Burns v. RBC Life Insurance Company et al.

[Indexed as: Burns v. RBC Life Insurance Co.]

Ontario Reports

Ontario Superior Court of Justice

Perell J.

December 3, 2019

149 O.R. (3d) 571 | 2019 ONSC 6977

Case Summary

Civil procedure — Discovery — Examination for discovery — Order of discovery — Defendant serving first notice of examination — Plaintiff providing no cogent reason to depart from usual rule that first to serve is first to examine.

Civil procedure — Pleadings — Statement of claim — Striking out — Insured under disability policy claiming that his benefits were wrongfully terminated — Insured alleging breach of contract, bad faith, negligence and negligent misrepresentation against insurer and two of its employees — Allegations made against all defendants collectively and failing to allege misconduct by the employees in their individual capacity — Claims against the employees struck.

Employment — Employees — Liability — Insured under disability policy claiming that his benefits were wrongfully terminated — Insured alleging breach of contract, bad faith, negligence and negligent misrepresentation against insurer and two of its employees — Allegations made against all defendants collectively and failing to allege misconduct by the employees in their individual capacity — Claims against the employees struck.

Insurance — Actions against insurer — Bad faith claims — Insured under disability policy claiming that his benefits were wrongfully terminated — Insured alleging breach of contract, bad faith, negligence and negligent misrepresentation against insurer and two of its employees — Allegations made against all defendants collectively and failing to allege misconduct by the employees in their individual capacity — Claims against the employees struck.

The plaintiff had a disability insurance contract with the corporate defendant. The individual defendants were employed by the corporate defendant and administered the plaintiff's disability claim. The plaintiff pleaded that his long-term disability benefits had been wrongfully terminated after having been paid for five years. His statement of claim alleged breach of contract, bad faith, negligence and/or negligent misrepresentation. Apart from an allegation that one of the individual defendants advised him of his termination of benefits and that another denied his appeal, the particulars of the alleged misconduct referred to all defendants as an undifferentiated collective. The two individual defendants moved to strike the claim against them for disclosing no reasonable cause of action. The corporate defendant moved for an order that the plaintiff's examination for discovery proceed before the defendant's representative witness.

Held, the motions should be allowed.

The claims against the individual defendants were struck without leave to amend. There was no reasonable cause of action because the plaintiff failed to plead the necessary material facts with respect to the individual defendants in their personal capacity. The acts of denying the plaintiff's claim and of dismissing his appeal [page572] might have made the corporate defendant vicariously liable for breach of contract, negligent misrepresentation, or a breach of duty of good faith, but the actions were not such that would expose either of the individual defendants to personal liability.

The corporate defendant was the first to serve a notice of examination and was prima facie entitled to examine first. The plaintiff could not explain why the order mattered and provided no cogent reasons to depart from usual scheduling rule.

Syrtash v. Provident Life and Accident Insurance Co., 1996 22067 (ON CJ), [1996] O.J. No. 1782, 3 O.T.C. 16, 42 C.C.L.I. (2d) 314, 63 A.C.W.S. (3d) 597 (Gen. Div.), apld

Sataur (Litigation guardian of) v. Starbucks Coffee Canada Inc. (2017), 140 O.R. (3d) 307, [2017] O.J. No. 6726, 2017 ONCA 1017, distd

Spiers v Zurich Insurance Co. (1999), 1999 15089 (ON SC), 45 O.R. (3d) 726, [1999] O.J. No. 3683, 14 C.C.L.I. (3d) 21, 91 A.C.W.S. (3d) 736 (S.C.J.) [Leave to appeal to Div. Ct. denied [1999] O.J. No. 4912, 93 A.C.W.S. (3d) 548 (Div. Ct.), not folld

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(2003), 2003 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034, [2003] O.T.C. 715, 39 C.P.C. (5th) 323, 124 A.C.W.S. (3d) 661 (Master); R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, 335 D.L.R. (4th) 513, 419 N.R. 1, [2011] 11 W.W.R. 215, J.E. 2011-1326, 308 B.C.A.C. 1, 21 B.C.L.R. (5th) 215, 83 C.B.R. (5th) 169, 86 C.C.L.T. (3d) 1, [2011] I.L.R. para. G-2404, 205 A.C.W.S. (3d) 92, 2011 CCLG para. 25-249, 2011EXP-2380, 25 Admin. L.R. (5th) 1; Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990) 12 O.R. (3d) 750, [1990] O.J. No. 589, 1990 6761, 20 A.C.W.S. (3d) 769 (H.C.J.); Reichmann v. Toronto Life Publishing Co., [1989] O.J. No. 3043, 42 C.P.C. (2d) 170, 18 A.C.W.S. (3d) 1063 (Master); Scotia McLeod Inc. v. Peoples Jewellers Ltd. (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481, [1995] O.J. No. 3556, 129 D.L.R. (4th) 711, 87 O.A.C. 129, 23 B.L.R. (2d) 165, 9 C.C.L.S. 97, 59 A.C.W.S. (3d) 213, 1995 SOACQ para. 10,015 [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 40]; Sheridan v. Ontario, [2015] O.J. No. 2281, 2015 ONCA 303; Temilini v Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664, [1990] O.J. No. 860, 38 O.A.C. 270, 21 A.C.W.S. (3d) 348 (C.A.); Toronto Standard Condominium Corp. No. 2123 v. Times Group Corp., [2018] O.J. No. 4163, 2018 ONSC 4799, 93 C.L.R. (4th) 24 (S.C.J.); Tran v. University of Western Ontario, [2015] O.J. No. 2185, 2015 ONCA 295, varg on other grounds [2014] O.J. No. 407, 2014 ONSC 617 (S.C.J.); Twelve Gates Capital Group Inc. v. Mizrahi Development Group (The One) Inc., [2018] O.J. No. 6726, 2018 ONSC 7656 (S.C.J.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21.01(1) (b), 31.04, (3)

MOTIONS to strike claims for disclosing no reasonable cause of action and to establish the order of examinations for discovery.

