Court File and Parties

COURT FILE NO.: CV-20-646819 MOTION HEARD: 20210129 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carl Flieler, Moving Party Plaintiff AND: Canadian General-Tower Limited, Responding Party Defendant

BEFORE: Master Jolley

COUNSEL: Jean-Alexandre De Bousquet, counsel for the Moving Party Plaintiff, with Henry Coleman (student-at-law) Hendrik Nieuwland, counsel for the Responding Party Defendant, with MacKenzie Anderson (student-at-law)

HEARD: 29 January 2021

REASONS FOR DECISION

[1] The plaintiff brings this motion pursuant to Rule 25.11 to strike certain portions of the statement of defence. He moves to strike a portion of paragraph 5 on the basis that it pleads performance issues, is irrelevant and violates Rule 25.11(b) and (c) as scandalous, frivolous, vexatious and/or an abuse of process. He further seeks to strike paragraph 6 on the basis that it pleads a settlement offer and may prejudice or delay the fair trial of the action in violation of Rule 25.11(a).

[2] For the reasons set out below, the plaintiff’s motion is granted.

Paragraph 5 – The Pleading of Performance Issues

[3] The plaintiff alleges in paragraph 9 of his statement of claim that he was terminated without cause. While the statement of defence does not specifically address paragraph 9 other than a blank denial of all paragraphs not admitted, paragraph 5 of the defence states as follows:

“5. On or about August 10, 2020, the plaintiff’s employment was terminated following his continuing resistance to the implementation of reorganization of the Company’s Technical Organization in February, 2020. Notwithstanding the support that was provided to the plaintiff, he resisted the performance of the responsibilities assigned to him.”

[4] The statement of defence does not admit that the plaintiff was terminated without cause but on the motion and in its factum, the defendant confirmed that the termination was without cause.

[5] Although it is not relying on cause as a defence to the plaintiff’s wrongful dismissal claim, the defendant argued that it had included the allegations concerning the plaintiff’s performance because they were relevant to his claim for a bonus. The difficulty with this argument is that these performance allegations in the defence are not related to the bonus claim in any way. They are pled only in the context of the reasons for the plaintiff’s termination and smack of some near cause argument. The statement of defence as it relates to the bonus only pleads that the bonus was discretionary. It does not raise any performance issue or other entitlement issue in its discussion of the bonus.

[6] I find the inclusion of these alleged performance issues cannot be saved by a suggestion now that they were intended to relate to the bonus claim when that is not what is alleged in the statement of defence.

[7] Paragraph 5 after the words “On or about August 10, 2020, the plaintiff’s employment was terminated” are hereby struck.

Paragraph 6 – The Pleading of the “Provision of a Reasonable Termination Arrangement”

[8] Paragraph 6 of the defence pleads the details of a settlement offer made to but not accepted by the plaintiff. Prior to the motion, the defendant agreed to remove the details of that settlement offer but proposed to replace them with a pleading stating that “Upon termination, CGT states that provision was made for a reasonable termination arrangement for the plaintiff”.

[9] The defendant argued that this reference to the settlement offer was necessary to respond to the plaintiff’s allegation in paragraph 9 and elsewhere of his statement of claim that his employment was terminated “without the provision of proper notice of termination or payment in lieu thereof at common law”. I disagree with the defendant’s position. The defendant has denied paragraph 9 of the claim in its statement of defence so it has addressed the issue.

[10] Further, its position is not that it provided proper notice of termination or pay in lieu but that it offered to do so. The court addressed the pleading of a severance offer in Ramos v. Hewlett-Packard (Canada) Co. 2017 ONSC 4413. The court held, as I would have here had the defendant attempted to sustain the original paragraph in its statement of defence, that the offer was made with the implied intention that it would not be disclosed to a court. But I rely on the balance of paragraph 11(v) of that decision where the court stated: “Hewlett-Packard ought not to be entitled to refer to the offer in its statement of defence simply because Ms. Ramos did not accept the offer.”

[11] I further agree that the offer is irrelevant. Hewlett-Packard’s defence contained similar language to that proposed by the defendant here, i.e. that it offered the employee “a reasonable severance package”. As the court held at paragraph 12 of that decision, “What constitutes reasonable notice will be an issue for the trial judge to determine; what Hewlett-Packard offered to Ms. Ramos is irrelevant” and the paragraph was struck on that basis. The defendant’s proposed amendment in this case to plead that it too make provision for a “reasonable termination arrangement” suffers a similar fate.

[12] The existing paragraph 6 of the statement of defence is struck without leave to amend it in the manner proposed by the defendant.

[13] The defendant shall serve a fresh as amended statement of defence so that the offending paragraphs are not included.

[14] The parties are to make good faith efforts to settle the costs of the motion. If they are unable to do so by 26 February 2021, they may each submit a costs outline no more than three pages in length along with a bill of costs to my assistant trial coordinator Ms. Meditskos at Christine.Meditskos@ontario.ca.

Master Jolley

Date: 1 February 2021