Khan v. Chemtura, 2016 ONSC 6812

COURT FILE NO.: CV-12-456352

MOTION HEARD: 20160829

REASONS RELEASED: 20161031

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

Jameel Khan

Plaintiff

and

Chemtura, Jim Greene and Dave Maclean

Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL:

J. Mendelsohn , for moving plaintiff F ( 416) 848-6998

Stephen J.K. Goodwin, for defendants F (519) 746-4037

RELEASED: October 31, 2016

Reasons for Decision

I. Nature of Motion

[1] This 2016 motion is brought by the Plaintiff in an action commenced in 2012 for leave to amend the Statement of Claim. The defendants assert that the amendments sought are statute barred and ought not to be permitted.

[2] The plaintiff Jameel Khan was employed by the corporate defendant, Chemtura as a Job Process Operator in a chemical manufacturing business.

[3] The individual defendants were employees of the corporate defendant.

[4] Originally, the action sought “damages for harassment” at his workplace.

[5] He also sought damages “arising from the defendants’ discrimination against the plaintiff on the basis of his race, contrary to the Ontario Human Rights Code”.

[6] The defendants raise procedural and legal questions relating to the validity of the original pleading. As a result amendments are now sought by the plaintiff, which the defendants oppose.

II. Amendment Sought

[7] It will assist to set out the specific amendments sought in order to focus the inquiry, which needs to be made on this motion.

[8] The first amendments sought, which include deletions are as follows:

1. The Plaintiff claims against the Defendants:

a. damages for harassment intentional infliction of mental distress at the work place in the amount of $300,000.00;

b. damages in the amount of $50,000.00 arising from the Defendant's harassment and discrimination against the Plaintiff on the basis of his race contrary to the Ontario Human Rights Code, R.S.O., C. H.19;

c. damages for mental distress and anguish in the sum of $200,000.00;

d. punitive and exemplary damages in the amount of $100,000.00; …

[9] The Original pleading read in part:

“Liability of the Defendants

24. The Plaintiff pleads that he was harassed at his place of work, discriminated on account of his race, wrongfully charged and suspended and forced to go 'on leave' and relies on the following conduct of the Defendants:

a. The defendant, Dave MacLean asked the plaintiff why he had returned to work and why he didn't just quit;

b. The defendant, Dave Mac Lean harassed the plaintiff at his place of work;

c. The defendant, Dave MacLean was open in his disdain for East Indians and would refer to the plaintiff as a "Paki",

d. The defendant, Dave MacLean would make comments like "they stink; they put curry into tea and milk" "why do these guys not take a shower?"

e. While he was working on a product, the defendant, Dave MacLean ordered the plaintiff to mop the floor with "Iosol", which is forbidden by the regulations as it is a fire hazard;

f. The defendant, Dave MacLean told the plaintiff "You are fired, Punch out and go home. If they need you, you will receive a call from the front office" without any explanation;

g. the Defendants failed to discharge their duty to the Plaintiff by failing to provide him with a safe working environment;

h. the Defendants wrongfully charged the plaintiff and forced him to go on leave ;

i. the Defendants breached their duty of good faith owed to the Plaintiff and did not provide him with a copy of the Production Sheet F-4 so that he could defend himself against the charges that were made against him;

j the Defendants breached their duty of fairness towards the plaintiff by not giving him the records he requested in order to have a fair opportunity to defend himself against the charges that were laid against him;

k. the Defendants failed to consider the Plaintiffs record of good and efficient service;

l. The Defendants did not pay the plaintiff his salary increment pursuant to completing his certification for the entire period for which the plaintiff was eligible for such increment;

m. The Defendants harassed the plaintiff after he returned from 'bereavement leave' which was occasioned by his sister's demise and in spite of showing his sister's death certificate to one supervisor, he was not believed and was made to feel humiliated;

n. Such further and other grounds as counsel may advise;

25. The Defendants had a duty under the Ontario Human Rights Code, supra, and at common law to treat the plaintiff without racial discrimination, failing which they would be liable for punitive and exemplary damages.”

[10] The plaintiff now seeks to amend subsequent paragraphs to read:

26. The plaintiff pleads that it was reasonably foreseeable that the defendants' acts of harassment and discrimination against the plaintiff would result in the plaintiff suffering serious emotional and psychological damages and makes the defendants liable for punitive and exemplary damages. The defendants knew or ought to have known that the repeated pattern of harassment and discrimination and their overall demeaning treatment of the plaintiff would cause him to suffer mental distress. The plaintiff pleads that the Defendants were intentional in their actions and behaviour towards him as they saw that he was suffering and struggling to get through his work day and yet they continued to belittle him.

