BARRIE COURT FILE NO.: CV-20-65-00
DATE: 2020-10-07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicola Clare MacLean, Plaintiff
AND:
National Carwash Solutions, 265732 Canada Inc., d/b/a MacNeil Wash Systems, Trivest Fund IV, LP, Trivest Fund IV-A, LP, Trivest Partners IV, LP, AEA Investors LP, AEA Funds, Defendants
BEFORE: Madam Justice A.A. Casullo
COUNSEL: N. MacLean, Self-Represented Plaintiff
S. Dukesz, for the Defendant 2657732 Canada Inc. d/b/a MacNeil Wash Systems
HEARD: September 18, 2020
RULING ON MOTION
A - Introduction
[1] The defendant, 2657732 Canada Inc. d/b/a MacNeil Wash Systems (the “Moving Party”), seeks an order striking, without leave to amend, the Plaintiff’s Fresh Fresh as Amended Statement of Claim (the “Second Fresh Claim”) under rules 21.01(1)(b), 21.01(3)(d), and 25.06(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] The Plaintiff, Nicola Clare MacLean (“Ms. MacLean”) and her husband, Paul MacLean (“Paul”), were previously employed by the Moving Party and National Carwash Solutions (“NCS”). Ms. Maclean and Paul were terminated on separate occasions, and each litigated their terminations. Ms. MacLean’s litigation was settled in June 2018, pursuant to Minutes of Settlement that are pleaded in the Second Fresh Claim. Paul’s litigation was settled in May 2019, pursuant to a settlement agreement, also pleaded in the Second Fresh Claim. Both the Minutes of Settlement and the settlement agreement were therefore properly before the Court, having been incorporated into and relied upon in the pleading: McDowell and Aversa v. Fortress Real Capital Inc., 2017 ONSC 4791, at para. 47.
[3] Pursuant to Ms. MacLean’s affidavit sworn September 14, 2020, it appeared she would be seeking an adjournment of the motion on the three grounds. First, on the basis that the court would not accept her unsworn material, which issue was resolved prior to the hearing. Second, on the basis that Paul had launched a Law Society of Ontario complaint against Mr. Dukesz and Mr. Kreaden, counsel for the Moving Party. And third, to allow Ms. MacLean an opportunity to retain counsel. At the outset of the hearing, Ms. MacLean advised that she was no longer seeking an adjournment, and was confident moving forward with the motion.
B - Procedural Background
[4] There were two claims prior to the Second Fresh Claim: the original Statement of Claim issued January 14, 2020 (which was not before the court), and the Fresh as Amended Statement of Claim (“First Fresh Claim”), served January 20, 2020 (which was before the court). In both the First Fresh Claim and the Second Fresh Claim, Ms. MacLean seeks $25 million in damages.
[5] In response to the First Fresh Claim, the Moving Party served Ms. MacLean with its Notice of Motion in February 2020. The motion, initially returnable June 19, 2020, was rescheduled to September 18, 2020 due to COVID-19 court closures. The Moving Party served Ms. MacLean with its Factum on September 9, 2020, again in response to the First Fresh Claim. On September 14, 2020, just four days prior to the hearing, Ms. MacLean served the Moving Party with a Response to Motion and Factum dated September 14, 2020, which appended the Second Fresh Claim. Ms. MacLean’s written material confirmed she amended her claim to address the deficiencies in the First Fresh Claim, as detailed in the Moving Party’s Factum.
[6] Counsel for the Moving Party helpfully prepared a Chart outlining the causes of action pled by Ms. MacLean. In the First Fresh Claim, damages were sought for: (i) abuse of process; (ii) breach of contract; (iii) inducing breach of contract; (iv) negligent misrepresentation; (v) fraudulent misrepresentation; (vi) conspiracy; (vii) bad faith; (viii) abuse of power; (ix) injurious falsehood; (x) invasion of privacy; (xi) intentional interference with economic relations; (xii) and intentional infliction of mental suffering. Ms. MacLean also alleged breach of trust and a breach of her Charter rights.
