ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CERIDIAN CANADA LTD.
Ryan Cookson, for the Plaintiffs
and PENDYLUM INC.
Plaintiffs
- and -
JOSS COVENOHO formerly known as
Joss Covenoho, self-represented
FARIDA AZEEZODEEN
Defendant
DECISION
[1]
Overview
This is a motion to strike Ms Covenoho’s counterclaim, set out at paragraphs 29 to 117 of her statement of defence and counterclaim.
[2]
Background
This matter has been before me several times since December 7, 2015 and it has a history before that. In brief:
(a) Ms Covenoho was in an employment relationship with the applicant Ceridian in its business as a payroll services company. Her employment was terminated when she refused to consent to a security clearance check which was imposed as a term of her employment after she had been hired.
(b) After Ms Covenoho left this employment, the applicants obtained an injunction order on a motion without notice before Belobaba J. The order of Belobaba J. was then served on Ms Covenoho with a return date before Belobaba J.
(c) Ms Covenoho did not appear on the return date before Belobaba J., and the injunction order was extended by Belobaba J.
(d) The applicants then moved for an order that Ms Covenoho be found in contempt for breaching the order of Belobaba J.
(e) Belobaba J. found Ms Covenoho in contempt and sentenced her to a period of 20 days of incarceration. The Court of Appeal upheld Belobaba J.’s decision both on liability and sentence.
(f) Ms Covenoho sought to challenge the propriety of the injunction order of Belobaba J., but did so following an ineffective process. Belobaba J. specifically left it open to have the matter brought back before him. However, once the contempt proceedings were underway, Belobaba J. considered that it was no defence to a contempt motion that the predicate order ought not to have been issued in the first place, and he declined to deal with the propriety of the injunction order while he was dealing with the contempt motion.
(g) Ms Covenoho then sought to have the order of Belobaba J. set aside or varied. This motion came on before Penny J., who viewed the motion as an attempt to appeal the order of Belobaba J. He dismissed the motion as beyond the jurisdiction of the Superior Court.
(h) Ms Covenoho then sought leave to appeal the injunction orders of Belobaba J. That motion came on before me. I declined to grant leave to appeal (a) because of the delay in seeking leave to appeal and (b) there was no reason to doubt the correctness of the order made by Belobaba J. on the materials before him. The real issue is whether full and frank disclosure had been made to Belobaba J. and whether, on the merits, considering evidence from both sides, the injunction ought to stand. These issues could be decided either on motion to vary or set aside the order of Belobaba J. or at trial. The applicants objected to defending a motion to set aside or vary given the substantial costs ordered against Ms Covenoho that were outstanding. I permitted Ms Covenoho to bring her motion to set aside the interlocutory order and directed that I would consider whether she should be permitted to pursue it, in light of all the circumstances, once I had seen her materials.
(i) I subsequently declined to permit Ms Covenoho to bring a motion to set aside or vary the interlocutory orders pending trial, but left it open to her to defend against these orders at trial. I granted a motion by the applicants to strike Ms Covenoho’s defence, and granted leave to Ms Covenoho to amend her defence.
(j) Ms Covenoho subsequently delivered a statement of defence which included a substantial counterclaim. The applicants have now moved before me to strike this counterclaim.
3There have been other legal matters between the parties. Ms Covenoho made a claim under the Employment Standards Act, which was dismissed. She also asserted a claim for breach of her contract with the applicant: she had been hired on a one year contract, which had been terminated before the term of the contract was completed. Ms Covenoho’s claim was dismissed on a motion for summary judgment before Faieta J., but that decision was overturned by the Court of Appeal, which awarded her damages of $56,000 to the end of the term of the one-year contract [plus interest, plus disbursements] (2017 ONCA 284).
[4]
Analysis
The claims in Ms Covenoho’s counterclaim concern her allegations that the accusations made against her have been wrongful, the injunction ought not to have been granted against her, and the effect of the applicants’ conduct has been to deprive her of various Charter-protected rights. None of these are tenable claims, as framed. To the extent that Ms Covenoho is alleging that there has been some sort of abuse of process that has caused her damage, her claim is not yet “ripe”: whether as an allegation for malicious prosecution or as a claim of abuse of civil process, until the predicate claim is resolved in her favour, Ms Covenoho cannot make out a claim against the applicants.
5Further, Ms Covenoho does have a measure of protection if she succeeds in her defence of the applicants’ claims against her. The applicants have provided an undertaking to the court, which is recorded in the initial order of Belobaba J.:
… upon the plaintiffs having undertaken to abide by any order concerning damages which the Court may make if it is subsequently determined that the granting of this order has caused damage to the defendant for which the Plaintiffs ought to compensate the Defendant. [Order of Belobaba J. dated May 9, 2014, continued by order of Belobaba J. dated May 14, 2014]
6Claims arising out of the termination of Ms Covenoho’s contract have been fully dealt with by the order of the Court of Appeal. There are no arguable claims in the counterclaim, and none described by Ms Covenoho in argument that could properly be the subject of a counterclaim. Accordingly, the counterclaim is struck, without leave to amend.
[7]
Communications with the Court
Since the parties appeared before me on the motion to strike the counterclaim, Ms Covenoho has contacted my office several times by email. My assistant has advised her, repeatedly, that it is not appropriate for her to be writing to a judge about substantive matters in her case. There has been a pattern to this – after appearances before me, Ms Covenoho follows up with further written argument and requests. This must stop. The parties may contact my office to arrange appointments before me. The parties are not to otherwise contact my office in writing unless I expressly authorize them to do so.
[8]
Disposition and Next Steps
It is time for the parties to move forward with the plaintiffs’ action. They shall schedule a case management appointment before me to settle a schedule for the next steps in this proceeding. This appointment should take place no later than May 12, 2017, and should be schedule for 9:00 am any day I am scheduled to be sitting in court. The parties shall address the question of costs of the motion to strike the counterclaim at this case management conference.
D.L. Corbett J.
Released: April 18, 2017
CITATION: Ceridian Canada Ltd. v. Covenoho (Azeezodeen) 2017 ONSC 2362
COURT FILE NO.: CV-14-10552-CL
DATE: 20170418
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CERIDIAN CANADA LTD. and
PENDYLUM INC.
Plaintiffs
- and -
JOSS COVENOHO formerly known
as FARIDA AZEEZODEEN
Defendant
DECISION
D.L. Corbett J.
Released: April 18, 2017