Court File and Parties

COURT FILE NO.: CV-19-00615322-0000 DATE: 2020-06-24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DIK LEE Plaintiff – and – MAGNA INTERNATIONAL INC., COSMA INTERNATIONAL INC., VENEST INDUSTRIES INC., MIKE ROOKE, GINA AIELLO, JOEL MINOR, JOEL ILLICK AND STEVEN THUSUSKA Defendants

Counsel: Dik Lee, Self-Represented Eric T. Gresham, Counsel for the Defendants

HEARD: February 26, 2020; Written Submissions Filed March 12 and 26, May 5 and June 6, 2020

LEIPER J.

REASONS FOR DECISION

(PLEADINGS MOTIONS UNDER RULES 21 AND 26)

I INTRODUCTION

[1] The defendants (collectively, “Magna”) brought a motion under Rule 21 of the Rules of Civil Procedure to strike out certain paragraphs in the plaintiff’s Amended Fresh as Amended Statement of Claim, (the “AFAC”) dated July 2, 2019.

[2] The plaintiff (“Mr. Lee”) brought a cross-motion under Rule 26 of the Rules of Civil Procedure to amend the AFAC.

II BACKGROUND

[3] Mr. Lee was employed as a production technician by Venest Industries Inc., an auto parts manufacturer and a division of Cosma International Inc. Cosma is a subsidiary of Magna International Inc. The other defendants are employees of Venest Industries.

[4] On March 14, 2018, the defendant Steven Thususka complained of harassment by Mr. Lee after Mr. Thususka was instructed to relay a communication to Mr. Lee regarding cleanliness in the welding area in the Venest workplace. There was an internal investigation and Mr. Lee was disciplined.

[5] On November 2, 2018, Mr. Lee brought an application to obtain disclosure of documents created during the internal investigation.

[6] On November 5, 2018, Mr. Lee complained to the Ministry of Labour about the workplace investigation.

[7] On November 27, 2018, the Ministry review found that “The investigation was not appropriate in the circumstances due to all information collected as part of the investigation does not appear to have been considered when determining the findings of the investigation.” Mr. Lee’s “primary employer” under the OHSA, Magna International Inc., was ordered to ensure that an investigation “be conducted into the incidents and complaints of workplace harassment that was appropriate in the circumstances pursuant to s. 32.0.7 of the Occupational Health and Safety Act.”

[8] On January 7, 2019, Mr. Lee brought an application before the Ontario Labour Relations Board against Magna, Venest and three employees of Venest alleging unlawful reprisal under section 50 of the OHSA.

[9] The second investigation ordered by the Ministry of Labour was completed on February 13, 2019 by Gary Love, the human resources director for Cosma Canada. Mr. Love confirmed the findings and outcome of the first investigation but also found that Mr. Lee’s behaviour toward Mr. Thususka may have been unintentional.

[10] Mr. Lee left his employment at Venest Industries Inc. on February 28, 2019.

III THE LEGAL PROCEEDINGS

[11] On February 28, 2019, Mr. Lee sued Magna. His action was for damages relative to:

a. Constructive/wrongful dismissal, b. Defamation, c. Gross negligence, d. Inducing breach of contract, and e. Human rights violations.

[12] On April 15, 2019, the parties appeared in Civil Practice Court. At that time, Magna raised issues with the length of the Mr. Lee’s statement of claim. Mr. Lee agreed to revise his pleading. Mr. Lee served a Fresh as Amended Statement of Claim on May 21, 2019. On May 29, 2019, Magna delivered a Notice of Intent to Defend.

[13] On June 20, 2019, Magna served a Statement of Defence. Mr. Lee then served a motion seeking production of documents from Magna, returnable July 2, 2019. On June 18, 2019, Magna wrote to the court seeking a dismissal pursuant to Rule 2.1.02. On June 28, 2019, Chalmers, J. dismissed Magna’s request to dismiss.

[14] On July 2, 2019, Mr. Lee served a reply and the AFAC which is the subject of Magna’s motion to strike.

[15] On September 4, 2019, Mr. Lee’s motion for production was heard. Master Jolley ordered production of a letter in the possession of Magna dated April 20, 2018 entitled “Summary and Recommendations from Investigation-March 14, 2018.”

