NEWMARKET COURT FILE NO.: CV-21-1975-00

DATE: 20220923

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN BADAWY

Plaintiff

– and –

TD BANK GROUP

Defendant

No one appearing for the Plaintiff

S. Todd and J. Wagner, for the Defendant/Moving Party

HEARD: September 23, 2022

HEALEY J.

NATURE OF THE MOTION

[1] The defendant, Toronto-Dominion Bank (incorrectly named TD Bank Group, hereafter “TD”) seeks an order granting summary judgment dismissing the plaintiff’s action. In the alternative, it seeks an order dismissing or striking out all of the plaintiff’s statement of claim.

[2] Service of the motion record and factum on the plaintiff was effected by email on January 20, 2022. The plaintiff has not filed responding material, and declined to accept the Zoom invitation for this hearing sent to him by the trial coordinator.

[3] The primary basis for the motion is that the plaintiff commenced this action after signing a full and final settlement and release of all claims arising from his former employment with TD. Despite receiving consideration in the form of payments made pursuant to the settlement agreement, the plaintiff has resiled from the agreement by, among other things, commencing this claim.

EVIDENCE

[4] The uncontested evidence is that the plaintiff’s former employment with TD was terminated for cause on January 31, 2019.

[5] Leading up to and in connection with the events resulting in the termination of his employment, the plaintiff filed a human rights complaint on October 13, 2018 with the Canadian Human Rights Commission.

[6] On March 7, 2019, the Plaintiff also filed an unjust dismissal complaint under the Canada Labour Code, R.S.C. 1985, c. L-2.

[7] TD agreed to participate in the mediation of the unjust dismissal complaint in the summer of 2019. The evidence of Carolyn Savoury, Manager, Employee Relations Policy & Specialty Advice, who was assigned to handle litigation matters involving the plaintiff, was that she spoke with the mediator assigned from Employment and Social Development Canada, Wendy Holas, prior to the mediation proceeding. Savoury shared with Holas her concerns about the plaintiff’s ability to participate in the mediation. Holas told her that she had spoken to the plaintiff many times, that he seemed coherent and rational, that the mediation process had been explained to the plaintiff, and that he wanted to participate. Based on the information from Holas that she had no concerns about the plaintiff’s ability to participate, TD agreed to the mediation.

[8] The mediation took place by phone and email in the summer of 2019, and resulted in a successful settlement. Savoury’s evidence is that the plaintiff behaved reasonably during the mediation. He asked for things that are typically requested in settlement negotiations, including a letter of employment and payment of settlement funds to his RRSP.

[9] The Settlement and Release (hereafter “Release”) signed by the parties is comprehensive. It provides that the plaintiff would be paid two sums totalling $45,000, being a direct payment and a contribution to his RRSP, following which the plaintiff would withdraw the unjust dismissal complaint within 10 days and return the company laptop and iPad.

[10] Paragraph 5 of the Release provides for a holdback of a further $10,000. The plaintiff was to provide TD with a notice of debt in relation to an overpayment of employment insurance. Thereafter, TD would pay the plaintiff the remainder of the $10,000 after deductions required by law, including any employment insurance overpayment. The latter was to be remitted directly to the Receiver General by TD.

[11] The plaintiff signed the Release on July 15, 2019. In doing so, he agreed to the following terms, set out at paragraphs 13 and 14 of the Release:

13. The Employee acknowledges that the Settlement is inclusive of and exhaustive of all possible entitlements to reinstatement, pay, pay in lieu of notice, severance pay, benefits (including short-term disability benefits), interest or any other entitlements in respect of the Employee’s employment and the termination of that employment, whether pursuant to the Canada Labour Code, the Canadian Human Rights Act, the common law, or otherwise.

14. In consideration of the undertakings of the Employer set out in this settlement the Employee hereby releases and forever discharges the Employer, its subsidiaries, affiliates, and successors and each of their respective officers, directors, employees and agents (collectively referred to as the Releasees), from any and all actions, causes of action, claims, demands and proceedings of whatever kind for damages, indemnity, costs, compensation or any other remedy which the Employee or the Employee’s heirs, administrators or assigns had, may now have, or may have in the future arising out of the Employee’s employment or the termination of that employment.

[12] The plaintiff acknowledged at paragraph 19 of the Release that by signing he understood its terms, and that he had had a reasonable opportunity to obtain independent advice. Although the plaintiff requested to remove the requirement for a witness to his signature on the document, TD did not agree to that request. His signature was witnessed.

