Tremblay v. Canadian Association of Professional Employees, 2021 ONSC 6638

COURT FILE NO.: CV-18-77066

DATE: 2021/10/14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EMMANUELLE TREMBLAY, Plaintiff/Responding Party

AND

CANADIAN ASSOCIATION OF PROFESSIONAL EMPLOYEES and NICK GIANNAKOULIS, Defendants/Moving Parties

BEFORE: Justice Marc R. Labrosse

COUNSEL: Janice B. Payne and Malini Vijayjumar, Counsel, for the Plaintiff

Charles V. Hofley and Siobhan M. O’Brien, Counsel for the Defendant Canadian Association of Professional Employees

Jonathan Collings, Counsel for the Defendant Nick Giannakoulis

HEARD: February 10, 2021

ENDORSEMENT

Overview

[1] The Defendants move pursuant to Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike the Fresh as Amended Statement of Claim on the ground that it fails to plead a concise statement of material facts; may prejudice or delay the fair trial of the action; is scandalous, frivolous or vexatious; and/or is an abuse of the process of the court.

[2] Alternatively, the Defendants seek to strike out a number of paragraphs for various reasons as set out in Schedule “A” attached to this Endorsement.

[3] The Plaintiff denies that the claim is frivolous or vexatious and states that the subject matter of the claim follows an extended period of conflict between herself and one of the largest public sector unions in Canada, the Defendant Canadian Association of Professional Employees (“CAPE”). The conflict was focused between the Plaintiff and the Defendant Mr. Giannakoulis.

[4] The Plaintiff claims to have been severely mistreated by the Defendants for five years, including two of the three years that she served as the President of CAPE and the three years since she left her presidency. This mistreatment caused her to abandon her position as President of CAPE. As a result of this difficult history of conflict between the Plaintiff and the Defendants, the Plaintiff claims that she is required to file a lengthy pleading to properly set out her claims.

Procedural History

[5] The original Statement of Claim was issued on July 6, 2018. It contained 270 paragraphs and was 45 pages in length. The Defendants brought their motion to strike in September 2019. This Court met with the parties and identified a number of problems with the original Statement of Claim. The motion was adjourned and the parties agreed that the Plaintiff would amend the Statement of Claim, that factums would be filed and that they would prepare a chart with disputed paragraphs if the motion was still proceeding.

[6] There have now been at least three versions of the Statement of Claim. The latest version is marked as the Fresh as Amended Statement of Claim and a track changes version has been provided to demonstrate what has been changed from the original claim.

[7] The Fresh as Amended Statement of Claim is now 144 paragraphs and 24 pages in length. The table of disputed paragraphs attached as Schedule “A” includes the position of the parties on the impugned paragraphs along with the Court’s dispositions.

Factual Background

[8] The claim begins with Ms. Tremblay and Mr. Giannakoulis being members of a slate for the 2014 Election to renew CAPE’s National Executive Committee (the “NEC”). Ms. Tremblay was elected as President for a three-year term commencing January 1, 2015 and ending December 31, 2017.

[9] The claim alleges that in the Fall of 2015, Mr. Giannakoulis began his campaign to remove Ms. Tremblay. In March of 2016, there was a petition to remove Ms. Tremblay as president. In 2016-2017, Mr. Giannakoulis would have filed a number of complaints against Ms. Tremblay. It is also alleged that Mr. Giannakoulis had allies who published libelous and misleading attacks against Ms. Tremblay on social media.

[10] Ms. Tremblay also filed her own complaints against Mr. Giannakoulis and others whom she claimed were abusing CAPE’s internal complaint mechanism.

[11] The petition and complaints resulted in various investigations. Some found fault against Ms. Tremblay and some are alleged to have been discontinued by CAPE where they involved wrongdoing by Mr. Giannakoulis. There were also allegations by Ms. Tremblay that Mr. Giannakoulis had interfered with the investigation process related to some complaints. It is alleged that CAPE refused to investigate some of those complaints.

[12] In the Fall of 2016, Ms. Tremblay was suspended for five weeks without pay as a result of the findings in one of the investigations. During her suspension, Ms. Tremblay’s access to her e-mail account was cut off prematurely without an out-of-office notification.

[13] In the Spring of 2017, CAPE held an unsuccessful recall vote to revoke Ms. Tremblay’s presidency. More complaints ensued involving both Ms. Tremblay and Mr. Giannakoulis. There was an investigation that recommended sanctions against Mr. Giannakoulis; however, CAPE did not invoke any sanctions against Mr. Giannakoulis.

[14] In May of 2017, the NEC required Ms. Tremblay into a telework-only arrangement prior to being given an opportunity to respond to certain complaints. The results of at least one investigation have yet to be provided to Ms. Tremblay.

[15] In the Fall of 2017, Ms. Tremblay announced that she would not seek re-election and subsequently on October 6, 2017, she went on sick leave until the end of her term. At the end of the term, Ms. Tremblay wrote to CAPE alleging that she had been constructively dismissed. Following the end of her term, she was prevented from attending CAPE events although she continued to be a member. That prohibition continued until November of 2019.