[16] On October 23, 2019, Mr. Lee brought a motion before Master Mills to add Mr. Love to the action as a defendant. Master Mills dismissed Mr. Lee’s motion and reserved the costs of that motion to this motion.

[17] In dismissing the motion to add Mr. Love as a defendant, Master Mills relied on jurisprudence from the Ontario Court of Appeal in Correia v. Canac Kitchens, 2008 ONCA 506 which limited the tort of negligent investigation to professional investigators and police services. Magna relies on the Correia principles on its motion to strike. Magna submits that portions of the AFAC should be struck out on the basis that there can be no relief in law where the tort of negligent investigation is pleaded against the employer. These arguments are discussed in greater detail below.

IV THE MOTION TO STRIKE

[18] At the argument of the motion on February 26, 2020, Mr. Lee agreed to remove several disputed paragraphs from the AFAC. Paragraphs 88, 89, 102-104, 116, 119, 135 (and heading), 136, 137, 160 and 243 were removed on consent.

[19] I will address next the principles applicable to motions to strike followed by an analysis of the remaining portions of the AFAC which Magna seeks to strike, and which Mr. Lee submits should be permitted to remain.

The Principles Applicable on a Motion to Strike a Pleading

[20] Rule 21.01(b) of the Rules of Civil Procedure provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. The pleading is to be read generously: prior to striking out a claim the court should be persuaded that it is plain and obvious that the plaintiff cannot succeed: Hunt v. Carey, [1990] 2 S.C.R. 959 at p. 980.

[21] The material facts pleaded are taken to be true unless they are incapable of proof or ridiculous: Cerqueira v. Ontario, 2010 ONSC 3054 at para. 11.

[22] The motion to strike a pleading should be used to remove hopeless claims and allow those with some chance of success to proceed: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2012] 3 S.C.R. at para. 19.

[23] A judge who considers striking portions of a claim shall err on the side of permitting a claim to proceed: Imperial Tobacco at para. 21.

[24] Striking out a claim is not necessarily justified in the case of a novel or difficult point of law. The underlying policy rationale for this approach is “to be sure that the common law in general, and the law of torts, will continue to evolve to meet the legal challenges that arise in our modern industrial society.” Hunt v. Carey at p. 980 and pp. 990-991.

[25] I will turn now to the paragraphs which Magna seeks to strike from the AFAC.

The “Credibility” Paragraphs in the Amended Claim

[26] Magna seeks to strike paragraphs 5-11 in the AFAC. These paragraphs describe Mr. Lee’s reputation in the community and are entitled “Credibility.” Magna submits that these paragraphs are evidence or alternatively, are irrelevant.

[27] In his written submissions, Mr. Lee proposed to shorten and amend this portion of the AFAC. He would replace the title “Credibility” with “Reputation and Character” and replace paragraphs 5-11 with two paragraphs as follows:

Mr. Lee is a distinguished member of society. Over the course of Mr. Lee’s life, he has been establishing excellent relationships, reputation and character in business, employment, personal life, and his career both inside and outside of his employment with Magna.

Mr. Lee’s reputation and character is of utmost importance and is an integral part of Mr. Lee’s life both inside and outside of his employment with Magna. His interaction within the community has been stellar.

[28] Mr. Lee argues that he should be entitled to plead matters relating to his reputation because of his claim in defamation. The tort of defamation includes proof of a defamatory statement which would tend to lower the plaintiff’s reputation in the eyes of a reasonable person: Gaur v. Datta, 2015 ONCA 151.

[29] Magna submits that the existing paragraphs are irrelevant and should be struck out of the Amended Claim. They do not accept Mr. Lee’s proposed changes to these paragraphs.

[30] I conclude that Mr. Lee’s pleading as to a prior positive reputation may be relevant to a claim for damages arising from defamation. Mr. Lee offered to shorten this portion of his AFAC. I will order that paragraphs 5-11 of the AFAC be removed. I give leave to Mr. Lee to amend the AFAC by replacing the title “Credibility” with “Reputation and Character” and by inserting the two paragraphs above.

The Claim in Negligence Related to Magna’s Workplace Investigation under the Occupational Health and Safety Act

[31] Magna seeks to strike paragraphs 1(c), 1(e) and 80-162 of the AFAC which seek damages for the corporate entities’ alleged failure to conduct an appropriate workplace investigation. Magna submits that employers cannot be found liable for the tort of negligent investigation: Correia v. Canac Kitchens, 2008 ONCA 506.

[32] Mr. Lee submitted that the new workplace duties for conducting appropriate workplace investigations which were added to the Occupational Health and Safety Act (“OHSA”) in 2016 can found a claim in negligence against his employer, Venest and its parent companies, Cosma and Magna. Mr. Lee relies on a recent decision of this court suggesting that this is the case: Mohammed v. The Queen, 2019 ONSC 532.

[33] For the purposes of the argument for a claim in negligence, the parties did not distinguish between the various employment entities, and Mr. Lee had previously agreed to remove the individual named defendants from this portion of his claim. I will consider the employers/corporate entities together.

[34] The amendments to the legislation which Mr. Lee submits support a common law duty and his claim in negligence are found in the OHSA Part III.01: Violence and Harassment:

Program, harassment

32.0.6 (1) An employer shall, in consultation with the committee or a health and safety representative, if any, develop and maintain a written program to implement the policy with respect to workplace harassment required under clause 32.0.1 (1) (b). 2016, c. 2, Sched. 4, s. 2 (1).

Contents

(2) Without limiting the generality of subsection (1), the program shall,

(a) include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;

(b) include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;

(c) set out how incidents or complaints of workplace harassment will be investigated and dealt with;

(d) set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law;

(e) set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; and

(f) include any prescribed elements. 2009, c. 23, s. 3; 2016, c. 2, Sched. 4, s. 2 (2).

Duties re harassment

32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that,

(a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

(b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;

(c) the program developed under section 32.0.6 is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment required under clause 32.0.1 (1) (b); and

(d) such other duties as may be prescribed are carried out. 2016, c. 2, Sched. 4, s. 3.

[35] The OHSA was also amended in 2016 to include enforcement of the duty to investigate:

Order for workplace harassment investigation

55.3 (1) An inspector may in writing order an employer to cause an investigation described in clause 32.0.7 (1) (a) to be conducted, at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person. 2016, c. 2, Sched. 4, s. 4.

[36] Although the amendments provide some ministry oversight of workplace investigations, the OHSA does not create a statutory cause of action for damages for a breach of the workplace investigation provisions. It is well established that there is no stand-alone breach of statutory duty, finding that civil consequences for breach of a statue should be subsumed in the law of negligence. Proof of a statutory breach which causes damages, may be evidence of negligence. The statutory formulation of the duty may afford a specific, and useful, standard of reasonable conduct.: Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 at p. 443; Mohammed v. The Queen in Right of Ontario, 2019 ONSC 532.

[37] Mr. Lee argues that these new duties give rise to a claim in negligence against his employer and parent companies: the context is a workplace investigation into a complaint against him by a fellow employee after an exchange of words over workplace tidiness. Prior to the amendments to the OHSA, the courts have considered whether a person who is the subject of an investigation might have a claim in negligence.

[38] The courts have recognized a tort of negligent investigation in the case of police forces: Hill v. Hamilton-Wentworth, 2007 SCC 41, [2007] 3 S.C.R. 129. In the workplace environment, this tort was extended to private investigation firms: Correia v. Canac Kitchens, 2008 ONCA 506. However, the Court of Appeal for Ontario has stopped short of extending tort liability to employers conducting internal investigations of their employees: Correia v. Canac Kitchens, 2008 ONCA 506. See also Singh v. RBC Insurance, 2020 CarswellOnt 1619.

[39] Magna argues that Correia is fully dispositive of its motion to strike. However, Magna also provided submissions on whether the amendments to the legislation have created a new duty of care in accordance with the law in Canada, despite the holding in Correia. These submissions considered the test for finding new duties of care and the principles for doing so are discussed next.