Deanna Gilbert,for plaintiff.

Barry G. Marta, for defendants. [page574]

PERELL J.: —

A. Introduction

[1] The plaintiff, Randolph Burns, had a disability benefits insurance contract with the defendant RBC Life Insurance Company. The defendants Lauren Mclean and Anna Oslizlok were the employees of RBC Life that administered Mr. Burns' disability claim. Mr. Burns' disability claim was denied, and in this action, he sues RBC Life, Ms. McLean and Ms. Oslizlok.

[2] Ms. Mclean and Ms. Oslizlok bring a motion for an order striking out the claim against them for failing to disclose a reasonable cause of action. For the reasons that follow, their motion to strike is granted.

[3] There is also a motion with respect to the order of examinations. RBC Life seeks an order that Mr. Burns' examination for discovery proceed first before the examination of RBC Life's representative witness. For the reasons that follow, this motion is also granted.

B. Procedural Background

[4] Mr. Burns commenced his action on January 28, 2019 with the issuance of a statement of claim.

[5] The defendants delivered a notice of intent to defend on February 15, 2019.

[6] The defendants delivered a joint statement of defence on June 19, 2019 along with a sworn affidavit of documents from RBC Life. They also served a notice of examination to examine Mr. Burns on September 23, 2019.

[7] On June 25, 2019, Mr. Burns served the defendants with a notice of examination returnable September 20, 2019.

[8] On August 16, 2019, the defendants brought the motions now before the court. If necessary, Ms. Mclean, and Ms. Oslizlok sought leave to bring their pleadings motion after the delivery of their statement of defence. Mr. Burns did not oppose leave being granted, and, therefore, I grant them leave to bring their motion.

C. Statement of Claim

[9] As will be noted, the statement of claim, which is set out below, with very few exceptions, treats RBC Life, Ms. Mclean and Ms. Oslizlok as a collective. For the purposes of a motion under [page575] rule 21.01(1)(b) of the Rules of Civil Procedure,[^1] the facts in the pleading are assumed to be true. Mr. Burns' statement of claim states:

CLAIM

PRAYER FOR RELIEF

1. The Plaintiff claims:

(a) a declaration that the Plaintiff has suffered a "total disability" within the meaning of the subject insurance policy bearing policy number N29241, since June 13, 2012, onwards;

(b) payment of the long-term disability benefits due and owing under the subject policy from the date of termination, onwards;

(c) special damages in the amount of $100,000.00;

(d) punitive; aggravated, and/or exemplary damages in the amount of $1,000,000,00;

PARTIES

2. The Plaintiff, Randolph Burns ("Mr. Burns"), resides in the Town of Ajax, in the Province of Ontario.

3. The Defendant, RBC Life Insurance Company ("the Insurer"), is a corporation duly authorized to carry on business in the Province of Ontario. At all material times, the Insurer carried on the business of underwriting and adjusting long-term disability ("LTD") insurance policies. Mr. Burns pleads that the Insurer is vicariously liable for the acts and/or omissions of its employees, servants, and/or agents including, but not limited to its: disability claims specialists, appeals consultants, adjusters, supervisors, medical consultants, financial consultants, and/or investigators (collectively, "staff").

4. The Defendant, Lauren Mclean, resides and/or works in the City of Toronto, in the Province of Ontario. At all material times, Lauren Mclean was employed by the Insurer as a disability claim specialist.

5. The Defendant, Anna Oslizlok resides and/or works in the City of Toronto, in the Province of Ontario. At all material times, Anna Oslizlok was employed by the Insurer as an appeals consultant.

THE POLICY

6. At all material times, the Insurer issued a policy of disability benefits to Mr. Burns, bearing policy number N29241 (the "Policy" The Policy, which was in full force and effect on June 13, 2012, provided for the payment of LTD benefits in the event of a "total disability". The amount of the LTD benefit payable under the Policy was and remains $5,000.00/month to age 65.

7. Pursuant to the explicit terms of the Policy, "total disability" means: [page576]

(a) Due directly to Injury or Sickness You are unable to perform the important duties of Your Occupation; and

(b) You are not engaged in any gainful occupation; and

(c) You are receiving Physician's Care.

8. Pursuant to the explicit terms of the Policy, "occupation" means: occupation by which you are regularly engaged at the time you become disabled.

9. The Policy does not define the phrase "gainful occupation".

10. Mr. Burns pleads that at all material times, he paid the premiums due and owing under the Policy in exchange for the benefits afforded thereunder, both financial and "peace of mind", and on which benefits he relied.

