SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gary Curtis v. The Bank of Nova Scotia;
BEFORE: MASTER C. WIEBE
COUNSEL: Gary Curtis for himself; Ian R. Dick for The Bank of Nova Scotia (“BNS”);
HEARD: December 17, 2019.
REASONS FOR DECISION
1The plaintiff, Gary Curtis, moves for leave to deliver a Further Fresh As Amended Statement of Claim and for production of further documents by the BNS. The BNS resists both motions.
2This matter goes back to 2012. At that time, Mr. Curtis was employed by BNS as a mortgage development manager (“MDM”). This lawsuit concern primarily the events in April, 2012 which ended with Mr. Curtis delivering a letter of resignation on April 30, 2012. This letter was written in response to BNS’s suspension of Mr. Curtis’ work due to concerns about alleged fraudulent documents in 17 mortgage files that Mr. Curtis had obtained and due to concerns about Mr. Curtis obtaining mortgages from mortgage brokers.
3On April 22, 2014 Mr. Curtis commenced this action with a Notice of Action. On May 21, 2014, Mr. Curtis delivered a Statement of Claim. The claims pleaded appeared to concern defamation, wrongful dismissal and negligent investigation. On October 31, 2014 Justice Corbett struck this statement of claim with leave to amend to plead wrongful constructive dismissal and defamation. He prohibited Mr. Curtis from “asserting a cause of action for negligent investigation,” but he did allow Mr. Curtis to plead facts about the investigation to enhance the damages claim arising from the wrongful dismissal cause of action.
4On November 24, 2014 Mr. Curtis delivered a Fresh As Amended Statement of Claim claiming damages for wrongful and constructive dismissal, and defamation. A statement of defence was delivered by BNS on January 16, 2015. A reply was delivered on January 26, 2015.
5In the meantime, on June 11, 2012 Mr. Curtis filed a complaint under the Canada Labour Code claiming he had been constructively dismissed. Under the Code, an adjudicator heard the complaint in November, 2013, and on July 11, 2014 dismissed the complaint ruling he had no jurisdiction as Mr. Curtis had resigned from his position. Mr. Curtis launched a judicial review of this decision to the Federal Court. On June 29, 2015 Justice Hood stayed the wrongful and constructive dismissal claim in this action pending the determination by the Federal Court on the judicial review application. On April 19, 2017 the Federal Court dismissed the application.
6On January 8, 2016 Mr. Curtis voluntarily delivered an Amended Fresh As Amended Statement of Claim removing the wrongful and constructive dismissal claim and reducing the claim to one in defamation. The BNS delivered an amended statement of defence on January 22, 2016. An amended reply was delivered on February 1, 2016.
7In February, 2018 the BNS delivered its affidavit of documents and productions, which listed 212 documents. In July, 2018 the BNS delivered a supplementary affidavit of documents which listed 2 documents.
8On December 6, 2018 Mr. Curtis brought a motion before Master McAfee for an order for further production from the BNS. On December 16, 2018 Master McAfee ruled as follows: concerning the Barry Ray Toronto Region Delinquency reports for November 1, 2010 to October 31, 2012, these needed to be produced if they had not already been produced; concerning the mortgage payment and interest histories on the 17 subject mortgage files, these needed to be produced; concerning the Gary Curtis Final Horizon Report showing the Curtis termination status, this needed to be produced; concerning the BNS termination, progressive discipline and suspension policies, the motion was dismissed without prejudice to it being brought back with further evidence after discoveries; concerning the correspondence from Sue Pimento, Barry Ray and Kevin Conroy to Mr. Curtis making Mr. Curtis aware there were issues with the 17 mortgage files, the motion was dismissed without prejudice to it being brought with further evidence after discoveries. The parties reached an agreement whereby the BNS would deliver a hard copy of Mr. Curtis’ employment file to Mr. Curtis. Master McAfee made other orders concerning document preservation.
