Bartholomew v. Coco Paving and LeFarge, 2015 ONSC 456

PETERBOROUGH COURT FILE NO.: 148/10CP

DATE: 20150121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Freeman Bartholomew

Plaintiff

– and –

Coco Paving Inc.

LeFarge Canada Inc.

Defendants

Ian Wilson, for the Plaintiff

Soma Ray-Ellis, for Coco Paving

John Field, for LeFarge Canada Inc.

HEARD: May 29, 2013 and handwritten Endorsement of October 23, 2013

REASONS

EDWARDS j.:

Overview

[1] The plaintiff seeks an order that would allow him to amend his already amended statement of claim, the effect of which would be to broaden the definition of the proposed class in this class action proceeding. The amendment sought would also have the effect of extending the proposed class period. I released a handwritten endorsement on October 23, 2013 that allowed the amendment which broadened the definition of the proposed class, but did not allow that part of the amendment to the proposed amended statement of claim that would have extended the proposed class period. My handwritten endorsement also provided for a timetable that would ultimately have led to the certification motion being heard by me during the week of January 20, 2014.

[2] Since the release of my handwritten endorsement I have been advised that counsel for LeFarge Canada Inc. (“LeFarge”) has delivered a Notice of Appeal.

[3] I met with counsel at a case conference in Oshawa in December 2014 to respond to their request for my expanded reasons. I indicated to counsel that knowing a Notice of Appeal had been served I wished submissions as to whether it was appropriate now for me to release more detailed reasons knowing that an appeal was pending. All counsel agreed that they had no difficulty with the release of my more detailed reasons contemplated by my handwritten endorsement. I advised counsel that the delay in my more detailed reasons, which now follow, were in no way the fault of counsel and were regrettably an oversight on my part. What follows now are my more detailed reasons contemplated by my handwritten endorsement.

The Facts

[4] The plaintiff as of July 2010 is described in the initial statement of claim as a 40 year old individual, employed initially at an asphalt plant near Peterborough by a company known as Northland Bitulithic. The plant at Northland Bitulithic was purchased by the defendant LeFarge in 1998, and the plaintiff’s employment continued with LeFarge until June 1, 2009 when the LeFarge plant was sold to the defendant Coco Paving Inc. (“Coco”). As an employee of LeFarge and Coco the plaintiff performed various duties which are described in the initial statement of claim, including those of being a scale operator and dispatcher as well as some clerical and other office duties. It is stipulated in the statement of claim that the plaintiff’s duties were carried out at the plant, and that he did not work at any of the defendant’s customers temporary work sites where the paving or other construction activity took place.

[5] The defendants Coco and LeFarge are Ontario companies, which are described in the statement of claim as carrying on the business of manufacturing or preparing asphalt and/or cement at permanent facilities, together with paving and other construction activities carried on at many temporary private and public construction sites throughout Ontario.

[6] In order to understand the decision reached in my handwritten endorsement of October 23, 2013, an understanding of the history of this action is necessary. The plaintiff commenced the proposed class proceeding on July 7, 2010. The statement of claim was not served until December 13, 2010. The delay in service was caused as a result of the delay in the plaintiff’s Funding Application at the Law Foundation.

[7] In the original statement of claim of July 7, 2010 the proposed class included, but was limited to, individuals employed at the defendant’s “cement and asphalt plants” in Ontario.

[8] On February 4, 2011, the plaintiff amended the statement of claim by adding language to the proposed class that would then read it was limited to individuals employed at the defendant’s cement and asphalt plants in Ontario and “other off-site locations”.

[9] What the amendments of February 4, 2011 did not do, was to expand the proposed class to include individuals who were employed at facilities producing materials other than asphalt or cement, or to facilities at which no such materials were being produced.

[10] With the amendments to the statement of claim, in the amended statement of claim of February 2011, the proposed class continued to be limited to individuals employed at the defendant’s locations at which either asphalt or cement was produced.

[11] On October 13, 2011, the plaintiff delivered a further amended statement of claim in which the plaintiff deleted all references to cement. The proposed class was, therefore, narrowed to include only those individuals who were or are employed at the defendant’s asphalt plants.

[12] On October 25, 2011, plaintiff’s counsel served a motion record for certification. The notice of motion, affidavit, supporting affidavit and supporting factum all confirmed that the proposed class was limited to individuals who were employed at the defendants’ asphalt plants.