[16] Ms. Tremblay claims damages for constructive dismissal and breach of contract against CAPE. She also claims that CAPE is vicariously liable for the actions of Mr. Giannakoulis. She claims intentional inducement of mental suffering and defamation against Mr. Giannakoulis. Finally, she claims punitive damages against both CAPE and Mr. Giannakoulis.

Issues

[17] The following issues are to be resolved on this motion:

a. Should the Fresh as Amended Statement of Claim be struck on the basis that it contains numerous paragraphs that may prejudice or delay the fair trial of the action; are scandalous, frivolous or vexatious; and/or, are an abuse of the process of the court?

b. Should the paragraphs set out in column 1 of Schedule “A” attached to this Endorsement be struck?

The Law

[18] The parties have provided the Court with a number of caselaw references that set out principles that the Court must consider on motions to strike all or part of a pleading. I have reproduced those that I deem the most relevant.

[19] 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.[^1]

[20] Pleadings have three functions: to clearly define the questions in controversy between the litigants; to give fair notice of the precise case which is required to be met and the precise remedies sought; and to assist the court in its investigation of the truth and allegations made.[^2]

[21] A motion to strike a pleading under Rule 25.11 will only be granted in the “clearest of cases”.[^3]

[22] The distinction between material facts, particulars and evidence is not a bright line. As such, pleadings motions should not be approached in an overly technical manner. Parties should generally be at liberty to craft a pleading in their own manner, provided the rules of pleading are not violently offended and there is no prejudice to the other party.[^4]

[23] A pleading that may prejudice or delay the fair trial of an action, or is scandalous, frivolous or vexatious or is an abuse of process may be struck.[^5]

[24] Simply pleading unnecessary detail or excessive verbosity is not of itself a reason to strike out pleadings. The party seeking to strike pleadings must show that they were prejudiced, embarrassed or that a fair trial will be delayed by the irregularity.[^6]

[25] Where pleadings do not comply with the Rules, the remedy is to move to strike under Rule 25.11 on the grounds that what is alleged may prejudice or delay the fair trial of the action, or where it is scandalous, frivolous or vexatious or where it constitutes an abuse of process.[^7]

[26] In Cerqueira v. Ontario[^8], a number of general principles are summarized at para. 11:

a. The causes of action must be clearly identifiable from the material facts pleaded.

b. A party is entitled to plead any fact that is relevant to the issues. It cannot contain irrelevant, immaterial or argumentative facts.

c. Allegations made only for the purpose of colour are to be struck as scandalous.

d. A party seeking a motion to strike on the ground that the pleading discloses no cause of action must show that it is plain, obvious and beyond doubt that the claim cannot succeed. The pleading must be read generously and allegations of fact must be accepted as proven.

e. Allegations of fraud, misrepresentation, negligence and conspiracy must be pleaded with particularity.

[27] In George v. Harris[^9], Epstein J. (as she then was) set out many relevant principles to consider on motions to strike at para. 20:

It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety. [Citations omitted.]

[28] A motion to strike is a tool to be used with care. The law is not static or unchanging. Thus, the approach must be generous and err on the side of permitting novel but arguable claims.[^10]

[29] Historical facts that have no relevance to the claim will be struck. Further, allegations made solely to cast an opposing party in a bad light will be struck.[^11]

[30] The Court of Appeal for Ontario has stated that 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.[^12]

Analysis

Striking out the Fresh as Amended Statement of Claim in Whole

[31] When considering the Fresh as Amended Statement of Claim, there is an underlying issue;it keeps the form of the original Statement of Claim which was drafted in large part like an affidavit. It is not a true freshly drafted Statement of Claim. However, poor drafting is not a ground to strike on its own. One of the main points to consider is the Defendants’ ability to respond to it.

[32] A review of both the original claim and its latest version shows the significant improvement in the pleading, as it removes much of the evidence and numerous references to and allegations against non-parties.

[33] The fresh claim is divided in time to highlight significant events, investigations, results of the complaints (including the attempted recall vote), penalties imposed and a separation order. That summary of the events is then followed by the claims made by the Plaintiff against the Defendants.

[34] Overall, the Fresh as Amended Statement of Claim provides a logical presentation of the conflict during the Plaintiff’s presidency and the events leading up to the end of her term. Although it is still a lengthy claim at 24 pages and 144 paragraphs, a global review of the claim is that it is a document that the Defendants can respond to, subject to the amendments authorized below. The amendments are meant to avoid side issues involving non-parties which will overly complicate the litigation. Further, there is still too much evidence which has been pleaded and this has been addressed to the extent possible. As previously stated, there is no bright line between material fact and evidence. Once amended, the claims made can be responded to without prejudice.

[35] I decline to strike the Fresh as Amended Statement of Claim as a whole.

Schedule “A”

[36] In the alternative, the Defendants seek to strike out a number of specific paragraphs and they have provided their rational for doing so in Schedule “A”. The Plaintiff has responded to the rationale for each paragraph which is sought to be struck.