9On October 29, 2019, ten months later, Mr. Curtis commenced a motion, returnable November 8, 2019, for an order granting him leave to serve yet another amended pleading, namely a Further Fresh As Amended Statement of Claim. This proposed pleading appears to add the following claims: bad faith breach of employment contract; negligent/bad faith investigation; bad faith and malicious referencing; intentional interference with contractual and economic relations; inducing breach of employment contract; negligence; breach of customer contract and breach of privacy; and intentional infliction of emotional distress. There are also changes to the damages pleading.
10Mr. Curtis also moved for further BNS production: the Final Horizon Report; the Canadian termination print screen for Mr. Curtis; certain Shirley Roberts emails; the Toronto Region Delinquency Reports; mortgage payment and interest histories for the 17 mortgage files; the Bank Crimes Prevention Information Office (“BCPIO”) disclosure forms that the BNS submitted concerning Mr. Curtis; the BNS policies mentioned earlier; the authorization to the BNS Security and Investigation group to investigate Mr. Curtis; signing authority documents; the BNS disclosures to the Human Resources Services Development Commission (“HRSDC”) concerning Mr. Curtis’ claim for unpaid wages; and documents BNS provided to Canaccede Financial Group concerning Mr. Curtis. In his Notice of Motion Mr. Curtis also asked for an order that the BNS cannot rely on its investigation report at trial.
11At the unopposed request of the BNS, Master McAfee on November 2, 2019 adjourned the motion to December 17, 2019 for 90 minutes. In her endorsement, Master McAfee made it clear that she was not seized of the motion. At the request of the BNS, she ordered that Mr. Curtis deliver a black-lined version of his proposed amended pleading by November 12, 2019. She also ordered that Mr. Curtis paginate the second volume of his motion record, and that the BNS responding motion record, factum and book of authorities be served by December 2, 2019.
12Mr. Curtis served a Supplementary Motion Record containing a black-lined version of his proposed pleading on November 12, 2019. I note that not all the amendments were black-lined. The BNS served its responding motion record, factum and book of authorities on November 28, 2019.
13Mr. Curtis, however, did not stop serving documents. On December 9, 2019 he served two documents. There was his reply factum responding to the BNS material. There was a Further Supplementary Motion Record that contained a further amended notice of motion and another affidavit Mr. Curtis swore on December 9, 2019. This affidavit contained as an exhibit yet another version of Mr. Curtis’ proposed amended pleading that amended the proposed pleading contained in his original motion record. This affidavit turned out to be nothing more than Mr. Curtis’ argument disguised as evidence. At the oral argument the BNS objected to these documents. Mr. Curtis explained the latter document as being a response to the BNS submissions. He explained his amendments to his proposed amended pleading as being “touch ups” that he is entitled to make.
14I am reluctantly prepared to accept for consideration the Curtis “reply” factum as it is simply Mr. Curtis’ argument. I am not prepared to accept for consideration the Curtis Further Supplementary Motion Record. This document is in effect a do-over of the Curtis motion record. It was not contemplated by Master McAfee’s scheduling order. There was no evidence of a change in circumstances to justify this document. It is also quite unfair to the BNS, as it had already delivered its responding motion material. If I allow this new evidence, I will have to adjourn the motion again to allow the BNS to respond further. At some point, there must be a stop to the exchange of documents unless there is a good reason to allow further documentation. There is none in this case. The Curtis Further Supplementary Motion Record will not be considered.
15I have now heard argument and render my decision.
a) Statement of Claim amendments
16Rule 26.01 specifies that at any stage of an action “the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” It is well established law that an amendment must “on its face” be tenable, namely be proper or introduce or contribute to a reasonable cause of action, and that a failure to do so, on a “plain and obvious” basis, is grounds to deny the amendment; see Farmers Oil and Gas Inc. v. Ontario (Natural Resources), 2016 ONSC 6359 (Div. Crt.) at paragraph 13 and Brookfield Financial Real Estate Group Limited v. Azorim Canada (Adelaide Street) Inc., 2012 ONSC 3818 (ONSC) at paragraphs 24 and 28.