[13] Prior to my involvement as the designated class proceedings judge, Shaughnessy J. had assumed that role in the latter part of 2011. On April 17, 2012, the first case conference in this proposed class action took place by teleconference and a timetable was ordered, on agreement of counsel, by Shaughnessy J. for the return of the plaintiff’s motion for certification. A return date for the motion for certification was set for January 30 and 31, 2013.

[14] The defendants served their joint responding parties motion record on July 10, 2012. The defendants’ responding motion record was prepared on the basis that the proposed class was confined to asphalt plant employees at the defendant’s asphalt plants.

[15] The plaintiff served a reply affidavit on September 30, 2012. This affidavit did not contain any reference to additional proposed class members, other than the proposed class of employees alleged to be working at the defendants’ asphalt plants.

[16] With the delivery of the plaintiff’s reply affidavit, cross-examinations on all of the affidavits filed by the parties took place in November 2012. During the course of those cross-examinations, plaintiff’s counsel indicated that he intended to expand the proposed class definition to include a new group of individuals in the proposed class, specifically “aggregate plant site” employees.

[17] Plaintiff’s counsel asserts in his factum that the plaintiff seeks to amend the claim in the motion before me to make it abundantly clear that the definition of the class on certification is “as has always been intended, primarily a location-based one in order to address the obvious issue of section 13 of Regulation 285/01”.

[18] The aforesaid assertion in the plaintiff’s factum needs to be contrasted with an exchange that took place during the course of the cross-examination of Mr. Passalacqua, where at the commencement of the cross-examination plaintiff’s counsel repeated his intention to amend the statement of claim. During this cross-examination, plaintiff’s counsel indicated that he was going to seek the amendment because he had “neglected” to “update” the proposed class definition prior to the exchange of the parties various affidavits.

[19] With the completion of the cross-examinations, plaintiff’s counsel sent what is described as an updated notice of motion to the defendant’s solicitors on November 29, 2012. The updated notice of motion included a change in the proposed class definition to include employees at the defendants’ asphalt “or aggregate plant sites”.

[20] With the delivery of the updated notice of motion defence counsel sought a further case conference with Shaughnessy J., which then ended up being heard by me in January 2013 after my appointment as the replacement for Justice Shaughnessy.

[21] On January 9, 2013, the plaintiff’s solicitor emailed to defence counsel a purported second further amended statement of claim which would have defined as member of the proposed class employees from virtually all of the defendant’s facilities and locations except those at the site of road building. Specifically, paragraph eight of the proposed second further amended statement of claim provided:

Paragraph 8:

Accordingly, the proposed class is defined as “all current or former non managerial, non unionized, hourly paid employees of the defendants who, during the class period described in at paragraph 1(a) above, predominantly carried out their duties at the defendants permanent manufacturing or preparation facilities or at office locations throughout Ontario, and not at the site of road building”.

[22] Significantly, in relation to the aforesaid proposed amendment in paragraph eight, which references paragraph 1(a) to establish the class, it is important to note that the class period in paragraph 1(a) is said to commence July 8, 2008. Thus, as of January 9, 2013 there was no suggestion that the proposed class period was anything other than July 8, 2008.

[23] Subsequent to the January 10, 2013 case conference the plaintiff, through plaintiff’s counsel by letter dated January 16, 2013, wrote to defence counsel indicating that not only was the further amended statement of claim seeking to expand the proposed class but also to enlarge the class period. In his letter of January 16, 2013 plaintiff’s counsel stated:

Please note that the as yet unissued Second Further Amended Claim included in the Motion Record at Tab 3 has been revised from what was provided on January 9, 2013 before the Case Conference in that, firstly, the words ‘after September 4, 2001’ have been added to sub paragraph 1(a),…

[24] A further case conference took place before me on January 31, 2013, at which time I ordered a timetable for the motion by the plaintiff to seek leave to amend his further amended statement of claim. The timetabling order required the plaintiff to serve his motion record for the amendment to the statement of claim by March 25, 2013. A motion record was not filed by March 25, 2013. Plaintiff’s counsel indicated on March 25, 2013 that he intended to add other requests for his relief in his motion which was returnable on May 29, 2013.

