Caldwell v. The Peace Naturals Project Inc. et al.The Peace Naturals Project Inc. v. Caldwell et al.

[Indexed as: Caldwell v. Peace Naturals Project Inc.]

Ontario Reports

Ontario Superior Court of Justice,

Vallee J.

May 15, 2018

142 O.R. (3d) 69 | 2018 ONSC 3065

Case Summary

Human rights — Discrimination — Marital status and family status — Plaintiff bringing action for damages for wrongful dismissal — Plaintiff alleging that she was terminated in part because of her romantic relationship with defendant's CEO — Plaintiff pleading that termination amounted to discrimination with respect to marital status and family status contrary to Human Rights Code — Defendant moving unsuccessfully to strike claim of discrimination on basis of marital status — Serious romantic relationship possibly falling within "marital status" — Pleading of discrimination on basis of family status struck as disclosing no reasonable cause of action — Human Rights Code, R.S.O. 1990, c. H.19.

The plaintiff brought an action for damages for wrongful dismissal. The defendant alleged that the plaintiff was terminated for cause because she falsified a T4 slip and used a company credit card for personal expenses without reimbursing the company, among other things. In her statement of claim, the plaintiff alleged that [page70 ]she was terminated in part because of her romantic relationship with the defendant's CEO. She also stated that the CEO encouraged her to put her children's phones on a company cellphone account. She pleaded that the termination amounted to discrimination on the basis of marital status and family status, contrary to the Human Rights Code. The defendant brought a motion to strike the discrimination pleadings as disclosing no reasonable cause of action.

Held, the motion should be granted in part.

The claim of discrimination on the basis of marital status should not be struck. It could not be said that a serious romantic relationship would definitively not be encompassed in a consideration of marital status.

The claim of discrimination on the basis of family status should be struck as disclosing no reasonable cause of action. The plaintiff did not plead discrimination on the basis of her relationship with one of her family members. She did not plead adverse treatment based on the phone issue as constituting discrimination on the basis of family status.

Knibbs v. Brant Artillery Gunners Club Inc., [2011] O.H.R.T.D. No. 1035, 2011 HRTO 1032, 72 C.H.R.R. D/231; Nevo v. York University, [2013] O.H.R.T.D. No. 1163, 2013 HRTO 1146, consd

Other cases referred to

B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403, [2002] S.C.J. No. 67, 2002 SCC 66, 219 D.L.R. (4th) 701, 294 N.R. 140, J.E. 2002-1973, 166 O.A.C. 1, 22 C.C.E.L. (3d) 153, [2002] CLLC para. 230-037, 99 C.R.R. (2d) 65, 44 C.H.R.R. D/1, 117 A.C.W.S. (3d) 600; Coates v. Smith, [2009] O.H.R.T.D. No. 480, 2009 HRTO 491; Giguere v. Popeye Restaurant, [2008] O.H.R.T.D. No. 2, 2008 HRTO 2, [2008] CLLC Â230-018, 62 C.H.R.R. D/147; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, J.E. 90-1436, 49 B.C.L.R. (2d) 273, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105, 23 A.C.W.S. (3d) 101; MacDonald v. Ontario Hydro (1995), 1995 CanLII 10628 (ON SC), 26 O.R. (3d) 401, [1995] O.J. No. 3048, 86 O.A.C. 37, 10 C.C.P.B. 1, 58 A.C.W.S. (3d) 392 (Div. Ct.); Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, [1985] S.C.J. No. 74, 23 D.L.R. (4th) 321, 64 N.R. 161, J.E. 86-88, 12 O.A.C. 241, 17 Admin. L.R. 89, 9 C.C.E.L. 185, 86 CLLC Â17,002 at 16018, 64 di 60, 7 C.H.R.R. D/3102, 34 A.C.W.S. (2d) 109; Progressive Casualty Insurance Co. v. Saygili (1999), 1999 CanLII 15092 (ON SC), 46 O.R. (3d) 10, [1999] O.J. No. 3331, 91 A.C.W.S. (3d) 148 (S.C.J.); R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, 308 B.C.A.C. 1, 419 N.R. 1, 2011EXP-2380, J.E. 2011-1326, 335 D.L.R. (4th) 513, 21 B.C.L.R. (5th) 215, 25 Admin. L.R. (5th) 1, 86 C.C.L.T. (3d) 1, [2011] 11 W.W.R. 215, 83 C.B.R. (5th) 169, 205 A.C.W.S. (3d) 92

Statutes referred to

Human Rights Code, R.S.O. 1990, c. H.19, s. 5 [as am.], Part I [as am.], ss. 10 [as am.], (1) [as am.], 12, 24(1) (d)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (b)

MOTION to strike two paragraphs of the statement of claim.