[40] In Imperial Tobacco Ltd, 2011 SCC 42, [2011] 3 S.C.R. at paras 38, 39, the Supreme Court of Canada discussed the application of the principles for determining new duties of care giving rise to claims in negligence as found in Anns v. Merton London Borough Council, [1978] A.C. 728. This is often referred to as the “Anns test.”

[41] The Anns test is applied in two stages. These steps were affirmed most recently by the Supreme Court of Canada in Rankin (Rankin’s Garage & Sales) v JJ., 2018 SCC 19.

[42] Step one of the Anns test asks if there is a “prima facie duty of care between the parties” meaning do the circumstances disclose reasonably foreseeable harm and proximity. Magna concedes there is a relationship of proximity between employer and employee and confines its submissions to the residual policy concerns that are involved at the second step.

[43] I agree that the first stage of the Anns test is reasonably met. The nature of workplace investigations, the close relationship between employer and employee and the engagement of human rights issues, employee safety, reputation and procedural duties all speak to proximity in the relationship and reasonably foreseeable harm in that context.

[44] The second stage of the Anns test is to ask whether there are policy reasons that argue against recognizing a new duty of care.

[45] Mr. Lee relies on the nature and structure of Magna’s workplace policy. He has cited Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at para. 39 as an example of the creation of a new duty of care, which he argues should exist in his case. In Hill, the courts found there should be a tort of negligent investigation as applied to the police due to the reasonably held expectations of those suspected of criminality that the police will conduct their investigations in a competent non-negligent manner.

[46] Mr. Lee also submits the analysis in Hill applies in the present case. He argues that investigators and the employers should accept responsibility for either careless or deliberate acts or omissions during investigations of their employees.

[47] Mr. Lee submits that the recent decision in Mohammed v Her Majesty the Queen in Right of Ontario, 2020 ONSC 267 supports a finding that the amendments to the OHSA can support a claim in negligence. In Mohammed, leave was provided to a plaintiff to amend his pleading concerning workplace safety and potentially, a claim in negligence.

[48] In response, Magna submits that in Mohammed, Justice Kimmel was not considering the issue of whether the OHSA could ground a potential claim in negligent investigation. Magna submits that the claim in negligence in that case was based, in part, on the legal requirements to maintain a safe workplace as required under the OHSA. In her decision, Justice Kimmel did not preclude the existence of a claim in negligence for failing to provide a safe workplace, based, in part, on the statutory duties under the OHSA. Since workplace investigations were not part of that decision, there was no discussion of the principles in Correia.

[49] I agree. Mohammed does not stand for the proposition that a new tort of negligent investigation is available against an employer for how it conducts an internal workplace investigation.

[50] Magna also submits that there are residual policy concerns stemming from the existing protections and framework for the protection of employers and employees. These arguments, which apply to all three of the Magna corporate entities named by Mr. Lee in his materials may be summarized as follows:

1. The Court of Appeal in Correia recognized that policy concerns weigh in favour of not recognizing new civil causes of action as against employers given the contractual nature of the employer-employee relationship. This is in keeping with the Supreme Court of Canada’s finding in Wallace v United Grain Growers Ltd., [1997] 3 SCR 701 at para 77. Magna argues that there is no basis for an exception from Wallace.
2. The existence of a duty under the OHSA does not in and of itself give rise to a free-standing cause of action. As noted in Mohammed v Her Majesty the Queen in Right of Ontario, there is no civil right of action expressly provided for in the OHSA for negligent investigation, nor is there a free-standing cause of action for breach of the OHSA. Magna points out that there are many duties set out in the OHSA as between employers and employees that do not give rise to independent causes of action.
3. Part of the policy rationale described by the Court of Appeal in Correia was the potential impact on employers who could be found liable for an in-house investigation. In those circumstances, employers might be hesitant to report criminal conduct. Although the present case does not involve any allegations of criminality, the concern with a chilling effect on employers from making police complaints based on the results of an internal employment investigation continues to exist if a novel duty of care was created.
4. In addition to the impact on bona fide reports of criminal activity, finding a new duty of care could also have a negative effect on workplaces. The traditional human resources functions (which include performing investigations under the OHSA), may be eliminated with investigations being largely outsourced to private, external investigation firms, at great economic costs to employers.

