COURT FILE NO.: CV-17-4743-00

DATE: 20210527

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Oliveria v. All Industries Liuna CECOF and Labourers International Union of North America, Local 183.

BEFORE: Justice I. André

COUNSEL: A. Davis, for the Plaintiff

M. Wright and C. Dockendorff for the Defendants

HEARD: April 12, 2021

ENDORSEMENT

[1] The Defendants, All Industries Liuna CECOF (“CECOF”) and Labourers International Union of North America, Local 183 (“Local 183”) bring a motion for an order striking out paragraphs five to twenty of a November 19, 2020 affidavit filed by the Plaintiff in response to a motion filed by the Defendants seeking relief from the Plaintiff’s alleged breach of the Deemed Undertaking Rule (“DUR”). The Plaintiff concedes that a few paragraphs should be struck out but insists that he acted properly in including all the “facts and circumstances” in his affidavit, much of which is derived from the Statement of Defence filed by the Defendants.

BACKGROUND FACTS

[2] Mr. Oliveria commenced employment with the Defendant CECOF and the Defendant Local 183 in November 2011. During the course of his employment, Mr. Oliveria suffered ongoing verbal abuse from his supervisor, Frank Martins. This abuse included repeated threats of dismissal, yelling and screaming in front of co-workers and pointing a firearm at Mr. Oliveria.

[3] On March 14, 2016 Mr. Oliveria was ruled by a doctor to be unable to continue his employment. He provided medical documentation to CECOF on April 8, 2018 confirming his inability to perform his work duties. On the same day, he filed a formal complaint with CECOF against Mr. Martins, which documented the abuse he had suffered at the hands of Mr. Martin and described an incident during which Mr. Martin had pointed a gun at him on November 19, 2015. The Defendants retained John McNair, an employment lawyer, to investigate Mr. Oliveria’s allegations. Mr. McNair completed his investigation on May 6, 2016.

[4] Mr. McNair provided Defendant Local 183 with his report in which he confirmed that Mr. Oliveria’s allegations against Mr. Martins were true. As a result, CECOF terminated Mr. Martins employment on May 17, 2016.

[5] From May 2016 to February 7, 2017, Mr. Oliveria unsuccessfully tried to obtain a copy of the McNair report. He sent a letter to Local 183 dated October 6, 2016 requesting a copy of the McNair report.

[6] On February 3, 2017, Local 183 terminated Mr. Oliveria.

PROCEEDINGS

[7] Mr. Oliveria issued a Statement of Claim against the Defendants on November 4, 2017 for damages arising from his termination, breach of the Defendants’ duty under the Human Rights Code, R.S.O. 1990, c. H.19, to accommodate the Plaintiff’s medical difficulties and additional damages for intentional infliction of mental distress.

[8] The Defendants CECOF and Local 183 issued a joint Statement of Defence on April 27, 2018.

[9] The Defendants served Mr. Oliveria’s counsel on September 5, 2018 with an Affidavit of Documents. Mr. Oliveria received the McNair Report on November 5, 2018. He sent a copy of the Report to a Toronto Star reporter, Doug Ford, the Premier of Ontario, and to Jack Oliveria, an executive board member of Liuna’s Provincial District Council. When he did so, Mr. Oliveria was unaware of any restriction, legal or otherwise, that prevented him from sending a copy of the McNair Report to the persons he had sent it to, nor was he aware of the DUR.

DEFENDANTS’ DUR MOTION

[10] CECOF and Local 183 brought a motion dated December 19, 2018 alleging that Mr. Oliveria had breached the DUR in relation to the McNair Report. They are seeking the following orders:

a) An order dismissing the action against them pursuant to Rule 30.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the ground that Mr. Oliveria had breached the DUR;

b) Alternatively, an Order that the Plaintiff be found in contempt for breach the DUR under Rule 30.1.01; or

c) In the further alternative, an Order directing Mr. Oliveria to comply with his obligation to Rule 30.1.01 and the Rules and that he not engage in any further breaches of the DUR.

[11] Mr. Oliveria is not opposed to an order contemplated by the second alternative order recommended by the Defendants.

