COURT FILE NO.: CV-22-00682906-0000

DATE: 20230804

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LAUREN HOWLETT

Plaintiff

• and -

THE NORTHERN TRUST COMPANY and DOMENIC SGAMBELLURI

Defendants

Alexi Wood and Lillianne Cadieux-Shaw for the Plaintiff

Rachel Younan for the Defendant

HEARD: July 27, 2023

Contents

A. Introduction. 2

B. Factual Background. 3

C. Procedural and Evidentiary Background. 7

D. Legal Background. 8

1. The Relevant Rules of the Rules of Civil Procedure. 8

2. Rules 25.06 and 25.11. 11

3. Rules 21.01(1)(b) 12

4. Rule 21.01(3)(c) 14

5. Rule 21.01(3)(d) 15

E. Discussion and Analysis. 16

1. Overview of the Analysis. 16

2. Rule 25.11 and the 2022 Action. 17

3. The Novel Causes of Action. 18

4. Abuse of Process and a Multiplicity of Proceedings. 20

F. Conclusion. 24

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] The plaintiff Lauren Howlett is a former employee of The Northern Trust Company. Hired in 2017, she worked in the same office as Domenic Sgambelluri, who has been an employee since 2005. Ms. Howlett was dismissed in 2019 when management allegedly took Mr. Sgambelluri’s side about Ms. Howlett’s allegations of his inside and outside the workplace stalking and harassment. On September 3, 2019, Ms. Howlett sued Northern Trust for wrongful dismissal and breach of employment contract. Northern Trust defended, and it counterclaimed for defamation. Mr. Sgambelluri was not a party to the 2019 action.

[2] A year later, in September 2020, Ms. Howlett brought criminal proceedings against Mr. Sgambelluri and when the Crown Prosecutor withdrew those proceedings in May 2022, on June 20, 2022, over 2.5 years after the commencement of the wrongful dismissal action, Ms. Howlett commenced a tort action against Northern Trust. This time she sued Mr. Sgambelluri as a co-defendant. The 2022 tort action advanced the torts of: (a) intentional infliction of mental distress; (b) intrusion upon seclusion; (c) vicarious liability; and two novel torts, i.e., (d) the novel tort of harassment or harassment of a sexual nature; and (e) the novel tort of stalking.

[3] The 2022 tort action is based on the identical factual footprint of the 2019 wrongful dismissal and breach of contract action.

[4] Relying on rules 21.01(1)(b), 21.01(3)(c), 21.01(3)(d) and 25.11 of the Rules of Civil Procedure,[^1] Northern Trust and Mr. Sgambelluri bring a motion to have the 2022 tort action stayed or dismissed: (a) as an abuse of process, or (b) because the 2019 wrongful dismissal action is another proceeding pending in Ontario between the same parties in respect of the same subject matter as the 2022 tort action. And as an if-necessary-alternative, should the 2022 action not be stayed or dismissed, the Defendants to the 2022 tort action argue that the novel torts advanced in paragraphs 46-55 of Ms. Howlett’s Fresh as Amended Statement of Claim do not disclose a reasonable cause of action and should be struck from the pleading.

[5] As I shall explain in more detail below, the pleadings in both the 2019 action and the 2022 action are non-compliant with the Rules of Civil Procedure; however, there is no abuse of process or reason to stay or dismiss any of the causes of the action. The appropriate order for the circumstances of the immediate case is to consolidate the actions and redo the pleadings. More particularly, the appropriate order for the circumstances of the immediate case is as follows. I order that:

a. The Fresh as Amended Statement of Claim in the 2022 tort action is struck in its entirety for failure to comply with the rules of pleading.

b. The 2022 tort action shall be consolidated with the 2019 wrongful dismissal action and breach of contract action.

c. Ms. Howlett shall have twenty days from the release of these Reasons for Decision to deliver a Consolidated Statement of Claim.

d. After Ms. Howlett delivers a Consolidated Statement of Claim, Northern Trust and Mr. Sgambelluri shall have twenty days to deliver either: (a) a Statement of Defence and Counterclaim; or (b) a pleadings motion, but not a rule 21 motion or a motion to sever the actions.

e. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Howlett’s submissions within twenty days of the release of these Reasons for Decision followed by the Defendants’ submissions within a further twenty days.

[6] By way of a summary of the more detailed explanation for the above Order:

a. The Fresh as Amended Statement of Claim should be struck in its entirety with leave to amend. The Fresh as Amended Statement of Claim does not comply with the Rules of Civil Procedure. Among other improprieties, it is prejudicial, it pleads legal arguments, it pleads evidence and not material facts. The 2019 action also is non-compliant with the rules of pleading.

b. The 2022 tort action should be consolidated with the 2019 wrongful dismissal and breach of contract action pursuant to the rules for the joinder of actions based on the same factual footprint. It is a fundamental underlying principle of the Courts of Justice Act that a multiplicity of proceedings should be avoided, and the 2019 action and the 2022 action are based on the identical factual footprint. The Consolidated Statement of Claim shall consolidate the claims that Ms. Howlett advances in her 2019 wrongful dismissal and breach of employment contract action and a multiplicity of proceedings will be avoided.

c. The Fresh as Amended Statement of Claim in the 2022 tort action is not an abuse of process and it should not be stayed because of the pending wrongful dismissal and breach of employment contract action; therefore, Ms. Howlett should be granted leave to deliver a Consolidated Statement of Claim.

d. It is not plain and obvious that the two novel torts do not disclose a reasonable cause of action. Therefore, in any event, the two novel torts should not be struck in the consolidated action.

B. Factual Background

[7] The following account of the facts are taken from the affidavits filed by the parties and from Ms. Howlett’s Fresh as Amended Statement of Claim, the facts of which are assumed to be true save for bare allegations and conclusory legal statements (legal arguments) based on assumption or speculation, which are not material facts, not capable of proof and, therefore, not assumed to be true. It is worth emphasizing that legal arguments and the conclusions of issues of mixed fact and law are not material facts assumed to be true. It is also worth noting that the following account of the facts has been indulgent in including not only the alleged material facts but also some alleged evidence to prove the material facts.

[8] Northern Trust is a financial services company that provides wealth and management services to high net worth individuals.

