Court File and Parties
COURT FILE NO.: CV-21-00000196-0000 DATE: 2022 11 03 AMENDED: 2022 11 07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Carducci and Northeast Engineering & Development Ltd. Plaintiffs
– and –
Attorney General of Canada, David Turnbull, Alex Pompei, Imi Waljee, Hanif Mawji, and Sorin Camer Defendants
Counsel: David Lees, and Bohdan Shulakewych, Lawyers for the Plaintiffs Wendy Wright, Lawyer for the Defendants
HEARD: September 21, 2022
Hon. Justice Ranjan K. Agarwal
AMENDED ENDORSEMENT
Amended Endorsement: The text of the original endorsement was amended on November 7, 2022. Amendments were made to paragraphs 1, 9, 57 and 59.
I. INTRODUCTION
[1] The plaintiff Robert Carducci worked as a “delegate” under the Aeronautics Act, RSC 1985, c A-2, for the federal Ministry of Transport in the Ontario region for 40 years until his delegation was cancelled in December 2019. Carducci and his company, the plaintiff Northeast Engineering & Development Ltd., have sued the defendants Attorney General of Canada (as representative for Transport Canada and Transport Canada Civil Aviation) and five individual employees of TCCA for $20 million in damages. Carducci alleges that the defendants’ unlawful and intentional conduct led to the cancellation of his delegation.
[2] The defendants move to strike the plaintiffs’ claim, without leave to amend, on the ground that it discloses no reasonable cause of action. Alternatively, the defendants move to strike out several paragraphs of the plaintiffs’ claim on the grounds that they are scandalous, frivolous, or vexatious, or are an abuse of process of the court.
[3] For the reasons discussed below, I endorse an order:
(a) striking out the plaintiffs’ claims for conspiracy, breach of contract, injurious falsehood, negligence, wrongful or constructive dismissal, and intentional interference with contractual relations as disclosing no reasonable cause of action;
(b) that the plaintiffs are granted leave to amend the amended statement of claim;
(c) dismissing the defendants’ motion to strike out the plaintiffs’ claim for misfeasance in public office or on the grounds that the pleading is scandalous or an abuse of the process; and
(d) that the plaintiffs’ time limit to deliver their amended pleading is December 1, 2022, and the defendants’ time limit to deliver their statement of defence is January 31, 2023
II. BACKGROUND
A. Factual Background
[4] I have taken the background from the factual allegations in the plaintiffs’ amended statement of claim. For a motion to strike, these allegations have to be accepted as true. See Hunt v Carey Canada Inc., 1990 90 (SCC), [1990] 2 SCR 959 at 980; The Catalyst Cap. Group Inc. v Veritas Investment Research Corp., 2017 ONCA 85 at para 21.
[5] Transport Canada develops and oversees the Government of Canada’s transportation policies and programs. The Civil Aviation Directorate, also known as Transport Canada Civil Aviation, is responsible for advancing the safety of all aspects of civil aviation in Canada.
[6] Carducci worked for TCCA between 1972 and 1976 as an aeronautical engineer and certification engineer in Toronto and Ottawa. In July 1979, he was approved as a Design Approval Representative, or DAR (also known as a delegate). Carducci performed his duties through Northeast Engineering.
[7] Under section 4.3(1) of the Aeronautics Act, RSC 1985, c A-2, the Minister of Transport may “authorize any person…to exercise or perform, subject to any restrictions or conditions that the Minister may specify, any of the powers, duties or functions of the Minister under [Part I of the Act], other than the power to make a regulation, an order, a security measure or an emergency direction.”
[8] The Minister has delegated to the Chief, Flight Test, the Chief, Engineering and their superiors the authority to delegate to a DAR. The specific functions, which may be delegated, are included in section 214(1) of the Air Regulations and particular Air Navigation Orders. DARs may work in conjunction provided the method of operation appears in the appropriate approved Engineering Procedures Manuals (EPM). Each applicant must submit to the Minister an EPM for approval prior to being appointed as a DAR.
[9] The individual defendants David Turnbull, Alex Pompei, Imi Waljee, Sorin Camer, and Hanif Mawji are current or former employees of TCCA.
