Court File and Parties
Court File No.: CV-23-00697942-0000 Date: 2026-03-12
Ontario Superior Court of Justice
| RE: | |
| Geopro Consulting Ltd | |
| -- AND -- | |
| Damen Nyland |
Before: Justice Mathen
Counsel:
Nisar Patel, For the Plaintiff
Marie Sydney, for the Defendant
Heard: March 4, 2026
Endorsement on Motion
Overview
[1] This is a motion to strike out a statement of claim, without leave to amend. It is brought by the defendant, Damien Nyland.
[2] In 2019, Nyland, then a newly minted geoscientist, worked for the plaintiff, GeoPro Consulting Ltd., for six months before his employment was terminated for cause.
[3] Sometime in 2021, Nyland communicated with the Professional Geoscientists Association of Ontario (PGO). PGO is a self-regulating body for the geoscience profession in Ontario. Both parties are members. PGO's activities include investigations into member misconduct, and disciplinary complaints.
[4] On December 22, 2022, PGO advised GeoPro that it had started an investigation into the company. GeoPro says it realized that Nyland had provided information to the regulator.
[5] GeoPro sued Nyland on April 24, 2023.
[6] GeoPro claims $100,000 in damages and punitive, aggravated and exemplary damages of $50,000. In 2025, GeoPro sought Nyland's consent to file a fresh as amended claim seeking $1,000,000 in damages. Nyland has not consented to this amendment.
[7] Nyland's Statement of Defence states that his representations to PGO are protected by absolute privilege. Accordingly, all of GeoPro's allegations based on those representations "are not justiciable and any claims have no prospect of success."
[8] The Motion to Strike cites rules 1.04, 20.01(3), 20.04, 21.01(1)(a), 21.01(1)(b), 21.03(d), 25.11(b), 25.11(c) and 37 of the Rules of Civil Procedure R.R.O., 1990, Reg. 194.
[9] At the motion before me, Nyland's submissions focused on:
a. Rule 21.01(1)(a)
b. Rule 21.01(1)(b)
c. Rule 21.01(3)(d)
[10] Accordingly, in the order that they were presented to me, the issues are:
a. Do the pleadings disclose no reasonable cause of action? (Rule 21.01(1)(b))
b. Does one or more of the pleadings in the statement of claim raise a question of law that can be decided on this motion so as to dispose of all or part of the action? (Rule 21.01(1)(a))
c. Is the action frivolous, vexatious or otherwise an abuse of process of the court? (Rule 21.01(3)(d)?)
d. If the pleadings are struck, should the plaintiff have leave to amend?
[11] Briefly, I decline to strike the statement of claim under Rule 21.01(1)(a). However, the pleadings disclose no reasonable cause of action, and are an abuse of process. Consequently, the pleadings are struck without leave to amend.
[12] The plaintiff GeoPro is an Ontario corporation engaged in geoscientific activities. Throughout these proceedings it has been registered with the Professional Geoscientists Association of Ontario.
[13] At the time of his employment with GeoPro in 2019, the defendant Nyland was registered with the PGO as a Geoscientist-in-Training.
[14] The employment contract stated that Nyland's main responsibilities included coordinating various engineering projects and preparing field reports. Nyland was subject to various policies including personal vehicle use and expense reimbursement. He was also subject to a non-disparagement clause.
[15] Under the employment contract, Nyland could be fired for:
a. Violating health and safety requirements set by the law, bylaws and employer rules.
b. Performing work in a manner so as to endanger anyone's health and safety.
c. Working remotely when he was not authorized to do so.
d. Failing to keep confidential all non-public information pertaining to his employer's business.
[16] Nyland's employment was terminated November 2019. In early May, 2021, Nyland contacted or was contacted by PGO. Around that time, PGO started an investigation into the plaintiff.
[17] Under the Professional Geoscientists Act 2000, PGO can consider and investigate member conduct. PGO issued a "Final Investigative Notice" to GeoPro dated December 21, 2022. There is no dispute that GeoPro came to know that the regulator obtained at least some of the information from Nyland.
[18] GeoPro issued a Statement of Claim against Nyland on April 14, 2023. Paragraph 7 of the Claim states:
[A]fter the termination of his employment, Nyland made a complaint to GeoPro. Nyland made false statements and misrepresented the facts in retaliation for the termination of his employment. Without limitation, Nyland breached his employment contract and engaged in malicious conduct[.]"
