COURT FILE NO.: CV-12-454069

DATE: 20121119

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NAWAF AL-DANDACHI , Plaintiff/Responding Party

AND:

SNC-LAVALIN INC. , Defendant/Moving Party

BEFORE: Stinson J.

COUNSEL:
Kumail Karimjee and Allison Greene , for the Plaintiff/Responding Party

Jeffrey P. Mitchell and James Fu , for the Defendant/Moving Party

HEARD: October 17, 2012

ENDORSEMENT

background

[ 1 ] The defendant moves under rule 21.01(1) (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike out all references in the plaintiff's amended statement of claim relating to his human rights claim, on the grounds that the human rights claim fails to disclose a reasonable cause of action. In the alternative, the defendant moves pursuant to rule 25.11 to strike out certain portions of the amended statement of claim on the ground that they are scandalous, frivolous, vexatious and/or may prejudice or delay the fair trial of the action.

[ 2 ] The plaintiff is a former employee of the defendant who was dismissed on February 21, 2012. He has sued the defendant alleging, among other things, wrongful dismissal. The amended statement of claim also claims damages for an alleged breach of the Ontario Human Rights Code , R.S.O. 1990, c. H.19 (the Code ). The human rights claim is based on the plaintiff's allegation that his employment was terminated due to statements made and opinions held by him respecting the armed conflict in Syria. The plaintiff is of Syrian origin and a Muslim.

[ 3 ] The amended statement of claim includes the following allegations in paragraphs 28.1 and 28.2:

28.1 The Plaintiff states that he believes in peace, unity, tolerance and the absence of compulsion within religion as aspects of his sincerely held religious beliefs as a Muslim. The Plaintiff states that it is a fundamental aspect of his faith that there should be no compulsion in religion and, as such, as part of his Muslim faith, he believes that there should be a separation between religion and the state.

28.2 The Plaintiff opposes the armed conflict in Syria as a Syrian Canadian and Muslim who believes in peace, unity, tolerance and the absence of compulsion in religion, because he views the armed conflict as a movement by religious extremists who seek to lead Syria towards religious extremism. As a Muslim and as a Syrian Canadian whose identity is tied to Syria, the Plaintiff has strong views opposing religious extremism and religious control over Syria.

[ 4 ] The plaintiff further pleads in the amended statement of claim that, in a radio interview conducted on February 10, 2012, he expressed views that he holds deeply as a person of Syrian origin and as a person whose religious beliefs are opposed to religious extremism. He goes on to plead that although he does not support Syrian dictator Bashar Al-Assad ("Assad"), given that he does not support the armed conflict to overthrow Assad, his views have been interpreted by some as being pro-Assad.

[ 5 ] Less than two weeks after his radio interview, the plaintiff's employment was terminated by the defendant. The amended statement of claim alleges "that the Defendant terminated his employment to avoid potential negative publicity associated with employing someone who was perceived to be a supporter of a dictator in the Middle East. In placing its public relations concerns first, the Defendant disregarded the Plaintiff's rights and in effect terminated the Plaintiff because he held and expressed deeply held views as a person of Syrian origin whose religious beliefs are against extremism." The amended statement of claim goes on to allege that the decision to terminate the plaintiff's employment was linked to his place of origin and creed and is a violation of the Code . He claims general damages for wrongful dismissal or alternatively for loss of income and benefits arising from a breach of the Code , and general damages for violations of the Code , as well as moral damages and aggravated, exemplary and punitive damages.

analysis

[ 6 ] Hunt v. Carey Canada Inc., 1990 SCC 90 , [1990] 2 S.C.R. 959 (S.C.C.) establishes the following principles in relation to motions under Rule 21: the allegations of fact pleaded in the claim must be accepted as proven for purposes of the motion; the pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies; to strike a pleading, the moving party must show that it is "plain and obvious" that the claims in question disclose no reasonable cause of action; and, a claim should be struck only if it is certain to fail because it contains a radical defect.

[ 7 ] The defendant argues that, on the facts asserted by the plaintiff, the defendant's decision to dismiss the plaintiff was made on the grounds of the plaintiff's political views, not his religious beliefs; the motivation of the defendant had nothing to do with the plaintiff's religious beliefs, it argues. Rather, on the facts alleged (which are not conceded but accepted for purposes of the present argument) the decision to terminate the plaintiff's employment was based on his perceived support for a dictator and the adverse impact of the plaintiff's public stance in that regard on the defendant's reputation.

[ 8 ] The defendant submits that a vital component of the applicable test for a civil claim based on a violation of the Code is that there must be a link to a prohibited ground of discrimination. The Code does not apply to differential or adverse treatment that is not linked to a prohibited ground. Since political opinion is not one of the 16 protected grounds in employment under the Code , the defendant submits that it is plain and obvious that the plaintiff's political opinion cannot be linked to a violation of the Code .

[ 9 ] The defendant relies on Jazairi v. Ontario (Human Rights Commission) (1999), 1999 ONCA 3744 , 175 D.L.R. (4th) 302, [1999] O.J. No. 2474, (C.A.). In that case, the Court of Appeal posed the following question: "Does the word "creed" in the Code include discrimination on the basis of 'political opinion'?" In paragraphs 27 and 28, the Court of Appeal stated:

27 The Divisional Court [reported at (1997), 1997 ON SC 12445 , 146 D.L.R. (4th) 297, [1997] O.J. No. 1526] found that it did not. Corbett J. for the court stated at p. 19:

Even if it can be said that political opinion may constitute creed, there is no evidence that the applicant's views amount to a creed. I am not prepared to find that the applicant's political views, no doubt shared by others in society, amount to a creed merely because the applicant is from Iraq. On the facts in this case, the applicant's submission that political and religious commitments may be so aligned as to constitute "creed" is not established. Whether a political perspective, such as communism, that is made up of a recognizable cohesive belief system or structure may constitute a "creed" is not at issue and is not being determined.

