RELEASED: 2019/04/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Vivian Bercovici v. Attorney General of Canada
BEFORE: Master Graham HEARD: February 25, 2019
COUNSEL: Kathryn Marshall for the plaintiff (moving party)
Barney Brucker and Ani Mamikon for the defendant Attorney General and for the proposed added defendants
REASONS FOR DECISION
(Plaintiff’s motion to add defendants)
[1] Vivian Bercovici was appointed Canada’s ambassador to Israel commencing January 2, 2014. Although she was appointed for a four year term, on April 21, 2016 she was informed that her appointment would be terminated effective June 30, 2016.
[2] On June 29, 2018, Ms. Bercovici issued a notice of action naming the Attorney General of Canada as the sole defendant, and claiming damages on the basis that the defendant’s conduct was in bad faith, violated the duty of fairness that was owed to her, and violated its fiduciary duty to act in her best interests. She alleged that during the period between April 21, 2016 and June 30, 2016, she attempted to address numerous issues arising from her termination and that “the responsible officials rebuffed and ignored her”. She further alleged that the defendant terminated her appointment in a harsh and vindictive manner that had the purpose and effect of harming her.
[3] The applicable Rules of Civil Procedure, as reviewed below, require that where an action is commenced by notice of action, the plaintiff shall file a statement of claim within 30 days after the notice of action is issued. On July 18, 2018, Ms. Bercovici retained her current counsel, who prepared a statement of claim which included in the title of proceeding five individual defendants in addition to the Attorney General. When plaintiff’s counsel attempted to file the statement of claim on July 30, 2018, being the 30^th^ day after the notice of action was issued, the registrar declined to accept it because the title of proceeding was not identical to that in the notice of action. The plaintiff then filed a statement of claim that named the five individuals as defendants in the body of the pleading but not in the title of proceeding.
[4] The plaintiff now brings this motion to amend the title of proceeding to add as defendants the five individuals named as defendants in the body of the statement of claim. The proposed individual defendants oppose the motion on the basis that any cause of action against them arose no later than June 30, 2016, being the date on which the plaintiff’s tenure as ambassador to Israel ended, and the motion to add them as defendants was not initiated until after the expiry of the two year limitation period in the Limitations Act, 2002. The plaintiff also seeks to assert claims against the proposed defendants for intentional infliction of mental suffering and those proposed defendants submit that those claims are not pleaded as tenable causes of action. For these reasons, the plaintiff’s motion is dismissed as against the proposed defendants Gwozdecky, Jean, Bugailiskis and Richardson and allowed in part as against the proposed defendant Telford.
The statement of claim
[5] The statement of claim (paragraphs 9-13) identifies the five proposed defendants as follows:
Mark Gwozdecky was Director General, Middle East and Maghreb until November, 2015, when he was appointed Assistant Deputy Minister, International Security and Political Affairs, Ministry of Foreign Affairs.
Daniel Jean, now retired, was the Deputy Minister of Foreign Affairs and, as of May 16, 2016, the National Security Advisor to the Prime Minister of Canada.
Alexandra Bugailiskis, currently the Canadian Ambassador to Italy, was at all material times the Assistant Deputy Minister of Europe, the Middle East and Maghreb in the Ministry of Foreign Affairs.
Barbara Richardson, currently the Canadian Ambassador to the Czech Republic, was at all material times the Inspector General for the Ministry of Foreign Affairs.
Katie Telford is and was at all material times, the Chief of Staff to the Prime Minister of Canada.
[6] The statement of claim contains the plaintiff’s allegations against the proposed individual defendants, which are summarized in paragraph 21:
21 However, not only was she [the plaintiff] unsupported in her role, but the individual named Defendants, as well as countless others within the Public Service, intentionally and maliciously waged a campaign of abuse against the Plaintiff designed to malign, undermine and destroy her credibility in that role [as ambassador], such that by the time of her dismissal, she had become a mere pawn, stripped of authority and ability to do anything more than obey, and accept abusive treatment as the status quo.
