COURT FILE NO.: CV-16-546127

DATE: 2018/12/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KOLA ILUYOMADE, FUNKE ILUYOMADE, OREOLUWA KOLA-ILUYOMADE, and

IFEDAYO KOLA-ILUYOMADE

Plaintiffs

– and –

TORONTO COMMUNITY HOUSING CORPORATION, CITY OF TORONTO,

OFFICE OF THE CITY OF TORONTO OMBUDSMAN, FIONA CREAN, KWAME ADDO, GENE JONES, MARY BOUSHEL, MICHELLE HANEY-KILEEG, ANDREA AUSTEN, and ANAND MAHARAJ

Defendants

Kathryn Marshall for the Plaintiffs

Lisa M. Bolton for the Defendants Toronto Community Housing Corporation, Gene Jones, Mary Boushel, Michelle Haney-Kileeg, Andrea Austen, and Anand Maharaj

Scott Jones for the Defendants City of Toronto, Office of the City of Toronto Ombudsman, Fiona Crean and Kwame Addo

HEARD: November 27, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] After Kola Iluyomade was dismissed as an employee of the Toronto Community Housing Corporation (“TCHC”), he sued the TCHC, the City of Toronto, the Office of the City of Toronto Ombudsman, Fiona Crean, Kwame Addo, Gene Jones, Mary Boushel, Michelle Haney-Kileeg, Andrea Austen, and Anand Maharaj.

[2] Mr. Jones, Ms. Boushel, and Ms. Haney-Kileeg, whom I shall refer to as the individual TCHC Defendants, are sued for intentional infliction of mental suffering. They bring a motion to strike Mr. Iluyomades’ Statement of Claim on the basis that his claim is statute-barred under the Limitations Act, 2002.[^1] More precisely, the individual TCHC Defendants seek the following:

a. an Order dismissing all causes of action claimed against Michelle Haney-Kileeg, Mary Boushel, and Eugene Jones and removing them as Defendants;

b. an Order striking out the following paragraphs, or parts thereof, of the Statement of Claim, without leave to amend: (i) Paragraph 3: The references to Gene Jones, Mary Boushel and Michelle Haney-Kileeg; (ii) Paragraphs 14-16: The introductory phrase “The Individual Defendant”; (iii) Paragraph 32: The entire paragraph; (iv) Paragraphs 46: The entire paragraph; (v) Paragraph 47: The last sentence; (vi) Heading between paragraphs 51 and 52: The entire heading; (vii) Paragraph 55: The words “in addition to the reprisal, as outlined above”; (viii) Paragraph 94(vii) (on page 24): the first bullet; (ix) Paragraph 94(xi) the words: “as well as Mr. Jones” and the phrase “subjecting him to continued mistreatment at the hands of Ms. Haney-Kileeg and Ms. Boushel”; (x) Paragraphs 112-118: The entire paragraphs.

c. the costs of this motion;

d. the costs of the motion for refusals decided by Madam Justice Chiappetta on March 15, 2018 and reserved costs to the hearing of this motion;

e. the costs incurred in defending the impugned allegations and causes of action; and,

f. such further and other relief as counsel may advise and this honourable Court shall permit.

[3] Toronto, the Office of the City of Toronto Ombudsman, Ms. Crean and Mr. Addo, whom I shall refer to as the Ombudsman Defendants, are also sued for intentional infliction of mental suffering. They also bring a motion to strike Mr. Iluyomade’s Statement of Claim. More precisely, they seek an Order:

a. striking out the Statement of Claim with respect to the allegations against the City of Toronto, Office of the City of Toronto Ombudsman, Fiona Crean and Kwame Addo, without leave to amend;

b. striking out the Reply to the Statement of Defence of City of Toronto, Office of the City of Toronto Ombudsman, Fiona Crean, and Kwame Addo;

c. removing The City of Toronto, the Office of the City of Toronto Ombudsman, Fiona Crean, and Kwame Addo from the style of cause;

d. an order striking the affidavit evidence of Kola Iluyomade and Maurice Brenner, or in the alternative, portions thereof and,

e. granting the City of Toronto, Office of the City of Toronto Ombudsman, Fiona Crean, and Kwame Addo costs of the motion and the action on a substantial indemnity basis.

[4] For the reasons that follow: (a) I dismiss Mr. Iluyomade’s action against the Ombudsman Defendants; and (b) I dismiss the individual TCHC Defendants’ motion.

B. Facts

[5] The following outline of the facts is taken from: (a) Mr. Iluyomade’s Statement of Claim; (b) Mr. Iluyomade’s Response to Demand for Particulars; (c) admissions contained in the Defendants’ Statements of Defence; and (d) Mr. Iluyomade’s Reply pleadings.

1. The Parties

[6] Mr. Iluyomade, who is now in his fifties, is the husband of the co-plaintiff Funke Iluyomade. They have two children, who are also co-plaintiffs.

[7] Mr. Iluyomade began his employment at TCHC on October 4, 2011. His position was called “Mental Health Liaison,” and his responsibilities were to be an advocate for tenants with mental health issues. On several occasions during his employment, he intervened to protect disabled and elderly tenants who were being evicted improperly or unfairly. Mr. Iluyomade pleads that senior management were very unhappy with him voicing his concerns about the mistreatment of tenants.

[8] The TCHC is a non-profit corporation owned by Toronto. The TCHC is one of the largest social housing providers in North America. It provides housing to nearly 60,000 low-income households in the Greater Toronto Area.

[9] Ms. Haney-Kileeg was employed by the TCHC beginning on April 26, 1995, and she was the Vice-President of Resident Services during the period from February 2013 to August 22, 2013. Ms. Haney-Kileeg was Ms. Boushel’s manager. Ms. Haney-Kileeg’s employment with TCHC ended on August 22, 2013.

[10] Ms. Boushel was employed by TCHC beginning on May 22, 2007. She was the Manager, Successful Tenancies from January 2012 and the Director of Resident Access & Support Services from January 2013. Ms. Boushel was Mr. Iluyomade’s manager from January 2012 until November 14, 2013. Ms. Boushel’s employment with TCHC ended on November 14, 2013.

[11] Mr. Jones was the President and Chief Executive Officer of the TCHC from June 18, 2012 until April 24, 2014, when his employment ended. He was the most senior executive at TCHC during Mr. Iluyomade’s employment at TCHC.

[12] Ms. Austen was seconded to the TCHC from employment with Toronto, and she held the position of Director of Access & Support Services at TCHC from December 30, 2013 to December 30, 2014.

[13] Mr. Maharaj was the TCHC’s Vice-President of Human Resources during Mr. Iluymade’s employment, and Mr. Maharaj was employed by the TCHC from November 14, 2011 until April 30, 2014.

[14] Under s. 170 (1) of the City of Toronto Act,[^2] Toronto appoints an Ombudsman. The Defendants Fiona Crean and Kwame Addo held that position during the time of the events that are the subject matter of Mr. Iluyomade’s action. Ms. Crean was Ombudsman from November 2008 to November 2015. Mr. Addo was appointed as interim Ombudsman in November 2015 and served until September 2016.[^3] Before he became an Ombudsman, Mr. Addo was the Ombudsman’s Director of Investigations.

[15] Mr. Iluyomade sues the Office of the City of Toronto Ombudsman, which he pleads “to be a corporation that is the municipal office working under the direction of, and with the goal to support, the Ombudsman appointed by the City of Toronto.”

[16] The Office of the City of Toronto Ombudsman, however, is not a corporation. It is not a legal entity. Thus, the Office of the City of Toronto Ombudsman should, in any event, be removed as a party to Mr. Iluyomade’s action.

2. The Ombudsman’s Investigation

[17] As a result of complaints about how TCHC was managing tenant evictions, in 2013, Ms. Crean who was then the City of Toronto Ombudsman, decided to undertake an investigation. Ms. Crean hired Audrey Devlin, a third-party investigator, to conduct the investigation.

[18] Mrs. Boushel directed Mr. lluyomade to cooperate in the Ombudsman’s investigation. Mr. Iluyomade, therefore, met Ms. Devlin. He informed her about his observations as Mental Health Liaison.

[19] On March 30, 2013, Ms. Devlin completed her investigation. Relying on the information she had received from Mr. Iluyomade, among others, she drafted a report that concluded that TCHC’s housing practices were discriminatory.

[20] When Ms. Devlin delivered her report to Ms. Crean and Mr. Addo, who was then the Ombudsman’s Director of Investigations, she asked that Mr. Iluyomade not be identified as a source of information in the report to be released to the public. Ms. Devlin made this request because she was concerned that Mr. Iluyomade would suffer reprisals from co-workers for his whistleblowing about the treatment of tenants.

[21] Ms. Crean, however, ignored Ms. Devlin’s request. Ms. Crean decided to re-write the report. She engaged an internal investigator, Reema Patel, to continue the investigation. Mr. Iluyomade was not interviewed in the re-investigation.

[22] On June 6, 2013, Ms. Crean released the report entitled Housing at Risk: Housing at Risk: An Investigation into the Toronto Community Housing Corporation's Eviction of Seniors in the Basis of Rent Arrears. The report was critical of the way in which some TCHC Operating Unit staff handled issues relating to tenants who were vulnerable by reason of age, disability, and mental health. The report, which was 110 pages and 730 paragraphs in length had four paragraphs (paras. 469-472) that mentioned the Mental Health Liaison and a tenant referred to as "Mr. I". Since Mr. Iluyomade was the only Mental Health Liaison, he says he was identified in the report.

[23] Although the report indicated that the TCHC had a Mental Health Liaison position and referenced evidence provided by the Mental Health Liaison, Mr. Iluyomade was not named, and the report was not critical of the work performed by the Mental Health Liaison. At least four of the Ombudsman’s thirty recommendations were supportive of the role played by Mental Health Liaison; visualize:

10.0 Ombudsman Recommendations

728. Unless otherwise specified and/or can be made generally applicable, the recommendations below are directed at seniors residing in TCHC units.

729. Taking into account all of the evidence gathered during this investigation, I make the following recommendations.

730. That TCHC explicitly incorporate into its Seniors Framework an action plan for dealing with vulnerable seniors including but not limited to:

a) Express recognition and promotion of equitable service to the increased vulnerability that exists when factors such as immigration, language, disability, diminished capacity, mental health, and sexual orientation intersect with the challenges of aging.

b) That consultation take place as appropriate with staff responsible for working with vulnerable tenants, including those who may have mental health challenges

c) That the role of the Community Services Coordinators and other staff responsible for mental health concerns be clearly articulated and used strategically and collaboratively.

d) That staff with responsibility for addressing mental health concerns be included in team conferencing when concerns of mental health or cognitive impairment are at issue.

e) That guidelines be developed and shared with staff surrounding the role and value of the Community Services Coordinators and other staff responsible for mental health.

