Jun 9, 2020


Burns v. RBC Life Insurance Company, 2020 ONCA 347 (CanLII)

[Gillese, Brown and Jamal JJ.A.]


Sloan H. Mandel and Deanna S. Gilbert, for the appellant

Barry G. Marta, for the respondents

Keywords: Employment Law, Liability of Employees, Breach of Contract, Breach of Duty of Good Faith, Insurance, Long-Term Disability Benefits, Torts, Negligence, Negligent Misrepresentation, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action


The appellant’s claims for breach of contract, bad faith, negligence and negligent misrepresentation against her former employer’s employees were struck, without leave to amend, as disclosing no independent cause of action against the employees that were separate and apart from the claims against her employer. The claim relates to the insurer’s termination of long-term disability benefits.


Did the motion judge err in striking the claim and denying leave to amend?


Appeal allowed.


Yes. While the claim was properly struck as disclosing no reasonable cause of action, leave to amend should have been granted.

While it is well-established that a cause of action in tort can lie against the employee of a corporate employer for conduct carried out in the usual course of employment: Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, Rule 25.06(1) requires a statement of claim to contain a concise statement of the material facts on which the party relies for its claim. Each defendant named in a statement of claim should be able to look at the pleading and find an answer to a simple question: What do you say I did that has caused you, the plaintiff, harm, and when did I do it? The appellant’s claim did not provide the defendant employees with an individualized answer to this question. The comments made in Moynihan v. Rowe, 2018 ONSC 502, at paras. 37-38, that a statement of claim need not draw a distinction between the conduct of employees and that of the employer, and where it does not, it is always open to the defendant to seek particulars were obiter, and do not impact the requirements of pleading.

However, leave to amend should be denied only in the clearest of cases, especially where the deficiencies in the pleading can be cured by an appropriate amendment and the other party would not suffer any prejudice if leave to amend was granted: Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26; South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6. In the absence of reasons explaining why he denied leave to amend, the discretionary order of the motion judge was not entitled to deference. There was no suggestion that the respondents would suffer litigation prejudice if leave to amend was granted.