COURT FILE NO.: CV-20-83613-CP
DATE: 2021/05/14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: OMEAD SAIER, Plaintiff
AND
THE OTTAWA HOSPITAL, Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Omead Saier, Self-represented plaintiff
Porter Heffernan, for the defendant and
for the proposed defendant, Elaine Lariviere
HEARD: March 22, 2021
ENDORSEMENT
Introduction
[1] Omead Saier was employed by the Ottawa Hospital (“the Hospital”) as a Registered Nurse on a full-time basis from June 2016 to January 2017 and, thereafter, on a part-time basis until August 2018.
[2] In May 2020, Mr. Saier commenced this action against his former employer, for damages of approximately $3,350,000. Mr. Saier divided his claims into the following four categories:
• Tort of Ruining Reputation/Defamation (defendant and third-party harassment);
• Tort of Psychological Injury and Human Rights Violation;
• Tort of sexual harassment and verbal assault;[^1] and
• Tort of Personal Injury and Hate Crimes.
[3] On a motion by the Hospital, Mr. Saier’s claims under the second, third and fourth categories listed above were dismissed: Saier v. The Ottawa Hospital, 2020 ONSC 7909 (“the Ruling”).
[4] The allegations with respect to defamation are set out at paras. 5-8 of Mr. Saier’s original pleading. That portion of the pleading was addressed at para. 78 of the Ruling:
The allegations of defamation in paras. 5 to 8 of the [Statement of Claim] are made under the heading “Tort of Ruining Reputation/Defamation (defendant and third party harassment)”. As a self-represented plaintiff, Mr. Saier may not have understood the particularity with which a claim based in defamation must be pleaded. I find that paras. 5 to 8 fall within the type of deficiency described immediately above; it is not plain and obvious that those paragraphs disclose no reasonable cause of action. As a result, the court must consider whether to grant Mr. Saier leave to amend those paragraphs. The process to be followed in that regard is discussed below, in the “Conclusion” section of this ruling.
[5] The order made in the Ruling set out what Mr. Saier was required to do in the event he chose to pursue a claim based in defamation:
If Mr. Saier intends to pursue the claims made in defamation (i.e., paras. 5 to 8), then he shall, no later than 4:00 p.m. on Thursday, January 7, 2021 deliver a motion record with respect to a motion for leave to amend the statement of claim.
The motion record referred to in paragraph 3, above, shall include a draft “Fresh as Amended Statement of Claim” restricted to the claims in defamation.
[6] On January 7, 2021, a motion record, including a notice of motion and a proposed “Fresh as Amended Statement of Claim” (“the Pleading”), was served on the Hospital. On the motion, Mr. Saier seeks relief permitting him to amend his original pleading and to add Elaine Lariviere as a defendant. The Hospital and Ms. Lariviere are collectively referred to in this ruling as “the Respondents”.
[7] On the motion, Mr. Saier also seeks relief with respect to the documentary and oral discovery process.
[8] The Respondents request the following relief in disposition of the motion:
• That the motion for leave to amend the Statement of Claim be dismissed because Mr. Saier has failed to plead the requisite elements of defamation – whether the allegations relate to the Hospital or to Ms. Lariviere;
• That the action in its entirety be dismissed;
• That the motion as it relates to the potential claim against Ms. Lariviere be dismissed because the action against her is statute-barred by reason of the expiration, in November 2020, of the applicable limitation period; and
• That, if Mr. Saier is permitted to proceed with the action – in one form or another – the court find that the request for procedural relief, related to the discovery process, is premature.
Preliminary Matters
[9] The notice of motion identifies that the documentary evidence upon which Mr. Saier intends to rely includes an affidavit to be sworn by him. No affidavit was served on the Hospital or filed with the court. On the return of the motion, counsel for the Respondents confirmed that his clients were prepared to proceed with the motion without any affidavit from Mr. Saier.
[10] The relief sought by Mr. Saier includes an order granting him leave to “issue an Amended Statement of Claim in this proceeding”. The relief that Mr. Saier requires, to permit him to proceed with an action based on the Pleading, is an order granting him leave to deliver the Pleading.
