DATE: 2018/02/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AZEB MESFIN-TESFAYE
Plaintiff
– and –
RIVERPARK PLACE RETIREMENT RESIDENCE
Defendant
Christopher E. Clermont, for the Plaintiff, Respondent
Anne M. Lemay, for the Defendant, Moving Party
HEARD at Ottawa: December 7, 2017
DECISION ON MOTION
KERSHMAN J.
Overview
[1] This motion is brought by the Defendant, Riverpark Place Retirement Residence (“Riverpark”), seeking an order to strike out the Statement of Claim of the Plaintiff, Azeb Mesfin-Tesfaye (“Ms. Mesfin-Tesfaye”), without leave to amend for failing to disclose a reasonable cause of action.
Factual Background:
[2] The Plaintiff commenced an action on April 5, 2017 seeking damages for negligence, breach of duty to act reasonably and breach of duty to act in good faith in the context of the Plaintiff’s application for a professional nursing license in the Northwest Territories.
[3] The Plaintiff worked for the Defendant as a Registered Practical Nurse (“RPN”) from July 29, 2015 to October 25, 2015. The Defendant terminated the Plaintiff before the end of the Plaintiff’s three-month probationary period. The termination was without cause and without compensation.
[4] The Plaintiff moved to Alberta to continue her career as an RPN. In October 2016 she pursued an employment opportunity for a specified term in an isolated community in the Northwest Territories. The employment was conditional on the Plaintiff obtaining a license as a Licensed Practical Nurse (“LPN”) from the Department of Health and Social Services (“the Registrar”) in the Northwest Territories.
[5] As part of the application process, the Plaintiff completed a “Verification of Experience/Reference Report” disclosing the Plaintiff’s two most recent employers, which included the Defendant.
[6] The Registrar delivered a “Verification of Nursing Practice Form” (“Verification Form”) to each of the Plaintiff’s two most recent employers and instructed the employers to complete the form. The Verification Form indicated that the employer’s responses were strictly confidential.
[7] The Defendant did fill in certain sections of the Verification Form, but not completely, notwithstanding written requests from the Registrar and from the Plaintiff.
[8] In absence of the completed Verification Form, the Registrar in the Northwest Territories refused to grant an LPN license to the Plaintiff. The Plaintiff’s employer terminated the Plaintiff’s contract on the basis that it had been frustrated by the Plaintiff’s inability to obtain the LPN license.
[9] The Plaintiff commenced an action against the Defendant, claiming that by not completing the Verification Form in full, the Defendant was negligent and breached “a duty to act reasonably and in good faith” and that it owed a duty to the Plaintiff.
[10] The Plaintiff seeks damages for loss of employment opportunity as well as aggravated damages for the alleged negligence and failure to act in good faith.
Issue:
- Does the Statement of Claim as pleaded set out sufficient material facts on which the Plaintiff can rely to establish a cause of action?
Issue #1: Does the Statement of Claim as pleaded set out sufficient material facts on which the Plaintiff can rely to establish a cause of action?
Moving Party’s Position (Defendant):
[11] The Defendant argues that the Plaintiff has not pled all of the material facts on which it relies for it to establish a cause of action that is legally complete.
[12] The Defendant also argues that if material facts are omitted and the Statement of Claim is deficient, the remedy is a motion to strike the deficient pleading (Balanyk v. University of Toronto (1999), 1999 CanLII 14918 (ON SC), 1 C.P.R. (4th) 300 (Ont. S.C.), at para. 29).
[13] The Defendant argues that it was plain and obvious that the Statement of Claim discloses no reasonable cause of action, with no tenable cause of action and negligence because:
a. there is no standalone “common law duty” to act in good faith (1001411 Ontario Ltd. v. City of Toronto Economic Development Corp., 2009 CarswellOnt 9128, aff’d 2010 ONCA 411; TransAmerica Life Canada Inc. v. ING Canada Inc. (2003), 2003 CanLII 9923 (ON CA), 68 O.R. (3d) 457 (C.A.), at para. 53);
b. there is no recognized duty of care requiring employers to provide references (Shinn v. TBC Teletheatre B.C., 2001 BCCA 83, at para. 11; Ashby v. EPI Environmental Products Inc., 2005 BCSC 1190, at paras. 36-40). The Court notes that employment law has not recognized such a duty; and
c. the Anns test is not met and does not impose a new duty of care in this case; the relationship between the Plaintiff and the Defendant does not involve sufficient foreseeability or proximity to establish a prima facie duty of care and, even if there was, there are significant policy considerations that would negate such a duty of care (Rayner v. McManus, 2017 ONSC 3044, at para. 19; Cooper v. Hobart, 2001 SCC 79, at para. 30).
