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Metz v. Tremblay-Hall, 2006 CanLII 34443 (ON SC)
Date:
2006-10-13
File number:
CV-06-0160
Other citations:
53 CCEL (3d) 107 —[2006] OJ No 4134 (QL)
Citation:
Metz v. Tremblay-Hall, 2006 CanLII 34443 (ON SC), <http://canlii.ca/t/1prw6>, retrieved on 2019-09-03
COURT FILE NO.: CV-06-0160
DATE: 2006-10-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
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ELLAREE METZ,
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Dahlia V. Bateman and Frank Walwyn, for the Plaintiff
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Plaintiff
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JENNIFER TREMBLAY-HALL and THE LAW FIRM OFMCLEOD, BAXTER, TREMBLAY-HALL, and JOHN ROSSI, JACK SQUIRE and the CHILDREN’S AID SOCIETY OF ALGOMA,
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Malcolm G. McLeod, for the Defendants Jennifer Tremblay-Hall and The Law Firm of McLeod, Baxter and Tremblay-Hall
John J. Bruce, for the Defendants John Rossi, Jack Squire and the Children’s Aid Society of Algoma
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Defendants
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HEARD: August 22, 2006,
at Thunder Bay, Ontario
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Mr. Justice D. C. Shaw
Decision On Motions
[1] There are two motions before me to strike the Plaintiff’s Amended Statement of Claim under Rules 21.01, 25.06 and 25.11 of the Rules of Civil Procedure. One motion is brought by the Defendants, Jennifer Tremblay-Hall (“Tremblay-Hall”) and the law firm of McLeod, Baxter, Tremblay-Hall (“the Law Firm”). The other motion is brought by the Defendants, John Rossi (“Rossi”), Jack Squire (“Squire”) and the Children’s’ Aid Society (“the Society”).
Background:
[2] The Plaintiff is a lawyer who was called to the Ontario bar in 2003. In December 2003, the Plaintiff moved from Thunder Bay to Sault Ste. Marie, to take her first position as a lawyer, as in-house-counsel for the Society. The Plaintiff is ofAfrican-Canadian heritage. At the time material to this action, she was the only lawyer of African-Canadian heritage practicing in Sault Ste. Marie.
[3] The Plaintiff seeks general and aggravated damages of $1,000,000, special damages of $35,000 and punitive and exemplary damages of $200,000 against all Defendants. The Amended Statement ofClaim contains the following allegations:
10 On or about March 15, 2004, the Plaintiff was carrying out her duties at the courthouse in Sault Ste. Marie as lawyer for the Society when the Defendant, Tremblay-Hall, verbally attacked the Plaintiff by directly uttering at the Plaintiff a vicious and racist slur: “eenie meenie, minie moe, pick a nigger by the toe” in the presence of many other lawyers in the Barristers’ Lounge of the Superior and Ontario Courts of Justice in the City ofSault Ste. Marie, in the Province ofOntario.
11 On or about March 15, 2004, the Defendant, Tremblay-Hall after directly uttering the demeaning and vicious racist slur at the Plaintiff, pointed her finger directly at the Plaintiff, upon the Defendant, Tremblay-Hall uttering “nigger.”
12 On or about March 16, 2004, Defendant, Tremblay-Hall engaged in further racist, intimidating and harassing conduct by visiting the Plaintiff’s office at the Society, unannounced, for the purposes ofcommitting further harassing, intimidating and humiliating conduct against the Plaintiff.
13 On learning of the Defendant’s Tremblay-Hall conduct on or about March 15 and 16, 2004, the Firm later engaged in discriminatory, harassing and intimidating conduct against the Plaintiff.
14 The Defendants, Tremblay-Hall and the Firm continued to harass and intimidate the Plaintiff, including on or about April 22, 2004 advising the Plaintiff that the word “nigger” was a part of “our common experience as children.”
15 In May of 2004, the Defendant, Tremblay-Hall continued to harass and intimidate the Plaintiff in public by confronting the Plaintiff at a law social event and in the presence of other lawyers.
16 Throughout March 15, 2004 to May, 2004, both Defendants, Tremblay-Hall and the Firm, its authorized representatives and/or employees repeatedly engaged in conduct, including but not limited to defamation of the Plaintiff’s reputation in the legal community, discrimination and harassment which caused the Plaintiff, to suffer harm and psychological distress.
17 At all material times, Ms. Tremblay-Hall was acting within the course of her employment as a lawyer at the Firm.
18 As a result of the aforesaid harassment, intimidation and intentional infliction of mental suffering committed by the Defendants, Tremblay-Hall and the Firm, its authorized representatives and/or employees, the Plaintiff has suffered and/or continues to suffer harm and injury including:
a) Mental distress and anguish;
b) Loss of dignity, pride and self-esteem;
c) Humiliation and embarrassment;
d) Reasonable apprehension ofharm;
e) Psychological and emotionaltrauma;
f) Forgone career and educational opportunities;
g) Depression;
h) Loss of income and loss offuture income earning ability;
i) Impairment of sleep;
j) Loss of enjoyment of life.
