Executive Summary: Key Legal and Evidentiary Issues

• Supplementary reasons were issued after the court overlooked the Plaintiff's request for leave to file his draft Second Fresh as Amended Statement of Claim.
   
• Paragraphs 31-33 of the draft pleading, which allege the Defendants publicly denied liability and sued Global News for defamation, were challenged by the Defendants as irrelevant, argumentative, or inserted for colour.
   
• A formal motion to strike was held unnecessary because the Plaintiff had himself asked for leave to file the amended pleading.
   
• Under Rule 25.11(b), the court may strike a pleading that is scandalous, frivolous or vexatious, but a fact relevant to a cause of action cannot fall into those categories.
   
• Relevance was found because the Allegations may be material to assessing damages in negligence, breach of fiduciary duty and vicarious liability.
   
• Leave to file the amended claim was granted once the court declined to strike the challenged paragraphs.
   

Facts of the case

Jamar Morrison brought a proposed class proceeding under the Class Proceedings Act, 1992 (CPA) against Hatts Off Inc., Naylor Nine Holdings Limited, Gordon Naylor, Bronwyn Naylor, Aladine Hanna, and Hatts Off Specialized Services Inc. The Plaintiff's motion was heard on June 29 and 30 and July 2 and 3, 2026. On September 8, 2026, Justice M. Valente released reasons certifying the action, subject to amendments to two of the Plaintiff's proposed common issues.

In opposing the motion, the Defendants had argued that paragraphs 31-33 of the Plaintiff's draft Second Fresh as Amended Statement of Claim should be struck. Those paragraphs (the "Allegations") concern the Defendants' public denial of liability and accountability to the Plaintiff and class members, along with their defamation lawsuit against Global News. Because no motion to strike was before the court, the September 8 reasons left the issue to be decided on a future formal motion.

After those reasons were released, the parties pointed out that the Plaintiff's notice of motion sought not only certification under the CLA [Note: paragraph 4 of the decision refers to the "CLA," while paragraph 1 defines the statute as the "CPA"; the source wording is preserved] but also leave to file the draft Second Fresh as Amended Statement of Claim. According to the parties, their submissions on the challenged paragraphs were directed at that request for leave. Justice Valente acknowledged that he had inadvertently overlooked this additional relief and issued supplementary reasons dated September 25, 2026. The decision does not describe the facts underlying the class members' claims beyond the pleaded causes of action and alleged harms.

Policy and legislative provisions at issue

Rule 25.11(b) allows the court to strike out all or part of a pleading, with or without leave to amend, if the pleading is "scandalous, frivolous or vexatious." Citing Abbasbaylie v. Fiera Foods Company, 2021 ONCA 95 (Fiera Foods), the court noted that the Court of Appeal treats scandalous pleadings as including those that are "irrelevant, argumentative, or inserted for colour, and unfounded and inflammatory attacks on the integrity of a party." [Note: the decision attributes this passage to paragraph 49 of Fiera Foods at paragraph 7, and to paragraph 19 at paragraph 9; the source pinpoints are preserved.]

In the same Fiera Foods passage, the Court of Appeal stressed that the test turns on the pleading's relevance to a cause of action or defence. Quoting Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649, it held that a relevant fact cannot be scandalous, frivolous or vexatious. Irrelevant or superfluous allegations that cannot affect the outcome, however, should be struck.

Two paragraphs of the draft claim also bore on the dispute. Paragraph 60 alleges that the Defendants' responses "are themselves harmful to the Plaintiff and the Class Members." Under paragraph 57, the alleged harm includes deprivation of healing opportunities, impaired mental and emotional health and well-being, an impaired ability to trust others, loss of self-esteem, and feelings of humiliation and degradation.

Reasoning and analysis

Justice Valente first addressed whether a motion to strike was needed. Since the Plaintiff had formally asked for leave to file the amended pleading, the court agreed with the Defendants that it could consider their request to strike paragraphs 31-33 without a separate motion, relying on Marks v. Ottawa, 2011 ONCA 248, at paragraph 19.

On the merits, the Defendants argued that the Allegations neither constitute a cause of action nor plead material facts supporting one. They also called the Allegations absurd, insofar as they suggest it is actionable or improper for a party to deny allegations or take steps to clear its reputation in the face of harmful claims. On that basis, the Defendants asked that the paragraphs be struck as irrelevant, argumentative, or inserted for colour.

Morrison responded that the Defendants had misunderstood his claim. His position was that the Defendants' responses were themselves harmful, and that this harm follows logically from the unique nature of the injuries he attributes to the Defendants' wrongdoing, as set out in paragraph 57.

Justice Valente sided with the Plaintiff. He found the Allegations relevant to the claims in negligence, breach of fiduciary duty and vicarious liability, to the extent they are material to assessing damages that would follow a finding of liability against one or more Defendants. Given the damages particularized in paragraph 57, it was also not "plain and obvious" that the Allegations themselves had not harmed the Plaintiff and class members. For that point the court cited Pro-Sys Consultants at paragraph 63. [Note: the decision refers to Pro-Sys Consultants by short form only and gives no full citation.]

Ruling and overall outcome

The court declined to strike paragraphs 31-33 and ordered that Morrison be granted leave to file his draft Second Fresh as Amended Statement of Claim, attached as Schedule "A" to his notice of motion, dated May 31, 2024. Morrison therefore succeeded on this procedural issue. No damages, costs or other monetary relief were ordered in these supplementary reasons, and the decision does not address costs.