COURT FILE NO.: CV-22-00683435-0000 MOTION HEARD: 2024-01-16
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: BRUCE MAULE, plaintiff AND: IBM Canada Ltd., defendant
BEFORE: ASSOCIATE JUSTICE R. FRANK
COUNSEL: A. Reid and S. Livshits for the defendant M. Waddell and A. Hudie for the plaintiff
HEARD: January 16, 2024
ENDORSEMENT
A. OVERVIEW
[1] The plaintiff, Bruce Maule, commenced this action against IBM Canada Ltd. (“IBM Canada”) by statement of claim issued June 30, 2022. The plaintiff claims damages for wrongful dismissal and a declaration that IBM Canada discriminated against him based on age, in violation of the Ontario Human Rights Code. [1] In the alternative, the plaintiff seeks damages as compensation for IBM Canada’s alleged violation of the Ontario Human Rights Code and the plaintiff’s employment contract with IBM Canada. The plaintiff also claims punitive damages because he alleges his termination was part of a concerted policy of International Business Machines Incorporated (“IBM U.S.”), the parent company of IBM Canada, to cull older executives from its corporate ranks. The plaintiff alleges that the policy was adopted and carried out by IBM Canada and that he was terminated at the direction of IBM U.S.
[2] Following service of the statement of claim, IBM Canada raised various concerns about certain pleadings in it. In response, the plaintiff amended the statement of claim on December 21, 2022 and again on March 10, 2023 (the “Second Amended Claim”). In the Second Amended Claim, the pleadings include allegations that decisions about the plaintiff’s hiring, promotions, bonuses, scope of work, and termination were made by IBM U.S. The pleading also alleges that the reason for the plaintiff’s termination arose from policies and directives originating from IBM U.S. and that the decision to terminate the plaintiff was not taken independently by IBM Canada.
[3] Despite the amendments, IBM Canada continues to take issue with certain pleadings in the Second Amended Claim (the “Impugned Pleadings”). IBM Canada moves to strike out two categories of Impugned Pleadings, without leave to amend:
(a) pleadings that allege systemic age discrimination by IBM U.S. (the “Systemic Age Discrimination Pleadings”); [2] and (b) pleadings that reference the employment circumstances of certain IBM U.S. employees, including the promotion and termination of specific IBM U.S. employees (the “IBM U.S. Employee Pleadings”). [3]
The Impugned Pleadings are listed in Schedule “A” to this endorsement.
[4] IBM Canada submits that the Impugned Pleadings are irrelevant, overly broad, scandalous, or an abuse of the process of the court. Alternatively, IBM Canada submits that the Impugned Pleadings should be struck because they add complexity to the action that outweighs any potential marginal probative value.
[5] During the hearing of the motion, counsel for the plaintiff advised that the plaintiff will make the following further amendments to the Second Amended Claim (the “Proposed Further Amendments”):
(a) the Systemic Age Discrimination Pleadings will be narrowed to allegations of age discrimination practices as against executive level employees of IBM U.S.; and (b) the IBM U.S. Employee Pleadings will be amended to remove allegations of termination for cause or underperformance.
[6] For the reasons outlined below, and on the basis that the Second Amended Claim will be amended to incorporate the Proposed Further Amendments, the IBM Canada motion to strike is dismissed.
B. ISSUES
[7] The issues on this motion are whether the Impugned Pleadings should be struck out, without leave to amend, because they are irrelevant, scandalous, overly broad, or an abuse of the process of the court, or because they add complexity to the action that outweighs any potential marginal probative value.
