Reasons for Decision

Court File No.: CV-24-33022
Date: 2025-03-04
Ontario Superior Court of Justice

Between:
Waseem Habash (Plaintiff / Responding Party)
– and –
St. Clair College of Applied Arts and Technology and Patricia France also known as Patti France (Defendants / Moving Parties)

Appearances:
Julia Cecchetto, for the Plaintiff (Responding Party)
Jacqueline Luksha and Kelly Brennan, for the Defendants (Moving Parties)

Heard: October 28, 2024

Justice: Jacqueline A. Horvat

Overview

[1] The plaintiff, Waseem Habash, commenced an action against his former employer, St. Clair College of Applied Arts and Technology (the “College”), and the former President of the College, Patricia France, seeking damages for breach of contract and several other causes of action, including intentional interference with contractual and/or economic relations, inducing breach of contract, defamation, and injurious falsehood.

[2] The defendants bring this motion to strike all claims against Ms. France personally and strike all references to her from the amended statement of claim (the “Claim”) under rr. 21.01(1)(b) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] For the following reasons, I partially grant the defendants’ motion to strike, striking only the claim against Ms. France for intentional interference with contractual and/or economic relations. The plaintiff is granted leave to amend his claim for inducing breach of contract.

Background

[4] On November 8, 2023, Mr. Habash was terminated without cause from his employment as Senior Vice-President, Academic and College Operation, at the College. Ms. France was the President of the College and Mr. Habash’s direct manager.

[5] On January 16, 2024, Mr. Habash commenced this action, seeking damages:

• (a) as against the College for (i) breach of contract, or (ii) in the alternative, wrongful dismissal, breach of contract and for pay in lieu of notice, (iii) lost wages under the Human Rights Code, R.S.O. 1990, c. H.19, and (iv) loss of dignity, self-worth, and hurt feelings as a result of discrimination during his employment;
• (b) as against Ms. France for (i) intentional interference with contractual and/or economic relations and (ii) additionally or in the alternative, defamation and/or injurious falsehood; and,
• (c) as against the College and Ms. France, jointly and severally, for (i) loss of chance and/or opportunity, (ii) intentional infliction of mental suffering, and (iii) punitive damages.

[6] No statement of defence has been delivered, and the plaintiff has not noted the defendants in default. The defendants now seek to strike all claims made against Ms. France personally.

The Applicable Law

[7] On a motion to strike, the principle that a court has an inherent and broad discretion to prevent an abuse of its process is applicable: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, para. 37. The statement of claim must be read generously to allow for drafting deficiencies and the plaintiff’s lack of access to key documents and discovery information. The court should err on the side of permitting an arguable claim to proceed to trial: Savary v. Tarion Warranty Corp., 2021 ONSC 2409, para. 8; Rausch v. Pickering (City), 2013 ONCA 740, para. 34.

Rule 21.01(1)(b): Reasonable Cause of Action

[8] To strike a pleading under r. 21.01(1)(b), the defendant must demonstrate that it is “plain and obvious” that the Claim discloses no reasonable cause of action. For the purposes of this motion, the Claim is to be read generously and the facts alleged are presumed to be true. The threshold for sustaining a pleading under r. 21.01 is low, and if the claim has some chance of success, the action must be permitted to proceed. A claim should be struck only in the clearest of cases: Khursheed v. Venedig Capital SAS, 2019 ONSC 5190, para. 14; Esguerra v. Liland Insurance Inc., para. 6.

[9] The plaintiff must clearly plead the facts on which it relies, even if it only hopes to be able to prove them. Striking a claim is not something to be done lightly and should only be done with great care. A claim should be permitted to proceed even if it only has some chance of success. At the same time, striking claims that have no reasonable prospect of success is an important function of the court and is essential to effective and fair litigation: Hunt v. Carey Canada Inc.; R. v. Imperial Tobacco Canada, 2011 SCC 42, paras. 19-22; Esguerra v. Liland Insurance Inc., para. 6.

Rule 25.11: Scandalous, Frivolous, Vexatious or an Abuse of Process

[10] Under r. 25.11, the court may strike all or part of a pleading 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.