[7] In addition, Ms. MacLean sought declaratory and injunctive relief, punitive and exemplary damages, interest and costs on a substantial indemnity basis.
[8] The Second Fresh Claim deleted the following causes of action: abuse of power; injurious falsehood; invasion of privacy, intentional interference with economic relations; intentional infliction of mental suffering. She also appears to have withdrawn her allegations in respect of breach of trust and breach of her Charter rights. Ms. MacLean added a new cause of action – intentional negligence – to the Second Fresh Claim, resulting in a total of eight causes of action being advanced.
C - Paul MacLean Litigation
[9] While irrelevant to the motion to strike, elucidation of the status of Paul’s settlement agreement provides important context to Ms. MacLean’s lawsuit.
[10] Paul was dismissed for misappropriation of confidential information. Pursuant to the terms of his settlement with the Moving Party and NCS, Paul was to sign a statutory declaration (“Declaration”) confirming that he no longer had confidential information in his possession. The settlement agreement also provided that the Moving Party and NCS could choose to retain a third-party forensic investigator to verify the statements in the Declaration. The Declaration confirmed that the only devices Paul would have had the opportunity to store confidential information on were a Toughbook, a laptop, and a tablet (the “Devices”).
[11] If the forensic investigator was unable to complete the investigation due to any limitations imposed by Paul, the settlement would be of no force and effect.
[12] The Moving Party and NCS did retain a forensic investigator. However, Paul physically burned the Devices (while not clear how, likely by fire) before handing them over to the investigator, rendering it impossible for the investigator to determine (a) whether they were indeed the Devices; or (b) whether any confidential information contained thereon had been transferred to another computer or electronic device.
[13] In response, the Moving Party and NCS took the position that the settlement could not be completed, as there was no way to confirm that Paul no longer had access to the confidential information. There were efforts to try and salvage the situation, however. Given that Paul was continuing to communicate with the Moving Party and NCS via email, and thereby had access to computers, Paul was told they would consider completing the settlement if he permitted the forensic investigator to examine any devices he had regular access to in his home. This included Ms. MacLean’s devices, and it is at this point that Ms. MacLean became involved, albeit peripherally, in Paul’s negotiations.
[14] The Moving Party and NCS knew full well they had no legal right to require that Ms. MacLean provide access to her electronic devices. However, they were firm that if the forensic investigator was not permitted to inspect her devices, Paul’s settlement would remain off the table. The upshot of this would see the Moving Party and NCS moving for default judgment on their $10 million lawsuit against Paul (he had previously been noted in default), scheduling the sentencing portion of Paul’s contempt motion,[^1] and scheduling the within motion to strike.
[15] The essence of Ms. MacLean’s claim is that by demanding to review her electronic devices, the defendants breached the terms of the Minutes of Settlement, which had concluded all matters between Ms. MacLean, the Moving Party, and NCS.
[16] In addition, Ms. MacLean believes the real reason the defendants wanted access to her devices was to tie up loose ends surrounding a document they wanted, but had failed to obtain from her, before resolving her litigation in 2018.
D - Discussion and Analysis
Applicable Rules
[17] Rule 25.06(1) provides that every pleading shall contain a precise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. These facts must be sufficient to identify the issue in dispute, allowing the defendant to respond without resorting to speculation: Soilmec North America v. D’Elia, 2011 ONSC 5214, at para 26.
[18] Rule 25.06(8) provides that where fraud, misrepresentation, breach of trust, malice, and intent are alleged, the pleading shall contain full particulars. This is to ensure that bald allegations are not permitted even at this early stage of the action: Resolute Forest Products Inc. et al. v. 2471256 Canada Inc., 2014 ONSC 3996, at para. 14(2).
[19] The full particulars required by r. 25.06(8) must set out precisely each allegation of wrongful conduct and the “when, what, by whom and to whom” of the alleged misconduct:” Balanyk v. University of Toronto, 1999 14918 (Ont. Sup. Ct.), at para. 28.
