Executive Summary: Key Legal and Evidentiary Issues

• Threshold issue of leave under s. 17 of the Crown Liability and Proceedings Act, 2019 (CLPA) for misfeasance in public office and other bad faith–based tort claims against the Crown
• Whether the plaintiff’s allegations and affidavit materials provided credible, admissible evidence to show a reasonable possibility of success on a claim for fraudulent misrepresentation
• Significance of omissions (reference letters and an accommodation plan) and allegedly inaccurate statements in a Job Information Questionnaire sent to Manulife, and whether they could amount to fraudulent misrepresentation
• Extent to which accommodation efforts, workplace complaints, and disability-related performance concerns supported or undermined an inference of bad faith or misfeasance by Ministry officials
• Impact of the robust screening function of s. 17 CLPA and the prohibition on using discovery as a “fishing expedition” to find facts to support bad faith torts
• Application of the Limitations Act, 2002 to bar allegations arising from the 2018 grievance arbitration, and the effect of misnaming the defendant, later corrected to His Majesty the King in Right of Ontario

Factual background

The case arises from the employment of the plaintiff, Michelle Botosh, with the Ministry of the Attorney General’s Court Services Division at the Ottawa Courthouse. She worked as a Court Clerk Registrar from 2007 until June 3, 2014, when she was deemed to have abandoned her position. Over time, she developed health issues that affected her ability to sit for long periods and to move and use her arms, which in turn affected how she performed in court and how quickly she could process files. The judiciary raised concerns and made complaints to her supervisors about the impact of her physical limitations on court proceedings and court operations. To address her limitations, the employer attempted to adjust her duties and schedule. Evidence before the court showed that she had an accommodation plan, including a four-day schedule and a mix of in-court and administrative work, but the plaintiff maintained that the plan was not properly followed and that the workplace was hostile and discriminatory toward her as a person with disabilities. Because of her ongoing health and functional limitations, she applied for Long-Term Income Protection (LTIP) benefits with Manulife. In the context of that process, Manulife required information from her employer and sent a Job Information Questionnaire to be completed by the Ministry. The Manager of Operations at the Ottawa Courthouse filled out this questionnaire, describing how her performance had changed due to her disability, what accommodations had been attempted, and the difficulties in fully accommodating her in a demanding court environment. Based in part on this information and on medical evidence, Manulife deemed her “totally disabled” and approved LTIP benefits, which paid 66?% of her gross salary while she was off work. Her LTIP benefits later ended after she decided on her own to pursue academic studies in the United Kingdom, which disqualified her from continued LTIP. She also pursued a labour grievance before the Ontario Grievance Settlement Board (OGSB), challenging aspects of her treatment and job loss; that grievance was dismissed in 2018. She alleged that Ministry officials made damaging statements and used confidential information in that arbitration, which she claimed harmed her reputation and contributed to ongoing hardship.

Claims advanced by the plaintiff

In this civil action, commenced in November 2023, Ms. Botosh sued the Ministry of the Attorney General (later corrected to His Majesty the King in Right of Ontario) seeking general, aggravated and punitive damages totalling $660,000, plus unspecified special damages. Her theory of liability had several strands. First, she alleged that Ministry employees committed fraudulent misrepresentation (also referred to as deceit) in communications with Manulife during the LTIP process. She said the Manager of Operations made false statements in the June 28, 2012 Job Information Questionnaire and sent an incomplete employment file that omitted key favourable documents. In particular, she alleged the employer failed to disclose three reference letters from judges who would vouch for her competence as a Court Clerk Registrar and an attendance and temporary accommodation plan prepared in December 2011. She characterized these omissions as deliberate and deceptive, intended to mislead Manulife and undermine her position. Second, she claimed that specific statements in the Job Information Questionnaire were false or misleading. The form stated that her difficulty sitting required her to move around, which at times distracted court proceedings and resulted in complaints from the judiciary, that she had limited mobility in her arms and took longer to process files, and that while she could perform her duties, she did so less efficiently than the judiciary required. She contended these were exaggerated or fabricated “blanket statements.” She further disputed the employer’s description of accommodation efforts, insisting that management had not genuinely tried to accommodate her and had instead used increasing expectations to “get rid of” an employee with disabilities. Third, beyond the Manulife-related allegations, she alleged broader misconduct by Ministry officials during the OGSB grievance process and in relation to her employment generally. These broader allegations sounded in misfeasance in public office and other torts based on bad faith. She also alleged “operational negligence” in the handling and filing of certain court documents related to her separate litigation against Manulife. Across all of her claims, she asserted that she suffered extensive damages: loss of income and benefits, loss of pension and seniority, costs of multiple relocations, reputational harm from the grievance process, further ill health from prolonged litigation and alleged workplace harassment, and unreimbursed medical and legal expenses.

