SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: 12-CV-456903
DATE: 20121120

RE: Dawne Jubb
Plaintiff/Responding Party

• and -

Bullion Management Group Inc., Bullion Management Services Inc., Bullion Marketing Services Inc., Bullion Custodial Services Inc. and Bullion Management Group (Asia) Limited
Defendants/Moving Parties

BEFORE: The Honourable Mr. Justice Robert F. Goldstein

COUNSEL:
Carolyn Johnston,
for the Plaintiff/Responding Party

Gideon Forrest,
for Defendants/Moving Parties

HEARD: November 16, 2012

E N D O R S E M E N T

BACKGROUND:

[ 1 ] This is a motion by the Defendants to strike all of defendants except Bullion Management Inc. from the Statement of Claim. The Plaintiff is a lawyer. She pleads that she was hired by the Defendants collectively and then wrongfully dismissed. She also pleads that the Defendants have wrongfully withheld 16 boxes of her personal property. In her pleading she states that the Defendants are a series of related corporations. Paragraph 3 of the Statement of Claim specifically states:

The Defendants (collectively referred to as “BMG”) are a series of related corporations carrying on business in Markham, Ontario and provide physical bullion-based products for investors seeking innovative and tax efficient ways to diversify, grow and preserve their wealth. The President and directing mind of BMG is Nick Barisheff (“Barisheff”).

[ 2 ] The Plaintiff pleads that she was initially hired for a four-month probationary period, with permanent employment contemplated. She pleads that she was wrongfully terminated after approximately six months. She pleads that she was escorted out of the Defendant’s premises, and that the Defendants have refused to provide her with the personal property that was in her office until she signs a document releasing all of them from liability.

ISSUE:

[ 3 ] Does the Statement of Claim disclose a reasonable cause of action against the all the Defendants (save and except Bullion Management Inc.)?

ANALYSIS:

[ 4 ] The question before the Court is whether the pleading is sufficient for all of the defendants (save and except Bullion Management Inc.) to know the case to be met. In Balanyk v. University of Toronto , 1999 (ON SC) , [1999] O.J. No. 2162 (Sup.Ct.) Cameron J. set out some important principles in assessing the adequacy of a pleading at paragraphs 26 to 30:

26 When a statement of claim sufficiently pleads a document in accordance with Rule 25.06(7) it is necessary for the court to have the document in order to assess the substantive adequacy of the impugned statement of claim. By making reference to the document the plaintiff is asserting its contents as facts: see Web Offset Publications Ltd. v. Vickery (1998), , 40 O.R. (3d) 526 at 531-2.

27 In assessing the adequacy of pleadings under Rules 21.01, 25.06 and 25.11 I must bear in mind their purposes. These are:

(a) define clearly and precisely the questions in controversy between the litigants;

(b) give fair notice of the precise case which is required to be met and the precise remedies sought; and

(c) assist the court in its investigations of the truth of the allegations made.

See National Trust Co. v. Furbacher , [1994] O.J. No. 2385 at paras. 9 and 10 .

28 The full particulars of allegations of fraud, breach of trust or misrepresentation required by Rule 25.06(8) must set out precisely what each allegation of such wrongful act is, and the when, what, by whom and to whom of the relevant circumstances: see Lana International Ltd. v. Menasco Aerospace Ltd . (1996), , 28 O.R. (3d) 343.

29 The plaintiff must plead all the material facts on which it relies and all of the facts which it must prove to establish a cause of action which is legally complete. If any fact material to the establishment of a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars. If the plaintiff does not, at the time of pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim. It is improper to allow conclusions to be pleaded baldly and without any supporting facts: see Region Plaza Inc. v Hamilton - Wentworth (Regional Municipality) (1990), , 12 O.R. (3d) 750.

30 A pleading should be read generously, with the foregoing principles in mind, so as to not unfairly deny a party the benefit of the pleading: see Doe v. Metropolitan Toronto (Municipality) (Commissioners of Police) (1990), , 74 O.R. (2d) 225.

