CITATION: Selby v. Associated Youth Services of Peel, 2016 ONSC 7126
COURT FILE NO.: CV-16-1456-00
DATE: 2016 11 17
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Coslyn Selby, Plaintiff
AND: Associated Youth Services of Peel, Kelly Henderson and Sandra Payne, Defendants
BEFORE: Bloom, J.
COUNSEL: Osborne Barnwell, Counsel for the Plaintiff Simon Reis, Counsel for the Defendants
HEARD: November 7, 2016
E N D O R S E M E N T
I. INTRODUCTION
[1] The Defendants move to strike out the Statement of Claim without leave to amend under Rule 21.01(1)(b). At the same time the Plaintiff moves under Rule 26.01 to amend the Statement of Claim. Additionally, the Plaintiff seeks to further amend her Statement of Claim under Rule 26.01 in the event that certain parts of the Amended Statement of Claim are found deficient.
II. PROCEDURAL BACKGROUND
[2] The Plaintiff issued a Statement of Claim on March 24, 2016 alleging the malicious and intentional refusal of the Defendants to issue a timely letter of reference to her, along with the torts of conspiracy, intentional interference with contractual relations, and intentional infliction of mental anguish based on the same essential factual allegations.
[3] The Defendants then moved to strike the Statement of Claim as disclosing no cause of action, based on the absence of a duty to provide a letter of reference and certain absent allegations of fact in the pleading of the three torts.
[4] Subsequently, the Plaintiff moved to amend the Statement of Claim to add allegations, including importantly an allegation that the Defendants did not comply with a policy of the Defendant Associated Youth in respect of the provision of a letter of reference.
[5] The Defendants motion to strike now encompasses both the Statement of Claim and proposed Amended Statement of Claim.
III. ANALYSIS
[6] I will now address each of outstanding issues seriatim.
A. Timeliness of the Motion to Strike
[7] The Plaintiff argues that under Rule 2.02 (a) the motion to strike may not be made without leave, which should be denied.
[8] Rule 2.02 (a) provides as follows:
ATTACKING IRREGULARITY
2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,
(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity;
[9] The Statement of Claim was issued on March 24, 2016. Service of it on the last of the Defendants was on April 14, 2016. The Statement of Defense was delivered on May 3, 2016. On June 13, 2016 the Defendants’ counsel wrote to the Plaintiff’s counsel advising that the motion at bar would be brought unless the Plaintiff agreed that the action be dismissed without costs. On July 5, 2016 counsel for the Defendants advised that the motion would proceed on a date to be agreed by counsel. November 7, 2016 was agreed as the return date of the motion.
[10] I see no delay which would attract the application of Rule 2.02 (a).
B. The Motion to Amend the Statement of Claim
[11] The Plaintiff has brought a motion under Rule 26.01 to amend her Statement of Claim in accordance with a draft Amended Statement of Claim. The amendments in question make one significant change in the allegations of the Plaintiff as they are attacked in the Defendants’ motion to strike. The Plaintiff alleges in the Amended Statement of Claim that the Defendant Associated Youth had a policy to provide a letter of reference and breached that policy; that allegation was not made in the Statement of Claim.
[12] The Defendants have not argued prejudice to them arising from a consideration of the Amended Statement of Claim on the motion to strike. Rather they have argued their motion as subsuming both the Statement of Claim and the Amended Statement of Claim. I have, therefore, for purposes of analysis of the motion to strike granted the amendments to the Statement of Claim, and will now assess the motion to strike as against the Amended Statement of Claim.
C. The Motion to Strike the Amended Statement of Claim
(i) Governing Principles
[13] Rule 21.01 (1)(b) provides:
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. R.R.O. 1990, Reg. 194, r. 21.01 (1).
(2) No evidence is admissible on a motion,
(b) under clause (1) (b). R.R.O. 1990, Reg. 194, r. 21.01 (2).
[14] In a leading textbook on civil procedure, Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 2d ed (Markham, Ontario: LexisNexis Canada Inc., 2014) at paras 6.177 to 6.180 the learned authors set out the following principles which govern the application of Rule 21.01(1)(b):
In assessing the cause of action …the court accepts the pleaded allegations of fact as proven, unless they are patently ridiculous or incapable of proof. The pleading is to be read generously with allowances for inadequacies due to drafting deficiencies…. [T]he claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the [pleading]…[I]f the claim has some chance of success, it must be permitted to proceed.
Rule 21.01(b) may also be used to strike a pleading because there is an unanswerable defence to the claim….On motions brought under the procedure to strike a claim…as untenable in law, leave to amend the pleading will usually be given. Leave to amend should only be denied in the clearest cases. Leave to amend will be refused, however, where there is no reason to suppose that the party could improve his or her case by any amendment or if an entirely new cause of action would have to be set up by way of amendment. The test is whether the amendment can properly be made without prejudice to the other side, and unless it is clear that the plaintiff cannot allege further facts that he or she knows to be true to support the allegations in the pleading, leave to amend will be granted. The usual practice is to grant the plaintiff leave to amend unless it is clear that the plaintiff cannot improve its case by any further and proper amendment.
(ii) Application of those Principles
[15] The factual allegations made by the Plaintiff in her Amended Statement of Claim can be briefly summarized. The Plaintiff was employed by the Defendant Associated Youth in a short term capacity from June of 2012 to September of the same year. Her supervisor was the Defendant Payne. Associated had a policy to provide a reference, provided that the employee signed a waiver/authorization to release information. The Plaintiff applied to another entity for a casual position as a teaching assistant; that position also allowed the employee to apply for permanent positions once hired. Despite requests by the prospective employer and the Plaintiff, Payne did not provide a reference. On March 4, 2014 the prospective employer wrote the Plaintiff, informing her that her application for employment was no longer being considered because the necessary reference had not been forthcoming. The Plaintiff was unemployed for the rest of 2014. In November of 2015 she received a letter of reference from Associated Youth following efforts by her with the Defendant Henderson, the Executive Director of Associated Youth, and following representations by her counsel with Associated Youth.
[16] The Plaintiff bases her claim for damages on those factual allegations. In addition, under the heading “ADDITIONAL CHARACTERIZATION OF THE ABOVE” in her Amended Statement of Claim she also founds claims for the torts of conspiracy, intentional interference with contractual relations, and the intentional tort of mental anguish on the same factual allegations. That all claims are made on the same factual basis is accepted by the Defendants at paragraph 77 of their factum, “The Statement of Claim is founded upon the Plaintiff’s argument that the Defendants were obligated to provide her a reference.”
[17] Reading the Amended Statement of Claim generously with allowances for drafting deficiencies, I find that the Plaintiff has alleged a breach of the employment contract she had with Associated Youth by virtue of the failure of Associated Youth to provide a reference in accordance with the policy alleged. Further, the Plaintiff has also alleged that the Defendants, Payne and Henderson, were parties to that contractual breach. Additionally, I also read the three torts alleged as simply based on the same factual allegations. I, therefore, see no merit in the Defendants motion to strike based on failure to allege a reasonable cause of action.
[18] The Defendants have, however, also argued in the motion to strike that the Plaintiff’s claims as against Payne are barred by a limitations defense. Specifically, the Defendants at paragraph 50 of their factum argue that “the limitation period with respect to the Plaintiff’s claims against Payne commenced on March 4, 2016 and expired on March 4, 2016, rendering the action, commenced on March 24, 2016, statute-barred as against Payne.”
[19] The Plaintiff responds that her factual allegations constitute a continuing cause of action which was not complete until the reference was provided in November of 2015, well within a two year limitation period.
[20] In my view the appropriate order is to dismiss the Defendants’ motion to strike, allow the filing of the Amended Statement of Claim, allow the Defendants 3 weeks from the release of these reasons to serve and file an Amended Statement of Defense, and permit in that Amended Statement of Defense pleading of responses to the amendments in the Amended Statement of Claim as well as pleading of the specific limitations defense of Payne alleged in the motion to strike. I make that order.
IV. COSTS
[21] In oral argument I heard submissions from the parties on costs. In this matter the Plaintiff has had success in resisting the motion to strike. However, that success was based on an Amended Statement of Claim, the motion for the filing of which was heard with the Defendants’ motion to strike. Moreover, the Associated Youth policy on which the Plaintiff’s motion was based was, according to the Plaintiff’s affidavit evidence, in her possession since her employment with Associated Youth and before the issuance of the Statement of Claim. In light of all of these circumstances I order that costs on the two motions be in the cause.
Bloom, J.
DATE: November 17, 2016
CITATION: Selby v. Associated Youth Services of Peel, 2016 ONSC 7126
COURT FILE NO.: CV-16-1456-00
DATE: 2016 11 17
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Coslyn Selby, Plaintiff
AND: Associated Youth Services of Peel, Kelly Henderson and Sandra Payne, Defendants
BEFORE: Bloom, J.
COUNSEL: Osborne Barnwell, Counsel for the Plaintiff Simon Reis, Counsel for the Defendants
ENDORSEMENT
Bloom, J.
DATE: November 17, 2016