POSITION OF THE PARTIES

[12] The Plaintiff submits that with the exception of paragraphs 7-11 and part of paragraph 19 of his November 19, 2020 affidavit, the contents of the affidavit are effectively admitted to by the Defendants in their Statement of Defence or are relevant to the issues relating to the Defendants’ Deemed Undertaking Motion (“DUM”). The subject paragraphs are not scandalous, frivolous or vexatious and the facts of circumstances in Mr. Oliveria’s affidavit which the moving party Defendants seek to strike merely include background and contextual facts or circumstances which are:

a) admitted in the moving parties’ Statement of Defence;

b) responsive to considerations bearing upon the DUR;

c) responsive to the alternative relief sought by the moving parties in their DUM;

d) responsive to the contents of the Notice of Motion brought by the moving parties, alleging breach of the DUR; or

e) responsive to the moving parties’ supporting affidavits and exhibits which compose their Motion Record with respect to the DUM.

[13] Mr. Oliveria relies on a number of cases to submit the following:

a) The moving parties’ motion should be heard by the Motions judge hearing the substantive underlying motion;

b) There is no bona fide reason for striking out any of the paragraphs in Mr. Oliveria’s motion which the moving parties seek to strike;

c) Evidence in an affidavit relating to a motion ought not to be struck on an interlocutory motion unless there are several reasons to do so. No such reasons exist in this motion;

d) The contents of the impugned paragraphs 5, 6 and 12-15 are all admitted by the Defendants or referenced in their Statement of Defence; and

e) The paragraphs of the affidavit objected to by the moving parties provide relevant and appropriate background or contextual facts of circumstances relating to the alternative relief sought by moving parties. Additionally, the contents of the paragraphs are not scandalous, frivolous, vexatious or irrelevant.

POSITION OF THE DEFENDANTS

[14] The moving parties submit the following:

a) The “facts” in paragraphs 5-20 in Mr. Oliveria’s affidavit are “highly prejudicial” because they are not factual;

b) The pre-emptive move to strike the offensive paragraphs can be justified for “efficiency or fairness” as set out in Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069, at paragraphs 27-37;

c) The moving parties also seek to strike out paragraph 16 of Mr. Oliveria’s affidavit because of irrelevancy; and

d) Allowing the offensive paragraphs to stand would constitute an abuse of process because they would require the Defendant to litigate the allegations.

THE LAW

[15] Rule 30.1.01(3) provides that “all parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was granted.”

1. Jurisdiction to Strike Affidavits

[16] The relevant rules are rules 1.04(1), 4.06(2), 25.11, 37.10(6), 39.01(4), and 39.02(1)(2) of the Rules of Civil Procedure, as set out below:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceedings on its merits.

4.06 (2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.

25.11 The court may strike out or expunge all or part of pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse o the process of the court.

37.10 (6) A party may serve on every other party a factum consisting of a concise argument stating the facts and law relied on by the party.

39.01(4) An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.

(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

[17] A statement in an affidavit that: (a) does not state the source of the affiant’s information; or (b) contains inadmissible hearsay, legal and factual argument belonging in the factum, inflammatory rhetoric, or offensive allegations made for the purposes of prejudicing another party may be struck out in whole or in part. Similar to the court’s jurisdiction to strike paragraphs in an affidavit that are frivolous, scandalous, or vexatious or that may prejudice or delay the fair hearing of a motion, legal argument and legal submissions belong in a factum and not an affidavit and may be struck out.

[18] The Court noted the following in Gutierrez, at paras. 28-31:

[28] Typically, a motion to strike paragraphs from an affidavit is made at the same time as the primary motion. The general and prevalent rule is that it is for the court that hears the motion to determine whether material should be struck from an affidavit, and a pre-emptive motion should be determined only in the clearest cases. In 1196303 Ontario Inc. v. Glen Grove Suites Inc., Justice D.M. Brown, as he then was, said that the proper time to strike an affidavit was at the hearing of the motion or application and that a pre-emptive motion should only be brought in the rarest and most extraordinary cases. In Jacob v. Playa El Agua Development Limited Partnership, Master MacLeod, as he then was, stated that it [sic] only in extraordinary cases would a preliminary motion be appropriate.

