COURT FILE NO.: CV-19-00614989-0000
DATE: 20250203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jean-Marie Dixon, Plaintiff
AND:
His Majesty the King in Right of Ontario and Association of Law Officers of the Crown, Defendants
BEFORE: L. Brownstone J.
COUNSEL: Plaintiff, Self-Represented
J. Thomas Curry, Rebecca Jones and Samantha Hale, for the Defendant, His Majesty the King in Right of Ontario
HEARD: In writing
ENDORSEMENT
[ 1 ] The plaintiff, Ms. Dixon, moves to strike three affidavits of Angela Oh, a representative of the defendant HMK, that HMK seeks to file on its motion to dismiss the claim for lack of jurisdiction (the Weber motion). The Weber motion is brought under rule 21.01(3)(a), which provides that a defendant may move to have an action stayed or dismissed on the ground that the court has no jurisdiction over the subject matter of the action.
[ 2 ] Further to my endorsements of August 13, 2024, and November 22, 2024, this motion was heard in writing.
[ 3 ] Ms. Oh is a manager of Human Resources, in the Strategic Business Unit of the Ministry of the Attorney General. The three affidavits comprise Ms. Oh’s May 20, 2022, filed in response to Ms. Dixon’s motion for funding (the funding affidavit), and two affidavits sworn in support of the Weber motion – one on November 22, 2023 (the jurisdiction affidavit) and a second on January 29, 2024 (the supplementary affidavit).
[ 4 ] The funding affidavit was used in a 2022 motion brought by Ms. Dixon, in which she sought advanced costs and/or funding of her civil action. It was in the responding materials for this motion that Ms. Oh’s funding affidavit was sworn and produced. The funding affidavit repeats statements from an affidavit sworn by Lawrence Helpert, a manager of resource planning and development at the Attorney General, in a reinstatement application brought by Ms. Dixon.
[ 5 ] Ms. Dixon had advised the previous case management judge, Vermette J., that she wished to rely on her funding motion materials for the jurisdiction motion. HMK advised that it would not object to this, as long as it, too, could rely on its funding motion materials. HMK maintains the position that if Ms. Dixon does not wish to rely on her funding motion materials, it will not seek to rely on Ms. Oh’s funding affidavit.
[ 6 ] Ms. Oh’s jurisdiction and supplementary affidavits were not included with HMK’s original motion materials. Ms. Dixon’s responding materials contained some documents, not attached to an affidavit. HMK then delivered Ms. Oh’s affidavits.
[ 7 ] Ms. Dixon moves under rule 25.11 to strike the affidavit. Rule 25.11 permits the court to strike out all or part of a pleading, including an affidavit, if the contents may prejudice or delay the fair trial, are scandalous, frivolous or vexatious, or are an abuse of process.
[ 8 ] Ms. Dixon argues that the Oh affidavits contain irrelevant information, hearsay, opinion evidence, and legal argument. She argues they offend rule 4.06(2) and 39.01(4), in that the information is not within Ms. Oh’s personal knowledge, and sources of her information and belief are not identified. Ms. Dixon argues it is improper and insufficient for the court to say it will ignore portions of the affidavit: Paul v. Corporation of the Township of Madawaska Valley, 2021 ONSC 4996 at paras, 60-62, 69, aff’d 2022 ONCA 444. Ms. Dixon argues that Ms. Oh is not an expert yet offers expert opinions and legal argument. Further, Ms. Dixon argues that the facts in the statement of claim are to be taken as true on a jurisdiction motion, but Ms. Oh improperly attacks the assertions in the claim. These attacks include references to an external investigation of Ms. Dixon’s workplace discrimination and harassment prevention complaints. With respect to Ms. Oh’s supplementary affidavit, Ms. Dixon also argues that Ms. Oh is not credible and has changed or repudiated evidence from her other affidavits.
[ 9 ] Ms. Dixon submits that pleadings that contain offensive allegations aimed solely at prejudicing the other party, or that contain statements inserted for colour, should be struck under rule 25.11(b): La Calamita v. La Calamita, 2024 ONSC 4219 at para. 28. That same paragraph notes that irrelevance alone is insufficient to meet the test for striking out.
[ 10 ] I have grouped Ms. Dixon’s objections to the affidavits in my analysis below.
i) The collective agreement terminology
[ 11 ] Ms. Dixon complains Ms. Oh refers to a document as a collective agreement when in fact it is not. The document is titled “collective agreement” and Ms. Oh is entitled to refer to it that way. Indeed, Ms. Dixon has referred to it as such, for example in her funding affidavit. However, none of those references determines the question of whether the agreement meets the statutory definition of a collective agreement.
[ 12 ] Ms. Dixon argues that Ms. Oh has proffered an opinion as to whether the arbitration agreement meets the statutory definition of collective agreement. The use of terminology alone does not amount to an opinion. Ms. Oh’s use of the term neither opines nor determines whether the statutory definition is met. The parties will argue at the motion whether the statutory definition is met. Ms. Dixon is free to argue it does not.
ii) opinion evidence about the agreement
[ 13 ] Similarly, in the jurisdiction affidavit, Ms. Oh refers to portions of the agreement that refer to the Human Rights Code, discrimination, and the grievance procedure. These do not amount to legal opinions about the effect of those provisions. The parties will undoubtedly argue different interpretations and legal effects to be attributed to the provisions.