[11] Striking a pleading under r. 25.11 is subject to a high standard and is not something to be done lightly. In Carney Timber Company, Inc. v. Pabedinskas, para. 16, Strathy J., as he then was, summarized the principles applicable to r. 25 as follows:

• a fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious;
• a pleading that has no material facts is frivolous and vexatious;
• a pleading that is superfluous or can have no effect on the outcome of the action is scandalous, frivolous and vexatious;
• portions of a pleading that are irrelevant, argumentative, inserted only for colour or are bare allegations without material facts in support, will be struck as scandalous;
• a pleading that is purely argumentative will be struck out;
• a pleading that contains unfounded and inflammatory attacks on the integrity of a party, and speculative and unsupported allegations of defamation will be struck as scandalous and vexatious;
• a pleading may be struck on the ground that it may prejudice or delay the fair trial of the action where the probative value of the evidence would be outweighed by the time and effort involved and would seriously interfere with the fair and focused trial of the issues;
• striking a pleading on the ground that it may prejudice or delay the fair trial of an action is an exercise in discretion – the court must balance the added complexity of the pleading against the potential probative value of the facts alleged;
• pleadings that are replete with conclusions, expressions of opinion and contain irrelevant matters will be struck in their entirety; and
• pleadings that are clearly designed to use the judicial process for an improper purpose are an abuse of process – these include harassment and oppression of other parties by multifarious proceedings, the re-litigation of issues previously decided and the litigation of matters that have been concluded.

[1] In compiling this summary, Strathy J. reviewed the decisions of Madam Justice Epstein in George v. Harris, [2000] O.J. No. 1762 (S.C.), particularly at paras. 19-23, and by Madam Justice Molloy in Brodie v. Thomson Kernaghan & Co. (2002), 27 B.L.R. (3d) 246 (S.C.), particularly at paras. 26-28.

Concise Statement of Material Facts

[12] Rule 25.06(1) requires every pleading to “contain a concise statement of the material facts on which the party relies for the claim.” A plaintiff must plead all facts which it must prove to establish a cause of action and if any material fact is omitted, then the motion to strike must succeed. A pleading must be read generously to not unfairly deny a party the benefit of the pleading: Balanyk v. University of Toronto, paras. 29-30; Doe v. Metropolitan Toronto (Municipality) Commissioners of Police.

Analysis

[13] The issues on this motion are:

• (a) Should the claims, including defamation and injurious falsehood, against Ms. France be struck for either (i) disclosing no reasonable cause of action, or (ii) because they are frivolous, vexatious, or an abuse of the court’s process?
• (b) Should the claim for intentional interference with contractual relations and/or economic relations be struck for (i) disclosing no reasonable cause of action, or (ii) because they do not contain a concise statement of fact, or (iii) because they are frivolous, vexatious, or an abuse of the court’s process?
• (c) If the answer to either (a) or (b) is yes, should leave be granted to the plaintiff to amend the Claim?

Defamation and/or Injurious Falsehood

[14] To succeed in an action for defamation, the plaintiff must establish: “(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff”: Grant v. Torstar Corp., 2009 SCC 61, para. 28.

[15] The defendants seek to strike the claims for defamation and/or injurious falsehood for failing to disclose a reasonable cause of action or, in the alternative, because they are frivolous, vexatious, or an abuse of the court’s process. They argue that the Claim is fatally flawed because the claim fails to plead:

• (a) specifically to whom each alleged defamatory statement was made and only pleads “senior team” and “hiring committee”;
• (b) exactly when the alleged statements were made and only pleads “in or around the Fall of 2022”; and
• (c) the exact words alleged to be defamatory.

[16] The plaintiff argues that he has pleaded the requisite elements of a claim for defamation and the defendants are really arguing that he has not done so with sufficient particularity or specificity. Reviewing the pleadings in the Claim, Mr. Habash clearly asserts the following, which all must be taken to be true on this motion:

• (i) Beginning in the Fall of 2022, Ms. France made false and defamatory comments about Mr. Habash. To the plaintiff’s knowledge, these comments were spoken;
• (ii) Her comments were made to the College’s senior team, hiring committee, Board of Governors, Mr. Drew Wilkins, and the College community;
• (iii) Ms. France falsely stated that Mr. Habash was “neglecting his job,” “not attending meetings or performing his duties,” was “useless,” “not collaborative,” and that “he failed and/or refused to work with others;”
• (iv) Ms. France falsely accused Mr. Habash of “yelling at and/or acting unprofessionally towards Mr. Silvaggi” and that “Mr. Silvaggi was doing his own job as well as half of Mr. Habash’s job;” and
• (v) These statements lowered and damaged Mr. Habash’s reputation in the eyes of a reasonable person.

[17] Further, Mr. Habash pleads:

… to the extent that the exact words and terminology used by Ms. France are not within the knowledge of the Plaintiff at this time, the Plaintiff has pleaded words consistent with the information currently at his disposal. The Plaintiff submits that the exact false and defamatory words and terminology used by Ms. France are within the knowledge of the Defendants.

