Natasha O’Toole was successful in a motion to strike all causes of action against five personally-named employees of Mohawk College, without leave to amend, in Barber v. Goerz, 2021 ONSC 3698.
The plaintiff was a student enrolled in the paralegal program at Mohawk College. Students in the paralegal program are given the opportunity to participate in community placements. Herman’s Supply Company offered one such placement. Mohawk College provided Herman’s with a copy of the plaintiff’s resume for consideration. The Herman’s liaison responded with two emails raising concerns about the plaintiff’s history.
The plaintiff claimed for $1.1 million against Herman’s, its liaison, Mohawk College, and five Mohawk employees, alleging defamation, negligence, and breaches of his rights under various statutes. The Mohawk defendants moved under Rule 21.01(1)(b), to strike the amended statement of claim as against the personally-named Mohawk employees on the basis that it disclosed no reasonable cause of action.
Justice Reid allowed the motion, and struck the amended statement of claim as against the personally-named Mohawk employees, without leave to amend. He accepted that the bulk of the allegations against those defendants were in pith and substance decisions made within their ostensible authority as Mohawk employees. Other allegations were either based on speculation or were bald assertions unsupported by material facts. There were no facts to support that any of the personally-named Mohawk defendants committed independent tortious acts, or that their actions exhibited a separate identity or interest from Mohawk. The allegations lumped the employees together as if they were a single party, so it was not possible for each of them to look at the pleading and understand what the plaintiff said he or she did that caused harm, and when the harm was caused. In the circumstances, Justice Reid found it to be plain and obvious that the amended statement of claim did not disclose a properly pleaded cause of action as against the personally-named Mohawk defendants.
With respect to leave to amend, Justice Reid noted that the plaintiff had already amended his pleading extensively after he was first faced with the Mohawk defendants’ motion to strike and the case law relied upon in support of the motion. The amended pleading remained deficient. It was reasonable to assume that if material facts existed that would support that the personally-named Mohawk defendants committed an independent tortious act or exhibited a separate identity or interest from Mohawk, then those facts would have been specifically pleaded. Justice Reid found no benefit in permitting a further attempt by the plaintiff to find some tenable basis for a claim against the personally-named Mohawk defendants. Leave to amend was denied.
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