COURT FILE NO.: 59111/19

DATE: 20210525

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT BARBER, Plaintiff

AND:

RACHEL LUCY GOERZ, LAW SOCIETY NUMBER 63876V, PERSONALLY AND AS LEGAL COUNSEL FOR HERMANS SUPPLY COMPANY, HERMAN’S SUPPLY COMPANY, MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY, RON MCKERLIE, PRESIDENT OF MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY, KURT MULLER, DEAN AT MCKEIL SCHOOL OF BUSINESS, MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY, ANDREW MC.TEAR, ASSOCIATE DEAN AT MCKEIL SCHOOL OF BUSINESS, MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY, TAMMY LEIGH DUGGAN, LAW SOCIETY NUMBER P11903, PARALEGAL PLACEMENT OFFICER, AT THE MCKEIL SCHOOL OF BUSINESS, MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND ROSEMARIA ORTIZ, LAW SOCIETY NUMBER P069059, COORDINATOR/PROFESSOR OF THE PARALEGAL PROGRAM AT THE MCKEIL SCHOOL OF BUSINESS, MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY, Defendants

BEFORE: Mr. Justice Robert B. Reid

COUNSEL: M. Hoy, Counsel, for the Plaintiff

B. Whitwham, Counsel, for the Defendants Rachel Lucy Goerz, personally and as legal counsel for Herman’s Supply Company, and Herman’s Supply Company

N. O’Toole, Counsel, for the Defendants Mohawk College of Applied Arts and Technology, Ron McKerlie, President of Mohawk College of Applied Arts and Technology, Kurt Muller, Dean at McKeil School of Business, Mohawk

College of Applied Arts and Technology, Andrew McTear, Associate Dean at McKeil School of Business, Mohawk College of Applied Arts and

Technology, Tammy Leigh Duggan, Paralegal Placement Officer at the McKeil School of Business, Mohawk College of Applied Arts and Technology, Rosemaria Ortiz, Coordinator/Professor of the Paralegal Program at the McKeil School of Business and Mohawk College of Applied Arts and Technology

HEARD: March 4, 2021

ENDORSEMENT

Introduction:

[1] The plaintiff claims damages against the defendants for defamation, negligence, and breach of his rights under various statutes including the Canadian Charter of Rights and Freedoms.

[2] The moving parties seek an order striking the fresh amended statement of claim as against the defendants McKerlie, Muller, McTear, Duggan and Ortiz on the basis that the claim discloses no reasonable cause of action against them.

Nature of the case:

[3] The plaintiff was a student enrolled in the paralegal program at Mohawk College of Applied Arts and Technology (“the College”).

[4] Students in the paralegal program are given an opportunity to participate in a community placement. Herman’s Supply Company (“Herman’s”) offered one such community placement. Rachel Lucy Goerz was an employee of Herman’s and was the liaison person between the College and Herman’s for such placements.

[5] By email, the College provided Ms. Goerz a copy of the plaintiff’s resumé for consideration as a community placement. Ms. Goerz responded with two emails raising concerns arising from her knowledge of the plaintiff’s past employment history.

[6] The emails from Ms. Goerz were received on behalf of the college by Tammy Leigh Duggan in her capacity as paralegal placement officer. Based on the nature of the information in the email, Ms. Duggan shared the communications with the paralegal program coordinator, Rosemarie Ortiz. In turn, Ms. Ortiz was required in her professional capacity to share the email communications with Andrew McTear who was Associate Dean at the College and in turn, he was required in his professional capacity to share the information with Kurt Muller, who was Dean of the business school at the College. Ron McKerlie was the president of the College at the material times.

[7] There is no specific allegation that the information contained in the email from Ms. Goerz to Ms. Duggan was disseminated by the College or the Mohawk defendants to any individual or entity outside the College or that it was disseminated outside the course and scope of the various recipients’ employment there.

[8] Collectively, for the purpose of this motion, the moving parties Duggan, Ortiz, McTear, Muller, and McKerlie are referred to as the “Mohawk defendants”.