[37] The Defendants raised a number of specific issues in arguing this Motion and many of these are addressed in the Disposition column of Schedule “A”. In particular, the Defendants have frequently objected to the use of the term “allies”. I agree with the Plaintiff that often, that term is used to avoid specifically naming a non-party. Also, it often relates to a specific complaint or action and the individuals are otherwise identifiable. Where the term is referred to without any specific reference point, those references can be discovered. I refuse to strike on the basis of the use of the term “allies”.

[38] Otherwise, my rulings are set out in the Disposition column of Schedule “A”. As directed by the Court of Appeal for Ontario in South Holly Holdings, the right to amend has usually been allowed. I am not able to identify a specific prejudice to the Defendants in allowing the Plaintiff one more opportunity to address the deficiencies in the claim within 30 days. I will remain seized of the amendments and the Plaintiff should be following the direction of this Endorsement in order to allow the litigation to proceed. The use of “affidavit-type pleading” is strongly discouraged. If the Plaintiff is unable to limit its amendments to concise statements of material facts, there will be no further right to amend. If the Defendants continue to object to the amendments as directed herein, they may request that the motion be brought back to my attention. Any further adjudications will be done promptly.

Conclusion

[39] For the reasons set out herein, the Defendants’ motion to strike the Fresh as Amended Statement of Claim as a whole is denied. As for the motion to strike the impugned paragraphs in Schedule “A”, it is granted in part as per the Disposition column of Schedule “A”. The Plaintiff shall serve and file its amended Statement of Claim within 30 days of this Endorsement. I will remain available to address additional issues in the next draft of the Statement of Claim.

Costs

[40] The parties are encouraged to resolve the issue of costs or leave them in the cause. If the parties are unable to do so, they may make written cost submissions. The Moving Parties will have 15 days from the date of this Endorsement to serve and file its cost submissions. The Responding Party will have 15 days thereafter to respond. Each submission shall be no longer than three (3) pages in length, excluding attachments.

Justice Marc R. Labrosse

Date: October 14, 2021

Schedule “A”

