comments allegedly published by Ms McManus to Ms Bertrand in a telephone conversation on November 23, 2010. He sought damages allegedly flowing from that publication of the “Words Spoken”, and that corresponding cause of action.
  • In paragraph 31of his proposed amended pleading, the plaintiff clearly seeks to plead and rely on later and separate publications or republications of defamatory comments by Ms McManus.
  • Moreover, in paragraph 31 of his proposed amended pleading, the plaintiff also clearly seeks to plead and rely on alleged publications or republications of defamatory comments to a different person or persons than Ms Bertrand. In particular, the plaintiff obviously relies on publication or republication of alleged comments by Ms McManus to the Stratford Police Services, insofar as he expressly relies on the comments in question allegedly having resulted in the Stratford Police Services seeking a peace bond against the plaintiff.
  • Furthermore, it is clear that the additional damages alleged in paragraph 31 of the proposed amended pleading, (i.e., the emotional and financial hardship of the plaintiff being put to defending the peace bond hearing), are said to have been caused by the alleged later and separate publications or republications identified in paragraph 31, rather than by the original publication of comments by Ms McManus to Ms Bertrand identified in the plaintiff’s initial statement of claim.
  • In the result, I think it clear that the allegations in paragraph 31 of the proposed amended statement of claim attempt to assert a new cause of action for defamation, (or new causes of action for defamation, depending on the number of later and separate publications or republications on which the plaintiff seeks to rely), and a claim for damages flowing therefrom. However, any such new cause of action and corresponding claim for damages appears to be barred by operation of an applicable limitation period, insofar as the underlying comments clearly were made more than two years before the plaintiff took any formal steps to advance a claim based on their publication or republication.[^18]
• The circumstances therefore give rise to a presumption of non-compensable prejudice to Ms McManus if the amendments contemplated by paragraph 31 of the plaintiff’s proposed pleading are permitted.
• The onus of rebutting that presumption of prejudice shifted to the plaintiff, and in my view he has not discharged that burden.

[27] Such considerations are sufficient, in my view, to convince me that the plaintiff should not be granted leave to make the amendments set forth in paragraph 31 of his proposed pleading. The proposed amendments would give rise to prejudice incapable of being remedied by costs or an adjournment.

[28] While that is sufficient to deny the plaintiff leave to make those amendments, in my view that conclusion is buttressed, at least in part, by the plaintiff’s failure to provide adequate particulars in relation to those contemplated allegations.

[29] In that regard, I have in mind further principles of pleading in relation to defamation claims, which include the following:

• As repeatedly emphasized by our courts, and leading authors on the law of defamation, pleadings in defamation cases are more important than in any other class of actions. In particular, the statement of claim must contain a concise statement of the following material facts necessary to allege a complete cause of action for defamation:
  • publication by the defendant, (including particulars of where, when and to whom a slander is alleged to have been uttered by the defendant);
  • the words published;
  • that the published words refer to the plaintiff;
  • where necessary, the facts relied upon as causing the words to be understood as defamatory or referring to the claimant and knowledge of those facts by those to whom the words were published; and
  • where the words are slander actionable per se, any additional facts making them actionable, (such as their being calculated to disparage the plaintiff in an office held by him or that they have caused the plaintiff special damage).[^19]
• While it is no longer the law of Ontario that a defamation plaintiff must plead the exact words complained of, the words must still be set out with reasonable certainty in the plaintiff’s pleading. The test is whether they have been made sufficiently clear, and pleaded with sufficient particularity, to enable the defendant to understand whether the relevant words have the meaning alleged or some other meaning, and to enter whatever defences may be appropriate in light of that meaning.[^20]
• In limited circumstances, a court therefore may permit a plaintiff to proceed with a defamation claim despite an inability to state with certainty, at the pleading stage, the precise words published by the defendant. However, the plaintiff must still show:
  • that he or she has pleaded all the particulars available to him or her with the exercise of reasonable diligence;
  • the he or she is proceeding in good faith with a prima facie case and is not on a “fishing expedition”, (which normally requires the pleading of a coherent body of facts surrounding an incident, such as time, place, speaker and audience);
  • that the coherent body of facts of which the plaintiff does have knowledge shows not only that there was an utterance or a writing emanating from the defendant, but also that the emanation contained defamatory material of a defined character of and concerning the plaintiff; and
  • that the exact words are not in the plaintiff’s knowledge but known to the defendant.[^21]

[30] In my view, the proposed amendments in paragraph 31 fall short of those demanding standards for pleadings in relation to a defamation claim such as this.

