COURT FILE NO.: CV-18-27210
DATE: 20210323
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Behzad Mubarik, Ambreen Mubarik, and Shehzad Mubarik by their Litigation Guardian Noorin Malik, Noorin Malik, Tazeen Mubarik, Farid Mubarik
Plaintiffs
– and –
Diversicare Canada Management Services Co. Inc., c.o.b. as Tilbury Manor Long-Term Care Home, Dennis Boshetto, Denise Kato, Jennifer Middleton, Pat Taylor, Sarah Le, Colin Bryan and Jane Doe Nos. 1 and 2
Defendants
Madelaine Hofford, Counsel for the Plaintiffs
Sarah Martens, Counsel for the Defendant Colin Bryan, not participating in the Motion
Anne Davenport, Counsel for the remaining Defendants
HEARD: February 1, 2021
RULING
CARROCCIA J.
[1] The plaintiffs brought a motion seeking an order to amend the amended statement of claim to add the names of 17 individuals as defendants to this action and an order for the costs of this motion if it is opposed.
[2] The plaintiffs also seek to dismiss the action as against the defendants Pat Taylor, Dennis Boschetto and Denise Kato.
[3] The defendants filed a cross-motion seeking to strike the pleadings against the defendants, Jennifer Middleton and Sarah Le, and to strike the pleadings as against the same 17 individuals who are proposed to be added to the amended statement of claim, if that amendment is granted, as well as costs.
[4] The defendants consent to the proposed amendment to dismiss the action against Pat Taylor, Dennis Boschetto and Denise Kato.
Background
[5] The plaintiff in this matter, Behzad Mubarik, is a 26-year-old man who was born with cerebral palsy. He is wheelchair dependent and developmentally delayed. He is non-verbal and has a seizure disorder. He ordinarily resides with his parents and his siblings. The other named plaintiffs are his family members.
[6] The allegations in the statement of claim arise out of a personal injury incident. The plaintiffs allege that Mr. Mubarik sustained a fractured right femur while he was in the care of the defendants some time between May 16, 2018 and May 20, 2018. During that period, his parents had taken him to Diversicare Canada Management Services Co. Inc., (“Diversicare”) c.o.b. as Tilbury Manor Long-Term Care Home, (“Tilbury Manor”) for respite care services. On May 20, 2018, Behzad Mubarik was brought to the hospital from Tilbury Manor where it was discovered that he suffered from a fractured right femur and required surgery.
[7] The statement of claim was originally filed on December 10, 2018, and an amended statement of claim was filed on February 22, 2019. At the time that the statement of claim was filed, it included Jane Doe No. 1 and Jane Doe No. 2 as defendants. The affidavit of Karen Hulan, sworn April 27, 2020, indicates that at the time of issuance of the claim, there were a number of staff members at Tilbury Manor who had responsibility for Mr. Mubarik’s care, including personal support workers, developmental service providers, registered nurses, nurse practitioners and registered practical nurses, volunteer students, healthcare aids, rehabilitation workers, and physicians but whose identities were unknown to the plaintiffs. The affidavit goes on to indicate that the defendants referred to as Jane Doe Nos. 1 and 2, were individuals who were responsible for the plaintiff’s care and/or individuals who had supervisory responsibility at Tilbury Manor.
[8] Tilbury Manor and its employees filed a statement of defence and crossclaim on November 8, 2019. Dr. Colin Bryan, who filed a statement of defence and crossclaim, did not participate in these motions.
[9] One of the named defendants, Pat Taylor, advised counsel for the plaintiffs on May 21, 2019 that she was not working at Tilbury Manor at the time of the incident and had not worked there since 2014.
[10] Once the affidavit of documents was provided by the defendant, Tilbury Manor, the plaintiffs were made aware of the “partial” identities of some of the individuals who they now seek to add as defendants to this action.
[11] On September 27, 2019, counsel for the plaintiffs contacted counsel for Tilbury Manor by letter requesting further information about the identities of some of the unnamed staff members and personal support workers referenced in the records contained in the affidavit of documents.
[12] On January 23, 2020, counsel for Tilbury Manor and its employees advised counsel for the plaintiffs of the identities of the individuals referenced in the records. Counsel for the defendants also indicated that the defendants, Dennis Boschetto and Denise Kato, had no involvement in the operation of Tilbury Manor or the care of Mr. Mubarik.
