Court File and Parties

COURT FILE NO.: CV-18-00603277-0000

DATE: 20211115

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ISMAIL ABBASBAYLI Plaintiff

AND:

FIERA FOODS COMPANY, ET AL Defendants

BEFORE: Chalmers, J.

COUNSEL: N. Chsherbinin, for the Plaintiff

M. Sammon and V. Hua, for the Defendants

HEARD: November 15, 2021, by teleconference

ENDORSEMENT

[1] This is a wrongful dismissal action. The Defendants take the position that the Plaintiff was dismissed for just cause. The Plaintiff brings this action against the corporate Defendant. The Plaintiff also brings the action against individual directors of the corporation seeking relief pursuant to s. 248 of the OBCA.

[2] The Statement of Claim was issued August 14, 2018. The Defendants brought a motion to strike the claims brought against the individual directors. By order of Pollak, J. the claims were struck with leave to amend. Her decision was upheld by the Court of Appeal. After the Court of Appeal released its decision on February 16, 2021, the Plaintiff amended the Statement of Claim. The Plaintiff is maintaining the action against the individual directors.

[3] The Defendants brought a second motion to strike the Claim. The Defendants take the position that the amended Claim continues to be deficient in that it fails to plead the material facts to support a claim pursuant to s. 248 of the OBCA. The matter came before Akbarali, J. in Civil Practice Court on October 12, 2021. She did not schedule the motion but instead convened a case conference. The purpose of the case conference is to determine whether the Defendants’ new motion is the same as the first motion brought by the Defendants.

[4] The Court of Appeal set out what must be pleaded in an action brought against individual directors for relief pursuant to s. 248 of the OBCA: Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, at paras 42-45. The Plaintiff argues that he complied with the direction of the Court of Appeal when drafting the amended Claim. The Defendants argue that the Plaintiff failed to follow the direction of the Court of Appeal and that the amended Claim continues to be deficient.

[5] I am unable to resolve this issue on the limited record available on a case conference. It is my view that another motion is required to determine whether the Plaintiff’s claim as against the individual directors should be struck. I schedule the motion for March 29, 2022 for less than 2 hours. The Defendants have delivered the Notice of Motion. Counsel agree they should be able to agree on a timetable for the delivery of the factums. If for whatever reason the parties are unable to agree on the date for delivery of the factums, the factums shall be delivered in accordance with the Rules of Civil Procedure.

[6] I am concerned about the delay of this action. There is no reason the parties cannot schedule dates for discovery and mediation at this time. I strongly encourage the parties to schedule the discovery and mediation to take place shortly after the motion is scheduled to be heard.

DATE: November 15, 2021