Ameenah Zaid Al-Haidari Applicant And: Memorial University Respondent, 2020 NLSC 27

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Al-Haidari v. Memorial University of Newfoundland , 2020 NLSC 27 Date : February 19, 2020 Docket : 201801G4123 Between: Ameenah Zaid Al-Haidari Applicant And: Memorial University Respondent Before: Justice James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 27, 2019

Summary: Ms. Al-Haidari issued an Originating Application claiming damages and other remedies against Memorial. Before filing a defence, Memorial commenced an application pursuant to Rule 14.24 to have almost all of the Originating Application struck as violating one or more of the provisions of the Rule. Application granted. Since Ms. Al-Haidari is self-represented she was given 30 days to provide particulars of the remaining purported causes of action while complying with the Rules of pleading, the relevant statutes and this judgment.

Appearances: Ameenah Zaid Al-Haidari Appearing on her own behalf Koren A. Thomson Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Debourke v. Eastern Regional Integrated Health Authority, 2019 NLSC 10; Petten v. E.Y.E. MarineConsultants (1994), (NL SC), 120 Nfld. & P.E.I.R 31, 1994 CarswellNfld 358 (S.C. (T.D.)); R. v. Imperial TobaccoCanada Limited, 2011 SCC 42; Operation Dismantle v. the Queen, (SCC), [1985] 1 S.C.R. 441; Arabi v. Alberta, 2014ABQB 295; Steiner v. R., 1996 CarswellNat 1742, [1996] F.C.J. No. 1356; Hynes v. Pro Dive Marine Services Ltd., 2016 NLCA 17; Yenv.

Alberta, 2010 ABQB 380; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., (SCC), [1997] 3 S.C.R.1210; Hagan v. Drover, 2009 NLTD 160; Seneca College of Applied Arts & Technology v. Bhadauria, (SCC), [1981] 2S.C.R. 181; Hynes v. Pro Dive Marine Services Ltd., 2014 NLTD(G) 3; Miller v. Squires, 2008 NLTD 25; Jones v. Tsige, 2012 ONCA32; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38; Piresferreira v. Ayotte, 2010 ONCA 384, leave to appeal refused, 2011CarswellOnt 201 (SCC); Saadati v. Moorhead, 2017 SCC 28; Merrifield v.

Canada (Attorney General), 2019 ONCA 205; Prinzo v.Baycrest Centre for Geriatric Care, (2001) (ON CA), 161 O.A.C. 302, 2002 CarswellOnt 2263; Aba-Alkhail v.University of Ottawa, 2013 ONSC 2127, aff’d 2013 ONCA 633, leave to appeal denied, (SCC), 2014 Canlii11029(SCC); Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; Canada (Attorney General) v. TeleZone Inc., 2010 SCC62; STATUTES CONSIDERED: Human Rights Code, R.S.N.L. 1990, c. H-14; Privacy Act, R.S.N.L. 1990. c. P-22; Memorial UniversityAct, R.S.N.L.1990, c. M-7; RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D TEXTS CONSIDERED: Brown, R.E., The Law of Defamation in Canada, 2d ed., looseleaf, (Toronto: Carswell, 1994) REASONS FOR JUDGMENT (Decision Re Application under Rule 14.24) Adams, J.: INTRODUCTION [1] Ameenah Al- Haidari commenced an action against Memorial University (“Memorial”) by way of Originating Application. The matter was called in court at various times at which Memorial indicated it planned to file an application to strike the pleadings ofMs. Haidari pursuant to Rule 14.24 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D.

Ultimately, the originalOriginating Application was amended through discussions between Ms. Al- Haidari’s then counsel, counsel for Memorial, and the Courtwhich culminated in an Order of Stack, J. of this Court dated 15 April 2019 allowing amendments to the Originating Application inaccordance with a draft “rewritten Originating Application” appended to the Order but without prejudice to Memorial to take anapplication pursuant to Rule 14.24 to strike the new pleadings. [2] Ms.

Al- Haidari filed her “rewritten Originating Application” (which I will hereinafter refer to as the Amended OriginatingApplication) and on 28 June 2019 Memorial issued an interlocutory application seeking an Order striking most of the pleadings in theAmended Originating Application pursuant to Rule 14.24 of the Rules of Court. [3] As already noted, Memorial had filed a previous application to strike in respect of the original Originating Application and Ms.Al-Haidari had filed a Reply which was filed on 1 April 2019. On or about 24 December 2018 Ms.

Al-Haidari filed a Reply to theapplication to strike the Amended Originating Application denying that the Amended Originating Application failed to disclose areasonable cause of action or otherwise violated Rule 14.24. In the document entitled “Memorandum of Fact and Law” filed on 2 April2019 Ms. Al-Haidari referred to both the original Originating Application and the Amended Originating Application. [4] Ms. Al-Haidari is self-represented on this application. In addition to the Reply to the first application to strike and theMemorandum of Fact and Law, Ms.

Al-Haidari filed a number of appendices in several volumes consisting of evidence on which sheintended to rely in proof of her claims. As well, on or about 7 November 2019, Ms. Al-Haidari filed several volumes of material withseveral volumes of appendices with further evidence on which she intended to rely in proof of her claims.

[ 5 ] At the hearing of this application, I explained to Ms. Al-Haidari that the purpose of this hearing was not to lead evidence to prove her claim but to oppose the application by Memorial to strike her pleadings. Ms. Al-Haidari was a foreign student at Memorial from Yemen. While she speaks and understands English and has a good grasp of written English, she was somewhat hampered by the fact that English is not her first language. [ 6 ] In light of this, I allowed Ms. Al-Haidari to have an informal interpreter [1] sit at her side to interpret any parts of the proceeding which Ms.

Al-Haidari was having difficulty understanding, as well as to translate for the Court any commentary by Ms. Al- Haidari spoken by her in her first language. While this was not entirely without difficulty, I was satisfied that the application could proceed. Memorial was not agreeable to postpone the application as the matter had dragged on for quite some time and had been postponed on several occasions. [ 7 ] I explained the purpose of the hearing and the application by Memorial. This was translated to Ms. Al-Haidari and she indicated that she understood. The hearing proceeded on this basis.