C. MATTERS NO LONGER IN ISSUE ON THIS MOTION
[8] In IBM Canada’s notice of motion, it also sought an order pursuant to Rule 21.01(b) striking out paragraphs 25-27, paragraph 36 and paragraphs 38-43 of the Second Amended Claim on the basis that those pleadings are barred by the Limitations Act, 2002. [4] At the outset of the hearing of the motion, I reminded counsel that an associate judge does not have jurisdiction to hear a motion under Rule 21, and that such a motion must be brought before a judge. Counsel for IBM Canada advised that IBM Canada would therefore withdraw the aspect of its motion seeking an order striking any pleadings pursuant to Rule 21.01(b). In the result, IBM Canada completely withdrew its motion to strike paragraphs 25‑27 of the Second Amended Claim. With respect to paragraphs 36 and 38-43 of the Second Amended Claim, IBM Canada withdrew its motion to strike those paragraphs pursuant to Rule 21.01(b) but proceeded with its motion to strike those paragraphs pursuant to Rule 25.11 of the Rules of Civil Procedure.
D. LAW AND ANALYSIS
(i) Should the Impugned Pleadings be struck out because they are irrelevant or scandalous?
[9] Pursuant to Rule 25.11 of the Rules of Civil Procedure, the court may strike out or expunge all or part of a pleading with or without leave to amend, on the ground that the pleading, (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.
[10] The applicable principles with respect to a motion to strike under Rule 25.11 include the following:
- Every pleading must contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. A pleading should be brief, clear, focused and contain the skeletal or core facts and not the evidence that details those facts unless particulars are required by the rules. [5]
- A challenge to a pleading under Rule 25.11(b) focuses on the relevance of the pleading to a cause of action or defence. [6]
- Requiring a party to respond to irrelevant facts, inquire into those facts on discovery and respond to evidence of those facts at trial, leads to inquiries into facts that have no connection to the real issues before the court. [7]
- Pleadings that raise irrelevant allegations that cannot affect the outcome of an action are scandalous, frivolous or vexatious, and should be struck out. A fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious. [8]
- Motions under Rule 25.11 should only be granted in the “clearest of cases”. [9]
[11] IBM Canada does not move to strike the pleadings of discrimination alleged against IBM Canada, nor any pleading of systemic discrimination relating to IBM Canada. However, IBM Canada submits that the Impugned Pleadings are improper and should be struck without leave to amend because they are irrelevant or scandalous.
(a) Are the Systemic Age Discrimination Pleadings irrelevant or scandalous?
[12] IBM Canada asserts that the Systemic Age Discrimination Pleadings should be struck out because they are irrelevant to determining whether it discriminated against the plaintiff when it terminated his employment. IBM Canada argues that the action is against IBM Canada only, and not IBM U.S. It also submits that IBM U.S. was not the plaintiff’s employer, and the plaintiff alleges that IBM Canada, and not IBM U.S, dismissed the plaintiff and breached the Ontario Human Rights Code. IBM Canada also argues that the allegations of historic systemic age discrimination by IBM U.S. dating back to 2013 are irrelevant to the plaintiff’s termination in 2021.
[13] In my view, IBM Canada’s interpretation of relevance is too narrow. It fails to take into account the express pleadings that allege a connection between IBM U.S., the plaintiff’s employment, and the termination of the plaintiff’s employment. Importantly, many of the Impugned Pleadings include express allegations that IBM U.S.’s age discrimination policy and practices were adopted or implemented by IBM Canada. [10]
[14] The Systemic Age Discrimination Pleadings are relevant to the plaintiff’s allegations regarding IBM U.S.’s scheme or pattern of discriminatory conduct – the alleged targeting of older executive employees for termination. While the court will strike pleadings of historical fact that have no relevance, [11] the Systemic Age Discrimination Pleadings are pleadings of relevant material facts. These pleadings particularize the systemic discrimination that the plaintiff alleges led to his termination. Further, the alleged systemic nature of the age discrimination (as opposed to allegations of direct age discrimination) is relevant to the plaintiff’s claim to damages for human rights violations, IBM Canada’s failure to act in good faith, as well as the plaintiff’s claim for punitive damages. As explained by the Supreme Court of Canada, the facts said to justify punitive damages should be pleaded with some particularity because “before someone is punished they ought to have advance notice of the charge sufficient to allow them to consider the scope of their jeopardy as well as the opportunity to respond to it.” [12]
