



COURT OF APPEAL FOR ONTARIO

CITATION:
Tran v. University of Western Ontario, 2015 ONCA 295

DATE: 20150430

DOCKET: C58616

Blair, Pepall and Lauwers JJ.A.

BETWEEN

Leanne Tran

Plaintiff (Appellant)

and

The University of
    Western Ontario, Justin Amann,

Christopher Watling,
    Salvatore Spadafora,

Stewart Kribs, Royal
    Etemad-Rezai, David Bach and Terri Paul

Defendants (Respondents)

Michael B. Fraleigh and Martine Garland, for the
    appellant

Sarah Jones, for the respondents

Heard: November 25, 2014

On appeal from the judgment of Justice Edward M. Morgan
    of the Superior Court of Justice dated January 27, 2014, with reasons reported
    at 2014 ONSC 617.

Pepall J.A.:

[1]

The appellant, Leanne Tran, sued the University of Western Ontario
    (UWO) and several members of the faculty of medicine after she was dismissed
    from a medical residency programme. The respondents successfully moved to
    strike all her claims against the individual faculty members, and against UWO
    for intimidation.  Ms. Tran appeals.

[2]

For the reasons that follow, I would allow the appeal to the extent that
    the appellant is granted leave to amend her statement of claim within 20 days
    from the date hereof.

BACKGROUND

[3]

The appellant is a medical doctor and was a radiology resident in the
    Diagnostic Radiology programme of the Schulich School of Medicine and Dentistry
    at UWO.  She experienced difficulties throughout the programme and was
    eventually dismissed for unprofessional conduct.  She brought claims against
    UWO and the individual respondents, who were administrators and supervisors in
    the residency programme.  Her statement of claim raised causes of action in
    negligence, negligent misrepresentation, intimidation, breach of trust, breach
    of fiduciary duty and duty of good faith, breach of contract, inducing breach
    of contract, interference with economic relations and conspiracy.  She argued
    that unfair treatment by the respondents ultimately led to her being unable to
    complete the programme and to practise as a radiologist.  She sought damages
    totalling more than $20 million.

[4]

In her statement of claim, the appellant pled that, at all material
    times, the individual appellants were employees, agents, principals and/or
    legal representatives of UWO.  Alternatively, they exercised actual or
    apparent authority given to them by UWO.  The appellant pled that, in any
    event, UWO was vicariously liable for the acts and omissions of the individual
    respondents.

[5]

The appellant also advanced claims of conspiracy and intimidation.  She
    alleged that the individual respondents acted outside the scope of their
    authority in committing these torts.

[6]

The individual respondents did not serve and file a statement of
    defence.

[7]

In its statement of defence, UWO admitted that the individual
    respondents were employees, agents, or legal representatives of the
    university. It denied any wrongdoing.

[8]

In her reply to UWOs statement of defence, the appellant pled that the
    individual respondents were not, at all material times, acting within the
    scope of their duties and authority on behalf of UWO.

[9]

The respondents brought a motion pursuant to rule 21.01(1)(b) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, to strike all claims against
    the individual respondents on the basis that they disclosed no reasonable cause
    of action and to strike the claim of intimidation against all respondents due
    to a failure to plead facts in support of the essential elements of the cause
    of action.

MOTION JUDGES REASONS

[10]

The
    motion judge addressed the claims against the individual respondents and
    applied
ScotiaMcLeod Inc. v. Peoples Jewellers Ltd.
(1995), 26 O.R.
    (3d) 481 (C.A.), and
Lobo v. Carleton University
, 2012 ONSC 254, affd
    2012 ONCA 498.  He observed that the actions of the individual respondents must
    themselves be tortious or exhibit a separate identity or interest from that of
    UWO so as to make the acts or conduct complained of their own.  He noted that,
    in a pleading, the suggestion of a separate identity must be more than window
    dressing: at paras. 14-15.

[11]

The
    motion judge concluded that the acts of the individual respondents described in
    the statement of claim  teaching, mentoring, supervising, designing and
    administering an educational programme  were indistinguishable from those of
    UWO.  The appellants attempt to isolate personal acts amounted to little more
    than window dressing.  Furthermore, the pleadings contained internal
    contradictions, particularly on the question of whether the individual respondents
    were acting within their authorized capacity.  The motion judge was of the view
    that the internal contradictions on the issue of authority made it impossible
    for the claims against the individual respondents to succeed: at paras. 25-26.

[12]

The
    motion judge also concluded that the appellant had failed to plead all of the
    requisite elements of the tort of conspiracy, most notably the facts in support
    of an agreement to act and that the offending conduct resulted from an
    agreement.  Absent a pleading of these elements, there could be no conspiracy:
    at paras. 37-44.

[13]

On
    the issue of intimidation, both as against the individual respondents and UWO,
    the motion judge concluded that the appellant had failed to plead all of the
    requisite elements of the tort.  In particular, the appellant had failed to
    plead that any of the individual respondents or UWO had threatened to commit an
    unlawful act.  Further, neither the individual respondents nor UWO had demanded
    that the appellant do any specific act or follow any specified course of
    conduct that redounded to her detriment or that caused her any loss: at paras.
    50-56.

[14]

The
    motion judge accordingly struck out the entire statement of claim as against
    the individual respondents and the claim of intimidation as against UWO.   He
    refused to grant the appellant leave to amend but gave no rationale for that
    refusal: at paras. 57-58.

