COURT FILE NO.: CV-21-00663382-0000
DATE: 20220728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADESIMBO ADEJUYIGBE
Plaintiff
– and –
TORSTAR ET AL.
Defendants
Osborne G. Barnwell for the Plaintiff, Responding Party
Julie O’Donnell and Brandin O’Connor, for the Defendants, Moving Parties
HEARD: March 29, 2022
vella j.
REASONS FOR DECISION
[1] The Plaintiff, Ms. Adejuyigbe, was formerly an employee of Torstar. She was dismissed without cause in 2017. She was provided with a severance package and signed a full and final Release on May 31, 2017.
[2] However, three years later, Ms. Adejuyigbe wrote to Torstar’s Chief Executive Officer, Mr. Boynton, advising him that she felt she had been discriminated against during the course of her employment, and demanding compensation.
[3] Mr. Boynton responded, in writing, that he would refer Ms. Adejuyigbe’s demand to his legal counsel for response.
[4] Ms. Adejuyigbe’s claim is premised on her position that the letters exchanged between her and Mr. Boynton comprise a binding agreement by Mr. Boynton, on behalf of Torstar, to pay further compensation to her based on her allegations of anti-black racial discrimination she allegedly suffered while an employee at Torstar over an approximate 5 year period from 2012 to the time of her dismissal in 2017.
[5] The Defendants state that the letters do not constitute a binding promise to pay, and the Release is a full answer to Ms. Adejuyigbe’s claim. Furthermore, the cause of action is barred by operation of the Limitations Act, 2002 and are an abuse of process.
[6] The Defendants move to strike Ms. Adejuyigbe’s statement of claim in its entirety under rr. 21.01(1)(b), 21.01(3)(d), 21.01(1)(a), r. 25.11 and/or r. 25.06.
[7] For the reasons that follow, the motion is granted as it is plain and obvious that the statement of claim fails to disclose any reasonable cause of action against any of the defendants. Accordingly, the statement of claim is struck in its entirety without leave to amend.
Issues:
[8] The issues to be decided are:
(a) Does the statement of claim disclose a reasonable cause of action? If it does, then,
(b) Should the statement of claim be struck as being frivolous, vexatious or an abuse of process? If it should not, then,
(c) Are the causes of action barred by operation of the Limitations Act, 2002? If they are not, then,
(d) Does the statement of claim fail to comply with the rules of pleading?
Analysis
Issue 1: Does the statement of claim disclose a reasonable cause of action?
[9] Under r. 21.01(1)(b), no evidence is admissible. Rather, the facts as pleaded by Ms. Adejuyigbe are assumed to be true. However, documents that are incorporated by reference in the statement of claim are deemed to be a part of the statement of claim (Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, 148 O.R. (3d) 115, at para. 44, leave to appeal refused, [2019] S.C.C.A. No. 409).
[10] The issue for this court to determine is whether it is plain and obvious that Ms. Adejuyigbe’s claim has no reasonable prospect of success (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at. para. 17).
[11] The key letters in question, being Ms. Adejuyigbe’s letter to Mr. Boynton dated June 15, 2020 setting out her complaint of anti-black racism and Mr. Boynton’s responding letter dated June 17, 2020, Ms. Adejuyigbe’s acknowledgement letter dated June 15 [sic], 2020 and Mr. Boynton’s further letter dated August 12, 2020 are all pleaded by Ms. Adejuyigbe’s and thus before this court (e.g., at paras. 21, 23, 25 – 27). In addition, the statement of claim pleads the full and final Release signed by Ms. Adejuyigbe on May 31, 2017 and the covering letter from Torstar dated May 30, 2017 also signed by Ms. Adejuyigbe (e.g.: at paras. 15 and 28).
[12] The letters, on their face, do not provide the constituent elements of an enforceable contract. They do not address consideration, nor do they address a key element of the alleged contract being the amount of compensation that is at the heart of this alleged promise to pay something in the future.
[13] The only “promise” made by Mr. Boynton in his June 17, 2020 letter was to “personally speak to all the people mentioned in your letter” referencing the people and actions advised by Ms. Adejuyigbe in her first June 15 letter as constituting a pattern of anti-black racism allegedly experienced by her while an employee at Torstar, and to make Torstar a better work environment for its current employees.
[14] In Mr. Boynton’s August 12, 2020 letter in response to Ms. Adejuyigbe’s second June 15 letter, he stated, in part, that “given that you have now raised the issue of financial compensation in your letter, that dialogue is perhaps one best conducted through legal counsel. I ask that your legal counsel reach out to our external counsel…”.
[15] As a result, Ms. Adejuyigbe retained her own lawyer, and also took some steps to support her claim including retaining an expert. She advised Mr. Boynton by email dated August 14, 2020 that she had indeed contacted a lawyer who will contact Torstar’s lawyer.
[16] Furthermore, Ms. Adejuyigbe already received consideration relating to all matters arising from her employment with, and termination by, Torstar as evidenced by the pleaded Release. This Release may or may not have been relevant to a claim before the Ontario Human Rights Tribunal, but this issue is not before me, and the enforceability of the Release was not raised by Ms. Adejuyigbe.
[17] Perhaps telling is the fact that Ms. Adejuyigbe pleads at para. 28 of her claim that after receiving the August 12 letter from Mr. Boynton, “she proceeded with the belief that this was a promise to re-open her Release signed May 2017” and “[g]iven the then environment of righting wrongs by businesses, employers and government [in the wake of the George Floyd killing by police on May 25, 2020, also pleaded], the plaintiff felt confident that this promise was genuine, and it was her belief that it was being done in good faith” [emphasis added]. Ms. Adejuyigbe’s beliefs are not the same as “facts”. This phrasing seems to highlight her misunderstanding that the correspondence between her and Mr. Boynton gave rise to a binding contract or even an (unenforceable) promise to pay something in the future.