MR. BURNS' PRE- DISABILITY OCCUPATION

11. At or around the time that Mr. Burns' date of disability, his occupation was a fire alarm system technician. More specifically, but without limiting the generality of the foregoing, in 2011, Mr. Burns was the co-owner. president, and treasurer of Direct Fire Protection Systems; and in 2012, Mr. Burns operated a self-employed business called On Track Protection Ltd.

12. The important duties of Mr. Burns' pre-disability occupation included, but were not limited to:

13. The majority of the important duties of Mr. Burns' pre-disability occupation were physical in nature. These physical activities included, but were not limited to:

14. At or around the time of his disability date, Mr. Burns typically worked approximately 70 hours/week.

15. Mr. Burns' 2011 earnings from his occupation were $520,055.00.

16. In the alternative to paragraph (15) above, Mr. Burns' 2011 earnings from his occupation were $112,255.00.

MR. BURNS' TOTAL. DISABILITY

17. In or around December of 2011, Mr. Burns experienced pain in or around his lumbar spine, waist, and right lower extremity. On or about June 13, 2012, as a result of this pain, Mr. Burns stopped working.

18. June 13, 2012 marks the date of Mr. Burns' disability for purposes of the Policy.

19. On or about June 17, 2012, Mr. Burns underwent an MRI of his spine. Mr. Burns was diagnosed with an L4-5 disc protrusion and cauda equina syndrome. On or about June 17, 2012, Mr. Burns underwent an urgent L4-5 left microdiscectomy.

20. As a result of the diagnoses and surgery identified in paragraph (19) above, Mr. Burns has been left with permanent and severe impairments including. but not limited to:

[. . .] [page577]

ALLEGATIONS

Breach of Contract

21. On or about September 17, 2012, the Insurer accepted that Mr. Burns was suffering from a total disability as of June 13, 2012. The Insurer retroactively approved the payment of LTD benefits to Mr. Burns, effective September 11, 2012 (post a 90 day elimination period commencing on June 13, 2012.

22. On or about August 24, 2015, Mr. Burns advised the Insurer that his wife had been diagnosed with lung cancer and was undergoing surgery.

23. For over five years following the initial approval of his LTD benefit, the Insurer continued to pay Mr. Burns an LTD benefit on the basis that he suffered a total disability.

24. On or about October 30, 2017, on behalf of the Insurer, Lauren Mclean advised Mr. Burns that his LTD benefits were being terminated.

25. Despite having paid Mr. Burns LTD benefits for over five years, the Insurer indicated that Mr. Burns had not been suffering from a total disability from 2013 onwards. At the time of its denial, the Insurer had access to medical records and was aware through direct consultations with Mr. Burns that he continued to suffer from the physical, neurological, and psychological complications of his cauda equina syndrome. At the time of its denial, the Insurer was also aware that Mr. Burns was enduring the psycho-emotional catastrophe of coping with his wife's unexpected terminal illness.

26. On or about May 4, 2018, on behalf of the Insurer, Anna Oslizlok denied Mr. Burns' appeal of the termination of his LTD benefits.

27. On or about August 2, 2018, on behalf of the Insurer, Anna Oslizlok denied Mr. Burns' further appeal of the termination of his LTD benefits.

28. Mr. Burns pleads that at all material times since June 12, 2013 he has suffered from a total disability within the meaning of the Policy. Mr. Burns pleads that the Insurer's failure to pay his LTD benefits effective. on or about October 30, 2017 amounts to a breach of contract to his financial, physical, and/or psycho-emotional detriment.

Bad Faith, Negligence. and/or Negligent Misrepresentation

29. At all material times, the Defendants owed to Mr. Burns a duty of the utmost good faith.

30. At all material times, the Defendants represented to Mr. Burns that, in exchange for the premiums he paid, Mr. Burns would receive the benefits offered by the Policy in keeping with the terms, conditions, and definitions expressly set out therein.

31. Mr. Burns pleads that in the course of the adjustment and appeals of his LTD claims, the Defendants engaged in conduct that, jointly and/or severally, amounted to bad faith, negligence, and/or negligent misrepresentation conduct including, but not limited to:

(a) they terminated Mr. Burns' LTD benefits on the basis of an erroneous, extra-contractual reckless, misleading, and/or bad faith interpretation of the language of the Policy; [page578]

(b) they terminated Mr. Burns' LTD benefits on the basis of language, criteria, terms, and/or conditions that were not prescribed in the Policy and which they, instead, elected to import into the Policy;

(c) they terminated Mr. Burns' LTD benefits on the basis of their unilateral interpretation of the phrase "gainful occupation" in the Policy and despite the Insurer's written admission of May 4, 2018 that "the term gainful occupation is not defined in the policy";

(d) they terminated Mr. Burns' LTD benefits on the basis of a single, 16-year old, extra-provincial case involving a different type of insurance policy and different type of benefits;

(e) they "cherry picked" case law when interpreting the Policy and terminating Mr. Burns' LTD benefits;

(f) they deliberately attempted to mislead Mr. Burns that there was a "commonly understood" meaning of the phrase "gainful employment" when no such understanding exists;

(g) they failed to properly consider Mr. Burns' pre-disability education, training, experience, status, hours of work, and/or income, despite the definition of "Occupation" as prescribed under the Policy;

