Jason Sheppard Plaintiff And: HER MAJESTY IN RIGHT OF NEWFOUNDLAND v. LABRADOR, 2021 NLSC 180

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Sheppard v. Newfoundland and Labrador (Justice and Public Safety) , 2021 NLSC 180 Date : December 24, 2021 Docket : 201901G2912 Between: Jason Sheppard Plaintiff And: HER MAJESTY IN RIGHT OF NEWFOUNDLAND AND LABRADOR as represented by the Minister of Justice and Public Safety First Defendant And: DEPARTMENT OF JUSTICE, and the ROYAL NEWFOUNDLAND CONSTABULARY as represented by the Minister of Justice and Public Safety Second Defendant And: ronald MacDONALD Third Defendant Before: Justice Trudy L. Button Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 25, 2021 Appearances:

James D. Hughes, Q.C. Appearing on behalf of the Plaintiff Suzanne M. Orsborn and Eugene Chao Appearing on behalf of the First and Second Defendants Jonathan E. Noonan Appearing on behalf of the Third Defendant Authorities Cited: CASES CONSIDERED: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19; Newfoundland and Labrador v. Chiasson, 2020 NLCA28; Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10; Odhavji Estate v. Woodhouse, 2003 SCC 69; Turner-Lienaux v. Nova Scotia (Registrar of Motor Vehicles), 2020 NSSC 292; Taylor v. British Columbia, 2020 BCSC 1936; Ontario (AttorneyGeneral) v.

Clark, 2021 SCC 18; Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526; Conway v.Law Society of Upper Canada, 2016 ONCA 72; J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308; Hill v.Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41; Anns v. Merton London Borough Council, [1978]AC 728 (H.L.); Correia v. Canac Kitchens, 2008 ONCA 506; Wallace v. United Gain Growers Ltd., (SCC), [1997] 3S.C.R. 701; Lee v. Magna International Inc. et. al., 2020 ONSC 3912; Luan v. ADP Canada Co., 2020 ABQB 387; Merrifield v.

Canada(Attorney General), 2019 ONCA 205; Eks v. Tadeu, 2019 ONSC 3745; Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419; MontrealTrust Co. of Canada v. Hickman, 2001 NFCA 42; 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] SCC 59; John Doe(G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27; Ernst v. Alberta Energy Regulator, 2017 SCC1; D’Mello v. Law Society of Upper Canada, 2014 ONCA 912; Sussman v. Eales, [1986] O.J. No. 317, 25 C.P.C. (2d) 7 (Ont. C.A.);Cimolai v. Hall, 2004 BCSC 153; Hung v. Gardiner, 2003 BCCA 257; Voratovic v.

Law Society of Upper Canada, (ON SC), [1978] 2 A.C.W.S. 205, 87 D.L.R. (3d) 140 (Ont. S.C.); Guydos v. Workplace Safety and Insurance Appeals Tribunal, 2013HRTO 1371; Humby v. Enterprises Ltd. v. A.L. Stuckless & Sons Ltd., 2003 NLCA 20; Coble v. Canadian Pacific Railway (1944), (SK KB), 1 W.W.R. 161, 1944 CarswellSask 22 (Q.B.); U.F.C.W. v. Cashin (1987), (NL SC), 66 Nfld. &P.E.I.R. 181, 204 A.P.R. 181 (Nfld. S.C. (T.D.)) STATUTES CONSIDERED: Limitations Act, S.N.L. 1995, c. L-16.1; Nova Scotia Police Act, S.N.S. 2004, c. 31; Royal CanadianMounted Police Act, R.S.C. 1985, c.

R-10 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Button, J.: INTRODUCTION [1] The First Defendant, Her Majesty in Right of Newfoundland and Labrador as represented by the Minister of Justice and PublicSafety (“JPS”), the Second Defendant, the Department of Justice and Public Safety and the Royal Newfoundland Constabulary (“RNC”)as represented by the Minister of Justice and Public Safety and the Third Defendant, Ronald MacDonald, the former Director of theSerious Incident Response Team of Nova Scotia (“SIRT NS”) have applied to this Court pursuant to Rule 14.24(1)(

a) of the Rules of theSupreme Court, 1986, S.N.L. 1986, c. 42, Sch. D to strike out the claims against them on the basis that the pleadings disclose noreasonable cause of action (the “JPS” and the “RNC” referred to collectively as “HMQ”). [2] In the event that HMQ is unsuccessful in striking Mr. Sheppard’s claim for emotional distress, anxiety and upset, HMQ alsoseeks to amend its Statement of Defence to plead the Limitations Act, S.N.L. 1995, c. L-16.1. [3] The basis for Mr. MacDonald’s application to strike is that he is protected by statutory immunity and the common law defenceof absolute privilege. Mr.

MacDonald also seeks to strike portions of paragraphs 15 and 19 of the Statement of Claim on the basis thatthey plead evidence contrary to Rule 14.03.

[ 4 ] The Plaintiff, Jason Sheppard began his career with the RNC in 1984. When he retired from the RNC on April 30, 2017 he was the Superintendent in Charge of the Criminal Investigation Division (“CID”). Mr. Sheppard’s claims against the Defendants flow from the HMQ’s engagement of Mr. MacDonald to conduct a Respectful Workplace Investigation (the “RWP Investigation”) into a complaint filed against him, the investigation of that complaint by Mr. MacDonald and HMQ’s management of the RWP Report completed by Mr. MacDonald. [ 5 ] Mr. Sheppard alleges that at the time Mr.

MacDonald was engaged by HMQ to conduct the RWP Investigation, he was in the midst of conducting a criminal investigation (the “SIRT NS Investigation”) for HMQ into possible obstruction of justice charges involving a number of RNC officers, including Mr. Sheppard. The SIRT NS Investigation was related to a homicide investigation initiated after Mr. Sheppard informed the investigating officer that he was being removed from the file. The investigating officer initiated the RWP complaint against Mr. Sheppard. [ 6 ] The causes of action raised by Mr.

Sheppard in his Statement of Claim, include: constructive dismissal, misfeasance in public office, negligence, and intentional infliction of mental suffering. Mr. Sheppard claims that HMQ is vicariously liable for Mr. MacDonald’s conduct and also seeks punitive damages and aggravated damages. ISSUES [ 7 ] Should Mr. Sheppard’s claims against HMQ and Mr. MacDonald be struck as disclosing no reasonable cause of action pursuant to Rule 14.24(1) (a)? [ 8 ] Should HMQ be granted leave to amend its Statement of Defence to plead the Limitations Act , if unsuccessful in its application to strike Mr.

Sheppard’s claim for emotional distress, anxiety and upset? [ 9 ] Should portions of paragraphs 15 and 19 of the Statement of Claim be struck pursuant to Rule 14.24(1) (

c) or (

d) on the basis that they plead evidence contrary to Rule 14.03? LAW AND ANALYSIS A. Rule 14.24(1)(a) [ 10 ] Rule 14.24 reads as follows: 14.24.

(1) The Court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck 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 process of the Court, and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. [ 11 ] The Supreme Court of Canada recently considered the test to be applied in applications to strike under Rule 14.24 in Atlantic Lottery Corp. Inc. v. Babstock , 2020 SCC 19 : 14 ALC's application to strike relies on r. 14.24(1) of the Rules of the Supreme Court , which allows the court to strike any portion of a statement of claim that discloses no reasonable cause of action.

The parties agree that determining whether any reasonable cause of action is disclosed in the plaintiffs' statement of claim will also satisfy the first requirement of the plaintiffs' application for certification. The test to be applied under both applications, therefore, is whether it is plain and obvious, assuming the facts pleaded to be true, that each of the plaintiffs' pleaded claims disclose no reasonable cause of action. Simply stated, if a claim has no reasonable prospect of success it should not be allowed to proceed to trial ( Knight v.

Imperial Tobacco Canada Ltd. , 2011 SCC 42 , [2011] 3 S.C.R. 45 (S.C.C.), at para. 17 ). [ 12 ] Brown, J., in writing for the majority in Atlantic Lottery reiterated the Supreme Court of Canada’s recognition of the importance of applications to strike in promoting access to justice: 18 Secondly, and since Microsoft was decided, this Court has recognized in Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 (S.C.C.) the need for a culture shift to promote "timely and affordable access to the civil justice system" (para. 2).