[15] Reading the Second Amended Claim as a whole, the action raises issues about IBM U.S.’s involvement in the decisions not to promote the plaintiff and, ultimately, to terminate his employment. In this regard, the plaintiff’s pleadings include the following:
(a) The plaintiff joined IBM U.S.’s worldwide “Channel” or “Ecosystem” marketing team in January 1997. That team was led by IBM U.S. employees and based in New York State. (b) From January 1997 forward, decisions regarding the terms and conditions of the plaintiff’s employment were made predominately by IBM U.S., and IBM Canada implemented those decisions on behalf of IBM U.S. (c) IBM Canada fulfilled administrative obligations concerning the plaintiff’s employment, including maintaining the plaintiff on IBM Canada’s payroll, subject to directions from IBM U.S. IBM U.S. compensated IBM Canada for all employment related expenses that it incurred in respect of the plaintiff’s employment. (d) IBM Canada followed the directions of IBM U.S., and the practices and policies set by IBM U.S., with respect to the plaintiff’s employment. (e) The decision to terminate the plaintiff was made by IBM U.S. which instructed IBM Canada to prepare the termination letter. The decision to terminate the plaintiff was not made independently by IBM Canada.
[16] IBM Canada also asserts that the Systemic Age Discrimination Pleadings should be struck out as scandalous because the pleadings are bare allegations of systemic discrimination at IBM U.S. that are based on a speculative and strained conspiracy theory. I do not agree. While pleadings that are bare allegations should be struck out as scandalous, [13] the plaintiff has pleaded the necessary and sufficient material facts to support a claim of systemic age discrimination. This includes pleadings that:
- The plaintiff saw hiring and firing practices consistent with age-related discrimination within the IBM U.S. executive and within his business unit. The plaintiff’s immediate superior was terminated without cause after more than 30 years of service to IBM U.S. and was replaced by a younger executive with no experience in Channel marketing.
- The plaintiff’s superior told the plaintiff that he (the plaintiff) would be passed over for promotion because of his age, which the plaintiff alleges happened three times.
- The plaintiff received a retention payment after twice being passed over for a promotion in favour of someone younger and less qualified. The plaintiff was terminated before the end of the retention period.
- The plaintiff was terminated because of his age. His termination was the result of systemic age discrimination practices at IBM Canada and IBM U.S.
[17] IBM Canada also submits that some of the evidence filed by the plaintiff regarding the Systemic Age Discrimination Pleadings – an online article and certain court documents relating to proceedings regarding systemic age discrimination involving IBM U.S. – is not relevant to this motion or the action. In my view, this is not a basis for striking the Systemic Age Discrimination Pleadings. First, this is a pleadings motion and not a determination of the merits of the allegations of systemic age discrimination. On a pleadings motion, one of the issues is an assessment as to whether the allegations are provable. A fact that is not provable at the trial or that is incapable of affecting the outcome is immaterial and ought not to be pleaded. [14] In this case, I am satisfied that the Systemic Age Discrimination Pleadings are provable based on the material facts alleged in the Second Amended Claim. This is distinguishable from the situation in McKee v. Rowshani-Zafaranloo, 2021 ONSC 2452, a case in which the court found that certain similar fact pleadings should be struck because they were overly broad, bald allegations with no supporting facts. The result was that the unsupported pleading would capture “anyone and anything”. [15]
[18] In addition, although not necessary for me to decide this issue, the plaintiff filed an affidavit in support of this motion detailing his direct experience with respect to the allegations of age discrimination at IBM U.S. and about being passed over for promotion. [16] This includes evidence regarding employees who were selected for promotion, and a comparison of the plaintiff’s qualifications and experience relative to those who were chosen for promotion instead of him. The plaintiff was not cross-examined on that evidence. Further, as noted by the Court of Appeal, it is difficult to get direct evidence of the type of discrimination alleged by the plaintiff. [17]
[19] In summary, there is no basis to find that the Systemic Age Discrimination Pleadings are irrelevant or that they are bare and unprovable allegations that should be struck as scandalous pleadings.