(h) they terminated Mr. Burns' LTD benefits in reliance upon a single medical record, which record had been in their possession during the time that the Insurer was paying Mr, Burns' LTD benefit on the basis of a total disability;

(i) they terminated Mr. Burns' LTD benefits on the basis of a single medical record rather than a comprehensive, holistic, and/or balanced review of his medical records as a whole;

(j) they "cherry picked" medical opinions when deciding to terminate Mr. Burns' LTD benefits;

(k) they had specific knowledge that the vast majority of Mr. Burns' pre-disability important duties of his occupation were physical in nature, but relied almost exclusively on his administrative duties when terminating his LTD benefits;

(l) they terminated Mr. Burns' LTD benefits after paying them for over five years on the basis of a total disability;

(m) they terminated Mr. Burns' LTD benefits in October of 2017, notwithstanding the Insurer's own written admission of March 17, 2016 that "medical assessment and DLQ received is consistent with the notion that client is still unable to perform the important duties of his occupation as these duties are physically demanding";

(n) they terminated Mr. Burns' LTD benefits in October of 2017 without evidence of a material or unexpected change in his condition from the date of its March 17, 2016 admission or otherwise;

(o) they maintained their termination of Mr. Burns' LTD benefits on appeal, despite the Insurer's written admission of May 4, 2018 that "Mr. Burns is not able to perform some of the important duties of his occupation, namely, the physical installation and inspection work"; [page579]

(p) they miscalculated Mr. Burns' 2011 earnings, despite being provided with source financial records establishing a higher number than that determined by the Insurer;

(q) they arbitrarily disregarded evidence of additional 2011 earnings when determining Mr. Burns' pre-disability earnings;

(r) they relied upon their own faulty calculations of Mr. Burns' 2011 earnings as a basis for terminating his LTD benefits;

(s) they terminated Mr. Burns' LTD benefits despite specific knowledge that Mr. Burns was only back to working approximately 113rd of his pre-disability hours;

(t) they terminated Mr. Burns' LTD benefits when they had specific knowledge that Mr. Burns was forced to rely upon sub-contractors in order to continue carrying on business;

(u) they terminated Mr. Burns' LTD benefits, notwithstanding the Insurer's own written admission of March 17, 2016 that "financials received are consistent with the notion that client is sub-contracting out the physical work that client used to do prior to disability and that this forced approach is not as profitable and preventing client's business On Track Protection Ltd from being competitive in the market";

(v) they terminated Mr. Burns' LTD benefits in October of 2017 without establishing any material or unexpected change in Mr. Burns' reliance upon sub-contractors since the Insurer's admission of March 17, 2016 or otherwise;

(w) they terminated Mr. Burns' LTD benefits on the basis of the earnings of his company as opposed to his own personal earnings, disregarding the fact that the sub-contractors contributed to the overall earnings of the company;

(x) they arbitrarily relied upon yearly maximum pensionable earnings under the Canada Pension Plan when terminating Mr. Burns' LTD benefits, when such earnings are irrelevant to the LTD benefits provided under the Policy and when no such relevance has been prescribed in the Policy;

(y) they arbitrarily relied upon their stated understanding that "a large majority of Canadians earn less than $53,300.00" when terminating Mr. Burns' LTD benefits when the earnings of other Canadians are irrelevant to Mr, Burns' entitlements under the Policy for which he personally paid;

(z) they retained investigators, surveyed Mr: Burns' internet presence, and conducted at least seven days of surveillance in a deliberate effort to discredit its own insured;

(aa) they terminated Mr. Burns' LTD benefits, notwithstanding the Insurer's written admission of February 12, 2016 that "surveillance did not come up with any abnormal activity or red flags";

(bb) they interpreted the language in the Policy, or the lack thereof, in its favour rather than to the favour of Mr. Burns, despite having exclusively drafted the Policy; [page580]

(cc)they knew or ought to have known of the doctrine of contra proferentem and wilfully chose not to abide by that doctrine;

(dd) they placed the financial interests of the Insurer ahead of those of Mr. Burns;

(ee) they approached the adjustment of Mr. Burns' LTD claims in an adversarial manner, despite this being first party insurance;

(ff) the Insurer [. . .];

(gg) the Insurer [. . .];

(hh) they failed to consider Mr. Burns' appeals, relying upon and reciting its previous decisions without due care and consideration;

(ii) they took an unnecessarily adversarial and/or hostile approach to the adjustment of Mr. Burns' claims;

(jj) the Insurer [. . .];

(kk)the Insurer [. . .]

(ll) the Insurer [. . .];

(mm) the Insurer [. . .];

(nn) alternatively, the Insurer [. . .];

(oo) they failed to follow standard and accepted industry practices in the fair, timely, and/or reasonable handling of Mr. Burns' LTD claim's;

(pp) they knew or ought to have known that Mr. Burns was physically, neurologically, psychologically, and financially vulnerable arid chose to take advantage of him in his state of weakness;

(qq) they failed to set appropriate reserves;

(rr) by improperly setting reserves, it impaired the appropriate adjustment of Mr. Burns' LTD claims;

(ss)the Insurer [. . .]

