COURT FILE NO.: CV-15-527629 & CV-13-472403

DATE: 20151222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER MAZZA

Plaintiff

– and –

ORNGE CORPORATE SERVICES INC. formerly known as ORNGE PEEL LTD., ORNGE and ORNGE GLOBAL REAL ESTATE INC.

Defendants

Alfred Schorr, for the Plaintiff

Jeffrey E. Goodman and Allison E. MacIsaac, for the Defendants

-and-

Courtney Raphael, for the Defendants

HEARD: September 15, 2015

REASONS FOR JUDGMENT

s. f. dunphy, j.

[1] This is a motion for summary judgment brought by the defendants seeking to dismiss claims by their former CEO, the plaintiff Dr. Christopher Mazza, relating to the termination of his employment. The moving parties also seek to consolidate this action with a related proceeding in which one of them is plaintiff.

[2] Dr. Mazza was once employed by the defendant Ornge Corporate Services Inc., referred to hereafter as “Peel” (one of its former names). Peel’s business had been that of providing management outsourcing services to Ornge, a non-profit corporation. Dr. Mazza was CEO of both. In 2011, a corporate re-organization resulted in Dr. Mazza entering into a new employment contract with a company known as Ornge Global GP Inc. (or “Global”). Global was the general partner of a business known as Ornge Global Holdings LP (or “Global LP”). Dr. Mazza held an indirect 51% equity interest in Global LP.

[3] Global’s business was intended to branch out to include various “for profit” businesses that the partners hoped to pursue in addition to its main business being that of providing outsourced management services for Ornge and its affiliates. Dr. Mazza became CEO of Global in 2011 and Global in turn was paid a management fee for providing Dr. Mazza’s services as CEO to, among others, Ornge and Peel. Dr. Mazza was paid by Global and, in addition, had an indirect share (through his interest in Global LP) in the management fees paid by Ornge and its related entities for Dr. Mazza’s services.

[4] Just over a year later, Global and Global LP were placed into bankruptcy amid intense public scrutiny of the fees and bonuses paid to managers of Ornge and its affiliates derived from public monies. Dr. Mazza lost his employment, Global and Global LP lost their management fees and both companies were liquidated by the Trustee. Dr. Mazza did not get the severance payments provided for under his 2011 contract with Global and instead found himself on the receiving end of various collection actions by his former employers to collect significant employee loans that had been advanced to him over the years.

[5] Dr. Mazza has sued Ornge and various of its affiliates for the significant severance payments provided in his employment contract with Global on the theory that the defendants were all common employers and that they conspired to misuse the bankruptcy process to defeat his legitimate claims under his employment contract. The defendants have brought this motion for summary judgment seeking to strike his claims in their entirety. They allege the tort claims are a collateral attack on the bankruptcy orders made. They claim the contracts that he freely entered into with the benefit of sophisticated independent legal advice clearly provided that Dr. Mazza’s employer was Global and Global alone. Finally they plead that the release of claims under his employment contract negotiated with the Trustee of Global operates to their benefit as well even if they were considered jointly liable as common employers (which status they deny) and Dr. Mazza’s claim must therefore be dismissed in any event.

[6] In my view the defendants/moving parties are entitled to succeed on each of these arguments and summary judgment must accordingly be granted.

[7] The defendants clearly contracted with Global as an independent outsourcing contractor. Dr. Mazza was certainly well aware of this from having actually signed the relevant contracts in his capacity as CEO of the defendants. He was also potentially a very significant beneficiary of the new structure put in place at that time through his indirect 51% partnership interest in Global LP. Dr. Mazza cannot now repudiate the effects of a structure that was at least partly his own handiwork and claim that the defendants were common employers without a shred of evidence that might justify a finding of non est factum or unconscionability. In the absence of credible evidence of such matters, there can be no injustice in holding him to the express terms of the contract he freely negotiated with independent legal advice. In addition, by negotiating a release of claims under his employment contract with the trustee in bankruptcy of Global, Dr. Mazza necessarily released all those who might have been jointly liable with Global under that same contract. For this additional ground his attempt to enforce his employment contract against the defendants as if they were jointly liable under it must also fail. Finally, the tort claims advanced by Dr. Mazza against the defendants each rely upon two alleged facts (alleged fraudulent debt of the petitioning creditor and alleged solvency of Global and Global LP) that are directly and expressly contrary to the findings made by the bankruptcy court against Global and Global LP in issuing the bankruptcy orders. These findings cannot be re-litigated in a different proceeding. Dr. Mazza’s claims must be dismissed and the remaining actions (being the counterclaim in his action plus the defendants’ claim in the related action) must be consolidated in a rational fashion to enable them to be tried and decided together.

[8] Dr. Mazza made the unusual strategic choice of filing virtually no evidence of his own to back up any of the claims made in his statement of claim. Genuine issues requiring a trial must be established by way of admissible evidence and cannot simply be presumed to be inferred from unproven pleadings nor from a bulk dumping of evidence from another proceeding as an exhibit to another affidavit to which little weight can be attached as regards controversial matters at least.

[9] My more detailed reasons follow.

Overview and Factual Background

(a) The outstanding litigation and description of motion

[10] There are two separate litigation matters outstanding. The first action, chronologically at least, is that of Peel. Peel has brought a claim against Dr. Mazza for repayment of a July 27, 2010 loan in the amount of $500,000. The loan was made to Dr. Mazza at a time when he was its CEO to assist him in purchasing his home. This first action (CV-13-472403) is hereafter referred to as the “Peel Action”.

[11] Dr. Mazza defended the Peel Action with a statement of defence and counterclaim. He claimed that the $500,000 loan was actually “the means by which Ornge paid to him” the after-tax portion of his performance awards for 2009 and 2010 under a long-term incentive plan (or “LTIP”). He claims these amounts should have been paid to him in 2011 when his employment was transferred from Peel to Global on January 1, 2011. In addition to claiming the right to set-off the LTIP amounts against the loan and denying that the loan agreement and promissory note he executed reflected the actual transaction agreed between the parties, he counterclaimed for the full amount of the two mentioned performance awards plus aggravated and punitive damages.

[12] In action CV-15-527629[^1] (the “Mazza Action”), Dr. Mazza as plaintiff seeks a declaration that the defendants were common employers and under common effective control with Global. The claim seeks $4,000,000 in damages for wrongful dismissal, breach of contract, inducing breach of contract, conspiracy to injure and interference with economic relations against the defendants. These claims arise from an alleged conspiracy falsely to allege indebtedness of Global to the defendant Ornge Global Real Estate Inc. (or “OGRE”) and the insolvency of Global in order to file a Petition in Bankruptcy which resulted in the employment of Dr. Mazza being terminated by operation of law. The damages alleged to flow from this conspiracy as well as common employer status are the amounts alleged to be due upon a termination without cause under the terms of the written employment agreement between Dr. Mazza and Global (totalling $2,645,500) plus approximately $1,000,000 in bonuses and incentives arising from the prior contractual relationship with Peel. The bonus amounts claimed are the same amounts claimed by way of counterclaim in the Peel Action and thus duplicative (to that degree) of the counterclaim. In addition damages for mental distress ($100,000) and punitive damages ($100,000) are also claimed.