[9] In April 2017, Northern Trust hired Ms. Howlett as a Senior Marketing Specialist.

[10] Shortly after joining Northern Trust, Ms. Howlett received the inappropriate attention of Mr. Sgambelluri, who was a Manager, Securities Processing.

[11] In 2018, while Ms. Howlett, Mr. Sgambelluri, and a male colleague were in the office kitchen, Ms. Howlett was discomfited when Mr. Sgambelluri mocked a female janitor and Ms. Howlett sent an email message to Mr. Sgambelluri that his behaviour was inappropriate.

[12] After this incident, Mr. Sgambelluri’s relationship with Ms. Howlett chilled, and when she attempted to establish a friendly working relationship to protect her job, Mr. Howlett denied that there was any tension in their relationship.

[13] Shortly thereafter, Mr. Sgambelluri began a repeated pattern of driving to Ms. Howlett’s neighbourhood. He followed her in his vehicle, driving past and staring at her. This behaviour was repeated in other locations where there was no reason for Mr. Sgambelluri’s presence.

[14] Mr. Sgambelluri’s stalking behaviour was repeated in the workplace, where he frequently attended near her workstation and engaged in uninvited, unnecessary, conversations with other employees.

[15] As the stalking became more obvious and frequent, Ms. Howlett suffered trauma. She was afraid. She avoided the office kitchen and varied her routes and timing on her trips home. She was afraid to leave her home. She developed agoraphobia and anxiety.

[16] Ms. Howlett became aware that Alex Dameski, Northern Trust’s Chief Operating Officer (“COO”), with whom Mr. Sgambelluri had a close relationship, was spreading rumours that she was “crazy and on drugs”.

[17] Ms. Howlett was afraid to inform Northern Trust’s Human Resources staff about Mr. Sgambelluri’s behaviour. She was concerned that she would not be believed and, even if she was, that she would be perceived as a “troublemaker” and even fired. She feared that reporting anything to Northern Trust would result in retribution directly from Mr. Sgambelluri.

[18] One day, when Ms. Howlett muttered “creep” as Mr. Sgambelluri walked by her office, she was summoned to the human resources department. She reported Mr. Sgambelluri’s harassment and stalking. She reported his pattern of intimidating and harassing conduct in the workplace and her increasing distress.

[19] Northern Trust made Ms. Howlett sign a form indicating that she had violated their code of conduct by referring to Mr. Sgambelluri as a “creep”. The form did not include a reference to Mr. Sgambelluri’s harassment or stalking. Ms. Howlett was told to contact the police about the harassment. There was no investigation or follow up by Northern Trust.

[20] In March 2019, Ms. Howlett went on short-term disability leave, on recommendation from her physician due to the stress from the external and workplace stalking and harassment.

[21] On June 17, 2019, while she was still on short-term disability leave, Northern Trust terminated Ms. Howlett’s employment.

[22] On September 3, 2019, Ms. Howlett sued Northern Trust for wrongful dismissal and breach of employment contract. She claimed: (a) damages of $70,500 for wrongful dismissal and breach of an employment contract representing nine months’ pay in lieu of reasonable notice; (b) damages equal to the value of employment-related benefits over the nine-month period including, without limitation, vacation pay, bonus, RRSP contributions, medical and any other insurance coverage; (c) $11,358.33 representing compensation for bonus entitlements earned before termination and throughout the nine-month notice period; (d) damages of $50,000.00 for violations of the Ontario Human Rights Code;[^2] (e) back pay with the option of reinstatement by the Court in accordance with the authority granted by the Ontario Human Rights Code; (f) punitive, aggravated, Bhasin, and/or moral damages in the amount of $100,000.00; and (g) special damages equal to the costs incurred seeking to obtain alternative employment in an amount to be proven at trial.

[23] Northern Trust defended, and on October 22, 2019, it delivered a Statement of Defence and Counterclaim.

[24] On November 14, 2019, Ms. Howlett delivered a Reply and Defence to Counterclaim.

[25] Pleadings were completed and closed on December 2, 2019, with the delivery of Northern Trust’s Reply to the Defence to Counterclaim.

[26] On September 5, 2020, Ms. Howlett moved to Québec. This ended her fear and anxiety. She felt safe enough to take action against Mr. Sgambelluri. That day she reported the harassment to the police.

[27] Ms. Howlett laid charges against Mr. Sgambelluri and on January 14, 2022, pursuant to s. 810 of the Criminal Code[^3] in the Ontario Court of Justice, Ms. Howlett sought a recognizance to keep the peace against Mr. Sgambelluri.

[28] On May 12, 2022, the Crown Prosecutor withdrew the criminal proceedings.

[29] On June 20, 2022, Ms. Howlett commenced a tort action against Northern Trust and Mr. Sgambelluri.

[30] On what is acknowledged to be the identical factual footprint as the wrongful dismissal action, she adds Mr. Sgambelluri as a defendant and sues him and Northern Trust for $500,000 for general damages for: (a) intentional infliction of mental distress; (b) intrusion upon seclusion; (c) vicarious liability; (d) the novel tort of harassment or harassment of a sexual nature; and (e) the novel tort of stalking. She also sued for punitive damages of $100,000 and special damages, including loss of income.

[31] In the motion now before the court, Northern Trust and Mr. Sgambelluri ask the court to strike paragraphs 46-55 of Ms. Howlett’s Fresh as Amended Statement of Claim, which state:

Harassment and/or Harassment of a Sexual Nature

46. In addition, or in the alternative to the above-pleaded torts, Mr. Sgambelluri is liable to Ms. Howlett for the novel tort of harassment and/or harassment of a sexual nature. Mr. Sgambelluri engaged in a campaign of harassment against Ms. Howlett that included intimidation and persecution at work and at home. Mr. Sgambelluri’s campaign of harassment appeared to commence after Ms. Howlett sent him strong signals regarding her lack of sexual interest.

47. While the tort of harassment may occasionally overlap with existing torts, it is fundamentally unique in the sense that it speaks to a sustained and persistent pattern of unwanted and unjustified conduct, which may not necessarily cause a visible and provable illness but which a reasonable person would consider as offensive, unwelcome, and likely to cause distress.