19 The conduct of the Defendants, Tremblay-Hall and the Firm herein set forth in paragraphs 10 to 18 were discriminatory, intentional and persistent and carried out with malicious intent.
20 The course of the Defendant Tremblay-Hall’s conduct has damaged the Plaintiff by subjecting the Plaintiff to humiliation and emotional distress, by damaging the Plaintiff’s personal and professional reputation in the legal community, and by adversely affecting the plaintiff’s earning capacity.
21 All of the discriminatory, intimidating, humiliating and oppressive conduct referred to in paragraphs 10-18 herein, committed upon the Plaintiff by the Defendants, Tremblay-Hall and the Firm and/or other authorized servants, agents, representatives, and/or employees ofthe Firm, constitute harassment, intimidation and intentional infliction of mental suffering, the results ofwhich were or ought to have been foreseeable by the Defendants.
DEFENDANTS – THE SOCITY, ROSSI AND SQUIRE
22 At all times during her employment with the Defendant, Society, the Plaintiff was the only Black or African-Canadian lawyer in the Society in an office that employed a total of three (3) lawyers and one ofpossibly two Blacks or African-Canadian persons in the Society with a payroll of approximately 150 or more staff.
23 Throughout the Plaintiff’s employment at the Society from December 2003 to March 14, 2004, the Plaintiff was informed by the Defendant, Rossi that she was performing her work in a satisfactory manner and handling her cases very well on behalf of the Society.
24 The Defendant, the Society, is vicariously liable for the actions oftheir officials Rossi and Squire, who engaged in conduct which caused the Plaintiff distress and forced her to leave her employment at the Society and the City of Sault Ste. Marie.
25 Upon learning about the incident involving the Defendants, Tremblay-Hall and the Firm, the Defendants, the Society, and/or other authorized servants, agents, representatives, and/or employees ofthe Society, Rossi and Squire, engaged in conduct constituting constructive dismissal against the Plaintiff.
26 On or about March 15, 2004, the Defendant, Squire, commenced a mandatory meeting with the Plaintiff, and presented himself as acting as the Plaintiff’s supervisor, engaged in intimidating conduct to force the Plaintiff not to proceed with a complaint to Law Society and “affect the status quo of how things are dealt with in Sault Ste. Marie by the local Bar”.
27 On or about March 15, 2004 and notwithstanding the Plaintiff’s explicit instructions not to violate her privacy, the Defendant, Squire, sent an email to all senior management of the Society, advising Senior Management of the incident at the Court house earlier on or about March 15, 2004 between the Plaintiff and the Defendant, Tremblay-Hall, and further, that the Plaintiff was considering reporting the incident to the Law Society of Upper Canada.
28 The Defendant’s Squire unilateral actions on or about March 15, 2004 to Senior Management, violated the Plaintiff’s privacy, caused the Plaintiff undue distress and embarrassment.
29 Despite the Plaintiff’s repeated requests not to discuss the matter with the Plaintiff, the Defendant Squire, persisted with talking about the matter and continued to engage with intimidating behaviour, which caused the Plaintiff mental distress, the results of which were or ought to have been foreseeable by the Defendants Squire, Rossi and the Society.
30 On or about March 23, 2004, the Defendant Rossi advised the Plaintiff that the conduct of the Defendant, Tremblay-Hall on or about March 15, 2004 was “no biggie”, and “really this is Sault Ste. Marie, this is how we grew up” – further conduct which caused the Plaintiff additional distress, humiliation, loss of self-esteem, reputation and pride, the results which were or ought to have been foreseeable by the Defendant’s the Society, Rossi and Squire.
31 Throughout the course of the Plaintiff’s employment at the Society from March 15, 2004 to May 14, 2004, the Defendants, the Society, and/or other authorized servants, agents, representatives, and/or employees ofthe Society, Rossi and Squire repeatedly engaged in conduct, including but not limited to defamation of the Plaintiff’s reputation in the legal community, withdrawal of Society support staff services, exclusion from Legal Services Department functions and ceasing ofcommunication with the Plaintiff, which caused the Plaintiff, to suffer and/or to continue to suffer harm and injury including:
a) Mental distress and anguish;
b) Loss of dignity, pride and self-esteem;
c) Humiliation and embarrassment;
d) Reasonable apprehension of harm;
e) Psychological and emotionaltrauma;
f) Forgone career and educational opportunities;
g) Depression;
h) Loss of income and loss of future income earning ability;
i) Impairment of sleep;
j) Loss of enjoyment of life.
32 The above specified acts, referred to in paragraphs 24-32 herein, and others constituted a continuing pattern of conduct which created an offensive and hostile working environment and interfered with the Plaintiff’s ability to perform her duties at the Society.
33 As a result of hostile, caustic and unsupportive environment of the Society, in particular, the Legal Services Department, the Plaintiff was forced to tender her Letter ofResignation to the Society on or about April 30, 2004.
34 The conduct of the Defendants, the Society, and/or authorized servants, agents, representatives, and/or employees of the Society, Rossi and Squire herein set forth in paragraphs 24 – 31 were intentional and persistent and carried out with malicious intent.