Nicole Simes, for plaintiff and for defendants by counterclaim. [page71 ]

Jeremy Opolsky, for defendants and for plaintiff by counterclaim.

VALLEE J.: —

Background

[1] The defendant the Peace Naturals Project Inc. brings this motion pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike certain paragraphs in the statement of claim on the basis that they disclose no reasonable cause of action.

[2] The plaintiff, Jennifer Caldwell, was an employee of Peace Naturals. Mark Gotuby, her superior, was the CEO. His wife, Ann Barnes, was the chair of the board of directors. Ms. Caldwell had [a] romantic relationship with Mr. Gotuby while he was separating from Ms. Barnes. Ms. Caldwell was terminated. Ms. Caldwell brings a claim for wrongful dismissal. Peace Naturals alleges that Ms. Caldwell was terminated for cause because she falsified a T4 slip and used a company credit card for personal expenses without reimbursing the company, among other things.

[3] In her statement of claim, Ms. Caldwell, alleges, in paras. 88 to 91, that her rights under ss. 5 and 12 of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") were violated. They state:

88. Ms. Caldwell claims general damages against Peace Naturals for violating her rights under sections 5 and 12 of the Code.

89. Ms. Caldwell pleads that one of the factors Peace Naturals took in consideration in its decision to terminate her employment, to terminate her employment for just cause and to deny her earned bonuses was her relationship with Mr. Gobuty. Section 5 of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of marital status.

90. Ms. Caldwell further pleads that she has experienced discriminatory treatment as a result of her association with Mr. Gobuty and his family status, vis-à-vis Ms. Barnes.

91. Ms. Caldwell pleads that the defendants are jointly and severally liable for general damages pursuant to section 46.3 of the Code.

[4] Peace Naturals states that these paragraphs disclose no reasonable cause of action.

Issues to be Determined

[5] Assuming that the facts pleaded are true, does Ms. Caldwell's allegation, in para. 89 (that her termination was in part as a result of discrimination with respect to marital status), disclose a reasonable cause of action? [page72 ]

[6] Assuming that the facts pleaded are true, does Ms. Caldwell's allegation, in para. 90 (that her termination was in part as a result of discrimination with respect to family status), disclose a reasonable cause of action?

Applicable Legal Principles Regarding a Motion to Strike

[7] Assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? If there is a chance the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect should the relevant portions of the plaintiff's claim be struck (see Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93).

[8] A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true unless they are manifestly incapable of being proven. No evidence is admissible on such a motion. It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. The claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted (see R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42).

[9] The statement of claim is to be read generously with allowance for inadequacies due to drafting deficiencies. Important issues of law are normally decided based on a full factual record which allows the trial judge to make findings which form the basis for the legal analysis and conclusions.

[10] The moving party must show that it is plain, obvious and beyond a reasonable doubt that the plaintiff could not succeed (see Progressive Casualty Insurance Co. v. Saygili (1999), 1999 CanLII 15092 (ON SC), 46 O.R. (3d) 10, [1999] O.J. No. 3331 (S.C.J.); MacDonald v. Ontario Hydro (1995), 1995 CanLII 10628 (ON SC), 26 O.R. (3d) 401, [1995] O.J. No. 3048 (Div. Ct.)).

Interpretation of the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

[11] The court should interpret the Code by giving it a broader meaning than the narrowest interpretation of the words used. [page73 ]The special nature of the Code and the purpose of its enactment must be recognized and it should be interpreted in a manner which will advance its broad purposes (see Ontario (Human Rights Commission) v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, [1985] S.C.J. No. 74, para. 12).