48. The tort of harassment of a sexual nature, meanwhile, is further unique in that it is insidious and nuanced, often cloaked in secrecy, misogynistic innuendos, and allegations of female “sensitivity”. Just as with Ms. Howlett, individuals who have experienced harassment of a sexual nature experience many deterrents to reporting and may remain silent out of fear for their safety, of reprisal, social stigma, or of offending the perpetrator. There is a unique gendered component of harassment of a sexual nature that should be appropriately recognized by Ontario courts.

49. Mr. Sgambelluri’s persistent and sustained conduct was intentional or in the alternative reckless to the harm that could result. A reasonable person would consider this conduct offensive, unwelcome, and likely to cause distress. Moreover, as a result of Mr. Sgambelluri’s conduct, Ms. Howlett did experience ongoing distress, anxiety, and intimidation. There was no lawful justification for this conduct.

50. Ms. Howlett’s case presents to this court facts that cry out for a remedy. There are a number of authorities that support the existence of the tort of harassment or harassment of a sexual nature in this context, including academic scholarship, international authority, and recent Ontario jurisprudence.

Stalking

51. In addition, or in the alternative to the above-pleaded torts, Mr. Sgambelluri is liable to Ms. Howlett for the novel tort of stalking. On more than one occasion, Mr. Sgambelluri followed Ms. Howlett to her home and to other private locations in a manner that caused her to fear for her own safety and security. Mr. Sgambelluri’s repeated conduct had the effect of placing Ms. Howlett under a state of surveillance and distress, infringing on her personal security, mental tranquility, autonomy, and privacy.

52. There was no lawful justification for Mr. Sgambelluri’s conduct. Mr. Sgambelluri’s conduct was intentional, or in the alternative, reckless to the harm that could result. A reasonable person would consider this conduct offensive, unwelcome, and likely to cause distress. As a result of Mr. Sgambelluri’s conduct, Ms. Howlett did experience ongoing distress, anxiety, and intimidation. Mr. Sgambelluri’s conduct further had a substantial adverse effect on her usual day-to-day activities.

53. The tort of stalking is distinguishable from existing torts because it refers to a pattern of persistent and unwanted conduct, the intent of which is to follow, alarm, or place under surveillance an individual that reasonably causes that individual to fear for their own safety or suffer emotional distress. The unwanted conduct may include actions such as following the individual, purposefully appearing within the sight of the individual, or appearing at that individual’s workplace, residence, or other private locations.

54. Like the tort of harassment of a sexual nature, the tort of stalking is insidious, nuanced, and shaped by unequal gender dynamics that overwhelmingly target women. The tort of stalking involves a series of actions that may appear innocuous when isolated but culminate to create an overpowering impact on the victim. Just as with Ms. Howlett, individuals who have experienced stalking may feel helpless or powerless to escape their stalkers, as stalkers make it a point to continually seek out and encroach on nearly every facet of their victim’s lives. The harm caused to victims of stalking ought to be compensated at law.

55. Ms. Howlett’s case presents to this court facts that cry out for a remedy. There are a number of authorities that support the existence of the tort of stalking in this context, including academic scholarship, international authority, and Canadian legislation and jurisprudence.

[32] On July 18, 2022, Northern Trust and Mr. Sgambelluri delivered a notice of intent to defend the 2022 tort action.

[33] In the fall of 2022 and early 2023, Northern Trust delivered a Rule 21 motion to stay or dismiss the action and to strike the novel tort claims.

[34] In what may be without prejudice correspondence, Ms. Howlett offered to stay the 2022 action, but the offer was rejected and Northern Trust persisted with its Rule 21 motion. In her factum, Ms. Howlett submitted that any concerns about factual overlap between the two proceedings can be dealt with by way of case management, partial or full consolidation, or by a stay.

C. Procedural and Evidentiary Background

[35] On September 3, 2019, Ms. Howlett sued Northern Trust for wrongful dismissal and breach of employment contract.

[36] On October 22, 2019, Northern Trust delivered a Statement of Defence and Counterclaim.

[37] On November 14, 2019, Ms. Howlett delivered a Reply and Defence to Counterclaim.

[38] On December 2, 2019, Northern Trust delivered a Reply in its Counterclaim and pleadings were closed.

[39] On June 20, 2022, Ms. Howlett commenced a tort action against Northern Trust and Mr. Sgambelluri.

[40] On July 18, 2022, Northern Trust and Mr. Sgambelluri delivered a notice of intent to defend the 2022 tort action.

[41] On September 28, 2022, Justice Vermette scheduled the Defendants’ motion to dismiss or stay the 2022 tort action. The motion was scheduled for July 27, 2023.

[42] On March 10, 2023, Ms. Howlett delivered a Fresh as Amended Statement of Claim.

[43] On April 24, 2023, the Defendants delivered their motion record for:

a. an order dismissing the 2022 tort action as frivolous, vexatious or otherwise an abuse of process of the court;

b. an order dismissing or staying the 2022 tort action as against Northern Trust because another proceeding is pending in Ontario between Ms. Howlett and Northern Trust in respect of the same subject matter;

c. in the alternative, an order dismissing or staying the 2022 tort action against Northern Trust and against Mr. Sgambelluri because another proceeding (the 2019 wrongful dismissal and breach of contract action) is pending in Ontario between Ms. Howlett and the Defendants in respect of the same subject matter; and

d. an order striking out those portions of the Statement of Claim in the 2022 tort action that do not disclose a reasonable cause of action against the Defendants.

[44] The Defendants’ motion was supported by:

a. the affidavit dated April 21, 2023 of Anna-Marie Hickson. Ms. Hickson is a legal assistant at Fasken Martineau DuMoulin LLP, counsel to the Defendants.

b. the affidavit dated April 20, 2023 of the defendant Domenic Sgambelluri, the co-defendant.

c. the affidavit dated April 24, 2023 of Andrew Tan. Mr. Tan is a Manager, Business Strategy for Northern Trust.

[45] Ms. Howlett responded to the Defendants’ motion with the affidavit dated May 31, 2023 of Alura Moores. Ms. Moores is a paralegal with the law firm of St. Lawrence Barristers PC, lawyers for Ms. Howlett.

