Reasons for Decision

COURT FILE NO.: CV-20-653676

MOTION HEARD: 20210719

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stella Kalamaris, Plaintiff

-AND-

IBM Canada Limited, Defendant

BEFORE: Master Abrams

COUNSEL: C. Dale, for the plaintiff

A.E. Reid, for the defendant

Reasons for Decision

[1] The defendant moves to strike out part of one sentence in the plaintiff’s statement of claim, namely: “IBM regularly hired younger employees” (paragraph 20).

[2] The plaintiff is a former IBM Canada Limited (“IBM”) employee whose employment was terminated, without cause, in August 2020. The plaintiff has commenced an action alleging that she was wrongfully dismissed and has sought (a) a declaration that IBM discriminated against her based on age or, in the alternative, (b) damages to compensate her for IBM’s alleged violation of the Ontario Human Rights Code.

[3] The plaintiff has pled (without complaint by IBM) that “IBM’s decision to terminate her employment was based…on her age in violation of the Ontario Human Rights Code” and that she and another colleague, “both substantially older than [other members of their] team, were terminated at the same time…”.

[4] IBM’s concern is that the plaintiff’s plea referencing its alleged practice of “regularly hir[ing] younger employees” is irrelevant and/or overly broad as referring to the whole of IBM and not being temporally/geographically/departmentally limited.

[5] The issues between the parties, here, are (a) whether the plaintiff was wrongfully dismissed and, if so, what are her damages, and (b) whether IBM’s decision to terminate the plaintiff’s employment was based on her age, in violation of the Ontario Human Rights Code. IBM’s hiring practices--writ large--are irrelevant, says counsel for IBM. Relevant might be IBM’s hiring practices in respect of the plaintiff’s business unit or team during the period of the plaintiff’s employ and, perhaps, immediately thereafter.

[6] I agree. The plea here is overly broad. The plaintiff proposes a comparator group of all employees hired by IBM, in any business unit, at any time. In Ottawa (City) v. Ottawa-Carleton Public Employees’ Union, Local 503, 2007 552, at para. 58, the Divisional Court held that “the choice of the correct comparator group is critical in cases of alleged discrimination”--with the comparator group to mirror the characteristics of the claimant, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination. I accept that “[b]y selecting an overly broad comparator group, which will not assist the court in deciding the merits of her claim, the plaintiff has opened up this proceeding to prolonged, [disproportionate] and irrelevant discoveries…--mischief that must be avoided…” (defendant’s factum at para. 20). This is particularly so, given that this action was brought under the Simplified Procedure (with its narrowly circumscribed discovery rights).

[7] The defendant says also, and with this too I agree, that much of the evidence adduced by the plaintiff on this motion (save a list of available positions at IBM) is irrelevant. The plaintiff’s responding affidavit describes and attaches as exhibits articles and court documents in respect of IBM Corporation (International Business Machines Corporation in the United States). IBM Corporation is a separate legal entity from IBM (in Canada) and was not the plaintiff’s employer. Unlike IBM Corporation, IBM governs its employment matters and litigation under applicable Canadian provincial laws.

[8] Further, even if it could be said that the impugned plea involves similar fact allegations related to the operation of a U.S. parent, as in Abdi Jama (Litigation Guardian of) v. McDonald’s Restaurants of Canada Ltd., 2001 CarswellOnt 939, at para. 25 (on which the plaintiff relies), the “scope of the [plea, as now drafted,]…would potentially permit a search for and canvassing of, similar events within [the IBM organization] worldwide”, raising “irrelevant and superfluous allegations” that cannot affect the outcome of the claim.

[9] But even if I am wrong and, indeed, such allegations might be relevant, these allegations’ probative value is outweighed by their prejudicial effect (see: Quizno’s Canada Corporation v. Kileel Developments Ltd., 2008 ONCA 644, at para. 15). “[I]nappropriate pleading of similar facts that guarantees broadening of discovery and trial should be weeded out at the earliest opportunity” (Toronto (City) v. MFP Financial Services Ltd., 2005 CarswellOnt 3324 (S.C.J.), at para. 29). The plaintiff’s affidavit confirms that she seeks to uncover and explore IBM’s “hiring practices”, generally. She acknowledges that her knowledge about such matters is limited to that which she herself has witnessed and that which she has read in articles, such as those that relate to IBM Corporation (filed on this motion). I accept that allowing the inclusion of the words at issue, with no narrowing of their scope, “will [thus] result in an extensively prolonged discovery process and trial, involving issues of prior conduct in relation to other…employees who are not parties to this litigation and whose privacy interests may be affected” (McKee v. Rowshani-Zafaranloo, 2021 ONSC 2452, at para. 23). This is particularly so given that IBM has 11,368 employees.

[10] For all of these reasons, the plaintiff’s plea (as moved on by the defendant) is struck--with leave to amend in order that its scope/focus might be narrowed. Failing agreement as to the costs of the motion, I may be spoken to.

August 24, 2021 “Original Signed by Master Abrams”