Court File and Parties
COURT FILE NO.: CV-14-513849 DATE: 20160714 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES IAN STUART Plaintiff – and – THE UNIVERSITY OF WESTERN ONTARIO Defendant
Counsel: Michael Miller, for the Plaintiff Ashley P. Richards, for the Defendant
HEARD: July 13, 2016
M. D. FAIETA, j
REASONS FOR DECISION
INTRODUCTION
[1] The Defendant, The University of Western Ontario, brings this motion to strike the Further Amended Statement of Claim (“Amended Claim”) on the grounds that: (1) it discloses no reasonable cause of action and/or is frivolous, vexatious and otherwise an abuse of process; (2) it fails to plead that the actions of the Defendant went beyond the academic discretion afforded to a university.
[2] This is the second time that the Defendant brings this motion. For reasons dated August 28, 2015, I ordered that the pleadings in the Claim with respect to negligence and negligent misrepresentation be struck without leave to amend. I also ordered that the pleadings in the Claim with respect to breach of contract, breach of fiduciary duty and breach of duty of good faith be struck with leave to amend.
[3] As with the original Claim, the essence of the Amended Claim is that the Defendant failed to provide the Plaintiff, James Ian Stuart, with satisfactory post-graduate training in medical microbiology and, as a result, he failed to pass the qualifying examination administered by the Royal College of Physicians and Surgeons.
[4] The following issues are raised by this motion: (1) Does the Claim plead sufficient facts to establish a claim in breach of contract and a claim for breach of fiduciary duty? (2) Is it plain and obvious that the Amended Claim fails to plead that the wrongful actions of the Defendant went beyond the immunity afforded for the exercise of “academic discretion”?
[5] For the reasons described below, I order that the pleadings for breach of contract be struck with leave to amend. I also order that the claim for breach of fiduciary duty be struck with leave to amend.
ANALYSIS
[6] Rule 25.06(1) of the Rules of Civil Procedure states:
Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
[7] I agree with the views expressed by Justice McQuaid in Touche Ross Ltd. v. McCardle, [1987] P.E.I.J. No. 90, at paras. 4-5:
The essence of a properly drawn pleading is clarity and disclosure. With respect to a statement of claim in particular, the defendant, or each defendant if there be more than one, must know from the face of the record precisely what case he, or each of them, has to answer. He must not be left to speculate or to guess the particulars of the case alleged against him and of the remedy sought from him. He must not be left to ascertain this through some esoteric process of divination.
Perhaps the best test of a well and properly drawn pleading is this, that a stranger to the proceeding, reasonably versed in legal terminology, might pick up the document and upon first reading readily ascertain the particulars of the cause of action, the specific nature of the defendant's alleged breach of duty or other deficiency, the precise nature of the remedy sought and the reason why such a remedy is, in fact, sought. Unless all of this information is patently and readily available on the face of the record, then, it seems to me, the pleading is, itself, defective.
[8] In Cerqueira v. Ontario, 2010 ONSC 3954, Justice Strathy, as he then was, outlined the following general principles that govern the form and content of pleadings:
(a) 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 …;
(b) the causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material…;
(c) every pleading must contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved: rule 25.06; this includes pleading the material facts necessary to support the causes of action alleged;
(d) a party is entitled to plead any fact that is relevant to the issues or that can reasonably affect the determination of the issues, but it may not plead irrelevant, immaterial or argumentative facts or facts that are inserted only for colour …;
(e) allegations that are made only for the purpose of colour or to cast a party in a bad light, or that are bare allegations, are scandalous and will be struck under rule 25.11(b) …;
(f) the court may strike part of a pleading, with or without leave to amend, on the grounds that (a) it may prejudice or delay the trial of an action, (b) it is scandalous, frivolous or vexatious, or (c) it is an abuse of the process of the court: rule 25.11;
(g) on a motion to strike a pleading under rule 21.01(1) on the ground that it discloses no cause of action, it must be shown that it is plain, obvious and beyond doubt that the claim cannot succeed and the pleading must be read generously; allegations of fact, unless plainly ridiculous or incapable of proof must be accepted as proven …;
(h) any fact that can affect the determination of rights between the parties can be pleaded, but the court will not permit facts to be alleged that are immaterial or irrelevant to the issues in the action …;
(i) allegations of fraud, misrepresentation, negligence and conspiracy must be pleaded with particularity …;
[9] The following principles, taken largely from the Ontario Court of Appeal’s decision in MacCreight v. Canada, 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39, apply on a motion to strike a claim under Rule 21:
- In the interests of efficiency and correct results, there is a need to weed out hopeless claims;
- If the cause of action pleaded has been recognized, all of its essential elements must be pleaded;
- If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed;
- The claim should not be struck merely because it is novel or complex, nor because the defendant presents a potentially strong defence to the claim; (referring to Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, para. 33; Amato v. Welsh, 2013 ONCA 258, [2013] O.J. No. 1857, para. 32)
- The facts pleaded are accepted as being true for the purposes of the motion unless they are manifestly incapable of being proven, patently ridiculous or bald conclusory statements; (referring to Gaur v. Datta, 2015 ONCA 151, [2015] O.J. No. 1190, para. 5; Trillium Wind Power v. Ontario (Ministry of Natural Resources), 2013 ONCA 683, [2013] O.J. No. 5117, para. 31)
- No evidence is admissible on such a motion, however a judge may consider any document incorporated by reference into the pleading and that forms an integral part of the factual matrix of the statement of claim;
- The pleading must be reading generously in favour of the plaintiff, with allowances for drafting deficiencies;
- A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose and different rules relating to evidence;
- If a claim has a chance of success, it should be determined with the benefit of a full factual record. Only when an action is certain to fail because it contains a radical defect should the claim be struck. Accordingly, the moving party has a high threshold on a motion to strike under Rule 21; (referring to Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38, paras. 31-33 (C.A.))
