Case reference: P. (P.) v. D. (D.), 2016 ONSC 258
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
The plaintiff claimed that the defendant deceived him into having recreational sexual intercourse which, contrary to his wishes, resulted in the birth of a child. He sued the defendant for negligent misrepresentation, seeking $4 million in damages for non-pathological emotional harm caused by unplanned parenthood. The defendant brought a motion to strike the statement of claim without leave to amend.
Held, the motion should be granted.
It was plain and obvious that fraudulent misrepresentation was not the appropriate legal vehicle for a claim for damages for the emotional harm arising from unplanned parenthood. Fraudulent misrepresentation is typically classified as an economic or pecuniary tort, for which compensatory damages are designed to restore the person to the financial position he or she was in before the wrongdoing occurred. In the context of a fraudulent misrepresentation claim, the plaintiff’s allegation that his consent to sexual intercourse was vitiated by deceit was problematic because consent or the lack thereof is not a constituent element of the tort. The plaintiff’s use of fraudulent misrepresentation for an emotional harm claim made his action a novel one, because it would expand the scope of fraudulent misrepresentation and take it into new territory. However, it was plain and obvious as a matter of legal policy that that expansion of the tort was both unnecessary and undesirable. It was unnecessary because, in the context of sexual misconduct, the tort of sexual battery might be available. It was undesirable because it had the potential of adversely affecting the relationship between parent and child, and had the potential to be used maliciously.
The plaintiff should not be granted leave to amend the statement of claim to plead sexual battery. It was plain and obvious that a claim for non-pathological emotional harm flowing from unplanned parenthood does not come within the ambit of the tort of sexual battery.
Jurisdiction to strike a pleading for failure to show a reasonable cause of action
On a motion under rule 21.01(1)(b) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] to strike a statement of claim, the test is that assuming that the facts as stated in the statement of claim can be proved, is it plain and obvious that the pleading discloses no cause of action. If there is a chance that the plaintiff might succeed, then the claim should not be struck. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with its case. Unless it is plain and obvious and beyond doubt the pleading discloses no reasonable cause of action and is certain to fail because it contains a radical defect, a pleading will not be struck.
See Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93; R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42; Spina v. Shoppers Drug Mart Inc., [2012] O.J. No. 4659, 2012 ONSC 5563 (S.C.J.).
In assessing the cause of action, no evidence is admissible and the court accepts the pleaded allegations of fact as proven, unless they are patently ridiculous or incapable of proof: Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, [1980] S.C.J. No. 99; Canada v. Operation Dismantle Inc., [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22; Nash v. Ontario (1995), 27 O.R. (3d) 1, [1995] O.J. No. 4043 (C.A.).
Generally speaking, the case law imposes a very low standard for the demonstration of a cause of action, which is to say that, conversely, it is very difficult for a defendant to show that it is plain, obvious and beyond doubt that the plaintiff cannot succeed with the claim.
However, while the normal rule on a motion to strike a statement of claim is that any doubt is to be resolved in favour of finding the existence of the cause of action and permitting the action to proceed, given the overriding importance of ensuring that litigation involving children is in the best interests of the children, the court, in a particular case, may impose a more stringent standard before it allows the action to be brought: Frame v. Smith, [1987] 2 S.C.R. 99, [1987] S.C.J. No. 49, at para. 36. I shall apply that stricter standard in the case at bar.
The elements of a claim of fraudulent misrepresentation or deceit are (1) a false statement by the defendant; (2) the defendant knowing that the statement is false or being indifferent to its truth or falsity; (3) the defendant having an intent to deceive the plaintiff; (4) the false statement being material and the plaintiff having been induced to act; and (5) the plaintiff suffering damages.
Fraudulent misrepresentation is typically classified as an economic or pecuniary loss tort, for which compensatory damages are designed to restore the person to the financial position he or she was in before the fraudulent misrepresentation. Apart from having to pay child support, which, subject to proof of paternity, he is no longer seeking to avoid, PP does not have any financial losses and none are particularized in his statement of claim. PP is not married to DD. He is not obliged to marry her. He is not a spouse under the Family Law Act, R.S.O. 1990, c. F.3, because he never cohabited with DD and he never established a relationship of any permanence with her. PP will not incur any financial losses from DD’s pregnancy and the birth of a healthy child, and he will experience no disruption of his career as a doctor. PP was not infected by any venereal disease and he does not plead that his emotional harm was pathological in nature.
