COURT FILE NO.: CV-18-595946-00CL DATE: 20220623

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CRAIG BOYER, Plaintiff

AND:

CALLIDUS CAPITAL CORPORATION, Defendant

BEFORE: Justice Cavanagh

COUNSEL: Peter H. Griffin and Jonathan McDaniel, for the Plaintiff David C. Moore and Kenneth G.G. Jones, for the Defendant

HEARD: April 21, 2022

ENDORSEMENT

Introduction

[1] The plaintiff, Craig Boyer, commenced this action against the defendant Callidus Capital Corporation (“Callidus”), his former employer, by a Statement of Claim issued on February 6, 2017. Callidus defended the action and made a counterclaim for damages (the “Counterclaim”).

[2] Mr. Boyer brought a motion under s. 137.1 of the Courts of Justice Act (“CJA”) for an order dismissing the Counterclaim on the ground that it is tactical litigation which limits freedom of expression on matters of public interest.

[3] As part of the same motion, Mr. Boyer moves in the Counterclaim for an order dismissing or striking out the Counterclaim on the grounds that it is frivolous, vexatious and an abuse of the process of the court, and that it discloses no reasonable cause of action. As part of the same motion, Mr. Boyer moves in the main action for (i) leave to amend his Statement of Claim to make a claim for payment of deferred bonus amounts, and (ii) summary judgment on all of his claims.

[4] Section 137.1(5) of the CJA provides that once a motion under s. 137.1 of the CJA is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

[5] For the following reasons:

a. I defer making a decision on Mr. Boyer’s motions in the Counterclaim under the Rules of Civil Procedure until after his motion under s. 137.1 of the CJA, including any appeal of the motion, has been finally disposed of, because of the prohibition in s. 137.1(5) of the CJA.

b. I dismiss Mr. Boyer’s motion under s. 137.1 of the CJA because he failed to discharge his burden of demonstrating that the Counterclaim arises from an expression made by him.

c. I dismiss Mr. Boyer’s motion for leave to amend the Statement of Claim.

d. I defer making a decision on Mr. Boyer’s motion for summary judgment in the main action until his motions made in the Counterclaim under the Rules of Civil Procedure are decided.

Procedural background

Mr. Boyer’s action and Callidus’ Counterclaim

[6] In the Statement of Claim, Mr. Boyer claims relief arising from his employment with Callidus, specifically, (a) an order requiring provision of a record of employment, (b) payment of accrued and unused vacation pay, (c) a declaration that all stock options held by him are fully vested, (d) a mandatory order requiring Callidus to deliver up to him his vested stock options, (e) damages for loss of health and other benefits.

[7] Mr. Boyer pleads that in the latter half of 2015, he and Callidus agreed that he would retire from his employment by the end of 2016.

[8] Mr. Boyer pleads that Callidus’ management style is driven by the Chief Executive Officer of Callidus’ parent company, Catalyst Capital Corporation (“Catalyst”), and that this management style focuses on taking hyper-aggressive positions with third parties and employees, berating and belittling employees, and, on occasion, physical abuse. Mr. Boyer pleads that he has been exposed to such abusive conduct that peaked in 2016. He pleads that as a result of the “poisoned workplace” that resulted from the alleged management conduct, he was constructively dismissed from his employment and he left Callidus by August 2016. Mr. Boyer pleads that Callidus failed to honour its commitments to pay vacation pay or to treat him fairly with respect to his vested stock options. He also claims damages for the lost value of the health and other benefits to which he was entitled as part of his employment.

[9] Callidus delivered a Statement of Defence and Counterclaim dated February 21, 2017. In this pleading, Callidus pleads that Mr. Boyer was employed by Callidus as a vice president and he was later promoted to being its chief underwriter. Callidus pleads Mr. Boyer’s responsibilities as chief underwriter and that, in this role, he reported to Callidus’ President and Chief Operating Officer.

