The Ontario Court of Appeal decision, Burns v RBC Life Insurance Company et al. 2020 ONCA 347, provides insight into the adequacy of claims that could give rise to personal liability for torts committed in the course of employment.

Background

In 2012, plaintiff, stopped working due to pain. Shortly thereafter, RBC Life Insurance Company (“RBC Life”), one of the defendants, approved long-term disability (“LTD”) benefits payments. In 2017, RBC Life terminated the plaintiff’s LTD benefits.

The plaintiff brought an action seeking the reinstatement of LTD benefits. Further, the plaintiff sought special damages against the disability insurer, RBC Life, as well as two of its employees involved in the termination process.

Subsequently, the employees, successfully brought a motion to have the statement of claim struck out as it did not disclose a reasonable cause of action against them. The plaintiff appealed on the grounds that the motion judge erred not following well-established jurisprudence that a cause of action in tort can lie against the employee of a corporate employer for conduct carried out in the course of usual employment.

On appeal

The Court of Appeal found the motion judge had not erred in finding that the plaintiff had not properly pleaded the material facts to support the claims against the individual defendants. Notably, the Court provided a “simple question”, a touchstone, that each defendant named in a statement of claim should be able to find the answer to in a pleading:

“What do you say I did that caused you, the plaintiff, harm, and when did I do it?”

The statement of claim did not provide either individual named defendant with an individualized answer to that question. Moreover, his pleadings failed to differentiate between any of the defendants nor did he provide the necessary material facts required to support a claim against each of them respectively, as required in r. 25.06(1) of the Rules of Civil Procedure.

The Court of Appeal agreed with the motion’s judge in finding that the plaintiff had not pleaded a viable cause of action against the employees that would attach liability to them in their personal capacities because the allegations advanced against them did not manifest an identity or interest separate from RBC Life.   

However, where the Court disagreed with the motion judge’s denial of the plaintiff leave to amend the deficiencies in his pleadings. Leave to amend should only be denied in the clearest of cases. In this case, where the deficiencies could be easily cured by an amendment and the other party would not suffer any prejudice if leave to amend was granted, it should have been granted.

Further, the Court determined that it was too early for the motion judge to reach the conclusion that the plaintiff cannot plead such a claim against the employees.

Given the deficiencies in the statement of claim, the Court of Appeal found that they could not reach a determination as to whether the alleged conduct by the employees of an insurance company constitutes a “distinct actionable legal wrong”, which could be pleaded against the employees in their personal capacities. The Court left that question for another day to be addressed once the amended statement of claim included properly plead individualized claims.

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In Davidoff v. Sobeys Ontario, 2019 ONCA 684, the Ontario Court of Appeal formalized the requirements for a Notice of Action to bring a claim within the limitation period. The court affirmed that absent compliance with these rules, an action is improperly commenced and the defendant can bring a valid Rule 21 motion to strike the claim.

In this case, the plaintiff commenced an action against the defendant for wrongful dismissal. The parties concurred that the limitation period expired on October 6, 2017. A week prior to the expiry, the plaintiff sent a Notice of Action via mail to the defendant’s Director of Human Resources. The same letter was emailed to the defendant’s lawyer. Neither the email nor the letter were in adherence to Form 14C of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, nor was it signed and sealed by the court Registrar. The defendant brought a Rule 21 motion to strike the claim on the basis that it did not conform to the Rules. The Court of Appeal held that a Notice of Action must be compliant with the Rules, for example, a letter in place of Form 14C as required, was not amenable to the Rules. Thus, the court concluded that the Notice of Action filed by the plaintiffs did not commence the proceeding within the limitation period.
The courts have previously been hesitant to strike an action on a limitation period argument. In deliberating this issue, the court considered that the parties agreed on the date of discoverability; established the limitation period; there were no material facts in dispute and there was no risk of unfairness in striking the claim. Under the circumstances, the court decided this was an appropriate case for the limitation period to be resolved on a Rule 21 motion.

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