[13] The plaintiffs allege, in the affidavit referred to above, that “there is evidence that these proposed defendants [the additional 17 individuals] had a role in the care of Mr. Mubarik as evidenced by the records provided by counsel for Diversicare.”[^1]
[14] The defendants take issue that discoveries were unilaterally cancelled by the plaintiffs pending the outcome of this motion.
[15] At the time this motion was first filed, the limitation period had not expired. The motion was delayed as a result of scheduling issues due to the COVID-19 pandemic.
The Plaintiffs’ Motion
[16] The plaintiffs rely on r. 26.01 and r. 26.02(c), as well as r. 5.04, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in support of their motion to amend their pleading.
[17] Because the plaintiff, Behzad Mubarik is non-verbal, he is unable to provide any information as to how he suffered a broken leg, and is therefore unable to say who, if anyone, was negligent in caring for him. The plaintiffs are relying on documentary and testamentary evidence to determine the circumstances surrounding the injury.
[18] The position of the plaintiffs is that they simply seek to substitute the now-identified individuals for the defendants previously identified as Jane Doe Nos. 1 and 2.
[19] It is their position that the Rules of Civil Procedure provide for an amendment to pleadings at any stage in the proceedings, including the addition of parties, and that they have pleaded a proper cause of action against the named and proposed defendants.
The Defendants’ Cross-motion
[20] The defendants oppose the order sought by the plaintiffs as prejudicial and an abuse of process and urge the court to decline to grant leave to amend the pleadings.
[21] On their own motion, the defendants seek to strike the pleadings against the defendants, Jennifer Middleton and Sarah Le, and they seek to strike the pleadings against the 17 proposed new defendants if the plaintiffs’ motion is granted. They rely on rules 21.01 and 25.06.
[22] They plead that at all relevant times, the defendants, Jennifer Middleton and Sarah Le, as well as the 17 proposed additional defendants were acting in the course of their employment and, as such, Diversicare is vicariously liable for any wrongdoing of its employees in the course of their employment.
[23] Further, they take the position that the proposed amended statement of claim does not meet the requirements of a pleading under the rules as it does not disclose sufficient particulars of the basis of personal liability of the additional defendants.
Motion to Amend
Legal Principles and Analysis
[24] Rule 26.01 provides:
On motion, at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. [Emphasis added.]
[25] The law as it relates to motions granting leave to amend pleadings is set out succinctly in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, at para. 25:
The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:
The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to SCC refused, 2010 CarswellOnt 425, and Andersen Consulting v. Canada (Attorney General) (2001), 2001 CanLII 8587 (ON CA), 150 O.A.C. 177 (C.A.), at para. 37.
The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 1996 CanLII 8109 (ON SC), 27 O.R. (3d) 479 (Gen. Div.), rev’d on other grounds (1999), 1999 CanLII 3051 (ON CA), 42 O.R. (3d) 641 (C.A.), aff’d 2002 SCC 18, [2002] 1 S.C.R. 595.
There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21, and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768 (C.A.), at para. 65.
The non-compensable prejudice may be actual prejudice, i.e. evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King’s Gate Developments Inc. v. Drake (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841 (C.A.), at paras. 5-7, and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7105 (ON SC), 25 O.R. (3d) 106 (Gen. Div.), at para. 9.
Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky (1996), 1996 CanLII 1762 (ON CA), 95 O.A.C. 297 (C.A.), at para. 2, and Andersen Consulting, at paras. 36-37.
At some point the delay in seeking an amendment will be so lengthy and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135(Ont. C.A.), at para. 6.
The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 1996 CanLII 36 (ON CA), 27 O.R. (3d) 576 (C.A.), at paras. 3-4, and Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 CanLII 64295 (ON SC), 66 O.R. (3d) 74 (Master), at para. 21.
The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.
[26] The language of r. 26.01 is mandatory and an amendment shall be granted absent evidence of non-compensable prejudice.
[27] The rule as to joinder of parties that applies is r. 5.04(2) which states:
At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[28] This rule grants a measure of discretion to the court unless the addition, deletion or substitution of a party would result in non-compensable prejudice.