[7] The alleged conduct is described in detail in the subsequent paragraphs of the statement of claim, and includes incidents commencing in January, 2014, the first month of Bercovici’s term as ambassador, through her entire period of service until her termination, and through the post-termination period until February, 2018. The allegations are in relation to actions by the proposed individual defendants, and by other individuals whom the plaintiff has not attempted to name as defendants. The statement of claim (paragraph 144) summarizes the particulars of the alleged bad faith pre-termination and post-termination behaviour.
[8] In addition, the statement of claim (paragraphs 147-152) pleads and particularizes claims against each of the five proposed individual defendants for damages for intentional infliction of mental suffering.
Applicable rules of civil procedure
[9] The rules with respect to the commencement of an action by notice of action and the subsequent filing of a statement of claim are:
14.01(1) A proceeding shall be commenced by the issuing of an originating process. . . .
14.03(1) The originating process for the commencement of an action is a statement of claim, except as provided by,
(a) subrule (2) (notice of action); . . .
(2) Where there is insufficient time to prepare a statement of claim, an action may be commenced by the issuing of a notice of action (Form 14C) that contains a short statement of the nature of the claim.
(3) Where a notice of action is used, the plaintiff shall file a statement of claim (form 14D) within thirty days after the notice of action is issued, and no statement of claim shall be filed thereafter except with the written consent of the defendant or with leave of the court obtained on notice to the defendant.
(4) The notice of action shall not be served separately from the statement of claim. . . .
(5) In an action commenced by the issuing of a notice of action, the statement of claim may alter or extend the claim stated in the notice of action. . . .
14.06(1) Every originating process shall contain a title of the proceeding setting out the names of all the parties and the capacity in which they are made parties, if other than their personal capacity.
(2) In an action, the title of the proceeding shall name the party commencing the action as the plaintiff and the opposite party as the defendant.
[10] The rules applicable to the adding of parties to an action are:
5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B
[11] As stated above, the proposed defendants oppose the motion in part on the basis that the claims against them were not asserted until after the expiry of the applicable limitation period contained in the Limitations Act, 2002. The relevant sections of this statute are:
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.
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).
(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. . . .
21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.
Issues on the motion
[12] The issues to be resolved on the motion are:
May the plaintiff, having commenced the action by notice of action, add defendants to the action simply by naming them when issuing the statement of claim?
May the proposed defendants be added on the basis that the plaintiff’s failure to include them within the limitation period was a mere technical irregularity or technical non-compliance?
Is the plaintiff precluded from adding the proposed defendants on this motion owing to the expiry of the limitation period?
Has the plaintiff pleaded a tenable claim of intentional infliction of mental suffering against the proposed defendant Telford?
Analysis of the issues
May the plaintiff, having commenced the action by notice of action, add defendants to the action simply by naming them when issuing the statement of claim?
[13] The plaintiff’s action was commenced by notice of action. Under rules 14.03(1)(a) and (2), where a plaintiff commences an action by notice of action, the notice of action, and not the statement of claim, is the originating process. Under rule 14.06(1), the originating process shall contain “a title of the proceeding setting out the names of all the parties”. Therefore, where the originating process is a notice of action, it is the title of proceeding in the notice of action that identifies the parties to the action.
[14] The plaintiff relies on rule 14.03(2), which provides that a notice of action contain “a short statement of the nature of the claim” [emphasis added] and rule 14.03(5), which provides that “in an action commenced by the issuing of a notice of action, the statement of claim may alter or extend the claim stated in the notice of action”. The plaintiff argues that these two rules read together allow the plaintiff to add to the statement of claim both claims and parties not included in the notice of action. Specifically, the plaintiff submits that where the notice of action referred to the conduct of “responsible officials”, it was open to her to name those officials as defendants in the statement of claim as an extension of the claim in the notice of action.
[15] Rules 14.03(1) and (2) and 14.03(5) must be interpreted in the context of the rules as a whole, which include rule 5.04(2).