DAMAGES

32. As a result of the Defendants' breach of contract, negligence, and/or negligent misrepresentation, Mr. Burns has suffered the financial loss of his LTD benefits under the Policy. Further, Mr. Burns has been and/or will be put to extraordinary medical, psychological, and legal expense; the particulars of which special damages will be provided prior to the trial of this action.

33. Further, at or around the time that the Defendants terminated Mr. Burns' LTD benefits and/or denied his appeal(s), the Defendants had specific knowledge that Mr. Burns was struggling with his wife's terminal illness. The Defendants also had specific knowledge that Mr. Burns had initiated a medical malpractice lawsuit.

34. Mr. Burns pleads that the Defendants knew or ought to have known that at or around the time that it terminated his LTD benefits and/or denied his appeal(s), Mr. Burns was under financial strain and was financially dependent [page581] upon the receipt of his LTD benefits. The Defendants nevertheless embarked upon a course of conduct that caused and/or aggravated Mr. Burns' vulnerable psycho-emotional state.

35. Mr. Burns pleads that in terminating his LTD benefits when it did, and without any material change since the Insurer had found him totally disabled for over five years, the Defendants engaged in bad faith, high handed, reckless, wilfully ignorant, and/or grossly arbitrary conduct So as to condemn this conduct, to modify the Defendants' behaviour, and/or to deter the Defendants from engaging in such conduct in future, Mr. Burns pleads that an award of punitive, aggravated, and/or exemplary damages are warranted.

[10] In examining Mr. Burns' statement of claim, it should be noted that there is no allegation that Ms. Mclean and Ms. Oslizlok, in their personal capacity, were in any relationship of privity of contract with Mr. Burns.

[11] It should be noted that apart from the specification that it was Ms. Mclean who advised Mr. Burns that his benefits were being denied and that it was Ms. Oslizlok who denied Mr. Burns' appeal, the alleged breach of contract, negligent misrepresentation, and breach of duty of good faith are the undifferentiated collective alleged misconduct of RBC Life, Ms. Mclean and Ms. Oslizlok.

[12] For example, in para. 31(a), Mr. Burns alleges that "they terminated Mr. Burns' LTD benefits on the basis of an erroneous, extra-contractual reckless, misleading, and/or bad faith interpretation of the language of the Policy". There are 38 allegations of what "they" did.

[13] It should be noted that all 38 of these allegations could be pleaded singularly as the misconduct of RBC Life, which has no corporeal existence.

[14] In other words, the alleged misconduct of Ms. Mclean and Ms. Oslizlok arises as an aspect of their being employees and does not constitute any independent interest they might have outside of their role as employees. The allegations against Ms. Mclean and Ms. Oslizlok do not manifest a separate identity or interest from their employer, RBC Life, who is vicariously liable for their misconduct as employees.

D. Discussion and Analysis

1. Striking claims for failure to show a reasonable cause of action

[15] Ms. Mclean's and Ms. Oslizlok's motion is brought pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, which states: [page582]

WHERE AVAILABLE

To any Party on a Question of Law

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

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion,

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

[16] Where pursuant to rule 21.01(1)(b), a defendant submits that the plaintiff's pleading does not disclose a reasonable cause or action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim.[^2] Matters of law that are not fully settled should not be disposed of on a motion to strike, and the court's power to strike a claim is exercised only in the clearest cases.[^3]

[17] In R. v. Imperial Tobacco Canada Ltd.,[^4] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success.

[18] On a motion under rule 21.01(1)(b), the court accepts the pleaded allegations of fact in the statement of claim as proven, unless they are patently ridiculous or incapable of proof.[^5] [page583]

[19] The failure to establish a cause of action usually arises in one of two ways: (1) the allegations in the statement of claim do not come within a recognized cause of action; or (2) the allegations in the statement of claim do not plead all the elements necessary for a recognized cause of action.[^6] If a material fact necessary for a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars.[^7]

[20] I foreshadow here to say that in the immediate case, with the possible exception of his free-standing claim of bad faith, Mr. Burns' statement of claim pleads recognized causes of action. As the discussion below will reveal, the problem, however, is that Mr. Burns has not pleaded the necessary material facts with respect to his claims against Ms. Mclean and Ms. Oslizlok in their personal capacity.

[21] On motions brought under the procedure to strike a claim or defence as untenable in law, leave to amend the pleading may and usually will be given, and leave to amend will only be denied in the clearest cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment.[^8]

2. The claims against Ms. Mclean and Ms. Oslizlok personally

[22] Personal liability is not engaged solely because a corporation acts through human agency.[^9] Directors, officers and employees, [page584] however, may be liable for their own tortious conduct.[^10] To properly plead a case of personal liability of a director, officer, or employee, the plaintiff must specifically plead a cause of action against the individual in his or her personal capacity.[^11]

[23] In Lobo v. Carleton University,[^12] the Court of Appeal stated that for employees to be liable in tort for conduct associated with the work of their employee: (1) the actions of the employee must be in and of itself tortious; or (2) the actions of the employee must exhibit a separate identity or interest from those of the employer so as to make the employee's conduct his or her own discrete conduct.

