Claim based on waiver of tort was novel

Ontario civil | Civil Procedure

COMMENCEMENT OF PROCEEDINGS

Claim based on waiver of tort was novel

Plaintiff employed defendant. Employment agreement included covenant not to solicit employees when defendant left plaintiff’s employ. Defendant left employment with plaintiff to work with corporate defendant. Each member of personal lines team resigned employment with plaintiff and accepted employment with corporate defendant. Plaintiff claimed defendant breached non-solicitation clause. Defendants brought motion to strike out plaintiff’s statement of claim without leave to amend. In context of factual situation alleged statement of claim was adequate. Material facts with respect to damages should have been pleaded and leave to amend was granted. Allegation that corporate defendant was vicariously responsible was not struck out because it could not be said it had no hope of success. Allegations regarding damages for inducement of defendant by corporate defendant to breach non-solicitation clause and damages for inducement by defendant and corporate defendant on personal lines team were inadequate and was struck out with leave to amend. Claim for misrepresentation was not struck out. Claim based on waiver of tort was novel and it was premature to strike out pleadings. There was no basis to strike out claim for punitive damages.
Benson Kearley IFG Insurance Brokers v. Logan (Sep. 7, 2012, Ont. S.C.J., McKelvey J., File No. CV-11-106780-00) 220 A.C.W.S. (3d) 276.

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