[11] Mr. Saier was represented by counsel when the motion record was delivered. He is now self-represented. It would not be cost-effective or efficient to require Mr. Saier to deliver another notice of motion in which the relief he requires is properly particularized. Given that he is self-represented, I have determined the motion on the basis that he is seeking leave to deliver the Pleading.
[12] The motion record was not served on Ms. Lariviere. She is a “person who will be affected by the order sought” within the meaning of r. 37.07(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Pursuant to that subrule, Mr. Saier was required to serve Ms. Lariviere with a copy of the motion record.
[13] On the return of the motion, counsel for the Respondents advised the court that (a) the contents of the motion record have been brought to Ms. Lariviere’s attention, and (b) Ms. Lariviere waives any deficiencies with respect to service of the motion record.
The Issues
[14] The substantive issues raised on Mr. Saier’s motion are as follows:
Is Mr. Saier entitled to leave to amend the Statement of Claim as set out in the Pleading?
Is Mr. Saier entitled to leave to add Elaine Lariviere as a defendant in the action?
Is Mr. Saier entitled to procedural relief related to the documentary and oral discovery process?
Issue No. 1 - Is Mr. Saier entitled to leave to amend the Statement of Claim as set out in the Pleading?
a) The Positions of the Parties
[15] Mr. Saier submits that the Pleading sets out, with sufficient particularity, how he was being defamed in his workplace and the impact of that defamation on him.
[16] The position of the Respondents is that, even when read as generously as possible, the Pleading does not meet the criteria for a claim based in defamation. The Respondents submit that the Pleading falls within the type of pleading that the court must be cautious against allowing to proceed.
b) Analysis
[17] This section of my ruling addresses only the substantive aspects of Mr. Saier’s claim in defamation against the Hospital. The proposed claim against and the potential limitation defence available to Ms. Lariviere are addressed separately under Issue No. 2.
[18] It is helpful to start with a definition of “defamation”. At para. 14 of her decision in Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 1998 CanLII 1983 (ON CA), 38 O.R. (3d) 97 (C.A.), leave to appeal refused, [1998] S.C.C.A. No. 170, Abella, J.A. (as she then was) premised her analysis on the following definition of a defamatory statement:
[It] is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one … [Citations omitted.]
[19] To set out the alleged defamatory statements, Mr. Saier divided the Pleading into sections. Paragraphs 9-13 are titled “The Purported Defamatory Statements”. At paras. 9, 10, and 11, Mr. Saier makes the following allegations:
On or around May 2018, Mr. Saier was humiliated before his colleagues as they learned of his alleged relationship with Mr. Scott.
Ms. Lariviere engaged in a campaign of spreading defamatory rumours targeting Mr. Saier, seemingly, as part of her opposition to his sexual orientation.
The Plaintiff further pleads that Ms. Lariviere took issue with the Plaintiff’s use of geosocial networking and online dating application, named “Grindr.”
[20] Paragraphs 12-16 of the Pleading do not include any allegations of statements made by Ms. Lariviere about Mr. Saier to anyone other than him. The statements referred to in those paragraphs are alleged to have been made during meetings between Ms. Lariviere and Mr. Saier.
[21] At para. 18, under the heading “Discoveries”, Mr. Saier alleges that “other Registered Nurses were privy to Ms. Lariviere’s intention to publicly ‘out him’.” At para. 26, under the heading “Malice”, Mr. Saier alleges that Ms. Lariviere “voluntarily spread anti-bisexual statements which she refused to retract.” In the balance of the Pleading there are no allegations that identify any statements allegedly made by Ms. Lariviere to third parties.
[22] For the reasons that follow, I find that the Pleading does not include the requisite elements to support a claim in defamation against the Hospital. The motion for leave to amend the originating process with respect to the claims against the Hospital and the action against the Hospital in its entirety are dismissed.
