COURT FILE NO.: CV-20-83613-CP

DATE: 2020/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

OMEAD SAIER

Plaintiff

– and –

THE OTTAWA HOSPITAL

Defendant

Self-represented

Porter Heffernan, for Defendant

HEARD: October 1, 2020

RULING on motion

CORTHORN J.

Introduction

[1] Omead Saier was employed by the Ottawa Hospital (“the Hospital”) as a Registered Nurse on a full-time basis from June 2016 to January 2017 and, thereafter, on a part-time basis until August 2018.

[2] The Ontario Nurses Association (“the Union”) is the exclusive bargaining agent for Registered Nurses, among others, employed by the Hospital. Mr. Saier was a member of the relevant bargaining unit throughout his employment with the Hospital. The employment relationship between the parties was governed by a series of local and central collective agreements (“the Agreements”). The Agreements include a grievance and an arbitration procedure.

[3] In May 2020, Mr. Saier commenced this action by having a statement of claim electronically issued (“the Pleading”). Mr. Saier claims against his former employer for damages of approximately $3,350,000. Mr. Saier divides his claims into four categories and provides a title for each category:

• Tort of Ruining Reputation/Defamation (defendant and third-party harassment);

• Tort of Psychological Injury and Human Rights Violation;

• Tort of sexual harassment and verbal assault[^1]; and

• Tort of Personal Injury and Hate Crimes.

[4] The Pleading is 18 pages long and comprised of 52 paragraphs. There are three introductory paragraphs (including the prayer for relief), a conclusory paragraph, and 48 substantive paragraphs. In the conclusory paragraph, Mr. Saier summarizes his claims as follows:

The Ottawa Hospital exploited Mr. Saier and when he resisted the abuse, the Ottawa Hospital exercised abuse of power as they committed hate crimes, harassed and promoted violence against Mr. Saier. Mr. Saier studied for years, worked hard and took his profession seriously. The management of the Ottawa Hospital’s conduct has ruined Mr. Saier’s reputation and are liable for his injuries.

[5] In response to the Pleading, the Hospital brings this motion for an order dismissing the action. The defendant submits that, for one or more of the following reasons, the action should be dismissed:

• All matters related to Mr. Saier’s employment are within the jurisdiction of a labour arbitrator and, therefore, not within the jurisdiction of the court;

• The Pleading discloses no reasonable cause of action that would, if established, entitle Mr. Saier to damages; and/or

• The Pleading is frivolous, vexatious, and/or an abuse of process.

[6] In support of its position on the motion, the Hospital relies on the terms of the Agreements. Specifically, the Hospital relies on the Central Collective Agreement and the Local Collective Agreement, both of which (a) are between the Hospital and the Union, and (b) have an expiry date of March 31, 2018. It is undisputed that the terms of the Agreements relevant to the Hospital’s position on the motion were in effect at all times material to Mr. Saier’s claims against the Hospital.

[7] The Hospital submits that the majority, if not all, of the claims advanced relate to Mr. Saier’s workplace. The Hospital points to Article 3 of the Central Collective Agreement, titled “Relationship”. The introductory paragraph to that Article is as follows:

The parties agree that a safe workplace, free of violence and harassment, is a fundamental principle of a healthy workplace. Commitment to a healthy workplace requires a high degree of cooperation between employers, employees, physicians, and the Union. Nurses should feel empowered to report incidents of disruptive behaviour, including physician behaviour, without fear of retaliation. The parties are both committed to a harassment free environment and recognize the importance of addressing discrimination and harassment issues in a timely and effective manner …

[8] Responding to the motion, Mr. Saier describes the claims advanced as five per cent related to a toxic work environment at the Hospital and 95 per cent falling outside the scope of the Agreements. Mr. Saier submits that the claims advanced fall within the meaning of a “reasonable cause of action”: r. 21.01(b) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194. He submits that, because his claims have a chance of succeeding, he should be permitted to pursue the action to its conclusion.

[9] Before turning to the substantive issues on the motion, I wish to address the grounds for the motion and the extent to which the court is permitted to consider evidence on the motion.

