Court File and Parties

COURT FILE NO.: CV-21-086433-00 DATE: 20220308 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mary Ann Lalonde, Plaintiff AND: Canadian Blood Services, Defendant

BEFORE: Muszynski J.

COUNSEL: Cheryl Letourneau, for the Plaintiff Leanne N. Fisher, for the Defendant

HEARD: February 24, 2022 via Zoom

Endorsement (motion to strike pursuant to r. 25.11)

[1] The plaintiff, Mary Ann Lalonde, initiated this claim against her former employer, Canadian Blood Services (“CBS”), alleging she was wrongfully dismissed and seeking damages for negligent misrepresentation and breach of her rights under the Ontario Human Rights Code, R.S.O. 1990, c. H. 19.

[2] After the exchange of pleadings, the plaintiff brought the subject motion to strike portions of the statement of defence on the grounds that it contains irrelevant information that is scandalous, frivolous, and vexatious. Further, the plaintiff seeks an order requiring CBS to remove gratuitous underlining from the statement of defence which is, presumably, included for the purpose of emphasis as opposed to representing amendments to the pleading.

[3] CBS is agreeable to removing the underlining in the statement of defence but opposes the plaintiff’s motion to strike on the basis that the facts as plead are material to the issue of whether the plaintiff repudiated her employment contract.

Background Facts

[4] The plaintiff started working at CBS on October 15, 2012. In May of 2019, the plaintiff alleges that she was promoted from the position of Territory Manager to the more lucrative position of Marketing Manager. The plaintiff further alleges that she performed well in that role. The plaintiff became pregnant and went on maternity leave with an anticipated return date of May 3, 2021. The plaintiff claims that she relied on representations from CBS that she would be returning in her role as Marketing Manager after her maternity leave.

[5] On April 27, 2021, the plaintiff was informed that another individual was offered the position of Marketing Manager. The plaintiff returned to work as planned on May 3, 2021 in her previous position of Territory Manager.

[6] The plaintiff issued her statement of claim on May 4, 2021. At the time, the plaintiff was still employed at CBS as Territory Manager.

[7] On June 4, 2021, after having been served with the statement of claim, CBS wrote to counsel for the plaintiff and advised that the plaintiff’s employment was “hereby at an immediate end” as the litigation against CBS amounted to a repudiation of the plaintiff’s employment contract.

[8] On June 17, 2021, the plaintiff amended her statement of claim to seek additional damages associated with the termination of her employment, including reinstatement.

[9] CBS served its statement of defence on the plaintiff on August 17, 2021. The paragraphs that include the references the plaintiff seeks to strike are:

10. Five (5) business days after the plaintiff was advised that she had not been selected for the Stem Cell Manager Position, CBS and Kerr were served with a statement of claim, with counsel of record from the plaintiff’s husband’s law firm…

11. One day later, on May 4, 2022, CBS was served with a statement of claim, as described below with legal representation from the plaintiff’s husband’s law firm.

[10] The plaintiff takes issue with the references to the “plaintiff’s husband’s law firm” on the basis that this information is not relevant to the plaintiff’s employment relationship with CBS and is included only to cast aspersions on the validity of the plaintiff’s claim and impugn the integrity of the plaintiff’s lawyers.

[11] Counsel for the plaintiff wrote to counsel for CBS on August 24, 2021 requesting that the references to the “plaintiff’s husband’s law firm” be removed from the statement of defence.

[12] On September 10, 2021, counsel for CBS wrote to counsel for the plaintiff advising:

a. The reference to the “plaintiff’s husband’s law firm” bears on the repudiation analysis and will not be removed from the statement of defence;

b. To make the link between the reference to the “plaintiff’s husband’s law firm” and the repudiation analysis more evident, it is proposed that a fresh as amended statement of defence be filed to provide additional context; and

c. While it was not agreed that the statement of defence violates the Rules because of the underlining for emphasis, CBS will remove the same and replace the underlining with italics.

[13] On September 22, 2021, counsel for the plaintiff advised counsel for CBS that they would not consent to the filing of the proposed fresh as amended statement of defence as the pleading still includes the inappropriate references to the plaintiff’s husband’s law firm. Counsel for the plaintiff further advised that a motion to strike the impugned portions of the defence, and remove the underlining, was forthcoming.

[14] The plaintiff’s notice of motion was served on September 22, 2021 and the motion was ultimately heard on February 24, 2022.

Issue

[15] The only issue remaining on this motion is whether reference to “the plaintiff’s husband’s law firm” should be struck from paragraphs 10 and 33 of the statement of defence.

Law and Analysis

[16] Rule 25.06 of the Rules of Civil Procedure requires pleadings to contain a “concise statement of the material facts” on which the party relies for the claim or defence. If a pleading, or part of a pleading, is scandalous, frivolous, vexatious or an abuse of process it may be struck pursuant to Rule 25.11.

[17] The plaintiff relies on the decision of Stedfasts Inc. v. Dynacare Laboratories, 2020 ONSC 8008, wherein Perell J. provides insight on material facts in the context of pleadings:

Material facts include facts that the party pleading is entitled to prove at trial, and at trial, anything that affects the determination of the party’s rights can be proved; accordingly, material facts includes facts that can have an effect on the determination of a party’s rights. A fact that is not provable at the trial or that is incapable of affecting the outcome is immaterial and ought not to be pleaded. A pleading of fact will be struck if it cannot be the basis of a claim or defence and is designed solely for the purposes of atmosphere or to cast the opposing party in a bad light. As described by Riddell J. in Duryea v. Kaufman, such a plea is said to be “embarrassing”: see para 30.