[31] My concerns in that regard are not as strong in relation to alleged repetition, by Ms McManus”, of the “Words Spoken” to the Stratford Police Services. As noted above, the particular alleged defamatory comments underlying that term are defined with specificity elsewhere in the plaintiff’s original and proposed amended pleadings. Had the plaintiff confined his pleading in paragraph 31 of the draft amended pleading to an alleged republication to the Stratford Police Services of the “Words Spoken”, supplemented by further clarification that precise particulars of the time, date and other circumstances of that alleged republication lay within the knowledge of the defendant, and currently are unavailable to the plaintiff through the exercise of reasonable diligence, (which the plaintiff may or may not have been able to demonstrate in the circumstances), I think that might have been sufficient to comply with the rules of pleading in this area.

[32] However, the amendments proposed in paragraph 31 are not supplemented in that necessary way, and obviously go much farther by making reference to completely unspecified “additional allegations” Ms McManus is alleged to have made, resulting in the Stratford Police Services seeking a peace bond in relation to the plaintiff.

[33] In my view, such a broad and unspecified defamation claim falls far short of the particulars of pleading demanded in this area of the law.

[34] Without limiting the generality of the foregoing, Ms McManus would be confronted with a bald allegation of words not made sufficiently clear for her to understand the source of the additional defamation claim or claims she is facing in that regard. In particular, Ms McManus would have absolutely no way to determine whether the unspecified “additional allegations” were published at all by her, let alone whether they were defamatory or defensible.

[35] In the circumstances, apart from the limitation period concerns, I therefore still would not have granted the plaintiff leave to make such desired amendments because they fail to comply with other applicable rules of pleading.[^22]

[36] However, were that the only concern, I would have dismissed the plaintiff’s motion to amend in that regard without prejudice to any further application for leave to make revised and supplemented amendments that provided sufficient particulars, having regard to the principles outlined above.

[37] I turn next to the plaintiff’s proposed pleading amendments vis-à-vis Dr Marshall, starting with the plaintiff’s contemplated claim for negligence.

NEGLIGENCE CLAIM AGAINST DR MARSHALL

[38] It was expressly conceded that issues concerning discoverability of the facts underlying the proposed negligence claim against Dr Marshall prevent immediate determination of whether the contemplated claim may be barred by an applicable limitation period.

[39] Counsel for Dr Marshall instead focused on whether the proposed amendments relating to the contemplated negligence claim disclose a reasonable or tenable cause of action.

[40] In that regard, there was no suggestion that the proposed amendments fail to adequately plead or particularize alleged breaches of the duty of care said to be owed to the plaintiff by Dr Marshall, or damages said to have been experienced by the plaintiff as a result.

[41] Rather, it was argued that the plaintiff’s proposed amendments fail to plead facts sufficient to establish that Dr Marshall owed any duty of care to the plaintiff in the circumstances, thereby making it “plain and obvious” that the proposed negligence claim against Dr Marshall has no chance of success.

[42] Moreover, the arguments in that regard focused on both aspects or “stages” of the analysis used by courts, in relation to negligence claims, to assess the question of whether a private law duty of care exists:

i. First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity or “neighbourhood” such that, in the reasonable contemplation of the former, carelessness on his or her part may be likely to cause damage to the latter, in which case a prima facie duty of care arises; and

ii. Second, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit, the scope of the duty of the class of persons to whom it is owed or the damages to which a breach of it may give rise.[^23]

[43] In relation to the “first stage”, it was submitted that the plaintiff’s proposed amendments do not plead or rely upon any of the factors mentioned by the Supreme Court of Canada in Cooper v. Hobart, supra, at paragraph 34, that assist in defining the relationship between the claimant and the proposed defendant to a negligence claim. In particular, counsel for Dr Marshall submitted that nothing in the proposed amendments makes any express reference to any relevant expectations of Mr Rayner, any representations made to him by Dr Marshall or others, any reliance placed on Dr Marshall by Mr Rayner, or any relevant “property or other interests”.