[20] Rule 25.06(9) requires that the pleading specify the amount of damages claimed in respect of each cause of action and, where there are multiple defendants, the Plaintiff must specify which defendants are the subject of which claims for damages, as well as the quantum of any such claim.
[21] Pursuant to r. 21.01(1)(b), a court may strike out a pleading on the ground that it discloses no reasonable cause of action.
[22] A motion to strike should be granted where it is “plain and obvious” that the pleading discloses no reasonable cause of action. This test is met where: (i) the plaintiff pleads allegations that do not give rise to a cause of action; (ii) the plaintiff fails to plead a necessary element of a cause of action; or (iii) the allegations in the pleading are conjecture, assumptions, or speculation unsupported by material facts: Graff v. Network North Reporting and Mediation, 2017 ONSC 7451, at paras. 24-26.
[23] The “plain and obvious” test sets a high hurdle for a r. 21.01(1)(b) motion to succeed, as it is only when a claim is certain to fail that it should be struck out: Resolute Forest Products, at para 14(3).
[24] The judge must accept the pleaded allegations of fact as proven, unless they are patently ridiculous or incapable of proof: Canada (Attorney General) v. Inuit Tapirisat of Canada, 1980 21 (SCC), [1980] 2 S.C.R. 735.
[25] The pleading is to be read generously with allowances for mere drafting deficiencies: Salehi v. Professional Engineers Ontario, 2014 ONSC 3816, at para. 17.
[26] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial: Knight v. Imperial Tobacco Ltd., 2011 SCC 42, at para. 19.
[27] Where a pleading is struck as defective, leave to amend should only be denied when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: Mitchell v. Lewis, 2016 ONCA 903, at para. 21.
[28] In a similar vein, unless it is clear that the plaintiff cannot improve her case by any further and proper amendment, the usual practice is to grant leave to amend: Fournier Leasing Company Ltd. v. Mercedes-Benz Canada Inc., 2012 ONSC 2752, at para. 46.
[29] What follows is an examination of the causes of action plead in the Second Fresh Claim. Damages, a component of each cause of action, is addressed immediately thereafter.
Abuse of Process, Paragraphs 61-64
[30] The elements of this tort that must be set out in a pleading are: (i) the plaintiff is a party to a legal process initiated by the defendant for the predominant purpose of furthering some indirect, collateral, and improper objective; (ii) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (iii) some form of monetary damage resulted: Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, at paras. 27-28.
[31] None of these constituent elements are present in the claim. Ms. MacLean’s allegations in support of abuse of process include that the defendants had an ulterior motive in attempting to gain access to her computer devices and personal data. There are no particulars plead that could lead the court to find that Ms. MacLean is a party to a legal process which the defendants initiated to further an improper objective.
[32] The best that can be said is the defendants have made it a condition of finally resolving Paul’s litigation that the forensic investigator be permitted to examine Ms. MacLean’s electronic devices. This appears to be the direct result of Paul’s actions, not a legal proceeding initiated to facilitate access, and does not amount to an abuse of process.
[33] The pleading in abuse of process must be struck.
Breach of Contract, Paragraphs 37-41
[34] To succeed on this cause of action, Ms. MacLean must plead (i) the relevant terms of the contract in question, including which terms were breached; (ii) the conduct giving rise to the breach; and (iii) the damages flowing therefrom: Nanra v. NRI Legal Services, 2017 ONSC 4503, at para 19.
[35] Ms. MacLean pleads that by repeatedly demanding access to her personal data and devices, the defendants are in breach of the Minutes of Settlement, and damages resulted.
[36] The Second Fresh Claim sets out that the Minutes of Settlement are a binding contract, providing for full and final resolution between Ms. MacLean and the defendants. The terms of the Minutes of Settlement relied upon by Ms. MacLean are:[^2]
• The parties affirm and agree that apart from the Action there are no claims, complaints or actions initiated by each other and ongoing against each other and/or by the Company Released Parties (as defined below), and further affirms that they have no ongoing claim or complaint against each other, and/or/by the Company Released Parties in connection with the allegations involved in or relating to the Action; and
• The parties affirm and agree that they will not disparage or make any public comments about either party, and will not take any action which could reasonably be expected to adversely affect the person or professional reputation of the company or any of the Company Released Parties.
