COURT FILE NO.:CV-19-00629069
DATE: 20200925
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLAN ETHERINGTON
Plaintiff (Respondent)
– and –
NATIONAL HOCKEY LEAGUE PLAYERS’ ASSOCIATION (NHLPA), AXIS INSURANCE, MATHIEU SCHNEIDER, RICHARD SMIT, ROMAN STOYKEWYCH, MICHELLE ALLEN, STEPHEN SAX, TRACEY CORDEIRO, SANDRA MONTEIRO, and STEPHEN FRANK
Defendants (Applicants)
Sharon McGovern, for the Plaintiff (Respondent)
Peter M. Jacobsen, Tae Mee Park and Andrew W. MacDonald, for the Defendants (Applicants)
HEARD: July 9, 2020
papageorgiou J.
Nature of the Case
[1] This case arises out of the plaintiff’s employment with National Hockey League Players’ Association (“NHLPA”) as a former Technical Support Analyst from September 10, 2008 until February 13, 2019.
[2] The plaintiff has sued the NHLPA, several current or former NHLPA employees (the “Individual Defendants”) and the NHLPA’s insurer, AXIS Insurance (“AXIS”).
[3] The essence of the plaintiff’s claim is:
a. He suffered workplace injuries and the NHLPA and the Individual Defendants repeatedly failed to accommodate him, continued to assign him duties which aggravated his physical injuries, allegedly breaching duties owed to him and thus created a poisoned work environment. This violated various duties in the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“OHRC”), and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”);
b. He was subject to intimidation, bullying, harassment and accordingly, a poisoned work environment throughout his employment and in particular after he reported that his immediate supervisor, the defendant Mr. Frank, was engaged in fraudulent activities; and
c. His counsel wrote to the NHLPA outlining the various ways in which the plaintiff felt he had been constructively dismissed. He was subsequently terminated while he was on a doctor ordered one-month medical leave of absence as a result of workplace injuries for which he had provided a doctor’s note to his employer. He was not provided with any notice, severance, pay out of his remaining vacation leave nor the basic statutory minimums required by law under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).
Nature of the Motion
[4] This is a motion brought by the defendants for:
a. An order striking out the following alleged purported causes of action for failing to disclose a reasonable cause of action pursuant to Rule 21.01(1)(b)
-negligence
-breach of contract (wrongful dismissal/constructive dismissal)
-harassment
-discrimination
-intentional infliction of mental suffering
-income tax fraud
-insurance fraud
b. An order striking out the allegations in the Statement of Claim and dismissing the actions as against AXIS Reinsurance Company (Canadian Branch), incorrectly named Axis Insurance in the Statement of Claim pursuant to Rule 21.01(1)(b).
c. An order striking out the allegations in the Statement of Claim dismissing the action as against the Individual Defendants: Mathieu Schneider, Richard Smit, Roman Stoykewych, Michelle Allen, Stephen Sax, Tracey Cordeiro, Sandra Monteiro, and Stephen Frank, for failing to disclose a reasonable cause of action against any of them and dismissing the action as against each of them on that ground pursuant to Rule 21.01(1)(b);
d. An order striking out or expunging all or part of the Statement of Claim on the ground that it fails to plead a concise statement of material facts; improperly pleads evidence and law; may prejudice or delay the fair trial of this action; and contains numerous allegations that are scandalous, frivolous and vexatious or are an abuse of the court’s process pursuant to Rule 25.11.
[5] In response to the defendants’ motion, the plaintiff filed an 87 Tab, 430 page long responding record attaching various documents which he says are incorporated by reference. The defendants also bring a motion to strike out and “expunge” this record from the court file.
[6] The plaintiff indicated that it consents to amend the claim to omit certain evidence which the defendants found objectionable relating to quotes from other employees complimenting the plaintiff on his work in paras. 138-146. The plaintiff requested leave to amend the claim to clearly set out the duty and standard of care for each of the named defendants and clearly set out the basis on which each and every defendant is liable in damages. The plaintiff also requested that a case management judge be appointed pursuant to Rule 77.05(2)
Decision
[7] For the reasons that follow I am striking the Statement of Claim in its entirety, with leave to amend subject to the directions in these Reasons and the timetable set out below.
[8] At the outset, I note that the Statement of Claim has 232 paragraphs and is 62 pages long. As I will discuss in further detail below, the Claim is unduly complex, repetitive, unclear and filled with irrelevant, scandalous and immaterial facts and evidence. It seems to recount every detail of the plaintiff’s complaints about the NHLPA over a number of years, whether these complaints are material, actionable or not. The causes of action pleaded are not set out in any organized fashion, the elements are generally not pleaded and it is impossible to fully address and reference all the particular paragraphs of the Claim which are problematic. I have struck out particular paragraphs where necessary. However, I have dealt with many problems in the Statement of Claim thematically instead of referencing particular paragraphs because so many of the problematic allegations are spread throughout the Statement of Claim, in various different paragraphs—many paragraphs contain both permissible and impermissible pleadings. Referencing each and every line and paragraph of the Statement of Claim which is problematic would, frankly, create more problems and confusion than it solves given the way this Claim has been drafted.
[9] I also note at the outset that a significant issue in this case is not only whether aspects of this Statement of Claim should be struck out, but whether leave to amend should be granted. Ordinarily, a court should grant leave to amend and I am doing so with respect to many causes of action which the plaintiff alleges. However, I have not granted leave to amend with respect to several causes of action and I have also struck out the action against several defendants without leave to amend for the following reasons:
a. The problem with many of causes of action pleaded in the Statement of Claim is not merely that they are pleaded in a technically deficient manner. The problem is that the Statement of Claim does not plead the underlying facts which could support these causes of action. And it is apparent from what is pleaded that the plaintiff has nothing more that could possibly be pleaded which could support his alleged causes of action.
b. In my view, there is no reason to think that the plaintiff could plead any additional facts which could support some of the intended causes of action for the following reasons: First, the Statement of Claim already contains excessive detail and appears to recount every complaint the plaintiff ever had about his employment—large and small. Second, although the plaintiff requested leave to amend, the plaintiff did not suggest any additional facts which could be alleged, either in its factum or during the argument. Third, the Responding Motion Record filed by the plaintiff, (425 pages of documents) is like an affidavit of documents. It contains voluminous emails and communications which the plaintiff had with the defendants throughout his employment, but neither his pleading or factum for that matter identifies any additional material facts from those documents. Finally, I requested further written submissions of the parties after a number of relevant cases came to my attention. The plaintiff’s supplementary submissions, dated September 10, 2020, also do not contain any references to additional material facts which could be pleaded in support of the causes of action which I have struck out, and indeed, supports my conclusions in this regard.
[10] These reasons are organized as follows:
a. The Law Applicable to a Rule 21.01(1)(b) motion
b. The Causes of Action Against the NHLPA
(i) Constructive and/or Wrongful Dismissal
(ii) Negligence
(iii) Statutory Breach
(iv) Intentional Infliction of Mental Suffering
(v) Harassment
(vi) Discrimination
c. The Causes of Action Against the Individual Defendants
(i) Constructive and/or Wrongful Dismissal
(ii) Negligence
(iii) Intentional Infliction of Mental Suffering
(iv) Harassment
(v) Discrimination
(vi) Fraud and Rules of Professional Conduct
d. The Overall Claim Against the Individual Defendants
e. The Cause of Action Against AXIS
f. Proposed New Amendments to Plead Breach of Fiduciary Duty and Defamation
g. Declaratory Relief Claimed
h. Should the Statement of Claim be struck in its entirety?
(i) The Law Applicable to Rule 25
(ii) Irrelevant/Immaterial Facts
(iii) Failure to Set out a Concise Pleading of Material Facts and Pleading of Evidence
(iv) Scandalous/Prejudicial Facts
(v) Pleadings Related to the Poisoned Work Environment
i. Should the responding motion record filed by the plaintiff be struck or expunged from the court record?
j. The request for Case Management.
Analysis
a. The Law Applicable to a Rule 21.01(1)(b) motion
[11] Under Rule 21.01(1)(b), a party may move to strike out a pleading on the ground that it does not disclose a cause of action. On such a motion, the following principles apply:
a. All allegations of fact, unless plainly ridiculous or incapable of proof, must be accepted as proven;
b. The defendant, in order to succeed, must show that it is plain and obvious and beyond doubt that the plaintiff could not succeed in the claim;
c. The novelty of the action will not militate against the plaintiff;
d. The Statement of Claim must be read as generously as possible with a view to accommodating any inadequacies in the allegations due to drafting deficiencies. Jacobson v. Skurka, 2015 ONSC 1699, 125 O.R. (3d) 279, at para. 73; Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at pp. 972-973; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 9.
e. A claim will be found legally insufficient when its allegations “do not give rise to a recognized cause of action or it fails to plead the necessary elements of an otherwise recognized cause of action…[A] plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for [the defendant] to reply should be struck”: Aristocrat Restaurants Ltd. v. Ontario, 2003 CarswellOnt 5574, at paras. 18-19.
[12] Leave to amend will only be denied in the clearest of 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: Mitchell v. Lewis, 2016 ONCA 903, 134 O.R. (3d) 524, at para. 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 16; South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.
b. The Causes of Action Against the NHLPA
i. Constructive and/or Wrongful dismissal as against the NHLPA
[13] Although the Statement of Claim is defective in a variety of ways, which I will discuss below, there is no question that reading the claim generously, there is a valid cause of action pleaded against the NHLPA for constructive and/or wrongful dismissal. As set out above, the plaintiff pleads that he was an employee, that the NHLPA failed to accommodate him for workplace injuries he sustained and subjected him to a poisoned work environment in a variety of ways thus constructively and/or wrongfully dismissing him.