Where possible, therefore, courts should resolve legal disputes promptly, rather than referring them to a full trial (paras. 24-25 and 32). This includes resolving questions of law by striking claims that have no reasonable chance of success (S. G. A. Pitel and M. B. Lerner, "Resolving Questions of Law: A Modern Approach to Rule 21" (2014), 43 Adv. Q. 344, at pp. 351-52). Indeed, the power to strike hopeless claims

is "a valuable housekeeping measure essential to effective and fair litigation" (Imperial Tobacco, at para. 19). [13] The principles enunciated by the Supreme Court of Canada in Atlantic Lottery with regard to resolving legal issues andquestions of law on the facts pleaded in the initial stages of a proceeding, were applied by our Court of Appeal in Newfoundland andLabrador v. Chiasson, 2020 NLCA 28. [14] The Supreme Court of Canada decision in Knight v.

Imperial Tobacco Canada, 2011 SCC 42, applied by the Court in AtlanticLottery, offers further guidance on the test for applications to strike: 17 The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(

a) ofthe B.C. Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struck if it is plain andobvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse,2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. T & N plc, (SCC), [1990] 2 S.C.R. 959 (S.C.C.) at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists,the matter should be allowed to proceed to trial: see, generally, D. (B.) v.

Children's Aid Society of Halton (Region), 2007 SCC 38,[2007] 3 S.C.R. 83 (S.C.C.); Odhavji Estate; Hunt; Inuit Tapirisat of Canada v.

Canada (Attorney General), [1980] 2 F.C.R.735 (S.C.C.). [15] The “plain and obvious test”, that pleadings should not be struck unless it is plain and obvious that it discloses no reasonablecause of action and is certain to fail, is well recognized and applied by the courts in this Province. [16] Assuming the facts set out in the Statement of Claim can be proved, I must assess whether it is plain and obvious that thepleadings disclose no reasonable cause of action, or put another way, the claims have no reasonable prospect of success. B.

Constructive Dismissal [17] HMQ submits that there are no pleadings supporting a conclusion that Mr. Sheppard was constructively dismissed. On thatbasis, HMQ submits that Mr. Sheppard’s claim for constructive dismissal has no reasonable prospect of success and should be struck. [18] The relevant facts in the Statement of Claim forming the basis for Mr.

Sheppard’s constructive dismissal claim are summarizedbelow. [19] Paragraph 7 of the Statement of Claim alleges that in October 2014 a disagreement arose as to how the primary investigatingofficer was handling a homicide investigation and a decision was made to remove him from the file. This decision was made by Mr.Sheppard in consultation with other members of the RNC, including the Chief of Police. The investigating officer was informed of thisdecision by Mr.

Sheppard. [20] Paragraphs 8 and 9 of the Statement of Claim allege that the Department of Justice and Public Safety engaged the SIRT NS toconduct a criminal investigation into possible obstruction of justice charges of police officers related to the homicide investigation. Mr.Sheppard was one of the police officers subject to the SIRT NS Investigation. Mr. MacDonald was responsible for the SIRT NSInvestigation which included interviewing the investigating officer in the homicide investigation. On June 1, 2017 Mr.

MacDonald filedhis report in which he concluded that there were no grounds for criminal charges. [21] Paragraphs 10 and 11 of the Statement of Claim, allege that in March 2015 a Respectful Workplace Complaint (“RWPComplaint”) against Mr. Sheppard was filed with the Public Service Commission (“PSC”) initiated by the investigating officer for Mr.Sheppard’s treatment of him related to his removal from the homicide investigation. The PSC commenced, but did not finalize theinvestigation. Mr.

MacDonald was engaged to conduct the investigation of RWP Complaint through a Memorandum of Understandingbetween the JPS and the Minister of Justice for Nova Scotia. [22] Paragraphs 14 and 15 of the Statement of Claim allege that within days of Mr. MacDonald completing his investigation of theRWP Complaint and providing his report to JPS, rumors started to surface within the RNC that Mr. Sheppard was being forced to resignas a result of adverse findings made against him in the RWP Report. These findings include that Mr.

Sheppard treated the investigatingofficer poorly causing him harm. [23] Paragraph 16 of the Statement of Claim alleges that as a result of the toxic work environment caused by Mr. MacDonald’sRWP Investigation and the way he carried it out in a biased and unprofessional manner, Mr. Sheppard retired from the RNC as hebelieved that his authority to continue as a Commanding Officer in charge of the CID was compromised as a result of Mr. MacDonald’sfindings. [24] Paragraph 17 of the Statement of Claim alleges that on April 10, 2017 Mr.

Sheppard was provided the RWP Report by HeatherJacobs, Q.C., the Deputy Minister of Justice and Deputy Attorney General for the Department of Justice and Public Safety. It was Ms.Jacobs who requested the assistance of SIRT NS to conduct the criminal investigation into possible obstruction of justice charges relatedto the homicide investigation. [25] Paragraph 19 of the Statement of Claim alleges that on March 12, 2018 Todd Stanley, Q.C., Deputy Minister and DeputyAttorney General for the Department of Justice and Public Safety wrote Mr. Sheppard regarding JPS’s review of the RWP Report.

JPSdetermined that it could not accept the findings of Mr. MacDonald due to significant concerns regarding the level of procedural fairnessin the investigation and the reasonableness of the resulting substantive findings. [26] Paragraph 21 of the Statement of Claim alleges that Mr. MacDonald’s investigation was conducted in bad faith, as a result ofhis demonstrated bias towards Mr. Sheppard and his failure to complete a fair investigation with proper respect to the principles ofprocedural fairness. Mr.

Sheppard alleges that HMQ “knew, or ought to have known, that proceeding in this way was improper, unfairand unlawful”.

[27] The principles articulated by the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission, 2015SCC 10, provide guidance in determining whether an employee has been constructively dismissed: 30 When an employer's conduct evinces an intention no longer to be bound by the employment contract, the employee has the choiceof either accepting that conduct or changes made by the employer, or treating the conduct or changes as a repudiation of the contract bythe employer and suing for wrongful dismissal.

This was clearly stated in Farber, at para. 33, the leading case on the law of constructivedismissal in Canada. See also Rubel Bronze & Metal Co. v. Vos (1917), [1918] 1 K.B. 315 (Eng. K.B.), at p. 322. Since the employee hasnot been formally dismissed, the employer's act is referred to as "constructive dismissal". The word "constructive" indicates that thedismissal is a legal construct: the employer's act is treated as a dismissal because of the way it is characterized by the law (J. A. Yogisand C. Cotter, Barron's Canadian Law Dictionary (6th ed. 2009), at p. 61; B. A.

Garner, ed., Black's Law Dictionary (10th ed. 2014), atp. 380). 31 The burden rests on the employee to establish that he or she has been constructively dismissed. If the employee is successful, he orshe is then entitled to damages in lieu of reasonable notice of termination. In Farber, the Court surveyed both the common law and thecivil law jurisprudence in this regard. The solutions adopted and principles applied in the two legal systems are very similar.

In both, thepurpose of the inquiry is to determine whether the employer's act evinced an intention no longer to be bound by the contract. 32 Given that employment contracts are dynamic in comparison with commercial contracts, courts have properly taken a flexibleapproach in determining whether the employer's conduct evinced an intention no longer to be bound by the contract. There are twobranches of the test that have emerged.

Most often, the court must first identify an express or implied contract term that has beenbreached, and then determine whether that breach was sufficiently serious to constitute constructive dismissal: J. R. Sproat, WrongfulDismissal Handbook (6th ed. 2012), at p. 5-5; P. Barnacle, Employment Law in Canada (4th ed. (loose-leaf)), at §§ 13.36 and 13.70.Typically, the breach in question involves changes to the employee's compensation, work assignments or place of work that are bothunilateral and substantial: see, e.g., G. England, Individual Employment Law (2nd ed. 2008), at pp. 348-56.

In the words of McCardie J.,in Rubel Bronze, at p. 323, "The question is ever one of degree". 33 However, an employer's conduct will also constitute constructive dismissal if it more generally shows that the employer intendednot to be bound by the contract. In applying Farber, courts have held that an employee can be found to have been constructivelydismissed without identifying a specific term that was breached if the employer's treatment of the employee made continued employmentintolerable: see, e.g., Shah v. Xerox Canada Ltd. (2000), (ON CA), 131 O.A.C. 44 (Ont. C.A.); Whiting v.

WinnipegRiver Brokenhead Community Futures Development Corp. (1998), (MB CA), 159 D.L.R. (4th) 18 (Man. C.A.). Thisapproach is necessarily retrospective, as it requires consideration of the cumulative effect of past acts by the employer and thedetermination of whether those acts evinced an intention no longer to be bound by the contract. [28] HMQ submits that for a court to find that an employee has been constructively dismissed, the employers conduct must “evincean intention no longer to be bound by the contract” which may be accomplished in one of two ways.