35 All of the insulting, humiliating and oppressive conduct referred to in paragraphs 24 – 31 herein, committed upon the Plaintiff by the Defendants, Rossi, Squire, the Society and/or other authorized servants, agents, representatives, and/or employees ofthe Society, constitute the tort ofintentional infliction of mental suffering, the results which were or ought to have been foreseeable.
36 The course of conduct of the Defendants, the Society, and/or other authorized servants, agents, representatives, and/or employees ofthe Society namely Rossi and Squire, has damaged the Plaintiff by subjecting her to humiliation and emotionaldistress, by damaging her personal and professional reputation in the legal community, and by adversely affecting her earning capacity.
Liability of the Defendants
37 The Society is vicariously liable for the actions of their officials, Defendants Rossi and Squire, who engaged in conduct during the course of their employment, which caused the Plaintiff distress and forced her to leave her employment as In-House Legal Counsel with the Society and the City of Sault Ste. Marie.
38 All of the Defendants’ actions and consequential loss of employment have caused the Plaintiff, mental anguish, loss of reputation, dignity and pride, loss of income and entitling her to general and aggravated damages.
39 The conduct of the Defendants as hereinbefore set out showed reckless disregard of the Plaintiff’s well being, right to privacy and freedom from harassment, discrimination and intimidation. The Defendants’ conduct was calculating, discriminatory and arrogant, as they displayed a blatant disregard for the Plaintiff’s rights, for which the Plaintiff is entitled to an award of punitive and exemplary damages.
(a) defamation;
(b) intentional infliction of mental suffering;
(c) harassment and racial discrimination;
(d) intimidation; and
(e) violation of privacy.
General Principles of Pleading:
[5] As stated by Farley J. in National Trust Co. v. Furbacher, [1994] O.J. No. 2385, (Gen. Div.), at para. 9, pleadings have a three-fold function. They should:
(1) define with clarity the question in controversy between the litigants;
(2) give fair notice of the precise case which is required to be met and the precise remedies sought; and
(3) assist the court in its investigations of the truth and the allegations made.
[6] To this end, Rule 25.06 provides that a pleading shall contain a concise statement of the material facts upon which a party relies, but not the evidence by which those facts are to be proved. It also provides that conclusions of law may be pleaded only if the material facts supporting them are pleaded.
[7] Rule 25.11 provides that a pleading may be struck on the ground that it may prejudice or delay the fair trial of an action, is scandalous, frivolous or vexatious, or is an abuse of the process of the court.
[8] Rule 21.01 provides that a pleading may be struck on the ground that it discloses no reasonable cause of action or defence. The test to be applied on a motion to strike a pleading under Rule 21.01 is well settled:
(a) it must be plain and obvious that the claim discloses no reasonable cause ofaction;
(b) the material facts pleaded are to be taken as proven unless they are patently incapable of proof;
(c) neither the complexity of the issues, the novelty of the cause of action, nor the potential of a strong defence is to prevent a party from proceeding with its case; and
(d) a pleading should be read generously so as not to unfairly deprive a party of the benefit of the pleading.
(See Haskett v. Trans Union of Canada Inc., [2001] O.J. No. 4949 (S.C.J.), at para. 2; Balanyk v. University of Toronto, 1999 CanLII 14918 (ON SC), [1999] O.J. No. 2162 (S.C.J.), at paras. 22 and 30.)
[9] The extent to which material facts must be pleaded, and the consequences of a failure to plead those materials facts, are set out by Cameron J. in Balanyk v. University of Toronto, supra, at para. 29.
The plaintiff must plead all the material facts on which it relies and all of the facts which it must prove to establish a cause of action which is legally complete. If any fact material to the establishment of a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars.
[10] If at the time of pleading, a party does not have knowledge of the facts that support a cause of action, then it is inappropriate to make those allegations. It is not sufficient for a party to allege that the material facts are peculiarly within the knowledge of the opposing party or that it will determine facts as a result of examinations for discovery or in some other way that will support the allegations. (Region Plaza Inc. v. Hamilton – Wentworth (Regional Municipality), 1990 CanLII 6761 (ON SC), [1990] O.J. No. 589 (H.C.J.), Rosenberg J. at p. 7.)
Principles of Pleading Applicable to Particular Allegations:
Intentional Acts:
[11] Rule 25.06(8) requires that where fraud, misrepresentation, breach of trust, malice or intent are alleged, the pleading must contain full particulars of the allegations. In Balanyk v. University of Toronto (supra), at para. 28, Cameron J. states:
The full particulars of allegations offraud, breach of trust or misrepresentation required by Rule 25.06(8) must set out precisely what each allegation of such wrongful act is, and the when, what, by whom and to whom of the relevant circumstances: see Lana International Ltd. v. Menasco Aerospace Ltd (1996), 1996 CanLII 7974 (ON SC), 28 O.R. (3d) 343.
[12] It is not sufficient to allege unspecified acts of misconduct beyond specific examples set out in the claim. The party pleading should be limited to claims advanced only in respect of the particular acts that are identified in the pleading and are supported by material facts on the face of the pleading. (585080 Ontario Ltd. v. Toshiba Canada Ltd., [2002] O.J. No. 3038 (S.C.J.) at para. 17.)
