Endorsement

Overview

[1] On this motion, the Defendant, Registered Nurses’ Association of Ontario (“RNAO”) seeks to:
a) strike the statement of claim under Rule 21.01(1)(b) of the Rules of Civil Procedure for disclosing no reasonable cause of action, and/or
b) stay or dismiss the action as an abuse of process pursuant to Rule 21.01(3)(c) as another proceeding (CV-24-4121) is pending between the parties in respect of the same subject matter. The Plaintiff, Melissa Dore, who is self-represented, submits that her claim in this action against RNAO for not acting in good faith is viable and should be allowed to proceed.

[2] For the reasons that follow, the motion is dismissed.

Background

[3] The Plaintiff, Ms. Dore, is a nurse and a member of RNAO.

[4] RNAO is a professional association of nurses and nursing students in Ontario. One feature of RNAO membership is the Legal Assistance Program (“LAP”). LAP offers RNAO members discretionary funding for legal services to address certain matters that include a member’s nursing practice and licence with the College of Nurses of Ontario (“College”), among others. [1]

[5] In January 2022, Ms. Dore requested LAP legal services to defend allegations before the College that she had engaged in professional misconduct. LAP arranged for counsel on a limited retainer to act for Ms. Dore in dealing with initial correspondence with the College to clarify what information it sought for its investigation into her conduct. LAP counsel advised Ms. Dore that the limited retainer did not extend to cover the balance of the College’s investigation. On January 28, 2022, LAP counsel advised Ms. Dore that a request had been submitted to RNAO for additional LAP funding to extend the scope of the retainer. LAP counsel advised her on February 10, 2022 that she had removed herself from the case, and advised the College on February 22, 2022 that she no longer acted for Ms. Dore.

[6] RNAO advised Ms. Dore that LAP funding is approved in stages and that further requests for legal services under the program beyond the scope of the initial retainer would be considered by its LAP Committee in its discretion.

[7] Subsequently, Ms. Dore applied to RNAO for further LAP legal services. RNAO denied her request and advised on December 4, 2023 that the chair of the LAP Committee was preparing a letter detailing the reasons for denial that could be appealed to the Board Executive Committee. Later that day, Ms. Dore advised RNAO of her intention to appeal the denial. RNAO confirmed on December 6, 2023 that the chair of the LAP Committee was preparing reasons for the denial and invited Ms. Dore to submit a statement outlining the reasons for the appeal and the relief being sought. In response, Ms. Dore advised that she could not cite reasons for the appeal without first having the reasons for denial. When Ms. Dore asked RNAO on January 12, 2024 when the reasons for denial would be released, RNAO advised that, “[y]our case has been referred to the executive committee, and we will be in touch around mid-March.”

[8] Importantly, Ms. Dore desperately wanted LAP legal services to defend a conduct hearing before the College that was scheduled to start on January 8, 2024. Starting on October 23, 2023, she repeatedly asked RNAO for the LAP Committee’s reasons for denial so that she could prepare an appeal to the Board Executive Committee. But despite the time-sensitive nature of her request for LAP assistance, RNAO advised that she would not be contacted by the LAP Committee or the Board Executive Committee until mid-March 2024 (i.e., well after the College conduct hearing was scheduled to begin).

[9] By March 2, 2024, neither the LAP Committee nor the Board Executive Committee had responded to Ms. Dore with the reasons for denying her application for LAP legal services.

[10] On March 20, 2024, Ms. Dore commenced the within action (CV-24-1402). The statement of claim pleads that RNAO was required to act promptly and fairly in deciding applications for LAP assistance from its members. The claim also claims that RNAO breached its obligation to act fairly and in good faith in reviewing and processing Ms. Dore’s application for LAP legal services by not providing a timely explanation for denying her application. The claim further pleads that RNAO’s failure to provide her with a timely explanation resulted in a marked departure from ordinary standards of decency and a failure to discharge its duty to act fairly and in good faith.