[19] Nyland delivered a Statement of Defence on November 20, 2023 reserving his right to bring a motion to strike. GeoPro did not file a reply.
[20] Nyland filed a Notice of Motion on June 9, 2025.
[21] GeoPro sought to file a Fresh Amendment to Statement of Claim on July 14, 2025. Nyland did not consent. GeoPro filed an affidavit sworn by the company's president, David Liu, on August 18, 2025.
Analysis
[22] My findings are contained in the following analysis.
[23] I am mindful that, on Rule 21 motions, the court must read the impugned pleadings generously, in the light most favourable to the affected party. The court must not apply a standard of 'perfection' to the words or phrases used. Furthermore, given the mandatory direction in Rule 26 (discussed below), even when a motion to strike succeeds, a party normally can amend their pleadings.
Do the pleadings disclose no reasonable cause of action?
[24] Nyland argues that the claim discloses no reasonable cause of action because it relies on representations made to a quasi-judicial body that are protected by absolute privilege or immunity.
[25] GeoPro argues that Nyland's representations are protected by qualified privilege only, which can be defeated by malice and lies.
The Law
i. Rule 21.01(b)
[26] Rule 21.01(1)(b) permits the court to strike out a pleading that discloses no reasonable cause of action or defence.
[27] On such a motion, no evidence is admissible. A pleading will be struck if, assuming the facts pleaded to be true, it is plain and obvious that the pleading discloses no reasonable cause action -- that is, where it has no reasonable prospect of success. A motion can be brought pre-discovery, and even before a statement of defence is filed, where it is obvious from the defendant's pleading that the defendant takes issue with the sufficiency of the plaintiff's claim: Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 at paras. 8, 14 and 18.
ii. Absolute Privilege
[28] The doctrine of absolute privilege protects people from being sued for what they say in proceedings with high social value or utility, like Parliamentary hearings or trials. The doctrine prevents paralysis that would result if persons participating in such proceedings could be sued for what they say.
[29] The doctrine applies to:
a. complaints made to a quasi-judicial regulatory authority: Hamalengwa v. Duncan, 2005 CanLII 33575 (ONCA) at para. 8, leave to appeal to Supreme Court of Canada dismissed 2006 CanLII 4743 (SCC) -- including such bodies as an administrative committee of the University of Ottawa: Said v. University of Ottawa, 2013 ONSC 7186 and the College of Physicians and Surgeons of Ontario: Deep v. College of Physicians and Surgeons, 2010 ONSC 5248;
b. statements by witnesses and complainants: Amato v. Welsh, 2013 ONCA 258 at para. 34;
c. statements that are "oral or written, relevant or irrelevant, malicious or not": Amato, ibid; and
d. documents "properly used and regularly prepared for use in the proceedings": Amato, ibid.
Application
[30] For the following reasons, I am satisfied that Nyland's communications with the PGO are protected by absolute privilege.
[31] First, PGO is a quasi-judicial body. It is established under section 27 of the Professional Geoscientists Act, S.O. 2000, c.13, with a governing council comprised of a registration committee, a complaints committee and a discipline committee. PGO can investigate member conduct and determine if it constitutes professional misconduct. It may initiate a disciplinary proceeding leading to revocation or suspension of membership or certificate of authorization or other disciplinary measures imposed by the discipline committee. Appeals lie from such decisions to the Divisional Court.
[32] Accordingly, PGO's investigative and disciplinary functions are subject to absolute privilege and immunity from lawsuits.
[33] Second, PGO referred certain allegations of misconduct by GeoPro to the disciplinary committee pursuant to section 21 of the Act. Paragraph 7 of GeoPro's Statement of Claim states: "[A]fter the termination of his employment, Nyland made a complaint to PGO against GeoPro." GeoPro goes on to allege that Nyland "engaged in malicious conduct" particularized by sixteen additional statements (reproduced below). Eleven of those particulars refer to what Nyland revealed to PGO.
[34] After receiving the Statement of Defence invoking absolute privilege, the plaintiff did not file any reply.
[35] The parties dispute whether Nyland was a PGO complainant or a witness, but the scope of absolute privilege does not turn on that distinction.