[10] In December 2019, TCCA revoked Carducci’s delegation. The plaintiffs allege that the defendants’ intentional and unlawful conduct led to this revocation. First, TCCA failed to approve the plaintiffs’ revisions to their EPM for 18 years, which rendered Carducci’s EPM stale-dated and ineffective. Second, TCCA appointed Camer, who was the Operations Principal Inspector assigned to Northeast Engineering, but he didn’t have the proper expertise. Camer was also adversarial in his approach, which led to conflict with the plaintiffs. As a result, Camer’s actions caused inappropriately long delays and costs to the plaintiffs; frustrations for Carducci and the plaintiffs’ clients; and lost contracts for the plaintiffs. Third, the TCCA, to frustrate and undermine Carducci, intentionally refused to change or transfer Camer when the plaintiffs asked. Fourth, the defendants undermined the plaintiffs’ reputation with the Dutch Civil Aviation Authority.
[11] The plaintiffs discovered the defendants’ intentions from an email that was inadvertently sent from Turnbull to Waljee in March 2019, which the plaintiffs say shows that the defendants were only “paying lip service” to the concerns that Carducci had raised over the years.
[12] The plaintiffs allege that the cancellation of the DAR has caused them to lose significant customers, projects, and potential projects.
B. Pleadings and Proceedings
[13] In December 2021, the plaintiffs sued the defendants for $15 million in general damages and $5 million in punitive and aggravated damages. In their statement of claim, they allege breach of contract, misfeasance in public office, constructive dismissal, wrongful dismissal, negligence, intentional interference with contractual relations, loss of reputation, loss of income, loss of company value, and conspiracy. The plaintiffs amended their claim in February 2022. The amended statement of claim is 71 pages and 376 paragraphs long.
[14] In July 2022, the defendants moved to strike the amended statement of claim as disclosing no reasonable cause of action (Rules of Civil Procedure, r 21.01(1)(b)) or, alternatively, several paragraphs as scandalous, frivolous, or vexatious (rule 25.11(b)) or an abuse of process (rule 25.11(c)). The defendants argue that none of the claims made by the plaintiffs plead the necessary elements of the causes of action. They also argue that several paragraphs improperly plead evidence, or are prejudicial or irrelevant.
III. LEGAL FRAMEWORK
[15] The bar for striking a pleading is very high.
[16] For a claim, the question is whether the action has no reasonable prospect of success or whether it is plain and obvious that the action cannot succeed. This high standard applies to determinations of fact, law, and mixed fact and law. The facts pleaded are treated as true unless they are “manifestly incapable” of being proven. And the pleadings should be read generously, accommodating any drafting deficiencies because cases should be determined on their merits based on the evidence presented before judges at trial. See PMC York Properties Inc. v Siudak, 2022 ONCA 635 at paras 30-31.
[17] When a reasonable prospect of success exists, the matter should be allowed to proceed to trial. The correct posture for the court to adopt is to consider whether the pleadings, as they stand or may reasonably be amended, disclose a question that is not doomed to fail. Atl. Lottery Corp. Inc. v Babstock, 2020 SCC 19 at para 90
[18] The motivating rationale behind this high standard reflects the liberal construction of rules and pleadings that underlies the Rules of Civil Procedure and the requisite generous approach to pleadings in general, in order, as rule 1.04(1) provides, to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” See PMC York Properties, at para 33.
[19] Pleadings are critical. They frame the proceedings and the case that must be met. Motions to strike can certainly serve a useful purpose at early stages of a proceeding to weed out clearly untenable causes of action that have no chance of success. But in circumstances where parties are quibbling over whether a known cause of action has been pleaded with sufficient particularity, unwise use of motions to strike inevitably lead to proceedings becoming mired down. See PMC York Properties, at para 34.
[20] Here, the defendants’ motion had the effect of the plaintiffs filing a fairly substantial factum and making detailed oral submissions that organized and clarified their position. As a result, most of the defendants’ arguments about the insufficiency of the pleading have been answered. Their main complaint—that they don’t know the case they have to meet—has largely been clarified.
IV. ANALYSIS
A. No Reasonable Cause of Action
1. Misfeasance in public office
[21] To succeed on a misfeasance claim, the plaintiffs must show:
(a) the defendant was a public official exercising public functions at the relevant time;
(b) the public official deliberately engaged in an unlawful act in their public capacity;
(c) the public official was aware both that their conduct was unlawful and that it was likely to harm the plaintiff;
(d) the public official’s tortious conduct was the legal cause of the plaintiff’s injuries; and
(e) the injuries suffered are compensable in tort law (see Ontario (AG) v Clark, 2021 SCC 18 at para 22; Meekis v Ontario, 2021 ONCA 534 at para 73).