17It is also well established law that the expiration of the limitation period on a cause of action is a form of non-compensable prejudice referred to in Rule 26.01 and is sufficient grounds to deny the amendment introducing such a cause of action; see Klassen v. Beausoliel, 2019 ONCA 407 (O.C.A.) at paragraphs 26 and 27. An exception to this last principal is where sufficient facts are pleaded within the limitation period to support the amendments being sought; see Klassen, op.cit., paragraph 28.
18The statute governing limitations in Ontario is the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Pursuant to sections 4 and 5(1)(a) of that statute, a limitation period of two years runs from the date a person knew an injury, loss or damage had occurred, that the injury, loss or damage was caused by or contributed to an act or omission, that the act or omission was that of the person against whom the claim is made, and that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. Under section 5(1)(b), the limitation period starts to run from the date a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in section 5(1)(a). Section 5(2) creates a rebuttable presumption that the person knew of the matters referred to in section 5(1)(a) when the act or omission giving rise to the claim occurred.
19Does the amendment proposed by Mr. Curtis overcome these hurdles?
a.1) Bad faith breach of employment contract
20As stated above, on October 31, 2014 Justice Corbett struck out the initial Curtis Statement of Claim with leave to amend to plead claims of wrongful and/or constructive dismissal and defamation. On November 24, 2014 Mr. Curtis delivered a Fresh As Amended Statement of Claim claiming damages for wrongful and constructive dismissal and defamation. This pleading contained allegations of bad faith and malicious conduct. As discussed above, the wrongful and constructive dismissal allegations were stayed by Justice Hood on June 29, 2015 pending a judicial review of the adjudicator’s decision on the complaint of constructive dismissal from Mr. Curtis under the Canada Labour Code, namely a decision that the adjudicator had no jurisdiction as Mr. Curtis resigned his position.
21Significantly, on January 8, 2016 Mr. Curtis voluntarily delivered an Amended Fresh As Amended Statement of Claim removing the claim for wrongful and constructive dismissal. Mr. Curtis stated in argument that he did this because of the stay order.
22Mr. Curtis’ present Further Fresh As Amended Statement of Claim contains a series of paragraphs concerning what Mr. Curtis calls “bad faith breach of contract.” Having reviewed these paragraphs, I have concluded that they are primarily a reintroduction of the wrongful and constructive dismissal claim Mr. Curtis voluntarily removed from his pleading in January, 2016 almost four years ago. As such, its reintroduction at this point represent a violation of the two year limitation period under the Limitations Act, namely the introduction of a cause of action long after the expiration of the limitation period. Whether Mr. Curtis originally pleaded this cause of action is immaterial. He removed it in January, 2016, four years ago, and cannot now reintroduce it.
23One might ask whether the bad faith dimension to these allegations amounts to an independent cause of action. I was given no authority in that regard, and I doubt it. In any event, if it is a separate cause of action, I find that the limitation period has expired on this claim long ago. Mr. Curtis stated in his affidavit in this motion that his review of his BNS employment file for the first time (after it had been delivered by Mr. Dick) in December, 2018 led him to “discover” all these new causes of action as there was nothing in this file that indicated that he had breached the BNS guidelines for business conduct. The absence of this paper in his employment file would not necessarily give notice of a bad faith claim. Furthermore, based on the evidence in this motion, the facts Mr. Curtis pleads in his amended pleading were known to him or clearly could have been with reasonable diligence known to him for pleading in the initial Statement of Claim.