The law about the nature of an award of damages for fraudulent misrepresentation distinguishes compensation for a breach of contract, the aim of which is to put the innocent party in the position he or she would have been had the contract been performed, and compensation for fraudulent misrepresentation, which is designed to restore the injured party to the financial position he or she would have been had the wrongdoing not occurred. PP obviously cannot be restored to the emotional state of non-fatherhood and so his claim for non-pathological emotional harm makes no sense for the conventional use of the tort of fraudulent misrepresentation.
In the context of a fraudulent misrepresentation claim, PP’s allegation that his consent to sexual intercourse was vitiated by deceit is problematic because consent or the lack thereof is not a constituent element of fraudulent misrepresentation. In other words, in the context of a fraudulent misrepresentation claim, the reference in his statement of claim to a vitiated consent to sexual intercourse is a non sequitur.
Professor Klar, in L.N. Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012), at p. 696, explains that while the notion of fraud is relevant to many areas of the law, the general notion of fraud is distinct from the tort of deceit or fraudulent misrepresentation. Professor Klar writes:
Apart from the tort itself deceitful or fraudulent behaviour has relevance to many areas of the law. It is most important relevant to the law of contracts leading to the rescission of contracts. . . . It is a relevant consideration in other tort actions, for example, in respect of the validity of consent as a defence in the tort of battery. . . . Although the issue of deceitful or fraudulent behaviour in the areas has a close connection to the notion of fraud in the tort of deceit . . . they are strictly outside the scope of the tort itself.
While I can understand and accept PP’s argument that fraud can vitiate consent to sexual activity, this argument is both tautological and irrelevant to his cause of action for fraudulent misrepresentation. In the context of a claim for fraudulent misrepresentation, tautologically, the submission that a fraudulently procured consent is an example of fraud is obviously true, but the submission simply begs the question of whether there was a fraudulent misrepresentation. Put differently, the circumstance that PP’s consent to sexual activity was vitiated is not a constituent element of his fraudulent misrepresentation claim and, rather, if proven, the vitiated consent is the effect (not the cause) of the fraudulent misrepresentation.
In Hutchinson, the female complainant consented to sexual intercourse with a condom. Unknown to her at the time, her partner, Mr. Hutchinson, poked holes in the condom, and the complainant became pregnant. Mr. Hutchinson was charged with aggravated sexual assault. The complainant said that she did not consent to the sex. Chief Justice McLachlin and Justice Cromwell viewed the matter of the complainant’s consent or lack thereof as an issue of statutory interpretation of the Criminal Code as to how it draws the line between criminality and non- criminality when consent to sexual activity is the result of deception. As they viewed the matter, the complainant had consented to sexual activity but her consent had been vitiated by the fraud of Mr. Hutchinson. Justices Abella and Moldaver, who together wrote a separate judgment, viewed the matter differently. They said the issue was not whether the complainant’s consent was vitiated by fraud but whether or not there was consent to the sexual activity in the first place; they concluded that there had been no consent to the sexual activity.
While the analysis in Hutchinson has relevance to the tort of sexual battery, which I will discuss below, it has nothing helpful to say about the tort of fraudulent misrepresentation.
In support of his fraudulent misrepresentation claim, PP also relies on the passage set out below from Justice Cory’s judgment in R. v. Cuerrier, [1998] 2 S.C.R. 371, [1998] S.C.J. No. 64, the predecessor to Hutchinson in analyzing in sexual assault prosecutions the effect of the accused’s deceit on the complainant’s consent. I will have more to say about Cuerrier, which was followed in Hutchinson, in the discussion below about sexual battery, but for the moment, the focus is on what Cuerrier has to contribute to an analysis of a civil fraudulent misrepresentation claim for damages for non-pathological emotional harm from unplanned parenthood.
In Cuerrier, the accused was charged with sexual assault for failing to disclose his HIV status to sexual partners whose consent was held to be vitiated by his non-disclosure. Justice Cory stated, at paras. 132-35 of Cuerrier:
It must be remembered that what is being considered is a consensual sexual activity which would not constitute assault were it not for the effect of fraud. Obviously if the act of intercourse or other sexual activity was consensual it could not be an assault. It is only because the consent was obtained by fraud that it is vitiated. Aggravated assault is a very serious offence. Indeed, a conviction for any sexual assault has grave consequences. The gravity of those offences makes it essential that the conduct merit the consequences of conviction.
