De Kever v. Nemato Corp., 2015 ONSC 6273

Analysis

The issue before the motion judge was a Rule 21 motion. The question was whether it is plain and obvious that the claim cannot succeed. See Hunt v. Carey Canada, 1990 90 (SCC), [1990] S.C.J. No. 93; R. v. Imperial Tobacco Canada Ltd. 2011 SCC 42, [2011] 3 S.C.R. 45.

2The motion judge correctly stated the test to establish common employment as set out in Downtown Eatery (1993) Ltd. v. Ontario, (2001) 2001 8538 (ON CA), 54 O.R. (3d) 161 C.A. The motion judge concluded that although the pleading was “bare-bones” it was sufficient to raise a claim of common employment as among the corporate defendants. Assuming that this allegation is made out, the motion judge also concluded, as did Gray J. in Abrahim et al. v. Sliwin, 2011 ONSC 1905 that it is an open question as to whether the common employment doctrine might apply to operators of the group of common employers. We agree that this is a developing area of the law. It is not plain and obvious that the claim will fail. In addition to Downtown Eatery, see Reeves v. Eddy et al., 2014 ONCA 91.

[3]

Sufficiency of Pleading

The next question is whether the claim is pleaded with sufficient particularity. The motion judge found at para. 14:

It should be recalled that the rules of pleading require the pleading of material facts and not the evidence to prove the material facts, and in Ms. de Kever’s Statement of Claim there is more than a bald allegation of common employment. It may be bare-boned but she pleads material facts and a narrative that shows an interconnection and a commonality of operations and commercial purposes upon which evidence from the discovery process may substantiate a common employment plea. It is certainly not plain and obvious that her claim is doomed to failure.

[4]

Disposition and Costs

We agree with those findings. Therefore, the appeal is dismissed with costs fixed at $5,000 inclusive payable by the appellant to the respondent within 30 days. These costs are in addition to the costs ordered by the motion judge which we will not disturb.

___________________________ D. L. CORBETT J.