[29] In their motion, the plaintiffs seek to amend the pleadings by substituting the names of 17 parties for the previously unknown Jane Doe Nos. 1 and 2 and, accordingly, both rules 26.01 and 5.04(2) are engaged.
[30] The defendants argue that the pleadings do not disclose any reasonable cause of action against the 17 employees, in their personal capacities. Further, because they are employees and the employer is already a named defendant, the addition of these employees accomplishes nothing. The employer can be held vicariously liable for the actions of the employees in any event.
[31] The circumstances of this case are similar to those in Macksoud (Litigation Guardian of ) v. Carroll, 2011 ONSC 7351, where the plaintiffs brought a motion to add the names of three registered nurses as defendants in a medical negligence claim following the hospital birth of a child.
[32] In that case, Heeney J. granted leave to the plaintiffs to amend the pleadings to add the names of the three nurses as defendants. At para. 22 of the decision he wrote:
Ms. McKernan [counsel for the defendants] is correct that it is not really necessary to add these three nurses as individual defendants. Since they are employees of the Leamington Hospital, and since the hospital is already a defendant, the acts of negligence of these nurses, if proven, would render the hospital liable even if they were not named as parties themselves. Nevertheless, it is preferable that they participate in this action as named parties. From the standpoint of both the plaintiffs and the proposed defendants, rights of discovery and other benefits flow from being named as parties to the action. And as to the proposed defendants themselves, their professional competence as nurses is being called into question, and they should be afforded the standing, as parties, to mount a defence to those allegations.
[33] The Ontario Court of Appeal in Schembri v. Way, 2012 ONCA 620, wrote at paras. 26-27:
There is neither an allegation of prejudice nor a limitation period issue here, and the action is at an early stage. The plaintiffs could commence a new action against the proposed defendants and then seek to join it with the existing action. The procedure of adding parties to the existing action circumvents the costly and time-consuming process involved in that procedure.
Because this is a motion to amend pleadings, the allegations in the pleading are taken to be true and provable. The only issue, therefore, is whether the allegations, as pleaded, plead all of the necessary components of an identifiable cause of action.
[34] And further, at paras. 43-45:
In my view, Moldaver J.A.’s statement in Andersen, quoted above, is again applicable. Where a party wishes to amend a claim or add a new party within the limitation period, the facts pleaded are taken to be true and provable (subject to unprovable assumptive or speculative conclusions) and the court is to assess the tenability of the claim on that basis.
The trial judge also found that to join the Way Family Trust would unduly complicate the action and cause significant prejudice to the Trust in having to produce documents and incur accounting and legal expenses. However, this is not the type of prejudice envisioned by the rule. Unfortunately, everyone involved in litigation must endure the time and expense involved in its procedures. In any event, the plaintiffs were not seeking to add a party late in the litigation but at a fairly early stage before examinations and production.
Once the motion judge determined that the proposed pleadings adequately disclosed and pled the asserted causes of action, the fact that the plaintiffs did not produce evidence to support the allegations was not a reason to refuse the amendment.
[35] The defendants oppose the proposed amendments to the pleadings on the basis of prejudice, and as an abuse of process.
[36] With respect to prejudice, the defendants argue that prejudice flows from improperly adding defendants that will unnecessarily complicate and lengthen the proceedings.
[37] In my view, this argument must fail. As is outlined by Hourigan J.A., at para. 25, in 1588444 Ontario Ltd., non-compensable prejudice does not include any prejudice from the fact that the proposed amendments may increase the complexity of or lengthen the trial. Furthermore, where actual prejudice is alleged, specific details must be provided. In this case, none were.
[38] In Steel Tree Structures Ltd. v. Gemco Solar Inc., 2016 ONSC 955, at para. 24, the Divisional Court says the following regarding the interplay between r. 26.01 and r. 5.04(2):
The initial question for the court to ask under rules 26 and 5.04(2) is whether the proposed defendant would suffer non-compensable prejudice. While under rule 5.04(2), the court has the discretion to deny the amendment in the absence of non-compensable prejudice, such discretion should not be invoked often. Added complication to the action and increased work and legal expense is not the type of non-compensable prejudice envisioned by rules 26 and 5.04(2) (see Voutour v. Pfizer Canada Inc., [2008] O.J. No. 3070 at para. 21; Mazzuca v. Silvercreek Pharmacy Ltd. 2001 CanLII 8620 (ON CA), [2001] O.J. No. 4567 at paras. 25, 30 and 84; Schembri v. Way, 2012 ONCA 620 at paras. 25-26 and 42-44).
