Court File and Parties

Court File No.: CV-19-79074 Date: 2021/02/24 Ontario Superior Court of Justice

Between: Deirdre Moore, Plaintiff/Respondent And: Victor Vallance Blais LLP, Defendant/Moving party

Counsel: Self-represented, for the Plaintiff/Respondent Susanne Sviergula, for the Defendant/Moving party

Heard: February 18, 2021

Amended Decision on Summary Judgment Motion

The text of the original judgment was amended on March 8, 2021 and the description of the amendment is appended.

Justice Sally Gomery:

[1] The defendant law firm Victor Vallance Blais LLP (“Victor LLP”) asks the court to dismiss or stay this action by its former client, Deirdre Moore (“Moore”) on the basis that it discloses no reasonable cause of action and that it is frivolous, vexatious and an abuse of process.

[2] For about nine months between November 2015 and January 2017, Moore retained Victor LLP to represent her and advise her in matrimonial proceedings in Superior Court File FC-15-2446 (the “matrimonial litigation”). The retainer was suspended in April 2016 when Moore moved back into the family home with her husband Jonathan Kiska (“Kiska”). After Moore and Kiska separated again a few months later, Victor LLP again represented Moore for three months before she terminated the retainer.

[3] Since January 2018, Moore has sued Victor LLP five times. She discontinued the first two actions launched six months after they were filed. Another two lawsuits commenced in June 2019 were dismissed pursuant to r. 2.1.01 on the basis that they were devoid of merit on their face.

[4] In this fifth action, Moore seeks more than $3,000,000 in general, special and aggravated damages from Victor LLP. She alleges that it gave her poor advice and representation and is responsible for, among other things, psychiatric and emotional damages to her and her children. Moore’s matrimonial litigation with Kiska is still ongoing.

[5] For the reasons that follow, I am striking the action because it discloses no reasonable cause of action. I do not find that the action is clearly frivolous, vexatious and an abuse of the court’s process. I also cannot conclude, in the circumstances, that Moore should be denied leave to amend her statement of claim to allege a causal link between the damages claimed and Victor LLP’s alleged negligence and breach of fiduciary duty. However, I see no purpose in allowing this action, which presupposes that Moore’s position in the matrimonial litigation was compromised as a result of Victor LLP’s negligence, to proceed while that litigation is ongoing. I am accordingly granting staying the action until the matrimonial litigation is fully resolved through final order or settlement.

Preliminary procedural issues

[6] Moore objected to the motion on four procedural grounds.

Procedural objection #1: The motion was not brought promptly

[7] Moore contends that Victor LLP failed to comply with r. 21.02, which states that a summary judgment motion under r. 21.01 shall be made promptly.

[8] The statement of claim in this action was issued in January 2019 but was not served until June 27, 2019. Victor LLP sought a case conference to set a timetable. It was scheduled for October 23, 2019 but adjourned as Moore was incarcerated at the time. On February 19, 2020, Master Fortier reconvened the case conference and set a timetable, the first step of which was an amendment of Moore’s statement of claim by no later than May 29, 2020. Due to the partial shut-down of the courts in the wake of the Covid-19 pandemic, the deadline for filing of Moore’s amended pleading came and went. Victor LLP sought a further case conference to set a revised timetable in mid-2020. At the conference held on September 16, 2020, Moore again requested an opportunity to amend her statement of claim. Master Fortier gave her until October 9, 2020 to do so. Moore again did not amend her pleading within the deadline. At the next case conference on November 9, 2020, she indicated that she no longer intended to amend. At this same conference, Victor LLP sought a date for its summary judgment motion and a timetable for steps leading up to the hearing that took place on February 18, 2021.

[9] I find that the summary judgment motion was brought promptly. Victor LLP could not serve it while on notice that Moore intended to amend her statement of claim. As soon as she advised that she no longer planned to do so, Victor LLP took immediate steps to schedule the motion.

[10] Procedural objection #1 is therefore unfounded.