Paragraph(s) in the Claim	Defendants’ Proposed Reason(s) for Striking	Plaintiff’s Response	Disposition
7-9	These paragraphs do not contain material facts. These paragraphs are inserted for colour or atmosphere. These pleadings are not relevant to any basis for liability or connected to the damages or relief claimed.	These paragraphs provide historical context, including background on the CAPE governance structure, the various actors involved in the claim, and how those actors all came to know each other. These form part of a concise statement of material facts pursuant to Rule 25.06(1).	The Court agrees with the Plaintiff. These are proper introductory paragraphs that include relevant material facts.
12-13	The Plaintiff provides commentary containing allegations of management instability and staff issues prior to her term as President. This paragraph does not contain material facts. The facts pleaded are not relevant to the causes of action pleaded or connected to the relief claimed. The pleadings are argumentative, bald conclusions with no supporting facts, opinion[sic] and represent unfounded and inflammatory attacks on the integrity of a party. The pleadings are inserted only for colour.	These paragraphs provide historical context and outline the environment in which the Plaintiff first began dealing with the Defendants in her capacity as President. These form part of a concise statement of material facts pursuant to Rule 25.06(1).	These paragraphs include the evidence of the issues prior to the Plaintiff becoming President. A proper concise statement of material facts would be limited the fact that there were issues prior to the Plaintiff becoming President, that the Plaintiff sought to address them, that Mr. Giannakoulis supported various steps and that he would later criticize them. Paras. 12-14 are struck with a right to amend in line with the above. Regardless, the allegation of fraud against the Financial Officer and the alleged tax liability are improper and inflammatory. They are struck. Paragraphs. 14a to 14d are evidence and are struck.
14	This paragraph contains expressions of opinion and speculation disguised as facts. The words “falsely claiming” are inflammatory and scandalous attacks on the integrity of Mr. Giannakoulis. It speaks of a falsity as though the Court had already determined such. This paragraph is evidence and argument.	This paragraph provides historical context and, in particular, outlines how the Plaintiff and Mr. Giannakoulis were initially aligned in their work and decisions for CAPE. It is a material fact that Mr. Giannakoulis later criticized and falsely disavowed responsibility for these decisions. The Defendants are free to plead otherwise in a Defence.	See previous disposition. The last sentence of para. 14 is a proper allegation against this Defendant which is relevant to the claims against him.
17	This paragraph re-states the pleadings formally at paragraphs 36-45 and attempts to cure the statements by expressing bare allegations of opinion and speculation with no indication whether the information is based on personal knowledge or information and belief. This paragraph goes well beyond the material facts of the case and contains evidence. It also personally names an individual for no purpose related to the material facts of the case. It is inserted only for colour.	This paragraph outlines the beginning of the conflict between the Plaintiff and Mr. Giannakoulis which leads to the present Claim. It contains important and material facts. The Defendants are free to contest these allegations in a Defence. The naming of Ms. Maureen Collins was necessary in order to identify the EC-BT member who Mr. Giannakoulis asked to assist him in his efforts to have the Plaintiff recuse herself from bargaining. Had she not been named, the Defendants undoubtedly would have sought particulars of her identity in order to enable them to answer the allegation in a Defence.	Paragraphs 17a, 17b 17c and 17d present the material facts involving the challenges to her role in the bargaining process. Paragraph 17e is evidence involving a named non-party and is struck with a right to amend to include a concise pleading that Mr. Giannakoulis made efforts to have the Plaintiff recuse herself. The name of the non-party is immaterial.
18-20	These paragraphs are irrelevant and go well beyond the material facts of the case. This paragraph contains unfounded and inflammatory attacks on the integrity of a party, constitutes bare allegations, is opinion and speculation, and contains no indication whether the information is based on personal knowledge or information and belief. These paragraphs are also historical and dated, as they arose more than two years prior to the issuance of the Statement of Claim.	These paragraphs outline an early dispute between the Plaintiff and Mr. Giannakoulis which is relevant to the September 2016 Nadeau Petition Report pleaded at paragraph 56 and following of the Claim. The findings of this Report and CAPE’s treatment of those findings are directly relevant to the causes of action. As a result, these paragraphs provide the necessary historical context to understand the basis for the Plaintiff’s causes of action and constitute material facts. The Defendants are free to plead a limitation period in a Defence if they so wish.	The Court agrees with the Plaintiff. These paragraphs lead into the findings in the Nadeau Report. They include the material facts that Mr. Giannakoulis’ participation in the live voting and the Plaintiff’s claim that he tried to distance himself from his role in accessing the live voting results.
21-23	These paragraphs contain opinion and speculation, and provide no indication whether the information is based on personal knowledge or information and belief. These paragraphs are also historical and dated, as they arose more than two years prior to the issuance of the Statement of Claim.	A pleading is not an affidavit. Material facts pleaded need not contain disclaimers regarding the basis for their belief; they are facts. These paragraphs contain the historical context surrounding the Petition which is relevant to the September 2016 Nadeau Petition Report pleaded at paragraph 56 and following of the Claim. The findings of this Report and CAPE’s treatment of those findings are directly relevant to the causes of action. The Defendants are free to plead a limitation period in a Defence if they so wish.	The “then local 503 President at Statistics Canada” is not a party. There are no claims made in respect of the request for an urgent meeting. The meeting was ultimately held by CAPE. There are no material facts to support that Mr. Giannakoulis directed that the meeting be called. The non-party’s name need not be mentioned as it is immaterial to a pleading against CAPE. He can simply be referred to as the “then local 503 President at Statistics Canada”. Otherwise, these paragraphs properly plead material facts surrounding the petition.
24	This paragraph contains expressions of opinion and speculation disguised as facts. By asserting there are “allies” of Giannakoulis, the Plaintiff is putting in evidence, opinion and argument and asking the Court to draw an inference on unproven and untested facts. It is furthermore inflammatory.	It is a material fact that Mr. Giannakoulis had allies who attended this meeting and actively encouraged members to sign the Petition. This fact is of course untested given that it is in a pleading; by their nature, facts in pleadings remain untested until the determination of the action by a court. The Defendants are free to plead contesting facts in a Defence if they so wish.	The are no claims made against these “allies” who attended and encouraged members to sign the Petition. This is evidence. The paragraph is struck.
27	It speaks of a false statements[sic] as though the Court had already determined such. In referring to “false statements” the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts. The words “false statements” are inflammatory and scandalous attacks on the integrity of Mr. Giannakoulis.	The fact that the Petition was based on false allegations is supported by the findings of the Nadeau Petition Report and the apology issued by the author of the Petition, pleaded at paragraph 56 and following of the Claim. CAPE’s treatment of those findings and apology is directly relevant to the causes of action. This paragraph provides historical context for CAPE’s actionable misconduct as later pleaded in the Claim. The Defendants are free to plead contesting facts in a Defence if they so wish.	The paragraph properly pleads that false statements were made without pleading the evidence of what they were and the circumstances in which they were made. These are proper material facts relating to the Special General Meeting. The evidence relied upon can be discovered.
