Burgess v. Yellow Pages Group Co., 2012 NSSC 390

SUPREME COURT OF NOVA SCOTIA Citation: Burgess v. Yellow Pages Group Co., 2012 NSSC 390 Date: 20121109 Docket: Hfx No. 359700 Registry: Halifax Between: Randy Burgess Plaintiff v. Yellow Pages Group Co./Groupe Pages Jaunes Cie., a body corporate Defendant LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski Heard: October 30, 2012 in Halifax, Nova Scotia Subject: CPR 12 - Question of Law/Striking out pleadings

Summary: On November 4, 2009, Mr. Burgess was terminated without cause by YPG. The outstanding issue is the amount of damages payable. As a result of his employment, Mr. Burgess was eligible for LTD benefits. He sued the insurer to obtain LTD benefits (the Disability Benefits Action) and settled that matter in February, 2012, with only the insurer. He had included YPG in that action (the Disability Benefits Action) and also separately sued YPG for wrongful dismissal (the Wrongful Dismissal Action).

YPG argued that in the Wrongful Dismissal Action that the disability benefits should be deducted from the wrongful dismissal damages otherwise properly payable. YPG now seeks a preliminary ruling under CPR 12 on a question of law: Is the Plaintiff entitled to double recovery of the disability benefits and wrongful dismissal damages?

YPG also sought the striking of the Plaintiff ’ s para. 4 in his Statement of Claim as an impermissible pleading of the tort of discrimination. Issue: (

a) CPR 12 - When can a question of law be separated out from the issues such that the court can make a determination about the question of law? (

b) CPR 12 - The use of this Rule regarding one party ’ s argument that the pleadings of the opposing party ought to be struck out. Result: The two Actions were consolidated (by agreement). An order for a declaration that pleadings, if advanced, would entail impermissible double recovery was refused; similarly, the declaration sought that para. 4 of the Statement of Claim was an impermissible pleading of the tort of discrimination was refused. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: Burgess v. Yellow Pages Group Co., 2012 NSSC 390 Date: 20121109 Docket: Hfx No. 359700 Registry: Halifax Between: Randy Burgess Plaintiff v. Yellow Pages Group Co./Groupe Pages Jaunes Cie., a body corporate Defendant Judge: The Honourable Justice Peter P. Rosinski Heard: October 30, 2012, in Halifax, Nova Scotia

Counsel: Glenn E. Jones, for the Plaintiff Richard M. Dunlop and Michelle McCann, for the Defendant By the Court : Introduction [ 1 ] On November 4, 2009, Yellow Pages Group Co., hereinafter referred to as “ YPG ” , terminated Mr. Burgess without cause. He was eligible for LTD benefits at that time. Mr. Burgess sued to obtain LTD benefits and received an amount on February 14, 2012, sufficient for him to sign a Full and Final Release of all claims as against The Manufacturers Life Insurance Co. (the “ Benefits Action ” - Hfx No. 339476). [ 2 ] Mr.

Burgess also sued YPG for wrongful dismissal (the “ Wrongful Dismissal Action ” - Hfx No. 359700). YPG now makes a motion under Civil Procedure Rule 12 (hereinafter referred to as “ CPR ” ) in which it claims a declaration from this Court that any monies that Mr. Burgess may receive under the Benefits Action should be deducted from any monies that Mr. Burgess may receive under the Wrongful Dismissal Action. YPG also argued that para. 4 of the Statement of Claim ought to be struck. Procedural Background [ 3 ] Specifically, YPG moved for an order for a declaration pursuant to CPR 37 and 12 that: 1. Mr.

Burgess’ wrongful dismissal action in Hfx No. 359700, hereinafter referred to as the “Wrongful Dismissal Action” and Mr. Burgess’ action for payment of Short Term Disability (“STD”) and Long Term Disability (“LTD”) benefits in Hfx. 339476, hereinafter referred to as the “Benefits Action”, be consolidated pursuant to Rule 37 of the Civil Procedure Rules . 2. The amount of monies that Mr. Burgess has already received or may receive in the future pursuant to the Benefits Action, through settlement or otherwise, be deducted from any amount of monies that Mr.

