Court File and Parties

COURT FILE NO.: CV-13-495261 DATE: 20160921 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MAAME GYAMFUAA Plaintiff – and – BARBARA LEBLANC, JUDITH LAFLEUR, KELLY KIDD, DAVE HOLMES, GISELE CARROLL, DENIS PRUD’HOMME, UNIVERSITY OF OTTAWA and ALGONQUIN COLLEGE Defendants

Counsel: Rita Gratsias and Frank Grande, for the Plaintiff Ashley P. Richards, for the Defendants Dave Holmes, Gisele Carroll, Denis Prud’Homme and The University of Ottawa Shawn O’Connor, for the Defendants Barbara Leblanc, Judith Lafleur, Kelly Kidd and Algonquin College

HEARD: July 25, 2016

M. D. FAIETA, j

REASONS FOR DECISION

INTRODUCTION

[1] The Plaintiff, a former nursing student at the University of Ottawa, alleges that the Defendants wrongfully claimed that she cheated on an exam. A Committee of Inquiry found that the Plaintiff had committed academic fraud. On appeal, that decision was upheld by the Executive Committee of the Faculty of Health Sciences; however, that decision was overturned by the Senate of the Defendant University after exculpatory information was obtained from the University’s records. The Plaintiff seeks damages for the resulting physical, psychological and financial losses, as well as humiliation and embarrassment, that she suffered.

[2] In reasons dated August 28, 2015, I ordered that the pleadings in negligence, negligent investigation, breach of fiduciary duty, defamation, bad faith and malice, and privacy and confidentiality against all Defendants be struck with leave to amend. See Gyamfuaa v. Leblanc, 2015 ONSC 1422.

[3] The Defendants bring this motion to strike the Amended Statement of Claim dated November 5, 2015 (“Amended Claim”), without leave to amend, on the following grounds: (1) it discloses no reasonable cause of action against the Individual Defendants; (2) it discloses no reasonable cause of action for breach of fiduciary duty; and (3) it discloses no reasonable cause of action for defamation. No evidence was filed on this motion.

[4] For reasons given below, it is not “plain and obvious” at this stage of the proceeding that the Amended Claim has no chance of success. Leave is granted to the Plaintiff to amend the Claim in order to support the various causes of action.

ANALYSIS

[5] The Defendants rely on Rule 21.01(1)(b) and Rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), which state:

21.01 (1) A party may move before a judge …

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion …

(b) under clause (1) (b).

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that …

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly.

[6] In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17-25, the Supreme Court of Canada explained the test to be applied on a motion to strike a claim as follows:

A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. … Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial …

The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial . …

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care to one's neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson . Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven : … No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil Rules ). It is incumbent on the claimant to clearly plead the facts upon which it relies in making its 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. It may only hope to be able to prove them. But plead them it must . The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. …

The facts pleaded are taken as true. Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike . The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show. To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless. …

Related to the issue of whether the motion should be refused because of the possibility of unknown evidence appearing at a future date is the issue of speculation. The judge on a motion to strike asks if the claim has any reasonable prospect of success. In the world of abstract speculation, there is a mathematical chance that any number of things might happen. That is not what the test on a motion to strike seeks to determine. Rather, it operates on the assumption that the claim will proceed through the court system in the usual way - in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent. The question is whether, considered in the context of the law and the litigation process [emphasis in original], the claim has no reasonable chance of succeeding . [Emphasis added.]

[7] With the Supreme Court’s direction in mind, I now turn to a consideration of the issues raised by the Defendants’ motion to strike.

ISSUE #1: DOES THE AMENDED CLAIM DISCLOSE A REASONABLE CAUSE OF ACTION AGAINST THE INDIVIDUAL DEFENDANTS?

[8] The Amended Claim pleads that the Individual Defendants are employees of either the Defendant University or the Defendant College. The Amended Claim includes allegations of negligence, negligent investigation, breach of fiduciary duty, defamation, malicious prosecution, and invasion of personal privacy against the Individual Defendants. The Defendants submit the claims against the Individual Defendants should be struck on the basis that the Plaintiff has failed to plead the requisite material facts for establishing their personal liability.

[9] Employees are not personally liable for actions ostensibly carried out under a corporate name “… unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the company so as to make the act or conduct complained of their own”: see ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 26 O.R. (3d) 481, at p. 491. A finding of fraud, deceit, dishonesty, or want of authority is typically required in order for an employee to attract personal liability. See Lobo v. Carleton University, 2012 ONCA 498; Tran v. University of Western Ontario, 2015 ONCA 295.

[10] These principles were applied to a claim against a university’s employee in Lobo v. Carleton University, 2012 ONCA 498. At paras. 6-7, the Ontario Court of Appeal stated:

This court's decision in Montreal Trust Co. of Canada v. Scotia McLeod Inc. (1995), 26 O.R. (3d) 481 set out the criteria that need to be met to establish personal liability. These are:

(1) the actions of the employees are themselves tortious; or

(2) the actions of the employees exhibit a separate identity or interest from that of the corporation or employer so as to make the act or conduct complained of their own.

As to the first basis, it is conceded that there is no plea in the fresh as amended statement of claim for fraud, deceit, dishonesty or want of authority on the part of the individual respondents.