[37] However, the pleading does not contend that either of these terms have been breached. Ms. MacLean has not said the defendants have initiated any claims, complaints or actions against her. Nor is there an allegation that the defendants have disparaged Ms. MacLean, or taken any action which could reasonably be expected to adversely affect her.
[38] The negotiations that Ms. McLean is concerned about have nothing to do with her, and were taken by the defendants in respect of Paul only. While Ms. MacLean has become marginally involved in light of Paul’s decision to burn the Devices, the defendants’ request to inspect her electronic devices is not in breach of the terms of the Minutes of Settlement.
[39] The pleading in breach of contract cannot stand and must be struck.
Inducing Breach of Contract, Paragraphs 42-48
[40] The elements of this cause of action include: (i) a contract between the plaintiff and a third party, of which the defendant was aware; (ii) actions by the defendant which intended to, and did, procure a breach of said contract by the third party; and (iii) the plaintiff suffered damages as a result: Persuad v. Telus Corporation, 2017 ONCA 479, at para. 26.
[41] Not only has Ms. MacLean failed to plead that there is a third-party contract which the defendants have taken steps to procure a breach of – in point of fact there is no third-party contract. Ms. MacLean alleges the defendants are in breach of the Minutes of Settlement. The Minutes of Settlement are not a third-party contract and, as established above, they have not been breached.
[42] The pleading in respect of inducing breach of contract must be struck.
Negligent Misrepresentation, Paragraphs 54, 59
[43] A claim for negligent misrepresentation requires that (i) there was a duty of care based on a special relationship between the plaintiff and the defendant; (ii) the representation made was untrue, inaccurate, or misleading; (iii) the defendant made the representation negligently; and (iv) in relying on the misrepresentation, the plaintiff suffered damages: Kaynes v. BP, PLC, 2019 ONSC 6464, at para 21.
[44] Ms. MacLean asserts that the defendants misrepresented themselves when they claimed that the only way to complete Paul’s settlement was with “access, review, and retention of the Plaintiff’s personal and private information and property.”
[45] This is a fundamentally defective basis for a plea of misrepresentation. The defendants’ condition that the forensic investigator review her personal devices before concluding Paul’s settlement is a negotiation tactic, not a misrepresentation. Ms. MacLean might argue it is an unreasonable condition, but it cannot be said that it was a representation made to her, and upon which she relied to her detriment.
[46] Further, there is no special relationship between the defendants and Ms. MacLean vis-à-vis Paul’s litigation or settlement. The defendants owed no duty of care to Ms. MacLean while negotiating a resolution with Paul.
[47] The pleading in respect of inducing breach of negligent misrepresentation must be struck.
Fraudulent Misrepresentation, Paragraphs 54-59
[48] The essential elements of fraudulent misrepresentation are: (i) that the defendant made a false representation of fact; (ii) that the defendant knew the statement was false, or was reckless as to its truth; (iii) that the defendant made the representation with the intention that the plaintiff would act on it; (iv) the plaintiff did act on the representation; and (v) the plaintiff suffered damage as a result: Parna v. G&S Properties Limited, 1970 25 (SCC), [1971] S.C.R. 306, 1970 CarswellOnt 208, at paras. 22-26.
[49] The defendants made no false representation, or indeed any representation to Ms. MacLean, with or without the intent to deceive her, and upon which she relied to her detriment.
[50] The pleading in respect of inducing breach of fraudulent misrepresentation must be struck.
Conspiracy, Paragraphs 53-60
[51] Civil conspiracy in Canada is comprised of related but distinct categories. The first category, predominant purpose conspiracy, requires that a plaintiff demonstrate (i) the defendants agreed to act together; (ii) with the predominant purpose of causing injury to the plaintiff; and (iii) damage to the plaintiff resulted: Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381, at para. 24.
