



COURT OF APPEAL FOR ONTARIO

CITATION: Davidoff v. Sobeys Ontario, 2019 ONCA 684

DATE: 20190904

DOCKET: C65664

Tulloch,
    Benotto and Huscroft JJ.A.

BETWEEN

Alexander Davidoff

Plaintiff (Appellant)

and

Sobeys Ontario

Defendant (Respondent)

Alexander Davidoff, acting in person

Zohaib I. Maladwala and Rachel Laurion, for the
    respondent

Heard: May 23, 2019

On appeal from the order of
    Justice Meredith Donohue of the Superior Court of Justice, dated June 20, 2018.

Tulloch J.A:

[1]

Mr. Davidoff appeals the striking of his Statement of Claim
    by the court below for wrongful termination under r. 21.01(1)(a) of the
Rules
    of Civil Procedure
: R.R.O 1990, Reg. 194. For the reasons
    that follow, I would dismiss the appeal.

I.

FACTS

[2]

Mr. Davidoff issued a Statement of Claim on November
    1, 2017, intending to sue Sobeys Ontario for wrongful termination. He claims
    that he was wrongfully dismissed after he discovered fraud on the part of two
    Sobeys managers. Both parties agree that the date of his termination was
    October 6, 2015.

[3]

The parties also agree that the limitation
    period for the wrongful termination claim is two years, as prescribed by s. 4
    of the
Limitations Act
S.O. 2002, c. 24,
    Sched. B. Mr. Davidoff would therefore have needed to issue a Statement of
    Claim or a Notice of Action on or before October 6, 2017.

[4]

On September 29, 2017, Mr. Davidoff mailed a
    letter to Sobeys Director of Human Resources, entitled Notice of Action for
    Wrongful Dismissal and Defamation of Alexander Davidoff. He also emailed the
    letter to Sobeys lawyer at Fasken Martineau DuMoulin LLP. The letter included
    a statement that Mr. Davidoff would commence legal action against Sobeys Inc.
    for wrongful dismissal and defamation.
[1]
The letter did not follow the format prescribed for Notices of Action in r.
    14.03(2) Form 14C

of
    the
Rules of Civil Procedure
.  Among other
    things, the letter was not signed by the local registrar of the Superior Court
    of justice and did not contain the court seal. The letter also stated that a
    legal action
would be

commenced and not that it
had been

commenced as required by Form 14C.

[5]

Mr. Davidoff filed a Statement of Claim on
    November 1, 2017, outside the limitation period for his wrongful termination
    claim. Sobeys Ontario moved to strike the claim under r. 21.01 on the basis
    that it was plain and obvious that the claim was barred by the statutory
    limitation period. In response, Mr. Davidoff opposed the motion on the basis
    that his September 29 letter was a Notice of Action, and therefore he had
    commenced his action within the two year period.

[6]

The motions judge, Donohue J, granted Sobeys
    motion and struck Mr. Davidoffs claim because his September 29 letter did not
    conform to the requirements for a Notice of Action under r. 14.03(2) of the
Rules
    of Civil Procedure
.
She concluded
    that this was a clear case where a wrongful dismissal action was appropriately
    struck under r. 21.01(1)(a) before a statement of defence was filed. She
    reasoned that Mr. Davidoff had not commenced his action within the two-year
    limitation period so it was plain and obvious that his claim was barred by the
Limitations
    Act
.

[7]

Donohue J awarded costs of $5,000 to the
    Respondent. She noted that their actual costs were $11,221.13 and their partial
    indemnity costs were $7,178.44. Recognizing that the Appellant was
    self-represented, she exercised her discretion and awarded cost in the amount
    of $5,000.

II.

ANALYSIS

A.

The September 29 letter was not a Notice of Action

[8]

Mr. Davidoff appeals the striking of his claim. He
    argues that the motions judge erred in her interpretation of the formal
    requirements for a Notice of Action. He specifically argues that r. 14.03(2),
    Form 14C of the
Rules
applies only to online
    filing. He submits that since he served the notice through registered mail and
    not online, he did not have to conform to Form 14C.  I do not agree. A Notice
    of Action commencing a proceeding must meet the requirements in r. 14.03(2).
    Mr. Davidoffs letter did not meet these requirements. Donohue J. did not err
    in her interpretation of the
Rules
or in her
    conclusion that the September 29 letter was not a Notice of Action and could
    not have commenced a proceeding.

[9]

This finding by the motions judge is one of mixed fact
    and law. As such, her ruling attracts deference from this court, absent
    palpable and overriding error or an extricable error in principle in her analysis
    of the law:
Housen v. Nikolaisen,
2002 SCC 33,
    [2002] 2 S.C.R. 235, at paras. 26 to 37; see also
Donnell v. Joseph,
2012 ONCA 240, 94 M.P.L.R. (4
th
) 169, at para. 11.
    Having found that a proper Notice of Action was not filed within the limitation
    period, and that a claim was not commenced by October 6, 2017, the motions
    judge was correct to consider next whether the motion could be disposed of
    pursuant to r. 21.

B.

