COURT FILE NO.: CV-18-592937
DATE: 20190207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Yassmin Mohammed
Plaintiff
– and –
Her Majesty the Queen in Right of Ontario, Khalida Noor, and Gary Wuschnakowski
Defendants
Mackenzie Irwin and Kathryn Marshall, for the Plaintiff
Sarah Pottle and Jonathan Rabinovitch, for the Defendants
HEARD: December 12, 2018
REASONS FOR DECISION
KIMMEL J.
[1] The plaintiff claims she was forced to take a medical leave commencing January 4, 2017 for stress and anxiety caused by harassment, discrimination, and reprisals allegedly experienced in the course of her employment. She claims that she was subsequently constructively and wrongfully dismissed when her salary and benefits were cut off on May 4, 2017 while she was still on medical leave.
[2] The defendants move under Rules 21.01(3)(a), 21.01(1)(b) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended (the “Rules”) to strike certain causes of action (and corresponding paragraphs) pleaded in the plaintiff’s amended statement of claim issued on April 13, 2018 (the “statement of claim”).
[3] The moving parties sought leave, if necessary, under Rule 2.02 to bring this motion because they had already delivered an Amended Statement of Defence issued April 23, 2018 (the “defence”) at the time the motion was brought. At the hearing, plaintiff’s counsel advised that she was not requiring the defendants to obtain leave. In my view, leave is not required in this case under Rule 2.02 because the moving parties are relying on, inter alia, Rule 21, which is not, strictly speaking, an attack on a pleading irregularity and Rule 21 contains its own consequences for any delay in bringing the motion. In any event, if leave had been required, I would have granted it as the delivery of the defence did not in this case amount to an implied waiver of the concerns that were raised on this motion; to the contrary, these same concerns were raised in a general manner in the defence and there has been no suggestion that the motion was not scheduled in a timely manner thereafter.
[4] The focus of the motion was on striking the claims against the individual defendants Khalida Noor (“Noor”, the plaintiff’s former “Manager”) and Gary Wuschnakowski (“Wuschnakowski”, the plaintiff’s former “Director”) for discrimination in breach of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) and harassment, and in the case of Noor, for intentional infliction of mental suffering, and in the case of Wuschnakowski, for breach of fiduciary duty and failure to provide a safe and healthy work environment (collectively, the “alleged independent torts”). However, certain of the arguments necessarily carry over to the corresponding claims for discrimination in breach of the Code, harassment and failure to provide a safe and healthy work environment also made against Her Majesty the Queen in Right of Ontario (“HMQ” or the “Employer”).
[5] The defendants were clear at the outset of the motion that they are not seeking to strike the claims against HMQ for constructive dismissal, wrongful dismissal or discrimination (insofar as it is alleged that HMQ failed to accommodate the plaintiff in breach of the Code.
[6] For the reasons that follow, I am granting this motion in part, and have ordered most of the causes of action against the individual defendants to be struck from the statement of claim (for alleged breaches of fiduciary duties, duties to provide a healthy and safe work environment, and for discrimination and failure to accommodate in breach of the Code, with leave to amend, and I have also ordered that the cause of action against HMQ for breach of duty to provide a healthy and safe work environment be struck, with leave to amend.
The Pleadings
[7] Since this is a pleadings motion under Rules 21 and 25, there is no evidence before me. I am to presume the allegations in the pleadings to be true. This is uncontroverted and both parties have referred me to the case of R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22, for this and other principles to be applied on this motion.
[8] The plaintiff purports to rely on, and quotes extensively in her factum (for example at paras. 13 to 17 and 55) from an investigator’s report that was released after pleadings were closed, in September of 2018. During oral argument, plaintiff’s counsel advised that she felt she had an obligation to make the court aware of this report but left it in my hands to decide what to do with her references to it. I do not believe that report is properly before me since it is not referred to in any pleading (and no request was made to amend the statement of claim to incorporate it). Further, I was not asked to grant leave to admit it, or any evidence about it, on the motion. Referring to it in a factum is not a recognized or appropriate way of putting material before the court on a motion such as this. I have not considered the existence of this report or anything that was said about it in the plaintiff’s factum or submissions in coming to my decision.
[9] The statement of claim is 172 paragraphs long. The defence is 177 paragraphs long.
[10] The statement of claim details many incidents of alleged harassment in paragraphs 12 to 145 that are not tied to the specific causes of action pleaded, although many are repeated or summarized in later paragraphs with reference to the claimed heads of damages. During oral argument, plaintiff’s counsel indicated that I should rely on what is stated in the prayer for relief in the statement of claim in order to understand what is being claimed against each defendant.