First, an express or implied term inthe employment contract has been breached and the breach is sufficiently serious to constitute constructive dismissal, which HMQsubmits Mr. Sheppard has not pleaded.

Second, whether the cumulative effect of the past acts of the employer “more generally showsthat the employer intended not to be bound by the contract.” [29] While HMQ recognizes that Canadian courts have found that a “toxic” or “poisoned” workplace can ground a finding ofconstructive dismissal, it submits that the pleadings do not provide a factual basis upon which it could be concluded that HMQ’s generalconduct evinced an intention to no longer be bound by the employment contract, including through the creation of a poisoned or toxicworkplace. [30] In response to the submissions by HMQ, Mr.

Sheppard highlights a number of facts in his Statement of Claim, including: Mr.MacDonald being engaged to conduct the RWP Investigation when he was in the midst of conducting a SIRT NS Investigation involvingMr. Sheppard; rumors within the RNC following completion of the RWP Report that Mr. Sheppard was being forced to resign as a resultof the RWP Report; and that the RWP Report created a “toxic work environment” compromising his authority to continue asCommanding Officer of the CID. [31] Pivotal to Mr.

Sheppard’s submissions regarding his constructive dismissal claim are the contextual considerations related tothe RWP Investigation and the SIRT NS Investigation. In particular, that HMQ engaged Mr. MacDonald to conduct a SIRT NSInvestigation regarding possible obstruction of justice charges of members of the RNC, including Mr. Sheppard, and prior to thecompletion of the SIRT NS Investigation, HMQ also engaged Mr.

MacDonald to conduct the RWP Investigation. [32] In its submissions HMQ itemized what it considered to be a number of deficiencies in the pleadings as support for its positionthat there is no factual basis upon which it could be concluded that HMQ’s conduct evinced an intention to no longer be bound to theemployment contract with Mr. Sheppard. HMQ gives little regard to the alleged facts that HMQ had also engaged Mr. MacDonald toconduct the SIRT NS Investigation, and that Mr. MacDonald was conducting two investigations contemporaneously, involving Mr.Sheppard.

There is also little regard to the alleged facts that: (

a) both investigations involve the investigating officer in the homicide investigation; (

b) the timeline as to how the two investigations unfolded; (

c) the RWP Report with its adverse findings being completed prior to the SIRT NS Investigation;

(

d) the rumors that Mr. Sheppard was being forced to resign; (

e) the “toxic work environment” caused by the biased and unprofessional manner in which the RWP Investigation was carried out; and (

f) that Mr. Sheppard’s authority as a Commanding Officer with the RNC was compromised as a result of the adverse findings in the RWP Report. [ 33 ] While the pleadings could have been better framed to connect the dots, so to speak, to ground Mr. Sheppard’s constructive dismissal claim, assuming that the facts as pleaded can be proven, I cannot find that it is plain and obvious that the pleadings disclose no reasonable cause of action. However, HMQ is entitled to further particulars of the claim to know the case it has to meet. Specifically, Mr.

Sheppard must provide particulars of the rumors, including who brought the rumors to his attention and who was going to force him to resign. As well, Mr. Sheppard must provide particulars of the “toxic work environment” caused by Mr. MacDonald’s investigation that compromised his authority as Commanding officer in charge of the CID with the RNC. C. Misfeasance in Public Office [ 34 ] HMQ’s position regarding Mr. Sheppard’s claims against HMQ and Mr.

MacDonald for misfeasance in public office is twofold: that there are no particulars in the Statement of Claim to support a finding that the elements of misfeasance in public office have been met; and in conducting the RWP Investigation Mr. MacDonald was not acting as a “public officer”. [ 35 ] The elements of the tort of misfeasance in public office were summarized by the Supreme Court of Canada in Odhavji Estate v. Woodhouse , 2003 SCC 69 : 32 To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (

i) deliberate unlawful conduct in the exercise of public functions and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries and that the injuries suffered are compensable in tort law. [ 36 ] HMQ relied on a recent decision of the Supreme Court of Nova Scotia in Turner-Lienaux v.

Nova Scotia (Registrar of Motor Vehicles) , 2020 NSSC 292 , in providing an overview of misfeasance in public office: 147 The British Columbia Court of Appeal recently summarized Odhavji and the elements of the tort in J.P. v. British Columbia (Children and Family Development) , 2017 BCCA 308 B.C. C.A., leave to appeal to S.C.C. refused [2018 CarswellBC 541 (S.C.C.) ].

The Court reiterated (at para. 324) that the tort has two elements: "(1) deliberate unlawful conduct by a public officer in the exercise of his or her powers (the actus reus ); and (2) the awareness (knowledge) that the unlawful conduct is likely to injure the particular plaintiff (the mens rea )".

The Court went on to provide the following commentary (at paras. 326, 327, and 329) regarding the two ways in which the elements can be established (that is, Category A and Category B misfeasance): Category A misfeasance is established when a public officer exercises his or her power for the specific purpose of harming the plaintiff. Three Rivers described it as "targeted malice" that includes conduct done for the ulterior or improper purpose of harming the plaintiff.

Proof of the specific intent to harm the plaintiff will be sufficient to establish that the public officer had knowledge his or her conduct was likely to harm the plaintiff... Category B misfeasance is more complex. It does not require a finding of specific intent to harm the plaintiff, but rather an objective determination that the public officer knowingly engaged in a deliberate unlawful act with an awareness that his or her conduct would likely harm the plaintiff or a class of plaintiffs. Knowledge of harm alone is insufficient to establish that the public officer acted in bad faith or dishonestly.

Rather, the officer must know that the deliberate conduct is inconsistent with the obligations of the office, including that it exceeds the powers of the office, or omits a legally required act... . . . The mental element of Category A or Category B misfeasance establishes the "bad faith" or "dishonesty" of the public officer. Accordingly, it requires "clear proof commensurate with the seriousness of the wrong"...

Awareness or knowledge that the unlawful act is likely to harm the plaintiff requires at least a subjective recklessness or willful blindness, if not actual knowledge, of the likely consequences of the unlawful act... Subjective recklessness or wilful blindness requires a higher standard of proof than objective foreseeability of harm for negligence.

The mental element of the harm thus constrains its ambit from including inadvertent or negligent conduct by a public officer in the discharge of his or her official obligations... 148 The authorities make clear that a claimant alleging misfeasance in public office has a hard case to prove. As the Ontario Court of Appeal noted at para. 77 of Pikangikum First Nation v. Nault , 2012 ONCA 705 (Ont. C.A.), leave to appeal to S.C.C. refused [2013 CarswellOnt 4876 (S.C.C.) ], the "tort of misfeasance in public office is difficult to establish.

The plaintiff must prove more than mere negligence, mismanagement or poor judgment. To succeed, the plaintiff must demonstrate that the defendant knowingly acted illegally and in bad faith chose a course of action specifically to injure the plaintiff." The Court previously held, to similar effect, at para. 8 of Martineau v. Ontario (Alcohol & Gaming Commission) , 2007 ONCA 204 (Ont.

C.A.), that negligent or even cavalier conduct by a public official does not establish the tort; rather, what is required is either "conduct carried out with an ulterior motive and an intention to injure the appellants (targeted malice)", or "conduct of a public officer acting without an honest belief that her actions were lawful and

likely to injure the plaintiffs". [ 37 ] Regarding “Category A misfeasance”, HMQ submits that there are no pleadings supporting a determination that a public officer of HMQ exercised “his or her power for the specific purpose of harming the plaintiff”. With respect to “Category B misfeasance”, HMQ further submits that there are no pleadings supporting a determination that a public officer of HMQ “engaged in a deliberate unlawful act with an awareness that his or her conduct would likely harm the plaintiff”. [ 38 ] With respect to the conduct of Mr.

MacDonald, HMQ further relies on Turner-Lienaux in support of its position that the tort of misfeasance in public office takes aim at the conduct of a “public officer in the exercise of his or her powers”. To the contrary, HMQ submits that paragraph 37 of Mr. Sheppard’s Memorandum of Fact and Law specifically provides that Mr.

MacDonald was “not acting as a peace officer” when he conducted the RWP Investigation: The Role of the Third Defendant 37 As outlined in the Statement of Claim, the Third Defendant was acting as a peace officer when he conducted the criminal investigation into senior members of the RNC, including the Plaintiff. However, again he was not acting as a peace officer when he conducted the Respectful Workplace complaint against the Plaintiff. When conducting the Respectful workplace Policy Complaint he was investigating bullying, harassment, and workplace discrimination.

