Court File and Parties

COURT FILE NO.: CV-19-101 DATE: 2021-03-31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jordan McKee, Plaintiff (Responding Party) AND: Shervin Rowshani-Zafaranloo and Dr. Rowshani-Zafaranloo Dentistry Professional Corporation, Defendants (Moving Party)

BEFORE: Justice V. Christie

COUNSEL: Anna Matas, Counsel, for the Plaintiff (Responding Party) Krista Chaytor and Megan Mah, Counsel, for the Defendants (Moving Party)

HEARD: March 31, 2021

ENDORSEMENT

Overview

[1] The Defendants have brought a motion for an order striking paragraph 10 from the Reply and Defence to Counterclaim without leave to amend. The Defendants argue that the paragraph:

a. contains irrelevant and prejudicial allegations;

b. contains scandalous, frivolous or vexatious allegations against the Defendants;

c. contains evidence which should not be included in a pleading; and

d. is an abuse of process of the court.

[2] The Defendants contend that the paragraph is a bald and broad statement of the Defendants’ conduct in relation to other employees, with no supporting facts, and that these purported similar facts pleaded are:

a. not material to the claim or defence;

b. not sufficiently similar to the Plaintiff’s allegations related to her treatment;

c. pleaded merely to demonstrate propensity or character,

d. not provable without a prolonged inquiry;

e. an added complexity to discovery and trial, which outweighs the potential probative value; and

f. likely to result in prejudice or delay to the fair trial of this action.

[3] The Plaintiff responded that this motion to strike this one paragraph should be dismissed because:

a. The Rules allow for the pleading of similar facts;

b. The probative value of the similar facts plead outweighs any potential complexity in this case;

c. Repeated or systemic misconduct is relevant to the determination of punitive damages, which have been claimed by the Plaintiff;

d. The defendants have not produced any evidence of privacy concerns that would weigh against allowing the pleading of similar fact evidence; and

e. Striking this single paragraph will not change the Defendants’ production obligations, or the scope of permissible discovery in this case.

Background

[4] This action was commenced by the Plaintiff, a general dentist, against the dental practice (“the Corporation”) where she formerly practiced dentistry, and against the sole owner and directing mind of the Corporation. The matter involves an allegation of breach of the Plaintiff’s agreement with Dr. Rowshani and the Corporation. There is also a counterclaim by the Corporation for damages resulting from the Plaintiff’s alleged breach of contact and dental work performed by the Plaintiff which required correction.

[5] In 2015, Dr. McKee began practicing as an associate dentist at Dairy Lane and Gravenhurst, both owned by the Corporation. Dr. Mc Kee claims that there was initially an oral agreement. In January 2016, a written contract was signed. Dr. McKee worked at these locations for a few years.

[6] Dr. McKee claims that, when she returned from her two week honeymoon on April 1, 2019, Dr. Rowshani informed her that he would be cutting her hours in favour of a new male dental associate, and cutting the hours of another female dentistry associate who was, purportedly, often absent for child-care reasons. When she noted that she did not have any children, Dr. McKee claimed that Dr. Rowshani responded that she “did not have kids, yet”. Dr. McKee claims that on April 22, 2019, she was forced to leave the Practice as a result of Dr. Rowshani’s demeaning and unlawful conduct towards her, having notified Dr. Rowshani of her intention to do so on April 7, 2019. In subsequent correspondence, according to Dr. McKee, Dr. Rowshani threatened to report her to the Royal College of Dental Surgeons of Ontario.

[7] The Plaintiff’s Statement of Claim was issued on July 9, 2019 and service of the claim was accepted on July 12, 2019. The Plaintiff claims:

a. Damages in the sum of $18,000 for breach of contract or, in the alternative unjust enrichment on account of unpaid fees. (The Plaintiff claims that the Defendants are withholding payment of compensation for the period of April 1 – 22, 2019 in this amount;

b. General and aggravated damages in the sum of $100,000 for wrongful/constructive dismissal;

c. In the alternative, general and aggravated damages and / or equitable compensation in the sum of $100,000 for intentional / negligent infliction of mental suffering and breach of contract (or, in the alternative, inducing / causing such breach);

d. Damages in the sum of $40,000 for injury to dignity, feelings and self-respect in accordance with s. 46.1 of the Human Rights Code;

e. Special damages in an amount to be specified prior to trial;

f. Punitive and exemplary damages in the sum of $50,000;

g. Pre- and post judgement interest; and

h. Costs on a full indemnity basis.