Grounds for and Evidence on the Motion

a) The Grounds

[10] The Hospital brings the motion under rr. 21.01(1)(b), 21.01(3)(a), (d), and 25.11(b), (c). To succeed under r. 21.01(b), the Hospital must satisfy the court that the Pleading discloses “no reasonable cause of action”. With respect to the motion under r. 21.01(1)(b), the Hospital is not entitled to rely on any evidence: r. 21.01(2)(b).

[11] For the Hospital to succeed under r. 21.01(3), it must demonstrate that the court “has no jurisdiction over the subject matter” of Mr. Saier’s action [r. 21.01(3)(a)] or that “the action is frivolous or vexatious or is otherwise an abuse of process of the court” [r. 21.01(3)(d)]. There is no prohibition against relying on evidence in support of a motion under these subrules.

[12] Lastly, the Hospital relies on r. 25.11. In the context of the Rule governing pleadings, the court has the discretion to “strike out or expunge all or part of a pleading or other document, with or without leave to amend” for one or more of several specific reasons. The Hospital submits that the reasons to strike the entirety of the Pleading include that it is “frivolous or vexatious” [r. 25.11(b)] and/or “an abuse of the process of the court” [r. 25.11(c)]. There is no prohibition against relying on evidence in support of a motion under r. 25.11.

b) The Evidence

[13] Mr. Saier did not file any evidence on the motion. The only evidence for the court to consider under rr. 21.01(3) and 25.11 is that delivered on behalf of the Hospital. That evidence consists of a single affidavit from Sarah Lapointe, an associate with the law firm by which the Hospital is represented (“the Lapointe Affidavit”).

[14] The Lapointe Affidavit is six paragraphs long. The first paragraph is introductory and includes no substantive evidence. The final paragraph identifies that the Lapointe Affidavit is sworn in support of the Hospital’s motion “and for no improper purpose”. That paragraph does not include substantive evidence, is superfluous, and reflects an antiquated form of affidavit evidence. Conclusory paragraphs of that kind are no longer expected or the norm.

[15] In the four substantive paragraphs, Ms. Lapointe,

• describes the Hospital (para. 2),

• reviews Mr. Saier’s employment with the Hospital (para. 3),

• describes the Union and Mr. Saier’s membership in it (para. 4), and

• attaches copies of the Agreements as a single exhibit (para. 5).

[16] At para. 3, Ms. Lapointe says, “I have been informed that the Plaintiff is a former employee of the Defendant”. Ms. Lapointe does not identify the source of that information. I note that in the second sentence of the introductory paragraph, Ms. Lapointe says that where she identifies matters to be based on “information and belief [she believes] them to be true”.

[17] The portion of the Lapointe Affidavit based on information and belief does not comply with the requirements for evidence on a motion. It is not sufficient to state only that evidence is based on information received. The source of the information must be specified in the affidavit: r. 39.01(4).

[18] The deficiency in the evidence upon which the Hospital relies is with respect to a subject-matter that is not in dispute. The periods of Mr. Saier’s full-time and part-time employment with the Hospital described in the Lapointe Affidavit accord with those set out in the Pleading.

[19] For that reason and several others, it is reasonable to overlook the evidentiary deficiency in para. 3 of the Lapointe Affidavit. The other reasons include that (a) Mr. Saier’s claim is based on his status as an employee of the Hospital, and (b) Mr. Saier did not file any evidence contradictory to the Lapointe Affidavit. In addition, I consider r. 1.04, which mandates that the Rules be liberally construed “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

c) Summary

[20] The court is entitled to rely on the Lapointe Affidavit, in its entirety, for the portions of the motion under rr. 21.01(3)(a), (d) and 25.11(b), (c). For the reasons set out in para. 10, above, for the motion under r. 21.01(1)(b), the court is not entitled to consider Ms. Lapointe’s evidence.

The Issues

[21] On the return of the motion, the Hospital relied primarily on the submission that the matters raised in the Pleading are within the exclusive jurisdiction of one or more arbitrators under the Agreements [r. 21.01(3)(a)]. The Hospital’s alternative submissions fall under r. 21.01(1)(b) (no cause of action disclosed) and rr. 21.01(3)(d) and 25.11 (the action is one or more of frivolous, vexatious, and an abuse of the process of the court). I address the issues below, in that order.