19. That training with respect to vulnerable seniors be implemented by:

a) Developing a guideline to identify indicators of distress, diminished capacity or cognitive impairment to assist staff in assessing the need for intervention with vulnerable seniors.

b) Training staff by June 30, 2014 to recognize signs of distress and engage in appropriate responses and interventions.

c) That a training program be put in place to ensure employees are skilled and able to meet the needs of vulnerable seniors, and that such training be completed by June 30, 2014 for all staff serving vulnerable seniors.

d) Requiring TCHC employees to participate in the City of Toronto's e-learning tutorial on "A Guide to Good Practice: Providing Equitable Service to Individuals of all Abilities".

20. That a protocol be explored with the Ontario Public Guardian and Trustee in cases where its intervention may be useful and required.

21. That a consulting relationship be established with the Centre for Addiction and Mental Health, or a comparable organization, to enable the sharing of best practices and professional advice for staff of TCHC.

[24] Pausing here in the narrative, the foundation of Mr. Iluyomade’s case against the Ombudsman Defendants is their treatment of him in the investigation and in the Housing at Risk report. For the purpose of the motions now before the court, it is, therefore, necessary to set out paragraphs 24 to 30 of his Statement of Claim, which state:

Investigation Phase 1 – The Devlin Investigation

24. In 2013, growing concern over a hostile environment for tenants led to an external investigation into TCHC by the Ombudsman, who at the time was Ms. Crean. The Ombudsman hired Ms. Audrey Devlin (“Ms. Devlin”), a neutral third-party investigator, to conduct the investigation.

25. Ms. Boushel insisted that Mr. Iluyomade contribute to the investigation. He was interviewed by Ms. Devlin and provided candid comments and written documentation to her on the issues he had witnessed throughout the course of his employment. Specifically, Mr. Iluyomade confirmed the two aforementioned interventions on behalf of the disabled and elderly tenant.

26. Ms. Devlin concluded her investigation on March 30, 2013. She completed a report, which found that discriminatory housing practices, and mismanagement of tenants, was in fact taking place throughout the TCHC system. Based on the comments that Mr. Iluyomade had made, Ms. Devlin specifically asked the Ombudsman, Ms. Crean, and the Ombudsman’s Director of Investigations, Mr. Addo, to ensure Mr. Iluyomade was not identified as a source of information for the upcoming report. Her opinion was that if identified, Mr. Iluyomade would have been vulnerable to reprisal from co-workers for whistleblowing. The Plaintiff pleads that this opinion became a reality shortly thereafter.

27. Ms. Devlin provided her report on or about March 31, 2013.

Investigation Phase 2 – The Revised Housing at Risk Report

28. In April 2013, Ms. Crean, for some inexplicable reason, was unsatisfied with the light in which the TCHC had been portrayed in Ms. Devlin’s report. Ms. Crean decided to re-write the report that Ms. Devlin had already completed. This took place using an internal investigator, Reema Patel (“Ms. Patel”). This time, Mr. Iluyomade was not interviewed.

29. The report for this investigation, entitled “Housing at Risk,” was released to the public on June 6, 2013. It specifically identified the Mental Health Liaison as a source of information, contrary to Ms. Devlin’s express request not to do so. Mr. Iluyomade pleads that this directly implicated him, as he was the only person in TCHC employed as a Mental Health Liaison. No other persons or staff roles were singled out in the report apart from Mr. Iluyomade. Therefore, despite Ms. Devlin’s request that Mr. Iluyomade not be identified for fear of reprisal, Mr. Iluyomade had been directly identified as a source in Ms. Patel’s re-written report.

3. The Reprisals

[25] Returning to the narrative, on the morning of the release of Housing at Risk, Mr. Iluyomade contacted Mr. Addo to express concern about being mentioned in the report. Mr. Addo said that it was necessary to identify the Mental Health Liaison in the report because TCHC had claimed that they did not have anyone with the skills to advise them on mental health issues. Mr. Addo assured Mr. Iluyomade that there would be no reprisals.

[26] However, contrary to Mr. Addo’s assurances, Mr. Iluyomade was immediately blamed, ostracized, demeaned, and treated as a pariah by his co-workers. For present purposes, it is sufficient to describe only the allegations of the reprisals involving Ms. Boushel, Ms. Haney-Killeeg, and Mr. Jones, which reprisals are the material facts that support Mr. Iluyomade’s intentional infliction of mental suffering claim against the individual TCHC Defendants.

[27] In June 11, 2013, Mr. Jones asked Mr. Iluyomade to participate in a senior managers’ meeting called to discuss the Ombudsman’s report. During the meeting, TCHC employees provided comments regarding the findings in the Ombudsman’s report. Ms. Kimberly Garrett, the Operating Unit Manager, defended the work of the Operating Unit. Mr. Iluyomade spoke immediately after Ms. Garrett, and he was critical of how TCHC staff managed evictions.

[28] After the meeting ended, Ms. Haney-Kileeg had Ms. Boushel tell Mr. Iluyomade that he needed to apologize to a Ms. Garrett for the comments that he had made at the meeting. Ms. Boushel also harshly criticized Mr. Iluyomade for speaking out at the senior managers’ meeting about the eviction of seniors and disabled tenants. Mr. Iluyomade says that felt vulnerable and intimidated by the way which Ms. Haney-Kileeg had chosen to convey this message.

[29] Further, Mr. Iluyomade alleges that Ms. Boushel created a hostile work atmosphere and bullied him with constant unnecessary criticism of his work causing him severe anxiety. Mr. Iluyomade pleads that Ms. Boushel blocked Mr. Iluyomade from a job opportunity as an Area Manager that she had requested him to take on as interim manager.

[30] Because of his mistreatment, Mr. Iluyomade approached Ms. Haney-Kileeg with a formal complaint against Ms. Boushel. The complaint was rebuffed by Ms. Haney Kileeg, who accused Mr. Iluyomade of unfairly speaking about Ms. Garrett at the senior manager’s meeting. Ms. Haney-Kileeg said that if he was dissatisfied about his losing the job competition, he could complain to Human Resources, which he did in July 2013, but to no avail.

[31] In July 2013, Ms. Boushel formally disciplined Mr. Iluyomade. He received a written warning because he had called the Operating Unit’s conduct “discriminatory” and for voicing his concerns about discriminatory treatment in meetings and emails sent to Operating Unit Managers such as Ms. Garrett. Ms. Boushel told Mr. Iluyomade that the Operating Unit Managers possessed their own individual discretion about who they would evict, and notwithstanding his position as Mental Health Liaison, he should not interfere with the decisions of the Operating Unit Managers.

[32] In July 2013, Ms. Haney-Kileeg called Mr. Iluyomade “a snitch,” and informed him that people were gossiping about him, and she asked him why the then CEO, Mr. Jones, was assigning Mr. Iluyomade tasks.

[33] Mr. Iluyomade alleges that Ms. Haney-Kileeg harassed, intimidated, and bullied him for his involvement in the Ombudsman investigation, and her abusive behaviour caused him stress and anxiety, without recourse to upper management for support. He alleges that she condoned the harassment and discriminatory treatment that was detrimentally affecting his physical and mental well-being.

[34] In July-August 2013, while Mr. Iluyomade was on a temporary secondment assignment working for Mr. Jones, Ms. Boushel told him that she wanted to hire a replacement for the Mental Health Liaison position, which would have left Mr. Iluyomade without a position at TCHC.

[35] In the summer of 2013, Mr. Iluyomade made another formal written complaint to Human Resources. He complained about Ms. Boushel’s and Ms. Haney-Kileeg’s treatment of him, and, once again, nothing came of the complaint. Mr. Jones told him not to be concerned about the situation. Mr. Iluyomade pleads that TCHC Human Resources and Mr. Jones, failed to investigate the harassment and subjected him to continued mistreatment at the hands of Ms. Haney-Kileeg and Ms. Boushel.

[36] Around this time Mr. Jones told Ms. Haney-Kileeg that her department should continue to pay Mr. Iluyomade’s salary, she ordered that Mr. Iluyomade leave his cubicle and find another floor on which to work.

[37] Mr. Iluyomade alleges that his temporary secondment, which was to take on the additional role of Project Manager for the Housing Commissioner’s office building, was a plot to set him up for failure because the job required a skill set that he was known not to have. He pleads that he was he was being set up for failure by TCHC and Mr. Jones.

[38] Meanwhile, Ms. Haney-Kileeg’s employment with TCHC ceased on August 22, 2013.

[39] Mr. Iluyomade continued to work diligently for Mr. Jones, but the poisoned work environment took its toll, and Mr. Iluyomade took a brief medical leave in October and November 2013. Despite this leave, Mr. Jones continued to send Mr. Iluyomade onerous tasks to do at home.

[40] Mr. Iluyomade pleads that Mr. Jones’ conduct was flagrant and outrageous and was calculated to produce harm that resulted in a visible and provable injury. Mr. Iluyomade pleads that the callous and unnecessary re-assignments of duties by Mr. Jones, the heavy demands placed on Mr. Iluyomade, and Mr. Jones’ failure to take adequate action on the reprisals that he knew Mr. Iluyomade was experiencing caused Mr. Iluyomade to suffer mental distress.

[41] Meanwhile, Ms. Boushel’s employment with TCHC ceased on November 14, 2013.

[42] Mr. Iluyomade pleads that he faced even more bullying and vicious comments from people on the second floor where he had worked because he was blamed for the departures of Ms. Boushel and Ms. Haney-Kileeg. Throughout this period, Mr. Iluyomade’s health rapidly continued to deteriorate.

[43] Meanwhile, in November of 2013, Mr. Iluyomode applied for the position for an Early Resolution Officer, a posting for which his experience made him an ideal candidate.

4. Mr. Iluyomade’s Dismissal

[44] In January 2014, Ms. Austen was seconded from Toronto to replace Ms. Boushel.

