COURT FILE NO.: CV-16-544848

DATE: 20210507

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOE NICOLARDI

AND:

CANADIAN TIRE CORPORATION, WALTER SCOTT, DAVE JOSEPH HENDERSON and KENNETH ROY COFFIN

BEFORE: Vermette J.

COUNSEL: Hugh Scher, for the Plaintiff

Laura Karabulut and Laura Freitag, for the Defendants

HEARD: April 8, 2021

ENDORSEMENT

[1] The Defendants bring a motion for partial summary judgment asking for an order dismissing the action as against the Defendants Walter Scott, Dave Joseph Henderson and Kenneth Roy Coffin (“Individual Defendants”).

FACTUAL BACKGROUND

[2] The Plaintiff was an employee of the Defendant Canadian Tire Corporation (“CTC”) for more than 27 years. He was terminated on July 30, 2015. At the time of the Plaintiff’s termination, the Plaintiff held the position of warehouse person, the Defendant Walter Scott was the Plaintiff’s manager, the Defendant Dave Joseph Henderson was a Crew Lead working in the Plaintiff’s department, and the Defendant Kenneth Ray Coffin was Associate Vice-President of Operations at CTC’s Brampton Distribution Centre.

[3] The following is a summary of the incidents and events underlying the Plaintiff’s claim.

[4] On May 14, 2015, the Plaintiff worked an overtime shift for which he was paid at a rate of double time (“May 14 Overtime Shift”). This was his second double time overtime shift in that week. There is a dispute between the parties as to: (a) whether CTC, at the relevant time, had a policy or practice prohibiting employees from working two double time overtime shifts in a week; and (b) whether the Plaintiff’s May 14 Overtime Shift had been authorized by Mr. Henderson.

[5] On May 15, 2015, after discussing the Plaintiff’s May 14 Overtime Shift with Mr. Scott, Mr. Henderson made an entry in an internal feedback database used at CTC’s Brampton Distribution Centre regarding the May 14 Overtime Shift. Mr. Henderson also discussed issues raised by the May 14 Overtime Shift with the Plaintiff and advised him that he would not be permitted to work more than one overtime shift at the double time rate in any given week.

[6] The Plaintiff alleges that, from May 16, 2015 through to the termination of his employment on July 30, 2015, Mr. Scott constantly berated him with questions and accusations regarding the May 14 Overtime Shift, and that he experienced repeated and ongoing harassment from Mr. Scott. The Plaintiff also relies on the fact that, during that time period, Mr. Henderson’s feedback entry in the database regarding the May 14 Overtime Shift was amended, deleted, and then re-entered with different wording.

[7] On May 27, 2015, Mr. Scott met with the Plaintiff (“May 27 Meeting”) to discuss the May 14 Overtime Shift and other instances where, according to Mr. Scott, the Plaintiff had worked overtime without authorization from Mr. Henderson. Mr. Scott’s and the Plaintiff’s accounts of what happened during this meeting are very different. Mr. Scott alleges that the Plaintiff screamed, swore and left the meeting despite being told to stay and that there would be repercussions if he left. The Plaintiff denies these allegations and states that he cooperated with Mr. Scott. He also states that he informed Mr. Scott that he felt that Mr. Scott was “browbeating” him over the overtime issue.

[8] Also on May 27, 2015, the Plaintiff had a meeting with Mr. Coffin and a Team Advisor (a CTC employee who assists other employees when issues arise at CTC) to review the Plaintiff’s concerns regarding the May 14 Overtime Shift and the deletion of the database entry in this regard. Mr. Scott attended part of the meeting. Again, the parties’ evidence regarding what was said during the meeting differs. It appears that Mr. Coffin instructed the Plaintiff that, going forward, he was required to obtain approval for all overtime through Mr. Henderson or Mr. Scott in order to avoid any miscommunication. The Plaintiff states that, during this meeting, he shared with Mr. Coffin his concerns with respect to Mr. Scott’s harassing behaviour toward him.

[9] After the meeting, Mr. Scott informed Mr. Coffin of the Plaintiff’s behaviour in Mr. Scott’s office earlier that day. Mr. Coffin advised Mr. Scott that he should discuss potential disciplinary measures with human resources as he thought that this behaviour was inappropriate.