[16] Rules 14.03(1) and 14.06(1) read together provide that the parties to an action, which include the defendants, be named in the originating process, which in this case was the notice of action. Rule 5.04(2) provides the means by which parties may be added to an action: “[T]he court may by order add, delete or substitute a party . . .” [emphasis added]. However, there is no provision in rule 14.03 that allows parties to be added to a proceeding commenced by notice of action simply by including them in the statement of claim. In the face of the specific provision in rule 5.04(2) requiring a court order to add parties, the fact that rule 14.03(5) allows a plaintiff who has issued a notice of action to “alter or extend the claim” when filing her statement of claim does not enable that plaintiff to add new defendants simply by including them in the statement of claim.
[17] Rule 14.03(2) enables a plaintiff to comply with a limitation period by commencing an action by notice of action “where there is insufficient time to prepare a statement of claim”. The notice of action is therefore intended to be a document that can be prepared and issued quickly before the limitation period expires. However, in order to defeat the operation of the limitation period, the plaintiff must still name all defendants within the limitation period, subject to the considerations discussed below.
[18] If a plaintiff wishes to add defendants to an action commenced by notice of action, she must, as concluded above, do so by way of a motion under rule 5.04(2). The registrar was therefore correct in refusing to accept for filing the statement of claim naming five new defendants.
May the proposed defendants be added on the basis that the plaintiff’s failure to include them within the limitation period was a mere technical irregularity or technical non-compliance?
[19] The plaintiff submits that her failure to name the proposed added defendants in an originating process within two years of June 30, 2016 was a mere technical irregularity or technical non-compliance such that her claims against those individuals are not statute-barred. She relies on Hastings v. Halton Condo Corp., 2013 ONSC 175, and Dupuis v. W. O. Stinson & Son Ltd., 2013 ONSC 5648, upheld on appeal at 2014 ONSC 4317.
[20] In Hastings v. Halton Condo Corp., the plaintiffs retained counsel to commence an action for damages arising from structural defects in the condominium building in which they were residing. They wished to add as a defendant the lawyer who acted for them on the purchase of their unit. Although the statement of claim prepared by their litigation lawyer contained allegations of negligence against the real estate lawyer, it did not name the real estate lawyer as a defendant in the title of proceedings.
[21] In his decision, Murray J. relied on correspondence from one of the plaintiffs to the real estate lawyer prior to the expiry of the limitation period informing him of her intention to make a claim, and the fact that the statement of claim contained allegations of negligence against him. On this basis, the court concluded that to permit the addition of the real estate lawyer as a defendant would be “to allow the remediation of a technical irregularity”. Murray J. concluded (at paragraph 14):
14 In my view, section 21(1) of the Act is not designed to prevent a technical amendment of the pleadings in circumstances where the party has been named as a defendant in the statement of claim and the allegations against him are set out with particularity.
[22] In Dupuis v. W. O. Stinson & Son Ltd., supra, the plaintiff attempted to issue a notice of action and a statement of claim in two related matters on the last day before the expiry of a limitation period by sending them by courier to the courthouse. The registrar refused to issue these originating processes because rule 4.05(1) states that a document “may be issued on personal attendance” in the court office by the party seeking to issue it. The plaintiff then sought an order that would have had the effect of backdating the formal date of commencement of proceedings to the date on which the originating process was received at the courthouse.
[23] Master MacLeod (as he then was) commented that there was no policy reason for personal attendance to issue the originating process that existed for the benefit of the defendant. He concluded that the failure of plaintiff’s counsel to have someone attend in person to issue the originating process constituted technical non-compliance with the rule requiring attendance in person and was an irregularity which could be cured by a corrective order. He made an order deeming the action to have been properly commenced on the day on which the originating processes were received at the court office.
