Court File and Parties

COURT FILE NOs: CV-18-597459 DATE: 20191105 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Nguyen, Plaintiff – AND – Canadian Imperial Bank of Commerce and Bonnie Louise Palmer, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Newton Wong and Taras Kuper, for the Plaintiff Edward O’Dwyer, for the Defendants

HEARD: November 5, 2019

RULE 21 MOTION

[1] This motion raises a practice issue about the difference between motions under Rule 20 and Rule 21.

[2] Although the basis of the motion is unclear in the Notice of Motion, counsel for the Plaintiff states in his Supplementary Factum that the Plaintiff is seeking an Order for a determination of law under Rule 21.01(1)(a) of the Rules of Civil Procedure. Plaintiff’s counsel also opened his argument before me with a request for leave to adduce evidence on this motion, which otherwise would be inadmissible on a Rule 21 motion.

[3] The Plaintiff has sued the Defendants for wrongful dismissal, seeking damages under a number of headings. The Statement of Claim seeks, inter alia, “damages as a result of wrongful termination of the Plaintiff’s employment for loss of vacation pay…loss of restricted share award plan…loss of pension benefits…loss of volume bonus commission…” The Plaintiff was terminated for cause on February 9, 2018 after an investigation by the Defendant, Canadian Imperial Bank of Commerce (“CIBC”), revealed that the Plaintiff was during the relevant portion of 2017 in violation of the code of conduct contrary to the CIBC Mortgage Advisor Variable C9mpensation Plan dated November 1, 2016, which both sides acknowledge was effectively his employment agreement (the “Agreement”).

[4] The only relief sought in the Notice of Motion, other than the standard request for costs and “such further and other relief as this Honourable Court may deem just”, is:

[A]n Order directing the corporate Defendant/Responding Party, [CIBC], to pay to the Plaintiff/Moving Party, James Nguyen, the Volume Bonus in the amount of $81,451.27 together with interest from the due date of payment, owed to the Plaintiff/Moving Party as part of his wages.

[5] In other words, the “question of law” posed for determination under Rule 21.01(1)(a) is whether one of the heads of damages claimed in the Statement of Claim – the volume bonus commission for the year 2017 – can be ordered to be paid to the Plaintiff immediately, without waiting for trial. Plaintiff’s counsel’s request for leave to introduce evidence pertains to a 45-paragraph affidavit of the Plaintiff himself setting out the history and background of his employment with CIBC and appending another dozen documents as exhibits to that affidavit. The sheer quantity of evidence needed to support the Plaintiff’s motion speaks volumes about the propriety of proceeding in this way. Parties in litigation are unlikely to produce 45 agreed-upon, uncontroversial paragraphs in an affidavit supporting a contested motion.

[6] With all due respect to Plaintiff’s counsel, this is not a question of law that can or should be determined in a Rule 21 motion. It is a question of mixed fact and law that requires substantial and controversial affidavit and documentary support in order to be answered. The Defendants have been compelled to respond to the motion with a 30-paragraph affidavit of their own together with another 14 documents which they say are relevant to filling out the factual matrix of the dispute. As one might expect, the Defendants take issue with much of the content of the Plaintiff’s affidavit and supporting materials.

[7] The Supreme Court of Canada in Sativa Capital Corporation v Creston Moly Corporation, 2014 SCC 53, [2014] 2 SCR 633 held definitively that this type of controversy, where a court must determine wither contractual terms are applicable to a given fact situation and, if so, how they apply, is no longer considered to raise a question of law. At paras 49-50, the Rothstein J. discussed the classical approach to cases with involve “applying a legal standard to a set of fact”, and concluded for a unanimous Court:

However, some courts have…suggest[ed] that contractual interpretation is primarily a legal affair.

With respect for the contrary view, I am of the opinion that the historical approach should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix [citations omitted].

[8] A question of mixed fact and law like the present one, with facts considered controversial by the opposing side, is not what Rule 21 was designed to address. In Portuguese Canadian Credit Union Ltd. v CUMIS General Insurance Co., 2010 ONSC 6107, paras 23-28, Brown J. (as he then was) held that to bring a motion pursuant to Rule 21.01(1)(a) there should be no material facts in dispute and the question for the court should not be with respect to a contract whose terms might hold potentially different meanings or be applied in different ways. That is precisely the situation in the case before me.

[9] The Agreement provides that the Plaintiff’s bonus is payable in December, and at the same time provides that the Plaintiff’s bonus is not payable if he is found to be acting contrary to the CIBC’s code of conduct. It is not self-evident, and would require a hearing with full evidentiary support, to determine whether under the circumstances the bonus was actually payable on December 15, 2017 as the Plaintiff claims. As indicated above, the Plaintiff was found by CIBC in February 2018 to have been acting contrary to the code of conduct prior to December 2017. The question of how the bonus provision of the Agreement applies to that circumstance is certainly a question of mixed fact and law.