[24] If the claim against the officer or director is that his or her acts were themselves tortious, the pleading must be intensely scrutinized so that the court can strike out claims that are improperly pleaded or claims where the material facts do not justify the allegations of a personal tort.[^13] In Piedra v. Copper Mesa Mining Corp.,[^14] the Court of Appeal stated, at para. 75:

Since the plaintiffs' claims against the Directors rest solely on the assertion that the Directors' acts were themselves tortious, the plaintiffs' pleadings against the Directors must withstand a high degree of scrutiny. See for example, Abdi Jama (Litigation Guardian of) v. McDonald's Restaurants of Canada Ltd., [2001] O.T.C. 203 (S.C.), at para. 10. This accords with the responsibility of the courts to be "scrupulous in weeding out claims that are improperly pleaded or where the evidence does not justify an allegation of a personal tort": Adga, at p. 114. As this court has indicated, were it otherwise, there is a risk that corporate officers and directors could be "driven away from involvement in any respect in corporate business by the potential exposure to ill-founded litigation": Adga, at pp. 104-105. [page585]

[25] When a plaintiff sues both a corporation and individuals within that corporation, including officers, directors or employees, the plaintiff must plead sufficient particulars that disclose a basis for attaching liability to the individuals in their personal capacities.[^15]

[26] Where an employee is sued for his or her acts, the material facts giving rise to personal liability must be specifically pleaded because an employee is not personally liable for the tortious acts of his or her employer unless the actions of the employee can be shown to be in themselves tortuous or that the employee's acts manifest a separate identity or interest from the employer.[^16] Personal liability of the employee requires actions of that employee that are themselves tortious.[^17]

[27] Turning to some case law, in Syrtash v. Provident Life and Accident Insurance Co.,[^18] Mr. Syrtash had a contract for disability insurance with Provident Life. After he received a number of payments for a permanent disability, the insurer decided to terminate payments. Mr. Syrtash sued the insurer and four employees who had been involved in the decision to terminate benefit payments. They successfully moved to have the claims against them personally dismissed for failure to show a reasonable cause of action. Relying on the authority of the Court of Appeal's decision in Scotia McLeod Inc. v. Peoples Jewellers Ltd.,[^19] White J. concluded that there were no pleaded material facts that would support a claim against the employees personally.

[28] In the immediate case, I agree with Ms. Mclean's and Ms. Oslizlok's argument that their circumstances are similar to those of the employees in the Syrtash and that I should follow that case and strike the claims against them. [page586]

[29] In contrast, in the immediate case, Mr. Burns relies on the judgment in Spiers v. Zurich Insurance Co.,[^20] where of Cavarzan J. held that there was an implied term in a contract of insurance that the insurer owed the insured a duty of good faith and then added [at para. 26]: "Adjusters, too, owe a duty of good faith to the insured and can be held liable to the insured for breach of that duty." The decision in Spiers was followed or favourably commented upon in several cases.[^21]

[30] The correctness of the Spiers decision,however, was rejected in Burke v. Buss, where Jennings J. noted that no authority had been cited in support of Cavarzan J.'s decision about an independent duty of good faith of adjusters. He also noted that Cavarzan J.'s decision was contrary to the American cases that had dealt with the issue.

[31] I would add that apart from the absence of supporting authorities, Spiers wants for any mention of the strong line of authority from the Ontario Court of Appeal that delineates how and when an employee can be individually liable for his or her tortious conduct when engaged in the activities of its employer. I am not bound by Spiers,and in my opinion, on the point of the liability of employees, the case was wrongly decided.

[32] In the immediate [case], I am bound to follow the Court of Appeal's authorities about when an employee may be exposed to personal liability. Following those authorities, it is plain and obvious that Mr. Burns has not pleaded a viable cause of action against Ms. Mclean and Ms. Oslizlok.

[33] In the immediate case, Mr. Burns also relied on the Court of Appeal's decision in Sataur (Litigation guardian of) v. Starbucks Coffee Canada Inc.,[^22] where a motion by employees to have an action dismissed against them failed. In that case, the Court of Appeal reversed the decision of the motion judge who had dismissed the claims against the employees because he held [at para. 4] that "the general rule was that employees are not liable for what they do within the scope of their authority and on behalf of their corporation". The Court of Appeal pointed out that the motion judge's holding was a mistake. As noted above, the correct principle is that employees can be liable for what they do as employees [page587] provided that the employee's acts manifest a separate identity or interest from the employer and the employee's actions are themselves tortious. The argument in the immediate case, however, is different from what occurred in the Sataur case.

[34] In the immediate case, Ms. Mclean and Ms. Oslizlok do not submit that they are insulated from liability because of their status of employees. Rather, they rely on the line of authority from the Court of Appeal that a claim against employees in the personal capacity will be struck unless the employee's acts manifest a separate identity or interest from the employer and the employee's actions are themselves tortious.

[35] In the immediate case, it is clear that Mr. Burns has not and cannot plead such a claim against the employees. The acts of Ms. Mclean, in denying Mr. Burn's disability claim, and of Ms. Oslizlok, in dismissing the appeal from Ms. Mclean's decision, may make RBC Life vicariously liable for breach of contract, negligent misrepresentation, or breach of a duty of good faith, but these actions are not acts that would expose Ms. Mclean and Ms. Oslizlok to personal liability.

[36] In the immediate case, even if the 38 allegations of collective misconduct may amount to breaches of a duty of good faith, which I need not decide, those allegations do not manifest a separate identity or interest for Ms. Mclean and Ms. Oslizlok, although they may be acts for which RBC Life may be vicariously liable. The allegations, however, are not themselves the tortious acts of Ms. Mclean and Ms. Oslizlok in their personal capacity.

