Great opening lines: Sex and foreign law in the Ontario courts

Call me Ishmael. – Herman Melville, Moby-Dick (1851)

Lolita, light of my life, fire of my loins. – Vladimir Nabokov, Lolita (1955)

Justice? – You get justice in the next world, in this world you have the law. – William Gaddis, A Frolic of His Own (1994)

( Reference: From a list of the 100 best first lines from novels, as decided by the American Book Review, a nonprofit journal published at the Unit for Contemporary Literature at Illinois State University: 100 best first lines from novels (via Pantagraph.com))

Whether you’re writing the next great American novel or you’re a motion judge writing your reasons for decision; opening lines should always be catchy. The following opening line in a recent Ontario decision certainly grasped this reader’s attention:
“Sex and foreign law form the subject-matter of this motion under Rules 21 and 25 of the Rules of Civil Procedure by the defendants, Paul Sullivan, Bryan Vickers and RBC Dominion Securities Inc., to strike out all or parts of the Statement of Claim of Ms. Irene Slegers.”
For those expecting more prurient details, read no further. The rest of this blog post is devoted to the more mundane analysis of Slegers v. Sullivan, 2009 CanLII 66376 (ON S.C.) (“Slegers”) a recent Ontario decision involving the defendants’ motion to strike pleadings  as scandalous and failure to plead foreign law.

In Slegers,  the plaintiff sued for damages for breach of contract, negligence and breach of fiduciary duty, alleging that her former investment advisor, with whom she had a five year sexual relationship, failed to provide appropriate advice and management of her investments with RBC, leading to significant losses when the markets fell in 2008.

To lend support to her pleading, the plaintiff particularized the sexual intimacy, “describing the emotional and financial expectations she formed as a result of her intimate relationship with Mr. Sullivan, and tying them to her pleadings of financial loss.” (at para. 4)

The motion judge dismissed the defendant’s motion to strike the sexual intimacy allegations, noting that:

“The Rule 21 aspect of the defendants’ motion is completely misplaced. Ms. Slegers pleads damages arising from a failed investment relationship under three causes of action – negligence, breach of contract and breach of fiduciary duty. As the Court of Appeal pointed out in Hunt v. TD Securities 2003 CanLII 3649 (ON C.A.), (2003), 66 O.R. (3d) 481 (C.A.), at paragraphs 40 to 42, in determining whether a fiduciary relationship may exist between a financial advisor and his client, a court must consider five interrelated factors – vulnerability, trust, reliance, discretion and professional rules. The plaintiff does not purport to plead an independent cause of action against Mr. Sullivan in respect of their sexual relationship; she pleads those material facts in support of her investment-related claims. Her pleading of an alleged sexual relationship with Mr. Sullivan during the currency of their investment relationship relates to most, if not all, of the five factors enumerated in the Hunt case. Arguably they could also relate to causation and the quantum of damages given the central role played by the Know Your Client Rule in investment advice cases.

[7] What the defendants really are attempting to do under the guise of a Rule 21 motion is to secure a pre-trial ruling regarding the inadmissibility of evidence that they would prefer not emerge at trial. That is an improper use of Rule 21. Obviously the trial judge will have to hear evidence about the nature of the relationship between Ms. Slegers and Mr. Sullivan as part of the court’s consideration of the pleaded causes of action. Issues regarding the admissibility of any particular piece of evidence in support of a properly pleaded cause of action are for the trial judge to decide, not a motions judge on a Rule 21 motion.”

Justice D.M. Brown also rejected the defendants’ argument that pleading the sexual relationship was irrelevant or scandalous under Rule 25.11 of the Ontario Rules of Civil Procedure. (at para. 8). Rather, Brown, J. considered it part of the “relevant narrative in support of her pleaded causes of action, particularly those of negligence and breach of fiduciary duty; it is not an irrelevant, gratuitous pleading of alleged conduct.”

However, the motion judge did agree with the defendants that the statement of claim failed to properly plead foreign law, as the pleadings did not specify which transactions were governed by specific foreign law, the provision that applied, particulars of the breach and whether the foreign law (in this case Massachusetts, Florida or California statutes), differed from Ontario law. Brown, J. notes:

“In Yordanes v. Bank of Nova Scotia 2006 CanLII 1777 (ON S.C.), (2006), 78 O.R. (3d) 590 (S.C.J.), Cullity J. nicely summarized the requirements for pleading foreign law:

(a) A defendant is entitled to insist that the plaintiff’s position with respect to foreign law is indicated clearly in her pleading; (para. 48)

(b) In a choice of law determination, there can be only one applicable law for a particular issue. Therefore, a plea that the laws of an unspecified one of a number of identified jurisdictions will be applicable falls short of an acceptable degree of certainty; (para. 50)

(c) Accordingly, a plaintiff must plead that the laws of a particular jurisdiction apply, either as the governing law or in the alternative to those of other identified jurisdictions, and continue by pleading the factual basis for each such plea, or the plaintiff must plead reliance on the presumption of the similarity of foreign law to that of the domestic jurisdiction (para.51).

[14] The Amended Statement of Claim does not meet those requirements. If the plaintiff intends to plead that foreign law governed some of the investment transactions that occurred at different points at time, she must clearly specify in her pleading (i) which transactions were governed by Ontario law, (ii) which transactions were governed by a specific foreign law, (iii) the provision of the foreign law that applied, (iv) the particulars of the breach of foreign law alleged, and (v) whether the foreign law differed in the instance from Ontario law and, if it did, in what respect. Only in that way will foreign law be properly pleaded as a material fact.”

I think most readers get the point that foreign law must be pleaded. What I don’t understand is what’s the big deal about having to prove foreign law? After all, don’t American judges routinely apply Canadian law without cavil? I would prefer if there were some refinement to this requirement for proof of jurisdictional facts. Admittedly, judicial notice of foreign law is unrealistic, but why do litigants have to call expert evidence to opine on the interpretation of a statute?  The Supreme Court of Canada regularly cites “foreign” law, including American and British law upon which our legal system is a close juridical cousin. What about just applying the principles of statutory interpretation?  Are you there, Ruth Sullivan? It’s me, Antonin.

In the end, the plaintiff’s pleading relating to foreign law was struck with leave to amend her Statement of Claim within 30 days to properly plead foreign law. The plaintiff was also awarded $2,500 in costs on the motion.

2 Responses to “Great opening lines: Sex and foreign law in the Ontario courts”

  1. Irene Slegers Says:

    I hope you decide to follow up on this article with details of the trial which is scheduled for April 15, 2012 – pretrial is Feb 24 – especially with your new post at Canadian Lawyer Magazine. Congratulations on that assignment.

    Did you catch Macleans’ May/2011 article on the upcoming trial? http://www2.macleans.ca/tag/irene-slegers. Unfortunately it focuses on sex, though my case is about so very much more.

    [PARAGRAPH REDACTED AT THE WRITTEN REQUEST OF COUNSEL FOR PAUL SULLIVAN, BRYAN VICKERS AND RBC DOMINION SECURITIES INC. ON THE GROUNDS THAT THE COMMENT IS DEFAMATORY AND UNTRUE]

    I’m prohibited from telling you anything about the lawsuit not already on public file. You’ll have to wait until April 15 for that. Stay tuned.

    Btw, the amended amended statement of claim succeeded in properly pleading foreign law.

    Irene Slegers

  2. Antonin I. Pribetic Says:

    Thank you for your comment, Ms. Slegers, and for the update on your case. Best of luck at your upcoming trial.

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