- If a claim is found to have no reasonable chance of success, 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 be cured by amendment. (referring to Tran v. University of Western Ontario, 2015 ONCA 295, [2015] O.J. No. 2185, paras. 25-27 (C.A.))
[10] I now turn to address the three issues raised by this motion.
Issue #1: Should the Breach of Contract Claim be Struck?
[11] The Defendant submits that the Amended Claim fails to explain the source of the alleged implied terms of the contract between the Plaintiff and the Defendant. As a result, the Defendant submits that it cannot respond to these allegations.
[12] Paragraph 11 of the Amended Claim specifies eight express or implied terms of the contract between the parties. Paragraph 44 of the Amended Claim specifies six implied terms of the contract between the parties. Paragraph 8 of the Amended Claim states that these terms of the contract were either implied or expressly contained within “UWO’s Medical Microbiology Residency Training Handbook” or within one or more documents of the Royal College of Physicians and Surgeons of Canada.
[13] The Plaintiff submits that the Defendant could have made a demand for particulars pursuant to Rule 25.10 rather than bring this motion to strike the Amended Claim. Rule 25.10 states:
Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.
[14] The Rules distinguish between material facts, particulars and evidence. Particulars serve to inform an adverse party of the nature of the case to be met. Amongst other things, it enables an adverse party to effectively respond to the pleading. (referring to Morden & Perell, The Law of Civil Procedure, Second Edition, LexisNexis, July 2014, pages 413-420.)
[15] In similar circumstances, the Ontario Court of Appeal in Jaffer v. York University, 2010 ONCA 654, at para. 46, required that the Plaintiff identify the nature and source of an alleged implied term of a contract and the circumstances to support the conclusion that such term was an implied term of the contract. I am satisfied that the same approach should be taken in these circumstances. Accordingly, I order that paragraphs 8, 11 and 44 be struck with leave to amend. However, in the event that the Defendant has any further concerns regarding the sufficiency of the material facts pleaded, it should consider making use of the more quicker and efficient process provided by Rule 25.10 before bringing a third motion to strike the Amended Claim.
Issue #2: Should the Breach of Fiduciary Duty Claim be Struck?
[16] The Amended Claim pleads that it was “inherent in the relationship” between the parties that the Defendant would have regard for the best interests of the Plaintiff. However, the relationship between a university and its students has not been recognized as an inherently fiduciary relationship. (referring to Lam v. University of Western Ontario, 2015 ONSC 1642, para. 15)
[17] Accordingly, in order to establish a claim for breach of fiduciary duty, the Plaintiff must show that a fiduciary relationship existed in these particular circumstances by demonstrating the following:
- An undertaking by the alleged fiduciary to act in the best interests of a beneficiary. The party asserting the duty of loyalty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake;
- The duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them;
- A legal or substantial practical interest of the beneficiary, such as an interest in property that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. (referring to Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, at paras. 30 to 36)
[18] The Plaintiff has not alleged that a term of the contract imposes a fiduciary duty on the Defendant to act in the Plaintiff’s best interests. Further, the Amended Claim does not allege that Defendant is under an obligation to prefer the Plaintiff’s interests to its own. Accordingly, I strike the claim for breach of fiduciary duty as disclosing no reasonable cause of action.
[19] One clarification is required given that the allegations of fiduciary duty and breach of that fiduciary duty are found together under two headings that appear to comingle those allegations with allegations of a contractual duty of good faith and breach of that duty of good faith. This decision should not be taken as striking those allegations related to an alleged contractual duty of good faith or a breach of that duty. However, as noted in Jaffer, at para. 49, in order “… for a claim for a breach of duty of good faith to survive, such duty must be an express or implied term of the contract and there must be a tenable cause of action for breach of contract.”
Issue #3: Is it Plain and Obvious that the Amended Claim Fails to Plead that the Alleged Wrongful Actions of the Defendant went Beyond the Immunity Afforded for the Exercise of “Academic Discretion”?
[20] The essence of the Amended Claim remains unchanged from the Statement of Claim that I considered on the First Motion to Strike. Accordingly, I adopt the analysis found in my earlier decision and come to the same conclusion – namely that it is not “plain and obvious” that the Plaintiff’s Claim for breach of contract has no chance of success as a result of the deference afforded to universities for their “academic decisions.” Nevertheless, given that I am granting the Plaintiff leave to amend the Amended Claim, the Plaintiff should take that opportunity to clearly plead the necessary material facts to support its assertion that the alleged breach of contract and breach of fiduciary duty were in respect of matters that went beyond the Defendant’s academic discretion.
CONCLUSIONS
[21] For the reasons given, I order that the following pleadings in the Amended Claim are struck with leave to amend: (1) pleadings of breach of contract at paragraphs 8, 11 and 44; and (2) pleadings with respect to breach of fiduciary duty.
[22] I adopt the following statement made by Justice Diamond in Lam v. University of Western Ontario Board of Governors, 2015 ONSC 5281, at para. 31:
… I am prepared to grant the plaintiff a second opportunity to amend his Statement of Claim, and attempt to cure the various defects as found in this and Justice Dunphy’s endorsements. Perhaps the plaintiff can plead the necessary material facts to both avoid the Jaffer concerns and satisfy the necessary elements of breach of fiduciary duty and breach of contract, although I would think a third failure to do so would likely result in an order striking out this proceeding once and for all.
[23] I invite the parties to resolve the issue of costs of this motion, failing which I direct that the Defendant deliver its costs submissions within 14 days of today’s date and the Plaintiff deliver his costs submissions within 21 days of today’s date. The submissions shall be no more than three pages long exclusive of a Bill of Costs.
Mr. Justice M. D. Faieta