[18] I struggle to understand the defendants’ objections to the Claim from a pleading perspective. In my view, it is far from “plain and obvious” that the Claim discloses no reasonable cause of action based in defamation. The only element that I see missing from the Claim are the precise words that are alleged to be defamatory.

[19] The defendants argue that because the plaintiff responded to the demand for particulars by arguing that the claim was sufficiently pleaded rather than by saying that no further particulars were known, this cannot be one of the limited circumstances where the plaintiff can proceed with his defamation action without pleading full particulars of the alleged defamatory statements.

[20] In limited circumstances, a court may permit a claim for defamation to proceed despite the inability of the plaintiff to state with certainty at the pleadings stage the precise words published by the defendant. As stated in The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, para. 28, in those circumstances, the plaintiff must show that:

• (a) they have pleaded all of the particulars available to them with the exercise of reasonable diligence;
• (b) they are proceeding in good faith with a prima facie case and are not on a fishing expedition. This will generally require at least the pleading of a coherent body of fact surrounding the incident such as time, place, speaker and audience;
• (c) the coherent body of fact of which they do have knowledge shows not only that there was an utterance or a writing emanating from the defendant, but also that the emanation contained defamatory material of a defined character of and concerning the plaintiff; and
• (d) the exact words are not in their knowledge but are known to the defendant and will become available to be pleaded by discovery of the defendant, production of a document or by other defined means, pending which the plaintiff has pleaded words consistent with the information then at their disposal.

[21] Mr. Habash argues, and I agree, that he is pursuing a bona fide action, has plead what he can, has presented a prima facie case of the publication of the words, has presented a coherent set of facts in support, has explained his inability to plead the exact words, and has demonstrated that the words can be obtained for ultimate inclusion in the pleading: see Magnotta Winery Ltd. v. Ziraldo. See also The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, para. 32; PMC York Properties Inc. v. Siudak, 2022 ONCA 635, para. 49.

[22] In my view, Mr. Habash should not be denied his cause of action where the particulars are not within his knowledge and are well within those of the defendants. It is not plain and obvious that the Claim fails to disclose a reasonable cause of action in defamation or that the claim is hopeless or has no reasonable prospect of success. Further, the impugned paragraphs are not vague allegations that are impossible to respond to by the defendants.

[23] On injurious falsehood, the Court of Appeal for Ontario in Lysko v. Braley, paras. 133-134, adopted the following elements:

• (a) the publication of false statements, either orally or in writing;
• (b) reflecting adversely on the plaintiff's business or property, or title to property;
• (c) calculated to induce persons not to deal with the plaintiff;
• (d) made maliciously, that is without just cause or excuse; and
• (e) the plaintiff suffered special damages.

[24] The plaintiff pleads in the Claim:

• (i) Ms. France falsely stated that Mr. Habash was “neglecting his job,” “not attending meetings or performing his duties,” was “useless,” “not collaborative,” and that “he failed and/or refused to work with others;”
• (ii) Ms. France falsely accused Mr. Habash of “yelling at and/or acting unprofessionally towards Mr. Silvaggi” and that “Mr. Silvaggi was doing his own job as well as half of Mr. Habash’s job;”
• (iii) Ms. France’s false comments were made maliciously with ill will and with the understanding by Ms. France that they were untrue. Ms. France made the disparaging falsehoods about Mr. Habash to cause him harm and for her own self-interest, including to provide undue benefits to her brother-in-law; and
• (iv) As a result of the false statements, Mr. Habash suffered damage to his reputation, loss of the President’s position and termination of his employment.

[25] The defendants argue that Mr. Habash’s pleading of injurious falsehood is fatally flawed because he does not plead facts to support a claim that the statements were made maliciously, without cause or excuse, or that Ms. France knew that the alleged statements were false. Further, the defendants say that allegations of nepotism do not equal malice because wanting someone else to succeed cannot amount to malice.

[26] The plaintiff argues that all elements of the claim are properly pleaded, including malice, which is grounded in Ms. France taking steps to prevent Mr. Habash from being promoted and providing her brother-in-law with undue benefits. Further, the plaintiff argues and pleads in the Claim that many of the facts remain within the knowledge of the defendants and there is some chance of success.

[27] Again, I have difficulty understanding the defendants’ objections to the Claim from a pleading perspective. Perfection is not the standard. I am satisfied that the injurious falsehood pleadings should not be struck for failing to disclose a reasonable cause of action or for having no reasonable prospect of success. In my view, it is far from plain and obvious that the impugned paragraphs of the Claim that related to the injurious falsehood fail to disclose a reasonable cause of action.

