Case reference: Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONSC 1789
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
*Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONSC 1789
The plaintiff was given two years’ working notice of termination in March 2013. He continued working for the entire notice period. In December 2015, he commenced an action for damages for wrongful dismissal. He also asserted claims for severance pay, intentional infliction of mental distress and human rights violations. The defendant brought a motion to strike the statement of claim as disclosing no cause of action because the claim was statute-barred.
Held, the motion should be granted in part.
The wrongful dismissal and severance pay claims arose on the date when the plaintiff received notice of termination and not on the last day he worked. Those claims were statute-barred as the action was not commenced within two years of the date of notice. The claims for intentional infliction of mental distress and human rights violations were based on conduct which was ongoing throughout the working notice period. Those claims were not statute-barred.
Motions to strike
Rule 21.01(1)(b) of the Rules of Civil Procedure, provides, in pertinent part, as follows:
21.01(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action . . . and the judge may make an order or grant judgment accordingly.
The test applicable to a motion to strike is uncontroversial.
— A claim can be struck only if it is “plain and obvious” that the pleading discloses no reasonable cause of action. The claim must have no reasonable prospect of success.
— All facts pleaded are assumed to be true unless they are patently ridiculous or manifestly incapable of being proven.
— Claimants must plead all facts upon which they rely. The facts pleaded are the basis upon which the claim is evaluated.
— A motion to strike is a tool to be used with care. The law is not static or unchanging. Thus, the approach must be generous and err on the side of permitting novel but arguable claims.
— Statements of claim are to be read generously. Drafting deficiencies and a failure to plead with precision and clarity are not fatal if the necessary material facts are pleaded. See R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, at paras. 17, 21-22; Paton Estate v. Ontario Lottery and Gaming Commission (c.o.b. Fallsview Casino Resort) (2016), 131 O.R. (3d) 273, [2016] O.J. No. 3031, 2016 ONCA 458, 349 O.A.C. 106, at paras. 4-5, 11-14.
Further, if the area of the law in question is “muddy” or not settled, a court should not dispose of the matter on a motion to strike: see Transamerica Life Canada Inc. v. ING Canada Inc. (2003), 68 O.R. (3d) 457, [2003] O.J. No. 4656, 2003 CanLII 9923 (C.A.), at para. 39.
The purpose behind the motion to strike was set forth by McLachlin C.J.C. in Imperial Tobacco, at paras. 19 and 20:
The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial. This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case.
No evidence is admissible on a motion to strike: see rule 21.01(2). Documents referred to and relied upon in a statement of claim are not evidence in this context but rather are deemed to be incorporated into the pleading and may be considered: see Web Offset Publications Ltd. v. Vickery (1999), 43 O.R. (3d) 802, [1999] O.J. No. 2760 (C.A.), at p. 803 O.R., leave to appeal to
S.C.C. dismissed [1999] S.C.C.A. No. 460.
When a litigant’s pleading is struck, it should be done without leave to amend only in the clearest of cases “when it is plain and obvious that no tenable cause of action is possible on the facts as alleged”: see Conway v. Law Society of Upper Canada, [2016] O.J. No. 451, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 16, citing South Holly Holdings Ltd. v. Toronto- Dominion Bank, [2007] O.J. No. 2445, 2007 ONCA 456, at para. 6.
For motions to strike based on the expiry of a limitation period, such motions must be brought pursuant to rule 21.01(1)(a) and then usually only when a statement of defence has been filed and the plaintiff has had the opportunity to reply: see Tran v. University of Western Ontario, [2016] O.J. No. 6645, 2016 ONCA 978, at paras. 18-21. “The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded”: Beardsley v. Ontario Provincial Police (2001), 57 O.R. (3d) 1, [2001] O.J. No. 4574, 2001 CanLII 8621 (C.A.), at para. 21.
Limitations generally
Limitations on the commencement of civil actions are governed by statute. In the province of Ontario, the general source is the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. In pertinent part, ss. 4 and 5 state the following:
4. Unless this 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.
5(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom
the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the
circumstances of the person with the claim first ought to have
known of the matters referred to in clause (a).
A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
Limitations in wrongful dismissal actions
The leading case in Ontario on the commencement of the limitation period in a wrongful dismissal action is Jones v. Friedman, [2006] O.J. No. 100, 2006 CanLII 580 (C.A.) (“Jones (C.A.)”). In that decision, the Ontario Court of Appeal held, at para. 4, as follows:
A limitation period commences when the cause of action arises. In a breach of contract, the cause of action arises when the contract was breached. For the purposes of a wrongful dismissal action, the employment contract is breached when the employer dismisses the employee without reasonable notice.
Intentional infliction of mental distress
Intentional infliction of mental distress is recognized as a free-standing tort separate from a wrongful dismissal claim: see Correia v. Canac Kitchens (2008), 91 O.R. (3d) 353, [2008] O.J.
No. 2497, 2008 ONCA 506, at para. 81. In contrast, the tort of negligent infliction of mental distress is not available in the employment context: see Piresferreira v. Ayotte, [2010] O.J. No. 2224, 2010 ONCA 384, 263 O.A.C. 347, at para. 63, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 283.
The elements of the tort of intentional infliction of mental distress are as follows: (1) the defendant engaged in flagrant or outrageous conduct; (2) the defendant’s conduct was intended to cause harm or occurred in circumstances where it was known that harm would ensue; and (3) the defendant’s conduct caused actual damage to the plaintiff: see Correira, at para. 77.
Human rights violations
a. Human Rights Code
Ontario’s Human Rights Code provides, in pertinent part, as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
. . . . .
9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
. . . . .
46.1(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement,
including restitution for injury to dignity, feelings and self-respect.
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
(Emphasis added)
b. Occupational Health and Safety Act
The definitional section of the OHSA provides the following definition for workplace harassment at s. 1(1):
1(1) “workplace harassment” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or
(b) workplace sexual harassment[.]
The OHSA codifies numerous duties imposed on employers in ss. 25 and 26. In s. 25(2), the following duties are included:
25(2) Without limiting the strict duty imposed by subsection (1), an employer shall,
(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;
. . . . .
(h) take every precaution reasonable in the circumstances for the protection of a worker[.]
*source: Ontario Reports
