COURT FILE NO.: CV-19-3031
DATE: 2022-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAREN DALTON
Plaintiff
– and –
CAROLYN WOSZCZYNA, NICOLE RIDER, ADELLE KNUTT, ADELLE D. KNUTT PSYSCHOLOGY PROFESSIONAL CORPORATION, RGA PSYCHOLOGICAL AND COUNSELLING SERVICES and THE STRATFORD FAMILY HEALTH TEAM
Defendants
Self-represented
Edward O’Dwyer, counsel, for the Defendants Carolyn Woszczyna and RGA Psychological and Counselling Services
Ruba El-Sayegh, counsel, for the Defendant Nicole Rider
Martha Cook, counsel, for the Defendants Adelle Knutt and Adelle D. Knutt Psychology Professional Corporation
Jodi Solomon, counsel, for the Defendant The Stratford Family Health Team
HEARD: October 26, 2021 by videoconference
HEENEY J.:
[1] The defendants have each brought motions under rules 21.01 and 25.11 for an order striking out the Fresh As Amended Statement of Claim (“FAASC”) without leave to amend, and an order dismissing the action on a final basis.
[2] To paraphrase the introduction in the factum of the defendant Knutt, it is argued that the plaintiff’s claim fails to disclose any reasonable cause of action against the defendants, fails to accord with the rules of pleadings, raises claims unknown in law and advances allegations incapable of proof. It is said to be a rehashing of allegations made in prior proceedings, including a Small Claims Court proceeding that was ultimately dismissed, an employment standards complaint, complaints to the College of Psychologists of Ontario, the College of Psychotherapists of Ontario and the Labour Relations Board, and criminal allegations filed with the Stratford Police Services.
[3] The plaintiff’s claim relates to a working relationship between the plaintiff and the defendants which ended, at the latest, on April 4, 2017. The plaintiff’s action was commenced on September 26, 2019, more than two years and five months later. The defendants plead that the claims advanced are substantially the same as those advanced in the earlier Small Claims Court proceeding, are factually hopeless, vexatious, constitute an abuse of process and are statute-barred.
Background:
[4] The plaintiff is a professional therapeutic counsellor. In the fall of 2014 she rented space from the defendant Woszczyna, with the intention that Woszczyna would refer patients to her. Woszczyna is a registered psychotherapist, and the defendant RGA is a registered business name for a partnership operated by her. The plaintiff began providing counselling services to patients assigned to her by Woszczyna. These services were provided under a supervision arrangement with a clinical psychologist. Initially the supervising psychologist was the defendant Rider, commencing in November 2014. That relationship soured and ended in January 2016. Supervision was then undertaken by the defendant Knutt, who is also a clinical psychologist.
[5] The defendant The Stratford Family Health Team (“SFHT”) is a medical clinic in Stratford. Its services include referring patients to specialists and clinicians for care and treatment not provided by SFHT, including psychological and counselling services. SFHT referred patients to RGA, where they were triaged by Woszczyna and referred to the appropriate counsellor or psychologist. The plaintiff does not plead that she had any direct dealings with SFHT nor that she was assigned patients by them.
[6] The plaintiff was paid for her counselling services pursuant to an oral fee splitting agreement whereby the patient was billed a fee of $120 per session. The supervising psychologist received $30 and the plaintiff received $90. In early 2017 the fee was increased to $140 per session, which was split $100 to the plaintiff and $40 to the supervisor.
[7] The supervision arrangement with Knutt ended on April 4, 2017, after the plaintiff delivered a demand letter to her accusing her of professional misconduct and demanding a substantial sum of money. The plaintiff had no professional relationship with any of the defendants thereafter.
[8] On May 15, 2017 the plaintiff sued all of the defendants except SFHT in Small Claims Court. The Claim alleged fraudulent misrepresentation, fraud, breach of fiduciary duty, unjust enrichment, and breach of the duty of good faith and fair dealing. It claimed that the defendants had a fraudulent supervision scheme for the sole purpose of charging excessive fees. It claimed damages of $19,900 for excessive fees charged, and aggravated, exemplary and/or punitive damages of $5,100.