24Mr. Dick also argued that there was an issue of tenability here, as he argued that the adjudicator’s finding had been upheld by the Federal Court thereby rendering the issue of wrongful and constructive dismissal moot and abusive. There is merit to this position. In his ruling on June 29, 2015 Justice Hood stayed the wrongful and constructive dismissal claim as an abuse of process pending the judicial review of the adjudicator’s ruling that Mr. Curtis had resigned, not been constructively dismissed. He expressly did not strike the claim “as the determination to strike could well be influenced by how the Federal Court reaches its own conclusion.” On April 19, 2017 the Federal Court rejected the Curtis judicial review. It ruled that the adjudicator’s finding that the BNS “had not fundamentally changed the terms of [Mr. Curtis’] employment so as to give rise to a constructive dismissal, was reasonable.” Given this ruling, to now reintroduce a claim that amounts to a variant of the same wrongful and constructive dismissal claim is tantamount to an abuse of process, as found by Justice Hood. This is further justification for refusing to allow this pleading amendment.
25I deny the amendments concerning this cause of action for the reasons stated above.
a.2) Negligent/bad faith investigation
26In his October 31, 2014 ruling, Justice Corbett clearly denied Mr. Curtis the right to assert a cause of action for negligent investigation as against his ex-employer, BNS, due to the decision of the Court of Appeal in Correira v. Canac Kitchens, (2008), 2008 ONCA 506, 91 O.R. (3d) 353. As a result, in his January 8, 2016 amendments Mr. Curtis excluded the allegations of negligent investigation. He also removed allegations and titles concerning “bad faith and ulterior motives of investigation and suspension” and the “impact of malicious investigation and suspension on the plaintiff’s right of employment.”
27In his present Fresh As Amended Statement of Claim, Mr. Curtis introduces a section entitled “negligent/bad faith investigation.” Contrary to Master McAfee’s endorsement, it is not underlined. As these amendments concern the alleged cause of action of “negligent investigation,” I fail to see how this does not offend Justice Corbett’s ruling, and I deny these amendments. As these amendments concern “bad faith investigation,” I do not see a real distinction to be drawn from the alleged cause of action in “negligent investigation,” given the ruling of the Court of Appeal in Correira. The Court of Appeal in Correira are paragraph 72 rejected the proposition that an employer must act in good faith in dismissing an employee.
28Justice Corbett did allow Mr. Curtis to plead facts concerning the investigation to support a claim for Wallace damages. These are a separate head of damages in wrongful dismissal actions that concern egregious and abusive conduct on the part of the employer. Mr. Curtis now alleges that this is what he is doing with these amendments. If that is the case, and it is not at all clear, the problem is that there is no claim for wrongful and constructive dismissal that would support a claim for Wallace damages. Therefore, this argument fails. I deny these amendments as well.
a.3) Bad faith and malicious referencing
29Mr. Curtis’ amendments include a new section entitled “bad faith and malicious referencing.” Again, it was not underlined. Mr. Dick is right that there is no cause of action of this nature. But I also agree with Mr. Curtis that this section must be viewed more as an adjunct of the originally pleaded claim in defamation. To that extent, I will allow these amendments.
a.4) Intentional interference with contractual relations
30In his Fresh As Amended Statement of Claim Mr. Curtis now alleges for the first time that he had contracts of employment with other banks, namely RBC, CIBC and BMO. He now alleges that BNS’s actions deliberately interfered with his performance of these contracts. This is an entirely new set of facts and a new cause of action that was not pleaded to date. Mr. Curtis’ evidence about his review of his employment file in December, 2018 does not satisfy me that this review was first reasonable notice of this claim and that this claim could not have been asserted earlier, indeed from the outset. The limitation period of this claim has clearly expired. These amendments are denied.
a.5) Inducing breach of employment contract
31Mr. Curtis includes amendments under this title. In this section he relies upon the same allegations that he included under the previous title, intentional interference with contractual relations, namely that he had employment contracts with other banks. Again, this is a newly pleaded cause of action based on newly pleaded facts. It is out of time. I deny these amendments.
a.6) Intentional interference with economic relations
32Contradicting these pleadings, Mr. Curtis then asserts a claim of intentional interference with economic relations. He alleges that BNS deliberately interfered with his ability to get gainful employment with RBC, CIBC and BMO. Pleadings can include contradictory allegations if that is made clear.