[13] The Ornge defendants defended the Mazza Action and allege, among other things, cause for the termination of his employment. They filed a counterclaim against Dr. Mazza seeking damages for breach of fiduciary duty, punitive damages of their own as well as various tracing remedies.

[14] The Ornge defendants filed two identical Notices of Motion (one in each of the two actions). The Notices of Motion each seek an order granting summary judgment in favour of the defendants dismissing the Mazza Action in its entirety or, in the alternative, an order consolidating the Mazza Action with the Peel Action or, in the further alternative, an order that these two actions be tried together. The counterclaim of the Ornge Defendants in the Mazza Action as well as the entire Peel Action would be unaffected by the relief claimed in these motions beyond the impact, if any, of consolidation. That being said, a dismissal of the Mazza Action would not fail to impact the counterclaim of Dr. Mazza in the Peel Action given the overlap between the claims he has chosen to advance in these two separate proceedings as regards his alleged LTIP entitlements.

(b) The parties and factual background

[15] Dr. Mazza became CEO of Ontario Air Ambulance Service Corporation from its incorporation in 2004. He had been involved in various predecessor air ambulance operations since 1996 and played a leadership role in consolidating these various Ontario air ambulance services into what became OAASC in 2004. He had a written employment agreement with OAASC dated April 1, 2005.

[16] OAASC was subsequently re-named “Ornge” (one of the defendants herein). Ornge is a charitable, non-share capital corporation under the Canada Corporations Act. All or substantially all of the revenues of Ornge are derived directly or indirectly from Ontario government funding of the health care system in Ontario, although nothing turns on that detail for present purposes.

[17] As of July 1, 2007, Dr. Mazza’s employment agreement was transferred from Ornge to Peel. At that time, Peel provided management services for the Ornge group of companies under an outsourcing arrangement. Peel and OGRE were both wholly-owned subsidiaries of Ornge but were for-profit corporations and subject to a different reporting regime.

[18] Under Dr. Mazza’s stewardship, Ornge and its affiliates underwent a further substantial reorganization in or about 2010. The goal appears to have been to create an additional degree of separation between the for-profit and the non-profit charitable structures within the Ornge group and to create a for-profit structure to pursue revenue sources outside of Ontario. Along the way, Dr. Mazza and other executives ended up with indirect ownership of substantial equity interests in the for-profit enterprises. Dr. Mazza’s share was an indirect 51% equity ownership in Global LP.

[19] The non-profit side of the family tree that remained after this re-organization consisted primarily of Ornge and its subsidiary OGRE (which latter company owned the building containing Ornge’s head office).

[20] The for-profit side of the resulting structure was organized under Global as general partner for Ornge Global Holdings LP (or “Global LP”). Substantially all of the equity interest (99.9%) of Global LP was in turn held by Ornge Global Management Inc., the company in which Dr. Mazza held a 51% equity interest.

[21] Peel, formerly a wholly-owned subsidiary of Ornge, was transferred to Global LP under an arrangement that entitled Ornge to call the shares back. The call option was exercised by Ornge on or about January 11, 2012 and the shares of Peel were transferred back to Ornge as of that time. Peel was thus a wholly-owned subsidiary of Global LP from January 1, 2011 until on or about January 11, 2012 and of Ornge before and after those dates.

[22] The following is a simplified chart showing the corporate structure of the “for profit” side of the Ornge group after the 2011 re-organization until shortly before the 2012 bankruptcy proceedings described below:

[23] The 2011 reorganization produced two agreements that are material to the cases before me: the Master Management Agreement between Ornge and Global and the Employment Agreement between Global and Dr. Mazza.

(i) Master Management Agreement

[24] Effective as of January 1, 2011, Global entered into a Master Management Agreement (or “MMA”) with Ornge. Dr. Mazza was one of two signatories to the MMA on behalf of Ornge and was CEO of both companies that were party to the agreement. Pursuant to the MMA, Ornge out-sourced its management, including the role of CEO fulfilled by Dr. Mazza, to Global as “Manager” for the fees provided for therein. Among the more material terms for the purposes of this litigation:

s. 1.5 – Entire Agreement clause excludes any other agreements, representations etc., whether written or oral relating to the subject-matter of the MMA.

s. 2.2(j) – Global to provide named senior management personnel including Dr. Mazza as CEO, described as a “Designated Manager”.

s. 2.6 – “Designated Managers” (including Dr. Mazza as CEO) to be made available to fill their respective positions, “the Designated Managers shall at all times remain employees of the Manager and, accordingly, Ornge will not be responsible for providing any benefits, pension or other perquisites of the Designated Managers, except to the extent the same are incorporated within the Management Fee” (emphasis added).

s. 8.1 – Payment of Designated Managers: “For greater certainty, the Manager takes the sole responsibility for compensating the Designated Managers for their role in the provision of the Services and for paying all applicable withholding and other employer taxes and premiums”.

s. 13.1 – Nature of Relationship: “The Manager is and shall be an independent contractor to Ornge”.

(ii) Employment Agreement with Global

[25] The preamble to the Employment Agreement effective January 1, 2011 between Global and Dr. Mazza recites Dr. Mazza’s previous employment as CEO of Ornge and then as CEO of Peel and Ornge under a management services agreement between Ornge and Peel from 2007-2011. As of January 1, 2011 the preamble notes that Ornge ceased to obtain executive management services from Peel and had entered into the MMA with Global and that, effective that same day, Dr. Mazza commenced employment as CEO of Global and, “in his capacity as a “Designated Manager” pursuant to the [MMA], was appointed Chief Executive Officer of Ornge”.

[26] The Employment Agreement was clearly drafted in specific contemplation of the MMA, not in isolation from it. The MMA forms part of the factual matrix underlying the Employment Agreement even if Dr. Mazza is not a party to the MMA per se.

[27] Some of the relevant provisions of the Employment Agreement for purposes of this motion are:

s. 3.01 – Duties and Responsibilities: “The Executive is employed in and shall devote his time and attention….to serving the Employer and any entities for which the Employer is providing management services in the position of Chief Executive Officer”.

6.03 – Long Term Incentive: “Obligations of the Executive’s former employer related to long term incentive plan accrual of benefits to date will be assumed by the Employer and paid out to the Executive over then (sic) ensuing three (3) year term in accordance with its terms or on such other or accelerated schedule as may be agreed to by the Employer”

Art. 9 – Severance: the agreement provides for the payments to be made by the employer on a “with cause” termination (essentially accruals to the date of termination) and “without cause” termination (approximately two years’ salary and benefits). Payments in each case are to be made by Global as Employer.

s. 10.06 – Non-Competition – “For the purposes of this section 10 [i.e. non-competition clause] only, the term Employer shall include each subsidiary and affiliate of the Employer”.

s. 11.01 – Entire Agreement: “This Agreement constitutes the entire agreement between the parties and supercedes any prior employment or other contracts between the parties”.

s. 13.01 – Release: “The Executive agrees that upon any termination of the Executive’s employment by the Employer, he shall have no cause of action, claim or demand against the Employer or its directors, including its subsidiaries and affiliates, or any other person as a consequence of such termination or resignation, the Executive hereby releasing and discharging the Employer, including its subsidiaries and affiliates, and the Employer’s directors from any all liability related to the termination or resignation of his employment other than for his entitlement as herein set out”.

s. 17.01 – Independent Legal Advice: “The Executive acknowledges that he has had the opportunity to obtain independent legal advice prior to signing this Agreement”.

