Court File and Parties

Court File No.: CV-22-00677148-0000 Date: 2022-06-24 Superior Court of Justice - Ontario

Re: Alexis Girgis, Plaintiff And: Raymond Zar, Zar Advisory Corporation and Roehampton Capital, Defendants

Before: Vermette J.

Counsel: Muneeza Sheikh and Katherine Golobic, for the Plaintiff David Greenwood, for the Defendants

Heard: June 20, 2022

Endorsement

[1] The Defendant Roehampton Capital ("Roehampton") brings a motion for partial summary judgment asking for an order dismissing the action as against it.

[2] In my view, this case is not one of the rare cases where partial summary judgment is appropriate. Therefore, Roehampton's motion is dismissed.

A. FACTUAL BACKGROUND

1. The parties

[3] The Plaintiff is 25 years old. He accepted an offer of employment from the Defendant Zar Advisory Corporation ("ZAC") on September 28, 2021. His title was "Chief of Staff". The period of employment that is the subject matter of this action is September 28 to December 24, 2021. At the beginning of his employment, the Plaintiff was working on a part-time basis. He became a full-time employee in early November 2021. While the Plaintiff's contract of employment was with ZAC, his position is that both ZAC and Roehampton were his common employers.

[4] The Defendant ZAC provides advisory and consulting services to companies in the real estate industry. Roehampton is ZAC's largest client. The Defendant Raymond Zar is the sole shareholder and only director of ZAC. He is also its Chief Executive Officer ("CEO").

[5] Roehampton is a private equity firm that owns, develops and manages commercial, residential and hospitality real estate in Canada and the United States. Mr. Zar is the sole director of Roehampton, but he is not its sole shareholder. While Mr. Zar gave evidence that ZAC does not own any shares of Roehampton and Roehampton does not own any shares of ZAC, he has not provided evidence regarding the other shareholders of Roehampton. The Plaintiff has alleged that Mr. Zar owns 60% of Roehampton's shares.

[6] Mr. Zar's evidence is that Roehampton engages ZAC to manage the business of Roehampton and that as part of ZAC's management services, ZAC supplies Mr. Zar to fill the role of Roehampton's CEO. Mr. Zar states that in the role of CEO of Roehampton, he is required to report to Roehampton's shareholders.

2. The action

[7] The Statement of Claim was issued on February 18, 2022. The Statement of Defence is dated May 11, 2022. The action is still at a very early stage as there has been no documentary production and no examinations for discovery.

[8] In the Statement of Claim, the Plaintiff seeks the following relief as against ZAC and Roehampton:

a. wrongful dismissal damages in the amount of $133,333.33 representing what the Plaintiff would have earned over the 16-month reasonable notice period;

b. damages for lost wages and injury to dignity, feelings and self-respect under the Human Rights Code, R.S.O. 1990, c. H.19 ("Code") in the amount of $200,000;

c. vicarious liability for the tort of intentional infliction of mental suffering committed by the Defendant Raymond Zar; and

d. bad faith, aggravated and punitive damages in the amount of $500,000.

[9] The Plaintiff also seeks damages against Mr. Zar for intentional infliction of mental suffering, injury to dignity, feelings and self-respect under the Code, and bad faith, aggravated and punitive damages.

[10] As stated above, the Plaintiff pleads that both ZAC and Roehampton were his common employers. He relies on a number of alleged material facts in support of this position, including the following:

a. Both companies share the same address.

b. Mr. Zar is the sole shareholder and director of ZAC, and is the majority shareholder (60%), sole director, and CEO of Roehampton.

c. The Plaintiff was provided with Roehampton business cards, as well as a Roehampton e-mail address.

d. Most of the work completed by the Plaintiff during his tenure was for Roehampton.

[11] The Plaintiff alleges harassment and sexual harassment on the part of Mr. Zar. He also alleges that ZAC and Roehampton: (a) owed him a duty of care, including a duty to provide him with a workplace free of harassment; and (b) are liable in negligence for Mr. Zar's harassment of the Plaintiff as they knew of and facilitated Mr. Zar's perpetration of harassment when he conducted Roehampton's and ZAC's business. The Plaintiff pleads that ZAC and Roehampton failed to establish or enforce any or adequate protocols, policies or regulations with respect to standards of conduct, supervision and control of their employees and agents, including Mr. Zar. The Plaintiff also pleads that ZAC and Roehampton are vicariously liable to the Plaintiff for Mr. Zar's tortious conduct and violations of the Code.