[22] While the material facts may lack detail in the early stages of a proceeding, at the pleadings stage it is generally enough for a plaintiff to establish “a narrow window of opportunity” to make out a misfeasance claim at trial. That said, the tort requires more than a “bald pleading” that a public official acted for an improper purpose; there must be material facts about specific officials and their specific unlawful purpose in acting as they did. See Meekis, at paras 76-77.
[23] The thrust of the defendants’ argument is that they cannot respond adequately to the plaintiffs’ claims. They argue that the plaintiffs must plead facts about “which of the defendants has committed such abuses, what specific powers were abused, how and when such powers were abused or that the plaintiffs were the objects of the impugned conduct” (see Aristocrat Restaurants Ltd. (cob Tony's East) v Ontario, [2003] OJ no 5331 (Sup Ct) at para 48). The defendants separately argue that rule 25.06(8) requires that the “full particulars” of malice be pleaded—in my view, that is the same as the “when, what, by whom and to whom” of the alleged misconduct (see Braysan Properties Inc. “In Trust” v Muchos, 2022 ONSC 3703 at para 61).
[24] The defendants focus on paragraphs 338 and following of the plaintiffs’ amended statement of claim, which is a summary of the plaintiffs’ claims for each cause of action. In response, the plaintiffs’ factum, at paragraph 42, lists every paragraph that they say deals “with malice”. The list alone is not that helpful—on a motion to strike, it’s not fair or efficient to require the defendants or the court to hunt around the pleading for particulars of the claims.
[25] That said, I believe that the plaintiffs have adequately pleaded the particulars for misfeasance. The plaintiffs need only plead “circumstances, particulars or facts” sufficient to “infer or find malice” (see Gratton-Masuy Env’t Technologies Inc. v Ontario, 2010 ONCA 501 at para 89).
[26] The claim that the defendants failed to approve the plaintiffs’ EPM is a good example:
(a) which of the defendants has committed such abuses—the plaintiffs claim that the “Pompei group” (which is defined as the “Ontario Region certification group was led by Pompei”) “failed to process Carducci’s EPM revisions in a fair and just manner” (amended statement of claim, para 75);
(b) the specific powers that were abused— “the EPM must be periodically revised to keep up with the changes in TCCA procedures, policies, and processes” (para 72); and
(c) how and when such powers were abused—Pompei “purposely frustrated Carducci’s operations by failing to review and approve Carducci’s EPM revisions” (para 94).
[27] Paragraphs 71 to 95 of the amended statement of claim make clear that the plaintiffs were the object of the alleged conduct. For example, at paragraph 93, the plaintiffs plead that no “other DARs had their EPM submissions ignored in the Ontario region.”
[28] Thus, I dismiss the defendants’ motion to strike the plaintiffs’ claim for misfeasance in public office as disclosing no reasonable cause of action. To be clear, I am not opining on whether the plaintiffs have successfully made out a claim for misfeasance. For example, the plaintiffs’ claim that failing to approve the EPM fairly or justly is unlawful may not succeed at trial. But, for a pleadings motion, I believe they have satisfied the very low bar required of them.
2. Conspiracy
[29] An actionable conspiracy will exist:
(a) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or
(b) if the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result (PMC York Properties, at para 69)
[30] In the latter situation, it is unnecessary that the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff. In both situations, however, there must be actual damage suffered by the plaintiff (PMC York Properties, at para 70)
[31] To plead civil conspiracy a statement of claim must state with precision and clarity material facts as to: (a) the parties to the conspiracy and their relationship of one to the other; (b) the agreement between or among the defendants to conspire, including particulars as to the time, place, and mode of agreement; (c) the precise purpose or object of the conspiracy; (d) the overt acts alleged to have been done by each of the alleged conspirators in pursuance and furtherance of the conspiracy, including the time, and place and nature of the acts; and (e) the injury and damage caused to the plaintiff as a result of conspiracy. See Savary v Tarion Warrant Corp., 2021 ONSC 2409 at para 63.