[44] Moreover, it was emphasized that, in the context of medical negligence:

• a duty of care generally is owed only to a physician’s patients[^24], (with nothing in the proposed amendments suggesting that there was ever such a relationship between Dr Marshall and Mr Rayner); and
• the circumstances of this case do not fall within the limited and “unique” contexts in which our courts have found that a physician might owe a duty of care to non-patients.[^25]

[45] As for the CPSO policy relating to “Third Party Reports”, relied upon by the plaintiff, counsel for Dr Marshall argued that the policy was expressly intended to address only third party processes “not for the provision of health care”, (whereas the circumstances show that Dr Marshall was addressing the concerns and worries of Ms McManus). Furthermore, it was said that the CPSO policy focused on defining the possible scope of such a duty of care, where it exists, and not on the creation of such a duty of care.

[46] In relation to the “second stage” of analysis applied to determining whether a duty of care exists, it was argued that policy considerations should negate any prima facie duty of care that might arise from the circumstances upon which the plaintiff intends to plead and rely.

[47] In particular, it was emphasized that imposition of such a duty of care inevitably would give rise to conflicting duties of care, (i.e., between the duties owed by the physician to his or her patient on the one hand, and the duties allegedly owed by the physician to the third party on the other), which militates against recognition of a proposed additional but conflicting duty.[^26]

[48] On a related note, it was argued that imposing the alleged duty of care to third parties, in such circumstances, would dissuade physicians from providing timely and socially important advice. In particular, it was argued that the spectre of possible civil liability to third parties inevitably would deter physicians, and psychiatrists in particular, from providing requested counsel on a timely basis to those seeking professional advice as to whether a third party poses a serious and imminent threat or risk of harm owing to his or her possible mental illness.[^27]

[49] Finally, it was submitted that recognition of such a duty of care and corresponding negligence claim would facilitate an effective “end run” around the restrictions governing the more applicable tort of defamation, and preclude resort to defences that might otherwise be available to physicians facing claims because of comments made or published to others, such as qualified privilege.[^28]

[50] I frankly am reluctant to grant leave permitting the proposed “negligence claim” amendments, as it seems to me that:

• there is authority confirming the appropriateness of scrutinizing a newly asserted duty of care at the pleading stage, even where the category of duty alleged has not been previously litigated;[^29]
• the proposed pleading is sparse when it comes to allegations of fact relied upon to support a relationship between Mr Rayner and Dr Marshall sufficiently proximate to create a duty of care, and in my view there is indeed little focus on the sort of factors expressly identified by the Supreme Court of Canada; and
• perhaps most importantly, I think there is much to be said for the above policy concerns, identified by counsel for Dr Marshall, that appear likely to flow from the creation of the alleged duty of care.

[51] However, the Supreme Court of Canada did not suggest that the particular “proximity” factors expressly mentioned in Cooper v. Hobart were intended to be exhaustive. To the contrary, it was emphasized that “the factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case”, and “one searches in vain for a single unifying characteristic”. Moreover, the Supreme Court cited, with approval, the following comments of Lord Goff in Davis v. Radcliffe, [1990] 2 All E.R. 536 (P.C.), at p.540:

It is not desirable, at least in the present stage of the development of the law, to attempt to state in broad general propositions the circumstances in which such proximity may or may not be held to exist. On the contrary, … it is considered preferable that “the law should develop categories of negligence incrementally and by analogy with established categories”.

[52] In this case, the plaintiff’s proposed pleading includes, expressly and/or through incorporation of documents by reference, at least the following factual allegations:

• Mr Rayner, Ms McManus and Dr Marshall all resided within the city of Stratford, (a relatively small and close knit community);
• all three individuals also were members of a particular volunteer organization, in Stratford, which was focused on environmental matters; and
• while the emails sent by Ms McManus to Dr Marshall did not identify the third party in respect of which she had concerns by name:
  • it was made clear that the situation described by Ms McManus was not hypothetical;
  • Ms McManus was indeed consulting Dr Marshall about Mr Rayner;
  • Ms McManus made it clear in her emails that the individual causing her concern was male;
  • the content of the emails sent and/or forwarded by Ms McManus made it clear that the individual causing her concern was somehow connected with “the environmental movement in [the] area”;
  • Mr Rayner was the only male volunteer at PCG, (which in turn might suggest that, in relation to local environmental matters, the number of male volunteers involved was relatively low); and
  • Ms McManus was describing an individual who was unidentified but specific, (and therefore capable of being identified).

