COURT FILE NO.: 006/08

07-CV-332428 PD3

DATE: 20080214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

pitt, J.

B E T W E E N:

ROCCHETTA MARIE CIRONE

Plaintiff

• and -

PARK LAWN COMPANY LIMITED

Defendant

Bradley Phillips, for the Plaintiff

Frederick W. Chenoweth, for the Defendant,

HEARD: February 8, 2008

Pitt, J.

1This is a motion brought by the plaintiff, the losing party (respondent) on a motion in which Hoilett, J. on November 30, 2007 ordered a stay of proceedings in a wrongful dismissal action pending resolution of a Human Rights complaint. The plaintiff seeks leave to appeal the order of Hoilett, J.

2The motion Judge’s endorsement is relatively short and for simplicity and expedition I set it out below.

“This is a motion brought by the defendant for a stay of this proceeding pending the final disposition of Complaint #DOBR-6HDP6N, presently before the Ontario Human Rights Commission. A capsule summary of the relevant facts sufficiently sets the stage.

The precipitating event occurred on or about May 12, 2005 and the responding party’s complaint to the O.H.R.C., Ex B of this record, was filed October 21, 2005. The O.H.R.C. complaint and the present action share a common genesis, namely, the respondent’s employees. Although “sex” and “reprisal” are the nominate complaint before the O.H.R.C., it is common ground that the complaint before the two tribunals are substantially the same. That very fact no doubt explains the fact that the present action was not initiated until May 4, 2007, when the responding party issued a Notice of Action, followed by a Statement of Claim on June 4, 2007. Paragraph 5 of the responding party’s factum supports that conclusion, as does para 4, quoted following:

A. The within action was commenced on May 4, 2007. The action was commenced in light of the inordinate delay by the Commission in moving the Complaint forward, and with a view to preserving the plaintiff’s rights, ensuring access to justice, and ensuring compliance with applicable limitation periods.

Consistent with the practices of the O.H.R.C., a mediation has been held in respect to the responding party’s complaint; albeit unsuccessfully. Significantly, however, as of November 19, 2006, the responding party’s complaint was assigned to an investigator one Mr. Rajeev Burman. In other words, the responding party’s O.H.R.C. complaint is not on a “back burner”; an investigation is underway.

Sections 106 and 138 and Rule 21.01(3)(c) of the Rules of Civil Procedure are here engaged. Together they provide the jurisdiction for the relief sought; as well as distill the guiding principals on a motion such as this. Primarily, multiplicity of proceedings ought to be avoided in order to avoid burdening a defendant with the cost – in a broad sense – of being engaged in two are more for a sic] which the parties and the issues are common; secondly the risk of conflicting decisions in which the same [sic] is involved are to be avoided. Accordingly, absent unwarranted prejudice to the party responding stays should be granted, for all the reasons contemplated by the legislation and by the Rules.

I am of the view, therefore, that, for all the foregoing reasons, the motion for a stay should be granted and it is so ordered, with costs to the moving party. If the parties are unable to agree on reasonable costs, I shall entertain brief written submissions within 21 days of the date of this endorsement.”

Preliminary Issue:

3This motion was not launched within the 7 days required by the Rules, and in fact no indication of an intention to seek leave to appeal was given to the defendant until January 3, 2008.

4I reject the plaintiff’s attempt to extend the limitation period by calculating the time from the date of the cost endorsement of Hoilett, J. on the ground that the learned motion Judge in the cost endorsement said “Further to my Nov 30/07 endorsement which shall be incorporated by reference, the parties have made written submissions on the issue of costs”. With due respect, that position is not tenable and is not worthy of consideration.

5More importantly is an explanation based on the unfortunate illness of the solicitor who actually argued the motion on behalf of the plaintiff, but was described as a junior by the lawyer who presumably was responsible for the file. The affidavit of the senior solicitor providing that explanation is somewhat troubling in that while the deponent implies that he did not actually see Hoilett, J.’s endorsement until early January, in fact as acknowledged by counsel arguing the motion, the senior lawyer knew about the result of the motion not much later than December 3, 2007. The length of delay in launching this motion is similar to the delay in launching the original action, first by Notice of Action almost 24 months after the cause of action arose (and 19 months after the complaint was filed) and a month later by Statement of Claim.

6The grounds on which leave to appeal may be granted are set out in Rule 62.02(4) of the Rules of Civil Procedure as follows:

Grounds on Which Leave May Be Granted

(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.”

Analysis

7It is important to indicate that I am keenly aware of what might be described as a philosophical difference of opinion in at least 2 of the cases decided in the last 4 years or so.

8In McKelvey v. D’Ercole (2003), 32 C.C.E.L. (3d) 119 (Ont. S.C.J.), Echlin, J. in granting a stay said, among other things:

“19 A common practice has developed in employment law under which aggrieved parties have tried to place pressure on an employer by initiating multiple proceedings. This practice is clearly inappropriate and an abuse of process.