GROUNDS OF APPEAL

[15]

The
    appellant submits that the motion judge erred in striking out her claims.  She
    argues that her pleadings disclose reasonable causes of action, do not preclude
    personal liability on the part of the individual respondents, and in any event,
    conspiracy and intimidation are tortious acts and are inherently outside the
    scope of the individual respondents authority.  She asserts that all the
    requisite elements of the various causes of action relied upon were pleaded.  
    Furthermore, even if her pleadings contain imperfections, these amount to
    drafting deficiencies and leave to amend should have been granted.

ANALYSIS

(1)

General principles

Striking claims
    under rule 21.01(1)(b)

[16]

The
    test on a rule 21.01(1)(b) motion to strike is whether it is plain and obvious
    that the statement of claim discloses no reasonable cause of action:
Hunt
    v. Carey Canada Inc.,
[1990] 2 S.C.R. 959, at p. 960.  In
McCreight v.
    Canada (Attorney General)
, 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39,
    this court explained that on a rule 21.01(1)(b) motion to strike: (1) all
    essential elements of a cause of action are to be pleaded, and (2) the pleading
    must be read generously with allowances for drafting deficiencies.

Individual
    liability of employees

[17]

While
    the scope of individual liability as distinct from corporate liability is not
    always clear, it is undisputed that when a plaintiff purports to sue both a
    corporation and individuals within that corporation (whether officers,
    directors or employees), the plaintiff must plead sufficient particulars which
    disclose a basis for attaching liability to the individuals in their personal
    capacities:
Normart Management Ltd. v. West Hill Redevelopment Co.
(1998), 37 O.R. (3d) 97, at p. 102.  As Labrosse J.A. explained in
460635
    Ontario Ltd. v. 1002953 Ontario Inc
. (1999), 127 O.A.C. 48, at para. 8:
    [P]roperly pleaded as it relates to personal liability of corporate
    directors, officers and employees must be read as specifically pleaded, a
    separate claim must be stated against the individual in his personal capacity.

(2)

Application to this case

Individual liability

[18]

The
    appellants statement of claim fails to distinguish the acts of each of the
    individual respondents from those of each other and from those of their
    employer, UWO.  The appellant simply enumerates the [d]efendants
    [f]ailures.

[19]

Furthermore,
    the global failures enumerated in the statement of claim do not reflect
    elements of any cause of action.  They include such things as failure to assign
    a mentor, failure to ensure integration and training of the appellant, and
    failure to provide regular feedback.  I agree with the motion judge that these
    pleadings are inadequate to sustain a cause of action.

Conspiracy and intimidation

[20]

I
    also agree with the motion judge that the appellant failed to plead the
    essential elements of both the claims of conspiracy and intimidation.

[21]

In
Normart,
at p. 104, this court held that a statement of claim alleging
    conspiracy should:

[D]escribe who the several parties are and their relationship
    with each other.  It should allege the agreement between the defendants to
    conspire, and state precisely what the purpose or what were the objects of the
    alleged conspiracy, and it must then proceed to set forth, with clarity and
    precision, the overt acts which are alleged to have been done by each of the
    alleged conspirators in pursuance and in furtherance of the conspiracy; and
    lastly, it must allege the injury and damage occasioned to the plaintiff
    thereby.

[22]

If
    read generously, some facts supporting these elements may be identified in the
    statement of claim.  However, an agreement to conspire, its objects and the
    overt acts of each of the individual respondents have not all been pled.

[23]

The
    tort of intimidation requires: a threat by the defendant to commit an unlawful
    act; an intention by the defendant that injury will result to the plaintiff;
    submission to the threat by the plaintiff; and actual damage suffered by the
    plaintiff:
Kisin v. Netron
, 2000 CarswellOnt 1149, at para. 23 (S.C.),
    see also
Roehl v. Houlahan
(1990), 75 O.R. (2d) 482, leave to appeal
    to S.C.C. refused, [1990] S.C.C.A. No. 518 and
Central Canada Potash Co. v.
    Saskatchewan
,

[1979] 1 S.C.R. 42.  Again, read generously, some
    of these elements may be identified in the appellants statement of claim. 
    However, the presence of a threat is nowhere to be found.

[24]

I
    conclude that the motion judge made no error in striking the appellants claims
    both as against the individual respondents and as against UWO for the torts of
    conspiracy and intimidation.

Leave to amend

[25]

Lastly,
    the appellant submits that the motion judge erred by failing to exercise his
    discretion in not granting leave to amend.  I agree.

[26]

In
    deciding whether to grant leave to amend, the motion judge gave no reasons for
    denying the appellants request for leave.  Leave to amend should be denied
    only in the clearest of cases:
South Holly Holdings Ltd. v. The Toronto-Dominion
    Bank
, 2007 ONCA 456, at para. 6.

[27]

While
    a party should not be given unlimited scope to amend its pleading, no prior
    amendments to the statement of claim had been made in this case.  Furthermore,
    in the absence of any articulated basis on which leave was denied, the appellant
    should not be deprived of the opportunity to attempt to remedy her deficient
    pleadings.

DISPOSITION

[28]

For
    the reasons given, I would allow the appeal to the extent that the appellant is
    granted leave to amend her statement of claim within 20 days from the date
    hereof in accordance with these reasons.  In light of the divided success on
    appeal, I make no order as to costs.

Released: RAB  APR 30, 2015

S.E. Pepall J.A.

I agree.  R.A. Blair
    J.A.

I agree.  P. Lauwers
    J.A.