[45] Although Ms. Austen had been sympathetic to Mr. Iluyomade’s situation at the time of their first meeting, after the initial meeting, Ms. Austen’s demeanour changed and she began her own course of harassment by: (a) criticizing Mr. Iluyomade in front of other staff members; (b) telling to stop work for Mr. Jones; (c) forbidding him from continuing with the eviction compliance projects that he had been carrying out; (d) directing him to do policy work, despite his telling her that he had no training in policy work, and (e) instructing him not to do anything without direction from her. Ms. Austen sent Mr. Iluyomade several demeaning emails critiquing his performance. She made unreasonable requests and false allegations.

[46] Feeling that he was reaching a breaking point from stress, Mr. Iluyomade emailed Human Resources requesting accommodation for his depression and anxiety. Despite Mr. Iluyomade’s requests to TCHC Human Resources, no accommodations were made for the anxiety and depression that he was manifesting. A request for accommodation on January 20, 2014, received no response, and Mr. Iluyomade continued to suffer in silence, heading for a mental breakdown. Mr. Iluyomade pleads that the individual TCHC Defendants’ wrongful acts of increasing his workload and failing to accommodate him, exacerbated his medical issues, which the defendants knew, or ought to have known, would harm him.

[47] On February 21, 2014, Mr. Iluyomade interviewed for the Early Resolution Officer position that he had applied for in November 2013. He was told that upon his return from a winter vacation, he would be offered the position or a more senior position, which was a contract position.

[48] On February 25, 2014, Mr. Iluyomade received a phone call from Human Resources requesting internal references for the position of Early Resolution Officer. Mr. Iluyomade immediately responded and included Ms. Austen as a reference. Within 40 minutes of Mr. Iluyomade sending the email, Ms. Austen requested Mr. Iluyomade meet with her on the ground floor Human Resources office. He knew that a ground floor meeting was a sign that an employee was about to be dismissed.

[49] Mr. Iluyomade became extremely distressed. All of the stress of the preceding months of reprisal, harassment, bullying, and victimization had culminated into a full-blown breakdown. He telephoned Human Resources advising that he had reached his limit and was in crisis. In complete distress, Mr. Iluyomade left the office, wandered near the subway tracks, manifested suicidal ideation, and that night he was so distressed he had to be sedated with medication.

[50] On the evening of February 25, 2015, a courier came to his home with a package from TCHC. Mr. Iluyomade, however, refused to accept the package. On February 26, 2014, Mr. Iluyomade’s wife refused another delivery from TCHC that may have had a termination letter. More deliveries were refused over the next few days. Eventually, Mr. Iluyomade received a letter from TCHC stating that he had been dismissed and that he would be provided three weeks of pay in lieu of notice.

[51] After his dismissal, Mr. Iluyomade engaged counsel and submitted a formal complaint of reprisal to the Ombudsman.

[52] Mr. Addo, now the Ombudsman, told Mr. Iluyomade if Mr. Iluyomade commenced a court action, then the Ombudsman would not investigate the matter. Mr. Addo told Mr. Iluyomade that he could not take any civil legal action until the conclusion of the Ombudsman’s investigation. Mr. Iluyomade decided to wait for the Ombudsman to investigate before commencing an action.

[53] A year and a half passed. The Ombudsman’s investigation of Mr. Iluyomade’s dismissal was completed in September 2015. The investigator told Mr. Iluyomade that he had done nothing wrong. After receiving this oral report, Mr. Iluyomade retained new legal counsel and commenced his action in February 2016.

[54] After the action was commenced, Mr. Iluyomade received the Ombudsman’s written report in March 2016. The report did not find that Mr. Iluyomade had been the victim of reprisal; rather, the report made recommendations for changes in TCHC’s procedures.

5. Procedural History

[55] Mr. Iluyomade commenced a wrongful dismissal action on February 5, 2016, just before the two-year anniversary of his dismissal from employment. His co-plaintiffs are family members advancing derivative claims under the Family Law Act.[^4]

[56] Mr. Iluyomade’s claim against TCHC is for wrongful dismissal and he also advances a human rights claim.

[57] Mr. Iluyomade’s claim against the individual TCHC Defendants is for intentional infliction of mental suffering. Mr. Iluyomade’s claim against the Ombudsman Defendants is for intentional infliction of mental suffering. In his Reply he advances allegations of negligence and the tort of bad faith. Mr. Iluyomade’s pleading of intentional infliction of mental suffering is set out below:

The Tort of Intentional Infliction of Mental Suffering as Against All the Individual Defendants

City of Toronto, and the Office of the City of Toronto Ombudsman

106. Mr. Iluyomade pleads that the conduct of the Defendants, the City of Toronto and the Office of the City of Toronto Ombudsman, is flagrant and outrageous and was calculated to produce harm which resulted in a visible and provable injury. In this regard, Mr. Iluyomade pleads and relies upon the following:

(a) The City of Toronto is responsible for the appointment of the Ombudsman, who is an officer of Toronto City Council;

(b) The Ombudsman directs and leads the Office of the Ombudsman, and reports back to the City on its investigations and activities;

(c) Mr. Iluyomade pleads that City of Toronto allowed its incumbent, the Office of the Ombudsman, to carry out an unprofessional and harmful investigation, particularly when the Ombudsman:

i. Rewrote the first findings of the Devlin Investigation Report on the unsafe and discriminatory housing practices at TCHC;

ii. The Office, including the then Ombudsman herself, Ms. Crean, as well as Mr. Addo, was aware that Mr. Iluyomade was at risk of reprisal if identified in any reports and identified him anyway;

iii. In spite of specific requests not to identify Mr. Iluyomade as a source, his position was named and he was implicated, suffering significant subsequent backlash, victimization, and reprisal at TCHC;

iv. The “Housing at Risk” report’s identification was made recklessly, without regard for Mr. Iluyomade’s subsequent safety as a confidential source – directly against the principles of any ethical investigation; and

v. This reckless disregard spawned the chain of events that led to a breakdown in Mr. Iluyomade’s mental health.

107. Mr. Iluyomade therefore claims general damages in the amount of $100,000 from each of the Defendants for the tort of intentional infliction of mental suffering.

Fiona Crean

108. Mr. Iluyomade pleads that the conduct of the Defendant, Ms. Crean, is flagrant and outrageous, and was calculated to produce harm which resulted in a visible and provable injury. In this regard, Mr. Iluyomade pleads and relies upon the following:

(i) Audrey Devlin, during her 2013 investigation, specifically requested for Ms. Crean not to identify Mr. Iluyomade in any investigation reports by the Ombudsman. She felt that his comments put him at significant risk for reprisal by members of the TCHC.

(ii) Dissatisfied with the results of Ms. Devlin’s investigation, Ms. Crean decided to order a second investigation, over which she had much more control with an internal investigator. This investigation did not even interview Mr. Iluyomade.

(iii) In spite of Ms. Devlin’s request, Ms. Crean specifically identified the Mental Health Liaison as a source of information for the Housing at Risk Report at the end of the second investigation.

(iv) This identification was made falsely, as Mr. Iluyomade had not been involved with the second internal investigation.

(v) Ms. Crean had falsely promised, after his dismissal, to help Mr. Iluyomade, return to his position and to go after the staff at the TCHC that had been complicit in the reprisal.

(vi) Ms. Crean knew or ought to have known that this identification would put Mr. Iluyomade’s employment, reputation, and health at risk in an environment that it was already discovering to be poisoned with its investigations.

(vii) As a result of this identification, Mr. Iluyomade suffered significant retaliatory actions from his co-workers, managers, TCHC, as well as facing discrimination and, ultimately, wrongful dismissal from his employment. His health has been damaged severely as a result of the chain of events that this identification caused.

109. Mr. Iluyomade therefore claims general damages in the amount of $100,000 for the tort of intentional infliction of mental suffering.

Kwame Addo

110. Mr. Iluyomade pleads that the conduct of the Defendant, Mr. Addo, is flagrant and outrageous, and was calculated to produce harm which resulted in a visible and provable injury. In this regard, Mr. Iluyomade pleads and relies upon the following:

(i) Mr. Addo, as Director of Investigations, was aware that the apparent need to discuss a Mental Health Liaison in the “Housing At Risk” report would entail identification of Mr. Iluyomade, as there was only one Mental Health Liaison;

(ii) He assured Mr. Iluyomade after the identification took place that Mr. Iluyomade would not be subject to reprisal; and

(iii) He failed subsequently to take any action or measures of protection for Mr. Iluyomade when reprisal did occur.

111. Mr. Iluyomade therefore claims general damages in the amount of $100,000 for the tort of intentional infliction of mental suffering.

Gene Jones

112. Mr. Iluyomade pleads that the conduct of the Defendant, Mr. Jones, is flagrant and outrageous, and was calculated to produce harm which resulted in a visible and provable injury. In this regard, Mr. Iluyomade pleads and relies upon the following:

(a) Mr. Iluyomade pleads that the callous and unnecessary re-assignments of duties by Mr. Jones, as well as his failure to take adequate action on the reprisal that he knew Mr. Iluyomade was facing, caused Mr. Iluyomade to suffer mental distress.

(b) Mr. Jones did not take adequate action to stop the reprisal despite the fact that:

(i) He was aware of the reprisal from the beginning;

(ii) He had assured Mr. Iluyomade that he would “look into it”; and

(iii) As CEO of TCHC, he was in a position to be able to take action, but instead wilfully chose to let this damaging conduct continue.

(c) Mr. Iluyomade pleads that Mr. Jones was complicit in the reprisal by allowing Mr. Iluyomade’s name to disappear from staff complements [lists] and placing unrealistic workloads on Mr. Iluyomade to the point where a reasonable person would have seen Mr. Iluyomade would become “burnt out”.

113. Mr. Iluyomade pleads that these actions contributed to further damages in relation to the state of his health, as his stress and anxiety were unnecessarily exacerbated.

114. Mr. Iluyomade further pleads that the damages were caused by Jones’ actions, and that Jones is individually liable for tortious damages in the amount of $100,000.

Mary Boushel

115. Mr. Iluyomade pleads that the conduct of the Defendant, Ms. Boushel, is flagrant and outrageous, and was calculated to produce harm which resulted in a visible and provable injury. In this regard, Mr. Iluyomade pleads and relies upon the following:

(i) As Ms. Boushel was Mr. Iluyomade’s manager, she created a hostile work atmosphere by bullying him and inciting constant, unnecessary criticism of his work performance, which caused Mr. Iluyomade severe anxiety;

(ii) That Ms. Boushel treated Mr. Iluyomade in a threatening, disrespectful, and vindictive manner. This harsh treatment exacerbated Mr. Iluyomade’s symptoms;

(iii) Ms. Boushel specifically contributed to reprisal against Mr. Iluyomade, as detailed in paragraphs 39 to 43 of this claim;

(iv) Ms. Boushel’s role in inciting reprisal against Mr. Iluyomade triggered depression and anxiety.