Although, it must be said that Ms. Al-Haidari attempted at times to argue the merits of her Amended Originating Application rather than the claims by Memorial in the interlocutory application. background [2] [ 8 ] Ms. Al-Haidari was a graduate student at Memorial in the Physics and Physical Oceanography Department at the relevant times. [3] Her Ph. D. program was terminated by Memorial. In a letter of 8 January 2019 informing Ms. Al-Haidari of the decision to terminate her program, Ms. Al-Haidari was advised of the reasons for the termination and the internal process to appeal the decision. In her affidavit, Dr.

Aimée Surprenant stated that as of the date of her affidavit, 13 February 2019, Ms. Al-Haidari had not filed an appeal of that decision. [4] There was no indication in any of the material subsequently filed in this matter that Ms. Al-Haidari had filed an appeal. [ 9 ] In or about February 2018, two students who had had interactions with Ms. Al-Haidari filed a complaint under the Student Code of Conduct (hereinafter the “Code” and the “Complaint”) [5] . The matter was referred to the coordinator of the Code and pursuant thereto, the matter was referred for informal resolution which proved unsuccessful.

The Complaint was then referred to Dr. Jennifer Massey, the Student Conduct Officer, for adjudication under the formal process set out in the Code. [6] [ 10 ] On or about 4 June 2018, Dr. Massey rendered a decision upholding the Complaint in which she advised Ms. Al-Haidari of the appeal process if she was dissatisfied with the decision. [7] On or about 11 June 2018 Ms. Al-Haidari appealed the decision of Dr. Massey in accordance with the appeal provisions in the Code. She also filed two other complaints; one against “the Physics Department” and one against Ms.

Heather Tobin (collectively the “Non-Academic Appeals Complaints”). [8] [ 11 ] The appeal of Dr. Massey’s decision was heard by Dr. Sean Caddigan, Associate Vice-President (Academic) Programs and Acting Provost of Memorial and a decision was rendered by him on or about 13 June 2018 denying the appeal. [9] In his affidavit, Dr. Caddigan also stated that he had been advised that Ms. Al-Haidari had filed two formal complaints: one against the staff of the Student Life Office and another against members of the Physics Department, the Non-Academic Appeals Complaints. As of the date of Dr.

Caddigan’s affidavit, he stated that those complaints were ongoing. [10] I was not advised of the current status of these appeals. [ 12 ] During her tenure as a graduate student at Memorial, Ms. Al-Haidari was employed as a Teaching Assistant (hereinafter “TA”). In her Amended Originating Application, Ms. Al-Haidari claimed that she had been wrongfully dismissed from the TA position without reasons. [ 13 ] Mr.

Geoff Williams, Director of Faculty Relations of Memorial, filed an affidavit dated 20 June 2019 in which he swore that all graduate students employed as TA’s at Memorial are members of the Teaching Assistants Union of Memorial University (“TAUMUN”). [11] He stated that for the relevant period, Memorial and TAUMUN had a collective agreement in place, a true copy of which was appended to his affidavit.

Article 17 of the collective agreement sets out a grievance procedure for alleged violations of the agreement, including dismissal.

Article 18 sets out an arbitration procedure for the resolution of grievances. [ 14 ] There is no evidence before me that Ms. Al-Haidari availed of the grievance procedure under the collective agreement. [ 15 ] Ms.

Al-Haidari did not seek to cross-examine any of the affiants nor did she deny that she availed of the processes referred to in the various affidavits or that she failed to avail of those that were available to be employed by her. positions of the parties [ 16 ] Memorial has taken this application pursuant to Rule 14.24 seeking an Order that almost all of the allegations in the Amended Originating Application be struck under one or more of the provisions in that Rule. [ 17 ] Memorial takes issue with the pleadings in respect of each paragraph of Rule 14.24 .

It submitted that some of the pleadings breach several of the Rules. [ 18 ] Ms. Al-Haidari’s Reply to the application to strike amounts to a simple denial of the applicability of each of the provisions of the Rule and the position taken by Memorial. It is little more than a restatement of the Amended Originating Application and a referral to the evidence that Ms. Al-Haidari intends to rely on in proof of her claim. the law [ 19 ] The Rules that apply to this matter state in relevant part: 14.03. Every pleading shall contain a statement in a

summary form of the material facts on which the party pleading relies for a claim or defence, but not the evidence by which the facts are to be proved, and the statement shall be as brief as the nature of the case admits.

14.11.(1)Subject to rule 14.11(2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded,including (a)particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and (b)where a party pleading alleges any condition of the mind of any person, including any disorder or disability of mind or any malice, orfraudulent intention, or other condition of mind except knowledge, particulars of the facts on which the party relies. … 14.24.

(1) The Court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to bestruck out or amended on the ground that (

a) it discloses no reasonable cause of action or defence; (

b) it is false, scandalous, frivolous or vexatious; (

c) it may prejudice, embarrass or delay the fair trial of the proceeding; or (

d) it is otherwise an abuse of the process of the Court, and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly.

(2) Unless the Court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under rule14.24(1)( a). Rule 14.24(1)(a) - The pleadings fail to disclose a reasonable cause of action [20] The question of whether the pleadings disclose a reasonable cause of action is to be assessed by the “plain and obvious test”. Inother words, the pleading should not be rejected unless it is plain and obvious that it discloses no reasonable cause of action and iscertain to fail: Debourke v. Eastern Regional Integrated Health Authority, 2019 NLSC 10, paragraph 12.

The threshold test is a low one:Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R 31, 1994 CarswellNfld 358 (S.C. (T.D.)). [21] The Court assumes that the facts as stated in the pleading can be proved and, then, reading the claim generously, it will assesswhether it is plain and obvious that the pleading discloses no reasonable cause of action, or put another way, the claim has no reasonableprospect of success: R. v. Imperial Tobacco Canada Limited, 2011 SCC 42, paragraph 17. [22] As well, in applying the test, the Court must distinguish between allegations of fact and conclusions of law.