[10] Callidus pleads that Mr. Boyer was a senior officer of Callidus who was in a position of trust and owed a fiduciary duty to Callidus. Callidus pleads that in 2015, Mr. Boyer advised Callidus that he intended to retire from his employment at the end of 2016 for personal and health-related reasons. Callidus pleads that during the transition of Mr. Boyer’s loan portfolio, it discovered information that raised concerns about Mr. Boyer’s performance and that it raised these concerns with Mr. Boyer. Callidus pleads that after doing so, Mr. Boyer began to allege that Callidus had created a “poisoned workplace” to attempt to divert attention from his own misconduct. Callidus pleads that in early August 2016, Mr. Boyer ceased performing his duties for Callidus and on September 6, 2016, without prior warning, Mr. Boyer submitted his resignation letter to Callidus.

[11] In its pleading, Callidus denies that it created a poisoned work environment for Mr. Boyer. Callidus denies that Mr. Boyer was constructively dismissed and pleads that he voluntarily resigned three months early when he was confronted with his own misconduct. Alternatively, Callidus pleads that Mr. Boyer’s conduct as described in the Counterclaim justifies his dismissal for cause. Callidus pleads that it is not obligated to provide any further compensation to Mr. Boyer.

[12] In its Counterclaim, Callidus claims damages in the amount of $150 million and a set-off of such damages against any damages awarded to Mr. Boyer.[^1] Callidus repeats the allegations in its Statement of Defence in support of the Counterclaim. Callidus pleads that Mr. Boyer was Callidus’ fiduciary and that its credit committee relied on him to provide fair, accurate and complete information about loans in his portfolio, and that he was required to be scrupulously honest and transparent with this credit committee. Callidus alleges that Mr. Boyer engaged in misconduct and breached his fiduciary duties to Callidus, failed to provide transparent reporting to the credit committee, and misled the credit committee on certain matters. Callidus alleges that Mr. Boyer purported to make substantial financial commitments on Callidus’ behalf knowing that he lacked authority to do so. Callidus alleges that Mr. Boyer’s misconduct and breach of duty involved at least three named companies in his loan portfolio. Callidus pleads that as a result of Mr. Boyer’s alleged breaches of his fiduciary duty and his wrongful resignation, Callidus has suffered damages in the amount pleaded.

Mr. Boyer’s motion under s. 137.1 of the CJA and under the Rules of Civil Procedure

[13] Mr. Boyer brings this motion for:

a. An Order dismissing the Counterclaim:

i. under rule 21.01(3)(d) of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process;

ii. further or in the alternative, under s. 137.1(3) of the Court of Justice Act as tactical litigation which limits freedom of expression on matters of public interest;

b. Further or in the alternative, an Order striking the Counterclaim without leave to amend:

i. under rule 25.11 as it is frivolous, vexatious and an abuse of process of the court;

ii. further or in the alternative, under subrule 21.01(1)(b) as it discloses no reasonable cause of action against Mr. Boyer and does not contain requisite particulars;

c. An Order in the main action granting Mr. Boyer leave to amend the Statement of Claim to add a claim for deferred bonus payments in the amount of $525,000; and

d. An Order in the main action granting summary judgment to Mr. Boyer.

Effect of statutory prohibition in s. 137.1(5) of the CJA

[14] Section 137.1(5) provides:

Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

[15] At the hearing of Mr. Boyer’s motion, I raised with counsel the effect on this motion of s. 137.1(5) of the Courts of Justice Act (“CJA”) and whether, by the operation of this provision, Mr. Boyer is precluded from asking me to hear and decide his motions to strike out the Counterclaim (on grounds other than s. 137.1 of the CJA) or his motions in the main action to amend his pleading and for summary judgment.

[16] Counsel for Mr. Boyer submitted that the comprehensive relief claimed in the notice of motion was requested to promote efficiency and that no objection had been raised by Callidus to having the motion heard and decided on all issues. Counsel for Callidus responded that he had not raised any objection to having all relief sought on the motion heard and decided together, and that he does not object to having the motion heard and decided on all issues.

[17] I agreed to hear submissions on all issues raised on Mr. Boyer’s motion without deciding at the hearing the effect of s. 137.1(5) on Mr. Boyer’s motion. After the oral hearing, I received additional written submissions from counsel for Mr. Boyer, including on the question I had raised in relation to s. 137.1(5).

[18] Mr. Boyer submits that s. 137.1(5) does not apply to the pleading amendment motion and the motion for summary judgment in the main action because the Counterclaim is a separate proceeding from the main action. I accept this submission.