[28] Dr. Mazza availed himself of the opportunity to obtain independent legal advice mentioned in his contract. The agreements were finalized with the assistance of advice from senior employment law counsel.

(iii) Bankruptcy of Global and Global LP and Minutes of Settlement

[29] I shall not attempt to describe the very public chain of circumstances that resulted in the termination of Dr. Mazza’s employment. Little of it is relevant for purposes of the motions I have to deal with. I am concerned here with the status of Dr. Mazza’s claims as plaintiff in the Mazza action.

[30] The evidence of Ms. Long, Dr. Mazza’s spouse, is that he was under considerable stress in late 2011 and eventually found it necessary to take a leave of absence in or about December, 2011. He never returned to work thereafter, his employment having been terminated as a consequence of the bankruptcy of Global on February 2, 2012. Almost four years after these events, Dr. Mazza declined to provide any direct evidence of his own in connection with this summary judgment motion.

[31] Global as well as Global LP were the objects of Bankruptcy Orders made pursuant to the Bankruptcy and Insolvency Act, R.S.C. 1990, c. B-3 (the “BIA”) on February 2, 2012. Duff & Phelps Canada Restructuring Inc. (“Duff & Phelps” or the “Trustee”) was appointed trustee in bankruptcy of both entities.

[32] The two Bankruptcy Orders each recite the application for such orders made by OGRE and the Affidavit of Verification of Barry Pickford sworn January 19, 2012. Each order found that Global or Global LP (as the case may be) had committed an act of bankruptcy by “ceasing to meet its liabilities generally as they become due in that it has failed to pay its indebtedness to [OGRE} and to other creditors” and each was thereby adjudged a bankrupt.

[33] On February 13, 2012, the Trustee of Global issued demand letters to Dr. Mazza for repayment of $450,000 pursuant to a July 2011 loan agreement (n.b. not the same as the 2010 loan that is the subject of the Peel Action) and a further $250,000 owing pursuant to a March 8, 2011 payroll advance.

[34] In response, Dr. Mazza’s employment lawyer, Mr. Grosman, denied that there had been a default under the loan agreement claiming that Ornge, “is and always has been his common employer”. Mr. Grosman, the author of this letter was the same employment lawyer who had represented Dr. Mazza in signing the Employment Agreement.

[35] Having failed to resolve the dispute, the Trustee commenced a Notice of Application on March 19, 2012 against Dr. Mazza seeking repayment of the two loan amounts totaling $700,000.

[36] On July 31, 2012, Dr. Mazza caused to be filed a proof of claim in the bankruptcy proceedings of Global and Global GP. Dr. Mazza’s proof of claim stated that it was being filed “pursuant to the severance provisions of the Employment Agreement…. In particular, it is pursuant to paragraph 9.02 – Termination Without Cause”. Based upon an alleged average annual bonus of $643,750, the proof of claim calculated Dr. Mazza’s severance entitlement as $2,645,500.

[37] The Proof of Claim as filed did not list any amounts in respect of the 2009 or 2010 LTIP although, if actually earned as now claimed, both of these would have been claimable pursuant to s. 9.02 of the Employment Agreement on the same basis as the other termination amounts claimed. There was no evidence before the court from Dr. Mazza as to the reason for this omission.

[38] By late 2012, Dr. Mazza’s home had been sold and $650,000 of the net proceeds of the sale had been placed into a trust account pending the resolution of the Trustee’s claim against him. The parties began to negotiate a settlement.

[39] Following a period of negotiations, Minutes of Settlement were entered into between the Trustee and Dr. Mazza on November 22, 2012. Under the Minutes of Settlement, Dr. Mazza consented to the release of $600,000 of the sale proceeds to the Trustee in full and final satisfaction of the Trustee’s claims under the loans outlined in the Notice of Application. The balance of the funds was released to him under the settlement.

[40] Two paragraphs of the Minutes of Settlement were the object of extensive argument and are set forth below:

“4. Dr. Mazza agrees that he is deemed to have fully, finally and irrevocably withdrawn the Mazza Proof of Claim and released any and all claims, rights and interest in the assets of the estates of [Ornge] and [Ornge LP] in respect of the matters that were or could have been raised in the Mazza Proof of Claim....

5. The parties agree that, other than as required by law, the parties will not disclose the terms of these Minutes of Settlement other than to their legal counsel, the Inspector or the court. Notwithstanding this obligation of confidentiality, the parties may disclose the fact that the parties have settled the application.”

[41] In the course of those negotiations, Dr. Mazza’s counsel had sought an amendment to paragraph 4 of the Minutes of Settlement to exclude “any claim arising from the termination of Dr. Mazza’s employment including his entitlement to termination pay, severance pay, vacation pay, benefits and compensation pursuant to Dr. Mazza’s contract of employment, The Employment Standards Act… as well as his entitlement to reasonable notice at common law and reputational and related damages”. A shorter version of the same amendment was also proposed, but to similar effect[^2].

[42] On November 22, 2012, the Trustee’s counsel responded to this amendment request by email indicating “We can’t agree to any additional language to para. 4 of the Minutes of Settlement (or other parts) that creates uncertainty as to the nature of the agreement and the finality of the resolution of the dispute. We suspect, but don’t know, that Dr. Mazza’s intention is to preserve claims against other parties. If that’s the case, we think the language proposed doesn’t do that, but rather leads to a potential contradiction within para. 4”. Later that same day, Dr. Mazza’s counsel responded “I have been instructed to advise you that Dr. Mazza, reluctantly will sign the Minutes of Settlement”.

Issues

[43] The following issues are raised by this application:

a. Is this an appropriate case for summary judgment and what inferences should be drawn regarding the nature of the evidence filed by the parties?

b. Should the claims for interference with economic relations and conspiracy to injure contained in the Statement of Claim in the Mazza Action be dismissed on this motion for summary judgment?

c. Is there any basis for Dr. Mazza to pursue “common employer” liability against the Ornge Defendants for the obligations of Global under his employment agreement?

d. Do the Minutes of Settlement constitute a full answer to the claims of Dr. Mazza even if any of the Ornge Defendants are considered a “common employer”?

e. What portions of the claim of Dr. Mazza in the Mazza Action remain and what case management orders are appropriate?

Analysis and Discussion

(i) Summary Judgment and Inferences to be Drawn re: Evidence

[44] The written arguments of the parties filed shortly before the hearing of this matter related primarily to issues (a), (b) and (d) above. Notably absent was any argument directed to the effect of the employment contract itself on the common employer allegation.