[11] In addition to the claims for constructive and wrongful dismissal against HMQ (and damages said to flow from those claims), the plaintiff claims:
a. Moral damages only against HMQ (at para. 1(g) of the statement of claim), which are particularized (at paras. 149 to 151 of the statement of claim) with reference to an alleged campaign of harassment by her Manager in connection with her employment assignments, sick leaves, and related reprisals, and the failure of her Director to investigate and prevent the alleged toxic, discriminatory work environment.
b. Damages for intentional infliction of mental suffering only against her Manager (at para. 2(a) of the statement of claim), which are particularized (at paras. 149 to 155) with reference to the same alleged campaign of harassment by her Manager in connection with her employment assignments, sick leaves, and related reprisals, and the toxic work environment she is alleged to have created.
c. Damages against HMQ and her Director (at para. 3 of the statement of claim) for failure to provide a safe and healthy work environment free from workplace bullying and harassment, in breach of their common law duties (including breach of fiduciary duty) and statutory duties (under the Occupational Health and Safety Act, R.S.O 1990, c. O.1 (the “OHS Act”), which are particularized (at paras. 156 to 158 of the statement of claim) with reference to the same alleged campaign of harassment by her Manager in connection with her employment assignments, sick leaves, and related reprisals, and the failure of her Director to investigate and prevent the alleged toxic, discriminatory work environment.
d. Damages (including punitive damages) against all of the defendants (at para. 4 of the statement of claim) for lost wages due to discrimination contrary to the Code, and for injury to dignity, feelings, and self-respect, which are particularized (at paras. 163 to 168 of the statement of claim) with reference to the same alleged campaign of harassment by her Manager in connection with her employment assignments, sick leaves, and related reprisals, and the failure of her Director to investigate and prevent the alleged toxic, discriminatory work environment.
[12] Vicarious liability of HMQ for the acts of the plaintiff’s Manager and Director is only specifically pleaded in relation to their alleged breaches of the Code. However, the claims particularized in (a), (c) and (d) above against HMQ are necessarily attributable to the acts and statements of the individual defendants in their respective capacities as the plaintiff’s Manager and Director.
[13] The defendants plead at paras. 174 and 175 of their defence that Noor and Wuschnakowski were at all times acting in the course of their employment. They maintain that these individual defendants do not have a separate identity of interest from HMQ, who was their employer, and deny that these individuals are personally liable to the plaintiff for any alleged acts they undertook in the course of their employment.
The Test on this Motion
[14] Rule 21.01(1)(b) allows a party to move to strike out all or part of a pleading on the ground that it discloses no reasonable cause of action.
[15] The parties agree that the test to be applied on this motion is whether, assuming that the facts pleaded in the statement of claim are true, it is “plain and obvious” that the statement of claim discloses no reasonable cause of action. (See Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980; Tran v. University of Western Ontario, 2015 ONCA 295, at para. 16)
[16] The defendants/moving parties rely on the following principles from the case of Aristocrat Restaurants Ltd. v. Ontario, 2011 ONSC 25, 3 C.P.C. (7th) 261, at paras. 18-20, in support of their position that certain of the pleaded causes of action should be struck because:
a. the pleaded allegations do not give rise to a recognized cause of action in law (they are legally insufficient);
b. the necessary elements of an otherwise recognized cause of action have not been sufficiently pleaded;
c. the material facts necessary to establish a legally complete cause of action have not been pleaded.
[17] Rules 25.11(b) and (c) and 21.01(3) also allow the court to strike all or part of a pleading if it is found to be frivolous, vexatious, or an abuse of process of the court. A pleading may be found to be vexatious if it fails to comply with the rules of pleading. (See Best v. Lancaster, 2015 ONSC 6269, at para. 59, affirmed, 2016 ONCA 492, 351 O.A.C. 132, leave to appeal to S.C.C. refused, 2017 CarswellOnt 1205)
[18] The moving parties emphasize that the question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding. (See Imperial Tobacco, at paras. 23 and 25)
[19] The plaintiff/responding party emphasize the Supreme Court of Canada’s cautions in the Imperial Tobacco case, that:
a. The purpose of a motion to strike a pleading is for “weeding out the hopeless claims and ensuring those that have some chance of success go on to trial.” (at para. 19)
b. “The motion to strike is a tool that must be used with care” and the “approach must be generous and err on the side of permitting [the] claim to proceed to trial.” (at para. 21)
[20] I add to these principles that, before striking out a claim under Rule 21:
a. The court must be satisfied it is plain, obvious, and beyond doubt the claim cannot succeed;
b. the pleading must be read generously and meritorious claims should not be struck merely for technical drafting deficiencies; and
c. allegations of fact, unless plainly ridiculous or incapable of proof, must be accepted as proven.
