Point Your Finger When You Plead: Causes of Action Struck for Failing to Articulate Basis for Claims
Overview
The Court of Appeal released its decision in Derenzis v. Ontario, 2025 ONCA 893, on December 24, 2025. The decision is a reminder that pleadings must set out the material facts linking specific defendants to recognized causes of action. Generalized and abstract allegations or legal conclusions may not survive a motion to strike under Rule 21 of the Rules of Civil Procedure.
Background
Lucia Derenzis was struck by a truck on November 24, 2015 and suffered injuries. She submitted a claim for accident benefits to her insurer, Gore Mutual (“Gore”), and sought to be deemed catastrophically impaired before the Licence Appeal Tribunal (LAT).
While adjudicating Ms. Derenzis’ claims, Gore arranged for surveillance and independent medical assessments. Whitehall Bureau of Canada Ltd. (“Whitehall”) was asked by Gore to conduct surveillance on Ms. Derenzis. Ms. Derenzis’ son-in-law, Joshua Da Silva, was allegedly struck by an investigator’s vehicle during that surveillance. Peel Regional Police allegedly altered records related to the incident.
Ms. Derenzis was also directed to attend an insurer’s examination under s. 44 of the Statutory Accident Benefits Schedule (SABS) with an Occupational Therapist. The appointment was arranged through a medical assessment company, Rapid Interactive Disability Management Inc. (“Rapid”). During the assessment, Ms. Derenzis was allegedly forced to lift weights that caused a hernia.
Ms. Derenzis and Mr. Da Silva brought a civil action based in contract and tort (both intentional and negligence), and advanced a constitutional challenge to sections of the Insurance Act and the SABS. The action names 16 defendants, including the Province of Ontario, Gore, several Gore employees, Whitehall, Rapid and the Peel Regional Police. The plaintiffs amended their claim twice to add additional allegations. Among other things, Ms. Derenzis and Mr. Da Silva alleged that each of the defendants:
- Committed battery or were negligent, either directly or vicariously, by arranging Ms. Derenzis’ medical examination where she was forced to lift excessive weight that resulted in injury;
- Harassed and intimidated Ms. Derenzis by requiring her to attend unnecessary insurers examinations and by conducting unreasonable surveillance, with the intended purpose of intimidating and distressing her;
- Breached Ms. Derenzis’ privacy in the handling and use of her private medical information;
- Breached the doctrine of good faith in the handling of her accident benefits claim and in failing to comply with SABS;
- Abused the legal process by advancing false claims before the LAT; and
- Committed battery or were negligent, either directly or vicariously, by arranging surveillance that resulted in Mr. Da Silva being struck by the investigator’s vehicle;
The Lower Court Decision
Gore, the Gore employees, Rapid and Ontario brought a motion under Rule 21 of the Rules of Civil Procedure, seeking to have each of the claims against them struck or dismissed for disclosing no reasonable cause of action and constituting an abuse of process. The motion proceeded before Justice Mandhane on September 17, 2024.
Justice Mandhane first identified the test under Rule 21, wherein the defendants must establish that it is “plain and obvious” and “beyond doubt” that the plaintiffs’ claim cannot succeed. The motion proceeds based on pleadings alone, and the facts as pled are assumed true and capable of proof.[1]
Citing the dispositive nature of the motion, Justice Mandhane then provided plaintiffs’ counsel an opportunity to frame each of the plaintiffs’ allegations as recognized torts, which were not explicitly pled.[2] These torts were identified as battery, intentional infliction of emotional distress, intrusion upon seclusion and abuse of legal process. The plaintiffs also identified the contractual doctrine of “breach of good faith”.
