Fridays with Rogers Partners

December 15, 2023

At our weekly meeting, Megan Chan discussed the recent decision Ovari v. Brant Community Healthcare System[1], in which the Court considered a motion to strike pleadings for failing to disclose a reasonable cause of action pursuant to Rule 21.01(1)(b).

Notably, although the plaintiff was self-represented, the Court granted the defendants’ motion and struck the claims as against the moving defendants from the Statement of Claim without leave to amend. This case shows that plaintiffs are expected to plead a reasonable cause of action, whether they have counsel or not.

Brief Facts

The plaintiff, Mr. Ovari brought an action against Brant Community Healthcare System/Brantford General Hospital, Dr. David McNeil/President & CEO, Penmarvian Retirement Home, Grand River Estates Retirement Home, and LHIN/Home and Community Care Support Services (“the defendants”) regarding the care and treatment the plaintiff’s mother received as a resident at Penmarvian Retirement Home and patient of Brantford General Hospital.

Mr. Ovari claimed against all defendants for $10 million in damages alleging a) mental and emotional distress; b) negligence and incompetence; c) kidnapping for profit; d) murder; and e) violation of the Charter.

The plaintiff was self-represented.

The Motion

Brant General Hospital, Dr. David McNeil, and the LHIN (collectively “the Hospital Defendants”) – brought a motion seeking:

  1. An order striking, staying or dismissing the plaintiff’s claim against them on the basis that the claim disclosed no reasonable cause of action pursuant to Rule 21.01(1)(b); or in the alternative
  2. An order striking out portions of the plaintiff’s claim against them, without leave to amend, on the basis that the claim was scandalous, frivolous, or vexatious pursuant to Rule 25.11(b) or was an abuse of process pursuant to Rule 25.11(c).

The motion was heard on an uncontested basis, as the defendants served their materials in accordance with the Rules and the plaintiff did not respond.

The Law

Rule 21.01(1)(b) provides that a party may move to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. Rule 21.01(2) states that no evidence is admissible on a motion under this rule. However, a motion judge is entitled to consider the documents specifically referred to and relied on in the pleading sought to be struck, as these documents are not evidence, but are in effect, incorporated into the pleading.

When will a claim be struck?

The principles to be applied in a Rule 21.01(1)(b) motion[2] are:

  • The claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action.
  • There is a need, in the interest of efficiency and correct results, to weed out hopeless claims.
  • If the cause of action pleaded has been recognized, all of its essential elements must be pleaded.
  • If the cause of action has not been recognized, there must be a reasonable prospect that the claim will succeed.
  • A claim should not be struck merely because it is novel.
  • The facts pleaded are accepted as true for the purposes of the motion, unless they are manifestly incapable of being proven.
  • The pleading forms the basis of the motion, thus possible future facts not pleaded may not supplement the pleading.
  • The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
  • A motion to strike should not be confused with a summary judgment motion, which has a different test, purpose, and rules relating to evidence.

The threshold for sustaining a pleading is not high; a germ or scintilla of a cause of action is sufficient. The court’s power to strike out a pleading under this rule should be exercised sparingly.

Rule 2.02(b) states that a motion to attack an irregularity shall not be made, except with leave of the court, if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.

Taken together, the time for bringing a motion under Rule 21.01(1)(b) is before the defendant pleads over. The filing of a statement of defence signifies that the claim contains recognizable causes of action to which the defendant can respond. Delay in bringing a motion under Rule 21.01 can in the appropriate circumstances, be the basis for not striking a claim, and “appropriate circumstances” to dismiss a motion depends partly on what effect the motion will have on trial efficiency.

However, courts have recently adopted a more contextual approach to the issue of whether delivery of the statement of defence bars a motion to strike a claim as disclosing no reasonable cause of action. There may be instances where a defendant may bring a motion without leave to strike a claim even after delivering a defence, such as where it is obvious from the defendant’s pleading that the defendant takes issue with the sufficiency of the plaintiff’s claim.

On the Facts

Was this an appropriate circumstance to hear the motion to strike on its merits?

The Hospital Defendants had served their Statement of Defence and Crossclaim and further served an amended Statement of Defence and Crossclaim.

While the Hospital Defendants’ Statement of Defence did not expressly state the position that the plaintiff’s claim did not disclose a reasonable cause of action against them, the Court found that the fact that the Hospital Defendants’ took issue with the sufficiency of the plaintiffs’ claim was obvious in the Hospital Defendants’ pleading.

The action was still in the pleadings stage, documentary discovery had not been completed, and examinations for discovery had not been scheduled, so the motion to strike would not interfere with trial efficiency. Thus, the Court found that this was an appropriate circumstance for the Court to hear the Hospital Defendants’ motion to strike pursuant to rule 21.01 on its merits.