(See Cerqueira v. Ontario, 2010 ONSC 3954, at para. 11(g))
[21] In Golden Oaks Enterprises Inc. v. Lalonde, 2016 ONSC 5313, 133 O.R. (3d) 513, at paras. 48-56, appeal quashed, 2017 ONCA 515, 137 O.R. (3d) 762, this court adopted the position that it will not strike a claim where: (a) there is at least a “germ or a scintilla” of a cause of action, and (b) it will allow an amendment to the pleading if the failure to plead an essential element was the result of an oversight.
[22] My decision takes all of the above considerations into account, where applicable in relation to the various causes of action at issue.
Positions of the Parties
[23] The defendants/moving parties identify a series of defects in the statement of claim and argue that the appropriate remedy in a case such as this is for the court to strike the entire pleading and grant leave to the plaintiff to deliver a fresh amended statement of claim, based on the authority of Lysko v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.), at para. 11.
[24] Based on the written and oral submissions on behalf of the defendants, I have summarized the alleged pleading defects to be that:
a. the pleadings do not disclose a reasonable cause of action for breach of fiduciary duty against Wuschnakowski in his personal capacity, in particular because the existence of such a duty is not established on the face of the pleading;
b. alleged breaches by the plaintiff’s Director and Employer (HMQ) of the OHS Act and of common law duties for their failure to provide a safe and healthy work environment[^1] do not give rise to a free standing civil cause of action, and a claim in negligence has not been pleaded;
c. in any event, there is no available civil cause of action for the alleged breaches of the OHS Act, but rather they fall under a statutory scheme that is within the exclusive jurisdiction of the Ontario Labour Relations Board to deal with vis-à-vis the plaintiff’s employer (HMQ);
d. the allegations of discrimination do not disclose a cause of action because they fail to plead some or all of the required elements of a distinction based on a prohibited ground that created a disadvantage for the plaintiff under s. 5 of the Code, and these claims, even if properly pleaded, would lie only against the plaintiff’s Employer (HMQ);
e. the cause of action for the tort of harassment should not be recognized in the context of a wrongful dismissal claim such as this (where mental distress is already recognized and can be addressed through the claims for moral damages), but even if they could be considered in this context, the necessary element of “outrageous conduct” for this tort, and the material facts necessary to support it, have not been sufficiently pleaded in the statement of claim;
f. the claim for intentional infliction of mental suffering against Noor is similarly not sufficiently pleaded in the absence of a plea of the necessary “flagrant or outrageous conduct” calculated to produce harm to the plaintiff and material facts to support it; and
g. the statement of claim offends Rule 25.06 because it contains bald conclusions of law about Noor and Wuschnakowski acting as agents of the HMQ, and about the vicarious liability of HMQ for their actions, without the material facts to support those conclusions, and fails to make any reference to the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, which is the only basis on which the plaintiff’s claims could proceed. (See Luo v. Canada (Attorney General) (1997), 1997 CanLII 16265 (ON SC), 33 O.R. (3d) 300 (Div. Ct.), at p. 305)
[25] The plaintiff/respondent disputes these defects and maintains that the pleaded causes of action are or should be recognized in law and that all of the required elements for these causes of action can be found in the statement of claim, if it is read generously and as a whole.
[26] Based on the written and oral submissions on behalf of the plaintiff, I have summarized the response to the specific alleged defects to be that:
a. it is enough to plead the existence of Wuschnakowski’s fiduciary duty as the head of the plaintiff’s department, and she should not have to plead the supporting evidence, nor should the court make findings of fact on a Rule 21 motion about whether a fiduciary relationship existed between them;
b. there is appellate level authority in Ontario for the existence of a duty of care at common law to provide a safe and healthy work environment, in the cases of: Berger v. Willowdale A.M.C. (1983), 1983 CanLII 1820 (ON CA), 41 O.R. (2d) 89 (C.A.), at p. 13, leave to appeal to S.C.C. refused, (1983), 41 O.R. (2d) 89n; and John v. Flynn (2001), 2001 CanLII 2985 (ON CA), 54 O.R. (3d) 774 (C.A.), at para. 45, leave to appeal to S.C.C. refused, (2002), 169 O.A.C. 200;
c. the Ontario Labour Relations Board does not have exclusive jurisdiction over complaints under the OHS Act, but only those that are referred to it under s. 50, by either a complainant or an inspector and no complaint has been referred to the board in connection with the allegations contained in the statement of claim;
d. the individual defendants had a duty to accommodate the plaintiff’s disability (illness and age) and they constructively dismissed her when they failed to do so and instead reduced her work responsibilities and hours and subjected her to reprisals, in breach of s. 5 of the Code and the plaintiff is entitled to bring a claim for damages for discrimination under the Code in the context of a civil suit for wrongful termination;
e. the tort of harassment in the employment context has been recognized in the case of Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2 C.C.L.T. (4th) 4 and, even though it is under appeal, a Rule 21 motion is not the appropriate forum for a court to decide whether that is good law; further, the necessary element of “outrageous conduct” has been sufficiently pleaded through the detailed chronology of Noor’s conduct that is provided in the statement of claim, and the court should not engage in fact-finding on a Rule 21 motion to determine whether the conduct described is, in fact, outrageous; and
f. the required element for a claim for intentional infliction of mental suffering, of “an act or statement by the defendant that is extreme, flagrant or outrageous” (See High Parklane Consulting Inc. v. Royal Group Technologies Limited (2007), 44 C.C.L.T. (3d) 169 (Ont. S.C.)) is pleaded in the details of Noor’s harassment and intentional actions towards the plaintiff, which are specifically alleged (at para. 152 of the statement of claim) to have been “flagrant and outrageous, and … calculated to produce harm which resulted in visible and provable injury” and the court should not engage in fact-finding on a Rule 21 motion to determine whether the conduct described is, in fact, flagrant and outrageous; and
g. the plaintiff intends to rely on s. 5 of the Proceedings Against the Crown Act, and advised the court during oral argument that the omission of any reference to that statute in the statement of claim is an oversight that the plaintiff proposes to remedy by an amendment.
Analysis
Claim for breach of fiduciary duty by Wuschnakowski
[27] A claim in respect of an independent tort alleged to have been committed by an individual employee (in this case Wuschnakowski) acting ostensibly within the scope of his authority must plead the specific facts that give rise to personal liability in order to survive a Rule 21 motion. (Tran v. University of Western Ontario, at para. 17; Lobo v. Carleton University, 2012 ONCA 498, 265 C.R.R. (2d) 1, at paras. 1 and 6)
[28] Pleading a conclusion that Wuschnakowski breached fiduciary duties to the plaintiff is not sufficient, in the absence of the material facts to sufficiently identify: a) the nature of the fiduciary relationship; b) the nature of the duty owed by the fiduciary; c) how the duty was breached; d) how the defendant put his own interests ahead of the plaintiff’s; and e) the appropriate remedy for the breach. (See McDowell and Aversa v. Fortress Real Capital Inc., 2017 ONSC 4791, at para. 60)
[29] I have been pointed to no authority that suggests that a management-employee relationship is a recognized fiduciary relationship (and there is good reason to expect the opposite in many such relationships where, for example, the manager is duty-bound to act in the best interests of the employer). While the categories of fiduciary relationships are not closed, to exist they must be demonstrated to have elements of discretion, vulnerability, and power imbalances in circumstances that require the fiduciary to put the interests of the other party ahead of their own. (See Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, at para. 60; Treacher v. LaFarge, 2007 CanLII 1929 (Ont. S.C.), at para. 3; Robertson v. Manitoba Keewatinowi Okimakanak Inc., 2011 MBCA 4, 262 Man. R. (2d) 126, at para. 76)
[30] This is not a matter of requiring the plaintiff to plead evidence or a fact-finding exercise. Even on a generous reading of the statement of claim, it does not disclose the type of special circumstances that are necessary to ground a plea of a fiduciary relationship between the plaintiff and Wuschnakowski. The duty is presumptively asserted and alleged to have been breached (see, for example, paragraph 159 of the statement of claim) and this is not sufficient.
[31] I am striking out this purported cause of action and the claims against Wuschnakowski for breach of fiduciary duty. Leave to amend is typically granted on a Rule 21 motion, and only to be denied where it is clear the plaintiff could not remedy her deficient pleading (See Tran v. University of Western Ontario, at paras. 26 and 27). That remains a theoretical possibility. Accordingly the plaintiff is granted leave to amend the statement of claim to plead this cause of action, however, I expect the plaintiff to only amend if facts exist that could be pleaded to support such a claim against Wuschnakowski in this case.
Claims for breaches of common law or statutory duties to provide a healthy and safe work environment by Wuschnakowski and HMQ
[32] Section 32 of the OHS Act imposes certain duties on an employer with respect to policies and investigations relating to workplace harassment. There is no right of civil action expressly provided for in this statute.
[33] There is no free standing cause of action in tort for breach of a statute. (See Boulanger v. Johnson & Johnson Corp. (2003), 2003 CanLII 52154 (ON CA), 174 O.A.C. 44 (C.A.), at para. 10; Canada v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205). While the defendants acknowledge that a statutory requirement may inform an analysis of the duty of care in the context of a negligence claim, they also point out that negligence is not pleaded in the statement of claim against either HMQ or Wuschnakowski.
