Court File and Parties

Court File No.: CV-15-526520 Motion Heard: 2016-03-15 Reasons Released: 2016-08-16 Superior Court of Justice – Ontario

Between:

Eric Mezin Plaintiff

and

Her Majesty The Queen In Right Of Ontario and Daniel Cayen Defendants

Before: Master D. E. Short

Counsel: James Heeney, for moving plaintiff Philip Graham, for responding defendant Daniel Cayen William MacLarkey and M. Seddigh, for responding defendant Her Majesty The Queen In Right of Ontario

Released: August 16, 2016

Reasons for Decision

I. Nature of Motion

[1] On April 21, 2015, the plaintiff Eric Mezin commenced this action arising out of the termination of his employment.

[2] The defendant, Her Majesty the Queen in Right of Ontario, (“HMQ”) represented by the Ontario Public Service (the "OPS"), is the former employer of Mezin.

[3] The defendant, Cayen, is the former Assistant Deputy Minister ("ADM") for the Office of Francophone Affairs ("OFA"), a subset of the OPS, and the former supervisor of Mezin. Cayen retired from active duty on or about July 11, 2014.

[4] Ultimately the OPS served its Statement of Defence and Statement of Defence to the Crossclaim of Cayen on August 21, 2015.

[5] On the present motion the plaintiff asserts that he requires further particulars with respect to matters raised in the Statements of Defence.

[6] For the reasons that follow I have determined that in the somewhat unique circumstances of this case it is appropriate to direct the provision of the further particulars sought.

II. Applicable Rule

[7] The moving party relies in part on Rule 25.06 of the Rules of Civil Procedure which deals with “Material Facts” and reads:

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

Nature of Act or Condition of Mind (8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

[8] Rule 25.10 deals specifically with particulars and provides:

25.10 Where a party demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.

[9] Here the defendants assert the particulars sought are not necessary for the plaintiff to deliver his Reply to their respective Statements of Defence.

[10] The function of particulars is to limit the generality of pleadings and thus to define issues which must be tried and as to which discovery must be given. Discovery is not a substitute for particulars. (see International Nickel Co. V.. Travellers Indemnity Co., [1962] O.W.N. 109 (C.A.))

[11] On the issue of the timing of particulars, there may be cases where the complexity the litigation requires that particulars be ordered during the discovery process in to enable a party to prepare for trial. In Asfordby Storage and Haulage Ltd. v. Bauer (1985), 1 W.D.C.P. 505; 1985 CarswellOnt 3269, Salhany D.C.J. confirmed that the purpose of pleadings, particularly under the present Rules is to define the issues as precisely as possible for the benefit of both the parties and the court. His Honour particularly observed:

13 However, it must be remembered that the chief purpose of pleadings, particularly as they are now required under the new Rules of Civil Procedure, is to define the issues which have to be decided as precisely as possible for the benefit, not only of the parties, but also of the court. There is no doubt that there may be instances where, as in Fairbairn v. Sage, all of the facts upon which the cause of action are based are known only to the defendants in which case, the plaintiff would not be expected to facts not within his knowledge. …. If Rule 25.07 is to have any, meaning, there is, in my view, at least an obligation upon the plaintiff to point to those transactions in dispute before it can call upon the defendants to refute them. I think it is of significance in this case that the plaintiff filed no affidavit outlining it's difficulty in making specific allegations whereas an affidavit has been filed on behalf of the defendants indicating that the defendants "do not have within their knowledge particulars of these allegations … of the said Statement of Claim."

III. Parties

[12] The defendants are each represented by independent counsel. Mr. Cayen has asserted a cross claim against HMQ asserting that to the extent “any part of the plaintiff’s claim arises out of Her Majesty’s failure to perform its obligation to the plaintiff Cayen is entitled to be fully indemnified by Her Majesty”. In particular the defence to the crossclaim of Cayen against HMQ asserts:

“3. HMQ pleads that if any damages arise in in this action, which is denied, such damages arise on account of Cayen's conduct for which HMQ is not liable. In particular, HMQ states that: (a) section 46.3 of the Human Rights Code has no application to the case at bar as that section expressly provides that an employer is not liable for the conduct that is alleged against Cayen in the fresh as amended statement of claim; (b) the common law doctrine of vicarious liability has no application to the case at bar as any damages caused by Cayen were caused by his conduct which fell outside the scope of Cayen's employment; and (c) there is no basis for contribution or indemnity by HMQ under the Negligence Act for any damages arising in negligence, which damages are denied.