[36] Third, having considered the plaintiff's arguments, I find none of them persuasive:
a. The plaintiff cites Amato v. Welsh for the proposition that absolute privilege does not cover malicious or collateral actions. The plaintiff's factum does not provide a pinpoint cite for this assertion and I could not find support for it in the decision. In Amato, the Court of Appeal quotes a definition of absolute privilege from Halsbury's Laws of England, vol. 28, 4th ed. (London, U.K.: Butterworths, 1997), at para. 97. That definition notes the possibility of a separate action for "malicious prosecution or the malicious institution or abuse of civil proceedings" which "may lie independently of the law of defamation." It is not clear if the plaintiff meant to rely on that sentence. If they did, the quoted portion does not overcome the rest of the definition, included in Amato, which confirms that even statements that are "malicious" are covered.
b. The plaintiff cites Isaac v. Tinney-Fischer et al., 2019 ONSC 6964. There, the Ontario Superior Court held that a complaint to the Law Society of Ontario was protected by absolute privilege regardless of the motive. Neither the factum nor the oral submissions clarify how Isaac supports the plaintiff's argument that absolute privilege is not at play in this case.
c. The plaintiff cites Cook v. Milborne, 2018 ONSC 419. In that case, the court found that, to the extent that a party's claims were based on testimony in litigation, "they are all subject to absolute immunity": para. 18. The court also considered the doctrine of qualified privilege, which applied to a statement made to police. This case does not support the plaintiff's argument.
d. The plaintiff cites Hill v Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130 at para. 56 for the proposition that otherwise defamatory statements expressed in court documents lose their privilege once they are published or broadcast in an extra-judicial forum. GeoPro argues that, because PGO publicized the complaint on its website, that constitutes "publication in an extra-judicial forum" which destroys the privilege. Paragraph 56 of Hill does not quite support the principle suggested by the plaintiff. Even if it did, I am not persuaded that PGO's website notice is apposite to the situation in Hill, where the defendant held a press conference that repeated the defamatory statements, something the Supreme Court found, if not necessarily malicious, "high-handed and careless": para 156. Finally, Hill involves the defence of qualified, not absolute privilege. In sum, the case does not assist GeoPro's argument.
e. The plaintiff insists that Nyland's representations to PGO are subject to only qualified privilege. If correct, that means that any privilege can be defeated if Nyland acted with malice. When I pressed the plaintiff to explain why PGO's investigative functions are not subject to absolute privilege, the plaintiff repeated its allegations about malice. I also asked the plaintiff to explain why the court should treat PGO differently from the Law Society of Ontario or the College of Physicians and Surgeons, both of whose investigative and disciplinary proceedings are protected by absolute privilege. The plaintiff did not have an answer.
[37] The law is clear. When a body like PGO acts as an investigator or in a disciplinary capacity, it is quasi-judicial. Accordingly, complainants and witnesses in those investigations cannot be sued for what they communicate to PGO.
[38] GeoPro is singularly focussed on Nyland's alleged malice and false statements. Even if those things were proved, neither disturbs the protection afforded Nyland's communications with PGO. The purpose of absolute privilege is not to protect those acting with ill intent. That is incidental to the doctrine's true role: "to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending action": Munster v Lamb (1883), 11 QBD 588, 607-8 (CA).
[39] Accordingly, I find that, to the extent that GeoPro's complaint is grounded in Nyland's representations to PGO, the complaint has no chance of success and must be struck.
Does one or more of the pleadings in the statement of claim raise a question of law that can be decided on this motion and the determination of which could dispose of all or part of the action?
[40] The defendant argues that any claims relating to Nyland's employment misconduct expired in 2021, two years after he was terminated. The plaintiff argues, among other things, that they did not discover the facts underlying the claim until they learned from the regulator what Nyland had told it.
The Law
[41] Rule 21.01(1)(a) allows a party to move for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs.
[42] No evidence is admissible on such a motion, and the pleading must be taken at face value. It must be plain and obvious that there is no reasonable cause of action.
[43] The issue must be one of law alone -- not one of fact, or mixed fact and law: Dugalin v. Canada (Attorney General), 2019 ONSC 6656 at paras. 12.
[44] The Court of Appeal has cautioned that, because of the factfinding they require, "limitations issues can rarely be decided on pre-trial motions to strike under Rule 21.01": Toussaint v. Canada (Attorney General), 2023 ONCA 117. A judge should address such issues "only where pleadings are closed and the facts relevant to the limitation period are undisputed": Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, 154 O.R. (3d) 587, at para. 31.
Application
[45] I decline to strike the plaintiff's statement of claim based on a limitations defence. Mindful of the Court of Appeal's caution, I find that the case does not justify that result.