[23] It is well-known that a claim in defamation must be plead with sufficient particularity: Lysko v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.), at para. 91. To be entitled to pursue a claim in defamation, a plaintiff must demonstrate the following, as indicated by Lysko, at para. 101, citing Magnotta Winery Ltd. v. Ziraldo (1995), 1995 CanLII 7122 (ON SC), 25 O.R. (3d) 575 (Gen. Div.):
that he has pleaded all of the particulars available to him with the exercise of reasonable diligence;
that he is proceeding in good faith with a prima facie case and is not on a “fishing expedition”; normally this will require at least the pleading of a coherent body of fact surrounding the incident such as time, place, speaker and audience;
that the coherent body of fact of which he does have knowledge shows not only that there was an utterance or a writing emanating from the defendant, but also that the emanation contained defamatory material of a defined character of and concerning the plaintiff; [and]
that the exact words are not in his knowledge, but are known to the defendant and will become available to be pleaded by discovery of the defendant, production of a document or by other defined means, pending which the plaintiff has pleaded words consistent with the information then at his disposal.
[24] Under the modern rule with respect to a pleading in defamation, a plaintiff is not required to plead the precise words alleged to have been published by the defendant: Lysko, at para. 102. Even though Mr. Saier is not required to plead the precise words he alleges were spoken, he must still plead his claim in defamation so as to enable the Hospital to enter a defence to the pleading. The Hospital must be able to tell from the pleading (a) what the defamatory words were, (b) where they were spoken, (c) to whom they were spoken, and (d) whether the words spoken are defamatory to Mr. Saier: Metz v. Tremblay-Hall (2006), 2006 CanLII 34443 (ON SC), 53 C.C.E.L. (3d) 107 (Ont. S.C.), at para. 13.
[25] I find that nowhere in the Pleading do the allegations of defamation fulfill the requirements listed in (a) to (d), immediately above. The Pleading does not identify either the nature or the substance of the defamatory statements. Nor does it identify when, where, or to whom the words were spoken.
[26] At para. 9, Mr Saier alleges that he was humiliated in front of his colleagues “[o]n or around May 2018”. Identification in that manner of the date or dates on which the defamation is alleged to have occurred is not sufficiently clear to enable the Hospital to plead to it: Metz, at para. 54.
[27] I also note that, at para. 7 of the Pleading, Mr. Saier pleads, as a material fact, the existence of his “intimate sexual involvement with his male colleague, Mr. Scott.” At para. 9, Mr. Saier then relies on the alleged disclosure of the fact of that involvement in support of the claim in defamation. It is difficult to comprehend how the disclosure of a fact upon which Mr. Saier relies is defamatory to him.
[28] I agree with the submission of the Respondents that the Pleading is, in its essential character, a re-branded version of the claims advanced in the Statement of Claim and which were struck in the Ruling. Instead of particularizing a defamation claim as required, Mr. Saier has used the opportunity provided in the Ruling to address alleged harassment in the workplace and the alleged existence of a toxic workplace.
c) Summary
[29] The motion for leave to deliver the Pleading is dismissed. There being no cause of action made out against the Hospital, the action is dismissed in its entirety.
Issue No. 2 - Is Mr. Saier entitled to leave to add Elaine Lariviere as a defendant in the action?
a) The Positions of the Parties
[30] The Respondents’ position is that to the extent that the Pleading sets out the particulars of when the alleged defamatory statements were made, then the two-year limitation period applicable to Mr. Saier’s claims has expired and the claims against Ms. Lariviere are statute-barred. The Respondents rely on r. 5.04(2) of the Rules of Civil Procedure and ask the court to exercise the discretion it has pursuant to that subrule and dismiss the motion for leave to add Ms. Lariviere as a defendant.
[31] Mr. Saier did not make submissions with respect to the limitation period issue.
b) The Law
[32] The rule upon which the Respondents rely – r. 5.04 – addresses misjoinder, non-joinder, and parties incorrectly named. Subrule 5.04(2) provides that the court may “at any stage of the proceeding … 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”. That is not the only rule applicable to a motion to amend a pleading.
[33] Rule 26.01 provides that, “[o]n 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.”
[34] At the conclusion of the hearing of this motion, I directed the parties and the proposed defendant to deliver additional submissions. They were asked to address the potential impact of a dismissal of the motion for leave to deliver the Pleading on any claim against her that Mr. Saier might later attempt to pursue in a separate proceeding in which she is either (a) one of the named defendants or (b) the only named defendant.
