COURT FILE NO.: 530/09

DATE: 20091110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

TAMARA COMISH

Plaintiff

(Defendant by Counterclaim

Respondent on Appeal)

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SEARS CANADA INC.

Defendant

(Plaintiff by Counterclaim

Appellant)

Andrew J. MacDonald, for the Plaintiff

Robert C. Taylor, for the Defendant

HEARD at Toronto: November 10, 2009

dambrot J.: (Orally)

1Sears brings this motion for leave to appeal to the Divisional Court from a judgment of Aston J. dismissing an appeal from the decision of Master Sproat.

2The plaintiff was employed by Sears from October 1, 2007 to September 18, 2008, at which time her employment was terminated. She brought a claim for breach of contract and wrongful dismissal. Sears alleges that following the termination of the plaintiff’s employment, she defamed Sears to one of Sears’ suppliers. As a result, Sears brought a counterclaim for defamation.

3The plaintiff brought a motion to strike the counterclaim as disclosing no cause of action on the basis of Rule 21.01, because neither the exact words of defamation nor the names of the persons to whom the words were spoken were pleaded. Sears says that the employee of the supplier who heard the words has been unwilling to provide particulars of the words spoken, but that it has provided to the plaintiff full particulars of what it is aware of concerning the defamation.

4Sears served a summons to examine the plaintiff as a witness on the motion to strike the counterclaim in order to obtain evidence from her of the words spoken. The plaintiff moved to strike the summons before Master Sproat. Master Sproat struck the summons. She held that on a motion under Rule 21.01(1)(b), no evidence is admissible. She noted that the defendant made reference to Rule 25.11 in her notice of motion but that the exclusive basis for relief in that document is Rule 21.01(1)(b).

5An appeal from the decision of the Master was heard by Aston J. He dismissed the appeal on the basis that the Master was correct. In particular, he stated:

The Master did not exclude relevant evidence. Rather, she disallowed an examination that would be of no use on Rule 21.01(1)(b) motion.

6On this motion for leave to appeal, Sears argues that the motion is broader than a Rule 21.01(1)(b) motion, but in any event says that there is some authority for the admission of affidavit evidence on a motion to strike pleadings. In addition Sears says that the Master should have let the examination proceed and left the decision about the admissibility of evidence to the judge hearing the motion to strike. He argues that the decision is inconsistent with the so-called Propco line of cases.

7With respect to the first argument, I note that in its notice of motion the plaintiff asks for an order striking the pleadings solely on the basis of Rule 21.01(b). As a result, the propriety of the summons falls to be determined solely in reference to that rule. In support of this position I rely on Prete v. Ontario (1993), 86 C.C.C. (3d) 442 (Ont. C.A.) at para. 21.

8With respect to the second argument, the sole authority relied on by Sears in support of the admissibility of evidence on a Rule 21.01(1)(b) motion is Magnotta Winery Ltd. v. Ziraldo, [1995] O.J. No. 2619. In that case, Lane J. apparently permitted the plaintiff on a motion to strike the pleadings in a defamation action to place an affidavit before the Court for the sole purpose of showing that it had pleaded all of the particulars available to it with the exercise of due diligence, and that it was not proceeding on a fishing expedition. Assuming that Lane J. was correct in permitting the filing of an affidavit of this exceptional nature on a motion to strike pleadings, an issue I need not consider, his decision provides no authority for issuing a summons to the plaintiff and seeking to discover her about the alleged defamation on a motion to strike pleadings. The affidavit admitted by Lane J. did not in any sense supplement the pleadings. The intention of Sears in issuing the summons is to do exactly that – fill a lacuna in its claim.

9There is a long line of authority that prohibits the sort of evidence that Sears wants to have admitted here. In Prete for example, the Court of Appeal confirmed that no evidence is admissible on a Rule 21.01(1)(b) motion, having regard to the clear language in Rule 21.01(2)(b). I note that Rule 21.01(2)(a) provides for exceptions to the inadmissibility of evidence on a motion under Rule 21.01(1)(a), but the Rule 21.01(2)(b) allows for no such exceptions. The Rule couldn’t be plainer.

10With respect to the third argument, as the author of the decision in 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., [1997] O.J. No. 4722, I am the last person to want to see the line of judgments that have adopted my decision be undermined. But I do not think that the decision of Master Sproat is remotely inconsistent with Propco.

11In Propco, I stated at paragraph 18:

It is apparent to me at least that the Rule [Rule 25.11] does not contemplate that a Master should review in advance affidavits filed on a motion which would be argued later before an undetermined Master or Judge and make evidentiary rulings on admissibility or relevance. Our system ordinarily reserves that function to the judicial officer hearing the merits of the matter. I view that as desirable, for two reasons. First, such rulings are better left to the person charged with acquiring a full understanding of the matter who is then best positioned to balance the competing arguments and rule wisely. Second, encouraging interlocutory rulings and appeals on admissibility can only serve to fragment proceedings and encourage delay, as evidenced by this case, without appreciably assisting the ultimate decider of the matter in his or her task.

12The issue here is entirely different. The matter does not involve a Master looking through an affidavit that will be before a motions judge and deciding in advance to strike those parts of it that he or she thinks are irrelevant or otherwise violate the rules of evidence. Rather, this matter involves the question of whether the defendant has the right to summons the plaintiff and subject her to an examination in advance of the motion at all in the face of a mandatory rule that precludes absolutely the admissibility of evidence on a Rule 21.01(1)(b) motion. The policy concerns that I raised in Propco are simply not engaged.

13In the result there is no reason to doubt the correctness of the decision of Aston J., nor are there decisions in conflict with his decision on matters involved in the proposed appeal.

14Despite the able argument of Mr. Taylor, leave to appeal the judgment of Aston J. is refused.

DAMBROT J.

Date of Reasons for Judgment: November 10, 2009

Date of Release: November 18, 2009

COURT FILE NO.: 530/09

DATE: 20091110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

TAMARA COMISH

Plaintiff

(Defendant by Counterclaim

Respondent on Appeal)

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