[29] In Neighbourhoods of Windfields Limited Partnership v. Death, Justice D.S. Ferguson said that evidence should not be struck on an interlocutory motion unless there is some special reason to do so. One special reason might be where the affidavit is clearly improper and would inevitably give rise to extraordinary cost or difficulty for the opposing party. Another special reason arises when the affidavit contains clearly irrelevant and scandalous material that impugns the character of a party.

[30] In Neighbourhoods of Windfields Limited Partnership v. Death, Justice Ferguson reasoned that pre-emptive motions to strike affidavits were not productive because: (a) granting such a preliminary motion will encourage more such motions and contribute to cost and delay; (b) the motions are unnecessary because the motions judge will be in an equally good or better position to determine admissibility; (c) judges including motion judges, know how to disregard inadmissible evidence and not have it influence their judgment; and, (d) the motions judge can sanction any inappropriate introduction of evidence by disregarding it and awarding costs.

[31] In Anderson v. Hunking, Master Glustein, as he then was, stated:

9. In a trial, a judge hears all evidence and decides if it is inadmissible, whether as hearsay, improper opinion, or irrelevant, scandalous, or vexatious. There is no preliminary vetting by another court to determine relevance. In a motion or application, evidence is to be by affidavit. There is no distinction in principle supporting the view that on a motion or application, another court should take a preliminary view of the evidence and decide its admissibility (except if there is a rare situation when the very disclosure of the evidence before the court hearing the substantive motion could result in significant prejudice, such as disclosing privileged information or settlement discussions).

10. Courts hearing substantive motions are well capable of determining which statements in an affidavit are hearsay, legal opinion, irrelevant, or inflammatory. Further, it is for the court hearing the substantive motion or application to consider the evidence it seeks to rely upon, and evidence which may be relevant to the trier of fact on the motion or application should not generally be vetted in a preliminary hearing prior to the substantive hearing.

[Citations omitted.]

ANALYSIS

[19] The motion raises the following issue:

Should paragraphs 5-20 of Mr. Oliveria’s November 19, 2020 affidavit be struck out either because of irrelevancy or because their contents are scandalous, frivolous or vexatious or an abuse of process.

[20] The disputed paragraphs in Mr. Oliveria’s November 19, 2020 affidavit are as follows:

5. In or about November 2011 I commenced employment with the defendants (moving parties) being, All Industries LIUNA CECOF (aka Liuna Central and Eastern Canada Organizing Fund II) and, or, Labourers International Union of North America, Local 183, and, in so doing, undertook work and services a the direction of and, or, for the benefit of each of these parties During the course of my employment and, in particular, in the court of undertaking my employment related duties and responsibilities, I experienced ongoing and repeated abuse from one of my immediate supervisors, Frank Martins (aka Francisco Martins), who is named as a co-defendants in these proceedings and, in addition, from Nelson Melo, President of defendant Labourers International Union of North American, Local 183.

6. In particular, on November 19, 2015 defendant Frank Martins deliberately pointed a handgun at me, during a meeting at his home with another co-worker, to discuss business activities relation to the moving party defendants, or, either of them. This incident gave rise to my belief that I was in imminent danger and caused me t experience significant emotional distress and related suffering.

7. On November 23, 2015 Frank Martins, once again, pointed a handgun at my head during the course of my employment, while I was completing a weekly report. In the course of so doing, Martins directed me to complete the written report to meet objectives even if the information outlined therein was false. This caused me to experience immediate additional emotional distress and related suffering.

8. In addition, on or about January 19, 2016, I was directed by Nelson Melo, President of defendant Labourers International Union of North America, Local 183, to falsify union member cards, if necessary, in order to obtain a required quota. These directions included a threat to effectively terminate my employment if I did not undertake action to falsify new membership cards, if necessary, to achieve the required number of new members. I refused to do so.

