COURT FILE NO.: CV-17-577472

DATE: 2021-12-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THUSHYANTHAN THIYAGARAGAH Plaintiff

– and –

BELL CANADA AND THE MANUFACTURERS LIFE INSURANCE COMPANY O/A MANULIFE FINANCIAL Defendants

Counsel: Laurencia Fasoyiro and Jaswant Malhi, for the Plaintiff

Kimberly Pepper, for the defendant, Bell Canada

HEARD: June 21, 2021

BEFORE: A. Ramsay J.

Nature of the Motion

1The defendant Bell Canada (“Bell”) brings this motion for summary judgment under rule 20.01(3) of Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), on the basis that the action is an abuse of process and a collateral attack on a previously reached settlement between the parties, and on the ground that the action is statute barred by virtue of section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“The Limitations Act”).

2In the alternative, Bell seeks an order under rule 21.01(3) of the Rules striking the statement of claim in its entirety, without leave to amend, on the basis that the court does not have jurisdiction as the matter has been fully settled between the parties. Bell also seeks an order for contempt under rule 60.11 against the plaintiff’s lawyer for disclosing Bell’s mediation brief to others.

3On September 27, 2017, the action was discontinued against Manufacturers Life Insurance Company (“Manulife”).

Issues Raised on this Motion

4The following issues are raised on this motion:

i. Is the plaintiff’s action barred by statute, or is it subject discoverability?

ii. Is the plaintiff’s action an abuse of the process of the court?

iii. Is the plaintiff’s lawyer guilty of contempt for disclosing Bell’s mediation memorandum to strangers to the civil action and to the Grievance proceeding?

The Facts

5The plaintiff Thushysanthan Thiyagarah (“the plaintiff”) started his employment with Bell in May 2003. In 2005, he became a full-time employee holding the position of Business Technician. Bell Canada is a federally regulated telecommunications and media company whose employees are governed by the Canada Labour Code, RSC 1985, c L-2 (“Code”). The plaintiff is a unionized employee governed by a Collective Agreement with UNIFOR Local 25 being his bargaining agent.

6Under the collective agreement, the plaintiff was provided with disability income replacement benefits under Bell's STD Plan and LTD Plan. The plan was fully funded by Bell. Employees enrolled in the plan who met the definition of for total disability under the plan were eligible to receive LTD benefits once they received STD benefits for 26 weeks and used all accrued vacation days or scheduled days off. The plan offered coverage to employees who suffered impairments that disabled them from performing the essential task of their own or any occupation.

7The plaintiff was involved in three motor vehicle accidents, the first of which occurred on October 15, 2010 (“the first accident”), and the second on December 3, 2012 (“the second accident”), and on February 4, 2014 (the third accident”). The plaintiff never returned to work after the first accident, until 2017. He submits that he was continuously disabled since October 2010.

8At the time of the first accident, the plaintiff was earning a base salary of $81,684.46 annually. Bell’s statement of defence admits that Bell’s STD plan provided coverage of 100% of an employee’s basic salary for eight weeks, and 80% for a further eighteen weeks. The plaintiff received STD benefits for a 26-week period from October 18, 2010 to April 23, 2011.

9Bell’s pleadings allege that LTD benefits are aa top up to other disability payments, legislated income payments, or other salary or wages, and provided a benefit of 66.7% of an employee’s basic salary.

10Paragraph 16 of the statement of defence pleads that: “Employees, including the Plaintiff, are not party to any contract of insurance or contract for benefits either with Manulife or any other entity. The Plaintiff only had access to eligibility to disability benefits pursuant to his employment with Bell.”

11Desiree Cunningham, a Nurse and case manager of Bell’s Disability Management Group (“DMG”), provided an affidavit in support of Bell’s motion. Ms. Cunningham deposes that she has “been directly involved in the adjudication of the plaintiff’s claim for disability from January 2013, onwards”. She deposes that the LTD benefits and are 100% funded by Bell which retains Manulife to adjudicate entitlement to STD benefits in conjunction with Bell’s DMG.