[39] I find that the defendants have not established the proposed amendment would result in non-compensable prejudice. Accordingly, I will now address the issue as to whether the amendment constitutes an abuse of process. If the requested amendment discloses a reasonable cause of action against the individual defendants and is not an abuse of the court’s process, it should be granted.
[40] As stated in Steel Tree Structures Ltd v. Gemco Solar Inc., referred to above, a court’s discretion to deny an amendment pursuant to r. 5.04(2) should not be invoked often.
[41] At this stage in the proceedings, the facts pleaded in the statement of claim are taken to be true and provable. I note that the proposed amendment involves the addition of individual defendants who were allegedly involved in the care of Mr. Mubarik, or responsible for supervising those who were involved in his care. The amendment sought advances no new claim, no new relief is requested, and no new facts are alleged.
[42] The plaintiff, due to his limitations, is at a significant disadvantage in that he is unable to verbalize or communicate the circumstances that lead to his injury. The defendants, or some of them, on the other hand, may have first-hand knowledge as to what occurred.
[43] In the fresh as amended statement of claim[^2], the plaintiffs make a claim for damages for negligence, breach of contract, breach of fiduciary duty and spoliation of evidence.
[44] They state that each of the individual defendants (as well as the 17 individuals proposed to be added) were “charged with the responsibility of ensuring Behzad’s safety while he was in their care and were in a position of fiduciary to Behzad”,[^3] and had entered into a contract relating to his care. The plaintiffs outline 24 different ways that they claim the defendants were negligent and/or breached their duty to the plaintiff. The pleading does not, however, particularize what each individual defendant (or proposed defendant) is alleged to have done or failed to do.
[45] In this case, the plaintiffs allege negligent care by the defendants. Their position is that the proposed defendants have direct knowledge regarding the incident at issue, they were involved individually and collectively in the care of the plaintiff, Behzad Mubarik, and, as a result, it is necessary to add them as defendants.
[46] Both counsel referred me to the decision in Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017. In that case, the Court of Appeal agreed that the motions judge erred in striking the statement of claim against the individual defendants, namely the unknown barista who allegedly poured scalding water on the plaintiff’s hands and the manager on duty.
[47] The court emphasizes, at paras. 7-8, that it is not an abuse of process to add the individual defendants for the purpose of discovery:
The motion judge also held that the pleading against the individual defendants was an abuse of process because they were named parties solely to obtain discovery. Even accepting that the two defendants were named solely to examine them for discovery, doing so in this case does not amount to an abuse of process. Quite the contrary. It is not an abuse of process to bring a lawsuit against individual defendants for the purpose of obtaining discovery from them, if the plaintiff has pleaded a proper cause of action against those individual defendants, as we have found that the plaintiff has in this case.
Again, as Justice McLachlin said in London Drugs Ltd. v. Kuehne & Nagel International Ltd., unless the alleged individual tortfeasor is named, “the right to discovery and use of evidence of the testimony of the person who was actually negligent might be lost.” The situation would be different if the plaintiff had named defendants who had no direct involvement in the substance of the claim. That is not the situation here.
[48] I have also been referred to the very helpful, and often repeated summary of the test for adding a party pursuant to r. 5.04(2) that was stated by Master MacLeod in Plante v. Industrial Alliance Life Insurance Co., 2003 CanLII 64295 (ON SC), [2003] O.J. No. 3034, at para. 27:
The tests for adding a party under rule 5.04(2) may therefore be stated as follows:
(a) The proposed amendment must meet all of the tests under rule 26.01.
(b) Joinder should be appropriate under rule 5.02(2) or required under rule 5.03. The addition of the parties should arise out of the same transaction or occurrence (rule 5.02(2)(a)), should have a question of law or fact in common (rule 5.02(2)(b)), or the addition of the party should promote the convenient administration of justice (rule 5.02(2)(e)). Adding a party will be particularly appropriate if it is unclear which of the original defendant or the proposed defendant may be liable (rules 5.02(2)(c) or (d)), or if it is necessary that the proposed defendant be bound by the outcome of the proceeding or his or her participation is otherwise necessary to allow the court to adjudicate effectively(rule 5.03(1)).