[46] There were no cross-examinations.

[47] The Defendants’ witnesses assert that Northern Trust has incurred substantial legal costs and expended resources to defend the 2019 action, including time spent towards the development of a discovery plan and significant preparations for production in advance of examinations for discovery, at the request of Ms. Howlett and before she commenced her 2022 action.

D. Legal Background

1. The Relevant Rules of the Rules of Civil Procedure

[48] The Defendants rely on rules 21.01(1)(b), 21.01(3)(c) and (d) and 25.11 of the Rules of Civil Procedure,[^4] which state:

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL

Where Available

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) […]; 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.

(2) No evidence is admissible on a motion,

(a) […];

(b) under clause (1) (b).

To Defendant

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

Another Proceeding Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

Action Frivolous, Vexatious or Abuse of Process

(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.

Striking out a Pleading or Other Document

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.

[49] Also relevant to the motion now before the court are rules 5.01, 5.02, 5.03, 5.04, 6.01, and 25.06 which state:

PARTIES AND JOINDER

RULE 5 JOINDER OF CLAIMS AND PARTIES

Joinder of Claims

5.01 (1) A plaintiff or applicant may in the same proceeding join any claims the plaintiff or applicant has against an opposite party.

(3) Where there is more than one defendant or respondent, it is not necessary for each to have an interest in all the relief claimed or in each claim included in the proceeding.

Joinder of Parties

Multiple Plaintiffs or Applicants

5.02 (1) […]

Multiple Defendants or Respondents

(2) Two or more persons may be joined as defendants or respondents where,

(a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;

(b) a common question of law or fact may arise in the proceeding;

(c) […]

(d) […]; or

(e) it appears that their being joined in the same proceeding may promote the convenient administration of justice.

Joinder of Necessary Parties

General Rule

5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.

Misjoinder, Non-Joinder and Parties Incorrectly Named

Proceeding not to be Defeated

5.04 (1) No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.

Adding, Deleting or Substituting Parties

(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

RULE 6 CONSOLIDATION OR HEARING TOGETHER

Where Order May Be Made

6.01 (1) 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.

(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.

Pleading — Applicable to all Pleadings

Material Facts

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.

Claim for Relief

(9) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where damages are claimed,

(a) the amount claimed for each claimant in respect of each claim shall be stated; and

(b) the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before trial.

2. Rules 25.06 and 25.11

[50] Pursuant to rule 25.11, 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: (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.

[51] The predominant rule about pleadings is rule 25.06(1) that directs that “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.” This rule directs the disclosure of the “material” facts, which include facts that establish the constituent elements of the claim or defence.[^5] The causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material.[^6]

[52] A pleading should be brief, clear, focused and contain the skeletal or core facts and not the evidence that details those facts unless particulars are required by the rules.[^7] A pleading shall contain material facts, but it should not contain the evidence by which those facts are to be proved.[^8] What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts.[^9] Pleadings of evidence may be struck out.[^10] A pleading of fact will be struck if it cannot be the basis of a claim or defence and is designed solely for the purposes of atmosphere or to cast the opposing party in a bad light.[^11] A pleading that raises irrelevant or superfluous allegations that cannot affect the outcome of an action is scandalous, frivolous or vexatious, and it should be struck out.[^12]

[53] Under rule 25.11, the court may strike out a pleading that may prejudice or delay the fair trial of the action or that is scandalous, frivolous, vexatious or an abuse of process of the court.[^13] The same test that is used for striking a pleading for the failure to show a reasonable cause of action, i.e., the plain and obvious test, is used to determine whether a pleading is scandalous, frivolous, vexatious or an abuse of process of the court.[^14]

[54] A claim may be found to be scandalous, frivolous, vexatious or an abuse of process when it asserts untenable pleas, is argumentative, contains insufficient material facts to support the allegations made, or is made for an extraneous or collateral purpose.[^15]

[55] For the purpose of rule 25.11, the term “scandalous” includes allegations that are irrelevant, argumentative, simply inserted for colour or to impugn the behaviour or character of the other party unrelated to the issues in the litigation.[^16] A pleading that raises an issue that cannot influence the outcome of the action is scandalous.[^17] The pleading is struck out because it serves no purpose other than to add colour or argument and to disconcert or humiliate the opponent.[^18] The rule authorizing the court to strike out a pleading as prejudicial, scandalous, frivolous, vexatious, or an abuse of the process of the court is exercised only in the clearest of cases.[^19]

3. Rules 21.01(1)(b)

[56] The “plain and obvious” test for disclosing a cause of action from Hunt v. Carey Canada,[^20] is used to determine whether a plaintiff has pled a reasonable cause of action. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed.

[57] In R. v. Imperial Tobacco Canada Ltd.,[^21] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success. Chief Justice McLachlin stated:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (U.K. H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[58] In Atlantic Lottery Corp. Inc. v. Babstock,[^22] the Supreme Court stated that the test applicable on a motion to strike is a high standard that calls on courts to read the claim as generously as possible because cases should, if possible, be disposed of on their merits based on the concrete evidence presented before judges at trial. However, Justice Brown stated that it is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings.[^23]

[59] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action,[^24] and the court’s power to strike a claim is exercised only in the clearest cases.[^25] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^26] However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.[^27] In the Ontario Court of Appeal’s decision in Darmar Farms Inc. v. Syngenta Canada Inc.,[^28] Justice Zarnett stated:

The fact that a claim is novel is not a sufficient reason to strike it. But the fact that a claim is novel is also not a sufficient reason to allow it to proceed; a novel claim must also be arguable. There must be a reasonable prospect that the claim will succeed.

[60] In determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed.[^29]

[61] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion to determine whether a legally viable cause of action has been pleaded.[^30]

4. Rule 21.01(3)(c)

[62] Pursuant to rule 21.01(3)(c), a defendant may move to have an action stayed or dismissed when a duplicative action is already pending.