[24] The decisions in Hastings and Dupuis can be distinguished from the case before me. In Hastings, the plaintiffs clearly intended to name their real estate lawyer as a defendant because they identified him by name in the body of their statement of claim, alleged negligence against him, and provided particulars. In Dupuis, the plaintiffs named all intended defendants in the originating processes and submitted them to the court office within the limitation period. In both cases, it was clear that the plaintiffs intended to commence their actions against the defendants within the limitation period and both Murray J. and Master MacLeod elected to grant relief to prevent the plaintiffs from losing their rights of action as a consequence of a “technical irregularity” (Hastings) and “technical non-compliance” (Dupuis). In the case before me, there is no evidence of any intention to sue the proposed individual defendants prior to the expiry of the limitation period. There is therefore no technical irregularity or non-compliance to remedy.
Is the plaintiff precluded from adding the proposed defendants on this motion owing to the expiry of the limitation period?
[25] As stated above, rule 5.04(2) provides that “the court may by order add . . . a party . . . unless prejudice would result that could not be compensated for by costs or an adjournment”.
[26] The law with respect to pleadings amendments, which also applies to motions to add defendants, was summarized by Master MacLeod (as he then was) in Plante v. Industrial Alliance Life Insurance Co., 2003 CanLII 64295 (ON SC), [2003] O.J. No. 3034, at paragraph 21:
a) The amendments must not result in irremediable prejudice. The onus of proving prejudice is on the party alleging it unless a limitation period has expired. In the latter case the onus shifts and the party seeking the amendment must lead evidence to explain the delay and to displace the presumption of prejudice. Mota et. al. v. The Regional Municipality of Hamilton Wentworth Police Services Board (2003), 2003 CanLII 47526 (ON CA), 63 O.R. (3d) 737 (C.A.) at p. 748.
b) The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting: Atlantic Steel Industries v. CIGNA Insurance (1997), 1997 CanLII 12125 (ON SC), 33 O.R. (3d) 12 (Gen. Div.).
c) The proposed amendments must otherwise comply with the rules of pleading. For example the proposed amendments must contain a "concise statement of material facts" relied on "but not the evidence by which those facts are to be proved" (rule 25.06 (1)), the proposed amendments are not "scandalous, frivolous or vexatious" (rule 25.11 (b)), the proposed amendments are not "an abuse of the process of the court" (rule 25.11 (c)), the proposed amendments contain sufficient particulars - for example of fraud and misrepresentation (rule 25.06 (8)).
[27] To summarize item a) in paragraph 21 of Plante, a proposed amendment “must not result in irremediable prejudice”, and where a limitation period has expired, the party seeking the amendment “must lead evidence to displace the presumption of prejudice”. In this case the plaintiff has led no such evidence so the presumption stands as a bar to adding the proposed defendants.
[28] The Limitations Act, 2002, s. 4 states that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”. The plaintiff acknowledges that this two year limitation began to run no later than June 30, 2016, being the effective date of the termination of her position as ambassador to Israel, with respect to all proposed defendants except Ms. Telford. I will therefore address the limitation issue in relation to Ms. Telford separately.
[29] The motion to add the five individual defendants was first proposed by plaintiff’s counsel in a telephone conversation with the Attorney General’s counsel on August 21, 2018. At a case conference of November 16, 2018, counsel for the Attorney General advised that his instructions were to oppose the proposed amendment to add the defendants, and the plaintiff served the motion record for this motion on December 12, 2018. Even accepting that the plaintiff initiated the motion on August 21, 2018, it was still brought more than two years after the crystallization of the cause of action on June 30, 2016.
[30] The plaintiff in this case named only the Attorney General of Canada as a defendant in the title of proceedings within the acknowledged limitation period, and did not name any other individuals in the body of the notice of action. The only reference in the notice of action to anyone other than “the Defendant” (i.e. the Attorney General), is the allegation of conduct on the part of “responsible individuals” in paragraph 5:
5 During the period April 21 to June 30, 2016, the Plaintiff made substantial efforts to address numerous pressing issues arising from the termination of her appointment. The responsible individuals rebuffed and ignored her, advising her that the Government of Canada could do whatever it wanted to her. [emphasis added]
[31] The plaintiff relies on the reference to “responsible individuals” to argue that the proposed defendants would have recognized themselves as the “responsible individuals” described, had they reviewed the notice of action. Although not specifically argued by the plaintiff, this submission raises the issue of whether the allegations relating to “responsible individuals” are sufficient to point the “litigating finger” at the proposed defendants, such that those individuals ought to have known that the plaintiff intended to name them as defendants.