12Under the plan, the plaintiff was then obliged to exhaust any vacation, which he did on May 21, 2021, before he could have access to LTD benefits under the plan. The plaintiff applied for LTD benefits. At paragraph 23 of its statement of defence pleads that on October 25, November 26 and November 29, Bell received further medical documentation “which supported the plaintiff returning to work by way of a gradual return to work plan with accommodations”. Although Bell pleads that “the Plaintiff was advised that the medical supported a gradual return to work plan for him and benefits were not approved beyond April 21, 2011”, this is not supported by the evidence. In fact, Bell relies on the April 21, 2011 date when the plaintiff’s STD benefits were terminated and the May 21, 2011 date when he exhausted his vacation, as the trigger date for his claim for LTD benefits.

13The plaintiff takes the position that it was not until he exhausted the grievance process, completed the IME in 2016, and received a letter from Bell in November 2016 that he was not eligible to LTDs that he discovered both his entitlement to LTD benefits had been and that an action would be an appropriate remedy.

14At paragraph 28 of the statement of defence, Bell pleads that “the Plaintiff’s claim for LTD Benefits began on May 21, 2011 and he was aware of such claim and the denial of same at that time (emphasis added).” Bell has not provided any actual evidence of a denial of the claim in April or May 2021.

15In a retainer letter provided to and IME doctor (Dr. Bender) in June 2016, Bell provided a summary of the available medical documentation. It referred to a February 16, 2011 report of Dr. A. Kachooie and noted: “Dx: Whiplash – left C6 cervical radiculopathy, low back pain, neuralgia headaches”, and later entry of “April 21, 2011: IME done with Dr. Gilbert Yee, Orthopedist. However, Dr. Yee indicated thar he would deem him disabled until he is able to review his complete clinical records (emphasis added).”

16In addition to not providing any evidence, on this motion, of any denial of benefits on or before May 21, 2011. As for after May 21, 2011, Bell’s conduct, and indeed, both parties conduct, suggest that both were treating the plaintiff’s ability to advance any claim for LTD benefits as subject to review based on further medical documentation.

17Bell’s evidence that the plaintiff was advised in April 2011 that his claim was not approved beyond April 2011, is based on hearsay evidence, which are log notes of Ms. Brigitte Goyette, who was responsible for adjusting the claim through the DMG.

18Bell also submits that the plaintiff appealed his “denial” of LTDs in December 2011. There is no evidence to support this position. On the evidence, the plaintiff’s union initiated a Grievance under the collective agreement. Bell has taken the position that entitlement to LTD benefits are not arbitrable under the collective agreement. Despite this position, after the Grievance was referred to arbitration, Bell participated in the proceeding and reached a settlement with the plaintiff.

19The only evidence relied upon by Bell that it advised the plaintiff that his benefits were denied is the hearsay evidence of Ms. Cunningham based on a review of an “Active Reports document”, which is essentially log notes of Ms. Goyette’s conversation. Ms. Goyette has not provided an affidavit. Bell submits that Ms. Goyette contacted the Plaintiff on December 13, 2021 to advise that, based on the medical documentation submitted to Bell, the Plaintiff was able to engage in a gradual return to work; and therefore his benefits were not approved beyond April 23, 2011. In fact, the note indicates that it was in fact a call from the plaintiff and nowhere does it reference that he was not approved beyond April 23, 2011. The note indicates that the plaintiff returned Ms. Goyette’s call and she explained the IME results to him. According to the notes, the plaintiff was offered two alternatives: he could be accommodated with part-time work and micro-breaks or he could remain on unpaid leave of absence should he choose to follow the doctor's recommendation as long as it is medically supported. The note further indicates that the plaintiff indicated he would like to think about it and discuss it with his doctor and that she would follow up with him mid-January at the latest and that she requested that he get back to her soon as possible.