Issue No. 1 – Claims Within Jurisdiction of Arbitrator(s) – r. 21.01(3)(a)

a) Positions of the Parties

[22] The Hospital’s position is that a broad interpretation is to be given to the matters that fall within the exclusive jurisdiction of an arbitrator under the Agreements. The essential character of Mr. Saier’s allegations is said to be one of a course of conduct by the Hospital, including its employees, towards Mr. Saier both during and subsequent to his employment with the Hospital.

[23] The Hospital submits that even the allegations that relate to the post-employment period fall within the jurisdiction of an arbitrator under the Agreements. Alternatively, the Hospital says that the allegations related to the post-employment period are completely devoid of merit. I address the latter position under Issue No. 2, below.

[24] Mr. Saier’s position is that 95 per cent of the allegations do not relate to his employment. He describes the Agreements as a vehicle which “paves the way” for the Hospital to break the law, including the criminal law, and to violate his human rights. Mr. Saier submits that the matters raised in the Pleading therefore fall within the jurisdiction of the court.

b) Analysis

i) Subrule 21.01(3)(a)

[25] Under r. 21.01(3)(a), “[a] defendant may move before a judge to have an action stayed or dismissed on the ground that, […] the court has no jurisdiction over the subject matter of the action”.

ii) The Agreements

[26] The Hospital and the Union were required by statute to include terms in the Agreements that “provide for final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether the matter is arbitrable”: Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A, s. 48(1) (“LRA”). Where the parties have negotiated a binding arbitration clause, the court has no jurisdiction to determine matters which arise from the interpretation, application, administrative or violation of a collective agreement: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929.

[27] Exhibit ‘A’ to the Lapointe Affidavit includes copies of the Agreements. Article 7, titled “Grievance Procedure”, spans in excess of four pages of the Central Collective Agreement. In Articles 7.1 – 7.16, detailed grievance and arbitration procedures are prescribed.

[28] A “grievance” is defined in Article 7.1 as “a difference arising between the parties relating to the interpretation, application, administration or alleged violation of the Agreement including a question as to whether any matter is arbitrable.” Where a grievance is not resolved in the initial stages, the matter may be submitted to arbitration: Article 7.07(a). Depending on the subject-matter of the grievance, it is determined by either a sole arbitrator or a panel of three arbitrators: Articles 7.10 and 7.11.

[29] I find that the grievance and arbitration procedures set out in Article 7 of the Agreements comply with s. 48(1) of the LRA. I also find that those procedures constitute a “binding arbitration clause” within the meaning of Weber.

[30] The Agreements provide the regulatory framework governing relations between the Union and the Hospital, as well as the individual relationship between Mr. Saier and the Hospital: Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 25. From an employee’s perspective, their individual interests are protected in a system of collective representation: Bisaillon, at para. 26. From the employer’s perspective, the collective representation system is intended to provide “industrial peace”; the employer is entitled to expect that disagreement, whether with a union or a unionized employee, will be resolved through the grievance and arbitration process: Bisaillon, at para. 27.

[31] I turn next to consider the extent to which Mr. Saier’s claims against the Hospital fall within the exclusive jurisdiction of an arbitrator under the Agreements.

iii) The Essential Character of the Dispute

[32] A claim will fall within the exclusive jurisdiction of an arbitrator if the dispute, “in its essential character, arises from the interpretation, application, administration or violation” of the Agreements: Weber, at para. 52. The following principles are applied when deciding that issue:

1. Labour arbitrators have exclusive jurisdiction to resolve employment disputes arising directly or inferentially out of a collective agreement;

2. Courts have adopted a deferential approach when evaluating whether a particular dispute arises out of a collective agreement;

3. There is a two-stage analysis to determine whether the dispute, in its essential character, arises in any way from the collective agreement:

a. Courts should define the essential character of the dispute by looking at the surrounding facts – as opposed to how the dispute might be characterized legally;

b. Then, determine if that factual context falls within the scope of the collective agreement, either implicitly or explicitly (citations omitted).

See: Lavigne v. Canada Post Corporation, 2006 FC 1345, at para. 22; and Bisaillon, at paras. 31 and 32.

[33] To determine the essential character of Mr. Saier’s dispute with the Hospital, I deal separately with the claims under each of the four categories identified in the Pleading. I do so in the order in which the categories of claims appear in the Pleading.