[9] The motion does not relate to the causes of action against the College or those against Ms. Goerz or Herman’s.

Applicable law:

[10] This motion is brought under rule 21.01(1)(b) of the Rules of Civil Procedure which permits the court to strike out a pleading on the ground that it discloses no reasonable cause of action. No evidence is admissible in support of the motion and the question is whether it is plain and obvious that the claim as pleaded discloses no reasonable cause of action. The facts pleaded are assumed to be true.

[11] It is well-established that personal liability is not made out against an individual employee of a corporation solely because a corporation may only act through human agency. I adopt the opinion of the Prince Edward Island Supreme Court (Appeal Division) in Kay Aviation b.v. v. Rofe, 2001 PESCAD 7 at para. 25 where the court said:

The imposition of personal liability on an employee, officer or director of a company is the exception rather than the rule. To justify a departure from this rule a plaintiff must plead all the relevant material facts to establish there is a reasonable cause of action. In the absence of specifically pleaded material facts the action against the director, officer or employee of the corporation will be struck. [Emphasis added.]

[12] In Tran v. University of Western Ontario, 2015 ONCA 295 at para. 17, the Ontario Court of Appeal emphasized that the phrase “properly pleaded” relating to personal liability of corporate employees must be read to mean “specifically pleaded”.

[13] Only in the rare situation where the employee commits an independent tortious act or where the employee’s actions exhibit a separate identity or interest from that of the employer will there be personal liability against the employee. As Finlayson J.A. observed in ScotiaMcLeod Inc. v. Peoples Jewellers Limited, 1995 CanLII 1301 (ON CA), 1995 CarswellOnt 1203, 26 O.R. (3d) 481[^1], at para. 25, in every case where personal liability of a defendant employee was alleged, the facts giving rise to that personal liability were specifically pleaded.

[14] That principle was adopted by Justice Perell in Burns v. RBC Life Insurance Co., 2019 ONSC 6977 at para. 26. He went on to say at paras. 35 and 36:

The acts of Ms. Mclean, in denying Mr. Burn’s disability claim, and of Ms. Oslizlok, in dismissing the appeal from Ms. Mclean’s decision, may make RBC Life vicariously liable for breach of contract, negligent misrepresentation, or breach of a duty of good faith, but these actions are not acts that would expose Ms. Mclean and Ms. Oslizlok to personal liability.

[E]ven if the 38 allegations of collective misconduct may amount to breaches of a duty of good faith, which I need not decide, those allegations do not manifest a separate identity or interest for Ms. Mclean and Ms. Oslizlok, although they may be acts for which RBC Life may be vicariously liable. The allegations, however, are not themselves the tortious acts of Ms. Mclean and Ms. Oslizlok in their personal capacity.

[15] In a proper pleading, a plaintiff’s claims against an employee must be particularized and differentiated from the claims against the employer. In dismissing the appeal against the motions court decision of Justice Perell referenced above, the Ontario Court of Appeal in Burns v. RBC Life Insurance Company, 2020 ONCA 347 at para. 16 observed that: “Each defendant 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?”

[16] In several cases, courts have specifically considered claims of personal liability against employees of a university and have affirmed the same governing principles. Examples include Lobo v. Carleton University, 2012 ONSC 254 at paras. 32-35, Tran v. University of Western Ontario, 2014 ONSC 617 at para. 12, 15 and 16 and Said v. University of Ottawa, 2013 ONSC 7186 at para. 39. The Ontario Court of Appeal in both Tran (referred to above) and Lobo (2012 ONCA 498) dismissed the plaintiff’s appeal.

[17] For the purposes of this motion, a community college is the equivalent of a university. I see no merit in the submission that the principles applicable to universities and the potential personal liability of their employees is of a different character from community colleges and their employees.

Analysis:

[18] The statement of claim was issued on March 9, 2019. A motion similar to the one before this court was made dated February 21, 2020, challenging the inclusion of the Mohawk defendants as disclosing no cause of action against them. In response, a cross-motion was made by the plaintiff to amend the pleadings. The Mohawk defendants’ motion was adjourned and a fresh amended statement of claim was filed April 3, 2020. Its content is the subject of this motion.