[10] On June 6, 2015, Mr. Scott met with the Plaintiff to provide him with a written warning for inappropriate conduct and behaviour during the May 27 Meeting. The Plaintiff states that the warning contains false allegations.

[11] On June 12, 2015, Mr. Scott met with the Plaintiff after he was informed that the Plaintiff had allegedly approached a Crew Leader other than Mr. Henderson about working overtime. Mr. Scott reminded the Plaintiff that he was required to speak with either Mr. Henderson or Mr. Scott to schedule any overtime. Again, Mr. Scott’s and the Plaintiff’s accounts of what happened during this meeting are different. The Plaintiff alleges that Mr. Scott accused him of working overtime on May 31, 2015 without approval and said that he would “take care of” the Plaintiff. Mr. Scott denies saying these words or anything of a threatening nature, and alleges that the Plaintiff was yelling, angry and agitated.

[12] After meeting with Mr. Scott, the Plaintiff went to see Mr. Coffin and told him that he was upset with how Mr. Scott was treating him and that he felt badgered by Mr. Scott in relation to the May 14 Overtime Shift. There is a dispute between the parties as to whether the Plaintiff cried during this meeting, what his general behaviour was, and what was said.

[13] The Plaintiff alleges that following his meetings with Mr. Scott and Mr. Coffin on June 12, 2015, he was significantly distressed and was required to take an emergency leave day and seek medical assistance.

[14] The Plaintiff was absent from work until July 17, 2015. He provided two doctor’s notes to CTC dated June 15, 2015 and June 22, 2015 that indicated that he would be unable to work for a period of time. The doctor’s notes did not provide any information as to the illness or medical condition that prevented the Plaintiff from attending work.

[15] On July 13, 2015, the Plaintiff made a formal harassment complaint against Mr. Scott. CTC conducted an investigation, but the investigator found that the Plaintiff’s allegations were not substantiated. The Plaintiff was advised of the outcome of the investigation on July 30, 2015, and he was then advised by Mr. Scott that his employment was being terminated. The Defendants allege that the decision to terminate the Plaintiff’s employment was made on June 12, 2015.

[16] The Plaintiff commenced this action on January 20, 2016. He seeks the following relief, among others, as against CTC:

a. a declaration that he was wrongfully dismissed;

b. damages for wrongful dismissal in the amount of $210,000.00, representing his lost salary, overtime and benefits;

c. moral damages for the bad faith manner of the termination of his employment in the amount of $250,000.00; and

d. punitive damages in the amount of $250,000.00.

[17] The Plaintiff seeks the following relief as against the Individual Defendants:

a. as against Walter Scott: damages for the tort of intentional infliction of mental suffering in the amount of $40,000.00 and punitive damages in the amount of $100,000.00;

b. as against Dave Joseph Henderson: damages for the tort of intentional infliction of mental suffering in the amount of $25,000.00 and punitive damages in the amount of $75,000.00; and

c. as against Kenneth Roy Coffin: damages for the tort of intentional infliction of mental suffering in the amount of $25,000.00 and punitive damages in the amount of $75,000.00.

[18] The Plaintiff’s position is that his termination was an act of reprisal against him for coming forward with his complaint of harassment against Mr. Scott, and that CTC failed to take his harassment allegations seriously and failed to conduct a reasonable and fair investigation.

[19] The Plaintiff alleges the following in support of his claim for moral damages against CTC:

As a result of [CTC]’s bad faith conduct in condoning the harassment of Nicolardi by Mr. Scott, thus facilitating the creation of a poisoned work environment, failing to take Nicolardi’s allegations of harassment seriously, failing to conduct a fair and impartial investigation into Nicolardi’s allegations of harassment, terminating Nicolardi’s employment as a reprisal for the complaint of harassment he made against Mr. Scott and having Mr. Scott, the very person Nicolardi had accused of harassment, be the one to deliver the news of Nicolardi’s termination, Nicolardi has suffered severe anxiety and mental distress.

[20] The Plaintiff relies on the same allegations in support of his claim for punitive damages against CTC.