[53] Counsel apparently have searched in vain for a precedent suggesting that such circumstances may give rise to the duty of care the plaintiff seeks to allege, or a precedent suggesting that such a prima facie duty of care would not be countered by applicable policy considerations.

[54] However, as noted above, novelty of a cause of action is not a concern, and our courts instead have been directed by appellate authority to adopt a generous approach and err on the side of permitting a novel but arguable claim to proceed at trial.

[55] Indeed, approximately 14 months ago, I received a direct reminder from our Court of Appeal, in Vogler v. Lemieux, [2014] O.J. No. 5539 (C.A.), at paragraph 4, that where the circumstances of a case appear to be unusual, the claim sought to be advanced appears to be novel, (e.g., where no party can point to any authorities directly on point), and material facts remain contested, “it cannot be said that the proposed claim is unsound or that it is clearly impossible that the claim could succeed at trial”.

[56] In my view, the plaintiff’s contemplated negligence claim against Dr Marshall falls within that description.

[57] Moreover, my conclusion in that regard is reinforced by authorities specifically emphasizing that the categories of negligence in which a duty of care is owed are not closed, and that a novel claim for negligence should be struck at the pleadings stage only where it is clearly unsustainable.[^30]

[58] In the circumstances, I therefore do not think it can be said, at this stage of the proceeding, that the proposed amendments relating to negligence do not disclose a cause of action.

[59] In my opinion, all of the supplementary considerations required by Rule 5.03 also favour joinder of the plaintiff’s claims against Dr Marshall with the current action. In particular, I see no benefit to forcing the plaintiff to commence a separate proceeding, only to have the parties or the court then take steps to ensure simultaneous or sequential trial in order to avoid multiplicity of proceedings and/or possibly inconsistent findings of fact.

[60] Leave accordingly must be granted permitting the amendments set forth in the style of cause, recipient address information, paragraph 2, (except for the words “and intentional infliction of mental suffering” addressed below), and paragraphs 5 and 9-19, inclusive, of the proposed amended statement of claim.

[61] Leave also should be granted permitting the contemplated amendments set forth in paragraph 32 of the statement of claim, albeit with the deletion of the words “and all other statements made”, (consistent with my above ruling denying leave to make reference to such other nebulous, unspecified and later statements alleged to have been made by Ms McManus about the plaintiff). Paragraph 32 of the plaintiff’s amended pleading therefore should read as follows: “The Medical Diagnosis informed the Words Spoken by McManus about the Plaintiff.”

[62] As Dr Marshall accordingly is being added as a defendant to the proceeding, I also agree that leave should be granted permitting the further incidental amendments contemplated by the plaintiff, (in paragraphs 4, 6-8, 20, 22-23, 26, 28, 33, 39, and 40-42 inclusive), to clarify and confirm whether certain original allegations carried forward into the amended pleading are directed towards Ms McManus and/or Dr Marshall.

CLAIM FOR INTENTIONAL INFLICTION OF MENTAL SUFFERING

[63] The remaining proposed amendments relate to the plaintiff’s contemplated claim against Dr Marshall for “intentional infliction of mental suffering”, (also referred to, by some authorities, as “intentional infliction of nervous shock”).[^31]

[64] The essential elements of that recognized tort may be summarized as follows:

i. flagrant or outrageous conduct on the part of the defendant;

ii. which is calculated to produce harm; and

iii. which results in a visible and provable illness or injury to the plaintiff.[^32]

[65] In opposing the plaintiff’s contemplated amendments relating to intentional infliction of mental suffering, counsel for Dr Marshall conceded that the third element of the tort would be sufficiently addressed by the plaintiff’s contemplated pleading, and I independently find that to be the case.[^33]

[66] Counsel for Dr Marshall focused instead on the first two elements of the tort, and argued that the plaintiff’s contemplated pleading in that regard disclosed no reasonable or tenable cause of action. In particular:

• It was said that the plaintiff’s characterization of Dr Marshall’s alleged conduct as “flagrant and outrageous” is simply a bald and unsupported allegation, and that this court should instead find that the conduct of Dr Marshall was “entirely appropriate” in the circumstances.
• It was said that the allegation of Dr Marshall having acted in a way “calculated to harm” Mr Rayner is not only a similar bald allegation, but also one incapable of being reconciled to the plaintiff’s other proposed allegations faulting Dr Marshall for offering an opinion in relation to someone whose identity she had taken no steps to confirm.

