CITATION: Angelic Allen v. Vali Orchard Pharmacy Inc. et al. 2013 ONSC 7499
COURT FILE NO.: DC-13-007
DATE: 2013-Dec-05
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
Taliano, Whalen, Sproat, JJ.
B E T W E E N:
ANGELIC ALLEN
K.H. Knutsen, E.S. Knutsen, D.F. Macgillivray, Counsel for the Plaintiff/Respondent
Plaintiff/Respondent
- and -
VALI ORCHARD PHARMACY INC. and SHOPPERS DRUG MART INC.
C.R. Colraine, Counsel for the Defendants/Appellants
Defendants/Appellants
HEARD: December 03, 2013
Taliano, Whalen, Sproat, JJ.
ENDORSEMENT
[1] We conclude that this case is inappropriate for disposition by summary judgment motion and we are satisfied that Pierce, RSJ was correct in dismissing the motion.
[2] We do not disagree with the Appellant’s position that s. 97(2) of the Employment Standards Act, S.O. 2000, c. 41 [ESA] bars the commencement of a civil action for recovery of damages for termination and severance pay for wrongful dismissal after an ESA complaint has been commenced for the same relief. Given that the ESA complaint was not withdrawn before it was disposed of under that Act, it may well be that time cannot now be extended for withdrawal. Similarly, time has long passed for an appeal of the ESA decision. We are not called upon to resolve those questions because they were not before us.
[3] We agree with the motions court judge that this case is not “as simple as the defendants suggest.” While the Respondent has pleaded wrongful dismissal, the bulk of her claims lie in tort. The Respondent has alleged free-standing torts including negligent or intentional misrepresentation, conspiracy and interference with economic relations, for which she seeks punitive, exemplary and aggravated damages. In particular, she has alleged that the Appellants:
(a) conducted an unfair and oppressive investigation of the respondent’s conduct by misrepresenting the evidence against her and, following her complaint under the ESA,
(b) frustrated the proper operation of the ESA regime, by deliberately or negligently providing misleading or false information to Ministry officials and,
(c) tainted the ESA process by withholding relevant information.
[4] There are serious allegations of malfeasance, malicious misrepresentation and even fraud, committed by the Appellants upon the ESA process and affecting its outcome. To make matters worse, it appears that the Respondent was never made aware or given the opportunity to respond. Unfortunately, the Applicant was incapacitated by a serious brain injury several months before the ESA decision was released, and she remained incapacitated in hospital for several months afterwards. She alleges that by their malice and misrepresentation the Appellants abused the ESA process, thereby denying her justice and causing her further serious damage.
[5] The Respondent’s factual allegations are serious and extreme. They are unique and distinguish the case from cases cited to us by the Appellants.
[6] We agree with the motions court judge’s conclusion that the evidence required to prove these allegations is the same as would be required to prove the wrongful dismissal claim, so there will be no economy in dealing with them in the context of a summary judgment motion. It may be that if the allegations are substantially proven, equity may afford the respondent a remedy that might not be available if the wrongful dismissal claim is dismissed at this point. The motions court judge was also obviously concerned, and justifiably so, about the integrity of the E.S.A. process.
[7] The motions court judge did not decide against the Appellants, nor did she decide for them. Instead, she exercised her third option, which was to decline to rule at the time or in the context of a summary judgment motion. She felt more comfortable leaving it to a trial judge, especially because it likely made no difference to the evidence that would be led to prove the intentional torts and would save little or no time. She believed that justice would be served by dealing with the question of the wrongful dismissal claim in the broader context of the tort allegations. We agree. Justice will not be offended or served by rushing the decision at this point. If the Respondent is successful at trial, the court should have the broadest array of remedies available to it. We do not speculate at this point what those remedies might be, except that they should not possibly be affected by an early dismissal of the wrongful dismissal claim.
[8] Although the Appellants raised a limitations defence before us, that issue was not raised before the motions court judge. Therefore, if such an issue exists, it is not properly before this court. Furthermore, the limitations defence has never been pleaded.
[9] The determination of the tort allegations will require a careful consideration of the Respondent’s allegations of a faulty investigation on the part of the Appellants and the Appellants’ subsequent dealings with the ESA process. The same facts and circumstances that were part of the ESA claim will necessarily be part of the resolution of the tort claims. The interests of justice require that the respondent’s claims be heard together for efficiency and consistency.
[10] We are satisfied that Pierce, R.S.J. understood the law in respect of Rule 20 and that she applied it correctly, including the “full appreciation” test. The unusual and extreme facts of the case, and the resulting serious allegations were important distinguishing features that caused her to conclude that nothing would be lost or gained by postponing the decision of the effect of s. 97(2) of the ESA and that justice would be served best by leaving it to the trial judge.
[11] Accordingly, we agree with the disposition of this motion and dismiss this appeal.
[12] The court received submissions on costs. However, the Appellants asked for time to conduct research on a question posed by the court. The court agreed that the request was reasonable and directed the Appellants to file their further written submissions on costs within 10 days of the hearing. The Respondent is directed to file any reply within 7 days of service of the Appellants’ submissions.
Justice Taliano
Justice Whalen
Justice Sproat
Released: 05 December 2013
/ket
CITATION: Angelic Allen v. Vali Orchard Pharmacy Inc. et al. 2013 ONSC 7499
COURT FILE NO.: DC-13-0007-00
DATE: 2013-Dec-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANGELIC ALLEN
Plaintiff/Respondent
- and –
VALI ORCHARD PHARMACY INC. and SHOPPERS DRUG MART INC.
Defendants/Appellants
ENDORSEMENT
Taliano, Whalen, Sproat, JJ.