Republished citation follows // Emphasis added
Citation: Tran v. University of Western Ontario, 2016 ONCA 978 (CanLII), <http://canlii.ca/t/gwlj4>, retrieved on 2016-12-24
Michael B. Fraleigh and Martine S.W. Garland, for the appellant
Ashley Richards and Sean Murtha, for the respondent
Heard: December 9, 2016
On appeal from the order of Justice Sean F. Dunphy of the Superior Court of Justice, dated March 11, 2016, with reasons reported at 2016 ONSC 1781 (CanLII).
 This is the second appeal in a saga that began when Leanne Tran, the appellant, issued a statement of claim on January 11, 2013. In the pleadings motion leading to the first appeal, the respondents on the motion successfully moved to strike all her claims against the individual faculty members, and against the University of Western Ontario (“UWO”), for intimidation. The reasons were reported at 2014 ONSC 617 (CanLII). This court gave Dr. Tran leave to amend her statement of claim in a judgment released April 30, 2015, with reasons reported at 2015 ONCA 295 (CanLII).
 Dr. Tran then amended the statement of claim and the defendants moved to strike portions of it on a number of grounds. The motion judge largely granted their motion. This second appeal is quite narrow and only challenges the motion judge’s disposition respecting the conspiracy claim against two of the defendants, Dr. Amann and Dr. Kribs.
 On the motion under appeal, the defendants attacked the conspiracy claim under r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as disclosing no reasonable cause of action, since, on the face of the pleading, “the material facts relevant to her claim for conspiracy” were “discovered” by November 2007 – more than five years before the action was started. Accordingly, the motion judge found the cause of action in conspiracy was time-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
 For the reasons that follow, I would allow the appeal.
A. background facts
 I largely paraphrase from the statement of background facts provided in this court’s earlier decision. Dr. Tran is a medical doctor and was a radiology resident in the diagnostic radiology programme of the Schulich School of Medicine and Dentistry at UWO. She experienced difficulties throughout the programme and was eventually dismissed for unprofessional conduct.
 Dr. Tran brought an action against UWO and the individual defendants, who were administrators and supervisors in the residency programme. She argued that unfair treatment by the defendants ultimately led to her inability to complete the programme and to practise as a radiologist. Her original statement of claim pleaded causes of action in 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. She sought damages totalling more than $20 million.
 The basic conspiracy allegation against Dr. Amann and Dr. Kribs is set out at para. 32 of the amended statement of claim, which provides:
Dr. Tran states that upon her return to training, Drs. Amann and Kribs planned, agreed and conspired to undertake actions which would create or contribute to a hostile work environment for Dr. Tran, in order to force her to resign, be removed or be dismissed from the Residency Radiology Program.
B. The nature of this appeal
 The motion judge granted an order in terms of paras. a) to g) of the defendants’ amended notice of motion, which are set out here since they show the broad reach of the motion and, by contrast, show the narrowness of this appeal:
a) An Order striking the claim of conspiracy, without further leave to amend, on the basis that the Amended Statement of Claim fails to disclose a reasonable cause of action, because it is plain and obvious that it has been commenced outside of the applicable limitation period;
b) An Order striking the claims against Christopher Watling, Roya Etema[d]-Rezai, David Bach and Terri Paul, without further leave to amend, on the basis that these claims disclose no reasonable cause of action as against these individual defendants;
c) An Order striking the claims of negligence, inducing breach of contract and negligent misrepresentation as against Dr. Kribs, on the basis that the Amended Statement of Claim discloses no reasonable cause of action in regards to these claims;
d) An Order striking the claim of negligence as against Dr. Amann, on the basis that the Amended Statement of Claim discloses no cause of action in regards to this claim;
e) An Order striking the claim of interference with economic relations as against all defendants, without further leave to amend, on the basis that the claim fails to plead the necessary elements of the tort of interference with economic relations;
f) An Order striking the claim of negligent misrepresentation as against all defendants, without further leave to amend, on the basis that the claim fails to plead the necessary elements of the tort of negligent misrepresentation;
g) An Order striking paragraphs 26, 35, 51, 53, 60, 92, 98, 99, 115, 127, 129, 133 of the Amended Statement of Claim, on the basis that the allegations contained within these paragraphs fall within the discretion of the UWO and, as such, disclose no reasonable cause of action.
 Dr. Tran does not appeal all the provisions of this comprehensive order. She asks only that she be permitted to pursue her claim against Dr. Amann and Dr. Kribs in conspiracy, which is set out in para. 142 of the amended statement of claim. It provides:
- Dr. Tran states that the actions of Drs. Amann, Kribs, Etemad-Rezai and Bach were relied upon by Drs. Paul and Watling to justify the Report and Dr. Tran’s dismissal from the Radiology Residence Program. Drs. Paul and Watling became a party to the Conspiracy by colluding with Drs. Amann, Kribs, Etemad-Rezai and Bach to create improper, unjust and unwarranted reasons for Dr. Tran’s dismissal from the Radiology Residence Program, and causing her to be unjustly removed from the Radiology Residence Program.