Burgess may receive pursuant to the Wrongful Dismissal Action. 3. The allegation contained at paragraph 4 of the Wrongful Dimissal Action that Yellow Pages terminated Mr. Burgess’ employment to avoid its responsibilities to Mr. Burgess under the Nova Scotia Human Rights Act and common law be struck out on the basis that: (

a) It is out of time pursuant to s. 29(2) of the Human Rights Act : Any complaint must be made within twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing. (

b) The obligations contained in the Human Rights Act are not part of the common law. Issues

1. The actions should be consolidated [ 4 ] In their written materials, both Plaintiff and Defendant agreed pursuant to CPR 37 that the two actions herein (359700 and 339476) should be consolidated. I agree. I appreciate that, as against The Manufacturers Life Insurance Co., the Plaintiff has filed a Notice of Discontinuance, but YPG was also a named Defendant therein. 2. Should para. 4 of the Statement of Claim be struck out? [ 5 ] The Defendant ’ s motion is articulated as pursuant to CPR 12 and 37 .

To the extent that the Defendant is relying on CPR 12 , the Plaintiff protests that a motion to strike a paragraph in the pleadings should not be effected using CPR 12 . The Plaintiff notes that pleadings may be struck under CPR 88.03 as an abuse of process; and under CPR 13.03 where

summary judgment on the pleadings is proper to the extent that they disclose no cause of action, or make a claim based on a cause of action in the exclusive jurisdiction of another court, or otherwise make a claim that is “ clearly unsustainable when the pleading is read on its own. ” [ 6 ] CPR 13.03 reads:

Summary judgment on pleadings 13.03

(1) A judge must set aside a statement of claim, or a statement of defence, that is deficient in any of the following ways: (

a) it discloses no cause of action or basis for a defence or contest; (

b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court; (

c) it otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own.

(2) The judge must grant

summary judgment of one of the following kinds, when a pleading is set aside in the following circumstances: (

a) judgment for the plaintiff, when the statement of defence is set aside wholly; (

b) dismissal of the proceeding, when the statement of claim is set aside wholly; (

c) allowance of a claim, when all parts of the statement of defence pertaining to the claim are set aside; (

d) dismissal of a claim, when all parts of the statement of claim that pertain to the claim are set aside.

(3) A motion for

summary judgment on the pleadings must be determined only on the pleadings, and no affidavit may be filed in support of or opposition to the motion.

(4) A judge who hears a motion for

summary judgment on pleadings may adjourn the motion until after the judge hears a motion for an amendment to the pleadings.

(5) A judge who hears a motion for

summary judgment on pleadings, and who is satisfied on both of the following, may determine a question of law: (

a) the allegations of material fact in the pleadings sought to be set aside provide, if assumed to be true, the entire facts necessary for the determination; (

b) the outcome of the motion depends entirely on the answer to the question. [ 7 ] Regardless of which Rule is implicated, the Plaintiff is reluctantly agreeable to proceeding presently rather than to require more delay and cost to argue the point more forcefully.

I agree that it is appropriate to proceed to analyse the Defendant ’ s argument as if it were framed under CPR 13.03 as that is in essence the argument advanced by YPG though under the rubric of CPR 12 . [ 8 ] CPR 13.03 provides for the setting aside of “ a pleading. ” CPR 38.02 suggests that a “ pleading ” is intended to provide notice of “ all claims, defences, or grounds to be raised by the party... ” . Material facts must be pleaded but the evidence to prove them need not. A party may plead a point of law.

If only a portion of a “ statement of claim ” or “ statement of defence ” is deficient, a “ judge must set aside ” that portion - see the definition of “ statement of claim ” and “ statement of defence ” in CPR 13.02 .

So does para. 4 of the Statement of Claim offend CPR 13.03 ? [ 9 ] YPG ’ s complaint is that the wording in para. 4 is a thinly veiled and impermissible attempt to sue the Defendant for breach of the Human Rights Act , R.S.N.S. 1989, c. 214, as amended. [ 10 ] YPG says that regardless whether: the Plaintiff is effectively suing YPG for civil liability for its breach of the Human Rights Act , or suing for damages arising out of its actions seeking “ to avoid its responsibilities ” under the Human Rights Act (based on an allegation of aggravated damages referable to YPG ’ s conduct in terminating the Plaintiff); in either case, para. 4 must be struck as either being “ clearly unsustainable ” or because it “ makes a claim based on a cause of action in the exclusive jurisdiction of another court. ” [ 11 ] I pause here to note that “ court ” is defined in CPR 94.10 and on its face does not include statutory tribunals such as the Human Rights authorities.