Procedural objection #2: The Notice of Motion does not comply with the Rules

[11] Moore contends that Victor LLP used the wrong form for the notice of motion and that it was improper for it to request “such further and other relief as counsel may advise”, to rely on “such further or other grounds as counsel may advise” or to refer to “such further and other evidence as counsel may advise”. Moore also contends that the notice of motion improperly refers to evidence and that it should have referred to the Courts of Justice Act and form RCP-E-37A.

[12] Victor LLP used the correct form. A new notice of motion template was introduced, along with some changes to the Rules of Civil Procedure, in late 2020, but these changes did not come into effect until January 1st, 2021. Since Victor LLP served its notice of motion in November 2020, it was appropriate for it to use the old form.

[13] Contrary to Moore’s contention, the notice of motion refers to the Courts of Justice Act, even though there is no requirement that it be mentioned. There is no requirement to cite a form number in a notice of motion.

[14] There is nothing offensive about leaving the door open, at the hearing of a motion, to request further relief or argue alternative grounds or refer to additional evidence. The court hearing the motion may to give the moving party permission to do so, if the respondent is not unfairly taken by surprise or denied a meaningful chance to respond. In any event, at the hearing Victor LLP did not seek any relief or rely on any grounds not specifically identified in its notice of motion.

[15] The items listed in the notice of motion as “documentary evidence that will be used at the hearing of the motion” were the pleadings in this action and in the matrimonial litigation. Pleadings in this action are not evidence. Pleadings are part of the court record. I accept Victor LLP’s submission that the pleadings were listed on the notice of motion as “documentary evidence” only because that is the pre-populated verbiage on the form that it was required to use. The pleadings in the matrimonial litigation are referenced in the statement of claim and may therefore be considered on this motion. [1]

[16] At the hearing, Victor LLP also referred to the statements of claim in Moore’s four prior actions against it, as well as notices of discontinuance filed by Moore in the first two actions and endorsements by Justice Beaudoin dismissing the other two pursuant to r. 2.1.01. It also referred to the case management endorsements in this proceeding.

[17] Endorsements, judgments and pleadings in these proceedings are again not evidence. Pleadings in prior litigation between the same parties are part of the public record. It is appropriate to refer to such materials on a motion to dismiss or stay a proceeding as frivolous, vexatious or an abuse of process under r. 21.01(3)(d) or r. 25.11(b) or (c). Even in the context of the potential dismissal of a claim under r. 2.1.01, the Court of Appeal has held that it “may be necessary to review reasons and pleadings from other proceedings in order to make a determination whether the instant case is abusive”. [2] Moore cannot have been taken by surprise by the use of these materials as they were obviously known to her.

[18] Procedural objection #2 is therefore unfounded.

Procedural objection #3: The motion record does not comply with the Rules

[19] Moore contends that the motion record does not comply with r. 37.10(2) because it does not contain all of the materials mentioned in the rule, such as exhibits or transcripts. She also argues that an affidavit of service should have been incorporated into the motion record.

[20] The motion record complies with r. 37.10(2). The rule simply directs how materials should be filed if they are part of the record. It does not require a moving party to include all potential categories of materials in the record.

[21] A moving party is not required to include an affidavit of service as part of the motion record. This requirement would be nonsensical because r. 37.10(4) permits a moving party to file a notice of motion as part of the record rather than serving it separately. That is what happened here. In these circumstances, it would have been impossible to include the affidavit of service in the motion record, because it was generated only after the record was served.

[22] Procedural objection #3 is therefore unfounded.

Procedural objection #4: Victor LLP’s factum is too long

[23] The November 9, 2020 case management order limited factums on the motion to twenty pages in length. Excluding the title and back pages and table of contents, Victor LLP’s factum is 22-pages long. Its counsel conceded that the factum was too long and proposed that I disregard the last page, which set out the terms of the order sought.

[24] R. 37.10(6) says that a party may serve on every other party “a factum consisting of a concise argument stating the facts and law relied on by the party”. There is no requirement to recite the terms of the proposed order, which are already set out in the notice of motion. At the hearing, I accordingly accepted Victor LLP’s suggestion to disregard the 21st page of its factum.

[25] Procedural objection #4 was accordingly founded but was resolved in a way that did not result in any prejudice to Moore.

Analysis of the motion on its merits

[26] Victor LLP contends that the action should be struck or dismissed on two grounds:

(1) The statement of claim discloses no reasonable cause of action; and (2) The action is frivolous, vexatious or an abuse of the court’s process.

(1) Does the statement of claim disclose a reasonable cause of action?

[27] On a motion under rule 21.01(b) of the Rules of Civil Procedure, the judge must assume that all facts pleaded in the statement of claim are true. The statement of claim must be read generously, and the motion will be granted only if it is plain and obvious that the claim has no reasonable prospect of success. [3] A motion to strike a pleading can succeed only in the clearest of cases.

[28] In paragraph 1 of her statement of claim, Moore alleges that Victor LLP engaged in acts of “recklessness, negligence, professional misconduct and/or breach of fiduciary duty” while retained by her. She also alleges that Victor LLP should pay aggravated damages for emotional suffering experienced by the plaintiff and her children.

[29] Although, for the purposes of this motion, I must assume that allegations of fact in the statement of claim are true, I am not required to make the same assumption with respect to allegations of legal conclusions unsupported by material facts”. [4] As noted by my colleague Justice Robert Smith, a statement of claim that “merely asserts a tort, without alleging the material facts capable of supporting it, discloses no cause of action”. [5] For example, a plaintiff does not have a claim in negligence simply because they say that the defendant was negligent. They must allege facts which, if true, would lead a court to conclude that the defendant did or did not do something that they were duty-bound to do for the plaintiff, and that this act or omission caused the defendant harm that entitles them to damages.

[30] I must therefore consider whether Moore has pleaded the required elements of any causes of action based on the material facts she has alleged in her statement of claim.

[31] In para. 1 of her statement of claim, Moore seeks:

• Recovery of $30,955.69 in legal fees she paid to Victor LLP;
• Compensatory damages of $25,000 for psychiatric treatment from 2017 to date;
• “Pecuniary” damages of $600,000 for anticipated future psychiatric treatment for Moore and her children, as well as an additional amount of $1,000,000 for its “recklessness, negligence, professional misconduct and/or breach of fiduciary duty” while representing Moore;
• General damages of $250,000 “for the income lost due to the need to self-represent”;
• Aggravated damages of $500,000 for emotional suffering and humiliation experienced by the plaintiff and her children following the return and subsequent departure of the plaintiff to/from the matrimonial home; and $1,000,000 for negligent infliction of emotional suffering experienced by the plaintiff and her children throughout 2017 and onward “following the defendant’s acts of recklessness, negligence, professional misconduct and/or breach of fiduciary duty; including, but not limited to, advice to share a signed parenting agreement that lacked any reference to or requirement of interim spousal support or child support from Jonathan Kiska”.

[32] The material facts alleged in support of these claims, which I must accept as true for the purpose of this motion, are as follows:

• Moore suffered several nervous breakdowns between February 2013 and October 2015 due to Kiska’s verbal, emotional and psychological abuse. She was falsely diagnosed with bipolar disease based on information that Kiska provided to her physicians and was hospitalized for three lengthy periods (paras. 2, 4 and 5).
• In November 2015, Kiska initiated the matrimonial litigation by serving Moore with an application seeking sole custody of their two children, limited and supervised access to the children by Moore, and his interim, exclusive possession of the family home. Kiska took the position that Moore’s mental illness, for which she was once again hospitalized, endangered the children’s safety (paras. 12, 15 and 16).
• Moore was “desperately in need of quality representation in order to protect the safety and best interests of her children”. She retained Victor LLP and advised the lawyer representing her that Kiska had made false statements in his application (paras. 13, 14 and 19).
• Victor LLP “did not have or, in the alternative, did not follow any process by which to represent (let alone defend and/or protect) a victim of domestic violence” (para. 23). In particular, the firm:
  • did not discuss with Moore any aspect of a Children’s Aid Society file that was obtained sometime between December 2015 and April 2016 or disclose a “key document” to her (paras. 24 and 31);
  • prepared an answer to the application, signed by Moore in January 2016, which was “devoid of material facts that would have better protected the safety and best interests” of Moore’s children and which arguably supported Kiska’s application (paras. 26 and 27);
  • did not request full document disclosure from Kiska or serve him with a request to admit (para. 29), even though these documents and admissions, along with Moore’s medical files, “would have been enough to bring into question the validity” of Kiska’s application (para. 30);
  • failed to take any steps to amend Moore’s answer between January and April 2016 (para. 33);
  • failed to discuss the role of the Office of the Children’s Lawyer with Moore (para. 34);
  • failed to discuss the need for interim financial support with Moore, even though Moore was paying her legal fees with a credit card, or the possibility of forcing a sale of the matrimonial home or seeking occupational rent from Kiska (para. 35);
  • persuaded Moore to choose mediation over litigation (paras. 36 and 38); and
  • represented Moore at a case conference in February 2016 in such a way that Kiska’s position was strengthened (paras. 40, 81 and 82).
• By April 2016, Moore’s legal bills exceeded $25,000 and, unable to continue to finance the separation from Kiska, she returned to the matrimonial home (para. 42).
• Moore separated again from Kiska in late November 2016 and “once again relied upon [Victor LLP] for advice” (paras. 43 to 46).
• Victor LLP gave Moore contradictory advice about what to do, telling her at once that she should rent her own residence and stay in the matrimonial home (para. 47).
• In December 2016, Moore attended a mediation session with Victor LLP and signed an interim parenting agreement providing for shared custody and access. The agreement did not refer to spousal or child support but did mention a dividend which had an impact on support calculations (paras. 49 to 52).
• Victor LLP once again failed to discuss the option of pursuing interim spousal or child support, occupational rent or the forced sale of the matrimonial home with Moore, even though it knew that Moore was unemployed and that the lack of any interim financial support caused significant hardship to her and jeopardized the well-being of the children (paras. 52 to 56).
• In December 2016, Moore retained another law firm to sue Kiska for defamation, because Victor LLP did not advise her that she could make this claim in the context of the matrimonial litigation (paras. 59 and 60).
• Moore began to question Victor LLP’s motivations, and terminated its retainer on January 27, 2017 (paras. 63 and 64). At some point shortly thereafter, she began to represent herself (para. 71).
• When Moore received a copy of her file from Victor LLP, she found evidence in the CAS file that supported her allegations of abuse against Kiska, and ultimately brought a motion to amend her answer to the application to seek damages for domestic violence from him in August 2017 (paras. 66 to 72).
• In November 2017, the court granted Moore leave to amend her answer to seek fourteen new orders, including orders for compensation from Kiska for general, aggravated and punitive damages due to the intentional infliction of mental suffering and emotional distress, attempted parental alienation, and defamation, and for retroactive spousal and child support. The court denied leave for Moore to alter material facts in her original answer, on the basis that Kiska should not be required “to deconstruct what is not properly constructed in the first instance” (paras. 75 to 77).
• On January 31, 2018, Victor LLP responded in an insensitive way to an email send by Moore (para. 80).
• In July 2018, the Office of the Children’s Lawyer recommended to the court that Moore have sole custody of the two children. Despite this, Moore remains bound by the terms of the interim shared parenting agreement drafted by Victor LLP in December 2016 (para. 79).

[33] Reading the statement of claim generously, the three causes of action that appear to be advanced are negligence, intentional infliction of mental suffering and breach of fiduciary duty.

(i) Has Moore pleaded the required elements of a negligence claim?

