Court File and Parties

COURT FILE NO.: CV-19-00619149-0000 DATE: 20200204 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: KABIR SINGH Plaintiff – and – RBC INSURANCE AGENCY LTD. and AVIVA GENERAL INSURANCE COMPANY Defendants

COUNSEL: Andrew Monkhouse and Alexandra Monkhouse, lawyers for the Plaintiff, Kabir Singh Jeremy Devereux, lawyer for the Defendant, RBC Insurance Agency Ltd. Paul J. Martin, lawyer for the Defendant, Aviva General Insurance Company

HEARD: DECEMBER 18, 2019

G. DOW, J.

REASONS FOR DECISION

[1] The defendants seek to strike out a variety of paragraphs of the plaintiff’s Amended Statement of Claim for a variety of reasons. This included that some paragraphs disclosed no reasonable cause of action and thus required the motion to be heard by a judge under rule 21.01(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. This motion was initiated by the defendant, RBC Insurance Agency Ltd. (“RBC Insurance”) and counsel for that defendant made their submissions. Counsel for Aviva General Insurance Company (“Aviva”) attended and supported the co-defendant’s motion. Counsel for Aviva also acknowledged its efforts to benefit from the result. There well may be an issue as to whether the plaintiff has commenced his action against the proper corporate entities of Aviva which it is alleged engaged in a business relationship with the Royal Bank of Canada.

[2] In the Amended Statement of Claim, the plaintiff claimed damages arising from being constructively and thus wrongfully dismissed by the defendants. Damages are sought for lost wages, the value of employment benefits, future income loss, misrepresentation, Human Rights Code violations and for actionable conduct in the manner of dismissal attracting an award of punitive, aggravated and moral damages.

Background

[3] A motion to strike pleadings generally proceeds on the basis the allegations are true. On that basis, I would summarize the employment relationship from the Amended Statement of Claim as follows.

[4] The plaintiff was employed as an investment advisor with the defendant, RBC Insurance. An agreement in January, 2016 was reached between RBC Insurance and the defendant, Aviva that they were partnering to sell policies and respond to claims in the property and casualty fields of insurance. This involved Aviva asserting management control over RBC Insurance employees and restructuring how compensation was to be paid to employees. For the plaintiff, this involved the reduction in his base wages in 2018 with a greater opportunity to earn variable compensation based on performance related to sales.

[5] The plaintiff pleads the defendants are common employers and jointly liable. On February 14, 2019, the defendants suspended the plaintiff with pay, over allegations of misconduct which were being investigated. However, as of that date, the defendants had no evidence of misconduct. The plaintiff was one of an unspecified number of employees similarly treated. There was prejudicial treatment of the plaintiff and others such as clients of the defendant who were suspected of being a member of the Sikh faith with postal codes in the Brampton area. The original Statement of Claim issued on May 1, 2019 was amended, without leave, following communication between counsel and before any responding pleading had been delivered.

Analysis

[6] The first complaint of the defendants is that the claim of malicious investigation (paragraphs 1 i. and 33 to 39 of the Amended Statement of Claim) discloses no reasonable cause of action. The defendants acknowledge negligent investigation is a tort and there is a duty of care with regard to investigations conducted by the state, such as police forces. That was not what was pleaded or occurred here. Further, no investigation by a private investigator has been pleaded. The Court of Appeal, in Correia v. Canac Kitchens et al, 2008 ONCA 506 (at paragraph 72) noted the Supreme Court of Canada “rejected the submission that an employer must have good faith reasons” for dismissing an employee as that would contradict the fundamental premise of employment law being “the right, subject to contractual terms to the contrary, of either party to terminate the relationship”. Further, “it would be inconsistent to nevertheless recognize a duty on an employer not to conduct a negligent investigation regarding an employee. To do so would be to do indirectly what the Supreme Court expressly rejected in Wallace”. This is a reference to Wallace v. United Grain Growers Ltd., 1997 SCC 332, [1997] 3 S.C.R. 701 where it rejected claims for bad faith discharge (at paragraphs 75 to 78).

