COURT FILE NO.: CV-21-1611 and CV-22-207
DATE: 20221017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bernartka Ellison aka Bernadette Ellison
Plaintiff
– and –
Stephen Pack and Natasha Bitsakakis-Pack
Defendants
Self Represented
Ms. E. Durst, for the Defendants
HEARD: May 19, 2022, by videoconference
REASONS FOR DECISION
Casullo, J.
Overview
[1] The defendants Stephen Pack and Natasha Bitsakakis-Pack (the “Packs”) bring this motion to strike out the two Statements of Claim issued by the plaintiff, Bernartka Ellison (“They” or “Their” or “Them”) without leave to amend.
[2] For the reasons that follow, I grant the Packs’ motion in part.
Brief Summary of the Claims
[3] They was the founder and former Chief Executive Officer of the Cord Blood Bank of Canada (“CBBC”). CBBC was registered with Health Canada under the Safety of Human Cells, Tissues and Organs for Transplantation Regulations, SOR/2007-118 (the “CTO Regulations”) until December 31, 2015. On or about August 4, 2021, CBBC ceased all cord blood banking activity.
[4] Mrs. Pack had been diagnosed with cancer, and one of the Packs’ daughters was born with a rare genetic disease. In light of this, on or about April 8, 2009, and May 7, 2011, respectively, the Packs entered into a contract with the CBBC whereby the CBBC agreed to receive, process, and cryogenically store and maintain their daughters’ cord blood samples (“Samples”) for a term of 15 years (the “Agreement” or “Agreements”). There was an enrollment fee of $1,100 for each of the blood cord samples, and an annual storage fee payment of $125 per sample.
[5] The Packs understood that cord blood contains stem cells that could later be used in medical therapies and potentially to treat certain life-threatening conditions of not only their daughters (autologous use), but immediate family members as well (allogeneic use).
[6] At some time in August 2017 the Packs discovered a CBC news article that Health Canada had reportedly inspected CBBC’s facility in 2012 and 2015 and found that it was non-compliant with the CTO Regulations. It appears the 2015 inspection uncovered 18 unsatisfactory observations of the CBBC facility.
[7] In October 2017, Health Canada issued an alert, advising the public that as of January 1, 2016, CBBC was no longer a registered establishment under the CTO Regulations, and could no longer bank cord blood for allogeneic use.
[8] In December 2017 the Packs requested that the Samples be transferred to another facility, Insception LifeBank (“Insception”) for continued storage. CBBC resisted, advising the Packs that the transfer would render the Samples unusable.
[9] The Packs were advised by Insception that the Samples could be transported safely, with no impact on their future medical use, and advised CBBC of same. CBBC continued to resist the Packs’ transfer request, prompting the Packs to apply to the court for the Samples’ release. The Application was ultimately resolved on consent, and on February 14, 2019 the Samples were transferred from CBBC to Insception.
[10] Upon arrival, the Samples were tested and found to be unusable for any medical purpose.
Litigation History
[11] On November 28, 2019, the Packs commenced an action against They and CBBC seeking damages approximating $600,000 for, inter alia, breach of contract, negligence and/or fraudulent or negligent misrepresentation (the “Breach Statement of Claim”).
[12] On December 14, 2021, They issued a statement of claim (the “First Statement of Claim) against the Packs seeking damages in excess of $5,000,000 for, inter alia, defamation, gross negligence, malice, and/or fraudulent misrepresentation, as well as an apology.
[13] The Packs brought their first motion to strike the First Statement of Claim.
[14] In answer to the motion to strike, They issued a second Statement of Claim on February 11, 2022 (the “Second Statement of Claim”). The relief sought in both claims is substantially the same, with the differences outlined below.
[15] In this second motion to strike, the Packs move under Rules 21.01(1) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), as amended, to strike out the two statements of claim on the grounds that they disclose no reasonable cause of action.
The Law
[16] Rule 25.06 sets out the rules of pleading, providing in part:
(1) 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.
[17] Rule 21.01(1) provides as follows:
A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
[18] The applicable test on motions to strike out a pleading was articulated in Hunt v. Carey. I must assume that the alleged facts can be proven, and ask myself whether it is "plain and obvious" that the statement of claim discloses no reasonable cause of action: see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at para. 33.
[19] Rule 25.11 provides in part as follows:
The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexations; …
Analysis
[20] Taking each statement of claim in order, I will address the Packs’ request to strike the defamation claims, followed by their request to strike the misrepresentation claims. I will then consider the portions of the pleadings the Packs submit should be struck pursuant to r. 25(11)(b).
