



COURT OF APPEAL
    FOR ONTARIO

CITATION: Ceballos v. DCL International Inc., 2018 ONCA 49

DATE: 20180123

DOCKET: C63162

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Danilo Ceballos

Plaintiff (Appellant)

and

DCL International Inc. and George Swiatek

Defendants (Respondents)

Danilo Ceballos in person

Jaime VanWeichen and Heidi LeBlanc, for the respondents

Heard:  January 15, 2018

On appeal from the judgment of Justice Sidney Lederman of
    the Superior Court of Justice sitting without a jury, dated December 5, 2016.

REASONS FOR DECISION

[1]

The appellant appeals
    from the order of the motion judge that struck out his claim against the individual
    respondent, George Swiatek.

[2]

The appellant was
    employed by DCL International Inc.  He was first laid off from his employment
    and then subsequently his employment was terminated.  Both of these actions
    were taken by way of letters signed by Mr. Swiatek, in his capacity as the
    President and Chief Executive Officer of DCL.

[3]

In his statement
    of claim, the appellant essentially alleges that the reason given by DCL for
    his termination, namely, economic downturn, was false.  In other words, it was
    made up as an excuse to fire him.  The appellant alleges that his employment
    was wrongfully terminated as a reprisal for his workplace injury claim.

[4]

The respondents
    brought a r. 21 motion to dismiss the appellants entire action on the basis
    that it was statute-barred, and that the claim against Mr. Swiatek disclosed no
    reasonable cause of action.  The motion judge determined that the
    discoverability of the appellants claims against DCL was a triable issue. 
    However, the motion judge dismissed the claim against Mr. Swiatek on the basis
    that the appellant had not pleaded sufficient grounds that would take Mr. Swiateks
    actions outside of the scope of his duties and responsibilities as an officer
    of DCL so as to possibly attract personal liability.

[5]

The appellant
    submits that the motion judge erred in failing to find that he pled allegations
    of tortious conduct on the part of Mr. Swiatek that would, if proven, found
    individual liability against him.

[6]

It is helpful to
    set out the standard of review on appeal and the test that the motion judge had
    to apply in determining whether the appellants statement of claim disclosed a
    reasonable cause of action against Mr. Swiatek.

[7]

The standard of
    review on the appeal from the dismissal of a claim as disclosing no reasonable
    cause of action on a r. 21 motion is correctness:
Grand River Enterprises Six Nations
    Ltd. v. Canada (Attorney General)
, 2017 ONCA 526, at para. 18.

[8]

On a motion to
    strike for failure to disclose a reasonable cause of action, the Supreme Court
    has identified the test to be whether the claim has no reasonable prospect of
    success:
R. v.
    Imperial Tobacco Canada Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17;
Odhavji Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263,
    at paras 14-15;
Hunt
    v. Carey Canada Inc.
,
    [1990] 2 S.C.R. 959, at p. 980.

[9]

Turning to the
    statement of claim, the appellant asserted that he injured himself at work. 
    However, he says that various employees disputed that claim and began to harass
    him at work. At paragraphs 61 and 62, the appellant alleges that Mr. Swiatek
    and the company were part of an unlawful means conspiracy to terminate his
    employment. Paragraphs 63 and 64 of the statement of claim are titled
    Corporate Veil. At para. 63, the appellant pleads that Mr. Swiatek had wide
    powers and control over the company and not only aided and abetted the
    misconduct of others in the company but also provided the misleading reason
    himself for my termination and engaged in an unlawful means conspiracy.
    Relying on
642947
    Ontario Ltd. v. Fleischer
(2001), 56 O.R. (3d) 417 (C.A), at para. 68, which addresses piercing
    the corporate veil, the appellant asserts that Mr. Swiatek is directly liable
    for the misconduct perpetrated against him.

[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] 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),
    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.]

[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), 79 O.R. (3d) 721 (C.A.), at para.
    144.

[13]

In this case, we
    are of the view that the motion judge correctly struck out the claim against
    Mr. Swiatek as disclosing no reasonable cause of action against him.  There is
    no proper and sufficient pleading of the necessary elements of a specific and
    separate tortious act by Mr. Swiatek, necessary to give rise to personal
    liability on his behalf.  It is plain and obvious that the claim, as baldly
    pleaded, cannot succeed.

[14]

The appeal is
    dismissed.  The respondents are entitled to their costs of the appeal fixed in
    the amount of $4,500 inclusive of disbursements and HST.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