In my opinion, mere political opinion is not within the meaning of "creed" in s. 1 of the Code . [Italics in original.]

28 I agree with this statement. I think it a mistake to deal with hypothetical scenarios. Clearly, the personal opinion of the appellant on this single issue of the relationship between the Palestinians and Israel does not amount to a creed. Whether or not some other system of "political opinion" could amount to a "creed" is not before the court. It is a mistake to deal with such important issues in the abstract.

[ 10 ] The defendant therefore argues that political opinion is outside the scope of the Code and that, in the absence of a violation of the Code or other statutory breach, it was entitled to terminate the plaintiff's employment without cause. At best, the plaintiff is left with his common law remedy for wrongful dismissal but not for damages under the Code .

[ 11 ] The Court of Appeal expressly left open the question whether or not some other system of political opinion could amount to a creed. As the Divisional Court noted in Jazairi, supra, (which involved an application for judicial review based on an evidentiary record) the record did not establish that the applicant's religious and political commitments were sufficiently aligned as to constitute the creed. By contrast, in the present case, the facts in the amended statement of claim must be taken as provable for purposes of this Rule 21 motion. Having regard to the allegations made (as quoted above), I am unable to conclude that the views and opinions of the plaintiff could not amount to a creed. That issue, in my respectful view, cannot be determined on a pleadings motion, especially having regard to the allegations contained in the amended statement of claim.

[ 12 ] The defendant further submits that there is no nexus or correlation between the complained-of act (the plaintiff's dismissal) and the prohibited ground. The defendant therefore submits that the breach of the Code is not made out on the pleading before the court. I disagree.

[ 13 ] In the closing portion of paragraph 31 of the amended statement of claim, the plaintiff alleges that "the defendant disregarded the plaintiff's rights and in effect terminated the plaintiff because he held an expressed deeply held views as a person of Syrian origin whose religious beliefs are against extremism." In effect, the plaintiff says that his views made his employer uncomfortable, so it decided to dismiss him; he alleges that he was acting in accordance with his religious beliefs and he was terminated as a result. It is important to keep in mind that the motivation of an employer is irrelevant to assessing whether the conduct is discriminatory: see Ontario (Human Rights Commission) v. Simpsons-Sears Ltd , 1985 SCC 18 , [1985] 2 S.C.R. 536. The intent to discriminate is not the governing factor, rather it is the result or effect of the alleged discriminatory action that is significant.

[ 14 ] I therefore conclude that it is not plain and obvious that the plaintiff's human rights claim cannot succeed or that it necessarily fails to disclose a reasonable cause of action. The motion for relief under rule 21.01(1)(b) must therefore be dismissed.

[ 15 ] Turning to the request for relief under rule 25.11, a pleading or portions of a pleading may be struck on the ground that they may prejudice or delay the fair trial of the action. Such relief can be granted where the probative value of the evidence would be outweighed by the time and effort involved and would seriously interfere with the fair and focused trial of the issues. Striking a pleading on this ground is an exercise in discretion. The court must balance the added complexity of the pleading against the potential probative value of the facts alleged. A pleading that is superfluous or can have no effect on the outcome of the action is scandalous, frivolous and vexatious: see Carney Timber Co. v. Pabedinskas , 2008 ONSC 63163 , [2008] O.J. No. 4818 (S.C.J.) at para. 16 as Justice Strathy went on to observe in that case (at para. 17):

The common thread of the criteria of Rule 25.11 is that the facts pleaded are irrelevant to the issues before the court, or are so prejudicial that the pleading or portion thereof should be struck in spite of their relevance.

[ 16 ] In essence, the complaint of the plaintiff is that he was dismissed without cause and for an improper purpose, namely, that as an employee of the defendant his views as publicly expressed were considered to be potentially embarrassing and could have had an adverse effect on the public image of the defendant. The pleading makes that point succinctly in paragraph 31 of the amended statement of claim. In paragraphs 25, 26, 27 and 30 of the amended statement of claim, however, the plaintiff pleads allegations relating to other events concerning the defendant's public relations and business relationships. To the same effect are the second and the third sentences of paragraph 5 of the amended statement of claim.

[ 17 ] In my view, these allegations are irrelevant and superfluous. They can have no effect on the outcome of the action. Moreover, in my view, they would prejudice or delay a fair trial of the action and the probative value of any evidence concerning these allegations would be far outweighed by the time and effort involve in exploring them. In effect, they would interfere with the fair and focused trial of the issues that are properly within the scope of the dispute.

[ 18 ] Accordingly, pursuant to my authority under rule 25.11 and the exercise of my discretion in balancing the added complexity of the pleading as presented against the potential probative value of these facts, I would strike the offending paragraphs.

disposition

[ 19 ] For these reasons,

(a) the motion for relief under rule 21.01(1)(b) is dismissed;

(b) the following portions of the amended statement of claim are struck out, without leave to amend: the second and third sentences of paragraph 5; paragraph 25, paragraph 26, paragraph 27 and paragraph 30; and

(c) the balance of the defendant's motion is dismissed.

[ 20 ] In light of the fact that success on the motion was divided, I make no order as to costs.

Stinson J.

Date: November 19, 2012