[32] The “litigating finger” test, referred to in Spirito v. Trillium Health Centre, 2008 ONCA 762, [2008] O.J. No. 4524 (C.A.) at para. 5, has been developed by the courts to determine whether a proposed defendant has been sufficiently described in an existing pleading such that they can be added as a defendant in the action. In Spirito, the Court stated (at para. 12):
12 In Dukoff et al. v. Toronto General Hospital et al. (1986), 1986 CanLII 2648 (ON SC), 54 O.R. (2d) 58 (H.C.J.), Saunders J. noted the practice, adopted in this case, of using fictitious names where the identity of the parties are unknown. If it was a case of misnomer, the statement of claim could be corrected by replacing the fictitious name (John Doe in that case) for the correct name, even though the correction was sought after expiry of the limitation period. He adopted the following test from Davies v. Elsby Brothers, Ltd., [1960] 3 All E.R. 672 (C.A.), at p. 676:
The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong”, then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries”, then it seems to me that one is getting beyond the realm of misnomer.
[33] Based on Davies v. Elsby Brothers, which was cited with approval in Dukoff and more recently by the Court of Appeal in Spirito, the “litigating finger” test is applicable to cases of misnomer of a proposed defendant, meaning where a plaintiff has mistakenly identified a defendant using the wrong name, or named an unidentified defendant as “John Doe”. In its notice of action, the plaintiff named only the Attorney General of Canada as a defendant. Therefore, this cannot be a case of misnomer because the plaintiff did not attempt to name any specific individual as a defendant, either in the title of proceedings or in the description of the claim in the notice of action. Further, the statement in the notice of action that “the responsible individuals rebuffed and ignored her” is so vague as to make it impossible to determine to whom specifically the plaintiff might be referring, so none of the proposed defendants could plausibly have thought that they were an individual whom the plaintiff intended to name as a defendant.
[34] The plaintiff acknowledges that the cause of action against the four proposed defendants Gwozdecky, Jean, Bugailiskis and Richardson arose more than two years before this motion was initiated. The plaintiff does not explain why she was not able to identify and name the proposed defendants when the notice of action was issued and nothing in the notice of action would enable one to identify any of those individuals. There is therefore no basis on which to allow the plaintiff to add those four individuals as defendants subsequent to June 30, 2018, being two years after the latest date on which the cause of action arose.
[35] My conclusion in this regard with respect to the four proposed defendants Gwozdecky, Jean, Bugailiskis and Richardson also applies with respect to the claims against them for intentional infliction of mental suffering. The notice of action contains no claim for damages for intentional infliction of mental suffering, and no pleading of any facts that would support any such claim against anyone, so there is no basis on which to conclude that any such claim was advanced within the limitation period.
[36] Further, the specific intentional acts alleged by the plaintiff to support her claims of intentional infliction of mental suffering as against Gwozdecky, Jean, Bugailiskis and Richardson, as set out in paragraphs 148-151 of the statement of claim, relate exclusively to conduct that occurred during her tenure as ambassador to Israel, prior to her termination as of June 30, 2016. Once again, the plaintiff is precluded from adding these proposed defendants because she first attempted to do so more than two years after the cause of action arose.
[37] As indicated above, the plaintiff submits that the limitation period as against the proposed defendant Telford did not expire until after she initiated this motion to add her as a defendant. It is necessary to review the allegations as against Ms. Telford in the statement of claim to determine when the cause of action against her arose.
[38] The only claim for damages against Ms. Telford personally is asserted in paragraph 6 of the statement of claim and is for “Damages for the tort of intentional infliction of mental suffering in the amount of $250,000”, and “such further and other relief as this Honourable Court may deem just”.