[14] This claim is not struck out.
ii. Negligence as against the NHLPA
[15] Paragraph 218 of the Statement of Claim summarizes the alleged basis for the negligence claim against the NHLPA as follows:
a. The NHLPA failed to ensure the proper training of NHLPA employees in contravention of the Occupational Health and Safety Act;
b. The NHLPA failed to ensure the proper training of NHLPA employees as per the requirements in the OHRC,
c. The NHLPA failed to ensure the organization’s policies and procedures adhered to the 2016 amendments to the Occupational Health and Safety Act; specifically, the NHLPA failed to prepare an updated policy on workplace harassment and review said policy annually, as required by section 32.0.1 of the Occupational Health and Safety Act. Furthermore, the NHLPA failed to prepare the policy in writing, to disseminate said policy to all NHLPA employees and post the policy in a conspicuous place in the workplace.
d. The NHLPA failed to investigate workplace injuries in violation of the Occupational Health and Safety Act;
e. The NHLPA failed to investigate the health and safety issues in the server room in violation of the Occupational Health and Safety Act;
f. The NHLPA failed to investigate harassment complaints in violation of the Occupational Health and Safety Act;
g. The NHLPA failed to investigate harassment complaints in violation of the Ontario Human Rights Code;
h. The NHLPA violated the Income Tax Act when fraudulent T4 Forms were prepared by Mr. Sax using the personal Social Insurance Number of Richard Smit on various NHLPA employees T4 Forms including the plaintiff’s;
i. The NHLPA violated the Income Tax Act when they failed to amend the plaintiff’s T4 forms when the plaintiff became aware that someone else’s SIN number was used on three (3) of his previous T4’s for the years 2008, 2009 and 2010 and also failed to provide copies of the plaintiff’s amended T4’s to the plaintiff;
j. The NHLPA violated the Insurance Act when they attempted to deceive RBC Insurance by submitting an application for Long Term Disability benefits for the plaintiff in March of 2019 without the plaintiff’s knowledge or consent after they knew or ought to have known that the plaintiff had been terminated on February 13, 2019 and therefore was no longer legally entitled to LTD benefits;
k. The NHLPA covered up a violation of the Criminal Code of Canada when it failed to advise the Executive Board/NHL Players and took no action against Mr. Frank when he misappropriated large sums of money from the NHLPA in contravention of the Criminal Code of Canada and the NHLPA condoned Mr. Frank’s illegal access of the NHLPA’s email server remotely while he was “on vacation” during the fraud investigation by Ernst & Young; in particular he accessed the documents of the NHLPA’s legal department pertaining to the fraud investigation;
l. The NHLPA violated the Employment Standards Act for failing to provide a ROE within the time prescribed by the Act;
m. The NHLPA violated the Employment Standards Act when it refused to provide the plaintiff with a copy of his personnel file.
[16] It is trite that the elements of negligence are a duty of care, breach of the standard of care, causation and damages. The plaintiff has failed to plead all the elements of negligence and accordingly, this claim is struck out.
[17] The NHLPA argues that leave to amend should not be granted as there are no facts pleaded which could support a reasonable cause of action in negligence against the NHLPA. It argues that a duty of care must be independent of a contractual duty, including one based upon a contract of employment. The NHLPA relies upon the Court of Appeal decision in Piresferreira v. Ayotte, 2010 ONCA 384, 319 D.L.R. (4th) 665, at paras. 47-48, leave to appeal to the SCC ref’d, 2011 2095 (SCC). With respect, the Piresferreira case does not stand for the broad proposition that negligence claims may not be brought by employees against employers.
[18] Piresferreira was an appeal of a trial decision awarding an employee:
a. Damages for wrongful dismissal against her employer;
b. Damages for intentional infliction of mental suffering by her supervisor who yelled at her and assaulted her; and
c. Damages for negligent infliction of mental suffering against both her supervisor and her employer on the basis that they had failed to treat her in accordance with the employer’s Code of Business Conduct. The lower court had based the standard of care on a contractual obligation.
[19] With respect to negligent infliction of mental suffering, the Court of Appeal recognized that there was a relationship of proximity between the employer and the employee and that it was reasonably foreseeable that the employee would experience mental suffering from the supervisor’s abusive management style during her employment. However, policy considerations foreclosed the imposition of a duty of care in that case. Specifically, the Court referred to Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997], 3 S.C.R. 701, where the court rejected a tort for breach of good faith and fair dealing by employers when they dismiss employees because it would be too much of a shift in the law which is better undertaken by the legislature. The Court of Appeal concluded that the duty imposed by the trial judge in this case, which required the employer to take care that the employee did not endure acts that might cause mental suffering during the employment period, was broader than the duty rejected in Wallace and accordingly should also be rejected.
[20] To be clear, the Court of Appeal did not hold that an employer could never be sued by an employee in negligence. Indeed, the court’s analysis confirms that an employer is in a proximate relationship with an employee.
[21] In this case, the plaintiff has not even pleaded negligent infliction of mental suffering—the tort which the Court of Appeal says cannot be raised against an employer. The claim is for negligence simpliciter.
[22] I referred counsel to the case Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148, 101 O.R. (3d) 93, aff’d 2012 ONCA 443, 111 O.R. (3d) 346, leave to appeal refused [2012] S.C.C.A. No. 326 and requested further written submissions on its applicability. In that case, Justice Strathy, as he then was, certified a claim in negligence against the employer in a class action alleging unpaid overtime where the employee had alleged that the employer created a working environment which required employees to work overtime, failed to take reasonable steps to monitor and record their hours, failed to take reasonable steps to ensure that they were properly compensated and imposed unlawful overtime hours. Justice Strathy concluded that the common law duties owed by the employer could be informed by the Canada Labour Code: Fulawka (S.C.), at para. 83.
[23] Although the plaintiff has not technically pleaded negligence properly, it is not plain and obvious that the plaintiff’s claims in this regard are bound to fail and the plaintiff is given leave to amend to set out this cause of action—specifically, that the NHLPA failed to ensure that the workplace complied with the requirements of the OHSA, the OHRC, and otherwise failed to ensure that the workplace was not poisonous: paragraphs 218(a) to (g) of the Statement of Claim only. (The issue of concurrent liability in negligence and tort was not raised before me; the plaintiff would be well-advised to consider the applicability of this issue prior to amending the Claim.)
[24] The facts pleaded in paragraphs 281(h) to (m) are not relevant to the plaintiff’s claim in negligence or otherwise and they are struck out without leave to amend. I discuss the issues raised in these subparagraphs further in the remainder of these reasons.
iii. Statutory Breach as against the NHLPA
[25] There is no nominate tort of statutory breach in Canadian common law: R. v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205.
[26] There are many pleadings in the Statement of Claim wherein the plaintiff alleges breaches of various statutes including the ESA, the OHSA, the Criminal Code, R.S.C. 1985, c. C-46, and the OHRC. As set out above, the allegations that the NHLPA was negligent by failing to take reasonable steps to comply with its obligations to its employees thereby creating a poisoned work environment may be pleaded in the amended claim. Consistent with Fulawka, the NHLPA’s obligations may be informed by the OHSA, ESA or OHRC. In that context, such pleadings may be permissible.
[27] However, the allegations that the NHLPA violated the Criminal Code by failing to report Mr. Frank’s conduct, or the Insurance Act, R.S.O. 1990, c. I.8, by making an alleged fraudulent Long Term Disability [“LTD”] claim on the plaintiff’s behalf after he was terminated, or that it violated the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.) by providing the CRA with an inaccurate SIN number are impermissible attempts to sue for statutory breach. In my view, these are not material to the plaintiff’s claim that the NHLPA’s various breaches of duty created a poisoned work environment, or indeed any of the causes of action pleaded. They are struck out without leave to amend.
iv. Intentional Infliction of Mental Suffering as Against the NHLPA
[28] In Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494, at para. 44, the Court of Appeal confirmed that the tort of intentional infliction of mental suffering is available in the employment context, even though it was not established on the facts of that case.
[29] The elements of intentional infliction of mental suffering are as follows:
a. Flagrant or outrageous conduct;
b. Calculated to produce harm; and
c. Resulting in visible and provable illness: Merrifield, at para. 54 citing Boucher v. Wal-Mart Canada Corp, 2014 ONCA 419, 120 O.R. (3d) 481.
[30] The Statement of Claim does not plead any of the elements of this cause of action as against NHLPA and accordingly this claim is struck out.
[31] The NHLPA argued that leave to amend should be denied as the facts pleaded would not support a claim for intentional infliction of mental suffering. I agree that there is no direct blame for in infliction of mental suffering as against the NHLPA. However, there may be vicarious liability. See my discussion with respect to Mr. Frank below where I have given leave for the plaintiff to amend his claim with respect to intentional infliction of mental suffering with respect to Mr. Frank only.
[32] As such, although a valid cause of action has not yet been pleaded, the plaintiff is given leave to amend with respect to the claim that the NHLPA is vicariously liable for the tort of intentional infliction of mental suffering.
v. Harassment by the NHLPA
[33] The defendants claim that the plaintiff has pleaded a free-standing tort of harassment which is contrary to the Court of Appeal’s finding in Merrifield that no such tort exists.
[34] Although the word “harassment” is used numerous times in the claim, the plaintiff argues that it has not pleaded this as a free-standing tort, but rather that the defendants have violated various provisions of the OHRC by failing to accommodate him for his disability.