[52] The second category, unlawful means conspiracy, requires that a plaintiff must demonstrate (i) the defendants acted in concert, whether by agreement or with a common design; (ii) the defendants’ conduct was unlawful; (iii) the defendants’ conduct was directed toward the plaintiff; (iv) the defendants should have known that injury to the plaintiff was likely to result; and (v) the plaintiff suffered a resulting injury: Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, at para. 26.
[53] The difference between the two categories can be found in the purpose of the defendants’ acts, as stated in Powell v. Shirley, 2016 ONSC 3577, at para. 67:
In the first situation, the plaintiff must prove that the predominant purpose of the defendants was to injure the plaintiff. In the second situation, it must be shown that the defendants’ unlawful conduct was directed toward the plaintiff, that the defendants should have known in the circumstances that injury to the plaintiff would be likely, and that the plaintiff did in fact experience injury as a result.
[54] The core of Ms. MacLean’s conspiracy argument is that the defendants collaborated in a joint effort, structuring their settlement with Paul with the ultimate goal of gaining access to her personal electronic devices. This was so because “they were desperate to retrieve the fraudulent government documents…used to terminate Mr. MacLean whilst employed with National Carwash Solutions, and ensure their final destruction.”
[55] Ms. McLean does not specify whether the claim is based on predominant purpose conspiracy or unlawful means conspiracy. However, viewed through either lens, the claim has no reasonable chance of success. Ms. MacLean has failed to demonstrate that the defendants acted with a co-ordinated effort, each aware of the relevant facts, and each intending to participate. Viewed through either lens, this claim has no reasonable chance of success. There is no allegation that the predominant purpose of the defendants’ conspiracy was to injure Ms. MacLean, nor does the Second Fresh Claim identify any unlawful conduct perpetrated by the defendants.
[56] Conspiracy is an intentional tort and a serious allegation, and courts have held that the material facts must be plead with “heightened particularity”: Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, at para. 25.
[57] In addition, the pleading must demonstrate what each individual did to further a claim for conspiracy. Simply painting all defendants with the same brush and alleging they conspired is insufficient: Ontario Consumers Home Services, at para. 26.
[58] The pleading in respect of conspiracy fails to allege material facts and must be struck.
Bad Faith, Paragraphs 49-52
[59] There are no elements of a cause of action to set out here, as the law does not recognize a stand-alone action for bad faith: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para. 78.
[60] In the event Ms. MacLean intended to advance instead a breach of good faith, she would be required to plead sufficient particulars to demonstrate: (i) what facts gave rise to the duty of care; and (ii) the manner in which the defendants are in breach of that duty: Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 6761 (ON SC), 12 O.R. (3d) 750, [1990] O.J. No. 589 (H.C.), at para. 17.
[61] Ms. MacLean pleads that there was “an existence of a duty to not act in bad faith and honour the terms of the Settlement Agreement [Minutes of Settlement] they have with the Plaintiff and owed a duty to the Plaintiff of such.”
[62] She alleges that the defendants “flagrantly” disregarded the terms of the Minutes of Settlement when they “harassed, threatened, intimidated and attempted to coerce her both directly and indirectly through her husband in an effort to gain access to the Plaintiff’s personal information and property…”
[63] The claim for bad faith must be struck out. Further, as Ms. MacLean has not made out the essential elements of a breach of good faith, that cause of action, if intended, also cannot stand.
Intentional Negligence, Paragraphs 65-70
[64] There are no elements of a cause of action to set out here, as the tort of intentional negligence does not exist: Asghar v. Avepoint Toronto, 2015 ONSC 5164, at para. 4.
[65] Ms. MacLean contends that once the Minutes of Settlement were entered into, the defendants owed her a legal duty to abide by its terms. By demanding her participation in Paul’s settlement, the defendants were in breach of this duty, and Ms. MacLean suffered damages as a result.
[66] The language employed by Ms. MacLean might lead the court to surmise she intended to plead negligence against the defendants. The elements of a negligence claim are: (i) the defendant owes a duty to the plaintiff; (ii) that duty was breached; and (iii) that damage has resulted from the breach: Powell, at para. 50.