[39] Part of the plaintiff’s claim is for recovery of pension contributions that she made to the diplomatic service pension plan during her tenure as ambassador and that were not returned to her following her termination, as required by statute. The plaintiff’s claim against Ms. Telford relates to her alleged role in the withholding of her pension contributions and is contained in paragraphs 113-116 of the statement of claim:
113 On December 14, 2016, the Plaintiff, through her legal counsel, wrote to the Deputy Minister of Global Affairs disputing the Government’s ability to withhold pension contributions or claim set off against them and seeking: (i) a detailed accounting to support the overpayment claims in the November 29, 2016 letter; and (ii) the Deputy Minister’s immediate intervention to resolve the issue of the Plaintiff’s pension contributions.
114 This correspondence was copied to Ms. Telford at the PMO. In addition, the Plaintiff, through her counsel, wrote to Ms. Telford on numerous occasions to request the PMO’s assistance in addressing this matter. In a letter dated June 13, 2016, the Plaintiff’s counsel informed Ms. Telford of the serious situation of the Government’s withholding of the Plaintiff’s pension, stating:
“Ms. Bercovici’s appointment as Ambassador will terminate on June 30, 2016. What is in dispute is not the decision to terminate the appointment itself, but the manner in which the decision has been executed and the resulting treatment of her, which is shameful.”
115 On June 20, 2016, the Plaintiff’s counsel sent Ms. Telford a follow up email and telephoned her office. In this email, after summarizing the issues and what had transpired, the Plaintiff’s counsel wrote:
“Once again I am writing to you because of the immediate attention required. To this point the response of government officials has been unresponsive at best. The troubling question is why?”
116 Ms. Telford ignored every single one of the Plaintiff’s requests for assistance, and to date, has never responded to the Plaintiff or her counsel.
[40] In paragraph 141 of the statement of claim, the plaintiff pleads the following against “the Defendants”, including Ms. Telford:
141 The Plaintiff pleads that all of the Defendants’ conduct, as described above, constitutes a breach of the doctrine of the duty of good faith, including the duty of honesty in contractual performance, which amounts to a breach of contract. In that regard, it was an implied duty with her Appointment that the Defendants would treat her in good faith, with honesty, in a reasonable, candid and forthright manner, which the Plaintiff pleads the Defendants failed to do since the time of her Appointment.
[41] In paragraph 144 of the statement of claim, the plaintiff particularizes the proposed defendants’ alleged “Bad Faith Pre-Termination Behaviour” and “Bad Faith Post-Termination Behaviour”. The only bad faith conduct alleged on the part of Ms. Telford is described at item v):
144 v) Ms. Telford and the PMO’s ignoring of the Plaintiff’s repeated requests for intervention and assistance;
[42] The plaintiff also claims damages from the “personal defendants” based on “intentional infliction of mental suffering”. In this regard, the broad pleading against all of the proposed added defendants and the specific pleading against Ms. Telford are:
147 The Plaintiff pleads that the conduct of all of the individual personal Defendants reflected actions and inactions that went beyond their respective individual duties and responsibilities and as such, each ought to be held liable for their particularly egregious and tortious actions, in carrying out their unconscionable actions against the Plaintiff. . . .
152 The Plaintiff pleads that the conduct of the Defendant, Ms. Telford, was flagrant and outrageous, and was calculated to produce harm which resulted in a visible and provable injury. In this regard, the Plaintiff pleads and relies upon the following intentional acts of Ms. Telford:
1.1.1 Purposely ignoring repeated requests for immediate intervention and assistance with respect to the Government’s unconscionable withholding of the Plaintiff’s pension monies.
[43] The limitation period issue is whether there are any claims that may be asserted against Ms. Telford that arose within two years of the plaintiff initiating this motion to add her as a defendant.