[51] The policy concerns described by Magna flow from a consideration of the difference between the obligations owed by professional investigators such as the police or private investigation firms, and the obligations to employees by their employers. Correia draws a line between the professional investigators and the employer. The question here is whether the amendments to the OHSA alter the policy distinction described by the Court of Appeal in Correia?

[52] The OHSA amendments brought in added standards for workplace investigations. There must be an “appropriate investigation.” The complainant and the alleged harasser have the right to be informed of the outcome and of any corrective action. Section 55.3 empowers the Ministry of Labour to order an employer to investigate using an “impartial person” with prescribed “knowledge, experience and qualifications.”

[53] In this case, Mr. Lee sought and obtained a remedy by virtue of the amendments to the OHSA. He complained to the Ministry of Labour about the internal workplace investigation. Another investigator was assigned and concluded in Mr. Lee’s favour that his conduct toward the other employee may not have been intentional. Mr. Lee asserts that both investigations were faulty and that he has suffered damages as a result. He ultimately left his position shortly after the results of the second investigation.

[54] I find that either I am bound by the findings of the Court of Appeal in Correia on the question of extending a cause of action in tort against an employer for the conduct of internal workplace investigations, or if a fresh analysis of the second stage of the Anns test ought to be done as a result of the OHSA amendments, that this analysis supports the same conclusion as in Correia. I say this because the policy concerns that underly Correia continue to exist. Workplace investigations can and often do include conduct that goes beyond workplace misconduct and can extend into the sphere of criminal law. Employers should not feel constrained from reporting criminal behaviour to the police. There is a public interest in encouraging such reporting.

[55] Further, the OHSA and the Ministry of Labour provides mechanisms by which less serious matters are subject to oversight and employers can be required to take appropriate steps in conducting internal investigations. Employees have other routes to recover from employers because of the contractual relationship enjoyed between them.

[56] Finally, there is no legislative indication of new routes for tort liability by virtue of the OHSA amendments.

[57] I conclude that as a result of my findings as to the application of Correia, or in the alternative a consideration of the Anns test, that it is plain and obvious that Mr. Lee’s that his proposed claim in negligence against his employer or the parent companies cannot succeed.

[58] I allow this portion of Magna’s motion to strike Mr. Lee’s claim in negligence. Mr. Lee will remove paragraphs 1(c), 1(e) and paragraphs 80-162 of the AFAC dated July 2, 2019.

V THE MOTION FOR LEAVE TO AMEND THE AFAC

[59] Mr. Lee seeks leave to amend the AFAC to add new heads of relief and to plead facts which he says will support those heads of relief. He submitted that these amendments flow from the summary document he obtained from Magna following his motion for production:

a. Intentional Infliction of Mental Distress, b. Breach of the Duty of Procedural Fairness, and c. Defamation with Malice.

[60] Prior to dealing with the merits of Mr. Lee’s motion, there are two preliminary matters that arose during written argument which must first be addressed. After oral argument was completed on February 26, 2020 a timetable was set for supplementary written argument on the matters dealt with on the motion. Mr. Lee filed additional materials and added a further set of amendments to the AFAC which were not part of the motion. Magna has objected to these being considered and has asked that Mr. Lee not be granted leave to make these additional new amendments to the AFAC. I will address those submissions next.

The March 26, 2020 Amendments Added After Oral Argument of February 26, 2020

[61] On March 26, 2020, while providing additional written submissions on his motion to amend and after oral argument, Mr. Lee filed additional evidence by way of affidavit. He also included approximately 49 new proposed paragraphs to the AFAC. Mr. Lee filed a highlighted copy of his current draft pleading, to show the amendments that were the subject of his original motion to amend, as distinct from the March 26, 2020 proposed amendments to the AFAC (the “March 2020 Amendments”).

[62] I sought and received submissions from Magna and Mr. Lee on Mr. Lee’s request to have the March 2020 Amendments considered on this motion.