(c) Joinder should not be inappropriate under rule 5.03(6) or 5.05. The addition of a party should not unduly delay or complicate a hearing or cause undue prejudice to the other party. In a case-managed proceeding, it may also be appropriate to withhold consent if it will cause significant disruption to the court-ordered schedule: Belsat Video Marketing Inc. v. Astral Communications Inc. (1999), 1999 CanLII 1092 (ON CA), 86 C.P.R. (3d) 413, 118 O.A.C. 105 (C.A.). [See Note 12 below]
(d) Addition of a party will not be permitted if it is shown to be an abuse of process. Abuse of process will exist where the addition of a party is for an improper purpose such as solely to obtain discovery from them, to put unfair pressure on the other side to settle, to harass the other party or for purely tactical reasons: National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (QL) (Gen. Div.); MacRae v. Lecompte (1983), 1983 CanLII 3052 (ON SC), 143 D.L.R. (3d) 219, 32 C.P.C. 78 (Ont. H.C.J.).
[49] I note, however, that subparagraph (d) above seems to be contradicted by the statement of the Ontario Court of Appeal in Sataur v. Starbucks Coffee Canada Inc., at para. 7, as it relates to adding a party to obtain discovery provided a proper cause of action is pleaded.
[50] In Sataur v. Starbucks Coffee Canada Inc., the court held that under Canadian law, the concept that an employer may be held vicariously liable for its employees acting within the scope of their employment “can live together” with the concept of an employee’s personal liability for their own negligence while acting within the scope of their employment.[^4]
[51] Despite the defendants’ position that individual defendants that are proposed to be added to the action are not necessary parties to the litigation, and given the test to be applied regarding amendments to pleadings, I do not find that it would be an abuse of process to grant the proposed amendment.
[52] As the court said in Schembri v. Way, where a party brings a motion to amend pleadings at an early stage in the proceedings, the facts pleaded are taken to be true and the tenability of the claim is assessed on that basis.
[53] As I mentioned earlier, the circumstances of this case are akin to those Heeney J. dealt with in Macksoud (Litigation Guardian of) v. Carroll, at paras 16-17, where an amendment like the one at issue here was granted.
The allegations against the other nurses are non-specific, but that is almost unavoidable, given that their alleged negligence flows from having failed to do certain things, rather than having actively committed any errors. Anne King and Barb Tetreault, who were providing nursing care for Kaden at the relevant time, would know that the negligence attributed to Jane Doe R.N. is, in reality, being attributed to them.
Ms. McKernan concedes that the proposed defendants will not suffer any prejudice that cannot be compensated for by costs or an adjournment. It follows, in my view, that the proposed defendants should be added and the Fresh as Amended Statement of Claim should be amended accordingly, unless this is a “proper case” for the court to exercise its residual discretion and deny the motion.
[54] Accordingly, the plaintiffs’ motion to amend the pleadings by adding the names of the 17 identified defendants will be granted for the following reasons:
The plaintiffs’ motion was brought at an early stage in the proceedings and the limitation period has not yet expired;
The defendants have not established that granting the amendment would result in non-compensable prejudice;
Adding the 17 proposed defendants does not constitute an abuse of process; and
The plaintiffs have established an identifiable cause of action and a tenable claim.
Motion to Strike the Pleadings
Legal Principles and Analysis
[55] As mentioned, the defendants’ cross-motion seeks to strike the pleading as against the defendants, Jennifer Middleton and Sarah Le and, if the plaintiffs’ motion to amend the pleadings is granted, they seek to strike the pleadings against the 17 added defendants.
[56] The defendants rely on rules 21.01(1)(b), and 25.06 in support of their position.
[57] Rule 21.01(1)(b) states that:
21.01(1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence
[58] Rule 25.06(1) states that:
25.06(1) Every pleading shall contain a concise 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.