[34] The defendants go further and argue that there is no common law “duty” to maintain a healthy and safe work environment. The cases that the plaintiff relies on to demonstrate such a duty arise in the context of claims for negligence against employers. (See Berger v. Willowdale and John v. Flynn)
[35] Although those cases are primarily focussed on the question of whether a duty of care existed in the particular circumstances, they do so in the context of the trite law that a cause of action in negligence requires a duty of care (based on proximity and/or foreseeability of harm) that was breached (with reference to the standard of care found to be applicable), causation, and damages.
[36] The general plea of a statutory or common law duty owed by an employer to employees to provide a healthy and safe work environment is not enough. The statement of claim does not clearly and concisely plead the constituent elements and supporting material facts to disclose a cause of action in negligence against either HMQ or Wuschnakowski, as Rule 25.06 requires. I consider that to be a sufficient reason to strike those claims in this case. As noted above, Rules 25.11(b) and (c) and 21.01(3) allow the court to strike all or part of a pleading if it is found to be frivolous, vexatious, or an abuse of process of the court. A pleading may be found to be vexatious if it fails to comply with the rules of pleading. (See Best v. Lancaster, at para. 59)
[37] There is further reason to strike these claims as against Wuschnakowski, on the same basis as the claims against him for breach of fiduciary duty have been struck. These too are claims made in respect of an alleged independent tort, said to have been committed by Wuschnakowski while he was acting ostensibly within the scope of the performance of his employment duties, but without any specific facts to support a plea that he owed a duty in his personal capacity for the matters that the plaintiff complains about. (Tran v. University of Western Ontario, at para. 17; Lobo v. Carleton University, at paras. 1 and 6)
[38] Accordingly, I am striking out this purported cause of action and the claims against Wuschnakowski for breach of a duty to maintain a healthy and safe work environment, with leave to amend the statement of claim to plead this in connection with a claim in negligence, subject to any applicable limitations defences.[^2] (See Tran v. University of Western Ontario, at paras. 26 and 27)
[39] The same purported cause of action and claims against HMQ are also struck, with leave to amend to plead them in connection with a claim in negligence, subject to any limitations defences that may be applicable.
[40] I expect the plaintiff to only amend if facts exist that could be pleaded to support a claim in negligence in this case, whether it be against Wuschnakowski or HMQ.
[41] My decision to strike these purported causes of action and claims against HMQ and Wuschnakowski is not based on the defendants’ submission that that statutory scheme of the OHS Act (which contemplates an investigation and referral to the Ontario Labour Relations Board) pre-emptively forecloses the court’s jurisdiction to consider alleged breaches of that statute in the context of civil claims. I have not been directed to any authority to suggest that these statutory requirements, and alleged non-compliance with them, cannot inform the standard of care in the negligence context. I agree with the plaintiff that s. 50 of the OHS Act only confers jurisdiction on the Ontario Labour Relations Board to deal with complaints about alleged breaches of that statute if it is invoked by either an employee or an inspector appointed under the OHS Act, which has not occurred in this case. This is not a case of duplicative proceedings that might give rise to a different ground to strike under Rule 21.
Claims against all defendants for discrimination and failure to accommodate under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)
[42] The plaintiff claims to have been discriminated against on the basis of her age and disability and that she was not accommodated.
[43] The case of Desjardins v. Society of Obstetricians and Gynecologists of Canada, 2012 ONSC 7294 is relied upon by the court in Merrifield v. Canada, at paras. 706 and 712 to explain the effect of s. 46.1(2) of the Code. Namely, there is no freestanding tort for alleged breaches of rights under Part I of the Code. Part I of the Code includes both the right to equal treatment in employment without discrimination and the right of an employee to be free from harassment in the workplace.
[44] Where a violation of the Code is alleged and civil recourse for discrimination and/or harassment is sought in the employment context, it must be sought in conjunction with another cause of action that is tied to the claimed incidents of discrimination and/or harassment. For example, discriminatory conduct contrary to the Code or the Canadian Human Rights Act, R.S.C. 1985, c. H-6 can be a basis for a wrongful dismissal claim (See L’Attiboudeaire v. Royal Bank of Canada (1996), 1996 CanLII 1411 (ON CA), 131 D.L.R. (4th) 445 (Ont. C.A.) and Andrachuk v. Bell Globe Media Publishing Inc. (2009), 2009 CanLII 3974 (ON SC), 71 C.C.E.L. (3d) 224 (Ont. S.C.)) In this case, the only pleaded claim that is tied to the alleged discrimination and failure to accommodate is the claim for wrongful dismissal against the plaintiff’s Employer, HMQ. The right to claim civil damages under the Code for these alleged breaches is thus tethered to that claim against the Employer. This is consistent with the plaintiff’s express plea that HMQ is vicariously liable for the incidents of discrimination/harassment that the plaintiff claims to have suffered at the hands of her Manager and Director.