▪ “Tort of Ruining Reputation/Defamation (defendant and third-party harassment)”

[34] The allegations under this category are set out in paras. 5-14, across approximately four pages of the Pleading. In summary, the allegations are as follow:

• The Ottawa Hospital defamed Mr. Saier, as a result of which his employment with the Elisabeth Bruyere Hospital (“Bruyere”) and with CBI Home Health (“CBI”) was terminated in May 2018 and June 2019, respectively;

• The Hospital has ties to organized crime, which ties are related to Mr. Saier being the victim of hate crimes both during and subsequent to his employment with the Hospital;

• A named physician gossiped about Mr. Saier with two resident physicians;

• The Hospital is responsible for Mr. Saier being “drugged up and bullied to drive”, resulting in him being charged with (although not convicted of) impaired driving; and

• The Hospital involved both the church and the gym Mr. Saier attends in the Hospital’s campaign, against Mr. Saier, of harassment and reinforcing homophobia.

[35] The allegations of defamatory conduct and harassment span both the period during which Mr. Saier was an employee of the Hospital and the post-employment period. With respect to the post-employment period, the events described are alleged to have occurred in the broader community (i.e. not at the Hospital). For example, Mr. Saier alleges that,

• in June 2019, he lost his job at CBI because of defamatory information provided to CBI by the Hospital, and

• during the post-employment period he was “harassed at the gym and elsewhere out in the community” by the Hospital.[^2]

[36] The Supreme Court of Canada in Bisaillon emphasized that a liberal approach is to be taken with respect to the “broad exclusive jurisdiction” that grievance arbitrators have over “issues related to conditions of employment, provided that those conditions can be shown to have an express or implicit connection to the collective agreement”: para. 33.

[37] The title of this first category of claims includes the phrase “defendant and third-party harassment” (emphasis added). Protection of Registered Nurses, employed by the Hospital, from both harassment and discrimination is addressed in Article 3 of the Agreements, titled “Relationship”. Article 3 includes eight subsections.

[38] Article 3.03 mandates protection for an employee from discrimination based on a number of factors, including race, colour, ethnic origin, and sexual orientation. Reference is made therein to the Ontario Human Rights Code, R.S.O. 1990, c. H.19.

[39] Article 3.04 is titled “Harassment and Discrimination”; it is aimed at providing a harassment-free workplace in an atmosphere of zero tolerance for harassment and/or discrimination. In Article 3.04(d), the parties to the Collective Agreement “recommend and encourage any employee who may have a harassment or discrimination complaint to follow the complaints process as set out in the [the Hospital’s] harassment policies and process”.

[40] The allegations made in paras. 9 to 12, with respect to the employment period, include the following:

• The Hospital arranged for Mr. Saier to be drugged, bullied to drive, and charged with impaired driving. Mr. Saier describes this series of events as a hate crime; and

• A named physician gossiped about Mr. Saier with two resident physicians.

[41] I find that the allegations made in paras. 9 to 12 are, in their essential character, related to Mr. Saier’s right, under Article 3 of the Agreements, to protection from discrimination and to a harassment-free workplace. That factual context falls explicitly within the scope of the Agreements. Any complaints of harassment or discrimination that Mr. Saier had with respect to his workplace should have been pursued by the process set out in the Hospital’s harassment policies and process [Article 3.04(d)] and/or through the Grievance Procedure [Articles 3.04(g) and 7]. The court has no jurisdiction over the claims made in paras. 9 to 12; they are dismissed.

[42] I turn to the balance of the allegations under the first category, found at paras. 5 to 8, 13, and 14 of the Pleading.

[43] The allegations made in paras. 5 to 8 include that while Mr. Saier was still employed at the Hospital, he was defamed by the Hospital. Mr. Saier alleges that, as a result of the defamation, in May 2018, he lost his job at Bruyere.

[44] I am unable to conclude that the allegations made in paras. 5 to 8 can be characterized as related to a dispute that explicitly or implicitly falls within the scope of the Agreements. I find nothing in the Agreements that would give a grievance arbitrator the powers required to grant a remedy (i.e. damages) for defamation: Bisaillon, at para. 42.

