SUPREME COURT OF Nova Scotia
Citation: Tapics v. Dalhousie University, 2014 NSSC 379
Date: 20141021
Docket: Halifax No. 425795
Registry: Halifax
Between:
Tara Tapics
Applicant
v.
Dalhousie University, Dr. Christopher Taggart, and Dr. Marlon Lewis
Respondents
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Judge: |
The Honourable Justice Arthur W.D. Pickup |
|
Heard: |
September 4, 2014, in Halifax, Nova Scotia |
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Final Written Submissions: |
August 1, 2014, Respondents' Brief August 15, 2014, Applicant's Brief August 22, 2014, Respondents' Reply Brief |
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Counsel: |
Barbara Darby, for the Applicant Rebecca K. Saturley and Scott R. Campbell, for the Respondents
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By the Court:
[1] Tara Tapics has filed an application in court seeking a finding of breach of contract and negligence against the respondents, Dalhousie University, Dr. Christopher Taggart and Dr. Marlon Lewis.
[2] The respondents have not filed a notice of contest, but bring this motion seeking a dismissal of the proceeding on the following basis:
(a) This court has no jurisdiction to adjudicate the subject of this proceeding given that it raises academic matters that fall wholly within the jurisdiction of Dalhousie University and the internal appeals mechanism for the resolution of same.
(b) This proceeding amounts to an abuse of process, as the issues have already been determined.
(c) Ms. Tapics has failed to plead a reasonable cause of action against Dr. Taggart and Dr. Lewis. It is plain and obvious that the application in court is doomed to fail as against these individuals.
Background Facts:
[3] Ms. Tapics was a student at Dalhousie University. In January 2011 she began a Ph.D. program in Oceanography under the supervision of the respondent, Dr. Taggart.
[4] Dr. Taggart ceased to act as her Ph.D. supervisor in January 2013 citing that the working relationship between he and Ms. Tapics had broken down. Dr. Taggart did agree to provide continued funding to the end of March 2013 to Ms. Tapics while attempts were made to find her another supervisor. Ms. Tapics denies that the working relationship between her and Dr. Taggart had broken down and says she was responsive to all requests made to her by Dr. Taggart.
[5] The Department Chair, Dr. Marlon Lewis, also a respondent, attempted to find a suitable advisor for Ms. Tapics.
[6] By letter of March 5, 2013 Dr. Lewis advised Ms. Tapics that he had been unsuccessful. The version of the letter contained in the respondents' materials states:
I have been unable to find an advisor in the Department of Oceanography to supervise your Ph.D. program. Funding for your scholarship will continue until the end of March 2013.
Please contact the Faculty of Graduate Studies to discuss your options for the future.
[7] The respondents note in their submissions that "[d]espite this invitation to discuss 'options for the future', [Ms. Tapics] instead commenced an appeal to the Faculty of Graduate Studies…".
[8] Through a FOIPOP access to information request, however, Ms. Tapics learned that the second paragraph of the letter had been deleted on the advice of legal counsel before it was sent to her. Ms. Tapics, therefore, disputes any assertion by the respondents that she was ever invited to contact anyone to discuss her future options.
[9] Counsel for the respondents argues that there was no harm or prejudice as a result of this omission because Ms. Tapics did, in fact, go through the process and immediately appealed to the FGS shortly thereafter. I am not satisfied the omission of this paragraph has any effect on these proceedings.
[10] Ms. Tapics's appeal to the Faculty of Graduate Studies ("FGS") alleged the following:
1. That the Department of Oceanography did not provide adequate notice or properly give reasons in relation to Dr. Taggart's termination of supervision, thus amounting to procedural unfairness.
2. That Dr. Taggart's decision to abandon pursuit of a collaborative research project unfairly prejudiced the applicant and amounted to an irregularity in procedure.
3. That the Department of Oceanography failed to provide the necessary facilities and supervision for the applicant.
[11] In response, an ad hoc committee was struck to consider the allegations. Meetings were held over two days and Ms. Tapics's appeal was dismissed by written decision on July 12, 2013. The committee provided written reasons which included comment on each of the allegations made by Ms. Tapics in her appeal.
