COURT FILE NO.: CV-09-0158
DATE: 2013-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANGELIC ALLEN
Mr. K. Knutsen, Mr. D. Macgillivray and Mr. D. Lester, for the Plaintiff responding party
Plaintiff
- and -
VALI ORCHARD PHARMACY INC. AND SHOPPERS DRUG MART INC.
Mr. C. Colraine, for the Defendants, moving party
HEARD: November 16, 2012,
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion for Summary Judgment
[1] The plaintiff worked full-time for Vali Orchard Pharmacy Inc. with an hourly wage of $16.97 plus benefits. Vali Orchard Pharmacy Inc. in Thunder Bay is a franchisee of Shoppers Drug Mart Inc. Ms. Allen was dismissed from her employment with Vali Orchard Pharmacy Inc. on the grounds that she stole prescriptions dispensed to her by her employer.
[2] On August 3, 2007, Ms. Allen picked up prescriptions dispensed in her own name during the working day and stored them in her locker on the premises, pending payment before she removed them from the building. The plaintiff says that this practice was also adopted by other employees at the store and that it was condoned by the employer. However, her employer confronted her that day about not paying for the prescription. The plaintiff advised it was in her locker. She paid for the prescription in her locker before leaving work that the day.
[3] Ms. Orchard, who was the principal of Vali Orchard Pharmacy Inc., contacted the loss prevention officer for Shoppers Drug Mart, Mr. Curtis Talman, who purported to conduct an investigation concerning payment for the plaintiff’s prescriptions. Mr. Talman advised Ms. Orchard that he could not find computer confirmation of payment for Ms. Allen’s prescriptions dispensed in May and June, 2007. The cost of these prescriptions was $176.80. The plaintiff protested that she had paid for them and insisted repeatedly that she was not a thief.
[4] Mr. Talman and Ms. Orchard attended with the plaintiff on August 23, 2007 in what became a termination interview. During this interview, Mr. Talman made misleading and incorrect statements attesting to the reliability of the computer data he relied on to prove that the plaintiff had not paid for her May and June prescriptions.
[5] The plaintiff alleges that, contrary to Mr. Talman’s representations to her and to the Employment Standards investigator, two electronic accounting systems then used by Vali Orchard Pharmacy produced demonstrably contradictory or erroneous reports about payment for proven purchases. However, as the plaintiff often paid cash for her prescriptions, she could not prove she had paid for the prescriptions in question. Nevertheless, she asserted her innocence.
[6] Despite these peculiar circumstances, and despite the plaintiff’s 20-year employment record with the defendant or other local Shoppers franchises, the defendants decided to terminate the plaintiff’s employment.
[7] On August 23, 2007, she was escorted out of the building. She was 46 years old at the time.
[8] The plaintiff, who was unrepresented, complained to the Ministry of Labour, apparently claiming severance and termination pay. The Employment Standards branch conducted an investigation. No oral hearing was apparently conducted. The plaintiff contends that the investigator relied on Mr. Talman’s misrepresentations that the pharmacy’s computer system provided definitive proof that Ms. Allen had not paid for prescriptions when it was evident that the computer accounting systems were unreliable and produced contradictory results. She was not invited to reply to Mr. Talman’s incorrect representations about the veracity of the accounting systems. Indeed, it is doubtful that the investigator made her aware of them.
[9] Despite the frailties of the investigation and the seeming lack of due process, the plaintiff’s complaint was dismissed on February 23, 2009, shortly after the investigator spoke to Mr. Talman. The investigator’s letter dismissing the complaint advised the plaintiff she had 30 days from the date of service of the decision to appeal.
[10] On December 11, 2008, before the plaintiff’s complaint was dismissed, she was involved in a motor vehicle accident in which she suffered a serious brain injury. She was hospitalized until April 29, 2009 at which time she was discharged with significant care needs.
[11] The plaintiff’s time to appeal the dismissal of her complaint lapsed on March 25, 2009 when she was still in hospital. Nevertheless, her counsel issued a statement of claim for wrongful dismissal and other relief on April 7, 2009. Her counsel does not argue that the plaintiff’s lack of capacity was an issue at this time.
[12] The plaintiff claims against the defendants for damages in lieu of notice and benefits; reinstatement, punitive, exemplary and aggravated damages. In addition, she alleges that the defendants negligently or intentionally misrepresented facts to the Employment Standards investigator and conspired with each other to do so. The plaintiff also pleads that the defendant, Shoppers Drug Mart, intentionally interfered with her contractual relations with Vali Orchard Pharmacy.
[13] The defendants move for summary judgment dismissing the plaintiff’s claim related to termination of her employment because it is statute-barred under the provisions of s. 97(2) of the Employment Standards Act, S.O. 2000, c. 41.
The Law
[14] For the purposes of this motion, the court must consider Rules 20.04 (2) and (2.1) of the Rules of Civil Procedure:
(2) The court shall grant summary judgment if,
a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
weighing the evidence.
evaluating the credibility of a deponent.
drawing any reasonable inference from the evidence.
[15] The scope of the application of the amended summary judgment rule was interpreted by the Court of Appeal in Combined Air Mechanical Services v. Flesch, 2011 ONCA 764, 2011 CarswellOnt 13515. The court confirmed that the principles governing evidence on a summary judgment motion continue (para. 56) in accordance with previous case law. These are summarized in para. 5 of Royal Bank of Canada v. Tie Domi Enterprises Ltd., 2011 CarswellOnt 14412:
• The moving party bears the onus of persuading the court that there are no issues of material fact requiring a trial; and the resisting party must, as it is often said, “lead trump or risk losing,” in order to show that there are material facts requiring a trial and that it has a real chance of success at trial.
