Court File and Parties

BARRIE COURT FILE NO.: 14-0282 DATE: 20170217 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID W. ERNEWEIN Plaintiff – and – HONDA OF CANADA MFG., A DIVISION OF HONDA CANADA INC., PAUL CURRIE, LORI VAN VALKENBURG, JOHN DOE(S) Defendants

COUNSEL: M. Lemieux, for the Plaintiff G. McGinnis, for the Defendants

HEARD: January 5, 2017

REASONS FOR DECISION

Di TOMASO J.

INTRODUCTION

[1] The plaintiff, David W. Ernewein (“Mr. Ernewein”) was employed by the defendant, Honda of Canada Mfg., a Division of Honda Canada Inc. (“Honda”), until his employment was terminated by Honda on August 8, 2013. As a result of the termination of his employment, Mr. Ernewein commenced this action by way of Statement of Claim issued on March 7, 2014. He claims damages for wrongful dismissal, other items, as well as a claim for overtime pay going back to May 5, 1997 when he was promoted to the position of Group Leader.

[2] Honda denies that Mr. Ernewein is entitled to advance a claim for retroactive overtime pay for period May 5, 1997 to March 7, 2012 (two years prior to the issuance of the Statement of Claim on March 7, 2014) on the grounds that such claim is statute-barred pursuant to the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. As for Mr. Ernewein’s claim for overtime pay from March 7, 2012 until the termination date of his employment, being August 8, 2013, Honda submits that while Mr. Ernewein is entitled to advance such a claim during this time, nevertheless, he is not entitled to overtime pay in any event.

[3] By way of long motion, this court heard three motions as follows:

(a) Honda’s motion for summary judgment; (b) Mr. Ernewein’s motion for productions; and, (c) Mr. Ernewein’s motion to amend the Statement of Claim.

[4] In turn, I will deal with each motion.

A. THE MOTION FOR SUMMARY JUDGMENT

OVERVIEW

[5] To a large extent, some of the facts are not in dispute. Those facts can be summarized as follows.

[6] Mr. Ernewein began working for Honda in 1987. He was promoted to the position of Group Leader/Technical Coordinator on May 5, 1997.

[7] Mr. Ernewein’s employment was terminated as a result of an allegation that he stole property from Honda, allegations which form part of this litigation.

[8] Prior to his promotion to Group Leader, Mr. Ernewein occupied the position of Team Leader, and in that role was paid overtime pay at the rate of time and one-half (1.5x) his regular hourly rate for all hours worked outside of “core” hours.

[9] After his promotion to Group Leader, Mr. Ernewein was paid at his higher regular hourly rate for all hours worked outside of “core” shift hours.

[10] When approached regarding his promotion to the position of Group Leader, Mr. Ernewein was informed that his promotion would result in he no longer being entitled to overtime pay because he would then hold a “junior management” position.

[11] In the ten years prior to being promoted, and sixteen years after being promoted, Mr. Ernewein was not aware of any Group Leader who was paid overtime pay in the same manner as Associates or Team Leaders. He understood that every Group Leader (GL) was paid overtime pay in a manner different than Associates or Team Leaders because of their position.

[12] Mr. Ernewein’s paystubs showed clearly the difference between the rates of pay received. The absence of any “overtime” multiplier on his hourly rate of pay for work outside the “core” shift hours was open and obvious.

[13] On being cross-examined on her affidavit, Lori Van Valkenburg of Honda confirmed that it was Honda’s policy not to pay Group Leaders overtime pay because of their title and without regard to their employment tasks.

[14] Honda has a written policy relating to overtime which has been in place since 2005. This policy spells out the rates at which Honda provides overtime pay. According to Honda, it treated Mr. Ernewein in a manner consistent with this policy.

[15] In his responding affidavit, Mr. Ernewein acknowledged that at the time that he took the position of Group Leader, he would not receive “overtime”, but rather straight time for all hours worked outside of “core” shift hours.