[12] As to the allegation of procedural unfairness the committee concluded:
[B]ecause [the Applicant] attended the January 30 supervisory committee meeting, her argument that she was not properly informed of the reasons for the breakdown is difficult to accept. The absence of a comprehensive list of reasons for the supervisory breakdown … may at most be considered a minor procedural irregularity, with no evidence of unfairness. Moreover, for this long but difficult student-supervisor relationship adequate notice of termination of the supervisory relationship was provided … Additionally, the fact that [the Applicant] was provided with stipend support for another two months effectively constituted a two months' notice before the decision of the January 30 supervisory meeting would take effect. This argument is therefore dismissed.
[13] As to the allegation of an irregularity in the procedure, the committee concluded:
Decisions concerning specific research investigations and overall research directions for a graduate student are the purview of the research supervisor and graduate student, acting collectively. Despite this shared nature, however, it is ultimately the prerogative of the supervisor to approve research activities. It is not within the scope of this appeal hearing to adjudge the merits of research decisions such as that specified in Argument 2. This Argument is therefore dismissed.
[14] And on the allegation of a failure to provide facilities and supervision the committee concluded:
The Department of Oceanography, through its Chair, did indeed make reasonable attempts to identify a new graduate supervisor for [the Applicant]. The department has many faculty members, grouped into four sub-specialities of oceanography based on expertise and research interests. Dr. Lewis canvassed virtually all faculty members in Dr. Taggart's and [the Applicant's] sub-speciality, biological oceanography, but found no one willing to take on a supervisory role for [the Applicant]. Several faculty members in sub-specialities other than biological oceanography were also approached to take on the supervisory role but all declined, pointing out that [the Applicant] has an academic background inappropriate for their sub-speciality. Nor was [the Applicant] herself able to find another supervisor during this time period. While the search for a new supervisor was undertaken Dr. Taggart continued to provide [the Applicant's] student stipend, for two months after the supervisory breakdown. In our view, therefore, the Department of Oceanography took all reasonable steps to allow [the Applicant] to continue in the graduate program. This Argument is therefore dismissed.
[15] Ms. Tapics then appealed to the Senate Appeals Committee ("SAC"). The SAC issued a written decision on December 11, 2013 rejecting Ms. Tapics's allegations of bias and denial of natural justice. The SAC did find, however, that there was an unfair application of the Regulations because the Faculty of Graduate Studies had failed to follow its own policy requiring it to explore the possibility of an informal settlement with Ms. Tapics.
[16] The Senate Appeal Committee in their decision set out the basis for granting the appeal:
This panel finds that evidence does not establish that there was a denial of justice but that there was an unfair application of regulations. Therefore, the appeal is granted.
First, as agreed by all parties, the appellant is not dismissed from the University and therefore has an opportunity to find a supervisor and proceed in her program.
Second, the Panel refers this issue back to the Faculty of Graduate Studies. In accordance with procedures, the Dean of the Faculty of Graduate Studies must explore the possibility of mediation between the Department and the Appellant. To facilitate this process, the Panel orders a minimum six-month moratorium on any procedures to dismiss the appellant.
Third, it should be noted that the onus is on the appellant as much as the Department to find a settlement. If after six months the appellant does not have a supervisor, and hence, not making progress in her program, the Faculty of Graduate Studies can initiate dismissal procedures against the appellant due to lack of progress.
[17] Ms. Tapics disputes allegations by the respondents in their submission to this court that the SAC decision allowed the appeal only on a limited basis. Ms. Tapics submits that the SAC determined that the respondents breached their duty to pursue a possible informal settlement contrary to the policy, and the respondent, Dalhousie, did not have a regulation that could address the situation that was imposed on her. In other words, there was no regulation to deal with what happens when a supervisor abdicates with or without cause.
[18] To support her position on this issue, Ms. Tapics highlighted the following passage contained in the SAC decision:
Regulation 9.4.6 is silent on the question of what happens when a supervisor abdicates, with or without cause. Since the Senate Appeals Committee is not bound by precedent, future cases may interpret this void differently than this Panel has. Consequently, we recommend that Regulation 9.4.6 be amended to specify a department's responsibilities in such instances.
[19] Ms. Tapics comments on this passage as follows:
The SAC also confirmed that it actually had no jurisdiction to respond to the Respondent's issue, because the Respondents' procedure, Regulation 9.4.6, is silent on the question of what happens when a supervisor abdicates and the SAC recommended that the Regulation be amended.