[12] In their Statement of Defence, the Defendants plead that Roehampton is not a proper party to the action, as the Plaintiff had no employment relationship with it. They deny that Roehampton was the Plaintiff's co-employer or common employer and they rely on the following material facts, among others:

a. The Plaintiff's employment agreement clearly states that ZAC was the employer.

b. The Plaintiff was paid by ZAC.

c. The Plaintiff's office was at premises leased by ZAC.

d. There is no interdependency between ZAC and Roehampton. ZAC provides consulting services to Roehampton and the Plaintiff was one of the employees of ZAC that assisted ZAC in providing those consulting services.

[13] The Defendants deny that the Plaintiff was terminated from his employment, either factually or constructively, and that he is entitled to any damages resulting from the end of his employment. They allege that the Plaintiff chose to resign without any advance notice. The Defendants also deny that the Plaintiff was subjected to any inappropriate conduct or sexual harassment during his employment. They plead that the Plaintiff was not subjected to any improper treatment that could give rise to damages for intentional infliction of mental suffering.

[14] With respect to the claim for negligence and vicarious liability, the Defendants state the following:

The corporate defendants deny that they condoned and/or facilitated any improper conduct. The corporate defendants further deny that they are vicariously liable for any conduct alleged in the Statement of Claim.

To the extent that there was any inappropriate conduct, the existence of which is denied, that conduct was carried out without the corporate defendants' knowledge.

Moreover, the corporate defendants deny that they were negligent in any manner whatsoever.

3. Attendance at Civil Practice Court on April 26, 2022

[15] On April 26, 2022, more than two weeks before the delivery of the Statement of Defence, counsel for the parties attended at Civil Practice Court before Justice Koehnen to schedule this motion. Justice Koehnen's endorsement reads as follows:

The moving parties seeks [sic] a 2 hour motion for summary judgment. The responding party agrees that summary judgment is an appropriate way in which to address the issues between them.

A two hour hearing is set for June 20, 2022 in accordance with the timetable below.

[16] Justice Koehnen's endorsement suggests that the parties did not bring to his attention the fact that this motion was for partial summary judgment.

4. Evidence on this motion

[17] Roehampton's evidence and submissions on the motion were focused on the issue of whether Roehampton was a common employer of the Plaintiff together with ZAC. Roehampton relies on the affidavit evidence of Mr. Zar.

[18] Mr. Zar's evidence regarding the Plaintiff's role with ZAC is as follows:

The Plaintiff's title of Chief of Staff was a bit of a misnomer and an inside joke. The reality is that the Plaintiff and I were the only employees of ZAC.

The Plaintiff's job involved assisting me in providing services to clients of ZAC including Roehampton.

Since Roehampton is ZAC's largest client, in terms of revenue and time spent, it is not surprising that a significant portion of the Plaintiff's time was dedicated to servicing Roehampton properties.

[19] According to Mr. Zar, Roehampton does not have any employees and utilizes the services of approximately four contractors. The contractors in issue, which are not identified, are said not to be employees of ZAC and not to provide services to ZAC.

[20] The Plaintiff's evidence is that, aside from assisting Mr. Zar with personal matters, he does not recall being presented with any task during his employment that did not have ties to Roehampton's business. In his affidavit, he lists eleven specific tasks that were part of his work and that he did for Roehampton's benefit.

[21] In his reply affidavit, Mr. Zar acknowledges that the Plaintiff undertook many of the tasks described in the Plaintiff's affidavit, but he states that this work was performed by the Plaintiff in his capacity as an employee of ZAC.

B. PLAINTIFF'S REQUEST FOR AN ADJOURNMENT

[22] At the beginning of the hearing, the Plaintiff requested an adjournment of the motion, which was opposed by Roehampton. I denied the adjournment request.

[23] The main ground for the Plaintiff's request was that the record was incomplete as cross-examinations had not been held. However, the timetable that was ordered by Justice Koehnen on April 26, 2022 provided that cross-examinations were to be completed by May 27, 2022. The Plaintiff did not provide any reasonable explanation as to why he did not take any steps before May 27, 2022 to schedule cross-examinations. The issue of cross-examinations was raised for the first time in writing by the Plaintiff on June 9, 2022, i.e. the day before Roehampton's Factum was to be delivered pursuant to the timetable. It is unclear whether there were prior calls and/or voicemail messages from the Plaintiff's counsel to the Defendants' counsel, but the evidence adduced by counsel for the Defendants is to the effect that searches were conducted and there is no evidence that counsel for the Plaintiff or her office contacted counsel for the Defendants.