[18] CBS submits that the court should consider LBI Brands Inc. v. Aquaterra Corporation, 2016 ONSC 3572, where Roger J. states:

The law is clear that the Court must accept the facts alleged in the pleading as proven or true unless they are patently ridiculous, or incapable of proof. It must be plain and obvious that the claim cannot succeed, or that the pleadings are defective. Pleadings should be read generously with allowance for inadequacy due to drafting deficiencies. Similarly, a fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious, but, on the other hand, a pleading that has no material facts is frivolous and vexatious and a pleading that is superfluous or can have no effect on the outcome of the action is also scandalous, frivolous and vexatious. Pleadings that are irrelevant, inflammatory, argumentative or inserted only for colour will also be struck as scandalous. However, unpleasant allegations of facts that are relevant to a cause of action are not scandalous, frivolous or vexatious. Nevertheless, the Court has jurisdiction to strike pleadings that are marginally relevant if their probative value is outweighed by their prejudicial effect (see Canadian Railway v. Brant, (2009), 2009 32911 (ON SC), 96 O.R. (3rd) 734 (S.C.)): see para 11.

[19] When considering whether to strike a pleading, or portions of a pleading, on the basis that it is “scandalous, frivolous or vexatious” the focus is on the relevance of the pleading to the cause of action or defence: Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 at para 49.

[20] In this case, CBS states that the fact that the plaintiff is represented by a lawyer that works at the firm where her husband is a partner is relevant to the issue of repudiation. CBS submits that the Supreme Court of Canada, in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 [Potter], has confirmed that a contextual approach is required when deciding whether there has been repudiation.

[21] In response to this motion, CBS filed affidavit evidence of Janet Sullivan, an Associate Director of Donor Relations at CBS. Ms. Sullivan’s affidavit provides the only evidence about the alleged relevance of the plaintiff’s choice in lawyer, including:

a. “Following the receipt of the plaintiff’s claim, in the summer of 2021, I did not feel that an ongoing employment relationship with the Plaintiff was tenable.”

b. “I did not feel that an ongoing employment relationship with the plaintiff was tenable” because:

i. “the claim was initiated very quickly after the plaintiff became aware that she was not the successful applicant in a job competition in which she had competed”; and

ii. “the claim had been initiated by the law firm in which the plaintiff’s husband was a lawyer/partner.”

c. “The fact that the claim was initiated by the plaintiff’s husband’s law firm was a factor that created additional strain to the employment relationship and contributed to rendering an ongoing employment relationship with the plaintiff untenable. I was concerned, for example, that if other decisions did not go as the plaintiff wished, that CBS (and possibly its Directors/Managers) may be subject to additional lawsuits brought through the plaintiff’s husband’s law firm, in a like fashion.”

[22] I accept that the plaintiff’s commencement of litigation, and the timing of the same, may be relevant to the contextual analysis set out in Potter. I cannot say the same, however, with respect to the plaintiff’s choice of lawyer.

[23] At the hearing of the motion, in support of its position that including reference to the “plaintiff’s husband’s law firm” in the pleading is appropriate, CBS repeatedly argued that there was a power imbalance between CBS and the plaintiff. Typically, power imbalances in the context of wrongful dismissal claims involve the allegation that the employee is disadvantaged by virtue of the employer’s resources and experience. In this case, CBS alleges that the power imbalance flows the opposite way because the plaintiff is married to a lawyer who is a partner in the firm that represents her. I do not find this argument to be persuasive.

[24] I find that the reference to the “plaintiff’s husband’s law firm” in the statement of defence offends Rule 25.06 because it is not a fact that is material to the plaintiff’s claim nor the defence. I further find that the reference to the “plaintiff’s husband’s law firm” serves no legitimate purpose other than to provide atmosphere to diminish the plaintiff’s claim and to cast the plaintiff, and her legal counsel, in a negative light.

[25] On an alternative basis, CBS seeks leave of the court to serve a fresh as amended statement of defence that removes the underlining and provides further context so that the relevance of reference to the “plaintiff’s husband’s law firm” is clearer. Specifically, CBS proposes to add the allegation that the statement of claim “was precipitous” and “initiated in an intimidating fashion.” In my view, these proposed additions do not make the reference to the “plaintiff’s husband’s law firm” any more acceptable. I decline to grant CBS leave in these circumstances.

Conclusion

[26] The plaintiff’s motion to strike reference to the “plaintiff’s husband’s law firm” in paragraphs 10 and 33 of the statement of defence is granted.

[27] On consent of the parties, CBS shall file a fresh as amended statement of defence removing all underlining.

Costs

[28] Costs of this motion are reserved.

[29] The parties have filed their cost outlines with the court which remain sealed.

[30] If the parties cannot come to an agreement on the costs of the motion on or before April 8, 2022, counsel shall communicate with the court to confirm whether they wish to rely on the cost outlines filed exclusively or whether they wish to file additional cost submissions.

[31] If the parties wish to file additional cost submissions they may do so (a maximum of 3 pages) in accordance with the following schedule: the plaintiff shall serve and file costs submissions on or before April 22, 2022; CBS shall serve and file responding costs submissions on or before May 6, 2022; after which time I will determine the issue of costs of the motion based on the material filed.

[32] Counsel shall communicate with the court and file their respective cost submissions by emailing the Superior Court of Justice Judicial Assistant for Belleville/Picton at Mary-Ann.Valiquette@ontario.ca.

Muszynski J. Date: March 8, 2022