[35] Section 5 of the OHRC relates to employment specifically, and reads:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
[36] Superior Courts previously had no jurisdiction in matters involving alleged breaches of the OHRC. However, s. 46.1 of the OHRC now allows a plaintiff to piggy-back a civil claim for violation of the OHRC to a civil action where a valid cause of action has been pleaded against a defendant. It states as follows:
46.1(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
[37] The defendants argue that s. 46.3 of the OHRC prevents the addition of a claim for harassment against an employer to a civil claim against that employer because it prevents findings of vicarious liability against an employer in respect of harassment claims. Section 46.3 provides:
46.3(1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
[38] I agree. In Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, 349 O.A.C. 360 Justice Epstein upheld a default judgement against an employer for both wrongful dismissal and discrimination. In the course of rendering her decision she confirmed at page 68 that because of section 46.3(1), a corporation cannot be held vicariously liable for the acts of its employees, agents or officers for harassment on prohibited grounds pursuant to section 5(2) of the Code.
[39] It is plain and obvious that the Statement of Claim discloses no cause of action for harassment pursuant to section 5(2) of the Code and this claim is struck out without leave to amend. However, the plaintiff may plead harassment in the context of its claim for constructive dismissal as a result of the alleged poisonous work environment.
vi. Discrimination by the NHLPA
[40] Section 5(1) of the OHRC prohibits discrimination with respect to employment based on enumerated prohibited grounds including disability.
[41] In Strudwick, at p. 68, the Court of Appeal confirmed that although an employer could not be vicariously liable for harassment on a prohibited ground, if the employer fails to address harassment suffered by the employee, thus contributing to the creation of a poisoned work environment, the employer may be vicariously liable for discrimination pursuant to section 5(1) of the OHRC:
Section 46.3(1) of the Code provides for the vicarious liability of corporations for the acts of their officers, employees or agents. While a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to harassment, the failure of management to deal with the harassment, thereby creating a poisoned work environment, is a violation under s. 5(1) of the Code for which the corporation can be held vicariously liable: Farris v. Staubach Ontario Inc., 2012 ONSC 3876, 294 O.A.C. 187 (Div. Ct.), at para. 33. Furthermore, if the individual responsible for the harassment is a directing mind of the corporation, then the corporation can also be held liable for the individual acts of harassment: Farris, at para. 33.
[42] Given that I have found that the claim pleads a valid claim for wrongful/constructive dismissal, the plaintiff may be able to “piggy-back” his discrimination on the basis of disability claim to this civil claim pursuant to s. 46.1 of the OHRC.
[43] Although the claim has not been adequately pleaded as the plaintiff has not specifically pleaded discrimination on a recognized ground, it is not plain and obvious that the plaintiff’s claims in this regard are bound to fail and the plaintiff is given leave to amend to set out this cause of action.
c. The Causes of Action Against the Individual Defendants
[44] Before discussing the causes of action brought against the Individual Defendants, I will set out the allegations made against the various Individual Defendants, in summary format, wherever they are referenced in the Statement of Claim:
Michelle Allen
Manager, Human Resources and Administration and later the Manager, Office Administration and Insurance.
SOC
Allegation
31-34, 36-41, 44-47, 79-80, 107, 121
Communications regarding plaintiff’s workplace injuries, disability and request for accommodation, sick leave beginning in 2012
97-98, 101
Ignored requests for accommodation
35, 48, 90, 102
Gave instructions to do tasks which contravened his requested modified workplan
79-80,
108-110
Communications regarding WSIB application. Plaintiff’s complaint is Allen did not clearly tell him that NHLPA was exempt from WSIB
103
Plaintiff refused to do work that did not conform to modified work he requested. Allen began gossip in the NHLPA about plaintiff that was demeaning, untrue and hurtful constituting harassment and a poisoned work environment.
107
Requested permission to work at home for the day so he could attend an appointment with a physiotherapist. Denied and reprimanded.
113
Sent email to Frank indicating she did not want to deal with plaintiff anymore and did not want to provide him any more accommodation.
222
Negligent by failing to ensure that the NHLPA’s policies and procedures adhered to OHSA, failed to investigate injuries and harassment in violation of OHSA, discriminated against a disabled worker in violation of section 5 of OHRC, bullied and harassed plaintiff in contravention of OHSA and OHRC thereby creating a poisoned work environment, retaliated against the plaintiff for his complaint, and wrongfully dismissed the plaintiff.
208
Communications regarding the plaintiff’s LTD claim
81
Gave accommodations to other employees not given to the plaintiff
Tracey Cordeiro
Manager, Agent Certification and Team Tours
SOC
Allegation
42-43
Plaintiff advised her of need for accommodation re office move and received no response
48, 90, 102
Assigned plaintiff tasks which contravened his requested modified work
54-56
During an office move, floor scratched and she yelled at plaintiff and another employee and told them not to bother coming back. Plaintiff complained to Mr. Frank about this harassment.
95-96
Complained about plaintiff when he did not do tasks which violated his work plan. Emailed another employee and said, “This is really sad when someone can’t even push a dolly that wasn’t heavy.”
103
Plaintiff refused to do work that did not conform to modified work requested. Cordeiro began gossip in the NHLPA about plaintiff that was demeaning, untrue and hurtful constituting harassment and a poisoned work environment.
224
Discriminated against plaintiff in violation of OHRC, bullied and harassed plaintiff in contravention of OHSA and ORC, wrongfully dismissed plaintiff
Sandra Monteiro
Chief of Global Business Strategies
SOC
Allegation
62-72
Performance review meeting with Monteiro. Plaintiff complained to her that: 1) he and another employee had been threatened and harassed by Cordeiro during the office move; 2) safety issues in server room reported to Frank.
At no point was there a workplace investigation into safety issues in the server room or harassment complaints as required by the OHSA.
104-106
Requested accommodation from Monteiro who finally granted it on April 20, 2018 in the form of a 4-day work week with no pay on the fifth day. At no time was he offered paid medical leave or advised he could apply for LTD for the Fridays he did not work all of which was routinely offered to other NHLPA employees.
150
Submitted grievance letter to Monteiro copied to Stoykewych setting out history of harassment and unfair treatment of Frank and injuries sustained.
225
Negligent by failing to ensure NHLPA’s policies and procedures adhered to OHSA, failed to investigate workplace injuries and harassment complaints in violation of the OHSA, failed to accommodate plaintiff in violation of OHRC, wrongfully dismissed plaintiff
Stephen Frank
Director, Technology & Security Information Technology
31, 33, 34, 36-41
Communications regarding plaintiff’s workplace injury and need for accommodation
97-98
Ignored requests for accommodation
35, 48, 90, 94, 95, 101-102, 114, 115-121, 159
Gave instructions to do tasks which contravened modified workplan requested
50-53
Assigned him tasks in connection with office move in violation of modified workplan request
56
Plaintiff complained about Ms. Cordeiro’s yelling during office move and Frank said he would take care of it and that she could not terminate them.
57
Plaintiff advised Frank about serious safety issues in server room, e.g. electrocution hazard, high decibel level.
58-61
Frank never address the harassment by Cordeiro or the issues in the server room.
Ultimately the server room flooded twice. Plaintiff was instructed to ensure that high wattage power cables not get wet. Plaintiff refused due to electrocution risks.
73-78
Plaintiff sustained another workplace injury on January 17, 2018 after Frank instructed him and another employee to clean out the server room and move equipment.
79
Reported further workplace injury to Ms. Allen and Mr. Frank
81
Requested permission to work from home when back pain severe and Mr. Frank denied request despite fact other NHLPA employees routinely worked from home. Admonished plaintiff for absenteeism.
82
Plaintiff felt relationship with Frank strained and he was ostracized repeatedly from IT department events.
89
Frank denied his accommodation requests and treated him differently from other routinely accommodated employees
107
Requested permission to work at home for the day so he could attend an appointment with a physiotherapist. Denied and reprimanded.
124
After plaintiff was permitted to work a 4-day work week without pay he was continually harassed by Frank about it.
127-130, 149-150, 154, 174, 175, 184-187
Allegations re irregularities in frank’s purchasing, plaintiff’s complaint, investigation of Frank, and results which was that Frank was permitted to resign and a complimentary email was sent to all staff about him. Plaintiff’s complaint was that Frank was not terminated as he should have been and his theft was never reported. This was devastating to plaintiff because of the “realization that the NHLPA had covered up his conduct”
132-136
After complaint against Frank, plaintiff had his performance review where he was described as below expectations and was at risk of termination. Denied bonus. Plaintiff believes it was a reprisal due to his request for modified work
147-148
Grieved his evaluation with letter to Frank who indicated he would not revise the evaluation.
153
Frank allowed ongoing access to NHLPA server and accessed documents identifying the plaintiff as one of the whistleblowers
155
During investigation of Frank he was required to report to Frank despite ongoing harassment.
156-158
During investigation plaintiff became aware that Frank was creating a new company, GeekFort, that would take over the responsibilities for NHLPA IT department and that plaintiff and Marshall (the two whistle blowers) would be terminated.
159
Plaintiff forced to endure exceptional and constant stress because Frank knew he was whistleblower and NHLPA did not take away Frank’s admin access and plaintiff still reporting to Frank. Plaintiff was advised that Frank had instructed another employee to report movements of plaintiff and Marshall during internal investigation
166
Frank’s contract with NHLPA to take over the IT department of NHLPA meant that plaintiff would continue to be subject to harassment and discrimination by Frank.
173
Frank began acting odd towards the plaintiff and plaintiff became fearful he would be terminated.
191
Frank created a poisoned work environment within the IT department by harassing spying and bullying IT staff and this conduct was condoned
226
Negligent by failing to ensure that the NHLPA’s policies and procedures adhered to OHSA, failed to investigate workplace injuries and harassment complaints in violation of OHSA, discriminated against plaintiff in violation of OHRC, harassed and bullied plaintiff in violation of OHSA and OHRC thereby creating a poisoned work environment and wrongfully dismissed the plaintiff
Mathieu Schneider
Special Assistant to the Executive Director
SOC
Allegation
178
Schneider was “very annoyed that the plaintiff had told this difficult employee that Mr. Frank would not be returning and at a subsequent meeting the week of December 3, 2018, the plaintiff was questioned and admonished about disclosing information about Mr. Frank”
181, 183
Told plaintiff not to tell anyone about investigation into Frank and/or admonished him about his conduct related to this investigation
219
Negligent by failing to ensure the NHLPA’s policies and procedures adhered to the OHSA, failed to investigate workplace injuries and harassment complaints in violation of OHSA, and participated in cover up of Frank’s conduct.