[45] There is no tether between any of the pleaded causes of actions against the individual defendants (that will remain after this motion) and the alleged breaches of the Code for discrimination and failure to accommodate. Accordingly, I am striking out the claims for discrimination and failure to accommodate against the individual defendants. If the plaintiff amends the statement of claim to plead a cause of action against either one or both of the individual defendants to which a plea of discrimination and failure to accommodate contrary to the Code is legally relevant, then those allegations may be resurrected against them, but they cannot remain as they are currently pleaded as a free standing claim.
[46] These allegations may nonetheless be legally relevant to the claims against HMQ if the alleged actions, inactions, and statements of the plaintiff’s Manager and Director satisfy the requirements for establishing discrimination under the Code, which the defendants point out have been consistently expressed in the jurisprudence and summarized in the case of Ontario (Director of Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, at para. 74 to be:
a. a distinction;
b. based on a prohibited ground that;
c. creates a disadvantage.
[47] It is contended by the defendants that none of the alleged conduct in the statement of claim amounts to “distinction” based on any of the prohibited grounds in the Code. Whether the allegations in the statement of claim amount to a distinction made on the alleged prohibited grounds in this case (age and disability – illness), as opposed to a distinction that might have been made based on, for example, the plaintiff’s skills and capabilities, remains to be decided. However, I do not think it is appropriate for me to make the type of factual evaluations about the alleged incidents of discrimination and/or harassment that would be necessary in order to determine on a Rule 21 motion whether the pleaded distinction was on a prohibited ground. The other requirements have, in my view, been pleaded sufficiently to pass the low threshold of disclosing a cause of action against HMQ. As I understand it, the defendants are not seeking to strike these allegations insofar as they inform the claim against HMQ for wrongful termination and I believe they are sufficiently pleaded for that purpose.
Claims for harassment and intentional infliction of mental suffering in tort (at common law)
[48] While these are separately pleaded causes of action, the arguments of the defendants in relation to them in this case are essentially the same: that the statement of claim fails to plead the requisite “outrageous conduct” to support either of the alleged independent tort of harassment or the alleged independent tort of intentional infliction of mental suffering, and so they should be struck.
[49] The defendants also argued that the court should disregard the court’s conclusion in Merrifield that an independent tort of harassment exists at all. While this relatively “new” tort may be the subject of appellate review (now and in the future, after the Court of Appeal for Ontario decides the Merrifield case), that is not, in my view, a reason to strike the plaintiff’s claim for the tort of harassment. This tort has been recognized by this court in Merrifield and by the Supreme Court of British Columbia. (See Williams v. Simon Fraser University, 2018 BCSC 1787, citing Mainland Sawmills Ltd. v. IWA-Canada, Local 1-3567 Society, 2006 BCSC 1195, 41 C.C.L.T. (3d) 52, also cited in Merrifield)
[50] The defendants’ further argument that these torts need not be recognized in the employment context where moral damages arising from the employment-related claims already cover the alleged mental distress is similarly unpersuasive given the recognition that courts have already given to the tort of intentional infliction of mental suffering in the employment context. (See Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 47)
[51] The question remains, however, whether the necessary element of “outrageous conduct” has been sufficiently pleaded through the examples of specific interactions provided to support either of the pleaded causes of action for harassment or intentional infliction of mental suffering.
[52] The moving defendants maintain that the cases make it clear that this conduct has to be something more than dealing with matters that fall within the normal course of assignment of employment duties, scheduling, and inquiries about availability to work. They argue that all of the examples pleaded by the plaintiff are of that nature. They say this is not a fact-finding exercise but rather an assessment of whether the nature and character of the conduct pleaded rises to the level of “outrageous” as that term is understood in the context of these evolving torts.
[53] I agree with the moving parties that the type of outrageous conduct contemplated by these causes of action has traditionally involved some element of alleged mischief or wrongdoing. The cases speak to examples of:
a. attempts to coerce the plaintiff back from sick leave so that she could be fired and lying by telling her that her doctor said she could return to work (Baycrest);
b. belittlement, humiliation, and demeaning the plaintiff unrelentingly and continuously, often in front of co-workers, for six months (Boucher v. Walmart, 2014 ONCA 419, 120 O.R. (3d) 481, at para. 50);
c. sexual harassment by colleagues and supervisors (Clark v. Canada, 1994 CanLII 3479 (FC), [1994] 3 F.C. 323 (T.D.)).