When conducting an investigation under this policy, the Third Defendant was acting as a workplace investigator who must observe the principles of relevant justice and procedural fairness. [ 39 ] The Supreme Court of British Columbia decision in Taylor v. British Columbia , 2020 BCSC 1936 , addressed the distinction between actions taken by a public official that constitute the exercise of public authority versus those that do not constitute the exercise of public authority.

The plaintiff in Taylor had been terminated without cause from her employment with the Government of British Columbia by a government official. In striking the plaintiff’s claim for misfeasance in public office Steeves, J., at paragraph 54 states, “[n]ot all decisions of government officials involve the exercise of public authority and at times they are exercising what has been called private authority…”.

At paragraph 61 Steeves, J., goes on to state: 61 For the reasons given in Des Champs and Keene I conclude that the decision to terminate the plaintiff was a private, employment matter and that misfeasance does not apply. While Ms. Henderson was employed as a public official at the time when she terminated the plaintiff's employment, not every act of a public official relates to the exercise of public authority. Ms. Henderson was not exercising public authority under any legislation, nor is it alleged that she was acting contrary to any legislative authority.

She was acting in the capacity of an employer vis-à-vis an employee and not as a public official vis-à-vis a member of the public. I do not agree with the plaintiff that because she is a member of the general public that means misfeasance by a public official is engaged.

The Government of British Columbia, like any employer, is entitled to dismiss an employee (and the employee is entitled to challenge that dismissal) but that does not mean that the act of dismissal is misfeasance by a public official for the purposes of this tort. [ 40 ] In accordance with the principles articulated in Taylor , HMQ submits that there are no pleadings to support a finding that HMQ or Mr. MacDonald were “exercising public authority under any legislation”, or “contrary to any legislative authority”. Mr. Sheppard has acknowledged that Mr.

MacDonald conducted the investigation not as a “peace officer” but as a workplace investigator. Further, there are no facts pleaded that Mr. MacDonald was acting “as a public official vis-à-vis a member of the public”. HMQ submits that Mr. Sheppard’s claims for misfeasance in public office has no reasonable prospect of success. [ 41 ] Mr. Sheppard relies on a number of cases as support for his claim against the Defendants for misfeasance in public office. [ 42 ] In relying on the Supreme Court of Canada decision in Ontario (Attorney General) v. Clark , 2021 SCC 18 , Mr.

Sheppard submits that while the Court struck the misfeasance in public office claim by a police officer against a Crown prosecutor, the case supports his position as it is obvious on its face that there can be a misfeasance in public office and it becomes an issue of bad faith. The issue in Clark was whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors. [ 43 ] In Grand River Enterprises Six Nations Ltd. v.

Attorney General (Canada) , 2017 ONCA 526 , the Ontario Court of Appeal in reviewing Odhavji stated that there is no requirement for a breach of a statutory duty to make out a claim for misfeasance in public office. Epstein, J.A., went on to state that “[c]onduct by a public officer may be unlawful even where there is no positive duty to act, provided the conduct was done with intent to harm.” [ 44 ] Mr. Sheppard also relies on the Ontario Court of Appeal decision in Conway v.

Law Society of Upper Canada , 2016 ONCA 72 , for recognition that bad faith or dishonesty is an essential ingredient of the tort of misfeasance in public office. At paragraph 30 the Court states: 30 Taking all of the appellant's factual allegations as true and reading the essence of the pleading as a claim for misfeasance in public office, it is not plain and obvious that a proper pleading of a reasonable cause of action founded on the alleged bad faith conduct against the LSUC would fail. As a result, the motion judge erred in refusing leave to amend to correct the deficiencies in the pleading. [ 45 ] Mr.

Sheppard submits that the facts pleaded to support his misfeasance in public office claim as set out in his Statement of Claim, include: that Mr.

MacDonald acted in bad faith, demonstrated bias and proceeded in a way that was improper, unfair and unlawful (paragraph 21); that the Defendants knew or ought to have known that failing to conduct an investigation in a fair manner would cause injury to his professional reputation (paragraph 24); and that the Defendants were liable to him for the bad faith exercise of statutory powers, misfeasance in public office and breach of duty to act in good faith (paragraph 25). [ 46 ] Paragraphs 24 and 25 of the Statement of Claim, addresses the conduct of the “Defendants” broadly. I will first address Mr.

Sheppard’s misfeasance in public office claim against HMQ. [ 47 ] The tort of misfeasance in public office is difficult to prove. Mr. Sheppard must prove more than “mere negligence, mismanagement or poor judgement”. He must demonstrate that HMQ “knowingly acted illegally and in bad faith chose a course of

action specifically to injure” him ( Turner-Lienaux , paragraph 148 ). With regard to the concept of bad faith, the Supreme Court of Canada in Odhavji at paragraph 28 stated: 28 As a matter of policy, I do not believe that it is necessary to place any further restrictions on the ambit of the tort.

The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of "bad faith" or "dishonesty." In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly.

A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office. [ 48 ] In recognizing that bad faith or dishonesty is an essential element of the tort of misfeasance in public office, the Conway decision relied on by Mr.

Sheppard is particularly informative in the context of this case as it was an appeal of a decision striking a statement of claim in its entirety. The appellant in Conway did not expressly plead the tort of misfeasance in public office and the statement of claim did not disclose in proper form the requisite elements of the tort. The trial judge refused to grant Mr. Conway leave to amend his pleadings.

The Court of Appeal at paragraph 30 determined that taking all of the appellant’s factual allegations as true and reading the essence of the pleading as a claim for misfeasance in public office, it was not plain and obvious that a proper pleading of a reasonable cause of action founded on the alleged bad faith of the LSUC would fail. [ 49 ] Of particular significance in the determination of the Court of Appeal in Conway are the appellant’s “factual allegations”.

These factual allegations are specifically referenced by the Court of Appeal in paragraphs 23-24: 23 The appellant's statement of claim is replete with allegations that the LSUC intentionally acted dishonestly, fraudulently, and without statutory authority in its dealings with the appellant, knowing that its actions would cause and did cause damages to the appellant. 24 In particular, the appellant's allegations concerning the LSUC's commencement of disciplinary proceedings in relation to the appellant practising as a lawyer while under suspension, the LSUC's failure to process his application as a paralegal, and the manner of the LSUC's opposition to his discharge application from bankruptcy, may support, if properly pleaded, a cause of action against the LSUC, based upon an alleged cumulative and relentless pattern of bad faith conduct by the LSUC that was directed against the appellant and caused him harm. [ 50 ] The factual basis for Mr.

Sheppard’s claim for misfeasance in public office against HMQ as stated in paragraph 55 of his Memorandum of Fact and Law is that the “Defendant’s knew or ought to have known that by failing to conduct an investigation in a fair manner, injury would be caused to the Plaintiff’s professional reputation status.” This statement falls significantly short of the type of detailed facts set out in the Conway decision to ground a claim for misfeasance in public office. [ 51 ] In the context of the principles articulated by the Supreme Court of Canada in Odhavji, regarding the bad faith element of the tort of misfeasance in public office, there are no facts pleaded that HMQ deliberately engaged in conduct it knew to be inconsistent with the obligations of the office.

Similarly, applying the reasoning in Turner-Lienaux , there are no facts pleaded that HMQ knowingly acted illegally and in bad faith chose a course of action to injure Mr. Sheppard. [ 52 ] The Ontario Court of Appeal in Grand River , in determining that there was no requirement for a statutory breach to make out a claim for misfeasance in public office, required unlawful conduct by the public officer that was done with intent to harm. There are no facts pleaded by Mr.

Sheppard identifying the unlawful conduct of HMQ that was done with intent to harm. [ 53 ] I conclude that it is plain and obvious on the facts pleaded that Mr. Sheppard’s claim against HMQ for misfeasance in public office cannot succeed and must be struck. [ 54 ] With regard to Mr. Sheppard’s claim for misfeasance in public office against Mr. MacDonald, at paragraph 21 of the Statement of Claim, Mr. Sheppard alleges that Mr. MacDonald “acted in bad faith, demonstrated bias and proceeded in a way that was improper, unfair and unlawful”. There are no facts pleaded to support that Mr.

MacDonald knowingly acted illegally and in bad faith chose a course of action specifically intended to injure to Mr. Sheppard. [ 55 ] In the event that I determine that the pleadings are insufficient, Mr. Sheppard seeks to have the pleadings amended by adding: The Plaintiff states that the Third Defendant committed the tort of misfeasance in public office by engaging in deliberate and unlawful conduct, as previously outlined, and by acting in bad faith, knowing that his conduct would likely injure the Plaintiff. [ 56 ] The amendment Mr. Sheppard seeks would not remedy the factual deficiencies in the pleadings.