[21] When considering the Packs’ motion to strike, I am mindful of the Court of Appeal’s decision in Wouters v. Wouters, 2018 ONCA 26, in which the Court held that when a party is self-represented, the judicial standard on document compliance should be different from the one which the court applies to documents submitted by lawyers. Although decided in the family law context, the principles expressed in Wouters are equally applicable to civil matters when there is a self-represented litigant.
[22] I will conclude my reasons by examining whether the two statements of claim should be consolidated.
I First Statement of Claim
Defamation
[23] In order to establish a claim for defamation, a plaintiff must establish that:
(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(2) that the words in fact referred to the plaintiff; and
(3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.
Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R 640, at para. 28.
[24] The broadcast They claims is defamatory is set out in its entirely below, verbatim from the First Statement of Claim (the “Defamatory Broadcast”):
The Defamatory Broadcast and its Discovery
On or about September 20, 2021, the Plaintiffs received a transcript of a broadcast between Brent Dennison, the CEO of Cellcare Group, the Parent company of Insception Lifebank and Toronto Police Services.
The defamatory Broadcast reads as inter alia as follows:
“….another CBBC client transferred a sample to Insception. The sample was found to have insufficient viability of cells for clinical use, and the client decided not to continue with storage.”
- The Plaintiffs state that client that Brent Dennison is referring to in this broadcast is the Pack Defendants and the cord blood samples that he is referring to are the Defendants’ cord blood samples that were released from CBBC to CoreCryolab on February 14, 2019.
[25] They alleges that the client Mr. Dennison references is the Packs, and that the samples are the Samples in question.
[26] Their defamation claim fails in its entirety. The Packs did not participate in the Defamatory Broadcast. The statement was made by Mr. Dennison to the police, not the Packs to the police. The statement was not about Them, it was about CBBC. Finally, the statement made by Mr. Dennison makes no reference to the Packs. In any event, there is nothing remotely capable of being defamatory in Mr. Dennison’s statement.
[27] Accordingly, paragraphs 29 – 31, referencing the Defamatory Broadcast, are struck from the First Statement of Claim without leave to amend, as the Packs did not generate the Defamatory Broadcast.
[28] As a result of paragraphs 29 – 31 being struck, paragraphs 39 – 41 (notice under the Libel and Slander Act, R.S.O., c. L.12), and paragraphs 42 – 53 (allegations of libel) must also be struck, without leave to amend, as the relief sought in these paragraphs is directly related to the Defamatory Broadcast.
[29] Paragraphs 54 – 55, which claim damages for the defamation, must also be struck, without leave to amend. Given that there is no reasonable cause of action, there can be no damages.
[30] Paragraph 60, in which They seeks an apology for the Packs defamatory statements, is struck without leave to amend.
[31] In holding that the defamation claim in respect of the Defamatory Broadcast must fail, I am mindful of the Court of Appeal’s recent decision in PWC York Properties Inc. v. Siudak, 2022 ONCA 635. There, the Court of Appeal reiterated that pleadings should be read generously on motions to strike under rule 21 or 25. Roberts J.A., at para. 49, emphasized the modern, flexible approach to follow on motions to strike defamation pleadings:
[T]he real question is whether the pleadings disclose a ‘coherent body of fact’ about the elements of a claim for defamation…or are the pleadings merely replete with bald allegations such that they amount to no more than a ‘fishing expedition’ with the result that the defendant is left in the dark about the claim to be met.
[32] However, I need not determine whether the tort of defamation has been pleaded with sufficient particularity, as the Defamatory Broadcast was not of the Packs’ making. They does not even get to the starting line.
Misrepresentation
[33] In Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, 135 O.R. (3d) 481, at para. 198, the Court of Appeal held that a pleading of fraud or misrepresentation must set out with careful particularity the elements of the misrepresentation relied upon, including:
• the alleged misrepresentation itself;
• when, where, how, by whom and to whom it was made;
• its falsity;
• the inducement;
• the intention that the plaintiff should rely upon it;
• the alteration by the plaintiff of his or her position relying on the misrepresentation;
• the resulting loss or damage to the plaintiff; and
• if deceit is alleged, an allegation that the defendant knew of the falsity of his statement.
[34] They alleges that the Pack’s failed to notify Inception of a host of details prior to the Samples being transferred, including that the Packs had not paid fees to evaluate the suitability of each daughter’s sample for medical/clinical use, that the Samples had been deemed not suitable for medical/clinical use by CBBC before the transfer, that the Samples were not eligible for storage under sections 9.1 and 9.2 of the Food and Drugs Act, R.S.C., 1985, c. F-27, etc.
[35] The Packs submit that They has not pleaded the specific material facts to establish the cause of action of misrepresentation against them. Further, They has not pleaded the facts giving rise to a duty of care, or the specific negligent misrepresentations made, including their timing and context. Nor has They specified a claim for damages.