Damages Suffered by the Plaintiff

27. The Plaintiff pleads that he suffered embarrassment and depression due to the manner in which the defendants wrongfully charged and suspended him without giving him an opportunity to defend himself; As a result of the repeated harassment and discrimination that the Plaintiff faced on a near daily basis from approximately June 2010 until October 2011, the Plaintiffs health deteriorated as he was unable to handle the increasing negative feelings and stress he felt every time he went to work. His mood took a turn for the worse and he became depressed as a result of knowing that he would be singled out and given a hard time at his work place.

28. The Plaintiff continued to feel depressed about the humiliation he experienced from the defendants. He did his best to avoid encountering the defendant, Dave MacLean in the lunch room so that he would not be subjected to racist comments about East Indians.

29. The Plaintiff states that the Defendant's repeated and spiteful actions and treatment of the Plaintiff discriminated against him on the basis of race and caused the Plaintiff profound mental distress, depression and anxiety.

[11] It is noted that the last sentence above in the original version contained this assertion of causing mental distress to the plaintiff

[12] The affidavit in support of the plaintiff’s motion asserts that in counsel’s view, “a new cause of action is not asserted by these amendments, but rather they are to provide additional facts and clarifications upon which the original right of action was based and therefore the amendments are not statute barred.”

III Procedural Steps

[13] The factum filed on behalf of the defendants indicates that they oppose the amendment sought in their entirety because the proposed claim “has not been properly pleaded, is lacking the necessary particulars, does not raise a tenable claim and attempts to raise a statute barred claim, resulting in a presumption of prejudice that cannot be compensated by costs.”

[14] It is further asserted that the plaintiff “ought to of been aware of the alleged cause of action that a significantly earlier point in the litigation, and there is no good reason for that he is seeking leave to amend at this late stage.”

[15] The parties have obtained altered set down dates since the action was commenced in 2012. The most recent was an order of Master Muir in December 2015 which required that the action be set down for trial by July 29, 2016. This motion was filed before, but argued after that date. Before me the parties consented to my making an order extending the set down date to June 30, 2017.

[16] The defendants take the position that the plaintiffs original claim alleged that he suffered damages as a result of harassment and discrimination on the basis of his race, contrary to the Ontario Human Rights Code, throughout his employment with the Defendant. They further submitted that the Plaintiff's Statement of Claim failed to disclose a reasonable cause of action for the damages sought, as harassment and discrimination are not recognized independent tort actions. The defendants further took the position that the Plaintiff's Statement of Claim also failed to properly plead the requisite elements or any material facts to support a claim for damages for the intentional infliction of mental distress.

[17] As a consequence on July 6, 2016, the Defendant's brought a motion to strike the Plaintiff's Claim on the basis that it failed to disclose a cause of action and/or the Court has no jurisdiction in this matter, which ought to have been brought as an application before the Human Rights Tribunal of Ontario.

[18] The Plaintiff did not serve the Defendants with a factum in response to the motion, and instead served the Defendants with this Notice of Motion, seeking to amend his Statement of Claim and extend the time to set the matter down for trial.

[19] . The Plaintiff requested the adjournment of the Defendant's motion, seeking to have his motion heard first. Justice Goldstein held that the instant motion should be heard first on August 29, 2016, followed by the Defendant's motion on September 15, 2016.

[20] I understand that the motion before Justice Goldstein is now scheduled for November 10, 2016.

IV. Defendants’ Position

[21] The defendants describe the issue on this motion as involving a determination as to whether the proposed amendments should be granted. The Defendants oppose the proposed amendments because the claims for intentional infliction of mental distress and for discrimination and harassment have not been properly pleaded, including by lacking sufficient particularity, do not raise a tenable claim and attempts to raise a statute-barred claim resulting in a presumption of prejudice which cannot be compensated by costs.

[22] While the general rule under Rule 26.01 is that amendments are presumptively approved, granting leave to amend pleadings under Rule 26.01 is not absolute. Caselaw has held that courts have a "residual right to deny amendments.

[23] In Skrobacky v Frymer 2014 ONSC 4544, at paragraph 9, 243 ACWS (3d) 315. Justice Then held that the Court may refuse to grant leave to amend where the proposed amendment is untenable at law.

[24] Pursuant to Rule 25.06 every pleading must disclose the material facts on which the party relies for the claim or defence. Material facts include those that establish the constituent elements of the claim.

[25] Then Master Beaudoin held in Oz Merchandising Inc. v Canadian Professional Soccer League Inc., 2006 Can LII 24457, that where the Plaintiff has failed to set out the material facts to establish the constituent elements of the claim, the claim is not tenable at law and the Court ought to refuse leave to amend. As well, courts have held that amendments ought not to be granted where the amendment will cause non-compensable prejudice.

[26] The case law clearly supports the position that where a party seeks to amend their pleading to raise a statute-barred claim, the expiry of a limitation period gives rise to a presumption of prejudice." (see Frohlick v Pinkerton Canada Ltd 2008 ONCA 3, at paragraph 17, 163 ACWS (3d) 371.

[27] Before me, the defendants submitted that the Plaintiff should not be granted leave to amend his claim, on the basis that the claims for intentional infliction of mental distress and for discrimination and harassment have not been properly pleaded, including by lacking sufficient particularity, and do not raise a tenable claim.

[28] I am not convinced that the amendment ought to be declined refused on the basis of lack of particulars. I am however satisfied that on my understanding of the facts in this case Plaintiff’s Claim for Intentional Infliction of Mental Distress is statute-barred.

V. Limitations Act, 2002

[29] Based on the evidence before me, I am convinced by the defendants’ submission that the Plaintiff's claim for intentional infliction of mental distress was discovered by him well before the instant motion. It would seem that the facts the Plaintiff relies upon in an attempt to establish his claim for intentional infliction of mental distress occurred primarily in 2010, approximately 6 years prior to the instant motion, and well beyond the two-year limitation period.

[30] The cause of action may not have been specifically identified. However, the factual matrix would give rise to such a claim had been known by the plaintiff, more than two years before this motion was brought.

[31] The Limitations Act, 2002 addresses discoverability on these terms (with my emphasis added):

5. (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).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[32] Shortly after this motion was argued before me, the Court of Appeal released its decision in Arcari v. Dawson, 2016 ONCA 715. There Hoy A.C.J.O., Lauwers and Benotto JJ.A. dealt with a case where the plaintiff pedestrian was injured when she was struck by a vehicle as she crossed the street. She sued the driver of the vehicle and later moved to add the respondent municipalities as defendants to the action. The motion judge dismissed her motion on the basis that her claim against the respondents was statute-barred.

[33] After the action was commenced the appellant hired a new lawyer. The appellate court’s endorsement notes:

“…When he attended at the accident scene, it was "obvious" to him, given what he asserted in oral argument to be his unique professional experience, that the design and safety features (or lack thereof) at the crosswalk were contributing factors to the 2009 accident. The appellant accordingly moved to add the respondents, the City of Kitchener and the Regional Municipality of Waterloo, as defendants.

[5] The motion judge observed that the appellant's expert "attended at the accident scene within one year where all of the design features or deficiencies were there to be seen, noted and reported or." The motion judge found that the respondents' alleged negligence "was as close to within the "actual knowledge" of the [appellant's] lawyer and engineer as it can come". In his view, it was not a case in which discoverability and due diligence could play a role in extending the limitation period. He concluded that the appellant ought to have known that an act or omission of one of the respondents had contributed to her injuries….”

[34] Following a review of the provisions of the Limitations Act that I have set out above, the court observes:

[9] When a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known of the matters described in clause 5(1 )(a) is a question of fact: Lima v. Moya, 2015 ONSC 324, at para. 76, affd on appeal 2015 ONSC 3605 (Div. Ct.), at para. 19.

[10] When a plaintiff's motion to add a defendant is opposed on the basis that her claim is statute-barred, the motion judge is entitled to assess the record to determine whether, as a question of fact, there is a reasonable explanation on proper evidence as to why she could not have discovered the claim through the exercise of reasonable diligence. If the plaintiff does not raise any credibility issue or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim through the exercise of reasonable diligence, the motion judge may deny the plaintiff's motion (Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), at paras. 18, 19, 24).

[35] While the present motion does not relate to adding a defendant late, the requested addition of a new cause of action in my view raises a similar question as to discoverability.

VI. Disposition

[36] In the result, I am not satisfied that the amendments sought to add in paragraph 1(a), a claim for the “intentional infliction of mental distress.” Should be permitted. I am satisfied that the reference to assessment in paragraph 1(b) harassment in paragraph 1B should be permitted as such claims were included in the original pleading.

[37] The amendments to paragraph 29 are permitted. With respect to paragraphs 26 and 27. I am deferring a final decision to Justice Goldstein as his determination of the follow-up motion may have some impact on what portions if any of those paragraphs ought to be permitted to remain, or be struck.

[38] The parties agreed that $1500 was a reasonable costs award to whichever party won the motion. In the circumstances, I feel the most appropriate order is for the costs of this motion, fixed at an all-in amount of $1500, to be to the defendant in the cause of the main action.

R. 154/DS __________________

Master D.E. Short