[19] With respect to the relief sought in respect of the Counterclaim, Mr. Boyer submits that s. 137.1(5) does not preclude the Court from disposing of his motions to strike out the Counterclaim on grounds other than s. 137.1(5) of the CJA, based on jurisprudence from the Court of Appeal. In support of this submission, Mr. Boyer cites Zoutman v. Graham, 2020 ONCA 767 and Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71.

[20] In Zoutman, the Court of Appeal decided an appeal from a judgment dismissing the defendant’s anti-SLAPP motion under s. 137.1 of the CJA and a judgment for defamation granted on the plaintiff’s motion for summary judgment motion. The Court of Appeal addressed the defendant’s submission that the motion judge had no jurisdiction to rule on the summary judgment motion once he brought his anti-SLAPP motion because of s. 137.1(5) of the CJA. The Court of Appeal noted that the plaintiff had brought and scheduled his summary judgment motion well before the defendant brought his motion under s. 137.1 and that the two motions were ordered to be heard at the same time, without an appeal from that order. The Court of Appeal held that in this context, the plaintiff did not take any further step within the meaning of s. 137.1(5). The Court of Appeal noted that it will not be every case that the presence of a motion for summary judgment precludes a s. 137.1 motion, citing Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71.

[21] In Castellano, the Court of Appeal decided an appeal from the motion judge’s dismissal of the defendant’s anti-SLAPP motion as well as from the summary judgment granted on the plaintiff’s motion for summary judgment in the action for defamation. The anti-SLAPP motion was brought by way of cross-motion after the plaintiff’s motion for summary judgment had been brought. The plaintiff (respondent on the appeal) submitted that the defendant (appellant on the appeal) should not have been permitted to bring the anti-SLAPP motion after the motion for summary judgment motion was brought and that the motion judge erred in hearing the s. 137.1 motion at the same time as the summary judgment motion. The Court of Appeal, at para. 7, agreed with the appellant that the motion judge did not err in hearing the s. 137.1 motion at the same time as the summary judgment motion, holding that “[t]here is no statutory or other prohibition against proceeding in this manner”, and that it was within the discretion of the motion judge to determine the order in which the motions would be addressed. The Court of Appeal did not expressly address s. 137.1(5) of the CJA in its decision.

[22] Mr. Boyer also relies on the decision of Boswell J. in The Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 125. In West Face, Boswell J. addressed the jurisdictional issue raised by counsel for one of the parties in relation to s. 137.1(5) of the CJA. Justice Boswell held that the purpose of s. 137.1(5) is clear:

The prohibition on any further steps in a proceeding once an anti-SLAPP motion has been served prevents parties from engaging in extraneous litigation that may undermine the efficiency of the process established by section 137.1 or otherwise compound the mischief the anti-SLAPP provisions are designed to prevent. See United Soils Management Ltd. v. Mohammed, 2017 ONSC 904, para. 16.

[23] Justice Boswell held, at para. 197, that the plain wording of the s. 137.1(5) makes it apparent that it is non-discretionary and permits no exceptions. Justice Boswell held that it may be possible to draw a distinction between steps in the proceeding and steps in the motion and he concluded that steps in the proceeding are stayed by s. 137.1(5) whereas steps within the anti-SLAPP motion itself are permissible, in the court’s discretion, which “must be exercised having regard to the purposes and goals of the anti-SLAPP statutory regime – principally efficiency and economy”.

[24] In West Face, at paras. 203-207, Boswell J. considered the decision of the Court of Appeal in Zoutman. He noted that in that case, an order was made for the combined hearing and that it did not appear that any further steps were taken with respect to the summary judgment motion (brought first) between the time when the anti-SLAPP motion was served and when the combined motions were argued. Boswell J. considered that there was, in the result, arguably no breach of s. 137.1(5) and that on the facts in Zoutman, combining the two motions did not appear to run afoul of the legislative goals of efficiency and economy.

[25] The statutory prohibition imposed by s. 137.1(5) on a party from taking further steps in the proceeding once a motion under s. 137.1 is made is, as was held in West Face, non-discretionary and permits no exceptions. The fact that Mr. Boyer and Callidus consented to having the motion heard and decided in its entirety does not relieve against the statutory prohibition in s. 137.1(5).