[36] I find that without more, these are simply bald allegations. They do not inform the Packs of the material facts against them, or the allegations to which they need to respond to defend themselves. Read as a whole, the claim is not capable of supporting a cause of action for misrepresentation.
[37] However, I am not prepared to prelude a claim in misrepresentation at this juncture. Accordingly, paragraphs 32 – 38 are struck with leave to amend.
Rule 25.11
[38] In Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 , Justice van Rensburg holds, at paragraph 49:
Rule 25.11(b) provides that the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is "scandalous, frivolous or vexatious". A scandalous pleading includes those parts of a pleading that are irrelevant, argumentative or inserted for colour, and unfounded and inflammatory attacks on the integrity of a party: see George v. Harris, [2000] O.J. No. 1762 (S.C.), at para. 20. The focus in considering a challenge to a pleading under this rule is on the relevance of the pleading to a cause of action or defence. As this court recently noted in Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649, 147 O.R. (3d) 644, at para. 15, "[a] fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious. On the other hand, a pleading that raises irrelevant or superfluous allegations that cannot affect the outcome of an action is scandalous, frivolous or vexatious, and should be struck out".
[39] Paragraph 6 is struck without leave to amend. Mr. Pack’s employment status is irrelevant.
II Second Statement of Claim
Defamation
[40] The broadcast They claims is defamatory is set out verbatim below from the Second Statement of Claim (the “Defamatory Email Exchange”):
The Defamatory Broadcast and its Discovery
On November 26, 2021, at about 1:30 pm, the Plaintiff(s)received 3 emails from the Defendants. The three (3) emails consisted of about 56 files. On or about November 29, 2021, the Plaintiff(s) discovered the file containing an email correspondence between the Defendants and Nazish Ahmed at Insception Lifebank dated from March 7, 2019 to April 1, 2019.
The Defendants have stated under oath that this email correspondence is the only email correspondence between themselves and InsceptionLifebank.
The defamatory Broadcast reads as inter alia as follows:
“Good morning I’m still waiting to hear from someone. If someone could please contact me. Thank you. Kind regards, Natasha”
“Hi Natasha, Sorry about the delay, I was off for a few days. In the meantime we have received the testing results back for your two samples, unfortunately it does not look very promising. Sample with ID number 01-01015362: 40% viable total cells (more than 60% is desired) Sample with ID number 11-01010447: 8% viable total cells If you like I an give you a call tomorrow afternoon to discuss. Thanks Nazish”
“Hi Nazish Can you please call me when you can to discuss our results? “XXXXXXXXXX. Thank you Natasha”
“Hi Natasha, I have asked for a formal report for your records from the testing lab, they have promised me they will send it early next week. I will forward it to you as soon as I receive. Thanks Nazish”
“Hi Nazish I was wondering if you received the report yet? Thanks Natasha”
“Hi Natasha, Here you go: the sample ID is based on the original CBBC assigned ID. Have a good evening Nazish”
[41] They alleges that this email exchange is defamatory, as it would lead a reasonable person to assume the Samples were not stored properly.
[42] For the same reasons the claim for defamation in respect to the Defamatory Broadcast failed, the claim for defamation for the Defamatory Email Exchange must also fail.
[43] While it is conceded that it is Ms. Pack who is communicating with someone from Insception, and that the emails can be considered a broadcast, the object of the emails is the Samples, not Them. Further, it cannot rationally be perceived that anything Ms. Pack writes in the emails would lower They’s reputation in the eyes of a reasonable person. Nothing in the emails comes close to grounding a claim in defamation. Ms. Pack is simply asking about the status of the testing conducted once the Samples were transferred to Insception.
[44] Accordingly, paragraphs 45 – 56 are struck without leave to amend.
[45] As a result of paragraphs 45 – 56 being struck, paragraphs 64 – 66 (notice under the Libel and Slander Act), and paragraphs 67 – 80 (allegations of libel) must also be struck without leave to amend, as the relief sought in these paragraphs is directly related to the Defamatory Email Exchange.
[46] Paragraphs 81 and 87, which particularizes Their damages claims as a result of both defamation and misrepresentation, are struck with leave to amend to remove references to defamation.
[47] Paragraph 86, which particularizes Their damages for defamation, is struck without leave to amend.
[48] Paragraph 44 contains a new allegation of defamation, in respect to a 2020 CBC broadcast about CBBC, which included details of the Packs’ 2019 claim against Them and CBBC. Once again, even if this allegation were pleaded with full particulars, which is not the case, the defamatory statements, if any, were made by agents of the CBC, not the Packs. Paragraph 44 is struck with no leave to amend.
