The Perils Of Imprecision ' British Columbia Supreme Court Rebukes Plaintiff For Failing To Stick To The Relevant Facts

• Published date: 18 May 2020
• Author: Ms Joan Young and Eleanor Rock (Articled Student)
• Subject Matter: Employment and HR, Contract of Employment, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Employment Litigation/ Tribunals
• Law Firm: McMillan LLP

In Ossudallah v. Swiss Consulting Management Ltd., 2020 BCSC 567 [Ossudallah], the British Columbia Supreme Court highlighted the importance of making clear, precise, and relevant pleadings - otherwise, a plaintiff risks jeopardizing their underlying cause of action.

Facts

The plaintiff, Ms. Ossudallah, worked as a sales person with the defendant company, Swiss Consulting Management Ltd., for over a year when she was terminated on May 23, 2019. The parties did not dispute that the termination occurred; rather, the plaintiff and defendant disputed whether the termination amounted to wrongful termination or termination for cause.

In her notice of civil claim, however, the plaintiff alleged more than wrongful termination. She advanced pleadings relating to the conduct of her supervisor, individual defendant Mr. Pourfar. The plaintiff's pleadings disclosed, in part, the following conduct allegations (the 'Conduct Allegations'):¹

23. Mr. Pourfar engaged/engages in a course of conduct which is sexually inappropriate with respect to his female staff including, without limitation, the Plaintiff.

24. On several occasions, Mr. Pourfar groped the Plaintiff on her breast(s) and/or buttocks and/or made inappropriate sexual remarks to her. This was non-consensual and there was no objective reason for Mr. Pourfar to believe it was consensual.

25. On other occasions Mr. Pourfar made sexually inappropriate remarks to the Plaintiff and/or other workers.

The plaintiff also alleged financial impropriety on the part of the individual defendant. The plaintiff alleged, in part, that Mr. Pourfar routinely falsely and retroactively re-arranged numerical data that the plaintiff and/or others had correctly entered into the corporate defendant's accounting and/or bookkeeping records (the 'Financial Impropriety Allegations').

The defendants did not dispute that the plaintiff properly pleaded her wrongful dismissal claim. They applied only to strike the Conduct Allegations and the Financial Impropriety Allegations, arguing that these allegations were irrelevant, scandalous, vexatious, and did not substantiate a cause of action.

Analysis

The test on an application to strike under Rule 9-5 of the Supreme Court Civil Rules is whether it is plain and obvious that the plaintiff's claim discloses no reasonable cause of action.² Pleadings are commonly struck where, for example, they are unnecessary, vexatious, or embarrass the hearing of a proceeding in that allowing them to stand would be...