21 To “allow a plaintiff to attempt to ride two horses at the same time” is improper in view of potential of inconsistent findings of fact, the possibility of separate damage assessments, and a potential for double recovery.”

9In Farris v. Staubach Ontario Inc. (2004), 32 C.C.E.L. (3d) 265 (Ont. S.C.J.), Lederman, J. in refusing to grant a stay said:

“24 Insofar as the decision of Justice Echlin in McKelvey v. D’Ercole, supra stands for the proposition that an employee cannot simultaneously pursue a civil action for damages for wrongful dismissal and tortious conduct, and a Human Rights complaint, I respectfully disagree. The similarity of facts which underlie the civil claim and a Human Rights complaint is not a determining factor in the test to grant a stay.”

10I have, on at least one occasion, in adjudicating in motions court expressed the view that I preferred Lederman, J.’s opinion over that of Echlin, J. on the way in which Human Rights complaints and wrongful dismissal actions should interact.

11However, as pointed out by counsel for the defendant in this proceeding, if the cases are carefully analyzed, including Farris and McKelvey, it will be found that courts dealing with this issue are always sensitive to the fact that the issue at stake is a “stay” rather than a “dismissal” of an action and they tend to apply the tools that appellate courts have required them to apply: balancing of litigation rights, including careful analysis of the notion of prejudice, the differences in court procedures and practices as opposed to those in the Human Rights Commission, and such matters that come to mind whenever the issue involves judicial discretion. There has not emerged from the cases a single rule that fits all cases, as should not be expected where the exercise of judicial discretion is involved.

12In that regard it is useful to note the observation of Montgomery, J. in Comtrade Petroleum Inc. v. 490300 Ontario Ltd., [1992] O.J. 652 (Div.Crt.):

“7 In the same vein, we feel it is necessary to make some comment on the manner in which subrule (a) has been interpreted. An exercise of discretion which has led to a different result because of different circumstances does not meet the requirement for a “conflicting decision”. It is necessary to demonstrate a difference in the principles chosen as a guide to the exercise of such a discretion.”

13On what principle does the plaintiff rely in asserting that the motion Judge was either incorrect or that his decision conflicted with other decisions?

14The plaintiff makes the important point that when the motions Judge said in his endorsement that the complaint at the O.H.R.C. was not on a “back burner”, he used November 19, 2006 as the date on which the complaint was assigned to an investigator, when in fact the correct date was November 19, 2007.

15With due respect, if the plaintiff actually believed that the date was not a clerical error and its choice had an impact on the motion Judge’s decision, in my view, it was incumbent on the plaintiff, on notice to defence counsel, to bring the error to the attention of the motion Judge before the order was entered, or at least as soon as it was discovered.

16The plaintiff also argues that Hoilett, J. wrongly relied on rule 21.01(3)(c), thereby treating the complaint before the O.H.R.C. as a “proceeding”: what the motions Judge did say is that “Sections 106 and 138 and Rule 21.01(3)(c) of the rules of Civil Procedure are here engaged.”

17Further, the plaintiff observes that in discussing the similarity of the allegations in the complaint and the Statement of Claim the motion Judge failed to take into consideration that punitive damages and “damages for wrongful termination” which are outside the jurisdiction of the commission were claimed in the action, and not in the complaint, and that the parties to the complaint are not all the same as those parties named in the action. In argument nothing was said about the differences in the parties.

18One does not find in Hoilett, J.’s endorsement the emphasis on balancing of prejudice to the parties that is often seen in these cases, and one also finds some emphasis on the problems raised by “multiplicity of proceedings”, using that expression in the most general sense, admittedly recent case law does not give as much emphasis to that issue.

19The learned motion Judge did however indicate that “absent unwarranted prejudice to the party responding”, stays should be granted”.

20Taking all the circumstances into consideration, it seems to me that the motion Judge’s exercise of discretion was driven, to a large extent, by the plaintiff’s tardiness in issuing the Statement of Claim, some 19 months after the complaint was filed, and the apparently satisfactory progress made at the commission in advancing the complaint within the O.H.R.C. bureaucracy. An inference can also be fairly drawn that there was nothing about the conduct of the proceedings since the issue of the Statement of Claim that lead the motions Judge to believe that the claim was being vigorously prosecuted.

Disposition

21The plaintiff (moving party) has not met its burden, and the motion is dismissed.

22It is not necessary to deal with the motion for extension of time, which always proves difficult when there is illness in the mix.

Postscript

23I feel obliged to remind the parties that courts can and do, in proper cases; lift a stay if the justice of the case requires it.

24A significant error in recording the time of events, and a lack of information on the import of recent significant changes in regulations, and in the administration of a statute like the O.H.R.C. at the time a stay was granted, may provide in the future, a proper basis for an application to lift the stay if the plaintiff deems it fit and necessary to pursue such a remedy.

Costs

25Subject to any agreement between the parties, brief written submissions on costs are to be made within 30 days of the release of these reasons.

Pitt, J.

Released: February 14, 2008

COURT FILE NO.: 006/08

07-CV-332428PD3