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Civil Litigation - Pleadings - Particularity. 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp.
In 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp. (Ont CA, 2022) the Court of Appeal considered the adequacy of pleadings:[32] Still further, the trial judge never addresses the salient fact that a breach of fiduciary duty was never pleaded in the statement of claim as a separate cause of action. In that regard, it is insufficient that an alleged breach of a fiduciary duty was pleaded as a particular of the civil conspiracy claim. Breach of fiduciary duty is a stand-alone cause of action and must be pleaded as such if it is to found liability on a defendant – see r. 25.06(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. No such pleading was made but nonetheless the trial judge both finds a fiduciary duty and a breach of that duty and uses that as a basis for finding liability. . Khan v Lee
In Khan v Lee (Ont CA, 2014) the Court of Appeal commented as follows on the degree of particularity required in Claims, an issue of importance to motions to strike brought under R21.01(1) and R25.11:[11] Each of the parties relies on a Superior Court decision. These decisions, dealing with similar pleadings, are conflicting. The respondent submits that the motion judge was correct to rely on Basdeo. The appellants argue that the motion judge ought to have applied Chenier v. Hôpital Général de Hawkesbury, [2006] O.J. No. 1679 (S.C.), which held that similar pleadings were sufficient.
[12] I do not agree with Basdeo, and prefer the reasoning in Chenier.
[13] I agree with the observation of Aitken J. in Chenier, at para. 21:At this early stage in the litigation process, it would be placing an unduly onerous burden on the Plaintiffs to describe in detail what transpired or did not transpire at all of these points in time. The Defendants are in the position of knowing with great particularity what was done or not done by way of treatment and intervention. The Plaintiffs will only be able to further particularize their allegations once any records that have been disclosed to them by the Defendants are further supplemented with responses given on discovery. The Plaintiffs cannot be expected to have retained their own medical experts to assist in particularizing their allegations regarding a breach of a standard of care by the Defendant Physicians before those experts would have access to all available information as to what actually happened at the time of Sacha’s birth. [14] It is noteworthy that the defendant physician did not at any stage swear in an affidavit that he was unable to plead a defence.
[15] Presumably, the defendant would be aware of the standard of care at the relevant time. He has his office chart and the hospital records, so he would know what he did or did not do. His interactions with the patient over the period of the pregnancy are discrete and identifiable, over a relatively short period.
[16] As acknowledged by the respondent in oral argument, the effect of the motion judge’s order is to require a plaintiff in a case like this one to obtain an expert opinion before pleading, in the absence of full information about the case. While getting an early opinion might be useful and prudent, it should not be required as a condition of starting an action. Many plaintiffs will not have the expertise required to plead with precision the exact tests a defendant should have ordered.
[17] Furthermore, a limitation period will begin to run when a plaintiff has “sufficient facts upon which she could allege negligence”, and, in some cases, before the plaintiff has expert opinion evidence or knows the precise cause of the injury: Lawless v. Anderson, 2011 ONCA 102 (CanLII), 276 O.A.C. 75, at para. 36.
[18] In Lawless, at para. 36, the court approvingly cited the following passage from McSween v. Louis (2000), 132 O.R. 304 (C.A.), at para. 51: “the production and discovery process and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants.”
[19] Rule 1.04(1) provides that “[t]hese rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” To strike a statement of claim in the circumstances of this case would significantly impede rather than facilitate access to justice, an important value emphasized in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87.
[20] Further, I also observe that, contrary to the views expressed by the motion judge, at para. 18, and in Basdeo, at para. 19, the Rules of Civil Procedure do differentiate between causes of action in respect of the requirements for pleadings. Rule 25.06(8) provides: “Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars….”
[21] In my view, the motion judge erred in striking the statement of claim. In the circumstances of this case, the pleading contains a sufficient statement of the material facts to enable the respondent to deliver a statement of defence. . Chowdhury v. Exquisite Bay Development Inc. [against corporate directors]
In Chowdhury v. Exquisite Bay Development Inc. (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here against a "motion(s) to strike the statement of claim under r. 21.01(1)(b)" ['no reasonable cause of action or defence']:[8] .... He also observed that a pleading advanced against directors of a company, as in this case, must be examined carefully with a high level of scrutiny: ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 CanLII 1527 (ON CA), 43 O.R. (3d) 101 (C.A.). . Singh v Trump
In Singh v Trump (Ont CA, 2016) the Court of Appeal set out that a limitation defence must be expressly pleaded:[130] The motions judge found that Mrs. Lee’s negligent misrepresentation claim was barred by the Limitations Act. He did so despite the fact that the defendants had not pled the Limitations Act and had not sought to amend their pleading to include such a plea. Although they raised the issue in oral submissions, the defendants had not raised it in the factum filed on the summary judgment motions.
[131] In his reasons the motions judge neither refers to the fact that it was not pleaded nor does he explain why, in the absence of such a plea, he should nonetheless invoke the Act.