In the case at bar, the failure to disclose the presence of HIV put the victims at a significant risk of serious bodily harm. The assault provisions of the Criminal Code are applicable and appropriately framed to deter and punish this dangerous and deplorable behaviour. To say that any fraud which induces consent will vitiate consent would bring within the sexual assault provisions of the Code behaviour which lacks the reprehensible character of criminal acts. Let us consider some of the situations which would become criminal if this approach were followed.
In these examples I will assume that it will more often be the man who lies but the resulting conviction and its consequences would be the same if it were the woman. Let us assume that the man lied about his age and consensual sexual act or acts then took place. The complainant testifies and establishes that her consent would never have been given were it not for this lie and that detriment in the form of mental distress, had been suffered. Fraud would then be established as a result of the dishonesty and detriment and although there had been no serious risk of significant bodily harm a conviction would ensure.
The same result would necessarily follow if the man lied as to the position of responsibility held by him in a company; or the level of his salary; or the degree of his wealth; or that he would never look at or consider another sexual partner; or as to the extent of his affection for the other party; or as to his sexual prowess. The evidence of the complainant would establish that in each case the sexual act took place as a result of the lie and detriment was suffered. In each case consent would have been obtained by fraud and a conviction would necessarily follow. The lies were immoral and reprehensible but should they result in a conviction for a serious criminal offence? I trust not.
It is no doubt because of this potential trivialization that the former provisions of the Code required the fraud to be related to the nature and quality of the act. This was too restrictive. Yet some limitations on the concept of fraud as it applies to s. 265(3)(c) are clearly necessary or the courts would be overwhelmed and convictions under the sections would defy common sense. The existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action. However, it should not provide the foundation for a conviction for sexual assault. The fraud required to vitiate consent for that offence must carry with it the risk of serious harm. This is the standard which I think is appropriate and provides a reasonable balance between a position which would deny that the section could be applied in cases of fraud vitiating consent and that which would proliferate petty prosecutions by providing that any fraud which induces consent will vitiate that consent.
I do not understand this passage as supporting a civil cause of action for fraudulent misrepresentation for the non-pathological emotional harm of unplanned parenthood. The main point that Justice Cory was making was his opinion that for there to be criminality in a sexual assault, a fraud that vitiates consent must also create a significant risk of serious harm. From Justice Cory’s analysis of criminality, in support of PP’s cause of action for fraudulent misrepresentation, PP extracts the sentence “Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action.” I emphasize the word “might” in Justice Cory’s sentence. While I agree with Justice Cory’s observation that fraud which leads to a non-consensual sexual activity might ground a civil action, that civil action would not be fraudulent misrepresentation for damages for non-pathological emotional harm.
PP’s use of fraudulent misrepresentation for an emotional harm claim is what makes PP’s action a novel one, because it would expand the scope of fraudulent misrepresentation and take it into new territory. However, I regard it as plain and obvious as a matter of legal policy that this expansion of the tort of fraudulent misrepresentation is both unnecessary and undesirable.
In the context of sexual misconduct, the tort of fraudulent misrepresentation is unnecessary because the tort of sexual battery, discussed below, might be available. Sexual battery is the conventional legal tool of the civil law to redress sexual misconduct, and this tort is provable even without any damages having been suffered. Further, in the context of claims for emotional harm, the tort of fraudulent misrepresentation is also unnecessary because the torts of intentional infliction of mental suffering and negligence might also be available. Intentional infliction of mental suffering and negligence are the conventional legal tools of the civil law to redress misconduct causing emotional harm.
I wish to be clear that I am not saying that it is plain and obvious that fraudulent misrepresentation cannot encompass a claim for emotional harm; rather, my point is that fraudulent misrepresentation does not encompass a claim for the non-pathological emotional harm occasioned by unplanned parenthood. I accept, for example, that a fraudulent misrepresentation claim would cover a case where a defendant fraudulently misrepresented that a product was safe for use and the plaintiff was injured by using the product suffering personal injuries including damages for emotional harm. However, in the immediate case, PP was not physically injured and his emotional injuries do not involve a recognizable psychiatric illness and rather are of the type of damages for which tort law does not normally offer compensation.
source: Ontario Reports