[9] On September 26, 2017 the plaintiff settled that claim with Woszczyna and RGA for the sum of $3,000. She executed a Final Release on that date releasing Woszczyna from any and all action, causes of action, claims and demands “in consequence of the claims set out in Small Claims Court Action 17-85 and/or the former professional relationship between the Undersigned and Carolyn Woszczyna”. The plaintiff further agreed not to make claim or take proceedings against any other person or corporation who might claim contribution or indemnity under the provisions of any statute or otherwise from Woszczyna. In addition, the plaintiff agreed to withdraw the Small Claims Court action as against RGA.
[10] The plaintiff failed to prosecute the claim as against the other defendants. On October 19, 2019 it was administratively dismissed. That dismissal was never challenged by the plaintiff.
[11] On August 1, 2017 the plaintiff initiated complaints against both Rider and Knutt with the College of the Psychologists of Ontario (“CPO”), alleging professional misconduct in relation to the supervision arrangement. After a lengthy investigation, the Investigations, Complaints and Reports Committee (“ICRC”) of the CPO disposed of the complaint against Knutt by a decision dated September 26, 2018, and the complaint against Rider by a decision dated September 27, 2018. No part of either complaint was referred to the discipline committee for adjudication.
[12] In October 2018 the plaintiff requested a review of both decisions of the ICRC. In November 2019, the Health Professions Appeal and Review Board upheld both decisions.
[13] In January 2018 the plaintiff filed a complaint against Woszczyna with the College of Registered Psychotherapists of Ontario (“CRPO”), making allegations similar to the ones made in the present action. The CRPO issued a decision on October 17, 2019. None of the plaintiff’s complaints were referred to the discipline committee of the CRPO.
[14] On April 5, 2018 the plaintiff initiated a complaint with the Ministry of Labour against Woszczyna and RGA, under s. 50 of the Occupational Health and Safety Act (Unlawful Reprisal), making allegations similar to the ones in the present action. Rider and Knutt were named as “affected parties”.
[15] On May 25, 2018 the plaintiff and Woszczyna attended a mediation, and entered into Minutes of Settlement to resolve this complaint. In consideration of the payment of $9,000, the plaintiff signed a Full and Final Release, whereby she released Woszczyna and RGA:
… from any and all actions, causes of actions, suits, proceedings, claims and demands whatsoever of law or at equity, arising out of or in any way related to the employment of the undersigned with the Releasees, or any of them, or the termination thereof, including but not limited to all claims for wrongful dismissal or breach of contract or misrepresentation…
[16] The Release further provided that the plaintiff agreed not to make any claim or take any proceedings against any other person or corporation who might claim contribution or indemnity from the Releasees.
[17] On July 12, 2018 the plaintiff initiated a complaint to the Employment Standards Branch of the Ministry of Labour against Knutt and her professional corporation, that once again raised complaints relating to the supervision arrangement between them and the fee splitting agreement. On January 31, 2019 the Employment Standards Officer denied the plaintiff’s claim, on the basis that she was an independent contractor and not an employee. The plaintiff appealed that decision to the Ontario Labour Relations Board, but abandoned it in June 2019.
[18] In October 2018, the plaintiff filed a complaint with Stratford Police Services against Rider and Knutt, alleging fraud and other criminal activity related to the supervision arrangement. An investigation was completed and no charges were laid.
[19] On September 26, 2019, which is 2 years, 4 months and 9 days after initially commencing the Small Claims Court proceeding, the plaintiff commenced the present action in the Superior Court of Justice by way of a Statement of Claim. It claimed damages of $1 million against SFHT and $5 million against all of the defendants. The defendants moved to strike the Statement of Claim for want of particularity and as an abuse of process. The plaintiff’s response was to deliver a Fresh As Amended Statement of Claim (“FAASC”).
[20] The FAASC is 41 pages long, consisting of 148 paragraphs and 42 exhibits. It claims the following:
Damages of $2.5 million against SFHT for negligence, gross negligence, negligent misrepresentation and breach of contract;
Damages of $2.5 million against SFHT, Woszczyna and RGA for fraudulent misrepresentation, fraud by omission, breach of good faith and fair dealing, bad faith, and defamation of character;
Against all defendants, damages of:
o $2.5 million for negligence, gross negligence and negligent misrepresentation;
o $1 million for inducing breach of contract, negligent and intentional infliction of emotional distress, bad faith, and conspiracy to harm the plaintiff;
o $1 million for fraudulent misrepresentation;
o $1 million for punitive, aggravated and exemplary damages for the callous and highhanded manner in which they conducted dealings with the plaintiff.