[132] This court has consistently held that “[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence”: Collins v. Cortez, 2014 ONCA 685 (CanLII), [2014] O.J. No. 4753, at para. 10, per van Rensburg J.A. (citing S. (W.E.) v. P. (M.M.) (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70 (C.A.), at paras. 37-38, leave to appeal to S.C.C. refused, [2001] 149 O.A.C. 397). This requirement is embodied in rule 25.07(4) of the Rules of Civil Procedure, which Ontario courts have consistently held “applies to pleadings relating to limitations that might bar an action”: S. (W.E.) v. P. (M.M.), at para. 37. Rule 25.07(4) provides as follows:In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading. [133] Justice Cronk explained the rationale behind the requirement that a party specifically plead a limitation period defence in Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826 (CanLII), 225 A.C.W.S. (3d) 237, at para. 69:The failure to raise substantive responses to a plaintiff's claims until trial or, worse, until the close of trial, is contrary to the spirit and requirements of the Rules of Civil Procedure and the goal of fair contest that underlies those Rules. Such a failure also undermines the important principle that the parties to a civil lawsuit are entitled to have their differences resolved on the basis of the issues joined in the pleadings. [134] In S. (W.E.) v. P. (M.M.), MacPherson J.A. confirmed that Ontario courts “have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action”: at para. 37. He went on to explain that even though in that case the trial judge had given counsel time to prepare submissions on the issue after he raised it during closing arguments, it did not remove the potential prejudice to P:If S had raised the issue in his pleadings, P might have tried to settle, or even have abandoned, her counterclaim. Either decision might have had costs consequences. Another potential source of prejudice arises from the fact that counsel for P might have adopted different tactics at trial. In particular, counsel might have called different or additional evidence to support an argument that the discoverability principle applied (at para. 38). [135] MacPherson J.A. also noted that at no time during trial, including during closing arguments when the trial judge raised the limitation issue, did S seek to amend his pleadings. Nor did he seek such an amendment during the appeal hearing.
[136] In my view, the defendants’ failure, in this case, to plead a Limitations Act defence or even to seek an amendment to their pleading to do so is, as it was in S. (W.E.) v. P. (M.M.), fatal. . Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada)
In Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada) (Ont CA, 2017) the court stated this with respect to the particularity of pleadings required in a malfeasance in public office claim, and otherwise in pleadings, where the plaintiff may not know the identities of all persons involved in the causation of their damages at the Claim-drafting stage:[88] This court’s decision in Granite Power Corp. v. Ontario (2004), 2004 CanLII 44786 (ON CA), 72 O.R. (3d) 194 (C.A.), leave to appeal refused, [2004] S.C.C.A No. 409, supports the argument that the failure to name specific people within an organization may not necessarily result in a misfeasance claim being struck. In Granite Power, it was simply pleaded that the “Minister and/or his offices and staff” had acted with misfeasance. This court concluded the claim should not be struck even though it suffered from “a lack of clarity and precision”: para. 34. This court held that there existed “a narrow window of opportunity for Granite to make out its claim of misfeasance” and that “[r]egardless of how difficult it may be to establish, Granite should not be ‘driven from the judgment seat’ at that juncture of the proceeding": paras. 40, 42.
[89] Cases such as the following reflect an acknowledgment that, at the outset of litigation, a plaintiff may not be privy to information about the internal workings of an organization and which particular individual or individuals within an organization may have taken or failed to take a particular action: Capital Solar Power Corp. v. Ontario Power Authority, 2015 ONSC 2116 (CanLII), at paras. 13-14; Swift Current (City) v. Saskatchewan Power Corp., 2007 SKCA 27 (CanLII), 293 Sask. R. 6, at para. 29; and Georgian Glen Development Ltd. v. Barrie (City) (2005), 13 M.P.L.R. (4th) 194 (Ont. S.C.), at para. 11. . Midland Resources Holding Limited v. Shtaif
In Midland Resources Holding Limited v. Shtaif (Ont CA, 2017) the Court of Appeal considered the particularity of pleadings required to allege fraud:[198] First, precision and particularity are necessary when pleading fraud. Rule 25.06(8) of the Rules of Civil Procedure requires any pleading of fraud or misrepresentation to contain “full particulars”. In Hamilton v. 1214125 Ontario Ltd., 2009 ONCA 684 (CanLII), 84 R.P.R. (4th) 25, this court identified, at para. 35, the necessary elements for a plea of deceit:The pleading, even of innocent misrepresentation, must set out with careful particularity the elements of the misrepresentation relied upon, that is:
1. the alleged misrepresentation itself,
2. when, where, how, by whom and to whom it was made,
3. its falsity,
4. the inducement,
5. the intention that the plaintiff should rely upon it,
6. the alteration by the plaintiff of his or her position relying on the misrepresentation,
7. the resulting loss or damage to the plaintiff.
Of course, if deceit is alleged, then there must also be an allegation that the defendant knew of the falsity of his statement…. Each of the defendants must know the case that it has to meet. . Ceballos v. DCL International Inc.
In Ceballos v. DCL International Inc. (Ont CA, 2018) the Court of Appeal held that in order to support a claim in intentional tort, that pleadings must be particular:[10] There is no question that, if sufficiently and adequately pleaded, allegations of conspiracy, fraudulent misrepresentation and other tortious conduct may form the basis of a reasonable cause of action against an officer or a director of a corporation: see, for example, 1175777 Ontario Ltd. v. Magna International Inc., 2001 CanLII 8529 (ON CA), [2001] O.J. No. 1621 (C.A.).
[11] However, to invoke those exceptions that permit the piercing of the corporate veil, the claim must be specifically pleaded. As Carthy J.A. said in ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 CanLII 1527 (ON CA), 43 O.R. (3d) 101 (C.A.), at para. 39:The operative portion of this paragraph is the final sentence which confirms that, where properly pleaded, officers or employees can be liable for tortious conduct even when acting in the course of duty. [Emphasis added.]<\blockquote>[12] Bald or vague assertions of intentional tortious conduct are insufficient to defeat a r. 21 motion. The pleading of intentional torts must meet a stringent standard of particularity, that is, they must be pleaded with “clarity and precision”: Lysko v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.), at para. 144.
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