[45] The scope of the motion before me is first and foremost framed by the Notices of Motion that are before me[^3]. These seek an order for summary judgment striking the Mazza Action in its entirety. The facta, on the other hand, were exchanged by the parties only a short while prior to argument of the motion and long after the deadlines for filing evidence on the motion under the timetable had come and gone. In the course of hearing argument on the motion, I expressed a considerable degree of concern regarding the failure of the moving party to brief all of the defences to the claims it was seeking to dismiss even if it had raised the issue and filed evidence in relation to them. The plaintiff’s narrow focus in written argument was of course mirrored by the defendant’s equally narrow focus in his own written arguments.

[46] As I trust is well understood by the profession at this point, the world of civil litigation in Ontario at least has changed very fundamentally since the decision of the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7. The decision was intended to endorse a fundamental culture shift in the way litigation is conducted. Trials are no longer the default dispute resolution mode. All steps in the procedure will be viewed and assessed through the lens of Rule 1.04(1) and (1.1) of the Rules of Civil Procedure to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits with proper regard to the principle of proportionality.

[47] The tectonic plates are still in motion but their direction leaves no doubt.

[48] By way of high level summary of Hryniak and the body of case law that has followed it, the following general principles relating to summary judgment (among many others) have emerged:

a. The court shall grant summary judgment based on the evidence before it if it is satisfied that such evidence discloses no genuine issue requiring a trial with respect to a claim or a defence (Rule 20.04(2)(a) and Hryniak, supra, at para. 66);

b. If a genuine issue requiring a trial appears based upon the evidence, the judge must then determine whether it is in the interests of justice to exercise his or her discretion to use the enhanced fact finding tools provided in Rule 20.04(2.1) by weighing the evidence, evaluating the credibility of a deponent or drawing inferences from the evidence (Rule 20.04(2.1) and Hryniak, supra, at para. 66);

c. Where the judge hearing a summary judgment concludes that some or all of the issues raised on the motion require a trial in order to be fairly dealt with, the judge should normally be seized of the matter as trial judge and should use the powers or Rule 20.05 to specify what issues remain in dispute or to require a “mini-trial” or trial of issues unable to be resolved at the summary judgment hearing itself (Hryniak, supra, at para. 74-78);

d. In weighing a motion for summary judgment, the court is entitled to assume, with some limited exceptions, that both parties have placed before it all of the evidence that they would intend to lead at trial in relation to the issue or issues raised: phrases such as “best foot forward”, “leading trump”, “not an occasion to keep powder dry” and “not holding anything back” are commonly employed to emphasize this point and have been approved by our Court of Appeal (c.f. Sweda Farms v Egg Farmers of Ontario, 2014 ONSC 1200; aff’d 2014 ONCA 878; Danos v. BMW Group Financial Services Canada et al, 2014 ONSC 2060; aff’d 2014 ONCA 887);

e. A summary judgment motion shall give rise to decision that will be res judicata in relation to the matters of fact and law raised on the motion unless the court determines based on the evidence before it that there is a genuine issue requiring a trial to determine them – a corollary of this is that a cross-motion is not normally required and judgment in favour of the respondent will normally be granted against the unsuccessful moving party (King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215; Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922.

[49] Parties bringing or responding to a summary judgment motion must both understand that things have changed. A respondent who treats such a motion as a “speed bump on the long highway to trial risks crashing its case in the deep ditch of dismissal” to quote the colourful words of Corbett J. in Sweda Farms (supra, at para. 201).

[50] The rule of law is a hollow principle without meaningful access to justice. It is both a public right and a matter of imperative public policy. It is the raison d’être of the judicial system of which we are servants. Access to justice is best secured when every appearance in court secures a meaningful advance in the resolution of the issues rather than being simply an occasion to add expense, delay or both to the burden borne by litigants. Strategic choices, including the choice to bring summary judgment motions and how to respond to them, have strategic consequences. Parties who fail to cross-examine on affidavits or adduce evidence available to them that they require for argument will be held to the consequences of their strategic choices: c.f. ThyssenKrup Elevator Canada Ltd. v. Amos, 2014 ONSC 3910. Both parties must assume that the service of a notice of motion starts a train heading down the procedural tracks that will lead to a decision on the merits of each and every issue raised by the notice of motion subject only to those issues the court determines genuinely require a trial in the interests of justice.

[51] The “best foot forward” principle warrants amplification here as well. It is no answer to a summary judgment motion to regale the judge hearing the motion with assurances of the quality and volume of the evidence that will be led at trial as happened in Sweda Farms. The evidence must be put forward now and satisfy the “best evidence” rule at the risk of being disregarded or being subjected to an adverse inference if in relation to matters in dispute (c.f. Ferreira v Cardenas, 2014 ONSC 7119 per Myers J.). Failure to cross-examine on affidavits or challenge evidence placed in the record may also have adverse impacts on a party (ThyssenKrup Elevator Canada Ltd., supra).

[52] I have engaged in this lengthy discourse on the post-Hryniak world of summary judgment as it has evolved in this jurisdiction because there was a disconnect between the narrow focus of the written argument presented to me by both parties by contrast with the breadth of the issues raised by the Notice of Motion.

[53] In point of fact, it was not evidence but full argument upon it that was lacking. The evidence necessary to deal with all of the issues had been placed in the record.

[54] Dr. Mazza on the other hand appears to have opted for the ostrich strategy to responding to this motion. He filed no first hand evidence at all. The only evidence filed by Dr. Mazza was that of his spouse and of a law clerk. Apart from dropping into the record as exhibits essentially the entire record of the 2012 application proceedings between the Trustee of Global and Dr. Mazza, her evidence was limited to suggesting that Dr. Mazza’s health had “improved somewhat” when he launched the Mazza Action but “recently” had taken a downturn. No particulars of his alleged “downturn” in health were provided. On cross-examination she confirmed that he is not in hospital and the power of attorney under which she formally conducted his affairs is no longer employed. She also provided some second-hand views as to what advice Dr. Mazza relied upon in signing the Minutes of Settlement. She provided no evidence whatsoever (apart from the exhibits passively appended to her affidavit) about any of the claims maintained by Dr. Mazza in the Statement of Claim the moving party defendants are seeking to have dismissed outright. The law clerk’s affidavit was confined to matters surrounding the execution of the Minutes of Settlement.

[55] I cannot accept at face value – or frankly at all – the suggestion that Dr. Mazza’s unspecified health issues prevented him from so much as filing an affidavit to verify some or all of the allegations made in his Statement of Claim in the Mazza Action. If he were in fact so disabled as to be unable to respond, his counsel had every opportunity to address that issue in scheduling the motion and the timeline for delivery of materials. I am compelled to draw an adverse inference regarding the failure of Dr. Mazza to present first hand (or any) admissible evidence before me to substantiate his claims.

[56] While I find that Dr. Mazza’s claim must be judged based on the record before me, I was concerned at the hearing about the fairness of proceeding to a conclusion on the common employer issue when Dr. Mazza’s counsel had only responded to the narrow written arguments of the moving party defendants that did not address the validity of the common employer claim at all.