[25] A further case conference took place before me on April 10, 2013, at which time plaintiff’s counsel provided to counsel for the defendant what was described as a plaintiff’s brief, which included a draft notice of motion returnable May 29, 2013 seeking the following relief:

(a) an order severing this proceeding into separate actions against each of the two defendants;

(b) an order permitting the plaintiff to file a fresh statement of claim in each new action, and in the alternative a fresh statement of claim if the proceeding is not severed;

(c) an order compelling the defendants to provide the plaintiff with their best estimate of the number of their respective Ontario employees who are members of the class as defined by the fresh amended statement of claim;

(d) an order compelling the defendants to deliver pre-certification notice to each of its respective present and past employees who subsequent to September 4, 2001 met the class criteria proposed by the plaintiff.

[26] At the case conference of April 10, 2013, I ordered plaintiff’s counsel to serve his motion record by April 12, 2013. The motion record was served on April 12, 2013. The only relief sought in the notice of motion, contrary to the information supplied in the plaintiff’s brief on April 10, 2013, was an order permitting the plaintiff to file a fresh amended statement of claim and an order compelling the defendants to provide the plaintiff with their best estimate of the number of their respective Ontario employees who are members of the class as defined by the fresh statement of claim. The only relief that was actually sought at the hearing of the motion on May 29, 2013 was the relief sought with respect to the amended statement of claim. All of the other relief was abandoned by plaintiff’s counsel during the course of the hearing of the motion.

Position of the Plaintiff

[27] Dealing first of all with the amendment to the statement of claim that would alter the definition of the class, plaintiff’s counsel asserts that the statement of claim requires further clarity in defining the class so as to:

Make more apparent the rational connection with manageable common issues, and to address other potential concerns implied from further information which was not in the plaintiff’s position until late 2012.

In essence, the position of the plaintiff as it relates to the change in the definition of the class is that the amendment is to clarify and make abundantly clear that the definition of the class on certification is as has always been intended, primarily a “location-based one; in order to address the issues of section 13 of Regulation 285/01”.

[28] As to the change in the proposed class period from July 8, 2008 to September 4, 2001, plaintiff’s counsel argues that the initial statement of claim, which would have been drafted by him, should “prudently” not have limited the period to two years prior to the issuance of the statement of claim. Plaintiff’s counsel now argues the discoverability exception to the limitation period. In his oral submissions to me reduced to writing, plaintiff’s counsel states:

The fact that the plaintiff realizes the mistake, and wants to amend as of January 2013 well prior to any defence and to the certification motion, causes no great prejudice to the defendants.

[29] In essence, the extension of the class period that is now sought by plaintiff’s counsel is an extension, which on his own admission was caused by an imprudent pleading in the initial statement of claim limiting the period to two years prior to the issuance of the claim, and the fact that the plaintiff has now realized his mistake.

Position of the Defence

[30] As it relates to the expansion of the class as distinct to the expansion of the proposed class period, defence counsel argues that what has occurred through the various machinations of various drafts of statement of claim and notices of motion amounts now to an abuse of process on the part of the plaintiff. Defence counsel argues that the plaintiff is seeking leave to amend the statement of claim for an improper purpose, and without any evidence to support the motion to amend. In essence, it is argued that the amendment now sought is for no other reason than to gather evidence regarding the nature of the proposed expanded class.

[31] As to the extension of the class period retroactively to September 2001, defence counsel argues that on a Rule 26.01 motion the court can, in a situation like the one before this court, refuse an amendment where there has been the passing of the limitation period. It is argued that the court can presume prejudice to the defendants by the passing of a limitation period, which is critical to a determination of a Rule 26.01 motion to amend.

Analysis

[32] As I indicated in my handwritten endorsement of October 23, 2013, I was satisfied that it was appropriate to allow the plaintiff’s proposed amendments so as to clarify and broaden the definition of the proposed class as set forth at paragraph 20 of the proposed fresh as amended statement of claim.

[33] On a Rule 26.01 motion to amend the case law is quite clear; that an amendment shall be granted on such terms as are just unless prejudice could result that cannot be compensated for by costs for an adjournment. Counsel for the defendants argued that what has occurred since the issuance of the plaintiff’s statement of claim, through the various machinations of the amendments made by the plaintiff to the initial statement of claim, is nothing more than an abuse of process. I agree with counsel for the defendants that the court does have an inherent jurisdiction to prevent such an abuse of process, but I am not satisfied that what has occurred here amounts to such an abuse.

