Intentional torts must be pleaded with "clarity and precision"
Updated: Nov 26, 2021
Ceballos v. DCL International Inc., 2018 ONCA 49, is a reminder to lawyers that the pleading of intentional torts must meet a stringent standard of particularity: they must be pleaded with “clarity and precision.”
This case involved allegations of tortious conduct against an officer of a company in the context of a wrongful dismissal claim. The pleadings related to the officer are summarized by the Court at para. 9:
…At paragraphs 61 and 62, the appellant alleges that Mr. Swiatek and the company were part of an unlawful means conspiracy to terminate his employment. Paragraphs 63 and 64 of the statement of claim are titled “Corporate Veil”. At para. 63, the appellant pleads that Mr. Swiatek had “wide powers and control over the company” and “not only aided and abetted the misconduct of others in the company” but also “provided the misleading reason himself for my termination” and engaged in an unlawful means conspiracy….
The motion judge dismissed the claim against the officer on the basis that the appellant had not pleaded sufficient grounds that would take the officer’s actions outside of the scope of his duties and responsibilities as an officer of the company so as to possibly attract personal liability.
The Court of Appeal held that the motion judge correctly struck out the claim against the officer, and dismissed the appeal.
The Court of Appeal confirmed that, “…if sufficiently and adequately pleaded, allegations of conspiracy, fraudulent misrepresentation and other tortious conduct may form the basis of a reasonable cause of action against an officer or a director of a corporation…” ( at para. 10). “However, to invoke those exceptions that permit the piercing of the corporate veil, the claim must be specifically pleaded” (at para. 11).
Bald or vague assertions of intentional tortious conduct will be insufficient; rather, the pleadings must be clear and precise (at para. 12). To satisfy this standard, a lawyer drafting a statement of claim must be aware of the elements of each intentional tort and be sure to allege each element against the officer personally, independent from the company.