Court of Appeal for Ontario

Date: January 26, 2018 Docket: C63846

Judges: Simmons, Roberts and Nordheimer JJ.A.

Between

Robert Connor Plaintiff (Appellant)

and

Scotia Capital Inc. (aka Scotia McLeod) Defendant (Respondent)

Counsel

Amanda Chapman, for the appellant

David Di Paolo and Caitlin Sainsbury, for the respondent

Heard and released orally: January 17, 2018

On appeal from: The Order of Justice Mary E. Vallee of the Superior Court of Justice, dated May 8, 2017.

Reasons for Decision

[1] The appellant's employment with the respondent was terminated on October 19, 2012. In December 2012, the appellant entered into a settlement agreement with the respondent and also signed a release. In October 2014, the appellant commenced an action against the respondent for wrongful dismissal, defamation and conversion of his book of business.

[2] The respondent brought a motion under rule 21.01(3)(d) to stay or dismiss the appellant's action based on the settlement agreement and release. The motion judge determined that the respondent did not breach a duty of good faith to the appellant, did not make fraudulent misrepresentations to him and that the settlement agreement entered into by the parties was neither unconscionable nor unenforceable.

[3] On a motion under rule 21.01(3)(d) to dismiss a case as frivolous or vexatious or an abuse of process, a court must be satisfied that, on the face of the action and in all the circumstances, it is plain and obvious that the action cannot succeed.

[4] Rather than articulating or applying this test, the motion judge proceeded as if she was hearing a summary judgment motion and made findings of fact based on the evidence presented. However, unlike a summary judgment motion, on a rule 21.01(3)(d) motion, it cannot be presumed that all relevant evidence has been presented.

[5] Given the dispute over the validity of the release, this was not an appropriate case to be determined on a rule 21.01(3)(d) motion. As was the case in Maguna v. Ontario (Attorney General), 2008 ONCA 799, the motion judge arrived at her decision by, in effect, trying the case or at least dealing with the motion as if it were a motion for summary judgment. As stated in Maguna, this was not appropriate.

[6] The appeal is therefore allowed and the order below set aside. The respondent shall have 30 days to deliver a statement of defence. Costs of the appeal are to the appellant on a partial indemnity scale fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.

"Janet Simmons J.A."

"Lois Roberts J.A."

"I.V.B. Nordheimer J.A."