[13] What is clear from this pleading is that allegations concerning the individual conduct of the defendant Cayen are more than incidental to the issues of liability of both defendants in this action. However the Defences raise issues as to whether, in any event, the termination of the plaintiff’s employment was otherwise justified.

IV. Background

[14] Mr. Mezin's employment with OPS was terminated on September 22, 2014. Mezin alleges that he was wrongfully dismissed and that OPS breached its duty of honesty and good faith. As well, Mezin pleads that the OPS breached the Human Rights Code. As against both Defendants, Mezin also alleges the infliction of mental distress.

[15] In his affidavit in support of the motion before me Mezin outlines that the action arises out of his employment in the OPS under the management Cayen and Cayen’s then superior, the responsible Deputy Minister.(“ the DM”).

[16] The plaintiff’s affidavit in support of the motion for particulars reads in part:

3. Throughout my tenure at the OPS I experienced bullying, discrimination, harassment and retaliation. The conduct persisted over a number of years and was so severe that it resulted in health issues and, ultimately, a medical leave of absence.

[17] He asserts that he initially raised these concerns in August 2012 and repeatedly asked the DM to investigate, and to help the plaintiff to move to a different position within the organization.

[18] The plaintiff further asserts that while the DM “agreed to assist me, he did not investigate or appropriately address the harassment. The affidavit continues:

6. Months later, however, an investigation was completed, and there was a finding of harassment made against Cayen regarding his conduct towards me and against [the DM] for failing to address the matter. Further, there was a finding that Cayen's assessment of my performance was biased and could not be relied upon for a period dating back as far as 2010 and that harassment in respect of performance assessment was a key finding of the report.
7. Despite this, my employment was terminated shortly after the report of the investigation was produced and while [I was] on sick leave.”

[19] The Statement of Claim describes the Plaintiff’s understanding of investigations that took place prior to his termination:

38. Following the completion of the investigation two reports were released. The investigation found, amongst other things, the following: a. Cayen subjected Mezin to personal harassment, creating a poisoned work environment; b. The investigator called the behaviour by Cayen towards Mezin "insulting, hurtful, hostile, vindictive and an abuse of his position"; c. The investigator found that Cayen "used a loud, angry, harsh and unpleasant tone with C [Mezin] and berated him"; d. The investigator also found that Mezin was treated by Cayen in a "disrespectful and dismissive manner, directing insulting remarks, gestures and actions" at Mezin. Also that Cayen "used expletives", and was "targeting" Mezin with "persistent, unwanted criticism" and included such conduct in front of others; e. Cayen's behaviour was found to be "intimidating, offensive, threatening and humiliating" to Mezin; f. Mezin's reputation was found to have been "denigrated and devalued" by Cayen in front of others causing Mezin "humiliation"; g. Cayen subjected Mezin to unfair, improper, inappropriate and biased performance review, constituting personal harassment. This included holding that: i. Cayen failed to follow appropriate performance review processes and procedure as required by the OPS' policy; ii. Cayen's performance review process was "not reliable and fundamentally flawed"; iii. Cayen's process involved "unabated criticism, intimidation, and overall bullying"; iv. Cayen's process of performance review was "biased; v. Cayen subjected Mezin to "harsh and unreasonable verbal criticism, set no objective goals or measurable achievements"; and vi. Cayen’s performance review of Mezin was "driven, at least in part, by incorrect, biased and unfair considerations". h. [The DM] failed to respond appropriately or to properly investigate contrary to the Policy; i. That steps were taken to terminate Mezin's employment without cause through submissions which were based on the aforementioned flawed performance review and did not include providing the reviewing body with particulars of the allegations of Mezin against Cayen.”

[20] The pleading continues with assertions that it was also found by the investigator that Cayen was "subjecting Mezin to performance management that was in fact harassment".

[21] The Statement of Defence employs the usual language to deny “any and all allegations” contained in most of the paragraphs in the Statement of Claim including that set out above, in the list of paragraphs denied.

[22] At this stage these are technically unproven allegations; however to the extent they are apparently included in a report commissioned by HMQ on these issues the plaintiff is entitled to complete clarity. If HMQ has information to undermine these findings the time to produce it is now.

[23] No one has said that the information sought is not available.

[24] I note that no cross examination of the plaintiff on his affidavit took place. Moreover, the only affidavit in opposition to the motion is sworn by an articling student with counsel for Cayen’s law firm. That affidavit provides additional background which is of some assistance but does not meaningfully challenge the plaintiff’s sworn evidence concerning his present need for further details in order to deliver a meaningful Reply.

V. History of the Proceedings

[25] This action has already had a number of delays and requests for particulars exchanged amongst the parties.