33Mr. Dick argued that this is an entirely new cause of action based on alleged deliberate BNS conduct and is therefore out of time. I have reviewed Mr. Curtis’ pleading of January, 2016. There are references in the undeleted portions of this pleading to “malicious” communications by BNS to third parties, such as in paragraph 96. Mr. Curtis makes similar allegations in paragraphs such as paragraph 101. While later than two years after the events of April, 2012, this pleading was authorized by Justice Corbett. In my view, it provides some basis for this pleaded tort, and therefore I find that this cause of action is not out of time. I, therefore, allow these amendments.
a.7) Negligence and negligent supervision and training
34Mr. Curtis now includes claims of negligence, and particularly claims of negligent supervision and training of employees. As to particulars, Mr. Curtis pleads that the BNS failed to insure that its employees followed Bank policies and procedures or that the BNS failed to have policies in place, all for the purpose of avoiding the conduct that led to Mr. Curtis’ end of employment.
35I reviewed Mr. Curtis’ January 8, 2016 pleading and did not find any such allegations there. Furthermore, Mr. Curtis’ evidence of his review of his employment file in December, 2018 was not enough to establish this event as the reasonable first notice of this claim. There was no evidence that an employment file contained or is supposed to contain material concerning Bank supervision, training and policies. Therefore, I am driven to the conclusion, and conclude, that Mr. Curtis could have with due diligence asserted this claim at the outset and that the limitation period has expired. I, therefore, deny these amendments.
a.8) Breach of customer contract/breach of privacy
36Mr. Curtis now includes a claim essentially of “intrusion upon seclusion.” He pleads that he discovered in October 2019, presumably from BNS disclosures in this action, that the BNS had released private information about Mr. Curtis to Canaccede Financial Group who then released that information to others, all without Mr. Curtis’ knowledge or consent. Apparently, Canaccede Financial Group is a debt collection firm.
37Mr. Dick did not challenge this amendment on limitation grounds, given the recency of this discovery. He challenged it as to tenability. He argued that the tort of “seclusion upon seclusion” requires that the intrusion be highly offensive to the reasonable person; see Jones v. Tsige, 2012 ONCA 32 (O.C.A.), paragraphs 55 to 59. He argued that the release of information to a debt collection agent was expressly authorized under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 7(3)(b), and therefore could not be “highly offensive.”
38While Mr. Dick’s argument is interesting, he presented no case authority confirming this point. Therefore, I am not prepared at the pleadings stage to deny Mr. Curtis the right to prove this claim. This may be a case where the release of the information was indeed highly offensive. I allow these amendments.
a.9) Intentional infliction of emotional distress
39Mr. Curtis now adds a claim of intentional infliction of emotional distress, alleging that the BNS intentionally inflicted mental suffering on him. The elements of this cause of action are the following: an act or statement that is extreme, flagrant or outrageous; the act or statement is calculated to produce harm; and the act or statement causes harm; see High Parklane Consulting Inc. v. Sajid Albert Lewis, 2007 CanLII 410 (ONSC) at paragraph 31.
40Mr. Dick objected on the grounds of limitation. I am not prepared to accept this argument. There was sufficient reference to alleged harmful BNS conduct and communications in Mr. Curtis’ January 8, 2016 pleading to make it reasonable for the BNS to conclude that this cause of action would or could be asserted. Also I note that some of Mr. Curtis’ allegations concern the release of the information to Canaccede which appears not be precluded on limitation grounds. I, therefore, allow these amendments.
a.10) Damages
41There are many amendments concerning damages. Mr. Dick did not object to these, and I allow them, as they concern damages, not new causes of action.
a.11) Conclusion
42Mr. Curtis must alter his Fresh As Amended Statement of Claim to accord with my ruling. He must provide a copy of same to Mr. Dick for his approval. If the parties cannot agree on the form of amendment that accords with my ruling, they can seek an appointment with me to settle the issue.
b) Document disclosure
43Mr. Curtis seeks further production from the BNS. Many of the documents he seeks were the subject matter of the motion before Master McAfee. They were also addressed in an affidavit sworn by Shirley Roberts, the Senior Manager at the BNS who swore both the BNS affidavits of documents in this action and the earlier affidavit that was before Master McAfee.