The claims against Dr. McNeil

The general rule is that officers and employees of corporations are protected from personal liability. The exceptions to this rule include circumstances where:

  • There are findings of fraud, deceit, dishonesty, or want of authority on the part of the officer or employee sought to be implicated
  • The use of the corporate structure was a sham from the outset or was an afterthought to a deal which had gone sour
  • The officer or employee was privy to the tort of inducing breach of contract between the company and the plaintiff and the facts giving
  • The plaintiff shows that the officer or employee’s actions themselves

If a party seeks damages for personal liability in a case where the prima facie relationship is with a corporation, the party must clearly plead the factual basis for such relief and must address specifically the cause of action asserted against the personal defendant and why the personal defendant is being sued separately from the corporation.

The Court found that the Statement of Claim failed to:

  • Plead specific facts giving rise to any cause of action against Dr. McNeil.
  • Set out the basis for suing Dr. McNeil separately from the Hospital.
  • Plead any basis for claiming personal liability or piercing the corporate veil.
  • Allege that Dr. McNeil was acting outside the scope of his employment.
  • Claim that Dr. McNeil was acting for his personal gain or benefit or for any interest other than that of the Hospital.
  • Allege fraud, deceit, dishonesty, or want of authority on the part of Dr. McNeil.

Thus, the Court found that the Statement of Claim failed to raise any reasonable cause of action against Dr. McNeil, that it was plain and obvious that the claim could not succeed against him, and struck the claim.

The claims against the Hospital and the LHIN

The Statement of Claim alleged negligence, murder, kidnapping for profit, and breach of the Charter.

1. Negligence

The plaintiff failed to plead:

  • that the Hospital Defendants owed him a duty of care,
  • that he experienced legally compensable damages or injuries, or
  • that a departure from the standard of care required of the hospital that caused him any damages.

The plaintiff’s claim was for personal damages. He was not acting on behalf of his mother’s estate nor was his claim brought pursuant to Part V of the Family Law Act.

The law is clear that healthcare professionals do not owe a duty of care to non-patient third parties, including family members or substitute decision makers. Such a duty could put the healthcare professional in a conflict of interest in situations where the interests of the family member/substitute decision maker were not aligned with the professional’s medical opinion of what would be in the patient’s best interests.

On the basis of the facts pled in the Statement of Claim, the Court found that the Defendants did not owe the plaintiff a duty of care in his personal capacity. Thus, his claim in negligence would inevitably fail.

2. Murder, kidnapping for profit, and the Charter

The Court held that murder and kidnapping for profit were not recognized torts in Ontario, and thus, those claims would fail.

With respect to the section 9[3] Charter claims, the plaintiff’s complaints were about his mother’s freedom to exercise choice to leave the hospital when she wanted to. Without needing to consider whether the Hospital Defendants could be the subject of a breach of section 9, the Court held that section 24(1) provided standing to advance such claims only to persons whose private rights were at stake or who were specifically affected by the issue. Since the plaintiff was suing personally, and not on behalf of his mother’s estate, the plaintiff had no standing to advance a Charter claim. Thus, the Charter claim would fail.

The Court concluded by saying that there was no need to address the moving parties’ alternative claims about whether the plaintiff’s claim was frivolous or vexatious or otherwise an abuse of process because the Statement of Claim did not disclose a reasonable cause of action.

Should the Plaintiff be granted leave to amend the Statement of Claim?

The relevant principles[4] are:

  • The approach that amendments should presumptively be approved unless they would occasion prejudice that cannot be compensated by costs or an adjournment, they are shown to be scandalous, frivolous, vexatious, or an abuse of the Courts process, or they disclose no reasonable cause of action is relevant to the issue of whether, on a motion to strike a pleading, a court should exercise its discretion to grant leave to amend.
  • Leave to amend should properly be given where a pleading can be put right or improved by amendment and no injustice is done thereby.
  • Leave to amend should only be refused in the clearest of cases.
  • Depending on the circumstances of the case, striking out a pleading without granting leave to amend often does little to advance the ends of justice.
  • In disposing of a motion to strike when a recognized cause of action has been improperly pleaded, but can be put right without non-compensable prejudice to the defendants, the preferred route is to afford the plaintiff the opportunity, upon appropriate terms, to plead the cause properly within the action before the court.
  • The foregoing approach makes practical sense and is in keeping with the objectives set out in rule 1.04, that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

The Court was not satisfied that the plaintiff’s pleadings could be put right or improved by amendment. There was a need in the interest of efficiency and correct results to weed out hopeless claims, such as the claim in this case.

Thus, the Court struck out the Statement of Claim without leave to amend.

[1] 2023 ONSC 6933.

[2] McCreight v. Canada (AG), 2013 ONCA 483.

[3] Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.

[4] Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (Ont. S.C.J).