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National Bank of Canada Successfully Strikes Portion of Pleadings

The Superior Court of Justice granted the motion to strike portions of the Plaintiff’s pleadings which allege intentional interference with economic relations, finding that there was no reasonable possibility of success based on the facts as pleaded.

Facts

The Plaintiff, Mr. Rajesh Joshi (the “Plaintiff”), worked for the National Bank of Canada (the “Defendant”) from 2009 until 2014, at which point the Plaintiff accepted a position with the Bank of Montreal (“BMO”). Shortly thereafter, the Defendant placed the Plaintiff’s name into a database which stores the names of people who have been found guilty of serious banking misconduct and operated by the Canadian Bankers Association Bank Crime Prevention and Investigation Office (“BCPIO”). When contacted by BMO, the Defendant advised them that the Plaintiff had falsified documents relating to mortgage application files.” The Defendant also advised a Canadian Imperial Bank of Commerce (“CIBC”) corporate security representative something to the effect that the Plaintiff had committed mortgage fraud. As a result of being placed on the BCPIO database, the Plaintiff’s employment with BMO was cut short and he suffered financial loss.

The Plaintiff sued the Defendant for, among other things, defamation, intentional interference with economic relations and breach of a duty of good faith. The Defendant brought a motion to strike the pleadings on the ground that it discloses no reasonable cause of action. The Defendant succeeded in its motion to strike the claim for intentional interference with economic relations, but failed with respect to the remaining claims.

In order to strike a pleading under rule 21.01(1)(b) of the Rules of Civil Procedure, the court must find that it is “plain and obvious” that the pleadings disclose no reasonable cause of action. In the context of a pleading alleging intentional interference with economic relations, the Plaintiff must set out the following facts in their pleading:
 
  1. that the defendant intended to injure the plaintiff’s economic interest;
  2. that the interference must have been made by illegal and unlawful means; and
  3. that the plaintiff must have suffered economic harm as a result.
The Court found that the Plaintiff’s pleading failed to set out the second element. The second element required the Plaintiff to plead that (a) the Defendant committed an unlawful act against BMO and CIBC by adding the Plaintiff’s name to BCPIO; and (b) that this unlawful act would be actionable by the member banks, had they suffered damages. The Plaintiff’s lawyers attempted to argue that the Defendant committed the tort of intimidation against the member banks but this argument did not succeed. The Plaintiff’s lawyers did attempt to argue misrepresentation. The court granted the motion to strike with respect to intentional interference with economic relations and denied the motion to strike with respect to defamation and breach of the duty of good faith.

Our Thoughts

On a motion to strike a portion of a statement of claim under rule 21 of the Rules of Civil Procedure, the court is engaged in weighing the plaintiff’s importance of access to justice and a defendant’s right to be free from baseless claims and vexatious litigation. The balance is typically reached by placing a high burden on the moving party to establish that it is “plain and obvious” that the pleading cannot succeed. On a motion to strike, pleadings are to be interpreted generously and with allowance for mere drafting deficiencies. However, when they are so deficient that they fail to provide the other side with enough information to know what case they have to meet, they must be stricken.

In this case, the Plaintiff was not really precluded from advancing his claim because the actions in defamation and breach of the duty of good faith were essentially based on the same facts as the claim for intentional interference with economic relations. It would have been interesting to see the court elaborate on negligent misrepresentation and why that is insufficient to meet the second element of intentional interference. 
 
For full case please see: Joshi v National Bank of Canada, 2016 ONSC 3510

The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.