Court File and Parties

Court File No.: 20-CV-644495 Motion Heard: 2022-01-26 Superior Court of Justice - Ontario

Re: Patricia Foto, Plaintiff -AND- The Corporation of the City of London, Defendant

Before: Associate Justice Abrams

Counsel: L. Harrison, for the plaintiff J. Blozowski, for the defendant

Reasons for Decision

[1] The plaintiff moves for further particulars in respect of a 2020 claim that has yet to be defended. In the course of the motion, argument was made in a very general manner, without reference to specific demands/specific pleas (save in a few instances) and in accordance with the headings set out in the parties’ respective facta; the particulars demanded were not reviewed seriatim.

[2] This action arises out of what the plaintiff alleges is the wrongful termination of her employment. Responses to a number of the defendant’s demands for particulars were furnished; and, later, they were amplified by the plaintiff. What remains outstanding is what was before me on the motion and is addressed below.

[3] The plaintiff posits that, in moving as the defendant has, it is seeking “pre-pleading discovery”, something that ought not to be sanctioned (*Sears Canada Inc. v. Pi Media Ltd.*, 2011 ONSC 2625, at para. 49). She says, further, that the defendant has not met its onus of satisfying the court that the particulars sought are not within its knowledge and are necessary to enable it to plead. She points out that her statement of claim contains a relatively large level of detail already and, when read contextually and together with those particulars already furnished, provides a level of fact disclosure sufficient to permit the defendant to deliver a statement of defence.

In this regard and specifically:

[4] The defendant asks the plaintiff for a breakdown of the various heads of damage relative to the relief claimed by her. The plaintiff points out that she has outlined, in the claim, the nature and quantum of monetary relief sought, as well as the types of damages she is seeking. She says, and I agree, that this is sufficient to enable the defendant to plead. And while the particulars of any special damages are not set out, it is true, they need only be set out “to the extent that they are known at the date of the pleading”. If not now set out, they must not be known. They can be examined upon, anon.

[5] As for the timelines within which the plaintiff is operating, counsel for the plaintiff has now confirmed that, save as is specifically pleaded otherwise, the pleas relate to the period of 2018 onwards. And, in any event, the plaintiff says, “…the fact that [the defendant] may have a limitations defence in respect of some of [her]…claims [as the defendant now argues] is not itself a reason to order particulars where they are not otherwise warranted… If [the defendant] wishes to plead a limitations defence, it can do so in a way that responds to the current state of the pleadings” (*City of Toronto v. Metrolinx*, 2018 ONSC 5962, at para. 22). Further, with this information now shared (and I am directing that this information be confirmed, in writing, by the plaintiff so that the defendant may treat it as a response to its demand for particulars), the defendant will know what timeframes must be investigated (or better investigated).

[6] In respect of the claim that the plaintiff was allegedly discriminated against on the basis of ethnicity, I accept that this allegation is bald and needs to particularized.

[7] The plaintiff says that paragraphs 3(p), 15, 18, 19, 24, 25(g)-(j) and 27 of the defendant’s demand for particulars contain information requests for information already set out in her responses to date and information that is evident when the claim is read as a whole (together with those responses).

[8] Indeed, on a particulars motion, individual words and statements are to be read in context and holistically (see: *CIBC World Markets Inc. v. Eileen Madder*, 2010 ONSC 2494, at para. 13). And while it is true, the plaintiff acknowledges, that claims of intent and conspiracy need to be set out with particularity, the plaintiff says that she has done so as best she can with specific examples and details furnished in the claim (pointing to paragraphs 17, 18, 21 and 22 of the statement of claim, by way of example) and in those responses already made. Relying upon *Prior v. Sunnybrook and Women’s College Health Sciences Centre*, 2006 ONSC 17329, at paras. 21 and 23, she submits that “an exhaustive list” is not required and that the defendant is inviting the plaintiff to plead evidence and not, simply, material facts. Further and in any event, the plaintiff has advised that, at this time, her ability to do more is thwarted because, as is discussed in paragraph 9, below, she does not have access to her work computer/server.

[9] As to the other particulars requested at paragraphs 2, 3(d)-(o), 3(t), 12, 17, 21 and 22 of the demand for particulars, the plaintiff says that what is now sought is not within her knowledge and would be found/addressed within her employment file, office computer, office voicemail, work calendar and work notes to which she has not had access since March of 2020.

[10] I cannot order the plaintiff to do that which she says she cannot do, and I accept that, while imperfect, the plaintiff’s pleas and responses as relate to the demands referenced in paragraphs 7-9, above, are sufficient to permit the defendant to plead. I note that the defendant has not adduced evidence to refute the plaintiff’s contention as to lack of documentary access.

[11] On the issue of sections of the statutes upon which the plaintiff intends to rely, I acknowledge that, while helpful, the fulsome particulars sought are not necessary at this time. That said, some guidance as to the sections upon which reliance is being placed would be appropriate so that the defendant can better focus its defence and understand the nexus between the legislation and the plaintiff’s pleas.

[12] While the defendant says that the City Solicitor’s Office, together with external counsel, commenced an investigation into the allegations at issue--in the course of which it was determined that further particulars would be required to “fully [emphasis added] understand, investigate and respond to the allegations…within the statement of claim”, that does not mean that, without them, the defendant cannot plead--only that it cannot, without more, know fully the case that it must meet. But, at the pleadings stage, one does not know fully the case that must be met. If it were otherwise, there would be no need for documentary and oral discovery. The plaintiff urges me to give the evidence adduced by the defendant little weight as affidavits from lawyers on particulars motion are “seldom…given much weight” (*Dudziak v. Boots Drug Stores (Canada) Ltd.*, 1983 CarswellOnt 547, at para. 5). Indeed, the defendant’s position on the motion could (should) have been buttressed by evidence from those interviewed or those whose records have been searched as to gaps in their knowledge and/or their inability to instruct counsel as to how to plead.

[13] I note that the plaintiff suggests that the defendant is being strategic in its demands so as to delay the proceedings. I don’t accept that this is so (given the length of the plaintiff’s tenure and the size and organizational complexity of the defendant), but I do think that the time has come for this action to advance and a defence to be delivered--i.e. within 20 days after there has been compliance with my Order as it relates ethnicity, confirmation of timelines and identification of parts of statutes upon which the plaintiff places reliance.

[14] If counsel wish to address the issue of costs, I may to be spoken to. Unless I hear from counsel by March 30/22, I will assume that the issue of costs has been settled.

March 8, 2022 “Original Signed by Associate Justice Abrams”