Power Tax Corporation v. Millar et al.

[Indexed as: Power Tax Corp. v. Millar]

Ontario Reports

Ontario Superior Court of Justice,

Goldstein J.

January 7, 2013

113 O.R. (3d) 502 | 2013 ONSC 135

Case Summary

Civil procedure — Abuse of process — Respondent filing human rights complaint alleging that applicant terminated her employment because she took her full entitlement of maternity leave — Applicant bringing application pursuant to Rule 14 of Rules of Civil Procedure for declaration that respondent was properly terminated for valid business reasons — Doctrine of abuse of process available to prevent pre-emptive collateral attack — Application permanently stayed as abuse of process.

The respondent was unable to return to work early from maternity leave when the applicant asked her to do so. A few days before the end of her maternity leave, the applicant terminated her employment. The respondent filed a human rights complaint alleging that the applicant discriminated against her on the basis of sex by terminating her employment because she took her full entitlement of maternity leave. The applicant brought an application pursuant to Rule 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for a declaration that the respondent was properly terminated for valid business reasons. The Human Rights Tribunal dismissed the applicant's request to defer the complaint pending resolution of the application. The respondent brought a motion to stay the application as an abuse of process.

Held, the motion should be granted.

The doctrine of abuse of process is available to prevent a pre-emptive collateral attack. The application was an abuse of the court's process. It was vexatious, as there was no reason for the applicant to bring it other than as a response to the human rights complaint. Bringing the application forced the respondent to fight a two-front war. Permitting a Rule 14 application to go forward where the applicant had alleged no wrongdoing by the respondent, or even alleged that the human rights complaint was frivolous, would be tantamount to approving attempts by employers to do an end-run around the Human Rights Tribunal process. If the tribunal were to find in the respondent's favour, the applicant would likely be estopped from bringing the application, either on the basis of issue estoppel or on the grounds that it was a collateral attack on the tribunal's findings; likewise, if the tribunal were to dismiss the complaint, the applicant would undoubtedly resist any attempt by the respondent to relitigate the claim in court. Permitting the application to go forward would encourage forum shopping, multiple proceedings and delay. In the circumstances, it would also be an abuse of process to allow the applicant to now take the position that the Rule 14 application would litigate a different issue than that before the tribunal, when it had argued before the tribunal in seeking a deferral that the Rule 14 application would litigate the same issues. If the application was not an abuse of process, it should nevertheless be stayed. Forcing the respondent to respond to the application would be unjust, whereas there was no injustice to the applicant if the application were stayed.

Cases referred to

Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, 232 D.L.R. (4th) 385, 311 N.R. 201, J.E. 2003-2108, 179 O.A.C. 291, [2003] CLLC Â220-071, 17 C.R. (6th) 276, REJB 2003-49439, 59 W.C.B. (2d) 334, 120 L.A.C. (4th) 225, affg (2001), 2001 24114 (ON CA), 55 O.R. (3d) 541, [2001] O.J. No. 3239, 205 D.L.R. (4th) 280, 149 O.A.C. 213, 37 Admin. L.R. (3d) 40, [2002] CLLC Â220-014, 45 C.R. (5th) 354, 107 A.C.W.S. (3d) 426, 51 W.C.B. (2d) 16 (C.A.), affg 2000 30193 (ON SCDC), [2000] O.J. No. 1570, 187 D.L.R. (4th) 323, 134 O.A.C. 48, 23 Admin. L.R. (3d) 72, [2000] CLLC Â220-038, 96 A.C.W.S. (3d) 985, 46 W.C.B. (2d) 232 (Div. Ct.), consd

TDL Group Ltd. v. 1060284 Ontario Ltd., 2000 22736 (ON SC), [2000] O.J. No. 4582, [2000] O.T.C. 875, 6 C.C.E.L. (3d) 274, 101 A.C.W.S. (3d) 506, 2000 CarswellOnt 4599 (S.C.J.), distd