[34] For Moore to succeed in an action for negligence against Victor LLP, she must prove that:

(i) Victor LLP owed her a duty of care; (ii) its conduct breached the standard of care; (iii) Moore sustained damage; and (iv) the damage was caused, in fact and in law, by Victor LLP’s breach. [6]

[35] Victor LLP concedes that Moore has pleaded the existence of a duty of care and that she sustained some damages, that is, a psychological injury. It contends, however, that she has not provided particulars of the alleged breaches and has failed to plead a causal link between the allegedly negligent advice she received from Victor LLP and the damages that she claims.

[36] Having reviewed the statement of claim carefully and while bearing in mind that I must read it generously, I do not agree that the statement of claim fails to include allegations of specific breaches of Victor LLP’s standard of care. These allegations are found, in particular, at paras. 23 to 40 and 52 to 50 of the pleading. I do however agree that the statement of claim does not allege a causal link between the damages claimed by Moore and the firm’s alleged acts and omissions.

[37] The statement of claim is not devoid of any allegation of how Victor LLP’s conduct gave rise to injuries to Moore. In the body of the statement of claim (as opposed to para. 1, where she sets out the damages claimed), she alleges that she was injured by Victor LLP’s poor advice and representation in four specific ways. The problem is the disconnect between the stated impact of the defendant’s conduct and what Moore is actually seeking by way of damages.

[38] At paras. 58 to 61 of her statement of claim, Moore alleges that she would not have had to retain and pay another law firm to sue Kiska for defamation had Victor LLP advised her that she could seek damages for defamation against him in the context of the matrimonial litigation. Moore is not, however, claiming any damages for the legal fees she had to pay to another firm. She only claims the legal fees she paid to Victor LLP.

[39] At para. 57, Moore states that her current financial distress “could have been avoided with sound advice from the defendant”. She is not, however, claiming general damages on this basis. She claims general damages for lost income due only to the need to self-represent. Moore is claiming aggravated (as opposed to general) damages due in part to Victor LLP’s preparation of an interim parenting agreement “that lacked any reference to or requirement of interim spousal support or child support from Jonathan Kiska”. The Supreme Court has held that, by definition, aggravated damages claimed in the context of a tort claim augment damages assessed under the general rules relating to the assessment of damages. [7] Since Moore has not claimed general damages arising from Victor LLP’s alleged failure to negotiate interim child or spousal support for her in the interim agreement, I do not see how she can claim aggravated damages for the same conduct. Moore has not in any event alleged any conduct on the part of Victor LLP that could conceivably give rise to a claim for aggravated damages, a claim for which requires something beyond mere negligence.

[40] At para. 78, Moore alleges that “If the original Answer had been properly constructed then 2015 to 2019 (thus far) and onward would have been quite different for the plaintiff and her two young children”. This vague assertion does not establish a causal link between an alleged breach and a specific injury. Moore does not set out how Victor LLP’s allegedly negligent services with respect to her answer gives rise to the specific categories of damages she claims. She does not allege, for example, that she could have avoided or reduced the costs of psychiatric treatment and counselling for herself and her children had she been given different advice with respect to the answer she signed in January 2016. Her statement of claim does not in fact refer to any specific treatment or counselling she or her children have received since late 2015, before she retained Victor LLP.

[41] Finally, at para. 79, Moore implies that she would have sole custody of the children, based on the OCL’s July 2018 recommendation, were it not for the interim shared parenting agreement drafted by Victor LLP. She again does not link this alleged negligence to any of the damages for which she has claimed. Again, hypothetically, she might have alleged that she and her children would not have had to incur the costs of treatment and counselling if she had gained full custody pursuant to the OCL’s recommendation. She has not however done so.

[42] Given the absence of material allegations that the damages actually claimed by Moore were caused, in fact and in law, by any identified breach of the applicable standard of care by Victor LLP, I find that no reasonable cause of action for negligence has been pleaded.

(ii) Has Moore pleaded the required elements of a claim for negligent infliction of mental distress?