[19] In the fresh amended statement of claim, the status of the Mohawk defendants is identified on the basis that each “was at all material times an employee and acted in his [or her] own capacity”.

[20] A bald allegation that an employee acted in his or her own capacity and outside the scope of his or her capacity as an employee is insufficient, without material facts, to differentiate a personal claim against the employee from that made against an employer. To adopt the language of the motions court in Lobo (2012 ONSC 254 at para. 35), the amended pleading does little more than “window dress” the claim that the Mohawk defendants had a separate identity or interest from that of the College.

[21] The fresh amended statement of claim alleges that the emails were forwarded from one Mohawk defendant to another up the levels of authority within the College. Those actions, even assuming them to be true, do not take the matter outside the claim against the College so as to make the employees individually responsible.

[22] In paragraph 19, the pleading states that:

It is highly probable that [the emails] may have been disseminated to outside entities by … the …[Mohawk defendants] both in their personal and professional capacities…. The full details and particulars of which are not known at this time, largely due to the fact that the plaintiff has not been able to obtain full disclosure of the emails.

[23] The alleged probability of dissemination of the email by the Mohawk defendants to outside entities is unsupported. A possibility or even a probability does not represent a material fact within the meaning of rule 25.06(1) which requires that: “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.”

[24] In paragraph 20, referring to the plaintiff’s appeal of a freedom of information request, it is alleged that the plaintiff is “seeking to trace [the emails’] dissemination throughout the College and possibly beyond it.” Here again, there are no material facts pleaded. Rather, the plaintiff is offering the hope that facts supporting the dissemination of the email beyond the College will become known.

[25] Allegations made against the Mohawk defendants other than Ron McKerlie are found in paragraph 23-I under the heading “Personal Liability of the Defendants: Ortiz, Duggan, Muller, McTear” as follows:

The following Defendants, namely Rosemarie Ortiz, Tammy Leigh Duggan, Kurt Muller and Andrew McTear in the [sic] personal capacity and given the opportunity through the course of their employment did willfully and unlawfully:

(a) Fail to acknowledge the fact that the Plaintiff had submitted both electronically and in a paper form a clear police check.

(b) Fail to adhere to policy of Mohawk College of Applied Arts and Technology Policy and procedures.

(c) Transmitted and forwarded libelous statements negligently and participated in slander and libel, in a reckless and damaging fashion, without regard for repercussions to the Plaintiffs’ character, future employment opportunities, and personal mental health,

(d) Breach of the Plaintiff’s privacy and failed to contain said breach.

(e) Fail to properly investigate the statements and/or discuss matters of a serious nature with the Plaintiff to which they owed a duty of good faith both personally and as a result of the contract they had as employees of Mohawk College of Applied Arts and Technology for which they are vicariously liable;

(f) Fail to advise appropriate individuals including plaintiff of their breach of policy and procedure contrary to the policy,

(g) Failed to provide the Plaintiff with the contents and the level of breach which occurred as against the Plaintiff.

[26] I observe that in the preamble to paragraph 23-I, the plaintiff appears to admit that the Mohawk defendants were provided the opportunity to take their actions through the course of their employment which undercuts the allegation that their actions were undertaken in their personal capacity.

[27] The particulars of the Mohawk defendants’ allegedly improper actions contained in paragraph 23-I, with the exception of subparagraph (c) do not specifically indicate tortious actions outside the scope of their employment, nor do they differentiate as between the various defendants.

[28] Defamation can be a separate tortious act, and in certain instances can create joint and several liability on the part of those committing the tort. However, even where the specific words alleged cannot be set forth in the pleading, there must be sufficient clarity about what was said or written to enable the defendant(s) to plead to it. In this case, the allegations take the form of a bald conclusion, without any indication of the nature of the statements, let alone their general words.

[29] In paragraph 27, the plaintiff claims by way of a conclusion that any communication by Ms. Ortiz and Mr. McTear and dissemination thereof to the Law Society of Ontario has caused damages to the plaintiff. Nowhere is it alleged that such communications took place.

