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  • Writer's pictureEllen Vandergrift

Leave to amend should be denied only in the clearest of cases

Updated: Dec 2, 2021

Leanne Tran was dismissed for unprofessional conduct from a medical residency programme at the University of Western Ontario. She sued the university and several members of the faculty of medicine for damages exceeding $20 million, arguing that unfair treatment by the individual defendants led to her being unable to complete the programme and practise as a radiologist.

She alleged negligence, negligent misrepresentation, intimidation, breach of trust, breach of fiduciary duty and duty of good faith, breach of contract, inducing breach of contract, interference with economic relations and conspiracy.

The respondents brought a motion to strike all claims against the individual respondents on the basis that they disclosed no reasonable cause of action and to strike the claim of intimidation against all respondents due to a failure to plead facts in support of the essential elements of the cause of action. The motion was granted below.

In Tran v. University of Western Ontario, 2015 ONCA 295, the Court of Appeal held that the claims were properly struck for the following reasons:

  • The plaintiff did not plead sufficient particulars disclosing a basis for attaching liability to the individuals in their personal capacities, because the claim did not distinguish the acts of each of the individual respondents from those of each other and from those of the university.

  • The plaintiff failed to plead the following essential elements of conspiracy: an agreement to conspire, its objects and the overt acts of each of the individual respondents. The Court quoted from Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 37 O.R. (3d) 97 (C.A.), at 104, stating that a statement of claim alleging conspiracy should:

[D]escribe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.

  • The plaintiff failed to plead a threat in order to sustain a claim for intimidation.

However, the court did hold that the motion judge erred by failing to exercise his discretion in not granting leave to amend. Referring to South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, the court stated that “leave to amend should be denied only in the clearest of cases.” In South Holly Holdings Ltd. the Court of Appeal stated, at para. 6:

A litigant’s pleading should not lightly be struck without leave to amend. To the contrary, leave to amend should be denied only in the clearest of cases. This is particularly so where the deficiencies in the pleading may be cured by an appropriate amendment….

Leave to amend was granted because no prior amendments had been made and there was no articulated basis on which leave was denied.

While it is obviously preferable to get pleadings right the first time, this case is helpful authority for plaintiffs who need a second kick at the can.

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