COURT FILE NO.: CV-19-619146
DATE: 20191031
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Richard Armstrong, Plaintiff
AND:
Workplace Safety and Insurance Board, Defendant
BEFORE: Master P.T.Sugunasiri
COUNSEL: Halum,N., Counsel for the Defendant/Moving Party
Dockrill, C., Counsel for the Plaintiff
HEARD: August 8, 2019
REASONS FOR DECISION
[1] The Workplace Safety and Insurance Board employed Mr. Armstrong from November 8, 1999 to March 5, 2019. After what WSIB pleads was a reorganization, it terminated him without cause. Mr. Armstrong sues for wrongful dismissal and seeks damages in respect of income loss. He also seeks continued or accrued pension benefits for the appropriate notice period, payment of accrued entitlements as salary continuance thereby allowing Armstrong to accrue further pension credits, and continuation of employment benefits through the notice period.
[2] Armstrong served his Statement of Claim on May 3, 2019. On May 15, 2019 the WSIB served its Notice of Intent to Defend. On May 30, 2019 the WSIB asked Armstrong to remove paragraphs in his Claim that pleaded termination arrangements made with other former employees. The parties then entered into scheduling discussions of a motion to strike portions of the Claim and reciprocal threats by Armstrong to note the WSIB in default for unduly delaying the case.
[3] Ultimately, Armstrong noted the WSIB in default in the midst of the WSIB trying to schedule the within motion. In addition to seeking permission to defend, WSIB seeks to strike paragraphs 19-21, 23-25 and the last sentence of paragraph 31. These paragraphs plead termination terms of other WSIB employees. Armstrong does not oppose setting aside the noting in default though he asks for his full indemnity costs. He does oppose striking portions of his Claim.
[4] For the reasons that follow, I set aside the noting in default and strike the impugned paragraphs. The impugned paragraphs in the Claim are irrelevant and will add unnecessary complexity to an otherwise straightforward action. I expand on my reasons below.
Issues:
a. Should the court strike paragraphs 19-21, 23-25 and the last sentence of paragraph 31 of the Statement of Claim (“Claim)?
Analysis:
A. Should the court strike paragraphs 19-21, 23-25 and the last sentence of paragraph 31 of the Statement of Claim?
[5] Rule 25.11 allows the court to strike parts of a pleading that are scandalous, frivolous, vexatious, or may prejudice or delay the fair trial of the action. Paragraphs are scandalous if irrelevant (Air Canada v WestJet Airlines Ltd., 2004 CarswellOnt 8853 at para. 6 (SCJ)).
[6] This is a wrongful dismissal action. The impugned paragraphs 19-21, 23-25 and paragraph 31 plead as follows:
The WSIB has consistently permitted terminated employees who are not yet eligible for a non-actuarially reduced pensions at the time of their termination, to combine their accrued entitlements with their severance package, to be paid to them as salary continuance to extend their period of employment and their pensionable service, thereby increasing the value of their benefits. In addition, the WSIB has also permitted terminated employees to spread the combined value of their accrued entitlements and their severance package over a longer period of time, by reducing the periodic salary continuance payments to extend the time frame they are able to “bridge” to an enhanced or non-actuarially reduced pension.
In some instances, even where the terminated employee may have been already eligible for a non-actuarially reduced pension, the defendant has permitted them to accrue further pension benefits through the receipt of their termination benefits [including their accrued entitlements and their sevens compensation] as salary continuance.
Despite his request for accommodation, the defendant has refused to accord the foregoing treatment to the plaintiff there by denying him to [sic] opportunity to improve his longer term pension entitlement. In doing so, the defendant has refused and failed to treat the plaintiff faire [sic], equitable and consistently with the other terminated employees.
Approximately 4-5 years ago when department management numbers were being cut, the two individuals who are able to fully retire, with non-actuarially reduced pensions, were identified as the individuals who would be terminated. No consideration was given to such factors in deciding to terminate the plaintiff.
Approximately 2 years ago when two more management positions were being cut, the WSIB extended an offer to all Employer Audit Services department management staff to determine if they wanted a volunteer exit package. 2 individuals took the voluntary package and no involuntary terminations occurred.
Under the recent organizational changes, no voluntary exit offers were extended to management personnel. Rather, the WSIB simply cut the positions without notice, nor giving any consideration to alternative management positions within the WSIB. It appears however, that others may have been favored in other ways.
