Court File and Parties
COURT FILE NO.: CV-17-1386-00
DATE: 20180201
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Celia Torres, Plaintiff
AND:
Export Packers Company Ltd., Defendant
BEFORE: Ricchetti, J.
COUNSEL: J. De Bousquet and W. Ekhlas Smith, Counsel, for the Plaintiff H. Nieuwland, Counsel, for the Defendant
HEARD: December 19, 2017
ENDORSEMENT
THE MOTION
[1] The Defendant brings this motion to strike out paragraphs 10-20 of the Amended Statement of Claim without leave to amend.
THE FACTS
[2] The Plaintiff was employed by the Defendant from May 5, 2008 until January 19, 2017.
[3] On January 19, 2017, the Plaintiff's employment was terminated without cause.
[4] The Plaintiff commenced this action on March 29, 2017.
[5] The Plaintiff's claim is for:
a) damages for wrongful dismissal; and
b) "damages in the amount of $100,000.00 for harassment, discrimination and reprisals in violation of the Ontario Human Rights Code"(the "Code").
[6] Paragraphs 9 through 29 of the Amended Statement of Claim deal with the Code claim. The Plaintiff alleges that the harassment, discrimination and reprisal were because of her "race and ethnic origin".
[7] There is no dispute that the factual allegations in paragraphs 10 through 20 predate March 29, 2015 while the factual allegations in paragraphs 21 through 29 post date March 29, 2015.
[8] The Defendant relies on the Limitations Act pleading that the allegations in impugned paragraphs were discovered or discoverable more than 2 years prior to March 29, 2017 and, therefore, statute barred.
THE LAW
[9] Rule 21.01 provides:
A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
[10] The "plain and obvious" test applies to both sections of R. 21. See MacDonald v. Ontario Hydro, 1994 CanLII 7294 (ON SC), 19 OR (3d) 529 (S.C.J.) (affirmed 1995 CanLII 10628 (ON SC), 26 OR (3d) 401 (Div. Ct.).
Question of Law
[11] Boutin v. Co-Operators Life Insurance Company, 1999 CanLII 2071 (ON CA), 42 OR (3d) 612; [1999] OJ No 64 (QL); 118 OAC 245:
I do not think that the issue whether the policy limitation period is a bar to the appellant's action is a question of law that should have been resolved on a rule 21.01(1)(a) motion. As the motions judge's endorsement indicates, the application of the limitation period in this case depends upon findings of fact for its resolution. This is also apparent from the appellant's reply to the respondent's statement of defence. In my opinion, whether the respondent is entitled to rely on the limitation period in the policy has a significant factual component and is thus a matter which should be addressed at trial, not on a rule 21.01(1)(a) motion.
Even if leave was granted to permit the parties to file evidence on the motion, I do not think that inferences to be drawn from the evidence are so clear as to permit the question of law in issue to be resolved on a rule 21.01(1)(a) motion.
Accordingly, I would allow the appeal with costs, set aside the order below and dismiss the respondent's motion with costs.
No reasonable Cause of Action
[12] The test under Rule 21.01(b) is as follows, as described in Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191:
[36] The test for striking out a statement of claim at the pleadings stage under rule 21.01(1)(b) is well-established. In Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980, the Supreme Court described the test in these terms: "[A]ssuming 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?" Further, as the Supreme Court also clarified in Hunt, at p. 980:
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 a plaintiff's statement of claim be struck out [under a summary proceedings rule]. [Emphasis added.]
See also Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 455.
[13] In Transamerica Life Canada Inc. v. ING Canada Inc., (2003) 2003 CanLII 9923 (ON CA), 68 OR (3d) 457 (CA) the Court of Appeal stated:
[39] On a pleadings motion, a court should not dispose of matters of law that are not settled in the jurisprudence. Where the law in a particular area can be described as "muddy", the court will not strike that part of the pleading, nor hold that the claim or defence must fail: Nash, supra. [page 466].
The Human Rights Code
[14] Section 34(1) and 46.1 of the Code provides:
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
The Limitations Act
[15] Sections 4, 5(2) and 20 of the Limitations Act provides:
Section 4
Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Section 5(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.
THE ISSUE
[16] The issue before this court is whether the factual allegations, pre-dating March 29, 2015, of "harassment, discrimination and reprisals" should be struck.
[17] Whether the limitation under the Limitations Act or the Code applies to a Human Rights claim in a civil action, has not been definitively dealt with by the Ontario Court of Appeal.