[20] The respondents in their reply submission assert that it is incorrect for Ms. Tapics to assert that (a) SAC concluded it had "no jurisdiction to respond", and (b) Ms. Tapics therefore had no way to deal with this particular issue internally which was incapable of redress. The respondents assert that SAC made no such finding, but rather seized jurisdiction over the matter and concluded that the Faculty of Graduate Studies had failed to explore the possibility of an informal settlement with Ms. Tapics as required by procedure IV.9.1(F).
[21] I am substantially in agreement with the respondents' interpretation. In fact, the SAC concluded at p. 8 of its decision that “Regulation 9.4.6 is wholly inapplicable in this case.” The SAC went on to find that Regulation 9.4.5(4) applied when a supervisor abdicates, which stated that students have the right “to be allowed to have a new supervisor when they can offer convincing reasons to the department for the change and the change can be reasonably accommodated by the department.” Accordingly, the SAC held that the Department’s responsibility was to undertake reasonable efforts to find a new supervisor for the student. However, in its non-binding recommendations, the SAC noted that the Regulation outlining the Department’s responsibilities (9.4.6) did not specifically address abdication by a supervisor. Since future SAC panels are not bound by precedent and might, therefore, apply a different regulation to the situation than the current panel did, the SAC recommended that the Department’s responsibilities to be clearly set out in 9.4.6.
[22] In other words, the SAC was concerned that another panel might reach a different conclusion and, therefore, determined it would be helpful to clarify the Regulation.
[23] In any event, the Dean, Dr. Bernard Boudreau, wrote to Ms. Tapics on January 21, 2014 in compliance with the SAC decision seeking "to meet with you to explore whether any informal resolution may be possible". Ms. Tapics did not respond to this correspondence. Ms. Tapics commenced an application in court "for an order for a finding of breach of contract and negligence".
[24] Ms. Tapics provided the following grounds to support her application for a finding of breach of contract and negligence:
1. The Respondents breached their contract to provide the Applicant with a supervisor from January 30, 2013 to January 21, 2014.
2. The Respondents breached their contract to provide the Applicant with adequate supervision from January 1, 2011 to January 21, 2014, which included the failure by the Respondent Dr. Taggart to complete the Applicant's annual report in 2012 confirming her academic progress.
3. The Respondents failed to provide the student with procedures to assist her to complete her thesis.
4. The Respondents breached their contract to provide the Applicant with due process respecting the termination of supervision, by requiring her to access an academic disciplinary panel in the absence of an academic dismissal and by refusing to mediate the issue as mandated by policy.
5. The Respondents breached their duty of care to the Applicant in accepting her to a program and field of study without securing the specified dataset that had been represented to her as part of her program, and which was required to allow the Applicant to progress in her studies, from the period January 1, 2011 to June 8, 2012.
6. The Respondents breached their duty of care the Applicant by entering into a supervisory relationship with a supervisor Dr. Michael James, who was in a conflict of interest at the material times.
7. The Respondent Dr. Lewis was slanderous when he asserted on June 28, 2013 that the Applicant was a dangerous student with a proclivity to violence.
8. The Respondents' breach of contract to provide the Applicant with supervision caused the Applicant to lose the opportunity to pursue a federal government science education scholarship application and the research opportunity that she had been working on.
9. In their breach of contract and negligence, the Respondents caused the Applicant to lose the opportunity for gainful employment or the pursuit of studies elsewhere prior to January 1, 2014.
In their breach of contract and negligence, the Respondents have caused the Applicant economic loss, loss of opportunity, general and special damages and other losses, the particulars of which will be adduced at the hearing.
[25] As I have stated at the outset, the respondents have not filed a notice of contest but rather bring this motion to dismiss this proceeding. In their notice of motion the respondents seek an order:
(a) dismissing this procedure on the basis that:
(i) this Honourable Court does not have jurisdiction over its subject;
(ii) this proceeding is an abuse of process of this Honourable Court; and
(iii) the Notice of Application in Court fails to disclose a cause of action, makes a claim based on a cause of action in the exclusive jurisdiction of another forum, and/or otherwise makes a claim that is clearly unsustainable when the Notice of Application in Court is read on its own; and
(b) awarding costs on this motion to the Respondents.
Analysis:
[26] For the reasons which follow, I would dismiss Ms. Tapics's application as an abuse of process. As to the allegation of slander on the part of Dr. Lewis, which counsel for the respondents acknowledge is within the jurisdiction of this court, I dismiss it on the basis that the pleading is deficient. Finally, and, in the alternative, I would dismiss the allegations against Drs. Taggart and Lewis as the pleadings disclose no material facts upon which personal liability could be found on the part of these individuals.