Given that the plaintiffs career, significant accomplishments and experience have primarily been with the highly specialized environment of the WSIB, and he has not been engaged in any job search activities since joining the SIB in 1999; The plaintiff seeks financial support for his improvement or enhancement of his knowledge and skills to assist him in seeking new employment. This is consistent with the defendants training support of actively employed employees other terminated employees.
Impugned paragraphs are irrelevant
[7] The WSIB’s concern with the impugned paragraphs is that they are irrelevant to the issues the Court must ultimately decide in the action and that their inclusion will lead to an unnecessary sideshow.
[8] Armstrong disagrees. He submits that the Ontario Court of Appeal has confirmed that in awarding damages in a wrongful dismissal case, the court should place the employee in the same financial position her or she would have been in had the employer given the employee proper notice (Paquette v TeraGo Networks Inc., 2016 ONCA 618 at para 16). One way to accomplish this is to permit him to continue to accrue further pension credits under the pension plan using Armstrong’s accrued vacation and other credits and severance payments to do so. He relies in Justice Corbett’s decision in Lin v Ontario Teachers’ Pension Plan Board, 2015 ONSC 3494; aff’d 2016 ONCA 619 to support his position that how other terminated employees were treated is relevant to this issue.
[9] I disagree that how the WSIB treated other employees is relevant to Armstrong’s Claim. No one disputes that a court must attempt to put the employee in the same position he was in had the employer given proper notice. In so assessing, however, the Ontario Court of Appeal and this court has stated that the court’s assessment is based on the individual employee’s particular circumstances and what may have been paid to other terminated employees are not relevant (Lawson v Dominion Securities Corporation, 1977 CarswellOnt 2814 at page 7 (ONCA); See also Justice Jennings’ comments in Brennan v Labatt Brewing Co., [1994] OJ No 2169 at paras. 3-7 (GenDiv)).
[10] Armstrong can still argue that allowing him to accrue further pension credits using accrued vacation and other credits would put him in the position he would have been in had he been given proper notice. The Court will determine this at trial or summary judgment. Pleading that the WSIB gave this to other terminated employees is not relevant because as the Court of Appeal noted in Lawson, supra at para 13, the Court does not know the underlying circumstances of those cases, nor should it if they were private settlements.
[11] Justice Corbett’s decision in Lin, supra, does not assist Armstrong. In that case, one issue that Corbett, J. was addressing was whether or not a proposed changed to the teachers’ AIP and LTIP entitlements deprived Mr. Lin of those payments upon termination. The Ontario Teachers’ Pension Plan Board had proposed the changes to Lin and other affected employees prior to termination and had asked them to sign off on them. Lin never did. Upon termination, Justice Corbett considered the Pension Board’s practices with respect to this issue to determine if Lin was bound by the proposed changes.
[12] I distinguish the Lin case for two main reasons. First, Corbett, J used the experience of the Pension Board’s treatment of others to interpret the application of a proposed change to a contractual provision of the employment contract. In this case, reference to the treatment of other terminated employees has nothing to do with contractual interpretation. Armstrong has not, for example, pleaded that the repeated offer to others to extend the pension credits was so pervasive and well known that it formed an implied term of Armstrong’s contract with WSIB. Rather he pleads that others were preferentially treated. There is no tort of preferential treatment and Armstrong has not pleaded any type of discrimination that might be captured by the Human Rights Code. Similarly, the manner in which WSIB conducted its re-organizations in the past is irrelevant to a court’s damage assessment for Armstrong.
[13] Second, the mere fact that Justice Corbett considered evidence about other employees at trial does not displace the well established jurisprudence that what other terminated employees received is not relevant in assessing damages for wrongful dismissal. Armstrong has provided no cases that specifically and purposefully displaces the principle.
[14] The impugned paragraphs are also irrelevant to Armstrong’s allegation of WSIB’s failure to act in good faith in the manner of their termination (“Wallace Damages”). The basis for the Wallace Damages is set out in paragraph 37 of the Claim. The inadequate treatment that Armstrong complains of is that WSIB refused his request to accrue further pension credits and refused his request to have his accrued entitlements and severance paid by way of salary continuance. Whether or not such behaviour qualifies for Wallace Damages is a triable issue. However, Armstrong provided no cases in which the treatment of others and the alleged grant of these credits to others was relevant to a court’s assessment of his claim for “moral damages for the manner in which his employment was terminated…”
[15] For the foregoing reasons, I conclude that the impugned paragraphs are irrelevant.