[30] Paragraph 28 refers to “possible discrimination outside the scope of the college.” The context of the sentence suggests that the intended word was “dissemination” rather than “discrimination” but in either case there is no factual underpinning for the possibility.

[31] In paragraph 33, the plaintiff claims against all the Mohawk defendants alleging that they are jointly and severally liable with the College to the plaintiff for the “dissemination, circulation, broadcast, of the false and inaccurate information emailed … by Rachel Lucy Goerz” but without any particulars of the dissemination, circulation and broadcast.

[32] Paragraph 36 contains a claim by the plaintiff that the Mohawk defendants failed to abide by the College’s policy prohibiting harassment and discrimination between faculty and students including “slander outside the scope of Mohawk representatives is [sic] policy and his privacy rights.” Although the grammar makes the allegation unclear, there is no detail of slander and certainly nothing to indicate that the actions of the Mohawk defendants occurred outside the scope of their employment.

Conclusion:

[33] By way of summary, the allegations in the fresh amended statement of claim which are made against the Mohawk defendants where facts are pleaded in support are in pith and substance decisions made within their ostensible authority as College employees. Other allegations are either based on speculation or are bald assertions unsupported by material facts. They lump the defendants together as if they are a single party.

[34] It is not possible for each of the Mohawk defendants to look at the pleading and understand what the plaintiff says he or she has done that has caused harm to the plaintiff and when the harm was caused.

[35] For the reasons set out above, I find it to be plain and obvious that the fresh amended statement of claim does not disclose a properly pleaded cause of action against the Mohawk defendants. The claims are not clearly differentiated from the claim against the College or as amongst the Mohawk defendants. There are no facts to support the allegations that any of the Mohawk defendants committed an independent tortious act or that their actions exhibited a separate identity or interest from that of the College.

Leave to amend:

[36] The court has the power to grant leave to amend in an appropriate case. That discretion should be exercised in favour of the plaintiff where, there is a tenable case but where the pleadings require adjustment.

[37] Here, faced with the initial motion to strike the claim against the Mohawk defendants, and faced with the applicable case law relied on by those defendants, the plaintiff amended his pleading extensively.

[38] I have found the amended pleading to be deficient as noted above. It is reasonable to assume that if material facts existed that would support the allegation that any of the Mohawk defendants acted in their personal capacity outside the scope of their employment, those facts would have been specifically pleaded. There is no factual basis to conclude that any of the Mohawk defendants committed an independent tortious act or exhibited a separate identity or interest from that of the College.

[39] In its comments supporting the court’s power to strike a pleading, the Supreme Court of Canada in Knight at para. 42 identified the twin purposes of efficiency in the conduct of the litigation and the securing of correct results. The court observed that “the power to strike claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.” Likewise, the power to grant or refuse the amendment of pleadings serves the same purpose.

[40] In this case, the College accepts vicarious liability for the actions of its employees. There is no benefit in permitting a further attempt by the plaintiff to find some tenable basis in fact for a claim against the Mohawk defendants where none has been found to date. Whatever the merits of the claim, the plaintiff can proceed with it against the remaining defendants.

[41] As a result, I see no utility in granting leave for a further opportunity to amend and therefore no leave will be given.

Costs:

[42] I encourage the parties to resolve the issue of costs consensually. If they are unable to do so, I will receive brief written submissions according to the following timetable:

[43] The defendants are to serve the plaintiff with written costs submissions not exceeding five pages in length and their Bill of Costs on or before June 4, 2021.

[44] The plaintiff to serve the defendants with written costs submissions not exceeding five pages in length and his Bills of Costs on or before June 18, 2021.

[45] The defendants are to serve the plaintiff with any responding submissions on or before July 2, 2021.

[46] All submissions are to be filed with the court no later than July 5, 2021. If submissions are not received by that date, or by any agreed extension, the matter of costs will be deemed settled.

Reid J.

Date: May 25, 2021

[^1]: Sometimes referred to as Montreal Trust Co. of Canada v. ScotiaMcLeod Inc.