Again, I refer to the Conway decision, to illustrate the type of factual underpinnings required to ground an action for misfeasance in public office. At paragraph 24, the Court referred to the specific facts alleged by the appellant giving rise to a pattern of bad faith conduct. Mr. Sheppard’s proposed amendment involves bald assertions unsupported by the facts in the Statement of Claim. [ 57 ] Even if I were to grant Mr. Sheppard leave to amend the pleadings to provide the material facts underlying the bald allegations, fatal to Mr. Sheppard’s claim against Mr. MacDonald is his acknowledgement that Mr.

MacDonald was not acting as a peace officer when he conducted the RWP Investigation. [ 58 ] The first element in the tort of misfeasance in public office articulated by the Supreme Court of Canada in Odhavji , requires “deliberate unlawful conduct in the exercise of public functions.” The exercise of public functions has been reiterated in subsequent cases as “deliberate unlawful conduct by a public officer in the exercise of his or her powers”. See J.P. v. British Columbia (Children and Family Development) , 2017 BCCA 308 and Turner-Lienaux .

[59] As previously stated, Mr. Sheppard devotes a

section in his Memorandum of Fact and Law titled “The Role of the ThirdDefendant.” Mr. Sheppard uses this

section to specifically delineate Mr. MacDonald’s role as “peace officer” when he conducted theSIRT NS Investigation, and his role as a “workplace investigator” when investigating the RWP Complaint. [60] I find that on the facts pleaded and affirmed by Mr. Sheppard in his submissions, with regard to the RWP Complaint, Mr.MacDonald was conducting a workplace investigation and was not engaged in the exercise of a public function as contemplated inOdhavji. [61] I conclude that it is plain and obvious that Mr. Sheppard’s claim of misfeasance in public office against Mr.

MacDonald cannotsucceed and therefore must be struck. D. Negligence [62] At paragraph 26 of the Statement of Claim Mr. Sheppard alleges that “the First and Second Defendants owed him a duty ofcare to ensure that an independent reviewer conducted a fair, full and proper investigation. By hiring an unqualified, inexperienced,unprofessional and biased investigator, the First Defendant breached that duty of care and is liable to the Plaintiff in negligence for thedamages he suffered.” [63] HMQ seeks to strike Mr.

Sheppard’s claim on the basis that Canadian courts have declined to recognize a tort of negligentinvestigation by an employer. [64] The seminal case establishing the tort of negligent investigation in Canada is the Supreme Court of Canada decision in Hill v.Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41. In determining whether a defendant owes a plaintiffa duty of care, the Court applied the two-branch test from Anns v.

Merton London Borough Council, [1978] AC 728 (H.L.): 1) Does the relationship between the plaintiff and the defendant disclose sufficient foreseeability and proximity to establish a primafacie duty of care? 2) Are there any residual policy considerations that negate or limit that duty of care? [65] HMQ relies on the Ontario Court of Appeal decision in Correia v. Canac Kitchens, 2008 ONCA 506 to support its position thatan employer does not owe a duty of care to an employee to not conduct a negligent investigation.

The Court determined that the tort ofnegligent investigation established in Hill, could not be extended to employers in conducting a workplace investigation. [66] Applying the first branch of the Anns test, the Court in Correia was satisfied that there was a triable issue as to whether therelationship between the employee and the employer disclosed sufficient foreseeability and proximity to establish a prima facie duty ofcare. [67] On the second branch of the Anns test, the Court found that there were two residual policy considerations that negated thefinding of a duty of care owed by an employer.

The first was the possibility of legal incoherence. The Court in Correia determined thatif a duty of care were imposed it would be inconsistent with the employment law principles articulated by the Supreme Court of Canadain Wallace v. United Gain Growers Ltd., (SCC), [1997] 3 S.C.R. 701. Paragraphs 72 and 73 in Correia state: 72 The fundamental premise of the employer-employee relationship in Canada is the right, subject to contractual terms to thecontrary, of either party to terminate the relationship.

Thus, in Wallace, the Supreme Court of Canada rejected the submission that anemployer must have good faith reasons for dismissal or that there could be an independent action or head of damages for breach of suchalleged duty of good faith, either in contract or in tort. In our view, it would be inconsistent to nevertheless recognize a duty on anemployer not to conduct a negligent investigation regarding an employee.

To do so would be to do indirectly what the Supreme Courtexpressly rejected in Wallace. 73 The Supreme Court, for policy reasons explained in Wallace, has refused to recognize an action in tort for breach of a good faithand fair dealing obligation. In this case, Canac fired the plaintiff for cause. It concedes that it was wrong in doing so and it may havebeen negligent. But, in our view, to recognize a tort of negligent investigation for an employer would be inconsistent with the holding inWallace.

It would, in effect, carve out an exception from the broad holding in Wallace where the reason for the dismissal was anallegation of criminality. We can see no principled reason for so doing. [68] Secondly, the Court refused to recognize a duty of care on the employer because of the potential chilling effect on reportingcriminality to the police.

For public policy reasons the Court wanted to ensure that an employer, not in the business of privateinvestigations, would be protected in reporting criminal activity. [69] The reasoning articulated by the Court in Correia was adopted by the Ontario Court of Appeal in Lee v. Magna InternationalInc. et. al., 2020 ONSC 3912, and the Alberta Court of Appeal in Luan v. ADP Canada Co., 2020 ABQB 387. In applying the firstbranch of the Anns test, both Courts determined that a duty of care was owed to the employee.

However, both Courts also adopted theresidual policy considerations in Correia in negating the duty of care owed by the employer in conducting a workplace investigation. [70] Applying the tort of negligent investigation from Hill and Correia to the facts of this case, I find that the first stage of the Annstest is met. The nature of the workplace investigations, the close relationship between employer and employee and the engagement ofreputation and procedural fairness issues all speak to proximity in the relationship and reasonably foreseeable harm to Mr.

Sheppard(Lee, paragraph 43). [71] With regard to the second stage of the Anns test, like the Court in Luan, I find that the reasoning in Correia that negated a dutyof care applies equally in this case. If I were to recognize a duty of care on HMQ, not to conduct a negligent investigation, it would beinconsistent with the employment law principles articulated in Wallace, where the Supreme Court of Canada refused to recognize an

action in tort for breach of a good-faith and fair-dealing obligation. [72] I conclude that as a result of my findings with regard to the application of Hill, Correia and the Anns test, it is plain andobvious that Mr. Sheppard’s claim in negligence against HMQ cannot succeed and must be struck. [73] Mr. Sheppard did not claim negligence against Mr. MacDonald, but seeks to amend his Statement of Claim to add: The Plaintiff states that the Third Defendant owed a duty of care to him and breached that duty of care in conducting an investigationwhich demonstrated bias and bad faith, as previously outlined herein.

As a result of this the Third Defendant is liable in negligence andthe First Defendant is vicariously liable for the actions of the Third Defendant. [74] Mr. MacDonald made no substantive submissions regarding the content of Mr. Sheppard’s proposed amendment to theStatement of Claim. Accordingly, Mr. Sheppard is granted leave to amend his Statement of Claim to add the above paragraph asparagraph 27 in his Statement of Claim. [75] The position of HMQ regarding Mr.

Sheppard’s proposed amendment is that it contains “bald allegations of fact” and“conclusory statements of law” and the material facts to support a finding of negligence are not present. I do not agree. [76] Mr. Sheppard alleges that Mr. MacDonald carried out his investigation in a biased and unprofessional manner (paragraph 16);that Mr. MacDonald’s RWP Report was delivered to Heather Jacobs Q.C., the Deputy Minister who requested the SIRT NSInvestigation (paragraph 17); that he was denied procedural fairness and that Mr.

MacDonald was in a conflict of interest and the actionsof the Defendants damaged his reputation and career (paragraph 18); that Mr. MacDonald’s failed to complete a fair investigation withproper respect to the principles of procedural fairness (paragraph 21); and that he was informed by Todd Stanley, Q.C., Deputy Ministerthat JPS could not accept the findings of the investigator due to significant concerns regarding the level of procedural fairness in theconduct of the investigation and the reasonableness of the substantive findings (paragraph 19). [77] With regard to the proposed amendment, neither Mr.

MacDonald nor HMQ sought to have the proposed amendment excludedon the basis that Mr. MacDonald did not owe a duty of care to Mr. Sheppard in conducting his investigation of the RWP Complaint. Tobe clear, and to alleviate any potential confusion, my finding that the principles articulated by the Court in Correia, that no duty of care isowed by HMQ to Mr. Sheppard with regard to the workplace investigation, does not extend to Mr.