[67] However, a review of authorities in this area suggests there is no categorical test for determining whether particular alleged conduct should be regarded as flagrant, extreme or outrageous for the purpose of satisfying the first element of the tort.[^34] Such characterizations seem inherently very fact specific and highly dependent on the eye of the beholder, (in this context, the trier of fact), and counsel were unable to locate or provide any precedent dealing with a similar situation.

[68] Similarly, counsel apparently were unable to locate or provide any “intentional infliction of mental suffering” precedent dealing with a similar situation in which the proposed defendant’s conduct allegedly was directed towards an unidentified but specific and identifiable person.

[69] When that apparently novel and unusual aspect of the plaintiff’s proposed claim is combined with the reality that there are relevant disputes about material facts, (including Dr Marshall’s subjective intent), and other authorities confirming that “intention” in this context may include “reckless disregard”,[^35] it seems to me that the plaintiff must be granted leave to make his proposed amendments relating to Dr Marshall’s alleged “intentional infliction of mental suffering”.

[70] In particular, applying the same considerations noted above, (e.g., at paragraphs 54-55 herein), it cannot be said, at the pleading stage, that the proposed claim for intentional infliction of mental suffering is unsound, or that it is clearly impossible that the claim could succeed at trial.

[71] The plaintiff accordingly must be granted leave to make the remaining contemplated amendments in that regard, as set forth in paragraphs 2 and 34-36 of the proposed amended statement of claim.

Costs

[72] Because my decision was reserved, the parties were unable to make any submissions regarding costs having regard to the substantive outcome of the motion. If the parties are unable to reach an agreement on costs:

a. the plaintiff may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision;

b. the defendants then may each serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the plaintiff’s written cost submissions; and

c. the plaintiff then may serve and file, within one week of receiving the last of any responding cost submissions from the defendants, reply cost submissions not exceeding two pages in length.

[73] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

“Justice I. F. Leach”

Justice I F. Leach

Date: January 25, 2016

[^1]: See Rule 26.01 of the Rules of Civil Procedure, and authorities such as: King’s Gate Developments Inc. v. Drake (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841 (C.A.); Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768 (C.A.); Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517, [2009] O.J. No. 2642 (C.A.); and Davies v. Clarington (Municipality), 2010 ONSC 418, [2010] O.J. No. 3703 (S.C.J.), leave to appeal refused [2011] O.J. No. 3555 (S.C.J.).

[^2]: See Rule 5.04(2) of the Rules of Civil Procedure, and authorities such as: Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CanLII 8620 (ON CA), [2001] O.J. No. 4567 (C.A.); Plante v. Industrial Alliance Life Insurance Co., 2003 CanLII 64295 (ON SC), [2003] O.J. No. 3034 (Master), at paragraphs 25-27; CGI Information Systems & Management Consultants Inc. v. Financial Centre Securities Corp., [2006] O.J. No. 232 (S.C.J.), at paragraphs 12-17; Swearingen v. Bowater Canadian Forest Products Inc., 2007 CanLII 46252 (ON SC), [2007] O.J. No. 4251 (S.C.J.); Schembri v. Way (2012), 112 O.R. (2d) 241 (C.A.), at paragraph 26; and Blue Simcoe Developments Inc. v. 714222 Ontario Inc., [2015] O.J. No. 621 (Div.Ct.).

[^3]: See Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), [2001] O.J. No. 3576 (C.A.), at paragraphs 35 and 37.

[^4]: See Barker v. Furlotte (1985), O.A.C. 75 (Div.Ct.).

[^5]: See, for example: Hanlan v. Sernesky (1996), 1996 CanLII 1762 (ON CA), 95 O.A.C. 297 (C.A.); and CGI Information Systems & Management Consultants Inc. v. Financial Centre Securities Corp., supra.

[^6]: Marks v. Ottawa (City), 2011 ONCA 248, at paragraph 19.

[^7]: See Andersen Consulting v. Canada (Attorney General), supra, at paragraph 37.

[^8]: See, for example: Keneber Inc. v. Midland (Town), 1994 CanLII 7221 (ON SC), [1994] O.J. No. 366 (S.C.J.), at paragraph 16; Toronto Dominion Bank v. Shuter, [2003] O.J. No. 1019 (Master), at paragraph 17; and Marks v. Ottawa (City), supra, at paragraph 19.