Defamation:
[13] In an action for defamation, the Amended Statement of Claim must contain a concise statement of the following material facts:
1. the words complained of were published;
2. the publication was by the defendants;
3. the words complained of refer to the plaintiff; and
4. the words complained of, in their natural and ordinary meaning, as in some pleaded extended meaning, are defamatory of the plaintiff.
(See P. Lewis, Gathy on Libel and Slander, 8th ed. (London: Sweet & Maxwell, 1981) at p. 437; Moon v. Sher, [2003] O.J. No. 2464 (Ont. S.C.J.), at para. 10.)
[14] In Lysko v. Braley, 2006 CanLII 11846 (ON CA), [2006] O.J. No. 1137 (Ont. C.A.), at paras. 102 and 103, the Ontario Court of Appeal approved ofthe following statement in Raymond E. Brown in The Law of Defamation in Canada, 2nd ed. (looseleaf, updated 1999) (Toronto: Carswell, 1994) at s. 19.3(2)(a)(i):
The more modern rule is to permit a plaintiff to plead and prove words that are substantially but not precisely the same as those words which were spoken. It is not necessary for the plaintiff to plead or allege verbatim the exact words; it is sufficient if they are set out with reasonable certainty. Not every word must be provided if the variance or omission does not substantially alter the sense of the meaning of the words set out in the pleading. The test is whether the claim is sufficiently clear to enable the defendant to plead it. The words must be pleaded with sufficient particularity to enable the defendant to understand whether the words have the meaning as alleged or some other meaning, and to enter whatever defences are appropriate in light of that meaning. It is impossible to require absolute precision in the pleading of oral communications; it is sufficient if there is certainty as to what was charged. If the words proved are substantially to the same effect as those used in the pleading, the pleading should stand [Footnotes omitted.]
[15] With respect to the requirement that the words complained of are capable of defamatory meaning, Nordhermier J. stated in Asper v. Lantos(1999), 1999 CanLII 15102 (ON SC), 46 O.R. (3d) 238 (Ont. S.C.J.), at p. 247:
Words which merely injure the feelings or cause annoyance are generally not defamatory.
Intentional Infliction of Mental Suffering:
[16] In Prinzo v. Baycrest Centre for Geriatric Care(2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474, (Ont. C.A.) at p. 490, the Ontario Court of Appeal confirms the existence of the tort of intentional infliction of mental suffering, the elements ofwhich are:
(a) flagrant or outrageous conduct;
(b) calculated to produce harm; and
(c) resulting in a visible and provable illness.
[17] With respect to the second element, it suffices if there is a reckless disregard as to whether harm would ensue from the conduct, or the consequences are intended or the consequences must be known by the defendant to be substantially certain to follow. There is no requirement ofmalicious purpose to cause the harm or any motive of spite (See Prinzo; Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (BC SC), [1984] 3 W.W.R. 296 (B.C.S.C.) per McLachlin J. (as she then was); Zorn-Smith v. Bank of Montreal, [2004] C.L.L.C. 210 – 012 (Ont. S.C.J.), per Aitken J. at paras. 166-167).
[18] As appears from Prinzo and from Rahemtulla, the requirement of a “viable and provable illness,” does not meant that the absence of expert medical evidence will be fatal. In Rahemtulla, McLachlin J. held, at para. 56, that notwithstanding there was no evidence from a doctor, she was satisfied that the plaintiff suffered depression accompanied by symptoms of physical illness. To similar effect is the decision of Molloy J. in Tran v. Financial Debt Recovery Ltd., 2000 CanLII 22621 (ON SC), [2000] O.J. No. 4293 (Ont. S.C.J.) at para. 37. In that case, the plaintiff testified that repeated, harassing, offensive telephone calls from a collection agency had caused him emotionalsuffering, anxiety, depression, humiliation. He was unable to concentrate, had memory problems and lost weight. The plaintiff did not seek medical help, but tried to deal with his emotional state through meditation and physical exercise. Molloy J. held that just because the plaintiff was not the type to turn to a doctor for help, did not mean he was not suffering and that it was not necessary that emotional harm amount to a psychiatric condition before it could be compensable.
Harassment and Racial Discrimination:
[19] The Amended Statement of Claim contains references to racist, discriminatory and harassing conduct.
[20] In the seminal case of Seneca College ofApplied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181 (S.C.C.), Laskin J. held:
… not only does the (Ontario Human Rights Code) foreclose any civil action based directly upon a breach thereof but it also excludes any common law action on an invocation of the public policy expressed in the Code.