[57] Accordingly, at the conclusion of the hearing on September 15, 2015, I endorsed the record as follows[^4]:

“After argument, matter taken under reserve. Mr. Schorr has thus far directed himself to the question of the release IF the defendants are a common employer. He has not addressed whether the common employer argument can succeed in light of the specific provisions of the Employment Agreement and the Master Management Agreement dated January 1, 2011. Further submissions on that point by him on October 14^th, reply by November 2. Mr. Goodman to collect and deliver electronically.”

[58] I had before me all of the evidence that both parties chose to file in relation to the motion. Both parties have chosen to present their legal theories for assessment in a concise manner without undue distraction of collateral issues or evidence. I saw no point in sending the parties back to the drawing board to re-start the entire motion process when the only apparent issue was deficiencies in the written arguments filed in support of the motion. The MMA and the Employment Agreement are both before me in the record. At the hearing, I directed the parties specifically to those portions of both agreements that I have extracted in these reasons and asked them to direct argument to whether the common employer allegation could be sustained in light of them. No party took the position that further evidence or oral argument was required in order fairly to deal with the issues.

[59] Having received and reviewed the supplementary arguments filed by Dr. Mazza and the Ornge Defendants, I have carefully considered whether any issues that are before me require a trial in order fairly to be resolved. While I have considered the necessity of using the tools of Rule 20.04(2.1), I have not found any necessity to do so in this case.

[60] I find that I have evidence before me sufficient to conclude that there are no genuine issues requiring a trial to be resolved. My reasons for so concluding are expanded upon in my review of the evidence and legal issues relating to each of the issues.

(ii) Tort claims of Interference and Conspiracy

[61] The plaintiff’s claim in the Mazza Action includes a claim for damages for inducing breach of contract, interference with economic relations and conspiracy to injure. The particulars of these claims are set forth in paragraphs 17 and 22 of the Statement of Claim.

[62] Paragraph 17 pleads that, shortly after the plaintiff took medical leave (in December 2011) the defendants conspired to terminate his employment in circumstances that would deprive him of recovery of the severance payments he would be entitled to under the Employment Agreement. The means chosen to effect this end were to cause OGRE “to falsely allege substantial indebtedness to it by Ornge Global GP Inc.” and then to cause OGRE “to falsely allege that [Global] was insolvent and had failed to meet its obligations to it and other creditors”. Paragraph 22 further pleads that by reason of these foundational facts, the defendants induced breaches of the contractual relations and interfered with his economic relations. Specifically, it is alleged that “but for the bankruptcy of [Global] and the control which the other Defendants herein…had over the affairs of [Global], [Global]could and ought to have defended the Petition in Bankruptcy”.

[63] In support of their motion for summary judgment on these claims, the moving party defendants filed the affidavit of Susan Kennedy, General Counsel of Ornge. Her affidavit recites the circumstances leading to the January 1, 2011 Employment Agreement and MMA, the fact that Dr. Mazza served as CEO of Ornge under the MMA and the fact of the bankruptcy orders made on February 2, 2012, the fact that Dr. Mazza was represented in the bankruptcy proceedings and filed a proof of claim therein for his severance claims and the fact of the Minutes of Settlement resolving the proof of claim he filed. In its written argument on the motion, the defendants argued that these tort claims were a collateral attack on the bankruptcy orders and devoted 14 paragraphs to elaborate on that theme. It is argued that Dr. Mazza participated in the bankruptcy proceedings, proved his claim, ultimately withdrew his claim without challenging the legitimacy of the proceedings.

[64] In support of his claim, Dr. Mazza has filed no evidence whatsoever. He hasn’t led with trump. He hasn’t even led with the two of clubs. He has refused to play any cards at all.

[65] Dr. Mazza’s factum seemed to treat this motion for judgment as the equivalent of a mere pleadings motion where his claim is assumed to true. It argues in a single paragraph that there is no collateral attack upon the Bankruptcy Orders because Dr. Mazza does not seek to set them aside and they are a mere ingredient in his cause of action. No evidence of the other ingredients is disclosed or even hinted at. Rather, the argument concludes “accordingly, the plaintiff is entitled to proceed with these allegations”.

[66] I am afraid I must disagree.

[67] The Statement of Claim is not evidence. Copies of affidavits given by Dr. Mazza in other proceedings and appended to his spouses’ affidavit as a bulk exhibit are similarly not evidence of any controversial or disputed matters. Dr. Mazza was unambiguously faced with a motion for summary judgment seeking to dismiss the tort claims in his Statement of Claim. He had a clear obligation to place evidence before me to support his claim. He chose to do nothing. Choices have consequences.

[68] My task accordingly is to examine what is in evidence and determine whether these leave me with any reason to conclude that there is a genuine issue requiring a trial of this aspect of his claim.

[69] I start from an examination of the allegations in light of logic and common sense. The object of the conspiracy and the torts alleged is said to be to deprive Dr. Mazza of his claims for severance payments under his Employment Agreement if the termination was without cause as is alleged.

[70] The means chosen to secure the end seem singularly ill-suited to the goal. Dr. Mazza’s employer (Global as GP of Global LP) was perfectly entitled to terminate his Employment Agreement with or without cause. Counsel acknowledged this in oral argument and the pleading essentially does the same. It is not the termination of employment that is the nub of the question. The real dispute arises from the failure to pay his contractual termination amounts.

[71] The problem with the plaintiff’s theory is that the bankruptcy process is either neutral to or enhanced his rights, not detracted from them. The control allegedly exercised over Global and Global LP prior to bankruptcy would have come to an abrupt end upon the appointment of the Trustee. He was given an opportunity to prove his own claim in those proceedings and ultimately sought to do so. As a creditor, he had the opportunity to vote for inspectors who might have zealously scrutinized claims of other creditors, including those of OGRE or he could have sought to challenge them on his own within the bankruptcy proceeding. If indeed Global and Global LP were as solvent as he alleges they were, then it would only be a matter of time for the Trustee to realize upon all of the assets of the bankrupts and to distribute them to pay in full the legitimate claims of all creditors, denying distributions to those with false or invalid claims. Creditor claims for distribution purposes are open to challenge in the bankruptcy process and distributions are made only upon claims accepted as proved. Of course if Global and Global LP were insolvent at the time, his allegations acquire a different hue as he would then be claiming, in effect, the right to be paid in preference to other creditors from an insolvent enterprise – a claim that would not long survive. A “conspiracy” to pay all creditor claims their due under the BIA is no conspiracy at all. All of this is but Bankruptcy 101.

[72] Suspending disbelief in the logic of the allegation, have I any evidence before me demonstrating that there is a genuine issue for trial on these issues? The two core factual allegations underlying the entire fabric of the allegations in paragraphs 17 and 22 are (i) that the debt claims of OGRE upon which the bankruptcy applications were based were false; and (ii) that Global and/or Global LP were in fact solvent when they were placed into bankruptcy.