[63] If there is another proceeding in Ontario or another jurisdiction between the same parties in respect of the same subject matter, the test for determining whether the action should be dismissed or stayed is that a stay or dismissal should only be ordered in the clearest of cases, and where: (a) the continuation of the action would cause the defendant prejudice or injustice, not merely inconvenience or additional expense; and (b) the stay or dismissal would not be unjust to the plaintiff. Thus, the onus is on the party seeking a stay to show both: (a) that it would be oppressive or vexatious or in some other way an abuse of process to have to be in involved in more than one proceeding; and also (b) that the stay would not cause an injustice or prejudice to the other party.[^31] Rule 21.01(3)(c) is available only where another proceeding is pending between the same parties in respect of the same subject matter. The rule has been interpreted to require exactly the same parties; an overlap of parties is insufficient.[^32]

[64] Determining whether to stay an action because of another proceeding is an exercise of discretion taking into account the circumstances of the particular case, and the party seeking a stay must demonstrate a substantial prejudice beyond inconvenience and expense.[^33]

[65] Factors to be considered in determining whether a permanent or temporary stay should be granted include: (a) differences in the substantive scope and remedial jurisdiction of the two tribunals; (b) any juridical advantages associated with the plaintiff’s choice of jurisdiction; (c) the comparative progress of the two proceedings, including which proceeding started first; (d) whether the proceedings will proceed sequentially or in tandem; (e) the effect of two proceedings about the same subject matter proceeding in tandem; (f) the ability of the defendant to adequately respond to both matters apart from just the financial burden or inconvenience of having to do so; (g) the possibility of inconsistent results; (h) the potential for double recovery; and (i) the effect of a stay in delaying or prejudicing access to justice, for example by degradation in the evidentiary record for one or other of the proceedings.[^34]

[66] While a multiplicity of proceedings should be avoided, courts should not be quick to stay a civil action simply to avoid a multiplicity of proceeding and the moving party must satisfy the test for a stay with clear and specific evidence.[^35]

5. Rule 21.01(3)(d)

[67] Pursuant to rule 21.01(3)(d), a defendant may move before a judge to have an action stayed or dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court.

[68] The doctrine of abuse of process, among other things, 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 way bring the administration of justice into disrepute.[^36]

[69] Bringing a new proceeding to circumvent an order made in an existing proceeding or to circumvent the operation of a rule in an existing proceeding may constitute an abuse of process.[^37]

[70] Depending on the circumstances of the particular case, a multiplicity of proceedings based on the same factual nexus may constitute a procedural abuse of process and thus there may be a concurrence of grounds to dismiss an action pursuant to rule 21.03(1)(c) and rule 21.03(1)(d).[^38]

E. Discussion and Analysis

1. Overview of the Analysis

[71] The resolution of Northern Trust’s and Mr. Sgambelluri’s motion to dismiss or stay the 2022 tort action requires two analyses. One analysis is of the 2022 action discreetly. The second analysis is of the relationship between the 2022 action and the 2019 wrongful dismissal and breach of contract action.

[72] As I shall explain in more detail below, in my opinion, an analysis of the 2022 action standing alone establishes that: (a) it is not plain and obvious that the novel torts should be struck; and (b) the pleading in its entirety should be struck pursuant to rule 25.11(a) with leave to amend because it may prejudice or delay the fair trial of the action by its non-compliance with the rules of pleading.

[73] In other words, the 2022 action could have been but has not been properly pleaded to advance all its causes of action. Thus, the outcome of the first analysis is that standing alone, the 2022 action could continue once it has been properly pleaded. However, a second analysis is required.

[74] Whether what could be done should be done in the immediate case depends upon the relationship between the 2022 action and the 2019 action and the Defendants’ argument that the 2022 action should be stayed or dismissed as an abuse of process.

[75] Turning to the relationship between the two actions, when the legal wheat is winnowed from the legal chaff of the 2022 tort action, it becomes clear that the factual footprint for the 2022 tort action and the 2019 wrongful dismissal and breach of contract action are identical. This circumstance is not disputed by either side. Further, when the legal wheat is winnowed from the legal chaff of the 2022 tort action, the parties also do not dispute that the causes of action based on that same factual footprint in the 2022 tort action are different than the causes of action in the 2019 wrongful dismissal and breach of contract action.

[76] Where the parties differ is about the consequences of this compare and contrast exercise about the two actions. Because of the identical factual footprint, the Defendants submit that the 2022 tort action should be stayed or dismissed: (a) because it is an abuse of process, or (b) because of the pending 2019 wrongful dismissal and breach of contract action, where all of the causes of action could have been pleaded together but weren’t.

[77] As I shall explain in more detail below, it is my opinion that the 2022 action is not an abuse of process, but the 2022 action does present the problem of being a multiplicity of proceedings. That multiplicity problem, however, can fairly and appropriately be dealt with by consolidating the two actions leaving it open to Northern Trust and Mr. Sgambelluri to defend: (a) on the merits, and/or (b) on the basis that the causes of action originally advanced in the 2022 tort action are statute-barred.

[78] As I shall explain in more detail, I disagree with the Defendants’ argument that there has been an abuse of process because instead of commencing the 2022 action, Ms. Howlett ought to have sought leave to amend the 2019 action.

[79] Relying on Carbone v. DeGroote[^39] and Maynes v. Allen-Vanguard Technologies Inc.[^40] the Defendants, mistakenly in my opinion, argue that it is abusive for Ms. Howlett to have avoided the motion to amend and to have circumvented the associated test for the joinder of causes of action. The Defendants submit that they have been prejudiced because the joinder motion might have been dismissed because the amendments would not have been permitted because the causes of action were statute-barred.

[80] However, Carbone v. DeGroote and Maynes v. Allen-Vanguard Technologies Inc. are distinguishable, and as I shall explain in more detail below, my analysis leads to the conclusion that all of the claims that could have been pleaded based on the factual footprint of the 2019 action and all the defences to those claims including defences on the merits and technical defences based on limitation periods remain to be decided, and it would not be an abuse of process and indeed it would be in the interests of justice and of the administration of justice to consolidate the two actions and for both of them to continue with all of the causes of action based on the same factual footprint.

2. Rule 25.11 and the 2022 Action

[81] The 2022 action (and also the 2019 action for that matter) are non-compliant with the Rules of Civil Procedure. Since this was acknowledged by Ms. Howlett’s counsel during the argument of the Defendants’ motion to strike, I shall be brief in explaining why the Fresh as Amended Statement of Claim is non-compliant.