Applicable Legal Principles Regarding S. 5 Discrimination on Marital Status

[12] Section 5 of the Code states:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

[13] Section 10 of the Code states that "aemarital status' means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage".

[14] A mere "dating" relationship is not sufficient to bring the applicant within the threshold of protection for the ground of marital status. At the very least, an applicant would have to establish that she was in a conjugal relationship with this person outside of marriage. Where the applicant indicates that she cohabited with a person who was married, there will be sufficient evidence to proceed on the ground of discrimination (see Coates v. Smith, [2009] O.H.R.T.D. No. 480, 2009 HRTO 491).

Applicable Legal Principles Regarding S. 12 Discrimination on the Basis of Association and Family Status

[15] Section 10(1) of the Code states that "aefamily status' means the status of being in a parent and child relationship".

[16] Family status can include more than what is defined in the Code. Although the jurisprudence on the scope of marital status in the context of human rights legislation is not settled, the weight of judicial consideration also favours an approach that focuses on the harm suffered by the individual, regardless of whether that individual fits neatly into an identifiable category of persons similarly affected (see B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403, [2002] S.C.J. No. 67, 2002 SCC 66, para. 46).

[17] Section 12 of the Code states:

12. A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination. [page74 ]

[18] Section 12 is an interpretive provision of the Code. It is obviously intended to catch situations where there is discrimination, but the victim's circumstances do not fit squarely into the wording in Part 1 of the Code (see Knibbs v. Brant Artillery Gunners Club Inc., [2011] O.H.R.T.D. No. 1035, 2011 HRTO 1032, para. 174).

[19] The three-part test for determining discrimination under s. 12 is

(1) the complainant must have a relationship with a person;

(2) the person is identified on a prohibited ground; and

(3) the complainant suffers discrimination based on the other person's identity.

(see Nevo v. York University, [2013] O.H.R.T.D. No. 1163, 2013 HRTO 1146, para. 16.)

[20] A person who files a human rights application and is or is perceived to be a person identified by a prohibited ground of discrimination, can be, indirectly, a person identified by a prohibited ground within the meaning of s. 12 (see Knibbs, para. 176).

Assuming that the facts pleaded are true, does Ms. Caldwell's allegation, in para. 89, that her termination was in part as a result of discrimination with respect to marital status, disclose a reasonable cause of action?

Plaintiff's position

[21] The plaintiff agrees that her statement of claim states that she had a romantic relationship with Mr. Gotuby. She has not pleaded that she was married to him or in a conjugal relationship with him. She states that with the benefit of evidence, and a wide and liberal reading of the Code, a romantic relationship of a serious nature could be encompassed under the definition of marital status in s. 10 of the Code. If this were a motion for summary judgment, she could present evidence that might bring her within the definition of marital status. She states that while this would be new law, a motion to strike is not the time to decide that a serious romantic relationship could not be captured by s. 10. The trial judge ought to decide this.

Analysis

[22] In the authorities provided to me, marital status related to the claimant's status with a partner. The claimants were either married to or living in a conjugal relationship with other people. [page75 ]The plaintiff has not pleaded that she was in a conjugal relationship with Mr. Gotuby. Nevertheless, based on counsel's submissions, this could be due to a drafting deficiency in the pleadings. Furthermore, the law is not rigid. It is subject to interpretation which reflects societal values. A claim that seems to disclose no cause of action today may succeed tomorrow. On motion to strike, the fact that the law has not yet recognized the particular claim is not determinative. The court must consider whether there is a reasonable prospect that the claim will succeed.

[23] With a wide and liberal reading of the Code, and given the fact that the law continues to evolve on the subject of relationships, I cannot say that a serious romantic relationship would definitively not be encompassed in a consideration of marital status.

[24] The defendant's motion to strike para. 89 is denied.

Assuming that the facts pleaded are true, does Ms. Caldwell's allegation, in para. 90, that her termination was in part as a result of discrimination with respect to family status, disclose a reasonable cause of action?