The inclusion of the impugned paragraphs will delay the fair trial of the action
[16] The sideshow that WSIB is concerned about has already begun. Within this motion much of Armstrong’s efforts and factum are dedicated to discrediting WSIB’s evidence on the settlements that it believes Armstrong is referring to in his Claim. Counsel is offended that WSIB is suggesting any impropriety on his part in disclosing privileged settlement discussions of previous clients and Armstrong asks this Court to disregard WSIB’s evidence on the settlements. He also suggests that WSIB has itself done, by way of affidavit, what it claims Armstrong has improperly done by way of Claim; namely discussing the settlements of other terminated employees. Both parties ventured into costly cross-examinations on the issue. As an aside, I need not rule on the admissibility of the WSIB affidavits. The relevance of the impugned paragraphs of the Claim is a question of law and I do not need them to determine the motion. The affidavits may become necessary on the issue of costs. More importantly, the cost and effort that both sides have expended on this irrelevant issue is telling.
[17] If this is an example of how the parties intend to litigate this case and this issue, allowing the impugned paragraphs to remain will inevitably cause unnecessary delays to the fair trial of the action. The parties will spend much time and effort exploring the nature of the settlements with others and the nature of the preferential reorganizations, and there will be a future motion on the extent to which the parties can discuss and gain access to the specific terms of settlements with others. Armstrong urges that no such thing will occur as there is only one discovery question that is relevant – namely whether or not others were allowed to accrue pension credits. This may be Armstrong’s view, but this does not mean that WSIB agrees. Further, a party is entitled to ask about any facts put in issue in the pleadings. It is for this reason that it is important to work hard at the beginning of an action to streamline the pleadings to achieve efficient, cost-effective and timely resolution of the case on its merits.
[18] The cases of Mazinani v Zoran International Inc., 2010 ONSC 4582 and Gu v. Habitat for Humanity Greater Toronto Inc., 2017 ONSC 2793 demonstrate the time and money that can be wasted where irrelevant pleadings remain in a claim. In Mazinani, the moving party brought a motion to obtain production of all documentation relating to the settlements entered into by the employer with a number of other employees. The plaintiff asserted, as Armstrong does here, that he believed that the employer gave his fellow employees better terms of settlement. Master Short refused production on the basis that it was irrelevant but noted that it may be that a trial judge will adopt a different approach at trial depending on how evidence is presented. In Gu, Master Jolley decided a motion for production of the severance agreements of other employees where there was an allegation of discrimination, which Armstrong does not make. Even with an allegation of discrimination Master Jolley concluded that the other severance agreements were irrelevant. While at this juncture no one is asking for severance agreements, allowing Armstrong to refer to WSIB’s treatment of others keeps this rabbit hole available for future exploration. In my view, it is in the interests of justice and in line with Rules 1.04 and 25.11 to streamline the case now.
Conclusion:
[19] For the foregoing reasons, I set aside the noting in default of WSIB and permit it to deliver a Statement of Defence within 30 days from today’s date. I strike paragraphs 19-21, 23-25 and the last sentence of paragraph 31 with no leave to amend other than to amend paragraph 21 to make it a self-standing paragraph but excluding any reference to the treatment of others.
Costs:
[20] Armstrong originally asked for full-indemnity costs. Both parties spent significant time addressing the back and forth discussions leading to the scheduling of this motion. Despite the considerable acrimony, I strongly urge the parties to save time and money and agree on costs. If they, they may schedule a 30 minute attendance before me on a regular motions day to argue costs. They can obtain that date through the motions scheduling unit. I will retain the file.
[21] The parties shall exchange their costs outlines and a summary of their costs position seven days prior to the return date before me. The parties can file their costs outlines and no more than three cases at the Masters’ Administration two days before the return date. The office will not except any other documents other than those that I have ordered. Each party will have 15 minutes total of submissions. As the moving party, WSIB will proceed first and will have a right of Reply.
Original signed
Master P. Tamara Sugunasiri
Date: October 31, 2019