[11] In this statement of claim, Ms. Dore seeks $410,000.00 in damages due to RNAO’s alleged failure to act in good faith by not providing her with its reasons for denying her LAP application in timely fashion. This claim also pleads that RNAO’s conduct caused Ms. Dore to suffer extreme mental and emotional distress.

[12] On September 2, 2024, Ms. Dore commenced a second action (CV-24-4121) arising from the same allegations raised in the first action (CV-24-1402). The second action seeks $4.41 million in damages and names the following as defendants: the Registered Nurses Association of Ontario (RNAO) Legal Assistance Program (LAP), the RNAO Board of Directors, and three personally-named RNAO officials who are alleged to have dealt with Ms. Dore’s LAP application. Like the first action, the second action refers to RNAO’s denial of Ms. Dore’s application for further LAP legal services (i.e., beyond the limited retainer that RNAO had approved for the initial exchange of correspondence with the College in 2022) and claims that the various defendants named in the second action had breached their obligation to act in good faith by neglecting to communicate the reasons for denying further LAP assistance. Among other things, the second action claims that the named defendants committed an intentional abuse or misfeasance of public office that is framed as a separate and independent wrong unrelated to RNAO’s decision to deny Ms. Dore’s application for further LAP legal services.

Leave to Bring the Motion

[13] Rule 2.02(b) provides that a motion to attack an irregularity shall not be brought, except with leave of the court, if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity. [2]

[14] The statement of claim was issued on March 20, 2024. RNAO served its statement of defence on May 6, 2024. [3] In the statement of defence, RNAO pleads that the statement of claim in the within proceeding (CV-24-1402) should be dismissed for not establishing a cause of action. [4] Subsequently, on November 22, 2024, RNAO brought this motion to strike or stay the action for not disclosing a reasonable cause of action and being duplicative with Ms. Dore’s second statement of claim (CV-24-4121) issued on September 2, 2024.

[15] Generally, a defendant should move to strike a claim as disclosing no reasonable cause of action before filing a statement of defence. However, the defendant may bring such a motion without leave even after delivering a defence when it is obvious from its pleading that it opposes the sufficiency of the claim: Potis Holdings Ltd. v. Law Society of Upper Canada, 2019 ONCA 618 at para 14; Arsenijevich v. Ontario (Provincial Police), 2019 ONCA 150 at para 7.

[16] It is clear and obvious from its statement of defence that RNAO took issue with the sufficiency of the statement of claim in this action. Only after RNAO delivered its defence did Ms. Dore commence the second action. In the circumstances, I find that RNAO’s motion to strike or stay the statement of claim in this first action may be heard without leave: Potis at para 14. In any event, I would find that RNAO brought this motion with reasonable diligence such that trial efficiency would not be impacted as the action is at the pleadings stage. Accordingly, I am satisfied that it is appropriate for the court to hear and decide RNAO’s motion under Rule 21.01.

Analysis

a. The Good Faith Claim

[17] As discussed below, I find that it would be premature to strike Ms. Dore’s claim in the within action in respect of RNAO’s alleged breach of duty to act in good faith.

[18] Rule 21.01(1)(b) provides that a party may move to strike out a pleading where it discloses no reasonable cause of action or defence. Pursuant to Rule 21.01(2), no evidence is admissible on a Rule 21.01(1)(b) motion.

[19] The court will strike a claim under Rule 21.01(1)(b) only when it is plain and obvious, assuming the pleaded facts to be true, that the pleading discloses no reasonable cause of action or has no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras 17 and 22; Odhavji Estate v. Woodhouse, 2003 SCC 69 at paras 14-15; Hunt v. Carey Canada Inc.; PMC York Properties Inc. v. Siudak, 2022 ONCA 635 at para 31, leave to appeal denied. The facts as pleaded are assumed to be true unless they are manifestly incapable of being proven: Imperial Tobacco at para 22; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para 87. It is beyond well-established that the bar for striking a pleading is high: Ibid; PMC at para 30. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: Imperial Tobacco at para 17.