Bullied and harassed the plaintiff in contravention of the OHSA and OHRC creating a poisoned work environment, knew about ongoing harassment of plaintiff.
Various allegations in support of wrongful dismissal and violating of Employment Standards Act by failing to provide notice and severance.
Richard Smit
Chief Financial Officer
SOC
Allegation
179, 183
Told plaintiff not to tell anyone about investigation into Frank and/or admonished him about his conduct related to this investigation
182
Smit sent an email to IT employees to leave negativity at the door.
193-195
Jan 2, 2019 plaintiff sent an email to Mr. Smit advising he would be commencing a medical leave for 1 month and that he would provide a note from his doctor and subsequently sent email to Smit from doctor. Smit replied saying letter not compliant with NHLPA policy and requested further medical letter to confirm he was seeking treatment for health issue related to his medical leave.
220
Violated the CPA Code of professional Conduct of Chartered Accountants, negligent by violating Income Tax Act re use of wrong SIN form, failed to ensure polices an procedures adhered to OHSA, failed to investigate workplace injuries and harassment complaints in violation of OHSA, participated in a cover up of violation of Criminal Code re Frank investigation, bullied and harassed plaintiff in violation of OHSA and OHRC thereby creating poisoned work environment, wrongfully dismissed plaintiff
Roman Stoykewych
Senior Counsel
SOC
Allegation
150
Plaintiff submitted grievance letter to Monteiro copied to Stoykewych setting out history of harassment and unfair treatment of Frank and injuries sustained.
151
Stoykewych writes to plaintiff asking him to refrain from discussing complaint about Frank’s conduct as it could be highly prejudicial to NHLPA.
153
A co-worker of plaintiff (Marshall who was in charge of security) discovered that Frank was accessing NHLPA emails and documents pertaining to the investigation about him which included information identifying plaintiff as whistle blower. Stoykewych admonished Marshall to stop all monitoring and as a result Frank was permitted unrestricted access to all NHLPA emails and documents including legal documents during the internal investigation of Frank.
162
Plaintiff’s legal counsel wrote to Stoykewych advising that NHLPA had failed to respond to plaintiff’s grievance and harassment and concerned about future reprisals, ongoing harassment and possible termination and would be proceeding with action for constructive dismissal
163
Stoykewych sent email to plaintiff’s counsel that 2018 evaluation would be removed from plaintiff’s employment record, as would written warning and he would be permitted to continue 4-day work week.
176
While working on Stoykewych’s password, he stated plaintiff would no longer have to work on his laptop since the network was now secure.
179, 181, 183
Told plaintiff not to tell anyone about investigation into Frank and/or admonished him about his conduct related to this investigation
198
Jan 28, 2019 plaintiff’s lawyer sent letter to Stoykewych advising that he would be filing a claim for constructive dismissal due to poisoned work environment and forcing plaintiff to be complicit in cover up of Mr. Frank’s fraudulent activities and ongoing intimidation and harassment and negligence in handling of his workplace injuries and harassment complaints.
221
As a lawyer was aware of NHLPA’s obligations under the ESA, OHSA and OHRC and violated Rules of Professional Conduct, negligent because he failed to ensure NHLPA’s policies and procedures adhered to the OHSA, failed to investigate workplace injuries and harassment in violation of OHSA, participated in cover up of Frank investigation, violated ESA by failing to provide and ROE and failing to provide copy of personnel file, failed to protect plaintiff from harassment from co-workers and management in violation of OHSA and OHRC thereby creating a poisoned work environment, and wrongfully dismissed the plaintiff
Stephen Sax
Director, Finance
SOC
Allegation
23-28
Irregularities re SIN number given to CRA
127, 129, 130
Plaintiff spoke to Sax about irregularities in Frank’s purchasing.
168-169
Plaintiff was directed by Sax to negotiate a new contract with a different vendor than the vendor used by Frank. New vendor asked many questions about why and plaintiff was forced to cover up Frank’s activities.
Being forced to lie about Frank’s conduct caused him extreme anxiety and depression.
183
Told plaintiff not to tell anyone about investigation into Frank
223
As an accountant violated the CPA Code of Professional Conduct, negligent by violating Income Tax Act when he prepared the T4 forms using the wrong SIN, violated ESA by failing to provide ROE within prescribed times, violated Insurance Act when applied for LTD on behalf of the plaintiff.
i. Constructive and/or Wrongful dismissal as against the Individual Defendants
[45] It is plain and obvious that there are no facts pleaded that support the contention that any of the Individual Defendants were the plaintiff’s employer. In my view, there is no reason to think the plaintiff could provide any amendments which would render these others liable for wrongful and/or constructive dismissal.
[46] This claim is struck out without leave to amend.
ii. Negligence as Against the Individual Defendants
[47] The Statement of Claim does not plead the elements of negligence and accordingly the claim of negligence against the Individual Defendants is struck out.
[48] The defendants argue that leave to amend should be denied because there are no facts pleaded which could support a cause of action in negligence against the Individual Defendants.
[49] The essence of the negligence claims against the Individual Defendants are in respect of how they conducted the affairs of the NHLPA. While there are some variations among the Individual Defendants, in general the plaintiff complains that they failed to ensure that the NHLPA complied with the OHRC, the OSA, and the ESA, failed to put in place policies to ensure that workplace harassment and discrimination claims were dealt with appropriately, failed to appropriately manage the issue surrounding the alleged criminal activities of Mr. Frank, and did not comply with various professional responsibilities in their various areas.
[50] Corporations can only act through officers, directors and employees. In general, they will not face liability for actions taken in the course of their employment. In ScotiaMcLeod v. Peoples Jewellers (1995), 1995 1301 (ON CA), 129 D.L.R. (4th) 711, at p. 721.
[51] For directors, officers and/or employees to be found personally liable for actions taken in the course of their employment the plaintiff must establish that their actions are in themselves tortious or exhibit a separate identity or interest. In Normart Management Ltd. v. West Hill Redevelopment Co (1998), 1998 2447 (ON CA), 155 D.L.R. (4th) 627, at para. 18, the Court of Appeal stated:
It is well established that the directing minds of corporations cannot be held civilly liable for the actions of the corporations they control and direct unless there is some conduct on the part of those directing minds that is either tortious in itself or exhibits a separate identity or interest from that of the corporations such as to make the acts or conduct complained of those of the directing minds.
[52] Courts have typically considered the following questions when addressing whether the actions of the officers and directors “exhibit a separate identity of interest” or are “tortious in themselves”:
a. Are the officers and directors acting on their own behalf as opposed to in the course of their duties as officers and directors? Normart: at para 18
b. Are the officers and directors acting outside their capacity as directors and officers of which they are the directing minds? Normart: at para 18
c. Are the officers and directors acting other than on behalf of and in the interests of the corporation that they control? Normart: at para 18
d. Are the impugned transactions completed in the name of the corporation for its benefit? Normart: at para 18
e. Is there some activity on the part of the officers and directors which takes them out of the role of directing mind of the corporation? ScotiaMcLeod, at p. 721
[53] The plaintiff relied upon a number of cases:
(a) Sataur (Litigation guardian of) v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, 140 O.R. (3d) 307 which involved an established duty of care owed by employees for torts committed during the course of their employment, to their employers’ customers. Specifically, it was a negligence claim against a manager and a Starbucks barista who poured hot coffee on a customer, causing her physical injury;
(b) Halupa v. Sagemedica Inc., 2019 ONSC 7411 and Chruchill v. Aero Auction, [2019] O.J. No. 4, cases where directors were found liable for oppression under the Ontario Business Corporations Act;
(c) Ricchi v. Chippingham Financial Group Ltd., [2017] ONSC 6958, a decision involving productions ordered in a wrongful dismissal and oppression case brought under the Ontario Business Corporations Act.
(d) Ontario Psychological Associates v. Mardonet, [2016] O.J. No. 3920, aff’d [2017] O.J. No. 1028 (C.A.) where a claim against officers and directors was struck out as disclosing no reasonable cause of action, but Justice Lederer said in obiter “It may be that there are circumstances where a director or officer may owe a duty of care to an employee. This might arise where the director or officer was directly implicated and personally involved in decisions or actions which impacted on the safety or treatment of the employee in the workplace.”
[54] In my view, none of the cases cited change the well-established principle that to find an officer or director personally liable, their actions must be themselves tortious or exhibit a separate identity of interest. Apart from Mardonet, which referenced the theoretical possibility of such a duty of care being owed by officers and directors to employees, the plaintiff was unable to refer me to any cases where the courts have determined that officers and directors owe a duty of care to employees with respect to the manner in which they conduct the affairs of a corporation.
[55] In my view, it would be difficult, if not impossible, to demonstrate a separate identity of interest or conduct which is separately tortious to support a negligence claim brought against officers and directors in respect of the way they managed the affairs of a corporation. The standard of care in such an action would be what was reasonably expected of them in their capacity as officers or directors. Therefore, by definition, a negligence action about the way officers and directors managed a corporation could not involve a separate identity of interest or be independently tortious.
