Case Name:

Fehringer v. Sun Media Corp.

PROCEEDING UNDER the Class Proceedings Act, 1992

Between

Vanessa Fehringer, plaintiff (appellant), and

Sun Media Corporation, Sun Media (Toronto) Corporation and

Toronto Sun Publishing Corporation, carrying on business as

The Toronto Sun and Norm Betts, also known as Norman Betts,

defendants (respondents)

[2002] O.J. No. 2919

115 A.C.W.S. (3d) 388

Court of Appeal File No. C36784

Ont. Superior Ct. of Justice File No. 00-CV-183721

Ontario Court of Appeal

Toronto, Ontario

McMurtry C.J.O., Catzman and MacPherson JJ.A.

July 4, 2002.

(3 paras.)

Practice -- Pleadings -- Striking out pleadings -- Grounds, failure to disclose a cause of action or defence -- Setting aside order striking out pleadings.

Appeal by Fehringer from a decision striking out her claim for breach of fiduciary duty. The judge found that her failure to allege that the defendants had an obligation to look after her interests constituted a radical defect in the pleading and that it was plain and obvious that the claim for breach of fiduciary duty could not succeed.

HELD: Appeal allowed. The decision was set aside. The cause of action was sufficiently pleaded and it could not be said that the claim must fail at trial.

Counsel:

Raymond G. Colautti and Jeffrey Raphael, for the plaintiff (appellant).

No counsel mentioned for the defendants (respondents).

The judgment of the Court was delivered by

1 McMURTRY C.J.O. (endorsement):-- We agree with much of the thorough analysis found in the Reasons for Judgment of Cumming J. We do not agree, however, with his conclusion in para. 22 of his Reasons, that "The plaintiffs' failure to allege that the defendants had an obligation to look after her interests and those of the putative class members constitutes a radical defect in the cause of action as pleaded" and with his conclusion, in para. 25, that "Even on a broad interpretation of the case law, it is plain and obvious that the plaintiff's claim for breach of fiduciary duty cannot succeed."

2 In our view, the cause of action for fiduciary duty is sufficiently pleaded in the statement of claim and the particulars supplied, and it cannot be said to be plain and obvious that that claim must fail at trial.

3 Accordingly, the appeal is allowed, the order of Cumming J. is set aside and the motions made by the respondents are dismissed with costs. The appellant is entitled to her costs of the appeal payable forthwith fixed in the amount of $3500.00 and the costs of the motions before Cumming J. fixed in the amount of $3000.00 and payable forthwith.

McMURTRY C.J.O.

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