[16] Honda maintains that the material facts relating to Mr. Ernewein’s claim for overtime have been known or discoverable through the exercise of reasonable diligence by Mr. Ernewein, since 1997, and certainly many years before his claim was issued.

[17] Mr. Ernewein never raised any claim or complaint relating to alleged entitlement of overtime until after his employment was terminated.

[18] Mr. Ernewein acknowledges that he understood Honda’s policy with respect to overtime, and that he was paid in accordance with that policy since at least 1997.

[19] During his 26-year tenure at Honda, Mr. Ernewein was never given a reason to believe that the compensation paid to Group Leaders was anything but fair and reasonable. He was certainly not provided with any reason to believe that the failure to pay overtime pay was contrary to the law and had no reason to question the legality of this failure.

[20] Mr. Ernewein further asserts that he was led to believe and did believe that overtime compensation for a Group Leader was premised upon being a Group Leader and in no way premised upon the employment tasks that the Group Leader was required to undertake. He was never informed that a change in his employment tasks might result in a change in his entitlement to overtime pay.

[21] In cross-examination on her affidavit, Ms. Van Valkenburg confirmed that she was not aware of Honda drawing Mr. Ernewein’s attention to any of the issues in the relevant legislation with respect to his position as a Group Leader, or that he would have been provided with any documentation explaining the specific legislation or regulations in relation to his position.

[22] Mr. Ernewein states that was only after his employment was terminated on August 8, 2013, and after seeking recourse for his alleged wrongful dismissal, did he come to understand that overtime pay for an individual in a supervisory role was not contingent upon job title, but upon job function. A Statement of Claim was then issued on March 7, 2014, within two years when Mr. Ernewein alleges he first learned of his entitlement to overtime pay.

[23] In the Statement of Claim, Mr. Ernewein claims damages against Honda, representing the overtime premium (0.5x his regular hourly rate on top of the straight time actually paid) for all “overtime” hours worked back to May 5, 1997.

[24] In its Statement of Defence, Honda denies the claim and relies upon the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[25] In a separate motion, Mr. Ernewein also seeks an order for production of documents pertinent to his overtime claim going back to 1997. Honda has already produced relevant documents for the two years preceding the date of the issuance of this action.

ISSUE

[26] The issue to be determined is whether there is a genuine issue regarding a trial.

POSITIONS OF THE PARTIES

Position of the Moving Party Honda

[27] Honda submits that summary judgment is an appropriate procedure to address Honda’s motion for dismissal of part of the claim for damages relating to overtime allegedly arising more than two years from the date of the issuance of the Statement of Claim, namely, previous to March 7, 2012.

[28] Honda’s policy with respect to overtime payment for employees in Mr. Ernewein’s position was arguably open and obvious. Honda submits that Mr. Ernewein was aware of it. Mr. Ernewein was paid in accordance with this policy since 1997. He received weekly paystubs which set out exactly how he was paid.

[29] Further, Honda submits that Mr. Ernewein took no steps whatsoever to ascertain whether he had a claim for overtime pay under the Employment Standards Act, 2000, S.O. 2000, c. 41, prior to his employment being terminated.

[30] Honda submits that it did nothing to mislead Mr. Ernewein or discourage him from taking action. Accordingly, Honda submits that Mr. Ernewein has failed to meet the onus to establish why the two-year limitation period should not be applied to the time that the Statement of Claim was issued. Accordingly, Honda submits that Mr. Ernewein’s claim for damages relating to overtime prior to March 7, 2012 ought to be dismissed.

Position of the Plaintiff Ernewein

[31] It is the position of Mr. Ernewein that at all times he relied upon the representations made to him by Honda. He submits that Honda concealed facts in respect of his overtime pay. It was only after his employment was terminated on August 8, 2013, that he learned he had a claim for overtime pay. He submits that Honda represented to Mr. Ernewein that it was Honda’s policy not to pay Group Leaders overtime pay because of their title and without regard to their employment tasks. While Mr. Ernewein received paystubs, they would have said nothing about his entitlement to overtime pay at law or the statutory-regulatory requirements with respect to overtime pay. Mr. Ernewein submits that his overtime pay was not contingent upon job title but upon job function and as such, relevant material facts were misrepresented to him by Honda. Further, Mr. Ernewein would not have been alerted to any circumstances for which he should have pursued inquiry with reasonable diligence or suspected that legal action would have been an appropriate means to address the issue.

