Pleading of employment by Office of Ombudsman was pleading of legal conclusion

Plaintiff formerly held office of Ombudsman of Ontario pursuant to Ombudsman Act, he claimed that defendants Office of Ombudsman of Ontario and Legislative Assembly of Ontario were his employers, that his employment was terminated without notice and without cause, and he was not provided reasonable compensation in lieu of notice. Plaintiff claimed that Assembly and Office of Ombudsman violated their duty of good faith and fair dealing and made representations in concerted effort to mislead plaintiff. Plaintiff brought action seeking declaratory relief, damages for wrongful dismissal, reimbursement of office expenses, damages for negligent misrepresentation, and aggravated and punitive damages. Office of Ombudsman brought motion under Rule 21.01(1)(b) of Rules of Civil Procedure to strike out statement of claim on ground that it disclosed no reasonable cause of action; Assembly brought motion under s. 106 of Courts of Justice Act to dismiss action for lack of jurisdiction. Motions granted. Outcome of Office of Ombudsman’s motion turned on whether, as matter of law, Ombudsman, officer of legislature, was or could be employed by Office of Ombudsman. Plaintiff’s pleading that he was employed by Office of Ombudsman was not pleading of material fact that must be assumed to be true, but it was pleading of legal conclusion. Ombudsman Act made it clear that Office of Ombudsman was position or office to which person was to be appointed by Lieutenant Governor in Council on address of Assembly. Upon his or her appointment, person who held or occupied position was officer of legislature under Ombudsman Act. Duties of Ombudsman’s office were statutory duties assigned to office to which Ombudsman, as officeholder, shall devote himself or herself. There were no provisions in Ombudsman Act that conferred upon Ombudsman’s office itself, separate from officeholder, legal rights or powers, or that subjected Ombudsman’s office itself to duties to which officeholder was not subject. As Office of Ombudsman was position or office created by statute, it did not have separate legal existence from person appointed by Lieutenant Governor in Council on address of Assembly to hold that position or occupy that office. Neither Ombudsman’s office nor Ombudsman had authority under Ombudsman Act to appoint or reappoint person to occupy office. Plaintiff did not and could not have legal relationship with himself as Ombudsman or with Office of Ombudsman independently of himself in relation to claims made in statement of claim, and it was plain and obvious that statement of claim disclosed no reasonable cause of action.

Marin v. Ontario (Office of the Ombudsman) (2017), 2017 CarswellOnt 3739, 2017 ONSC 1687, P.J. Cavanagh J. (Ont. S.C.J.).