(b) Are the IBM U.S. Employee Pleadings irrelevant or scandalous?
[20] IBM Canada asserts that the IBM U.S. Employee Pleadings are irrelevant and scandalous because allegations that IBM U.S. discriminated against U.S. employees since 2013 are not relevant to the termination of the plaintiff’s employment by IBM Canada in 2021. IBM Canada also submits that the job qualifications of IBM U.S. employees, their job performance at IBM U.S., and the alleged circumstances of their departures from IBM U.S. are not relevant to the termination of the plaintiff’s employment by IBM Canada.
[21] As noted above, counsel for the plaintiff advised at the hearing of the motion that the plaintiff will amend his claim to remove allegations of termination for cause or underperformance with respect to IBM U.S. employees. As a result, I need not decide whether those aspects of the IBM U.S. Employee Pleadings should be struck out because the plaintiff has agreed to remove them.
[22] On the basis that the Second Amended Claim will be amended in accordance with the Proposed Further Amendments, I find that the balance of the IBM U.S. Employee Pleadings are relevant to the claim of systemic discrimination and the claim for punitive damages. As with the Systemic Age Discrimination Pleadings, I find that the IBM U.S. Employee Pleadings form part of the relevant factual background leading to the Plaintiff’s termination. Again, while the court will strike pleadings of historical fact that have no relevance, [18] this does not apply to the IBM U.S. Employee Pleadings which (other than the pleadings regarding their performance or termination) are relevant material facts.
(ii) Are the Impugned Pleadings overly broad, prejudicial and an abuse of process?
[23] IBM Canada submits that the Systemic Age Discrimination Pleadings are overly broad and prejudicial because the allegations are not sufficiently limited in respect of time. IBM Canada argues that the pleadings improperly date back to 2013, a period it asserts is irrelevant to the plaintiff’s 2021 termination. Given my finding above that the time period is relevant, I find that the Impugned Pleadings are not overly broad based on the pleaded time period.
[24] IBM Canada also submits that the Systemic Age Discrimination Pleadings are overly broad and prejudicial because the allegations are not limited to the plaintiff’s specific employment circumstances. It asserts that these pleadings potentially open up discovery with respect to any terminated employee of IBM U.S. rather than, for example, terminated employees from the plaintiff’s business unit. IBM Canada submits that this is significant overreach given that IBM U.S. has 49,077 employees, including 9,042 employees in New York state. [19] IBM Canada argues that the broadly pleaded allegations of “systemic discrimination” and “discriminatory scheme” would expose it to a disproportionate scope of discovery about the employment practices of IBM U.S. which are irrelevant to the termination of the plaintiff’s employment by IBM Canada. IBM Canada submits that the absence of specificity as to location, business unit or time (dating back to 2013), would lead to extremely onerous discovery obligations for IBM Canada and would add significant time, complexity and cost to this action.
[25] Similarly, with respect to the IBM U.S. Employee Pleadings, IBM Canada submits that these pleadings would lead to discovery of information that would be prejudicial because it would not have any probative value, and would add significant cost, time and complexity to this proceeding. IBM Canada submits that the discovery of documents and information with respect to the IBM U.S. Employee Pleadings is not relevant to the plaintiff’s particular circumstances and the action.
[26] On the basis that the plaintiff will be amending the Second Amended Claim to incorporate the Proposed Further Amendments, I do not accept IBM Canada’s submission that the Impugned Pleadings are overly broad or an abuse of process. Pleadings that contain evidence or irrelevant allegations may lead to prolonged and potentially abusive discoveries that do not address the real issues in dispute. Such pleadings are an abuse of process because they tend to prejudice or delay the fair trial of the action. [20] In this case, however, I find that the Impugned Pleadings are relevant (for the reasons outlined above) and would not lead to disproportionate, prolonged, and abusive discovery.