[26] Ultimately the plaintiff served a Demand for particulars on the basis that the delivered pleading “contained insufficient detail to properly limit the generalities of the pleadings and define the issues to be tried.”

[27] The three paragraphs in the HMQ defence that give rise to the request for further particulars read in part:

“15. HMQ states, and the fact is, that its basis for terminating Mezin's employment without cause is irrelevant so long as said basis did not contravene the Code, which, as stated, it did not, and as was expressly confirmed in the investigator's report. 16. In any case, the plaintiff was dismissed because of longstanding and widely held concerns with his performance, which concerns arose before Cayen commenced employment at the OFA, and well before Mezin raised any complaints in August of 2012. For example: (a) In 2007, Mezin, as Conference Coordinator for the Conference of Ministers Responsible for Francophonie, was unable to manage the necessary preparations and conference organization. The then ADM of the OFA … determined there was a significant risk of a failed conference and had to bring in another manager on secondment to assume Mezin' s responsibilities. (b) In 2008, a "360 Evaluation" of Mezin's performance was conducted after Mezin rejected Cayen's performance concerns. A "360 Evaluation" is a rigorous review conducted by an independent assessor who seeks input from individuals both inside and outside the organization. The 360 Evaluation concluded that Mezin was not performing at the level of a Director but rather at the level of a junior manager or project manager….” 24. Beginning in August 2012, and further to Mezin's stated request, [the DM] made inquiries at 5 different ministries with his own contacts, and with individuals Mezin identified, who had previously worked with or knew the plaintiff. Unfortunately, none of the contacts … including those identified by Mezin, had anything positive to say about the plaintiff's work performance.

[28] The specific particulars now sought are:

1. With respect to paragraph 15 and 16 to provide particulars of the alleged performance issues of the Plaintiff including (a) the alleged issue; (b) when the issue occurred; (c) what steps, if any, were taken to address them with the Plaintiff; and ( d) if they were raised to the workplace investigator;
2. With respect to paragraph 24, to identify the names of the contacts that [the DM] spoke to about the Plaintiff.

[29] While a Response was provided in September of 2015, the plaintiff’s affidavit asserts with respect to that document that:

“18. The Response again contained very little detail and did not sufficiently limit the generalities of the pleading or define the issues to be tried.

[30] I contrast this position with that contained in the articling student’s affidavit where she notes that her evidence is “based upon a review of correspondence in file or “upon being addressed by Philip Graham” the associate in our office who has carriage of this action, and I verily believe some to be true.”

[31] In part the substance of the affidavit notes:

20. Cayen's Response to the Demand for Particulars provided that the specifics of the particulars demanded are all within the knowledge, power, and/or control of OPS. Alternatively, Cayen provided an undertaking to produce any documents in his possession or particulars that he may have in relation to the Plaintiff's performance or otherwise at the time of the discoveries. ….
21. I have been advised by Graham, and I do verily believe, that particulars demanded are not necessary to enable Mezin to plead, or the allegations are sufficiently particularized as required under the Rules. As well, the evidence demanded will be adequately addressed at the time of discovery.
22. Heeney described the motivation behind the Demand for Particulars as: "I just need enough information to allow me to define my production, prepare my questions and prepare my client."
23. I have been advised by Graham, and I do verily believe, that this motion has delayed this action by four months, being the time expended from November 10, 2015 when Heeney indicated his client's position that the Defendants' Responses to Particulars were insufficient.

[32] While I recognize the guidance of the seven day period to request particulars provided in Rule 25.10. I believe a strict enforcement of that short period at this point would not be in keeping with the guidance of Rule 1.04 which mandates an overall goal of having matters determined on their merits.

[33] As to the other arguments put forward by the defendants, I do not find them sufficient to convince me that the particulars sought ought not to be provided.

[34] Moreover, I find that alternative position outlined above, suggesting that an undertaking from the individual defendant to produce any documents in his possession or particulars that he may have in relation to the Plaintiff's performance or otherwise at the time of the discoveries, is not consistent with my duty as this time.

[35] Either the information and documents exist and ought to be produced in response to the demand made or the defendant needs to state there are no such documents in his possession or control.

VI. Caselaw

[36] My colleagues have, over the years, addressed similar issues but in changing Rules environments. Master Sandler in 1985 addressed the particular needs for details in the pleading of employment termination cases.

[37] In Copland v. Commodore Business Machines Ltd., , 52 O.R. (2d) 586, he noted:

Rule 25.06(1) mandates a minimum level of material fact disclosure and if this level is not reached, the remedy is not a motion for "particulars", but rather, a motion to strike out the pleading as irregular. It is only where the minimum level of material fact disclosure has been reached, that the pleading becomes regular. Thereafter, the discretionary remedy of "particulars" under rule 25.10 becomes available, if the party seeking particulars can qualify for the relief under the provisions of that rule.

