ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-26113
DATE: 2013/12/13

BETWEEN:

THOMAS KURTZ

M. J. Bates, for the Plaintiff

Respondent/Plaintiff

• and -

CARQUEST CANADA LTD., GENERAL PARTS, INC. AND GENERAL PARTS INTERNATIONAL, INC.

K. D. MacNeill, for the Defendants

Moving Party/Defendants

HEARD: 15 November, 2013

The Hon. Mr. Justice J.C. Kent

RULING ON MOTION

1The defendants seek an order pursuant to Rule 56.01(1)(a) requiring the plaintiff to post security for costs, the plaintiff being ordinarily resident in the State of California in the United States of America. In their notice of motion, the defendants seek the sum of $80,000, but in submissions counsel for the defendants reduced the request to an amount in the range of $35,000 to $50,000.

2This matter is well advanced, discoveries having been completed. A trial date, when it is set, will probably be within the first six months of 2014.

3The defendants terminated the plaintiff’s employment on 10 January 2011, alleging unsatisfactory performance as the cause for his termination. The plaintiff’s statement of claim was issued 10 March 2011. He seeks damages for wrongful dismissal, for breach of contract as well as other remedies.

4Although the plaintiff may have some limited ability to access credit in a modest amount, he has had difficulty meeting the demands of his creditors in the past and the present. His current employment as a limousine driver pays $8 per hour with $12 per hour for overtime and $16 per hour for double time when extra hours are available. His assets are modest.

5The plaintiff cannot establish impecuniosity. Clearly, however, he is not in a position to post $35,000 to $50,000 without very significant hardship if he is able at all.

6In the circumstances, the court is required to consider what degree of merit the plaintiff’s claim may have as well as the overall justice of the case.

7It is possible that the conduct of the defendants may have significantly contributed to the plaintiff’s sad financial state of affairs. The defendants transferred and moved the plaintiff from the U.S. to Canada to work for them. His employment status was such that he could not work in Canada for anyone other than the defendants. The defendants denied the plaintiff’s the benefits of its “expatriate policy” maintaining that the benefits of that policy were not available to an employee dismissed for cause. A copy of that policy is located at Tab 1(a) of the Motion Record of the respondent. The policy does not specifically state that its benefits are not available to an employee dismissed for cause. In a decision in this court delivered 29 March 1994, by O’Connor, J. a motion for security for costs was dismissed where the plaintiff claimed that its impoverishment was caused by the act of the defendant about which the complainant complained in the action. See: Solcan Electric Corporation v. Viewstar Canada Inc. (1994) Carswell Ont. 505.

8It must also be noted that in many wrongful dismissal cases employers are unsuccessful in establishing cause, particularly when the cause alleged is unsatisfactory performance. See: Echlin, Just Cause 1-6, 15-6.1 to 15-7.

9Having considered the foregoing I am persuaded that there is merit to the plaintiff’s claims.

10While a trial will be required to ultimately determine the ultimate merits of the plaintiff’s claims, they do appear, at this point to have a some degree of merit. Both the plaintiff and the defendants will have significant costs as they continue to “ramp up” for trial. Much has been said in recent times about the significant costs of all litigation and the need of individuals to be able to have access to justice.

11Requiring the plaintiff to borrow $35,000 to 50,000 will most certainly make it more difficult for the plaintiff and his counsel to be ready for trial and seriously risks that this case will terminate without any judicial consideration of the plaintiff’s claims.

12For all of these reasons the defendants’ motion must be dismissed.

13One would expect that the proper order for costs in this instance would be that costs are to be to the plaintiff in the cause. If counsel do not agree, they are at liberty to make written submissions not exceeding 3 pages, together with a costs outline. Successful party within 14 days of the release of these reasons, response within 14 days thereafter and reply, if any, within 7 days after the response.

Kent, J.

Released: 13 December, 2013

COURT FILE NO.: CV-11-26113
DATE: 2013/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THOMAS KRUTZ

Respondent/Plaintiff

• and -

CARQUEST CANADA LTD., GENERAL PARTS, INC. AND GENERAL PARTS INTERNATIONAL, INC.

Moving Party/Defendants

REASONS FOR JUDGMENT