[32] He submits that upon coming to understand that he was not paid overtime correctly and within the bounds of the required legislation, he issued and served a Statement of Claim within two years of that time. As such, he submits that he is in compliance with the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. He had no reason to suspect he was being treated improperly or incorrectly since he was being treated exactly the same as other Group Leaders.

[33] Mr. Ernewein submits that there is a genuine issue requiring a trial, namely, whether he is entitled to retroactive overtime pay, and that such a claim is not statute-barred.

ANALYSIS

Legal Principles

[34] The parties agree that the principles set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, apply in this case. A court must first determine if there is a genuine issue requiring a trial based only on the evidence in the Motion Record without using the new fact-finding powers under Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [1]

[35] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of the motion. This will be the case when the process:

(a) allows the judge to make the necessary findings and facts; (b) allows the judge to apply the law to the facts; and (c) is proportionate, more expeditious and a less expensive means to achieve a just result.

Hryniak, paras. 4, 28, and 49. Trial is not the default procedure. Hryniak at para. 43.

[36] Honda submits that the application of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B renders the retroactive claim for overtime pay statute-barred and that such a finding can be made on this motion for summary judgment.

[37] Section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B establishes a two-year general limitation period: “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

[38] Under the transitional provisions of s. 24 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, any claims prior to 2004 would be subject to the previous six-year limitation period, which had expired by the time the claim had been issued.

[39] Section 5 defines rules relating to discoverability:

5. (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5(1).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[40] Limitation periods are not enacted to be ignored. A plaintiff is required to act with due diligence in determining if he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a). [2]

[41] At common law, ignorance of or mistake as to the extent of damages does not delay time under a limitation period. The exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. [3]

[42] When a defendant pleads a limitation period has expired, the onus is upon the plaintiff to prove that the cause of action arose within the statutory limitation period. There is an evidentiary burden on the plaintiff to prove that the material facts giving rise to the cause of action were not within his knowledge within two years from the date he issued the statement of claim through a lack of due diligence. [4]

[43] Where there has been a fraudulent concealment of the existence of a cause of action, the limitation period will not start to run until the plaintiff discovers the fraud, or until the time when with reasonable diligence, he ought to have discovered it. [5]

[44] The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B and its predecessor statute have been applied to overtime claims in other cases.

[45] Where a claim for unpaid overtime is based upon the overtime provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41, the courts generally consider the claim encompassed by the relevant provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

Findings

[46] It is Honda’s position that Mr. Ernewein was aware of Honda’s overtime payment to employees in his position. Mr. Ernewein was paid in accordance with Honda’s policy since 1997. The policy was open and obvious. Mr. Ernewein received weekly paystubs which set out exactly how he was paid. He took no steps whatsoever to ascertain whether he had a claim for overtime pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 prior to his employment being terminated. He did not exercise the due diligence with which he was required to act before March 7, 2012. Accordingly, it is submitted that his claim for overtime pay from May 5, 1997 to March 7, 2012 is statute-barred. For his part, Mr. Ernewein asserts that his retroactive overtime claim is not statute-barred. Honda never advised him that he was not being paid overtime correctly and in compliance with the provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41. Those provisions are set out in Mr. Ernewein’s Factum, summarized as follows:

Section 22(1) of the Employment Standards Act, 2000, requires an employer to pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week.

The Employment Standards Act, 2000, represents minimum standards in law that an employer must abide by, the employer may by its own policy put in place a higher standard than the Employment Standards Act, 2000 requires, in which case they will be bound to their self-imposed higher standard.

