Court of Appeal for Ontario

Date: 2017-12-19 Docket: C63756

Judges: Hourigan and Brown JJ.A. and Himel J. (ad hoc)

Between

Dan Bailey Plaintiff (Appellant)

and

Milo-Food & Agricultural Infrastructure & Services Inc. o/a Milo-Fais, and Geetu Pathak Defendants (Respondents)

Counsel

For the Appellant: Rodney Godard and Ioana Vacaru

For the Respondents: Anita Lanary and Eric Florjancic

Heard and Released Orally: December 15, 2017

On Appeal From: The order of Justice Kirk W. Munroe of the Superior Court of Justice, dated April 10, 2017.

Reasons for Decision

[1] The appellant sued his former employer, the respondent, Milo-Food & Agricultural Infrastructure & Services Inc. ("Milo-FAIS") and its President and CEO, the respondent, Geetu Pathak ("Ms. Pathak") for wrongful dismissal, severance pay pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41, the emotional upset and mental distress, and breach of the Ontario Human Rights Code, RSO 1990, c. H.19 and the Occupational Health and Safety Act, RSO 1990, c. O.1. The respondents moved to strike the statement of claim pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the ground that it disclosed no reasonable cause of action and was statute barred.

[2] The motion judge granted the respondents' motion to strike in respect of the appellant's severance pay and wrongful dismissal claims. He dismissed the respondents' motion to strike in respect of the appellant's other claims.

[3] On appeal, the appellant seeks a declaration that his claims for severance pay and for damages for wrongful dismissal were issued within the limitation period. The respondents bring a cross-appeal seeking an order to strike the balance of the appellant's claims for failure to disclose a reasonable cause of action and a declaration that they are statute barred.

Facts

[4] The following brief summary of facts will put the issues in the appeal and cross-appeal in context. The appellant was a long term employee of Milo-FAIS and its predecessor company. By letter dated March 7, 2013, Ms. Pathak advised the appellant that Milo-FAIS could "no longer sustain the costs of his position" and proposed two options for his exit from employment. He rejected that offer. By letter dated March 18, 2013, the appellant was advised that his service prior to Milo-FAIS was not recognized and that his employment would end two years hence, on March 22, 2015. The appellant worked for Milo-FAIS until March 22, 2015. He commenced his action on December 21, 2015.

Analysis

Wrongful Dismissal Claim

[5] The appellant submits that the motion judge erred in concluding that his cause of action for wrongful dismissal arose on the date he was provided notice and not on the last day he worked for Milo-FAIS. He argues that the motion judge's reliance on Jones v. Friedman, in this regard was misplaced. His submission is that the motion judge erred by conflating actual dismissal with notice of future dismissal, since in Jones the date of dismissal, as pleaded, coincided with the date of notice. According to the appellant, subsequent trial decisions relying on Jones have continued to conflate these dates.

[6] We do not give effect to this submission and decline to adopt the restrictive interpretation of Jones urged upon us by the appellant. In Jones the notice of termination was given on December 12, 1994 and the employment ended on January 31, 1995. The breach the appellant relied on occurred on December 12, 1994 when his employment was terminated without reasonable notice. This court fully appreciated the context, and decided the date of notice of termination was when the limitation period began. Jones stands for the principle that a cause of action for wrongful dismissal arises on the date of notice of termination. The motion judge made no error in his reliance on that case or in striking the wrongful dismissal claim.

Severance Pay Claim

[7] With respect to the claim for severance pay, the motion judge determined that on the issue of the limitation period, the same principles apply as to the claim for wrongful dismissal. He rejected the appellant's argument that s. 65(1) of the Employment Standards Act indicates that severance claims arise at the end of employment on the basis that the section is the "calculation section, not the entitlement section". On appeal the appellant makes a novel and credible argument based on ss. 11(5), 63(1)(a), 64(1) and 65(1) of the Employment Standards Act that until employment is completed the claim for severance pay does not crystallize. There was no authority submitted by the parties that is contrary to this argument. In the circumstances, it is not plain and obvious that the limitation period for severance claim should not run from the date of completion of employment. We also do not accept the respondent's submission that is plain and obvious that s. 63(1)(e) of the Employment Standards Act applies as opposed to s. 63(1)(a) as submitted by the appellant.

Remaining Claims

[8] Finally, with regard to the cross-appeal, we see no error in the motion judge's conclusion that it was inappropriate to dismiss the other claims made by the appellant on a rule 21 motion. In the statement of claim it is alleged that the appellant was subjected to conduct which caused him emotional upset, mental suffering, and which breached his rights under the Human Rights Code and the Occupational Health and Safety Act throughout and until the end of the notice period. For the purpose of a r. 21.01(2)(b) motion, these facts must be presumed to be true. The claims arguably arise from a continuing cause of action that predates the notice of termination, rather than a series of independent torts. We are of the view that the motion judge was correct to dismiss the motion to strike these claims, since they were "entangled with factual issues."

Decision

[9] In the result, the appeal is allowed in part. The motion judge's order striking the claim for severance pay is set aside. The balance of the appeal and the cross-appeal are dismissed. Given the divided success, there is no order as to costs.

"C.W. Hourigan J.A."

"David Brown J.A."

"Himel J."