116. Mr. Iluyomade therefore claims general damages in the amount of $100,000 for the tort of intentional infliction of mental suffering.

Michelle Haney-Kileeg

117. Mr. Iluyomade pleads that the conduct of the Defendant, Ms. Haney-Kileeg, is particularly flagrant and outrageous, and was calculated to produce harm which resulted in a visible and provable injury. In this regard, Mr. Iluyomade pleads and relies upon the following:

(i) As detailed in this claim, Ms. Haney-Kileeg harassed, intimidated, and bullied Mr. Iluyomade for his involvement in the Ombudsman investigation. This behaviour was abusive, and it humiliated Mr. Iluyomade.

(ii) Her belittling and demeaning comments caused Mr. Iluyomade stress and anxiety, without recourse to upper management for support.

(iii) As Vice President of Resident Services, the Defendant condoned the harassment and discriminatory treatment that was affecting the health of Mr. Iluyomade. She created a hostile work atmosphere, which took a detrimental toll on Mr. Iluyomade’s physical and mental well-being.

118. Mr. Iluyomade therefore claims general damages in the amount of $100,000 for the tort of intentional infliction of mental suffering.

Andrea Austen

119. […]

[58] On April 22, 2016, Mr. Iluyomade delivered his Response to Demand for Particulars.

[59] On April 29, 2016, the Ombudsman Defendants delivered their Statement of Defence. For present purposes, the following paragraphs of the pleading are pertinent:

5. These Defendants state that the action is statue-barred by reason of the expiration of the two-year limitation period outlined in section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B with respect to any damages, the existence of which is not admitted, that arise from the alleged acts or omissions of these Defendants prior to February 5, 2014.

The Action is Statute-Barred as against the Ombudsman's Office, Fiona Crean and Kwame Addo

24. There is no allegation in the Statement of Claim to the effect that Ombudsman's Office lacked jurisdiction to investigate and report as it did with the Housing at Risk report.

25. Except in the case of lack of jurisdiction, no proceeding or decision of the Ombudsman is liable to be challenged, reviewed, quashed or called in question in any court. These Defendants plead and rely on section 174 of the Act in this regard.

26. No proceedings lie against the Ombudsman, or against any person holding any office or appointment under the Ombudsman, for anything he or she may do or report or say in the course of the exercise or intended exercise of his or her functions, unless it is shown that he or she acted in bad faith, for which there was none in this case. These Defendants plead and rely on section 24(1) of the Ombudsman Act and section 391 (1) of the City of Toronto Act, 2006 in this regard.

27. These Defendants plead that the investigation and corresponding decision/report of the Ombudsman was undertaken in good faith, in a reasonable and competent fashion and in accordance with the obligations and duties of the Ombudsman outlined in the City of Toronto Act, 2006 and the Ombudsman Act.

28. The claim should therefore be struck as against the Ombudsman's Office, Fiona Crean and Kwame Addo.

There is No Cause of Action as against the City of Toronto

29. These Defendants specifically deny the allegations contained in paragraph 106(c) of the Statement of Claim wherein it is alleged that the "City of Toronto allowed its incumbent, the Office of the Ombudsman, to carry out an unprofessional and harmful investigation.

30. The Office of the Ombudsman is not a division or department of the municipal government,

31. In handling, investigating and resolving complaints, including the complaint/investigation that is the subject of the within lawsuit, the Ombudsman's Office is, aside from any legal requirement, self-directed, Neither City Council nor the City's management and staff can dictate the manner in which the Ombudsman or his/her office handles, investigates or resolves any of the complaints it receives.

[60] On May 3, 2016, the TCHC Defendants delivered their Statement of Defence.

[61] On May 18, 2016, Mr. Iluyomade delivered his Reply to the Ombudsman Defendants Statement of Defence. For present purposes, the following paragraphs of the pleading are pertinent:

The Claim is Not Statute Barred

a) Discoverability Principle:

2. The Ombudsman Defendants plead at paragraph 5 of the Statement of Defence that pursuant to s.4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, that a claimant has 2 years from the day on which the claim was discovered to commence proceedings.

3. The Plaintiffs plead and rely upon the fact that the Plaintiffs' claim, and the damages sustained as a consequence of the acts and omissions of those involved, could not reasonably have been discoverable prior to the date of Mr. lluyomade's dismissal on February 24, 2014, and therefore fall within the two-year prescribed limit. In that regard, the Plaintiffs plead and rely upon the decisions of Saltsov v. Rolnick, 2010 ONSC 914, and Bambury v. Royal Bank of Canada, 2011 ONSC 2840, [2011] O.J. No. 2135.

b) Mr. Addo's Warning that Mr. Iluyomade Could Not Have the Ombudsman Carry out its Investigation for Reprisal if He Brought a Civil Action (Bad Faith)

4. Mr. lluyomade pleads that after his employment was terminated on February 24, 2014, he engaged counsel and submitted another formal complaint of reprisal. The Ombudsman's office, however, through Mr. Kwame Addo ("Mr. Addo"), stated that because Mr. lluyomade had a lawyer, the Office of the Ombudsman would not investigate his reprisal complaint and stated that he could not take any civil legal action, until the conclusion of the Ombudsman's investigation. Mr. Addo stated to Mr, Iluyomade words to the effect: "If you take any legal action civilly, we will not Investigate".

5. The Plaintiffs therefore plead that any delay in commencing a civil legal action against any of the Defendants in this lawsuit was solely based on the threat of Mr, Addo to both he and his counsel at the time not to commence proceedings if Mr. lluyomade wanted to have his reprisal complaint investigated. Therefore, it was only due to Mr. Addo's warning not to take civil action, that this action and/or any other action was not commenced immediately.

6. Mr. Iluyomade pleads therefore that the earliest time that he learned that his reprisal investigation had been concluded was September of 2015, the report for which he had repeatedly requested, but never received until March of 2016.

[62] On August 19, 2016, the TCHC defendants delivered their Amended Statement of Defence. Mr. Jones, Ms. Boushel, and Ms. Haney-Kileeg, pleaded that the claims against them are statute-barred as follows:

13.The causes of action claimed against Ms. Boushel, Ms. Haney-Kileeg, and Mr. Jones are commenced after the expiry of the limitation period and are statute-barred. All of the claims against Ms. Boushel and Ms. Haney-Kileeg are alleged to have occurred during their employment, which ceased more than two years prior to the commencement of the Plaintiffs’ action. All of the claims against Mr. Jones are alleged to have occurred in 2013, more than two years prior to the issuance of the Statement of Claim. These claims against these three Defendants ought to be struck out, without leave to amend, and/or dismissed in their entirety.

14. Alternatively, the claims against these defendants are frivolous and vexatious and ought to be dismissed.

[63] On June 9, 2016, Mr. Iluyomade delivered his Reply to the TCHC Defendants’ Statement of Defence. For present purposes, the following paragraphs of the pleading are pertinent:

The Claim is Not Statute Barred

2. The TCHC Defendants initially at paragraph 11, and subsequently throughout the Statement of Defence, that the Plaintiffs’ claim is statute barred pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c.24, Sched. B. Per this statute, a claimant has two years to bring a civil action upon the discovery of his or her damages.

3. The Plaintiffs plead that this action is not statute barred, and in this regard rely upon the same facts and law that have been pleaded in paragraphs 2,3,4,5,6,7,8,9, and 10 of the Plaintiffs’ Reply to the Statement of Defence of the City of Toronto, the Office of the City of Toronto Ombudsman, Fiona Crean, and Kwame Addo (“Ombudsman Reply”).

4. The Plaintiffs plead and rely upon the fact that, pursuant to the discoverability principle, the Plaintiffs’ claim and the damages associated with that action could not have been reasonably discoverable prior to the date of the Plaintiff, Mr. Iluyomade’s dismissal on February 24, 2014. This includes the cause of action claimed against Mr. Boushel, Ms. Haney-Kileeg, and Mr. Jones, as each of these Defendants contributions to the Plaintiffs’ damages were in direct connection with the termination of Mr. Iluyomade’s employment.

5. Furthermore, as particularized in the Ombudsman Reply, any delay in the commencement of this or any action with respect to these damages was propagated by TCHC’s refusal to allow an Ombudsman investigation in the circumstances of Mr. Iluyomade’s dismissal.

6. Contrary to the TCHC Defendants’ assertions in the Statement of Defence, the Plaintiffs maintain that there was significant reprisal that contributed to Mr. Iluymade’s dismissal. For these reasons, in the spring of 2014, the Plaintiff, Mr. Iluyomade, requested a thorough and fair investigation into the circumstances, and obtained legal counsel for the claims which he had in law with respect to his wrongful dismissal, the harassment he suffered at the hands of the TCHC Defendants, and the egregious bad faith tortious conduct that has been particularized in the Statement of Claim.

7. However, the TCHC refused to allow the Ombudsman to conduct an investigation if Mr. Iluyomade were to have commenced a civil action at that time. The Ombudsman then relayed a threat to Mr. Iluyomade in conjunction with the TCHC refusal that its jurisdiction would be ousted if Mr. Iluyomade even considered pursuing a claim.

8. Therefore, the Plaintiffs plead that this claim is not statute-barred, and that any delay results from the TCHC’s threat to the Plaintiff, Mr. Iluyomade, to place any legal action into abeyance if there were to be an Ombudsman investigation. The Plaintiff pleads that this investigation was ultimately not even completed until September 2015.

[64] On November 9, 2016, the Ombudsman Defendants delivered their motion

[65] On November 10, 2016, the individual TCHC Defendants delivered their motion.

[66] In response to the Defendants’ motion, Mr. Iluyomade swore an affidavit dated December 14, 2016, and Mr. Maurice Brenner, who was a TCHC Human Resources employee, swore an affidavit dated December 13, 2016.

[67] On March 18, 2016, Justice Chiappetta decided a refusals motion and directed that costs be reserved to the court hearing the Defendants’ motions.

[68] Because of the Defendants’ objections to the use of Mr. Iluyomade’s and Mr. Brenner’s affidavits on a Rule 21 motion without the leave of the court, Mr. Iluyomade withdrew the affidavits. In any event, the Defendants seek costs with respect to the refusals motion.