[47] However, s. 8 of the current version of Exemptions, Special Rules and Establishment of Minimum Wage, O. Reg. 285/01, states that this requirement does not apply to “a person whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.”

[48] Prior to the coming into force of the Employment Standards Act, 2000, S.O. 2000, c. 41, the governing legislation was the Employment Standards Act, R.S.O. 1990, c. E.14. [8] For all intents and purposes, this legislation included the same requirement to pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week.

[49] The wording of the managerial exception to this requirement, however, was vastly different than it is currently. Specifically, s. 6 of General, R.R.O. 1990, Reg. 325, merely stated that overtime pay need not be paid to individuals “whose only work is supervisory or managerial in character.” This is a much higher threshold.

[50] Mr. Ernewein submits that his claim for retroactive overtime is therefore governed by two statutes being in force and applicable at separate junctures of his claim. For the period of his promotion to Group Leader until September of 2001, it will be subject to Employment Standards Act, R.S.O. 1990, c. E.14 and from September 2001 to the date of termination it will be the Employment Standards Act, 2000, S.O. 2000, c. 41.

[51] I have considered the Affidavit of David Ernewein, sworn August 15, 2016 and, his subsequent cross-examination. In it, he sets out his firsthand knowledge in respect of his employment history with Honda. At all material times, he deposes that he was led to believe that his compensation package as a Group Leader was legally compliant and he had not reason to question the legality of the compensation he received (see Affidavit of David Ernewein, para. 10).

[52] He goes on to depose at para. 10 (j):

Only upon my termination in 2013 and seeking recourse for this wrongful termination did I come to learn that overtime to a supervisor is not contingent upon job title, but upon job function; my claim for compensation was issued by the Court on March 7, 2014, within the statutory limitation period for my claims for termination and overtime.

[53] Mr. Ernewein further deposes at para. 14 of his affidavit:

At all times in my tenure as a Group Leader at Honda my time spent on tasks that were non-managerial or non-supervisory was about 50% of my time on average. At no time was I informed by Honda in anyway (sic) or was I personally aware that my legal entitlement to overtime was dictated by the job tasks I was engaged in versus the job title I held. I was at all times lead to believe by Honda that my overtime entitlement was dictated by being a Group Leader and nothing else.

[54] I accept the evidence of Mr. Ernewein. It is uncontroverted evidence that he was performing non-supervisory and non-managerial tasks on a regular and unexceptional basis. I accept his submission that his work certainly could not be characterized as “only” supervisory or managerial from 1997 until 2001. During this period of time, the provisions of the Employment Standards Act, R.S.O. 1990, c. E.14 would apply.

[55] For the period of the claim governed by the Employment Standards Act, 2000, S.O. 2000, c. 41, the standard is “Work is supervisor or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.”

[56] Again, I accept Mr. Ernewein’s uncontroverted affidavit evidence that he spent approximately 50 percent of his time performing non-managerial or non-supervisory tasks over this period. This point was neither contested when Mr. Ernewein was cross-examined on his affidavit on September 30, 2016 nor is it challenged in Honda’s evidence.

[57] We are left with Honda contending that Mr. Ernewein has no claim for retroactive overtime pay. He knew and agreed with Honda’s policy and never complained. It is submitted that he did not exercise due diligence and accordingly, his claim is statute-barred by virtue of the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[58] Mr. Ernewein does not agree. He relied on what Honda told him about his overtime pay. He had no reason to believe that Honda was wrong and there was nothing that would cause him to exercise due diligence in respect of any entitlement for overtime pay pursuant to the provisions of the applicable employment standards legislation. I agree that he only became aware of his potential claim for retroactive overtime pay after his employment was terminated on August 8, 2013. He acted expeditiously thereafter. He issued his Statement of Claim on March 7, 2014, at which time he asserted his claim for overtime pay going back to May 5, 1997, the date of his promotion.

