Court File and Parties
COURT FILE NO.: CV-15-537538 DATE: 20160516
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: PAMELLA ROBINSON Plaintiff/Responding Party – and – LEISURE WORLD INC. and SIENNA SENIOR LIVING INC. Defendants/Moving Parties
Counsel: Martine Ordon for the Plaintiff Hendrik T. Niewland for the Defendants
HEARD: May 10, 2016
Endorsement
DIAMOND J.:
Overview
[1] On October 1, 2013, the plaintiff was terminated from her employment with the defendant, Leisure World Inc. (“Leisure”). Prior to her termination, she held the position of an Associate Director of Care for approximately 22 months.
[2] On September 30, 2015, the plaintiff commenced this proceeding seeking (i) damages for wrongful dismissal, and (ii) damages in accordance with Article 46(1) of the Ontario Human Rights Code (the “Code”).
[3] Leisure initially took issue with, inter alia, the viability of the plaintiff’s claims for damages under the Code, and advised the plaintiff of its position. On January 22, 2016, and before the close of pleadings, the plaintiff amended her statement of claim with a view to addressing what the plaintiff alleged to be defects in her human rights damages claim.
[4] Leisure now brings this motion seeking an order striking out (a) paragraphs 1(b), 8, 9, 10, 12, 13, 14, 15, 17, 18, 19, 20, 21 and 25 of the original Statement of Claim, and (b) paragraphs 1(b), 8, 9, 12, 13, 14, 15, 17, 18, 19, 20, 21, 25, 26 and 27 of the Amended Statement of Claim, all without leave to amend.
The Original Statement of Claim
[5] In her original Statement of Claim, the allegations in support of the plaintiff’s human rights damages claim were as follows:
Pamella states that beginning in about April 2012, Leisure World engaged in a course of conduct to single out and terminate employees of colour without cause and without proper notice contrary to the provisions of the Human Rights Code (Ontario).
Between the dates of approximately April 2012 and to the time of her termination, Leisure World terminated at least 8 (eight) employees of colour without cause.
Pamella states that of the 8 (eight) employees terminated, at least 4 (four) were reinstated to their positions.
Pamella states that in her case specifically, her supervisor, Andrea McAllister, approached her as she arrived for work on October 1, 2013 and proceeded to read her the terms of the termination letter dated October 1, 2013 (the “Termination Letter”) which was subsequently handed to her.
[6] In addition, although bad faith damages are not specifically set out in the prayer for relief, the plaintiff also alleges that the defendants prepared and delivered the termination letter in bad faith. Specifically, the plaintiff alleges that the termination letter contained misrepresentations to induce her to sign a release that would preclude her from pursuing her rights under the Code, the Employment Standards Act, 2000 and the common law.
[7] As the Termination Letter is specifically referenced several times in the pleading, a copy was included in Leisure’s motion record for my review and consideration. As recently held by the Court of Appeal for Ontario in Addison Chevrolet Dealer GMC Limited v. General Motors of Canada Limited, 2016 ONCA 324, the termination letter is not “evidence” but incorporated by reference on this motion to “set out the narrative”.
[8] A review of the termination letter discloses that upon termination, the plaintiff was offered two options:
a) Option #1 provided the plaintiff with the minimum entitlements under Employment Standards Act, 2000 “in accordance with her Employment Contract”; or,
b) Option #2 offered the same terms as Option #1 plus an additional four weeks’ salary, a promise that internal and external communications would indicate that the plaintiff resign voluntarily due to personal reasons, and a listing on her Record of Employment that the reason for termination would be “Other”.
[9] The termination letter further provided that in the event the plaintiff did not choose Option #2, Option #1 was the default option.
[10] There is no dispute that the plaintiff did not choose Option #2.
The Amended Statement of Claim
[11] In the plaintiff’s Amended Statement of Claim, the salient revisions were as follows:
a) paragraph 8 inserted the words “including herself” when describing the employees of colour who were allegedly signaled out and terminated by Leisure;
b) paragraph 10 was removed;
c) the plaintiff added new paragraphs 25 and 26 which allege that she was signaled out for termination because she was a person of colour, and as her termination was based upon a prohibited ground contrary to section 5(1) of the Code, she is thus entitled to general and special damages for loss of dignity and self-worth.
Rule 21 – Motion to Strike
[12] As held by the Court of Appeal in the Addison decision, it is trite to state that the test under Rule 21.01 requires Leisure to show that it is plain and obvious that the pleadings disclose no reasonable cause of action or that the claim has no reasonable prospect of success. Pleadings may be defective when they fail to allege the necessary elements of a claim that, if properly pleaded, would constitute a reasonable cause of action.
[13] With respect to human rights claims, a civil cause of action cannot typically be grounded upon any breach of the Code, as those claims are subject to a comprehensive legislative enforcement scheme. As held by the Court of Appeal for Ontario in Jaffer v. York University, 2010 ONCA 654, there is no independent tort of discrimination, and no claim for discrimination founded directly upon a breach of the Code can be advanced in the courts.
[14] The Code provides for one exception. Section 46.1 allows a plaintiff to advance a breach of the Code as a cause of action but only in connection with another cause of action. In other words, a civil cause of action will only arise where there is discrimination against “party to the proceeding” (as opposed to non-parties).
Decision
[15] Leisure’s notice of motion was served in early February 2016 after the plaintiff had already amended her claim. I understood that Leisure sought to strike out those impugned portions of the plaintiffs original Statement of Claim in furtherance of an argument that the plaintiff’s human rights damages claim was defective thereby rendering it a nullity. As such, if the human rights damages claim was a nullity, it would need to be cured by formal amendment.