Justice Mandhane dismissed each of the plaintiffs’ claims against Gore, its employees and Rapid without leave to amend except for Ms. Derenzis’ claim for intentional infliction of emotional distress. Justice Mandhane similarly dismissed the constitutional challenge to the SABS without leave to amend. The plaintiffs’ constitutional challenge regarding the Insurance Act was not disputed and was deemed appropriate to proceed.[3]
Justice Mandhane clarified that while leave to amend is commonly granted on motions to strike, it may be denied when it is plain and obvious that there is no tenable cause of action possible on the facts alleged and where there is no reason to suppose that the party can improve her case with any amendment.[4] Justice Mandhane wrote:
“Here, the Plaintiffs have already filed amended their pleadings (sic) and have still failed to plead materials facts necessary to ground the various causes of action pleaded. There is no reason to suppose that amending the pleadings again with (sic) improve her case.”
The Appeal Decision
Ms. Derenzis and Mr. Da Silva appealed, asking that the order be set aside. The defendants did not cross appeal. The Ontario Court of Appeal dismissed the appeal on all grounds, except with respect to Ms. Derenzis’ claims alleging breach of the duty of good faith by Gore.
Writing for the majority, Justice Wilson noted that, while the question of whether or not a pleading discloses a reasonable cause of action is a question of law reviewable for correctness, a decision denying leave to amend is discretionary and entitled to deference.[5] Justice Wilson also noted that, despite the requirement to plead specific causes of action against named defendants, the appellants failed to do so in the bulk of the claim.[6]
Considering Ms. Derenzis’ allegations of battery against Gore and its employees, Justice Wilson agreed with Justice Mandhane that the facts as pled did not disclose a relationship between the occupational therapist who performed the assessment and Gore or its employees. Addressing the allegations of battery against Rapid, Justice Wilson confirmed that the limitation period to advance the claim had expired under the Limitations Act, and Ms. Derenzis’ novel claim that the limitation period should not run given her financial or otherwise dependence on Gore for benefits must fail.[7]
Justice Wilson similarly dismissed Ms. Derenzis’ intrusion upon seclusion claims against Gore, its employees, and Rapid, noting that, despite amending the statement of claim twice, it remained deficient and failed to articulate any basis for the claim.[8] Finally, the Court of Appeal upheld the lower court’s decision to strike Mr. Da Silva’s battery and negligence claims against the respondents, agreeing that, based on the facts as pled, the potentially tortious actions had no connection to the respondents.[9]
Justice Wilson went on to uphold the lower court decision striking the constitutional challenge to the validity of s. 55 of the SABS and the challenge to s. 19 of the SABS, based on the alleged breach of the Human Rights Code, citing abuse of process given the appellant’s ongoing LAT proceedings addressing the issues.
The Court of Appeal reversed the lower court decision and allowed Ms. Derenzis’ claim for breach of the duty of good faith as against Gore. Justice Wilson found that the lower court failed to address Ms. Derenzis’ specific allegations claiming damages for breaching the SABS, inducing breaches of contractual terms, and for breaching the duty of good faith to reasonably adjust benefit claims.[10]
Justice Wilson also cited the insurer’s independent contractual obligation to deal with all claims in good faith. Justice Wilson writes: “while the particulars are lacking at times, read generously in favour of the plaintiff with allowances for drafting deficiencies, it is clear that the appellants are claiming breaches of the contract of insurance”.[11]
Takeaway:
The Court of Appeal’s decision highlights the importance of pleading recognized causes of action, as well as the material facts that tie those causes of action to specific defendants. While the court will read pleadings generously on a motion under Rule 21, where a plaintiff repeatedly fails to plead facts necessary to ground their claims, the court will not infer or impute material facts on their behalf on a motion to strike—and may not grant leave to amend.
[1] Derenzis v. Gore Mutual et al, 2024 ONSC 5367 at para 13.
[2] Ibid at para 22.
[3] Ibid at para 57.
[4] Ibid at para 42.
[5] Derenzis v. Ontario, 2025 ONCA 893 at para 12.
[6] Ibid at para 13.
[7] The appellants argued that the claim fell under the exception for assault found in s. 16(1)(h.2) of the Limitations Act.
[8] Ibid at para 19.
[9] Ibid at para 22.
[10] Ibid at para 28.
[11] Ibid at para 29.