[^9]: See, for example, Frohlick v. Pinkerton Canada Ltd. (2008), 2008 ONCA 3, 88 O.R. (3d) 401 (C.A.); Jourdain v. Ontario, 2008 CanLII 35684 (ON SC), [2008] O.J. No. 2788 (S.C.J.); Golic v. ING Insurance Co. of Canada (2009), 2009 ONCA 836, 98 O.R. (3d) 394 (C.A.); and Chrabalowski v. BMO Nesbitt Burns Inc., 2011 ONSC 3392 (Div.Ct.).

[^10]: See Plante v. Industrial Alliance Life Insurance Co., supra, at paragraph 21, and Marks v. Ottawa (City), supra, at paragraph 19.

[^11]: See, for example: Chatelaine Homes Ltd. v. Miller (1982), 1982 CanLII 1996 (ON CA), 39 O.R. (2d) 611 (C.A.); Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959; Doe v. Metropolitan Toronto (Municipality)(Commissioners of Police) (1990), 1990 CanLII 6611 (ON SC), 74 O.R. (2d) 225 (Div.Ct.); R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 CanLII 2731 (ON CA), 5 O.R. (3d) 778 (C.A.); Prete v. Ontario (1993), 1993 CanLII 3386 (ON CA), 16 O.R. (3d) 161 (C.A.); Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.); Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (C.A.); Griffiths v. Canaccord Capital Corp., 2005 CanLII 42485 (ON SCDC), [2005] O.J. No. 4897 (Div.Ct.); Schembri v. Way, supra, and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45.

[^12]: R. v. Imperial Tobacco Canada Ltd., supra. at paragraph 22.

[^13]: See, for example: Basdeo v. University Health Network, [2002] O.J. No. 263 (S.C.J.), at paragraph 13, (in relation to allegations of professional negligence based on an alleged failure to demonstrate proper skill and care); and Deep v. Ontario, [2004] O.J. No. 2734 (S.C.J.), at paragraph 38, (in relation to allegations of intentional or malicious conduct).

[^14]: See, for example: Doe v. Metropolitan Toronto (Municipality)(Commissioners of Police), supra; Hanson v. Bank of Nova Scotia (1994), 1994 CanLII 573 (ON CA), 19 O.R. (3d) 142 (C.A.); Nash v. Ontario, supra; McDonald-Wright v. O’Herlihy (2005), 5 C.P.C. (6th) 178 (Ont.S.C.J.); and R. v. Imperial Tobacco Canada Ltd., supra.

[^15]: See, for example: Mota v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2003), 2003 CanLII 47526 (ON CA), 63 O.R. (3d) 737 (C.A.), at p.748; Burnac Leaseholds Inc. v. Haverty & Rankin Ltd. Architects (2002), 2003 CanLII 72348 (ON SCDC), 67 O.R. (3d) 685 (Div.Ct.); Plante v. Industrial Alliance Life Insurance Co, supra, at paragraph 21(a); CGI Information Systems & Management Consultants Inc., supra; and Frohlick v. Pinkerton Canada Ltd., supra.

[^16]: See, for example: Cahoon v. Franks, 1967 CanLII 77 (SCC), [1967] S.C.R. 455, at paragraph 7; Gladstone v. Canadian National Transportation Ltd., 2009 CanLII 38789 (ON SCDC), [2009] O.J. No. 3118 (S.C.J.), at paragraphs 39-43; Bank of Nova Scotia v. PCL Constructors Canada Inc. (2009), 86 C.L.R. (3d) 102 (Ont.Master); Ascent Incorporated v. Fox 40 International Inc., [2009] O.J. No. 2964 (Master), at paragraph 3; and Spiral Aviation Training Co. LLC v. Canada (Attorney General), [2011] O.J. No. 4341 (Master), at paragraph 14.

[^17]: See Klar et al., Remedies in Tort, Chapter 6 – Defamation, at paragraph 65, and the authorities referred to therein.

[^18]: To suggest a different outcome, plaintiff counsel relied on the case of Durakovic v. Guzman, [2014] O.J. No. 4098 (Div.Ct.), in which the Divisional Court allowed an appeal from a Master’s refusal to permit, after ostensible expiry of an applicable limitation period, amendments making reference to additional slanderous comments allegedly made by the defendant. In my view, however, the Durakovic case is distinguishable from the one before me. In particular, the plaintiff in that matter was found to be providing, through his desired amendments, further particulars of the same allegedly defamatory conversation already identified in the original statement of claim. That obviously is not the case here, where the plaintiff expressly wishes to plead and rely upon later and separate instances on which Ms McManus is alleged to have made slanderous comments about the plaintiff, which were published or republished to a different person or persons.