For the sake of argument and without specifically ruling thereon, I will proceed based on a liberal

interpretation of “ court ” in CPR 13.03 so as to catch within that definition the Human Rights authorities in Nova Scotia. [ 12 ] YPG says that resolution of the claim in para. 4 is in the exclusive jurisdiction of the Nova Scotia Human Rights Board since the wording of para. 4 is in reality a claim that YPG discriminated against the Plaintiff in terminating his employment. [ 13 ] Paragraph 4 of the Statement of Claim reads: The Plaintiff states that the Defendant was aware, prior to and on the date of the termination of his employment, that the Plaintiff was suffering from a disability illness or medical condition that affected his ability to perform his employment duties.

The Plaintiff states that the Defendant terminated the Plaintiff to avoid its responsibilities to the Plaintiff under the Human Rights Act [R.S.N.S.] 1989 c. 214 and the common law. [ 14 ] The Human Rights Act process is initiated by a complaint. The legislation contains no clause stating that the Act is the exclusive jurisdiction under which a human rights based complaint can proceed. It does not preclude a civil suit based on the alleged violation of common law protections that may also be expressly addressed in the legislation.

[15] YPG says that exclusive jurisdiction for the para. 4 claim lies under the Human Rights Act because “Supreme Court of Canadajurisprudence” establishes that: (

a) no cause of action lies for breach of human rights legislation or discrimination at common law [Seneca College v. Bhadauria, (SCC), [1981] 2 S.C.R. 181]. (b) [Human rights legislation] provides a comprehensive scheme for the treatment of claims of discrimination and Bhadauriaestablished that a breach of [human rights legislation] cannot constitute an actionable wrong; the legal requirement is not met [HondaCanada Inc. v.

Keays, 2008 SCC 39 , 2008 S.C.C. 39]. [16] YPG characterizes para. 4 as a civil claim of “discrimination” as understood under the Human Rights Act and that the Plaintiff“wants more damages” in his Wrongful Dismissal Action for an alleged breach of the Human Rights Act. [17] To this, the Plaintiff responds that para. 4 is a proper pleading because: i - the Plaintiff in its pleadings has not necessarily claimed that the Human Rights Act has been breached; and ii - the Plaintiff asserts that the basis of his termination is not as stated by YPG, and that the employer’s conduct and motivation in thetermination gives rise to aggravated and possibly punitive damages. [18] The Plaintiff relies on cases that he says have sought to limit the ambit of Bhadauria by distinguishing that case on its facts - Brookes v.

Hudsons Bay Co. (2002), 20 C.C.E.L. (3d) 280 (Ont.S.C.) L’Attiboudeaire v. Royal Bank (1996), (ON CA), 88 O.A.C. 70 (Ont. C.A.) Alpaerts v. Obront (1993), 46 C.C.E.L. 218 (Ont. Gen. Div.) [19] The Plaintiff notes that in Kaiser v. Dural, 2002 NSCA 69, Justice Cromwell, as he then was, reiterated that the “appallingmanner in which [Dural] dismissed Mr. Kaiser” was a proper consideration in extending the otherwise appropriate period of notice oftermination.

In Kaiser, Dural had decided to fire him in February, 1999, and after his open heart surgery in April, 1999, and while stillrecuperating, Dural’s representatives told him of his termination in a Halifax restaurant on May 12, 1999 - see the trial decision of JusticeCoughlan for details, 2001 NSSC 131. [20] The Plaintiff acknowledged in its written brief that while the Supreme Court in Bhadauria refused to recognize a distinct tort ofdiscrimination, and refused to reconsider that position in Keays, it did not go so far as to “suggest that a plaintiff could not raise humanrights issues in support of a claim for damages for wrongful or unjust dismissal.” [21] I acknowledge that YPG also relies on the limitation period in s. 29 of the Human Rights Act to argue that this Court should beor is thereby precluded from hearing the claim made in para. 4.

