Court File and Parties

Court File No.: CV-22-00678729 Motion Heard: 2022-11-23 Superior Court of Justice - Ontario

Re: Jordan Tyler Martin, Plaintiff And: Stainless Process Equipment Inc., Defendant

Before: Associate Justice L. La Horey

Counsel: Alexis Radojcic, Counsel for the Moving Party Defendant Mackenzie Irwin, Counsel for the Responding Party Plaintiff

Heard: November 23, 2022 by videoconference

Endorsement

[1] The defendant employer, Stainless Process Equipment Inc., brings this motion for an order transferring this action to Small Claims Court. Specifically, the defendant seeks an order transferring the matter to the Milton, Hamilton or Burlington Small Claims Court without costs for the steps taken to date. The plaintiff employee opposes a transfer to Small Claims Court.

[2] The statement of claim in this matter was issued on March 22, 2022, under the Simplified Rules. The plaintiff employee seeks: a) a declaration that he was constructively dismissed amounting to wrongful dismissal on December 13, 2021; b) damages for wrongful dismissal in the amount of $43,000, representing earnings during an eight month notice period; c) damages for the loss of benefits during the notice period; d) damages for outstanding vacation pay and lost vacation pay during the notice period; e) a declaration that the employer discriminated against the employee on the basis of disability; f) in the alternative to b) damages for lost wages due to the employer’s discrimination of the employee, pursuant to the Human Rights Code, RSO 1990, c. H.19 (the “Code”) from December 13, 2021; g) damages for injury to dignity, feelings and self-respect in the amount of $30,000; h) moral damages for the bad faith manner of termination in the amount of $50,000; i) punitive damages in the amount of $50,000; j) pre and post-judgment interest; and, k) costs.

[3] The face value of the amounts specified in the plaintiff’s claim is $173,000. The monetary jurisdiction of the Small Claims Court is $35,000.

[4] In his statement of claim, Mr. Martin pleads that on October 4, 2021, the employer unilaterally changed the plaintiff’s terms of employment by requiring him to receive a COVID-19 vaccine or submit to COVID-19 testing every 72 hours pursuant to the employer’s COVID-19 policy (the “Policy”). He alleges that he was constructively dismissed on December 13, 2021, when he was placed on an unpaid leave of absence because he did not confirm that he had received the COVID-19 vaccine and could not pay for COVID-19 testing every 72 hours. The plaintiff further pleads that no accommodations were made in respect of the Policy. The plaintiff pleads that he is entitled to reasonable notice of eight months. He also pleads that he is entitled to damages under the Code in connection with the Policy as well as moral and punitive damages.

[5] The employer has filed a defence. The defence pleads, inter alia, that the employee resigned, or alternatively abandoned his employment after refusing to take a COVID-19 rapid test. It further pleads that the plaintiff was placed on an unpaid leave of absence pursuant to O. Reg 228/20: Infectious Disease Emergency Leave for refusing to comply with the Policy, which it pleads was reasonable. It pleads that unpaid leaves of absence for reasons related to COVID-19 do not constitute constructive dismissal. The employer alleges that it added gratuitous paid hours to the plaintiff’s timesheets so the plaintiff was not out of pocket for the cost of the COVID-19 testing.

[6] The defendant has filed the following affidavits on the motion:

a) The affidavit of the employer’s operations manager. This affidavit describes the employer’s response to the COVID-19 pandemic, the defendant’s Policy, the employer’s offset of the costs of COVID-19 tests for unvaccinated employees, the plaintiff’s alleged insubordination and refusal to comply with the Policy, and the circumstances of the plaintiff’s termination. The exhibits include the Policy, correspondence between the plaintiff and defendant and the plaintiff’s timesheets.

b) The affidavit of Ryan Edmonds, defence counsel. In this affidavit, Mr. Edmonds deposes that counsel for the plaintiff advised him in a phone call, after the defence was filed, that the plaintiff had secured new employment commencing on January 3, 2022 and that the Mr. Martin was earning about the same as he earned while employed with the defendant. Mr. Edmonds deposes that the defendant’s request to transfer the action to Small Claims Court was refused by the plaintiff. The affidavit makes various arguments which would be appropriate in a factum but which are not properly in an affidavit. There is a second affidavit from Mr. Edmonds that corrects some information in Mr. Markusoff’s affidavit.

c) The affidavit of Ben Markusoff, an associate lawyer at defendant’s law firm. Mr. Markusoff’s affidavit reports on his communications with Brampton, Milton, Hamilton and Burlington Small Claims Courts and the estimated wait times to obtain dates for a settlement conference and trial in those courts. The affidavit also indicates travel times between the plaintiff’s home and defendant’s business to the various courthouses. The upshot of this evidence is that the Small Claims Courts in Milton, Hamilton and Burlington have the ability to get the matter pre-tried and tried within a reasonable time (i.e. more quickly than it will take for this matter to be pre-tried and tried in Toronto Superior Court). These courts are within a reasonable driving distance of both the plaintiff and defendant.