[8] The pleadings in the statement of claim include the following:

15. Dr. McKee was aware that Dr. Rowshani had previously terminated or reduced the hours of other female employees and associates in connection with their pregnancies or maternity leaves. From Dr. Rowshani’s words and past behaviour, it became clear that he was reducing Dr. McKee’s hours and income because she had just married and may one day start a family. Feeling acutely upset, anxious and uncomfortable, Dr. McKee left the meeting in tears.

16. Dr. McKee immediately understood Dr. Rowshani’s conduct to have a discriminatory intent. She was aware from his words and actions, directed both to her and to others, that this decision was part of Dr. Rowshani’s discriminatory pattern of conduct towards female employees and associates in the Practice.

17. In subsequent correspondence addressing Dr. Rowshani’s discriminatory conduct, Dr. Rowshani threatened to report Dr. McKee to their regulatory body, the Royal College of Dental Surgeons of Ontario (“RCDSO”), in an effort to bully her into silence and submission about his discriminatory conduct and his decision to withhold her outstanding compensation.

18. The defendants flagrantly breached their duty of good faith and fair dealing through the conduct described above and ought to be sanctioned by a substantial award of punitive damages. The decision to unilaterally reduce Dr. McKee’s hours and earnings in order to make room for a male dental associate was made in bad faith and for discriminatory reasons.

19. Dr. Rowshani’s treatment of Dr. McKee is part of a discriminatory pattern of conduct towards women who are employed or provide dental services at his Practice locations. Such reprehensible conduct on the part of a regulated health professional is deserving of condemnation from this court. Dr. Rowshani’s discrimination and unapologetic abuse of power warrant an award of punitive damages.

[9] The Defendants served and filed a Statement of Defence and Counterclaim on August 12, 2019. The Defendants claim that the Plaintiff failed to provide the Defendants with sufficient notice of her resignation, and request $75,000 in damages as a result. Further, the Defendants claim that, since the Plaintiff ceased working at the clinic, the Defendants have discovered that the Plaintiff performed faulty dental work on numerous occasions which resulted in fees paid by patients in the amount of $11,023, and that the Defendants corrected this work at no charge to the patients.

[10] The Plaintiff served a Reply and Defence to Counterclaim on August 29, 2019. In response to the allegation of “faulty dental work”, it is stated in part:

10. Moreover, Dr. Rowshani’s allegations against Dr. McKee are part of a routine pattern of spurious allegations advanced by Dr. Rowshani against associates and employees after they leave the Practice, or whenever they express concern about Dr. Rowshani’s behaviour or mismanagement, in a calculated effort to bully them into silence and submission.

[11] Dr. Rowshani estimated in his affidavit on this motion that if he or the Corporation are required to produce documents related to any associate or employee who had left his dental practice, or any employee who has expressed concern about his behaviour or mismanagement of his dental practice, they would be required to produce documents related to approximately 90 individuals. The documents would also include three separate complaints filed by former employees against the Corporation at the Ontario Labour Relations Board which were investigated and resulted in no contraventions found.

Analysis

[12] The authority this court has to grant the relief sought on this motion is found in Rule 25.11, which states as follows:

25.11 The Court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court

[13] The exercise of this power may, in some cases, deny a litigant a full trial of the merits of the claim, and must be exercised only in the clearest of cases. See Wernikowski v. Kirkland, Murphy & Ain, 1999 CanLII 3822 (ON CA), [1999] O.J. No. 4812, 50 O.R. (3d) 124 (Ont. C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 98; Hudson v. Linamar Corp., 2010 ONSC 7248 at para 12.