[54] The plaintiff maintains that, read as a whole, the statement of claim speaks to a pattern of outrageous conduct that constitutes harassment. The plaintiff suggests that, in the evolving climate of workplace sexual harassment and the “Me Too” movement, the court should not restrict the reach of harassment claims. I agree that on a Rule 21 motion the court should not take a restrictive approach to possibly novel or expanded interpretations. However, even on a generous reading, the allegations against Wuschnakowski are not sufficient to attract personal liability. The pleaded conduct against him does not involve elements of mischief or wrongdoing and could not be characterized as “outrageous” as that term is understood in this context. For that reason, I am striking out the claims against him for the tort of harassment, with leave to amend. (See Tran v. University of Western Ontario, at paras. 26 and 27) I expect the plaintiff to only amend if there are facts that could be pleaded to support such claims against him in this case.
[55] That said, on the same generous reading, I find that the pleadings against Noor do disclose a sufficiently detailed chronology of conduct towards the plaintiff that I am not prepared to find at this stage, assuming it all to be true, that it has no reasonable chance of success and is hopeless. I would observe that the alleged conduct against Noor is borderline since most of the incidents do not involve elements of mischief or wrongdoing. However, there are some allegations that could be characterized as Noor setting the plaintiff up for failure and I would err on the side of permitting this cause of action to proceed.
[56] I am not prepared to strike the claim for intentional infliction of mental suffering against Noor, which will continue alongside the plaintiff’s pleaded cause of action against HMQ for moral damages for mental distress alleged to have been caused by Noor’s (and Wuschnakowski’s) actions, inactions, and statements.
Disposition
[57] I find as follows with respect to each of the pleading defects alleged by the plaintiff:
a. The pleadings do not disclose a reasonable cause of action for breach of fiduciary duty against Wuschnakowski in his personal capacity;
b. The alleged breaches by the plaintiff’s Director (Wuschnakowski) and her Employer (HMQ) of the OHS Act and of common law duties for failure to provide a safe and healthy work environment do not rise to the level of a free-standing civil cause of action;
c. While there may be a civil cause of action in negligence that could be supported by the alleged breaches of the OHS Act, a claim in negligence has not been pleaded;
d. The allegations of discrimination (resulting from a distinction based on a prohibited ground that created a disadvantage to the plaintiff) and failure to accommodate the plaintiff, in breach of the Code, have been sufficiently pleaded in conjunction with the claim for wrongful termination (based on, inter alia, discrimination/harassment) as against the Plaintiff’s Employer (HMQ), but the statement of claim does not disclose an independent cause of action as against the plaintiff’s Director (Wuschnakowski) or her Manager (Noor) for breaches of the Code;
e. The necessary element of “outrageous conduct” to support a claim for the tort of harassment at common law as against Wuschnakowski has not been sufficiently pleaded to disclose a cause of action against him for the independent tort of harassment;
f. The pattern of conduct pleaded in relation to the plaintiff’s Manager (Noor) is borderline but sufficient to meet the low threshold for pleading the necessary element of “flagrant or outrageous conduct” calculated to produce harm in order to maintain the cause of action for intentional infliction of mental suffering as against Noor;
g. The plaintiff has acknowledged that she needs leave (and leave is granted) to amend the statement of claim to remedy the technical deficiency of having failed to plead reliance on the Proceedings Against the Crown Act.
Claims Against Wuschnakowski and Noor
[58] My findings above lead to an order that all of the pleaded claims against the individual defendant Wuschnakowski, for breach of fiduciary duty, failure to maintain a healthy and safe work environment, harassment at common law, and discrimination and failing to accommodate the plaintiff in breach of the Code are struck, with leave to amend. Leave is granted subject to applicable limitations defences in respect of any “new” claims pleaded.
[59] The claim against Noor for discrimination and failing to accommodate in breach of the Code is also struck, with leave to amend.
[60] Based on the oral submissions of plaintiff’s counsel, the claims against the individual defendants appear, at least in part, to be the result of a misconception that, in order for the plaintiff to have recourse for their actions, these individuals had to be sued personally for alleged independent torts. That is not what the law requires. HMQ can be liable for the conduct of its employees carried out in the course of their employment, even if that conduct may also constitute an independent tort and they do not have to be sued personally.
[61] If HMQ was defending on the basis that these individuals were acting outside of their employment, there may be some logic to the plaintiff’s concerns that might lead her to amend her claim so as to preserve any available causes of action against the individual defendants and keep them in the action, but HMQ has admitted in its defence that all of the pleaded acts and statements of the individual defendants arose in the course of the performance of their employment duties. In light of this, I would urge the plaintiff to seriously consider whether there are any material facts to support the causes of action against the individuals that have been struck even where the prospect of an amendment has been left open. There is an opportunity now to focus and move forward without further significant pleading delays. If amendments are not made in respect of the claims against Wuschnakowski that have been struck then he should be removed from the style of cause as a defendant.
