Donaghy v. Scotia Capital Inc. et al., 2009 ONCA 40

• Judge: Doherty, Weiler and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 09, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 40;(2009), 265 O.A.C. 243 (CA)

Donaghy v. Scotia Capital Inc. (2009), 265 O.A.C. 243 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.002

Mark Thomas Donaghy (plaintiff/appellant) v. Scotia Capital Inc./Scotia Capitaux Inc. and the Bank of Nova Scotia (defendants/respondents)

(C48734; 2009 ONCA 40)

Indexed As: Donaghy v. Scotia Capital Inc. et al.

Ontario Court of Appeal

Doherty, Weiler and MacFarland, JJ.A.

January 9, 2009.

Summary:

An employee was terminated from his employment without cause. He negotiated a severance package with the employer which resulted in a written settlement agreement. He subsequently sued for damages for wrongful dismissal and for overtime pay alleged to be owing to him. The employer moved for summary judgment pursuant to Civil Procedure Rule 49.09, taking the position that the rule applied to settlements made both before and after the commencement of litigation. The employee did not oppose the court's jurisdiction.

The Ontario Superior Court held that rule 49.09 was available for pre-litigation settlement agreements and granted summary judgment in accordance with the terms of the settlement. The employee moved under rule 59.06 to set aside the order on the basis that the settlement was void and could not dispose of his claim for overtime pay because the employer had not complied with federal and provincial labour legislation and had failed to negotiate the settlement in good faith.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. Uned. 515, dismissed the motion. The employee appealed the rule 49.09 decision and the rule 59.06 decision. The employee also moved to admit fresh evidence in support of the claim that the settlement was void on the basis of non-compliance with the federal labour legislation.

The Ontario Court of Appeal, in a decision reported at [2005] O.A.C. Uned. 176, dismissed the motion and the appeal. The employee commenced a motion, asserting for the first time that rule 49.09 did not apply to pre-litigation settlement and the rule 49.09 decision and the rule 59.06 decision were therefore nullities.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. 762, dismissed the motion. The employee appealed.

The Ontario Court of Appeal dismissed the appeal. The Superior Court had jurisdiction to hear and decide the issue of whether the proposed action was in fact the subject of a binding settlement that precluded further litigation, regardless of what rule the motion was brought under. There was no basis either in policy or in any provisions of the Court of Justice Act to permit a third attempt to challenge the result arrived at on the initial motion. None of the decisions were void or voidable. The court commented on the proper method of enforcing a pre-litigation settlement.

Practice - Topic 9

General principles and definitions - Dispensing with compliance with rules - An employer dismissed an employee without cause - The employee negotiated a severance package which resulted in a written settlement agreement - He subsequently sued for damages for wrongful dismissal and for unpaid overtime pay - The employer moved for summary judgment pursuant to Civil Procedure Rule 49.09 - The motions judge accepted that rule 49.09 was available for pre-litigation settlement agreements and granted summary judgment in accordance with the settlement - The employee moved under rule 59.06 to set aside the order on the basis that the settlement was void and could not dispose of the overtime claim because the employer had not complied with labour legislation and had failed to negotiate in good faith - The motion was dismissed - The employee appealed the rule 49.09 decision and the rule 59.06 decision - The Court of Appeal dismissed the appeal - The employee commenced a motion, asserting for the first time that rule 49.09 did not apply to pre-litigation settlements and therefore the rule 49.09 decision and the rule 59.06 decision were nullities - The motion was dismissed - The Ontario Court of Appeal dismissed an appeal - The motions judge had jurisdiction to decide whether the proposed action was the subject of a binding settlement that precluded further litigation, regardless of what rule the motion was brought under - There was no basis to permit a third challenge to the initial decision - None of the decisions were void or voidable - The court agreed that rule 49.09 was not likely the appropriate method by which to enforce the settlement - The employer's motion was in effect a motion for summary judgment to dismiss the action on the basis of the settlement - Rule 37.02 gave a judge jurisdiction to hear any motion in the proceedings - A rule 20 summary judgment motion was available to the employer after delivery of a statement of defence - While no statement of defence had then been delivered, the court would undoubtedly have dispensed with that requirement as an irregularity - Absent an express provision for procedures, s. 146 of the Courts of Justice Act required a court to exercise its jurisdiction in a manner consistent with the due administration of justice - The requirements of s. 146 were met - The court noted the unexplained delay in bringing the motion and that the justice of the case did not lead it to conclude that the result would have been different had the issue been raised in the original proceedings.

Practice - Topic 5702

Judgments and orders - Summary judgment - Jurisdiction or when available or when appropriate - [See Practice - Topic 9 ].

Practice - Topic 5712

Judgments and orders - Summary judgments - Application or motion - Time for - [See Practice - Topic 9 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 9 ].

Practice - Topic 9854

Settlements - Enforceability - General - [See Practice - Topic 9 ].

Practice - Topic 9856

Settlements - Judgment based on - [See Practice - Topic 9] .

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Rules of Civil Procedure (Ont.), rule 20 [para. 17]; rule 49.09 [para. 15].

Counsel:

Mark Thomas Donaghy, acting in person;

Paul S. Jarvis, for the respondents.

This appeal was heard and decided orally on January 9, 2009, by Doherty, Weiler and MacFarland, JJ.A., of the Ontario Court of Appeal. The following judgment of the court was released on January 19, 2009.