[21] The prayer for relief also claims compensatory damages totalling $359,275 for things such as mortgage fees for late payments, the cost of making a Consumer Proposal, and the costs of pursuing “unnecessary actions in Small Claims Court, Employment Standards, Ontario labour Relations Board”. It goes on to claim special damages of $2,145,000 for future lost income, medical care and therapy, and the cost of education for a new profession.
[22] All of the claims relate directly to the professional relationship and the supervision agreement that the plaintiff had with the defendants Woszczyna, RGA, Rider, Knutt and her professional corporation, which ended in April 2017. The sole exception is an allegation, found in paras. 92 and 94 of the FAASC, that Woszczyna defamed the plaintiff in a telephone call to the College of Registered Psychotherapists of Ontario on August 28, 2017, and again in a letter to the College dated September 12, 2017. These communications arose by reason of the plaintiff’s application for admission to the College. The College contacted Woszczyna for a reference and, in response to specific questions posed by the College, she provided details of her history with the plaintiff, as well her opinion as to the plaintiff’s character and competence as a psychotherapist. The College ultimately denied the plaintiff’s application.
The Applicable Rules:
[23] These motions are brought under Rules 21 and 25 of the Rules of Civil Procedure. The relevant subrules are as follows:
21.01 (1) 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.
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
25.06 (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.
25.11 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 vexatious; or
(c) is an abuse of the process of the court.
[24] I will deal first with the allegation that this proceeding is an abuse of the process of the court. Although abuse of process is dealt with in both rules 21.01(d) and 25.11, it is r. 21.01(d) that is applicable at this stage, as I consider the defendants’ request for an order that the action be dismissed.
Abuse of Process:
[25] The doctrine of abuse of process was discussed by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. Arbour J., speaking for the majority, said the following, at para. 37:
In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (Ont. C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63 (S.C.C.))). Goudge J.A. expanded on that concept in the following terms, at paras. 55-56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]
[26] The defendants argue that the claims made in the present action are simply a repackaging of the claims made in the earlier Small Claims Court action, and that it would be an abuse of process to allow the present action to continue in the face of the order dismissing the Small Claims Court action.
[27] The plaintiff submits that the dismissal of the prior action should not preclude her from proceeding with the present action since there was never a trial on the merits. However, that is not an answer.
[28] The identical situation occurred in Davies v. Hodgins, 2013 ONSC 6444, where the plaintiff had commenced an action in Small Claims Court which was dismissed as abandoned. The plaintiff then commenced identical proceedings in the Superior Court of Justice. In holding that the second action was an abuse of process, McNamara J. said the following, at para. 7:
To permit the plaintiffs to proceed with a second, virtually identical, action would bring the administration of justice into disrepute. It would allow a collateral attack on a previous court order which had dismissed the earlier action for delay (see Bricks & More Bricks v. Conran, 2011 ONSC 983 (Ont. S.C.J.)).
[29] Similarly, the Ontario Court of Appeal dealt with a situation where a second action was commenced, identical to the first action which had been dismissed for delay. The court held that the second action constitutes an abuse of process, and it would bring the administration of justice into disrepute to allow it to proceed: Mintz v. Wallwin, 2009 ONCA 199 at para. 3.
[30] While the present FAASC is more elaborately pleaded and prolix than the Small Claims Court Claim was, I am satisfied that it amounts to an attempt to relitigate the same claims. The Small Claims Court action claimed that the defendants had a fraudulent supervision scheme for the sole purpose of charging excessive fees. That same allegation, that the supervision arrangement was fraudulent, is at the core of the present action. While many new causes of action have now been asserted, they all arise out of the same facts. The fact that the plaintiff is now claiming substantially more in damages does not change the reality that the claims are based on the same factual allegations.
[31] The plaintiff has attempted to argue that the present action is different than the earlier one because of her discovery, in July 2019, of an unsigned, draft contract between SFHT and the practitioners. Her name was listed on a schedule as one of the practitioners. She claims, at para. 125 of the FAASC, that this contract gave her the right to payment within 14 days, and access to dispute resolution. Had she known of this, she would have proceeded with dispute resolution instead of commencing proceedings in Small Claims Court, and initiating the other complaints as she did. She alleges that the defendants were guilty of misrepresentation and fraud in failing to disclose the existence of this contract to her.