[82] The rules of pleading are designed to promote parsimonious and focused pleadings that give the opposing party notice of the case he or she must meet. While it is understandable and to be anticipated that a party would make his or her pleadings rhetorical, that is not their prime purpose. A pleading is not a factum of law, and a pleading is not meant to be argumentative. It is not a closing argument of persuasion based on what has been proven by the evidence. A pleading proves nothing; it has allegations of material facts not findings of fact. The rule about pleading the material facts and not the evidence to prove the material facts recognizes that it is premature to go beyond framing what is to be proven into the rhetorical arts of persuasion of applying the law to the material facts proven to be true.

[83] In the immediate case, there are numerous instances where Ms. Howlett’s Fresh as Amended Statement of Claim pleads evidence and not material facts or where the pleading, much like a factum, makes a legal argument. Some of those legal arguments are legal policy arguments that are not tethered to the particular material facts of the immediate case. Not surprisingly, since the 2022 action has the same factual footprint as the 2019 action, the 2019 action’s pleadings suffer from the same non-compliance.

[84] During argument, Ms. Howlett acknowledged that she did not oppose the consolidation of the actions and, as already noted above, she acknowledged that the consolidated action needs to be properly pleaded.

[85] The Defendants, however, did oppose consolidation and persisted in their request that the 2022 action be stayed or dismissed.

[86] For my part, as foreshadowed above, I conclude that the 2022 action should not be dismissed or stayed; rather, the 2019 action and the 2022 action are to be consolidated and also as foreshadowed above, I am striking the Fresh as Amended Statement of Claim in the 2022 action with leave to amend so that the Consolidated Statement of Claim can and should be properly pleaded.

[87] In my Order, I am reserving the Defendants’ right to challenge the Consolidated Statement of Claim should it also be non-compliant with the Rules of Civil Procedure. However, a renewed pleadings motion cannot challenge the legal viability of the causes of action or contest the consolidation of the two actions.

3. The Novel Causes of Action

[88] Relying on the Court of Appeal’s decision in Merrifield v. Canada (Attorney General)[^41] the Defendants submit that the two novel torts advanced in the 2022 action are not legally viable.

[89] Relying on Bacchus v. Munn,[^42] Jones v. Tsige,[^43] Caplan v. Atas,[^44] and Alberta Health Services v Johnston,[^45] Ms. Howlett submits that it is not plain and obvious that the two novel causes of action do not disclose a reasonable cause of action.

[90] It is true that in Merrifield v. Canada (Attorney General), the Court of Appeal did not recognize a new tort of harassment. However, the factual context of that case arose out of an employment relationship, and the existing tort of intentional infliction of mental stress was adequate to address the plaintiff’s grievances without creating a new tort.

[91] However, the Court of Appeal did not make a categorical conclusion about a new tort of harassment and rather stated at paragraph 53 that: “we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts.” Noting this caveat, Justice LeMay, in Bacchus v. Munn, concluded that it was not plain and obvious that there was not a cause of action for harassment where there was a sexual relationship between the parties that one party regarded as pre-matrimonial and the other regarded as a relationship between a sex trader and her customer. Bacchus v. Munn is a case where the court determined that it is not plain and obvious that the tort of harassment cannot be developed.

[92] In the immediate case, the Defendants argue that the harassment claim is associated with the employment relationship and therefore the Merrifield case governs and there is no necessity for any development of the law. That argument may ultimately succeed, but at this juncture, it is not plain and obvious that the argument will succeed, especially because while the alleged material facts of the harassment and of the stalking began at Ms. Howlett’s work environment, they extended into public space and to her residence and to her time away from the work environment.

[93] In Bacchus v. Munn, Justice LeMay also observed that should the harassment claim continue, the court might apply the principles in Jones v. Tsige,[^46] and conclude that this is an area where there is an emerging acceptance of claims in a developing area of the law. There are two points that emerge from this observation. Jones v. Tsige is a case about the emergence of torts to protect privacy, and thus Ms. Howlett has available the argument that her proposed novel torts are extensions of developments in privacy law. Once again, that argument may or may not succeed based on a full evidentiary record, but at the pleadings stage, the outcome is not now plain and obvious.

[94] Jones v. Tsige is also a case about the emergence of new torts as the incremental development of the common law, which provides Ms. Howlett with the argument that it is not plain and obvious that her proposed two novel torts fill lacunae in the law about assault, sexual assault, and intentional infliction of mental harm. Yet again, that argument may or may not succeed based on a full evidentiary record, but at the pleadings stage, the outcome is not now plain and obvious.

[95] After Merrifield v. Canada (Attorney General), in Caplan v Atas,[^47] 385277 Ontario Ltd v. Gold,[^48] and 40 Days for Life v. Dietrich,[^49] Ontario courts have recognized a narrow tort of internet harassment. Those cases are not helpful to either party in the immediate case which does not concern internet harassment.

[96] Recently, in Alberta, in Alberta Health Services v Johnston,[^50] which was a trial judgment not a pleadings motion, in an eloquently and carefully reasoned judgment, Justice Feasby concluded that a general tort of harassment existed, and he awarded one of the plaintiffs $200,000 for defamation and $100,000 for the tort of harassment. About the tort of harassment, Justice Feasby stated at paragraphs 99-100 of his judgment:

Tort of Harassment Fills a Gap in the Law

99. Existing torts do not address the harm caused by harassment. Some of those torts have been alleged in the present case and their elements have been reviewed in earlier sections of these Reasons. Defamation and assault get at some kinds of harassing behaviour but are inadequate because they are limited to false statements causing reputational harm in the case of defamation and imminent threats of physical harm in the case of assault. The new privacy torts address harassment only if there is a reasonable expectation of privacy - which is absent in the present case. The tort of private nuisance was used to address harassment by way of repeated telephone calls in Motherwell, but it is an inadequate basis for liability for harassment in many circumstances because it requires a connection to property. The tort of intimidation is of limited use to address harassment because it requires submission to a threat (Klar & Jeffries at 835) whereas in many cases with harassment there will either be no threat or no acquiescence.