[32] The plaintiffs have adequately pleaded some particulars for conspiracy:
(a) the parties to the conspiracy and their relationship—the plaintiffs define the conspirators as the “Defendants”, which includes the individual defendants and TCCA (as represented in this action by the Attorney General of Canada);
(b) the precise purpose of the conspiracy—to “undermine Carducci’s business operations as a delegate” so as to have grounds to terminate his delegation; and
(c) the overt acts done by the alleged conspirators—failing to change the OPI or refusing to transfer the plaintiffs from the Pompei group, failing to respond to the plaintiffs’ concerns about the defendants’ operations, and failing to approve the plaintiffs’ EPM.
[33] The plaintiffs have not pleaded the agreement between the alleged co-conspirators. The plaintiffs argue that their pleading of a “secret” conspiracy and the defendants’ combined actions allow me to infer an agreement. I don’t believe that is sufficient—the plaintiffs have to plead the particulars of the agreement, such as when it was made, where it was made, whether it was oral and written, and the terms of the agreement.
[34] The plaintiffs have also not pleaded special damages. Special damages are a necessary ingredient in a cause of action based on conspiracy and must be expressly pleaded (see 2038724 Ontario Ltd. v Quizno’s Canada Restaurant Corp., 2009 57156 (Ont Sup Ct) at para 56).
[35] Thus, I am endorsing an order striking out the plaintiffs’ claim for conspiracy as disclosing no reasonable cause of action.
3. Breach of contract
[36] A proper pleading of breach of contract requires sufficient particulars to identify:
(a) the nature of the contract,
(b) the facts supporting privity of the contract between the plaintiff and the defendant;
(c) the relevant terms of the contract;
(d) which term was breached;
(e) the conduct given rise to the breach; and
(f) the damages the flow from that breach (see Nanra v NRI Legal Services, 2017 ONSC 4503 at para 19).
[37] The plaintiffs allege that Carducci’s DAR delegation approved in July 1979 is a contract between Carducci and TCCA (at paragraph 30 of the amended statement of claim). As discussed above, the plaintiffs have pleaded the defendants’ conduct and their damages.
[38] That said, the plaintiffs have not pleaded the relevant terms of the contract and the terms they say TCCA breached.
[39] Thus, I am endorsing an order striking out the plaintiffs’ claim for breach of contract as disclosing no reasonable cause of action.
4. Injurious Falsehood
[40] Actions for injurious falsehood involve the publication of false statements, either orally or in writing, reflecting adversely on the plaintiff's business or property, or title to property, and so calculated as to induce persons not to deal with the plaintiff. The plaintiffs must plead that the published statements are untrue, that they were made maliciously, and that the plaintiff suffered special damages. See Lysko v Braley, 2006 11846 at para 133.
[41] Section 17 of the Libel and Slander Act, R.S.O. 1990, c. L.12, provides that in an action for malicious falsehood, it is not necessary to allege special damages “if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form” or “if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication”. See Lysko, at para 134.
[42] The plaintiffs rely on several allegedly untrue statements made by the defendants:
(a) Mawji accused Carducci of “having working issues with his prior OPIs” (amended statement of claim, para 118);
(b) Pompei expressed a “negative attitude” towards Carducci (para 121);
(c) Mawji made claims and “attacks” about Carducci and the Dutch CAA (paras 210-218);
(d) Pompei claimed that Camer had discussed his requirements with a group of national engineers (para 266);
(e) Mawji accused the plaintiffs of “including the client in the communications with the TCCA” in a letter (para 332); and
(f) Turnbull sent Carducci a Certificate of Appreciation in 2019 that stated Carducci had only been a delegate for 15 years (para 358).
[43] None of these satisfy the test for pleading injurious falsehood. First, most of these are not pleadings of oral or written statements. For example, “negative expressions” and “accusations” or claims needed to be particularized—what was the statement? was it oral or in writing? who made it? when was it made? Second, the plaintiffs haven’t pleaded how these statements were calculated to induce third parties not to deal with the plaintiffs. For example, who are Mawji’s accusations directed to? Who is the third party that Mawji is allegedly trying to persuade to stop dealing with the plaintiffs?
[44] That said, the pleading sufficiently states that the published statements are untrue and that they were made maliciously. Proof of special damage is not required under section 17 of the Libel and Slander Act (either because the statements were made in writing or they’re intended to cause pecuniary damage to Carducci in respect of his business).
[45] Thus, I am endorsing an order striking out the plaintiffs’ claim for injurious falsehood as disclosing no reasonable cause of action.