[24] Contrary to what was argued by counsel for the Plaintiff, there was no burden on Roehampton to indicate that it did not wish to conduct a cross-examination. The burden is on a party who wants to conduct a cross-examination to take the necessary steps to do so in accordance with the court-ordered timetable.

[25] The Plaintiff referred me to a number of cases where adjournments were granted with respect to motions for summary judgment, but there was no court-ordered timetable in any of these cases.

[26] The Plaintiff argues that the Defendants cannot rely on the timetable as they breached it by delivering reply materials that were not contemplated in the timetable. The reply affidavit in issue was delivered five days after the delivery of the Plaintiff's responding materials and two days before the deadline to complete cross-examinations. It was very short (two pages), attached no exhibits and did not raise new issues. The delivery of the reply affidavit did not cause any delay, does not explain the Plaintiff's failure to schedule cross-examinations, and could not be the basis for an adjournment. Therefore, I do not accept that the delivery of reply materials somehow supports the Plaintiff's request for an adjournment, which would unnecessarily delay this matter.

[27] Court-ordered timetables are court orders and, consequently, they must be complied with unless they are varied. Given that no valid explanation was provided for the failure to comply with the timetable ordered in this case and that the record was otherwise complete (aside from cross-examinations), the request to adjourn the motion was denied.

C. DISCUSSION

1. Principles applicable to motions for partial summary judgment

[28] As stated above, this is a motion for partial summary judgment. If Roehampton's motion were to be granted, the Plaintiff's claims would continue against the other two Defendants, Mr. Zar and ZAC.

[29] The courts have articulated many concerns regarding motions for partial summary judgment. As pointed out by Karakatsanis J. in Hryniak v. Mauldin, 2014 SCC 7 at para. 60, partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. The Court of Appeal has also held that "[p]artial summary judgment is a rare procedure that should be sparingly invoked" (Way v. Schembri, 2020 ONCA 691 at para. 16), and that it should be reserved for an issue or issues that: (a) may be readily bifurcated without causing overlap that could lead to inefficient duplication or a material risk of inconsistent findings or outcomes, and (b) may be dealt with expeditiously and in a cost effective manner (Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 34, and Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369 at paras. 14, 18).

[30] In Malik v. Attia, 2020 ONCA 787 at para. 62 ("Malik"), the Court of Appeal stated that when faced with a request to hear a motion for partial summary judgment, a motion judge should ask counsel to:

a. demonstrate that dividing the determination of the case into several parts will prove cheaper for the parties;

b. show how partial summary judgment will get the parties' case in and out of the court system more quickly; and

c. establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[31] Thus, before addressing the merits of Roehampton's motion for summary judgment, I must determine whether this is an appropriate case for partial summary judgment.

2. Positions of the parties on whether this is an appropriate case for partial summary judgment

[32] Even though the Plaintiff identifies the fact that this motion is for partial summary judgment in his Factum, neither the Plaintiff nor the Defendants address in their motion materials the issue of whether this is an appropriate case for partial summary judgment and the case law that deals with this issue.

[33] As a result, before the hearing, I sent an e-mail to counsel asking them to be prepared to address at the hearing the issue of whether partial summary judgment was appropriate in this case. I also referred them to a few cases where the Court of Appeal articulated concerns regarding motions for partial summary judgment.

[34] Roehampton's position is that this is an appropriate case for partial summary judgment and that the concerns articulated in the case law with respect to partial summary judgment are not present in this case. Roehampton states that summary judgment would dispose of all the issues that concern it as a Defendant. It argues that if it was not a common employer, there is no basis for liability and, therefore, no duplication and no material risk of inconsistent findings. Roehampton submits that partial summary judgment is a proportionate way of dealing with this case so as to focus on the "real" Defendants and avoid unfairness to Roehampton.

[35] Despite the fact that he stated in Civil Practice Court that a motion for summary judgment was an appropriate way in which to address the issues between the parties, the Plaintiff now takes the position that summary judgment is inappropriate in this case, both in general and because this is a motion for partial summary judgment. The Plaintiff argues that partial summary judgment is a rare procedure that is not appropriate in this case, as the issues cannot be readily bifurcated and the evidentiary record is incomplete.