[56] In this case, the pleadings set out in the Statement of Claim regarding the Individual Defendants’ alleged negligence are the mirror image of the negligence alleged against the NHLPA and demonstrate that the negligence alleged is in respect of how they did their jobs. See for example, the negligence particulars against Mr. Stoykewich, Senior Counsel with the NHLPA set out in paragraph 221 of the Statement of Claim:
a. He failed to ensure the organization’s policies and procedures adhered to the 2016 amendments to the Occupational Health and Safety Act, specifically the NHLPA failed to prepare an updated policy on workplace harassment, to review said policy annually, as required by section 32.1.0 of the Occupational Health and Safety Act. Furthermore, the NHLPA failed to prepare the policy in writing, to disseminate said policy to all NHLPA employees and post the policy in a conspicuous place in the workplace in violation of Occupational Health and Safety Act; Same as paragraph 218.I.a of the Statement of Claim with respect to NHLPA negligence claim;
b. He failed to investigate workplace injuries in violation of the Occupational Health and Safety Act; Same as paragraph 218.I.d of the Statement of Claim with respect to NHLPA negligence claim;
c. He failed to investigate harassment complaints in violation of the Occupational Health and Safety Act; Same as paragraph 218.I.f of the Statement of Claim with respect to NHLPA negligence claim;
d. He participated in a cover-up of a violation of the Criminal Code of Canada when he failed to advise the Executive Board/NHL Players and took no action against Mr. Frank when he [Mr. Frank] misappropriated large sums of money from the NHLPA in contravention of the Criminal Code of Canada; he condoned Mr. Frank’s illegal access of the NHLPA’s email server remotely while he was “on vacation” during the fraud investigation by Ernst & Young; in particular he permitted Mr. Frank to access the documents of the NHLPA’s legal department pertaining to the fraud investigation; Same as paragraph 218.I.k of the Statement of Claim with respect to NHLPA negligence claim;
e. He violated the Employment Standards Act for failing to provide an ROE within the time prescribed by the Act; Same as paragraph 218.I.l of the Statement of Claim with respect to NHLPA negligence claim; and
f. He violated the Employment Standards Act when he failed to provide the plaintiff with a copy of his personnel file. Same as paragraph 218.I.m of the Statement of Claim with respect to NHLPA negligence claim.
[57] The allegations regarding the alleged cover-up of Mr. Frank’s criminal activity does give me pause—however, in my view, the only relevance of this cover up, even if established, is that it contributed to the alleged poisoned work environment and I am permitting amendments in that regard.
[58] The theory of the plaintiff’s negligence claim against the Individual Defendants set out in the plaintiff’s factum in this motion similarly confirms that the negligence alleged is in respect of how the Individual Defendants managed the affairs of the NHLPA, how they implemented applicable legislative standards and complied with their various professional responsibilities:
Mathieu Schneider
Para 59: “The Claims against him include negligence for breach of duties set out in the Ontario Human Rights Code…”
Richard Smit
Para 60: “The claims against him include professional negligence/breach of fiduciary duty as an accountant bound by the CPA Code of Professional Conduct of the Chartered Professional Accountants of Ontario he had a duty to the plaintiff to ensure his T4’s complied with the Income Tax Act. Negligence for breach of duties set out in the OHSA, breach of duties set out in the Employment Standards Act and breach of duties set out in the Ontario Human Rights Code…”.
Roman Stoykewych
Para 61: Mr. Stoykewych is a lawyer licensed to practice law in Ontario with extensive experience in labour law and as such would have been well aware of the NHLPA’s legal duty to abide by employment laws in Ontario and is bound by the Rules of Professional Conduct of the Law Society of Ontario. The claims against him include professional negligence/breach of fiduciary duty as lawyer, negligence for breach of duties set out in the OHSA, breach of duties set out in the Employment Standards Act and breach of duties set out in the Ontario Human Rights Code…”
Michelle Allen
Para 62: “The claims against her include negligence for breach of duties set out in the OHSA, breach of duties set out in the Employment Standards Act and breach of duties set out in the Ontario Human Rights Code…”
Stephen Sax
Para 63: “The claims against him include professional negligence/breach of fiduciary duty as an accountant bound by the CPA Code of Professional Conduct of the Chartered Professional Accountants of Ontario he had a duty to the plaintiff to ensure his T4’s complied with the Income Tax Act. Negligence for breach of duties set out in the Ontario Human Rights Code, negligence for failing to provide the plaintiff with replacement gift cards, negligence for violation of the Insurance Act for submitting a fraudulent claim for LTD benefits and harassment of the plaintiff thereby creating a poisoned workplace constituting constructive dismissal.”
Tracey Cordeiro
Para 64: The claims against her include negligence for breach of duties set out in the OHSA, breach of duties set out in the Employment Standards Act and breach of duties set out in the Ontario Human Rights Code…”
Sandra Monteiro
Para 65: “The claims against her include negligence for breach of duties set out in the OHSA and breach of duties set out in the Ontario Human Rights Code…”
Stephen Frank
Para 66: The claims against him include negligence for breach of duties set out in the OHSA and breach of duties set out in the Ontario Human Rights Code.”
[59] Finally, I requested supplementary submissions, in part, on this issue after the argument and in these submissions dated September 10, 2010, the plaintiff confirmed that its negligence claim against the Individual Defendants is based upon actions they took in their capacity as officers and directors in managing the NHLPA:
The decisions made by the directors and officers of the NHLPA significantly impacted his safety and caused him significant physical and psychological impairment in their failure to implement and follow proper policies and procedures for health and safety; their failure to conduct a harassment investigation, their failure to protect Mr. Etherington from the ongoing harassment by Mr. Frank and their termination without cause of Mr. Etherington who was a whistleblower.
[60] The plaintiff is seeking to hold the Individual Defendants responsible in negligence for the very same acts it says they caused the NHLPA to take, and for which it claims the NHLPA is thus responsible for in negligence and wrongful/constructive dismissal. In ScotiaMcLeod, at p. 721, Justice Finlayson explained:
Considering that a corporation is an inanimate piece of legal machinery incapable of thought or action, the court can only determine its legal liability by assessing the conduct of those who caused the company to act in the way that it did. This does not mean, however, that if the actions of the directing minds are found wanting, that personal liability will flow through the corporation to those who caused it to act as it did.
[61] In all of the allegations in the Statement of Claim, the factum, the Responding Motion Record and the plaintiff’s supplementary submissions, there nothing that establishes a separate identity of interest or conduct which is separately tortious. There is no pleading or claim that the Individual Defendants were acting on their own behalf, outside the scope of their duties or which suggests that the Individual Defendants were acting other than on behalf of the NHLPA, in their capacity as officers, even if ultimately that conduct may be found to be wanting.
[62] I acknowledge that leave to amend should usually be given. However, given the extremely lengthy, detailed and particularized statement of claim which appears to set out all the plaintiff’s interactions with the Individual Defendants throughout the years, the 425 page Responding Motion Record, and the supplementary submission dated September 10, 2020 which still does not identify any facts which would support a negligence claim against the Individual Defendants, there is no reason to suppose that the plaintiff could add anything else which would support a negligence claim against the Individual Defendants.
[63] This claim is struck out and leave to amend is denied.
iii. Intentional Infliction of Mental Suffering
[64] As set out above, the elements of the tort of intentional infliction of mental suffering are:
a. Flagrant or outrageous conduct;
b. Calculated to produce harm; and
c. Resulting in visible and provable illness: Merrifield, at para. 54
[65] Courts have found that conduct qualifies as “flagrant and outrageous” if it consists of “glaring and notorious false communication” (Piresferreira, at para. 70) or acts of harassment that were “so extreme and insensitive that they constituted a reckless and wanton disregard for the health of the plaintiff” and could be characterized as “almost sadistic” (Pinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474, at para. 60), or if the defendant “belittled, humiliated and demeaned” the plaintiff “continuously and unrelentingly, often in front of co-workers” (Boucher, at para 50).
[66] Under the second element of the test, the plaintiff has a high burden and must be proved to have caused a “visible and provable illness” in the plaintiff, such as abdominal pain, constipation and weight loss resulting from stress, (Boucher, at para. 53), or sufficient emotional upset to result in increased blood pressure, significant weight gain, and increased diabetes symptoms (Pinzo, at para. 62).
[67] Most of the allegations against the Individual Defendants concern their decisions regarding the plaintiff’s request for accommodation and assignment of duties which contravened accommodations which he requested. There are some claims that the plaintiff was gossiped about (para. 103, Cordeiro and Allen), yelled at on one occasion (para. 55, Allen), admonished for absenteeism (para. 82), questioned and admonished about disclosing information relating to the investigation of Mr. Frank (paras. 178-179, Schneider), and one instance where one of the Individual Defendants said she refused to work with the plaintiff as he was unpleasant (para. 113, Allen).
[68] With the exception of Mr. Frank, there are no facts asserted in the very detailed claim that supports the contention that any of their conduct was sufficiently flagrant or outrageous or calculated to produce harm, in accordance with the case law above.
[69] The situation with Mr. Frank may be different. Mr. Frank was the Manager of the IT department who the plaintiff reported to. He is central to all the plaintiff’s claims and indeed in para. 150 the plaintiff pleads that ultimately he submitted a grievance to the NHLPA outlining the history of harassment and unfair treatment he had endured from Mr. Frank. The plaintiff reiterates in para. 169 that it was Mr. Frank’s conduct which is one of the main reasons he is disabled and that it is Mr. Frank’s conduct that caused the plaintiff extreme anxiety and depression. See also para. 187.
[70] Additional, specific facts pleaded are:
a. Mr. Frank denied requests that the plaintiff work from home due to his back pain even though other employees were allowed to (para. 81);
b. Mr. Frank was ostracizing the plaintiff from the rest of the IT department (para. 82);
c. Mr. Frank treated the plaintiff different than other employees routinely offered accommodation (para. 89);
d. Mr. Frank repeatedly ordered the plaintiff to do things in contravention of his modified workplan causing him further physical injuries (e.g. para. 94, 102, 116, 117, 118, 119);
e. Mr. Frank gave the plaintiff a bad performance review as a reprisal for his having requested accommodation (para. 132-136);
f. After the plaintiff alerted the NHLPA to alleged criminal activities of Mr. Frank, Mr. Frank had continued access to the NHLPA server and the details of the investigation (para. 153); accordingly, Mr. Frank knew the plaintiff was the whistleblower, asked other employees to report his movements (para. 159), treated the plaintiff differently because of this (para. 173).