5. Negligence
[46] To advance a successful claim in negligence a plaintiff must demonstrate that
(a) the defendant owed them a duty of care;
(b) the defendant's behaviour breached the standard of care;
(c) the plaintiff sustained damage; and
(d) the damage was caused, in fact and in law, by the defendant's breach (see Mustapha v Culligan of Canada Ltd., 2008 SCC 27 at para 3).
[47] The defendants make two arguments about the plaintiffs’ negligence pleading. First, in Gill v Canada (AG), 2015 BCCA 344, the British Columbia Court of Appeal held that Transport Canada does not have a duty of care to “protect the economic interests of regulated entities”—the defendants argue that this proposition bars the plaintiffs’ claim in negligence.
[48] In that case, Transport Canada suspended the plaintiff’s airline’s Air Operator Certificate after a fatal crash. The airline went bankrupt. Transport Canada admitted that it mistakenly relied on an inapplicable regulatory power to suspend the operational certificate. The plaintiff sued Transport Canada for negligence. The British Columbia Court of Appeal held that the legislative scheme did not create a private law duty of care: “it is not part of the statutory scheme that Transport Canada promote or protect the economic interests of, or otherwise benefit, the operator” (at para 31). This finding was made after a lengthy trial.
[49] In my view, Gill cannot be used to argue, on a pleadings motion, that Transport Canada doesn’t owe a duty of care to a regulated entity in all circumstances, or to argue that Transport Canada doesn’t owe a specific duty of care to a DAR.
[50] At times, a proposed cause of action is “so obviously at odds with precedent, underlying principle, and desirable social consequence” that regardless of the evidence adduced at trial, the court can say with confidence that it cannot succeed (Babstock, at para 87). Here, the plaintiffs’ negligence claim is not “so obviously” at odds with precedent that it should be struck for that reason alone.
[51] Second the plaintiffs don’t particularize the duty of care owed by the defendants to them. The plaintiffs plead, at paragraph 356 of the amended statement of claim, that they are relying on “the Professional Engineers of Ontario (PEO) Code of Ethics and its regulations”. In other words, the plaintiffs plead that the PEO Code of Ethics informs the standard of care owed to them by the defendants. Breaching a professional conduct rule is not necessarily negligence. These types of rules aren’t binding on the courts and don’t necessarily describe the applicable duty. That said, they may inform the “nature and extent” of duties that flow from a professional relationship. See Galambos v Perez, 2009 SCC 48 at para 29.
[52] Though the plaintiffs can rely on the PEO Code of Ethics as a basis for the standard of care, they haven’t sufficiently particularized the duty that they say the defendants owed them, and the standard they say the defendants breached.
[53] Thus, I am endorsing an order striking out the plaintiffs’ claim for negligence as disclosing no reasonable cause of action.
6. Wrongful or Constructive Dismissal
[54] In wrongful dismissal pleadings, the plaintiff must allege: (a) that they were in an employment contract; and (b) damages, usually in the form of wages in lieu of reasonable notice of termination. See Reddy v Freightliner Canada Inc., 2015 ONSC 1811 at para 10, aff’d 2010 ONCA 797.
[55] The test for constructive dismissal has two branches. The court must first identify an express or implied contract term that has been breached and then determine whether that breach was serious enough to constitute constructive dismissal. Even so, an employer’s conduct will also constitute constructive dismissal if it more generally shows that the employer intended not to be bound by the contract. See Potter v New Brunswick Legal Aid Services Comm’n, 2015 SCC 10 at paras 32-33.
[56] Thus, the elements of a properly pleaded constructive dismissal claim are:
(a) an employment contract between the parties;
(b) either (i) an express or implied contract term that the plaintiff says the employer has breached or (ii) facts that show the employer didn’t intend to be bound by the contract; and
(c) damages in the form of pay in lieu of notice.
[57] The defendants do not plead, anywhere, that Carducci was a TCCA employee during the alleged events (in fact, at paragraph 4 of the amended statement of claim, the defendants plead that Carducci “left the employ of TCCA in February 1976”). Thus, I am endorsing an order striking out the plaintiffs’ claim for wrongful and constructive dismissal as disclosing no reasonable cause of action.
[58] At the motion hearing, the defendants argued that they were “arguably in a dependent contract-like relationship” with the defendants. In McKee v Reid’s Heritage Homes Ltd., 2009 ONCA 916, the Court of Appeal expressly recognized an intermediate category between employee and independent contract—a dependent contractor, “which consists, at least, of those non-employment work relationships that exhibit a certain minimum economic dependency, which may be demonstrated by complete or near-complete exclusivity” (at para 30).