Thus it becomes necessary, in any specific type of action, to determine the minimum level of material fact disclosure required for any particular pleading, in order to determine if the pleading is or is not regular. This is not an easy task by any means, and much common sense must be brought to bear in this endeavour. As well, the purpose and function of pleadings in modern litigation must be kept constantly in mind. It is often difficult to differentiate between, and articulate the difference between material facts, particulars, and evidence.

Some assistance is obtained, as to statements of defence, from new rule 25.07(4) which seems to be the successor to parts of former Rules 144 and 145. Under this new rule, a party must plead " ... any matter on which the party intends to rely to defeat the claim of the opposite party ... ", and the "material facts" in relation to such matters must be set forth as required by rule 25.06(1).

Further assistance is obtained from Bullen and Leake and Jacob's Precedents of Pleadings, 12th ed. (1975), at pp. 1207-8, where the precedent sets forth a plea of misconduct of an employee, in wilfully disobeying the reasonable orders of his employer, or by habitually neglecting his duties, or by dishonestly converting to his own use money which he had received to the use of the employer. The precedent then indicates that the pleading is to "state the particulars of the misconduct which justified the dismissal according to the fact". Further on, the notes say: "The ground of dismissal must be specifically pleaded (Tomlinson v. L.M.S. [1944] 1 All E.R. 537 at 541)". And further:

The defendant must in his Defence give particulars of the misconduct to show clearly in what it consisted, so as to enable the plaintiff to meet the charge, and if this is not done, further particulars will be ordered. (See Saunders v. Jones (1878), 7 Ch. D. 435).

Counsel for the responding party relied on Physicians' Services Inc. v. Cass, , [1971] 2 O.R. 626 (C.A.); Steiner v. Lindzon et al. (1976), , 14 O.R. (2d) 122, 1 C.P.C. 237; and Lang v. Bray et al. (1974), , 14 C.P.R. (2d) 28, to argue that no further information had to be supplied in the statement of defence.

In my view, the minimum level of material fact disclosure for a statement of defence in a wrongful dismissal action, where the defendant employer relies on cause for the dismissal, is very high, and the pleading must contain sufficient detail so that the employee and the court can ascertain the exact nature of the questions to be tried, and so that the employee can meet the charge and respond in his reply accordingly. [my emphasis throughout]

[38] More than 25 years later, Master Muir provided a most helpful overview of the development of interpretation of the requirements for particulars and the court’s ongoing discretion in Reichmann v. Koplowitz, 2012 ONSC 5063. In that case he observes:

9. In my decision in Areva NP GmbH v. Atomic Energy of Canada Ltd., [2009] O.J. No. 4372 (S.C.J. - Master), I summarized the applicable law regarding particulars as follows:

10. Rule 25.10 has been interpreted to require particulars of a pleading only when the particulars sought are not within the knowledge of the party seeking them and when they are necessary to enable that party to plead. In Obonsawin v. Canada, [2001] G.S.T.C. 26 (ONSC), Epstein J. (as she then was) had occasion to comment on when particulars should be ordered. At p. 26-9 of that Report she stated as follows:

In terms of the general principles, the test for when particulars should be ordered is that set out in the decision in Physicians' Services. In that case the court applied the principles laid down in cases such as Fairbairn v. Sage, , 56 O.L.R. 462, [1925] 2 D.L.R. 536 in which it was held that particulars for pleading will only be ordered when (1) they are not within the knowledge of the party demanding them, and (2) they are necessary to enable the other party to plead. While other cases such as Champagne v. Kapuskasing Plumbing & Heating Ltd. (1996), 48 C.P.C. (3d) 111 (Ont. Div. Ct.), help explain why particulars are ordered such as to define the issues, to prevent surprise at trial, to enable adequate preparation for trial, and to facilitate the hearing, I am of the view that the Physicians' Services case remains the authority as to when the court should order particulars.

