ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-441048
DATE: 20120502
BETWEE N:
JOHN DAVID EKPENYONG
Self-represented Plaintiff, responding party.
Plaintiff
- and -
STAFF PLUS TEMPORARY & PERMANENT PERSONNEL SERVICE and STRINGER BRISBIN HUMPHREY MANAGEMENT LAWYERS
Joseph K. Morrison , for the Defendant/Moving party, Staff Plus Temporary & Permanent Personnel Service
Allison L. Taylor , for the Defendant/Moving party, Stringer Brisbin Humphrey Management Lawyers.
Defendants
HEARD: April 3, 2012
CHAPNIK J.
INTRODUCTION
[ 1 ] There are two motions before me, one brought by each of the defendants. The defendant, Staff Plus Temporary & Permanent Personnel Service (Staff Plus) moves for an order striking the Fresh as Amended Statement of Claim, dismissing the plaintiff’s action and for costs.
[ 2 ] The defendant, Stringer Brisbin Humphrey Management Lawyers (Stringer Brisbin) moves, alternatively, for an order dismissing the plaintiff’s claim and/or granting summary judgment against the plaintiff.
OVERVIEW
[ 3 ] The plaintiff is an employee of the defendant, Staff Plus, who was assigned to provide services to a client of Staff Plus, Versacold Logistics Canada Limited. (Versacold).
[ 4 ] The plaintiff’s assignment was terminated by Versacold on June 22, 2011, after less than a month. The plaintiff’s perception of the reasons underlying the termination differs substantially from the reasons alleged by Versacold. Accordingly, the plaintiff decided to commence a lawsuit against Versacold for, among other things, wrongful dismissal. When the plaintiff advised Staff Plus of his intention to sue Versacold, Staff Plus, through its legal counsel, the defendant Stringer Brisbin, informed Versacold of this eventuality.
[ 5 ] As a result, Staff Plus conducted an investigation and on July 22, 2011, it wrote to the plaintiff through its lawyer to advise him that Staff Plus and not Versacold was his employer and that in its view, the allegations made by Versacold against the plaintiff were warranted.
[ 6 ] On or about July 28, 2011, the plaintiff commenced an action against Versacold for intentionally or negligently failing to comply with the Employment Standards Act 2000 , O. Reg 285/01 and the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 and claiming, among other things, that Versacold was the plaintiff’s employer.
[ 7 ] Versacold retained counsel to defend the action and certain correspondence was exchanged between counsel and the plaintiff. At one point, the plaintiff obtained default judgment against Versacold. Staff Plus’ lawyers, Stringer Brisbin, informed Versacold of this and the default judgment was subsequently set aside with costs ordered against the plaintiff.
[ 8 ] Versacold then brought a motion to strike the plaintiff’s claim on several grounds, including the fact that it was not the plaintiff’s employer. As part of the motion record, Versacold included copies of the plaintiff’s emails and the above-noted response by Staff Plus.
[ 9 ] The plaintiff subsequently commenced this action against Staff Plus and Stringer Brisbin, alleging:
i. Intentional or negligent failure to comply with the Maintenance and Champerty Act , more specifically An Act respecting Champerty , R.S.O. 1897, c. 327;
ii. Intentional or negligent failure to comply with s. 12.1 of the Employment Standards Act, 2000 , S.O. 2000, c. 41;
iii. Tortious conspiracy to injure.
[ 10 ] Essentially, the plaintiff objects to the forwarding of his emails and the letter sent by Staff Plus’ lawyer to the lawyer for Versacold. He also alleges that Staff Plus breached the Employment Standards Act “by not furnishing him with pay slips on or before each pay day”.
THE POSITION OF THE PARTIES
[ 11 ] The plaintiff contends that the defendants began providing “aid and assistance” to Versacold “even though their solicitude was unasked for”. They thus embarked upon a non-consensual transmission of all the “confidential information” to Versacold in order to aid it in the lawsuit. Thus, they “intermeddled” in the lawsuit.
[ 12 ] The plaintiff also attributes an improper motive to the defendants encompassing “a contemplated possibility of profiting from the lawsuit” and manifested by “hostility and malice” towards the plaintiff. Finally, he notes that the motion to strike challenges only the legal status of the complaint, not the truth or accuracy of its factual allegations or the plaintiff’s ability to prove the allegations.
