



COURT OF APPEAL FOR ONTARIO

CITATION: Connor v. Scotia Capital Inc., 2018 ONCA 73

DATE: 20180126

DOCKET: C63846

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Robert Connor

Plaintiff (Appellant)

and

Scotia Capital Inc. (aka Scotia McLeod)

Defendant (Respondent)

Amanda Chapman, for the appellant

David Di Paolo and Caitlin Sainsbury, for the respondent

Heard and released orally: January 17, 2018

On appeal from the Order of Justice Mary E. Vallee of the
    Superior Court of Justice, dated May 8, 2017.

REASONS FOR DECISION

[1]

The appellants employment with the respondent was terminated on October
    19, 2012.  In December 2012, the appellant entered into a settlement agreement
    with the respondent and also signed a release.  In October 2014, the appellant
    commenced an action against the respondent for wrongful dismissal, defamation
    and conversion of his book of business.

[2]

The respondent brought a motion under rule 21.01(3)(d) to stay or dismiss
    the appellants action based on the settlement agreement and release.  The
    motion judge determined that the respondent did not breach a duty of good faith
    to the appellant, did not make fraudulent misrepresentations to him and that
    the settlement agreement entered into by the parties was neither unconscionable
    nor unenforceable.

[3]

On a motion under rule 21.01(3)(d) to dismiss a case as frivolous or
    vexatious or an abuse a process, a court must be satisfied that, on the face of
    the action and in all the circumstances, it is plain and obvious that the
    action cannot succeed.

[4]

Rather than articulating or applying this test, the motion judge
    proceeded as if she was hearing a summary judgment motion and made findings of
    fact based on the evidence presented.  However, unlike a summary judgment
    motion, on a rule 21.01 (3)(d) motion, it cannot be presumed that all relevant
    evidence has been presented.

[5]

Given the dispute over the validity of the release, this was not an appropriate
    case to be determined on a rule 21.01 (3)(d) motion.  As was the case in
Maguna
    v. Ontario (Attorney General)
, 2008 ONCA 799, 2008 CarswellOnt 7120, the
    motion judge arrived at her decision by, in effect, trying the case or at least
    dealing with the motion as if it were a motion for summary judgment.  As stated
    in
Maguna
, this was not appropriate.

[6]

The appeal is therefore allowed and the order below set aside.  The
    respondent shall have 30 days to deliver a statement of defence.  Costs of the
    appeal are to the appellant on a partial indemnity scale fixed in the amount of
    $10,000 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Lois Roberts J.A.

I.V.B. Nordheimer J.A.


