COURT FILE NO.: CV-21-00000535
DATE: 2022/09/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Elliott
Plaintiff
– and –
Advanced Masonry (Ont) Ltd.
Defendant
Mr. R. Konduros, for the Plaintiff
Mr. R. Wozniak and Ms. J. Greenwood, for the Defendant
HEARD: at Kitchener, Ontario,
on September 27, 2022
THE HONOURABLE JUSTICE j. r. hENDERSON
REASONS FOR DECISION
[1] This is a motion by the defendant for summary dismissal of the plaintiff’s claim pursuant to rule 20.04 of the Rules of Civil Procedure.
[2] In the statement of claim, the plaintiff claims damages for “constructive and/or wrongful dismissal”. The plaintiff pleads at paragraphs five and six of the statement of claim that he was terminated from his employment on December 11, 2020, due to a shortage of work, and that the defendant failed to recall him within 13 weeks of his layoff.
[3] There is no dispute that the principal of the defendant, Duane Kocher (“Kocher”), presented the plaintiff with a written layoff notice dated November 27, 2020, which the plaintiff signed, that provided that the plaintiff would be temporarily laid off from his employment effective December 11, 2020.
[4] There is also no dispute that the defendant never recalled the plaintiff to his employment, and that the plaintiff commenced this proceeding on April 14, 2021, approximately 17 weeks after the effective date of the layoff.
[5] Counsel for the defendant submits that the plaintiff’s claim as set out in the pleadings is
based solely on the provisions of the Employment Standards Act (“ESA”) that deal with the nature and extent of layoffs.
[6] In the circumstances of the present case, pursuant to section 56 of the ESA a layoff that lasts longer than 35 weeks would be deemed to be a termination. Because the plaintiff sued the defendant on April 14, 2021, 17 weeks after the effective date of the layoff, the defendant submits that the plaintiff has failed to comply with the ESA. Consequently, the defendant submits that it was the plaintiff who terminated the employment relationship, and therefore the plaintiff cannot win his case.
[7] Counsel for the plaintiff submits that the plaintiff relies upon the ESA, but that the plaintiff has other alternative bases for his claim. The plaintiff states that Kocher verbally fired him on November 16, 2020, and on that date Kocher retrieved the defendant’s truck from the possession of the plaintiff. The plaintiff also states that Kocher untruthfully told him that the defendant had to layoff all of its employees, and that Kocher thereby induced the plaintiff into signing the layoff notice. Therefore, the plaintiff will submit at trial that the layoff notice is void.
[8] Still further, the plaintiff states that he attempted to contact Kocher in March 2021 in order to inquire about his employment status, but that the defendant failed to respond to him. Therefore, at that point in March 2021, the plaintiff states that he inferred that the defendant had no intention of recalling him for employment.
[9] According to the plaintiff’s counsel, these additional facts provide a foundation for common law claims for damages in addition to the plaintiff’s claim under the ESA. In particular, plaintiff’s counsel submits that it is open to a trial judge to find that the layoff notice is void because it was obtained through deceit, that the defendant terminated the plaintiff’s employment either on November 16, 2020, or on December 11, 2020, or that the termination was effective in March 2021 when the conduct of the defendant implied that the plaintiff’s employment had been terminated.
[10] The defendant’s position on this motion can be summarized as follows:
The plaintiff’s statement of claim only alleges a claim pursuant to the ESA, and the undisputed facts are such that the plaintiff cannot prove that claim.
Regarding the plaintiff’s possible common law claims, the defendant submits that these claims are not contained in the pleadings and therefore the plaintiff may not present these claims at trial.
Even if a court is willing to entertain the plaintiff’s common law claims, the defendant submits that because the plaintiff did not disclose his position or evidence on these common law claims until his examination for discovery, and by correspondence thereafter, I should find that the plaintiff is fabricating his evidence in order to avoid losing his case.
[11] Regarding the pleadings, I accept that the statements made in the statement of claim are sparse, vague, and imprecise. The pleading does little more than inform the defendant that there is a claim for damages for constructive and wrongful dismissal. However, the statement of claim is drafted in a broad general manner. It does not restrict the claim to a claim under the ESA, and in fact it does not even mention the ESA.
[12] The statement of claim states, in a general way, that the claim is for “constructive and/or wrongful dismissal”. At paragraph six the plaintiff makes the allegation that all of the employees of the defendant were recalled, but not the plaintiff. At paragraph eight the plaintiff states that he “seeks all of his statutory or common law entitlements”.
[13] Although it is imprecise, in my view the statement of claim is broad enough to include claims pursuant to the ESA and pursuant to the common law. The imprecise nature of the statement of claim suggests that it would be incumbent upon the plaintiff to provide particulars of the claim either at examinations for discovery, in correspondence, or in response to a request by defendant’s counsel. I accept that these particulars were provided through the plaintiff, or through plaintiff’s counsel, sporadically over the course of these proceedings.
[14] For these reasons, I find that it will be open to a trial judge to consider all of the possible bases for the plaintiff’s claim that have been raised during the course of these proceedings. That is, the plaintiff’s claim is not restricted to a claim under the ESA.
[15] Regarding credibility, both counsel on this motion provided examples of statements or conduct that impugned the credibility of the plaintiff and Kocher. Both sides claim that there should be a finding, either on this motion or a trial, that the opposing party is not credible. Thus, both parties have put the credibility of the opposing party in dispute.
[16] Moreover, I accept that findings of credibility with respect to the plaintiff and Kocher will be essential to a determination of the issues in this case. In order for a trial judge to assess the plaintiff’s common law claims, including the plaintiff’s allegation that he was induced into signing the layoff notice by reason of Kocher’s deceit, a trial judge will have to carefully consider the credibility of both the plaintiff and Kocher.
[17] In accordance with the decisions in the cases of Cook v. Joyce, 2017 ONCA 49 and the Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, I find that credibility is squarely in issue in this case. Using the two-step approach set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49, I find that there are genuine issues for trial, but a trial cannot be avoided by using the fact-finding powers set out in the rules. Therefore, a trial is required.
[18] For these reasons, the defendant’s motion is dismissed.
[19] If either party wishes to make submissions as to costs, I direct that the party seeking relief shall deliver written submissions, no longer than five pages, to the trial co-ordinator at Kitchener within 20 days of the release of this decision, with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this time frame, the parties will be deemed to have settled all of the costs issues as between themselves.
J. R. Henderson J.
Released: September 28, 2022
COURT FILE NO.: CV-21-00000535
DATE: 2022/09/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Elliott
Plaintiff
– and –
Advanced Masonry (Ont) Ltd.
Defendant
REASONS FOR decision
J. R. Henderson J.
Released: September 28, 2022