• The court is entitled to assume the evidence in the record is all the evidence the parties would rely on at trial.
[16] At para. 50 of Combined Air Mechanical Services, the court set out the following test for the motion judge:
…can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?
[17] The court also identified three types of cases that are amenable to the summary judgment process:
• where the parties agree to submit their case for resolution by way of summary judgment;
• where a claim or defence is without merit and will have no chance of success at trial; and
• where the motion judge is satisfied that issues can be fairly and justly resolved by resort to the expanded powers available to the motion judge, such as weighing evidence, evaluating credibility, and drawing reasonable inferences from the evidence.
See: paras 40 – 45.
[18] The defendants submit that this is a simple issue because, pursuant to s. 97(2) of the Employment Standards Act, R.S.O. 2000, c.41, the issue has been decided and is statute-barred. Section 97(2) states:
An employee who files a complaint under this Act alleging an entitlement to termination pay or severance pay may not commence a civil proceeding for wrongful dismissal if the complaint and the proceeding would relate to the same termination or severance of employment.
An exemption to this limitation occurs in s. 97(4) of the Act as follows:
Despite subsections (1) and (2), an employee who has filed a complaint may commence a civil proceeding with respect to a matter prescribed in those subsections if he or she withdraws the complaint within two weeks after it is filed.
[19] It is noteworthy that, unlike the Ontario Act, s. 168(1) of the Canada Labour Code, RSC., 1986, c. L-2, preserves the right to sue civilly despite the making of a complaint under the federal legislation.
[20] The courts have held that, in special circumstances, the court can exercise its discretion to extend the time for withdrawal of the complaint under the Ontario legislation. For example, in Scarlett v. Wolfe Transmission Ltd., 2002 CarswellOnt 3917 (S.C.J.), the court granted an extension of about two months when the employee intended to sue civilly within the two-week period and withdrew the complaint before the deadline set by the Employment Standards officer. In that case, there had been no investigation or adjudication by the officer.
[21] There are no reported cases in which this discretion has been exercised when a decision has been rendered by the tribunal.
Discussion
[22] The plaintiff has not moved in this court for an extension of time to withdraw her application, now adjudicated by the Employment Standards process. Nor has she moved for an extension of time for appeal. Thus, I make no finding as to whether special circumstances exist in her case warranting the court’s intervention, despite the adjudication. Nor do I make any finding as to whether the principle of issue estoppel applies in this case.
[23] It is unfortunate that the plaintiff’s original complaint has been lost. It is impossible to say with certainty what relief she sought pursuant to the Employment Standards Act. We are only left with the investigator’s summary of the relief sought in her reasons for decision dismissing the plaintiff’s complaint: termination pay and severance pay.
[24] It is evident that the Legislature intended to put an aggrieved employee or former employee to an election as to whether to proceed with a civil suit for wrongful dismissal or to use the summary procedure contemplated under the Employment Standards Act. The Act established a summary procedure for the adjudication of disputes between employers and employees. The defendants conceded in argument that there is an underlying assumption that a successful plaintiff would do better at common law but noted the following advantages of a summary procedure using the tribunal:
• the aggrieved employee does not require a lawyer;
• the process is designed to deal with complaints from a modest earner;
• the tribunal can evaluate the issue of dismissal for cause; and
• the employee avoids the risk of costs that would follow an unsuccessful civil claim.
[25] I infer, as well, that the process was intended to be expeditious.
[26] The case at bar is not, however, pleaded simply as a wrongful dismissal. The plaintiff has, in addition, pleaded that the defendants have committed intentional free-standing torts including negligent misrepresentation or intentional misrepresentation, conspiracy, and intentional interference with economic relations. Appended to these claims are claims for punitive, exemplary and aggravated damages.
[27] In my view, the scheme of adjudication contemplated by the Employment Standards Act was never intended to be a substitute court with jurisdiction to entertain cases involving intentional torts or other relief not sanctioned by its enabling statute. The relief contemplated in the Act is narrow: limited to awarding termination pay or severance pay. The intentional torts pleaded are independent claims arising from but independent of the plaintiff’s dismissal. The fact of the dismissal is not in dispute. It is the circumstances leading up to the plaintiff’s dismissal and during the investigative phase following it that call into question whether the defendants, or either of them, committed the intentional torts pleaded. These claims must be evaluated against a full evidentiary record that is only available at trial.
[28] Thus, I do not agree that the case is as simple as the defendants suggest: that the plaintiff is statute-barred by the Act.
[29] Against this background, I am not prepared to hold at this time that the plaintiff’s civil law cause of action is barred by the statute. The other independent claims will proceed to trial in any event. The evidence will be the same for all of the claims and the mischief sought to be avoided by the Act, ie. the duplication of proceedings, does not arise. The trial judge can determine whether the civil law action for severance should be barred by the Act at the same time as adjudicating on the independent causes of actions.
[30] Accordingly, the defendants’ motion for summary judgment is dismissed.
[31] If the parties cannot agree on costs, either may apply to the trial coordinator within thirty days for an appointment to argue same. If no appointment is taken out within thirty days, costs will be deemed to be settled. Counsel have leave to appear by teleconference on the costs motion if so advised. Costs briefs are not to exceed five pages.
Regional Senior Justice H.M. Pierce
Released: February 04, 2013
COURT FILE NO.: CV-09-0158
DATE: 2013-02-14
ONTARIO
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANGELIC ALLEN
Plaintiff
- and –
VALI ORCHARD PHARMACY. and SHOPPERS DRUG MART INC.
Defendant
REASONS ON MOTION FOR SUMMARY JUDGMENT
Pierce, RSJ
Released: February 04, 2013
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