MacDonald. [78] The Court in Correia recognized the different policy considerations at play when assessing the duty owed by an employer in aworkplace investigation and the duty of care owed by a private investigator conducting a workplace investigation. On the facts of thatcase, the Court determined that circumstances of the private investigation firm are roughly analogous to the police investigators in Hillwhere the Supreme Court of Canada recognized a duty of care.

At paragraph 69 the Court stated: 69 Second, as mentioned, the general rule is that the standard of care in negligence is that of the reasonable person in similarcircumstances. In cases of professional negligence, this rule is qualified by an additional principle: where the defendant has special skillsand experience, the defendant must “live up to the standards possessed by persons of reasonable skill and experience in that calling”. (See L. N.

Klar, Tort Law (3rd ed. 2003), at p. 306.) These principles suggest the standard of the reasonable officer in likecircumstances. [79] In accordance with Correia, the question as to whether Mr. MacDonald owes a duty of care to Mr. Sheppard is a matter thatshould be determined at trial. [80] I conclude that it is not plain and obvious that Mr. Sheppard’s negligence claim against Mr. MacDonald could not succeed attrial. E. Intentional Infliction of Mental Suffering and Emotional Distress [81] At paragraph 28 of the Statement of Claim, Mr. Sheppard alleges that the conduct of HMQ and Mr.

MacDonald was “flagrantand outrageous, and calculated to harm the Plaintiff. This flagrant and outrageous conduct caused the Plaintiff to suffer emotionaldistress, anxiety and upset. Accordingly, the Plaintiff states that the Defendants are liable to him for the intentional infliction of mentalsuffering and emotional distress.” [82] HMQ submits that the pleadings do not disclose a cause of action for intentional infliction of mental suffering (“IIMS”) andthis claim should be struck. [83] With regard to the elements for the tort of IIMS, HMQ relies on Merrifield v. Canada (Attorney General), 2019 ONCA 205.

Inthat case the Ontario Court of Appeal confirmed that “the test for IIMS is met where the plaintiff establishes conduct that is (1) flagrantand outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness.” [84] HMQ submits that the pleadings do not include allegations of conduct which could be considered by a reasonable bystander asfalling within the definition of flagrant and outrageous. [85] The Ontario Supreme Court in Eks v.

Tadeu, 2019 ONSC 3745, at paragraph 117 addressed the meaning of “flagrant andoutrageous”: 117 The Merriam-Webster Dictionary defines the adjective "flagrant" as "conspicuously offensive" and "so obviously inconsistentwith what is right or proper as to appear to be a flouting of law or morality" and "outrageous" as "exceeding the limits of what is usual"and "going beyond all standards of what is right or decent". The Concise Oxford English Dictionary defines "flagrant" as "conspicuous"and "blatant" and defines "outrageous" as "shockingly bad or excessive" and "very bold and unusual".

And in the context of breaches ofan individual's rights under the Charter of Rights and Freedoms, the term "flagrant" has been used in the sense of "glaring, scandalous, orconspicuously wrongful": R. v. Harris (1987), (ON CA), 57 C.R. (3d) 356, 35 C.C.C. (3d) 1, 20 O.A.C. 26 (Ont. C.A.)

at pp.25-26; R. v. Jones (1988), (BC CA), 24 B.C.L.R. (2d) 180 (B.C. C.A.) at para. 13. [86] With regard to HMQ’s conduct, in his Statement of Claim Mr. Sheppard alleges that HMQ engaged Mr. MacDonald to conductthe SIRT NS Investigation (paragraph 8); engaged Mr.

MacDonald to conduct the RWP Investigation (paragraph 11); that Mr.MacDonald’s RWP Report was delivered to Heather Jacobs Q.C., the Deputy Minister who requested the SIRT NS Investigation(paragraph 17); and that JPS knew or ought to have known that failure to complete a fair investigation was improper, unfair and unlawful(paragraph 21). [87] With regard to Mr. MacDonald’s conduct, Mr. Sheppard alleges that Mr.

MacDonald was conducting the SIRT NSInvestigation at the same time he was conducting the RWP Investigation (paragraphs 8, 9, and 11); that he was biased and unprofessionalin the way he carried out the investigation (paragraph 16); that he was denied procedural fairness and that Mr. MacDonald was in aconflict of interest (paragraph 18); and that JPS could not accept the findings of the investigator due to significant concerns regarding thelevel of procedural fairness in the conduct of the investigation and the reasonableness of the substantive findings (paragraph 19). [88] Whether the conduct of HMQ or Mr.

MacDonald as pleaded by Mr. Sheppard reaches the threshold of “flagrant andoutrageous” as articulated by the Court in Eks, will be a matter for the trial judge having had the benefit of hearing all the evidence. [89] The second element in the tort of IIMS, whether the conduct of the Defendants was “calculated to produce harm”, is moreproblematic. It is not sufficient that the Defendants ought to have known that harm would occur. In Boucher v.

Wal-Mart CanadaCorp., 2014 ONCA 419, at paragraph 44, Laskin, J.A., stated: 44 The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have knownthat harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almostcertain to occur: see Piresferreira, at para. 78. [90] In accordance with Boucher, I agree with the submission of HMQ that aside from a bald assertion that the Defendants conductwas “calculated to harm” Mr.

Sheppard, there are no material facts pleaded to support the requirement that the Defendants intended toproduce harm. [91] The Court of Appeal decision in Montreal Trust Co. of Canada v. Hickman, 2001 NFCA 42, offers guidance on whether apleading should be struck where the deficiencies amount to a failure to plead specific facts.

At paragraph 12 the Court of Appeal stated: 12 There will be many situations where a cause of action cannot be said to exist on the material facts as pleaded but it will beapparent what the intent of the pleader is and that by the addition of omitted material facts upon which the claimant will be relying or thevariation of existing pleaded material, a cause of action known to the law would be said to exist.

It would be unfair to the pleader in suchcircumstances, and a violation of the principle that cases should, if possible, be disposed of on their merits, to strike the claim withoutallowing the pleader an opportunity to attempt to cure the defect (but with, perhaps, appropriate penalties in costs). [92] In accordance with Montreal Trust, Mr. Sheppard must amend his Statement of Claim to provide the material facts as to theconduct on the part of the Defendants that was calculated to produce harm. [93] The final element of the tort of IIMS is that there is a visible and provable illness. Mr.

Sheppard has pleaded that he sufferedemotional distress and anxiety. Whether his level of emotional distress and anxiety reaches the threshold of a visible and provableillness will depend on the medical evidence presented at trial. [94] Without the material facts as to the conduct of the Defendants that was calculated to produce harm, it is plain and obvious thatMr. Sheppard’s claim for the tort of IIMS cannot succeed.

However, in accordance with Montreal Trust, I have determined that Mr.Sheppard should be afforded the opportunity to cure the defect in his pleadings by amending his Statement of Claim to provide thematerial facts as to the conduct of the Defendants that was calculated to produce harm. F. Vicarious Liability [95] At paragraph 22 Mr. Sheppard alleged that “[a]t all times material to this action the Third Defendant was acting with theauthority of, and on behalf of, the First Defendant.

The Plaintiff states that, in these circumstances, the First Defendant is vicariouslyliable for the actions of the Second and Third Defendants”. [96] HMQ submits that it cannot be vicariously liable for the actions of Mr. MacDonald in conducting the RWP Investigation. HMQ focuses on the distinction between an employee and an independent contractor as articulated by the Supreme Court of Canada in671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] SCC 59, submitting that the pleadings demonstrate that Mr.

MacDonaldwas more akin to an independent contractor. [97] While Sagaz noted that the most common category of relationships attracting vicarious liability is that of employer andemployee, to confine the analysis to this category on an application to strike is too restrictive. I agree with the approach suggested byMr. Sheppard that vicarious liability is relationship based. In support of this position, Mr. Sheppard relies on our Court of Appealdecision in John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St.

John’s, 2020 NLCA 27, at paragraphs 48 and 49: 48 The common thread in vicarious liability cases is that it is relationship based, in that fairness dictates that liability ensues only ifthe relationship between an enterprise or entity and the wrongdoer is close enough to warrant it. The closeness of the relationshipbetween the entity and the wrongdoer imports legal principle into the appropriateness of imposing vicarious liability, and provides acheck on careless application of the doctrine. The doctrine of vicarious liability has been part of our common law for centuries.

Whileresort to it is relatively rare, it can produce results that resonate intuitively with fairness and justice. 49 As Major J. explained in Sagaz, use of the doctrine is relationship based. It was initially applied in the context of a master/servant,

or employer/employee relationship. Over time, it has been extended to apply to many other relationships, like vehicle owner/driver, entity/volunteer, and so on. This Court specifically addressed the status of a wrongdoer within an entity in Bromley . This Court explained that the label attached to the wrongdoer, or the status of the wrongdoer vis à vis the entity, is not a determining factor in a vicarious liability consideration.