[13] TD has filed evidence on this motion proving that it promptly fulfilled its monetary obligations under the Release.

[14] The plaintiff withdrew his human rights complaint in early July 2019. However, he refused to withdraw the unjust dismissal complaint or to return TD’s property.

[15] Responsibility for this matter was assumed by TD employees Penny Reid and Stephen Dorell upon Savoury’s maternity leave.

[16] On November 3, 2019, the plaintiff emailed a picture of his employment insurance repayment notice to Reid, indicating a balance owing of $ 4,923. She provided it to Dorell, who processed the $10,000 holdback. The evidence of these witnesses demonstrates that the holdback funds were subject to a 30% withholding tax, and that the $4,923 was sent to the Receiver General to satisfy the plaintiff’s debt. These amounts total $7,923. The balance of $2,077 was paid to the plaintiff by bank draft, couriered to him on November 8, 2019.

[17] The plaintiff objected to the amount of funds that he received out of the $10,000. Even when the above calculations were explained to the plaintiff by Reid in an email dated January 9, 2020, the plaintiff did not accept that they were legitimate. The plaintiff’s response was: “You will see what i’m going to do penny…”

[18] The plaintiff proceeded with his unjust dismissal complaint and an adjudicator was appointed. The adjudicator engaged the parties in a thorough process to allow her to determine two preliminary questions, one of which was whether there was a full and final settlement between the parties through the mediation process. In her decision dated August 27, 2021, the adjudicator applied the criteria set out in Apotex Inc. v. Allergen, Inc., 2016 FCA 155 for determining whether a settlement exists. The adjudicator determined that the evidence demonstrated that the parties had reached a full and final settlement of the plaintiff’s unjust dismissal complaint at the mediation. In the result, she concluded that she did not have jurisdiction to proceed with the plaintiff’s complaint.

[19] The plaintiff has also requested to reactivate his human rights complaint. As of the date that Ms. Savoury’s affidavit was sworn in January, 2022, the Canadian Human Rights Commission had not granted the plaintiff’s request.

[20] On June 1, 2021, the plaintiff issued the statement of claim in this action, raising allegations related to his employment. The claim does not seek any relief in relation to the Release, nor does it mention the mediation and its outcome. The statement of claim relays a series of grievances connected to the plaintiff’s termination of employment with TD and seeks monetary compensation from TD.

[21] TD filed a statement of defence on June 23, 2021. No other steps have been taken in the action.

[22] The plaintiff also caused another statement of claim to be issued against TD on December 6, 2021, which raises further employment related allegations. That action is not before me on this motion.

ISSUES

[23] This motion raises the follows issues:

(a) Is this an appropriate case for summary judgment because there is no genuine issue requiring a trial?

(b) Is it plain and obvious that the claim against TD discloses no cause of action, or is frivolous or vexatious or an abuse of the process?

APPLICABLE LAW

Summary Judgment

[24] Pursuant to r. 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court must grant summary judgment if it is satisfied that there is no genuine issue requiring a trial.

[25] The approach to be taken by this court on a motion for summary judgment is that set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. The judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, she should then decide if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2): Hryniak, at para. 66.

[26] With respect to when summary judgment may be granted, Karakatsanis J. stated at para. 49 of Hryniak:

There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process 1) allows the judge to make the necessary findings of fact, 2) allows the judge to apply the law to the facts, and 3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[27] At para. 50, the Court defined the overarching issue to be “whether summary judgment will provide a fair and just adjudication.” Karakatsanis J. went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”

[28] The court must take a hard look at the evidence on a motion for summary judgment to determine whether there is a genuine issue requiring a trial, and may freely canvas the facts and law in doing so. No party is entitled to rely on the prospect of additional evidence that may be tendered at trial; all parties have an obligation to put their best foot forward on a summary judgment motion: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9; Chernet v. RBC General Insurance Co., 2017 ONCA 337, [2017] O.J. No. 2094, at para. 12; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851, at para. 26, aff’d 2014 ONCA 878, [2014] O.J. No. 5815, leave to appeal to SCC refused, [2015] SCCA No. 97. As stated in Dawson v. Rexcraft Storage and Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (Ont. C.A.), at para. 17, “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.”