Given my conclusion that the proper characterization of para. 4 is asstated by the Plaintiff, it is unnecessary for me to address that argument which depends on a successful Defendant’s argument that para. 4is a “claim” for a civil remedy of a breach of that Act. [22] I have reviewed the cases cited by each of the parties, but find that the circumstances of this case are distinguishable enough to

permit the inclusion of para. 4 of the Statement of Claim to remain as drafted. [ 23 ] Paragraph 4 of the Plaintiff ’ s Wrongful Dismissal Action will not be struck, as it appears that the Plaintiff relies on it not as a cause of action per se, but as an alleged fact relevant to the Defendant ’ s motivation as to why it acted as it did in (admittedly) terminating Mr.

Burgess ’ employment without cause - [p. 1, October 5, 2012 brief] - the Plaintiff points out that paras. 5 and 6 of its Statement of Claim clearly set out that his claim is for breach of contract, entitling him to damages; not damages for breach of the Human Rights Act . [ 24 ] I agree with the Plaintiff that the employer ’ s conduct can be relevant to a court assessing whether there is “ bad faith or unfair dealing ” with the Plaintiff employee, which can affect damages for breach of contract, and therefore it is not appropriate to strike out para. 4 of the Wrongful Dismissal Action. [ 25 ] Courts have sought to allow liberal access to the court process without indulging those litigants who clearly propose to use the court process inappropriately.

The balance in this case clearly favours the Plaintiff in this respect. 3.

The “ double recovery ” issue [ 26 ] The truly controversial issue in this case is whether the Plaintiff will receive legally impermissible “ double recovery ” or, in other words, if he will be considered by the Court to be legally entitled to claim all the amounts received as pay in lieu of reasonable notice upon termination without cause from his employment without any deduction for the lump sum disability benefits payment received on February 14, 2012? [ 27 ] Most of the cases cited by the Defendant involve trial situations - which though distinguishable are useful as to the general legal principles applicable.

I say distinguishable in the sense that each case be decided on its own facts regarding the intention of the parties to the contract, and because the complete facts were available to the judges in those cases, whereas I am asked to determine this issue at a much earlier stage in the litigation under CPR 12 . Facts and Background of “ double recovery ” issue [ 28 ] Most of the factual background regarding the disability benefits is not in dispute, and is set out in the affidavit of Krista Thornton sworn October 4, 2012.

She was not cross-examined thereon. [ 29 ] The Plaintiff takes the position that: All the terms of the Plaintiff’s employment have not been put before the Court in this motion. The Defendant has put forward affidavit evidence containing representations regarding the group benefits plan the Plaintiff was allegedly entitled to at the time of termination but there is no evidence concerning the terms of employment between the parties (pg. 4, brief). [ 30 ] The Defendant, YPG, concedes that it did not have cause to terminate Mr. Burgess ’ employment - para. 3; and asserts that the STD and LTD plans were terms of Mr.

Burgess ’ employment - para. 5, brief. I pause here to point out that I have noticed footnote 26 in the brief of YPG and having referred to Exhibit “ E ” , p. 137, of the Thornton affidavit, I conclude that the reference to the deductibility of “ severance payments ” from disability benefits is properly understood as severance from any employer - including YPG in this case. However, that

section would operate in favour of the disability benefits insurer, The Manufacturers Life Insurance Co., not YPG as the employer. Thus, YPG could not likely rely on it to reduce the wrongful dismissal benefits it must pay, although arguably The Manufacturers Life Insurance Co. could rely on it to reduce the disability benefits payable. The paragraph reads in part: Amount of Disability Benefit The Benefit amount payable will be further reduced so that the Employee’s income from All Sources does not exceed 85% of the Employee’s pre-disability [Earnings] ...

All Sources include those stated above and any benefit the Employee is entitled to receive from: ... (

c) earnings or payments from any employer, including severance payments and vacation pay. [31] YPG argues that: YPG paid the entire cost of the STD plan [para. 11(b), Thornton affidavit] and all the premiums required for coverage under the LTDplan [para. 12(b), Thornton affidavit].

