COURT FILE NO.: 410/09

DATE: 20091109

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

PETER WEITZMAN

Plaintiff

• and -

SAP CANADA INC.

Defendant

Raj Anand, for the Plaintiff

Jeffrey Goodman and Adam S. Goodman, for the Defendant

HEARD at Toronto: November 9, 2009

dambrot J.: (Orally)

1The plaintiff is a former employee of the defendant SAP. His employment commenced in 2004 and was terminated in 2008. After his employment was terminated he commenced an action against SAP for wrongful dismissal, misrepresentation and breach of contract. SAP brought a motion for summary judgment to dismiss the plaintiff’s claims for misrepresentation and breach of contract based on an argument that both of these claims were barred by the Limitations Act, 2002. Perkins J. granted partial summary judgment. In paragraph one of his order he dismissed the plaintiff’s claim for misrepresentation. In paragraph two of his order he refused to dismiss the claim for breach of contract.

2The defendant brings this motion for leave to appeal paragraph two of the order of Perkins J. The plaintiff is proceeding with an appeal to the Court of Appeal as of right from paragraph one of the order.

3For the defendant to succeed on this motion, I must be satisfied that there is good reason to doubt the correctness of the decision in issue and that the proposed appeal involves matters of such importance that leave should be granted.

4In respect of the claim for breach of contract, there is no dispute that according to the employment agreement entered into by the parties, the plaintiff’s on-target income (“OTI”) was to be $500,000.00. A few months after the plaintiff commenced work, he was told that his OTI was to be $350,000.00. The plaintiff protested but continued working for the defendants. On the summary judgment motion the defendant argued that any damage arising from a breach of contract by the defendant occurred on November 7, 2005 when the defendant notified the plaintiff that it would not honour the $500,000.00 OTI, and that the claim was discovered on that date. The plaintiff argued that there was a continuing dispute about compensation after that date that was never resolved until his employment was terminated in 2008 and that, as a result, the claim was not discovered until the date of termination.

5After engaging in a detailed review of the evidence before him, Perkins J. concluded that if the plaintiff’s evidence was believed, a trial judge could conclude that the defendant left open the prospect that it was still bound by the compensation package it had offered the plaintiff when he joined the defendant and, as a result the plaintiff had raised a triable issue.

6I assume for the sake of this judgment that there is good reason to doubt the correctness of the decision in issue although, I hasten to add, I have reached no such conclusion. Nonetheless I am of the view that the judgment of Perkins J. was an entirely fact based judgment and that the defendant falls far short of satisfying me that the proposed appeal involves matters of importance.

7The plaintiff described the defendant’s argument before me as an effort to transform the factual assessment made by Perkins J. into the adoption of various inventive legal theories that are nowhere found in the motion judge’s endorsement in order to justify leave. I agree. There is nothing of any precedential value in the judgment and no reason to grant leave.

8In particular, the defendant argued that by implication the judgment created a new exception to the running of limitation periods for breach of contract in circumstances where, after a breach, a defendant continues to negotiate with the plaintiff and leaves open the prospect of resolving their dispute. The fact is, however, that Perkins J. articulated no such exception, and the basis for his decision is not premised on the existence of negotiations following a breach.

9Right or wrong, Perkins J. concluded that, on the evidence before him, there was a live issue about whether or not the plaintiff had knowledge of facts amounting to a breach of his contract. Indeed he concluded that there was evidence that could lead a trial judge to conclude that the defendant left open the prospect that it was still bound by the $500,000.00 figure in the contract to the point of termination.

10This determination is not of precedential value and provides no basis for the granting of leave.

11The defendant also argued that because the appellant has appealed the granting of summary judgment on the misrepresentation claim to the Court of Appeal as of right, leave should “inevitably” be granted on a related issue arising in the same proceeding requiring leave to appeal to the Divisional Court so that the issues might be decided together.

12I see nothing in any of the cases brought to my attention in support of this argument suggesting that I am entitled to ignore the prerequisites to the granting of leave in Rule 62.02(4) of the Rules of Civil Procedure. It is true that in Lax v. Lax, the Court of Appeal heard a second issue requiring leave to appeal to the Divisional Court together with a primary issue that was before the Court as of right on the basis that once the first issue was before the Court leave would inevitably have been granted on the second. In my view, however, that decision turns on its facts and does not purport to be a general direction about leave to appeal to the Divisional Court. I see nothing in that decision that would permit me to avoid or modify the test for leave to appeal in the Rules.

13Accordingly, this motion for leave to appeal is dismissed.

DAMBROT J.

Date of Reasons for Judgment: November 9, 2009

Date of Release: November 18, 2009

COURT FILE NO.: 410/09

DATE: 20091109

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT