Court File and Parties

CITATION: Bernal v. The Centre for Spanish Speaking Peoples, 2016 ONSC 7981

COURT FILE NO.: 15-64809

DATE: 2016/12/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carlos Bernal Plaintiff

– and –

The Centre for Spanish Speaking Peoples (CSSP), Legal Aid Ontario (LAO), Claudio Ruiz-Pilarte, Consuelo Rubio, Mary Ellen McIntyre, Silvana Venegas, Ronald Poulton and Carita Wong (Israel Foulon LLP) Defendants

COUNSEL:

Carlos Bernal, in writing (excused from personal attendance)

Colin R. Dubeau, for the Defendant Carita Wong (moving party)

J. Stanley Jenkins, for the Defendant Legal Aid Ontario (moving party)

Alex van Kralinger and Katherine Chau, for the Defendants (moving parties), the Centre for Spanish Speaking Peoples, Claudio Ruiz-Pilarte, Mary Ellen McIntyre, Silvana Venegas, Consuelo Rubio and Ronald Poulton

HEARD: November 30, 2016 (Ottawa)

REASONS FOR Decision

C.T. Hackland J.

[1] Legal Aid Ontario and the individual defendants, Carita Wong, Silvana Venegas and Ronald Poulton, move under Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order striking the Statement of Claim and dismissing the action against them on the basis that the Statement of Claim discloses no cause of action. In addition, the defendant, the Centre for Spanish Speaking Peoples (“CSSP”) moves to strike the Statement of Claim under R. 25.11, with or without leave to amend on the basis that it fails to comply with the rules of pleading.

[2] Rule 21.01(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,

[3] Rule 25.06(1) provides:

25.06 (1) 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.

[4] The Statement of Claim in this proceeding is a remarkable document, 80 pages in length and containing 413 paragraphs. It appears in essence to be a wrongful dismissal claim combined with various tort claims. It is a chronological essay or narrative of the plaintiff’s relations with the CSSP, a legal aid clinic in Toronto which serves the Hispanic community, where he was employed as a staff lawyer. The plaintiff pleads that he is a member in good standing of the Quebec Bar and the Law Society of Upper Canada.

[5] It can be discerned from the Statement of Claim that the plaintiff began his employment with CSSP in March of 2008 and in June of 2010 left on a medical leave, never to return. His employment was terminated on June 26, 2013.

[6] The pleading outlines the plaintiff’s complaints about his treatment while actively employed and while on medical leave. The complaints in the workplace concern deductions from his paycheck, assignment of files, failure to be appointed to the director’s position, conflicts with the new director and complaints about his office chair, carpet and painting. While on his three year medical leave, the plaintiff complained of issues concerning his pay and benefits, his Law Society dues and about the employer “badgering” him to return to work, about communication issues involving the clinic’s outside counsel, board members and many other topics.

[7] The test to be applied on a motion brought under Rule 21.01(1)(b) is well established: a Statement of Claim will be struck out as disclosing no reasonable cause of action only where it is plain and obvious that the claim is certain to fail.

[8] A party may not adduce evidence on a motion brought pursuant to Rule 21.01(1)(b). Rather, the Court must accept the facts as alleged in the Statement of Claim as true unless they are patently ridiculous or incapable of proof. Despite this, the Court may also consider documents referred to in the pleadings, as they are deemed to be incorporated into the pleadings by reference.

The Claims against Carita Wong

[9] The defendant, Carita Wong, (“Ms. Wong”) is an employment law lawyer with Israel Foulon LLP, whom the Legal Aid clinic retained to deal with the plaintiff’s issues, during his leave of absence. Ms. Wong seeks to have the claims against her dismissed on the basis that it is plain and obvious that they could not possibly succeed.

[10] The plaintiff pleads that Ms. Wong attempted to communicate with him in June of 2011 (paras. 286-293) but he refused to take her calls and instead authorized a Ms. Georgoulas to speak on his behalf. Paragraph 289 of the Statement of Claim states:

The Defendant Ms. Wong wanted to speak with the Plaintiff directly in order to establish which issues remained outstanding. She informed Ms. Georgoulas that the outstanding issues could be easily resolved and that she understood that there was money owed.

[11] The pleading explains that Ms. Georgoulas told Ms. Wong that any communications with the plaintiff were to be via email. Certain emails were sent and are before the Court. In a second conversation, Ms. Wong informed Ms. Georgoulas “that many issues seem to have been resolved and as for the remaining issues, they could be easily resolved as well” (para. 294). Ms. Wong then inquired as to whether the Plaintiff was going to return to work and insisted on speaking with him via telephone. When Ms. Georgoulas informed her again, that she could contact the plaintiff via email, the Defendant Ms. Wong became “belligerent.” In summary, the pleading discloses no personal contact between the plaintiff and Ms. Wong. However, there were two voicemail messages left by Ms. Wong and two conversations with Ms. Georgoulas.