C. Legislative Background

[69] The relevant provisions of the City of Toronto Act, are set out below:

Ombudsman

Appointment of Ombudsman

170 (1) The City shall appoint an Ombudsman.

Reporting relationship

(2) The Ombudsman reports to city council.

Status

(3) The Ombudsman is not required to be a city employee.

Function

171 (1) The function of the Ombudsman is to investigate in an independent manner any decision or recommendation made or any act done or omitted in the course of the administration of the City, its local boards (restricted definition) and such city-controlled corporations as city council may specify and affecting any person or body of persons in his, her or its personal capacity.

Powers and duties

(2) Subject to this Part, in carrying out this function the Ombudsman may exercise the powers and shall perform the duties assigned to him or her by city council.

Powers paramount

(3) The powers conferred on the Ombudsman under this Part may be exercised despite any provision in any Act to the effect that any such decision, recommendation, act or omission is final, or that no appeal lies in respect thereof, or that no proceeding or decision of the person or organization whose decision, recommendation, act or omission it is shall be challenged, reviewed, quashed or called in question.

Decisions not reviewable

(4) Nothing in this Part empowers the Ombudsman to investigate any decision, recommendation, act or omission,

(a) in respect of which there is, under any Act, a right of appeal or objection, or a right to apply for a hearing or review, on the merits of the case to any court, or to any tribunal constituted by or under any Act, until that right of appeal or objection or application has been exercised in the particular case, or until after any time for the exercise of that right has expired; or

(b) of any person acting as legal adviser to the City, a local board (restricted definition) or a city-controlled corporation or acting as counsel to any of them in relation to any proceedings.

Delegation

(5) The Ombudsman may delegate in writing to any person, other than a member of city council, any of the Ombudsman’s powers and duties under this Part.

Same

(6) The Ombudsman may continue to exercise the delegated powers and duties, despite the delegation.

Investigation

172 (1) Every investigation by the Ombudsman shall be conducted in private.

Opportunity to make representations

(2) The Ombudsman may hear or obtain information from such persons as he or she thinks fit, and may make such inquiries as he or she thinks fit and it is not necessary for the Ombudsman to hold any hearing and no person is entitled as of right to be heard by the Ombudsman, but, if at any time during the course of an investigation, it appears to the Ombudsman that there may be sufficient grounds for him or her to make any report or recommendation that may adversely affect the City, a local board (restricted definition), a city-controlled corporation or any other person, the Ombudsman shall give him, her or it an opportunity to make representations respecting the adverse report or recommendation, either personally or by counsel.

Application of Ombudsman Act

(3) Section 19 of the Ombudsman Act applies to the exercise of powers and the performance of duties by the Ombudsman under this Part and, for the purpose, references in section 19 of that Act to “any public sector body” are deemed to be references to “the City, a local board (restricted definition) or a city-controlled corporation”.

Duty of confidentiality

173 (1) Subject to subsection (2), the Ombudsman and every person acting under the instructions of the Ombudsman shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part.

Disclosure

(2) The Ombudsman may disclose in any report made by him or her under this Part such matters as in the Ombudsman’s opinion ought to be disclosed in order to establish grounds for his or her conclusions and recommendations.

Municipal Freedom of Information and Protection of Privacy Act

(3) This section prevails over the Municipal Freedom of Information and Protection of Privacy Act.

No review, etc.

174 No proceeding of the Ombudsman under this Part shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Ombudsman is liable to be challenged, reviewed, quashed or called in question in any court.

Testimony

175 (1) The Ombudsman and any person acting under the instructions of the Ombudsman shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his or her knowledge in the exercise of his or her functions under this Part.

Same

(2) Anything said or any information supplied or any document or thing produced by any person in the course of any investigation by or proceedings before the Ombudsman under this Part is privileged in the same manner as if the inquiry or proceedings were proceedings in a court.

Effect on other rights, etc.

176 The rights, remedies, powers, duties and procedures established under sections 170 to 175 are in addition to the provisions of any other Act or rule of law under which any remedy or right of appeal or objection is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter, and nothing in this Part limits or affects any such remedy or right of appeal or objection or procedure.

Immunity re performance of duty

391 (1) No proceeding for damages or otherwise shall be commenced against a member of city council, an officer, employee or agent of the City or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.

Liability for torts

(2) Subsection (1) does not relieve the City of liability to which it would otherwise be subject in respect of a tort committed by a member of city council, an officer, employee or agent of the City or a person acting under the instructions of such an officer, employee or agent.

[70] The relevant provisions of the Ombudsman Act,[^5] are set out below:

Evidence

19 (1) The Ombudsman may from time to time require any officer, employee or member of any public sector body who in his or her opinion is able to give any information relating to any matter that is being investigated by the Ombudsman to furnish to him or her any such information, and to produce any documents or things which in the Ombudsman’s opinion relate to any such matter and which may be in the possession or under the control of that person.

Examination under oath

(2) The Ombudsman may summon before him or her and examine on oath,

(a) any complainant;

(b) any person who is an officer or employee or member of any public sector body and who, in the Ombudsman’s opinion, is able to give any information mentioned in subsection (1); or

(c) any other person who, in the Ombudsman’s opinion, is able to give any information mentioned in subsection (1),

and for that purpose may administer an oath.

Secrecy

(3) Subject to subsection (4), no person who is bound by the provisions of any Act, other than the Public Service of Ontario Act, 2006, the Municipal Act, 2001 or the City of Toronto Act, 2006, as the case may be, to maintain secrecy in relation to, or not to disclose, any matter shall be required to supply any information to or answer any question put by the Ombudsman in relation to that matter, or to produce to the Ombudsman any document or thing relating to it, if compliance with that requirement would be in breach of the obligation of secrecy or non-disclosure.

Providing personal information despite privacy Acts

(3.1) A person who is subject to the Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act or the Personal Health Information Protection Act, 2004 is not prevented by any provisions in those Acts from providing personal information to the Ombudsman, when the Ombudsman requires the person to provide the information under subsection (1) or (2).

Idem

(4) With the previous consent in writing of any complainant, any person to whom subsection (3) applies may be required by the Ombudsman to supply information or answer any question or produce any document or thing relating only to the complainant, and it is the duty of the person to comply with that requirement.

Privileges

(5) Every person has the same privileges in relation to the giving of information, the answering of questions, and the production of documents and things as witnesses have in any court.

Protection

(6) Except on the trial of any person for perjury in respect of the person’s sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Ombudsman is admissible in evidence against any person in any court or at any inquiry or in any other proceedings, and no evidence in respect of proceedings before the Ombudsman shall be given against any person.

Right to object to answer

(7) A person giving a statement or answer in the course of any inquiry or proceeding before the Ombudsman shall be informed by the Ombudsman of the right to object to answer any question under section 5 of the Canada Evidence Act.

Prosecution

(8) No person is liable to prosecution for an offence against any Act, other than this Act, by reason of his or her compliance with any requirement of the Ombudsman under this section.

Fees

(9) Where any person is required by the Ombudsman to attend before him or her for the purposes of this section, the person is entitled to the same fees, allowances, and expenses as if he or she were a witness in the Superior Court of Justice, and the provisions of any Act, regulation or rule in that behalf apply accordingly.

D. Discussion and Analysis

1. The Position of the Parties

(a) The Individual TCHC Defendants

[71] The individual TCHC Defendants submit that with respect to Mr. Iluyomade’s action for intentional infliction of mental suffering, the limitation period began to run by the end of 2013 and since Mr. Iluyomade commenced his action on February 5, 2016, therefore, his claim against the individual TCHC Defendants is statute-barred. They submit that assuming all of the allegations in the Statement of Claim and in the Response to the Demand for Particulars are true, then the individual TCHC Defendants misconduct and Mr. Iluyomade’s damages occurred before the end of 2013.

[72] The individual TCHC Defendants dispute Mr. Iluyomade’s submission that the limitation period for the intentional infliction of mental suffering claim did not begin to run until the action was crystalized by his dismissal from employment in February 2014.

[73] The individual TCHC Defendants dispute Mr. Iluymade’s alternative submission that because of the Ombudsman’s investigation of his complaint and the hope of reinstatement, the limitation period for his intentional infliction of mental suffering claim did not begin to run until the Ombudsman’s report was completed in the fall of 2016.

[74] In response to the individual TCHC Defendants’ motion, Mr. Iluyomade submits that the application of the discoverability principle is a matter of mixed fact and law that cannot be determined on a Rule 21 motion. He asserts that the individual TCHC Defendants must advance their limitations defence by a motion for summary judgment or at the trial of the action.

[75] Further, Mr. Iluyomade submits, in any event, that the limitation period for his claim for intentional infliction of mental suffering did not begin to run until his dismissal in February 2014 making his February 2016 Statement of Claim timely.

[76] In this last regard, Mr. Iluyomade submits that damages are a constituent element of the tort of intentional infliction of mental suffering, and therefore, the tort did not crystalize until February 24-25, 2014 with Mr. lluyomade's dismissal and his suicidal breakdown. He submits that his near suicide and his ongoing depression were the culmination of the intentional infliction of mental suffering perpetrated by Mr. Jones, Ms. Boushel, and Ms. Haney-Kileeg. Thus, he argues that the damages element of the tort could not reasonably have been discoverable before his dismissal on February 24, 2014, and, therefore, his February 5, 2016 claims fall within the two-year prescribed limitation period.

[77] In the alternative, Mr. Iluyomade submits that any delay in commencing the action against any of the defendants can be attributed to Mr. Addo’s threat not to investigate Mr. Iluyomade’s complaint if a court action was commenced. Mr. Iluyomade says that but for this threat, he would have commenced action immediately.

[78] Further, Mr. Iluyomade submits that a court action was not the appropriate means to obtain a remedy until the Ombudsman’s investigation was completed because Mr. Iluyomade wished to preserve his career at TCHC and a civil action was not appropriate until the Ombudsman’s reprisal investigation was completed in the fall of 2015. Based on this argument, Mr. Iluyomade, once again, submits that his February 2016 action is timely.

(b) The Ombudsman Defendants

[79] The Ombudsman Defendants plead a limitations period defence, but they do not rely on it for the purpose of their motion to strike Mr. Iluyomade’s Statement of Claim on the ground that the pleading does not disclose a reasonable cause of action. Rather, than arguing the claim is statute-barred, the Ombudsman Defendants’ argument is that Mr. Iluyomade has not shown and would be unable to show an intentional infliction of mental suffering claim based on the preparation and release of the Ombudsman’s report. They plead further that the Ombudsman Defendants are protected by the evidentiary and other privileges afforded by the City of Toronto Act and the Ombudsman Act, and, therefore, Mr. Iluyomade’s action is an abuse of process.