[32] The fatal flaw in this argument is found in her own pleadings. At para. 10 of the FAASC, she pleads that “the Plaintiff was verbally contracted by the Defendant Woszczyna to provide counselling services to the patients of the SFHT and other contracts held by Woszczyna.” At para. 11 she pleads that “Woszczyna did not provide any written contract to the Plaintiff” and did business “on a handshake”. At para. 122 she pleads that her name was added to the SFHT contract “without the Plaintiff’s knowledge or permission”.
[33] The inescapable legal conclusion from all of this is that the plaintiff was not party to any contract with SFHT. She was never presented with any such contract when she began her engagement with RGA, and she never executed any such contract. By her own admission, her engagement was governed by an oral agreement with Woszczyna. Accepting as proven that her name appears on a schedule to an unsigned document does not make that document a legally binding contract. It is trite law that both parties to a written contract must execute it in order for it to become binding. The admissions in her pleadings make it clear not only that she did not execute any written contract, and did not give permission for her name to be put on any written contract, but that she was completely unaware of the existence of any such document until more than two years after her professional relationship with the defendants had ended.
[34] Aside from the defamation claim, if one eliminates from the FAASC all of the untenable claims based on this supposed contract between SFHT and the plaintiff, all that is left are the same allegations contained in the Small Claims Court action, dressed up in the form of a long list of new torts. I am satisfied that the plaintiff is attempting to relitigate the claims that have already been dismissed by the Small Claims Court, and that it would be an abuse of process to allow this proceeding to continue. This conclusion applies, obviously, only to the defendants who were sued in the original proceeding, which excludes SFHT. I will have more to say about SFHT below.
[35] Furthermore, the plaintiff has commenced these proceedings against Woszczyna and RGA in the face of two Full and Final Releases that she executed pursuant to two settlements. Those defendants argue that this also constitutes an abuse of process.
[36] The first Release released Woszczyna from all claims set out in the Small Claims Court action and/or the former professional relationship between the plaintiff and Woszczyna. Given my findings above, this is broad enough to cover the claims made in the FAASC, with the possible exception of the defamation claim. The second Release released both Woszczyna and RGA from all claims of any kind arising out of or in any way related to the employment of the undersigned with the Releasees, or any of them, or the termination thereof, including but not limited to all claims for wrongful dismissal or breach of contract or misrepresentation. Once again, in my view, this is broad enough to cover the claims in the FAASC, with the possible exception of the defamation claim.
[37] In Battista v. Emergis Inc., 2008 CarswellOnt 2923 (Ont. S.C.J.), Jarvis J. was dealing with a similar situation, and said the following, at para. 16:
I am persuaded that the present action is an abuse of process. It is an attempt to re-litigate a claim which has already been settled, evidenced by a review of the Release and Consent Order and a comparison of the complainants. A settlement finally disposes of a claim to the same effect as does a judicial determination. See: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.) at paras. 102 and 109; Rebelo v. Borody (2007), 61 C.L.R. (3d) 154 (Ont. Master); and Milstein v. Old Willoughby Realty Ltd., [2004] O.T.C. 156 (Ont. S.C.J.).
[38] The releases not only release Woszczyna (in both documents) and RGA (in the second one only) from any further claims, but also provide that the plaintiff agrees not to make any claim or take any proceedings against any other person or corporation who might claim contribution or indemnity from the Releasees. SFHT had no contractual relationship with the plaintiff, and no direct dealings with her. Any liability they might theoretically have to the plaintiff can only arise through its dealings with Woszczyna and RGA. SFHT has stipulated that it fully intends to seek contribution and indemnity from Woszczyna and RGA in the event that this case is allowed to proceed against them.
[39] The Ontario Court of Appeal, in Sinclair-Cockburn Insurance Brokers Ltd. v. Richards, 2002 CarswellOnt 2784 (Ont. C.A.), upheld the enforceability of a similar clause in a Release, in favour of a party who was facing a claim for contribution and indemnity. It found that it was an abuse of process to allow the claim to continue in the face of the terms of the Release. In so doing, it works no injustice to the party who gave the release, “because its effect is simply to hold Sinclair-Cockburn to its bargain”: para. 16.
[40] Rule 21.01(3)(d) permits a court to dismiss a proceeding not only where it is an abuse of process, but also where it is vexatious. In my view, this proceeding is also vexatious, given that the plaintiff has been serially litigating against the same parties, in multiple forums, over essentially the same facts and after settlements had been reached: see Dale Streiman & Kruz LLP v. De Teresi (2007), 2007 CanLII 1902 (ON SC), 84 O.R. (3d) 383 (S.C.J.).