[27] The circumstances of this action are distinguishable from the cases relied on by IBM Canada in which the court found that similar fact allegations would improperly expand the scope of inquiry on discovery and at trial. [21] In the cases relied on by IBM Canada, there was not the same connection between the plaintiff’s claims and the disputed pleading. For example, Abdi Jama (Litigation Guardian of) v. McDonald's Restaurants of Canada Ltd., 2001 ONSC 28009 involved a claim for damages resulting from alleged food contamination in a McDonald’s restaurant in Toronto, Ontario. The disputed pleading in that case raised concerns that it would permit a search for, and canvassing of, similar events within the McDonald's organization worldwide in circumstances where there was no apparent connection between the plaintiff’s claim and that broad geographic scope. [22]
[28] Similar concerns were addressed in Kalamaris v. IBM Canada Limited, 2021 ONSC 5704. In that case, the court struck out a pleading that IBM Canada “regularly hired younger employees” without leave to amend. Associate Justice Abrams (then titled Master Abrams) found that the impugned pleading was irrelevant and overly broad because it proposed a comparator group of all employees hired by IBM, in any business unit, at any time. On that basis, Associate Justice Abrams held that the disputed pleading would “not assist the court in deciding the merits of the plaintiff’s claim, but rather opened up the proceeding to prolonged, disproportionate and irrelevant discoveries…mischief that must be avoided.” [23] That case is distinguishable for a number of reasons. First, Kalamaris was a claim brought under Rule 76, Simplified Procedure, which has different rules for discovery. Further, while the plaintiff’s pleading in Kalamaris is not available, there is no reference in the decision to any allegations that would have connected the plaintiff’s job functions or employment to IBM U.S., nor is there any indication of a claim for punitive or aggravated damages. [24]
[29] In my view, the principles outlined in Gnanasegaram v. Allianz Insurance Co. of Canada, 2005 ONCA 7883 are more apt and are applicable to the circumstances of this action. In Gnanasegaram, the Court of Appeal allowed challenged allegations of systemic discrimination to stand. As the Court of Appeal explained, for the purposes of pleading discriminatory conduct as a basis for a wrongful dismissal claim, there is no principled basis for distinguishing between allegations of direct discrimination aimed at a plaintiff and allegations of systemic discrimination (in that case race discrimination) which target a class or group of which the plaintiff is a member. The Court of Appeal also recognized the difficulty in proving allegations of discrimination (in that case race discrimination) by way of direct evidence. Importantly for present purposes, the Court of Appeal noted that “the Rules of Civil Procedure and specifically those which relate to the ability of the Defendant to require particulars, and which govern the scope of both documentary and oral discovery are adequate to meet any concerns about the breadth of these pleadings.” [25]
[30] As in Gnanasegaram, I find that the Impugned Pleadings are relevant, and I see no principled basis for distinguishing between allegations of direct age discrimination aimed at a plaintiff and allegations of systemic age discrimination. The current circumstances do not raise the same concerns about the need to curtail mischief that arises from overly broad and irrelevant pleadings as was the case in Abdi Jama, Kalamaris and McKee. Further, as in Gnanasegaram, the Rules of Civil Procedure, including those relating to the scope of discovery, are available to address any concerns about the breadth of the pleadings.
(iii) Should the Impugned Pleadings be struck out because they add complexity to the action that outweighs any potential marginal probative value?