[43] I have not been provided with any caselaw that articulates the distinction between intentional and negligent infliction of mental distress. [8] To prove intentional infliction of mental distress, Moore would have to prove that Victor LLP engaged in conduct that was flagrant and outrageous, that the conduct was calculated to produce harm to Moore, and that it did in fact cause visible or provable illness. [9] Moore would presumably not need to prove that Victor LLP’s conduct was calculated to produce harm to her in the context of a negligence-based cause of action. She would still have to prove, however, the other elements of the tort.

[44] Moore does not allege any conduct by Victor LLP that could constitute flagrant and outrageous conduct or that she suffered a visible or provable illness arising from the conduct. As a result, Moore has not pleaded a reasonable cause of action for negligent infliction of mental distress.

(iii) Has Moore pleaded the required elements of a claim for breach of fiduciary duty?

[45] In para. 1 of her statement of claim, Moore repeatedly asserts that Victor LLP is liable for damages for breach of fiduciary duty. She does not allege any material facts explicitly in relation to this cause of action.

[46] Lawyers have a fiduciary duty to their clients. Simply alleging negligent acts or omissions in the context of a solicitor/client relationship does not, however, give rise to a claim for breach of fiduciary duty. Even if it did, Moore would still have had to allege a causal link between an alleged breach of that duty and her damages. As already noted above, she has not done so.

[47] Moore has therefore not pleaded the required elements of a claim for breach of fiduciary duty.

(2) Is the action frivolous, vexatious or an abuse of the court’s process?

[48] An action is frivolous, vexatious or an abuse of process if it obviously has no merit. [10] The following are characteristics of vexatious litigation: [11]

• one or more actions are brought to determine an issue which has already been determined by a court of competent jurisdiction;
• it is obvious that an action cannot succeed, or the action “would lead to no possible good”, or “no reasonable person can reasonably expect to obtain relief”;
• “actions are brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights”;
• grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

[49] Victor LLP contends that this action has the hallmarks of a vexatious proceeding. It cites the overlapping claims that Moore has made in her four other actions against it and in the matrimonial litigation.

[50] In her first lawsuit commenced January 5, 2018 (Superior Court file no. 18-75050), Moore claimed various types of damages without making any allegations of material fact at all. The damages claimed were more or less those claimed in this action, although the amounts varied and, in the action, Moore also claimed for losses on the house she purchased in early 2016. Moore discontinued this first lawsuit less than a month after she started it, on January 29, 2018.

[51] Moore filed a second lawsuit (Superior Court file no. 18-75143) on January 12, 2018. She claimed the same damages in this action as she had in the first action begun a week later but added allegations of material facts in support of her claims. Moore discontinued the second lawsuit on August 1, 2018.

[52] The present action is the third action commenced by Moore. She filed it on January 24, 2019 and served it on June 27, 2019.

[53] Moore began her fourth and fifth actions on late June 2019 (Superior Court file no. 19-80574 and 19-80656) using the summary procedure in r. 76. In her statements of claim in these actions, Moore claimed damages for defamation, intentional infliction of emotional suffering, and negligent infliction of emotional suffering. In these lawsuits, she alleged that Victor LLP attempted to evade service of the present action and that this had an impact on her mental health. Victor LLP requisitioned the dismissal of the actions pursuant to r. 21.1.01, which allows the court to strike a claim that is frivolous, vexatious or an abuse of process on its face. On July 3 and 5, 2019, Beaudoin J. dismissed the actions on the basis that the plaintiff had not pleaded any material facts in support of her claims, and they could not possibly succeed.

[54] Having reviewed this history and the answer filed by Moore in the matrimonial litigation, I conclude that this action has some of the hallmarks of a vexatious proceeding.

[55] The fact that Moore has now sued Victor LLP on five separate occasions is a classic indication of vexatious litigation, as is the fact that she is suing her former lawyers for their perceived inadequacies in representing her in other litigation. The damages claims in the first two actions are very similar to the claims in the present action. The allegations of material fact in the statement of claim in the second action are moreover identical or near identical to those found in paras. 6 to 12, 14, 18-21, 24, 36-37, 41 to 43, 49, 51, 59, 62, 64, 66, 68, 70-73, 75-76 and 78 of the statement of claim in the current action.