[44] As stated in paragraph 21 b) of Plante, supra, on a motion to amend a pleading, “amendments are to be granted unless the claim is clearly impossible of success” and “amendments are to be read generously with allowance for deficiencies in drafting”. The claims asserted against Ms. Telford personally are for damages for intentional infliction of mental suffering and for “such further and other relief as this Honourable Court may deem just”, which could include damages for bad faith conduct.
[45] The allegations against Ms. Telford are that she both acted in bad faith and intentionally caused the plaintiff mental suffering by ignoring correspondence sent directly to her dated June 13 and June 20, 2016, and the letter dated December 14, 2016 to the Deputy Minister of Global Affairs with which she was copied.
[46] The letters of June 13 and June 20, 2016 were sent before June 30, 2016, so the plaintiff was aware of the proposed defendant Telford’s involvement more than two years before the notice of action was issued on June 29, 2018. The only possible basis on which Ms. Telford could now be named as a defendant would therefore be for her failure to respond to plaintiff’s counsel’s letter of December 14, 2016 sent to the Deputy Minister of Global Affairs and copied to her, which occurred less than two years before this motion was initiated.
[47] In argument, counsel for the Attorney General and the proposed defendants submitted that, because all of the damages claimed by the plaintiff flow from the termination of her position as ambassador to Israel, the limitation period for all claims expired as of June 30, 2016, the effective date of her termination. However, the claim that the plaintiff is attempting to assert against Ms. Telford arises from “Bad Faith Post-termination Behaviour”, which would include her conduct in relation to the December 14, 2016 letter, which occurred less than two years before this motion was initiated. Accordingly, the plaintiff’s attempt to assert this claim is within the limitation period. The defendant Attorney General and the proposed defendant Telford have not challenged the claim for bad faith as legally untenable so there is no issue in that regard. The proposed defendant Telford may therefore be added as a defendant with respect to the “bad faith” claim in relation to the December 14, 2016 letter.
[48] The plaintiff also relies on the proposed defendant Telford’s failure to respond to the December 14, 2016 letter in support of her claim for intentional infliction of mental suffering. Based on the same reasoning applicable to the claim for bad faith, this claim falls within the limitation period. I will address the issue of whether the claim of intentional infliction of mental suffering pleaded against Ms. Telford is tenable at law in the next part of these reasons.
[49] For the reasons set out above, the motion to add the proposed defendants Gwozdecky, Jean, Bugailiskis and Richardson as defendants is dismissed because the limitation period for any claims against them, including claims for intentional infliction of mental suffering, expired on June 30, 2018. I also conclude that the limitation period for claims against the proposed defendant Telford for alleged bad faith conduct occurring in December, 2016 had not expired before this motion was initiated so leave is granted to the plaintiff to add her as a defendant.
Has the plaintiff pleaded a tenable claim of intentional infliction of mental suffering against the proposed defendant Telford?
[50] The elements of the tort of intentional infliction of mental suffering were stated by McLachlin J. (as she then was) at paras. 52-56 of Rahemtulla v. Vanfed Credit Union (1984), 1984 CanLII 689 (BC SC), 29 C.C.L.T. 78 (B.C.S.C.), cited with approval in Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA), [2002] O.J. No. 2712 (C.A.) at para. 43:
(1) Conduct that is flagrant and outrageous,
(2) calculated to produce harm
(3) resulting in a visible and provable injury.
[51] In addition, as stated in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (at para. 44):
44 The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur: see Piresferreira v. Ayotte, 2010 ONCA 384 at para. 78.
[52] The only allegations relating to any conduct of Ms. Telford are that she “ignored” the plaintiff’s correspondence to her of June 13 and June 20, 2016 and the correspondence of December 14, 2016 to the Deputy Minister of Global Affairs on which she was copied, all relating to the withholding of her pension contributions on her termination (paragraphs 113-116 of the statement of claim). The plaintiff then claims damages for intentional infliction of mental suffering (paragraph 152, set out above, and reproduced here for ease of reference):
152 The Plaintiff pleads that the conduct of the Defendant, Ms. Telford, was flagrant and outrageous, and was calculated to produce harm which resulted in a visible and provable injury. In this regard, the Plaintiff pleads and relies upon the following intentional acts of Ms. Telford:
1.1.1 Purposely ignoring repeated requests for immediate intervention and assistance with respect to the Government’s unconscionable withholding of the Plaintiff’s pension monies.