[59] I make no findings as to whether or not Mr. Ernewein is entitled to his overtime pay claim. That issue is not for me to decide. However, what is clear is that there is an issue of fact and credibility relating to the discoverability of Mr. Ernewein’s proposed claim. At the heart of this summary judgment motion is a factual dispute as to whether Mr. Ernewein, with reasonable due diligence, could have discovered his proposed claim against Honda, based on Honda’s policy, conduct, or documents received from Honda by Mr. Ernewein. I find that this is an issue that ought to be decided by the trial judge. Specifically, whether Mr. Ernewein’s claim for retroactive overtime is statute-barred is a genuine issue for trial. (See Skrobacky (Litigation Guardian of) v. Frymer, 2014 ONSC 4544, [2014] O.J. No. 3658 (Div.Ct.) at paras. 9, 23 and 36)

[60] I further find that this matter will proceed to trial in respect of other outstanding claims for damages advanced by Mr. Ernewein. In particular, a triable issue will be whether he is entitled to overtime pay from March 7, 2012 to the date of the termination of his employment on August 8, 2013. [10] In respect of that claim, the same issues as to fact, credibility and the applicability of employment standards legislation will be before the court. Therefore, the applicability of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B and whether Mr. Ernewein is entitled to any retroactive overtime pay are genuine issues best left for the trial judge.

DISPOSITION

[61] For these reasons, Honda’s motion for summary judgment is hereby dismissed.

B. THE PRODUCTIONS MOTION

OVERVIEW

[62] The parties made submissions in respect of items 2, 4 and 5 set out in Mr. Ernewein’s Notice of Motion. Item 2 relates to production of Honda’s “termination review document”. Item 4 relates to Honda’s production of all the material facts of all written statements obtained by Honda, including but not limited to, the statement obtained by Honda from Mr. Ernewein’s ex-wife. Item 5 related to the production from Honda of Mr. Ernewein’s payroll records from January 1, 1997 until March 13, 2011, inclusive.

Item 2

[63] By way of overview, Mr. Ernewein seeks production of a document (the “Termination Review Document”) prepared by Lori van Valkenburg for use in a meeting on August 8, 2013 at which Honda’s senior management discussed the outcome of its investigation into Mr. Ernewein’s alleged misconduct, in consultation with its in-house lawyer, Shawna Kadykalo.

[64] Honda objects to production of this document on the basis of lawyer-client privilege.

[65] Honda submits that the specific purpose for preparing this document was to enable Ms. Kadykalo to assess the situation and advise Honda’s senior management on the potential legal implications and risks of either dismissing Mr. Ernewein or pursuing other disciplinary options. (see Affidavit of Lori van Valkenburg para. 4 and 5).

[66] Ms. Kadykalo attended the meeting at which the document was discussed. Her role in that meeting was to give legal advice to the senior management team relative to disciplinary consequences, if any, that would fall from the incident involving the plaintiff. She did so, making reference to the document in question (see Affidavit of Lori van Valkenburg para. 7 and 8).

ISSUE

[67] The issue to be determined is whether the Termination Review Document is protected by solicitor-client privilege.

POSITIONS OF THE PARTIES

Position of Honda

[68] Honda submits the document is protected by solicitor-client privilege and, therefore, it is not produceable. The document was prepared for the dominant purpose of contemplated litigation.

Position of Mr. Ernewein

[69] Mr. Ernewein takes the position that the Termination Review Document was not prepared for the dominant purpose of seeking legal advice. Rather, this document was prepared primarily for the senior management team as information necessary for management to carry out a disciplinary function. While the document was provided to in-house counsel in addition to the senior management team, nevertheless, this document was not prepared for the dominant purpose of litigation.

[70] Honda bears the onus of establishing that the claim of privilege is properly made. It is submitted that Honda has failed to satisfy this onus.

ANALYSIS

[71] While Honda has claimed privilege over the Termination Review Document and all discussions surrounding this document, I disagree that the Document and surrounding notes and other documents are protected by solicitor-client privilege for the following reasons.

