CITATION: Covelli v. Sears Canada Inc., 2011 ONSC 6984
DIVISIONAL COURT FILE NO.: 426/11
DATE: 20111123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
FRANK COVELLI
Plaintiff
(Responding Party)
– and –
SEARS CANADA INC.
Defendant
(Moving Party)
Jeff C. Hopkins and Philip R. White, for the Plaintiff (Responding Party)
Robert C. Taylor, for the Moving Party
HEARD at Toronto: November 23, 2011
dambrot j. (ORALLY)
[1] The defendant in this wrongful dismissal claim seeks leave to appeal from the decision of Hainey J. dismissing an appeal from a decision of Master Sproat. The Master dismissed the defendant’s motion to strike out allegations in the defendant’s Statement of Claim that the defendant had a practice or policy of terminating employees for just cause in circumstances where they knew that no cause existed in order to avoid providing notice or pay in lieu thereof. These allegations are made in support of a claim for moral and punitive damages.
[2] The defendant says that leave should be granted because there are conflicting lines of cases on this issue and because there is good reason to doubt the correctness of the decision of Hainey J. with respect to it.
[3] It is true that there is a line of cases that supports the position of the defendant, albeit a short one. It consists of a 1986 decision of Master Peppiatt in Curry v. Advocate General Insurance Co. of Canada (1986), Carswell Ont. 617 and a 2009 decision of Pearce J. that followed Curry in Howells v. Manufacturers Life Insurance Co., [2005] O.J. No. 4816. But that line of cases has been overtaken by the obiter on this issue in the decision of the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 at para. 120 and subsequent decisions of the Ontario Court of Appeal and of the Divisional Court as well as other courts that have explicitly or implicitly followed Pilot.
[4] With respect to the decision in Howell, I note that although it is subsequent to Pilot, it makes no mention of it or any of the cases that follow it, and so must be considered to be an outlier. In those circumstances, there remains no conflicting cases that can be considered to be good law, and the correctness of the decision of Hainey J. cannot be doubted. It is true, as counsel for the defendant noted, that the interesting questions raised by Master Peppiatt in support of the opposite position in Curry have never been answered. I concede that answers to those questions might be instructive, but no court is obliged to answer these questions, and the failure of Master Sproat and Hainey J. to do so is of no moment in view of binding authority.
[5] I see no basis to grant leave on this issue.
[6] The remaining issues raised by the defendant are all related and secondary to the first one. Since I am refusing leave on it, it is not desirable that I grant leave on any of the others.
[7] Notwithstanding the very able submissions of Mr. Taylor, the motion is dismissed.
[8] Costs to the plaintiff fixed at $8,000.00 all inclusive, payable forthwith.
DAMBROT J.
Date of Reasons for Judgment: November 23, 2011
Date of Release: December 7, 2011
CITATION: Covelli v. Sears Canada Inc., 2011 ONSC 6984
DIVISIONAL COURT FILE NO.: 426/11
DATE: 20111123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT J.
BETWEEN:
FRANK COVELLI
Plaintiff
(Responding Party)
– and –
SEARS CANADA INC.
Defendant
(Moving Party)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: November 23, 2011
Date of Release: December 7, 2011