Conclusions of laware not to be presumed to be proven for the purpose of determining whether the pleading discloses a reasonable cause of action:Operation Dismantle v. the Queen, (SCC), [1985] 1 S.C.R. 441. [23] Pleadings that are simply bald assertions, absurd or highly implausible do not have to be accepted as proven in the absence of adetailed factual basis for the claim: Arabi v. Alberta, 2014 ABQB 295. Rule 14.24(1)(b) - Pleadings that are false, scandalous, frivolous or vexatious [24] Under Rule 14.24(1)(

b) pleadings that are false, scandalous, frivolous or vexatious may be struck. [25] In Steiner v. R., 1996 CarswellNat 1742, [1996] F.C.J. No. 1356 at paragraph 16, the Federal Court of Canada succinctlydefined what amounts to scandalous, frivolous and vexatious pleadings: 16. A scandalous pleading includes one which improperly casts a derogatory light on someone, with respect to their moral character.A claim is a frivolous one where it is of little weight or importance or for which there is no rational argument based upon the evidence orlaw in support of the claim.

A vexatious proceeding is one that is begun maliciously or without a probable cause, or one which will notlead to any practical result. [26] The meaning of frivolous and vexatious under Rule 14.24(1)(

b) was also considered in Hynes v. Pro Dive Marine Services Ltd.,2016 NLCA 17 at paragraph 13: 13. The meaning of frivolous or vexatious under rule 14.24(1)(

b) is discussed in Walsh v. Johnson, 2010 NLCA 6, 293 Nfld. &P.E.I.R. 101. A frivolous action is one that has "no substance", or "is obviously unsustainable or without arguable merit" (paragraphs 19and 21). A vexatious action is

[20] ... one that is brought for an improper purpose such as to harass, annoy or embarrass a party and not for the legitimate purpose of seeking the vindication of legal rights. A frivolous action may also be vexatious if the respondent is required "to engage counsel and respond to something that cannot succeed ... because it would be an abuse of the court's process" (paragraph 21). Rule 14.24(1)(c) - Pleadings that are embarrassing or prejudicial or that may delay the proceedings [ 27 ] Pleadings may also be struck under Rule 14.24(1)(

c) as being embarrassing or prejudicial or if they may delay the fair trial of the proceedings. [ 28 ] In Debourke , supra , at paragraphs 13 – 14 , Whalen, C.J. described the meaning of the word “embarrassing” in the context of Rule 14.24(1)(c). He stated: 13. In determining whether a proposed amendment to a pleading is embarrassing , the Court is not concerned with whether the opposing party is embarrassed in the ordinary sense of the word i.e. that the proposed amendment is shameful or humiliating to the opposing parties.

This is an example where we use words in our legal lexicon that have definition only through legal precedent, and its legal definition is not connected to the meaning that the words would normally be ascribed in modern language. 14. In the present context, the word embarrassing is used to capture a broad range of material defects in a pleading or proposed amendment. For instance, in Duryea v. Kaufman (1910), 21 O.L.R. 161 at 165 (Ont. S.C.) , Justice Riddell, relying on Stratford Gas Co. v. Gordon (1892), 14 P.R. 407 (Ont. C.A.) ; Heugh v. Chamberlain , [1877] 25 W.R. 742 (Eng. C.A.); and Knowles v.

Roberts (1888), 38 Ch. D. 263 (Eng. C.A.) , noted that a pleading will be embarrassing to the opposing party where it alleges facts that are wholly immaterial to the outcome of the case, or where the proposed amendments "are so irrelevant that to allow them to stand would involve useless expense and would prejudice the trial of the action by involving the parties in a dispute that is tangential to the main claim". As would pleadings that "fail to state a real issue between the parties in an intelligible way" ( Dempsey v. Envision Credit Union , 2006 BCSC 750 (B.C. S.C.), at para. 86 ; see also Lundrigan v.

Short , 2000 CarswellNfld 242 (Nfld. T.D.) ), per Russell, J., at para. 4). Still other cases have found that a proposed amendment would be embarrassing where it, "brings forward a claim that the plaintiff is not entitled to make use of", "leaves out particular facts which would give the defendant the knowledge of what the basis of the plaintiff's case is and on which the plaintiff will have to rely at trial in order to make out a case", or "does not comply with the minimum requirements of the rules of pleading" in some way ( Petten , at para. 97 ). In Lacroix v.

Macdonald and Hoffe Appraisals Ltd. , 2015 NLTD(G) 85 (N.L. T.D.), Murphy, J. stated that pleadings will be embarrassing where the opposing party will be left to speculate as to the legal and factual basis for the claim (para. 25). Rule 14.24(1)(d) - Pleadings that are an abuse of process [ 29 ] Pleadings may also be struck under Rule 14.24(1)(

d) if they amount to an abuse of process. Additionally, an attempt to put forward a cause of action where judicial review is the appropriate recourse is an abuse of process: Yen v. Alberta , 2010 ABQB 380 . In Hynes , supra , the Court held that pleading legal conclusions (as opposed to points of law such as statutory provisions or legal principles, as for example, contributory negligence) amounts to argument to which the Defendant could only reply by argument. This is improper pleading and should be struck. The same may be said of pleading

interpretation, inferences, conclusions and innuendo (see paragraph 24 of Hynes ), as it would fail to comply with proper principles of pleading so as to permit the defendant to respond. [ 30 ] It is against these legal principles respecting the rules of pleading I will test the appropriateness of Ms. Al-Haidari’s pleading in the Amended Originating Application. It will also be necessary to refer to some other legal rules and

interpretations respecting particular causes of action which Ms. Al-Haidari purports to advance in the Amended Originating Application. issue [ 31 ] Should any or all of the paragraphs in the Amended Originating Application be struck, in whole or part, pursuant to Rule 14.24 ? decision Claims that Disclose No Reasonable Cause of Action [ 32 ] The Amended Originating Application is attached to this decision as Appendix A. The numbering of paragraphs is erratic in the middle of the document as Ms.