20In December 2011, the plaintiff went on a Disability Unpaid Leave of Absence available under the plan. He was required to provide ongoing medical information to the DMG to substantiate his medical condition to remain off work.

21It is DMG which is responsible for assessing the plaintiff’s entitlement to LTD benefits and, he DMG may require the employee to attend an independent medical examination a functional abilities evaluation to determine his eligibly for LTD benefits.

22The ActiveReport log notes also indicate that Ms. Goyette had exchanges with the plaintiff beyond December 13, 2011 about his LTDs.

23On July 25, 2012, the plaintiff sought an explanation from Ms. Goyette as to why she required a release (for his accident benefit file from his car insurance company). The log indicates that Ms. Goyette responded that certain forms were requested to support an ongoing accommodation for an unpaid leave of absence, and she went on to state: “However, in order to review entitlement to LTD benefits, we require the entire file from the insurance carrier”.

24Under the plan (dealing with an unpaid leave of absence) and the subheading “Your LTD benefits will end when any of the following events occur” the following information is provided to the plaintiff: “You may be coded on an unpaid disability leave of absence when your eligibility to LTD is assessed and you have used all accrued vacation days or scheduled days off or under some circumstances if you are not eligible to LTD benefits” (emphasis included in original document). These two options appear to be the options that were offered to the plaintiff in December 2011 when Ms. Goyette apparently spoke to him about the results of his IME.

25While on an unpaid leave of absence the plaintiff continued to submit medical reports to Bell to support his continued entitlement to be off on an unpaid leave of absence. There is, however, no evidence that that the plaintiff appealed any “denial” of benefits. Bell can point to no denial of benefits in writing.

26Also embedded in the ActiveReport log notes is a letter dated September 26, 2012 from Ms. Goyette to a person named “Danon”, in which she noted that they had received an updated form supporting an absence until February 20, 2013. She also noted:

“I have confirmed its reception to Mr. Thiyagaragah this Monday. He asked if this was enough information for him to be approved on LTD. I explained that the bc1985 form was to support the continued absence and entitlement to an unpaid LOA only. Should he wants (sic) he should provide us with the release sent to him on July 24 which we have not received so far (emphasis added).”

27On September 27, 2012, the plaintiff’s union filed a Grievance. The Grievance Report indicates the Manager was advised of the Grievance on October 1, 2012, and the manager’s representative denied the grievance on October 9, 2012. The Grievance was not referred to arbitration until 2015.

28The plan does not provide a method of appealing a decision of the DMG. By their conduct, and Bell’s submissions, Bell appeared to treat the Grievance process as a de facto appeal under the collective agreement and the plan of Bell’s failure to pay income replacement benefits. At paragraph 4 of its factum, Bell states:

In or around October 2012, the Plaintiff brought a grievance under the Collective Agreement between Bell and the bargaining agent, Unifor. In the grievance, the Plaintiff alleged that he had been improperly denied LTD benefits. On or about December 18, 2015, Bell, the Plaintiff and his bargaining agent, UNIFOR, attended a Mediation and negotiated a settlement of the grievance, and the Plaintiff’s claim pertaining to the denial of LTD benefits. The terms of settlement were memorialized in written Minutes of Settlement.

29In fact, it is clear from the materials, including the settlement of the grievance, that Bell understood that the Grievance related to the LTD benefits, but nowhere in the grievance was there any reference to “LTD benefits” or, as submitted by Bell, “improperly denied LTD benefits. In fact, the grievance under the Collective Agreement indicated that it was for “loss of wages” and “discrimination for sickness”, and further noted that: “The grievor and the union allege the company to be in violation of the collective agreement in particular but not limited to Articles 2 & 13.” The form noted that the plaintiff was seeking “Full redress to include approval and re-instatement of all lost wages and compensation.

30In the interim, the plaintiff was involved in the second accident on December 3, 2012. He was diagnosed with major depression after the second accident. This was followed by a third accident on February 4, 2014, after which he was diagnosed with post-traumatic stress disorder, major depression, chronic pain, and WAD 2 injuries.