[73] On these two points, the plaintiff encounters a granite wall of res judicata that he can neither scale nor penetrate. Try as he might to escape from the conclusion, the bankruptcy orders made are conclusively against the truth of those two alleged facts and they cannot be challenged or re-litigated in these proceedings.

[74] The plaintiff argues that he is not seeking to attack the bankruptcy orders, collaterally or otherwise and cites Title v. Canadian Asset Based Lending (CABLE) Inc., 2011 ONCA 715. In Title (supra), the allegation was that bankruptcy proceedings had been brought fraudulently in order to acquire the assets of the bankrupt at a discount. The defendants included the trustee in bankruptcy. The defendants sought to stay the Ontario tort proceedings in favour of the Quebec bankruptcy proceedings. The Court of Appeal found (at para. 20) that the plaintiff “asserts a claim for damages that he alleges he suffered as a result of that bankruptcy. The bankruptcy is simply a factual ingredient to the cause of action Title asserts in Ontario. If Title succeeds with his Ontario claim that the Quebec bankruptcy was the result of a fraudulent conspiracy, that finding will have no legal effect on the Quebec bankruptcy”.

[75] Taken out of context, those words might be viewed as offering the plaintiff some shelter for its claim. However, as is often the case, context is everything. The bankruptcy in Title (supra) was in fact just an ingredient in the conspiracy claim alleged. There was no attack being made upon the foundations of the bankruptcy – namely the finding of the commission of an act of bankruptcy and the existence of the debt claims giving the court jurisdiction to make its order nor with the validity of the order granted. Rather, the claim was that the parties improperly used the otherwise legitimate bankruptcy process to conspire with the Trustee to convey the assets for a song. There was no assault – direct or indirect – upon the bankruptcy order made. The findings of the Quebec bankruptcy court would not be inconsistent in any way with the findings sought to be made in the claim.

[76] The bankruptcy in this case establishes – until further order of the court – that the alleged act of bankruptcy actually occurred. The alleged act of bankruptcy was failing to pay creditors generally, including OGRE and others. Those findings of fact cannot be impeached or subjected to collateral attack. The tort allegations in paragraphs 1(d), 17 and 22 of the Statement of Claim in the Mazza Action are premised upon the untruth of facts that are conclusively established by the bankruptcy order to be true. The plaintiff’s claim necessarily seeks to re-litigate these very matters already determined by the bankruptcy court.

[77] I also agree generally with the moving party’s factum in pointing out the opportunities the plaintiff failed to exploit to challenge these findings. The plaintiff participated in the bankruptcy process and even used it to settle a very substantial claim with the bankrupt entities in a fashion that resulted in a significant payment ($50,000) being received by the plaintiff.

[78] All of the foregoing analysis of collateral attack is in some ways the equivalent of hitting a fly with a 10-ton weight. There are no genuine issues raised for trial on the tort claims based on the record before me in any event. The plaintiff`s tort claims stand utterly undefended with no evidence to sustain them. A breath of air would knock them over on this motion. The moving parties have done so. The tort claims must be dismissed.

(iii) Alleged Common Employer Liability

[79] In my view, there is simply no basis on the record before me for the allegation of common employer liability to survive. The foundation of the claim of “common employer” liability is found in paragraph 21 of the Statement of Claim that alleges that the defendants and his employer Global were common employers and under common effective control. The same paragraph further alleges that the “Board of Directors” (without specifying which Board) advised him that Ornge and Ornge Peel would be responsible for his remuneration in any event and alleges that this promise affects all of the defendants.

[80] There are thus two strands to the invocation of the “common employer” doctrine: unspecified interrelationships and a vague oral promise. I shall examine each of these separately, beginning with the second.

[81] The allegation of oral assurances in the Statement of Claim is entirely unsupported by any evidence of the plaintiff on the record before me. Even the Statement of Claim is so bare of particulars as to make the allegation meaningless. Which entity made the assurances, if any? When were they made? What conditions applied? Under whose authority were the promises made? On what basis are all of the defendants bound by them? These are matters left shrouded in mystery. Speculation on what might be true will not save a pleadings motion, let alone a summary judgment motion.

[82] Satisfying the writing requirements of s. 4 of the Statute of Frauds, R.S.O. 1990, c. S.19 might appear to be the least of the obstacles to this vague claim of an oral indemnity obligation. The plaintiff has adduced not a shred of evidence to begin to discharge his burden of proof. There is no basis whatsoever in the evidence for the claims alleged in the second last sentence of paragraph 21 of the Statement of Claim[^5]. This un-evidenced claim of an oral indemnity agreement from persons unknown binding entities unspecified on conditions undescribed cannot be the basis upon which I find that there is a genuine issue requiring a trial for a claim based upon it. I reject the allgation entirely.

[83] There is some echo, however faint, of this indemnity allegation in the Employment Agreement itself, but an echo that does nothing to salvage the plaintiff’s case. Section 14.02 of the Employment Agreement contemplates the situation where Dr. Mazza’s employment is continued by an affiliate post-termination. In such case, his severance entitlements would have been reduced not enhanced.

[84] What then of the broader “common employer” allegation?

[85] It ought to be self-evident that the mere allegation of corporate affiliation simpliciter is not sufficient to bring the common employer doctrine into play. The case law as it has developed in this province requires there to be some demonstrable element of injustice arising from the complex corporate structure of the alleged common employers coupled with a factual basis to find an actual existing employment relationship in fact with each of the affected parties.

[86] Injustice is not measured in hindsight by the yardstick of wishful thinking. Any plaintiff invoking the common employer doctrine must be able to demonstrate on the particular facts of the case that he or she held a reasonable expectation in the circumstances that each of the alleged common employers were parties to the employment arrangement governing that particular employee at all relevant times.

[87] Our courts have long since accepted that an employee may be employed by more than one employer at the same time. However, the relationship must be demonstrated on the facts of each case and there is no presumption against the effectiveness of the written contracts that the parties have chosen to express their relationship. The onus remains ever upon the plaintiff. Post-Hryniak, the time to discharge that onus is upon receipt of a notice of motion for summary judgment. Waiting until after judgment is too late.

[88] The common thread running through the case law on common employer is that factors similar to those invoked to set aside the corporate veil should normally be present. This may be either because there is sufficient mixing of roles or duties as to lead to the conclusion that there was more than one “true” employer with authority over different aspects of the employment relationship or because the nominal employer was inserted into the structure as a vehicle to deceive, trick or otherwise perpetrate an injustice: c.f. Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59 and Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10. In Dumbrell (supra), the Court of Appeal dismissed a common employer claim against a controlling shareholder where the employee knew full well that he was contracting with the corporation and not the shareholder and could only look to his employer for payment (supra, at para. 83). I turn now to consider the evidence.

[89] On the plaintiff’s side of the ledger, I am left with the bare and unsupported allegation of common control in the Statement of Claim. That is not evidence. There is no evidence before me as to who the controlling shareholder(s) of Global were. The question appears to me to be material to a common employer claim since Global was the employer he signed a contract with and who signed his cheques. Dr. Mazza appears not to agree.