Al-Haidari abandons the chronological numbering after paragraph 17 and starts again at number one in recounting various incidents she relies on to ground her claims. She then returns to chronological numbering but this makes it awkward to refer to specific numbered paragraphs in light of the duplication of numbers. The problem is exacerbated by the absence of numbering of the pages of the Amended Originating Application.

Counsel for Memorial has helpfully renumbered the paragraphs after paragraph 17 in the Amended Originating Application and a copy of the renumbered document is attached to her Memorandum of Fact and Law.

The renumbered Amended Originating Application is attached to this decision as Appendix B. It is that renumbered version of theAmended Originating Application to which I will refer. [33] The Amended Originating Application purports to advance a number of causes of action identified by counsel for Memorial,and with which I agree, namely: i. The intentional tort of false decisions; ii. The tort of harassment; iii. Breach of privacy; iv. Defamation; v. Economic loss; vi. Negligent and/or intentional infliction of mental suffering; and vii. Negligence [34] While I will deal with each of these proposed causes of action in turn, generally pleadings should contain a brief

summarystatement of the material facts on which the party relies for her claim but not the evidence by which the facts are to be proved (Rule14.03). A pleading must contain the necessary particulars of the claim (Rule 14.11). [35] It is critical that the pleadings set out the facts being relied on to ground the claim in a clear and coherent way so that theDefendant does not have to search the pleading to determine what case it has to meet. The Amended Originating Application in this casefails to do that.

It is in places incoherent and replete with recitals of evidence, conclusions, and arguments, rather than facts. It generallyfails to provide the necessary particulars of the various claims and requires Memorial to search the pleadings in a quest to determine thecase it has to meet in respect of each purported cause of action. I will now consider each paragraph of the Amended OriginatingApplication in respect of the relevant sections of Rule 14.24. Intentional Tort of the False Decisions [36] In paragraph 25 of the Amended Originating Application Ms.

Al-Haidari advances a claim for what she refers to as “theintentional tort of the false decisions”. She refers specifically to decisions of the Student Conduct Officer and the Associate VicePresident (Academic) of Memorial. It is difficult to determine from the pleadings what facts are being relied on to support this claim. However, before attempting to discern those facts from the pleading, Memorial raises the objection that the law does not recognize a“tort of the false decisions”. I agree. This is not a novel claim which the common law should recognize as advancing the law.

Whilethe Court has the jurisdiction to establish new causes of action to meet the evolving requirements of society, it should do so cautiously:Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., (SCC), [1997] 3 S.C.R. 1210, paragraph 93. [37] In my view, rather than raise a new cause of action, Ms. Al-Haidari’s claim is instead a collateral attack on decisions whichwere made by the appropriate authorities at Memorial. If Ms. Al-Haidari wishes to challenge them, she must exhaust the appealprocesses at Memorial in respect of the relevant decisions.

Once she has done that, if she then wishes to come to this court for relief, itmust be by way of an application for judicial review of the decision under consideration, not by way of an Originating Application whichwould require the Court to re-litigate the matters already dealt with by the appropriate authorities at Memorial. [38] In the result, the allegations advanced in support of “the intentional tort of the false decisions” fail to disclose a reasonable causeof action and must be struck from the Amended Originating Application pursuant to Rule 14.24(1)(a).

As will be seen, many of theseallegations also offend other sections of Rule 14.24 and will be dealt with below. But for present purposes, the following paragraphs arestruck: the student conduct story set out in paragraph 24, paragraphs 25, 27, 29, 31, 32, and 39. Tort of Harassment [39] Ms. Al-Haidari pleads that through various means, Memorial has harassed her and caused her harm. She explicitly pleads “thetort of harassment”. At paragraph 31, the Amended Originating Application reads: 31.

The Applicant states that as a result of that intentional torts and harassment the Applicant, Memorial has treated the Applicantwith disdain, contempt and has sought to purposely disparage her character and her work, displaying bullying, intimidating, andharassing behaviour toward the Applicant, which harassing behaviour includes: a. Disclosing private medical information to the other students; b. Disclosing invasion of privacy of her life. c.

False Decisions of the Director of Student Life of Memorial University of Newfoundland and of the Associate Vice-President(Academic) of Memorial University of Newfoundland. d. the Intentional tort, harassment, and violation of Ms. Al-Haidari’s civil rights. e. Intentional Gross Negligence. f. Intentional Defamation

[underlining added, except in paragraph c.) [40] She also pleads in paragraph 34 that Memorial has exposed her to contempt and caused her to be shunned and avoided by hercolleagues and friends leading to embarrassment and humiliation. She repeats this pleading in paragraph 36, 37 and in her prayer forrelief at paragraph 39(a). [41] In Hagan v. Drover, 2009 NLTD 160 at paragraph 93, I held that there is no tort of harassment and that such allegations shouldbe pursued through the Human Rights Code, R.S.N.L. 1990, c. H-14.

That Code sets out a comprehensive administrative andadjudicative framework for such claims. [42] In Seneca College of Applied Arts & Technology v. Bhadauria, (SCC), [1981] 2 S.C.R. 181 at paragraph 27,the Supreme Court of Canada held that no such action (i.e. harassment) lies at common law “based on an invocation of the public policyexpressed in the [Human Rights] Code”. [43] While it is difficult to discern the facts on which Ms.

Al-Haidari is relying in her Amended Originating Application to supportthis alleged cause of action, to the extent that the allegations purport to support it they must be struck as disclosing no reasonable causeof action. In the absence of clarity in the pleadings, I agree with the submission of Memorial that the following allegations may fall intothis category and are therefore struck: paragraphs 9, 19, 20, 22(a), 22(b), 23, 31, 34, 36, 38 (“the common law torts of harassment”) and39(a). Breach of Privacy [44] Counsel for Memorial conceded that Ms.

Al-Haidari could prosecute a claim for breach of privacy were it properly pleaded. Memorial’s complaint with the privacy pleading is, amongst other things, that it does not permit Memorial to know the claim it has tomeet. I agree. [45] The Privacy Act, R.S.N.L. 1990. c. P-22, section 3(1), creates a tort “actionable without proof of damage, for a person, willfullyand without a claim of right, to violate the privacy of an individual”. Section 3(2) of the Privacy Act sets out the nature and degree ofprivacy to which a person is entitled. It states: 3.

(2) The nature and degree of privacy to which an individual is entitled in a situation or in relation to a matter is that which isreasonable in the circumstances, regard being given to the lawful interests of others; and in determining whether the act or conduct of aperson constitutes a violation of the privacy of an individual, regard shall be given to the nature, incidence, and occasion of the act orconduct and to the relationship, whether domestic or other, between the parties. [46] As in the case in the entire pleading, the basis for Ms. Al-Haidari’s claim for breach of privacy is unclear.

She appears toadvance it as part of her claim in harassment, with which I have already dealt. [47] In paragraphs 5, 6, and 11 to 13 of the Amended Originating Application, Ms. Al-Haidari complains of physicians of EasternHealth who allegedly tortured her “by different ways at the H[ealth] S[cience] C[omplex] … by many dangerous experiments usingelectromagnetic waves with depriving the sleeping and medicines”, all of which is allegedly under investigation by the police. She thenattempts to connect Memorial with these alleged experiments and the two physicians.

Then in paragraph 22 of the Amended OriginatingApplication Ms. Al-Haidari states that “the Physics department” exposed this story to “everybody in the department” and that a professor“pushed two students” to accuse her of “different crimes: terror, murder, stolen, and madness because Ameenah [Ms. Al-Haidari] wasarrested in the hospital.” [48] In paragraph 19, (“The laptop story”), Ms. Al-Haidari claims her laptop was encrypted to spy on her. Then, as examples ofharassing behavior, Ms. Al-Haidari in paragraph 31(

a) and (

b) cites “Disclosing private medical information to the other students”, and“Disclosing invasion of privacy of her life.” [49] In her prayer for her relief in paragraph 39(f), Ms. Al-Haidari seeks compensation for “Intentional invasion of privacy.” [50] While many of these allegations have been struck on other grounds, I would also strike them in reference to the claim forinvasion of privacy. In my view, they are far too vague and fail to disclose the nature, incidents and occasion of the alleged breach asrequired by section 3(2) of the Privacy Act so as to allow Memorial to know the case it must meet.

The allegations do not state whowithin the Physics Department is said to have breached her privacy or when it occurred. The claim lacks sufficient particularity. [51] As such, while the claim for breach of privacy as a potential cause of action may remain, the following paragraphs of theAmended Originating Application are struck as not disclosing a reasonable cause of action: 5, 6, 11 – 13, 19, 22, and 31(

a) and (b). Defamation [52] Ms. Al-Haidari has included a claim in defamation in her Amended Originating Application. Again, it is unclear which factsshe is relying on to support this claim. In Brown, R.E., The Law of Defamation in Canada, 2d ed., looseleaf, (Toronto: Carswell, 1994)(updated 2010) at 19.1) the author states at paragraph 19.1: Because of the technical nature of the tort, pleadings are of critical importance in an action for defamation. They must adequately definethe nature of the action or defences and the issues being tried.

The defamatory words must be set out with reasonable certainty, clarityand precision and if the words are innocent on their face, or have some special meaning, the facts or circumstances which give them adefamatory sting must be pleaded and proved. The plaintiff must also plead and prove that the words were published of and concerningthe plaintiff and were communicated to persons other than the plaintiff, identifying the time when, the place where and the persons towhom they were published.

(See also Hynes v. Pro Dive Marine Services Ltd., 2014 NLTD(G) 3) [53] This requirement was also referred to in Miller v. Squires, 2008 NLTD 25 per Hoegg, J. (as she then was) at paragraph 11: 11. In addition to the central issue of whether the impugned pleadings cannot succeed at law, it is my view that the Defendants areentitled to know the case they have to meet at trial. It is elementary fairness. It is also important for the trier of fact, be it judge or jury,that a case be clearly and chronologically set out in the pleadings.

In a defamation suit, the material facts supporting the constituentelements of defamation must be pleaded. [54] Ms. Al-Haidari has failed to plead the defamatory words allegedly spoken or written or by whom and to whom they were made. Without these material details, Memorial cannot discern or know the case it has to meet. Ms. Al-Haidari has not pleaded vicariousliability alleging that on some basis (which I might say parenthetically seems to be a hard case to make) that Memorial might beresponsible for words spoken by students or by persons at Eastern Health. [55] Therefore, without prejudice to Ms.

Al-Haidari further amending her Amended Originating Application to properly plead thenecessary facts to make out a case in defamation and without prejudice to any defence that Memorial may have to any such properlypleaded allegations as set out herein, to the extent that the following paragraphs are pleaded in support of the allegation of defamation,they are struck: paragraphs 15, 22, and 27. Economic Loss [56] In paragraph 38 of the Amended Originating Application Ms.

Al-Haidari states that she “repeats the foregoing and pleads thecommon law torts of harassment, economic loss, negligence and/or intentional infliction of mental suffering.” [underlining added] [57] There is no tort of pure economic loss recognized in Canadian Law (Bow Valley Husky). However, economic loss may berecoverable in some limited circumstances. The common law is dynamic and may be used to create new causes of action, as was thecase in Jones v.

Tsige, 2012 ONCA 32, where the Ontario Court of Appeal established the tort of intrusion upon seclusion. [58] However, this is not a case where that would be appropriate as Ms. Al-Haidari’s claim relates specifically to alleged actions byMemorial (or by implication, through vicarious liability). Ms. Al-Haidari has a direct and intimate connection to Memorial and thereforeshe has a direct, potential claim for economic loss against Memorial which could give rise to a remedy in damages (without in any waydeciding the merits of that claim).