[72] Honda bears the onus of establishing that its claims of privilege are properly made. [11]

[73] Lori Van Valkenburg testified during her Examination for Discovery that this Termination Review Document would include information with regard to the specific incident at issue and the employee’s work history. This information would be submitted to a senior management team so as to enable them to make a decision with respect to the termination of the employee. It would also be submitted to in-house legal counsel for their review.

[74] The Supreme Court of Canada has held that the criteria to establish solicitor-client privilege are as follows: “(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice, and (iii) which is intended to be confidential by the parties.” [12]

[75] The critical issue on this motion is whether the termination review document was prepared for the purpose of seeking legal advice. I find that in all the circumstances, this was not the case. I find that the Termination Review Document was prepared primarily for the senior management team as information necessary for management to carry out a disciplinary function. Providing a copy of the Termination Review Document for in-house counsel in addition to the senior management team does not clothe that document with solicitor-client privilege.

[76] In this regard, Master Short in Humberplex Developments Inc. v. TransCanada Pipelines Ltd., 2011 ONSC 4815 held “an operational communication cannot be cloaked with privilege by copying it to a lawyer.” Master Short added that “if the document was prepared for purposes of simultaneous review by legal and non-legal personnel, it cannot be said that the primary purpose of the document is to secure legal advice and no privilege may be maintained at this stage.” [13]

[77] With respect to litigation privilege, the Supreme Court of Canada has adopted a dominant purpose test. As such, Honda must show that the Termination Review Document was prepared for the “dominant purpose of litigation.” [14]

[78] The Ontario Court of Appeal has held that in applying the dominant purpose test, the litigation for which the document was allegedly prepared must be actual or contemplated litigation when the document was originally prepared. [15]

[79] In the case of bar, I find that the Termination Review Document was not prepared for the dominant purpose of actual or contemplated litigation. This document was prepared before a decision was even made to terminate the employment of Mr. Ernewein. As such, it cannot be said that the litigation was in contemplation at the point of creation of the Termination Review Document (emphasis mine).

DISPOSITION

[80] For these reasons, there shall be an order in favour of Mr. Ernewein that Honda make production in accordance with the relief sought at item 2 of the Notice of Motion.

Item 4

[81] Honda has obtained a Witness Statement from the ex-wife of Mr. Ernewein who was with Mr. Ernewein when he allegedly stole property from Honda.

[82] Mr. Ernewein submits he is entitled to the material facts of any witness statement obtained by Honda pursuant to Rule 31.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[83] It has been held that this provision requires a party to provide the names and addresses of persons who might reasonably be expected to have knowledge of the matters in issue as well as “a summary of the substance of the evidence of those persons who might reasonably be expected to have knowledge of the matters in issue.” [16]

[84] I find that Mr. Ernewein is entitled to disclosure of the material facts of any witness statement obtained by Honda including, but not limited to, the statement obtained by Honda from Mr. Ernewein’s ex-wife. I agree with the position and authority cited by Mr. Ernewein in support of this claim for production.

DISPOSITION

[85] For these reasons, there shall be an order in favour of Mr. Ernewein that Honda make production in accordance with the relief sought at item 4 of the Notice of Motion.

Item 5

[86] Both parties agree that the productions sought by Mr. Ernewein regarding his payroll records would depend very much on the outcome of the Summary Judgment Motion. I have dismissed the Summary Judgment Motion. Accordingly, I find Mr. Ernewein’s claim for retroactive overtime pay is a matter in issue in this action. As such, I find that Honda is required to disclose the documentation in its possession that would assist Mr. Ernewein and in turn, the court in quantifying the damages for his claim.

[87] In this regard, it is important to note that the disclosure or production of these documents sought is not to be taken as an admission of their relevance or admissibility. Rather, the disclosure of the requested documentation does not prohibit Honda from arguing at trial that Mr. Ernewein’s claim for overtime pay is statute-barred and/or that such documentation as disclosed is not admissible at trial (see Rule 30.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194).