[27] Having so determined, it is not necessary that I deal with the respondents' argument on jurisdiction.
Abuse of Process
[28] The respondents claim an abuse of process under Rule 88.01 and seek an order of dismissal pursuant to Rule 88.02(1)(a). The respondents state the evidentiary basis for abuse of process as follows:
1. Ms. Tapics sought and received an adjudication of her complaints through Dalhousie's internal complaint procedure.
2. Ms. Tapics failed to assist with implementation of the SAC decision (to work with the faculty to find a settlement).
3. Ms. Tapics being dissatisfied with the SAC decision could have commenced a judicial review process which she elected not to do.
4. Ms. Tapics seeks to relitigate matters already decided.
[29] The respondents assert that even though Ms. Tapics seeks different remedies (in damages) than could have been awarded by the SAC, she is attempting to relitigate the matter. The respondents cite para. 31 of Said v. University of Ottawa, 2013 ONSC 7186, [2013] OJ No. 6119, as follows:
31 The Court of Appeal has affirmed that a civil claim can be barred if it is an attempt to re-litigate issues that were decided or could have been decided in the regulatory process, even if the plaintiff could not have obtained a damages award through these other proceedings…
[30] At paras. 44 through 49 of their pre-trial submissions, the respondents summarize their argument on abuse of process:
44. In doing so, and by commencing this Application in Court more than 3 months after the SAC Decision, the Applicant would also seek to thwart the governing limitation period for judicial review. In particular, and if this Court permits this proceeding to continue, the Applicant would avoid the 25-day period within which any application for judicial review must be commenced.
45. Any application for judicial review of the SAC Decision would have had to be commenced by the end of January 2014. This proceeding was commenced two months later, however, at the end of March 2014.
46. In her affidavit evidence, the Applicant suggests a reason for why she did not assist with the implementation of the SAC Decision. In particular, the Applicant states (without any semblance of particularity):
37. There was a lapse of more than 1 month before the University followed up on the [SAC] recommendations. By this time, I had accepted another opportunity.
47. While it may be that the Applicant had "accepted another opportunity", this does not excuse her from complying with the clear directions of the SAC Decision (which contemplated a 6-month window for resolve). Nor does it excuse the Applicant from commencing a judicial review of the SAC decision if, indeed, she found it unsatisfactory. The Applicant cannot ignore or abandon the requisite process – a process that she, herself, engaged.
48. Put simply, this should not be condoned. The integrity of the process envisioned by the Calendar and the resulting SAC Decision should be preserved and respected by this Court. The Applicant should not be permitted to circumvent the deference that is demanded on judicial review of the SAC Decision.
49. For these reasons, Dalhousie University respectfully submits that this Application in Court should be dismissed as an abuse of process.
[31] Ms. Tapics, for her part, asserts that she is not relitigating the decisions of the internal disciplinary panels; rather, she is asserting that there are causes of action she has against the respondents that have not been previously decided and over which the internal bodies of the respondent, Dalhousie, have no jurisdiction in any event. Ms. Tapics asserts that she is not attempting to reverse the earlier decision of the respondents' internal processes, but rather seeks new remedies in contract and tort.
[32] I am satisfied the majority of the allegations made by Ms. Tapics can be struck on the basis of abuse of process.
[33] In Gauthier v. Saint Germain, 2010 ONCA 309, 2010 CarswellOnt 11457, leave to appeal denied [2010] SCCA No. 257 , the Ontario Court of Appeal noted:
41 The principle that emerges from Dawson was not that the court does not have jurisdiction to adjudicate disputes of an academic nature, but rather that the plaintiff in that case, having been refused her internal appeal by the university, could not resubmit what was essentially the same complaint before the courts, claiming that it was now based on a tort.
[34] In Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, [2013] OJ No. 4709, the Ontario Court of Appeal cited the following passage from the motions judge with approval at para. 5:
Turning now to this case. I accept the defendants’ position that the multiple claims in this case are window dressing. The underlying complaint of each plaintiff is that they were not promoted in their programs or were dismissed in their programs. To be successful on the claims would require different findings of fact from what was determined in the internal review process on the very same evidence. It would be re-litigation in a different forum. I find this to be an abuse of process.
…
There is no foundation for an argument that the defendants in this case went beyond the scope of their discretionary powers in dealing with the issues in the internal university performance review and appeals processes..