But that claim is in negligence, (a tort long recognized in Canadian law) which I will deal with later. Recognizing a claim for pure economic loss in this matter would be to open a Pandora’s box “where the proposed changes will havecomplex and far reaching effects, setting the law on an unknown course whose ramifications cannot be accurately gauged”: Bow ValleyHusky, supra, paragraph 93.

As well, I find it is appropriate and proportional to deal with the matter at the pleadings stage when it isplain and obvious that the allegation discloses no reasonable cause of action as this saves the parties from a potentially lengthy andexpensive trial: Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38. [59] For these reasons, the claim in paragraph 38 in the Amended Originating Application for economic loss is struck. Intentional/Negligent Infliction of Mental Suffering [60] Also, in paragraph 38, Ms.

Al-Haidari pleads among other things, “the common law torts of: negligent and/or intentionalinfliction of mental suffering”. As in other claims in the Amended Originating Application, it is difficult to determine which allegationsrelate to this claim. As stated earlier, Memorial should not be forced to pick through the pleadings in an attempt to determine the case ithas to meet.

However, as in other claims and for the purposes of this claim, Memorial has isolated a number of factual assertions whichthey contend may be pleaded in support of it. [61] The tort of negligent infliction of mental suffering is not available in an employment context: Piresferreira v. Ayotte, 2010ONCA 384, leave to appeal refused, 2011 CarswellOnt 201 (SCC). Ms.

Al-Haidari was employed by Memorial as a TA during hertenure there. [62] And, in any event, the separate tort of negligent infliction of mental suffering has been rendered irrelevant by the SupremeCourt of Canada as it has found that damages for mental injury may be awarded in negligence: Saadati v. Moorhead, 2017 SCC 28. [63] However, the tort of intentional infliction of mental suffering is still available: Merrifield v. Canada (Attorney General), 2019ONCA 205, paragraph 44 et seq. and may be included as a basis for claiming damages for mental suffering in the employment context.

The elements of the tort were established in Prinzo v. Baycrest Centre for Geriatric Care, (2001) (ON CA), 161O.A.C. 302, 2002 CarswellOnt 2263 and restated in Merrifield, supra, at paragraph 45. The tort is made out where the claimantestablishes conduct that is: 1) Flagrant and outrageous; 2) Calculated to produce harm; and which 3) Results in visible and provable illness. [64] Counsel for Memorial made a lengthy submission as to why certain allegations by Ms. Al- Haidari should be struck as they donot make out a claim for intentional infliction of mental suffering.

At paragraph 44 of her Brief, she made particular reference toparagraphs 9-14, 18-24, and 26(b)–(

h) of the Amended Originating Application. However, in respect of the claim for intentional

infliction of mental suffering, I am of the opinion that the determination of whether a claim has been made out is better left to the trier of fact, rather than be dealt with at this preliminary stage of the proceedings. That is not to say that all of those pleadings referred to by Memorial respecting this claim pass the test set out in Rule 14.24 , which I will now deal with. Claims that are Scandalous or Frivolous Pleadings [ 65 ] Rule 14.24(1)(

b) states that pleadings that are scandalous or frivolous should be struck. [ 66 ] I agree with counsel for Memorial that certain paragraphs of the Amended Originating Application should be struck under Rule 14.24(1)(

b) as being scandalous or frivolous. Based on the legal

interpretation of this Rule referred to at paragraphs 25 - 26 of these reasons, the allegations of torture are scandalous because they are absurd, not relevant and appear designed to cast Memorial in a bad light. Some are argumentative and therefore scandalous. Others are without merit and are therefore frivolous: 1. Paragraph 9 suggests that Memorial has opened “Hell’s doors” on the Applicant and punished her. 2. Paragraph 10 asks a rhetorical question and is argumentative. 3. Paragraphs 11-14 engage in argument about Memorial’s alleged involvement in brainwashing and torture. 4.

Paragraph 15 is argumentative and simply asks a rhetorical question: “I have been accused by various faked issues without I know why and who?” 5. Paragraph 18(

d) alludes to a bald allegation of racism without any supporting facts. 6. Paragraph 19 suggests that Ms. Al- Haidari’s computer was encrypted to “control and spy” on her which is absurd. 7. Paragraph 20 is again argumentative inasmuch as it speaks to the truthfulness of alleged statements indicating that Ms. Al- Haidari’s perfume caused a “respiratory crisis” and that the alleged actions of two employees of Memorial were designed to make Ms. Al- Haidari nervous and to “create any problems”. 8. Paragraph 22 argues that, because Ms.

Al-Haidari was allegedly arrested in the hospital, the Physics Department is alleged to have pushed students to accuse Ms. Al-Haidari of “crimes and terror”. 9. Paragraph 23 in which Ms. Al-Haidari argues that, rather than resolve the heat dispute between Ms. Al-Haidari and the complainants in the Complaint, the Physics Department “makes it big case with accused me by crimes of terror”. 10. Paragraph 26(

b) uses sarcasm to argue a connection between Ms. Al-Haidari’s failing grade and her complaints lodged against two physicians employed with the Eastern Regional Integrated Health Authority. [ 67 ] The above paragraphs referred to in paragraph 66 are scandalous or frivolous. The following paragraphs are struck on this ground: 9, 22, 23 and 26(b). [ 68 ] In subparagraphs 26(

e) to (h), Ms.