40. See also: Caputo v. Imperial Tobacco Ltd. (1996), 48 C.P.C. (3d) 339 (Ont. Ct. G.D.) at 343; Physicians Services' Inc. v. Cass, , [1971] 2 O.R. 626 (C.A.) at 627; and Mirshahi v. Suleman, , [2008] O.J. No. 4954, above, at para. 17

41 The onus to satisfy the Court that particulars are necessary, and not within the knowledge of the party requesting them, rests with the party requesting the particulars. See Obonsawin, above, at p. 26-10. AECL, therefore, has the onus of demonstrating that it does not know the information requested in the list of particulars at paragraph 3 of the Notice of Motion. As stated in Master Sandler's decision in Copland, above, at 588:

In between the concept of "material facts" and the concept of "evidence", is the concept of "particulars". These are additional bits of information, or data, or detail, that flesh out the "material facts", but they are not so detailed as to amount to "evidence". These additional bits of information, known as "particulars", can be obtained by a party under new rule 25.10, if the party swears an affidavit showing that the particulars are necessary to enable him to plead to the attacked pleading, and that the "particulars" are not within the knowledge of the party asking for them. An affidavit is not necessary only where the pleading is so bald that the need for particulars is patently obvious from the pleading itself. New rule 25.10 is substantially the same as former Rule 140, and in my view, the law on this subject has not changed by reason of the change from the Rules of Practice to the Rules of Civil Procedure.

[39] Having applied the principles set out above, I have come to the conclusion that further particulars are necessary. It is important to remember that an order for particulars is a discretionary one. The court must make the order that is just in the circumstances of each case.

VII. Policy and Rule 31.05.1

[40] One area that does not appear to have been raised in the earlier cases, relates to the present time limit imposed for examinations for discovery now imposed by rule 31.05.1. That rule provides:

No party shall, in conducting oral examinations for discovery, exceed a total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with the consent of the parties or with leave of the court.

[41] The cost of litigation continues to escalate. Individual plaintiffs ought not to be forced to seek an extension of the mandated discovery time to deal with information that is provided only ask for following the examination for discovery. To fail to provide requested information on a timely basis only increases the cost and delay.

[42] The Supreme Court of Canada provided clear guidance in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28. Our Court of Appeal has noted that guidance in cases such as Carioca's Import & Export Inc. v. Canadian Pacific Railway Ltd; [2015] O.J. No. 4569; 2015 ONCA 592. There the court in dealing with another type of procedural dispute observed in part:

52 … Fighting highly contested motions over cases being struck and restored to the trial list is not an effective use of scarce judicial and legal resources. Ontario courts are actively discouraging a "motions culture" among counsel, and the Supreme Court of Canada has called for a "shift in culture", citing the need for a process that is proportionate, timely and affordable: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.

53 While this court has stated frequently that the plaintiff bears the primary responsibility for moving a case forward, it has also acknowledged that the conduct of a defendant is a factor, especially where a plaintiff encounters some resistance when trying to move the action along: 1196158 Ontario Inc., at para. 29. The suggestion that it is normal and acceptable for a defendant, if not to actively delay, to simply wait for the plaintiff to make the next move, may be based on a conventional view of litigation strategy. The objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice: Hryniak, at para. 32. For these reasons, although the burden of proof on the motion is on the plaintiff, the conduct of all parties in relation to the litigation is relevant ….”

[43] The general principle established by rule 1.04 is that the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every of every civil proceeding on its merits. Subrule 1.1 specifically directs that the court shall make orders and give directions that are proportionate to the importance and complexity of issues and to the amount involved.

[44] I am satisfied that the goal of expeditious determination is best satisfied in this case by the provision of fulsome particulars well in advance of examinations for discovery. Such disclosure will permit effective preparation by plaintiff’s counsel, based on specific assertions rather than guesswork.

[45] In exercising my discretion in this case, to order the delivery of all the particulars sought by the plaintiff, I believe that I am acting in accordance with those principles.

VIII. Disposition

[46] I therefore am directing that the defendants provide the particulars sought, to be provided within thirty days.

[47] The plaintiff shall deliver its Reply within 15 days of being served with the particulars directed above.

[48] Affidavits of Document are to be served within 60 days of directed particulars being provided.

[49] If the parties cannot agree on a Discovery Plan within 90 days I will convene a telephone case conference to assist them in establishing one.

IX. Costs

[50] I note that an early stage counsel for the moving party offered to resolve this motion on the following basis:

“If the parties can simply confirm that all performance issues have been raised in the (a) pleadings; (b) performance reviews; and/or (c) in the investigation report and exhibits, we can address cancel this motion. Otherwise, I will be booking the motion and seeking costs.

We will not be seeking particulars of what action, if any, was taken to advise Mezin.

In addition, we are seeking the names of the 5 individuals outlined in paragraph 24 of the statement of defence of the OPS for the reasons outlined above.”

[51] Having now succeeded the Plaintiff is entitled to his costs of this motion. The amount sought by plaintiff’s counsel was well under that sought by either counsel opposite.

[52] I am therefore awarding costs of $1500 plus HST payable within 40 days against both defendants on a joint basis.

Master D.E. Short