44The onus of proving the existence, relevance and non-disclosure of the claimed documents rests on Mr. Curtis. I note that Mr. Curtis did not cross-examine Ms. Roberts on her affidavit. I will address each sets of documents.
b.1) Final Horizon Report
45Master McAfee ordered that, as the most recent version of the Horizon Report in the material before her was printed on February 27, 2012, namely before the events of April, 2012, the BNS should produce “a copy or further copy of this document showing the plaintiff’s termination status.”
46Ms. Roberts in her affidavit in this motion stated that, “to the best of my knowledge, Mr. Curtis has his most recent or “Final” Horizon report and has had that document since July 2018.” Mr. Curtis confirmed in his argument that the employment file he examined in December, 2018 did not have a Final Horizon Report. I, therefore, am not prepared to order the disclosure of this document, as it appears not to exist.
b.2) Canadian Termination Print Screen
47In her affidavit Ms. Roberts described this document as an electronic entry in the BNS Canadian Termination database. Without admitting the relevance of this screen, by letter dated November 25, 2019 Mr. Dick disclosed a shot of page 2 of 2 of the screen concerning Mr. Curtis, which shows his termination status as “resign” and the date April 30, 2012. Mr. Curtis argued that there are more documents in this database concerning his employment history, and he wanted them all produced.
48Having denied the “bad faith breach of employment contract” and the “negligent/bad faith investigation” claims, I am driven to the conclusion that these documents are not relevant and need not be produced.
b.3) Roberts emails
49In his Notice of Motion Mr. Curtis sought unredacted copies of three emails Ms. Roberts wrote in May, 2012 concerning the payments to be made to Mr. Curtis following his resignation. In another letter dated November 22, 2019, Mr. Dick disclosed these three emails without admitting their relevance. He left one redaction in place on the May 29, 2012 email to Mr. Conroy, which Mr. Dick stated in the letter was due to the protection of privileged information.
50Because of my denial of the bad faith breach of employment contract claim, I am not prepared to make any further order in this regard.
b.4) Barry Ray’s Delinquency Reports
51In paragraph 9 of her ruling, Master McAfee ruled that, “to the extent that the defendant has not yet produced these delinquency reports in their possession, control or power, a further and better affidavit of documents shall be served listing the documents in schedule “A” and the documents shall be produced.”
52In her affidavit sworn November 28, 2019 Ms. Roberts stated that all delinquency reports in the BNS possession have been produced in the BNS affidavit of documents and supplementary affidavit of documents. Mr. Curtis did not cross-examine Ms. Roberts on this statement. He argued that these documents must exist but provided no evidence of this alleged failure. I, therefore, am satisfied based on the evidence in this motion that the BNS has satisfied Master McAfee’s order.
b.5) Mortgage payment and interest histories
53In paragraphs 10 and 11 of her ruling, Master McAfee ruled that these documents must be produced through a further and better affidavit of documents. In her affidavit, Ms. Roberts disclosed the letter from Mr. Dick to Mr. Curtis dated January 30, 2019 wherein Mr. Dick stated that he was enclosing the mortgage payment and interest histories of the 17 mortgages in issue plus a Second Supplementary Affidavit of Documents containing these documents. He also stated that personal information of the mortgagors was redacted but that the initials had been included to allow Mr. Curtis to identify the mortgagors. Mr. Curtis did not cross-examine Ms. Roberts.