Al-Haidari engages in argument about the validity of the decision to terminate her Ph.D. program by stating: 1) That she has corrected mistakes and the techniques of her supervisor; 2) That she developed a “Langevin” equation for which 110 years most scientists failed; 3) “Of course, I deserved terminated from Ph.D. program because I continuous suing Memorial University” (presumably stated sarcastically); and 4) “the committee” and her supervisor will not provide her scientific reports that she is waiting for, explaining why she was terminated from her program because, she alleges, the decision was made by administrators because she has sued Memorial. [ 69 ] These paragraphs are struck on the basis of being frivolous and a collateral attack on the decision to terminate her Ph.D.

program which may only be challenged by way of judicial review. [ 70 ] In paragraph 24, Ms. Al-Haidari raises issues respecting procedural fairness in respect of the Student Code of Conduct decision which I have dealt with earlier. In paragraph 25, Ms. Al-Haidari pleads the “Intentional Tort of the False Decisions” respecting the Student Code of Conduct decision and the final decision which, again, I have dealt with earlier. This alleged tort is repeated in the prayers for relief in paragraph 39(i). In paragraph 32, Ms.

Al-Haidari appears to challenge both of the above referenced decisions by suggesting that the statements assessed in the decisions are “inaccurate, false and unfair.” In paragraph 37, Ms. Al-Haidari alleges that Memorial favoured the complainants and/or relied on false and/or, baseless and/or inflammatory comments made by the complainants, all of which have been dealt with earlier by me. [ 71 ] These allegations would require the Court to look behind the decisions in the Complaint and the final decision to uphold that decision and should, as I have earlier found, be framed as an application for judicial review.

As such, the following paragraphs in addition to any other violation of Rule 14.24 are unsustainable as an abuse of process and are therefore frivolous: 9, 10, 11-15, 18(d), 19, 20, 22 - 26, 32, 37 and 39(i). Pleadings which are Embarrassing and Prejudicial [ 72 ] The Amended Originating Application takes a scattergun approach to the claims asserted by Ms. Al-Haidari. Memorial is left to speculate on which factual assertions relate to which causes of action pleaded. This approach is embarrassing in the legal sense as described in paragraph 28 hereof.

The inability to determine the relevancy of any allegation to any particular cause of action; the inability to actually discern what causes of action are being pleaded or the facts to support the actions which have been identified, all lead to the conclusion that practically the entire Amended Originating Application is embarrassing, with the exception of the pleadings in negligence, defamation, intentional infliction of mental suffering and breach of privacy. [ 73 ] I agree with counsel for Memorial that the following paragraphs are irrelevant and leave Memorial to speculate as to the legal basis for the claim and, conversely, to speculate on the facts asserted to support the causes of action identified. [ 74 ] Paragraph 5 relates to a complaint to the Eastern Regional Integrated Health Authority about two physicians who are also allegedly employed by Memorial (without any factual foundation) and argues that the case will reach the International Criminal Court. [ 75 ] Paragraph 6 states: The case until now under the investigation by RNC, I was tortured by different ways at HSC and those two Physicians apply on the patients many dangerous experiments using electromagnetic waves with depriving the sleeping, and medicines.

The most patients do not specialized in Physics and engineering to aware what happened to them at HSC. [ 76 ] Quite apart from being scandalous and outrageous, the allegations relate to physicians at the Health Sciences Centre and are wholly irrelevant to any action against Memorial. Again, in paragraph 7 Ms. Al-Haidari complains of personal injuries allegedly sustained as a result of torture at the Health Sciences Centre. The same applies to the prayer for relief in paragraph 40(g).

This is wholly immaterial to an action advanced against Memorial. [ 77 ] Paragraph 8 refers to various levels of government and organizations in respect of which Ms. Al-Haidari claims she has informed them of what has occurred to her and that her case “will be heard around the world”. Again, this is wholly irrelevant. [ 78 ] In paragraphs 11-14, Ms. Al-Haidari alleges a project at Memorial to study sleep and its impact, mind-control experiments, a connection between the sleep study and torture at the Health Sciences Centre and that Memorial uses torture techniques to destroy Ms. Al-Haidari.

I agree with counsel for Memorial that these allegations are not only absurd but they leave Memorial in a position unable to respond to them in an intelligible way and are therefore embarrassing. [ 79 ] Paragraph 17 states: When I will start my case against who tortured me, dr. Dolezalek and dr. Callanan will have several cases by Memorial University that Ameenah accused people around her by crazy things as Ameenah accused them. [ 80 ] I find this paragraph unintelligible and confusing.

It is therefore embarrassing. [ 81 ] Therefore, in addition to being struck under other sections, the following paragraphs are struck as being embarrassing: 5 - 8, 11-14, 17-22, 25, 39(

i) and 40(g). Pleadings which are Otherwise an Abuse of Process [ 82 ] Memorial submits that some of the pleadings constitute an abuse of process pursuant to Rule 14.24(1)(d), in addition to offending other sections of Rule 14.24 referred to above. As stated earlier, it is also improper pleading to attempt to re-litigate matters which have already been the subject of administrative review processes and which should be challenged by way of judicial review. What Ms. Al-Haidari has also done in large

part in her Amended Originating Application is dress up factual assertions from these processes as separate causes of action. To proceed with such claims would require a re-litigation of them which could lead to conflicting findings of fact and would constitute a collateral attack on these administrative processes. That is a classic case of abuse of process. [ 83 ] In broad stroke, the claims by Ms. Al-Haidari in her Amended Originating Application which fall into this category are: that Memorial favoured the complainants in the Complaint; relied on “false and/or baseless and/or inflammatory comments” made by the

complainants in the negligence claim; the Intentional Tort of False Decisions, and intentional infliction of mental suffering, to the extentthat it relies on allegations of procedural fairness in the handling of the student conduct complaint and all allegations that Ms. Al-Haidariwas wrongfully dismissed from the TA positon. [84] Memorial referred to the decision of the Ontario Superior Court in Aba-Alkhail v. University of Ottawa, 2013 ONSC 2127, aff’d2013 ONCA 633; leave to appeal denied, (SCC), 2014 Canlii11029 (SCC).

This was a case of three doctors fromSaudi Arabia who had entered the residency program in the medical faculty of the University of Ottawa to gain a specialty designation invarious fields of study. In their respective academic evaluations, they were variously required to undergo certain remedial programs,probation and in one case one was dismissed from his position. They each filed internal appeals at the university as well as launchingHuman Rights complaints.