[59] The test to be applied in a motion for relief pursuant to r. 21.01(1)(b) is set out by the Ontario Court of Appeal in Tran v. University of Western Ontario, 2015 ONCA 295, at para. 16:
The test on a rule 21.01(1)(b) motion to strike is whether it is plain and obvious that the statement of claim discloses no reasonable cause of action: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 960. In McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39, this court explained that on a rule 21.01(1)(b) motion to strike: (1) all essential elements of a cause of action are to be pleaded, and (2) the pleading must be read generously with allowances for drafting deficiencies.
[60] As it relates to the individual liability of employees, the court goes on at para. 17 to say:
While the scope of individual liability as distinct from corporate liability is not always clear, it is undisputed that when a plaintiff purports to sue both a corporation and individuals within that corporation (whether officers, directors or employees), the plaintiff must plead sufficient particulars which disclose a basis for attaching liability to the individuals in their personal capacities: Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 CanLII 2447 (ON CA), 37 O.R. (3d) 97, at p. 102. As Labrosse J.A. explained in 460635 Ontario Ltd. v. 1002953 Ontario Inc. (1999), 1999 CanLII 789 (ON CA), 127 O.A.C. 48, at para. 8: “ ‘[P]roperly pleaded’ as it relates to personal liability of corporate directors, officers and employees must be read as ‘specifically pleaded’, a separate claim must be stated against the individual in his personal capacity.”
[61] On a r. 21 motion to strike, no evidence is permissible, nor does the court make findings of fact.
[62] The defendants argue that the proposed fresh as amended statement of claim does not meet the requirements of a pleading set out in r. 25.06 in that it does not state a separate claim against the individuals in their personal capacities.
[63] Furthermore, counsel for the defendants indicated that she confirmed in writing that any actions of the employees of Tilbury Manor were actions taken in the course of their employment and there was no need to name the employees individually.
[64] Ms. McIntosh, in her affidavit sworn in support of the cross-motion, also states that she undertook in writing, to produce the defendants Jennifer Middleton and Sarah Le for discovery if they were released from the action but received no response from counsel for the plaintiffs to this suggestion.
[65] The plaintiffs take the position that the defendants have failed to meet the test to strike the pleadings in that they have not established that it is “plain and obvious” that the statement of claim discloses no reasonable cause of action. It is their position that the pleadings should not be struck against any of the defendants.
[66] Burns v. RBC Life Insurance Company, 2020 ONCA 347, is a very recent decision of the Ontario Court of Appeal. That case deals with the adequacy of claims pleaded against corporate employees for torts allegedly committed in the course of their employment. The court considered an appeal of a decision striking out a claim against employees of a corporation as disclosing no reasonable cause of action against them.
[67] The court says at paras. 16 and 17 of the decision:
Rule 25.06(1) requires a statement of claim to contain a concise statement of the material facts on which the party relies for its claim. Each defendant named in a statement of claim should be able to look at the pleading and find an answer to a simple question: What do you say I did that has caused you, the plaintiff, harm, and when did I do it? [emphasis added]
Mr. Burns’ statement of claim does not provide either Ms. McLean or Ms. Oslizlok with an individualized answer to that question. The heart of Mr. Burns’ claim against Ms. McLean and Ms. Oslizlok is found in paras. 29 through to 35 of his statement claim, much of which is reproduced above. None of those paragraphs of the statement of claim inform Ms. McLean or Ms. Oslizlok what each did individually that Mr. Burns alleges constitutes actionable wrongs against him for which he seeks a remedy, and when did they it. Instead, his pleading lumps the defendants together, without providing the necessary separate, differentiating material facts that could support a claim against each individual. [emphasis added]
[68] In the fresh as amended statement of claim, the plaintiffs allege:
NEGLIGENCE, BREACH OF FIDUCIARY DUTY, AND BREACH OF CONTRACT
- The Defendants were responsible for the care well being supervision and safety of Behzad while he was under their care and control. They failed in that duty, and breached the standard of care and were thereby negligent singly and/or in combination as follows:
(a) they were in loco parentis at all material times and failed to conduct themselves in a manner that was consistent with that duty;
(b) they failed to ensure that they and/or their agents or employees were informed about Behzad’s special cognitive and physical needs;
(c) they failed to properly establish maintain and/or enforce guidelines, policies and/or procedures regarding the supervision of clients including clients with special cognitive and physical needs;
(d) they failed to establish and maintain any or adequate safety standards to ensure the presence of properly trained staff;
(e) they failed to properly train the staff and/or failed to ensure that those individuals were qualified to perform the responsibilities of their respective employment positions with Tilbury Manor; …
[69] The pleading goes on to allege negligence, breach of fiduciary duty and breach of contract in other ways. What it does not do is specifically identify how Jennifer Middleton, Sarah Le or any of the other 17 added defendants are personally liable, that is “what each did individually” and “when they did it”.