Other cases referred to

Bjarnarson v. Manitoba (Government of), 1987 5396 (MB CA), [1987] M.J. No. 576, 45 D.L.R. (4th) 766, [1988] 1 W.W.R. 422, 50 Man. R. (2d) 178, 21 C.P.C. (2d) 302 at 312, 8 A.C.W.S. (3d) 118 (C.A.), affg 1987 993 (MB QB), [1987] M.J. No. 277, 38 D.L.R. (4th) 32, [1987] 4 W.W.R. 645, 48 Man. R. (2d) 149, 21 C.P.C. (2d) 302 at 304, 6 A.C.W.S. (3d) 20 (Q.B.); Bomac Construction Ltd. v. Stevenson, 1986 3573 (SK CA), [1986] S.J. No. 89, [1986] 5 W.W.R. 21, 48 Sask. R. 62, 1 A.C.W.S. (3d) 272 (C.A.); Farris v. Staubach Ontario Inc., 2004 11325 (ON SC), [2004] O.J. No. 1227, [2004] O.T.C. 277, 32 C.C.E.L. (3d) 265, 129 A.C.W.S. (3d) 969, 2004 CarswellOnt 1160 (S.C.J.); Foy v. Foy (No. 2) (1979), 1979 1631 (ON CA), 26 O.R. (2d) 220, [1979] O.J. No. 4386, 102 D.L.R. (3d) 342, 12 C.P.C. 188, [1979] 3 A.C.W.S. 137 (C.A.); Franco v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391, [2001] O.J. No. 847, 198 D.L.R. (4th) 541, 142 O.A.C. 116, 3 C.P.C. (5th) 189, 103 A.C.W.S. (3d) 944, 49 W.C.B. (2d) 322 (C.A.); Millar v. Power Tax Corp., [2012] O.H.R.T.D. No. 1557, 2012 HRTO 1578; Taylor Made Advertising Ltd. v. Atlific Inc. (2012), 111 O.R. (3d) 221, [2012] O.J. No. 2914, 2012 ONCA 459, 294 O.A.C. 286, 216 A.C.W.S. (3d) 85, 25 C.P.C. (7th) 219, 351 D.L.R. (4th) 542, 2012 CarswellOnt 8177; Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 67 (SCC), [1992] 2 S.C.R. 321, [1992] S.C.J. No. 63, 93 D.L.R. (4th) 346, 138 N.R. 1, J.E. 92-947, 55 O.A.C. 81, 12 C.C.L.I. (2d) 206, [1992] I.L.R. Â1-2848 at 1879, 39 M.V.R. (2d) 1, 34 A.C.W.S. (3d) 665

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106

Employment Standards Act, 2000, S.O. 2000, c. 41, s. 53 [as am.]

Human Rights Code, R.S.O. 1990, c. H.19, Part I [as am.], s. 45.2, (1)

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14, 14.05(3)

MOTION to stay an application for a declaration that the respondent's employment was terminated for valid business reasons.

Michael Shell, for responding party/applicant.

Denise Sayer, for moving party/respondent Dawn Millar.

Melvyn L. Solmon, for responding parties/respondents DioGuardi Tax Law, 4536410 Canada Inc. c.o.b. DioGuardi Tax Services and DioGuardi Criminal Tax LLP.

GOLDSTEIN J.: —

Introduction

[1] Dawn Millar was employed as a manager, tax resolutions for Power Tax Corporation ("Power Tax"). In January 2011, she went on maternity leave. She had her baby in February 2011. Power Tax asked her to come back early from maternity leave. She was unable to do so. Power Tax informed Ms. Millar in January 2012, a few days before she was scheduled to return to work, that her employment was terminated. She was told that there was a restructuring. She was paid severance in accordance with her employment agreement.

[2] Ms. Millar was certain that she had not been let go for business reasons. She believed it was an excuse to get rid of her because she took her full entitlement of maternity leave. Ms. Millar filed a complaint with the Human Rights Tribunal of Ontario ("HRTO"). She alleged discrimination on the basis of sex, including sexual harassment, pregnancy and gender identity, contrary to the provisions of Part I of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code").

[3] Power Tax subsequently brought an application to this court seeking a declaration that Ms. Millar had been let go for valid business reasons (the "application"). Ms. Millar now brings this motion to dismiss or permanently stay the application. She says it is an abuse of process, and that even if it is not this court should, in the alternative, exercise its discretion and stay it anyway to avoid a multiplicity of proceedings and the possibility of inconsistent results.

[4] I agree with Ms. Millar. The application is an abuse of process. For the reasons that follow, the application is permanently stayed.

(FULL DECISION CONTINUES — all paragraphs reproduced verbatim)

[51] The application is permanently stayed. If the parties are unable to agree on costs, they may each file a brief costs submission consisting of no more than two pages along with a bill of costs within 30 days of the release of this judgment.

Motion granted.

End of Document