Intentional Interference with Contractual and/or Economic Relations

[28] The Supreme Court of Canada in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, paras. 5, 28, 74, 86, 96 confirmed that to make out a claim for unlawful interference with economic relations, the plaintiff must plead that the defendant committed an unlawful act against a third party with the intention of causing economic harm to the plaintiff. The tort of unlawful interference with economic relations has also been referred to as “interference with a trade or business by unlawful means”, “intentional interference with economic relations”, “causing loss by unlawful means” or simply as the “unlawful means” tort.

[2] A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 at para. 2.

Unlawful conduct requires conduct that rises to a civil cause of action by the third party against the defendant: A.I. Enterprises Ltd., at paras. 74, 86. It is not necessary to show that the third party suffered any loss. The defendant must have intended to harm the plaintiff, either as an end or as a means to an end: A.I. Enterprises Ltd., at para. 96.

[29] The defendants argue that the Claim fails to disclose a third party towards whom the unlawful acts were committed against and fails to plead an intent to cause economic harm. Mr. Habash argues that the third party is the College and that the claim is therefore made out.

[30] I agree with the defendants’ position that the Claim does not identify a third party or any unlawful acts that were directed at the third party to interfere with the contractual relations between Mr. Habash and the third party. The unlawful acts in this case cannot be defamation or injurious falsehood because they are not directed towards a third party but rather towards Mr. Habash. That does not meet the requirements for pleading unlawful interference with economic or contractual relations. In my view, it is plain and obvious that the Claim does not disclose a reasonable cause of action given the failure to plead the necessary elements of intentional interference with contractual or economic relations.

[31] Mr. Habash also claims damages for inducing breach of contract. The elements of a claim for inducing breach of contract are as follows:

• (a) plaintiff is a party to a valid and enforceable contract;
• (b) defendant is aware of the contract and its terms;
• (c) defendant intends to procure a breach of contract;
• (d) defendant induces a party to breach its contract with the plaintiff; and
• (e) plaintiff suffers damages as a result of the breach.

See Fasteners & Fittings Inc. v. Wang, 2020 ONSC 1649, para. 100, citing Alleslev-Krofchak v. Valcom, 2010 ONCA 557; Correia v. Canac Kitchens, 2008 ONCA 506; Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, para. 26; Lumley v. Gye, [1853] 2 El & Bl 216.

[3] Fasteners & Fittings Inc. v. Wang, 2020 ONSC 1649 at para. 100, citing Alleslev-Krofchak v. Valcom, 2010 ONCA 557; Correia v. Canac Kitchens (2008), 2008 ONCA 506, 91 O.R. (3d) 353 (C.A.); Drouillard v. Cogeco Cable Inc., (2007), 2007 ONCA 322, 86 O.R. (3d) 431 at para. 26 (C.A); Lumley v. Gye, [1853] 2 El & Bl 216.

[32] In my view, Mr. Habash fails to clearly plead (c), (d) and (e). As a result, paragraphs 2(a) and 74-80 of the Claim shall be struck for failing to disclose a reasonable cause of action.

[33] Leave to amend should only be denied in the clearest of cases. But a court should not exercise its discretion to grant leave to amend where there is no reason to believe that the party’s case could be improved by further amendment: Khursheed v. Venedig Capital SAS, 2019 ONSC 5190, para. 37, citing Tran v. University of Western Ontario, 2015 ONCA 295, paras. 25-27, and TSSC Corporation No. 2123 v. Times Group Principals, 2018 ONSC 4799, para. 88.

[34] In my view, the cause of action for inducing breach of contract can be improved by further amendment of the Claim, and leave is granted. The claim in unlawful interference with contractual relations, however, cannot be saved with further amendment. The claim for unlawful interference with contractual relations is therefore struck without leave to amend.

The Claims Against Ms. France Personally

[35] A claim made against a corporate director, officer or employee must plead sufficient particulars to disclose a basis for attaching liability to the individual in their personal capacity given that their alleged actions either (i) exhibit a separate identity or interest from that of the corporation, or (ii) are themselves tortious: Tran v. University of Western Ontario, 2015 ONCA 295, para. 17; Khursheed v. Venedig Capital SAS, 2019 ONSC 5190, paras. 26, 28; ScotiaMcLeod Inc. v. Peoples Jewellers Ltd.; ADGA Systems International Ltd. v. Valcom Ltd.; McFadden v. 481782 Ontario Ltd..

