2013 ONSC 2357, 2013 ONSC 2357

CITATION : Desjardins v. Lalonde et al, 2013 ONSC 2357 COURT FILE NO.: 12-53803 DATE: 20130422 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Linda Desjardins, Plaintiff AND: The Society of Obstetricians and Gynaecologists of Canada and Dr. Andre Lalonde, Defendants BEFORE: Madam Justice Darla A. Wilson COUNSEL: Fay. Brunning, Counsel for the Plaintiff Janice B.

Payne, Counsel for the Defendant Lalonde Jacques Emond, Counsel for the Defendant SOGC HEARD: By written submissions ENDORSEMENT on costs [ 1 ] The Plaintiff Linda Desjardins [“Desjardins”] was employed by the Defendant The Society of Obstetricians and Gynaecologists [“SOGC”] as the Chief Financial Officer from 2001 until 2011 when she was terminated. The Defendant Lalonde was the Executive Vice President of the Defendant SOGC until he resigned in August 2011. The Plaintiff issued a Statement of Claim on March 8, 2012 alleging that she was wrongfully terminated.

The Defendants each brought motions pursuant to Rule 21 claiming that the claim ought to be dismissed for failing to disclose a reasonable cause of action and alleging it was a frivolous proceeding. I heard the motion brought by the Defendant Lalonde and it was agreed between counsel that due to time constraints, the companion motion brought by the SOGC would be heard another day. [ 2 ] I delivered written reasons on December 20, 2012 in which I struck the action against Dr. Lalonde and granted leave to amend.

I made an order of costs fixed in the sum of $12,500.00 payable by the Plaintiff to the Defendant Lalonde. [ 3 ] After release of my reasons, counsel for the Plaintiff advised that she had not had an opportunity to address the court on the issue of costs and wished to do so. I therefore invited counsel for the parties to provide written submissions following which I would fix the costs for the motion. This has been done.

Positions of the Parties [ 4 ] The Defendant Lalonde submits that he is entitled to costs fixed on a substantial indemnity basis as he was successful on his motion and there is no reason to depart from the usual costs order. Lalonde delivered an offer to settle consenting to a dismissal of the action against him on a without costs basis prior to the hearing of the motion. [ 5 ] The Plaintiff submits that the Defendant Lalonde was not entirely successful because the claim was not struck without leave to amend.

Further, counsel for the Plaintiff argues that in its Statement of Defence, the SOGC pleads that she was terminated as a result of the breach of her fiduciary duties for not advising the SOGC about the accounting irregularities perpetrated by Lalonde.

It is argued that after receiving the information in that pleading, the Plaintiff could have amended her Statement of Claim but the Defendant Lalonde filed his motion to strike the claim, so she was prevented from taking this step. [ 6 ] In addition, the Plaintiff submits that her behaviour was reasonable in that she attempted to resolve the motion by serving a proposed amended Statement of Claim but that was rejected by Lalonde, thus necessitating the hearing of the motion. She submits that she is entitled to costs or alternatively, that there be no costs or costs are payable to Lalonde in the cause.

Analysis [ 7 ] My decision on costs is not a decision on the merits of the action; that will be left for the trial judge. While counsel for the Plaintiff in her written costs submissions made reference to evidence that would presumably be heard at the trial, specifically an affidavit of the Plaintiff that contained evidence about her actions while employed at the Defendant SOGC, in my opinion, that is irrelevant to my consideration on costs. [ 8 ] Lalonde moved under Rule 21.01(1)(

b) to strike the statement of claim on the grounds that it disclosed no reasonable cause of action. No evidence is admissible on such a motion. This Defendant also relied on Rule 21.01(3) which provides that a Defendant may move before a judge to have an action dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court. During the course of the motion, counsel for the Plaintiff wished to make reference to the pleading of the Co- Defendant and the proposed amended Statement of Claim. I ruled that the motion be argued on the basis of the Statement of Claim only

as no extrinsic evidence ought to be admitted on a motion to strike pursuant to Rule 21. The claim must succeed or fail based on a generous reading of the Statement of Claim only. [ 9 ] Rule 57.03 deals with costs arising from motions and states that unless the court is satisfied that a different order would be more just, the court shall fix the costs of the motion and order them to be paid within 30 days. [ 10 ] As I have indicated, a motion to strike brought pursuant to Rule 21 is decided on the basis of the Statement of Claim as it exists and the onus on the moving party is very high.

It must be demonstrated that the claim has no possibility of success, or to put it another way, that accepting the allegations as true, the claim cannot succeed in law. [ 11 ] In my written decision on the motion, I set out the reasons why, in my opinion, the claims against the Defendant Lalonde could not succeed. In doing so, I took a generous reading of the pleading as it was constituted and determined that it ought to be struck. I said, “…Reading the Statement of Claim against Lalonde as a whole, I am of the view that it is not capable of success and therefore it is vexatious.

While the conduct of Lalonde as set out in the claim, if proven, may be offensive, inappropriate and a host of other adjectives, I am not persuaded it gives rise to any valid claim in law.” [ 12 ] The submissions put forth by the solicitor for the Plaintiff on the issue of costs do not, in my view, support the contention that there ought to be a deviation from the usual rule that costs follow the event. This was not a motion that raised a novel point of law; there are a host of cases dealing with motions brought to strike claims under Rule 21.

The fact that a proposed amended Statement of Claim was provided to counsel for the Defendant Lalonde and not accepted has no bearing on my decision on costs, which related to the motion to strike the Claim as it presently exists. [ 13 ] Similarly, the actions of the co-defendant SOGC are irrelevant to my considerations on costs. The issue for the motion was whether the claims as asserted had any chance of success or whether it was plain and obvious that no cause of action was disclosed. I found that there was no possibility of success against Lalonde on the basis of the existing Statement of Claim.

The Defendant Lalonde was successful and the fact that leave was granted to the Plaintiff to amend the claim is of no moment to my decision on costs. [ 14 ] I see no reason to depart from the usual rule that costs follow the event. Therefore, my order of costs fixed in the sum of $12,500.00 payable by the Plaintiff to the Defendant Lalonde shall stand. In my view, taking into account the nature of the motion and the factors set out in Rule 57.01 as well as the principles of proportionality, this is a figure which I view to be both fair and reasonable in all of the circumstances. D.A. Wilson J.

Date: April 22, 2013