[37] For these reasons, I strike the claims against Ms. Mclean and Ms. Oslizlok without leave to amend.

3. The order of examinations for discovery

[38] Rule 31.04 of the Rules of Civil Proceduregoverns the order of examinations for discovery. Rule 31.04 states:

Examination of Plaintiff

31.04(1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after delivering a statement of defence and, unless the parties agree otherwise, serving an affidavit of documents.

Examination of Defendant

(2) A party who seeks to examine a defendant for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after,

(a) the defendant has delivered a statement of defence and, unless the parties agree otherwise, the examining party has served an affidavit of documents; or [page588]

(b) the defendant has been noted in default.

Completion of Examination

(3) The party who first serves on another party a notice of examination under rule 34.04 or written questions under rule 35.01 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise.

[39] In the immediate case, strictly applying rule 31.04(3), the defendant RBC Life, which was the first to serve a notice of examination, is entitled to complete the examination of Mr. Burns before being examined by Mr. Burns.

[40] Mr. Burns did not dispute that this was the proper interpretation of the rule, but he argued that in the circumstances of the immediate case, this outcome was unfair. He also pointed out that the rule is asymmetric in favour of defendants who can, as occurred in the immediate case, pre-empt the plaintiff, who must wait the arrival of a statement of defence before serving a notice of examination.

[41] For present purposes, I need not get into the details of why Mr. Burns feels that he has been unfairly treated save to say that it would appear that while his counsel was courteous and indulgent to several of the defendants' procedural irregularities, the courtesy was not reciprocated with any discussions about scheduling the discoveries.

[42] I need not get deeper into the details because neither party could identify why the order of examination actually mattered. Thus, I do understand that being examined first will prejudice or discomfort Mr. Burns in any way.

[43] Under the strict approach of rule 31.04(3), in order to maintain the priority of completing the examination first, the service of an affidavit of documents is an absolute requirement.[^23] In the immediate case, RBC Life was compliant with the rule and is prima facie entitled to examine first.

[44] However, the court can in appropriate cases override the technical approach, which favours swift defendants, and the court can determine the order of discovery on the basis of what order will achieve the most fair efficient and organized conduct of the examinations for both the examiners and the examinees.[^24] The [page589] court's discretion to determine the order of examinations has been exercised in cases where complex scheduling requirements required a departure from the rule for efficiency purposes and in cases where there exists a risk that a party will tailor its evidence.[^25]

[45] In the immediate case, I have not been provided with any cogent reasons to depart from the regime of the Rules of Civil Procedurefor scheduling examinations for discovery. I therefore grant RBC Life's motion for an order that Mr. Burns' examination go first.

E. Conclusion

[46] For the above reasons, the RBC Life's motions are granted.

[47] If the parties cannot agree about costs, they may make submissions in writing beginning with Ms. McLean's and Ms. Oslizlok's submissions within 20 days of the release of these reasons for decision followed by Mr. Burns' submissions within a further 20 days.

Motions allowed.

[^1]: R.R.O. 1990, Reg. 194.

[^2]: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240, 164 D.L.R. (4th) 257 (C.A.); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321.

[^3]: Dawson v. Rexcraft Storage & Warehouse Inc., ibid.; Temilini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664, [1990] O.J. No. 860 (C.A.).

[^4]: [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, at paras. 17-25.

[^5]: Folland v. Ontario (2003), 2003 52139 (ON CA), 64 O.R. (3d) 89, [2003] O.J. No. 1048 (C.A.); Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1, [1995] O.J. No. 4043 (C.A.); Operation Dismantle Inc. v. Canada, 1985 74 (SCC), [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22; Canada (Attorney General) v. Inuit Tapirisat of Canada, 1980 21 (SCC), [1980] 2 S.C.R. 735, [1980] S.C.J. No. 99.

[^6]: 2106701 Ontario Inc. (c.o.b. Novajet) v. 2288450 Ontario Ltd., [2016] O.J. No. 2289, 2016 ONSC 2673 (S.C.J.), at para. 42; Aristocrat Restaurants Ltd. (c.o.b. Tony's East) v. Ontario, [2004] O.J. No. 5164 (S.C.J.); Dawson v. Rexcraft Storage & Warehouse Inc., supra, note 2, at para. 10.

[^7]: Balanyk v. University of Toronto, 1999 14918 (ON SC), [1999] O.J. No. 2162, 1 C.P.R. (4th) 300 (S.C.J.); Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 6761 (ON SC), 12 O.R. (3d) 750, [1990] O.J. No. 589 (H.C.J.); Copland v. Commodore Business Machines Ltd. (1985), 1985 2190 (ON SC), 52 O.R. (2d) 586, [1985] O.J. No. 2675 (Master), affd (1985), 52 O.R. (2d) 586n, 3 C.P.C. (2d) 77n, (H.C.J.).