[7] The plaintiff has filed a responding motion record that includes a notice of motion for a consent timetable in the event that the defendant is unsuccessful in its motion to transfer. The plaintiff has filed an affidavit from a legal assistant that attaches the consent timetable.

[8] The defendant delivered a 30 page factum in support of its motion. The plaintiff filed a six page factum.

[9] Both parties agree that an associate judge has the jurisdiction to transfer this action to Small Claims Court.[^1] They disagree as to whether I should do so.

[10] In Ali v Schrauwen,[^2] Master MacLeod (as he then was) observed that cases that are within the jurisdiction of the Small Claims Court are ordinarily to be moved to that branch of the court unless there is prejudice to the other party that cannot be easily remedied.

[11] The problem with the defendant’s motion is that the case is not within the jurisdiction of the Small Claims Court on its face and the plaintiff does not concede that his actual claim is within the jurisdiction of the Small Claims Court. This is not a case where the plaintiff has realized that its claim is less than it first thought and the plaintiff now seeks to transfer the action to Small Claims Court. This is not a case where the plaintiff has issued an action in Superior Court claiming an amount within the jurisdiction of the Small Claims Court as was the case in Royal Bank of Canada v Lendak.[^3] In that case Justice Stinson transferred a case to Small Claims Court over the objection of the plaintiff. However, in that case, there was no issue that the claimed amount in the debt collection action was well within the monetary limit of the Small Claims Court. Justice Stinson transferred the action commenced in the Superior Court in Toronto, a six hour drive from the self-represented defendant’s place of residence to the Small Claims Court in Elliott Lake, the closest Small Claims Court to the defendant’s home.

[12] The parties pointed me to no case where the motions judge on a transfer motion transferred a case to Small Claims Court over the objection of the plaintiff where the face value of the claim was greater than the jurisdiction of the Small Claims Court. The parties did not point me to any case where the issue on the motion was whether a wrongful dismissal case should be transferred to Small Claims Court.

[13] The defendant urges me to find that the damages claimed are within the jurisdiction of the Small Claims Court. In order to do that, I would, in effect, have to undertake a partial assessment of damages and decide that certain of the plaintiffs claims are not viable. In essence, the defendant is asking this court for partial summary judgment, consistent with the detailed affidavits and lengthy factum filed on this motion going to the merits of the action.

[14] The defendant submits that I should accept that the plaintiff mitigated his damages when he found alternative employment. There is no dispute on this motion that the plaintiff started another job on January 3, 2022. The defendant submits that Mr. Martin fully mitigated any common law damages to which he would be entitled (which it does not concede) and that, at best, Mr. Martin would be entitled to $16,488 pursuant to the Employment Standards Act, 2000 (“ESA”).[^4] Although the plaintiff does not take issue with the defendant’s ESA calculation for the purposes of the motion, the plaintiff does not concede that any amounts for mitigation should be deducted. The plaintiff also correctly points out that there is no evidence with respect to the amounts actually received by the plaintiff in respect of his new job which would be dependent on how long the employment continued and whether the employment was full-time or part-time and the number of hours worked.

[15] The defendant argues that the claimed damages for human rights damages, moral and bad faith damages and punitive damages have no “air of reality”. The defendant submits that I should determine whether the claims have an “air of reality” which it says means that the allegation must be tenable in law and the plaintiff must lead some evidence to demonstrate that it is not devoid of factual and/or legal foundation. The defendant submits that this court should apply the “air of reality” test which it submits that courts have applied in deciding whether or not to strike a pleading and whether to set aside a default judgment. The plaintiff has not brought a motion to strike the plaintiff’s pleading. No judgment has been obtained. The defendant did not point me to any case where an “air of reality” test has been applied on a motion to transfer a case to Small Claims Court.

[16] There is no authority which requires me or permits me to conduct a preliminary merits test on the plaintiff’s claim and which would allow me to deprive the plaintiff of his chosen forum. Nor can I see how it would be in the interests of justice to do so.