 In the alternative, Dr. Tran seeks an order for leave to amend the amended statement of claim in relation to conspiracy.
 I agree with Dr. Tran’s submission that the motion judge erred in giving effect to the presumption in s. 5(2) of the Limitations Act, 2002 regarding the date on which she was deemed to know she had a cause of action in conspiracy, because the issue of discoverability under s. 5(1) of the Act had not yet been properly developed in the pleadings.
 Section 5 of the Limitations Act, 2002 provides:
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; ….
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
 The heart of the motion judge’s reasoning on the conspiracy claim is found at paras. 37-39 of the decision. First, the motion judge recapitulated the allegations against Dr. Amann and Dr. Kribs, at para. 37:
Paragraph 32 of the Amended Claim pleads that Dr. Amann and Dr. Kribs conspired to take actions that would “create or contribute to a hostile work environment for Dr. Tran in order to force her to resign, be removed or be dismissed from the Residence Radiology Program” and that they did so “upon her return to training” in 2007. Other defendants are alleged to have joined the pre-existing conspiracy. Dr. Bach and Dr. Etemad-Rezai are pleaded to have done so and committed a variety of acts in furtherance of the conspiracy between 2007 and December 10, 2010.
 The December 10, 2010 date looms because it is two years before the notice of action was issued on December 12, 2012. Anything before that date would, but for discoverability, be time-barred.
 The motion judge next turned his mind to the criteria under s. 5(1)(a) of the Limitations Act, 2002, which relate to discoverability, at para. 38:
Taken as a whole, all four elements for the discovery of the conspiracy claim required by s. 5 of the Limitations Act are pleaded by the plaintiff, regardless of whether the conspiracy claim itself is adequately pleaded. The fact of the agreement to conspire is pleaded. Actions taken in furtherance to the agreement and damages arising are all alleged to have occurred and to have occurred prior to December 10, 2010. It is not necessary that all of the evidence necessary to prove a claim be known. It is not necessary that legal advice be received to “connect the dots” to appreciate that a claim is the appropriate means to seek a remedy. In particular, it is not necessary that the full extent of resulting damages be appreciated so long as the existence of some damage related to the allegedly wrongful act has occurred.
 I take no issue with the general pleading principles the motion judge cited, which readily emerge from the cases. The problem creeps in when the motion judge concluded that, since all of the actions pleaded in furtherance of the conspiracy occurred before December 10, 2010, the action must be time-barred:
In my view, the four discoverability criteria of s. 5(1)(a) of the Limitations Act are alleged by the Amended Claim to have occurred prior to December 10, 2010. The onus therefore falls upon the plaintiff [to] plead facts to discharge the onus contained in s. 5(2) of the Limitations Act. No such facts have been pleaded.
 There are two basic difficulties with these statements. First, I observe that the most successful conspiracy is one in which the target remains completely unaware of it. The crucial element, which the motion judge did not mention or take into account in his assessment of discoverability, is when Dr. Tran became aware of the conspiracy. This was an error. While she knew of certain actions taken by the defendants, her understanding of those actions as indicative of a conspiracy could only be retrospective. This aspect of the cause of action in conspiracy plainly engages the discoverability elements of the Limitations Act, 2002.
 Second, there is a related procedural error. Normatively, as this court observed in Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at paras. 21-22: “The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded.”
 The reason for the staged approach to pleading a limitation defence was explained by D.M. Brown J. (as he then was) in Greatrek Trust S.A./Inc. v. Aurelian Resources Inc.,  O.J. No. 611,(S.C) at para. 18:
Although the Beardsley decision leaves open the theoretical possibility of a limitations-based Rule 21.01(1)(a) motion prior to the filing of a statement of defence, in my view courts should do nothing to encourage such a practice. A court cannot gain a complete picture of the issues in a case without reading all the pleadings. To permit defendants to move to strike using yet-to-be-pleaded limitation defences would distort the pleadings process. Rule 25.06 does not require plaintiffs to plead their claims anticipating defences which might be raised. Replies function to respond to pleaded defences: Rule 25.08(2). As the Court of Appeal observed in Beardsley, these rules ensure procedural fairness. [Emphasis added.]