[67] If this was Ms. MacLean’s intention, the claim in negligence must fail. Even on a generous reading of the pleading, Ms. MacLean has not plead facts which would satisfy each of the elements of negligence. While the pleading claims that the defendants owed Ms. MacLean a duty of care, no allegations of fact are offered in support of this duty.
[68] The pleading in respect of intentional negligence, and/or negligence, must be struck.
Damages
[69] The First Fresh Claim alleged only that Ms. MacLean was entitled to damages reflecting all monetary harm caused by the defendants’ unlawful actions.
[70] In its Factum, the Moving Party contended that Ms. MacLean’s damages were improperly plead. The Second Fresh Claim thus added a new section, in which Ms. MacLean alleges she suffered damages as a result of the defendants’ “control, threats and intimidation directly against her, and indirectly against her through her husband.”
[71] In addition to seeking damages for the eight causes of action, Ms. MacLean claims she has suffered, and continues to suffer, inter alia, injury to her character and good reputation, loss of income and loss of opportunity, and loss of reasonable enjoyment of life. For these injuries Ms. MacLean seeks damages for disruption of her business, services and affairs, and costs to enforce the Minutes of Settlement.
[72] Ms. MacLean submits she sustained “aggravated damages consisting of mental distress, inconvenience, and psychological injury as a result of having his [sic] employment terminated without any notice whatsoever.”
[73] Finally, Ms. MacLean seeks punitive, aggravated and exemplary damages for the defendants’ “malicious, high-handed, callous, illegal and arrogant conduct.”
[74] In Farrell v. The General of the Salvation Army, 2011 ONSC 317, at para. 33, Justice Allen confirmed that a damage claim “cannot just be pulled from thin air.” Instead, a plaintiff must particularize their damages, and delineate the nexus between the impugned conduct and those damages. Further, a plaintiff must set out the amount claimed for each cause of action.
[75] Each of the causes of action claimed by Ms. MacLean require that she plead the damages suffered as a result of the defendants’ conduct. The Second Fresh Claim falls woefully short of this. Damages have not been particularized, and no connection has been made marrying the conduct of the defendants to said damages. Further, it appears the $25 million claim has been plucked out of the air.
[76] The failure to properly plead damages is not a defect that can be cured with better drafting. The core of Ms. MacLean’s complaint is that the defendants attempted to gain access to her devices by exercising their rights under Paul’s settlement. However, the mere request to access personal devices pursuant to a written agreement cannot be said to have resulted in any damages to Ms. MacLean.
E - Leave to Amend
[77] In all instances Ms. MacLean’s claim falls well below the standard of a proper pleading. As noted at the outset, denying a party the right to correct deficiencies in a pleading are rare, and leave to amend should be granted in all but the most obvious of cases.
[78] In Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at para. 33, the Supreme Court of Canada sets out the test for when a statement of claim should be dismissed:
Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).
[79] As Brown J.A held in Brozmanova v. Tarshis, 2018 ONCA 523, at para. 25:
The focus of the motion is the substantive legal adequacy of the claim or defence. The essence of the motion is that the defendant’s wrongdoing as described in the statement of claim is not a violation of the plaintiff’s legal rights, with the result that the plaintiff is not entitled to a remedy even if he or she were able to prove all that material facts set out in the statement of claim.
[80] In oral submissions, Ms. MacLean maintained that most of her causes of action were viable.[^3] She believed she had addressed the deficiencies set out in the Moving Party’s Factum in the Second Fresh Claim, by including elements of the causes of action, and by delineating her damages. If this was not the case, she asked for the opportunity to amend her pleading one more time.
[81] While I am loath to drive any plaintiff “from the judgment seat,” it is plain and obvious to me that the Second Fresh Claim discloses no reasonable cause of action. The claim is devoid of necessary material facts and, on its face, is incompatible with the causes of action plead. Even allowing for deficiencies in drafting because Ms. MacLean is a self-represented litigant, there is no reason to suppose that Ms. MacLean can improve her cause with a fourth amendment.