[34] In reality what has occurred is, in my view, plaintiff’s counsel focusing in on the true nature of the claim now being made by his client. I agree with plaintiff’s counsel that in essence, the statement of claim as initially drafted and providing a definition of the proposed class was a location-based class definition. That class definition has clearly changed with the focusing of plaintiff’s counsel on this issue, and I am not prepared to find that the actions of the plaintiff and/or plaintiff’s counsel amount to an abuse of process that would warrant this court exercising its inherent jurisdiction to deny the relief sought to amend the definition of the class as now defined in the draft amended statement of claim.

[35] As to the class period and whether or not the limitation period was discovered at the time of the issuance of the initial statement of claim, that in my view is an entirely different issue. I indicated in my handwritten endorsement that with the issuance of the initial statement of claim, in its original form, the plaintiff had pleaded that the proposed class period began on July 8, 2008, that is two years prior to when the statement of claim was issued. In my handwritten endorsement I indicated that effectively, the plaintiff had acknowledged by this pleading that the governing limitation period was two years. I further indicated that if the limitation period was accepted by the plaintiff for the class definition as originally pleaded, it was difficult to now accept the plaintiff’s argument that the limitation period should be different for the broadened definition of the proposed class.

[36] Plaintiff’s counsel, in his written version of his “Oral Submissions”, states that the limitation period on the issue of discoverability is a matter for trial. Counsel for the defendants take the position that a limitation issue may be dealt with in a motion to amend a pleading if it is plain and obvious from the pleading that no additional facts can be asserted to show the limitation has not expired. See Dugal v. Manulife Financial Corp., 2011 ONSC 1764, [2011] O.J. No. 1240 (S.C.J.), at paragraph 38.

[37] A new Limitations Act was passed in 2002. Under the new Limitations Act, a person is presumed to have discovered the claim on the day that the act or omission on which the claim is based took place unless the contrary is proven. As such, pursuant to the provisions of section 5(2) of the Limitations Act 2002, S.O. 2002, c. 24, it is presumed that the limitation period will begin to run on the day that the act or omission occurred.

[38] The statement of claim in this matter was issued on July 7, 2010. The statement of claim as originally issued adverts, in my view, to a clear understanding that the two year limitation period provided for in the Limitations Act applied to the proposed class. This can be readily inferred by reference to paragraph 1(a) of the statement of claim which pleads:

The plaintiff claims, as against a defendant employing a member of the plaintiff class during the relevant period, either Coco Paving Inc. or LeFarge Canada Inc. or both:

(a) for each member of the plaintiff class, the sum of one half hour of pay times each member’s then regular rate of pay, for each hour worked by a member on behalf of a defendant in excess of 44 hours, in any of the weeks following July 8, 2008 and ongoing, for which such member has not yet been paid, as required by the Overtime Pay provisions in Part VIII of the Employment Standards Act 2000, S.O. 2000 c. 41 (“The Act”). [Emphasis added]

[39] Plaintiff’s counsel asserts that it was not open to the plaintiff to discover their claims, and as such the limitation period does not commence until September 2001. The plaintiff has placed no evidence before this court to support the suggestion that the plaintiff and proposed class were unable to discover their claims on the date which they took place. In fact to the contrary, the original statement of claim contemplated a two year limitation period which commenced on July 8, 2008, i.e., exactly two years prior to the issuance of the original statement of claim.

[40] The proposed amendment as it relates to effectively extending the limitation period back from July 8, 2008 to September 4, 2001 creates clear prejudice to the defendants. No evidence with respect to such prejudice is required as the court can infer prejudice by reason of the expiry of the limitation period. For these reasons, and as I indicated in my initial handwritten endorsement, the plaintiff’s motion insofar as it seeks to amend the statement of claim to assert a limitation period in September 2001 is denied. The motion to expand the definition of the class itself is granted. The other relief sought in the plaintiff’s notice of motion, as I indicated in my handwritten endorsement, was abandoned by Mr. Wilson during the course of oral argument and is now accordingly dismissed.

[41] With the release of these more extensive reasons counsel will indicate whether or not they intend to pursue their rights with respect to an appeal. If no appeal is actually pursued I will then entertain submissions with respect to the costs of the motion, and will also entertain submissions from counsel with respect to a further case conference to organize a timetable for the hearing of the certification motion.

The Honourable Mr. Justice M.L. Edwards

Released: January 21, 2015 ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­