[71] In my view, although the tort has not been adequately pleaded it is not plain and obvious at this stage that it is bound to fail and the plaintiff should be given an opportunity to plead this tort as against Mr. Frank, given the current pleading and the alleged centrality of Mr. Frank’s role.
[72] However, in my view, given the breadth of the allegations in the Statement of Claim, the absence of any additional facts in the factum, the submissions of counsel, the Respondent’s Motion Record and the Supplementary submissions dated September 10, 2020, there is no reason to believe that the plaintiff could add any facts which would support a reasonable cause of action for intentional infliction of mental suffering by the other Individual Defendants.
[73] This claim as against the other Individual Defendants is struck out without leave to amend.
iv. Harassment by the Individual Defendants
[74] First, there is no basis for a harassment claim pursuant to the OHRC against the Individual Defendants and accordingly, all such claims are struck out.
[75] I have given the plaintiff leave to amend his claim to assert a claim for intentional infliction of mental suffering as against Mr. Frank. As such, he may be able to piggy-back alleged OHRC violations relating to harassment by Mr. Frank to the civil claims asserted and he is given leave to amend to plead this.
[76] The plaintiff may not assert any harassment on the basis of disability claims against the other Individual Defendants as there is no other reasonable cause of action pleaded against them and accordingly, he cannot piggy-back any harassment claim to the civil action: see s. 46.1 of the OHRC.
[77] Note that general pleadings of harassment are permitted provided they relate to the alleged poisonous work environment and the constructive/wrongful dismissal claim.
v. Discrimination by the Individual Defendants
[78] Given that there is no properly pleaded claim that the other defendants were the plaintiff’s employer, there is no tenable claim for discrimination in employment by these other defendants. However, as noted above, pursuant to s. 46.3(1) of the Code the NHLPA will be vicariously liable for any acts of the other defendants with respect to the alleged discrimination in the plaintiff’s employment.
[79] There is no reason to suppose that the plaintiff could add anything to improve this claim given the breadth of the pleading before me and the claim is struck out without leave to amend.
vi. Fraud and Rules of Professional Conduct
[80] In paragraphs 1(g)(vii), 23-28, 208-210, 218(I)(h-i), 220 (II)(a), 223(II)(a-b), and 1(g)(viii), 2018(I)(j), and 223(II)(e), the plaintiff makes various claims in respect of breaches by the Individual Defendants of their rules of professional conduct and “income tax fraud” and “insurance fraud” by the Individual Defendants (and the NHLPA).
[81] There is no basis for any cause of action by the plaintiff against any of the defendants in respect of these and there is no reason to suppose that the plaintiff could add anything which would improve this claim. These claims are struck out without leave to amend.
d. The Overall Claim Against the Individual Defendants
[82] As set out above, there are no facts pleaded which support a reasonable cause of action against the Individual Defendants but I have granted leave to the plaintiff to amend his claim to attempt to plead intentional infliction of mental suffering against Mr. Frank. The problem with the pleadings regarding the other Individual Defendants is not simply a case of failing to technically plead the elements of causes of action – although that is a problem throughout the claim. The problem is that with respect to all Individual Defendants but Mr. Frank, the underlying facts pleaded do not support causes of action. Again, given the complexity of the pleading and the fact that it recounts in detail many years of the plaintiff’s interactions with them, the factum and submissions, the Responding Motion Record and the September 10, 2020 supplementary submission, there is no reason to suppose that the plaintiff could add anything else.
[83] Accordingly, the claim as against the Individual Defendants, except for Mr. Frank, is struck out without leave to amend and I am granting judgment dismissing the case against them pursuant to Rule 21.01(1)(b).
[84] Note that the plaintiff may still plead material facts, relevant and concise facts related to the actions of the Individual Defendants which are a part of his story and for which he has pleaded vicarious liability.
e. The Cause of Action against AXIS
[85] The plaintiff has named “AXIS Insurance” as a defendant in this action. The only facts pleaded are set out in paragraphs 87 to 89 where he pleads that after his employment ended, he was advised by the NHLPA that his case against it would be referred to its liability insurer, AXIS.
[86] The plaintiff has advised that if leave is granted to file an amended claim, he will seek declaratory relief as against AXIS.
[87] The plaintiff has cited the court’s decision in Williams, v. Pintar, 2014 ONSC 1606, 119 O.R. (3d) 447, a decision of Master Roger where he permitted an amendment to add an insurer as a party. This case arose in the motor vehicle accident context where there are special rules which permit the addition of an insurer as a party. In Williams, the insurer had taken the position that it would deny coverage if the plaintiff was successful against the defendant and it made sense for the insurer to be a party so that all issues in dispute could be resolved in one decision. In my view, this case is not relevant.
[88] Pursuant to the Rules 30.02(3) and 31.06(40), the plaintiff will be able to obtain disclosure of details of the amount of money available under the insurance policy and any conditions affecting its availability.
[89] The plaintiff has not set out any facts which support a separate cause of action against Axis and there is no reason to suppose that the plaintiff could add anything which would alter this given the breadth of the pleading. The claim against AXIS is struck out without leave to amend and I am granting judgment dismissing the case against it pursuant to Rule 21.01(1)(b).
f. Proposed New Amendments to plead Breach of Fiduciary Duty and Defamation
[90] The plaintiff indicated in its factum that it intends to amend its pleading to plead breach of fiduciary duty and defamation. The defendants complain that the plaintiff has not articulated with any clarity what these proposed amendments will look like.
[91] I was not referred to any specific case law on breach of fiduciary duty or defamation and After the motion, I forwarded to the parties decision of Justice Lederer in Ontario Psychological Association v. Mardonet, 2016 ONSC 4528, 132 O.R. (3d) 750 , aff’d 2017 ONCA 183 where he reviewed the law of fiduciary obligations owed by directors and officers and struck out a claim for breach of fiduciary duty against officers and directors.
[92] Given the pleading before me, I have serious concerns that there is any basis for these claims.
[93] I am neither granting leave nor dismissing any request for leave given nothing that has been placed before me about the nature of the proposed pleadings. Pleadings are not closed and pursuant to Rule 26 the plaintiff may amend his pleading without leave as long as the amendment does not include or necessitate the addition or substitution of a party to the action. Given that I have struck out the case against all Individual Defendants except Mr. Frank, without leave to amend, the plaintiff will need to bring a motion if any of these proposed amendments require the addition of the other Individual Defendants.
g. Declaratory Relief Claimed
[94] In his claim for relief, the plaintiff requested six declarations but ultimately consented to the elimination of all but the following:
(b) A Declaration that Don Fehr, the Executive Director of the NHLPA and the officers of the NHLPA violated section 32 of the OHSA for failing to ensure that the organization complied with the Act and regulations.
[95] Section 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the Superior Court of Justice may make binding declarations of right, whether or not any consequential relief is or could be claimed.
[96] In Williams, at para. 25, Master Roger described the court’s jurisdiction to make declaratory orders as follows:
Judges have broad jurisdiction to make declaratory orders. If a substantial question exists which one person has a real interest to raise, and the other to oppose, then a judge has jurisdiction to resolve it by a declaration: Canada v. Solosky, 1979 9 (SCC), [1980] 1 S.C.R. 821, at 8. As indicated by Justice Dickson at page 8 of Canada v. Solosky:
Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a “real issue” concerning the relative interests of each has been raised and falls to be determined.
[97] The defendants argue that the claim for declaratory relief should be struck on the basis of Godin v. Sabourin, 2016 ONSC 770. Godin was a dispute between two neighbours over the location of a fence. The Applicant sought the following:
A) A declaration that the applicant was not required to maintain the artificial grade of the respondent’s property;
B) A declaration that the respondents were responsible for maintaining the grade of their property;
C) A declaration that the maintenance of the fence on the respondent’s property was their responsibility;
D) A declaration that the fence belonging to the respondents be relocated entirely on their property.
The issues in that case were moot by the time of the hearing as the fence built by the respondents on the property of the applicant was removed except for posts which were underground.
[98] In the context of that case, the court refused declaratory relief because the declarations sought would serve no useful purpose and related to matters well settled in the caselaw. As I will explain, Godin is distinct from the present case.
[99] First, the decision in Godin was not made as a result of a motion to strike, but was a final decision made upon a full record. Given the discretionary nature of declaratory relief, in my view, it is premature to determine that the declaration sought would serve no useful purpose or would not be granted as a remedy. Furthermore, the declaration sought in paragraphs 1(b) is not merely declaratory of prospective rights or obligations; nor does it amount to a declaration affirming well settled rights and obligations. Rather, the declaration sought relates to an alleged breach of statute which is not in itself actionable, but forms part of the basis for the plaintiff’s constructive dismissal, negligence, discrimination and harassment claims. In the words of the Supreme Court of Canada in Solosky, it relates to “real issues” concerning the relative interests of the parties, which have been raised and will be determined in this action.
[100] In my view it is not plain and obvious that the plaintiff would not be entitled to declaratory relief in paragraph 1(b); however, the declarations sought must be particular to the plaintiff and not drafted as broadly as it is. Leave to amend to this declaration particularized to the plaintiff is granted.
h. Should the Statement of Claim be struck in its entirety?
i. The Law Applicable to Rule 25
[101] Rule 25 of the Rules of Civil Procedure sets out detailed rules applicable to pleadings and there is comprehensive body of case law discussing the various ways that pleadings may be defective.