[80] With respect to the Ombudsman Defendants, Mr. Iluyomade submits that he has pleaded a reasonable cause of action for intentional infliction of mental suffering, and he further submits that because of the bad faith of the Ombudsman Defendants, they, therefore, cannot rely on the privileges and protections of the City of Toronto Act and the Ombudsman Act. He disputes that his action is an abuse of process.

2. Jurisdiction

[81] The moving parties’ motions are brought pursuant to Rule 21 of the Rules of Civil Procedure, which states:

WHERE AVAILABLE

To any Party on Question of Law

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

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs;

(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,

(a) under clause (1)(a), except with leave of a judge or on consent of the parties;

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

To Defendant

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

Jurisdiction

(a) the court has no jurisdiction over the subject matter of the action;

Capacity

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Another Proceeding Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

Action Frivolous, Vexatious or Abuse of Process

(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

[82] Rule 21.01(1)(a) provides that a party may move before a judge for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs.

[83] The test on a motion for the determination of an issue before trial under Rule 21.01(1)(a) is whether the determination of the issue is plain and obvious.[^6] A rule 21.01(1)(a) motion uses the same test as under a motion under rule 21.01(1)(b), where the court may strike out a pleading on the ground that it discloses no reasonable cause of action.[^7]

[84] Where a defendant submits that the plaintiff’s pleading does not disclose a reasonable cause or action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim.[^8] Matters of law that are not fully settled should not be disposed of on a motion to strike, and the court's power to strike a claim is exercised only in the clearest cases.[^9]

[85] In R. v. Imperial Tobacco Canada Ltd.,[^10] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success.

[86] On motions brought under the procedure to strike a claim or defence as untenable in law, leave to amend the pleading may and usually will be given, and leave to amend will only be denied in the clearest cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment.[^11]

[87] With respect to the Statement of Claim, the court accepts the pleaded allegations of fact as proven, unless they are patently ridiculous or incapable of proof.[^12] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion under Rule 21.[^13]

[88] For the purposes of a motion under Rule 21, the court is not obliged to accept as a proven material fact the conclusion that there is a cause of action or a duty of care; rather, the court must examine whether the genuine material facts, which are not argument or conclusory statements, disclose a reasonable cause of action.[^14]

[89] Courts may determine whether a claim is statute-barred on a rule 21.01(1)(a) motion, where the determination of the issue does not depend on findings of fact.[^15] The court may determine a limitations issue even before a statement of defence is filed, where discoverability is not in issue and no additional facts could be pleaded that would alter the conclusion that a limitation period has expired.[^16]

[90] Rule 21.01(3)(d) permits a defendant to move to stay or dismiss an action on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court. Any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. A court only invokes its authority under rule 21.01(3)(d) or pursuant to its inherent jurisdiction to dismiss or stay an action in the clearest of cases.[^17]

3. Discussion: The Claim against the Ombudsman Defendants

[91] The elements of a claim of intentional infliction of mental suffering are: (1) the defendant’s actions are flagrant and outrageous; (2) the defendant intends to harm the plaintiff or the defendant knows that his or her conduct will cause harm; and, (3) the plaintiff suffers a visible and provable illness.[^18]

[92] Mr. Iluyomade’s key allegation against the Ombudsman Defendants – the allegation that constitutes both (a) the flagrant and outrageous conduct of the tort of intentional infliction of mental suffering and also (b) the bad faith of the Ombudsman Defendants that would preclude them from relying on their statutory privileges, immunities, and protections - is his allegation that Ms. Crean and Mr. Addo mentioned Mr. Ilyuomade’s job title of Mental Health Liaison in the Housing at Risk report.

[93] It is plain and obvious, however, that this is not flagrant and outrageous conduct nor is it an act of bad faith by Ms. Crean and Mr. Addo.

[94] Even before applying the doctrine of absolute privilege with respect to the Ombudsman’s report, the disclosure of Mr. Iluyomade’s job title was in accordance with the provisions of the City of Toronto Act, 2006, which expressly allows for disclosure when, in the opinion of the Ombudsman, it is required in order to establish grounds for his or her conclusions and recommendations.

[95] It is not enough for a plaintiff to simply submit that the pleaded conduct is extreme, flagrant and outrageous; a plaintiff is required to actually plead conduct that is extreme, flagrant and outrageous,[^19] which has not been done in Mr. Iluyomade’s case against the Ombudsman Defendants.

[96] It is notable that Mr. Iluyomade does not pled that any promise of confidentiality or anonymity was given to him, which, in any event, is something that Ms. Devlin would not be able to give. All Mr. Iluyomade pleads is that the Ombudsman’s external investigator asked Ms. Crean and Mr. Addo not to identify him as a source of information in the report to be released to the public.

[97] It was not and it would not be an act of bad faith for Ms. Crean to not accede to her external investigator’s request, and, in any event, it is arguable that she did accede to the request because Mr. Iluyomade was not personally named and there was no escaping the circumstances that given the subject matter of the investigation mention of his position was inevitable. And, practically speaking, Mr. Iluyomade as Mental Health Liaison was a public servant whose identify was already out there in the public domain.

[98] There was no criticism of Mr. Iluyomade in the report. Mentioning his position was necessary and inevitable, and it is farcical to impute an intention to harm in the Ombudsman’s act of mentioning his position at TCHC in the Housing at Risk report.

[99] Section 173(2) of the City of Toronto Act expressly allows the Ombudsman to disclose in any report made by him or her such matters as in the Ombudsman’s opinion ought to be disclosed in order to establish grounds for his or her conclusions and recommendations. At least four of the Ombudsman’s thirty recommendations were supportive and encouraging of the role of Mental Health Liaison.

[100] The material facts of Mr. Iluyomade’s Statement of Claim and Reply are based on documents or information that is subject to confidentiality. The Ombudsman Defendants, however, are protected by immunities and evidentiary privileges. Sections 172 and 173 of the City of Toronto Act, 2006, mandate that every investigation be conducted in private and that every person acting under the instruction of the Ombudsman preserve the secrecy with respect to all matters which come to his or her knowledge in the course of his or her duties. Section 175 of the Act dictates that no person acting under the instruction of the Ombudsman cannot be called to give evidence in any court in respect of anything coming to his or her knowledge in the exercise of his or her functions. Section 19(6) of the Ombudsman Act dictates that no statements made or answers given by any other person in the course of an inquiry by or proceeding before the Ombudsman is admissible in any court. No evidence in respect of proceedings before the Ombudsman shall be given against any person providing the evidence.

[101] Mr. Iluyomade’s claim is predicated on the contents of the publicly released Housing at Risk report having been changed from a purported “draft report”, but the draft, if it exists or ever existed, is protected by the doctrine of absolute privilege. Under the doctrine of absolute privilege, no action lies for words spoken in the ordinary course of any proceedings before any court, judicial tribunal, or quasi-judicial tribunal recognized by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings.[^20]

[102] The Ombudsman’s Housing at Risk report is akin to a judicial or quasi-judicial written decision which, by virtue of section 175(2) of the City of Toronto Act, 2006, is protected by absolute privilege. The bald allegations of bad faith contained in Mr. Iluyomade’s pleadings do not negate the application of the privilege.

[103] It is an abuse of process to bring an action that is in violation of the doctrine of absolute privilege, and the action should be dismissed.[^21]

[104] In my opinion, there is no reasonable cause of action pleaded against the Ombudsman Defendants, the action as pleaded is an abuse of process, and, as already noted earlier in this decision, the Office of the City of Toronto Ombudsman is, in any event, not a legal entity capable of being sued.

[105] The action against the Ombudsman Defendants should be struck out without leave to amend. The Ombudsman Defendants did nothing wrong, and they are not vicariously responsible for any misconduct of the TCHC Defendants after the Housing at Risk report was released.

4. Limitation Periods

[106] Before discussing Mr. Iluyomade’s claim against the individual TCHC Defendant, it is necessary to discuss limitation period defences.

[107] Limitation periods exist for three purposes: (1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who might be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion.[^22] These purposes are described as the certainty, evidentiary and diligence rationales.

[108] The relevant provisions of the Limitations Act, 2002 are sections 1, 4, and 5, which are set out below:

Definitions

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ….

BASIC LIMITATION PERIOD

Basic limitation period

4. 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.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[109] Prior to the enactment of s. 5(1)(a)(iv) of the current Limitations Act, 2002, the judge-made discoverability principle governed the commencement of a limitation period. The discoverability principle stipulated that a limitation period begins to run only after the plaintiff has the knowledge, or the means of acquiring the knowledge, of the existence of the facts that would support a claim for relief.[^23] The discoverability principle conforms with the idea of a cause of action being the fact or facts which give a person a right to judicial redress or relief against another.[^24] The discoverability principle continues to operate, and indeed has been codified – and modified - by the Limitations Act, 2002.

[110] The discoverability principle is codified by the Limitations Act, 2002, but its operation has been adjusted by s. 5(1)(a)(iv), and thus subject to s. 5(1)(a)(iv), a limitation period commences at its earliest when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence, but because of s. 5(1)(a)(iv), discoverability may be postponed.

[111] Subject to the adjustment made by s. 5(1)(a)(iv), with respect to the basic limitation period of two years under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the claimant knew - a subjective criterion - or ought to have known - an objective criterion - about the claim.[^25]

[112] The discoverability of a claim for relief involves the identification of the wrongdoer, and also, the discovery of his or her acts or omissions that constitute liability.[^26] It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence.[^27]

[113] For the limitation period to begin to run, it is not necessary that the plaintiff know the full extent or quantification of his or her damages; rather, the period begins to run with the plaintiff’s subjective or objective appreciation of being damaged, i.e., of being worse off than before the defendant’s conduct.[^28] (This principle should be kept in mind in the circumstances of the immediate case.)