[17] In addition to the claimed damages amounts, there are other reasons justifying the plaintiff’s decision to pursue his claim in Superior Court including complicated legal issues as to whether an employer can place an employee on an indefinite unpaid leave of absence for non-compliance with a COVID-19 vaccination policy and whether doing so may result in a claim under the Code for discrimination on the basis of disability. The plaintiff submits that the law in this area is not yet settled. If the defendant is correct in its submission that these claims are hopeless it can bring a motion for summary judgment and /or a motion under Rule 21 of the Rules of Civil Procedure.

[18] The defendant submits that even if there is an “air of reality” to the plaintiff’s claims for damages under the Code, moral damages, bad faith damages and punitive damages, the plaintiff will not be prejudiced because after accounting for his maximum claim for wrongful dismissal ($16,488), the plaintiff would have over half the monetary limit of the Small Claims Court for these damages, i.e. $18,152. The defendant is asking that I predetermine the maximum amount of damages that a trial judge might award. The defendant submits that exemplary damages must be proportional to the defendant’s conduct[^5] and $18,152 is sufficient. It is simply not possible or desirable that I make any finding on this motion regarding the defendant’s conduct or the quantum of damages for these heads of damage.

[19] The defendant is concerned with the costs. The Rules of Civil Procedure provide for a mechanism to deal with costs when the plaintiff has commenced an action in the ‘wrong forum’ given the amounts in issue.

[20] Rule 57.05(1) provides:

Costs where Action Brought in Wrong Court

Recovery within Monetary Jurisdiction of Small Claims Court

57.05 (1) If a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs.

[21] The defendant submits this rule does not address its concerns. In oral argument, counsel submitted that the defendant is concerned that it would not be able to enforce a significant cost award to which it may be entitled if it is successful in a Superior Court action, noting that the plaintiff is 27 years old making approximately $64,000 per annum. I do not see how the plaintiff’s ability to pay a cost award if unsuccessful (whether or not the defendant’s concerns are well-founded) is a factor that should deprive the plaintiff of his chosen forum and / or limit his damage awards. The defendant’s argument raises access to justice issues. Further, the Rules of Civil Procedure already set out the circumstances where issues of enforceability may be taken into account and where an order for security for costs award is appropriate (Rule 56.01).

[22] I agree with the plaintiff that it is not in the interests of justice for this court to transfer the action to Small Claims Court, thus denying the plaintiff his chosen forum and the ability to recover damages above the limit of the Small Claims Court. The defendant’s motion is dismissed.

[23] The plaintiff was successful on this motion and the defendant does not dispute that the plaintiff is entitled to costs on a partial indemnity scale which the parties have agreed are at $3,500 (inclusive of HST and disbursements). The plaintiff seeks substantial indemnity costs in the sum of $4,580.12 based on a Rule 49 offer. The defendant denies that the plaintiff is entitled to substantial indemnity costs.

[24] The parties are encouraged to agree to costs. If they cannot agree, the plaintiff may file costs submissions limited to three double-spaced pages exclusive of attachments within 14 days. The defendant shall have one week to file responding submissions limited to three double-spaced pages exclusive of attachments. Costs submissions shall be uploaded to CaseLines and filed with my Assistant Trial Co-ordinator.

[25] The plaintiff’s cross-motion is granted on consent for a timetable as follows:

a. Mediation to be completed by January 27, 2023;

b. Exchange of affidavits of documents on or before March 3, 2023;

c. Examinations for discovery to be completed on or before March 24, 2023; and

d. Answers to undertakings (if applicable) completed by May 5, 2023.

[26] In closing, I wish to thank both counsel for the quality of their written and oral submissions.

L. La Horey, A.J.

Date: November 23, 2022

[^1]: Ali v Schwauren, 2011 ONSC 2158 (Master) at para 2; Capano v Rahm 2010 ONSC 3241 at para 5; Royal Bank of Canada v Lendak, 2019 ONSC 4877 at para 12 [^2]: Ali v Schwauren, at para 4. See also May v Hutchison, 2013 ONSC 7712 at para 7; and Korlyakov v Reisz, 2020 ONSC 6622 (Master). [^3]: 2019 ONSC 4877 [^4]: S.O. 2000, c.41 [^5]: Relying on Whiten v Pilot Insurance Co., 2002 SCC 18 at para 49 and ADGA Group Consultants v Lane, 2008 ON SCDC 39605 at paras 151-154.