31The Grievance was referred to arbitration and a hearing was scheduled before arbitrator Surdykowski scheduled on December 18, 2015. There were two issues raised regarding his LTDs, firstly, “an assessment of the claim based on the medical grounds advanced” and, secondly, “a claim for general damages”. The parties agreed to resolve the arbitration without a hearing. They agreed to and signed Minutes of Settlement which set out the terms of the settlement.

32It is factum, Bell argues that the plaintiff brought a grievance in October 2012 alleging that he had been improperly denied LTD benefits. No such grievance has been entered into evidence. The September 2012 grievance only refers to “loss of wages” and “discrimination for sickness”.

33Before the arbitration, and on this motion, Bell raised the issue of the jurisdiction of the arbitrator to deal with the merits of the plaintiff’s claim for entitlement to benefits. However, as is made clear, for whatever reason, the parties, by their conduct appeared to treat the Grievance as an appeal process and Bell treated the Grievance dispute process, as a mechanism for addressing the issues raised in the Grievance. The plaintiff’s entitlement to LTD benefits was not in fact arbitrated.

34Laura Matten, a Senior Consultant, Human Resources for Bell, provided an affidavit in support of the motion. Ms. Matten deposes as follows:

13.Although, under the Collective Agreement, the parties have historically agreed that an arbitrator does not have jurisdiction to determine a claim for LTD benefits, the Parties agreed to attend a mediation with Mr. George Surdykowski on December 18, 2015, in order to resolve the Grievance….

14. On December 18, 2015, the Parties resolved the Grievance, and confirmed the agreement in writing in Minutes of Settlement (“MOS”) signed by all the Parties. The Plaintiff agreed that the Plaintiff would undergo an independent Medical Exam (“IME”) and the results of the IME would be determinative of his entitled to LTD benefits for retroactive to 2010. The MOS specifically stated that Mr. Surydowski would remain seized to determine if there were any issues with the Parties’ obligations under the agreement, or if any issues arose with the Plaintiff’s entitlement to LTD benefits.

35As part of the terms of the settlement, Bell agreed as follows, in part:

1.“Bell will have Mr. Thiyagarajah’s file reassessed for eligibility for Long Term Disability Benefits…

2.The decision as to eligibility will be made in writing and include an assessment as to the date of eligibility. A copy will be provided to the Union…

4.If the grievor is assessed as eligible to receive long term disability benefits, the grievor will provide any information or documentation Bell requires relating to income or to amounts received that are related to a claim for lost income for any period to the date of the assessment.

5. If the grieveor is assessed as eligible to receive long term disability benefits, the union will abandon any claim for damages, a s advanced in grievance 25-12-762, relating to the prior assessment….

(emphasis added)

36On May 25, 2016, Ms. Cunningham (DMG) forwarded a retainer letter to Dr. Ash Bender, psychiatrist, to carry out the IME in accordance with the Minutes of Settlement sets out the eligibility criteria for an individual to qualify for “Bell Canada’s Income Protection benefit program”. The letter indicated that the plaintiff had been absent from work since October 15, 2010. The letter states in part:

“The employee has been absent from work since October 15, 2010 due to an automobile accident.

Currently the diagnosis is that of Major Depression, Anxiety, Car Anxiety and chronic pain. Since the initial car accident, the employee has had two subsequent car accidents.

The diagnosis at the time of his absence was Whiplash, severe back and neck pain and left knee pain. He received 6 months on short term disability. His file was then being evaluated and test results were pending before a decision could be rendered. (emphasis added)

37The letter to Dr. Bender encloses various medical information and reports, including reports provided by the plaintiff’s automobile insurance company TD, and start from October 18, 2010 to January 2016. The medical information spans all three motor vehicle accidents.

38On June 16, 2016, pursuant to the Minutes of Settlement, the plaintiff underwent an IME carried out by Dr. Ash Bender, psychiatrist. The IME concluded that the plaintiff was not totally disabled and was able to return to work.