[41] I am satisfied that it would bring the administration of justice into disrepute, and would constitute an abuse of process, to allow the claims of the plaintiff in the FAASC to proceed, and they must be dismissed as against all defendants on that basis. The sole exception to this ruling is the claim for defamation against Woszczyna. This claim did not form part of the original Small Claims Court action, and does not relate to acts or omissions occurring during the professional relationship between the parties which ended in April 2017. Thus, it cannot be said that the plaintiff is attempting to relitigate the defamation issue. Whether or not either of the Full and Final Releases cover the defamation claim is an issue for trial. Both were executed after the alleged defamation occurred, the first on September 26, 2017 and the second on May 25, 2018, but it is not clear on the record before me when the plaintiff became aware of the alleged defamation. I note in that regard that the letter from the CRPO to the plaintiff, denying her application for admission to the College, is dated June 8, 2018. That letter cited information received from Woszczyna, under the subtitle “Concerns Regarding Professionalism”.
The Limitations Defence:
[42] As already noted, the claims in the FAASC all relate to the professional relationship between the plaintiff and the defendants, which ended, at the latest, on April 4, 2017. The plaintiff’s action was commenced on September 26, 2019, more than two years and five months later.
[43] The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, establishes a two year basic limitation period. Sections 4 and 5 (in part) provide as follows:
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[44] The defendants argue that the claims in the FAASC, other than the defamation claim, were discovered by the plaintiff, at the latest, when she issued her Claim in the Small Claims Court action on May 15, 2017. I have already found that the FAASC is an attempt to relitigate the same claims made in the earlier proceeding, so discovery of the claims made in the earlier action amounts to discovery of the claims in the present proceeding.
[45] However, the date of discovery was, from the admissions made by the plaintiff in her pleadings, clearly earlier than that. In para. 19 of the Statement of Claim she pled:
After communicating with the College of Psychologists of Ontario in March 2017, the Plaintiff realized that the Defendants had a fraudulent supervision scheme for the sole purpose of charging excessive fees.
[46] It is only in the rarest of cases that a limitations defence is decided on a pleadings motion under rule 21.01(1)(a). However, the Ontario Court of Appeal recognized an exception to this rule in Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.). That case held, at para. 21, that a limitation issue can be decided under r. 21.01(1)(a) before a statement of defence is filed “where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired.”
[47] The Court of Appeal affirmed this exception in Kaynes v. BP p.l.c., 2021 ONCA 36, where Feldman J.A., speaking for the court, said the following, at para. 81:
In establishing the main rule that a claim should not normally be struck out as statute-barred using r. 21.01(1)(a), the courts have noted that discoverability issues are factual and that the rule is intended for legal issues only where the facts are undisputed. It would therefore be unfair to a plaintiff where the facts are not admitted, to use this rule, which does not allow evidence to be filed except with leave or on consent. But where a plaintiff’s pleadings establish when the plaintiff discovered the claim, so that that issue is undisputed, then the courts have allowed r. 21.01(1)(a) to be used as an efficient method of striking out claims that have no chance of success, in accordance with the principle approved in Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (S.C.C.), at para. 19.
[48] Here, the admission in the Statement of Claim establishes the date that the plaintiff discovered the defendants’ allegedly fraudulent scheme to be March 2017. The plaintiff’s pleadings in the Small Claims Court action further confirm the plaintiff’s knowledge of the defendants’ alleged fraudulent misrepresentation, fraud, breach of fiduciary duty, unjust enrichment, and breach of the duty of good faith and fair dealing as of May 15, 2017. Both dates are well beyond two years from the date the Statement of Claim was issued in this action on September 26, 2019.
[49] I am satisfied that the pleadings establish when the plaintiff discovered the claim, and that it is plain and obvious that the plaintiff has no chance of success on the limitations issue. Accordingly, the plaintiff’s claims as against all defendants must be dismissed. The sole exception to this ruling, once again, is the plaintiff’s claim against Woszczyna for defamation. There is a live issue as to when the plaintiff discovered that claim, which must be determined at trial.