[21] The allegations made by the Plaintiff in support of his claims against the Individual Defendants also relate to the facts set out above. Among other things, the Plaintiff alleges harassment on the part of Mr. Scott. He also alleges that Messrs. Henderson and Coffin, by their conduct, facilitated the continued harassment of the Plaintiff, thereby allowing the continued existence of an unsafe and poisoned work environment.

DISCUSSION

(a) Principles applicable to motions for partial summary judgment

[22] This is a motion for partial summary judgment. If the Individual Defendants’ motion were to be granted, the Plaintiff’s claims would continue against CTC.

[23] The courts have articulated many concerns regarding motions for partial summary judgment. As pointed out by Karakatsanis J. in Hryniak v. Mauldin, 2014 SCC 7 at para. 60, partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. The Court of Appeal has also held that “[p]artial summary judgment is a rare procedure that should be sparingly invoked” (Way v. Schembri, 2020 ONCA 691 at para. 16), and that it should be reserved for an issue or issues that: (a) may be readily bifurcated without causing overlap that could lead to inefficient duplication or a material risk of inconsistent findings or outcomes, and (b) may be dealt with expeditiously and in a cost effective manner (Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 34, and Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369 at paras. 14, 18).

[24] In Malik v. Attia, 2020 ONCA 787 at para. 62, the Court of Appeal stated that when faced with a request to hear a motion for partial summary judgment, a motion judge should ask counsel to:

a. demonstrate that dividing the determination of the case into several parts will prove cheaper for the parties;

b. show how partial summary judgment will get the parties’ case in and out of the court system more quickly; and

c. establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[25] Thus, before addressing the merits of the Individual Defendants’ motion for summary judgment, I must determine whether this is an appropriate case for partial summary judgment.

(b) Positions of the parties on whether this is an appropriate case for partial summary judgment

[26] The Defendants’ position is that this is an appropriate case for partial summary judgment. They argue that the Plaintiff's action against the Individual Defendants is readily separable from the question of CTC's liability given that the Plaintiff has pleaded entirely different claims as against CTC and the Individual Defendants. They point out that the Plaintiff seeks damages as against the Individual Defendants in their personal capacities on a different basis than as against CTC. The Defendants also submit that the evidence before the Court is sufficient for the fair and just adjudication of the claims against the Individual Defendants on their merits, and that granting partial summary judgment would be the most proportionate, timely and cost-effective approach for addressing the claims as against the Individual Defendants.

[27] The Plaintiff’s position is that none of the criteria set out by the Court of Appeal are met and that the claims against the Individual Defendants are not readily separable from the balance of the case. The Plaintiff submits that dividing determination will not negate a trial on the main action, will not meaningfully reduce the cost of litigation and will increase the risk of contradictory findings. He also argues that the claims against the Individual Defendants give rise to multiple triable issues that are not amenable to a summary procedure.

(c) Analysis

[28] In my view, this case is not one of the rare cases where partial summary judgment is appropriate.

[29] The claims against CTC and the claims against the Individual Defendants are factually intertwined and the latter are not readily separable from the former. The overlap in the facts that underlie the two sets of claims is significant. As a result, there is the very real possibility that conclusions reached by a trial judge could conflict with the result reached on a motion for partial summary judgment. This is especially the case given that the parties’ evidence and accounts differ on certain important factual issues (e.g., conduct and statements made at various meetings, whether the written warning to the Plaintiff contains fabricated allegations, alleged harassment by Mr. Scott, etc.).

[30] Further, I find that the other problems raised by partial summary judgment that were identified by the Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783 at paras. 29-33 are present in this case:

a. This motion has caused the resolution of the main action to be delayed. This motion was brought in August 2017. While I was advised by counsel that part of the delay was due to certain circumstances that were not related to the motion and that could not be avoided, the action has nonetheless been significantly delayed.

b. This motion was an expensive endeavour, as confirmed by the parties’ costs outlines.

c. The record available at the hearing of the motion was not as expansive as the record that will be available at trial. While it could be argued that giving weight to this factor flies in the face of the requirement to put one’s best foot forward on a motion for summary judgment, this factor is a legitimate consideration for the Court given that it points to a situation that increases the danger of inconsistent findings.

[31] While one could argue that the harm has already been done in terms of delay and costs, and that not ruling on the motion for summary judgment will only compound it, this does not address or ameliorate the material risk of inconsistent findings or outcomes.