29(a)	The allegations contained in this paragraph relate to an individual who is not a Defendant to this action and whose actions are unrelated to the present claim. Moreover, they contain evidence. This paragraph is irrelevant and immaterial to the causes of action. It also pleads fact[sic] that arose more than two years prior to the issuance of the Statement of Claim.	The events outlined in this paragraph and Mr. Giannakoulis’ involvement in them led to the Gosselin Investigation, which is pleaded at paragraph 46 and following of the Claim. CAPE’s treatment of the findings of the Gosselin Investigation is directly relevant to the causes of action. The Defendants are free to plead contesting facts or a limitation period in a Defence if they so wish.	Paragraph 29a is struck in part. The paragraph contains statements of material facts concerning the complaints which led to the Gosselin Investigation. This paragraph is struck with a right to amend after removal of the references to the non-party and information about his complaint which is evidence. No claim is made against him and his name is immaterial. A limitation defence can be pled.
29(b)	It speaks of a false allegations[sic] as though the Court had already determined such. In referring to “false allegations” the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts. The words “falsely alleging” are inflammatory and scandalous attacks on the integrity of Mr. Giannakoulis.	The fact that these allegations were false is supported by the findings of the Gosselin Investigation, pleaded at paragraph 46 and following of the Claim. CAPE’s treatment of the findings of the Gosselin Investigation is directly relevant to the causes of action. The Defendants are free to plead contesting facts in a Defence if they so wish.	This paragraph is properly pleaded. It is proper to plead that the allegations were false and claiming a risk of reprisal.
29(c)	The allegations contained in this paragraph are improper as they are argumentative and inserted for colour. This paragraph contains unfounded and inflammatory attacks on the integrity of a party, constitutes bare allegations, is opinion and speculation, and contains no indication whether the information is based on personal knowledge or information and belief. These facts are also historical and dated, as they arose more than two years prior to the issuance of the Statement of Claim.	A pleading is not an affidavit. Material facts pleaded need not contain disclaimers regarding the basis for their belief; they are facts. The events outlined in this paragraph and Mr. Giannakoulis’ involvement in them led to the Gosselin Investigation, which is pleaded at paragraph 46 and following of the Claim. CAPE’s treatment of the findings of the Gosselin Investigation is directly relevant to the causes of action. The Defendants are free to plead contesting facts or a limitation period in a Defence if they so wish.	These are material facts concerning a different allegation against Mr. Giannakoulis which is properly pleaded. A limitation defence can be pled.
34-35, 38, 40-45	These paragraphs are irrelevant and immaterial to the causes of action. Moreover, these paragraphs are replete with evidence that are[sic] not appropriate for a pleading. These paragraphs are inflammatory and based on conclusions of the Plaintiff disguised as facts.	These paragraphs outline Mr. Giannakoulis’ involvement in the social media harassment against the Plaintiff, Mr. Giannakoulis’ lack of cooperation in the ensuing investigation, and CAPE’s failure to discipline any of the members involved. All of these facts are directly relevant to the causes of action. The Defendants are free to plead contesting facts in a Defence if they so wish.	Paragraphs 34 and the first sentence of para. 35 contain the material facts leading to the Plaintiff’s complaint of August 2016. They are properly pled. The last two sentences of para. 35 are evidence and they are struck. Paragraph 38 contains evidence that goes beyond the material facts required. It is struck with a right to amend to simply plead the material facts that Mr. Giannakoulis did not cooperate with the investigation, that he destroyed evidence and that this led to a further complaint by the Plaintiff which CAPE refused to investigate. Paragraphs 40-44: These paragraphs are struck with a right to amend to remove the specific references to third parties which are not relevant to the pleading and can simply be referred to as an ally to Mr. Giannakoulis. These paragraphs are to be re-worded to focus on CAPE’s failure to investigate or discipline. Paragraph 45: This paragraph is properly pleaded to highlight the allegations made against Mr. Giannakoulis in relation to these events.
47	This paragraph is speculative, and is a bare allegation that is improperly pleaded. It also contains evidence disguised as fact.	Mr. Giannakoulis’ failure to participate in the Gosselin Investigation in a timely fashion is directly relevant to the causes of action. The Defendants are free to plead contesting facts in a Defence if they so wish.	The allegation that Mr. Giannakoulis caused delays in the Gosselin Investigation is properly made and can be responded to.
49-51	These paragraphs are irrelevant and immaterial to the causes of action. Moreover, these paragraphs are replete with evidence. In asserting that “Mr. Giannakoulis and his allies managed to push the vote into 2018”, this pleading is an expression of opinion or speculation disguised as a fact and is inserted for no purpose except to create the impression of improper conduct. It is furthermore inflammatory.	Mr. Giannakoulis’ improper delay of the suspension vote, the NEC’s failure to investigate the Plaintiff’s complaint, and CAPE’s failure to take action on the ISC’s recommendation are all directly relevant to the causes of action. The issue of whether Mr. Giannakoulis and his allies pushed the vote into 2018 is a factual issue. The Defendants are free to contest this allegation in a Defence if they so wish.	These paragraphs are relevant to the cause of action. The allegation that Mr. Giannakoulis delayed the vote to a new NEC is properly made. Once again, there is no need to mention a third party by name as it is immaterial. As such the words “by Mr. Phillips” are struck as they are simply the evidence of who told her about the NEC decision. As pleaded, the decision was taken by the NEC.
54-55	These paragraphs are speculative, unsupported and are bare allegations that are inappropriate in this pleading. They also ground claims that arose more than two years prior to the issuance of the Statement of Claim. Moreover, the paragraphs contain evidence. These pleadings are not relevant to the basis for liability or connected to the relief claimed. The allegation that Mr. Giannakoulis’ information was false and/or misleading is argumentative, unfounded and inflammatory. Is[sic] also inserted for no purpose except to create the impression of dishonesty or improper conduct.	These paragraphs provide historical context for the findings of the Nadeau Petition Report as pleaded at paragraph 56 and following of the Claim. Those findings, and CAPE’s actions with respect to those findings, are directly relevant to the causes of action. The Defendants are free to plead contesting facts or a limitation period in a Defence if they so wish.	The Court adopts the argument of the Plaintiff.