[Emphasis added]
[35] It is helpful to refer to the allegations contained in the notice of application in court to review whether they were dealt with before the FGS or SAC. I am satisfied that the majority of the allegations contained in the notice of application have been dealt with by the FGS and/or SAC.
[36] Paragraphs 1, 2 and 5 of the application in court contain allegations of a failure by the respondents to provide adequate supervision and necessary datasets:
1. The Respondents breached their contract to provide the Applicant with a supervisor from January 30, 2013 to January 21, 2014.
2. The Respondents beached their contract to provide the Applicant with adequate supervision from January 1, 2011 to January 21, 2014, which included the failure by the Respondent Dr. Taggart to complete the Applicant’s annual report in 2012 confirming her academic progress.
…
5. The Respondents breached their duty of care to the Applicant in accepting her to a program and field of study without securing the specified dataset that had been represented to her as part of her program, and which was required to allow the Applicant to progress in her studies, from the period January 1, 2011 to June 8, 2012.
[37] These allegations were raised before the FGS:
Argument 3. In contravention of FGS Regulation 9.4.6 (Responsibilities of the Department), the Department of Oceanography failed to provide necessary facilities and supervision for each graduate student admitted into its graduate program, specifically Ms. Tapics.
[38] The FGS and the SAC concluded that these allegations had no merit. In order for Ms. Tapics to be successful in her application, the court would have to reconsider these issues on the same evidence and arrive at a different conclusion. If Ms. Tapics was dissatisfied with the interpretation of the Regulations by the FGS or the SAC, her proper recourse would have been judicial review.
[39] Paragraph 3 states:
The Respondents failed to provide the student with procedures to assist her to complete her thesis.
[40] This pleading is extremely vague, and appears to be merely a restatement or consequence of the other allegations. If the issue was not raised with the FGS and Senate alongside the other complaints, it presumably should have been. As noted in Said, supra, “a civil claim can be barred if it is an attempt to re-litigate issues that were decided or could have been decided…”.
[41] Paragraph 4 provides:
4. The Respondents breached their contract to provide the Applicant with due process respecting the termination of supervision, by requiring her to access an academic disciplinary panel in the absence of an academic dismissal and by refusing to mediate the issue as mandated by policy.
[42] Ms. Tapics raised the issue of dismissal with the Senate Committee in the following ground of appeal:
1. The Faculty of Graduate Studies Ad Hoc Appeal Committee (“FGS”) misapprehended evidence and made a finding for which it lacked jurisdiction when it denied the Appellant Tara Tapics (“The Appellant”) the remedy of reinstatement, as there is no evidence that the Appellant has been dismissed from the doctoral program and she did not receive any notice of dismissal.
[43] The Senate found at p. 2:
Grounds Pertaining to Dismissal from the University
In the written submission of the respondent and at the hearing before this panel, it was ascertained that the appellant is not dismissed from the University. Consequently, any arguments pertaining to dismissal are considered moot and not discussed. Thus, this panel only considered the remaining argument.
[44] There is no suggestion in the above passage that the FGS was the wrong forum for Ms. Tapics's complaints. Furthermore, if Ms. Tapics felt that she was denied natural justice by being forced to appear before the FGS, that specific allegation should have been made to the SAC, and ultimately the court on judicial review.
[45] Finally, with respect to the failure by the respondents to mediate, Ms. Tapics's submission states:
34. The Applicant’s cause of action arises inter alia from the finding of the SAC that the Respondents breached their duties to the Applicant, and she seeks redress for that breach…
35. Had the mandated mediation process been engaged, there may have been an outcome that would have prevented the appeal to FGS, and the further appeal to the Senate Appeals Committee.
[46] I am satisfied the SAC did indeed find that the FGS failed to follow its own procedures and explore an informal resolution with the applicant. In my view, this pleading amounts to an abuse of process by Ms. Tapics asking the court to relitigate the issue and arrive at the same conclusion. The SAC gave Ms. Tapics a remedy responsive to the wrong complained of when it ordered the FGS to explore the possibility of mediation with her, giving a six month window in which to do so. During the month-long interval between the SAC decision and the FGS reaching out to Ms. Tapics, however, she decided to pursue another educational opportunity. Dissatisfied with the remedy given by the SAC, Ms. Tapics now wants the court to award damages based on the SAC’s finding. As noted in Said, supra:
31 The Court of Appeal has affirmed that a civil claim can be barred if it is an attempt to re-litigate issues that were decided or could have been decided in the regulatory process, even if the plaintiff could not have obtained a damages award through these other proceedings. In Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, the court held at para. 88:
88 Moreover, I do not consider the fact that the HSARB [Health Services Appeal and Review Board] does not have jurisdiction to award damages to be dispositive of whether the regulatory proceedings can operate as a bar to the civil claim or parts of it. It may be open to a court to bar the re-litigation of factual issues if it concludes that those issues were finally determined or could have been determined in the regulatory proceedings in which Dr. Lipsitz participated.
