COURT FILE NO.: CV-13-479193
DATE: 20141202
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gheorghe Barbu, Plaintiff
AND:
MMM Group Limited, Fernando Deluca Murray Shantz, Tara McMahon & Anna Ta, Defendants
BEFORE: Pollak J.
COUNSEL:
Gheorghe Barbu, self-represented Plaintiff
Paul Boshyk and Kristen Pennington (student), for the Defendants
HEARD: November 18, 2014
AMENDED ENDORSEMENT
[1] MMM Group Limited, Fernando Deluca Murray Shantz, Tara McMahon, and Anna Ta (the “Moving Parties”) bring this motion for summary judgment on the following grounds:
(a) The wrongful dismissal claim and the claim for wrongful/arbritary detention brought against them by Gheorghe Barbu (the “Plaintiff”) is time-barred by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitations Act”).
(b) Section 97(2) of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “Act”), and the doctrine of issue estoppel prevent the Plaintiff from commencing his wrongful dismissal claim.
(c) The Plaintiff’s claim discloses no cause of action and constitutes malicious prosecution.
[2] I agree with the submissions of the Moving Parties that the Plaintiff’s claims in 1(a) referred to above must be dismissed because they were commenced outside of the limitation period. The evidence on this motion, which was neither contradicted nor explained by the Plaintiff, shows that the Plaintiff commenced his claims outside of the limitation period set out in s. 4 of the Limitations Act. In addition, I agree with the Moving Parties’ submission that the Plaintiff’s claim for wrongful dismissal must be dismissed because of the doctrine of issue estoppel and by virtue of s. 97(2) of the Act, which 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. 2000, c. 41, s. 97(2).
[3] Pursuant to the Act, the Plaintiff made an earlier claim arising from his alleged termination of employment. This claim was dismissed because the Plaintiff was found to have resigned from his employment. Both the Act and the doctrine of issue estoppel prohibit the Plaintiff from now making a claim for wrongful dismissal.
[4] The Moving Parties also move for summary judgment dismissing the Plaintiff’s claim as being malicious prosecution. They bear the burden of proving that there is no genuine issue requiring a trial. The only evidence brought by the Moving Parties with respect to this issue was hearsay evidence: the human resources manager lacked personal knowledge of the matters to which she deposed.
[5] Although Rule 20.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), allows for use of affidavit evidence based on information and belief in summary judgment motions, I do not think that it justifies the exclusive use of hearsay evidence to prove the main issue in dispute, which is what occurred here. Such hearsay evidence is not sufficient for the Moving Parties to meet their burden of proof (see Hyrniak v. Mauldin, 2014 SCC 7).
[6] The Moving Parties have not presented the evidence necessary to justify the relief that they seek with respect to the claim for malicious prosecution.
[7] As an alternative argument, the Moving Parties submitted that the Plaintiff’s statement of claim is defective because the proper elements of the claim and the necessary material facts have not been pleaded. For the reasons that I gave in Court, this argument is properly the subject matter of a Master’s motion and was therefore not adjudicated before me.
[8] The Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region (Effective July 1, 2014) states:
G. Motions which must be brought before a Master
A master has jurisdiction to hear any motion in a proceeding except those specified in rule 37.02(2). Masters’ motions must be made to a master.
Unless the relief requested in the motion is within the exclusive jurisdiction of a judge, a motion returnable by attendance or in writing must be made to “the Court” and heard by a master.
Judges may refuse to hear any motion that is within the jurisdiction of a master.
[Emphasis added.]
[9] Should the Moving Parties wish to pursue this alternative relief, they must bring their motion before a Master.
Costs
[10] The Moving Parties have been partially successful on this motion: I have dismissed the claim for wrongful dismissal. The Moving Parties are therefore entitled to a cost award. If the parties are unable to agree on the cost award, they may make brief written submissions as follows:
The Defendants’ costs submissions must be delivered by 12:00 p.m. on December 16, 2014; and the Plaintiff’s costs submissions must be delivered by 12:00 p.m. on December 30, 2014. In accordance with what the Rules provide, the submissions should not exceed three pages in length.
Pollak J.
Date: December 2, 2014