Court of Appeal for Ontario

Date: September 4, 2019 Docket: C65664

Judges: Tulloch, Benotto and Huscroft JJ.A.

Between

Alexander Davidoff Plaintiff (Appellant)

and

Sobeys Ontario Defendant (Respondent)

Counsel

Alexander Davidoff, acting in person

Zohaib I. Maladwala and Rachel Laurion, for the respondent

Heard: May 23, 2019

On appeal from the order of Justice Meredith Donohue of the Superior Court of Justice, dated June 20, 2018.

Decision

Tulloch J.A:

[1] Mr. Davidoff appeals the striking of his Statement of Claim by the court below for wrongful termination under r. 21.01(1)(a) of the Rules of Civil Procedure: R.R.O 1990, Reg. 194. For the reasons that follow, I would dismiss the appeal.

I. FACTS

[2] Mr. Davidoff issued a Statement of Claim on November 1, 2017, intending to sue Sobeys Ontario for wrongful termination. He claims that he was wrongfully dismissed after he discovered fraud on the part of two Sobeys managers. Both parties agree that the date of his termination was October 6, 2015.

[3] The parties also agree that the limitation period for the wrongful termination claim is two years, as prescribed by s. 4 of the Limitations Act S.O. 2002, c. 24, Sched. B. Mr. Davidoff would therefore have needed to issue a Statement of Claim or a Notice of Action on or before October 6, 2017.

[4] On September 29, 2017, Mr. Davidoff mailed a letter to Sobeys' Director of Human Resources, entitled "Notice of Action for Wrongful Dismissal and Defamation of Alexander Davidoff." He also emailed the letter to Sobeys' lawyer at Fasken Martineau DuMoulin LLP. The letter included a statement that Mr. Davidoff would commence legal action against Sobeys Inc. for wrongful dismissal and defamation.[1] The letter did not follow the format prescribed for Notices of Action in r. 14.03(2) Form 14C of the Rules of Civil Procedure. Among other things, the letter was not signed by the local registrar of the Superior Court of Justice and did not contain the court seal. The letter also stated that a legal action would be commenced and not that it had been commenced as required by Form 14C.

[5] Mr. Davidoff filed a Statement of Claim on November 1, 2017, outside the limitation period for his wrongful termination claim. Sobeys Ontario moved to strike the claim under r. 21.01 on the basis that it was plain and obvious that the claim was barred by the statutory limitation period. In response, Mr. Davidoff opposed the motion on the basis that his September 29 letter was a Notice of Action, and therefore he had commenced his action within the two year period.

[6] The motions judge, Donohue J, granted Sobeys' motion and struck Mr. Davidoff's claim because his September 29 letter did not conform to the requirements for a Notice of Action under r. 14.03(2) of the Rules of Civil Procedure. She concluded that this was a clear case where a wrongful dismissal action was appropriately struck under r. 21.01(1)(a) before a statement of defence was filed. She reasoned that Mr. Davidoff had not commenced his action within the two-year limitation period so it was plain and obvious that his claim was barred by the Limitations Act.

[7] Donohue J awarded costs of $5,000 to the Respondent. She noted that their actual costs were $11,221.13 and their partial indemnity costs were $7,178.44. Recognizing that the Appellant was self-represented, she exercised her discretion and awarded costs in the amount of $5,000.

II. ANALYSIS

A. The September 29 Letter Was Not a Notice of Action

[8] Mr. Davidoff appeals the striking of his claim. He argues that the motions judge erred in her interpretation of the formal requirements for a Notice of Action. He specifically argues that r. 14.03(2), Form 14C of the Rules applies only to online filing. He submits that since he served the notice through registered mail and not online, he did not have to conform to Form 14C. I do not agree. A Notice of Action commencing a proceeding must meet the requirements in r. 14.03(2). Mr. Davidoff's letter did not meet these requirements. Donohue J. did not err in her interpretation of the Rules or in her conclusion that the September 29 letter was not a Notice of Action and could not have commenced a proceeding.

[9] This finding by the motions judge is one of mixed fact and law. As such, her ruling attracts deference from this court, absent palpable and overriding error or an extricable error in principle in her analysis of the law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26 to 37; see also Donnell v. Joseph, 2012 ONCA 240, 94 M.P.L.R. (4th) 169, at para. 11. Having found that a proper Notice of Action was not filed within the limitation period, and that a claim was not commenced by October 6, 2017, the motions judge was correct to consider next whether the motion could be disposed of pursuant to r. 21.