[90] The plaintiff himself controlled a majority of the equity of the limited partnership itself even if it is true that limited partner equity ownership does not equate to control. The record also discloses that Dr. Mazza was CEO of all of the relevant companies in the group. The plaintiff had the opportunity to cross-examine upon the affidavits of the moving parties to obtain clarification of the ownership of Global to the extent their corporate records might have revealed any information. As former CEO of the company, he might be expected to have had more than passing knowledge of the corporate structure and ownership of the group as well. He did not cross-examine nor lead his own evidence. I have no evidence before me as to who actually controlled Global. I accept that it was an affiliate – if for no other reason than due to common management pursuant to the MMA as evidenced by Dr. Mazza’s role as CEO of each. I have no basis to conclude that it was controlled by the defendants.

[91] This is a very tenuous basis upon which to defend a common employer claim on a summary judgment motion.

[92] The moving parties rebuttal of this thin argument is built of the following bricks:

[93] Firstly, the Employment Agreement is with Global alone. The recitals to the Employment Agreement make quite clear the nature of the relationship between Dr. Mazza and Global on the one hand and between Global and the defendants who were consumers of its management services on the other. Dr. Mazza was employed by Global while Global itself was an independent contractor of the Ornge Defendants, providing the services of Dr. Mazza as a “Designated Manager” for specific remuneration under the MMA. It is to be recalled that Global’s entire business was precisely that – providing management services – and Dr. Mazza was not only Global’s CEO, but also a 51% owner of the limited partnership of which Global was the general partner.

[94] Absent evidence of exceptional factors justifying the disregarding of the express terms of the Employment Agreement in whole or in part, it governs the relationship between the parties and establishes the baseline for the reasonable expectation of the parties: Dumbrell (supra) at para. 83.

[95] It is, in my view, quite significant that s. 10.06 of the Employment Agreement addresses the issue of “common employer” and the Employment Agreement quite directly. It provides that the affiliates (including the defendants) are considered as employers for the purposes of that clause only (i.e. non-competition). I find that the implication of this agreement in s. 10.06 is that affiliates are not to be considered as common employers for any other purpose.

[96] In this regard, I also refer to the “entire agreement” clause (s. 11.01) and the release in favour of affiliates in s. 13.01. The defendant argues that the release does not release claims for the severance payments prescribed by Article 9 but does not account for the fact that Article 9 only provides for payment by Global and neither contemplates nor provides for any payments made directly by any of the moving party defendants to him. The party required to made the article 9 severance payments is the “Employer” - a term defined to include Global only.

[97] The Employment Agreement is entirely inconsistent with the existence of the alleged common employer relationship alleged by Dr. Mazza as is the MMA to which it refers. To the contrary, it specifically releases such claims. Dr. Mazza has provided evidence of no grounds justifying the court in disregarding the effect of the agreements he has signed.

[98] Dr. Mazza’s claim goes beyond alleging a general common-law employment relationship. He is seeking payment of the precise amounts provided for in the Employment Agreement when those same amounts are prescribed to be payable only by Global. He is, in effect, seeking to reprobate and approbate the same agreement – indeed, the same clause of the same agreement.

[99] In my view, the analysis of the Court of Appeal in Dumbrell (supra) is applicable here. Dr. Mazza knew full well who his employer was. He knew full well what the business of Global was – he was its 51% beneficial owner (via the limited partnership) and its CEO. He has provided no evidentiary basis to excuse him from the ordinary consequences of the agreements he entered into with his eyes wide open and with every tool of independent legal advice, sophistication and bargaining power fully at his disposal.

[100] Secondly, the MMA. Dr. Mazza pleads that he was not a party to the MMA. I agree. However, reasonable expectations are not built on such slender foundations as that. The MMA is referenced in his Employment Agreement and forms part of the factual matrix of his employment. He signed the MMA in his capacity as CEO. The MMA came into being as a result of a re-organization overseen by him as CEO and in which he stood to receive considerable personal benefit. He knew full well that Global’s business was providing the management services governed by the MMA for which it received a fee. He knew or ought to have known that the scheme of the MMA was also entirely inconsistent with the “Designated Managers” having any direct employment link with Global’s. He knew or ought to have known that the MMA strictly limited the exposure of Global’s clients to payment of the amounts for services provided prescribed thereunder and excluded any obligations to him directly.

[101] In light of the terms of his Employment Agreement and the structure of the MMA which formed its backdrop, Dr. Mazza cannot have had any reasonable expectation to look beyond his employer Global to fulfill his contractual expectations on the evidence before me.

[102] Dr. Mazza was certainly not some powerless victim of opaque corporate machinations designed to defeat his legitimate contractual entitlements. If anything, he was an architect, if not the architect, of the structures he now seeks to undo and expected to be a significant beneficiary of them.

[103] On the evidence before me, I can find no genuine issue for trial on the question of whether any of the defendants were a “common employer” with Global under the Employment Agreement. The written documents signed by Dr. Mazza in his personal and professional capacity (the latter being with his knowledge and consent) are entirely inconsistent with any allegation of joint liability as between Global and its clients for the promises made by Global to Dr. Mazza pursuant to the Employment Agreement.

(iv) Impact of Minutes of Settlement if Common Employer presumed

[104] The moving party defendants take the position that even if they were found to be common employers bound by the Employment Agreement, the release granted by the plaintiff to Global’s Trustee under the Minutes of Settlement would operate to their benefit and release the plaintiff’s claims under the Employment Agreement in the Mazza Action. The common employer doctrine, they submit, operates in reverse as well.

[105] Dr. Mazza acknowledges that “the law is clear that the Release of one or more of joint debtors has the legal effect of releasing all of the others” and does not dispute that the release is effective and binding upon him as regards the Trustee. However, he claims that the release of joint debtors doctrine has no application on the facts of this case. He points to the fact that the release speaks only to claims against the “assets” of the Estate of the bankrupt and the fact that the release was to have been kept confidential as supporting the view that the release was not intended to have any broader effect. He likens the Minutes of Settlement, containing as they do an agreement to withdraw the Proof of Claim filed by Dr. Mazza, to a covenant not to sue that does not in and of itself absolve joint debtors. The plaintiff relies upon the doctrine of privity of contract to argue that the moving parties are neither parties nor intended beneficiaries of the Minutes of Settlement and cannot claim the benefit thereof.

[106] At its core, the moving parties do no more than rely upon the principle that a creditor who releases one joint debtor will normally be held to release all. Since the result of a common employer finding is to find that each of the employers are jointly party to the self-same employment arrangement (in this case, a written contract), the corollary is that a release of the obligations thereunder in favour of one operates in favour of all. Just as partners both bind and release the partnership when dealing with partnership obligations, so one (alleged) common employer bound them all in consenting to the terms of the Employment Agreement and released them all in coming to a settlement of its obligations under that same agreement.