[45] I, therefore, do not dismiss the claims of defamation set out in paras. 5 to 8 of the Pleading on the basis of lack of jurisdiction. It remains to be determined whether those claims survive the Hospital’s alternative submissions, which I address under Issue Nos. 2 and 3, below.

[46] In paras. 13 and 14 of the Pleading, Mr. Saier alleges that the Hospital is responsible for harassment he has experienced at both the church and at the gym he attends. Mr. Saier alleges that the Hospital has “collaborated” in some way with the church, resulting in homophobic-based harassment of him at his gym. Mr. Saier also alleges that treatment he has received at Walmart and from the Ottawa Police Service, the latter when attempting to report the harassment, is in some way the Hospital’s responsibility.

[47] Mr. Saier does not identify the year or years in which it is alleged that he was a victim of harassment at his gym, etc. It is unclear whether the harassment alleged extends beyond his period of employment with the Hospital. It is clear, however, that the allegations made in paras. 13 and 14 relate to events alleged to have occurred other than at the Hospital.

[48] The protection afforded to employees under Article 3 is to a “safe workplace”. Article 3.01 sets out the employee’s right to “freedom from harassment in the workplace” (emphasis added).

[49] I, therefore, do not dismiss the claims advanced in paras. 13 and 14 of the Pleading on the basis of lack of jurisdiction. It remains to be determined whether those claims survive the Hospital’s alternative submissions under Issue Nos. 2 and 3 below.

[50] I continue below with the second category of claims.

▪ “Tort of Psychological Injury and Human Rights Violation”

[51] The allegations under this category are set out in paras. 15 to 38, across approximately eight pages. In summary, the allegations made under this category are as follow:

• The Hospital brought a specific individual to the workplace to cause Mr. Saier to identify himself to his colleagues as gay. After Mr. Saier came out to his colleagues, he was subject to harassment and abuse in the workplace;

• Members of the Hospital staff mistreated or abused patients that they knew to be patients for whom Mr. Saier provided care;

• Members of the Hospital staff conducted themselves in a manner so as to socially isolate Mr. Saier from his colleagues;

• Mr. Saier was manipulated, exploited, and blackmailed on the online dating site “grindr”, which conduct he alleges is associated with his employment at the Hospital;

• Mr. Saier was discriminated against with respect to his assignments, his workload, his applications for full-time employment (including, for example, at The Heart Institute), and by demeaning comments from colleagues; and

• In the period following his employment with the Hospital, Mr. Saier was blacklisted and denied health care services at the Hospital.

[52] The allegations made in paras. 15 to 36 relate to events that occurred at the Hospital, while Mr. Saier was an employee. The events described involve conduct by his colleagues and other employees, all of which is alleged to have been directed at Mr. Saier. The allegations relate to harassment, including with respect to tasks assigned during Mr. Saier’s shifts at the Hospital.

[53] I find that Mr. Saier’s dispute with the Hospital as set out in paras. 15 to 36 can be characterized as one related to harassment and discrimination in the workplace. As a result, the allegations made in those paragraphs are explicitly covered under Article 3 of the Agreements. The court has no jurisdiction over such claims made; they are dismissed.

[54] There are, however, two paragraphs within the second category which relate to the post-employment period. At para. 37, Mr. Saier alleges that he was “blacklisted and refused healthcare services after resigning from his position at the Ottawa Hospital.” This incident is alleged to have occurred in October 2019 – more than a year after Mr. Saier’s employment with the Hospital ended. Mr. Saier was seeking treatment for depression and anxiety, which he alleges he suffered as a result of bullying and harassment at the Hospital. At para. 38, Mr. Saier acknowledges that he was ultimately successful in securing treatment from “the doctors” for his depression and anxiety.

[55] It is important that Mr. Saier alleges he was refused treatment by a physician at “3001 Carling Avenue”. Although not identified as such in the Pleading, I take judicial notice of the fact that the municipal address provided is for an Appletree Medical Centre – not at a location of the Hospital. Mr. Saier relates the alleged refusal to treat to a statement made by one of his colleagues, during his period of employment, to the effect that the colleague has “friends out there”.