[14] In Toronto (City) v. MFP Financial Services Ltd., 2005 CarswellOnt 3324, at para 15, the court held that “pleading motions should not to be approached in an overly technical manner”, and “generally speaking, a party should be at liberty to craft pleadings in a manner it chooses, providing the rules of pleading are not violently offended and there is no prejudice to the other side.” See also: Sleep Clinic London Inc. v. Merchea, 2012 ONSC 3004, [2012] O.J. No. 2471, 110 O.R. (3d) 657 (Ont. S.C.J.) at para 22.

[15] In Air Canada v. Westjet Airlines Ltd., 2004 CanLII 66339 (ON SC), [2004] O.J. No. 5627, 72 O.R. (3d) 669 (Ont. S.C.J.), paragraph 6, the court provided the principles to be considered on such a motion, as follows:

a. Motions under r. 25.11 should only be granted in the “clearest of cases”;

b. Any fact which can affect the determination of the rights of the parties can be pleaded but the court will not allow facts to be alleged that are immaterial or irrelevant to the issues in the action;

c. Portions of a pleading that are irrelevant, argumentative or inserted for prejudicial colour, or that constitute bare allegations should be struck out as scandalous;

d. Facts may be pleaded but not the evidence by which those facts are to be proved; and

e. Similar facts may be pleaded as long as the added complexity arising from their pleading does not outweigh their potential probative value

[16] Striking a pleading on the grounds that it “may prejudice or delay the fair trial of the action” under r. 25.11 is an exercise of discretion, for which the court “engages in a balancing process with the added complexity of the pleading being weighed against the potential probative value the facts alleged.” See Brodie v. Thomson Kernaghan & Co, [2002] O.J. No. 1850 (Ont. S.C.J.) at para 28 and 31

[17] In terms of pleadings of similar fact, the analysis is one of probative value vs. prejudicial effect. In Prism Data Services Ltd. v Neopost Inc., [2003] O.J. No 2994 (S.C.J.), Master Egan stated at para 9:

[9] The following principles apply when a party seeks to plead allegations of similar facts:

(a) such allegations are proper as long as the added complexity resulting therefrom does not outweigh the probative value;

(b) similar acts are not probative if there is not a sufficient degree of similarity;

(c) the similarity must be provable without a prolonged inquiry although, inevitably, the litigation process will be lengthened to some extent as a result of proper similar fact allegations;

(d) the added complexity should not lead to undue oppression or unfairness; and

(e) if a system or scheme of conduct is alleged the past similar acts must have sufficient common features to constitute the system or scheme.

[18] The Court in Garwood Financial Ltd. v. Wallace, 1997 CanLII 12276 (ON SC), [1997] 35 O.R. (3d) 280 (Gen. Div.), at page 6, referred to the case of MacKenzie v. Wood Gundy Inc. (1989), 35 C.P.C. (2d) 272 (Ont. H.C.J.) in which it was held that it is “improper to strike out a portion of the pleading containing similar fact evidence raised to show a course of conduct designed to lend credibility to the allegations of certain conduct pleaded in the case.

[19] Where a paragraph or pleading consists of a bald statement of the individual Defendant’s conduct in relation to other employees, with no supporting facts, the Court has held that it was frivolous and vexatious and should be struck under r. 25.11(b). See Damm v Research Capital Corp., 2006 CarswellOnt 6392 (Ont Sup Ct), para 15.

[20] It is the view of this court that the pleading in paragraph 10 of the Reply is significantly different than the pleadings in the Statement of Claim. This pleading is much broader in the sense of the group of people captured, given that the allegation is not restricted to conduct towards women, as previously pleaded, but rather to any associate or employee. The pleading is also much broader in the sense of the conduct alleged, given that the allegation is now “a routine pattern of spurious allegations advanced by Dr. Rowshani against associates and employees after they leave the Practice, or whenever they express concern about Dr. Rowshani’s behaviour or mismanagement, in a calculated effort to bully them into silence and submission.” There is no question that the pleading in the reply is meant to capture a larger pool of people and a larger pool of activity.