[21] However, it is too broad to state that Bhadauria precludes any common law action based on racial harassment or discrimination. In Y.S. v. H. & R. Property Management Ltd., [1999] O.J. No. 5588 (Ont. S.C.J.), at p. 4 Sutherland J. pointed out that where the whole action is based upon the Ontario Human Rights Code, with no pleading of a common law right of action, the decision of the Supreme Court of Canada had determined that recourse was to the Human Rights Commission, exclusively, because the legislation foreclosed recourse to the court for such breaches of the Code, except by way of appeal from the commission. Sutherland J. stated that Bhadauria would not, however, be a bar to a claim of harassment if an independent cause of action was made out, on the authority ofL’Attiboudeaire v. Royal Bank of Canada, 1996 CanLII 1411 (ON CA), [1996] O.J. No. 178 (Ont. C.A.). In L’Attiboudeaire the plaintiff brought an action for constructive wrongful dismissal. The plaintiff was of African-Caribbean heritage. He alleged that he was subject to “racist dehumanizing, derogatory and sexist comments” by the defendant, which conduct resulted in his constructive dismissal. The plaintiff pleaded that the conduct of the defendant was in contravention of, among other things, the Canadian Human Rights Act. The defendant brought a motion to dismiss the action on the basis ofBhadauria. The Court of Appeal distinguished Bhadauria because the cause of action in L’Attiboudeaire was based on breach of the plaintiff’s employment contract with the defendant, not on a breach of the Canadian Human Rights Act nor on an invocation of public policy expressed in that Act.
[22] Allegations of racial harassment or discrimination are therefore permissible in a pleading founded upon an independently actionable wrong, as material facts in support ofthat independent cause of action, but they are not permissible as causes of action per se.
Intimidation:
[23] The Divisional Court in Daishowa v. Friends of the Lubican (1996), 1996 CanLII 11767 (ON SC), 27 O.R. (3d) 215 (Div. Ct.) at p. 231, set out the elements for the tort of intimidation:
(a) coercion of another to do or refrain from doing an act;
(b) the use of a threat or a means of compulsion;
(c) the threat must be to use unlawful means;
(d) the person threatened must comply with the demand;
(e) intention to injure the person threatened; and
(f) the person threatened must suffer damage.
[24] Only where the defendant tries to mould the conduct of the plaintiff by threatening to do something illegal and produces the effect he desires, will the tort of intimidation be established (See G.H.L. Fridman, The Law of Torts in Canada, 2d ed. (Toronto: Carswell, 2002, at p. 784). Material facts must be pleaded to support each element ofthe tort.
Violation of Privacy:
There is a question as to the status of the tort ofinvasion of privacy in Canada. In Allen M. Linden, Canadian Tort Law, 7th ed. (Toronto: Butterworths, 2001), the author states at p. 56: “Although the right to privacy is well entrenched in American tort law, the Canadian and English courts have been reluctant to recognize a separate right to privacy.” In Tran v. Financial Debt Recovery Ltd. (supra),Molloy J. found that the facts of that case were sufficient to warrant damages for the tort ofinvasion of privacy. Molloy J. held:
Although this cause of action is a relatively receiving innovation in the law of torts, there are numerous decisions which have recognized its validity: Allen M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at pp. 55-59; Motherwell v. Motherwell (1976), 1976 ALTASCAD 155 (CanLII), 73 D.L.R. (3d) 62 (Alta. C.A.); Saccone v. Orr (1982), 1981 CanLII 1708 (ON SC), 34 O.R. (2d) 317 (Co. Ct.); Lipeac v. Borsa, [1996] O.J. No. 3819 (Gen. Div.); Garrett v. Mikalachki, [2000] O.J. No. 1326 (Sup. Ct.). There have also been cases in which the tort of invasion of privacy has been used to find liability in the context of harassment by a debt collector: C.R.B. Dunlop, Creditor-Debtor Law in Canada, 2nd ed. (Toronto: Carswell, 1994) at 55-59; S.A. Nagy Farm Ltd. v. Repsys, [1987] O.J. No. 1987 (Dist. Ct.); Palad v. Pantaleon,[1989] O.J. No. 985 (Dist. Ct.); Dawe v. Nova Collection Services (Nfld.) Ltd., [1998] N.J. No. 22 (Nfld. Prov. Ct.).
[25] However, the Ontario Court of Appeal in Euteneier v. Lee (2005), 2005 CanLII 33024 (ON CA), 77 O.R. (3d) 621 (Ont. C.A.), at p. 637, commented that the appellant had “properly conceded in oral argument before this court that there is no ‘free standing’ right to dignity or privacy under the Charter or at common law.”
Aggravated and Punitive Damages:
[26] The Supreme Court of Canada has addressed the issue of aggravated and punitive damages in the context of a wrongful dismissal action in Vorvis v. Insurance Corporation of British Columbia (1989) 1989 CanLII 93 (SCC), 58 D.L.R. (4th) 193 (S.C.C.) and Wallace v. United Grain Growers Ltd. (1997), 1997 CanLII 332 (SCC), 152 D.L.R. (4th) 1 (S.C.C.).
[27] In Vorvis, McIntyre J. distinguished between aggravated damages and punitive damages at p. 202:
Aggravated damages are awarded to compensate for aggravated damage. As explained by Waddams, they take account for intangible injuries and by definition will generally augment damages assessed under the general rule relating to the assessment ofdamages. Aggravated damages are compensatory in nature and may only be awarded for that purpose. Punitive damages, on the other hand, are punitive in nature and may only be employed in circumstances where the conduct give the cause for complaint is of such a nature that it merits punishment.