[35] In their additional submissions, the Respondents reiterate their primary position – that leave to amend be denied because of the failure to disclose a cause of action in defamation against either the Hospital or Ms. Lariviere. Mr. Saier delivered additional submissions; they do not, however, address the substantive issue he and the Respondents were asked to address.
[36] The Respondents submit, and I agree, that the issues before the court are limited to those on the motion. The extent, if any, to which the outcome on this motion impacts other claims that Mr. Saier may attempt to pursue is a matter for another day and to be determined on a different record.
[37] It is significant to the proposed claims against Ms. Lariviere that Mr. Saier’s action against the Hospital is dismissed in its entirety. In Boland v. Bear Exploration & Radium Ltd., [1949] O.W.N. 503 (H.C.), at paras. 4-7, the court concluded that when an action against a present-named defendant cannot proceed, the court should refuse leave to add a new defendant.
[38] Applying Boland, because the action against the present-named defendant (i.e., the Hospital) cannot proceed, the proposed claims against Ms. Lariviere cannot be added to this action. The motion for leave to add Ms. Lariviere as a defendant in this action is dismissed.
[39] Subrule 5.04(2) of the Rules is a discretionary provision, and r. 26.01 a mandatory provision. If I am wrong in exercising my discretion under r. 5.04(2), I would, for the reasons set out above, conclude that the Pleading fails to disclose a reasonable cause of action against Ms. Lariviere and, under r. 26.01, deny Mr. Saier leave to amend the originating process to add the claims against Ms. Lariviere.
[40] I make no determination on the substantive issue of the limitation period applicable to the proposed claims against Ms. Lariviere.
[41] In light of the findings made and the conclusions reached in this ruling, Mr. Saier will want to think carefully before he attempts to pursue a separate claim against Ms. Lariviere. First, he has had two opportunities – the Statement of Claim and the Pleading – to properly plead a claim in defamation. He failed on both occasions. Second, through this motion for leave, he has been made aware of the limitation issue that will likely be raised by Ms. Lariviere in response to any further attempts to proceed with a claim against her.
Issue No. 3 - Is Mr. Saier entitled to procedural relief related to the documentary and oral discovery process?
[42] In light of the outcome under Issue Nos. 1 and 2, it is not necessary to determine Issue No. 3. In any event, had Mr. Saier been permitted to proceed with the action, I would have concluded that the request for relief related to the documentary and oral discovery process is premature.
Disposition
[43] For the reasons set out above, I order that (a) the requirement to serve Ms. Lariviere with the motion record is dispensed with, (b) the motion for leave to amend the originating process and deliver the Fresh as Amended Statement of Claim is dismissed, (c) the motion for leave to add Ms. Lariviere as a defendant in the action is dismissed, and (d) the action is dismissed in its entirety.
Costs
[44] The order made at para. 85(8) of the Ruling provides that costs of the Hospital’s earlier motion shall be determined together with the costs of Mr. Saier’s motion for leave to amend his pleading. If Mr. Saier and the Respondents are unable to agree on the costs of the Hospital’s motion and Mr. Saier’s motion for leave to amend, they shall make written submissions as follows:
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs and any case law referred to in the submissions;
b) Costs submissions shall be bookmarked. Any case law referred to therein shall be hyperlinked or, if hyperlinking is not possible, attached as a pdf document to the costs submissions;
c) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;
d) The Respondents shall deliver their costs submissions by 4:00 p.m. on the twentieth business day following the date on which this ruling is released;
e) Mr. Saier shall deliver his costs submissions by 4:00 p.m. on the thirtieth business day following the date on which this ruling is released; and
f) The Respondents’ reply submissions, if any, shall be delivered by 4:00 p.m. on the thirty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (c) above.
Madam Justice Sylvia Corthorn
Released: May 14, 2021
COURT FILE NO.: CV-20-83613-CP
DATE: 2021/05/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: OMEAD SAIER, Plaintiff
AND
THE OTTAWA HOSPITAL, Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Omead Saier, Self-represented plaintiff
Porter Heffernan, for the defendant and for the proposed defendant,
Elaine Lariviere
endorsement
Madam Justice Sylvia Corthorn
Released: May 14, 2021
[^1]: The title for this category of claims appears as it does in the Statement of Claim, with only the first word of the title capitalized.