With respect to the second branch of the Scotia McLeod case, we agree with the motion judge, at para. 35, that “the amended pleading [...] does little more than “window dress” the suggestion of a separate identity or interest of the named Defendants from that of [Carleton University]” and, at para. 32, that “the allegations made against each in pith and substance relate to decisions made within their ostensible authority as [Carleton University] employees”. The fact that the individual respondents did not exhibit a separate identity or interest is confirmed by para. 145 of the fresh as amended statement of claim in which the appellants pleaded that, “As the employer of the individual Defendants, Carleton University, permitted or acquiesced the individual Defendants to act in the manner that they did and as such, is vicariously liable for their actions.”

[11] In Tran v. University of Western Ontario, 2015 ONCA 295, the Ontario Court of Appeal stated, at paras. 17-18, that:

While the scope of individual liability as distinct from corporate liability is not always clear, it is undisputed that when a plaintiff purports to sue both a corporation and individuals within that corporation (whether officers, directors or employees), the plaintiff must plead sufficient particulars which disclose a basis for attaching liability to the individuals in their personal capacities : Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 37 O.R. (3d) 97, at p. 102. As Labrosse J.A. explained in 460635 Ontario Ltd. v. 1002953 Ontario Inc. (1999), 127 O.A.C. 48, at para. 8: “‘[P]roperly pleaded’ as it relates to personal liability of corporate directors, officers and employees must be read as 'specifically pleaded’, a separate claim must be stated against the individual in his personal capacity .”

The appellant's statement of claim fails to distinguish the acts of each of the individual respondents from those of each other and from those of their employer, UWO . The appellant simply enumerates the “[d]efendants’ [f]ailures”. … [Emphasis added.]

[12] Applying the above principles, it is my view the Amended Claim does not disclose a reasonable cause of action against the Individual Defendants for the following reasons.

[13] The allegations in the Amended Claim refer to acts or omissions by the Individual Defendants in their capacity as employees of either of the Corporate Defendants. The Claim contends that the Corporate Defendants are vicariously liable for the Individual Defendants’ acts or omissions, which suggests that these acts or omissions were within the scope of their employment. As well, the Plaintiff alleges that the Individual Defendants were the “alter egos” of the Corporate Defendants. See paragraph 57 of the Amended Claim.

[14] However, with a few exceptions, the allegations in the Amended Claim do not distinguish the acts of each of the Individual Defendants from those of each other or from those of their employers. It fails to assert a separate claim against each Individual Defendant in his or her personal capacity. The Amended Claim fails to describe how the Individual Defendants’ alleged liability in negligence, negligent investigation, malicious prosecution, and invasion of personal privacy was independent of their roles as employees of one of the Corporate Defendants.

[15] The Claim against the Individual Defendants is struck with leave to amend.

ISSUE #2: DOES THE CLAIM FOR BREACH OF FIDUCIARY DUTY DISCLOSE A REASONABLE CAUSE OF ACTION?

[16] There is no recognized category of fiduciary duty owed by a university to its students.

[17] However, a fiduciary duty may be found to exist if the following circumstances are established (see Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, [2011] 2 S.C.R. 261, at paras. 30 to 36):

• There must be 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” (see Elder Advocates of Alberta Society v. Alberta, at para. 31);
• “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” (see Elder Advocates of Alberta Society v. Alberta, at para. 33);
• There must be 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 (see Elder Advocates of Alberta Society v. Alberta, at paras. 34-36).

[18] A claim for breach of fiduciary duty is advanced at paragraphs 48-52 of the Amended Claim against all Defendants.

[19] There is nothing in the Amended Claim alleging that all Defendants have forsaken their interests in favour of those of the beneficiary in relation to the specific legal interest at stake.

[20] Further, the Amended Claim references certain legislation, regulations and policies as the basis for this alleged fiduciary duty; however, it does not provide particulars regarding how these documents are the basis for finding that a fiduciary relationship exists between all Defendants and the Plaintiff.

[21] The claim for breach of fiduciary duty is struck with leave to amend.

ISSUE #3: DOES THE CLAIM FOR DEFAMATION DISCLOSE A REASONABLE CAUSE OF ACTION?

[22] The Amended Claim alleges that all Defendants are liable in defamation.

[23] The material facts required to prove defamation are that: (1) the defendant spoke or wrote the words in issue; (2) the defendant published those words to one or more third parties; (3) the words refer to the plaintiff; and (4) the words were defamatory of the plaintiff. See Foulidis v. Ford, 2014 ONCA 530, at para.14.

[24] In Lysko v. Braley (2006), 79 O.R. (3d) 721, at para. 91, the Ontario Court of Appeal stated that “pleadings in defamation cases are more important than in any other class of actions. The statement of claim must contain a concise statement of the material facts.”

[25] The Amended Claim does not plead that the allegedly defamatory words were spoken or written by any of the University Defendants.

[26] Accordingly, I strike out the claim for defamation with leave to amend.

[27] Further, the Defendants submit that the allegations made by Leblanc and LaFleur relate to the academic discipline process that was a judicial or quasi-judicial proceeding and, as a result, are not actionable because they are protected by the doctrine of absolute privilege.

[28] In my view, it is quite unlikely that the University’s Committee, the Executive Committee, or the Senate hearings constituted judicial or quasi-judicial proceedings. Accordingly, it is doubtful that the doctrine of absolute privilege has any application. In any event, it is my view that it is premature in these circumstances, given the absence of an evidentiary record, to determine whether the doctrine of absolute privilege has any application at this stage of the proceeding.

CONCLUSIONS

[29] For the reasons given, I order that the claims described above be struck with leave to amend within 45 days.

[30] The parties have agreed that the Plaintiff shall pay costs of $7,500 to the Defendants, which is to be split equally between the College Defendants and the University Defendants.

Mr. Justice M. D. Faieta Released: September 21, 2016