39On September 29, 2016, a representative of the DMG sent a letter to the plaintiff indicating that, following the IME, the plaintiff was deemed fit to work. The plaintiff sought clarification as to whether he had been deemed eligible or ineligible to receive LTD benefits.

40On November 16, 2016, Bell sent a further letter to the plaintiff advising him that he was not eligible for LTD benefits.

41On 20 June 2017, the plaintiff commenced this claim against Bell and Manulife for, among other things, arrears of STD and LTD benefits from October 17, 2010 to date of trial as week as seeking a declaration his “illness/injuries have fully and continuously disabled him as a result of his not being physically or mentally fit to perform the essential duties of his own or any occupation for which he may be gainfully employed by reason of his education, training and/or experience. He alleged a breach of contract by Bell.

Motion for Summary judgment - Test

42Rule 20.04(2)(a) provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence: Hryniak v. Mauldin, 2014 SCC 7 at para. 34) [Hryniak].

43The Supreme Court of Canada has stated that the motion judge, on a motion for summary judgment, should first determine if there is a genuine issue requiring trial based only on the evidence before the court, without using the new fact-finding powers: Hryniak at para.66.

44If there appears to be a genuine issue requiring a trial, the court should determine if the need for a trial may be avoided by using the new powers under Rules 20.04(2.1) and (2.2), Hryniak, supra.

45In exercising his or her power under subrule 20.04(2.1), the judge may weigh the evidence, evaluate credibility of any deponent, and draw any reasonable inference from the evidence.

46However, the court’s fact-finding powers are discretionary under rules 20.04(2.1) and (2.2) and should not be exercised where it would be against the interest of justice to do so: Hryniak at para.44.

47A plaintiff who seeks summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at para. 27.

48On a motion for summary judgment, each party must“...‘put its best foot forward’ with respect to the existence or non-existence of material facts that have to be tried”: Canada (Attorney General) v. Lameman, 2008 SCC 14,, at para. 11; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32; and, Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11.

49The plaintiff must prove that there are no genuine issue of material fact requiring a trial, and may not rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (C.A.).

50The principles governing the admissibility of evidence are the same on a summary judgment motion as at trial, with the limited exception of affidavit made on information and belief: Sanzone v. Schechter, 2016 ONCA 566, at para. 15.

Is the Plaintiff’s Action Statute Barred?

51Section 4 of the Limitations Act 2002 c.24 mandates that no proceeding shall be commenced after 2 years from which the claim was discovered. However, although there is a presumption of a 2 year limitation period, it is rebuttable.

52Section 5 determines when a claim is discovered, as follows:

(1) a claim is discovered on the earlier of,

(a) the day on which the person with a claim first knew

(i)that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claims is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it;

and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

53A cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence: Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC).

54The discoverability rule, codified in section 5 of the Limitations Act, 2002, mandates that the person must rebut the presumption they knew they had a claim on the day of the incident.

55The discoverability rule has been held to be a rule of fairness which provides that a limitation period does not begin to run against a plaintiff until he or she knows, or ought reasonably to know by the exercise of due diligence, the fact, or facts, upon which his or her claim is based: Peixeiro v. Haberman, 1997 CanLII 325 (SCC); Smyth v. Waterfall 2000 CanLII 16880 (Ont. C.A.).

56In the case of York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. 2007 ONCA 49, (2007), the Ontario Court of Appeal indicated that limitation periods “should be liberally construed in favour of the individual whose right to sue for compensation is in question.”

57Courts in Ontario have established that it is not the policy of the law or the intent of the limitations provisions to require people to start actions before they know that they have a substantial chance to succeed in recovering a judgment for damages (Pepper v. Zellers Inc., (2006), 2006 CanLII 42355 (Ont. C.A.). In the case of Pepper v. Zellers Inc., the Ontario Court of Appeal has held that discoverability principle provides that “a limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. … This principle… applies both to the discoverability of facts and to the discoverability of the tortfeasor’s identity.”