[31] IBM Canada argues that even if the Impugned Pleadings are relevant, they should be struck out pursuant to Rule 25.11(a) on the ground that any marginal probative value is outweighed by the prejudicial effect. [26] IBM Canada argues that the Impugned Pleadings demonstrate that the plaintiff intends to broadly explore the allegations of the systemic practice of age discrimination by engaging in a fishing expedition. IBM Canada asserts that “inappropriate pleading of similar facts that guarantees broadening of discovery and trial should be weeded out at the earliest opportunity”. [27]
[32] Similar facts may be pleaded if the added complexity arising from the pleading does not outweigh the potential probative value. [28] When weighing the probative value of similar fact allegations, the following principles apply:
(a) The added complexity should not outweigh the probative value; (b) Similar acts are not probative if there is not a sufficient degree of similarity; (c) The similarity must be provable without prolonged inquiry, although inevitably, the litigation process will be lengthened to some extent as a result of proper similar fact allegations; (d) The added complexity should not lead to undue oppression or unfairness; and (e) If a system or scheme of conduct is alleged, the past similar acts must have sufficient common features to constitute the system or scheme. [29]
[33] In considering whether a pleading should be struck out on the ground that its marginal probative value outweighs its prejudicial effect, the Court must “balance the rights of the parties on the particular facts of the case and must consider carefully the extent to which the particulars attacked are necessary to enable the defendant to prove its case and their probative value in establishing that case”. [30] Further, where the impugned allegations are relevant and material, the court should exercise the power to strike a pleading with considerable caution. [31]
[34] In support of its position that the Impugned Pleadings should be struck out because their prejudicial effect outweighs their probative value, IBM Canada relies on the decisions in Abdi Jama, Kalamaris, and McKee, among others. [32] In McKee, the court considered a similar fact pleading in a wrongful dismissal and discrimination claim. In the statement of claim in McKee, the plaintiff alleged discriminatory conduct by the defendant against female employees. In the reply, the plaintiff included an allegation about the defendant’s conduct in respect of any associate or employee who had left the defendant’s dental practice. The court found that the disputed reply pleading was prejudicial because of its breadth in the sense of the group of people captured. The concern was that the pleading was no longer restricted to conduct towards women and the amendment included any associate or employee. The court found that there was no specificity to the disputed pleading that would allow for the required finding of similarity and sufficiency of common features with respect to the similar acts. The court concluded that the pleading would lead to an extensively prolonged discovery process and trial, involving issues of prior conduct in relation to employees who were not parties to the litigation and whose privacy interests may be affected. [33]
[35] In my view, McKee is distinguishable. In the present case, the termination of the plaintiff’s superior has a sufficient similarity to the allegations regarding the plaintiff’s termination. Further, unlike McKee and the other cases relied on by IBM Canada, the disputed pleadings are not of limited probative value. As noted above, the Impugned Pleadings are relevant to the claim of systemic discrimination and are also probative of the claim for punitive damages. In addition, the IBM Canada evidence of prejudice consists of bald allegations that lack detail.
[36] As the Court of Appeal has instructed: “Pleadings are not the appropriate stage in an action to engage at large in what is essentially a trial judge’s exercise for determining the admissibility of evidence at trial” [34] and “it is not for the court to prune the [plaintiff’s] case at this stage and limit the allegations”. [35]
[37] Where disputed allegations are relevant and material, the court should exercise its powers under Rule 25.11 with considerable caution. [36] Here, the Impugned Pleadings are probative allegations, and any concerns about admissibility should be addressed by the trial judge. [37] In the result, I find that it is not appropriate to strike any of the impugned pleadings on the basis that they are of marginal probative value that is outweighed by their prejudicial effect.
E. DISPOSITION AND COSTS
[38] For the reasons outlined above, and subject to the plaintiff making the Proposed Further Amendments, the IBM Canada motion is dismissed.
[39] With respect to costs, the parties agreed that costs in the all-inclusive amount of $6,000 would be payable to the successful party. That agreement was made on the understanding that the plaintiff will make the Proposed Further Amendments. As a result, the plaintiff is the successful party and IBM Canada shall pay the plaintiff costs of this motion in the all-inclusive amount of $6,000. Such costs shall be payable within 30 days of the plaintiff making the Proposed Further Amendments. If any issues arise with respect to the Proposed Further Amendments, the parties may request a case conference before me by contacting my Assistant Trial Coordinator.
[40] I order as follows:
- Subject to the plaintiff making the Proposed Further Amendments (as defined in paragraph 5 of this endorsement), the IBM Canada motion is dismissed.