[Emphasis added]
[47] The decision in Ahmed v. Dalhousie University, 2014 NSSC 330, was released shortly after the hearing of this matter. In that decision, Justice Moir declined to strike the claim against Dalhousie on the basis of abuse of process. Justice Moir explained:
92 I have discussed authorities on abuse of process, re-litigation as abuse, and the discretion to defer to an alternate process. I do not accept Dalhousie's submission that re-litigation or alternate process are sufficient for a stay in the circumstances of this case.
93 Perhaps Ms. Ahmed's claim includes an attempt to re-litigate one of the findings of the Senate Committee. However, her claim, as pleaded, has a broad focus. She alleges malice over the whole course of her almost four years at Dalhousie. If she can prove it, she may be entitled to a remedy. Whether or not she is re-litigating one of the Senate findings and, if so, whether the re-litigation amounts to an abuse, are questions to be decided in the broad range cast by the pleadings.
[48] Counsel for the respondent submits that the decision in Ahmed, supra, is distinguishable, while counsel for Ms. Tapics says the decision is “binding on the court as precedent.”
[49] I am satisfied that Ahmed, supra, can be distinguished. Justice Moir’s decision not to dismiss the matter as an abuse of process was premised on the breadth of Ms. Ahmed’s tort claim, which alleged malice over a four year period. In his view, it was not possible on the pleadings to determine whether Ms. Ahmed’s claim included an attempt to re-litigate one of the findings of the SAC. In contrast, Ms. Tapics’s claims in contract and tort are narrow. The pleadings reflect the same complaints that were before the FGS and SAC, but now described as negligence and breaches of contract.
[50] For the foregoing reasons, I would dismiss the allegations against the respondents in the application in court as an abuse of process.
Liability of Dr. Taggart and Dr. Lewis
[51] For the reasons which follow, I also dismiss the allegations against Drs. Lewis and Taggart as the pleadings disclose no material facts upon which personal liability could be found against these individuals.
[52] Rule 38.02 sets out the general principles of pleading:
38.02 - General principles of pleading
(1) A party must, by the pleading the party files, provide notice to the other party of all claims, defences, or grounds to be raised by the party signing the pleading.
(2) The pleading must be concise, but it must provide information sufficient to accomplish both of the following:
(a) the other party will know the case the party has to meet when preparing for, and participating in, the trial or hearing;
(b) the other party will not be surprised when the party signing the pleading seeks to prove a material fact.
(3) Material facts must be pleaded, but the evidence to prove a material fact must not be pleaded.
(4) A party may plead a point of law, if the material facts that make it applicable are also pleaded.
[53] Rule 38.06 addresses pleadings in an application:
38.06 - Pleading grounds in an application
The following rules of pleading apply to a statement of grounds or notice of contest in an application and they are further to the rules of pleading provided in Rules 5.02 to 5.04, 5.07, and 5.08, of Rule 5 - Application:
(a) the grounds must be stated in such a way that the relevance of each statement in an affidavit filed, or to be filed, by the party is apparent;
(b) a description of a person must not contain more personal information than is necessary to identify the person and show the person’s relationship to a claim or ground of contest.
[54] Civil Procedure Rule 13.03 provides:
13.03 - Summary judgment on pleadings
(1) A judge must set aside a statement of claim, or a statement of defence, that is deficient in any of the following ways:
(a) it discloses no cause of action or basis for a defence or contest;
(b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court;
(c) it otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own.
(2) The judge must grant summary judgment of one of the following kinds, when a pleading is set aside in the following circumstances:
(a) judgment for the plaintiff, when the statement of defence is set aside wholly;
(b) dismissal of the proceeding, when the statement of claim is set aside wholly;
(c) allowance of a claim, when all parts of the statement of defence pertaining to the claim are set aside;
(d) dismissal of a claim, when all parts of the statement of claim that pertain to the claim are set aside.