[107] Dr. Mazza is seeking to enforce the termination provisions in Article 9 of the Employment Agreement as against alleged common employers when he has deliberately released the “main” employer with whom he negotiated that very agreement. Dr. Mazza was represented by counsel in entering into the release, counsel had earlier raised the common employer allegation and it was thus a known issue at the time the release was agreed upon. Dr. Mazza cannot allege non est factum nor any similar doctrine to escape enforcement of the release given as part of a settlement that has now been fully implemented. To the contrary, the email exchange on the day the Minutes of Settlement were signed evidences that he understood that his attempts to preserve employment-related claims against other parties may not have been successful but he “reluctantly agreed” to proceed regardless.

[108] The obligation in this case emanates from a common source (the Employment Agreement). That Minutes of Settlement extinguished that obligation as regards the “Employer” named in that agreement. This is not equivalent to having multiple but unrelated guarantees of a single debt where the terms of the guarantee itself determine the scope to treat with each separately.

[109] The doctrine of privity of contract cannot come to the plaintiff’s rescue here since he is specifically alleging that each of the defendants have privity of contract in the underlying contract, being the Employment Agreement. The agreement that purports to release that single contractual obligation to pay severance for one jointly liable debtor does so for all without violating any principle of privity of contract.

[110] There are neither equities nor commercial considerations to dictate a different outcome. The estates of the two bankrupts have now been administered and the trustees discharged. Any claim for contribution or indemnity than any or all of the defendants might have had against the Trustee has been unalterably prejudiced. Northland Bank (In Liquidation) v. Walters, 1998 2376 (BC SC) is of no application here.

[111] In my view, the question is not whether Dr. Mazza intended to release the defendants. I am quite sure that he would not be the first person in history to have desired to have his cake and eat it too. His intention vis-à-vis the other alleged parties to the employment contract do not govern; his unquestionable intention to release the very obligation he claims them to be bound by does.

[112] I similarly do not accept that the Minutes of Settlement can be read as the equivalent of a covenant not to sue. The Minutes of Settlement specifically released all claims that were made or could have been made in the Proof of Claim against the employer in addition to withdrawing the Proof of Claim filed.

[113] The reference in the language of the release to claims against “assets of the Estate” of the bankrupt does not in any way limit the scope of the release as the plaintiff claims. Under the BIA, all of the assets and property of the bankrupt vest in the trustee in bankruptcy and, thereafter, creditor claims against the bankrupt in personam become claims against the assets of the estate administered by the trustee under the BIA via the claims process and distributions if any made thereunder. I hesitate to use the language of “in rem” in this context since the claim is statutory, but it is a reasonable description. The Trustee has no personal liability – the claims of the creditors are transferred from the person of the debtor to the corpus of the estate administered by the Trustee.

[114] In my view, the Minutes of Settlement unambiguously released the claims Dr. Mazza is advancing in the Mazza Action (other than the tort claims). Whether he privately hoped to preserve a right to pursue the alleged common employers as jointly liable under the Employment Agreement, the obligation, once extinguished, cannot be revived for limited purposes against some parties only. I find that the moving party defendants are entitled to the benefit of the release to the extent they are liable under the Employment Agreement jointly with the bankrupt Global. For this additional reason, the employment claims made in the Mazza Action against the defendants cannot stand.

(v) Consolidation or Joinder of Claims

[115] There was no serious dispute between the parties on this issue. Mr. Schorr was not suggesting that the two actions (or what remains of them) should be heard separately. He was however concerned that if the two are joined with fresh pleadings, there is some possibility the moving parties might somehow make additional allegations or claims. In my view, the fear is misplaced. If an attempt to slip new causes of action into a consolidated pleading is made, Dr. Mazza will have the opportunity to object.

[116] All of the parties recognized that the LTIP claims advanced by way of counterclaim in the Peel Action were duplicative of the wrongful dismissal claims that I have dismissed today in the Mazza Action. The Notice of Motion sought no specific relief in respect of the counterclaim in the Peel Action and I have made no order. I presume that it will not take the parties long to sort out the obvious issue estoppel arising as a result however.

[117] The two actions – even shorn of the plaintiff’s claims in the Mazza action – are inextricably intertwined. They must be joined or at least heard together. It is inconceivable that separate trials before separate judges would be contemplated. However, joinder is not a magic wand. The moving parties should provide me with a precise statement of the relief they seek in the form of a draft order. If a consolidated Statement of Claim is to be filed, it should be attached and Dr. Mazza given an opportunity to object to any alleged over-reaching. Given that Dr. Mazza took no substantive objection to joinder beyond the fear expressed above, I can see no obstacle to the consensual resolution of this minor issue.

[118] I am accordingly directing the parties to produce either (a) a consent order regarding consolidation or (b) copies of their respective draft orders in this regard. I shall consider these and written submissions of not more than five pages from each commenting on the differences between the orders. Draft orders and submissions if any to be delivered within thirty days of the date of release of these reasons.

Disposition

[119] Accordingly, I order as follows:

a. The plaintiff’s claim in the Mazza Action is dismissed;

b. The two captioned proceedings herein are ordered to be consolidated in a manner to be finalized by me on consent of the parties if applicable or in a subsequent order after receipt of draft consolidation orders proposed by each party within thirty days of the date hereof along with written submissions from each (not to exceed five pages; both parties to exchange their respective draft orders with the other no later than 20 days from the date of release of these reasons);

c. Costs are taken under reserve to be determined (as to both scale and amount) by the following procedure:

i. The Moving Party to deliver an outline of costs plus its written submissions (restricted to five pages excluding the outline) within 20 days of the date of release of these reasons; and

ii. Dr. Mazza shall deliver his own outline (if desired) and written submissions in response within 30 days of the date of release of these reasons;

iii. Neither party need deliver a case book but may include hyperlinks in their written submissions (cases not found online may be delivered electronically as below); and

iv. The Moving Party shall collect all such submissions and deliver same to my assistant electronically.

S. F. Dunphy, J.

Released: December 22, 2015

COURT FILE NO.: CV-15-527629 & CV-13-472403

DATE: 20151222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER MAZZA

Plaintiff

– and –

ORNGE CORPORATE SERVICES INC. formerly known as ORNGE PEEL LTD., ORNGE and ORNGE GLOBAL REAL ESTATE INC.

Defendants

REASONS FOR JUDGMENT

S. F. Dunphy, J.

Released: December 22, 2015

[^1]: Despite the 2015 file number, this claim was commenced in Newmarket by Notice of Action dated January 31, 2014 (as file CV-14-117670) but received a new file number upon its transfer to Toronto.

[^2]: Dr. Mazza introduced evidence of such negotiations, thereby waiving settlement negotiation privilege.

[^3]: Mirror Notices of Motion were filed in each of the Mazza Action and the Peel Action.

[^4]: The endorsement also referenced the consolidation motion. That aspect is specifically addressed later in these reasons.

[^5]: Buried deep within Exhibit A to the affidavit of Kelly Long is an affidavit of Dr. Mazza in the proceeding brought by the Trustee against him that contains what may be some particulars of this allegation in paragraph 19 thereof. I can attach no weight to evidence introduced in this indirect fashion that in any event does not approach the standard necessary to displace the terms of the written Employment Agreement that he signed.