The Events details of the My Benefits Boutique [Tab G to Thornton affidavit] confirm that Mr.Burgess did not contribute to the cost of the LTD coverage: - coverage details - $3,792.00/month - total cost - $1,272.22 - employee cost - $0 - taxable benefit - $0 (para. 24, brief) [32] YPG says that the Court should apply the law in Sylvester v. British Columbia, (SCC), [1997] 2 S.C.R. 315,to the facts in the Thornton affidavit.

Doing so would necessarily demonstrate why the Defendant must succeed. [33] These contrasting positions seek to address the existing jurisprudence regarding CPR 12 and that of the deductibility of pay inlieu of reasonable notice from disability payments receivable otherwise - what I have for convenience referred to as the “doublerecovery” issue. The Law [34] The Defendant’s motion is pursuant to CPR 12. YPG claims that the three criteria outlined in Rule 12.02 are satisfied withrespect to the question of law in issue here (para. 14, brief). [35] The significant parts of CPR 12 read: Scope of Rule 12 12.01

(1) A party may, in limited circumstances, seek the determination of a question of law before the rest of the issues in aproceeding are determined, even though the parties disagree about facts relevant to the question.

... Separation 12.02 A judge may separate a question of law from other issues in a proceeding and provide for its determination before the trialor hearing of the proceeding, if all of the following apply: (

a) the facts necessary to determine the question can be found without the trial or hearing; (

b) the determination will reduce the length of the proceeding, duration of the trial or hearing, or expense of the proceeding; (

c) no facts to be found in order to answer the question will remain in issue after the determination. [36] In Mahoney v. Cumis Life Insurance Co., 2011 NSCA 31, Justice Fichaud for our Court of Appeal set out the followingguidance to trial courts: 15 Under Rule 25.01 of the former Civil Procedure Rules, the practice was that the chambers judge could decide a preliminary issueof law only if the parties filed an agreed statement of fact: e.g. Seacoast Towers Services Ltd. v.

MacLean (1986), (NSCA), 75 N.S.R. (2d) 70 (S.C.A.D.), paras. 18-23, and various other authorities. 16 The new Rule 12 does not require an agreed statement for the determination of a preliminary question of law. This is clear fromRule 12.01(1) -- a party may “in limited circumstances, seek the determination of a question of law ... even though the parties disagreeabout the facts relevant to the question”. 17 Rule 12.02 recites those “limited circumstances”: (a) “the facts necessary to determine the question can be found without the trialor hearing”, (

b) the determination will reduce the length or expense of the proceeding, and (c) “no facts to be found in order to answerthe question will remain in issue after the determination”. Conditions (

a) and (

c) contemplate that the Chambers judge, on a Rule 12motion, may find facts, but only (1) the facts necessary to determine the pure legal question before him and (2) if all those facts,necessary to decide the pure legal question, can be determined without a trial. 18 So the first step with Rule 12 is to identify the pure legal question to be determined. Rule 12.01(1) permits a motion fordetermination of “a question of law”. Rule 12.03(1) permits the judge either to determine “the question of law” or appoint a time todetermine that question of law.

The Rule does not authorize a determination of a question of fact or mixed fact and law, excepting onlythose facts that scaffold the point of pure law under Rule 12.02(

a) as I have discussed. 19 The second step is to identify all the facts that are necessary to determine that question of pure law. Nothing in Rule 12 permits ajudge to decide facts that are unnecessary to determine the question of pure law in the motion. A party who wishes an assessment ofevidence on other matters, leading to a judgment by interlocutory ruling, should make or join a

summary judgment motion under Rule13.04 ("Summary judgment on evidence"). 20 The third step under Rule 12 is to decide whether all those facts necessary to determine the issue of pure law in the motion “canbe found without the trial or hearing”. 21 This third step generates the question -- What does Rule 12.02(

a) mean that those facts “can be found without the trial orhearing”? In my view, it does not mean that a judge under Rule 12 can assess evidence in the same fashion as in a motion for

summaryjudgment on the evidence under Rule 13.04. Under Rule 13.04, a responding party must “put his best foot forward” with evidence or riska determination that there is no genuine issue of material fact requiring trial, or that its claim or defence has no real chance of success,