(3) A motion for summary judgment on the pleadings must be determined only on the pleadings, and no affidavit may be filed in support of or opposition to the motion.
(4) A judge who hears a motion for summary judgment on pleadings may adjourn the motion until after the judge hears a motion for an amendment to the pleadings.
(5) A judge who hears a motion for summary judgment on pleadings, and who is satisfied on both of the following, may determine a question of law:
(a) the allegations of material fact in the pleadings sought to be set aside provide, if assumed to be true, the entire facts necessary for the determination;
(b) the outcome of the motion depends entirely on the answer to the question.
[55] Justice Leblanc recently summarized the law concerning Rule 13.03 in MacLellan v. Canada (Attorney General), 2014 NSSC 280:
71 In the alternative, the defendants submit that various causes of action should be struck under Civil Procedure Rule 13.03, which permits the court to grant summary judgment on the pleadings alone where a pleading "discloses no cause of action" (Rule 13.03(a)) or where a pleading "otherwise makes a claim that is clearly unsustainable when the pleading is read on its own" (Rule 13.03(b)).
72 It is well established that the plaintiff must plead facts that will establish the necessary elements of the tort, not merely allegations or legal assertions. In considering whether to strike a pleading on this basis, the court must assume that the facts pleaded are true. The pleading must be struck if it is "plain and obvious" that the claim cannot be sustained: see, e.g., Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at para. 32. The plaintiff must plead specific material facts; bare allegations will not suffice: R. Baker Fisheries Ltd. v. Widrig, 2002 NSCA 82, [2002] N.S.J. No. 283, at para. 19; CIBC Mortgage Corp. v. Ofume, 2004 NSSC 132, [2004] N.S.J. No. 259, at para. 5.
[56] In Lobo v. Carleton University, 2012 ONSC 254, Roccamo, J. summarized and applied the law regarding personal liability:
34 ScotiaMcLeod Inc. v. Peoples Jewellers Limited (1995), 26 O.R. (3d) 481 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 40, remains the seminal case cited for the criteria that need to be met to apportion personal liability. The criteria that must be shown are that: (1) the actions of the employees are themselves tortious, or (2) the actions of employees exhibit a separate identity or interest from that of the corporation, or employer, so as to make the act of the conduct complained of their own. The holding in ScotiaMcLeod departs from a long line of cases in which the conduct of employees and officers of companies have been examined for personal liability for conduct ostensibly carried out under the corporate name. All of these cases are fact specific. However, in the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers, the instances in which personal liability is found are rare.
35 In my opinion, the amended pleading before me does little more than "window dress" the suggestion of a separate identity or interest of the named Defendants from that of CU. There is no allegation of fraud, deceit, dishonesty or true want of authority. The new allegations do not cross into the category of rare cases where personal liability would be found. These claims are, therefore, struck without leave to amend.
[57] The pleadings disclose no material facts upon which personal liability could be found on the part of Dr. Taggart or Dr. Lewis.
[58] The claim against these individuals in their personal capacity is struck in its entirety.
Slander accusation against Dr. Lewis
[59] In the notice of application in court at para. 7, Ms. Tapics alleged:
7. The respondent Dr. Lewis was slanderous when he asserted on June 28, 2013 that the Applicant was a dangerous student with a proclivity to violence.
[60] Counsel for the respondents acknowledge that this claim falls within the jurisdiction of this court, but that the claim should be dismissed on the basis that the pleadings are deficient.
[61] As the respondents argue, Ms. Tapics did not plead:
1. that the alleged statements were made to persons other than her,
2. to whom the alleged statements were made,
3. where the alleged statements were made; or
4. a claim for special damages in relation thereto.
[62] I am satisfied that Ms. Tapics's claim is deficient and, therefore, should be struck.
Summary
[63] The claim of slander against Dr. Taggart is within the jurisdiction of this court, but struck because of deficient pleading.
[64] As to the remainder of the claim, I dismiss as an abuse of process of this court.
[65] In the further alternative, I dismiss the claims against Drs. Taggart and Lewis. The pleadings disclose no material facts upon which personal liability could be found on their part.
[66] In summary, all of the claims by Ms. Tapics are dismissed.
[67] In the event the parties are unable to agree on costs, I will accept submissions 30 days after the issue of an order in respect of this matter.
Pickup, J.