[36] Addressing the three questions set out by the Court of Appeal in Malik, the Plaintiff submits that: (a) dividing the determination of this case into several parts would not prove cheaper for the parties; (b) partial summary judgment would not get the parties' case in and out of the court system more quickly; and (c) partial summary judgment could result in inconsistent findings by the multiple judges who will touch the divided case. The Plaintiff points out, among other things, that the same factual allegations will be dealt with at trial as a result of the allegations against ZAC, and he argues that it would be more cost-effective to have a trial based on complete evidence. According to the Plaintiff, this motion required additional time, efforts and expenses and accomplished the opposite result than the one contemplated by the Court of Appeal in Malik. Finally, the Plaintiff notes that production of documents and discovery have not occurred in this case, that the evidentiary record on this motion is light and incomplete, and that he does not know what would be available at trial.

3. Analysis

[37] In my view, this case is not one of the rare cases where partial summary judgment is appropriate.

[38] The claims against Roehampton and the claims against the other Defendants are factually intertwined and the latter are not readily separable from the former. The overlap in the facts that underlie the two sets of claims is significant. As a result, there is the very real possibility that conclusions reached by a trial judge could conflict with the result reached on a motion for partial summary judgment. This is especially the case given that the parties' evidence and accounts differ on certain important factual issues.

[39] Further, I find that the other problems raised by partial summary judgment that were identified by the Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783 at paras. 29-33 are present in this case. While the delay and expenses associated with this motion are not that significant compared to other cases, the record available at the hearing of the motion was not as expansive as the record that will be available at trial. I agree with the Plaintiff that the evidentiary record was very "light" on this motion, especially given that no cross-examinations took place and, therefore, no additional documents were sought from the affiants. While it could be argued that giving weight to this factor flies in the face of the requirement to put one's best foot forward on a motion for summary judgment, this factor is a legitimate consideration for the Court given that it points to a situation that increases the danger of inconsistent findings.

[40] While one could argue that the harm has already been done in terms of delay and costs, and that not ruling on the motion for summary judgment will only compound it, this does not address or ameliorate the material risk of inconsistent findings or outcomes.

[41] In light of the foregoing, I also find that the criteria set out in Malik at paragraph 62 are not met. In particular, given that the same facts will need to be proven at trial through the same witnesses, I do not think that partial summary judgment will get the case in and out of the court system more quickly and in a way that is significantly cheaper for the parties. Further, as stated above, Roehampton has failed to establish that partial summary judgment would not result in inconsistent findings by the multiple judges who will touch the divided case.

[42] Since the Plaintiff's claims against Roehampton are not readily separable from the balance of the Plaintiff's case against the other Defendants, I conclude that this case is not one of the rare cases where partial summary judgment is appropriate.

[43] There is another reason for dismissing Roehampton's motion: Roehampton has failed to properly address in both its evidence and submissions the Plaintiff's claim in negligence against it. Even if the Court were to accept that Roehampton was not a common employer, this does not exclude the possibility that Roehampton owed a duty of care to the Plaintiff in the circumstances of this case. Further, there is insufficient evidence regarding the relationship between Roehampton and Mr. Zar to address the issue of whether Roehampton could be vicariously liable for Mr. Zar's actions. Thus, I am not able on this motion to make the necessary findings of facts and to apply the law to the facts with respect to the negligence issues. Consequently, Roehampton has failed to discharge its evidentiary burden of proving that there is no genuine issue requiring a trial for its resolution: see Hryniak v. Mauldin, 2014 SCC 7 at paras. 49-50 and Kinectrics Inc. v. FCL Fisker Customs & Logistics Inc., 2020 ONSC 6748 at paras. 33-35. For the same reasons as outlined above, it would not be appropriate to deal only with the issue of common employer on this motion.

D. CONCLUSION

[44] Accordingly, Roehampton's motion is dismissed.

[45] In accordance with Hryniak v. Mauldin, 2014 SCC 7 at para. 78, I seize myself of this matter subject to my availability on the civil list, which may be determined through the Toronto civil motion/trial office.

[46] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this decision. The Defendants shall deliver their responding submissions (with the same page limit) within 14 days of their receipt of the Plaintiff's submissions. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J.

Date: June 24, 2022