Following failure to have the decisions overturned, they each filed an action in the Ontario Superior Court intort and contract, alleging various causes of action. [85] The issue was whether it was an abuse of process for the doctors to sue in contract and tort for damages on the same facts reliedon in the internal appeal processes at the university. Minnema, J. held at paragraph 43 that it was an abuse of process to allow theactions to proceed: 43. … The underlying complaint of each plaintiff is that they were not promoted in their programs or were dismissed in theirprograms.

To be successful on the claims would require different findings of fact from what was determined in the internal reviewprocess on the very same evidence. It would be re-litigation in a different forum. I find this to be an abuse of process. [86] This is what Ms. Al-Haidari asks the Court to do in this case. She wants a different finding than that made by the decisionmakers in the internal appeal processes at Memorial which could lead to different findings of fact. That is something this Court cannotdo.

The ability to make a non-academic decision such as in respect of a student complaint and an academic decision such as thetermination of a student’s Ph.D. program has been delegated to Memorial (Memorial University Act, R.S.N.L.1990, c. M-7,

section 34). [87] Memorial has established various processes to determine such issues with rights of appeal from the decisions of the initialdecision makers. This is a classic administrative law setup and the law is clear that the only remedy available is by way of judicialreview. The proper approach would be for Ms. Al-Haidari to seek judicial review of the decisions based on the record before thedecision maker. To do as Ms.

Al-Haidari has done, i.e. to commence a cause of action in this court, amounts to a collateral attack on theprocesses established to determine such matters. [88] Therefore, I strike paragraphs 24, 25 and 37 on the ground that they constitute an abuse of process, in addition to any otherparagraphs of

section 14.24 to which I have already referred. Wrongful Dismissal Claim [89] Ms. Al-Haidari claims in paragraph 21 in the Amended Originating Application that she was wrongly terminated from her TAposition. While the date of termination is not stated in her pleading, Ms. Al-Haidari stated in an unsworn affidavit filed with the courtthat it occurred in August 2017. [90] As already indicated, all TA positions at Memorial are covered by a collective agreement. The collective agreement providesfor a grievance and arbitration procedure (see affidavit of Geoff Williams) which explicitly includes termination of employment. Thelaw is clear that if a dispute arises out of the administration,

interpretation or violation of a collective agreement, the only remedyavailable to the aggrieved party is the grievance procedure and the exclusive authority to adjudicate the grievance lies with an arbitratorappointed in accordance with the collective agreement: Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929. [91] In paragraph 33 of the Amended Originating Application Ms. Al-Haidari purports to make a claim relating to the termination ofher supervisory relationship.

It is unclear whether this refers to her TA position or some other supervisory responsibility she may havehad which was not explicitly stated in the pleadings. Since she was a graduate student and no other supervisory duties were mentioned, Iconclude that she was referring to duties associated with her TA position. [92] It matters not that Ms. Al-Haidari has characterized her claim in negligence or some other independent cause of action. Thedispute arises out of a context which is connected to the collective agreement and no independent cause of action lies.

As the SupremeCourt of Canada stated in Weber at paragraph 48: 48. Underlying both the Court of Appeal and Supreme Court of Canada decisions in St. Anne Nackawic is the insistence that theanalysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the disputebetween the parties, not on the basis of the legal issues which may be framed.

The issue is not whether the action, defined legally, isindependent of the collective agreement, but rather whether the dispute is one "arising under [the] collective agreement." Where thedispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it liesexclusively with the labour tribunal, and the courts cannot try it. [emphasis added] [93] Therefore, paragraphs 21 and 33 are struck as an abuse of process pursuant to Rule 14.24(1)(d). conclusion [94] For the above reasons, with the exceptions noted below, the following paragraphs of the Amended Originating Application arestruck: 5 - 25, 26(b), 26(e) – (h), 27 - 34, 36 - 39, and 40(g). [95] What is permitted to remain are the following paragraphs or portions thereof: 1, 2, 3, 4, 26 (a) (

c) and (d), 35 and 40 (a) - (

f) and

(h). [ 96 ] While the relief sought by Ms. Al-Haidari is different from that claimed in the internal appeal process, that does not change the essential character of the claim. Ms. Al-Haidari is relying on the same facts that were, or ought to have been, before the decision maker at Memorial. This is clear from the affidavits of Dr. Sean Caddigan, Dr. Jennifer Massey and Dr. Heather Tobin. As stated in Canada (Attorney General) v.

TeleZone Inc. , 2010 SCC 62 at paragraph 78 : 78. … There is always a residual discretion in the inherent jurisdiction of the provincial superior court (as well as in the Federal Court under s. 50(1) of its Act), to stay the damages claim because in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. Generally speaking the fundamental issue will always be whether the claimant has pleaded a reasonable private cause of action for damages.

If so, he or she should generally be allowed to get on with it. [ 97 ] The claims of negligence, breach of privacy, defamation and intentional infliction of mental suffering are claims which may form the basis of legitimate causes of action. However, the Amended Originating Application, with the deletions noted in this decision, does not contain sufficient particulars to allow Memorial to know the case it has to meet. Ms. Al-Haidari is self-represented and therefore should be accorded some leeway in drafting her pleadings.

However, they must comply with Rule 14.24 and any other relevant Rules of Court , the relevant statutes and this judgment. [ 98 ] Ms. Al-Haidari is given 30 days from the date of this judgment to provide to Memorial and file with the court particulars of the potential causes of action in negligence, breach of privacy, defamation and intentional infliction of mental suffering. costs [ 99 ] There has already been one decision in which Ms. Al-Haidari has been given the opportunity to amend her pleadings in accordance with the Rules of Court .

She failed to do so and this resulted in this lengthy preliminary procedure. [ 100 ] Therefore, I award costs to Memorial on Column 3 of the Scale of Costs in any event of the cause. _____________________________ James P. Adams Justice