THE POSITION OF THE PARTIES
[18] The Defendant's counsel submits the significance is that, under the Limitation Act, claims arising from facts more than 2 years earlier are statute barred. Under the Code, if the allegations are a "series of incidents", the applicant in the Code proceeding can rely on the series of incidents (even historical incidents) provided that the last one occurred within one year of the application.
[19] The Defence points to Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442 where the Court of Appeal held that, in an action (as opposed to a proceeding before the Landlord and Tenant Tribunal) the limitation in a landlord/tenant dispute was governed by the Limitations Act rather than the limitation set out in the Residential Tenancies Act.
[20] The Defence also points to the fact that the Limitations Act applies to "claims pursued in court proceedings" whereas section 34 of the Code only applies to Part 1 applications - those to the Tribunal. The Defence also points to a number of sections in the Code where the legislators used the words "tribunal", "court" and "tribunal and a court" emphasizing that the legislators were fully aware of the distinction and expressly limited s. 34 to Tribunal hearings under the Code.
[21] The Plaintiff submits that:
a) the motion should be dismissed due to the unsettled jurisdiction as to which limitation period applies;
b) alternatively, the Code limitation period applies making the prior factual allegations part of the series of incidents;
c) alternatively, both the Limitations Act and the Code limitation periods apply.
[22] The Plaintiff submits that each individual event is part of a larger pattern of discrimination which, taken as a whole, constitute an actionable wrong.
THE ANALYSIS
[23] In my view, the motion must be dismissed.
[24] There can be no doubt that the law is unsettled as to which limitation applies. The Defendant's own factum, under the heading "Ontario Superior Court's Inconsistent Application of the Limitations Act and the Code", refers to a number of cases where Superior Court Judges have applied both the Code and the Limitation Act limitation period in an action. I should note that it does not appear that the issue was squarely before those courts as it is in this motion.
[25] Applying Transamerica Life supra, this motion should be dismissed.
[26] In any event, the motion should be dismissed regardless of which limitation period applies.
[27] If the Code limitation applies, then there is a factual issue to determined, that is, whether the events from 2011 through March 28 2015 constitute a "series of incidents" which led to the termination on January 19, 2017.
[28] If the Limitation Act applies, it is true that a cause of action cannot be brought after two years from the date the cause of action arose. However, that does not dispose of the matter. The Plaintiff relies on the allegations of "continuous misconduct" that gives rise to the claim. It will then depend on whether the facts result in a finding of an ongoing and continuous cause of action rather than a series of independent torts. This factual determination cannot be made on the allegations in the pleading.
[29] Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONCA 1004 was released on the day this motion was argued. Both parties, having only dealt with the motions judge's decision, were given an opportunity to make further submissions on the Court of Appeal's decision. It is clear that, some of the factual allegations (commencing March 7, 2013) in Bailey pre-dated the 2 year limitation period from December 21, 2015. While the Court of Appeal was dealing with a Rule 21.01(1)(b) motion, the court stated:
The claims arguably arise from a continuing cause of action that predates the notice of termination, rather than a series of independent torts. We are of the view that the motion judge was correct to dismiss the motion to strike these claims, since they were "entangled with factual issues."
[30] The Defence argues, in its supplementary submissions, that in Bailey, the acts were continuously complained of and repeated amounting to a possible continuing cause of action. The Defence submits that such cannot be said of the allegations in this case. I fail to see the distinction with the alleged facts in this case. Even if this court could see the distinction urged by the Defence, this court should read the Amended Statements of Claim generously and that drafting deficiencies and a failure to plead with precision and clarity are not fatal if the necessary material facts are pleaded. See R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17, 21-22; and Paton Estate v. Ontario Lottery and Gaming Corporation, 2016 ONCA 458, 349 O.A.C. 106, at paras. 4-5, 11-14.
[31] In my view, it is not plain and obvious whether the impugned paragraphs refer to a series of independent torts or to a continuous cause of action.
[32] It will be for the trial judge to decide whether there is a continuing cause of action or a single cause of action arising from the termination limiting the damages to the events in the prior two years (if the Limitation Act applies).
CONCLUSION
[33] The motion is dismissed
COSTS
[34] Cost Outlines have been provided to the court.
[35] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached authorities.
[36] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.
[37] There shall be no reply submissions without leave.
Ricchetti, J.
Date: February 1, 2018
COURT FILE NO.: CV-17-1386-00
DATE: 20180201
ONTARIO SUPERIOR COURT OF JUSTICE
Celia Torres Plaintiff
– and –
Export Packers Company Ltd. Defendant
Counsel: J. De Bousquet, Counsel, for the Plaintiff H. Nieuwland, Counsel, for the Defendant
ENDORSEMENT
Ricchetti, J.
Released: February 1, 2018