[59] To the extent that the plaintiffs (really, Carducci) are pleading that they were engaged as a dependent contractor by the defendants (really, TCCA), they have not pleaded any of the elements for this claim.
7. Intentional Interference with Contractual Relations
[60] The plaintiffs plead the tort of intentional interference with contractual relations. In A.I. Enterprises Ltd. v Bram Enterprises Ltd., 2014 SCC 12, the Supreme Court of Canada clarified that the economic tort of unlawful interference is better described as the unlawful means tort. The tort requires the defendant to have committed an actionable wrong against a third party that intentionally caused the plaintiff economic harm. Conduct is unlawful if it is actionable by the third party, or would be actionable if the third party had suffered a resulting loss (at para 5).
[61] The parties both rely on Unisys Canada Inc. v York Three Associates Inc., 2001 7276 (Ont CA). In that case, Unisys sued George Cancilla, alleging that Cancilla induced a sublessee (Cancilla’s shell company) to breach its tenancy agreement with Unisys. The issue in dispute in that case was whether Cancilla intentionally caused the sublessee to breach the tenancy. At paragraph 14, the court seems to merge the torts of inducing breach of contract and intentional interference in its analysis.
[62] In my view, today, the claim in Unisys would be made under the unlawful means tort. In other words, did Cancilla commit an actionable wrong against the sublessee that caused it to breach its tenancy agreement with Unisys? In Bram Enterprises, the Supreme Court acknowledged that the unlawful means tort can made along with inducing breach of contract: “it would be possible for there to be concurrent liability for inducing breach of contract and causing loss by unlawful means, as where the defendant threatens to break his or her contract with the third party in order to convince the third party to breach a separate contract with the plaintiff. Such a scenario might trigger liability both for the tort of inducing a breach of contract and the unlawful means tort…” (para 80). See also Gaur v Datta, 2015 ONCA 151.
[63] The plaintiffs’ amended statement of claim, at para 361 and following, is confusing. It pleads that there was an enforceable contract between the plaintiffs and Transport Canada (Carducci’s DAR delegation approved in July 1979). But it then pleads that the “Defendants” knew about the contract and intentionally acted to cause its breach. But the “Defendants” includes Transport Canada—a defendant cannot unlawfully interfere with its own contract. Presumably, the plaintiffs are alleging that the individual defendants did something unlawful to cause Transport Canada to breach Carducci’s DAR delegation.
[64] In any event, the claim for unlawful means is not properly pleaded. A claim for unlawful means must set forth, “with clarity and precision”, the identity of the defendants and the overt acts that they are alleged to have done. See Lysko v Braley, 2006 11846 at para 144. The plaintiffs don’t plead the “when, what, by whom and to whom” of the alleged unlawful conduct. What is the actionable wrong by the individual defendants against Transport Canada that intentionally caused the plaintiffs’ economic harm?
[65] Thus, I am endorsing an order striking out the plaintiffs’ claim for intentional interference with contractual relations as disclosing no reasonable cause of action.
B. Leave to Amend
[66] A litigant’s pleading should not lightly be struck without leave to amend. To the contrary, leave to amend should be denied only in the clearest of cases. This is particularly so where the deficiencies in the pleading may be cured by an appropriate amendment, as in this case. Importantly, on this record, there is no evidence of prejudice to the respondents if leave to amend is granted. See South Holly Holdings Ltd. v The Toronto-Dominion Bank, 2007 ONCA 456 at para 6; Tran v University of Western Ontario, 2015 ONCA 295 at para 26.
[67] The defendants argue that the motion has been outstanding for several month and thus if the plaintiffs had more particulars, the claim would have been amended (see McCreight v Canada (AG), 2012 ONSC 1983 at para 107).
[68] I don’t know why the plaintiffs haven’t amended their claim since the defendants’ motion. But I’m not prepared to drive them from the “judgment seat” yet. The plaintiffs have pleaded several of the elements or particulars necessary for most of the causes of action. Between their factum and oral argument for this motion, and these reasons, they may be able to cure the deficiencies by an appropriate amendment. If they cannot do so (because they don’t have the material facts), then that claim will have to be abandoned.