[ 14 ] Ms. Dixon may also disagree with Ms. Oh’s characterization of the grievance procedure as “comprehensive”. She may cross-examine Ms. Oh on this characterization. She may argue before the court that the procedure is not comprehensive. Ms. Oh’s reference to a “comprehensive” procedure will be tested, but the characterization does not amount to impermissible opinion, or abusive, vexatious, or prejudicial content that should be struck.
[ 15 ] Ms. Oh’s references to the framework agreement, collective agreement, and Arbitration Act also do not constitute improper legal opinion. She sets out her factual understanding of the documents governing the relationship between HMK and Ms. Oh. Again, the legal effect of this understanding will be subject to argument on the jurisdiction motion.
[ 16 ] Ms. Oh’s specific reference to the terms of the agreement is also permissible; the agreement itself must be before the court on the Weber motion and the parties may argue which parts of the agreement are relevant to the issues at hand.
iii) Opinion evidence and proportionality
[ 17 ] Ms. Oh deposes that “as a matter of practice, the Crown does not treat ALOC and OCAA differently from its trade union bargaining agents.” She then provides two examples.
[ 18 ] Ms. Dixon argues that the inclusion of this statement will delay the proceeding, as she will “need to do an extensive review of the Ontario's relationship with and treatment of its trade unions. The Plaintiff will be put to investigating the issue and to producing her own reports and conclusions. This will involve more elaborate production and more evidence on the Weber Motion. There will necessarily be significant delay in the completion of this matter. The delay that would be occasioned, and the additional work required of the Plaintiff in preparing her case, if Angela Oh's opinion evidence is permitted, would necessarily be prejudicial to the Plaintiff.
[ 19 ] HMK denies that Ms. Dixon would be entitled to the documents she would seek, and therefore disagrees that the litigation would be delayed.
[ 20 ] I find that the sentence as drafted is so broad as to risk delaying this matter further. The sentence is struck with leave to amend to specify the trade unions to which Ms. Oh is referring, and to enumerate, to the degree possible, the ways in which the entitles are not treated differently.
iv) Reference to the WDHP report, denial of racism pled in the claim
[ 21 ] Ms. Dixon objects to references to the WDHP report in Ms. Oh’s funding affidavit, arguing it is irrelevant, vexatious, and abusive. The references are directly responsive to Ms. Dixon’s funding affidavit, in which she refers to the WDHP investigation and report. HMK has advised it will not seek to rely on the funding affidavit if Ms. Dixon does not seek to rely on her funding affidavit. If one of the affidavits from that motion is before the court, the court should have the full record before it.
v) Expert evidence on anti-black racism
[ 22 ] Ms. Oh has not offered opinion evidence on anti-black racism. She has referred to various reports and investigations.
vi) Credibility and reliability
[ 23 ] As noted above, Ms. Dixon argues, with respect to Ms. Oh’s supplementary affidavit, that Ms. Oh is not credible and has changed or repudiated evidence from her previous affidavits. In the supplementary affidavit, Ms. Oh states she seeks to revise and clarify paragraph 23 of her jurisdiction affidavit and a heading in her funding affidavit. Ms. Oh corrects her previous statement that Ms. Dixon had only one grievance outstanding, and attests that two grievances are outstanding. With respect to the interim settlement described in her funding affidavit, Ms. Oh deposes that the settlement did not resolve the entire grievance.
[ 24 ] Ms. Dixon asserts that Ms. Oh is therefore not credible or reliable. These are matters properly addressed on cross-examination; they do not form the basis for striking the supplementary affidavit.
vii) Failure to attribute evidence to sources
[ 25 ] With respect to Ms. Dixon’s argument that Ms. Oh does not attribute the source of her knowledge, I note that Ms. Oh deposes that she reviewed the relevant documents to assist her in setting out the chronology. In the jurisdiction affidavit, Ms. Oh refers to documents in Ms. Dixon’s motion record when summarizing the chronology. Documents to which Ms. Oh refers for specific steps in the chronology are appended to her affidavit or found in Ms. Dixon’s materials. I agree with then Master Macleod that in an affidavit of this nature, the reference at the outset of the affidavit to a review of the file as the basis of the information is sufficient: Allianz Global v Attorney General of Canada, 2016 ONSC 29 at para. 15.
Disposition
[ 26 ] The first sentence of paragraph 6 of the affidavit of Angela Oh dated November 22, 2023, is struck with leave to amend to specify the trade unions to which Ms. Oh is referring, and to enumerate, to the degree possible, the ways in which the entitles are not treated differently. The motion is otherwise dismissed. Success being divided, my inclination is to make no order as to costs. Should either party take issue with this, they may do so at the next case conference.
[ 27 ] The amendments to Ms. Oh’s affidavit shall be made within 2 weeks. The parties shall contact my judicial assistant to schedule a case conference in the very near future to establish a timetable for the remaining steps in the Weber motion and a date for the motion to be argued. Ms. Dixon shall be prepared to advise the court and the parties at that case conference as to whether the funding affidavits will form part of the materials on the Weber motion.
L. Brownstone J.
Date: February 3, 2025