[102] A recent summary of applicable legal principles provided by Beilby J., in Sachedina v. De Rose, 2017 ONSC 6560, at paras. 16-22, is pertinent to this case:
The purpose of pleadings is three-fold: (i) to define or clarify the issues; (ii) to give notice of the case to be met and the remedies sought; and (iii) to apprise the court as to what is in issue (Somerleigh v. Lakehead Region Conservation Authority[,] 2005 CarswellOnt 2546, para. 5).
A careful draftsman will distil the essence of an event to plead what occurred when it is legally significant or material to the case (Somerleigh, para. 12).
Embellishment adds length to a pleading without adding substance (Somerleigh, para. 23).
Argument is not to be included in a pleading (Somerleigh, paras. 27 - 30).
Irrelevancies obscure the issues (Somerleigh, para. 35).
A pleading is intended to provide a reader with the skeleton, rather than a fully fleshed out body detailing the events (Mudrick v. Mississauga Oakville Veterinary Emergency Professional Corp. 2008 CarswellOnt 6682, para. 21).
Where pleadings do not comply with the Rules, the remedy is to move to strike under Rule 25.11 on the grounds that what is alleged may prejudice or delay the fair trial of the action, or where it is scandalous, frivolous or vexatious or where it constitutes an abuse of process (Mudrick, para. 26).
[103] In Cerqueira v. Ontario, 2010 ONSC 3954, at para. 11, Justice Strathy, as he then was, set out the following principles applicable to pleadings:
(a) the purpose of pleadings is to give notice of the case to be met, to define the matters in issue for the parties and for the court, and to provide a permanent record of the issues raised: 1597203 Ontario Limited v. Ontario, 2007 21966 (ON SC), [2007] O.J. No. 2349; Aristocrat Restaurants v. Ontario, [2003] O.[J]. No. 5331 (S.C.J.) at para. 15; Somerleigh v. Lakehead Region Conservation Authority, 2005 CarswellOnt 3546 (S.C.J.) at para. 5;
(b) the causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material: CIT Financial Ltd. v. Sharpless, 2006 CarswellOnt 3325;
(c) every pleading must contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved: rule 25.06; this includes pleading the material facts necessary to support the causes of action alleged;
(d) a party is entitled to plead any fact that is relevant to the issues or that can reasonably affect the determination of the issues, but it may not plead irrelevant, immaterial or argumentative facts or facts that are inserted only for colour: Williams v. Wai Ping, [2005] O.J. No. 1940 (S.C.J.), aff’d [2005] O.J. No. 6186 (Div. Court.); George v. Harris, [2006] O.J. No. 1762 (S.C.J.);
(e) allegations that are made only for the purpose of colour or to cast a party in a bad light, or that are bare allegations, are scandalous and will be struck under rule 25.11(b): Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.);
(f) the court may strike part of a pleading, with or without leave to amend, on the grounds that (a) it may prejudice or delay the trial of an action, (b) it is scandalous, frivolous or vexatious, or (c) it is an abuse of the process of the court: rule 25.11;
(h) any fact that can affect the determination of rights between the parties can be pleaded, but the court will not permit facts to be alleged that are immaterial or irrelevant to the issues in the action: Toronto (City) v. MFP Financial Services Ltd. [2005] O.J. No. 3214 (S.C.J.);
(i) allegations of fraud, misrepresentation, negligence and conspiracy must be pleaded with particularity: Lana International Ltd. v. Menasco Aerospace Ltd. 1996 7974 (ON SC), [1996] O.J. No. 1448.
[104] There are a number of problems with the Statement of Claim, and in my view the appropriate order is an order striking the entire Statement of Claim with leave to file an amended claim.
[105] In this section I outline examples of the types of pleading that are improper. I have not gone through the process of itemizing each and every paragraph, or parts of paragraphs that offend the rules of pleading, only the ones set out below that obviously do, which cannot be cured and which should not be reflected in the amended claim. This does not mean that there are not other aspects of the claim which I have not specified which are problematic.
[106] At this stage, given that the plaintiff has been given leave to amend to better set out some of the causes of action asserted, there is some lack of clarity in my mind in respect of which pleadings will ultimately be impermissible evidence as opposed to fact, how much information is too much and which conversations are material. What appears immaterial in this Statement of Claim may enjoy new significance once the plaintiff has properly pleaded the reasonable causes of action. I am giving the plaintiff leave to file a fresh Statement of Claim with the expectation that the plaintiff will comply with the rules of pleading by taking into account the particular and general concerns set out in these reasons when drafting the new pleading and that he will ensure that it is a concise pleading of material facts.
ii. Irrelevant/Immaterial Facts
[107] Given that I have struck out the case against all the Individual Defendants except Mr. Frank, without leave to amend, pleadings related to them should be omitted from the amended pleading unless they are part of the narrative of what happened and there is something material to the case against the NHLPA or Mr. Frank.
[108] The following additional areas of pleading are irrelevant or immaterial; these facts, even if established, could not reasonably affect the determination of the issues in this action:
a. Paras. 23-28 provide particulars of the plaintiff’s concern that the SIN number the NHLPA was using for him was inaccurate and had to be corrected.
b. Paras. 109-112 outline attempts made by the plaintiff to obtain WSIB benefits which were not possible since the NHLPA was exempt from WSIB as a labour organization under the employer classification manual published by the WSIB.
c. Paras. 208-215 outline the NHLPA’s submission of an application for Long Term Disability made by the NHLPA to RBC Insurance on his behalf after he was terminated. The plaintiff pleads that this constituted “insurance fraud” and attempted deceit of the insurer. Even if true, it is unclear as to how this provides a cause of action for the plaintiff against the defendants, in particular since it occurred after the plaintiff was terminated.
iii. Failure to Set out a Concise Pleading of Material Facts and Pleading of Evidence
[109] The Statement of Claim comprises 232 paragraphs over 62 pages.
[110] I agree with the defendants that the claim is not a concise pleading of material facts. It recounts in minute detail all of the alleged interactions which the plaintiff had with the defendants. There are too many references to specific emails which seem to set out all the exchanges which the plaintiff had with the defendants about his disability and modified work plan over many years. There are detailed references to medical reports and visits with his physicians substantiating his disability. There are detailed references to emails he received from other employees complimenting his work which the plaintiff has agreed to delete. I agree that it “goes well beyond setting out material facts [and] contains page after page of evidence…It is a ‘fleshed out body’, not a ‘skeleton’”: Sachedina, at para. 46.
iv. Scandalous/Prejudicial Facts
[111] The statement of claim references NHLPA’s past conduct as well as the illegal activities of a former officer of the NHLPA who was terminated for fraud/misappropriation, decades before the plaintiff became employed with the NHLPA.
[112] In my view, all pleaded facts that relate to the alleged history of corruption of the NHLPA prior to the plaintiff’s employment with the NHLPA are scandalous. Even if there is some minor relevance, the prejudicial value significantly outweighs the probative effect: Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd., 2008 ONCA 644, 92 O.R. (3d) 347, at para. 15.
v. Pleadings Related to the Poisoned Work Environment
[113] There is a significant amount of the pleading devoted to the way other employees were treated and what the plaintiff refers to as “machinations” between the directors and officers, and/or alleged illegal conduct which he says contributed to a poisoned work environment. The defendants object to these on the basis that they are scandalous and only inserted to cast the NHLPA in a bad light, akin to bad character evidence. See for example paras. 160-161, 170-172, 185 and 192.
[114] In response, the plaintiff argues that pleading facts related to other employees and the way in which the NHLPA operated are relevant to its claim that the workplace was poisonous and rife with systemic misconduct, thus constituting similar fact evidence which may be pleaded. The plaintiff also asserts that such pleadings are relevant to his claim for punitive damages.
[115] Similar facts may be pleaded as long as the added complexity arising from the pleading does not outweigh the potential probative value: Dosanjh v. Maple Leaf Sports, 2016 ONSC 8005, at para. 29, citing Garwood Financial Ltd. v. Wallace (1997), 1997 12276 (ON SC), 35 O.R. (3d) 280 (Gen. Div). In Dosanjh, at para. 33, Master Short outlined the following principles applicable to pleading motions involving alleged similar fact evidence:
a. If similar facts will be material to a portion of the claim including punitive damages, they may be pleaded in order to give fair notice that they will form part of the discovery and will be part of the case at trial;
b. Similar facts that are mere evidence and are not in themselves material facts should not be pleaded as doing so offends Rule 25.06(1);
c. Similar facts that are not material and are irrelevant should be struck pursuant to Rule 25.11(b) as scandalous, frivolous or vexatious but even relevant similar facts may be struck out under Rule 25.11(a) if they will prejudice or delay the fair trial of the action.
d. Even in those cases where the similar facts are relevant and material, they should not be permitted if the added complexity arising from their pleading does not outweigh their potential probative value.
[116] In Hudson v. Linamar Corp., 2010 ONSC 7248, Flynn J. dismissed a motion to strike, accepting that similar fact evidence could be pleaded. In that case, the plaintiff alleged that the employer had an unwritten policy and procedure of disposing of employees who had or were likely to have considerable risk for increased costs under its benefits plan and that the employee had been terminated in accordance with this plan in violation of the OHRC. Justice Flynn held as follows, at paras. 15-16:
In my view, the allegations relating to similar treatment of two other employees are proper. While they will inevitably complicate and lengthen the litigation process in this case, in comparison with a case where no such allegations exist – a "garden variety" wrongful dismissal case – I am satisfied that the similarities should be provable without an unduly prolonged inquiry that the added complexity does not outweigh the probative value.
I agree with the Plaintiff that the impugned paragraphs create the context for lending credence to the potential breach of the Human Rights Code. The alleged pattern of conduct, derived from the combination of facts in the two previous incidents, can lead to inferences giving full context to the termination meaning.