[56] The allegations in paras. 37 and 38 address the damages which Mr. Saier alleges he suffered as a result of alleged harassment – a matter entirely within the jurisdiction of an arbitrator. The court has no jurisdiction over the claims made in paras. 37 and 38; they are dismissed.

[57] I turn next to the third category of claims.

▪ “Tort of sexual harassment and verbal assault”

[58] The allegations under this category are set out in paras. 39 to 46, across approximately two pages. Mr. Saier alleges that one of his former colleagues made bodily contact with him and verbally abused him on several occasions­­­ – all at the workplace. Mr. Saier alleges that he was ridiculed, verbally abused, and physically intimidated by a physician – again, entirely at the workplace.

[59] The allegations under this category relate entirely to incidents alleged to have occurred in the workplace. These allegations of verbal abuse, non-consensual physical contact, and preventing Mr. Saier from accessing support from Union representatives can be characterized as falling within the categories of workplace safety and harassment – both of which are explicitly addressed in Article 3 of the Agreements.

[60] The claims advanced in paras. 39 to 46 fall within the exclusive jurisdiction of a grievance arbitrator. The court has no jurisdiction and those claims are dismissed. The fourth category of claims remains to be considered.

▪ “Tort of Personal Injury and Hate Crimes”

[61] The final category of claims is set out in paras. 47 to 51, across approximately two pages. In summary, the allegations made under this category are as follow:

• Mr. Saier was “drugged up and bullied” several times at the workplace, including an incident when one of his colleagues tampered with the contents of Mr. Saier’s lunchbox;

• On arriving at his car at the end of a shift at the Hospital, Mr. Saier noticed that his car had been keyed;

• While at a commercial establishment (i.e., a bar) Mr. Saier’s drink was tampered with on several occasions by someone who said they “know someone at the Hospital”;

• The Hospital, through its employees, conducted a “silent killing process” and essentially murdered patients for economic reasons – allowing the Hospital to avoid incurring the expenses associated with providing care to patients on a long-term basis; and

• Mr. Saier was “poisoned” in September 2019, after he sent emails to an employment consultant and to “employment social services”, seeking assistance to deal with social isolation, being the victim of hate crimes by the Hospital, and the Hospital’s ties to organized crime.

[62] With the exception of identifying the first name of the Hospital employee who allegedly tampered with his lunchbox, Mr. Saier does not identify by whom he was drugged or poisoned. With the exception of the lunch box incident and drinks at a bar, Mr. Saier does not describe how he was allegedly drugged or poisoned.

[63] With the exception of the allegations in para. 51 (related to being poisoned in September 2019) and the conclusory para. 52 (quoted in the Background section, above), all of the allegations under the fourth category relate to incidents alleged to have occurred during Mr. Saier’s employment with the Hospital and at his place of work. Once again, the allegations can be characterized as related to harassment and to Mr. Saier’s right to a harassment-free workplace. As a result, the claims advanced in paras. 47 to 50 explicitly fall within the scope of the Agreements and the jurisdiction of a grievance arbitrator; as such, they are dismissed.

[64] In para. 51, Mr. Saier alleges that, in August 2019, he sent emails to an employment consultant and “the employment social services”, seeking advice to assist him in finding employment. Mr. Saier links those emails to defamation by the Hospital and being poisoned, when in the broader community, in September 2019. These incidents are alleged to have occurred more than a year after Mr. Saier’s employment with the Hospital ended.

[65] Leaving aside the merits of the claims made in para. 51, I am unable to conclude that the essential character of the allegations is such that they fall explicitly or implicitly within the scope of the Agreements. I therefore do not, on the basis of lack of jurisdiction, dismiss the claims made in para. 51. It remains to be determined whether those claims survive the Hospital’s alternative submissions, which I address under Issue Nos. 2 and 3, below.

c) Summary

[66] The claims set out in paras. 9 to 12, 15 to 36, 39 to 46, and 47 to 50 are dismissed. The claims set out in paras. 5 to 8, 13, 14, 37, 38, and 51 are addressed under Issue Nos. 2 and/or 3 below.

