Court File and Parties

COURT FILE NO.: CV-20-653865

DATE: 20220610

ONTARIO SUPERIOR COURT OF JUSTICE

RE: SEYED HASSAN SEYEDZADEH DALQUEE and CELINA DENTISTRY, Plaintiffs

-and-

ZALAK PIYUSH GANDHI, Defendant

BEFORE: FL Myers J

COUNSEL: Glenroy Bastien, for the Plaintiffs May Elajami and Alexander Cooke, for the Defendant

HEARD: May 27, 2022

ENDORSEMENT

[1] The defendant moves to strike the statement of claim without leave to amend.

[2] The statement of claim says on its backsheet that it was delivered by the plaintiffs in person. I am assured by counsel for the defendant however, that the plaintiffs were represented by prior counsel until recently.

[3] Mr. Bastien is not the lawyer who is blamed for the statement of claim. Rather, with fresh eyes, he proposes the sensible way forward.

[4] This is one of several actions between and among the plaintiff dentist and two former employees. The dentist claims that the employees defamed him and conspired to injure his practice.

[5] It appears that the defendant was hired to replace another longer term office manager. The plaintiff sued her as well and it appears that he believes that the defendant is in cahoots with his prior employee. The defendant says that the practice was in turmoil when she arrived and she left very quickly as the toxicity of the office environment became apparent.

[6] Regardless of any alleged merit in the claim, it is not apparent how the damages claimed will exceed the $35,000 limit of Small Claims Court. The defendant was an office worker for the plaintiffs for a very short number of weeks. The plaintiffs plead that she defamed them in text messages and that she accessed their computers remotely and damaged the systems.

[7] A judge allowed the parties to deliver some material and to cross-examine each other although this motion is not one in which evidence is admissible. I surmise that he hoped to help the parties see the merits early on so that they could find an affordable way out of their brief relationship and this litigation. But as all too often happens, “[t]he best laid schemes o' mice an' men Gang aft a-gley”.

[8] The factual inquiries disclosed that the plaintiffs’ computer expert could not find any evidence of either external access or damage to the computers. They were full of malware as are most unprotected computers. The plaintiffs replaced their computers. Even if the defendant could bear some responsibility for that need, the cost of the computers was just a few thousand dollars. The plaintiffs did not have a sophisticated or expensive computer system.

[9] The defamation alleged has been a moving target. It now appears to be focused on a text message sent by the defendant that another employee heard her read or allegations that another employee heard the defendant say to still other employees that the plaintiffs’ office was not a good place to work.

[10] The plaintiffs also claim that the defendant tried to “sabotage” the dental practice by failing to make claims for payment under clients’ insurance for dental fees earned and by cancelling appointments for patients and sending them elsewhere. Although I am dealing with this as a pleadings motion, I note in passing that there is no objectively verifiable evidence of any of this as yet. According to the defendant, the plaintiff dentist reviewed and approved his daily billings before they were submitted to the insurers each day.

[11] The defendant filed a detailed factum carefully dissecting the pleading inadequacies of the statement of claim.

[12] The plaintiffs’ response is not aimed at supporting the plainly deficient statement of claim. Mr. Bastien does not try to support the tort of “sabotage”. He also recognizes the inadequacy of a defamation plea that sets out none of the requisite elements of any form of the tort. Instead, Mr. Bastien postulates that on the facts pleaded and the evidence adduced, claims may lie for conspiracy, breach of fiduciary duty, intentional interference with economic relations, deceit, and defamation. He asks for leave to amend the statement of claim to plead properly the causes of action available.

[13] The plaintiffs rely on the decision of the Court of Appeal in Conway v. The Law Society of Upper Canada, 2016 ONCA 72 in which the court held:

[16] The decision not to grant leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6. [Emphasis added.]

[14] If the plaintiffs show that on the facts alleged, it is possible to plead a tenable cause of action, I am required to allow them to try. If this were a second or third try, different considerations might go into the assessment of what is tenable or what is possible. But, on the first time up, where the statement of claim is plainly not drafted by someone who understands the rules of pleading, the test for leave to amend is very light indeed.

[15] The defendant has delivered a reply factum pointing out technical deficiencies in each of the numerous torts postulated by Mr. Bastien. Of course the pleadings are deficient for these new torts. They have not been pleaded yet.

[16] For example, the defendant submits that the plaintiffs have not pleaded that anything she did is characterized as an unlawful act as is required to plead a conspiracy. In fact, the branch of conspiracy referred to as “conspiracy to injure” does not require proof of unlawful means. Moreover, the defamation and allegations of acts designed to hurt the business may well supply unlawful means technically.

[17] The defendant submits that she was not a fiduciary in her position as an employee. That is not an issue on a pleadings motion. That is a question of fact or mixed fact and law for trial or perhaps summary judgment. The question is whether it is possible on the facts alleged for the plaintiffs to plead a tenable cause of action for breach of fiduciary duty. If the defendant was hired as an office manager and given control of the financial aspects of the dental practice as alleged, I do not see why a claim for breach of fiduciary duty is not tenable. It may fail to be sure. But if the facts break the right way, it could succeed too.

[18] Similarly, a claim of defamation, while seemingly quite limited in the scope of publication, is still a tenable cause of action in the hands of someone who knows how to plead the tort correctly.

[19] I do not need to negative each of the torts proffered. If pleading a tenable claim for one is possible, then leave to amend is required.

[20] The statement of claim is therefore struck out. The plaintiffs are granted leave to deliver a fresh as amended statement of claim, if so advised, within 45 days as requested by Mr. Bastien.

[21] In my view the plaintiffs should be ordered to pay some costs. This lawsuit does not appear to be about much money. I fear it may have been brought out of anger and possibly a desire to punish. But civil litigation is about money. It is expensive and fraught with risk. Here the plaintiffs chose to deliver a statement of claim full of pique instead of ensuring its legal adequacy. If the plaintiffs drafted it to save money on lawyers, they were penny wise but pound foolish It is therefore fair and reasonable that the plaintiffs should be responsible to partially indemnify the defendant for the costs that they reasonably incurred in striking the pleading.

[22] However, once Mr. Bastien was retained, the motion ought to have been settled with the issues being how much time did Mr. Bastien need to amend the pleading and what amount of costs would the plaintiffs have to pay for the motion to that point.

[23] Instead, the defendant pressed forward to try to end the claim for technical pleading grounds. The defendant seeks costs of $33,000 including a lawyer spending 120 hours on research and factum writing. Spending more than a claim is worth on highly technical arguments about the drafting of a pleading, and trying to avoid leave to amend, is not an efficient, affordable, or just way to resolve a claim.

[24] In my view, the plaintiffs would not have a reasonable basis to expect costs in the $30,000-plus range on a simple pleadings motion in this small action. The defendant’s response was overkill. The defendant was misdirected to take aim at leave to amend instead of resolution on the merits.

[25] In my view, a fair and reasonable quantum for costs of this motion is $9,000 all inclusive and I order the plaintiffs to pay this amount to the defendant within 45 days.

FL Myers J

Date: June 10, 2022