59-61	This paragraph contains immaterial facts. Moreover, these paragraphs are replete with evidence.	There is no evidence in these paragraphs. The fact that Mr. Donohue apologized for the Petition and cited false information provided by Mr. Giannakoulis is material to the determination of Mr. Giannakoulis’ misconduct in this matter; moreover, CAPE’s failure to take Mr. Donohue’s apology into account is directly relevant to the determination of CAPE’s misconduct and bad faith. The Defendants are free to plead contesting facts in a Defence if they so wish.	Paragraph 59: It is struck with a right to amend as it contains evidence in the first sentence and it is not a concise statement of the facts surrounding this event. Although it is a material fact that an apology was made by the original filer of the petition there is no need to name this third party. Paragraph 60: Is evidence of what the ISC did not do and nothing flows from it. It is evidence and is struck. Paragraph 61: The words “despite his conflict of interest” are struck with a right to amend as the words are conclusive given that no material facts are pleaded to support the conclusion.
64	This paragraph contains evidence. This paragraph contains conclusions and then argument on those conclusions.	This paragraph contains no evidence but rather statements of fact. CAPE did cut off the Plaintiff’s e-mail access and it did fail to put an out-of-office message on her e-mail. The Plaintiff has properly pleaded the resulting reputational harm she suffered. Facts and resulting harms are exactly what ought to be stated in a pleading.	This paragraph contains the material facts surrounding CAPE’s decision to remove access to the Plaintiff’s e-mail. It is properly pleaded.
65-66	These paragraphs reference “misleading”, “inaccurate” and false information as though the Court had already determined such. These references are inflammatory. In making these assertions the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts. These paragraphs contain evidence that is not appropriate for a pleading.	CAPE’s misrepresentation of the results of the Nadeau Petition Report and its corresponding reputational damage to the Plaintiff are directly relevant to the causes of action. The Defendants are free to plead contesting facts in a Defence if they so wish.	Paragraph 65 is a proper statement of material facts involving the information given to CAPE members. There is no need to identify the original filer of the complaint by name as his name is immaterial to the pleading. His name is struck with a right to amend to plead that the members were not told about the apology. Paragraph 66 is drafted like an affidavit. While the drafting is poor, it is struck with a right to amend to properly plead that CAPE prevented the Plaintiff from responding to the Ottawa Citizen and caused inaccurate information to be published about the Plaintiff, thereby damaging her reputation.
67	In naming individuals not party to this action, the Plaintiff is unnecessarily expanding breadth and complexity of the litigation. This paragraph describes evidence, not material facts of the claim.	It is necessary to name Ms. Collins and Mr. Stiermann as their complaints also formed part of the basis for the Nadeau Complaint Reports, and CAPE’s response to the findings of those Reports are directly relevant to the causes of action. Had the Plaintiff merely referred to them as “two other CAPE members”, the Defendants would no doubt seek particulars of their identities in order to permit them to plead their Defence.	There is no need to name the two other complainants as their names are immaterial as no claims are made against them. It is not a concise statement of material facts. The paragraph is struck with a right to amend.
68	In alleging that there was a delay, this pleading is an expression of opinion or speculation disguised as a fact and is inserted for no purpose except to create the impression of improper conduct.	The fact that the ISC did not issue any statement about the Nadeau Complaint Reports for over three months is a delay and the Plaintiff is permitted to allege that this delay was improper. The Defendants are free to plead otherwise in a Defence if they so wish.	The allegation of delay is proper. There are sufficient material facts about the delay and the consequences are in the next paragraph.
69	This paragraph contains an opinion or conclusion and then argument on that conclusion.	The distress and damage caused to the Plaintiff are losses which are properly pleaded in a Statement of Claim.	The Court adopts the Plaintiff’s argument.
70-71	By asserting there are “allies” of Mr. Giannakoulis, the Plaintiff is putting in evidence, opinion and argument and asking the Court to draw an inference on unproven and untested facts. It is furthermore inflammatory. These paragraphs reference a “frivolous” complaint and “baseless” motion as though the Court had already determined such. In making these assertions the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts.	The fact that the CAPE Director of Professional Services was allied to Mr. Giannakoulis provides the basis for Mr. Giannakoulis’ involvement in the Separation Order. These facts are of course untested because they are in a pleading; pleadings, by their very nature, are tested through litigation. The fact that the complaint was frivolous and baseless is linked to the NEC’s refusal to investigate it, which in turn relates to the improper nature of the Separation Order. The Defendants are free to plead contesting facts in a Defence if they so wish.	The allegation of Mr. Giannakoulis having “allies” is proper and relevant to the claims. The evidence can be discovered. Paragraph 71 contains a mix of material facts, evidence and opinion and is not a concise statement of material facts. It is struck with a right to amend.
72	In making the assertion that CAPE made it “unnecessarily burdensome” the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts.	This is not evidence or argument but is pleaded as a fact. The Defendants are free to plead contesting facts in a Defence if they so wish.	The Court adopts the Plaintiff’s argument. Once again, poor wording in the form of an affidavit is not in itself a ground to strike. The allegation can be defended and the details discovered.
73	By asserting there are “allies” of Mr. Giannakoulis, the Plaintiff is putting in evidence, opinion and argument and asking the Court to draw an inference on unproven and untested facts. It is furthermore inflammatory. These paragraphs reference “misleading” and “false” information as though the Court had already determined such. In making these assertions the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts. These references are also inflammatory.	These campaigners were allied to Mr. Giannakoulis and the information they disseminated was false and misleading. This is properly pleaded as a fact absent of any evidence or argument, as such evidence and argument will properly come later in the litigation. The Defendants are free to plead contesting facts in a Defence if they so wish.	The Plaintiff is making an allegation that information disseminated was misleading and false. This is a proper allegation.
75-79	By asserting there are “allies” of Mr. Giannakoulis, the Plaintiff is putting in evidence, opinion and argument and asking the Court to draw an inference on unproven and untested facts. It is furthermore inflammatory. These paragraphs include reference to “vexatious and frivolous complaints”, a false communication, a false allegation, undetailed and frivolous allegations. These references are made as though the Court had determined those issues. In making these assertions the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts. These references are also inflammatory.	The individuals involved in these acts of misconduct were indeed allied to Mr. Giannakoulis, and the events of the recall vote and ESU Complaint are directly related to the causes of action against both Defendants. The false complaints and allegations pleaded here are pleaded as factual statements, as is required. It is unclear how the Defendants can assert, on the one hand, that the Plaintiff is making these references “as though the Court had determined those issues”, but then also assert on the other hand that the Plaintiff is “putting in evidence and argument”. These assertions are contradictory. In any event, the Defendants are free to plead contesting facts in a Defence if they so wish.	Paragraphs 75 and 76: These are evidence and make allegations against a non-party which is immaterial to the pleading. They are struck with a right to amend to properly plead that Mr. Giannakoulis filed vexatious and frivolous complaints. Paragraphs 77-79 contain a mix of material facts and evidence. They name a non-party whose name is immaterial to the claims. These paragraphs are struck with a right to amend to limit the pleading to a concise statement of material facts surrounding this event.