[53] This pleading includes the elements of the tort from Prinzo, alleging conduct that “was flagrant and outrageous”, “calculated to produce harm”, and that “resulted in a visible and provable injury”. However, the only particulars of any of the conduct or harm alleged are that Ms. Telford ignored repeated requests for intervention and assistance with respect to the withholding of the plaintiff’s pension monies.
[54] The defendant submits that the plaintiff’s mere statement of the elements of the tort are not sufficient to constitute a legally tenable pleading and accordingly, they disclose no reasonable cause of action.
[55] The first element of the tort is that the impugned conduct be “flagrant and outrageous”. There is no allegation in the statement of claim that Ms. Telford was involved in any decision to withhold repayment of the plaintiff’s pension contributions. Further, the particulars of the alleged conduct are limited to Ms. Telford having ignored three requests for assistance, one of which was not sent directly to her. Although the law as stated in Plante requires that a pleading be read generously, even on a generous reading, it is impossible to characterize a mere failure to respond to correspondence as conduct that is “flagrant and outrageous”.
[56] The second element of the tort is that the conduct be “calculated to produce harm”. Further, “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” (see Boucher, supra). Once again, the claim against Ms. Telford is in respect of her failure to take steps to remedy the conduct of whomever decided to withhold repayment of the plaintiff’s pension contributions. Any harm arising from that conduct had already occurred before the plaintiff’s attempts to involve Ms. Telford so her conduct could not have been calculated to produce that harm.
[57] The third element of the tort is that the alleged conduct must result in a visible and provable injury. Although there is no pleading of what “visible and provable injury” the plaintiff may have sustained specifically as a result of Ms. Telford’s conduct, the plaintiff relies on various allegations made in previous paragraphs of the statement of claim:
Paragraph 78: The plaintiff alleges that she “was becoming increasingly stressed and anxious” during the period prior to her termination when she “had every indication that her appointment would soon be recalled”.
Paragraph 94: While the plaintiff was still ambassador, but subsequent to being given notice on April 21, 2016 that her appointment would be terminated, “her reputation was gravely and publicly damaged”.
Paragraph 145: “The Plaintiff pleads that she has suffered incalculable mental distress due to the unconscionable, malicious and vicious actions and inactions taken by the Attorney General and the individual Defendants, as particularized above.” The preceding paragraph 144 v) refers to “Ms. Telford’s and the PMO’s ignoring of the Plaintiff’s repeated requests for intervention and assistance”.
[58] The allegations in paragraphs 78 and 94 relate to harm that the plaintiff may have sustained while she was still ambassador, which was not attributed to Ms. Telford. The pleading in paragraph 145, read with paragraph 144 v), does allege “incalculable mental distress” attributable in part to Ms. Telford’s conduct. Read generously, this pleading could amount to an allegation of “visible and provable injury”.
[59] To summarize, Ms. Telford’s alleged conduct cannot be characterized as “flagrant and outrageous”, nor can it have been calculated to produce the harm alleged because any such harm had already occurred. There is therefore no tenable pleading of the tort of intentional infliction of mental suffering against the proposed defendant Telford.
Decision
[60] For the reasons set out above, the motion to add the proposed defendants Gwozdecky, Jean, Bugailiskis and Richardson is hereby dismissed. The plaintiff is hereby granted leave to add Katie Telford as a defendant based on allegations of bad faith conduct only.
Costs
[61] Counsel have filed costs outlines. If they cannot agree on the disposition of the costs of the motion, they may make written submissions, not to exceed three pages each, the defendant within 20 days and the plaintiff within 20 days thereafter. I will retain the file for 45 days pending receipt of the parties’ costs submissions or notification from the parties that they have resolved the issue of costs.
April 29, 2019 MASTER GRAHAM