[49] As a consequence, paragraph 18, in which They claims They were victims of a defamatory broadcast by the CBC, must also be struck.
[50] Paragraph 92, in which They seeks an apology for the Packs defamatory statements, is struck without leave to amend.
Misrepresentation
[51] They’s claim for misrepresentation is elaborated upon in the Second Statement of Claim, in an effort to shore up deficiencies in the First Statement of Claim outlined in the Packs’ first motion to strike.
[52] Counsel for the Packs argues that even on a generous reading of They’s misrepresentation claim, the material facts supporting said claims do not ground a cause of action against the Packs.
[53] They have not provided facts related to the relationship between Them, in Their personal capacity, and the Packs; the falsity of the representations; the reliance They put on the representations the Packs made to Insception; or how the Packs acted negligently or fraudulently.
[54] Further, there are no material facts pleaded which would rectify a serious inconsistency in the pleadings. To wit, in paragraph 24 They alleges that according to a representative of Insception, the Samples could be safely transferred without any adverse impact on future medical use. This refutes the allegation at paragraph 31, that the Packs failed to disclose to Insception that they intended to use the Samples for future medical use.
[55] Aside from this inconsistency, I find that They has provided sufficient particulars, such that the Packs know the when, where, how, by whom and to whom the representation was made. While counsel for the Packs urges me to find there was no duty of care flowing from The Packs to the CEO of CBBC, that is an issue for the trier to decide.
[56] As in the First Statement of Claim, while They’s claim for misrepresentation may be tenuous, I am not prepared to strike it at this juncture. However, paragraphs 24 and 31 are struck with leave to amend.
[57] In paragraph 43, They alleges a further misrepresentation by the Packs. To wit, the Packs provided York Region Police with false information, which ostensibly lead to Toronto Police obtaining a search warrant and conducting a search at Their home.
[58] If paragraph 43 is a claim for misrepresentation, it lacks the necessary particulars. What was the false information the Packs provided? How did the police rely on the information? Paragraph 43 is struck with leave to amend.
Rule 25.11(b)
[59] Paragraphs 3 – 6 are struck without leave to amend. While They’s racial identity is properly important to Them, it is irrelevant to the claim.
[60] Paragraph 10, which claims the Packs “enjoy riding the coat-tails of white privilege and oppression” is struck as frivolous and vexatious.
[61] Paragraph 11 is struck without leave to amend. Mr. Pack’s employment status is irrelevant.
[62] Paragraph 27 is struck without leave to amend. Whether They has been the subject of an illegal search and seizure is irrelevant to the claim. If there is any basis to They’s claim that They was sexually assaulted during one of these searches, then Their remedy lies in an action against the persons and/or entity in question, not the Packs.
[63] Paragraphs 82 – 85 are struck without leave to amend. These paragraphs allege damages for harassment, public ridicule, hatred, fraudulent police investigations, an unrelated accident, police detention, none of which involve the Packs.
[64] Paragraph 95 is struck with leave to amend to remove the Libel and Slander Act.
Consolidation
[65] Rule 6.01(1) provides for consolidation of actions, trial at the same time or one immediately after the other:
Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule,
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
[66] Master Dash set out a list of principles to consider in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, at para. 18:
(a) the extent to which the issues in each action are interwoven;
(b) whether the same damages are sought in both actions, in whole or in part;
(c) whether damages overlap and whether a global assessment of damages is required;
(d) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;
(e) whether the parties the same;
(f) whether the lawyers are the same;
(g) whether there is a risk of inconsistent findings or judgment if the actions are not joined;
(h) whether the issues in one action are relatively straight forward compared to the complexity of the other actions;
(i) whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;
(j) the litigation status of each action;
(k) whether there is a jury notice in one or more but not all of the actions;
(l) whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;
(m) the timing of the motion and the possibility of delay;
(n) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;
(o) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;
(p) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge;
(q) whether the motion is brought on consent or over the objection of one or more parties.
[67] Applying these principles, I am exercising my discretion to consolidate the First and Second Statements of Claim. The issues in both claims are interwoven – indeed, they mirror one another. The same damages are sought in both claims. The parties are the same, the lawyers are the same, the litigation status is the same, and there is no advantage or prejudice to one party over another if the actions are consolidated.
[68] Had the status of the litigation between the Breach Statement of Claim been at a similar stage to the First and Second Statements of Claim, I may have considered ordering both actions be tried together, or one after another. However, in addition to the Breach Statement of Claim being further along the litigation path, the parties are not entirely the same, and the claims have been brought in different jurisdictions.
Costs
[69] Given the divided success between the parties (defamation claim struck without leave to amend, misrepresentation claim struck with leave to amend), there shall be no order as to costs.
Casullo, J.
Released: October 18, 2022