[114] To rely on the discoverability principle to extend the running of a limitation period, the plaintiff must demonstrate that he or she exercised reasonable or due diligence to discover the material facts.[^29] However, while due diligence is a factor that informs the analysis of when a claim ought to have reasonably been discovered, lack of due diligence is not a separate and independent reason for concluding that a plaintiff’s claim is statute-barred. The idea rather is that when a reasonable person with the abilities and in the circumstances of the plaintiff would acquire facts to become knowledgeable about the claim, the limitation period does not stop running if the plaintiff takes no steps to investigate whether he or she has a claim.[^30]

[115] When a limitation period defence is raised, the onus is on the plaintiff to provide evidence to show that its claim is not statute-barred and that he or she behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue.[^31] What a reasonable person in the same or similar circumstances of the plaintiff knew or ought to have known is a question of fact.[^32] The objective test under paragraph 5(1)(b) requires considering the abilities and circumstances of the plaintiff and whether a person in the same or similar circumstances would have been alerted to the elements of a claim.[^33] The discoverability principle requires reasonable diligence by the plaintiff,[^34] and a defendant may succeed on a motion for a summary judgment where there is no genuine issue requiring a trial that the plaintiff ought through due diligence to have known that he or she had a claim.[^35]

[116] Section 5(1)(a)(iv) of the Limitations Act, 2002 adjusts the operation of the discoverability principle, and s. 5(1)(a)(iv) can have the effect of delaying the commencement of the running of limitation period. Where a person knows that he or she has suffered harm; i.e., when the plaintiff knows the elements of ss. 5(1)(a)(i),(ii), and (iii), the delay lasts until the day when a proceeding would be an “appropriate” means to remedy the harm having regard to the nature of the injury, loss or damage.

[117] The appropriateness factor of 5(1)(a)(iv) introduces uncertainty in the operation of the Limitations Act, 2002, but it also introduces some flexibility and fairness in the application of the discovery principle, which presumptively operates against the claimant as soon as a cause of action becomes objectively apparent.[^36]

[118] In Markel Insurance Co. of Canada v. ING Insurance Co. of Canada,[^37] the Court of Appeal held that for s. 5(1)(a)(iv) to have a delaying effect, there must be a juridical reason for the person to wait; i.e., there must be an explanation rooted in law as to why commencing a proceeding was not yet appropriate. Appropriateness must be assessed on the facts of each particular case, including taking into account the particular interests and circumstances of the plaintiff.[^38]

5. Discussion: The Claim against the Individual TCHC Defendants

[119] I disagree with Mr. Iluyomade’s submission that in the immediate case there are disputed facts that would preclude the court on a Rule 21 motion from deciding whether or not a claim is statute-barred. All that is required in the immediate case is to apply the provisions of the Limitations Act¸2002 to the pleaded facts as set out in Mr. Iluyomade’s Statement of Claim, his Response to the Demand for Particulars, the admissions contained in the TCHC Defendants’ Statement of Defence, and to Mr. Iluyomade’s Replies.

[120] As I shall explain, the application of the law to the assumed to be true facts yields - favourably to Mr. Iluyomade - my conclusion that for the purposes of a Rule 21 motion, the limitation period for his intentional infliction of mental suffering claim against the individual TCHC Defendants may not have begun to run until he was dismissed on February 25, 2014 making his February 5, 2016 timely.

[121] For the purposes of the individual TCHC Defendants’ motion, my line of reasoning or explanation for dismissing their motion is as follows.

[122] In my opinion, by the end of 2013, Mr. Iluyomade both subjectively and objectively knew that he been injured and damaged and that the injury and damage was caused or contributed to by the acts of individual TCHC Defendants. By the end of 2013, however, it was not the case that having regard to the injury or damage that he had suffered a proceeding would have been the appropriate means to seek a remedy. It is arguable that a proceeding may only have became an appropriate remedy after February 25, 2014 when Mr. Iluyomade was dismissed without cause.

[123] In other words, just for the purposes of the Rule 21 motion, it is arguable that Mr. Iluyomade’s intentional infliction of mental suffering claim was only discovered on February 25, 2014 when an action against the TCHC and the individual TCHC Defendants would have been appropriate, and, therefore, his February 5, 2016 action was brought within the two-year limitation period of the Limitations Act, 2002. In still other words, Mr. Iluyomade’s action arguably was saved by the fairness and flexibility of the operation of s. 5(1)(a)(iv) of the Act.

[124] It should be appreciated that while the outcome is favourable to Mr. Iluyomade, I do not agree with his argument that his intentional infliction of mental suffering cause of action did not crystalize until February 25, 2014 because his damages only culminated with his dismissal. Mr. Iluyomade had suffered legally actionable damages before the end of 2013. He allegedly suffered from stress, anxiety, and depression, had taken medical leave, and had asked for accommodations for his mental suffering in 2013.

[125] It is not necessary for the full extent of the damages suffered to be known before the cause of action is discovered and the limitation period begins to run. In Hamilton (City) v. Metcalfe & Mansfield Capital Corp.,[^39] the Ontario Court of Appeal stated at paragraph 54:

54. The City’s position that damage occurred when the Devonshire notes matured also fails to appreciate the distinction between damage and damages. Damage is the loss needed to make out the cause of action. Insofar as it relates to a transaction induced by wrongful conduct, as I have explained, damage is the condition of being worse off than before entering into the transaction. Damages, on the other hand, is the monetary measure of the extent of that loss. All that the City had to discover to start the limitation period was damage.

[126] Mr. Iluyomade’s cause of action for intentional infliction of mental suffering had crystalized, and it was fully constituted by the end of 2013; however, having regard to the nature of the injury, loss or damage, a proceeding against the individual TCHC Defendants would not have been appropriate means to seek a remedy in 2013.

[127] Assuming the material facts alleged in Mr. Iluyomade’s Statement of Claim are true, which I am obliged to do on a Rule 21 motion, by the end of 2013, a proceeding against the individual TCHC Defendants would not have been appropriate because it would have entailed that he also bring proceedings for a wrongful constructive dismissal against TCHC.

[128] In January 2014, Mr. Iluyomade was attempting to preserve and advance his place at TCHC, and he certainly would have killed his prospects by suing the CEO, Mr. Jones, for allegedly flagrant and outrageous conduct. Practically speaking, if Mr. Iluyomade wished to pursue claims against the individual TCHC Defendants for the crystallized tort of intentional infliction of mental suffering he would have to quit TCHC and sue for a wrongful constructive dismissal. That, however, would not have been a sensible choice, and so a proceeding did not become an appropriate means to seek a remedy until February 25, 2016, when it was no longer nobler to suffer the slings and arrows of outrageous fortune and it was time for Mr. Iluyomade to arm against his sea of troubles.

[129] To be clear, I conclude that for the purposes of a Rule 21 motion, the individual TCHC Defendants do not have a limitations period defence because the pleaded material facts posit circumstances in which a limitation period would not have expired.[^40] However, in explaining why I am dismissing the individual TCHC’s order, I am not making a final order about the availability of a limitations period defence. As this action proceeds, the individual TCHC Defendants may reassert their limitations defence along with their other defences.

[130] In reaching my disposition of the Rule 21, motion, it should be appreciated that I do not agree with Mr. Iluyomade’s categorical submission that the court has no jurisdiction on a Rule 21 motion to determine whether a claim is statute-barred because the question of the running of a limitation period is a question of mixed fact and law and the court cannot make binding findings of fact on such a motion.

[131] Although dependant upon the nature of the cause of action and on the pleaded facts, it may in a particular case not be possible to isolate a question of law associated with the running of a limitation period, and, in such a case, the determination of whether the action is statute-barred may have to be determined by a summary judgment motion or a trial,[^41] there will be particular cases where the court may determine whether a claim is statute-barred on a Rule 21.01motion.[^42] It may be possible to isolate a question of law that does not depend on findings of fact. The court may determine a limitations issue in a Rule 21.01(1)(a) motion before a statement of defence is filed, where discoverability is not in issue and no additional facts could be pleaded that would alter the conclusion that a limitation period has expired.[^43]

[132] For example, in the case at bar, while I am not deciding the point, the Ombudsman Defendants could have had a quite strong argument for dismissal based on a limitation period defence by relying on Rule 21. The argument would have been that Mr. Iluyomade’s intentional inflection of mental suffering claim, which concerned the Ombudsman’s release of Housing at Risk - in June 2013, was statute-barred before Mr. Iluyomade commenced his action against the Ombudsman Defendants in February 2016. This argument was available just based on the pleadings.

[133] Finally, it also should be appreciated that I do not necessarily agree with Iluyomade’s argument that the so-called threats by Mr. Addo had the effect of delaying or suspending the running of the limitation period until the fall of 2015. I simply do not need to decide this issue.

[134] I conclude, that the individual TCHC Defendants’ motion should be dismissed without prejudice to their asserting later that Mr. Iluyomade’s claim is statute-barred.

E. Conclusion

[135] For the above reasons: (a) I dismiss Mr. Iluyomade’s action against the Ombudsman Defendants; and (b) I dismiss the individual TCHC Defendants’ Rule 21 motion.

[136] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Ombudsman Defendants’ claim as against Mr. Iluyomade and Mr. Iluyomade’s claim against the individual TCHC Defendants within twenty days of the release of these Reasons for Decision followed by Mr. Iluyomade’s and the individual TCHC Defendants’ respective responding submissions within a further twenty days.

Perell, J.

Released: December 31, 2018

COURT FILE NO.: CV-16-546127

DATE: 2018/12/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KOLA ILUYOMADE, FUNKE ILUYOMADE, OREOLUWA KOLA-ILUYOMADE, and

IFEDAYO KOLA-ILUYOMADE

Plaintiffs

– and –

TORONTO COMMUNITY HOUSING CORPORATION, CITY OF TORONTO,

OFFICE OF THE CITY OF TORONTO OMBUDSMAN, FIONA CREAN, KWAME

ADDO, GENE JONES, MARY BOUSHEL, MICHELLE HANEY-KILEEG, ANDREA

AUSTEN, and ANAND MAHARAJ

Respondents

REASONS FOR DECISION

PERELL J.