Responding Party’s Position (Plaintiff):
[14] The Plaintiff argues that if a pleading is struck on the grounds that it discloses no reasonable cause of action, the Court may make an order accordingly: Rule 21.01(1)(b) of the Rules of Civil Procedure.
[15] The Plaintiff argues that it must be plain and obvious that a Statement of Claim will not succeed in order for it to be struck.
[16] The Plaintiff argues that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those previous situations in which a duty of care has been held to exist (Tarailo v. Allied Chemical Canada Ltd. (1989), 1989 CanLII 4048 (ON SC), 68 O.R. (2d) 288 (C.A.), at p. 298).
Analysis:
[17] In this case, the Plaintiff’s employment with the Defendant started on July 29, 2015 and was terminated on October 25, 2015, which was within the three-month probationary period. At the time of termination during the probationary period, the contractual obligations of the employer to the employee came to an end.
[18] At the time that the Verification Form was requested by the Registrar there was no contractual relationship between the parties. That contractual relationship had ended over 13 months before the Verification Form was requested. For whatever reason, while completing part of the Verification Report, the Defendant did not complete certain portions, including the reason for the Plaintiff’s termination.
[19] The Plaintiff argues that the Defendant knew or ought to have known that the Plaintiff at some point in time would be requesting to be licensed in the Northwest Territories. The Plaintiff further argues that the Defendant knew or ought to have known that a Verification Form would be requested by the Northwest Territories Registrar, with respect to the Plaintiff.
[20] The Court does not appreciate or understand why the Defendant, as an employer, knew or ought to have known that the Plaintiff was going to be seeking to be licensed in the Northwest Territories.
[21] Furthermore, the Court does not appreciate or understand that the Defendant, as an employer, knew or ought to have known that the Northwest Territories was going to be requesting a Verification Form that it would have to complete.
[22] The Court finds that the statements made by the Plaintiff in the Statement of Claim are merely bald statements for which there is no foundation. As stated previously, the Plaintiff was merely a probationary employee and not a full-time employee.
[23] As to the duty of care, the Court does not find that there is any foundation for it.
[24] The Court does not find that there is anything in the Statement of Claim that would tell the Court what the basis of the duty of care is.
[25] The relationship between the parties was created by the employment relationship, which, as stated previously, was terminated during the probationary period.
[26] The Court does not find anything pleaded in the Statement of Claim to understand why a duty of care extended beyond the probationary timeframe, knowing that the employer-employee relationship ended with the termination.
[27] Having reviewed the Statement of Claim, the Court finds that there is nothing pleaded in the Statement of Claim with respect to contractual obligations that the Defendant was required to provide a Verification Form. The Court notes that the Defendant did complete certain parts of the Verification Form, but not others.
[28] The Court finds that the terminated contract did not give rise to a duty of care. There may have been an implied term in the contract to do certain things, however the Court finds that the duty of care would be contained in the contract in and of itself and would be terminated when the contract was terminated.
[29] The Court does not see how it could have been within the contemplation of the parties that after the employment relationship was terminated the Plaintiff would apply in another jurisdiction, in this case the Northwest Territories, and that, in order to qualify, she was required to obtain a reference from the Defendant, which in this case the Defendant declined to provide.
[30] Therefore, the Court finds that there is no duty of care owed by the Defendant to the Plaintiff.
[31] For the aforesaid reasons, the Court finds that the Statement of Claim is struck as it discloses no reasonable cause of action; it is plain and obvious that a prima facie duty of care did not exist between the Defendant and the Plaintiff. The Plaintiff shall be allowed 21 days to amend the Statement of Claim. The Defendant shall be allowed 30 days after receipt of the Amended Statement of Claim to file a Statement of Defence.
Costs:
[32] The parties provided Costs Outlines at the hearing of the motion. The parties shall be allowed 14 days to resolve the issue of costs. If they are unable to do so, they shall contact the trial coordinator and obtain a date and time to argue the issue of costs. Each party will have 15 minutes to argue the issue of costs. Costs Outlines and any Rule 49 Offers to Settle shall be provided three days prior to the hearing of the costs argument.
[33] Order accordingly.
Mr. Justice Stanley Kershman
Released: February 6, 2018
DATE: 2018/02/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
AZEB MESFIN-TESFAYE
Plaintiff
– and –
RIVERPARK PLACE RETIREMENT RESIDENCE
Defendant
DECISION ON MOTION
KERSHMAN J.
Released: February 6, 2018```