COURT FILE NO. 1456
DATE: 20041118
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: general motors of canada limited (appellant) (defendant) and doris calder (respondent) (plaintiff)
BEFORE: Justices THEN, MATLOW, PIERCE, J.J.
COUNSEL: David J. Bannon, for the Appellant
Andrew F. Camman, for the Respondent
HEARD: November 16, 2004 (London)
E N D O R S E M E N T
MATLOW J.
[1] At the conclusion of the hearing of this appeal, the president of this panel endorsed the appeal book on behalf of the court dismissing this appeal with costs fixed at $7500 payable within 30 days. He also stated that, because this appeal raised an issue that might be of interest to others, written reasons for our decision would follow. What follows are those reasons.
[2] The issue raised involves the proper interpretation of section 64.3 (2) of the Employment Standards Act, R.S.O. 1990. c. E.14 (“the ESA”), which reads as follows;
64.3 (2). Subject to subsection (4), an employee is not entitled to commence a civil action for wrongful dismissal if he or she files a complaint alleging an entitlement to termination pay or severance pay relating to the same termination of employment.
[3] Subsection (4) has no application to the facts of this case or to the determination of the issue raised and does not need to be set out or considered here.
[4] The essential facts are as follows. The respondent worked as an illustrator with the appellant until her working relationship was terminated without cause by a communication which was given to her by an employment agency, referred to in these proceedings as “IML”, which had performed various roles in their relationship including bringing her and the appellant together. Several months later when she had not received what she regarded as proper payment for termination and severance pay, she invoked the process for enforcement of her rights set out in the ESA by filing a complaint only against IML which she alleged had been her employer.
[5] After pursuing her complaint through various stages without apparent success for several months, the respondent eventually decided to terminate her efforts by using the ESA process. By then, the process had brought her before the Ontario Labour Relations Board whose leave was required and obtained by her in order to withdraw her complaint.
[6] Undaunted, the respondent next sought to achieve her goal by the institution of ordinary action in the Superior Court in which she claimed various relief, mainly damages, from the appellant who she then alleged in her statement of claim had been employer. In response, the appellant brought a motion under both Rule 20 (Summary Judgment) and Rule 21 (Determination Of An Issue Before Trial) seeking the dismissal of the respondent’s action on the authority of section 64.3 (2) of the ESA. That motion was dismissed by a judge, regrettably without reasons. The appellant subsequently obtained leave to appeal that order and brought its appeal to this court where it was heard by us.
[7] The very narrow issue raised by this appeal is whether the respondent, having filed a complaint against IML pursuant to section 64.3 (2), is prevented from commencing a civil action against the appellant “relating to the same termination of employment”.
[8] It is the appellant’s position that these words relate to the earlier termination of employment communicated by IML because, whatever else may be in dispute, there had clearly been a termination involving the respondent’s working relationship with the appellant and the respondent had already invoked the section 64.3 (2) process, thereby losing forever the right to sue in relation to that that termination. According to the appellant, it matters not that the earlier complaint was made against IML and the present action is brought against the appellant; once a complaint is filed, all subsequent actions against all alleged employers are barred if the actions “relate to the same termination”. In support of this position, it was argued that the purpose of the legislation was to prevent forum shopping and multiplicity of proceedings and that section 64.3 (2) ought to be construed to give effect to that intention.
[9] The respondent takes the position that section 64.3 (2) applies only to prevent the institution of action against the same alleged employer against whom a complaint had been filed. According to the respondent, if it had been the intention of the Legislature to prevent the institution of action against persons who had never been in jeopardy pursuant to a complaint filed, different and clearer language would have been used to achieve that result.
[10] We accept and agree with the respondent’s position. The interpretation which her counsel urges is in accordance with the plain meaning of the subsection and in accordance with the clear objective of the ESA, acknowledged by both sides, which is “to protect the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination” (see Machtinger v HOJ Industries Ltd. 1992 102 (SCC), [1992] 1 S.C.R.986 especially per Iacobucci, J. at page 1003).
[11] It follows, for these reasons, that we are in agreement with the disposition made by the motion judge and are not inclined to interfere with it.
THEN J.
MATLOW J.
PIERCE J.
DATE: November 18, 2004