Released: December 31, 2018

[^1]: S.O. 2002, c. 24, Schedule B. [^2]: S.O. 2006, c. 11, Sched. A. [^3]: Effective September 19, 2016, City Council appointed Susan E. Opler as the City’s second Ombudsman for a seven-year, non-renewable term. [^4]: R.S.O. 1990, c. F.3. [^5]: R.S.O. 1990, c. O.6. [^6]: Rennie v. Kelsey’s Restaurants Inc., 2011 ONSC 4027 at para. 21; MacDonald v. Ontario Hydro (1994), 1994 7294 (ON SC), 19 O.R. (3d) 529 at paras. 9-11 (Gen. Div.), aff’d (1995), 1995 10628 (ON SC), 26 O.R. (3d) 401 (Div. Ct.). [^7]: MacDonald v. Ontario Hydro (1994), 1994 7294 (ON SC), 19 O.R. (3d) 529 (Gen. Div.), aff’d 1995 10628 (ON SC), 26 O.R. (3d) 401 (C.A.); R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778 at pp. 781-82 (C.A.). [^8]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.); Hunt v. Carey Canada Inc. (1990), 1990 90 (SCC), 74 D.L.R. (4th) 321 (S.C.C.). [^9]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.); Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 (C.A.). [^10]: 2011 SCC 42 at paras. 17-25. [^11]: Mitchell v. Lewis, 2016 ONCA 903 at para. 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72 at para. 16; Holdings Ltd. v. Toronto-Dominion Bank (c.o.b. TD Canada Trust)), 2007 ONCA 456, [2007] O.J. No. 2445 at para. 6 (C.A.); Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346 (C.A.). [^12]: Folland v. Ontario (2003), 2003 52139 (ON CA), 64 OR (3d) 89 (C.A.); Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (CA); Canada v. Operation Dismantle Inc., 1985 74 (SCC), [1985] 1 S.C.R. 441; A-G. Canada v. Inuit Tapirisat of Canada, 1980 21 (SCC), [1980] 2 S.C.R. 735. [^13]: Das v George Weston Limited, 2017 ONSC 4129, aff’d 2018 ONCA 1053. Losier v. Mackay, Mackay & Peters Ltd., 2009 43651 (ON SC), [2009] O.J. No. 3463) at paras. 39-40 (S.C.J.), aff’d 2010 ONCA 613, leave to appeal ref’d [2010] SCCA 438. Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 34. [^14]: Das v George Weston Limited, 2017 ONSC 4129 at paras 17 and 21, aff’d 2018 ONCA 1053. [^15]: Whittaker v. Great-West Life Assurance Co. (2008), 2008 13376 (ON SC), 63 CCLI (4th) 100 at paras. 2, 36, 48 (Ont. S.C.J.); Charlton v. Beamish (2004), 2004 35934 (ON SC), 73 O.R. (3d) 119 at paras. 18, 48-49 (S.C.J.); Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370 (C.A.); Cascone v. Rodney (1981), 1981 1748 (ON SC), 34 O.R. (2d) 618 at para. 2 (H.C.J.). [^16]: Salewski v Lalonde, 2017 ONCA 515 at paras. 43-46; Amrane v. York University, 2016 ONSC 7847 at paras. 14-15 (Div. Ct.); Maynards Industries Ltd v. Cincinnati Industrial Auctioneers Inc, 2011 ONSC 2656 at para. 34; Beardsley v. Ontario (2001), 2001 8621 (ON CA), 57 O.R. (3d) 1 at para. 21 (C.A.). [^17]: Salasel v. Cuthbertson, 2015 ONCA 115 at para. 7; Currie v. Halton (Region) Police Services Board, 2003 7815 (ON CA), [2003] O.J. No. 4516 at paras. 17 and 18 (C.A.). [^18]: McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 30 at para. 29 (C.A.); Piresferreira v. Ayote 2010 ONCA 384; Correia v. Canac Kitchens, a division of Kohler Ltd., 2008 ONCA 506; Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A); High Parklane Consulting Inc. v. Royal Group Technologies Ltd., [2007] O.J. No. 107 (S.C.J.); Guay v. Sun Publishing Co., 1953 39 (SCC), [1953] 2 S.C.R. 216; Wilkinson v. Downton, [1897] 2 Q.B.D. 57. [^19]: High Parklane Consulting Inv. v. Royal Group Technologies Inc. (2007) O.J. No. 107 at para. 41 (S.C.J.). [^20]: Salasel v. Cuthbertson, 2015 ONCA 115 at para. 35; Amato v. Welsh, 2013 ONCA 258 at para. 34; 1522491 Ontario Inc. v. Stewart, Esten Professional Corp., 2009 15656 (ON SCDC), [2009] O.J. No. 1413 (Div. Ct.); Milne v. Ontario (Securities Commission), 2006 7287 (ON SC), [2006] O.J. No. 953 at para. 33 (S.C.J.). [^21]: Salasel v. Cuthbertson, 2014 ONSC 3071 at paras. 38-40 aff’d 2015 ONCA 115; Milne v. Ontario (Securities Commission), 2006 7287 (ON SC), [2006] O.J. No. 953 (S.C.J.); Delisser v. State farm Mutual Automobile Insurance Co., 2004 13931 (ON SC), [2004] O.J. No. 1399 (S.C.J.); Dooley v C.N. Weber Ltd. (1994), 1994 7300 (ON SC), 19 O.R. (3d) 779 at para. 14 (Gen. Div.); Munster v. Lamb (1883), 11 Q.B.D. 588 at p. 605. [^22]: M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6; Novak v. Bond, 1999 685 (SCC), [1999] 1 SCR 808; Frohlick v. Pinkerton Canada Ltd. (2008), 2008 ONCA 3, 88 O.R. (3d) 401 (C.A.); Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44. [^23]: Kamloops v. Nielson (1984), 1984 21 (SCC), 10 D.L.R. (4th) 641 (S.C.C.); Central Trust Co. v. Rafuse (1986), 1986 29 (SCC), 31 D.L.R. (4th) 481 (S.C.C.); Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549. [^24]: Lawless v. Anderson, 2011 ONCA 102 at para. 22; Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 at p. 170 (C.A.). [^25]: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70. [^26]: Aguonie v. Galion Solid Waste Material Inc., (1998), 1998 954 (ON CA), 38 OR (3d) 161 (C.A.); Ladd v. Brantford General Hospital (2007), 2007 45921 (ON SC), 88 O.R. (3d) 124 (S.C.J.). [^27]: Mark v. Guelph (City) (2011), 2010 ONSC 6034, 104 O.R. (3d) 471 (S.C.J.); Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596 (S.C.J.); Greenway v. Ontario (Minister of Transportation) (1999), 1999 14797 (ON SC), 44 O.R. (3d) 296 (Gen. Div.). [^28]: Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629, aff’d 2016 ONCA 179; Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156. [^29]: Pollari v. Famous Players Limited Partnership, 2015 ONSC 5121, aff’d 2016 ONCA 180; Longley v. General Motors of Canada Ltd. (2008), 2008 10527 (ON SC), 90 O.R. (3d) 536 (S.C.J.); Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 (C.A.); Zapfe v. Barnes (2003), 2003 52159 (ON CA), 66 O.R. (3d) 397 (C.A.); Soper v. Southcott (1998), 1998 5359 (ON CA), 39 O.R. (3d) 737 (C.A.). [^30]: Fennell v. Deol, 2016 ONCA 249; Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, aff’g 2015 ONSC 6177; Longo v. MacLaren Art Centre Inc., 2014 ONCA 526. [^31]: Unegbu v. WFG Securities of Canada Inc., 2015 ONSC 6408, aff’d 2016 ONCA 501; Fontanilla Estate v. Thermo Cool Mechanical, 2016 ONSC 7023; Durham (Regional Municipality) v. Oshawa (City), 2012 ONSC 5803; Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567; Pepper v. Zellers Inc. (c.o.b. Zellers Pharmacy) (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 (C.A.); Bhaduria v. Persaud (1998), 1998 14846 (ON SC), 40 O.R. (3d) 140 (Gen. Div.). [^32]: Arcari v. Dawson, 2016 ONCA 715; Lima v. Moya, 2015 ONSC 324, aff’d 2015 ONSC 3605 (Div. Ct.). [^33]: Ontario Flue-Cured Tobacco Growers Marketing Board v. Rothmans, Benson & Hedges, Inc., 2016 ONSC 3939 (Div. Ct.); Webb v. TD Waterhouse Canada Inc., 2016 ONSC 7153. [^34]: Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549; Lawless v. Anderson, 2011 ONCA 102; Barry v. Pye, 2014 ONSC 1937. [^35]: Pollari v. Famous Players Limited Partnership, 2015 ONSC 5121; Slack v. Bednar, 2014 ONSC 3672; Barry v. Pye, 2014 ONSC 1937; White v. Mannen, 2011 ONSC 1058. [^36]: Pepper v. Sanmina-Sci Systems (Canada) Inc., 2017 ONSC 1516. [^37]: 2012 ONCA 218. [^38]: Winmill v. Woodstock Police Services, 2017 ONCA 962; Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44; 407 ETR Concession Co. v. Day, 2016 ONCA 709, rev’g 2014 ONSC 6409; Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621 aff’d, 2015 ONCA 847; U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality), 2014 ONSC 1103. [^39]: 2012 ONCA 156. [^40]: Salewski v. Lalonde, 2017 ONCA 515. [^41]: Kantor v. Fry, 2015 ONSC 6857; Whitters v. Furtive Networks Inc., 2012 ONSC 2159; Greatrek Trust S.A./Inc. v. Aurelian Resources Inc., 2009 6095 (ON SC), [2009] O.J. No. 611 at para. 19 (S.C.J.); Frumusa v. Ungario, [2005] O.J. No. 2412 (S.C.J.); Charlton v. Beamish (2004), 2004 35934 (ON SC), 73 O.R. (3d) 119 (S.C.J.); Boutin v. The Co-operators Life Insurance Company, (1999), 1999 2071 (ON CA), 42 O.R. (3d) 612 (C.A.). [^42]: Bailey v. Milo-Food & Agricultural & Infrastructure Services Inc., 2017 ONSC 1789, var’d 2017 ONCA 1004 (C.A.); Brozmanova v Tarshsis, 2017 ONSC 5172; Saltsov v. Rolnick, 2010 ONSC 914; Sandrabalan v. Toronto Transit Commission, 2009 18298 (ON SC), [2009] O.J. No. 1610 (S.C.J.); Joseph v. Paramount Canada's Wonderland (2008), 2008 ONCA 469, 90 O.R. (3d) 401 at para. 6 (C.A.); Whittaker v. Great-West Life Assurance Co. (2008), 2008 13376 (ON SC), 63 CCLI (4th) 100 at paras 2, 36, 48 (Ont. S.C.J.); Charlton v. Beamish (2004), 2004 35934 (ON SC), 73 O.R. (3d) 119 at paras 18, 48-49 (S.C.J.); Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370 (Ont. C.A.); Cascone v. Rodney (1981), 1981 1748 (ON SC), 34 O.R. (2d) 618 at para. 2 (Ont. H.C