[63] In its reply submissions, Magna argued that none of the March 2020 Amendments should be considered on this motion. Magna argued this is new material filed for the first time on March 26, 2020. This would be approximately six weeks after the Plaintiff’s motion materials were due to be filed and served, and one month after the motion was heard by the Court. Magna submits that these amendments and any evidence in support of them ought to have been served on the Defendants before the hearing of the motion and cross-motion on February 26, 2020.

[64] Magna points out that before the February 26th motion, Justice Archibald ordered Mr. Lee to provide the Defendants with his proposed amendments sought on his cross-motion by no later than February 7, 2020.

[65] Magna further submits that Mr. Lee’s proposed amendments to the AFAC lead to a pleading that is 70 pages long and approaching 300 paragraphs in length. Magna submits that Mr. Lee has steadily expanded the scope and overall length of his claim since July of 2019 and has continued to do so since the parties’ motion and cross-motion of February 26th.

[66] Mr. Lee responded that his amendments were known to Magna in advance of February 26, 2020, that he has complied with the order of Archibald J., and that Rule 26.01 permits the court to grant leave to amend a pleading, on motion, at any stage of an action.

[67] Motions require advance exchange of motion materials. These steps are required to be taken according to timetables set by scheduling judges or otherwise, in accordance with the Rules of Civil Procedure. This enables timely and fair notice to parties of the issues. The parties need to know what is in issue when they argue a motion. In 1521141 Ontario Limited v Upper Oakville Shopping Centre Limited at paras 41-42 the court described this a matter of “fundamental fairness.” I agree.

[68] Here, the March 2020 Amendments were proposed during written submissions and after a full day of argument on the motion. They were added to the first set of amendments to the AFAC that were the subject of this motion. I conclude that it would be unfair to Magna to permit them to be added at this late stage. Mr. Lee will still have the benefit of consideration of the amendments that were the subject of the motion and for which he provided timely and appropriate notice to Magna and to the court. This is also in accord with the principle that there be some finality to the motion so that the motion issues can proceed to be determined on its merits.

[69] For these reasons, I will confine consideration of the motion to amend the AFAC to the amendments that were pleaded in the motion materials served and filed in compliance with the order of Archibald J. I will not include the March 2020 Amendments in the analysis.

The Additional Evidence Filed by Mr. Lee on March 26, 2020

[70] Mr. Lee also filed additional material on March 26, 202. Magna objects to the receipt of this evidence. The new evidence consists of Mr. Lee’s affidavit, Ministry of Labour documents and guidelines and a Financial Services of Ontario document. The latter two sets of government policy documents are found in Mr. Lee’s book of authorities.

[71] Magna submits that Mr. Lee’s addition of a further affidavit and the policy documents offend Rule 21.01(2), which provides that no evidence is admissible on a motion under Rule 21.01(2)(a) or (b), except in certain circumstances with leave of a judge or consent.

[72] Mr. Lee argues that the policy documents from the Ministry of Labour are intended to aid in understanding the application of the Act, and further that these are records referred to in his pleading. Mr. Lee argues that the provisions of In Gaur v. Datta, 2015 ONCA 151, (hereinafter “Gaur”) where the Court considered an appeal to a Rule 21 motion, the Ontario Court of Appeal held at paragraph 5:

[73] In determining whether a cause of action is disclosed, particulars can be considered as part of the pleading. In assessing the substantive adequacy of the claims, the court is entitled to review the documents referred to in the pleadings: McCreight, at para. 32. Gaur v. Datta, 2015 ONCA 151.

[74] I agree with Magna’s position that policy documents, which are not legislation and may change from time to time ought to be the subject of affidavit evidence and are subject to the other requirements of admissibility that may attend pleadings motions. Mr. Lee’s most recent iteration of the AFAC refers to the disputed Ministry of Labour policy documents in the March 2020 Amendments. I have already determined that it would be unfair to Magna to consider these additional amendments. Accordingly, since I am not considering the March 2020 Amendments, it is unnecessary to consider the underlying documents referred to in those new proposed amendments. I will not consider those documents in addressing the motion issues.

[75] As such, the balance of these reasons will address Mr. Lee’s motion to amend as filed and originally argued on February 26, 2020.