[36] With respect to the claims against Ms. France, the defendants argue that the Claim fails to articulate how Ms. France’s actions in her personal capacity are independently tortious from the actions that she carried out in her capacity as the President of the College. The defendants also argue that Ms. France had a right to impact Mr. Habash’s contract in her role as President of the College.

[37] The defendants rely on the decision of Morgan J. in Ontario Chrysler Jeep Dodge Inc. v. Delisle, 2015 ONSC 5604. In that case, the former president and director made gloating comments about terminating an employee. The court found that while the comments were arrogant, they did not rise to such a level as to attract personal liability, and, at all times, the defendant was acting in his capacity as President. The court also reiterated, at para. 29, citing Shoppers Drug Mart Inc. v. 6470360 Canada Inc., 2014 ONCA 85, para. 43, that “only exceptional cases that result in flagrant injustice warrant going behind the corporate veil.” The defendants say that Ms. France was acting in her corporate capacity at all times, there are no exceptional circumstances in this case, and that the alleged defamatory statements and injurious falsehoods made by Ms. France were made in her capacity as President.

[38] Mr. Habash argues that the alleged acts of Ms. France as pleaded in the Claim go far beyond gloating comments made in the course of her duties. The plaintiff argues that accepting the defendants’ position would lead to an absurd result: it would require this court to accept that an officer’s tortious conduct, carried out with an intention to cause harm to an employee and provide undue benefits to a family member, falls within the bona fide duties and responsibilities of a corporate officer. The plaintiff further argues that officers are liable for their tortious conduct even if it is directed in a bona fide manner to the best interests of the corporation: ADGA Systems International Ltd. v. Valcom Ltd., at para. 18; Meridian Credit Union Limited v. Baig, 2016 ONCA 150, para. 39.

[39] I agree with the plaintiff. In my view, the facts pleaded in the Claim for both defamation and/or injurious falsehood and for inducing breach of contract could constitute independent tortious conduct for which an officer may be held personally liable. At a minimum, there is an arguable claim pleaded in this case that Ms. France acted outside the scope of her duties and her actions are independently tortious from the actions that she carried out in her capacity as the President of the College. On a motion to strike, I am to accept the facts as true as pleaded. I am not to engage in fact finding.

[40] The defendants correctly argue the Said v. Butt exemption provides that the directing minds of a company will not be liable for inducing a corporation’s breach of contract when they are performing bona fide their functions as corporate officers: Density Group Ltd. v. HK Hotels LLC, 2012 ONSC 3294, para. 184; ADGA Systems International Ltd. v. Valcom Ltd., at paras. 12-15. Where a claim for inducing breach of contract is alleged against an officer, it is insufficient that the individual caused or induced the corporation to breach the contract. Instead, the officer must induce the breach of contract while not acting bona fide within the scope of their authority: Gulfview Contracting Ltd. v. Liquid Rubber Engineered Coatings Ltd., 2011 ONSC 7103, para. 11.

[41] But in this case, Mr. Habash has clearly pleaded in the Claim that Ms. France’s actions were outside of the scope of her authority as a College employee or representative. And I must take this to be true for the purpose of this motion. In my view, the facts as pleaded in the Claim at least raise a triable issue as to whether the exception in Said v. Butt applies to the facts of this case and disclose a reasonable cause of action in defamation and/or injurious falsehood and inducing breach of contract. The claim against Ms. France should not be precluded at this stage. I am satisfied that the test to withstand a motion to strike is met.

[42] I will only briefly touch on r. 25.11. Based on the factum filed by the defendants and the submissions made before me, the defendants do not pursue r. 25.11 independently from their r. 21.01(1)(b) argument or with any vigour. But in any event, I am satisfied that the impugned paragraphs do not reach the standard that is required to strike a pleading under r. 25.11. In coming to this conclusion, I have considered the applicable principles identified in Carney Timber Company, Inc.

Order

[43] For these reasons, I partially grant the defendants’ motion to strike, striking only the claim against Ms. France for intentional interference with contractual and/or economic relations, without leave to amend. The plaintiff is granted leave to amend his claim for inducing breach of contract.

[44] The plaintiff shall serve a fresh as amended statement of claim within 30 days of this endorsement, with a version to the defendants’ lawyer identifying the amendments.

[45] If counsel are not able to agree on costs, brief written submissions of no more than five pages may be served on the other party and filed with the court within the next 20 days.

Jacqueline A. Horvat
Released: March 4, 2025