



COURT OF APPEAL FOR ONTARIO

CITATION: Bailey v. Milo-Food & Agricultural
    Infrastructure & Services Inc., 2017 ONCA 1004

DATE: 20171219

DOCKET: C63756

Hourigan and Brown JJ.A. and Himel J. (
ad hoc
)

BETWEEN

Dan Bailey

Plaintiff

(Appellant)

and

Milo-Food
    & Agricultural Infrastructure & Services

Inc. o/a
    Milo-Fais, and Geetu Pathak

Defendants

(Respondents)

Rodney Godard and Ioana Vacaru, for the appellant

Anita Lanary and Eric Florjancic, for the respondents

Heard and released orally: December 15, 2017

On appeal from the order of Justice Kirk W. Munroe of the
    Superior Court of Jusitce, dated April 10, 2017.

REASONS FOR DECISION

[1]

The appellant sued his former employer,
    the respondent, Milo-Food & Agricultural Infrastructure & Services Inc.
    (Milo-FAIS) and its President and CEO, the respondent, Geetu Pathak (Ms.
    Pathak) for wrongful dismissal, severance pay pursuant to the
Employment
    Standards Act, 2000
, S.O. 2000, c. 41, the emotional
    upset and mental distress, and breach of the
Ontario Human Rights
    Code
, RSO 1990, c. H19 and the
Occupational
    Health and Safety Act
, RSO 1990, c.O.1. The
    respondents moved to strike the statement of claim pursuant to r. 21.01(1)(b)
    of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, on the ground that it disclosed no reasonable cause of
    action and was statute barred.

[2]

The motion judge granted the respondents
    motion to strike in respect of
the
    appellants severance pay and wrongful dismissal claims. He dismissed the
    respondents motion to strike in respect of the appellants other claims.

[3]

On appeal,
the appellant seeks a declaration that his claims for severance pay and
    for damages for wrongful dismissal were issued within the limitation period.
    The respondents bring a cross-appeal seeking an order to strike the balance of
    the appellants claims
for failure to
    disclose a reasonable cause of action and a declaration that they are statute
    barred.

[4]

The following brief summary of facts will
    put the issues in the appeal and cross-appeal in context. The appellant was a
    long term employee of Milo-FAIS and its predecessor company. By letter dated
    March 7, 2013, Ms. Pathak advised the appellant that Milo-FAIS could no longer
    sustain the costs of his position and proposed two options for his exit from
    employment. He rejected that offer.
By
    letter dated March 18, 2013, the appellant was advised that his service prior
    to Milo-FAIS was not recognized and that his employment would end two years
    hence, on March 22, 2015. The appellant worked for Milo-FAIS until March 22,
    2015. He commenced his action on December 21, 2015.

[5]

The appellant submits that the motion
    judge erred in concluding that his cause of action for wrongful dismissal arose
    on the date he was provided notice and not on the last day he worked for
    Milo-FAIS. He argues that the motion judges reliance on
Jones v.
    Friedman
, 2006 CarswellOnt 120 (C.A.) in
    this regard was misplaced.
His submission
    is that the motion judge erred by conflating actual dismissal with notice of
    future dismissal, since in
Jones

the date of dismissal, as
    pleaded, coincided with the date of notice. According to the appellant,
    subsequent trial decisions relying on
Jones
have continued to conflate these dates.

[6]

We do not give effect to this submission
    and decline to adopt the restrictive interpretation of
Jones
urged upon us by the appellant. In
Jones

the notice of
    termination was given on December 12, 1994 and the employment ended on January
    31, 1995. The breach the appellant relied on occurred on December 12, 1994 when
    his employment was terminated without reasonable notice. This court fully
    appreciated the context, and decided the date of notice of termination was when
    the limitation period began.
Jones

stands for the principle that
    a cause of action for wrongful dismissal arises on the date of notice of
    termination. The motion judge made no error in his reliance on that case or in
    striking the wrongful dismissal claim.

[7]

With respect to the claim for severance
    pay, the motion judge determined that on the issue of the limitation period,
    the same principles apply as to the claim for wrongful dismissal. He rejected
    the appellants argument that s. 65(1) of the
Employment Standards
    Act
indicates that severance claims arise
    at the end of employment on the basis that the section is the calculation
    section, not the entitlement section. On appeal the appellant makes a novel
    and credible argument based on ss. 11(5), 63(1)(a), 64(1) and 65(1) of the
Employment
    Standards Act
that until employment is
    completed the claim for severance pay does not crystalize. There was no
    authority submitted by the parties that is contrary to this argument. In the
    circumstances, it is not plain and obvious that the limitation period for
    severance claim should not run from the date of completion of employment. We
    also do not accept the respondents submission that is plain and obvious that
    s. 63(1)(e) of the
Employment Standards Act
applies as opposed to s. 63(1)(a) as submitted by the
    appellant.

[8]

Finally, with regard to the cross-appeal,
    we see no error in the motion judges conclusion that it was inappropriate to
    dismiss the other claims made by the appellant on a rule 21 motion. In the
    statement of claim it is alleged that the appellant was subjected to conduct
    which caused him emotional upset, mental suffering, and which breached his
    rights under the
Human Rights Code
and the
Occupational Health and Safety Act
throughout and until the end of the notice period.
    For the purpose of a r. 21.01(2)(b) motion, these facts must be presumed to be
    true.
The claims arguably arise from a
    continuing cause of action that predates the notice of termination, rather than
    a series of independent torts. We are of the view that the motion judge
was correct to dismiss the motion to strike these
    claims, since they were
entangled with
    factual issues.

[9]

In the result, the appeal is allowed in
    part. The motion judges order striking the claim for severance pay is set
    aside. The balance of the appeal and the cross-appeal are dismissed. Given the
    divided success, there is no order as to costs.

C.W.
    Hourigan J.A.

David
    Brown J.A.

Himel
    J.