[28] McIntyre J. held that in a wrongful dismissal action, generally, aggravated damages would arise only where the acts complained of were also independently actionable. He stated that while punitive damages may be awarded in cases ofbreach of contract, it would be rare to find a contractual breach that would be appropriate for such an award.
In conclusion, it seems to me that the general principle underlying Vorvis is that damages for wrongful dismissal area confined to damages for breach of the implied obligation on the part of the employer to give reasonable notice. Unless the manner oftermination increased the time required to find new employment and hence the notice period, damages for manner of dismissal must be grounded in an independent cause ofaction.
[30] McLachlin J. then discussed the availability of other remedies to deal with employer misconduct in the manner of dismissal not affecting prospects of re-employment. She stated, at p. 44:
The law of tort recognizes a number of independent causes of action for misconduct in dismissing an employee. If the employer defames the employee or wilfully inflicts mental distress, the employee can sue in tort.”
Analysis:
[31] For the reasons to follow, I am of the opinion that with the exception of paragraphs 17, 22, 23, 27 and 28 of the Amended Statement ofClaim, all the paragraphs of the Amended Statement of Claim from paragraph 12 to 39, inclusive should be struck.
Intentional Acts:
[32] Paragraphs 12 through 39 of the Amended Statement of Claim, other than paragraphs 17, 22 and 23, contain allegations of deliberate and serious misconduct on the part of all, or some, ofthe defendants. In addition, the Amended Statement of Claim alleges deliberate and serious misconduct on the part of unnamed servants, agents, representatives and/or employees of firstly, the Law Firm, in paragraph 21 and, secondly, the Society, in paragraphs 25, 31, 34, 35 and 36.
[33] Rule 25.06(8) requires full particulars ofallegations of intentional acts (which these allegations of deliberate and serious misconduct most certainly are). As noted by Cameron J. in Balanyk (supra), the full particulars must set out precisely what each allegation of such wrongful act is, and the when, what and by whom of the relevant circumstances.
[34] Paragraph 12 gives no particulars of the “further racist intimidating and harassing conduct” in which Tremblay-Hall is alleged to have engaged on or about March 16, 2004 at the Plaintiff’s office.
[35] Paragraph 13 gives no particulars of the “discriminatory, harassing and intimidating conduct” in which the Law Firm is alleged to have engaged.
[36] Paragraph 14 alleges that Tremblay-Hall and the Law Firm “continued to harass and intimidate” the Plaintiff, including advising the Plaintiff on or about April 22, 2004 that the word “nigger” was part of “our common experience as children.” As stated in 585080 Ontario Ltd., v. Toshiba (supra), it is not sufficient to allege unspecified acts ofmisconduct beyond specific examples set out in the claim. The Plaintiff must identify the particular acts to which she refers that are in addition to the April 22, 2004 incident.
[37] Paragraph 15 gives no particulars of the alleged confrontation of the Plaintiff at a law social event in May 2004.
[38] Paragraph 16 is completely lacking in particulars with respect to allegations “including but not limited to defamation of the Plaintiff’s reputation in the legal community, discrimination and harassment” by not only Tremblay-Hall and the Law Firm, but by the Law Firm’s representatives and employees. It would be impossible for Tremblay-Hall and the Law Firm to plead to this other than by way of general denial.
[39] Paragraph 18 refers to the previously unparticularized allegations of misconduct ofTremblay-Hall and the Law Firm, and the Law Firm’s representatives and employees.
[40] Paragraph 19 also refers to the previously unparticularized conduct of Tremblay-Hall and the Law Firm. The exception is the reference to paragraphs 10 and 11, which paragraphs do contain sufficient particulars and which are not included in the paragraphs which I have determined should be struck.
[41] Paragraph 20 refers to “the course of the Defendant Tremblay-Hall’s conduct,” which would include the conduct alleged in impugned paragraphs 12, 14, 15, 16 and 18.
[42] Paragraph 21, relating to the alleged misconduct of Tremblay-Hall, the Law Firm and the servants, agents, representatives and employees of the Law Firm incorporates paragraphs 12, 13, 14, 15, 16 and 18, which cannot stand, so paragraph 22 too must fall.
[43] Paragraph 24 does not give particulars ofthe alleged “conduct which caused the Plaintiff distress and forced her to leave her employment and the City of Sault Ste. Marie.”
[44] Paragraph 25 refers to unparticularized conduct “constituting constructive dismissal” by the Society, Rossi, Squire and by unnamed servants, agents, representatives and/or employees of the Society. This could only be met with a general denial.
[45] Paragraph 26 alleges Squire engaged in “intimidating conduct to force the Plaintiff not to proceed with a complaint to the Law Society.” There are no particulars of the intimidating conduct.
[46] Paragraph 29 alleges, without particulars, that Squire “continued to engage in intimidating behaviour.”
[47] Paragraph 31 alleges repeated conduct over the course of March 15, 2004 to May 14, 2004 by “the Defendants, the Society, and/or other authorized servants, agents, representatives, and/or employees of the Society, Rossi and Squire” “including, but not limited to” certain specified conduct. Again, it is not sufficient to allege unspecified acts of misconduct beyond examples set out in the claim. No particulars are given for the alleged tort of defamation.