[56] Despite this, I do not conclude that this action is so clearly vexatious that it ought to be dismissed as an abuse of process.

[57] The record does not include a statement of defence filed by Victor LLP in the first or second action, or evidence of any steps taken by the defendant to protect its interests in these actions. Based on this, I infer that the statements of claim were never served or that Moore took no steps to require Victor LLP to respond to them. The claims in the actions were therefore not litigated before Moore discontinued them, nor has Victor LLP been put in a position where it must defend to multiple iterations of the same claim.

[58] The fourth and fifth actions were clearly vexatious. In them, however, Moore was not alleging any negligence by Victor LLP in the context of the services it provided to her. The claims in those actions instead involved a completely different set of claims arising from Moore’s frustration in trying to serve this lawsuit in 2019.

[59] Finally, with one exception, there is no significant overlap between the orders sought by Moore against Kiska in the matrimonial litigation and the relief she seeks from Victor LLP in this action. Moore claims for the costs of psychological counselling for her children in both instances. But her claim for negligent infliction of mental suffering against Kiska arises from a different set of allegations than the claim based on the same cause of action against Victor LLP.

[60] Striking an action on the basis that it is vexatious is an exceptional remedy. A judge should dismiss a claim under rule 21.01(3)(d) only in the clearest of cases. [12] I conclude that the bar is not met in this case.

Should Moore be granted leave to amend?

[61] Victor LLP argues that I should not grant Moore leave to amend her statement of claim. It points out that she had multiple opportunities to refine her claims in the context of her five lawsuits over against it over the past three years and that she asked for leave to amend her statement of claim in this action twice in 2020 before later deciding not to do so. Despite this, she has not pleaded the material facts required to establish a reasonable cause of action.

[62] Generally speaking, leave to amend ought to be granted if the pleading can be repaired and the defendant would not be unfairly prejudiced. [13] Leave should be denied only in the clearest of cases.

[63] Moore has alleged material facts in support of three of the four required elements of her claim in negligence and most of the facts that what would be required for a claim for breach of fiduciary duty. The key missing piece with respect to both causes of action is the link between the defendant’s alleged acts and omissions and the damages she claims. I am not persuaded that the absence of the required allegations arises from Moore’s inability to make such allegations. It appears just as likely that, as a self-represented plaintiff, she failed to understand what she needed to plead or was careless.

[64] I do not see any purpose in permitting Moore to amend her claim for negligent infliction of emotional suffering. The only deliberately insensitive behaviour alleged in the statement of claim is Victor LLP’s response to Moore’s January 2019 email. This single act, by itself, does not rise to the level of conduct that would qualify as flagrant and outrageous. If Victor LLP had engaged in other arguably flagrant and outrageous conduct, then presumably Moore would have mentioned it. I conclude that she is unable to point to anything that could ground a claim for negligent infliction of emotional suffering.

[65] I do not find that Victor LLP will be unfairly prejudiced if Moore is permitted to amend her pleading. I recognize that it has had to take steps to move this action forward and that it has been the target of other lawsuits by Moore. It will likely be entitled to costs on this motion. As already noted, however, it does not appear that Victor LLP has had to defend to any of the proceedings filed to date. Two of the actions were discontinued by Moore and two others were dismissed on requisition. Victor LLP has served a statement of defence in the present claim. This implies that the statement of claim is not so clearly deficient that it is unable to understand, broadly speaking, the case it must meet.

[66] I therefore conclude that Moore should be granted leave to amend her negligence claim and her claim for breach of fiduciary duty.

Should a stay be granted?

[67] In its motion, Victor LLP asks for an order, pursuant to s. 106 of the Courts of Justice Act, to stay this action pending the outcome of the matrimonial litigation. This relief was sought as an alternative to striking or dismissing the lawsuit. In my view, however, a stay should be ordered even though I have also granted the motion to strike.