100. Graesser J in Ford conceived of the tort of harassment as an extension of the tort of intentional infliction of mental suffering. A similar approach is discussed in Dan Priel, "'That is not how the Common Law Works': Paths to Tort Liability for Harassment" (2021) 52 Ottawa Law Review 87 at 115-120. The elements of intentional infliction of mental suffering are: (1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness: Young v Borzoni, 2007 BCCA 16 at para 24; Universe v Fraser Health Authority, 2019 BCCA 234 at para 23; McIlvenna v 1887401 Ontario Ltd., 2015 ONCA 830 at para 29. Intentional infliction of mental suffering requires both intention, recklessness is not enough (Piresferreira v Ayotte, 2010 ONCA 384 at para. 79), and a visible or provable illness. Harassers often act with reckless disregard as to the consequences of their actions as opposed to having the intention required to satisfy the requirements of the tort of intentional infliction of mental suffering. And victims of harassment will often engage in self-preservation avoidance behaviour - quitting a job, changing residence, buying a security system, disengaging with social media, etc. - so that no visible or provable illness arises. The harms and costs associated with harassment that fall short of a visible or provable illness are not recoverable pursuant to the tort of intentional infliction of mental suffering.

[97] In the immediate case, the trial judgment in Alberta Health Services v Johnston, does not articulate the law of Ontario, but it does support my conclusion that it is not plain and obvious that Ms. Howlett’s two novel causes of action do not disclose a reasonable cause of action in Ontario, where the law may also be developing.

4. Abuse of Process and a Multiplicity of Proceedings

[98] In so far as the factual footprint or underpinning is concerned, the 2022 tort action is duplicative of the 2019 wrongful dismissal and breach of contract action. It is, however, argued by Ms. Howlett that rule 21.01(3)(c) does not apply to support a stay or dismissal of the 2022 tort action because the parties to the 2022 action are not precisely the same because Mr. Sgambelluri is not a named party to the 2019 action and the causes of action are different in the two actions. Northern Trust’s and Mr. Sgambelluri’s response to that argument is that Mr. Sgambelluri is a litigation privy of Northern Trust and it his alleged misconduct that is the major factual underpinning for the wrongful dismissal and breach of contract claims.

[99] Without deciding who is correct as to whether rule 21.01(3)(c) is even available in the circumstances of the immediate case, I am going to assume that the 2019 action is another proceeding pending in Ontario between the same parties in respect of the same subject matter and then apply the test, which is set out earlier in these Reasons for Decision, for deciding whether such a proceeding should be stayed or dismissed pursuant to rule 21.01(3)(c).

[100] In this last regard, I conclude that: (a) the continuation of the action would not cause Northern Trust or Mr. Sgambelluri prejudice or injustice; (b) a continuation would not even cause inconvenience or additional expense save for the expense caused by the necessity to replead a defence and counterclaim in the consolidated action; (c) a stay or dismissal would be unjust to the plaintiff; (d) the commencement of the 2022 action was contrary to the principle that a multiplicity of proceedings should be avoided; however, it was not an abuse of process, oppressive or vexatious for Ms. Howlett to have sued first in 2019 and then based on the same factual underpinning to sue again in 2022; and (e) neither Northern Trust nor Mr. Sgambelluri would be substantively prejudiced by the consolidation of the 2019 and the 2022 action; and (f) that is the solution for the multiplicity of proceedings in the immediate case.

[101] Beginning with the matter of prejudice or injustice, it is obvious that Ms. Howlett would be prejudiced by the dismissal or staying of the 2022 action which includes different causes of action, including the claims made against Mr. Sgambelluri, for whom it is alleged that Northern Trust is vicariously liable for his alleged misconduct.

[102] Apart from the wasted expenses of having to replead, the Defendants to the 2022 action are not inconvenienced and they are not substantively prejudiced because they remain fully entitled to plead that the claims advanced in 2022 are statute-barred.

[103] That the matter of the running of limitation periods remains undetermined in the consolidated action removes the stinger of the Defendants’ argument that there has been an abuse of process and a circumvention of the test to be used when a plaintiff after the close of pleadings seeks to add a new and statute-barred cause of action.

[104] Put somewhat differently, in the immediate case, the Defendants’ complaint of prejudice begs the question of what would have happened had Ms. Howlett brought a motion to amend the 2019 action to expressly plead the causes of action that are to be found in her 2022 tort action.

[105] While in the immediate case one of those outcomes to a motion to amend is that the amendment would not be allowed because the amendments are statute-barred, three other outcomes are also possible; namely:

a. A court could allow the amendments to the 2019 action and hold that it was premature to decide whether the claims to be added (those advanced in the 2022 action) were untimely having regard to the principles associated with discoverability.

b. A court could allow the amendment and hold that Ms. Howlett had rebutted the presumption as to when the causes of action to be added (those advanced in the 2022 action) were discovered; or

c. The court could allow the amendment having been satisfied that, upon analysis, there were no new causes of action added to the 2019 action but rather Ms. Howlett had expressly identified causes of action already implicitly pleaded in the 2019 action.

[106] Thus, upon analysis in the immediate case it may not be the case that the Defendants have been prejudiced because it remains to be determined whether or not there is any merit to their limitation period defence.

[107] Thus, I see nothing in what has occurred in the litigation between Ms. Howlett and Northern Trust that reaches the level of an abuse of process or that would place the administration of justice in ill repute.

[108] It would have been preferable, and it would have avoided a multiplicity of proceedings if all of Ms. Howlett’s claims and all the parties against whom she had claims based on the same factual underpinning had been joined in the 2019 action from the outset; however, preferability alone does not amount to an abuse of process. The 2019 action has not advanced beyond the pleadings stage and has only reached some documentary discovery. The examinations for discovery have not yet occurred.