58The limitation period may be suspended pursuant to s. 5(1)(a)(iv) of the Limitations Act, 2002 until a prospective plaintiff knows or ought to know that a civil action is “an appropriate means” to seek to remedy it: Nelson v. Lavoie, Nelson v. Lavoie (2019), 2019 ONCA 431 (Ont. C.A.); Beniuk v. Leamington (Municipality) (2020), 2020 ONCA 238 (Ont. C.A.).

59On the facts of this case it may not be necessary to determine whether the plaintiff had to wait until all stages of the Grievance had been completed: Har Jo Management Services Canada Ltd. v. York (Regional Municipality)2018 ONCA 46976 M.P.L.R. (5th) 1 (Ont. C.A.).

60In the present case, the plaintiff’s employment was governed by a collective agreement. Bell admits in its statement of defence that the income replacement benefits available to the plaintiff was not pursuant to any policy but was connected to his employment with Bell. The plan is silent as to the mode of appealing a decision. The plan does not set out any time frame for disputing or bringing an action against Bell for failure to pay benefits. Under the plan, there were two basis for the plaintiff to have access to an unpaid leave of action, in the words of the plan: “when your eligibility of LTD is assessed and you have used all accrued vacation days or scheduled days off or under some circumstances if you are not eligible to LTD benefits.”. There is no denial of LTD benefits that Bell Canada can point to either in April or December 2011. Bell Canada relies on double hearsay evidence to support its position that the plaintiff was verbally told in December 2011 that his benefits were not approved beyond April 2011. There is fact to reference to April 201ll in the log note relied upon.

61Both the July and September 2012 communication by Ms. Goyette (of the DMG) with the plaintiff suggests that Bell was open to receiving additional information to consider his entitlement to LTD benefits. In November 2012, the plaintiff provided a signed release for a copy of insurance file for the car accident which refers to a call to TD. There is a question about retroactive payment noted in the ActiveReport log notes and appears to be a question, though it is not clear from whom, about whether he can receive both coverages. However, since Ms. Goyette has not provided an affidavit, and the notes were not subject to cross examination, any to be ascribed to the notes would amount to mere speculation and cannot be given little weight on this motion for summary judgment. Thereafter there is a gap in the ActiveReport log notes between August 2013 and Sept 2016.

62What is evident is that the parties proceeded as if there was no limitation period and indeed, Bell entered into a binding minute of settlement, which is a contract, in December 2015 to assess the plaintiff to determine entitlement to LTDs. That contract concluded between the parties left it open to the plaintiff to pursue a claim for damages should Bell determine that he was ineligible for LTDs after the assessments were completed. That is what happened here. On the evidence, there is a genuine issue for trial as to whether the limitation period was triggered after Bell forwarded the September 2016 letter to the plaintiff indicating the IME deemed him fit to return to work, or the November 2016 letter clarifying that he was ineligible for benefits, as the Minutes of Settlement contemplated potential retroactive payments.

63The conduct of Ms. Goyette’s (which included advising the plaintiff that his claim for LTDs would be reconsidered with new medical information), Ms. Matten’s evidence that despite the jurisdictional issue regarding the ability of the arbitrator to determine entitlement to benefits, and the Minutes of Settlement entered into by the parties all appear to point to one thing - Bell was prepared to, and indeed did, reconsider the plaintiff’s entitlement to LTD benefits despite the passage of time.

64Therefore, if either of those two letters serves as the triggering event, the statement of claim issued on June 20, 2017 is within the two-year limitation period.

65As for whether the limitation period was postponed by the Grievance process, I need not decide that issue as the parties reached a settlement in December 2015. Given Bell’s characterization of the plaintiff’s Grievance under the Collective Agreement as grieving the “improper denial of LTD benefits from April 21, 2011 onwards”, which culminate in the Minutes of Settlement in December 2015, I would agree with the plaintiff that there is a triable issue as to whether the limitation period was triggered after the plaintiff was assessed by the IME doctors in accordance with the settlement and received the clarification letter in November 2016 indicating that he was not eligible for LTD benefits.