Rather, what is determinative is whether the relationship between the entity and the wrongdoer is sufficiently close to justify the imposition of liability on the entity ( Bromley , at paras. 117-120, John Doe v. Bennett , 2004 SCC 17 , [2004] 1 S.C.R. 436 (S.C.C.) at para. 17 , and B. (K.L.) v. British Columbia , 2003 SCC 51 , [2003] 2 S.C.R. 403 (S.C.C.) at para. 19 ).

In B. (K.L.) , the Court described the relationship issue as the first hurdle a plaintiff must overcome to establish vicarious liability. [ 98 ] Having recognized that vicarious liability is relationship based, I find that the pleadings are deficient in specifying the nature of the relationship between Mr. MacDonald and HMQ that would justify the imposition of liability on HMQ for the actions of Mr. MacDonald. [ 99 ] In the event that I determine that the pleadings are insufficient, Mr.

Sheppard seeks to amend his Statement of Claim to add: 1) The Respectful workplace Complaint was carried out pursuant to the “Harassment and Discrimination-Free Workplace Policy” as indicated by the Third Defendant in a letter to Counsel for the Plaintiff dated November 8, 2016. The Policy specifically states that the initiation of a formal investigation requires approval of the Deputy Minister in collaboration with the Human Resources Secretariat. 2) The Plaintiff pleads the Proceedings against the Crown Act, RSNL 1990

Chapter P-26 and any amendments thereto and, more specifically, S.5 of the Act which states that the Crown is subject to liability in tort “in respect of a tort committed by its officers or agents.” [ 100 ] While HMQ made general submissions regarding Mr. Sheppard’s proposed amendments to the Statement of Claim, no submission was made specific to this proposed amendment. Mr. Sheppard is granted leave to amend his pleadings to include the above noted paragraphs. [ 101 ] With the amendment to the Statement of Claim, I conclude that it is not plain and obvious that Mr.

Sheppard cannot succeed on his vicarious liability claim against HMQ. G. Punitive Damages and Aggravated Damages [ 102 ] HMQ submits that Mr. Sheppard’s claims for punitive damages and aggravated damages should be struck as they have no reasonable prospect of success. [ 103 ] HMQ submits that Mr. Sheppard’s claim for punitive damages should be struck as there are no material facts pleaded to support the allegation that HMQ’s conduct as alleged by Mr.

Sheppard in paragraph 30 of the Statement of Claim was “high-handed, malicious, highly reprehensible and/or arbitrary and departs to a marked degree from the ordinary standards of decent behavior”. [ 104 ] With regard to Mr. Sheppard’s claim for aggravated damages in paragraph 31 of the Statement of Claim, HMQ submits that this claim should also be struck on the basis that there are no material facts to support either the allegation that HMQ’s conduct in the RWP Investigation was so tainted and unfair to Mr. Sheppard as to be in bad faith, or the allegation that such conduct caused Mr.

Sheppard mental distress. [ 105 ] Any damages Mr. Sheppard may be entitled to will depend on the nature of the action for which the Defendants are found liable at trial, and the whether the evidence presented meets the threshold for the various heads of damage. It is not plain and obvious that Mr. Sheppard cannot succeed on his claims for punitive damages and aggravated damages. H. Statutory Immunity and the Common Law Defence of Absolute Privilege [ 106 ] Mr. MacDonald submits that he conducted the RWP Investigation as a peace officer at the direction of the Minister pursuant to a quasi-judical proceeding.

Accordingly, his actions are protected by statutory immunity and the common law defence of absolute privilege. [ 107 ] Mr. MacDonald states that he was retained by HMQ pursuant to

section 26H(2) of the Nova Scotia Police Act , S.N.S. 2004, c. 31 (“ Police Act ”) which enables another provincial government to allow SIRT NS to conduct an investigation. He states that there is no dispute that he conducted an investigation and that the claim arises as a result of his handling of that investigation. Further, that under Section 42(1)(

a) of the Police Act he enjoys all of the immunitites of a peace officer “under the common law, the Criminal Code (Canada) and any other federal or Provincial enactment”. [ 108 ] Mr. MacDonald also states that HMQ’s retention letter appointed him as a peace officer, pursuant to

Section 9.6 of the Royal Canadian Mounted Police Act , R.S.C. 1985, c. R-10 (“ RCMP Act ”). [ 109 ]

Section 94 of the Police Act and

Section 45.5(1) of the RCMP Act , have immunity clauses protecting peace officers exercising their duties in “good faith”. [ 110 ] Mr. MacDonald relies on the Supreme Court of Canada decision in Ernst v. Alberta Energy Regulator , 2017 SCC 1 , as authority when considering the function of immunity clauses protecting quasi-judicial bodies from civil claims.

Nothwithstanding that the immunity clause in Ernst was absolute and unqualified, Cromwell J. commented on the impact if courts were to entertain civil claims based on allegtions of “bad faith”: 57 Immunity is easily frustrated where the mere pleading of an allegation of bad faith or punitive conduct in a statement of claim can call into question a decision-maker's conduct: Gonzalez , at para. 53. Even qualified immunity undermines the decision-maker's ability to

act impartially and independently, as the mere threat of litigation, achieved by artful pleadings, will require the decision-maker to engage with claims brought against him or her. As Lord Denning M.R. held, to be truly free in thought, judges should not be "plagued with allegations of malice or ill-will or bias or anything of the kind": Sirros , at p. 136, cited by Morier , at pp. 739-40. [ 111 ] In accordance with the comments of Cromwell, J., in Ernst , Mr. MacDonald encourages this court to “feel comfortable” in striking Mr.

Shepppard’s claims, and submits that this case should not proceed to trial because Mr. Sheppard has “artfully” pleaded bad faith. [ 112 ] Notwithstanding, Mr. MacDonald’s arguments regarding Mr. Sheppard’s bad faith pleading, the first step to engage the immunity protections under the Police Act and the RCMP Act , is to establish that Mr. MacDonald, in conducting the RWP Investigation, was acting as a peace officer as contemplated under those Acts . [ 113 ] The retention letter appointing Mr.

MacDonald to conduct the RWP Investigation is not before this court, its factual content is not set out in the pleadings and therefore would be a matter of evidence to be adduced at trial. [ 114 ] While Mr. MacDonald states that there is no dispute that he conducted an investigation, Mr. Sheppard submits that his claim against Mr. MacDonald is in relation to his investigation of a respectful workplace policy complaint in which he acted as a respectful workplace investigator, not as a peace officer. [ 115 ] Whether the nature of Mr.

MacDonald’s engagement by HMQ, his role and duties in conducting the RWP Investigation encompasses the statutory immunity protections afforded under the Police Act and the RCMP Act , will require some evidentiary basis. Without such evidence, I conclude that it is not plain and obvious that Mr. Sheppard’s claims against Mr. MacDonald cannot succeed at trial on the basis of statutory immunity. [ 116 ] The interplay between statutory immunity and common law defence of absolute privilege in a quasi-judicial context was addressed by the Ontario Court of Appeal in D’Mello v.

Law Society of Upper Canada , 2014 ONCA 912 . Mr. MacDonald submits that the position of the parties in D’Mello is virtually identical to this case. [ 117 ] The appellant in D’Mello , argued that the statutory immunity clause in the Law Society Act superseded the common law defence of absolute privilege because it imposed a requirement that the Law Society act in good faith. The distinction is of significance because the common law defence of absolute privilege contains no such restriction and is a complete defence, including bad faith claims.

The Ontario Court of Appeal in rejecting the appellant’s argument stated: 15 Inasmuch as there is no express indication from the legislature that s. 9 of the Act is meant to be an exhaustive code, or meant to preclude resort to the common law in actions for defamation, the legislation should be read as supplementing the common law in two respects.

First, with respect to any action or proceeding for damages , including an action for negligence or abuse of process, s. 9 extends the common law immunity from prosecution for those performing quasi-judicial functions to officials of the Law Society conducting an investigation while acting in good faith. Thus, s. 9 is a rights-granting measure and not, as the appellant contends here, a rights-limiting measure.

Insofar as defamation actions are concerned, it does not detract from the common law defence of absolute privilege in respect of an action for defamation in any way. 16 Second, s. 9 also supplements the common law in actions where defamation is alleged. The common law defence of absolute privilege applies only if the alleged defamatory statement is related to the investigation. If Mr. McClyment had made a defamatory statement that was unrelated to the investigation, that statement would not be protected by absolute privilege at common law.