9. In addition, on or about January 27, 2016, issues arose concerning the manner in which the moving party defendants, or either of them, had undertaken action in relation to an application for certification of employees of a specific employer in relation to an application for certification to the Ontario Labour Relations Board. I refused to co-operate for the purpose of submitting false information and, or, documentation relating thereto as directed to me by the moving party defendants and co-defendant Francisco Martins.

10. I verily believe that the actions of Frank Martins and Nelson Melo, including their actions referenced above, and the general manner in which I was treated during my employment by representatives of the defendant moving parties, was undertaken as a result of my refusal to co-operate with their requests to file false and, or, misleading information and documentation relating to the business activities of the moving party defendants and was further undertaken with the objective of causing me to resign from my employment.

11. On or about January 29, 2016, I suffered a heart attack giving rise to hospitalization. I verily believe that this medical condition was primarily caused by the emotional distress, anxiety and related suffering which I experienced arising from the manner in which I was treated by the moving party defendants and, in particular, Frank Martins, during my employment, including the facts and circumstances referenced above.

12. Commencing March 14, 2016, I became disabled and, in particular, unable to actively undertake my employment related duties and responsibilities on account of my medical condition. As a result, I provided my employers with information and documentation evidencing this. I verily believe that my medical condition, which prevented me from undertaking active employment duties and responsibilities, was largely caused by the manner in which I was treated by the moving party defendants and co-defendant Frank Martins during my employment including, without limitation, the facts and circumstanced referenced above.

13. On or about April 8, 2016 while I was off work on account of my medical disabilities, I made a complaint to the moving party defendants of workplace violence and harassment which I experienced in the course of my employment and, in particular, from co-defendant Frank Martins, that included the handgun incident of November 19, 2015 referenced above.

14. The moving party defendants reference in their Statement of Defence (which is referred to below and attached as Exhibit “C” to this my affidavit) that they undertook action to address my complaint of workplace violence and harassment as it relates to the handgun incident of November 19, 2015, which they assert included, without limitation, retaining the services of, “an experienced, independent and qualified employer lawyer, John McNair, to conduct an investigation” into the allegations which I made. The moving party defendants’ Statement of Defence further references that the investigator, John McNair, commenced his investigation on April 11, 2016, completed the same on or about May 6, 2016, and concluded that Frank Martins had engaged in various acts of harassment against me, including brandishing a gun at me at Martins’ home on November 19, 2015. The moving parties Statement of Defence further references that Mr. McNair concluded that Martins had engaged in various acts of harassment against me and further concluded that Martins had in fact brandished a gun at me at Martins’ home on November 19, 2015.

15. The moving party defendants further reference in their Statement of Defence that I was advised of the conclusions of the (McNair) investigation and of the fact that Martins’ employment with Local 183 had been terminated.

16. In particular, in or about May 2016, following the completion of the McNair investigation, I attended at the office of John Evans, General Counsel for LIUNA, Local 183, for the expressed purpose of discussing the findings of the investigation undertaken by Mr. McNair. Mr. Evans informed me of the conclusions of the McNair investigation and, in particular, that my allegations had been substantiated. While I believed I ought to have been entitled to a copy of the McNair report at that time, I was not provided with a copy of the McNair report by Mr. Evans.

17. Prior to the commencement of these proceedings and, in particular, in or about May 2016 through to the termination of my employment on February 7, 2017, I sought, without success, to obtain a copy of the investigation report prepared by the investigator, Mr. McNair.

18. I subsequently retained legal counsel to address issues on my behalf during such time as my employment with the defendants continued. In this regard, my then lawyer, Andrew D. Romain of Romain Law Professional Corporation, sent a letter by email to defendant, LIUNA, Local 183 Attention: Mr. John Evans, dated October 6, 2016, which included a request, for a “copy of any and all investigations conducted by the Union in relation to the cause” of my disability. A copy of that letter is attached and marked as Exhibit “A” to this my affidavit.

19. On or about February 7, 2017 the moving party defendants terminated my employment without notice, while I remained on medical leave on account of my medical disabilities.