The Motions to Strike:
[50] Counsel for the defendants have, in their facta and argument, done an extensive analysis of the long list of torts alleged to have been committed by the defendants, to demonstrate that in virtually every case the plaintiff has failed to plead the facts necessary to support the constituent elements of each, or has made allegations incapable of proof, such that the claims disclose no reasonable cause of action and are doomed to failure. Persuasive as those arguments are, it is not necessary to consider them, in view of my ruling that the claims themselves must be dismissed. It is necessary, though, to consider the one claim that survives.
[51] The caselaw is well established that a high degree of particularity is required in pleading defamation actions. Although the strict rule requiring that the exact words be pleaded is no longer the law in Ontario, the plaintiff must still plead the words with sufficient particularity to enable the defendant to understand whether the words have the meaning as alleged or some other meaning, and to enter whatever defences are appropriate in light of that meaning: see Lysko v. Braley, 2006 CanLII 11846 (ON CA), [2006] O.J. No. 1137, 2006 CarswellOnt 1758 (C.A.), at para. 102.
[52] The FAASC completely lacks particularity. In para. 92 it states that Woszczyna called the College of Registered Psychotherapists of Ontario on August 28, 2017 and “slandered the Plaintiff”. In para. 94 it states that on September 12, 2017, Woszczyna “sent a defamatory letter to the College”. No particulars are given with respect to what was said on August 28 or written on September 12. Some particulars are given in para. 103 as to what was in the letter, but on their face they do not appear to be defamatory. Those particulars are:
a) there were no contracts,
b) she does business on a handshake,
c) she was the owner of the Stratford Family Health Team contract,
d) supervision was for the purpose of allowing access to insurance benefits,
e) The Plaintiff’s only responsibilities were to keep her own files and document on the electronic Medical Record.
[53] I conclude that the FAASC as it concerns the claim of defamation is deficient, and must be struck out for lack of particularity. The question then becomes whether that order should go with or without leave to amend.
[54] In the exercise of my discretion, I conclude that leave to amend should be granted. While the paragraphs in the pleading itself are completely devoid of particulars, the plaintiff attached as exhibits to the FAASC a copy of a memorandum of the telephone call of August 28, 2017, and a copy of the letter of September 12, 2017. Attaching exhibits to a Statement of Claim is, of course, improper, since r. 25.06 requires that every pleading 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. Despite this irregularity, though, the combined package of documents did serve to put Woszczyna on notice as to precisely what she is alleged to have said and written.
[55] A new Fresh Fresh As Amended Statement of Claim (if that is an appropriate term) will have to served and filed, stripped of everything that relates to the claims that have been dismissed, and confined to the claim of defamation and the facts relevant thereto.
Order:
[56] For all of these reasons, the defendants’ motions are granted, and an order will go as follows:
The plaintiff’s claims against all of the defendants, save and except for the claim of defamation against the defendant Woszczyna, are dismissed;
The Fresh As Amended Statement of Claim is struck out;
The plaintiff shall, within 30 days, serve and file a Fresh Fresh As Amended Statement of Claim, confined to the claim of defamation as against the defendant Woszczyna and the facts relevant thereto, with full particulars of the defamatory statements, without exhibits. The title of the proceeding shall be amended to show the defendant Woszczyna as the sole defendant;
The time limits for the filing of a Statement of Defence and a Reply, if any, shall be in accordance with the Rules;
I am not seized with this action.
[57] I encourage the parties to resolve the issues of costs, bearing in mind the plaintiff’s impecuniosity and the cost-effectiveness, or lack thereof, of litigating the issue. If they are unable to agree, I will accept brief written submissions on costs from the defendants within 20 days. Given the number of parties that the plaintiff will be responding to, she shall have 30 days thereafter to serve and file her brief submissions on costs. Reply submissions from the defendants, if any, shall be served and filed within 10 days thereafter.
T. A. Heeney J.
Released: February 4, 2022
COURT FILE NO.: CV-19-3031
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAREN DALTON
Plaintiff
– and –
CAROLYN WOSZCZYNA, NICOLE RIDER, ADELLE KNUTT, ADELLE D. KNUTT PSYSCHOLOGY PROFESSIONAL CORPORATION, RGA PSYCHOLOGICAL AND COUNSELLING SERVICES and THE STRATFORD FAMILY HEALTH TEAM
Defendants
REASONS FOR JUDGMENT ON A MOTION
T. A. Heeney J.
Released: February 4, 2022