Rule 26.01 of the Rules of Civil Procedure and the Principles on Granting Leave to Amend

[76] Rule 26.01 of the Rules of Civil Procedure permits a party to seek leave to amend a pleading on any terms that are just unless prejudice would result that could not be compensated for by costs or an adjournment.

[77] The Court shall grant leave to amend a pleading unless any resulting prejudice cannot be compensated by costs or an adjournment. If the proposed amendment discloses a reasonable cause of action, and is not otherwise “scandalous, frivolous or vexatious” the court shall allow the amendment in the absence of non-compensable prejudice.: 1158844 Ont. Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 681, at para. 25; Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 417, 264 O.A.C. 220 at paras. 15-16.

The Parties’ Consent Amendments to the AFAC

[78] At the time of the oral argument of his motion, Mr. Lee agreed to remove paragraphs 88-89, 102-104, 116, 119, 135-137, 160 and 243 from the AFAC. As noted above, Magna consented to the removal of the listed paragraphs. I will order that Mr. Lee make the amendments as agreed upon and to remove all the paragraphs agreed to at the argument of the motion.

Consent to Add Intentional Infliction of Mental Distress

[79] Magna consented to one of the amendments sought by Mr. Lee, that being a new head of relief for intentional infliction of mental distress as follows:

1. (o): against the Defendants Magna International Inc., Cosma International Inc., Venest Industries Inc., Mr. Mike Rooke, Ms. Gina Aiello, jointly and severally, damages in the amount of $100,000.00 for intentional infliction of mental distress.

[80] I order that this amendment may be made, with the wording used above.

[81] Magna resists allowing Mr. Lee to repeat the “story’ of the workplace investigation to support this new claim of relief because this will inordinately lengthen the pleading. These amount to twenty paragraphs in support of this claim for relief.

[82] Magna submits that portions of the proposed amended factual paragraphs concerning the tort of intentional infliction of mental suffering are also deficient because they plead evidence and not facts. In some cases, they are unclear and confusing.

[83] Magna also raises the concern that pleading both an intentional tort and an unintentional tort of negligence are inconsistent, noting that the law treats different classes of torts differently depending upon the degree of knowledge and intention: Piresferreira v. Ayotte, 2010 ONCA 384.

[84] I have reviewed Mr. Lee’s proposed amendments in support of the relief claimed in new paragraph 1.(o). I have not applied a standard of perfection to the analysis. There is some repetition as between other facts pleaded, however by grouping the facts relied upon under the headings that correlate to the relief claimed, Mr. Lee has made his claim for each head of relief clear enough that I decline to interfere with the paragraphs proposed to be added to support his claim for this tort. The pleading uses terminology which the courts have recognized are required to prove intentional infliction of mental suffering. I will allow the proposed amendments as found in paragraphs 1 to 30 of Mr. Lee’s motion record dated February 7, 2020 at Tab 2K.

Other Amendments Requested to the Proposed Amended Claim

Defamation Section

[85] Mr. Lee seeks to add three paragraphs found at paragraphs 67, 68 and 69 of the March 2020 Amendments. These extend his pleading in defamation to comments made in the document he obtained by way of a motion for production: the “Summary and Recommendations from Investigation – March 14, 2018.”

[86] Paragraph 67 of the March 2020 Amendments is a paragraph that was included in Mr. Lee’s initial motion record at Tab 2K at paragraph 26. Magna had an opportunity to respond to this paragraph. I will allow that amendment as it provides particulars of the defamation alleged.

[87] Paragraphs 68 and 69 of the Proposed Amended Claim filed in the March 2020 Amendments are new paragraphs. In keeping with my ruling above that it would not be fair to require Magna to respond to new paragraphs that were not part of the original motion, these amendments will not be allowed.

Induced Breach of Contract Section

[88] Mr. Lee seeks to amend the AFAC with new paragraphs under the existing heading of “Induced Breach of Contract.” These new proposed amendments were not included in Mr. Lee’s motion record of February 7, 2020. Mr. Lee added these in the March 2020 Amendments. Magna has objected to the inclusion of new amendments. I have ruled in Magna’s favour that I will not consider additional proposed amendments.

[89] I will not permit the proposed amendments to the “Induced Breach of Contract” section of the AFAC.

