Brown v. BCE, 2015 ONSC 873
COURT FILE NO.: CV-14-514480
DATE: 2015/02/06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gary David Brown, a.k.a. Gary David Robert Brown, Station Attendant Emeritus,
Plaintiff
AND:
Bell Canada Enterprises, all past and present officers, directors, assigns, agents and unions thereof and all heirs and successors of same (“B.C.E.”),
Defendant
BEFORE: Akhtar, J.
COUNSEL: Gary David Brown, Plaintiff, appearing in person, self-represented
Michelle S. Henry & Stephanie Young, for the Defendants
HEARD: February 3, 2015
ENDORSEMENT
Overview
[1] This is a motion by the Defendant, B.C.E., to strike down the Plaintiff’s Statement of Claim alleging that he had been wrongfully terminated from his employment with them.
[2] The Defendant argues this application under three headings:
(a) Motion to strike out the Statement of Claim as it reveals no possible cause of action,
(b) Motion to strike out the Statement of Claim as it is “frivolous and vexatious”,
(c) Motion to dismiss the Plaintiff’s action because the Statement was filed outside the period specified in the Limitation Act, 2002, Chapter 24, Schedule B.
[3] The Plaintiff, in his Statement of Claim, alleges that, on February 5, 2005, he attended an information session conducted by Bell Canada Enterprises (B.C.E.) and was interviewed by the recruitment manager and offered a job. His Statement of Claim alleges that he undertook 12 days of training but, after an incident involving the forcible opening of the front gate of a building, was asked to leave the classroom to go with the recruitment officer. The Statement of Claim describes how the Plaintiff “returned to the said classroom in tears” and left the property.
[4] On July 7, 2010, in almost identical circumstances, the Plaintiff, in response to another newspaper advertisement, attended an information session at or near 1677 Wilson Avenue and was interviewed and “re-hired”. Subsequently, the Plaintiff was sent to a location situated at or near 743 Warden Avenue where he met another employee - “with the Plaintiff never being contacted later regarding said Plaintiff re-hiring”.
[5] On October 20, 2014, the Plaintiff served the Defendant with a Statement of Claim. Amongst the remedies sought are $9,000,000 in aggravated damages, $9,000,000 in preferred voting B.C.E. shares or stock, a letter of apology, reinstatement and a permanent seat on the board of B.C.E.’s board of directors.
Does the Statement of Claim Disclose a Reasonable Cause of Action?
[6] The Defendant, as the moving party rely on Rule 21.01(b) of the Rules of Civil Procedure which permits a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. The test for striking out a pleading in a Statement of Claim is when it is “plain and obvious’ that the Plaintiff’s claim discloses no reasonable cause of action.[^1] In determining the issue, a judge is obliged to assume the facts alleged in the Statement of Claim are true.
[7] The test must be read as generously as possible to take account of drafting deficiencies. A Plaintiff should not be “driven from the judgment seat” if there is a chance that the action might succeed. It is not overly difficult for a Plaintiff to overcome the test for resisting the motion to strike a pleading.[^2] On the other hand, the Plaintiff must plead the necessary legal elements of a recognized cause of action as any omission of an element may render the pleading in error, indicate that the Plaintiff cannot succeed and result in the striking out of the pleading.[^3]
[8] In the instant case, the Plaintiff’s claims are vague and uncertain. Although it is clear that the pleadings allege that he was “hired” and “re-hired”, it is uncertain, from the Statement of Claim what the Defendant actually did wrong. If non-contact with the Plaintiff is the complaint, it is unclear how this forms a cause of action. Although the Plaintiff now complains that he was dismissed by the Defendant, the manner in which the dismissal took place is not specified in his pleadings. No contract between the parties is alleged other than the fact that the Plaintiff was “hired” after an impromptu interview. The circumstances surrounding his alleged “re-hiring” are also unclear. The Plaintiff’s pleadings do not identify any wrongful act or breach of contract by the Defendant save for the fact that the Defendant did not contact the Plaintiff after he met one of its representatives at the meeting at 734 Warden Avenue.
[9] By way of example, in a wrongful dismissal action, a Plaintiff must “set out the type of contract, its date, whether written or oral, the identity of those making statements and must identify which facts related to which cause of action and tie the alleged breaches to a specific cause of action”: Ellen E. Mole in Wrongful Dismissal Practice Manual at p. 11-51. No such details exist in the Plaintiff’s Statement of Claim.
[10] I conclude that there is no reasonable cause of action. In the normal course of events, I might be inclined to grant leave to the Plaintiff to amend his Statement of Claim and provide further particulars to properly plead his cause of action. However, in light of my conclusions concerning the effect of the Limitation Act provisions, that remedy would be of no consequence.
Is the Plaintiff’s Claim Outside the Limitation Period?
[11] In any event, I am of the view that the Plaintiff’s claim was filed outside the governing limitation specified by statute.
Section 4 of the Limitations Act (“the Act”) reads as follows:
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Section 5 of the Act deals with the date upon which the claim is discovered:
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[12] Pursuant to s. 4 of the Limitations Act, the Plaintiff cannot commence an action two years after the date upon which he discovered his claim. In the case of a breach of contract, or in this case as alleged, breach of employment contract, the limitation clock began to run when the breach occurred. As noted above, the Plaintiff’s Statement of Claim, is vague with respect to what the reasonable cause of action is. If I assume that the cause of action was the failure to contact the Plaintiff after “re-hiring” him, the commencement date of the limitation period would be on or about July 7, 2010.
[13] It is apparent, even from the vague pleadings filed by the Plaintiff, that the discovery date of the claim in question was the day that the BCE representative failed to contact him after the meeting at 743 Warden Avenue or shortly thereafter. Since that meeting was in the summer of 2010, the Plaintiff served his Statement of Claim approximately four years later and therefore outside the expiry limit set by s. 4 of the Act. I therefore find that the Plaintiff’s claim was statute barred even if his Statement of Claim was otherwise properly pleaded.
[14] In light of my conclusions, I do not find it necessary to consider the Defendant’s argument that the Plaintiff’s claims are frivolous and vexatious.
Conclusion
[15] The Defendant’s motion is granted. The Plaintiff’s action against the Defendant’s is dismissed.
[16] In the interests of justice, costs are fixed in the amount of $2,000.00 with 90 days to pay.
Akhtar, J.
Date: Friday February 6, 2015
[^1]: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at para. 33.
[^2]: McKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874.
[^3]: Deep v. Ontario, [2004] O.J. No. 2734 (S.C.J.), affirmed [2005] O.J. No. 1294 (C.A.)