[^19]: See, for example: Swan v. Craig, [2000] O.J. No. 1377 (S.C.J.), at paragraph 11; and Lysko v. Braley, 2006 CanLII 11846 (ON CA), [2006] O.J. No. 1137 (C.A.), at paragraph 91.

[^20]: Lysko v. Braley, supra, at paragraph 102.

[^21]: See Magnotta Winery Ltd. v. Ziraldo, 1995 CanLII 7122 (ON SC), [1995] O.J. No. 2619 (S.C.J.), at paragraph 14, cited with approval in Lysko v. Braley, supra, at paragraph 101.

[^22]: Although plaintiff counsel suggested that such concerns could be addressed by the court permitting the desired amendments, after which Ms McManus then could serve a formal demand for particulars, I disagree. I see no reason why Ms McManus should be put unnecessarily to effort and expense which can be avoided by the plaintiff being required to plead the particulars he should have pleaded in the first place. Nor should the litigation be further delayed by the necessity of such additional steps.

[^23]: See, for example: Anns v. Merton London Borough Council, [1978] A.C. (H.L.), at pp.751-752; Cooper v. Hobart (2001), 2001 SCC 80, 206 D.L.R. (4th) 211 (S.C.C.), at p. 203; and Edwards v. Law Society of Upper Canada (2001), 206 D.L.R. (4th) 211 (S.C.C.), at pp.217-218.

[^24]: See Picard and Robertson, Legal Liability of Doctors and Hospitals in Canada, (4th ed.), at pp. 212-213.

[^25]: For example, reference was made to our Court of Appeal’s decision in Lowe v. Guarantee Co. of North America, 2005 CanLII 80693 (ON CA), [2005] O.J. No. 2991 (C.A.), which found it “at least arguable” that Ontario’s legislative framework of statutory accident benefits, in relation to automobile insurance, creates a relationship of sufficient proximity between those claiming benefits and Designated Assessment Centres who perform assessments.

[^26]: See, for example, Winnipeg Child & Family Services (Northwest Area) v. G. (D.F.), 1997 CanLII 336 (SCC), [1997] 3 S.C.R. 925, at p.949; and Paxton v. Ramji, [2008] O.J. No. 3964 (C.A.), at paragraph 76.

[^27]: For example, it was suggested that such a physician or psychiatrist might be reluctant to provide any such advice without first obtaining the third party’s consent, and/or conducting a comprehensive examination of the third party, neither of which might be a realistic possibility in such circumstances.

[^28]: See, for example: Foran v. Richman (1975), 1975 CanLII 760 (ON CA), 10 O.R. (2d) 634 (C.A.), at paragraph 10; and Shannahan v. Johnson (2010), 189 A.C.W.S. (3d) 560 (B.C.S.C.), at paragraph 10.

[^29]: See, for example: Boudreau v. Bank of Montreal (2012), 2012 ONSC 3965, 111 O.R. (3d) 544 (S.C.J.), additional reasons 2012 ONSC 6048, affirmed 2013 ONCA 211, leave to appeal refused 2013 Carswell-Ont 15571 (S.C.C.).

[^30]: See, for example: Hanson v. Bank of Nova Scotia, supra; and Choc Hudbay Minerals Inc. (2013), 2013 ONSC 1414, 116 O.R. (3d) 674 (S.C.J.).

[^31]: See, for example, Klar et al., Remedies in Tort, chapter 10.

[^32]: Ibid. at paragraph 10, and authorities cited therein including Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at paragraph 48.

[^33]: For example, in paragraph 36 of the proposed amended statement of claim, Mr Rayner alleges that the “medical diagnosis” offered by Dr Marshall to Ms McManus “resulted in visible and provable deterioration in the plaintiff’s mental health status, including hospitalization, recurrent panic attacks in social situations, hopelessness, isolation, and avoiding areas of Stratford where he fears he may have contact with the defendants or either of them.”

[^34]: See, for example, the authorities canvassed in relation to this topic in Klar et al., Remedies in Tort, c.10, at paragraphs 12-13.

[^35]: See, for example, Klar et al., Remedies in Tort, c.10, at paragraph 16, and authorities referred to therein.