[16] Such a position dovetailed into Leisure’s additional argument that as the Amended Statement of Claim was issued more than two years after the date of the termination of the plaintiff’s employment, the amendments constituted a new cause of action which was commenced in contravention of the provisions of the Limitations Act, 2002, S.O. 2002, c.24 (“Limitations Act 2002”).
[17] Pursuant to Section 5(1) of the Limitations Act 2002, a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known,
(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 a person against whom the claim was 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.
[18] Section 5(2) of the Limitations Act 2002 and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a Plaintiff with necessary evidence.
[19] Whether or not the plaintiff’s human rights damages claim amounted to a nullity depends upon the construction of the words “in her case specifically” as contained in paragraph 11 of the Statement of claim. The preceding three paragraphs allege systemic discrimination in Leisure’s hiring and firing practices. The plaintiff advanced a claim for human rights damages in paragraph 1(b) of the prayer for relief, and thus I do not read those three preceding paragraphs as being inserted for colour.
[20] It is thus necessary to decide whether the words “in her case specifically” referred to the plaintiff’s “case” for wrongful dismissal, or for human rights damages. If the former interpretation is accurate, than the plaintiff’s human rights damages claim was improperly pleaded and susceptible of being struck out. Leisure argues that the plaintiff’s human rights damages claim is thus a nullity so that subsequent amendments constitute a new cause of action. How this argument might be affected by Rule 2.01(1) was not argued before me. If the latter interpretation is correct, then the amendments effectively amount to the provision of further particulars and do not constitute a new cause of action.
[21] As held by Justice Myers in Salehi v. Professional Engineers Ontario, 2014 ONSC 3816, on a motion to strike, a claim will be read generously with allowance for mere drafting deficiencies when hearing motions to strike. As I am under an obligation to read the plaintiff’s Statement of Claim as liberally as possible, in my view the elements necessary to support a claim under section 46.1 of the Code were present. Why else would the plaintiff, a self-described person of colour (a fact obviously known to Leisure) be advancing a human rights damages claim if she was not part of the alleged systemic discrimination?
[22] I find that the use of the words “in her case specifically” relate to the plaintiff being allegedly subjected to the pleaded systemic discrimination.
[23] In any event, even if the words “in her case specifically” related to the plaintiff’s wrongful dismissal claim (thus technically rendering the amendments to form a new cause of action), I do not conclude at this stage of the proceeding that the plaintiff’s human rights damages claim would run contrary to the provisions of the Limitations Act 2002. Normally, a limitations defence must be pleaded in a statement of defence. That said, there is a limited exception as explained by the Court of Appeal for Ontario in Beardsley v. Ontario, [2001] O.J. No. 4574 (C.A.):
“The motion to strike based on the expiry of a limitation period could only be made pursuant to Rule 21.01(1)(a) which provides that a party may move for the determination of a question of law ‘raised by a pleading’. The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence that must be pleaded. Although we agree that it would be unduly technical to require delivery of a statement of defence in circumstances where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired, a plain reading of the rule requires that the limitation period be pleaded in all other cases.”
[24] I must thus be satisfied that it is plain and obvious from a review of the original or Amended Statement of Claim that no additional facts could be inserted by the plaintiff that would alter the conclusion that the limitation period had expired.
[25] On my review of the pleadings, I cannot come to that conclusion.
[26] Pursuant to section 5(2) of the Limitations Act 2002, the plaintiff is presumed to have known that her claim for wrongful dismissal arose on the date of her termination; as such a claim would have obviously crystallized once Leisure terminated her employment.
[27] It is not clear from the pleadings that the plaintiff’s cause of action for human rights damages arose on the date of her termination. That cause of action is factually based upon when the plaintiff knew or ought to have known that she was being fired (or perhaps was about to be fired) due to the alleged systemic discrimination. While paragraphs 8 and 9 of both pleadings state that the alleged systemic discrimination commenced in or around April 2012, that in and of itself does not necessarily mean that the plaintiff knew about the alleged systemic discrimination, or that she was a part of it, on the date of her termination.
[28] It may very well be that the plaintiff only learned of the systemic discrimination sometime after her termination, or even beforehand. Perhaps this is an issue better suited for a motion for summary judgment at some later date once Leisure presumably pleads a limitation defence, and the plaintiff delivers a Reply setting out the material facts relevant to discoverability.
[29] I note that in no way am I precluding Leisure from advancing or pursuing a limitation defence during the life of this proceeding, whether by way of motion for summary judgment or at trial. However, such a determination will need to be made upon a full evidentiary record.
[30] Finally, I decline to strike out paragraphs 12 -15, 18 and 21 of both claims. Leisure submitted that these paragraphs relate to the plaintiff’s claim for bad faith damages based upon misrepresentations contained in the termination letter. Essentially, the plaintiff alleges in both pleadings that the terms of Option #1 and Option #2 left her with the impression that in the absence of choosing Option #2, her Record of Employment would not list “Other” and would thus result in a dismissal for cause.
[31] While I agree with Leisure that, based upon the contents of her termination letter, such an interpretation appears somewhat tenuous (as the word “cause” is not contained in the termination letter and, on its face, Option #1 merely seeks to provide the plaintiff with the terms contained in her employment contract), I am not prepared to find that it is plain and obvious that the plaintiff’s allegations of misrepresentation cannot succeed at trial.
[32] As a result, Leisure’s motion is dismissed.
Costs
[33] I would urge the parties to resolve the costs of this motion. If such efforts prove unsuccessful, the plaintiff may serve and file her written costs submissions (totaling no more than four pages including a Costs Outline) within ten business days of the release of this endorsement.
[34] Leisure shall thereafter serve and file its responding costs submissions also (totaling no more than four pages including a Costs Outline) within ten business days of the receipt of the plaintiff’s costs submissions.
Diamond J. Released: May 16, 2016