Issue No. 2 – No Reasonable Cause of Action Disclosed – r. 21.01(1)(b)

a) Positions of the Parties

[67] The Hospital submits that the allegations of defamation (paras. 5 to 8 and 51), threats (paras. 13 and 14), and poisoning (para. 51) fail to disclose any reasonable cause of action.[^3] The Hospital describes the allegations in these paragraphs as devoid of material facts, as “bald” allegations, and as lacking identification of specific conduct on the part of the Hospital tied to the bald allegations.

[68] The Hospital emphasizes that the allegations of criminal conduct (i.e. para. 51) are entirely inappropriate in a civil proceeding.

[69] As noted in the introduction, Mr. Saier submits that these claims have “a chance of succeeding”, and therefore they should not be struck.

b) The Law

[70] The Hospital relies on r. 21.01(1)(b), which provides that “[a] party may move before a judge, to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.” The court is not entitled to consider any evidence: r. 21.01(2).

[71] The court must consider only the contents of the Pleading. The operative question is, assuming the facts in the Pleading to be true, is it nevertheless “plain and obvious” that the Pleading discloses no reasonable cause of action?: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321 at para. 33.

c) Analysis

i) Defamation (paras. 5 to 8)

[72] The Rules of Civil Procedure include ‘Rules of Pleading’ that are applicable to all pleadings. The material facts, but not the evidence, upon which a plaintiff relies in support of their claims must be included in a statement of claim: r. 25.06(1). If the purport of a conversation is material, then it shall be pleaded as briefly as possible: r. 25.06(7). The case authorities are clear that the “purport” of a conversation is material to a claim of defamation.

[73] The specific requirements for pleading defamation are found in the case authorities. To succeed with a claim of defamation, a plaintiff must prove each of the following three things:

(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

[74] In The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, 136 O.R. (3d) 23, the Ontario Court of Appeal summarized the requirements for a pleading in defamation. At para. 24, the Court highlighted that pleadings in such actions (a) “attract a more critical evaluation than pleadings involving other causes of action”, and (b) “require a more detailed outline of the material facts in support of the claim.” In the same paragraph, the Court spoke of the attention required to guard against “fishing expeditions”. Lastly, the Court addressed the serious nature of allegations of defamation, the significance of context in addressing them, and the importance to a defendant of knowing the case they have to meet.

[75] In the Pleading, Mr. Saier does not identify any employee of the Hospital whom he alleges made the allegedly defamatory remarks, what the defamatory remarks were, how those remarks were disseminated, or to whom those remarks were made. I find that the Pleading is deficient as it relates to allegations of defamation in paras. 5 to 8. The nature of the deficiencies is, however, relevant to the relief to be granted.

[76] A pleading may be deficient because the plaintiff seeks relief “for acts that are not proscribed under the law”: Dawson v. Rexcraft Storage and Warehouse Inc., 1998 CanLII 4831, 164 D.L.R. (4th) 257, at para. 10. Defamation is proscribed under the law; therefore, paras. 5 to 8 of the Pleading are not deficient in this manner.

[77] A pleading may also be deficient because the plaintiff “failed to allege the necessary elements of a claim that, if properly pleaded, would constitute a reasonable cause of action”: Dawson, at para. 10. If the pleading deficiencies fall within this category, the court must consider whether to grant the plaintiff leave to amend their pleading: Dawson, at para. 11.

[78] The allegations of defamation in paras. 5 to 8 of the Pleading are made under the heading “Tort of Ruining Reputation/Defamation (defendant and third party harassment)”. As a self-represented plaintiff, Mr. Saier may not have understood the particularity with which a claim based in defamation must be pleaded. I find that paras. 5 to 8 fall within the type of deficiency described immediately above; it is not plain and obvious that those paragraphs disclose no reasonable cause of action. As a result, the court must consider whether to grant Mr. Saier leave to amend those paragraphs. The process to be followed in that regard is discussed below, in the “Conclusion” section of this ruling.

ii) Threats and Harassment (paras. 13 and 14)

[79] In paras. 13 and 14, the allegations of threats and harassment lack particulars such as the dates on which the events described therein are alleged to have occurred, the specific locations at which the events are alleged to have occurred, and the names of the individuals involved in the events. I contrast the lack of particulars in those paragraphs with the detail with which Mr. Saier describes many events in other paragraphs in the Pleading. That detail is frequently so extensive as to cross the line from pleading material facts to the inclusion of evidence.

