COURT FILE NO.: 60/08

DATE: 20080220

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

STEPHEN WELWOOD

Plaintiff

• and -

ECCLESIASTICAL INSURANCE OFFICE PLC.

Defendant

Ian W. K. Furlong, for the Plaintiff

Rishi Bandhu, for the Defendant

HEARD at Toronto: February 20, 2008

CUMMING J.: (Orally)

1The plaintiff moves for leave to appeal the Order of Conway J., dated December 5, 2007 striking the plaintiff’s claim with leave to amend, inter alia, for failing to provide material facts and particulars in respect of bald allegations, pursuant to Rules 21.01(1)(b), 25.06(1), (8) and 25.11.

2The plaintiff’s Statement of Claim seeks damages for wrongful dismissal as a four month employee in the amount of $250,000 for breach of the employment contract and $1,000,000 in damages for mental distress.

3Counsel for the plaintiff conceded before the motion judge (based upon Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at paragraphs 73 to 76) that claims for mental distress in respect of an action for wrongful dismissal must be founded upon an independent actionable wrong, otherwise the claim for mental distress goes simply to the issue of extending the reasonable notice period.

4The Statement of Claim does not found the claim for mental distress, aggravated and exemplary damages upon any alleged independent actionable wrong. Material facts are not provided related to extending the notice period.

5It is not argued that there are conflicting decisions in Ontario on the matter involved in respect of claims for damages for wrongful dismissal. The cases submitted by counsel for the plaintiff which allow aggravated and punitive damages do not deal with a situation of wrongful dismissal in respect of an employment contract.

6In my view, the correctness of the decision of the motion judge is not open to serious debate. There is no good reason to doubt the correctness of the order of the motion judge based upon the decision in Wallace. This decision is consistent with the earlier decision in Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085 at pages 1105 and 1106.

7Nor does the proposed appeal involve matters of such importance that, in my opinion, leave to appeal should be granted.

8The motion judge in exercising her discretion has allowed the plaintiff to file an amended claim.

9The motion judge has also spelled out for the plaintiff what must be done by way of filing an amended claim that meets the requirements of the rules and the governing case law if the claim is to be pursued.

10For the reasons given, the motion for leave is dismissed.

COSTS

11The successful defendant should be awarded costs on this motion. The defendant has provided a Bill of Costs which is quite modest in the total amount, inclusive of GST and disbursements of $6,081.19. The defendant submits that this is an exceptional case which calls for costs on a substantial indemnity basis. I am not prepared to award costs on a substantial indemnity basis. In my view, costs should be awarded on the normative basis of partial indemnity unless there are very exceptional circumstances. Accordingly, I award costs to the defendant in the amount of $4,000 for fees, $200 for GST and disbursements of $167.59, for the total award of $4,367.59. These costs are payable forthwith.

12The plaintiff has made a further submission that costs awarded be delayed until completion of the trial. This submission is made on the basis that the plaintiff is unemployed and that this latitude should be given consistent with the principle of access to justice. I am not prepared to depart from the normative approach or rule that costs be payable forthwith.

13My reasons are, in part, that in my view, the plaintiff came perilously close to having a motion that was devoid of any merit and frivolous such that costs might arguably have been awarded on a substantial indemnity basis. I have not done that. The defendant is entitled to its costs and in my view, these costs are properly payable on the normative basis of being payable forthwith.

CUMMING J.

Date of Reasons for Judgment: February 20, 2008

Date of Release: February 26, 2008

COURT FILE NO.: 60/08

DATE: 20080220

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT