Dosanjh v. Maple Leaf Sports, 2016 ONSC 8005

CITATION: Dosanjh v. Maple Leaf Sports, 2016 ONSC 8005

COURT FILE NO.: CV-16-558109

MOTION HEARD: 20161124

REASONS RELEASED: 20161220

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

JASMINE DOSANJH

Plaintiff

• and-

MAPLE LEAF SPORTS & ENTERTAINMENT LTD.

Defendant

BEFORE: MASTER D. E. SHORT

COUNSEL: Mitch Koczerginski Fax: 416-865-7048

for the moving defendant

Stephanie Pope Fax: 416-642-2045

for the responding party plaintiff

REASONS RELEASED: Decemberr 20, 2016

Reasons for Decision

I Preamble

[1] The Plaintiff, brought this proceeding claiming damages for wrongful dismissal, aggravated damages, damages for discrimination based on sex and family status in violation of the Human Rights Code, and punitive damages including for violation of the Employment Standards Act, 2000.

[2] Following service of the statement of claim, the defendant moves to strike a single paragraph from the plaintiff statement of claim. For the reasons that follow, I determined to dismiss the motion on the basis that on balance, the content of the plaintiff’s pleading ought to be allowed to stand at this stage of the proceeding .

[3] The impugned paragraph reads 9with initials substituted for the non-party’s name reads :

"14. The Defendant has a history of terminating pregnant women under the guise of restructuring their workforce and not offering the displaced individuals a comparable role in the new organization. This was done most recently with MH who was employed as an HR Generalist before taking maternity leave in July 2014. Ms. H was restructured out of her job in June 2015 because she was allegedly not qualified for the restructured role."

[4] The salient portions of the Defendant’s Notice of Motion,in their entirety read:

“THE GROUNDS FOR THE MOTION ARE:

(a) Paragraph 14 of the Statement of Claim contains bald and unsubstantiated allegations that are made solely to cast the Defendant in a bad light. These allegations are frivolous, vexatious and an abuse of process of the court.

(b) The Plaintiff's action relates specifically to the termination of her employment at the Defendant's organization. The allegations at paragraph 14 of the Statement of Claim are irrelevant as they are not made in relation to the Plaintiffs termination and are not material to the relief sought.

(c) Rules 25.11 and 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; and

( d) Such further and other grounds as counsel may advise and this Honourable Court may permit.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:

(a) The Statement of Claim; and

(b) Such further and other material as counsel may advise and this Honourable Court may permit.”

[5] In particular I note there is no sworn evidence whatsoever referred to nor filed in support of the moving party’s position

II. Simplified Rules

[6] One of the issues in play in this case turns on the fact that the plaintiff elected to start an action under Rule 76 as a Simplified Procedure matter.

[7] While such actions must be used where an amount up to $100,000 is claimed; a plaintiff, as in this case, can elect to claim higher amounts in her claim, even if the matter is started under Rule 76.

[8] Under rule 76.02(5) (a) the defendant may object in the statement of defence to the action proceeding under this rule because the plaintiffs claim does not comply with subrule one and the plaintiff does not abandon the reply, the claims are parts of the claim do not apply.

[9] One distinction of a simplified matter is that no cross-examination on affidavits is permitted, but two hours for discovery is allowed. Here no affidavit was filed on behalf of the defendant. Two affidavits were filed on behalf of the plaintiff pursuant to the rule. While I appreciate that cross examination could not be sought with respect to those affidavits, nevertheless their contents stand uncontested by any contrary sworn evidence.

[10] In my view,in these circumstances and given the number of similarities in the two mid-maternity leave terminations in the same personnel department it strains credulity to imagine that the timing and approachs taken was simply a random coincidence.

[11] Each counsel counsel submitted a very helpful factum and I have extracted and adopted portions of those documents with a view to expediting the delivery of these reasons.

III. Plaintiff’s Evidence

[12] Two affidavits were filed on behalf of of the plaintiff, one by her and the other by the a former colleague in the employ of the defendant. Conversely, the defendant elected to file no affidavits with respect to its position on the motion.

[13] Acknowledging that cross examination was not permitted, and that therefore cautioned ought to be exercised in considering the evidence before me, I nevertheless have the following understanding of the facts based upon the sworn filed evidence before me.

[14] The plaintiff is 32 years old and the mother of two young children. Her oldest child is two years of age and her youngest is a recently born infant, who was born during a maternity leave..

[15] While actively employed with the Defendant the Plaintiff held the position of Human Resources Generalist and worked out of the Defendant's offices in downtown Toronto. Her responsibilities included employee relations, the hiring and “onboarding” of employees, posting available positions, providing support with respect to labour relations issues, handling employee complaints, being involved with employee performance reviews and terminations, and other human resources tasks.

[16] While the plaintiff was employed each Human Resources Generalist was assigned to support the needs of a certain business unit of the Defendant. From November 2012 to November 2013, Ms. Dosanjh supported the unit that included the Food & Beverage, Conversion and Operations employees of the Air Canada Centre and Ricoh Coliseum ( hereinafter referred to as "Food & Beverage")."

[17] From November 2013 onwards, she supported the unit that included Human Resources, Information Technology, Legal, Accounting, Finance, and personnel of the Toronto Maple Leafs and the Toronto Football Club. (“HR/IT/Legal/Sports”)

[18] The plaintiff went on maternity leave from the Defendant in February of 2016. On June 22, 2016, Ms. Dosanjh received clear and unequivocal written notice from the Defendant that her employment was terminated effective February 23, 2017 at the scheduled end of her maternity leave.

[19] The provisions of the Employment Standards Act, 2000 SO 2000 c. 41 that relate to this situation read:

Pregnancy leave

46. (1) A pregnant employee is entitled to a leave of absence without pay unless her due date falls fewer than 13 weeks after she commenced employment.

Parental leave

48. (1) An employee who has been employed by his or her employer for at least 13 weeks and who is the parent of a child is entitled to a leave of absence without pay following the birth of the child…. Reinstatement

49. (1) Upon the conclusion of an employee's leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not. [my emphasis]

[20] At the point Ms. Dosanjh was advised, while on maternity leave, that her position was being terminated, the Defendant explained that her position was being eliminated as the result of a "restructuring"!" However, the circumstances suggested otherwise. She knew that the Defendant as advertising at that very time to fill a vacant Human Resources Generalist position supporting Food & Beverage. When she asked the Defendant why she was not being offered e role that was being advertised, the Defendant told her that the position was being changed to a more senior-level position that would not fit with her experience. The Defendant also told her that the position may involve working evenings and weekends and that the defendant didn't think this would be a "fair ask" of Ms. Dosanjh given her "young family."

[21] Ms. Dosanjh asked the Defendant to send her a copy of the position that was being advertised, and the Defendant did so. The plaintiff’s evidence is that contrary to the Defendant's assertion that the role was more senior than the one Ms. Dosanj had occupied, the position had the same title, Human Resources Generalist, the same salary range, the same responsibilities, and the same background requirements. It also involved supporting the Food & Beverage unit, which was Ms. Dosanjh's exact position from November 2012 to November 2013.

[22] In addition to learning the above, the plaintiff states she knew that the Defendant had hired an individual to back-fill Ms. Dosanjh's maternityleave, paid her more than Ms. Dosanjh, and continued to keep her on in the role of Human Resources Generalist supporting another business unit while firing Ms. Dosanjh.

IV. Comparable Termination

[23] In support of the challenged pleading the filed evidence that Ms. Dosanjh's termination was not an isolated event. She observes that the Defendant treated another employee, MH, in the same manner upon her scheduled return from maternity leave.

[24] MH is 36 years old and the mother of one oung child. She was an employee of the Defendant from May 2013 until July 17, 2015. She was also a Human Resources Generalist and supported the Food & Beverage unit beginning in November 2013 when Ms. Dosanjh began supporting HR/IT/Legal/Sports.

[25] MH took maternity leave in July of 2014 and intended to return to work in early July 2015, but the Defendant terminated her employment in June 2015. The Defendant told MH that her dismissal was the result fa "restructuring. " However, just as in the case of Ms. Dosanjh's termination, the Defendant had hired an individual to back-fill MH's role during her leave, and kept that person on while restructuring away MH’s job.

V. Points in Issue

[26] The Defendant has brought this motion pursuant to Rule 25.11, which provides as follows:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[27] The Defendant has argued that paragraph 14 of the Statement of Claim should be struck based on either 25.11 (a) or (b).

[28] On a motion to strike out a pleading, the court must accept the facts alleged in the Statement of Claim as proven unless they are patently ridiculous or incapable of proof, and must read the Statement of Claim generously with allowance for inadequacies due to drafting deficiencies. (Caporrella v. BMO Nesbitt Burns Inc., 2010 ONSC 6738 at para 3, citing Toronto Dominion Bank v. Deloitte, Haskins & Sells (1991), 1991 CanLII 7366 (ON SC), 5 O.R. (3d) 417, at 419, (Ont. Gen. Div.);

[29] The long standing authority of Duryea v. Kaufman (1910) 21 O.L.R. 161;supports the proposition that any fact which can affect the determination of the rights of the parties can be pleaded but the court will not allow facts to be alleged that are immaterial or irrelevant to the issues in the action. As well similar facts may be pleaded as long as the added complexity arising from their pleading does not outweigh their potential probative value - see Garwood Financial Ltd. v. Wallace (1997) 1997 CanLII 12276 (ON SC), 35 O.R. (3d) 280 (Gen. Div.)

VI Distinguishing a Pleadings Motion from a Motion Regarding Admissibility at Trial

[30] The Defendant has indicated in its factum that "similar fact evidence is presumptively inadmissible because of the prejudice that results."² Presumably, the Defendant refers to· the admissibility of similar fact evidence at trial, which is not the subject of this motion. Rather, this motion is about pleading similar fact. It is important that the two subjects be distinguished, as they involve different considerations.

[31] My colleague Master MacLeod (as he then was) had an opportunity to consider in depth issues of this nature in Toronto (City) v. MFP Financial Services Ltd., [2005] OJ No 3214. He observed that determining the admissibility of similar fact evidence requires precise consideration by the trial judge of the purpose of the evidence. For example, if the evidence in question is designed to prove that a party had a propensity to act in a certain manner, then that evidence would fall squarely within the character evidence prohibition and would require a high degree of similarity and probative value to be admissible. On the other hand, if the evidence is material principally to the claim for punitive damages, it is much more likely to be admitted.

[32] At paragraph 29 on his reasons he affirms that a pleadings motion is not the place for arguing such matters:

“The point of this brief foray into the law of evidence is to underscore that the precise nature of the evidence and the ruling on admissibility is a matter for trial. These are not matters to be argued at the pleading stage when the action is only broadly sketched out and neither side is expected to commit to its list of trial witnesses. It is inappropriate to try to predict at a pleading stage what the trial judge will admit or what evidence will ultimately be necessary. Put another way, the fact that similar facts are not pleaded will not necessarily prevent discovery of similar facts or preclude the trial judge from admitting similar fact evidence. On the other hand if similar facts are material to an allegation or to a conclusion of law, fairness is best served by allowing them to be plead.”

[33] Master MacLeod's review of the applicable case law in MFP Financial Services Ltd. includes a helpful list of principles that are applicable to motions to strike similar fact pleadings: (citations omitted):

(a) If similar facts will be material to a portion of the claim including punitive damages, they may be pleaded in order to give fair notice that they will form part of the discovery and will be part of the case at trial;

(b) Similar facts that are mere evidence and are not in themselves material facts should not be pleaded as doing so offends Rule 25.06(1);

(c) Similar facts that are not material and are irrelevant should be struck pursuant to Rule 25.11 (b) as scandalous, frivolous or vexatious but even relevant similar facts may be struck out under Rule 25 .11 (a) if they will prejudice or delay the fair trial of the action.

(d) Even in those cases where the similar facts are relevant and material, they should not be permitted if the added complexity arising from their pleading does not outweigh their potential probative value.

[34] Striking a pleading pursuant to Rule 25.11 (a) on the ground that it may prejudice or delay the fair trial of an action is a fact-driven exercise of discretion. The court must weigh the added complexity of the pleading against the potential probative value of the facts alleged." In the instant proceeding, I am satisfied at this stage that the probative value of paragraph 14 of the Statement of Claim outweighs any added complexity it may bring to the proceeding.

[35] In addition the impact upon the claim for punitive damages needs to be considered.

VII. Relevance to Punitive Damages

[36] The courts in Ontario have repeatedly recognized that repeated or systemic misconduct is relevant to a determination of punitive damages.( e.g. Bansal v. 2343467 Ontario Inc., [2015] OJ No 759 (ONSC) ("Bansal") at paras 46-51)_

[37] The Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595 at para 113. Enumerated factors to be weighed in making a proper award of punitive damages which is proportionate to the blameworthiness of the Defendant's conduct, which is increased where the conduct was planned and deliberate and persisted over time.

[38] In addition, a proper award of punitive damages is proportionate to the need for deterrence which may be increased where there is evidence that the defendant's conduct towards the Plaintiff was not an isolated incident. In Justice Binnie’s reasons for the majority in Whitten he commented on the importance of deterrence:

120 Deterrence is an important justification for punitive damages. It would play an even greater role in this case if there had been evidence that what happened on this file were typical of Pilot's conduct towards policyholders. There was no such evidence. The deterrence factor is still important, however, because the egregious misconduct of middle management was known at the time to top management, who took no corrective action.

[39] Courts have also recognized that a claim for punitive damages should be plead with some particularity and that before someone is punished through an award of punitive damages they should have advance notice so that they may consider the scope of their jeopardy and have an opportunity to respond.

[40] In Hudson v. Linamar Corp., [2010] O.J. No. 5847 (ONSC) the impugned paragraphs of the Statement of Claim alleged that the employer had an "unwritten policy" of firing employees who had or were likely to have increased costs under its benefit plan, and that the plaintiff was fired in accordance with this policy. When particulars were requested, the plaintiff provided particulars of two incidents that he alleged occurred and showed that other employees were targeted for termination in the same manner as he had been.

[41] P.J. Flynn J. denied the employer's motion in its entirety, stating that the allegations relating to similar treatment of two other employees were proper. The plaintiff’s allegation was that all three employees were targeted because of a disability. As such, the court stated, the events had sufficient common features to constitute a scheme of conduct and had "potentially significant probative value," especially as to the Human Rights Code breach. [paras15-16] Also, the allegations, if proven at trial, “might be sufficient in and of themselves to warrant punitive damages.”[para.27]

[42] I am satisfied that similarly to Hudson v. Linamar Corp., due to the types of damages plead in the instant proceeding, it is more complex than a "garden variety" wrongful dismissal claim. However, any complexity added to the proceeding as the result of paragraph 14 of the Statement of Claim is minimal and is outweighed by the significant probative value of the allegations.

[43] Significantly the Defendant has provided no evidence that that an inquiry into such matters would be unduly oppressive or unfair.

[44] While the allegations in paragraph 14 certainly cast the Defendant in a bad light, that is not enough to have the pleading struck. I adopt Master MacLeod’s observation in MFP:

"However embarrassing an allegation may be, it will not be struck out under Rule 25.11(b) as scandalous, frivolous or vexatious if it is material."

VIII. Disposition

[45] For the foregoing reasons I am satisfied that, the application of the above principles to the instant proceeding leads to the conclusion that paragraph 14 of the Statement of Claim is properly plead and therefore should remain in the Claim. I am further satisfied that paragraph 14 accords with Rule 25.06(1). Furthermore, the allegations in this paragraph are relevant to the determination of both general damages for violation of the Human Rights Code and to punitive damages, and their pleading gives fair notice to the Defendant that they will form part of the discovery and be part of the case at trial. The potential probative value of these allegations outweighs by far any alleged complexity arising from their pleading. In addition, as allegations with high probative value to the proceeding, they are not scandalous, frivolous or vexatious.

[46] Certainly there is enough of a similarity in a limited office environment to convince me that it would be inappropriate to strike out the allegation of a similar conduct at this stage of this case.

[47] With respect to costs. Both sides submitted partial indemnity bills that were very close in the total amount proposed, if they were successful on the motion. Having regard to the two amounts claimed I advised client counsel that I was fixing the costs to be awarded on this motion at $8500 on an all in basis, payable within 30 days, in accordance with the normal practice required by the rules pursuant to rule 57.03 (1) (a).

Released: December 20, 2016

Master D. E. Short

DS/ R.162