[48] Paragraphs 32, 34 and 35 refer to the conduct in paragraphs 24 to 31. By reason of the fact that paragraphs 24, 25, 26, 29 and 31 do not contain sufficient particulars, paragraphs 32, 24 and 35 which rest on those paragraphs must be struck.
[49] Paragraph 36 refers to the “course ofconduct” of “the Defendants, the Society, and/or other authorized servants, agents, representatives, and/or employees of the Society namely Rossi and Squire.” The course of conduct has not been sufficiently particularized.
[50] Paragraph 37 does not provide particulars of the conduct of Rossi and Squire which allegedly caused the Plaintiff distress and caused her to leave her employment and Sault Ste. Marie.
[51] Paragraph 38 refers to “All of the Defendants’ actions.” Paragraph 39 refers to “The conduct of the Defendants as hereinafter set out.” These actions and conduct, as noted, are not set out with sufficient particulars.
[52] In Adams-Smith v. Christian Horizons (1997), 14 C.P.C. (4th) 78 (Ont. Gen. Div.) where pleadings which were insufficiently coherent and organized were struck out, Molloy J. stated at pp. 81-82:
The balance of the defendant’s motion to strike relates to a lack ofparticularity. Here I am in agreement with the position taken by counsel for the defendant, that the pleading as a whole is not sufficiently coherent and particularized to enable the defendant to plead to it. … It is difficult to simply order particulars of these kinds ofdeficiencies and still come out with a coherent and understandable pleading. … the main difficulty is that there is no identification of which factual allegations relate to which causes of action. It may be the case that some factual components will relate to more than one cause ofaction or even all of the causes ofaction, but this is not apparent from the pleading as it is presently constituted. It would be of great assistance if the Statement of Claim was organized in categories identifying specifically what causes of action are alleged and which facts are pleaded to support each of those causes ofaction.
Defamation:
[53] Paragraph 16 of the Amended Statement ofClaim alleges that throughout March 15, 2004 to May 2004, Tremblay-Hall, the Law Firm and unnamed representatives and/or employees of the Law Firm repeatedly engaged in conduct, including but not limited to, “defamation” of the Plaintiff. Paragraph 31 of the Amended Statement of Claim alleges that from March 15, 2004 to May 14, 2004, “the Defendants, the Society, and/or other authorized servants, agents, representatives, and/or employees of the Society, Rossi and Squire” repeatedly engaged in conduct including but not limited to “defamation” of the Plaintiff.
[54] The fact that the period encompassed by the allegations is from March 12, 2004 to May 2004, in paragraph 16, and from March 15, 2004 to May 14, 2004, in paragraph 31, and that the defamation is alleged to have occurred “repeatedly” and to have been engaged in by all the Defendants, as well as by representatives, employees, servants and agents ofthe Defendants, would necessarily lead to the conclusion that the alleged defamation goes beyond the facts alleged in paragraphs 10, 11 and 14. As stated in Brown, The Law of Defamation in Canada (supra), the test is whether the claim is sufficiently clear to enable the Defendants to plead to it.
[55] It would not be possible for the Defendants, or any of them, to enter any defence to the allegations of defamation. They are unable to tell from the pleadings what are the alleged defamatory words, where they were published, who published them, to whom they were published and whether the words are defamatory of the Plaintiff.
[56] I do not hold that the Plaintiff cannot claim for defamation with respect to the racist slur referred to in paragraph 10 of the Amended Statement of Claim. However, as presently framed, the Plaintiff’s claim is not sufficiently clear to enable the Defendants to plead to allegations ofrepeated defamation by various individuals.
Intentional Infliction of Mental Suffering:
[57] In paragraphs 18 and 21, the Plaintiff alleges the tort of intentional infliction of mental suffering which she says was committed by Tremblay-Hall, the Law Firm and by representatives and employees of the Law Firm. In paragraph 35, the Plaintiff alleges intentional infliction of mental suffering by the Defendants, Rossi, Squire and the Society and other servants, agents, representatives and/or employees of the Society.
[58] The Plaintiff has failed to plead, with the requisite particulars, each element of the alleged intentional infliction of mental suffering as set out in Prinzo (supra), which she alleges occurred during the period March 15 to May, 2004. While, for example, the allegations in paragraphs 10 and 11 of the Amended Statement of Claim are particularized, and may well provide the basis for a claim for intentional infliction of mental suffering, the allegations in paragraphs 18, 21 and 35, which refer to the tort of intentional infliction ofsuffering, go well beyond the particulars provided in paragraphs 10 and 11 and leave the Defendants to guess at what was said or done, when, where, how and by whom.
Harassment and Discrimination:
[59] The racist slurs referred to in the Amended Statement of Claim cannot stand alone as actionable torts. The law does not recognize tortsof harassment or racial discrimination. The proper recourse for racial harassment or discrimination is the Ontario Human Rights Code where the Ontario Human Rights Commission has been entrusted with exclusive jurisdiction to determine the merit ofsuch a complaint. However, allegations of racist slurs may be material facts, if properly pleaded, in support of recognized independently actionable wrongs. For example, if the Plaintiff claims for defamation, intentional infliction of mental suffering, intimidation and wrongful dismissal, then she may allege harassment and discrimination in support of those independent wrongs.