But it could still potentially be protected by s. 9 if it was done in good faith. [ 118 ] With regard to the common law defence of absolute privilege, Mr. MacDonald submits that there is a dearth of jurisprudence striking civil claims by aggrieved parties of judicial and quasi-judicial proceedings. [ 119 ] Mr. MacDonald relies on the the Ontario Court of Appeal decision in Sussman v. Eales , [1986] O.J. No. 317, 25 C.P.C. (2d) 7 (Ont. C.A.) , as support for his position he is protected by the common law defence of absolute privilege.

The plaintiff in Sussman, a dentist, had a complaint filed against him with the Royal College of Dental Surgeons and sued the complaintant for defamation. The complaintant argued that his complaint was protected by absolute privilege and applied to strike the claim. Mr. Sussman conceded that privilege applied to the Discipline Committee as a quasi-judicial body, but sought to distinguish the function of the Complaints Committee arguing that it was purely investigative and therefore not protected. Both the trial division and the appellant court rejected this argument. [ 120 ] Mr.

MacDonald submits that the findings in Sussman are relevant to this case in that he had no decision making authority and his investigation was a necessary “cog in the wheel” of the quasi-judical process and would fall within the scope of immunity afforded throughout the process. [ 121 ] Pivotal to Mr. MacDonald’s position is whether the RWP Investigation was part of a quasi-judicial process. Mr. MacDonald submits that the RWP Investigation is similar to the Workplace Harassment procedure arising from the hospital policy addressed in Cimolai v.

Hall , 2004 BCSC 153 , citing paragraph 28 of the decision: 28 On this basis, I accept Mr. Dives' submissions that the statutory regime providing for the cancellation by the hospital board of a doctor's hospital privileges creates a quasi-judicial process. I accept also that a workplace harassment complaint submitted under the Human Rights Policy is incidental and sufficiently proximate to the adjudicative event of the board's decision to fall within any absolute privilege the quasi-judicial proceedings enjoys. [ 122 ] Mr.

MacDonald submits that, like Cimolai , this case also involves a workplace harassment investigation arising from a workplace policy, and the RWP scheme has all of the trappings of a quasi-judical process, including complaint, informal resolutions, investigation and discipline. In support of his position Mr. MacDonald further argues that the process described in the Statement of Claim includes

the right to be heard, involves issues of procedural fairness and natural justice, and includes the ability to make conclusions as to theconduct of Mr. Sheppard. In short, that it has all the trappings of an administrative tribunal. [123] On an application to strike, I find Mr. MacDonald’s submissions problematic. The court in Cimolai provided a detailed overviewof the statutory scheme, inclusive of the Human Rights Policy giving rise to its decision before finding that the workplace harassmentcomplaint fell within the absolute privilege that quasi-judicial proceedings enjoy. While Mr.

MacDonald refers to the “RWP scheme”,the pleadings do not set out any statutory scheme related to the RWP Policy, nor any details of the RWP Policy. Hence, there is no basison which to ground his submissions. [124] Mr. MacDonald referenced a number of cases where claims against quasi-judicial bodies were struck on the basis that the conductwas subject to absolute privilege. Each of those cases involved a statutory body carrying out its functions integral to a quasi-judicialprocess (Hung v. Gardiner, 2003 BCCA 257; Voratovic v. Law Society of Upper Canada, (ON SC), [1978] 2A.C.W.S. 205, 87 D.L.R. (3d) 140 (Ont.

S.C.); Guydos v. Workplace Safety and Insurance Appeals Tribunal, 2013 HRTO 1371). [125] To determine whether Mr. MacDonald will be successful in pleading the common law defence of absolute privilege, evidence isrequired with respect to the RWP Policy and its link to a statutory scheme. Accordingly, I conclude that it is not plain and obvious thatMr. Sheppard’s claims against Mr. MacDonald cannot succeed at trial on the basis that he is protected by the common law defence ofabsolute priviledge. I. Rule 14.03 [126] Mr.

MacDonald seeks to strike the substantive content of paragraphs 15 and 19 of the Statement of Claim pursuant to Rule14.24(1)(

c) or (

d) on the basis that Mr. Sheppard has pleaded evidence contrary to Rule 14.03. Rule 14.03 and Rule 14.24(1)(

c) and (d)provide: 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 ordefence, 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. … 14.24.

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

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

d) it is otherwise an abuse of process of the Court, and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. [127] Paragraphs 15 and 19 of the Statement of Claim state: 15. In the Respectful Workplace Policy Report dated March 26, 2017 the Third Defendant concluded: I find that Sheppard’s prejudgment, failure to carry out good faith inquiries, and negative comments, constituted an Abuse of Authority.Bullying, and Harassment as those terms are defined under the Policy.

I also find that while the policy states that “Harassment and discrimination do not include supervisory and management actions…”thisis only when such actions are “conducted in a respectful manner and in good faith for valid reasons.” Sheppard did not act in arespectful way and did not act for valid reasons. While this investigation has been long, and this report lengthy, in the end the situation is quite simple: Hogan was assigned to lead aninvestigation. His Superintendent treated him poorly; which lead to harm caused to Hogan. This harm impacted Hogan’s behaviour,especially his reaction to supervision.

That lead to his removal from the file, and later to his lengthy leave from work. 19. On March 12, 2018 the Deputy Minister and Deputy Attorney General in the Department of Justice and Public Safety, Todd Stanley,

Q.C., wrote the Plaintiff and stated: Re: Harassment (RWP) Investigation Report & Civil claim in the Supreme Court of Newfoundland and Labrador – 2017 01G 2798 The Department of Justice and Public Safety (JPS”) has completed its review of the Harassment (RWP) Report prepared by Mr.MacDonald and the parties’ responses to same. As a consequence of that review, JPS has determined that it cannot accept any of thefindings of the investigator due to significant concerns as to the level of procedural fairness in the conduct of the investigation and thereasonableness of the resulting substantive findings.

Rather than proceed with a re-investigation of these matters, JPS sought to resolveall outstanding matters to the benefit of all concerned. In that regard, we enclose a Notice of Discontinuance that has been filed inrespect of the above-noted civil action. Although this matter has been ongoing for some time, we now consider it to be closed and nofurther action will be taken. [128] Mr. Sheppard’s submissions regarding paragraphs 15 and 19 of his Statement of Claim are threefold. First, that Mr. MacDonaldadmitted to paragraphs 15 and 19 in his Statement of Defence.

Second, that the documents from which the content of paragraphs 15 and19 are drawn were provided in his List of Documents and because no exception to these documents was taken by Mr. MacDonald theyare deemed to be authentic and otherwise admissible pursuant to Rule 32.04. Third, that the content of paragraphs are material factswhich are properly and best stated as they appear in the documents. [129] With regard to Mr. Sheppard’s

interpretation of Rule 32.04, Mr. MacDonald submits there is a distinction between theauthenticity of a document and it’s admissibility into evidence which is recognized in Rule 32.04(3). Rule 32.04(3) states, “[n]othing inrule 32.04(1) shall be deemed to prejudice the right of a party to object to the admissibility in evidence of any document.” [130] I agree with the

interpretation of Mr. MacDonald. The fact that Mr. MacDonald did not object to the authenticity of thedocuments in Mr. Sheppard’s List of Documents, does not deem them admissible in evidence at trial. [131] Welsh J.A., addressed the distinction between material facts and evidence in Humby v. Enterprises Ltd. v. A.L. Stuckless & SonsLtd., 2003 NLCA 20: 19 In preparing pleadings, it is important to distinguish material facts from evidence. Material facts, those which must be pleaded,are the facts necessary to substantiate the existence of a cause of action.

Evidence, by contrast, is the means by which the material factsare actually proven. [132] Producing direct excerpts from documents in paragraphs 15 and 19 of the Statement of Claim goes beyond pleading material factsand constitutes the evidence by which the material facts would be proven. Having determined that Mr. Sheppard has pleaded evidence,the issue is whether those paragraphs should be struck. [133] Pleading evidence contrary to Rule 14.03 does not necessarily justify expunging the pleading. For a pleading to be struck it mustinfringe on the requirements of Rule 14.24(1). See Coble v.

Canadian Pacific Railway (1944), (SK KB), 1 W.W.R.161, 1944 CarswellSask 22 (Q.B.) and U.F.C.W. v. Cashin (1987), (NL SC), 66 Nfld. & P.E.I.R. 181, 204 A.P.R. 181(Nfld. S.C. (T.D.)). [134] Mr. MacDonald did not address this issue in his trial brief.

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