This is an appropriate case for the limitation period issue to be
    decided on a r. 21.01(1)(a) motion

[10]

This is one of the rare cases in which it is appropriate for the
    limitation issue to be decided on a r. 21.01 motion to strike. The Respondent
    cites
Beardsley v. Ontario
for the proposition
    that in some rare cases limitations issues can be decided on pre-trial motions
    to strike: 57 O.R. (3d) 1.  Since
Beardsley,
this court has elaborated on that principle in a number of other cases,
    including recently, in the decision of
Clark v. Ontario (Attorney
    General)
2019 ONCA 311, leave to appeal to S.C.C
    requested, 38687;
Kaynes v. BP, P.L.C.
, 2018
    ONCA 337, 81 B.L.R. (5
th
) 6; and
Salewski v. Lalonde
2017 ONCA 515, 137 O.R. (3d) 762. However even under the current
    more restrictive rule, it was appropriate to strike Mr. Davidoffs claim on the
    r. 21.01 motion.

[11]

This court in
Salewski
noted that
    the
Beardsley
exception, allowing some claims
    to be struck on a r. 21.01(1)(a) motion based on the expiry of a limitation
    period, may have been overtaken by the
Limitations Act
of 2002. The bar is now higher for allowing a motion to strike
    based on the conclusion that a limitation period has expired. This court reaffirmed
    that consequence of
Salewski
in
Clark
at para. 48.

[12]

The analysis in
Salewski
and
Clark
referred to situations in which the issue of
discoverability
underlying the two-year
    general limitation period in the 2002
Limitations Act
applies. This is clear in the reasoning in
Brozmanova v.
    Tarshis
, referred to in
Clark
at para. 44: A plaintiff who risks the dismissal of her action on
    the basis of a limitations defence should not have to ask a court for
    permission to file evidence
on the issue of when
    she discovered her claim
. 2018 ONCA 523, 81 C.C.L.I.
    (5
th
) 1, at para. 22 (emphasis added).

[13]

In this case, the parties both agree on the date the claim became
    discoverable and the limitation period began, and the court is not required to
    make the findings of fact as discussed in
Brozmanova
and referenced in
Clark
that would
    be relevant to that question. There is no risk of unfairness to Mr. Davidoff on
    the basis raised in
Brozmanova
and
Clark
in the motions judges striking of his claim.

[14]

The situation in this case is more similar to that in
Kaynes
, in which this court did allow a limitation issue to be determined
    under r. 21.01(1)(a). The court in that case noted at paragraph 13: In a case
    such as this where the parties agree that there are no material facts in
    dispute, it is an efficient use of court resources to determine limitations
    defences on a Rule 21 motion. The court in
Clark
distinguished
Kaynes
because,
    unlike in
Clark
, there were no material facts
    in dispute, and [
Kaynes
was] in the context of
    an event-triggered limitation period at para. 45. On those factors, this case
    is more like
Kaynes
than
Clark
. There are no material facts in dispute, including the date on
    which the limitation period was triggered. As in
Kaynes
there is no issue of discoverability.

[15]

The only question to be determined on the r.
    21.01(1)(a) motion to strike was whether the September 21 letter qualified as a
    Notice of Action. Even under
Salewski
and
Clark
, as far as they are applicable to this case, it was appropriate to
    determine that question on the r. 21.01 motion. This is one of the rare
    situations in which there is absolutely no utility in requiring a defence to be
    filed so that pleadings can be noted closed.  The facts are undisputed, the
    matter is far from complex and the additional step would serve no purpose.

C.

The Respondent did not introduce a new material fact in oral argument

[16]

Mr. Davidoff also submits that counsel for the Respondent improperly
    introduced a new material fact during oral submissions and that the
    Respondents position was not clear from their written materials. This
    allegedly new material fact is the Respondents position that the September 29
    letter was not a Notice of Action under the
Rules
. Mr. Davidoff contends that the Respondents written materials only
    refer to the timing of his Statement of Claim and not to his letter. He
    therefore did not have a fair opportunity to respond to their arguments.

[17]

I would not give effect to this submission. Donohue J. had allowed
    Mr. Davidoff to provide the September 29 letter as evidence on the r. 21 motion
    to dismiss. The Respondents position on the letter was a response to evidence
    that Mr. Davidoff himself had introduced and was not a new or unexpected
    addition to the oral argument.

[18]

In all the circumstances this was a clear case
    where a wrongful dismissal action was appropriately struck under r. 21.01(1)(a)
    before a statement of defence was filed.

D.

Costs

[19]

In my view, Donohue J.s order of costs was
    appropriate. Cost awards are discretionary and are entitled to deference. She
    acknowledged the difficulties of the Appellant as a self-represented party, and
    her award was well within the range of what was fair and reasonable.

[20]

Accordingly, I would dismiss the appeal.

Released: MT SEP 4 2019

M. Tulloch J.A.

I agree. M.L. Benotto J.A.

I agree. Grant Huscroft J.A.





[1]

Mr. Davidoff clarified in his submissions to this Court that
    he did not intend to pursue a claim for defamation and focuses on his claim for
    wrongful dismissal.