Is the plaintiff’s action an abuse of process as the issues were settled by the Minutes of Settlement.

66Bell moves under Rule 21.01(3)(d) to dismiss an action on the ground that the claim is an abuse of the process of the court.

67Bell submits that the plaintiff initiated a Grievance under his Collective Agreement, participated in a mediation of his Grievance and entered into a full and binding settlement, and is now attempting to re-litigate a claim which has already been settled.

68The plaintiff submits that the arbitrator lacked jurisdiction to make a final decision regarding the plaintiff’s entitlement to LTD benefits, and the arbitration proceedings did not dispose of the issues raised in the arbitration.

69I agree with the plaintiff’s position. In fact, paragraph 81 of Bell’s factum states:

The Plaintiff chose to bring the Grievance, notwithstanding the 2011 Ontario

Superior Court decision between UNIFOR (formerly CEP Union of Canada) and Bell,

pre-dating the Plaintiff’s Grievance, which stands for the proposition that the merits of

an LTD claim are not arbitrable under the Collective Agreement.

70Bell maintained this position on the motion. However, the Minutes of Settlement speak for themselves. Any determination of entitlement was premature and the Minutes clearly indicate that “Bell will obtain any opinions or assessments it requires to make the decision as to eligibility” and the parties agreed that if the plaintiff “(grievor)is assessed as eligible to receive long term disability benefits, the union will abandon its claim for damages….”

In Foy v. Foy (1979), 1979 CanLII 1631 (ON CA),(Ont. C.A.), at 39, leave refused [1979] 2 S.C.R. vii., the court noted:

The concept of abuse of process protects the public interest in the integrity and fairness of the judicial system. It does so by preventing the employment of judicial proceedings for purposes which the law regards as improper. These improper purposes include harassment and oppression of other parties by multifarious proceedings which are brought for purposes other than the assertion or defence of a litigant's legitimate rights. Such abuse of process interferes with the business of the Courts and tarnishes their image in the administration of justice.

71Chief Justice McLachlin commented in R. v. Mahalingan, 2008 SCC 63, [2008] 3 SCR 316, at para. 42: “The remedy of abuse of process may or may not provide protection against relitigation of a particular issue. Abuse of process is a broad, somewhat vague concept, that varies with the eye of the beholder.”

72On its face, it is clear that there was no resolution or final determination as to the merit of the plaintiff’s claims for entitlement to benefit, i.e. whether he met the test, and if so, how much was owed to him, but rather a procedure by which the plaintiff would be assessed to determine entitlement. The Minutes of Settlement contemplated that the plaintiff would still be able to pursue damages if, as a result of the assessment process, Bell determined that he was not entitled to benefits.

Should the court grant an order for contempt?

73Bell submits Mr. Alam violated the Mediation Agreement, the Rules of Professional Conduct, and the Rules of Civil Procedure, in disclosing Bell’s Mediation Brief to the plaintiff’s union lawyer, Mr. Russell who, in turn, proceeded to share Bell’s Mediation Brief with members of the plaintiff’s union. Bell is seeking a fine of $2,500.00 to be paid by Mr. Alam for his contempt.

74Rule 60.11 of the Rules of Civil Procedure outlines the procedure and potential consequences for a contempt order. In particular, Rule 60.11(1) provides that:

“A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made (emphasis added)

75There is no “order” of the court and therefore rule 60.11, on its face, does not apply.