- IBM Canada shall pay the plaintiff costs of this motion fixed in the amount of $6,000, inclusive of disbursements and taxes, within 30 days of the plaintiff making the Proposed Further Amendments.
DATE: April 16, 2024 R. Frank Associate J.
[1] R.S.O. 1990, c. H. 19 [2] With respect to the Systemic Age Discrimination Pleadings, IBM Canada seeks an order striking, in whole or in part, paragraphs 31, 34, 35, 36, 37, 38, 39, 55, 59 and 65 of the Second Amended Claim. [3] With respect to the Systemic Age Discrimination Pleadings, IBM Canada seeks an order striking, in whole or in part, paragraphs 38-43 of the Second Amended Claim. [4] Limitations Act, 2002, S.O. 2002, C. 24, Sched. B [5] Stedfasts Inc v Dynacare Gamma Laboratory Partnership, 2020 ONSC 8008 (“Stedfasts”) at para 29 [6] Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 at para 49 [7] Canadian National Railway Company v. Brant et al, 2009 ONSC 32911, [2009] OJ No 2661, 96 OR (3d) 734 (Sup. Ct.) (“Brant”) at para 29 [8] Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649 at para 15 [9] Abdi Jama (Litigation Guardian of) v. McDonald's Restaurants of Canada Ltd., 2001 CarswellOnt 939 (“Abdi Jama”) at para 21 [10] This includes paragraphs 31, 34, 35, 36, 38, 55, and 65 of the Second Amended Claim. [11] Brant at para 28 [12] Whiten v Pilot Insurance Co, 2002 SCC 18, [2002] 1 SCR 595 at paras 86-87 [13] Taylor v Canada Cartage Systems Diversified GP Inc, 2018 ONSC 617 at para 24, citing George v. Harris, [2000] O.J. No. 1762 at para 20 [14] Stedfasts at para 30 [15] McKee v. Rowshani-Zafaranloo, 2021 ONSC 2452 (“McKee”) at paras 19-22 [16] IBM Canada takes the position that the plaintiff’s evidence of an online article and certain court documents relating to proceedings regarding systemic age discrimination involving IBM U.S. is irrelevant. For the purposes of this motion, I place no weight on that evidence and do not rely on it. [17] Gnanasegaram v. Allianz Insurance Co. of Canada, 2005 ONCA 7883 (“Gnanasegaram”) at para 11 [18] Brant at para 28 [19] These figures were as of June 16, 2023 [20] Lysko v. Braley, 2004 ONSC 40666, [2004] O.J. No. 4727 (S.C.J.), at paras 63-64; affirmed on this point (2006), 2006 ONCA 11846, 79 O.R. (3d) 721 (C.A.), at p. 731 [21] On this issue, IBM Canada relies on: Abdi Jama; Kalamaris v. IBM Canada Limited, 2021 ONSC 5704 (“Kalamaris”); and McKee [22] Abdi Jama at paras 25-26 [23] Kalamaris at para 6 [24] For the reasons outlined below, McKee is also distinguishable [25] Gnanasegaram at paras 10-13. See also Bansal v 2343467 Ontario Inc, 2015 ONSC 1016 at paras 60-61, citing Gnanasegaram, and Covelli v. Sears Canada Inc., 2011 ONSC 1850 [26] Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd., 2008 ONCA 644 (“Quizno’s”) at para 15 [27] Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214, 141 A.C.W.S. (3d) 254 (Sup. Ct.) (“MFP Financial”) at para 29 [28] Abdi Jama at para 21 [29] Williams v Wai-Ping, 2005 CarswellOnt 7573, [2005] O.J. No. 6186, 144 A.C.W.S. (3d) 751 at para 11 [30] Quizno’s at para 15 [31] Quizno’s at para 15 [32] For the reasons outlined above, Abdi Jama and Kalamaris are both distinguishable. [33] McKee at paras 22-27 [34] Quizno’s at para 16 [35] Quizno’s at para 23 [36] Quizno’s at para 15 [37] MFP Financial at para 29