[82] Accordingly, I grant the Moving Party’s motion. Ms. MacLean’s Second Fresh Claim is hereby struck, without leave to amend.
F – The Parties Affected by this Ruling
[83] Mr. Dukesz represents only the Moving Party. There is conflicting information as to whether the remaining defendants have been properly served.
[84] Following the hearing I sought clarification from both parties regarding the status of the action against NCS and Trivest Fund IV, LP, Trivest Fund IV-A, LP, Trivest Partners IV, LP, AEA Investors LP, and AEA Funds (the “Trivest/AEA Defendants). Mr. Dukesz submits it would be contrary to the principle of proportionality to strike a defective claim for the benefit of the moving party, but require the other defendants, if they are ever served, to bring their own motion to address the same defects. Ms. MacLean submits that it would be procedurally wrong to come to a determination without knowing what the parties’ desired outcome would be.
[85] Of the named defendants, only the Moving Party and NCS are signatories to the Minutes of Settlement. The allegations levelled against the two of them are indistinguishable. Just as the causes of action fail against the Moving Party, so too should they fail against NCS, and the causes of action against NCS shall be struck.
[86] The Trivest/AEA Defendants are neither named parties to Ms. MacLean’s or Paul’s litigation, nor are they parties to either settlement. Their only connection to Ms. MacLean is that they were named as released parties in both documents. Their inclusion as released parties, however, created no obligations under those agreements.
[87] Contrary to Ms. MacLean’s position that the Trivest/AEA Defendants are liable for the conduct of the Moving Party and NCS, and thus proper parties to the action, there is simply no basis in law to include them in the action. Accordingly, the causes of action against the Trivest/AEA Defendants are also struck.
G – Costs
[88] At the conclusion of the hearing, the Moving Party provided its Costs Outline, and I entertained costs submissions. The Moving Party seeks costs on a substantial indemnity basis of $39,755.41, or $26,833.08 on a partial indemnity basis.
[89] The Moving Party submits this is a significant claim, with serious allegations. It was forced to expend significant resources to bring this motion, including addressing causes of actions which were ultimately abandoned, and facing a reframed Second Fresh Claim requiring an expedited review and response prior to the motion.
[90] Given its belief that Ms. MacLean’s claim is frivolous, vexatious and an abuse of process, the Moving Party submits this is the type of claim where, should the Court see fit to strike without leave to amend, substantial indemnity costs should be awarded.
[91] In reply, Ms. MacLean submits that she only issued her action in response to the defendants’ failure to ignore her multiple pleas to “cease and desist” including her in their negotiations with Paul. In Ms. MacLean’s words, had the defendants paid heed, and stopped demanding access to her electronic devices, “we wouldn’t be here today.”
[92] While Ms. MacLean’s claim is struck without leave to amend for disclosing no cause of action, I do not believe substantial indemnity costs are warranted. I have not determined that her claim is frivolous, vexatious or an abuse of process. However, given a $25 million claim for damages, and the importance of the issues to the defendants, Ms. MacLean should have anticipated the lawsuit would be vigorously defended.
[93] Pursuant to s. 131 of the Courts of Justice Act, the Court has broad discretion when determining the issue of costs. The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by the actual costs incurred by the successful party: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[94] To the Moving Party’s credit, this motion was brought at an early stage in the proceeding, prior to statements of defence being filed, or examinations for discovery conducted. In all the circumstances, in particular considering the principle of proportionality, I find that an appropriate costs award from Ms. MacLean to the Moving Party is $17,500.
Casullo J.
Date: October 7, 2020
[^1]: On February 20, 2020, Justice Chalmers found Paul in contempt of Cavanagh J.’s April 30, 2019 Order prohibiting him from disclosing confidential information. The sentencing portion was to be heard at a later date.
[^2]: Terms taken directly from the Minutes of Settlement; the Second Fresh Claim misquotes these provisions.
[^3]: The causes of action delineated by Ms. MacLean are: breach of contract, inducing breach of contract, negligent misrepresentation, fraudulent misrepresentation, conspiracy, bad faith, and negligence.