[18] Accordingly, on the face of these letters, there is clearly no enforceable contract of any kind, much less to pay compensation. At most, there was a promise to refer the matter to Torstar’s lawyers for a response which Mr. Boynton did.
[19] There is no ambiguity in Mr. Boynton’s responses. There is no promise to pay anything on a plain language reading of this letter. There is only an indication that Torstar will engage in a dialogue with Ms. Adejuyigbe concerning her claims of discrimination.
[20] Ms. Adejuyigbe also plead detrimental reliance to prevent Torstar and the other Defendants from relying on the full and final Release she signed in 2017.
[21] More specifically, at para. 56, Ms. Adejuyigbe pleads that she detrimentally relied on Mr. Boynton’s alleged promise to pay further monies and re-open the Release. However, again, the promise alleged is based in the correspondence exchanged between Ms. Adejuyigbe and Mr. Boynton, and allegedly supported by subsequent emails exchanged with Torstar’s external lawyers and her own lawyer. As an aside, Torstar’s lawyers in these emails reject Ms. Adejuyigbe’s claims and do not in any way reflect any offers to pay compensation. In any event, these emails are not admissible as they were subject to settlement privilege and are not necessary or relevant to showing that there was an agreement as alleged or to address a compelling or overriding interest of justice; Inter-Leasing Inc. v. Ontario (Minister of Finance) (2009), 2009 63595 (ON SCDC), 256 O.A.C. 83 (Div. Ct.), at. paras. 10-11; Sable Offshore Energy Inc. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, at para. 13).
[22] However, as I have found, the statement of claim is premised on an alleged enforceable promise to pay something in the future. Furthermore, the statement of claim fails to plead the constituent elements of promissory estoppel with respect to the full and final Release Ms. Adejuyigbe admittedly signed including the fact that she was no longer in an employment (or other legal) relationship with Torstar at the time of the 2020 communications, the lack of a clear and unambiguous promise to pay by or on behalf of Torstar, or material facts demonstrating that the alleged promise was intended to affect the legal relationship (Maracle v. Travellers Indemnity Co. of Canada, 1991 58 (SCC), [1991] 2 S.C.R. 50, at p. 57, Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47, at para 15). All the claim pleads is the fourth element of this doctrine; namely, detrimental reliance.
[23] In the alternative, Ms. Adejuyigbe pleads fraudulent misrepresentation, the tort of deceit, breach of the duty of good faith, and the tort of the intentional infliction of mental suffering.
[24] Again, underpinning each of these alternative claims is the allegation that the communications between Ms. Adejuyigbe and Mr. Boynton constitutes and enforceable promise to pay or contract.
[25] Furthermore, these individual claims are also not properly pleaded insofar as they lack the material facts to underpin each of these alternative actions.
[26] These findings are sufficient to deal with the entire claim warranting that the statement of claim be struck.
[27] While no evidence is admissible under this r. 21.01(1)(b), it is admissible under the alternative grounds alleged by Torstar as justifying dismissal of this claim. I have considered, in particular, Ms. Adejuyigbe’s affidavit material in an effort to ascertain whether the statement of claim presents a mere technical deficiency that can be cured by way of an amendment.
[28] Unfortunately, the affidavit material does not offer any other material facts that could support a legally tenable claim based in breach of contract premised on., or reflected by, the letters. In addition, no proposed draft amended statement of claim was tendered by Ms. Adejuyigbe for the court’s consideration.
[29] Furthermore, I agree that even if the letters pleaded constituted an enforceable contract, which they do not, there is no legally tenable cause of action against Torstar’s parent company, Nordstar, or against Mr. Boynton in his personal capacity (Haskett v. Equifax Canada Inc. (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577 (C.A.), at paras. 61-63, leave to appeal refused, [2003] S.C.C.A. 208), O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385, 460 D.L.R. (4th) 487, at paras. 43-45; ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481 (C.A.), at para. 25, leave to appeal refused, [1996] S.C.C.A. 40).
[30] Accordingly, the statement of claim is struck in its entirety without leave to amend, and the action is accordingly dismissed.
[31] This ruling should not be interpreted to mean that Ms. Adejuyigbe’s allegations of racial discrimination have been considered on their merits. It is her statement of claim that is fatally flawed as failing to plead an enforceable contract based on the letters exchanged between her and Mr. Boynton. The letters on their face do not meet the essential requirements for constituting an enforceable contract to pay compensation. Therefore, as framed, this claim is “hopeless” (Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at para. 18) and must be struck at this early stage of the litigation.
[32] In light of my ruling, I need not consider the arguments raised by the Defendants based on abuse of process, the Limitations Act, 2002, or pleading deficiencies under r. 25.06.
[33] Should the parties be unable to reach agreement as to costs, I will receive the Defendants’ costs submissions and cost outline within 10 days from the release of this decision. The Plaintiff will then have 10 days to provide her responding cost submissions and her cost outline. The costs submissions from each will not exceed 3 typed double spaced pages (this is in addition to the cost outlines) and should be provided by email to my judicial assistant, on notice to the other party.
Justice S. Vella
Released: July 28, 2022
COURT FILE NO.: CV-21-00663382-0000
DATE: 20220728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADESIMBO ADEJUYIGBE
Plaintiff
– and –
TORSTAR ET AL.
Defendants
REASONS FOR JUDGMENT
VELLA J.
Released: July 28, 2022