[32] In light of the foregoing, I also find that the criteria set out in Malik v. Attia, 2020 ONCA 787 at para. 62 are not met. In particular, given that the same facts will need to be proven at trial through the same witnesses, I do not think that partial summary judgment will get the case in and out of the court system more quickly and in a way that is significantly cheaper for the parties.

[33] In their Factum, the Defendants rely on two cases in support of their position that this is an appropriate case for partial summary judgment. The first case is Medeiros v. Petopia Ltd., 2020 ONSC 1562. In that case, the plaintiff, an employee at a kennel, sued both her employer and the owner of a dog for biting injuries that she sustained while the dog in question was staying at the kennel. The only cause of action alleged against the owner of the dog was negligence, and the crossclaims between the defendants had been withdrawn. The dog owner, Mr. Campbell, brought a motion for summary judgment which was granted by Justice Sossin (as he then was). Justice Sossin found that this case fell within the “exceptional category” of cases where granting summary judgment involving one defendant in an action was appropriate and in the interests of justice. He stated the following:

[31] In this case, the issue of Campbell’s liability as Mali’s owner is “readily separable” from the question of Petopia’s potential liability as an employer. A determination of the potential liability of Petopia based on the duties of an employer to an employee will not turn on evidence for the liability of Campbell based on whether the incident involving Mali was foreseeable and Campbell’s conduct unreasonable. This separation is even more stark now that the cross-claims between Campbell and Petopia have been withdrawn.

[35] In these circumstances, I do not see the potential in this case for duplicative findings or for inconsistent decisions if Campbell’s motion for summary judgment is granted, and the issues in this case bifurcated.

[34] This is not the situation in this case. A determination of the potential liability of CTC as an employer for moral damages and punitive damages, among others, will turn on largely the same factual matrix and evidence as for the determination of the potential liability of the Individual Defendants for intentional infliction of mental suffering and punitive damages. The conduct of CTC that is relied upon by the Plaintiff in support of his claim against CTC is, to a large extent, the conduct of the Individual Defendants, who are CTC’s employees.

[35] CTC also relies on the case Larizza v. Royal Bank of Canada, 2017 ONSC 6140; aff’d 2018 ONCA 632. In that case, partial summary judgment was granted, dismissing the action against two of the defendants, Minto Group Inc. and Fasken Martineau Dumoulin LLP. The claims against each of these defendants were separable and standalone, with no factual overlap with the claims against the other defendants. The motion judge stated the following with respect to the claims against Minto Group Inc. at paragraph 90 of her decision:

Ms. Larizza’s claim against Minto is essentially a standalone claim. It is in no way intertwined with the claims against the other defendants Ms. Larizza claims had an obligation to protect her against Mr. Rosenberg. Her claim against Minto focuses on her dealings with Minto alone, and will not be affected by the claims against the financial institutions or lawyers also named in this action.

[36] Similarly, the Court of Appeal held that the claims against Fasken Martineau Dumoulin LLP were “standalone and limited in nature”, and that there was “no real concern about duplicative or inconsistent findings arising with respect to the claims asserted against the remaining defendants”: Larizza v. Royal Bank of Canada, 2018 ONCA 632 at para. 40.

[37] Here, the claims against the Individual Defendants are intertwined with the claims against CTC. The Plaintiff’s claims against both CTC and the Individual Defendants are based on the same events and are focused on the Plaintiff’s dealings with the Individual Defendants. Thus, the situation in the present case is very different from the situation in Larizza v. Royal Bank of Canada.

[38] Given that the Plaintiff’s claims against the Individual Defendants are not readily separable from the balance of the Plaintiff’s case against CTC, this case is not one of the rare cases where partial summary judgment is appropriate.

CONCLUSION

[39] The Defendants’ motion is dismissed. In accordance with Hryniak v. Mauldin, 2014 SCC 7 at para. 78, I seize myself of this matter subject to my availability on the civil list, which may be determined through the Toronto civil motion/trial office.

[40] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 10 days of the date of this endorsement. The Defendants shall deliver their submissions (with the same page limit) within 7 days of their receipt of the Plaintiff’s submissions.

VERMETTE J.

Date: May 7, 2021