Procedural posture and the CLPA leave requirement

Because the defendant is the Crown, the action triggered the Crown Liability and Proceedings Act, 2019 (CLPA). Section 17 of the CLPA imposes a special procedural gate for claims that allege the tort of misfeasance in public office or any tort “based on bad faith” against the Crown or its officers or employees. In such cases, the proceeding may only continue if the plaintiff first obtains leave (permission) from the court, and until leave is granted the proceeding is automatically stayed in respect of all claims. On this motion, the defendant argued that the fraudulent misrepresentation claim and all other bad-faith-type allegations (including alleged misfeasance in public office) fell within s. 17 and therefore could not proceed without leave. The Crown took a different position on the “operational negligence” claim. It accepted that this negligence-based allegation did not, in this case, require leave under s. 17 and formally waived the leave requirement for that claim pursuant to s. 17(11). As a result, the negligence claim could proceed, while the other claims required the court’s scrutiny under the statutory leave test. Section 17(7) sets out a two-part test: the court must be satisfied that (a) the proceeding is brought in good faith, and (b) there is a reasonable possibility that the misfeasance/bad-faith claim will be resolved in the plaintiff’s favour. The Crown did not contest Ms. Botosh’s good faith, so the only live issue was whether there was a reasonable possibility of success on the merits of the bad-faith-based claims.

Legal standards under section 17 and the law of fraudulent misrepresentation

The court described s. 17 CLPA as a “robust screening mechanism” aimed at preserving scarce resources and weeding out baseless and abusive claims against the Crown. It drew parallels to the leave test under s. 138.8 of the Ontario Securities Act, noting that leave is intended to be more than a mere “speed bump.” The judge emphasized that a motion for leave requires a “reasoned consideration of the evidence” from both sides; the motion judge may weigh the evidence, draw inferences, and make limited findings of fact at this preliminary stage. At the same time, it is not a full trial, and the evidentiary threshold—“a reasonable possibility of success”—remains lower than the ordinary civil standard. The plaintiff, however, bears a clear burden: she must file an affidavit setting out concise material facts and an affidavit of documents disclosing the evidence on which she intends to rely. The court is entitled to presume that these affidavits contain all the material facts she has and should not speculate that discovery will yield better evidence. Bald allegations of bad faith or fraud are not enough; there must be admissible, credible evidence supporting each essential element of the torts pleaded. In relation to fraudulent misrepresentation, the court set out the well-established elements: (1) the defendant made a false representation of fact, (2) knowing it was false or being reckless as to its truth, (3) intending that the plaintiff would act on it, (4) the plaintiff did in fact rely and act on it, and (5) the plaintiff suffered damage as a result. Because fraud is a grave allegation, courts demand “clear, convincing and cogent” evidence, and “fraud, and nothing short of that, will suffice.” The judge underlined that carelessness, even gross carelessness, is not enough to constitute fraud; there must be a level of moral turpitude—“wicked indifference” to the truth.

Analysis of alleged omissions and false statements to Manulife

The judge first addressed the alleged omissions: the failure to send Manulife three judicial reference letters and the December 2011 attendance/accommodation plan. While omissions can, in certain circumstances, amount to misrepresentation—particularly where silence combines with half-truths—the court held that not every missing document is legally “relevant” or intentionally withheld for a fraudulent purpose. Here, Manulife had simply sent a Job Information Questionnaire with specific questions about the plaintiff’s duties, performance changes, and workplace accommodations. The questionnaire did not ask for supporting documentation. The record showed that Manulife did not request additional records, and there was no evidence that the Manager of Operations was under a duty, in this context, to volunteer reference letters or an accommodation plan, nor that she intended to deceive anyone by not doing so. The judge concluded that these omissions could not reasonably be characterized as fraudulent misrepresentations. The court then examined the specific statements in the Job Information Questionnaire that the plaintiff said were false. Question 18 asked how her performance on the job had changed due to disability. The employer responded that she found it difficult to sit in one place for more than an hour, that she had to move around and get up, which at times distracted court proceedings and led to complaints, and that her limited arm mobility slowed her file processing, affecting operations. The answer concluded that she could still perform her duties but not as efficiently as required. The plaintiff claimed this was a “blanket statement” and untrue, arguing there had been only one incident of her rising during court. However, the record included a Manulife “Activity Note” documenting a phone call with her former supervisor, who reported multiple conflicts with the judiciary over her need to get up, resulting in complaints to her supervisor. The plaintiff speculated that the supervisor had been influenced by the Manager of Operations but provided no evidence. She also asserted that complaints were “fabricated” and that the description of her limitations and efficiency was “made up.” Again, the court found no evidentiary foundation for these claims.

Accommodation efforts and credibility of the employer’s account

Questions 19 and 20 of the Job Information Questionnaire addressed changes in her job and accommodations attempted. The employer wrote that management tried to change her duties by scheduling her in courts that allowed more mobility and less writing or typing, that they attempted to give her administrative duties two days per week, and that, despite these efforts, operational demands and her limitations made it very difficult to place her in a less demanding in-court environment. The plaintiff responded that “they didn’t try to accommodate me.” But under cross-examination she acknowledged that there had been a four-day accommodation plan and that a plan existed providing for alternating days in court and administrative work, even if she believed the plan was not followed or was inadequate. This admission aligned with the employer’s description in the questionnaire that courts “attempted to provide her with administrative duties 2 times per week” and that operational needs later required her return to court. The judge found that the employer did not claim it had successfully accommodated her, only that it had tried and that those efforts did not achieve a “positive end result.” In light of the record, including the plaintiff’s own concessions, the court concluded that the plaintiff had not shown that the statements in the questionnaire were actually false. Without proof of falsity, the first element of fraudulent misrepresentation could not be met.