[7] The plaintiff relied on Winmill v. Woodstock (Police Services Board), 2017 ONCA 962 which did not address the existence of a claim for malicious investigation which was included in that action. However, the defendant in that case was a police force and officers employed by it. This is a clear distinguishing aspect given it relates to an investigation by the state and criminal conduct.

[8] As a result, these paragraphs, being 1 i., and 33 to 39, are struck out. However, mindful of the comments of this court in Calabogie Peaks Ltd. v. Kansa General Insurance Co., [1987] I.L.R. 1-2249 that a claim may exist where a party retained by the employer maliciously conducted its investigation, the plaintiff is granted leave to amend.

[9] The second complaint by the defendants is with regard to the claim of misrepresentation, not specified as negligent or fraudulent and described in paragraphs 1d., 23 and 47 to 50 of the Amended Statement of Claim. The defendants submit the claim fails to set out sufficient particulars. That is not a sufficient reason to strike out the claim. It is the basis upon which to demand particulars.

[10] I agree with the defendants that the requisite elements of a claim for negligent misrepresentation are set out in the Supreme Court of Canada’s decision of Queen v. Cognos Inc., 1993 SCC 146, [1993] 1 S.C.R. 87 at page 110. Similarly, the elements of fraudulent misrepresentation were succinctly set out in Radovancevic v. 3Gen Development Group Inc., 2018 ONSC 4967 at paragraph 23. Those elements were not adequately pleaded in the described paragraphs. Given the content of the pleading contains the essence of the claim, while paragraphs 1 d., 23 and 47 to 50 are struck out, leave to amend is granted.

[11] The third complaint is the Human Rights Code violations and the paragraphs sought to be struck out were not adequately pleaded.

[12] The paragraphs sought to be struck are 1 f., 1 g., 36, 37, and 58 to 61. Paragraphs 36 and 37 have already been struck out above with leave to amend. The defendants rely on the three elements set out in Shaw v. Phipps, 2012 ONCA 155 at paragraph 14 for the purpose of delineating that it is the plaintiff’s claim and is restricted to the plaintiff and how he personally was discriminated against, here because of his ethnicity, and not that of others such as clients who shared that ethnicity. Further, the defendants object to paragraph 61 of the Amended Statement of Claim which proposes to particularize the claim within 30 days of receiving the defendant’s Affidavit of Documents. I conclude that, to use the common metaphor, the plaintiff is attempting to “put the cart before the horse”. The defendants are correct that the pleadings define and set out the limit of what documents and productions are required or compellable.

[13] If the plaintiff wishes to plead his human rights were violated because of his ethnicity, he must plead that with sufficient particulars. If he wishes to allege he was barred from selling to a certain ethnic group because of his ethnicity, he can plead that as well. I conclude paragraphs 1 f., 1 g., and 58 to 61 should be struck but with leave to amend.

[14] The fourth paragraph complained of is a portion of paragraph 45 of the Amended Statement of Claim which contains the phrase “employees of RBC Insurance entities had in the past suffered irreparable damage in the context of similar investigations”. The defendants complain that statement fails to comply with Rule 25.06 of the Rules of Civil Procedure which requires pleadings be “a concise statement of the material facts” upon which the plaintiff relies. The paragraph is within the subheading in the Amended Statement of Claim of “Negligent Infliction of Mental Suffering”. I can understand why the defendants seek to strike out the paragraph given its implications for production and discovery. There is a logical desire to have as much precision and limitation as possible to that pleading. I can also understand how the plaintiff wishes to rely on what the defendants knew or ought to have known when it instigated its investigation of the plaintiff. This would include the conduct being based on any prior, or similar experiences.

[15] The defendants rely on the general principles governing pleadings as set out by Justice Strathy (as he then was) in Serqueira v. Ontario, 2010 ONSC 3954 (at paragraph 11) which included the basic rule that allegations of negligence, must be pleaded with particularity. To that end, I agree that paragraph 45 in its present form should be struck, with leave to amend.