Amended Title Following Paragraph 167 of the AFAC

[90] Mr. Lee proposes to add the phrase “In the Context of the Human Rights Claim” to his title of “Magna’s Flagrant and Outrageous Conduct.” This is a new request made after argument and was not included in Mr. Lee’s original motion record filed in advance of oral argument on the motion.

[91] I will not permit this proposed amendment.

Other Relief

[92] Magna requests that there be ongoing case management ordered or that there be judicial oversight of the Proposed Amended Claim to ensure no further deficiencies. Mr. Lee responds that ongoing case management is not necessary.

[93] These two motions are anticipated to conclude the outstanding pleadings issues. At this stage, case management is premature. Such an order may be requested by the parties in the future.

VI CONCLUSION

[94] As a result of these findings, I will make the following order arising from the two pleadings motions.

Mr. Lee is ordered to make the following changes to the Amended Fresh as Amended Statement of Claim of July 2, 2019:

1. At Paragraph 4 of the Amended Fresh as Amended Statement of Claim of July 2, 2019, Mr. Lee is ordered to strike out the Heading: “Credibility of the Plaintiff, Mr. Dik Lee” and replace it with “Reputation and Character”;
2. Mr. Lee will strike out paragraphs 5 to 11of the Amended Fresh as Amended Statement of Claim of July 2, 2019;
3. Mr. Lee is granted leave to replace paragraphs 5 to 11 with two paragraphs as follows: Mr. Lee is a distinguished member of society. Over the course of Mr. Lee’s life, he has been establishing excellent relationships, reputation and character in business, employment, personal life and his career both inside and outside of his employment with Magna. Mr. Lee’s reputation and character is of utmost importance and is an integral part of Mr. Lee’s life both inside and outside of his employment with Magna. His interaction within the community has been stellar.
4. Mr. Lee will remove paragraphs 1(c), 1(e) and paragraphs 80-162 of the Amended Fresh as Amended Statement of Claim of July 2, 2019.
5. Mr. Lee will remove paragraphs 88-89, 102-104, 116, 119, 135-137, 160 and 243 from the Amended Fresh as Amended Statement of Claim of July 2, 2019;
6. Mr. Lee is granted leave to amend the Defamation section of his Amended Fresh as Amended Statement of Claim by adding paragraph 26 found at Tab 2K of Mr. Lee’s motion record dated February 7, 2020.
7. Mr. Lee is granted leave to amend his Amended Fresh as Amended Statement of Claim by adding a new head of relief for intentional infliction of mental distress as follows:
   1. (o): against the Defendants Magna International Inc., Cosma International Inc., Venest Industries Inc., Mr. Mike Rooke, Ms. Gina Aiello, jointly and severally, damages in the amount of $100,000.00 for intentional infliction of mental distress.
8. Mr. Lee is granted leave to amend his Amended Fresh as Amended Statement of Claim by adding paragraphs 1 to 30 found at Tab 2K of Mr. Lee’s motion record dated February 7, 2020.
9. Mr. Lee will make all deletions and amendments referred to in this order, following which he will serve and file these as an “Amended Amended Fresh as Amended Statement of Claim” with the additions to the pleading underlined within 45 days of the date of this order.
10. No further amendments to Mr. Lee’s Amended Fresh as Amended Statement of Claim may be made without further order of this court.

[95] This endorsement is in force without the necessity of issuing and entering an order. No formal order is required.

VII COSTS

If the parties cannot agree as to costs, costs submissions on this motion and on the motion heard by Master Mills, may be made in writing, no more than 5 pages in length, on or before July 7, 2020.

Leiper J. Released: June 24, 2020

COURT FILE NO.: CV-19-00615322-0000 DATE: 2020-06-24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DIK LEE Plaintiff – and – MAGNA INTERNATIONAL INC., COSMA INTERNATIONAL INC., VENEST INDUSTRIES INC., MIKE ROOKE, GINA AIELLO, JOEL MINOR, JOEL ILLICK AND STEVEN THUSUSKA Defendants

REASONS FOR DECISION (PLEADINGS MOTIONS UNDER RULES 21 AND 26) Leiper J. Released: June 24, 2020