[26] The circumstances in relation to Mr. Boyer’s motion are unlike those in Zoutman or Castellano where a plaintiff brought a motion for summary judgment and the defendant then brought a motion under s. 137.1. These decisions of the Court of Appeal involve materially different facts and, in my view, they do not permit me to exercise discretion to allow Mr. Boyer to proceed with further steps in the Counterclaim after bringing a motion under s. 137.1 of the CJA.

[27] Once Mr. Boyer made his motion under s. 137.1 for an order dismissing the Counterclaim, he is prohibited from taking further steps in the Counterclaim until his motion under s. 137.1, including any appeal, has been finally disposed of. Mr. Boyer’s motion to strike out the Counterclaim under rule 21.01(1)(b) on the ground that it discloses no reasonable cause of action, and his motion to dismiss the Counterclaim under rule 21.01(3)(d) on the ground that it is frivolous or vexatious or is otherwise an abuse of the process of the court, are not steps within the anti-SLAPP motion itself. Mr. Boyer is precluded from taking steps to advance his motions for this relief, and I lack discretion to allow the motions for this relief to proceed.

[28] Mr. Boyer submits that no steps were taken with respect to the Counterclaim that would not have been taken with respect to the anti-SLAPP motion. He submits that the affidavits and cross-examinations were relevant to the anti-SLAPP motion. I accept this submission.

[29] Mr. Boyer submits that the approach of bringing the s. 137.1 motion and the rule 21.01 motions together was followed to promote efficiency and economy in the litigation and to avoid having separate motions brought for similar relief based on the same evidentiary record (or, in the case of the rule 21.01(1)(b) motion, the Counterclaim). Mr. Boyer submits that I can alleviate any issues raised by s. 137.1(5) by addressing the relief sought in his motion serially.

[30] Mr. Boyer proposes that I decide the s. 137.1 motion first which, if granted, would dispense with any need to decide the motion under rule 25.11 or rule 21.01(3)(d) or the motion under rule 21.01(1)(b) because the Counterclaim will have been dismissed. If the s. 137.1 motion is dismissed, Mr. Boyer proposes that I should then decide the motion under rule 21.01(3) or rule 25.11 and the motion under rule 21.01(1)(b). Mr. Boyer proposes that no matter how the s. 137.1 motion is decided, I should decide the motion to amend the Statement of Claim and the summary judgment motion in the main action.

[31] I have considered the serial approach proposed by Mr. Boyer, and I have concluded that following this approach will not avoid the statutory prohibition imposed by s. 137.1(5) of the CJA from taking further steps in the Counterclaim. This provision is clear that the prohibition continues until any appeal of the motion has been finally disposed of.

[32] I conclude that I must first decide Mr. Boyer’s motion under s. 137.1 of the CJA. If an appeal from my decision is taken, any further steps in the Counterclaim, including decisions on Mr. Boyer’s motion under rule 21.01(3) and his motion under rule 21.01(1)(b), will await final disposition of the appeal. If there is no appeal, I will proceed to decide these motions in the Counterclaim.

[33] Section 137.1(5) of the CJA does not preclude Mr. Boyer from moving for relief in the main action.

Analysis

Should the Counterclaim be dismissed pursuant to s. 137.1 of the Courts of Justice Act?

[34] I first address Mr. Boyer’s motion brought pursuant to s. 137.1 of the Courts of Justice Act (“CJA”) for an order dismissing Callidus’ Counterclaim.

[35] Section 137.1(3) of the CJA provides:

On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

[36] The initial burden is on the moving party to demonstrate, on a balance of probabilities, that (i) the proceeding arises from an expression made by the moving party, regardless of the nature of the proceeding, and (ii) such expression relates to a matter of public interest. This is a threshold burden, which means that it is necessary for the moving party to meet this burden in order to even proceed to s. 137.1(4) for the ultimate determination of whether the proceeding should be dismissed. See 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at paras. 20-23 and 31.

[37] If the threshold burden on the moving party is met, then s. 137.1(4) will be triggered and the burden will shift to the responding party to show that its underlying proceeding should not be dismissed. See Pointes, at para. 31.

[38] Mr. Boyer submits that in his Statement of Claim in the main action, he made expressions about the business practices and abusive behaviour of Callidus and its principal executives and the poisoned workplace at Callidus.