[20] On a Rule 21.01(1)(b) motion, the statement of claim should be read as generously as possible to accommodate any inadequacies in the form of the allegations that are merely the result of drafting deficiencies as cases should, if possible, be disposed of on their merits: Atlantic Lottery at para 88; PMC York at para 31. This generous approach under Rule 21.01(1)(b) must err on the side of permitting a novel but arguable claim to proceed to trial: Imperial Tobacco at para 21. The court is to consider whether the pleadings, as they stand or may reasonably be amended, disclose a claim that is not doomed to fail: Atlantic Lottery at para 90; PMC York at para 32.

[21] A statement of claim will be deficient under Rule 21.01(1)(b) where it fails to plead the material facts required to sustain a particular cause of action: Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 at para 20; Apotex Inc. v. Eli Lilly and Co., 2015 ONCA 305 at para 21, leave to appeal denied.

[22] Pepall J.A. writing for the Court of Appeal in McCreight v. Canada (Attorney–General), 2013 ONCA 483 at para 39, set out the applicable principles on a Rule 21.01(1)(b) motion as follows:

a) the claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action;
b) there is a need, in the interest of efficiency and correct results, to weed out hopeless claims - a housekeeping dimension which underlies rule 21;
c) if the cause of action pleaded has been recognized, all of its essential elements must be pleaded;
d) if the cause of action has not been recognized, this is not necessarily fatal but there must be a reasonable prospect that the claim will succeed;
e) a claim should not be struck merely because it is novel;
f) the facts pleaded are accepted as being true for the purposes of the motion, unless they are manifestly incapable of being proven;
g) the pleading forms the basis of the motion, and accordingly, possible future facts that have not been pleaded may not supplement the pleading;
h) the pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies; and
i) a motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.

[23] The test under Rule 21.01(1)(b) is stringent, and the moving party must satisfy a very high threshold to succeed: Fernandez Leon v. Bayer Inc., 2023 ONCA 629 at para 8; PMC at para 30. The rationale for this high standard is based on, “the liberal construction of rules and pleadings that underlies the Rules of Civil Procedure and the requisite generous approach to pleadings in general, in order, as rule 1.04(1) provides, to secure ‘the just, most expeditious and least expensive determination of every civil proceeding on its merits’”: PMC York at paras 33-34.

[24] On reading the within statement of claim in the broadest and least-critical manner, with generous allowances for drafting deficiencies, it is apparent that the claim is based on an alleged breach by RNAO of its obligation to act in good faith by neglecting to give timely reasons for denying Ms. Dore’s application for LAP legal services. Ms. Dore was eligible for LAP assistance by virtue of her membership with RNAO that decided applications from its members for LAP legal services in its discretion. Ms. Dore claims that RNAO was under a duty to reasonably exercise its discretion in good faith without capriciousness or arbitrariness. Contract law jurisprudence would arguably support a duty to act in good faith in this context: Bhasin v. Hrynew, 2014 SCC 71 at para 63; 2161907 Alberta Ltd. v. 11180673 Canada Inc., 2021 ONCA 590 at para 44; Jones v. Quinn, 2024 ONCA 315 at para 74. Ms. Dore’s claim does not expressly plead a contract, but clearly refers to the LAP as a discretionary program that RNAO offers to its members as a feature of membership in the association. In light of this membership context, I am prepared to accept that the circumstances in which RNAO offers LAP legal services to its members arguably implicates a contractual relationship that may ground a duty of good faith: Dumbrell v. Regional Group of Companies Inc., 2007 ONCA 59 at para 54. Even if RNAO offers LAP assistance on a purely discretionary basis, an obligation for RNAO to exercise its discretionary approval in good faith may arguably apply when a member is facing a regulatory investigation or conduct hearing into misconduct allegations with potentially significant consequences where LAP legal services would help the member to defend the allegations: Al-Ghamdi v. College and Association of Registered Nurses of Alberta, 2017 ABQB 685 at para 195, affirmed 2020 ABCA 81, leave to appeal denied. Jurisprudence has not yet recognized this cause of action, but a novel and arguable claim should be permitted to proceed to trial: Imperial Tobacco at para 21; McCreight at para 39.