Claims Against HMQ
[62] The cause of action for failure to maintain a healthy and safe work environment against HMQ is also struck, with leave to amend to plead a “new” claim in negligence, subject to applicable limitations defences.
[63] The plaintiff is granted leave to amend to specifically plead reliance on the Proceedings Against the Crown Act.
Required Amendments
[64] I do not think that it is necessary to strike the entire statement of claim in this case. Although many of the pleaded causes of action have been struck as against the individual defendants, the particulars of the alleged material acts, omissions, and statements of these individuals may be relevant to the pleaded causes of action against HMQ that are continuing (and some may be added based on my decision). A defence has been filed, so this is not a situation where the statement of claim is so incomprehensible that the defendants were unable to plead in response.
[65] The defendants have also asked at paragraph (n) at pp. 4-5 of their notice of motion that various allegations in the statement of claim be struck pursuant to Rule 25.11. I decline to do so as I do not consider them to be frivolous, vexatious, or an abuse of the court’s process when read in the context of the statement of claim as a whole and the causes of action that are continuing.
[66] The plaintiff shall have 30 days to deliver a further amended statement of claim that addresses the deficiencies noted above by making the necessary amendments to sustain the claims and causes of action that have been strike, failing which those causes of action shall no longer form part of her continuing claims and she shall instead make the necessary amendments to remove reference to certain defendants from the prayer for relief at paragraphs 1, 3 and 4 and under the corresponding heads of damages (as summarized in paragraph 11 of these Reasons).
[67] Once the further amended statement of claim has been delivered, any defendants who remain named shall have 30 days to (a) either bring a motion if they do not believe the noted deficiencies have been rectified, or to address new deficiencies arising from the amendments; or (b) deliver an amended defence (in which they may raise any applicable limitations defences). Any further motion in respect of the amendments to the statement of claim arising out of my decision should be scheduled to be heard by me.
Costs
[68] Pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), the court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors to be considered by the court. The overall objective in fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances. I have considered these factors, as well as the principle of proportionality in Rule 1.04(1.1).
[69] There has been nothing presented that in my view justifies an award of more than partial indemnity costs. The defendants presented a costs outline on a partial indemnity basis for $11,700.00 (all inclusive). The costs outline of the plaintiff had to be re-calculated and was subsequently provided. Her partial indemnity costs of the motion were $6,402.00 (all inclusive), based on the Tariff rates. I was urged to follow the court in Construction Distribution & Supply Co. v. King Packaged Materials, 2016 ONSC 7397 and allow for more representative partial indemnity rates, which translate into partial indemnity costs of $15,783.00 for the plaintiff.
[70] Most of the claims pleaded against the individual defendants have been struck. That was the focus of this motion and they are entitled to their costs. One of the claims against HMQ has also been struck. They are all represented by the same counsel. Although I have not granted all of the relief they requested, I have granted the relief that was the focus of the motion, with respect to most of the causes of action pleaded against the individual defendants and I consider the defendants to have been more successful on this motion that the plaintiff.
[71] I am awarding $6,500.00 in costs (inclusive of fees, disbursements and taxes) payable by the plaintiff to the defendants within 30 days. This is less than what the defendants asked for in their costs outline but they were not entirely successful and I am mindful of the fact that there are no “real” hourly rates or external costs that can be referred to in a situation such as this where counsel is a salaried employee of the defendant HMQ. This amount is roughly equal to the plaintiff’s adjusted partial indemnity costs. In the circumstances, I consider this amount to be fair and reasonable and it ought to have been within the contemplation of the plaintiff.
Kimmel J.
Released: February 7, 2019
[^1]: The plaintiff does not allege these statutory and common law breaches for failure to provide a safe and healthy work environment against Noor in her prayer for relief although alleges in paragraph 156 that Noor breached these duties. In accordance with the parameters provided by plaintiff’s counsel during oral argument that I should rely on the prayer for relief in order to ascertain what is being claimed against each defendant, I have not analyzed this claim in relation to Noor but the same analysis would apply to her as I have applied to Wuschnakowski.
[^2]: By granting leave to amend in respect of these claims against Wuschnakowski (and HMQ), I am not intending to decide on this motion whether the claims in negligence, if subsequently pleaded, are new claims that might be subject to limitations defences or they are claims that were disclosed in the original pleading but just not sufficiently pleaded. This was not argued before me and, in any event, I believe that it would be more appropriate for that evaluation to be made by a court that has the amended pleading before it.