[21] Given its breadth, paragraph 10 of the Reply amounts to a bald statement with no supporting facts. The examples of previous conduct that the Plaintiff claims to be aware of have all allegedly related to women and to specific activities. In Dr. McKee’s affidavit filed on this motion, there was reference to four other female employees of the Practice “who had their hours changed, reduced or eliminated because of a pregnancy or a health-related concern” Dr. McKee then referred to the following:

a. An unnamed female dentistry associate who was purportedly absent for child-care reasons, and who had her hours cut to accommodate the new male hire;

b. An unnamed pregnant periodontist who was suddenly and unexpectedly replaced with a male periodontist. This person allegedly advised Dr. McKee that she was in the process of filing a complaint to the Human Rights Tribunal of Ontario because she was removed from the schedule shortly after disclosing her pregnancy to Dr. Rowshani. Further, this person allegedly advised Dr. McKee that she did not submit her claim because Dr. Rowshani threatened to report her to her regulatory body for poor quality dental work;

c. A named pregnant dental hygienist who was allegedly fired by Dr. Rowshani given that he claimed she was a “liability” because of her pregnancy; and

d. A named restorative hygienist, who had suffered a concussion and was then allegedly told that her hours of work were no longer available when she tried to return from a medical leave.

[22] These four specific instances that have allegedly come to the attention of Dr. McKee are clear and identifiable; whereas the pleading in paragraph 10 of the Reply would seem to capture anyone and anything. While the courts have recognized that repeated or systemic misconduct is relevant to the determination of punitive damages, in this case, no particulars have been provided with respect to the broad conduct alleged in paragraph 10. While the Plaintiff states that this is not a fishing expedition, they also admit that they simply do not know the scope of the behaviour at this point. This is, by definition, a fishing expedition. Black’s Law Dictionary defines a fishing expedition as “Using the courts to find out information beyond the fair scope of the lawsuit; the loose, vague, unfocused questioning of a witness or the overly broad use of the discovery process; discovery sought on general, loose, and vague allegations, or on suspicion, surmise, or vague guesses.” This, in my view, is nothing more than a speculative demand for information, without any anticipation of what, if any, information is available.

[23] Allowing the inclusion of paragraph 10 will result in an extensively prolonged discovery process and trial, involving issues of prior conduct in relation to other associates and employees who are not parties to this litigation and whose privacy interests may be affected. In stating to the contrary, the Plaintiff seems only to focus on its own case, and ignores the Defendants’ right to defend the claim.

[24] Further, there is no specificity to the claim to allow this court to make a finding of similarity. In Prism Data Services at paragraphs 9, 13 and 17, the court held that past similar acts must have sufficient common features to constitute the system or scheme. There is no way to assess that in this case given the vagueness and breadth of the pleading.

[25] This court agrees with the Plaintiff that the purpose of pleadings is to define the issues for the Court and provide sufficient information to allow the other side to know the case to be met. See MFP Financial, at para. 19. However, the considerations in Rule 25.11 must be analyzed and applied in a motion such as this.

[26] In its factum, the Plaintiff stated that:

[2]… The allegations, if proven, could demonstrate Dr. Rowshani’s scheme or pattern of discriminatory conduct – targeting female employees in connection with their pregnancy or maternity leaves. The similar facts are also relevant to the claim for punitive damages and give full context to the breaches under the Code.

If this is the true objective, then the objective is met by the inclusion of other pleadings which are not at issue on this motion. Paragraph 10 of the Reply does not further this objective, but rather sets out on a new and wider objective, which only serves to over complicate and distract from the real issues in this litigation.

[27] Having considered all of the circumstances, this court is satisfied that this pleading will prejudice and delay the fair trial of this action.

[28] The motion is granted and an order made striking paragraph 10 from the Reply and Defence to Counterclaim without leave to amend.

[29] If the parties are unable to agree as to costs of this motion, the court will accept written submissions on costs, which shall be no more than three pages in length, excluding supporting documentation, and which shall be provided to the court office in hard copy or by email no later than April 7, 2021.

V. Christie

Date: March 31, 2021