[ 13 ] The defendant, Staff Plus, moves under rules 21.01 and 25.11 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 claiming the Statement of Claim fails to disclose a reasonable cause of action and, thus, is “fatally flawed”. It is also frivolous, vexatious and an abuse of the court’s process.
[ 14 ] Stringer Brisbin moves pursuant to the above Rules to strike out the plaintiff’s claim against it and also, under rule 20.01(3) for summary judgment. It claims that there is no reasonable cause of action against it, and no genuine issue that requires a trial for its resolution.
THE LAW
[ 15 ] Rule 21.01 permits the court to strike out a pleading that fails to disclose a reasonable cause of action. The test is whether, assuming the facts as stated in the Statement of Claim can be proved, it is plain and obvious that the plaintiff’s Statement of Claim discloses no reasonable cause of action. Hunt v. Carey Canada Inc. , 1990 , [1990] 2 S.C.R. 959, [1990] 2 S.C.J. No. 959, at para. 21 .
[ 16 ] Rule 25.11 allows the court to strike out all or a portion of a pleading if prejudice or injustice may result. Specifically, Rule 25.11(a) and (b) state the following: “The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document, (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious”.
[ 17 ] In George v. Harris , [2000] O.J. No. 1762 at para. 20 , Justice Epstein analyzed the meaning of “scandalous”, “frivolous” and “vexatious” as follows:
It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety.
[ 18 ] Pursuant to Rule 20, the court shall grant summary judgment if:
i. The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
ii. The parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant summary judgment (rule 20.04(2)).
[ 19 ] In evaluating whether a genuine issue exists, the Ontario Court of Appeal has held that motions for summary judgment are appropriate when, in absence of an agreement, the claims or defences are without merit or the judge can “fully appreciate” all the evidence and issues required to make a dispositive finding without a trial. Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , [2011] O.J. No. 5431, at para. 50 .
ANALYSIS
[ 20 ] As noted, the plaintiff has rooted his claim in three areas of the law – an Act respecting Champerty, the Employment Standards Act and tortious conspiracy to injure. I will deal with each allegation separately and in respect of each defendant where the facts differ.
Champerty and Maintenance
[ 21 ] The plaintiff alleges that “for the defendants to transmit all the identical emails to Versacold Canada is an overkill”; and that it is the ultimate manifestation of “hostility and malice” towards the plaintiff.
[ 22 ] The Act respecting Champerty contains only two sections as follows:
Champertors be they that move pleas and suits, or cause to be moved, either by their own procurement, or by others, and sue them at their proper costs, for to have part of the land in variance, or part of the gains.
All champertous agreements are forbidden and invalid.
[ 23 ] The basis of the law respecting champerty and maintenance is mainly to prevent the trafficking in lawsuits. There can be no maintenance, however, if the alleged maintainer’s actions are justified; that is, if the alleged maintainer has a justifying motive or excuse. Champerty only applies to conduct meant to stir up or elicit for an improper motive. Moreover, the Act respecting Champerty will not be applied where the moving party has a pre-existing relationship with the issue or with the connected party. McIntyre Estate v. Ontario (Attorney General) (2002), 2002 , 61 O.R. (3d) 257, [2002] O.J. No. 3417 (C.A.), at paras. 34-47 . See also Buday v. Locator of Missing Heirs Inc . (1993), 1993 , 16 O.R. (3d) 257, [1993] O.J. No. 2999 (C.A.).
[ 24 ] In my view, this cause of action against both defendants cannot stand for the following reasons:
a. Versacold is a client of Staff Plus. Accordingly, there is a pre-existing relationship between them. Indeed, the plaintiff specifically asked StaffPlus to intervene in his action against Versacold.
b. The factual circumstance, that is, the advising of a client that an action is being commenced against it by an employee is clearly justifiable. Moreover, informing a client on instructions of its principal that the client has been noted in default is, in my view, a justifiable action.
c. There is no proof of actual loss or damages resulting from the defendants’ actions.
d. Staff Plus had a legitimate and genuine business interest in the result of the action against Versacold.
e. There is no proof of improper motive on the defendants’ part or any agreement to provide financial support or divide proceeds or “encourage the litigation between the plaintiff and Versacold”, as alleged.