[12] The next mention of Ms. Wong in the Statement of Claim refers to a time over a year later when Ms. Wong sent the plaintiff a letter dated August 8, 2012. The plaintiff responded to this letter by email in October 2012, making accusations of professional misconduct against her. Both the letter and the responding email are referenced in the pleadings and are before the Court on this motion. Ms. Wong’s letter is a courteous and appropriate professional communication. The plaintiff’s response is a lengthy nonsensical diatribe.

[13] The Statement of Claim goes on to state (para.363) “the requested medical notes initiated by Ms. Wong’s were just an excuse to fire the plaintiff…that was her mandate when she briefly appeared in June/July 2011.” The pleading then alleges that Ms. Wong breached the plaintiff’s employment agreement, acted in bad faith, breached the Law Society’s Rules of Professional Conduct and engaged in discriminatory and harassing conduct (paras. 394-400). These allegations are unsupported by any additional facts.

[14] I am of the opinion that it is plain and obvious that the plaintiff’s claim against Ms. Wong cannot succeed and must be struck and the action dismissed against her, for the following reasons:

(1) The facts pleaded against Ms. Wong viewed together with the letter and email referenced in the pleading, disclose no wrongdoing whatsoever. On the contrary, her contacts with the plaintiff were indirect and minimal, (due to the plaintiff’s admitted refusal to speak with her) and were entirely courteous and professional.

(2) Ms. Wong is not a party to the plaintiff’s employment agreement and cannot therefore have breached the agreement.

(3) The alleged breaches of the Law Society’s Rules of Professional Conduct seem to be baseless as pleaded and, in any event, do not provide the plaintiff with a cause of action in this Court.

(4) Ms. Wong owed the plaintiff no legal duty of care as she was, to the plaintiff’s knowledge, acting for the employer, CSSP. At no time did Ms. Wong represent the plaintiff or provide him with legal advice.

Legal Aid Ontario

[15] The plaintiff has asserted a claim against Legal Aid Ontario (“LAO)”. LAO was not the plaintiff’s employer, rather it was one of the funding organizations which supported the CSSP clinic. It can be discerned from the Statement of Claim that LAO had no active ongoing role in managing the clinic or the plaintiff’s employment relationship and was not a party to his employment contract.

[16] It is difficult to discern what claims are being made against LAO. It would appear that the plaintiff blames LAO for the fact that the CSSP did not offer him the position of Legal Director, ostensibly due to an LAO seniority requirement (paras. 59 and 113). LAO’s policies cannot provide the basis for the plaintiff`s apparent claims of unlawful interference with his economic relations, see Drouillard v. Cogeco Cable Canada Inc., (2007) O.R. (3d) 431 (C.A.), at paras. 21 to 24. Similarly, the elements of the tort of inducing breach of contract are not pleaded.

[17] Lastly, the plaintiff alleges LAO was somehow negligent in handling his request for information (paras. 259-268). LAO is subject to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. The plaintiff does not disclose if he received the information requested or even if he made a freedom of information request to LAO.

[18] The plaintiff claims negligence against LAO without pleading any factual basis on which such a duty of care would arise. Moreover, the Ontario Human Rights Code, , R.S.O. 1990, c. H.19 violations pleaded against LAO are not sustainable as the individuals accused of the violations were not officials or employees or agents of LAO.

[19] As there is no proper basis pleaded for including LAO in this action, the Statement of Claim is struck and the action dismissed as against LAO.

The Individual Defendants, Silvana Venegas and Ronald Poulton

[20] Silvana Venegas and Ronald Poulton ask that the Statement of Claim be struck as against them as disclosing no cause of action. I so order, for the following reasons.

[21] The defendant, Ronald Poulton, is a lawyer and member of the Law Society of Upper Canada. He was an immigration lawyer working at the clinic one day per week, however, shortly after the plaintiff joined the clinic, Mr. Poulton stopped working there. The plaintiff pleads that he objected to Mr. Poulton transferring some immigration files to him. The pleading indicates that, starting in April 2008, Mr. Poulton replaced the plaintiff on the Centre’s hiring committee for a new Legal Director and ultimately supported a candidate other than the plaintiff. The plaintiff seeks a declaration that Mr. Poulton breached a series of LSUC Rules of Professional Conduct. (paras. 93, 96,97, 104, 113, 115, and 396)

[22] As noted previously, this Court does not enforce Law Society rules as a general proposition. The facts pleaded would establish no cause of action against Mr. Poulton.