[60] The tort of intentional infliction of mental suffering requires “flagrant or outrageous conduct” calculated to produce harm and resulting in a visible or provable illness. Tremblay-Hall and the Law Firm submit that the utterance of racial slurs could not satisfy the objective requirement offlagrant and outrageous conduct. Tremblay-Hall and the Law Firm, make reference to the policy expressed in Linden, Canadian Tort Law (supra):
Not every insult hurled will yield tortliability. The court cannot protect us from every practical joke or unkind comment. It is not yet tortious to embarrass or swear at another person, even if it upsets that person. Free speech requires that individuals be permitted to express unflattering opinions about one another. It is better for humans to develop tougher hides than to seek damages for every insult.
[61] I disagree with the submission that the utterances in question could not fall within the description “flagrant and outrageous.” I am of the view that a trial judge could consider whether those utterances, in the context of the facts pleaded, did go beyond the policy described in Linden and were flagrant and outrageous. The Plaintiff should not be precluded from properly pleading intentional infliction of mental harm based on the utterances.
Intimidation:
[62] The Plaintiff pleads intimidation in paragraphs 13, 14, 15, 21, 29 and 39. The pleadings completely fail to provide the particulars to satisfy the required elements of this tort as set out in Daishowa (supra) and Fridman (supra).
[63] There are no particulars with respect to threats or other means of compulsion, or the use of unlawful means, or intention to injure or that there was an attempt to mould the conduct of the Plaintiff which produced the desired effect.
Violation of Privacy:
[64] Rossi, Squire and the Society, submit that the tort of invasion of privacy is not recognized in Ontario, and they rely on the comment of the Court of Appeal in Euteneier that there is no ‘free standing’ right to privacy under the Charter or at common law. Mindful that the novelty of the cause of action should not prevent a party from proceeding with its case, I would not at the pleading stage deprive the Plaintiff of the benefit of claiming an invasion of privacy, as she does in paragraphs 27 and 28 of the Amended Statement of Claim. Rossi, Squire and the Society submit that the Plaintiff had no reasonable expectation ofprivacy in the circumstances and, further, that if Rossi, Squire are alleged to be the Plaintiff’s managers, they were then under an obligation to inform the Society of the incident at the courthouse on March 15, 2004. My response is that Rossi, Squire and the Society can plead these submissions as defences. However, these defences are not in themselves a bar to the right of the Plaintiff to properly plead the tort.
Aggravated and Punitive Damages:
[65] Rossi, Squire and the Society submit that the Plaintiff has failed to plead any tort or independently actionable wrong provable in law upon which a claim for punitive damages must be based. I disagree, to this extent: the Plaintiff has pleaded the torts of defamation, intentional infliction of mental suffering, and intimidation, which would allow a claim for punitive, and aggravated damages. The problem is that the Plaintiff has not properly pleaded, with sufficient particularity, the material facts to support those torts. In the circumstances, the Plaintiff’s claim for aggravated and punitive damages therefore cannot stand, as drafted. It is open to the Plaintiff, if the torts are properly pleaded, to advance a claim for aggravated and punitive damages.
Relief Against Joinder:
[66] Rossi, Squire and the Society submit that an order should be granted separating into two different actions the claims against Tremblay-Hall and the Law Firm, on the one hand, and the claims against Rossi, Squire and the Society on the other hand.
[67] Rule 5.05 provides that where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party the court may, among other things, require one or more of the claims to be asserted in another proceeding. There is no evidence before me that the joinder of the parties may “unduly complicate or delay the hearing” or cause” undue prejudice” to the Defendants. I therefore have no basis upon which to find at this very early stage in the proceedings that the pleadings offend the rule.
Conclusion:
[68] As stated by Cameron J. in Balanyk (supra) at para. 29, the remedy for a defective pleading is a motion to strike the pleadings, not an order for particulars. In view of my decision that most of the allegations against the Defendants in the Amended Statement of Claim cannot stand, I believe it appropriate to strike out the pleading in its entirety, with leave granted to the Plaintiff to deliver a Fresh as Amended Statement of Claim. The Fresh as Amended Statement of Claim is to be served with 45 days of the release of these reasons and may be served on the solicitors of record for the Defendants. The Defendants shall have 30 days from the date of service of the Fresh as Amended Statement of Claim within which to served and file their Statements of Defence.
[69] If the parties are unable to agree on costs, I will receive written submissions with 30 days.
___________________________
The Hon. Mr. Justice D. C. Shaw
Released: October 13, 2006
COURT FILE NO.: CV-06-0160
DATE: 2006-10-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ELLAREE METZ,
Plaintiff
- and –
JENNIFER TREMBLAY-HALL and THE LAW FIRM OF MCLEOD, BAXTER, TREMBLAY-HALL, and JOHN ROSSI, JACK SQUIRE and the CHILDREN’S AID SOCIETY OF ALGOMA,
Defendants
DECISION ON MOTIONS
Shaw J.
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Released: October 13, 2006
/mls
This decision has been made publicly available by the Société québécoise d'information juridique in 2006.
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