[25] I am not persuaded by RNAO’s submission that the statement of claim discloses no cause of action. In my view, the law on the applicability of a good faith duty on a professional association approving a discretionary service or benefit for a member remains unsettled. Neither party cited any jurisprudence on this point. A claim is not struck merely for being novel: McCreight at para 39. In any event, where employment or livelihood is at stake, an objective intention to establish a contractual relationship is more likely to exist: Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 at paras 38 and 40. A misconduct investigation or conduct hearing may have significant professional consequences for a subject member’s practice. Accordingly, it would seem at least arguable that RNAO may be obliged to determine a member’s LAP application for legal services to defend professional misconduct allegations by exercising its discretionary approval in good faith: Foran v. Kottmeier. RNAO may act in its own best interests, but may also be obliged to have proper regard for a member’s legitimate contractual interests and not undermine them in bad faith: Bhasin at para 65; Royal Bank of Canada v. Peace Bridge Duty Free Inc., 2025 ONCA 54 at para 59.

[26] In light of the foregoing, I do not find it plain or obvious that Ms. Dore’s good faith claim cannot succeed or is doomed to failure given the unsettled jurisprudence on the nature and scope of RNAO’s duty in deciding her LAP application: McCreight at para 39. Even if RNAO ultimately approved LAP legal services for her, as pleaded in the statement of defence that it has delivered, the jurisprudence on the implications of any delay in making its decision to approve her LAP application remains unsettled. When the applicable law is not fully settled in the jurisprudence, the court should not dispose of a claim on a motion to strike: Kang v. Sun Life Assurance Co. of Canada, 2013 ONCA 118 at para 33; Addison Chevrolet Buick GMC Limited v. General Motors of Canada Limited, 2016 ONCA 324 at para 53, leave to appeal denied.

[27] Accordingly, I decline to strike the statement of claim under Rule 21.01(1)(b).

b. Another Pending Proceeding

[28] I do not find that the within statement of claim (CV-24-1402) should be stayed or dismissed to avoid an unjust multiplicity of proceedings due to the second statement of claim (CV-24-4121).

[29] Rule 21.01(3)(c) allows a defendant to move to have an action stayed or dismissed on the basis that another proceeding is pending in Ontario or another jurisdiction between the parties in respect of the same subject matter. This rule invokes the doctrine of abuse of process that is applied to prevent a multiplicity of proceedings or the re-litigation of an issue, such as when another proceeding against some or all of the same parties replicates the same or similar issues: Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages), 2024 ONCA 103 at para 17. The abuse of process doctrine ensures that no one should be “twice vexed by the same cause,” to “uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 38. The doctrine engages the court’s inherent power to prevent a misuse of its procedure that is manifestly unfair to a party to the litigation or that would in some other way bring the administration of justice into disrepute: Behn v. Moulton Contracting Ltd., 2013 SCC 26 at paras 39-40; Cashin at para 17.

[30] The Court of Appeal in Birdseye Security Inc. v. Milosevic, 2020 ONCA 355 at paras 15-16 set out the principles for the court to exercise in deciding whether an action should be stayed or dismissed under Rule 21.01(3)(c) as an abuse of process:

[15] The determination of whether a stay of proceedings should be granted because another proceeding is pending between the same parties involves an exercise of discretion, taking into consideration the circumstances of the particular case. The moving party must demonstrate that the continuation of the action would cause it substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court, and that the stay would not cause an injustice to the responding party. Factors relevant to prejudice include: the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay.