[10] Counsel for the Defendants submits that the Plaintiff has brought a motion under Rule 21 as an “end run” around the requirements of Rule 20. He contends that the present motion is, in effect, a summary judgment motion by a different name. I agree that it has all of the hallmarks of a summary judgment motion, including affidavits setting out conflicting versions of the underlying factual controversy and documents appended by each side in an effort to support the affidavit evidence. At the same time, it has virtually none of the hallmarks of a Rule 21 determination of an issue of law, since that type of determination is generally to be done without any affidavit or other evidentiary support at all.

[11] Defendants’ counsel further points out that one effect of fashioning the motion as a Rule 21 rather than a Rule 20 motion is that the Plaintiff has thereby circumvented a mandatory attendance at Civil Practice Court (“CPC”). Section 18 of the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, dated July 1, 2015, provides:

18. An attendance at Civil Practice Court before a judge is required to schedule…

b. All summary judgment motions before a judge;

[12] The requirement that counsel and/or parties attend at CPC when proposing a summary judgment motion is not a mere formality. It is done in order to ensure that the proceedings are scheduled and conducted in an orderly manner. As Defendants’ counsel points out, it is at CPC that the timing for the submission of evidence and factums and the schedule for cross-examinations is discussed in order to ensure that no steps are overlooked.

[13] Here, there were no cross-examinations on the affidavits submitted by the parties. The reason for this is that the motion was fashioned as a Rule 21 motion, which does not go to CPC and which ordinarily is not accompanied by any evidence. Plaintiff’s counsel brought this with an extra request for leave to submit evidence, but that left no opportunity for cross-examinations although the Defendants were able to put together an affidavit and documentary record of their own in response. Defendants’ counsel stated at the hearing that had this been fashioned properly as a Rule 20 motion for summary judgment, they would have attended at CPC at the outset and cross-examinations would have been built into the schedule.

[14] As it is, I am left with a fact-based controversy with a request for leave to introduce controversial affidavit evidence and no cross-examinations. I have no choice but to dismiss the Plaintiff’s preliminary request and the Rule 21.01 motion. The motion was not brought on the correct footing.

[15] I would say that the dismissal of the Rule 21 motion is without prejudice to the Plaintiff bringing it back as a summary judgment motion under Rule 20, with the requisite preliminary attendance at CPC. However, I do not want to be taken as advising in favour of that procedure.

[16] Not only does the present motion have all the hallmarks of a summary judgment motion, but it has all the hallmarks of a partial summary judgment motion. Moreover, it would be precisely the kind of partial summary judgment motion that the Court of Appeal has admonished parties not to bring – i.e. one that gives rise to a potential for conflicting findings down the road. As Pepall JA said in Butera v Chown, Cairns LLP (2017), 2017 ONCA 783, 137 OR (3d) 561, para. 34:

A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.

[17] Here, the proposed liability of CIBC for the bonus cannot be readily bifurcated from the Plaintiff’s claim for several other heads of damage flowing from his wrongful dismissal claim. It is, as the Court of Appeal put it in Mason v Perras Mongenais, 2018 ONCA 978, para 23, “inextricably linked” to the balance of the claim – in particular to the potential findings about whether and when the CIBC’s code of conduct was in fact breached by the Plaintiff and the consequences of any such breach. A judge hearing the motion might conclude that the Plaintiff violated the code of conduct in such a serious way that he disentitled himself to any further payment, while a judge hearing the trial might conclude that the code of conduct was not breached at all, or vice versa.

[18] As indicated, with the benefit of cross-examinations I might view the matter differently. Accordingly, I will not opine in any definitive way on whether this would an appropriate case in which to grant summary judgment, or rather partial summary judgment. I will simply flag for the parties that there is always an issue to address where summary judgment, even if granted precisely as the moving party seeks, will not end the entire action. The Court of Appeal was very specific in Perras, paras 40-41, that the risk of inconsistent findings cannot be lightly overlooked in assessing a partial summary judgment motion.

[19] For the foregoing reasons, the Plaintiff’s motion is dismissed.

[20] The parties may make written submissions as to costs. I would ask that counsel for the Defendants provide me with their submissions within two weeks of today and that counsel for the Plaintiff provide me with their responding submissions within two weeks thereafter. Neither side’s submissions shall exceed 3 pages.

Date: November 5, 2011 Morgan J.