Court File and Parties
Court File No.: 18-75073 Date: 2018/05/30 Superior Court of Justice - Ontario
Re: Thomas D. Kerr - Plaintiff v. Oz Optics Ltd., Omur Sezerman, and Zahide Sezerman - Defendants
Before: Mr. Justice Robert L. Maranger
Counsel: Thomas D. Kerr, Plaintiff, Self-Represented Evgeny Kozlov, for the Defendants
Heard: May 29, 2018
Court File No.: 18-75116 Superior Court of Justice - Ontario
Re: Oz Optics Ltd. - Plaintiff v. Thomas D. Kerr - Defendant
Before: Mr. Justice Robert L. Maranger
Counsel: Evgeny Kozlov, for the Plaintiff Thomas D. Kerr, Defendant, Self-Represented
Heard: May 29, 2018
Endorsement
[1] This is a ruling on three motions in two separate actions that arise as a result of employment contract between the plaintiff/defendant Thomas D. Kerr and the defendant/plaintiff Oz Optics Limited.
[2] The motions in question were the following: 1) OZ Optics motion for an order striking various paragraphs from the plaintiff's statement of claim pursuant to rule 25.11 of the Rules of Civil Procedure, 2) Thomas Kerr's motion for an order appointing a case management judge to oversee one or both of these actions 3) Oz Optics Ltd.'s motion for a summary judgment in the Oz optics Lts v. Thomas Kerr action.
[3] Thomas Kerr was hired as in-house litigation counsel on behalf of Oz Optics Ltd/Oz Merchandizing Inc. on the July 28, 2016. He began his duties on August 23, 2016. One of the actions he became primarily responsible for was Oz Optics Limited/Oz merchandising Inc. v. Canadian professional soccer league Inc. It is a complex action spanning several years and scheduled for an 8 week trial in the spring of 2019.
[4] On November 30, 2016 Oz Optics Ltd and the Thomas Kerr entered into an employee loan agreement whereby the Oz Optics loaned Thomas Kerr $70,000. The repayment of the loan was to be by specified monthly payroll deductions.
[5] On January 5, 2018 Thomas Kerr issued a statement of claim against Oz Optics Limited, Omur Sezerman and Zahide Sezerman; the thrust of the claim is that he was constructively dismissed from his employment that the basis that he suffered abuse and harassment at the hands of the defendants forcing him to quit his employment. The statement of claim is 105 paragraphs in length and contains arguably sensitive information concerning the ongoing litigation respecting Oz merchandising Inc. v. Canadian professional soccer league Inc.
[6] On January 10, 2018 Oz optics Limited issued a statement of claim against Thomas Kerr for $45,119.05 representing the outstanding balance on the employee loan agreement executed by the parties on November 8, 2016.
Ruling on 25.11 Motion:
[7] Oz Optics Ltd et al. sought an order striking out various portions of the Thomas Kerr's claim pursuant to rule 25.11 of the Rules of Civil Procedure, the rule states:
Rule 25.11: STRIKING OUT A PLEADING OR OTHER DOCUMENT
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. R.R.O. 1990, Reg. 194, r. 25.11.
[8] In the alternative an order pursuant to section 137 (2) of the Courts of Justice act:
Documents public
137 (1) On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.
Sealing documents
(2) A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
[9] In my view, the statement of claim while containing potentially volatile and prejudicial information does not in my estimation violate rule 25.11. The allegations levied go directly to the issue of the constructive dismissal. With that said, in so far as there is information that might be prejudicial to a separate lawsuit involving the same plaintiff, and or sensitive information as between a corporation and a former employee, I would order that the pleadings not be open to the public, remain confidential, and subject to a sealing order pursuant s. 137(2) of the Courts of Justice Act.
Motion for the appointment of a case management judge:
[10] With respect to the request for a case management judge, the here litigation is somewhat convoluted, and a case management judge should be appointed, consequently the matter will be referred to the administrative justice for civil litigation for the purposes of appointing a case management justice.
Motion for summary judgment:
[11] Oz Optics Ltd brought a motion for summary judgment against the defendant Thomas Kerr in the amount of $45,119.05 on the basis of the employee loan agreement.
[12] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 stipulates that a plaintiff or defendant may, after delivery of the statement of defence, move with appropriate affidavit material or other evidence for summary judgment granting all or part of the relief claimed or dismissing all or part of the claim in the statement of claim.
[13] The court is mandated to grant summary judgment if it is satisfied that there is no genuine issue requiring a trial respecting a claim or defence.
[14] Rule 20.04 (2.1) provides that:
In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[15] The Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, set out the governing principles to be applied by trial judges respecting the determination of rule 20 summary judgment motions. At paras. 47, 49-51 and 66 Justice Karakatsanis indicated the following:
[47] Summary judgment motions must be granted whenever there is no genuine issue requiring a trial (Rule 20.04(2)(a)). In outlining how to determine whether there is such an issue, I focus on the goals and principles that underlie whether to grant motions for summary judgment. Such an approach allows the application of the rule to evolve organically, lest categories of cases be taken as rules or preconditions which may hinder the system's transformation by discouraging the use of summary judgment.
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[50] These principles are interconnected and all speak to whether summary judgment will provide fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve the dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[16] The defendant acknowledges the existence of the loan, but disputes the contents of the payroll documents saying they as fail to disclose the precise level of his income. And, that there is a possibility that discrepancy might influence the balance owing on the loan.
[17] Furthermore, the defendant believes the two actions should be tried together as they are in some measure factually intertwined.
[18] While I agree with the defendant that the employee loan may become an issue at the constructive dismissal trial, and that the income statements seem inconsistent, the contents of the loan agreement and how much would have been paid based upon the number of months of employment seem clear and are issues that do not require a trial. In fact they could needlessly delay advancing the constructive dismissal action.
[19] Based upon the affidavit material filed I am satisfied on a balance of probabilities that the plaintiff' Oz Optics has established the following:
- That on November 08, 2016 the plaintiff and defendant entered into an employee loan agreement. The loan was for $70,000.
- The loan was to be paid off by way of payroll deductions initially in the amount of $2000 monthly.
- The defendant did receive $70,000.
- The agreed-upon interest rate on the loan was 2.7%.
- The salary of the defendant increased in 2017 and by agreement the amount of the payroll deduction to pay off the loan also increased.
- The defendant repaid $26,673.58 on the loan and interest by way of payroll deduction up to the date of the end of his employment. The balance owing is $45,119.05.
[20] I am satisfied on the evidence that a summary judgment should be granted in the amount of $45,119.05 in favour of Oz Optics Ltd in their action against Thomas Kerr. With that said however, I would stay the enforcement of this judgment pending the resolution and/or completion of the constructive dismissal action.
[21] It seems to me that out of an abundance of caution and fairness, the issues raised in the constructive dismissal litigation ought to be determined before enforcement is permitted.
[22] With respect to the issue of costs, in considering all three motions, success in my view was divided. Thomas Kerr's pleadings in the constructive dismissal action were not struck, a case management Justice will at one point in time likely be appointed, and while Oz Optics did obtain a summary judgment in the amount of $45,119.05, the enforcement of that judgment was stayed pending the completion of the constructive dismissal action.
[23] In the circumstances I would make no order as to costs.
Mr. Justice Robert L. Maranger
Date: May 30th, 2018
Released: May 30, 2018