[39] In his Statement of Claim, at paras. 7-8 and 11-13, Mr. Boyer pleads:

7. The management style of the defendant is driven by the Chief Executive Officer of Catalyst Capital Corporation, Newton Glassman.

8. Unfortunately, that management style focuses on:

(a) Taking hyper-aggressive positions with third parties and employees;

(b) Berating and belittling employees by email and verbally; and

(c) On occasion, physical abuse.

9. As a result, the plaintiff has been exposed to all three on an unrelenting basis.

10. The abusive management conduct, however, peaked in 2016 with:

(a) Abusive email and verbal treatment of the plaintiff by the CEO;

(b) Participating in a meeting where a senior officer of the defendant’s parent physically attacked the plaintiff’s immediate superior; and

(c) Unrelenting criticism of the plaintiff once his willingness to continue in his employment situation became obvious to the CEO.

12. As a result of this poisoned workplace, the employment of the plaintiff was constructively terminated, as he could no longer continue in his employment. The defendant announced that the plaintiff had retired.

13. The plaintiff left Callidus by August 31, 2016.

[40] The term “expression” is defined in s. 137.1(2) of the CJA to mean “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity”.

[41] In Joshi v. Allstate Insurance Company of Canada, 2019 ONSC 4382, the motion judge, at para. 15, accepted that pleaded statements made by a party may be “expressions” within the meaning of s. 137.1(2). In Joshi, the motion judge accepted that the pleaded statements were expressions.

[42] I accept that Mr. Boyer’s pleaded statements qualify as expressions under the broad definition of the term “expression” in the CJA.

[43] In Pointes, at paras. 26 and 28, the Supreme Court of Canada held that the words “relates to a matter of public interest” should be given a broad and liberal interpretation, consistent with the legislative purpose of s. 137.1(3). The Court held, at paras. 24-25, citing Grant v. Torstar Corp., 2009 SCC 61, that when determining what constitutes a “matter of public interest”, “[t]he expression should be assessed ‘as a whole’, and it must be asked whether ‘some segment of the community would have a genuine interest in receiving information on the subject’”.

[44] Mr. Boyer submits that the statements in his Statement of Claim are expressions that relate to the business practices, poisonous work environment, and abusive conduct of what was at the relevant time one of Canada’s most influential, publicly-traded lenders to distressed businesses, and its principals. Mr. Boyer relies on evidence that his allegations of a “poisoned workplace” and the behaviour of Catalyst’s CEO were the subject of a news report in The Globe and Mail.

[45] In The Catalyst Capital Group Inc. and Callidus Capital Corporation v. West Face Capital Inc. et al., 2021 ONSC 7957, a motion under s. 137.1 of the CJA in which Catalyst and Callidus were responding parties, the parties agreed that the proceedings in question arise from expressions. The question to be determined was whether the referenced expressions relate to a matter of public interest. When he addressed this question, McEwen J. noted that while Catalyst is a private company, Callidus was a publicly traded company at the time of the expressions at issue in that case, and he found that the Catalyst parties’ business practices (around which whistleblower complaints and a published news article revolved) related to a matter of public interest.

[46] I accept that the business practices of Callidus and Catalyst are matters of public interest to the investing public, and that the expressions in the Statement of Claim “relate to a matter of public interest” when these words are given a broad and liberal interpretation.

[47] I now address whether Mr. Boyer has shown that the Counterclaim “arises from” his pleaded statements concerning the alleged abusive management conduct of Callidus that, he asserts, is driven by the CEO of Catalyst. To do so, I consider Mr. Boyer’s claim as pleaded (in which the expressions upon which Mr. Boyer relies are found) and the Counterclaim. I summarized these pleadings above.

[48] Mr. Boyer submits that the Counterclaim was brought to silence Mr. Boyer’s expressions about serious issues at Callidus as pleaded in the Statement of Claim. He submits that the Counterclaim is “thinly pleaded” and includes a large and unjustified damages claim of $150 million. Mr. Boyer contends that Callidus’ purpose in bringing the Counterclaim is not to recover any losses attributable to Mr. Boyer’s conduct, but to intimidate him into silence. Mr. Boyer submits that the Counterclaim arises from his expressions made in the Statement of Claim, in that the Counterclaim was a direct response to such expressions.