Failure to establish knowledge, intent, reliance and damage for fraud

Beyond the issue of falsity, the court held that the plaintiff’s case failed on the remaining elements of fraudulent misrepresentation. There was no evidence that the Manager of Operations or any Ministry official knew any statement was false, or was reckless as to its truth. At most, the plaintiff alleged carelessness or bias, which falls short of the moral fault required for fraud. There was also no evidence that the employer intended Ms. Botosh herself to act on the statements. The statements in question were directed to Manulife, the insurer, as part of its assessment of eligibility for LTIP, not to the plaintiff. The judge observed that any reliance would logically have been by Manulife, not the plaintiff, and Manulife was not alleging fraud here. On the element of reliance, the court held that the plaintiff did not and could not plausibly say she personally acted upon the employer’s answers in the questionnaire. Her theory was that Manulife acted on them, to her detriment. The judge found this insufficient to ground her own fraudulent misrepresentation claim. Finally, the damages analysis undermined the fraud claim even further. The evidence showed that Manulife, relying on the information it had—including the questionnaire—found her totally disabled and granted LTIP benefits. Far from causing her immediate financial harm, the communications led to income protection. Her LTIP benefits were later terminated only after she voluntarily chose to pursue studies in the United Kingdom, which was inconsistent with continued disability under the terms of the benefits. Accordingly, the court was not satisfied that any alleged misrepresentation by the employer to Manulife caused the financial and personal harm she described. On the totality of the record, the plaintiff had not shown a reasonable possibility of establishing fraudulent misrepresentation at trial.

Other bad faith and misfeasance allegations, and limitation issues

In addition to the fraud allegations connected to Manulife, Ms. Botosh pleaded a range of other complaints about how Ministry officials conducted themselves, particularly during the 2018 OGSB arbitration. The defendant argued that, properly characterized, these allegations also involved bad faith or misfeasance in public office and were therefore caught by s. 17 CLPA. The judge accepted that even where the “tenor” of a pleading is of bad faith, s. 17 applies. For misfeasance in public office, the plaintiff had to demonstrate deliberate unlawful conduct by a public officer, performed in that capacity, with knowledge that the conduct was unlawful and likely to harm her. The court found that her materials contained only bare assertions; there were no material facts or credible evidence to support the elements of misfeasance or other bad-faith-based torts. A key obstacle for these additional claims was also the statute of limitations. The grievance arbitration and the alleged misconduct at the OGSB occurred in 2018. Under s. 4 and s. 5(1) of the Limitations Act, 2002, a claim is discovered when the plaintiff knew or ought to have known of the injury or loss and the act giving rise to it. The court reasoned that, because she attended the 2018 hearings, she knew or should have known at that time about any statements or conduct she considered wrongful. She did not issue her civil claim until November 14, 2023, well beyond the two-year limitation period. This time bar further undermined any “reasonable possibility” that the bad-faith-related allegations tied to the OGSB process could succeed.

Correction of the defendant’s name and the status of the negligence claim

The statement of claim originally named the Ministry of the Attorney General as the defendant. The court noted that a ministry is not a legal entity capable of being sued in its own name. Under the CLPA, the proper party is “His Majesty the King in Right of Ontario.” Citing prior authority, the judge ordered that the style of cause be amended accordingly so that the defendant is properly named. Importantly, the claim for operational negligence regarding the handling of court documents was not determined on this motion. The Crown had expressly waived the leave requirement and agreed to lift the automatic stay as to that claim alone. As a result, while the fraudulent misrepresentation and other bad-faith-based claims were screened out, the operational negligence claim remains alive and can proceed through the ordinary civil process.

Outcome and implications

In the end, the court recognized that Ms. Botosh is a highly educated person with a law degree and specialized suicide-intervention training, and acknowledged the profound impact of 14 years of unemployment and ongoing hardship. The judge emphasized, however, that compassion could not replace the legal standards imposed by s. 17 of the CLPA and the strict requirements for proving fraud and misfeasance in public office. After evaluating the affidavits, documentary record and cross-examination evidence, the court held that she had not provided sufficient, credible evidence to show a reasonable possibility of success at trial on her claims for fraudulent misrepresentation or any other bad-faith-based torts. The motion for leave under s. 17 was therefore dismissed. Pursuant to s. 17(10)(b), the proceeding is rendered a nullity with respect to all of her claims except for the allegation of operational negligence, for which the automatic stay is lifted by the Crown’s consent. The style of cause is amended so that the defendant is His Majesty the King in Right of Ontario, and under s. 17(8) each party must bear their own costs of the motion. In practical terms, the successful party on this motion is the Crown, and no damages, monetary award or cost award was ordered in its favour. The total amount awarded is therefore $0, with the remaining litigation confined to the operational negligence claim whose outcome and any potential monetary consequences cannot yet be determined.