[^8]: Mitchell v. Lewis (2016), 134 O.R. 93d) 524, [2016] O.J. No. 6286, 2016 ONCA 903, at para. 21; Conway v. Law Society of Upper Canada, [2016] O.J. No. 451, 2016 ONCA 72, at para. 16; Sheridan v. Ontario, [2015] O.J. No. 2281, 2015 ONCA 303; 1523428 Ontario Inc. v. TDL Group Corp., [2018] O.J. No. 5416, 2018 ONSC 5886 (S.C.J.); Adelaide Capital Corp. v. Toronto-Dominion Bank (c.o.b. TD Canada Trust), [2006] O.J. No. 4705, 2006 39459 (S.C.J.), at para. 6, vard [2007] O.J. No. 2445, 2007 ONCA 456, at para. 6; Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346, 262 D.L.R. (4th) 222 (C.A.).

[^9]: Scotia McLeod Inc. v. Peoples Jewellers Ltd. (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481, [1995] O.J. No. 3556 (C.A.), leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 40.

[^10]: ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 1527 (ON CA), 43 O.R. (3d) 101, [1999] O.J. No. 27 (C.A.)

[^11]: Twelve Gates Capital Group Inc. v. Mizrahi Development Group (The One) Inc., [2018] O.J. No. 6726, 2018 ONSC 7656 (S.C.J.), at para. 25; Toronto Standard Condominium Corp. No. 2123 v. Times Group Corp., [2018] O.J. No. 4163, 2018 ONSC 4799 (S.C.J.); ACI Brands Inc. v. Aviva Insurance Co. of Canada, [2014] O.J. No. 4957, 2014 ONSC 4559 (S.C.J.); Lobo v. Carleton University, [2012] O.J. No. 63, 2012 ONSC 254 (S.C.J.); 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 789 (ON CA), [1999] O.J. No. 4071, 127 O.A.C. 48 (C.A.).

[^12]: [2012] O.J. No. 3161, 2012 ONCA 498. See, also, Tran v. University of Western Ontario, [2014] O.J. No. 407, 2014 ONSC 617 (S.C.J.), vard on other grounds [2015] O.J. No. 2185, 2015 ONCA 295.

[^13]: Lobo v. Carleton University, ibid.; Piedra v. Copper Mesa Mining Corp., [2011] O.J. No. 1041, 2011 ONCA 191, at para. 75; Kay Aviation b.v. v. Rofe, 2001 PESCAD 7, [2001] P.E.I.J. No. 48, 202 D.L.R. (4th) 683 (C.A.), at para 25.

[^14]: Ibid., at para. 75.

[^15]: Tran v. University of Western Ontario, supra, note 12 (S.C.J.), at para. 31, vard on other grounds, supra, note 12 (C.A.), at para. 17; 460635 Ontario Ltd. v. 1002953 Ontario Inc., supra, note 11, at para. 8; Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97, [1998] O.J. No. 391 (C.A.), at p. 102 O.R.

[^16]: Global Initiatives Inc. v. Transglobe Property Management Services Ltd., [2007] O.J. No. 4584, 2007 50874 (S.C.J.); Markeljevic v. Ontario (Financial Services Commission), [2005] O.J. No. 2098, [2005] O.T.C. 386 (S.C.J.); Normart Management Ltd. v. West Hill Redevelopment Co., ibid.; Scotia McLeod Inc. v. Peoples Jewelers Ltd., supra, note 9.

[^17]: ACI Brands Inc. v. Aviva Insurance Co. of Canada, supra, note 11; Alper Development, Inc. v. Harrowston Corp. (1998), 1998 2237 (ON CA), 38 O.R. (3d) 785, [1998] O.J. No. 1199 (C.A.), at para. 7.

[^18]: 1996 22067 (ON CJ), [1996] O.J. No. 1782, 42 C.C.L.I. (2d) 314 (Gen. Div.).

[^19]: Supra, note 9.

[^20]: (1999), 1999 15089 (ON SC), 45 O.R. (3d) 726, [1999] O.J. No. 3683 (S.C.J.), leave to appeal to the Div. Ct. denied [1999] O.J. No. 4912, 93 A.C.W.S. (3d) 548 (Div. Ct.).

[^21]: Noble v. Riddell, [2003] O.J. No. 3053, [2003] O.T.C. 696 (S.C.J.); Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master).

[^22]: (2017), 140 O.R. (3d) 307, [2017] O.J. No. 6726, 2017 ONCA 1017.

[^23]: Ferguson v. Peel Mutual Insurance Co., [2017] O.J. No. 2269, 2017 ONSC 2318 (S.C.J.); Ambrose v. Anderson, [2011] O.J. No. 3496, 2011 ONSC 4620 (Master); Howells v. Manufacturers Life Insurance Co., [2005] O.J. No. 4816, 143 A.C.W.S. (3d) 752 (S.C.J.).

[^24]: Isobord Enterprises Inc. v. Stone & Webster Canada Ltd., [2003] O.J. No. 3527, 125 A.C.W.S. (3d) 231 (S.C.J.); Marks v. Marks, [2000] O.J. No. 367, [2000] O.T.C. 93 (Master); Reichmann v. Toronto Life Publishing Co., [1989] O.J. No. 3043, 42 C.P.C. (2d) 170 (Master); Bye v. Hulin, [1984] O.J. No. 2221, 40 C.P.C. 358 (Master).

[^25]: Ferguson v. Peel Mutual Insurance Co., supra, note 23; Ezeh v. 2317706 Ontario Inc., [2011] O.J. No. 3568, 2010 ONSC 4692 (S.C.J.).