54Mr. Curtis argued that what was produced was not the mortgage payment and interest histories, but “some other irrelevant history of credit insurance, accrued interest.” He alleged that the BNS should have produced “amortization schedules.” It is not clear whether Mr. Curtis raised the issue of these “amortization schedules” with Master McAfee, and I note that Master McAfee did not order the disclosure of amortization schedules.
55I, therefore, find that, based on the evidence in this motion, the BNS has satisfied Master McAfee’s ruling and that no further production is necessary at this point.
b.6) BCPIO disclosure forms
56The BNS has produced the BCPIO disclosure forms with respect to the inquiries made by the Bank of Montreal and the Royal Bank of Canada. In her affidavit, Ms. Roberts stated that to the best of her knowledge there are no other BCPIO disclosure forms relating to these two inquiries. This does not address the disclosure forms with respect to the inquiries made the Canadian Imperial Bank of Commerce and any other bank. These other documents must be produced.
b.7) Employment relations policies
57In paragraphs 15 to 17 of her ruling, Master McAfee dismissed Mr. Curtis motion to have the “BNS Termination Policy, BNS Progressive Discipline Policy and BNS Suspension Policy” produced. She ordered that this was without prejudice to having this motion brought back after examinations for discovery. Mr. Curtis brings this motion back now and adds a request for other BNS employment policies. There have been no discoveries, and therefore Mr. Curtis has not complied with Master McAfee’s order. Ms. Roberts also states in her affidavit that these alleged other policies do not exist. She was not cross-examined. I, therefore, am not satisfied that these other policies exist. For all these reasons, I dismiss this motion.
b.8) Signing authority documents
58Mr. Curtis wants production of documents concerning Ms. Roberts’ signing authority for the period November 1, 2011 to October 31, 2012, and concerning the BNS delegation of signing authority for the period January, 2012 to December, 2012. Ms. Roberts stated in her affidavit in this motion that she was not aware of the existence of such documents, and that she obtained signing authority verbally on a case by case basis. She was not cross-examined. I, therefore, am not satisfied that these documents exist, and dismiss this motion.
b.9) Unpaid wages claim
59Mr. Curtis wants the production of the BNS documents concerning Mr. Curtis’ application to the Human Resources Services Development Commission (HRSDC) for payment by BNS of earned commissions. This claim was resolved, and Mr. Curtis was paid commissions. The BNS claims that this file is irrelevant. On the surface, this appears to be the case, particularly now that I have denied the “bad faith breach of employment contract” claim.
60In his proposed Further Fresh As Amended Statement of Claim in this motion, however, Mr. Curtis pleads in paragraphs 153 and 154 that it was in this HRSDC proceeding that the BNS withdrew its allegations against Mr. Curtis of fraudulent documents in mortgage files, but that the BNS nevertheless continued to communicate that allegation to others. I find that this relates to the defamation claim. To the extent these documents relate to the defamation claim, they are relevant and must be produced.
b.10) Canaccede documents
61Having allowed Mr. Curtis’ claim of “breach of customer contract/breach of privacy,” it flows logically that the BNS should disclose the documents concerning this claim, namely the documents concerning the BNS’s disclosure to Canaccede Financial Group of information and documentation concerning Mr. Curtis.
b.11) Other relief
62In his Amended Notice of Motion, Mr. Curtis claimed an order that the BNS be denied the right to rely upon “its investigation report” at trial and remove it from its affidavit of documents. This relief was not pursued in argument, and I make no order in this regard.
c) Costs
63At the end of the argument, I gave the parties two days to file costs outlines. The BNS delivered a costs outline containing three totals: $11,860.48 in partial indemnity costs; $17,588.45 in substantial indemnity costs; and $19,524.14 in actual costs. Mr. Curtis filed a “Plaintiff’s Cost Submission” that claimed substantial indemnity costs of $7,961.50, representing 37 hours of his time at $150/hour and $2,461.50 of disbursements.
64Given the divided success on this motion, I award no costs of this motion, including the attendance before Master McAfee on November 8, 2019.
DATE: December 30, 2019
MASTER C. WIEBE