20. The claims which form the subject matter of the within proceedings include

(a) Claims for recovery of damages arising from the termination of my employment, without notice and without cause;

(b) Additional general damage claims arising from breach of obligations under the Ontario Human Rights Code including, without limitation, breach of duty to accommodate my medical disabilities, and

(c) Additional damages, including damages arising from intentional infliction of mental distress arising from the manner in which I was treated during my employment and including, without limitation, the assaults which I experienced as a result of the actions of co-defendant Frank Martins in relations to each of the handgun incidents referenced above.

[21] The defendants submit that paras. five to twenty should be struck out because they are “highly prejudicial”. Specifically, they request that the Court strike out the last sentence in paragraph 12 and the reference in paragraph 16 that “Mr. Evans informed me of the results of the Mr. McNair report from my allegations have been substantiated.”

[22] Courts have struck affidavits before the hearing of the substantive motion in the following instances:

a) Where the deponent failed to state the source of the information: see Metzler Investment GMBH v. Gildan Activewear Inc., 2009 CanLII 41540 (Ont. S.C.);

b) Where the deponent raised legal argument: see Chopik v. Mitsubishi Paper Mills Ltd. (2002), 26 C.P.C. (5th) 104 (Ont. S.C.); and

c) Where the deponent made scandalous, frivolous or vexatious allegations; see Chopik.

[23] Courts have refrained from striking out an affidavit on an interlocutory motion unless there are special reasons for doing so. Such reasons exist where the material is inappropriate and necessitates a response by the moving parties that would give rise to unreasonable effort or costs: see Neighbourhoods of Windfields Limited Partnership v. Death, 2007 CanLII 31756 (Ont. S.C.), at para. 33.

[24] In my view, paragraphs 5 to 20 can neither be described as scandalous, vexatious, or an abuse of process for a few reasons. First, the Defendants admit the allegations in paragraphs 5, 17, 18, 19, and 20 in the Statement of Defence. Second, the paragraphs do not appear to contain inaccurate information or information that is unknown to the Defendants. Third, the assertion in paragraph 16 that “Mr. Evans informs me of the results of [the McNair report] and my allegations have been substantiated,” does not appear to be factually inaccurate given that it led to Mr. Martins’ dismissal. Fourth, I cannot conclude, in this motion, that there are “special reasons” that justify striking out the paragraphs in question. Additionally, the materials cannot be described as inappropriate. They may contain inconvenient truths but that does not make them inappropriate.

[25] I am prepared to accept the Ontario Superior Court’s decision in Gutierrez, at paras. 27 to 37, that in appropriate cases, a pre-emptive motion to strike paragraphs in an affidavit can be justified on the basis of “efficiency or fairness”. However, I fail to see how this is the case here. The Defendants are in possession of the McNair Report. They can easily ascertain its contents.

[26] I agree that paragraphs 8 to 11, which relate to Nelson Melo, President of Local 183, can be viewed as problematic. However, Mr. Oliveria’s counsel has agreed that paragraphs 7 to 11 should be struck, along with certain words in paragraph 19.

[27] Finally, while the Defendants are able to bring a pre-emptive motion to strike portions of Mr. Oliveria’s affidavit, the Court has the discretion to grant or not to grant the motion. In my view, the judge hearing the DUR motion would be in a much better position to decide whether Mr. Oliveria’s pleadings should be struck, or alternatively, whether he should be found in contempt. The contents of the subject affidavit may be found to provide context to the factual matrix that underpin the order sought by the Defendants, in their DUR motion scheduled for September 2021.

[28] In my view, the judge hearing the DUR motion should hear the motion to strike the paragraphs in Mr. Oliveria’s affidavit: see Holder et al. v. Wray et al., 2018 ONSC 6133, at paras. 37 to 39; Windfields, at paras. 33 to 36.

CONCLUSION

[29] Order to go that paragraphs 7 to 11 inclusive of the Plaintiff’s affidavit dated November 19, 2020 is struck, as well as the phrase, “without notice, while I remained on medical leave on account of my medical disabilities” in paragraph 19 of Mr. Oliveria’s affidavit.

COSTS

[30] Costs are reserved to the judge hearing the Motion scheduled for September 15, 2021.

I. André J.

Date: May 27, 2021