80, 83, 85	These paragraphs contain argument.	There is no argument here. These paragraphs are pleaded as factual statements, which is proper for a pleading.	Paragraph 80 is factual to identify the result of a meeting where a misconduct was imposed. It is relevant to the pleading and can be responded to. Paragraphs 83 and 85 properly plead the impact of the telework penalty.
86	These paragraphs include reference to a “frivolous” complaint and a baseless order. These references are made as though the Court had determined those issues. In making these assertions the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts. These references are also inflammatory.	These allegations are pleaded as factual statements, as is required. It is unclear how the Defendants can assert, on the one hand, that the Plaintiff is making these references “as though the Court had determined those issues”, but then also assert on the other hand that the Plaintiff is “putting in evidence and argument”. These assertions are contradictory. In any event, the Defendants are free to plead contesting facts in a Defence if they so wish.	The purpose of this allegation is to allege wrongdoing in the treatment of the harassment and discrimination complaint by CAPE. The words “(another Giannakoulis ally)” are struck as they are included for the purpose of colour as no allegation is made against Mr. Giannakoulis in this paragraph.
90-92	These paragraphs contain argument and evidence, not material facts of the claim. These paragraphs ground a claim that arose more than two years prior to the issuance of the Statement of Claim. The paragraphs are not relevant to the causes of action pleaded or connected to the relief claimed. The pleadings are inserted only for colour.	CAPE’s departure from its prior practice of reimbursing Presidents for their legal fees in similar matters, and its failure to do so for the Plaintiff, are directly relevant to the causes of action. The Plaintiff suffered losses as a result of CAPE’s conduct and such losses also properly form part of the Claim. The breach is ongoing and as such cannot be statute-barred. In any event, the Defendants are free to plead a limitation period in a Defence if they so wish.	Paragraph 90 is evidence. It is struck with a right to amend to properly plead the material facts surrounding CAPE’s obligation to reimburse the legal fees. The Defendants may plead a limitation period defence. Paragraphs 91 and 92 are properly pleaded to contain the material facts surrounding the failure to reimburse legal fees.
100-101	By asserting there are “allies” of Mr. Giannakoulis, the Plaintiff is putting in evidence, opinion and argument and asking the Court to draw an inference on unproven and untested facts. It is furthermore inflammatory. These paragraphs include reference to a “frivolous” complaint. This reference is made as though the Court had determined the issue. In making this assertion the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts. These references are also inflammatory.	These individuals were allies of Mr. Giannakoulis and the complaint was in fact frivolous given the lack of any notification to the Plaintiff. These allegations are pleaded as factual statements, as required in a pleading. It is unclear how the Defendants can assert, on the one hand, that the Plaintiff is making this reference “as though the Court had determined the issue”, but then also assert on the other hand that the Plaintiff is “putting in evidence and argument”. These assertions are contradictory. In any event, the Defendants are free to plead contesting facts in a Defence if they so wish.	There is nothing improper with making an allegation that certain individuals were allies of Mr. Giannakoulis as it informs allegations made later in the claim. However, there is no need to name a non-party rather than identifying the “new President” as his name is immaterial. The words “Mr. Phillips” is struck with a right to amend to identify the person as the new President. The third sentence of para. 101 is evidence about not being notified about the complaint and is struck.
102	This paragraph contains facts that are irrelevant and go well beyond the material facts of the case. It also contains evidence. This paragraph contains unfounded and inflammatory attacks on the integrity of a party, constitutes bare allegations, is opinion and speculation, and contains no indication whether the information is based on personal knowledge or information and belief.	CAPE is vicariously liable for Mr. Phillips’ false and public aspersion against the Plaintiff to the CBC reporter. This allegation is directly relevant to the causes of action against CAPE. As well, a pleading is not an affidavit and need not contain disclaimers about the basis for the knowledge of material facts.	Paragraph 102 contains evidence and allegations against a named non-party. It is not drafted to make allegations against CAPE except for the final words of the last sentence which seems to suggest that CAPE is liable for the statements of the President, but the allegation is not made in a concise manner. This paragraph is struck with a right to amend.
104-105	These complaints described in these paragraphs are not related to the Plaintiff. These complaints are not material to the claim or probative of any matter at issue. These paragraphs also contain evidence.	CAPE’s ongoing refusal to address the ISC’s recommendations or to disclose the Patry report constituted actionable bad faith conduct against the Plaintiff as pleaded in the Claim. The Defendants are free to plead otherwise in a Defence if they so wish.	Paragraph 104: This paragraph makes reference to the new President who is a non-party. The reference to him by name is made for colour and is immaterial given that the allegations involve CAPE. The words “Once Mr. Phillips became President,” are struck. Paragraph 105 properly pleads the material facts of the rejection of the ISC recommendation.
106	By asserting there are “allies” of Mr. Giannakoulis, the Plaintiff is putting in evidence, opinion and argument and asking the Court to draw an inference on unproven and untested facts. It is furthermore inflammatory. These paragraphs include reference to false, disparaging comments, false and misleading information, an incorrect and a false suggestion. These references are made as though the Court had determined those issues. In making these assertions the Plaintiff is putting in evidence and argument and disguising expressions of opinion as facts. These references are also inflammatory.	Allegations of abusive conduct may not be pleasant to read, but that does not make them inflammatory. Each of these allegations are pleaded as material facts regarding the conduct of Mr. Giannakoulis and his allies toward the Plaintiff. Moreover, these other individuals can only accurately be described as “allies” of Mr. Giannakoulis given that they were cooperating with him and acting at his direction, as pleaded. The Defendants are free to plead contesting facts in a Defence if they so wish.	Paragraph 106 is a proper pleading of material facts related to alleged harassment and abuse without pleading the evidence in support. Details of the postings such as dates and by what social media can be explored at discovery.
113	This paragraph contains an opinion or conclusion and then argument on that conclusion.	This paragraph pleads a material fact of improper conduct on CAPE’s part and the losses the Plaintiff suffered as a result of that conduct. It is entirely proper for a pleading.	The Court adopts the argument of the Plaintiff.
137	This paragraph contains expressions of opinion and speculation disguised as facts. It is also conclusory and argumentative.	Paragraph 137 is a simple summary of the factual background pleaded in detail earlier in the Claim. A statement of cause and effect is not an argument.	Paragraph 137 is properly pleaded as part of the defamation claim to highlight the material facts relied upon as consequences of the alleged defamation.
139-140	This paragraph contains expressions of opinion and speculation disguised as facts. It is also conclusory and argumentative.	These paragraphs plead the necessary elements of the tort of defamation as well as the loss the Plaintiff suffered due to such defamation. They are entirely proper for a pleading.	The Court adopts the argument of the Plaintiff.