[70] In Sataur v. Starbucks Coffee Canada Inc, the Court found at paragraph 5 that the plaintiff had “pleaded specific acts of negligence against each individual defendant for which each may be personally liable - in the case of Jane Doe, the pouring of hot water, and in the case of Ms. Bovenberg - not supervising Jane Doe properly”.
[71] The fresh as amended statement of claim in this matter does not differentiate between the actions of any of the named individual defendants. All are lumped together.
[72] In Burns at para. 19, the court says in reference to the requirement set out in r. 25.06(1):
As applied to a tort claim, the rule requires a plaintiff to set out the materials facts specific to each defendant that support a claim against the defendant that it owed a duty of care to the plaintiff, and by reason of specified conduct, breached that duty and caused injury or harm to the plaintiff.
[73] While I appreciate the difficulties that the plaintiff, Behzad Mubarik, may have in identifying individuals given his personal circumstances, the law appears to be clear.
[74] The plaintiffs have failed to meet the requirements of r. 25.06(1) as clarified by the Ontario Court of Appeal in Burns. They have not set out material facts specific to each defendant who owed a duty of care to the plaintiff, Behzad Mubarik, to support a claim that, by reason of that specified conduct, the individual defendants caused injury or harm to the plaintiff.
[75] As a result, the pleadings will be struck as against Jennifer Middleton, Sarah Le and the 17 added defendants.
[76] The plaintiffs seek leave to amend the pleadings to particularize the claims against the defendants if the defendant’s motion to strike is granted.
[77] Leave to amend should only be denied in the clearest of cases. In these circumstances, I am prepared to grant the plaintiffs leave to amend the fresh as amended statement of claim. In support of this position, I rely on Burns, at para. 22, where the court says:
The motion judge denied Mr. Burns leave to amend but gave no reasons for doing so. As this court has stated, leave to amend should be denied only in the clearest of cases, especially where the deficiencies in the pleading can be cured by an appropriate amendment and the other party would not suffer any prejudice if leave to amend was granted: Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26; South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.
Conclusions
[78] I will grant the plaintiffs’ motion to amend the amended statement of claim in the form attached as Schedule “A” to the notice of motion.
[79] The fresh as amended statement of claim can be served on the defendants along with the order granting the amendment.
[80] On consent of the parties, the defendants, Dennis Boschetto, Denise Kato, and Pat Taylor will be removed from this action.
[81] The defendants’ cross-motion is granted and there will be an order striking the pleading against the defendants, Jennifer Middleton and Sarah Le, with leave to amend.
[82] There will also be an order striking the pleading against the 17 additional defendants named in the fresh as amended statement of claim with leave to amend.
[83] As the results were mixed, there will be no order as to costs.
“original signed and released by Carroccia J.”
Maria V. Carroccia
Justice
Released: March 23, 2021
COURT FILE NO.: CV-18-27210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Behzad Mubarik, Ambreen Mubarik, and Shehzad Mubarik by their Litigation Guardian Noorin Malik, Noorin Malik, Tazeen Mubarik, Farid Mubarik
Plaintiffs
– and –
Diversicare Canada Management Services Co. Inc., c.o.b. as Tilbury Manor Long-Term Care Home, Dennis Boshetto, Denise Kato, Jennifer Middleton, Pat Taylor, Sarah Le, Colin Bryan and Jane Doe Nos. 1 and 2
Defendants
RULING
Carroccia J.
Released: March 23, 2021
[^1]: Affidavit of Karen Hulan, sworn April 27, 2020, at para. 17. [^2]: Applicants’ Motion Record, Tab 1-A. [^3]: Applicants’ Motion Record, Tab 1-A, at para. 25. [^4]: Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, at para. 6.