and a consequent dismissal of the action or defence: Aylward v. Dalhousie University, 2011 NSCA 20, para. 11, affirming DalhousieUniversity v. Aylward, 2010 NSSC 65, paras. 20-25; Ristow v. National Bank Financial Ltd., 2010 NSCA 79, paras. 5-9; Nova Scotia(Attorney General) v. Brill, 2010 NSCA 69, para. 173. Rule 12 does not give the chambers judge that power. A judge under Rule 12may not determine contested facts that might hinge on testimony at a trial. That is the point of Rule 12.02(a)'s condition that “the facts ...can be found without the trial”. [37] I will next proceed through that three step analysis.

Step 1: What is the pure question of law that is in issue here? [38] Necessarily the court does need some undisputed facts to “scaffold,” or set the factual context underlying, the question of law. [39] The Defendant says that the question of law is: whether in this case any payments that Mr.

Burgess receives from the “BenefitsAction” [Hfx No. 339476] must be deducted from any payments that he receives from the “Wrongful Dismissal Action” [Hfx No.359700]? [40] The Plaintiff says that “it is not open to...[the Court to] make factual findings regarding the nature and scope of the employmentcontract between the parties.” He elaborates that the terms of the employment contract are in issue and there is insufficient evidence onthat issue for the Court to determine an answer to the proposed question of law.

He says that it cannot be answered at this time by theCourt. [41] The Plaintiff therefore appears to accept that the question proposed by the Defendant could be a pure question of law, butargues that the issue cannot be decided for reasons related to Step 3 of the Mahoney analysis. [42] Nevertheless, I will go on to Step 2.

Step 2: I ask myself next what are the facts that are necessary to determine the question of pure law? [43] The answer to the question of law herein requires a consideration of what facts are necessary to understand the relevant termsof employment. [44] As the Supreme Court of Canada pointed out in Sylvester v.

British Columbia, (SCC), [1997] 2 S.C.R. 315: - disability benefits are contractual, and the question of their deductibility from damages in lieu of notice for wrongful dismissalturns on the terms of the employment contract and the intention of the parties. - Absent an intention by the parties to provide otherwise, employees who are dismissed while not working, but receiving disabilitybenefits, and an employee who is dismissed while working, should be treated equally. [45] Therefore, absent an intention otherwise, disability benefits should be deducted in those kinds of situations - that way allemployees receive equal damages - consisting of the salary the employee would have earned had the employee worked during the noticeperiod.

[ 46 ] In Sylvester , the disability plan was established solely by the employer (it funded the plan entirely without any direct or indirect contribution from the employee). [ 47 ] The Supreme Court of Canada disagreed with the British Columbia Court of Appeal which had concluded that the disability benefits plan was a distinct contract, and that therefore the employee was entitled to be paid both salary (in lieu of notice) and disability benefits. [ 48 ] Put another way, generally in each case the question will be: did the disability benefits form as integral part of the employment contract, or do they arise from a distinct contract? [ 49 ] The Supreme Court of Canada in Sylvester determined that the disability benefits formed an integral part of the employment contract, and therefore although parties may agree otherwise (para. 20, Sylvester ), generally speaking such (included in employment) disability benefits will result in those benefits being deducted from the damages payable for wrongful dismissal because: i. the disability benefits were intended as a substitute for employee ’ s working salary; and ii. the simultaneous payment of disability benefits and damages for wrongful dismissal is inconsistent with the underlying assumptions of the basis of entitlement to each in the contract. i.e. for disability benefits - they are payable only when the employee is unable to work ; for wrongful dismissal damages - they are payable based on the premise that the employee would have worked during the reasonable notice period. [ 50 ] Nevertheless, in each case courts must examine the terms of employment to answer the question whether double recovery was intended. [ 51 ] To conclude that the disability benefits arise from the employment contract one must find that the terms of that contract, expressly (or that it may be inferred that the parties intended that it), provide for double recovery. [ 52 ] Generally, whether the employee makes any contributions expressly or nominally as consideration for the disability benefits coverage contract will be a significant factor as to whether they will be not considered part of the employment contract - e.g. see Kaiser v.