[23] The claim against Silvana Venegas must also be struck. It can be inferred from the pleading that she was an administrative employee of the clinic and a para-legal, who had various interactions with the plaintiff including in the competition for Legal Director, in which the plaintiff was not successful. I note with respect to Ms. Venegas:

(a) There is no allegation of a privity of contract with the plaintiff;

(b) There is no allegation of a duty of care to the plaintiff;

(c) There are no allegations that Venegas harassed or discriminated against the plaintiff; and

(d) There is no suggestion pleaded that Ms. Venegas acted outside the duties of her employment.

[24] I agree with the defendants’ submission that there are only very limited circumstances under which employees of companies have been held liable for actions taken by the corporation and no such circumstances are pleaded to exist here. In the 1995 decision of ScotiaMcLeod v. Peoples Jewelers, 1995 CanLII 1301 (ON CA), [1995] O.J. No 3556 (C.A) the Court of Appeal for Ontario outlined the narrow circumstances in which employees may be held personally liable:

25. The decided cases in which employees and officers of companies have been found personally liable for actions ostensibly carried out under a corporate name are fact-specific. In the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers, they are also rare. Those cases in which the corporate veil has been pierced usually involve transactions where the use of the corporate structure was a sham from the outset or was an afterthought to a deal which had gone sour. There is also a considerable body of case-law wherein injured parties to actions for breach of contract have attempted to extend liability to the principals of the company by pleading that the principals were privy to the tort of inducing breach of contract between the company and the plaintiff: see Ontario Stores Fixtures Inc. v. Mmmuffins Inc., (1989), 1989 CanLII 4229 (ON SC), 70 O.R. (2d) 42 (H.C.J.), and the cases referred to therein. Additionally there have been attempts by injured parties to attach liability to the principals of failed businesses through insolvency litigation. In every case, however, the facts giving rise to personal liability were specifically pleaded. Absent allegations which fit within the categories described above, officers or employees of limited companies are protected from personal liability 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.

[25] The CSSP also asks that paras. 394-400 of the claim be struck without leave to amend. These paragraphs seek declaratory relief relating to past facts alleged, such as that the defendants breached Law Society rules, acted “at all material times in bad faith against the plaintiff that required the award of aggravated, exemplary and/or punitive damages” etc. These are not declarations of right and would never be granted by the Court. These are simply findings of fact the plaintiff is asserting should be made. Paragraphs 394-400 are struck to the extent they ask for declaratory relief, without leave to amend.

[26] The remaining issue is what to do with the Statement of Claim as it relates to the remaining defendants, the CSSP, Claudio Ruiz-Pilarte, Consuelo Rubio and Mary Ellen McIntyre. It is fundamentally unfair to these defendants to ask them to speculate or guess at what causes of action are being asserted against them and on what material facts the allegations are based. A pleading is to be a concise statement of the material facts on which each pleaded cause of action is based. Here we have a very lengthy, wandering and often difficult to understand narrative, at the end of which, is a list of “relief” which identifies some causes of action, but does not relate them to specific facts pleaded. The Statement of Claim cannot stand in its present form.

[27] I cannot improve on the advice given by Justice Ferguson in Cadillac Contracting & Development Ltd v. Tanenbaum, [1953] O.J. No. 477:

A pleading ought to be a concise statement of the facts, and not a rambling, diffused, mixed-up mass of facts, evidence arguments and law.

and from Justice Cameron in Balanyk v. University of Toronto, 1999 CanLII 14918 (ON SC), [1999] O.J. No. 2162:

Neither the opposite party nor the Court should be forced to nitpick their way through a long, complex and sometimes redundant and split pleading, parsing each paragraph and each sentence with a view to extracting the claims and related material facts and redrafting them into a clear and precise pleading. It is the responsibility of the party pleading to plead in accordance with the requirements of our law and the purposes of pleading.

[28] I decline to embark on a paragraph by paragraph critique of this Statement of Claim and in any event what is required is not editing but going back to the drawing board.

[29] The Statement of Claim is struck out in its entirety with leave to deliver a Fresh as Amended Statement of Claim in accordance with these reasons, provided that this is done within 60 days. As stated previously, the action is dismissed as against the defendants LAO, Carita Wong, Silvana Venegas and Ronald Poulton.

[30] The defendants are entitled to their costs. Submissions are to be sent to me within 30 days of the release of these reasons and the plaintiff’s responding costs submissions are to be filed within 30 days of receiving the defendants’ costs submission.

Mr. Justice Charles T. Hackland

Released: December 23, 2016