[109] Mr. Sgambelluri was always going to be involved as a necessary witness and his behaviour would have been and will be a topic for those future examinations for discovery. With the consolidation of the actions, Mr. Sgambelluri will be examined directly, which strikes me as procedurally fair and preferable for all the parties. He asserts that he has been prejudiced by not being able to directly defend himself, being a non-party to the 2019 action. Ironically, this submission favours consolidating the actions. I therefore agree with Ms. Howlett’s argument at paragraph 52 of her factum, where she states:

52. […] The Defendants argue that Northern Trust will incur significant legal costs in responding to the Tort Matter, but caselaw is clear that expense and inconvenience do not amount to substantial prejudice or injustice sufficient to warrant a stay or dismissal of a duplicative proceeding.[^51] The Defendants argue that Mr. Sgambelluri was deprived of the opportunity to defend himself in the Employment Matter, but the Tort Matter is giving Mr. Sgambelluri an opportunity to defend himself, rather than acting as the cause for any resulting prejudice (which further could have been prevented by way of third party claim in the Employment Matter). Northern Trust argues that it has been prejudiced by claims of new damages against it by way of vicarious liability, but the commencement of a valid legal claim and resulting damages, on its own, does not amount to prejudice.

[110] Consolidation of the 2019 action with the 2022 action avoids a multiplicity of proceedings and allows a decision on the merits of all the claims and defences. In one action, there is no risk of inconsistent findings of fact or of double recoveries of damages.

[111] In regard to the claims and defences being resolved in one action, it is worth keeping in mind that in the 2019 action, Northern Trust also advances a counterclaim in defamation and that tort claim also is based on the same factual footprint that involves all of Ms. Howlett, Northern Trust and Mr. Sgambelluri.

[112] I cannot see any abuse of process and I rather see a potential miscarriage of justice being done and being seen to be done by staying the claims, the truth of which would be associated with Ms. Howlett’s truth and justification defences to the defamation counterclaim. In other words, it is in the interests of the administration of justice to consolidate all the claims, counterclaims, and defences to be resolved in one proceeding.

[113] My conclusions to consolidate and not stay or dismiss the 2022 action are supported by first principles and by the case law.

[114] The Defendants rely on Carbone v. DeGroote,[^52] but a close reading of the case supports the order I shall be making in the immediate case.

[115] In Carbone v. DeGroote, the defendant DeGroote brought a motion to have the plaintiff Carbone’s 2018 action dismissed pursuant to rule 21.01(3)(c) because there was a 2014 pending action between them. The defendant also relied on rule 21.03(1)(d) for a stay or dismissal because by commencing a separate proceeding, Carbone was avoiding court orders made in the existing action that he post security for costs and that he pay costs pertaining to court orders made against him in the existing action.

[116] In the Carbone case, Justice Sanfilippo concluded that Carbone’s action should be dismissed because of the contraventions of rules 21.01(3)(c) and 21.01(3)(d). However, a close reading of his decision reveals that he did not dismiss the claims advanced in the 2018 action. Rather, he dismissed Carbone’s 2018 action, but he granted Carbone leave to amend his statement of claim in the 2014 action to plead the causes of action advanced in the dismissed 2018 action.

[117] Thus, upon analysis the order made in Carbone v. DeGroote is effectively the same as the order I am making in the immediate case by consolidating all the claims into one repleaded action.

[118] In the immediate case, the Defendants rely on the Court of Appeal’s decision in Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.),[^53] which as it happens was followed in Carbone v. DeGroote as authority for the proposition that it is an abuse of process to commence a duplicative action or an action built upon the same factual footprint to circumvent the Rules of Civil Procedure.

[119] In the Maynes case, similar to the immediate case, the plaintiff commenced a new proceeding in order to avoid bringing a motion to amend its claims in an existing action. The Court of Appeal upheld the motions judge’s decision that the second action should be struck as an abuse of process and that the plaintiff should not be granted leave to amend its statement of claim in the first action.

[120] In the immediate case, the Defendants submit that I am bound to apply Maynes to the analogous circumstances of the immediate case. This argument, however, is incorrect and for five reasons I am not bound to follow the decision in Maynes.

a. The first reason is that Maynes does not overrule the law, also from the Court of Appeal, that the application of the abuse of process doctrine depends upon the circumstances of the particular case. In Abarca v. Vargas[^54] at paragraph 29, the Court of Appeal stated:

There is no law supporting the conclusion that an abuse of process must lead inevitably to the dismissal of the associated claim. In each case, the court must assess the gravity of the abuse in determining the severity of its response, bearing in mind the principle of proportionality. This approach is not surprising, since instances of abuse of process fall across the spectrum from egregiously contemptuous conduct to relatively minor breaches of procedural rules.

b. The second reason is that the circumstances of the immediate case are not analogous to the circumstances in Maynes where the existing action was adequate to provide access to substantive justice to both parties. In Maynes, five of the six claims asserted in the plaintiffs’ new action were virtually identical to the original claims, and the sixth claim was for declaratory relief alone, and the declaratory relief was not underpinned by a reasonable cause of action.

c. The third reason is that as explained above, Ms. Howlett will suffer significant substantive prejudice by the dismissal or staying of the 2022 tort action, while the Defendants will not suffer any substantive prejudice, because it remains to be determined whether they have a limitations period defence in addition to any defences they may have on the merits.

d. The fourth reason is that unlike the situation in Maynes, there have been no examinations for discovery. In Maynes, there was the possibility that the plaintiff was using the second action to cure deficiencies in how the first action had been pleaded.

e. And the fifth reason is that there is also the circumstance that it would be perverse to stay or dismiss Ms. Howlett’s tort action while allowing Northern Trust’s tort counterclaim for defamation to continue.

[121] In Zhu v. Siew,[^55] which was a case where Justice Morgan distinguished the Maynes case, he observed that the solution to any factual or legal overlap between two claims (in that case two motor vehicle negligence claims involving the same road accident) is to follow the guidance of the joinder rule 6.01(1)(d), set out above, that where two or more proceedings appear to have a question of law or fact in common or claim relief that arises out of the same occurrences, the proceedings may be consolidated, or heard at the same time or one immediately after the other.

[122] The conclusion of this analysis is that notwithstanding the multiplicity of proceedings, there is no abuse of process or other reasoning for foreclosing the claims of the 2022 action being consolidated with the claims of the 2019 action in a properly pleaded Consolidated Statement of Claim.

F. Conclusion

[123] For the above reasons, I make the Order set out in paragraph 5 of these Reasons for Decision.

Perell, J.

Released: August 4, 2023

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