[68] Moore’s claim against Victor LLP is premised on the theory that she and her children have been financially and psychologically compromised due to Victor LLP’s negligent handling of her case, in particular the alleged inadequacy of the answer it helped her to prepare in January 2016, and the interim agreement it drafted in December 2016. It will be impossible to ascertain if these claims are founded until the matrimonial litigation is resolved. If Moore obtains the orders she seeks or her claims against Kiska are settled, some or all of her claims against Victor LLP will be moot. If her claims against Kiska are dismissed after trial, the court’s decision will indicate why. Either way, the outcome of the matrimonial litigation will inform what happens next in this proceeding.

[69] In these circumstances, it is appropriate for the court to exercise its jurisdiction, pursuant to s. 106, to suspend this action pending the outcome of the matrimonial litigation. Neither Moore nor Victor LLP should be required to take any further steps in this action until then.

Disposition

[70] The motion is granted on the following terms:

• The statement of claim is struck as disclosing no reasonable cause of action;
• The action is stayed until all claims in Superior Court file no. FC-15-2446 are wholly resolved, either through settlement or final order; and
• Moore is granted leave to amend her statement of claim to remedy the identified deficiencies with respect to her claims for negligence and breach of fiduciary duty, should she wish to do so after the matrimonial litigation is resolved. In that case, she shall serve an amended statement claim on Victor LLP within 60 days of the expiry of the stay of the action, that is, on signature of a final settlement of all claims in the matrimonial litigation or a final court order in that litigation.

[71] If the parties are unable to agree on costs, Victor LLP shall serve and file a costs outline, attaching a draft bill of costs and any other relevant documents, within ten days. Moore shall serve and file a responding costs outline, to which she may attach directly relevant documents, within ten days of receipt of Victor LLP’s submissions. Each costs outline shall not exceed three pages in length. Materials shall be submitted to the Court in searchable pdf format by email to ottawa.scj.courts@ontario.ca.

Justice Sally Gomery Released: February 24, 2021

Appendix

Court File No.: CV-19-79074 Date: 2021/02/24 Ontario Superior Court of Justice Between: Deirdre Moore, Plaintiff/Respondent And: Victor Vallance Blais LLP, Defendant/Moving party Decision on Summary Judgment Motion Justice Sally Gomery Released: February 24, 2021

March 8, 2021: On page 1, the previous neutral citation has been replaced by the following: CITATION: Moore v. Victor Vallance Blais LLP, 2021 ONSC 1400

References

[1] Das v. George Weston Ltd., 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 74. See also Hartmann v. Amourgis, at para. 11, aff’d on appeal at 2009 ONCA 33. [2] Khan v. Law Society of Ontario, 2020 ONCA 320, at para. 9. [3] Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 25; R. v. Imperial Tobacco, 2011 SCC 42, cited in Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, at para. 31. [4] Das v. George Weston Ltd., at para. 74. [5] Bastien v. Egalite, 2016 ONSC 7652, at para. 21, citing Williamson v. Toronto Police Service, 2001 CarswellOnt 2226, at para. 51. [6] Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] S.C.R. 114 (SCC) at para. 3. [7] Vorvis v. Insurance Corporation of British Columbia, [1989] 1 SCR 1085. [8] In its argument on the motion, Victor LLP relied on Merrifield v. Canada. The distinction made by the Court of Appeal in that case, however, was between intentional infliction of mental distress and harassment. [9] Merrifield v. Canada (Attorney General), 2019 ONCA 205, at para. 45. [10] Currie v. Halton Regional Police Services Board, at para. 17. [11] Re Lang Michener and Fabian. [12] Currie v. Halton Regional Police Services Board, at para. 17. [13] Aristocrat Restaurants Ltd. v. Ontario, 2003 CarswellOnt 5574 (Ont. S.C.), at paras. 85-86.