76Bell submits however that Rule 60.11 applies even in circumstances where there is no breach of court order, but in situations where there has been a breach of a deemed or implied undertaking rule. In support of this argument, Bell relies on the decisions of Orfus Realty v. D.G. Jewellery of Canada Ltd., 1995 CanLII 631 (ON CA), 83 O.A.C. 35 (“Orfus”) and Pohl v. Depuy (Canada) Ltd., [1999] O.J. No. 2559 (“Pohl”). These cases are distinguishable as both cases dealt with the disclosure of documents obtained during the discovery process and therefore subject to the deemed undertaking rule (r. 30.01 of the Rules). As an alternative, and in support of its argument that the deemed undertaking principle applies to the mediation process, Bell relies on the concurring reasons of Abella J.A. (as she then was) in Rogacki v. Belz (2003), 2003 CanLII 12584 (ON CA), 67 O.R. (3d) 330 (Ont. C.A.) (“Rogacki”), where she commented that:

Mandatory mediation is a compulsory part of the court's process for resolving disputes in civil litigation. Wilful breaches of the confidentiality it relies on for its legitimacy, in my view, represent conduct that can create a serious risk to the full and frank disclosures the mandatory mediation process requires. It can significantly prejudice the administration of justice and, in particular, the laudable goal reflected in Rule 24.1 of attempting to resolve disputes effectively and fairly without the expense of a trial.

However, Abella J.A. noted that in the absence of a Rule or legislative provision, given the potential gravity of the consequences of a contempt finding, she agreed with Borins J.A. that it should only be exercised, "when the circumstances are clear and beyond reasonable doubt". As was the case in Rogacki, “no such clarity exists at this time sufficient to justify attracting so powerful a remedy.”

77Moreover, the order for contempt is against Mr. Alam. However, Mr. Alam was not served personally with the motion for contempt which, ought to be fatal to the relief sought. The case law has established that an order for contempt is criminal, or at least quasi-criminal, in character, and Bell must prove the constituent elements of contempt beyond a reasonable doubt: Bhatnager v. Canada (Minister of Employment & Immigration), 1990 CanLII 120 (SCC), [1990] 2 S.C.R. 217 (S.C.C.). There is no evidence before me that Mr. Alam A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.).

78Mr. Alam has provided an affidavit in response to Bell’s motion. He admits that he contacted the plaintiff’s union lawyer for his legal opinion as a result of the jurisdictional issued raised by Bell at mediation. I accept Mr. Alam’s evidence that it was his associated who forwarded a copy of the mediation brief to the union lawyer to obtain his legal opinion. Beyond this there is no evidence that Mr. Alam disseminated the mediation brief to others. I am therefore not satisfied, beyond a reasonable doubt, based on the evidence that Mr. Alam was involved in disseminating the mediation briefs.

79In its factum, Bell also argued that an Mr. Alam violated an undertaking given in the Mediation Agreement not to disclose Bell’s mediation brief, without Bell’s consent (either implicit or implied), to the union lawyer. On the evidence, I cannot find that any such “undertaking” exists. In any event, as the union lawyer represented the plaintiff’s interest on the Grievance, any disclosure of the mediation brief to the union lawyer does not give rise to contumelious conduct.

Disposition

80In the circumstances, the following order is made:

i. Bell’s motion for summary is judgment dismissing the plaintiff’s action is dismissed.

ii. Bell’s motion to dismiss the action as an abuse of process is dismissed.

iii. The motion to strike the statement of claim in its entirety on the basis that the court has no jurisdiction as the matter has been fully settled between the parties is dismissed.

iv. The motion for contempt against the plaintiff’s counsel is dismissed.

Costs

81If the parties are unable to resolve the issue of costs, counsel for the parties may contact my assistant to schedule a case conference. If no Costs Outlines have been uploaded to Caselines prior to the hearing of the motion in accordance with the Consolidated Practice Direction, the successful party should be prepared to address why the court should not exercise its discretion in not awarding costs.

A. Ramsay J.

Released: December 21, 2021

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THUSHYANTHAN THIYAGARAGAH Plaintiff

– and –

BELL CANADA AND THE MANUFACTURERS LIFE INSURANCE COMPANY O/A MANULIFE FINANCIAL Defendants

REASONS FOR JUDGMENT

A. Ramsay J.