[46] The reason is that parties disagree about what GeoPro knew about Nyland's employment when he was fired, and whether anything was discovered as a result of his interactions with the regulator. Those are questions of fact.
[47] In paragraph 7 of the Statement of Claim GeoPro argues that "Without limitation, Nyland breached his employment contract and engaged in malicious conduct including the following:
a. "Nyland falsely stated that he had no memory of reading or signing any statement related to the use of PPE as set out in the Geotechnical Field Technician Regulation he signed on June 18, 2019;
b. "Nyland made false misleading and malicious statements about the use of PPE at a GeoPro project located at Huron Airport Road which was under the supervision of the Ministry of Labor all times, which Nyland denied;
c. "Nyland made false statements to PGO that he worked at GeoPro for seven or eight months beginning at May, 2019 until November 2019, when in fact, Nyland started working at GeoPro on June 17, 2019;
d. "Nyland submitted false mileage claims including travelling mileage expenses in respect of work performed by other employees of GeoPro;
e. "Nyland improperly and falsely claimed that he prepared reports during his employment of 4 months with GeoPro, and yet he failed to provide any reports he claimed he prepared to PGO to confirm the reports Nyland claimed he prepared;
f. "Nyland was retained as a Junior Hydrogeologist and was not a supervisor of any employees, yet Nyland claimed the contrary;
g. "Nyland made false statements with respect to the use of plastic bottles by GeoPro during the testing process which Nyland stated he knew was wrong at the time but he never complained about the use of the plastic bottles while employed at GeoPro but only after the termination of his employment;
h. "Nyland refused to follow the direction of his superiors when employed at GeoPro including interfering with asbestos in a project at Huron Airport Road -- which he was told not to disturb.
i. "Nyland alleged that he had no knowledge of GeoPro's Standard Operating Procedure but subsequently contradicted his statement;
j. "Nyland denied that he signed the Field Technician Regulation dealing with the use of PPE, which was signed by Nyland on September 26, 2019;
k. "Nyland advised PGO that he had not undertaken Health and Safety training at GeoPro when he clearly had received such training;
l. "Nyland improperly took samples of contaminated soil, when he has been directed not to take samples for testing;
m. "Nyland attended at the North Toronto Gas Station project where he was assigned to conduct field measuring and sampling. Nyland's field data was "grossly inaccurate" as there was no basis of the information he provided.
n. "After the termination of his employment, Nyland improperly and illegally took possession a GeoPro report with respect to a project he was involved in, in breach of his employment contract and duties owed to GeoPro.
o. "Nyland signed the Hrydrogeological and Environmental Group Daily Duty Regulation (Field) and he acknowledged that a valid WHIMS Health & Safety Awareness certificates are required before working at GeoPro. Nyland maliciously claimed he did not receive such training.
p. "Nyland falsely denied receiving GeoPro's Chemical Testing Procedure which was provided to Nyland by GeoPro during his employment at GeoPro."
[48] The defendant Nyland argues that most of the particulars relate to things that he told the regulator. Nyland does acknowledge that points (d), (h), (l), (m) and (n) appear to relate to his job performance alone. But he says that, because the Statement of Claim does not plead discoverability, the fact that any particulars flowed from the complaint to PGO does not affect the limitations issue.
[49] It is true that the claim does not use the word "discoverability". However, reading the claim generously as I must, I find that paragraph 7 is capacious enough to include the allegation that it was only after PGO advised GeoPro of the investigation that the company learned certain additional facts about Nyland's work. That presents a question of discoverability, which is not compatible with a finding that the pleadings pose a question of law that can be resolved on their face.
[50] In addition, Rule 26 makes it extremely likely that the plaintiffs would be able to amend their pleadings.
[51] Therefore, having regard to the pleadings, the issue of discoverability and the restrictions on determining limitations issue pre-trial, the claim to strike out the pleadings under Rule 21.01(a), without leave to amend, is dismissed.
Is the action frivolous, vexatious or otherwise an abuse of process of the court?
[52] Nyland argues that the Statement of Claim is an abuse of process. The plaintiff strenuously resists this allegation.
The Law
[53] Rule 21.01(3)(d) provides as follows:
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that... (d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly.