[16] The fifth complaint is with regard to allegations of the defendants being the plaintiff’s common employer as contained in paragraphs 17 to 20 and 25 to 28 of the Amended Statement of Claim. As noted at the outset, both defendants sought to benefit from this motion. The claim of an employee being employed by more than one employer at the same time and seeking damages for multiple entities following dismissal is well known. It has been pleaded. For this motion, it is presumed to have been proven.

[17] The decision in Downtown Eatery (1993) Ltd. v. Ontario, 2001 ONCA 8538 (C.A.) makes it clear the employment relationship is more than “a matter of form and technical corporate structure” (at paragraphs 1 and 32). While the pleading may have been crafted more clearly, it sets out material facts for which there is a cause of action. Paragraphs 17 to 20 and 25 to 28 may therefore remain.

[18] The sixth complaint is about paragraphs which plead evidence. Those not previously dealt with or are already struck out are paragraphs 7 to 12, 14 and 15. Paragraphs 36, 37 and 59 have been dealt with and already struck. Paragraphs 18 to 20 and 25 have survived in support of the claim of common employer.

[19] The law requires pleadings to be limited to material facts being relied on but not the evidence by which those facts are to be proven (Serqueira v. Ontario, supra at paragraph 11 (c)). Paragraphs 7 to 12 and 14 and 15 (as well as paragraphs 18 to 20, 22 and 25) describe the events that led to the plaintiff claiming he had common employers. That may be incorrect after evidence is tendered but that is not the test to be applied.

[20] Pleadings are also to be read generously with a view permitting the defendants to know the case that they must meet. I do not see these paragraphs as so clearly evidence or inhibiting the defendants from determining the case they must meet such that they should be struck. The defendants’ motion in regarding these paragraphs is dismissed.

Additional Issues

[21] The motion material included affidavit evidence which is not permitted without leave. I have deliberately not referred to that material. It attempted to document the defendants’ complaints about the original pleading which the plaintiff attempted to address in the Amended Statement of Claim. That revised pleading remained unsatisfactory to the defendants and resulted in this motion.

[22] The plaintiff’s factum raised, likely improperly, that he is involved in a potential class action involving employment standard’s violations against the defendants. Again, I deliberately did not refer to that information.

[23] The defendants sought no leave be granted to amend the pleading. The defendants relied on the principle no leave ought to be granted where there is no basis for leave to be granted or where it would serve no purpose. That was not the situation before me. The defendants also relied on the pleading having been previously amended. I conclude a singular amendment is not the “a number of times” referred to by the Court of Appeal in McDowell v. Fortress Real Capital Inc., 2019 ONCA 71 (at paragraph 64).

[24] It appears the plaintiff will be seeking to plead widely in support of its allegations. The defendants, both large national corporations, have been alleged to have discriminated against an ethnic group which includes the plaintiff and others. If proven, it would be of great concern. The plaintiff is entitled to pursue his claims within the Rules. Similarly, the defendants are entitled to review and seek clarification of the causes of action and material facts being alleged in order to determine the case it must meet. This will also determine the scope of production and discovery. The Masters are ideally skilled and suited to address each of those concerns. It was very unlikely, in my view, that at this stage of the litigation, that the pleading would be found to have shown no reasonable cause of action of action and leave to amend not granted.

Conclusion

[25] Paragraphs 1 d., 1 i., 23, 33 to 39, 45, 47 to 50, and 58 to 61 are struck out with leave to amend. Paragraphs 7 to 12, 14, 15, 17 to 20, and 25 to 28 may remain and the defendants’ motion in regard to those paragraphs is dismissed.

Costs

[26] The Costs Outline submitted by the plaintiff and the defendant RBC Insurance ranged between $16,674.16 to $18,847.15 on a partial indemnity basis, inclusive of fees, HST and disbursements. Neither party put forward a basis for costs to be considered beyond the level of partial indemnity. Counsel for Aviva advised it was not seeking costs.

[27] The parties have had mixed success. Further, as stated, it was unlikely, in my view, the defendants would succeed in their position no cause of action existed and thus there should be no leave to amend. The motion ought to have been heard by a Master.

[28] As a result, I am fixing costs in the amount of $16,674.16 inclusive of fees HST and disbursements in the cause.

Mr. Justice G. Dow Released: February 4, 2020