COURT FILE NO.: CV-18-77066

DATE: 2021/10/14

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: EMMANUELLE TREMBLAY, Plaintiff/Responding Party

AND

CANADIAN ASSOCIATION OF PROFESSIONAL EMPLOYEES and NICK GIANNAKOULIS, Defendants/Moving Parties/Respondent

ENDORSEMENT

Justice Marc R. Labrosse

Released: October 14, 2021

[^1]: Rule 25.06(1). [^2]: Bowman v. Rainy River (Town), 2006 CarswellOnt 7449, at para 6. [^3]: Bansal v. 2343467 Ontario Inc., 2015 ONSC 1016, at para. 37. [^4]: Bansal, at para 37. [^5]: Rule 25.11. [^6]: Bowman, at para 14. [^7]: Sachedina v. De Rose, 2017 ONSC 6560, at para. 22. [^8]: 2010 ONSC 3954. [^9]: [2000] O.J. No. 1762. [^10]: Bailey v. Milo-Food & Agricultural Infrastructure and Services Inc., 2017 ONSC 1789, 138 O.R. (3d) 144, at para. 37. [^11]: Canadian National Railway Co. v. Brant, (2009) 2009 CanLII 32911 (ON SC), 96 O.R. (3d) 734, at paras. 28-29. [^12]: South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.