[49] In Pointes, at para. 24, Côté J., writing for the Court, held that the term “arises from” implies an element of causality, and the moving party must show that the expression is somehow causally related to the proceeding.[^2] Côté J. observed that many different types of proceedings can arise from an expression, and a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework. The Court held that proceedings arising from an expression are not limited to those directly concerned with the expression, such as defamation suits. Côté J. gave as a good example of a type of proceeding that is not a defamation suit, but nonetheless arises from an expression and falls within the ambit of s. 137.1(3), the breach of contract claim made in the underlying proceeding that was “premised” on an expression made by the defendant.[^3]

[50] Although Callidus, in its Statement of Defence and Counterclaim, denies Mr. Boyer’s pleaded statements alleging a poisoned work environment at Callidus resulting from its abusive management style, it does not make a claim in the Counterclaim that is premised, even in part, on these expressions. The Counterclaim is premised on Callidus’ assertions that (i) Mr. Boyer engaged in misconduct and breached his fiduciary duties to Callidus by allegedly failing to provide honest and transparent reporting to Callidus’ credit committee and by allegedly misleading the credit committee on certain matters, involving three companies in his loan portfolio, and (ii) Mr. Boyer resigned without adequate notice to Callidus.

[51] Even if I were to accept that the Counterclaim is, as Mr. Boyer contends, “thinly pleaded”, and even having regard to the very large claim for damages as pleaded, these matters do not show a causal relationship between the Mr. Boyer’s expressions and the Counterclaim.

[52] Mr. Boyer has not shown that there is a nexus, or a causal relationship, between the expressions pleaded in his Statement of Claim and the Counterclaim.

[53] I conclude that Mr. Boyer has not satisfied his burden at the threshold stage of the inquiry under s. 137.1(3) of the CJA because he has failed to demonstrate that the Counterclaim arises from an expression made by him.

[54] As a result of my decision that Mr. Boyer has not met his threshold burden under s. 137.1(3) of the CJA, it is not necessary for me to address whether Callidus has met its burden under s. 137.1(4) of the CJA.

Should Mr. Boyer’s motion for leave to amend the Statement of Claim be granted?

[55] Mr. Boyer seeks leave to amend paragraph 1 of the Statement of Claim to make a claim for payment of deferred bonus payments in the amount of $525,000. In addition, he seeks leave to add the following paragraphs to his Statement of Claim:

(1) In 2014 and 2015, the Plaintiff received annual bonuses equivalent to three times his base salary. In 2014 his base salary was approximately $215,000, and in 2015 his base salary was approximately $220,000.

(2) Callidus’ practice in 2014 and 2015 was to hold back a portion of the Plaintiff’s salary and disperse half of the amount held back to the Plaintiff in each of the following two years. In 2014 Callidus held back 40% of the Plaintiff’s bonus for that year, and paid half of that hold back to the Plaintiff in 2015. Callidus did not pay the remaining half of the holdback. In 2015 Callidus held back 60% of the Plaintiff’s bonus for that year, and did not pay any of that hold back to the Plaintiff.

(3) As such, Callidus owes the Plaintiff $525,000 in unpaid deferred bonus amounts.

[56] Mr. Boyer relies on rule 26.01 of the Rules of Civil Procedure. He submits that the proposed amendments will not prejudice Callidus. He submits that the proposed amendments only specify unpaid bonus amounts owing and the basis for seeking these amounts as part of the pre-existing wrongful dismissal claim. Mr. Boyer submits that the proposed amendments do not add a new cause of action.

[57] Callidus submits that the limitation period for Mr. Boyer to make a claim for payment of deferred bonus amounts based on an alleged breach of his employment agreement has passed and that this claim is now statute barred. As a result, there is a presumption of prejudice and the requested amendments should not be allowed.

[58] Under s. 4 of the Limitations Act, a proceeding may not be commenced more than two years after the claim is discovered. A “claim” is defined in s. 1 to mean “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”.

[59] Under section 5(1) of the Limitations Act, a claim is discovered on the day on which the person with the claim first knew (or reasonably ought to have known): (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim 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.