[16] The fact that another proceeding is pending between the same parties in respect of the same subject matter does not automatically lead to an order dismissing or staying the claim. Rather, the order is discretionary and the judge hearing the motion must be satisfied that the stay or dismissal is warranted in the particular circumstances of the case. While a multiplicity of proceedings may constitute an abuse of process which warrants an order staying or dismissing a proceeding, that is not necessarily always the case. All of the circumstances must be considered to determine whether, in the interests of justice, a stay or dismissal should be granted. [Case citations omitted, emphasis added]

[31] The abuse of process doctrine is broader than res judicata and issue estoppel and applies to bar litigation that would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice: Winter v. Sherman Estate, 2018 ONCA 703 at para 7, leave to appeal dismissed [2020] 22065 (SCC); Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 37. A stay is granted only in the clearest of cases where a continuance would cause an injustice: Tewari v. Hantover Canada Inc., 2024 ONSC 5453 at paras 16-18.

[32] I accept that the pleadings in the second statement of claim are somewhat duplicative of those in the first action. However, the existence of almost identical pleadings in both actions is not necessarily sufficient to constitute an abuse of process: Birdseye at para 18. Moreover, the second statement of claim clearly seeks further relief against differently-named defendants based on their alleged involvement in deciding Ms. Dore’s application for LAP legal services.

[33] I agree with RNAO that the relief sought by Ms. Dore in the second action could and perhaps should have been brought in the first action. Nevertheless, I am not persuaded that the proper remedy in the context of this litigation is to stay or dismiss all or part of the first statement of claim. In my view, the duplicative nature of the first action with the second action may be remedied in a less intrusive fashion.

[34] As discussed in submissions, there would clearly be advantages in having the first action tried together with, or immediately after, the second action. However, as a Rule 6.01 motion was not brought, I decline to grant such an order without a formal motion on notice so that Ms. Dore, who is self-represented, is not deprived of the opportunity to fully consider her position and prepare fulsome submissions on the matter. To this end, I recognize that there may well be valid reasons for not ordering a consolidation or hearing together of the actions, such as the potential for delay in proceeding to trial: Heldmann v. Parlee, 2021 ONSC 4904 at para 37. But if the second action against the various defendants is tried together with, or immediately after, the first action against RNAO, then Ms. Dore may well be able to litigate all of her claims against RNAO and the other named-defendants and fully address the circumstances giving rise to her claims in both actions without any risk of inconsistent findings. In addition, if an order to have the actions tried together is obtained quickly, there would be no real additional costs to the parties, respectively.

[35] Irrespective of the fact that she is claiming over $4 million in damages in the second action, I accept that Ms. Dore is attempting to assert genuine claims against RNAO and other defendants with respect to her application for LAP legal services and the alleged delay in obtaining reasons for decision on the application. The facts pleaded in the first action are assumed to be true on this pleadings motion, and I accept that those facts support the claims being raised in the within action that arguably have some merit. In addition, I do not find that Ms. Dore’s second action in itself gives rise to any injustice or prejudice to RNAO, particularly as further relief is being sought against other named defendants in that proceeding. In the circumstances, I decline to find that she acted vexatiously in bringing the second action.

[36] I would encourage both sides to collaborate on a process that will achieve the objectives under Rule 1.04(1) to achieve, “the most expeditious and least expensive determination of every civil proceeding on its merits.” To this end, I would strongly encourage the parties to consider consenting to have the actions tried together, or one immediately after the other, or otherwise moving under Rule 6.01 for this relief.

[37] For these reasons, I decline the motion to stay or dismiss the within statement of claim under Rule 21.01(3)(c).

Outcome

[38] Based on the foregoing, the motion is dismissed.

[39] If the parties are unable to resolve the issue of costs for this motion, Ms. Dore may deliver written costs submissions of up to 2 pages (excluding her costs outline or any offer(s) to settle) within 15 days, and RNAO may deliver responding submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.

Date: February 18, 2025
M.T. Doi

Notes

[1] The terms of the LAP are set out in a policy manual that RNAO published in January 2016, along with further criteria published in April 2022.

[2] Rule 2.02(b) provides as follows:

Attacking Irregularity

2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,

(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.

[3] On October 10, 2024, Barnes J. dismissed Ms. Dore’s motion to strike RNAO’s statement of defence due to delays in progressing this litigation while defendant counsel was unwell.

[4] See paras 2, 30 and 33 of the statement of defence (Case Centre B-1-11 and B-1-15).