[88] In Mr. Ernewein’s Statement of Claim, he seeks the payment of all overtime hours worked since his promotion to Group Leader on May 5, 1997 at time and a half pursuant to Part VII of the Employment Standards Act, 2000, S.O. 2000, c. 41.

[89] I find that Mr. Ernewein is entitled to production from Honda of his payroll records from January 1, 1997 to March 13, 2011, inclusive, in the form set out at Tab 7 of Honda’s Affidavit of Documents.

DISPOSITION

[90] For these reasons, there shall be an order in favour of Mr. Ernewein that Honda produce Mr. Ernewein’s payroll records in accordance with the relief sought at Item 5 of the Notice of Motion.

C. THE STATEMENT OF CLAIM AMENDMENT MOTION

[91] Mr. Ernewein seeks an order for leave to amend the Statement of Claim. The amendment is sought in order to specifically plead the doctrines of reasonable discoverability and fraudulent concealment. Honda is not prejudiced by this formal amendment. The amendment was not opposed so long as Honda was permitted to conduct further examination for discovery of Mr. Ernewein on any new matters on which he has not yet been examined.

DISPOSITION

[92] There shall be an order permitting Mr. Ernewein to amend his Statement of Claim in accordance with the proposed Amended Statement of Claim set out in his Motion Record. Honda shall be permitted to deliver its Amended Statement of Defence in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Also, Honda shall be permitted to examine Mr. Ernewein further in respect of the amendments and any new matters arising from the amendments on which Mr. Ernewein has not been examined previously.

CONCLUSION

[93] For these reasons, Honda’s Motion for Summary Judgment is dismissed. Mr. Ernewein’s Motions for Production is granted in part and his motion for Amendment of the Statement of Claim is granted.

Costs

[94] The parties agree that costs are to be determined by way of written submissions. Within the next 30 days, the parties shall exchange and file with my Judicial Assistant at Barrie, a concise statement as to costs no longer than two pages in length, a Costs Outline, Draft Bills of Costs together with any applicable authorities. Within that time period the exchange of written submissions shall also include Reply Submissions where appropriate, if any.

Di TOMASO J.

Released: February 17, 2017

Footnotes:

[1] Hryniak v. Mauldin, 2014 SCC 7, supra, at para. 66. [2] Longo v. MacLaren Art Centre, 2014 ONCA 526, para. 42. [3] Peixeiro v. Haberman, [1997] 3 S.C.R. 549, para. 18. [4] Andrachuk v. Bell Globe Media Publishing Inc., 2009 ONSC 3974, para. 8. [5] Guerin v. The Queen, [1984] 2 S.C.R. 335 at 390, as quoted in Andrachuk, supra, para. 16. [6] Employment Standards Act, 2000, S.O. 2000, c. 41, s. 22. [7] Exemptions, Special Rules and Establishment of Minimum Wage, O. Reg. 285/01, s. 8(b). [8] Employment Standards Act, R.S.O. 1990, c. E.14, Section 24. [9] General, R.R.O. 1990, Reg. 325, Section 6(b). [10] Skrobacky (Litigation Guardian of) v. Frymer, 2014 ONSC 4544, [2014] O.J. 3658 (DIVCT) at para. 9 and 36. [11] General Accident Assurance Co. v. Chrusz, (1999), 45 OR (3rd) 321, para 151 (CA), Mandeville v. Manufacturers Life Insurance Co, 2004 CarswellOnt 9988, para 8 (SCJ). [12] Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, para 15. [13] Humberplex Developments Inc. v. TransCanada Pipelines Ltd., 2011 ONSC 4815, paras 49 and 53 (Ont Master). [14] Blank v. Canada (Department of Justice), 2006 SCC 39, para 60. [15] General Accident Assurance Co. v. Chrusz, (1999), 45 OR (3rd) 321, para 33. [16] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 31.06, Dionisopoulos v. Provias, (1990), 71 OR (2d) 547, para 14 (H Ct J).