Dural , 2002 NSCA 69 , at para. 3 per Cromwell, J.A., as he then was. Step 3: Whether all the facts necessary to determine the pure question of law in the motion can be found without the trial or hearing? [ 53 ] In the case at Bar, there is no evidence that Mr. Burgess himself expressly contributed to the disability benefits plan. [ 54 ] YPG argues that the entire terms of employment need not be in evidence - for example they were not in Sylvester - see paras. 13-17 .

YPG says that I can assess this issue under CPR 12 by reference to the evidence presented specific to the disability benefits; that is, since the Plaintiff did not expressly or inferentially/notionally pay for the benefits, they must be an integral part of his employment contract. From the evidence presented YPG says that a court could only infer that there is no distinct contract.

In fact Justice Major in Sylvester said as much: 20 ... absent an intention by the parties to provide otherwise, an employee who is dismissed while not working but receiving disability benefits and an employee who is dismissed while working should be treated equally.

[Emphasis added] [55] Notably however Justice Major concluded: 13 ...

This contract did not provide for the respondent to receive both disability benefits and damages for wrongful dismissal, and nosuch intention can be inferred. ... [Emphasis added] [56] YPG argues that in Sylvester the Supreme Court created a “presumption” of no double recovery where the narrow factssurrounding the disability benefits did not suggest an express contribution to that benefits plan by the employee. [57] I disagree that Sylvester went that far. [58] As Justice Major’s comment at para. 13 confirms, it is still the intention of the parties that is key to assessing whether doublerecovery was intended; and to assess that, one needs to have the terms of employment in evidence, which the Supreme Court did inSylvester, since the trial proceeded to conclusion. [59] In a motion under CPR 12 the burden to present all the necessary facts that scaffold a pure question of law is on the movingparty.

YPG is also likely in the best position to put the relevant terms of employment into evidence for the Court. In this respect CPR 12differs from the

summary judgment on evidence motion - Mahoney at para. 21 per Fichaud, J.A. [60] While the law in this area, at least regarding other benefits like pensions is still developing [e.g. see Waterman v. IBM CanadaLtd., 2011 BCCA 337, leave to Supreme Court of Canada granted June 25, 2012] the principles applicable to disability benefits weresettled in Sylvester. [61] Nevertheless, the Plaintiff relies on cases that factually distinguish Sylvester even in the disability benefits context: - Fedorowicz v. Pace Marathon Motor Lines Inc., 2007 ONCA 868; - McNamara v.

Alexander Centre Industries Ltd. (2001), (ON CA), 144 O.A.C. 376 (Ont. C.A.); and - Sills v. CAS of Belleville, Hastings and Trenton (2001), (ON CA), 144 O.A.C. 140 (Ont. C.A.). [62] I must follow the binding dicta of the Supreme Court in Sylvester, as I find the principles therein applicable to the case at Bar. [63] However, insofar as one wishes to examine the question whether the terms of the employment contract, expressly orinferentially, intended to permit “double recovery,” the “terms” of the employment contract, and more importantly whether Mr.

Burgesswas provided any basis under the contract to be entitled to “double recovery” is not ascertainable by this Court. Those terms have notsufficiently been placed before the Court such that the Court can determine if the necessary scaffolding facts are in dispute.

[ 64 ] I bear in mind that under the old Rule 25.01 the practice was that the parties had to file an agreed statement of facts. This touchstone, though now replaced by a differently articulated test in CPR 12 , still persists in spirit. That is: a pure question of law can only be determined where the material facts are agreed to or can be found without the trial or hearing. [ 65 ] In my opinion this Rule should be given a liberal

interpretation so as not to unduly and prematurely defeat a cause of action. Conclusion [ 66 ] In this case, all the facts necessary to determine the issue of pure law cannot be found without the trial proceeding. [ 67 ] Therefore, I dismiss the Defendant ’ s motion insofar as it seeks such an order pursuant to CPR 12 . [ 68 ] I agree that consolidation is appropriate, and as noted, that para. 4 of the Plaintiff ’ s Statement of Claim ought not to be struck. Costs [ 69 ] If the parties cannot agree on costs, I will receive their written submissions no later than November 16, 2012. J.