[ 5 ] The test for striking out claims is set out in R. v. Imperial Tobacco Ltd. 2011 SCC 42 , [2011] 3 S.C.R. 45 at para. 17 :

17 The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(a) of the B.C. Supreme Court Rules . This Court has reiterated the test on many occasions. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse , 2003 SCC 69 , [2003] 3 S.C.R. 263 , at para. 15 ; Hunt v. Carey Canada Inc. , 1990 (SCC) , [1990] 2 S.C.R. 959 , at p. 980 . Another way of putting the test is that the claim has no reasonable prospect of [page67] success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D. , 2007 SCC 38 , [2007] 3 S.C.R. 83 ; Odhavji Estate ; Hunt ; Attorney General of Canada v. Inuit Tapirisat of Canada , 1980 (SCC) , [1980] 2 S.C.R. 735 .

[ 6 ] The Court’s comments at paragraph 22 are also apposite:

22 A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen , 1985 (SCC) , [1985] 1 S.C.R. 441 , at p. 455 . No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil Rules ). It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. Mr. Forrest argues that the Plaintiff was employed by only one Defendant, Bullion Management Inc., as disclosed by the employment contract.

[ 7 ] Mr. Forrest argues that the Plaintiff needs to plead enough material facts in order to allow the case to be met. He says that there is nothing in the Statement of Claim that gives enough clues that the common employer doctrine is pleaded. He acknowledges that the Plaintiff had an agreement with Bullion Management Inc., but states that the pleading is unclear as to the her relationship to each of the companies.

[ 8 ] Ms. Johnston argues that Mr. Forrest is in essence arguing that the Plaintiff should plead evidence rather than facts in the Statement of Claim, which is not permissible. She argues that the facts pleaded in Paragraph 3 of the Statement of Claim are sufficient. She further argues that the facts in the pleadings must be taken as true. It is her position that the Statement of Claim is clear that the Defendants are related corporations and all were in an employment position with the Plaintiff.

[ 9 ] In my view, the common employer doctrine is incorporated into employment law and the Plaintiff is entitled to rely on it. I am guided by the principle set out in Downtown Eatery (1993) Ltd. v. Ontario , 2001 (ON CA) , [2011] O.J. No. 1879, 54 O.R. (3d) 161, 200 D.L.R. (4 th ) 289 (C.A.):

[36] However, although an employer is entitled to establish complex corporate structures and relationships, the law should be vigilant to ensure that permissible complexity in corporate arrangements does not work an injustice in the realm of employment law. At the end of the day, Alouche's situation is a simple, common and important one -- he is a man who had a job, with a salary, benefits and duties. He was fired -- wrongfully. His employer must meet its legal responsibility to compensate him for its unlawful conduct. The definition of "employer" in this simple and common scenario should be one that recognizes the complexity of modern corporate structures, but does not permit that complexity to defeat the legitimate entitlements of wrongfully dismissed employees.

[ 10 ] Although the employment contract is between Bullion Management Group Inc. and the Plaintiff, Annex “A” to the employment agreement (incorporated by reference into the Statement of Claim) states:

Inclusions: Bullion Management Group Inc. (“BMG”), including all of its subsidiaries and business activities….

[ 11 ] I also note that the Defendants demanded that the Plaintiff sign a release (also referenced in the Statement of Claim) which stated:

To: Bullion Management Group Inc. (“the Corporation”) and other Released Persons

[ 12 ] In the release, Released Persons are defined as follows:

As used in this release, “Released Persons” means the Corporation, its subsidiaries and affiliates, and their respective directors, officers, employees and agents and representatives, current and former.

[ 13 ] In my view, the pleading discloses a reasonable cause of action against all of the Defendants. When the Statement of Claim is examined, along with the documents incorporated by reference, there are sufficient facts to enable to the Defendants to know the case to be met. It is clear, according to the pleadings and the incorporated documents, that it was contemplated by both parties that the Plaintiff would work not only for Bullion Management Inc. but also for all its related entities. The Defendants themselves each sought to be released by the Plaintiff. It is not, therefore, plain and obvious that the claim against all of the Defendants has no chance of success.

DISPOSITION

[ 14 ] The motion is dismissed. Costs on a partial indemnity basis in the amount of $3500 payable within 30 days were awarded to the Plaintiff at the hearing of the motion.

[14]

GOLDSTEIN, J.

DATE: November 20, 2012