[29] The requirement to put one’s best foot forward means that although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the party’s pleadings, but must present specific facts showing that there is a genuine issue for trial: Cuthbert v. TD Canada Trust, 2010 ONSC 830, [2010] O.J. No. 630, at para. 12; Sanzone v. Schechter, 2016 ONCA 566, [2016] O.J. No. 3760, at para. 30; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), p. 434. These principles were affirmed once again in Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para. 7.

[30] The evidence adduced on a summary judgment motion need not be equivalent to that at trial. A documentary record may be enough, if it allows the motion judge to have confidence that she can fairly resolve the issues: Hryniak, at para. 57.

[31] These same principles apply where a limitations defence is raised. A defendant moving for summary dismissal based on a lapsed limitation period has the burden of establishing that there is no issue requiring a trial regarding whether the period has expired: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, [2017] O.J. NO. 142, at para. 33. However, once it meets that evidentiary burden, the onus shifts to the plaintiff to prove that the claim has a real chance of success and is not statute-barred.

[32] Summary judgment may be particularly appropriate where the defendant has raised a complete defence to the claim. The expiry of a limitation period raises a complete defence. For the case to proceed, the plaintiff must provide evidence sufficient to defeat the presumption in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B: Loy-English v. Fournier, 2018 ONSC 6212, at para. 21.

[33] In a wrongful dismissal action, the employment contract is breached when the employer dismisses the employee without reasonable notice, giving rise to the cause of action. It is upon dismissal that the limitation period begins to run: Jones v. Friedman (2006), 2006 CanLII 580 (ON SC), at para 4.

[34] Similarly, a full and final release is a complete defence, subject to a finding that it is unenforceable: Tesfamikael v. Porco, 2006 CanLII 34274 (ON SC), at para. 8.

ANALYSIS

[35] The record filed by TD permits this court to evaluate the evidence, make findings of fact and apply the law to those facts, without resorting to the court’s enhanced powers granted under r. 20.04. Its evidence is sufficient to enable the court to determine that TD has met its burden of showing that there is no genuine issue requiring a trial. The plaintiff, having filed no evidence, has not met the evidentiary burden of showing that there is a genuine issue requiring a trial.

[36] The evidence shows that the plaintiff negotiated and signed the Release after voluntarily participating in the mediation. He received the benefits of the bargain. TD fulfilled all its obligations under the Release. The plaintiff’s statement of claim does not allege that the Release is unenforceable, nor seek to set it aside. The Release is binding on the plaintiff. Its unambiguous terms, to which he agreed, disallows him from pursuing this and any other claims against TD that arise from or are connected with his employment or its termination. The Release operates as a complete bar to this claim, and accordingly, it has no chance of succeeding. A trial is not necessary to reach this legal conclusion.

[37] The evidence also shows that the claim is statute barred. Section 4 of the Limitations Act provides that unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[38] The plaintiff was dismissed from his job on January 31, 2019. The limitation period is presumed to begin to run from that date: Jones, at para. 4. It is the plaintiff’s position that his employment was wrongfully terminated, as indicated by his human rights complaint and his unjust dismissal complaint. He clearly knew that he had a cause of action against TD. By the time that he commenced this claim on June 1, 2021, the two-year limitation period has expired. The plaintiff has offered no evidence to rebut that presumption in order to attempt to extend the limitation period. Accordingly, the lapsed limitation period operates as a complete bar to this claim, and a trial is not necessary to reach this legal conclusion.

[39] In the result, proceeding to trial is not necessary, proportionate, timely or cost effective. The conduct of the plaintiff shows his intention to continue to litigate against TD. Granting summary judgment on this claim meets the interests of justice by being less expensive, getting this unmeritorious case out of the system more quickly, and bringing finality.

[40] TD sought an order, in the alternative, that the plaintiff’s claim be dismissed under r. 21.01(1)(b). As the court has found that summary judgment is appropriate and that it is able to determine the motion under r. 20.04, I will not deal with this alternative relief.

COSTS

[41] TD seeks only $5,000 for its costs of this motion, in recognition of the fact that the plaintiff is unemployed.

[42] These modest costs are appropriate for the amount of time and steps involved in bringing this motion, the volume of material filed, the lengthy history of this matter, the unreasonableness of the plaintiff in starting this action, and the result.

ORDER

[43] This court orders that:

1. Summary judgment is granted in favour of the defendant, dismissing the plaintiff’s claim.

2. The plaintiff shall pay costs of this motion to the defendant fixed in the amount of $5,000 and payable in 30 days.

HEALEY J.

Released: September 23, 2022