[80] Based on the contrast between paras. 13 and 14 and the majority of the balance of the Pleading, I draw an inference and find that the requisite particulars are lacking in paras. 13 and 14 because Mr. Saier is unable to provide them. As a result, I find that to the extent, if any at all, the allegations in paras. 13 and 14 relate to a known cause of action, the claims made in those paragraphs are incapable of proof. I find it “plain and obvious” that paras. 13 and 14 disclose no reasonable cause of action; those paragraphs are struck from the Pleading in their entirety and without leave to amend.

iii) Poisoning (para. 51)

[81] The allegations made in para. 51 relate to events alleged to have occurred in the late summer and fall of 2019, more than a year after Mr. Saier’s employment with the Hospital ended. Mr. Saier links emails that he sent to an employment consultant and others to defamation by the Hospital and to his being poisoned, while in the broader community, in September 2019. Mr. Saier appears to link the two because he identified in the emails that the Hospital “has ties to organized crime.”

[82] I find it plain and obvious that the allegations made in para. 51 disclose no reasonable cause of action; the paragraph is struck from the Pleading in its entirety and without leave to amend.

d) Summary

[83] Paragraphs 13, 14, and 51 are struck from the Pleading in their entirety and without leave to amend. The court will consider whether Mr. Saier is to be granted leave to amend paras. 5 to 8 of the Pleading. The procedure by which the court will make that determination is set out below in the Conclusion section of this ruling.

Issue No. 3 – Action is Frivolous, Vexatious, or an Abuse of Process – r. 21.01(3)(d) and 25.11

[84] Based on the decisions made under Issue Nos. 1 and 2, it is not necessary to consider Issue No. 3.

Conclusion

[85] For the reasons set out above, I order as follows:

1. The claims made in paragraphs 9 to 12, 15 to 36, 39 to 46, and 47 to 50 of the statement of claim are dismissed.

2. Paragraphs 13, 14, 37, 38, and 51 of the statement of claim are struck in their entirety and without leave to amend.

3. If Mr. Saier intends to pursue the claims made in defamation (i.e., paras. 5 to 8), then he shall, no later than 4:00 p.m. on Thursday, January 7, 2021 deliver a motion record with respect to a motion for leave to amend the statement of claim.

4. The motion record referred to in paragraph 3, above, shall include a draft “Fresh as Amended Statement of Claim” restricted to the claims in defamation.

5. The notice of motion for the motion referred to in paragraph 3, above, shall specify that the motion is returnable before a judge. (Note: The motion shall proceed before me, as I remain seized of the matter).

6. If Mr. Saier does not deliver a motion record, in accordance with paragraphs 3, 4, and 5, above, by 4:00 p.m. on January 7, 2021, then,

a) the claims in defamation made in paragraphs 5 to 8 of the statement of claim shall be deemed to be dismissed, and

b) the parties shall make costs submissions in writing as directed in paragraph 7, below.

7. Written costs submissions, if made pursuant to paragraph 6(b), shall be made as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a costs outline;

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;

c) Written submissions shall include hyperlinks to any case law or other authorities;

d) The Hospital shall deliver its written submissions by 4:00 p.m. on Friday, January 15, 2021;

e) Mr. Saier shall deliver his responding written submissions by 4:00 p.m. on Tuesday, January 26, 2021;

f) The Hospital shall deliver reply submissions, if any, by 4:00 p.m. on Monday, February 1, 2021; and

g) All submissions shall be filed electronically in accordance with the protocols of the court for electronic filing.

8. Costs of this motion shall otherwise be determined following the determination of the plaintiff’s motion for leave to amend paragraphs 5 to 8 of the statement of claim and at the same time that costs of the motion for leave to amend are determined.

Madam Justice Sylvia Corthorn

Released: December 21, 2020

COURT FILE NO.: CV-20-83613-CP

DATE: 2020/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

OMEAD SAIER

Plaintiff

– and –

THE OTTAWA HOSPITAL

Defendant

RULING ON MOTION

Corthorn J.

Released: December 21, 2020

[^1]: The title for this category of claims appears as it does in the Pleading, with only the first word of the title capitalized.

[^2]: See para. 14 of the Pleading.

[^3]: The Hospital did not specifically address paras. 37 and 38.