[ 25 ] Accordingly, it is plain and obvious that the plaintiff’s claims as against each defendant framed in maintenance and champerty have no reasonable prospect of success.
Employment Standards Act, 2000 (the ESA )
[ 26 ] The plaintiff claims the defendant Staff Plus negligently or intentionally failed to comply with s. 12.1 of the ESA .
[ 27 ] Section 12.1 of the ESA requires an employer to give the employee a written statement with respect to their wages “on or before an employee’s pay day”. It is common ground that Staff Plus routinely paid the plaintiff by direct deposit on a weekly basis. The plaintiff alleges, however, that it has never furnished him with a pay slip on or before pay day. In my view, the plaintiff’s pleading does not demonstrate a clear failure to do so with intent or negligence such as would amount to a breach of the ESA and consequent claim for damages by the plaintiff. Indeed, there is an admission in the Statement of Claim that Staff Plus provided the plaintiff with written statements on or before each of the plaintiff’s pay days, as required by s. 12.1 of the ESA .
[ 28 ] Section 12.1 of the ESA requires an employer to provide a written statement of wages on termination. There is no evidence nor is it alleged that the plaintiff was terminated by Staff Plus.
[ 29 ] At para. 38 of the statement of claim, the plaintiff admits that he had “only on one occasion been furnished with a written statement regarding his wages”. The fact that Staff Plus failed to provide a written statement of wages to the plaintiff when requested after the commencement of the lawsuit does not amount to a breach of the ESA .
[ 30 ] As well, the pleadings do not document a claim for damages under this category.
[ 31 ] As for Stringer Brisbin, the plaintiff alleges it advised Staff Plus not to provide the said information or comply with the provisions of the ESA . However, a lawyer’s communication and advice to its client is privileged and there is nothing to support this speculative allegation of the plaintiff.
[ 32 ] The plaintiff’s materials and submissions thereon fail to disclose a reasonable cause of action on this basis.
Conspiracy to Injure
[ 33 ] Conspiracy is an agreement between two or more persons to act either unlawfully or through lawful means for the primary purpose of injuring another person. Damages must have been sustained as a result of the agreement.
[ 34 ] This claim by the plaintiff fails to establish an agreement between the defendants or that the predominant purpose of the alleged conspiracy was to injure the plaintiff. It also fails to describe the injury or damage allegedly caused by the “conspiracy”.
[ 35 ] In my view, an agreement to conspire requires more than a lawyer (in this case, Stringer Brisbin) giving information to its principal’s client in circumstances such as this. Moreover, advising a defendant even in these circumstances, that it has been noted in default, which is a matter of public record, is not an unlawful act. The cases relied on by the plaintiff to infer otherwise are misconceived and in no way applicable to the particular factual circumstances in this matter.
[ 36 ] In the result, it is plain and obvious that there is no reasonable cause of action against either defendant on the grounds of a conspiracy to injure the plaintiff.
[ 37 ] The plaintiff’s pleading also contains evidence and allegations that may have prejudiced or delayed the trial of the action, and which, in my view, are scandalous, vexatious and frivolous. For example, bald allegations of improper motives on behalf of the defendants are speculative, inflammatory, designed to colour the situation and their probative value is outweighed by their prejudicial effect.
CONCLUSION
[ 38 ] I am satisfied there is no reasonable cause of action as pleaded against either Staff Plus or Stringer Brisbin.
[ 39 ] An order shall issue striking out the Fresh As Amended Statement of Claim and dismissing the plaintiff’s action as against both Staff Plus and Stringer Brisbin. Given this, it is not necessary for me to determine the latter’s motion brought pursuant to Rule 20.
[ 40 ] I have not read the pleadings in the other action and make no comment on the merits of the plaintiff’s claim as against Versacold et al.
[ 41 ] Costs, in the agreed amount of $2,500 shall be payable by the plaintiff to each of the defendants forthwith, totalling the all-inclusive sum of $5,000.
S. Chapnik J.
Released: 20120502
COURT FILE NO.: CV-11-441048
DATE: 20120502
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: JOHN DAVID EKPENYONG Plaintiff and STAFF PLUS TEMPORARY & PERMANENT PERSONNEL SERVICE AND STRINGER BRISBIN HUMPHREY MANAGEMENT LAWYERS Defendants REASONS FOR DECISION Chapnik J.
Released: 20120502