 Justice Laskin expressly agreed with Brown J.’s comments in Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850 (CanLII), 113 O.R. (3d) 673, at para. 115. He elaborated, at para. 116:
The rules call for a limitation defence to be pleaded in the statement of defence. A plaintiff is entitled to reply to a statement of defence and put before the court further facts, for example, on the question of the discoverability of the claim. Only in the rarest of cases – and this is not one of them – should this court entertain a defendant’s motion to strike a claim based on the limitation defence where the defendant has yet to deliver a statement of defence. [Emphasis added.]
 In my view, this case too is not one of those rarest of cases. The preferable procedure would have been to require the defendants Dr. Amann and Dr. Kribs to file a statement of defence asserting a limitation defence under the Limitations Act, 2002, to which Dr. Tran would be entitled to respond by way of reply and assert the date on which she discerned the existence of a conspiracy. Only at that point would the issue of discoverability be fully joined. The motion judge erred in effectively addressing the limitation issue as if this were not a pleadings motion but a motion for judgment on the limitation defence.
 I refrain from commenting on the other approach to discoverability taken by Dr. Tran concerning the application of s. 5(1)(a)(iv) of the Limitations Act, 2002, which would postpone the date of discovery to the day on which, “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”. She argues that it would not have been appropriate for her to start the action until her dismissal from the programme on July 8, 2011. Until that date she was the subject of a university investigation related to professional misconduct and still had some hope of exoneration, which would have been scotched by commencing a lawsuit. Dr. Tran invokes this court’s decision in Brown v. Baum, 2016 ONCA 325 (CanLII), 348 O.A.C. 251 in which the court found that the limitation period in a medical malpractice suit did not start until the surgeon’s last effort to repair his alleged surgical errors. I would leave the saliency of this issue to the ultimate trier of fact, if it is asserted.
 As noted, Dr. Tran asks that para. 142 of her amended statement of claim “be permitted to proceed”. The motion judge struck the conspiracy claim against Dr. Etemad-Rezai, Dr. Bach, Dr. Paul and Dr. Watling for reasons not related to the limitation defence and that part of his order was not appealed. Given the outcome of the motion and the limited nature of this appeal, para. 142 must be amended and I would give Dr. Tran leave to do so.
 In the notice of appeal, Dr. Tran also asked that para. 115 of the amended statement of claim “be permitted to proceed”. Paragraph 115 provides:
By failing to ensure that a proper and independent investigation was conducted, UWO breached its fiduciary duty, duty of care and the express or implied terms of the Contract.
 The notice of appeal argues that the motion judge struck para. 115 “after incorrectly determining that this paragraph related to the conspiracy claim, and notwithstanding that this relief was not sought by the Individual Respondents on the motion.” The appellant’s factum was silent on the issue, and it was not pursued in oral argument. The motion judge addressed para. 115 of the amended statement of claim in paras. 51, 54, 78, and 92. The nub of his decision to strike para. 115 is set out, at para. 92:
Paragraph 115 faults the University for failing to have conducted an independent investigation of the complaints made against her that resulted in her dismissal. I would find that the conduct of an internal investigation and complaints process to be within the realm of academic discretion that is protected from suit. What administrative law remedies are or were available to her in respect of that investigation is an entirely different matter. I would strike paragraph 115.
 Dr. Tran did not appeal the “academic discretion” determination, and I would dismiss the appeal on the striking of para. 115 on that basis.
 The respondents raise two arguments that I would reject. First, counsel submits that the conspiracy claim against Dr. Amann and Dr. Kribs is redundant. The issue in argument was whether UWO would accept liability if it were found that Dr. Amann and Dr. Kribs were liable for conspiracy, since that would not normally be within the scope of their duties for which UWO would be vicariously liable. In oral argument, counsel clarified that UWO accepts it would be vicariously liable for any torts committed by the defendants, including conspiracy.
 As comforting as UWO’s position might be for Dr. Tran, it does not give this court a legal basis for striking the conspiracy claim against Dr. Amann and Dr. Kribs. Dr. Tran is free to structure her case as she sees fit within the Rules of Civil Procedure.
 Second, respondents’ counsel points out that UWO did file a statement of defence in which it asserted a defence under the Limitations Act, 2002. Accordingly, she argues, the amended statement of claim should have set out the date by which Dr. Tran discovered the conspiracy. I do not agree, for the reasons set out above on the role and sequence of the pleadings at issue. Moreover, UWO, Dr. Amann and Dr. Kribs are separate defendants.
 I would allow the appeal and grant Dr. Tran leave to amend para. 142 of her amended statement of claim. I would award costs to Dr. Tran for the appeal fixed in the amount of $15,000 all-inclusive, payable by the respondents. I would reduce the costs award on the motion against Dr. Tran by twenty percent to account for the respondents’ substantial victory in the court below and the relatively narrow scope of this appeal
“P. Lauwers J.A.”
“I agree Doherty J.A.”
“I agree J.C. MacPherson J.A.”
Released: December 23, 2016