[117] In my view, some of the objected to pleadings (in particular those setting out bullying and harassment of other employees as in paras. 170-172) could constitute similar fact evidence which may be pleaded, and the defendants have not demonstrated that there would be any significant complexity arising from such pleading. While the defendants object, arguing that the plaintiff has not fulfilled the requirements for similar fact evidence, the pleadings stage is not the time to argue that issue. In Dosanjh, at para. 32, the court referenced the decision in Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214, at para. 29, where the court held:
The point of this brief foray into the law of evidence is to underscore that the precise nature of the evidence and the ruling on admissibility is a matter for trial. These are not matters to be argued at the pleading stage when the action is only broadly sketched out and neither side is expected to commit to its list of trial witnesses. It is inappropriate to try to predict at a pleading stage what the trial judge will admit or what evidence will ultimately be necessary. Put another way, the fact that similar facts are not pleaded will not necessarily prevent discovery of similar facts or preclude the trial judge from admitting similar fact evidence. On the other hand if similar facts are material to an allegation or to a conclusion of law, fairness is best served by allowing them to be plead.
[118] As such, pleadings related to other employees are not inappropriate. It is unclear how the plaintiff could establish its allegation of a “poisoned work environment” without pleading some acts related to the way in which the NHLPA operated and treated its staff in general. In my view, the probative value of such facts in this case outweighs the prejudicial effect.
[119] Unfortunately, many of such pleadings contain both acceptable and unacceptable pleadings. For example, para. 191 reads:
- Mr. Hyslop and Mr. Frank created a poisoned work environment within the IT department at the NHLPA by harassing, spying on and bullying IT staff and their inappropriate conduct was condoned by the NHLPA. As an example, Mr. Hyslop was discovered to have used Mr. Frank’s work pass for unauthorized access to the server room on a Friday evening after Mr. Frank had been terminated. The NHLPA took no action against Mr. Hyslop or Mr. Frank for the unauthorized use of Mr. Frank’s work pass and Mr. Hyslop’s unauthorized access to the server room after hours (this information was set out in detail in the CGI Report including surveillance pictures.) [Emphasis added]
[120] The first part of para. 191 is a concise pleading (which I have set out in in bold) which pleads facts in support of the plaintiff’s claim of a poisoned work environment. However, the remainder contains evidence and irrelevant facts. It is not clear to me how the issue of what happened to Mr. Frank’s work pass after he was terminated is material at all to this case.
[121] Many of the pleadings in the Statement of Claim simply go too far in the same way as para. 191.
[122] For example, the statement of claim also contains a very lengthy discussion of the plaintiff’s complaint about Mr. Frank, the investigation and the plaintiff’s role (paras. 153-187). The defendant asserts that this has only been included to cast the NHLPA in a bad light. While I agree that the pleadings on this issue are not concise and contain many irrelevant and immaterial details, the plaintiff’s real complaint is that the way in which the NHLPA conducted the investigation, insisting that the plaintiff continue to report to Mr. Frank who he had already made complaints about, and who knew he was the whistle blower, and allegedly making the plaintiff lie about what was happening, contributed to the poisoned work environment. Unfortunately, these paragraphs are a mix of material facts, immaterial facts and evidence.
[123] In conclusion, pleadings related to the alleged poisonous environment which the plaintiff was subjected to including alleged illegal acts committed by other employees, officers and directors of the NHLPA are permissible in the amended pleading but they must be amended to remove immaterial facts, evidence and irrelevancies. This is not an opportunity for the plaintiff to conduct investigations into everything the NHLPA may have allegedly done to other employees and assert this in the amended pleading. For it to constitute something that created a poisonous work environment for the plaintiff, it must be something that he knew or saw or experienced at the time which had a negative impact on him. Further, the plaintiff must set out a concise pleading of material facts and how these facts relate to the causes of action pled, without pleading evidence.
[124] The plaintiff should be judicious in ensuring only relevant, material facts are pleaded. The plaintiff is cautioned that failing to take this into account in the amended pleading may result in a further motion to strike and there may be cost consequences.
i. Should the responding motion record filed by the plaintiff be stuck or expunged from the court record?
[125] No evidence is admissible on a motion to strike out a pleading on the ground that it discloses no cause of action: Rule 21.01(2)(b).
[126] The plaintiff delivered an 87-tab, 430 page responding motion record attaching various documents referred to in the Statement of Claim such as his employment contract, emails, the plaintiff’s T4’s, his job description, communications with the WSIB, grievance letter and medical reports from his doctor. He argues that these documents form part of the Statement of Claim as they are referred to therein.
[127] For a document to be properly considered as forming part of a pleading, it is not enough that it has been referenced in the statement of claim; it must “form an integral part of the plaintiff’s claim” or of the “factual matrix of the statement of claim”: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 419, at para. 32.
[128] In my view, the only document referred to in the statement of claim that is integral to his cause of action is his employment contract.
[129] However, the defendants have given me no authority for the proposition that I may make an order expunging it from the court record.
j. The request for case management?
[130] In its factum the plaintiff requests an order that this case be case managed pursuant to Rule 77.05(4). The plaintiff asserts that the action is complex, with multiple causes of action and multiple defendants and it is appropriate for this case to be assigned. The defendant objects to the substance as well as the form of the request.
[131] Criteria for whether to assign a proceeding for case management are set out in Rule 77.05(4). The Rules provide, at 77.05(2):
77.05(2) At any time on or after the filing of the first defence in a proceeding to which this Rule may apply, a regional senior judge or, subject to the direction of a regional senior judge, any judge or case management maser may assign the proceeding for case management under this Rule,
(a) on his or her own initiative; or
(b) on the request of a party or on a motion if the court requires it.
[132] The motion must be brought to the Regional Senior Judge pursuant to the Practice Direction: “Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region”, (July 1, 2015), at Part II: Requests for Assignments to Case Management – Rule 77.05. Further, pleadings have not closed and in my view it is premature to assign this matter to case management.
Conclusion
[133] The Statement of Claim is struck in its entirety and the plaintiff is given leave to file a fresh statement of claim in compliance with these reasons within 45 days of the date of these reasons. For clarity, the following chart sets out specifics with respect to each cause of action challenged and my conclusions on general areas of pleading which the defendant objected to.
Constructive and/or Wrongful Dismissal Claim against NHLPA
Reasonable cause of action pleaded.
Constructive and/or Wrongful Dismissal Claim against Individual Defendants
No reasonable cause of action pleaded and no leave to amend
Negligence as against NHLPA
No reasonable cause of action pleaded. Leave to amend to set out elements and better particularize granted
Negligence as against Individual Defendants
No reasonable cause of action pleaded. Leave to amend denied.
Intentional Infliction of Mental Suffering Against NHLPA
No reasonable cause of action pleaded. Leave to amend granted.
Intentional Infliction of Mental Suffering as against all defendants
No reasonable cause of action pleaded. Leave to amend granted only with respect to Mr. Frank
Harassment as against NHLPA
No reasonable cause of action pleaded. Leave to amend denied
Harassment as against Individual Defendants
No reasonable cause of action pleaded. Leave to amend granted only with respect to Mr. Frank.
Discrimination as against the NHLPA
No reasonable cause of action pleaded. Leave to amend granted.
Discrimination against the Individual Defendants
No reasonable cause of action pleaded. Leave to amend denied
The Claim against the Individual Defendants
Struck out and dismissed as against all Individual Defendants except Mr. Frank. Action dismissed against all Individual Defendants except Mr. Frank
Claim against Axis
No reasonable cause of action pleaded. Leave to amend denied. Action dismissed.
Declarations Sought
Not struck. Leave to amend to better particularize granted with respect to declarations sought in paragraph 1(b) particularized to the plaintiff and omitting references to the Individual Defendants against whom the action is struck.
Breach of fiduciary duty
Plaintiff must bring a motion to amend if it will result in the addition of any parties.
Defamation
Plaintiff must bring a motion to amend if it will result in the addition of any parties.
Paragraphs 109 to 112 regarding plaintiff’s entitlement to WSIB
Not material and not to be included in amended pleading
Paragraphs 208 to 215 regarding plaintiff’s application for long term disability
Not material and not to be included in amended pleading
Pleadings regarding the history of the NHLPA before the plaintiff was employed including Alan Eagelson
Scandalous/Prejudicial and not to be included in amended pleading
Pleadings related to alleged poisoned work environment including similar facts
Permitted in amended pleading
Responding motion record
Not struck.
Pleadings detailing compliments received by plaintiff on his work
Struck on consent
[134] In the end, the case that remains and which the plaintiff may plead in the amended claim is for constructive/wrongful dismissal against the NHLPA, negligence against the NHLPA, intentional infliction of mental suffering against Mr. Frank and vicarious liability for same against the NHLPA, and piggy-backed claims under the OHRC against the NHLPA for discrimination pursuant to section 5(1) and against Mr. Frank for harassment pursuant to section 5(2).
[135] If the parties cannot agree on costs, the defendant may submit a request for costs within 15 days of receipt of these reasons, followed by costs submissions by the plaintiff 15 days thereafter. Cost submissions shall not be longer than 5 pages.
[136] I am seizing myself of this matter for any future pleadings motions subject to my availability on the civil list.
Papageorgiou J.
Released: September 25, 2020
BETWEEN:
ALLAN ETHERINGTON
Plaintiff (Respondent)
– and –
NATIONAL HOCKEY LEAGUE PLAYERS’ ASSOCIATION (NHLPA), AXIS INSURANCE, MATHIEU SCHNEIDER, RICHARD SMIT, ROMAN STOYKEWYCH, MICHELLE ALLEN, STEPHEN SAX, TRACEY CORDEIRO, SANDRA MONTEIRO, and STEPHEN FRANK
Defendants (Applicants)
Papageorgiou J.
Released: September 25, 2020