[54] Abuse of process is established where, among other things, the proceedings violate the fundamental principles of justice underlying the community's sense of fair play and decency. The doctrine evokes the public interest in the proper administration of justice. The focus of abuse of process is less on the parties and more on the integrity of judicial decision making as a branch of the administration of justice: Phillion v. Ontario (Attorney General), 2014 ONCA 567 at paras. 29-30.
Application
[55] Acknowledging that the court must be cautious in finding an abuse of process, I am persuaded that GeoPro's conduct rises to that level.
[56] GeoPro's Statement of Claim is predicated on Nyland's complaint to a quasi-judicial body. GeoPro says Nyland's interactions with PGO were malicious, made in retaliation for being fired.
[57] When reading GeoPro's arguments, there is no doubt that the company believes that it was greatly wronged when its former employee went to the professional regulator who subsequently decided to launch an investigation.
[58] GeoPro is not an unsophisticated party. It was represented throughout these proceedings, albeit by different counsel.
[59] Nyland's Statement of Defence served early notice that he believed the claim had no chance of success to the extent it was based on representations protected by absolute privilege. GeoPro did not file a reply. At the motion, the company made arguments devoid of legal support, for example, that PGO is not a quasi-judicial body and that Nyland's communications are subject only to qualified privilege.
[60] GeoPro moves to amend its pleadings although it advised the court that its proposed fresh amended statement of claim may change. It attached to that statement of claim an affidavit by its President, David Liu. While I may not consider that affidavit in my analysis under Rule 21.01, in their submissions GeoPro and Nyland each referred to the affidavit in some depth. Therefore, I believe I can consider whether the affidavit sheds light on whether, in all the circumstances, GeoPro's conduct is an abuse of process.
[61] I believe that Liu's affidavit supports a finding that this entire claim is an abuse of process. Liu continues to insist that Nyland's representations to PGO are entirely in bad faith. A fair reading of the affidavit supports the argument that GeoPro's lawsuit against Nyland is retaliatory for his communications with PGO.
[62] At the hearing, counsel for GeoPro suggested that Nyland acted in collusion with other former employees who, in effect, created a web of lies to take GeoPro down.
[63] GeoPro's relentless focus on Nyland's interactions with PGO persuades me that the company wants to weaponize a person's legally protected communications with a quasi-judicial body against them. That weaponization tears at the fabric of the legal system, which this court is bound to safeguard.
[64] Therefore, having considered the context, circumstances and argument, I am persuaded that, to preserve the administration of justice, the Statement of Claim must be struck in its entirety.
If the pleadings are struck, should the plaintiff have leave to amend?
[65] Nyland asks that the pleadings be struck without leave to amend. GeoPro argues that such a remedy is not warranted.
The Law
[66] Rule 26.01 states:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[67] As explained by the Court of Appeal in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42 at para. 25, Rule 26.01 requires that leave to amend be granted unless: the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action.
[68] Even if a claim discloses no reasonable cause of action, it should not be struck without leave to amend except in the clearest of cases, for instance when the deficiencies in the pleading cannot cured by an appropriate amendment: Singh-Boutilier v Ontario College of Social Workers and Social Service Workers, 2015 ONSC 5297 at para. 27.
Application
[69] Approximately five particulars in the statement of claim -- para. 7 (d), (h), (l), (m), and (n) --raise potential issues of discoverability. In different circumstances, that would trigger the mandatory direction in Rule 26.
[70] However, I have determined that the great majority of the Statement of Claim discloses no reasonable cause of action, because it relies on communications protected by absolute privilege. Further, I am persuaded that the Statement of Claim is an abuse of process of the court.
[71] Accordingly, this case falls within the narrow band of exceptions to the otherwise mandatory direction to permit an amendment. In order to preserve the integrity of the legal process, the plaintiff must not be permitted to amend their pleadings.
Costs
[72] At the hearing the parties agreed that I could consider costs without requiring further submissions. I find it appropriate to make an award.
[73] Given my conclusion that the defendant's motion is granted, he is entitled to costs. I have found that the action was an abuse of process, which is one of the factors I can consider under Rule 57.
[74] Nyland's costs are $7,916.78. I have reviewed the bill and legal rate. The costs are reasonable. It is appropriate that GeoPro bear them in full.
Order
[75] In conclusion, I make the following order:
a. The defendant's motion to strike the plaintiff's statement of claim without leave to amend is granted.
b. The plaintiff shall pay costs fixed at $7,916.78 within 60 days.
c. An order shall issue on terms consistent with these reasons.
Mathen, J.
Date: March 12, 2026