[69] Thus, I endorse an order that the plaintiffs are granted leave to amend the amended statement of claim. In order to ensure this action proceeds expeditiously, I endorse an order that the plaintiffs’ time limit to deliver their amended pleading is on or before December 1, 2022, and the defendants’ time limit to deliver their statement of defence is January 31, 2023.
C. Pleading Evidence or Scandalous Pleadings
[70] Every pleading shall contain a concise statement of the material facts that the party relies on for the claim, but not the evidence by which those facts are to be prove (rule 25.06(1)).
[71] Rule 25.06(1) distinguishes between the “material facts” and “the evidence by which those facts are to be proved”. The prohibition against pleading evidence is designed to restrain the pleading of facts that are “subordinate” and that “merely tend towards proving the truth of the material facts.” See Jacobson v Skurka, 2015 ONSC 1699 at para 43.
[72] The defendants list several paragraphs where they say the plaintiffs have pleaded evidence. Using but one example, in paragraphs 97 to 100, the plaintiffs plead:
Camer did not have a degree in aeronautical engineering nor equivalent education and experience. He was technically unqualified to hold the position of Senior Airworthiness Engineer at TCCA.
Camer’s expertise was only in components for aircraft and not for aircraft itself.
Camer had experience with components utilized for the servicing of aircraft or servicing of aircraft components but not aircraft. For example, items that might be used to service aircraft would be air-stairs, lavatory off-loading equipment, de-icing trucks, catering trucks, re-fueling pumps, etc. For components, these could be the repair and overhaul of generators, hydraulic cylinders, hydraulic pumps, carburetors, etc.
There was not sufficient work in the components side of aircraft certification at TCCA so Camer was appointed by Pompei to a position of an airworthiness engineer for modification of aircraft where he did not have the education, training, or experience to act in that capacity.
[73] Using this example, I am not persuaded that the claim infringes the rule against pleading evidence, especially where the defendants are also arguing that the claim lacks material facts. The facts pleaded in paragraphs 97 to 100 are material to the plaintiffs’ claim that Camer was unqualified for his job, which led to conflict between him and the plaintiffs, and the plaintiffs’ eventual termination as DAR. The plaintiffs may have been over-inclusive but their claim doesn’t violate rule 25.06(1).
[74] 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. 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. See Abbasbayli v Fiera Foods Co., 2021 ONCA 95 at para 49.
[75] The defendants list several paragraphs of the amended statement of claim they say are “for colour”. Paragraphs 97 and 100 are but two examples. I disagree—again, using this example, Camer’s alleged lack of qualifications is central to the plaintiffs’ allegations. There is nothing legally scandalous about the claim. I anticipate that Camer will vigorously dispute this allegation, but it’s not legally abusive or vexatious such that it should be struck out.
[76] The defendants also argue that several paragraphs plead irrelevant facts. For example, at paragraphs 303 to 307, the plaintiffs plead that they warned TCCA about workload issues, which manifested in the “flawed Boeing 737MAX certification”. The defendants are right that the plaintiffs don’t plead that they were part of this certification. But their claim, here and elsewhere in the pleading, is that their repeated attempts to get TCCA’s attention were frustrated by the individual defendants, and the Boeing 737MAX certification is such an example.
[77] Thus, I endorse an order dismissing the defendants’ motion to strike several of the paragraphs of the amended statement of claim on the grounds that the pleading is scandalous, frivolous or vexatious, or an abuse of the process of the court.
V. COSTS
[78] The parties should attempt to resolve the issue of costs on their own. If they cannot do so, the plaintiffs may file their costs submissions (three pages, double-spaced, one-inch margins), costs outline, and any offers to settle on or before November 15, 2022. The defendants may respond on or before November 30, 2022 (three pages, double-spaced, one-inch margins), costs outline, and any offers to settle. If I have received no submissions within these time limits, I will assume that the parties have resolved the issue and make no costs order.
[79] I am not otherwise seized.
Agarwal J.
Released: November 3, 2022, amended November 7, 2022
COURT FILE NO.: CV-21-00000196-0000 DATE: 2022 11 03 AMENDED: 2022 11 07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Carducci and Northeast Engineering & Development Ltd. Plaintiffs
– and –
Attorney General of Canada, David Turnbull, Alex Pompei, Imi Waljee, Hanif Mawji, and Sorin Camer Defendants
ENDORSEMENT
Agarwal J.
Released: November 3, 2022, Amended: November 7, 2022