The plaintiff's position

[25] The plaintiff states that the defendant discriminated against her because of her relationship, association and dealings with a person identified by a prohibited ground. She was in a parent-child relationship. Mr. Gotuby also had children. He put their phones on his company cellphone account. He encouraged the plaintiff to do this, which she did. She states that other people in the company did this as well, including Ms. Barnes regarding her children and her sister. The plaintiff states that she was terminated partly because she added her children to her phone account. In Knibbs, the tribunal held that a claimant's relationship with her second cousin fit within the definition of family status. Accordingly, the concept of family status has been broadly interpreted. The plaintiff states that she received adverse treatment because of her relationship with Mr. Gotuby, his changing marital status with Ms. Barnes and his instructions to place the plaintiff's children on the phone plan.

Analysis

[26] The plaintiff refers to her children and the cell phone issue in her statement of claim; however, in para. 90, she pleads discrimination as a result of "her association with Mr. Gotuby and his family vis-à-vis Ms. Barnes" (emphasis added). She does not plead discrimination on the basis of her relationship with one of [page76 ]her family members. She does not plead adverse treatment based on the phone issue relating to her children as constituting discrimination of the basis of family status.

[27] The tribunal in Knibbs and Nevo stated that s. 12 of the Code is intended to capture situations where there is discrimination but the victims do not fall squarely into the wording of the Code. Nevertheless, in Knibbs, the tribunal considered whether a person who filed a human rights application based on a Code ground was the same as a person identified by a prohibited ground of discrimination, and held that she was. She was also disabled and the claimant's second cousin.

[28] Nevo concerned a situation where an employer declined to hire a complainant on the basis of marital status and family status because he was married to a current employee. The tribunal referred to Giguere v. Popeye Restaurant, [2008] O.H.R.T.D. No. 2, 2008 HRTO 2, in which an employer discriminated against an employee who was terminated because her husband was HIV positive. The tribunal concluded that s. 24(1)(d), which was a complete defence to the marital status ground. With respect to family statutes, it also stated that [at para. 14],

The application does not allege that the respondent failed to hire the applicant because he is a parent or because he is the son or parent of a particular individual. . . . Given the definition of family status under the Code, I am satisfied that there is no reasonable prospect that the Applicant will be successful on that ground.

[29] The authorities provided to me concern situations where the plaintiff/complainant was related to a person identified on a prohibited ground of discrimination. The plaintiff did not have a parent or child relationship with Mr. Gotuby. She was not related to him. Although marital status is comprised of at least two types of relationships, family status, being parent and child, is not as broad.

[30] I find that the defendant has shown that it is plain, obvious and beyond a reasonable doubt that the plaintiff will not succeed on this ground. Paragraph 90 of the statement of claim discloses no reasonable cause of action. Therefore, it is struck.

Leave to Amend

[31] The plaintiff requested leave to amend the claim if this court found that the pleadings did not show a reasonable cause of action. The defendant agreed that leave should be granted. Although I have not struck the marital status allegation, the plaintiff is granted leave to amend para. 89 so that the defendant can better understand the case that they will have to meet. The plaintiff may also amend para. 90. [page77 ]

Costs

[32] On April 25, 2018, the plaintiff made an offer to settle agreeing to remove all references to family status from the claim and provide further facts to support marital status. The plaintiff asserted that she was entitled to costs because research and drafting was done before the defendant served their amended notice of motion.

[33] On April 26, 2018, the defendant made an offer to settle requiring the plaintiff to deliver an amended claim to withdraw all claims against certain individuals, to properly plead the claims under the Human Rights Act. The plaintiff was also to pay $1,500 because the defendant alleged that two days before the factum had to be served, at which point the draft had been completed, the plaintiff advised that she was removing all claims against the individual claimants. The defendant unnecessarily had to prepare a notice of motion and factum regarding the claims against the individuals.

[34] The plaintiff states that the defendant prepared their notice of motion prior to receiving the plaintiff's reply. There was no need to prepare the motion to remove claims against the individuals because on January 29, 2018, counsel advised that the plaintiff would agree to remove the individuals as defendants.

[35] The defendants were successful in having para. 90 struck. The plaintiff was successful in defending the motion to have para. 89 struck. I cannot determine which party was the most prejudiced over the issue of removing the individuals as defendants. It seems that any costs relating to prejudice were relatively minor. Accordingly, no costs are awarded on this motion.

Motion granted in part.

End of Document