B. This Is an Appropriate Case for the Limitation Period Issue to Be Decided on a r. 21.01(1)(a) Motion

[10] This is one of the rare cases in which it is appropriate for the limitation issue to be decided on a r. 21.01 motion to strike. The Respondent cites Beardsley v. Ontario for the proposition that in some rare cases limitations issues can be decided on pre-trial motions to strike:, 57 O.R. (3d) 1. Since Beardsley, this court has elaborated on that principle in a number of other cases, including recently, in the decision of Clark v. Ontario (Attorney General) 2019 ONCA 311, leave to appeal to S.C.C requested, 38687; Kaynes v. BP, P.L.C., 2018 ONCA 337, 81 B.L.R. (5th) 6; and Salewski v. Lalonde 2017 ONCA 515, 137 O.R. (3d) 762. However even under the current more restrictive rule, it was appropriate to strike Mr. Davidoff's claim on the r. 21.01 motion.

[11] This court in Salewski noted that the Beardsley exception, allowing some claims to be struck on a r. 21.01(1)(a) motion based on the expiry of a limitation period, may have been overtaken by the Limitations Act of 2002. The bar is now higher for allowing a motion to strike based on the conclusion that a limitation period has expired. This court reaffirmed that consequence of Salewski in Clark at para. 48.

[12] The analysis in Salewski and Clark referred to situations in which the issue of discoverability underlying the two-year general limitation period in the 2002 Limitations Act applies. This is clear in the reasoning in Brozmanova v. Tarshis, referred to in Clark at para. 44: "A plaintiff who risks the dismissal of her action on the basis of a limitations defence should not have to ask a court for permission to file evidence on the issue of when she discovered her claim." 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 22 (emphasis added).

[13] In this case, the parties both agree on the date the claim became discoverable and the limitation period began, and the court is not required to make the findings of fact as discussed in Brozmanova and referenced in Clark that would be relevant to that question. There is no risk of unfairness to Mr. Davidoff on the basis raised in Brozmanova and Clark in the motions judge's striking of his claim.

[14] The situation in this case is more similar to that in Kaynes, in which this court did allow a limitation issue to be determined under r. 21.01(1)(a). The court in that case noted at paragraph 13: "In a case such as this where the parties agree that there are no material facts in dispute, it is an efficient use of court resources to determine limitations defences on a Rule 21 motion". The court in Clark distinguished Kaynes because, unlike in Clark, there were "no material facts in dispute, and [Kaynes was] in the context of an event-triggered limitation period" at para. 45. On those factors, this case is more like Kaynes than Clark. There are no material facts in dispute, including the date on which the limitation period was triggered. As in Kaynes there is no issue of discoverability.

[15] The only question to be determined on the r. 21.01(1)(a) motion to strike was whether the September 29 letter qualified as a Notice of Action. Even under Salewski and Clark, as far as they are applicable to this case, it was appropriate to determine that question on the r. 21.01 motion. This is one of the rare situations in which there is absolutely no utility in requiring a defence to be filed so that pleadings can be noted closed. The facts are undisputed, the matter is far from complex and the additional step would serve no purpose.

C. The Respondent Did Not Introduce a New Material Fact in Oral Argument

[16] Mr. Davidoff also submits that counsel for the Respondent improperly introduced a new material fact during oral submissions and that the Respondent's position was not clear from their written materials. This allegedly new material fact is the Respondent's position that the September 29 letter was not a Notice of Action under the Rules. Mr. Davidoff contends that the Respondent's written materials only refer to the timing of his Statement of Claim and not to his letter. He therefore did not have a fair opportunity to respond to their arguments.

[17] I would not give effect to this submission. Donohue J. had allowed Mr. Davidoff to provide the September 29 letter as evidence on the r. 21 motion to dismiss. The Respondent's position on the letter was a response to evidence that Mr. Davidoff himself had introduced and was not a new or unexpected addition to the oral argument.

[18] In all the circumstances this was a clear case where a wrongful dismissal action was appropriately struck under r. 21.01(1)(a) before a statement of defence was filed.

D. Costs

[19] In my view, Donohue J.'s order of costs was appropriate. Cost awards are discretionary and are entitled to deference. She acknowledged the difficulties of the Appellant as a self-represented party, and her award was well within the range of what was fair and reasonable.

[20] Accordingly, I would dismiss the appeal.

Released: September 4, 2019

"M. Tulloch J.A."

"I agree. M.L. Benotto J.A."

"I agree. Grant Huscroft J.A."

Footnote

[1] Mr. Davidoff clarified in his submissions to this Court that he did not intend to pursue a claim for defamation and focuses on his claim for wrongful dismissal.