[60] On September 6, 2016, Mr. Boyer sent a letter to David Reese, the President of Callidus, advising that he will be departing Callidus that day. In this letter, Mr. Boyer notified Callidus that it had failed to put in place the necessary agreements to fairly compensate him for “those elements of deferred compensation ...” which, he maintained, were an essential component of his compensation. In this letter, Mr. Boyer also stated that Callidus had refused to pay his accumulated vacation pay and that it had failed to put in place the necessary agreements to fairly compensate him for unvested options which are an essential component of his compensation.

[61] Mr. Boyer discovered his claim to payment of deferred bonus amounts by no later than September 6, 2016.

[62] Mr. Boyer’s motion for leave to amend the Statement of Claim to add a claim for payment of deferred compensation amounts was by Notice of Motion dated April 20, 2020. This date is more than two years after Mr. Boyer discovered this claim.

[63] Mr. Boyer seeks leave to plead the facts upon which his claim for payment of deferred bonus amounts is based. Mr. Boyer’s claim does not arise out of the facts pleaded in the Statement of Claim. This claim was statute barred when Mr. Boyer moved for leave to amend his Statement of Claim. Callidus would be prejudiced by the addition of a new claim that is statute barred. See Farmers Oil and Gas Inc. v. Ontario (Natural Resources), 2016 ONSC 6359, at paras. 12-22.

[64] I deny leave to Mr. Boyer to amend the Statement of Claim to add a claim for payment of deferred bonus amounts.

Mr. Boyer’s motion for summary judgment in the main action

[65] As a part of the relief he seeks on his motion, Mr. Boyer moves for summary judgment in the main action. He submits that the Counterclaim should be dismissed or struck out, and that there is no genuine issue requiring a trial in the main action.

[66] In the Counterclaim, Callidus claims a right of set-off of any damages awarded to Mr. Boyer against damages awarded to Callidus.

[67] Mr. Boyer’s motion to dismiss the Counterclaim under rules 21.01(3)(d) and 25.11 on the ground that it is frivolous, vexatious and an abuse of the process of the court and his motion to strike out the Counterclaim under rule 21.01(1)(b) on the ground that it discloses no reasonable cause of action have not been decided. Whether or not the Counterclaim is dismissed or struck out on these motions is a relevant consideration on Mr. Boyer’s motion for summary judgment in the main action. In my view, it would not be just or proper for me to decide the motion for summary judgment in the main action until I have decided whether the Counterclaim should be dismissed or struck out.

[68] I defer making a decision on Mr. Boyer’s motion for summary judgment until after his motion to dismiss or strike out the Counterclaim under the Rules of Civil Procedure has been decided.

Disposition

[69] For these reasons:

a. Mr. Boyer’s motion to dismiss the Counterclaim under s. 137.1 of the Courts of Justice Act is dismissed.

b. Mr. Boyer’s motion for leave to amend the Statement of Claim to make a claim for payment of deferred bonus amounts is dismissed.

c. Mr. Boyer’s motion to dismiss or to strike out the Counterclaim under the Rules of Civil Procedure will be decided after his motion under s. 137.1, including any appeal of the motion, has been finally disposed of.

d. Mr. Boyer’s motion for summary judgment in the main action will be decided after a decision is made on his motions to dismiss or to strike out the Counterclaim under the Rules.

[70] I will address the costs of Mr. Boyer’s motion after the balance of the relief he seeks has been decided.

Cavanagh J.

Date: June 23, 2022

[^1]: After this motion was brought, Callidus confirmed that it intends to amend its Counterclaim to reduce the claim for damages to $3 million. Because this motion seeks, among other relief, an order dismissing the Counterclaim pursuant to s. 137.1(3) of the Courts of Justice Act, no motion to amend the Counterclaim is permissible until the motion, including any appeal, has been finally disposed of: section 137.1(5) of the CJA.

[^2]: At footnote 1, Côté J. wrote that she does not believe that a precise level of causation needs to be identified, as courts have consistently been able to grapple with and apply the “arising from” standard.

[^3]: In the underlying claim in Pointes, the claimant was a land developer and the defendants were a not-for-profit corporation and six of its members. The developer claimed that the testimony of the association’s president at a public hearing in opposition to a proposed development breached an agreement between the developer and the association. The developer sued for damages for breach of contract. Côté J., at para. 102, held that the breach of contract action was premised on an alleged breach of the agreement resulting from the expression at the public hearing and there is thus a clear nexus between the expression and the proceeding.