Keida v. Canco Cranes and Equipment Ltd.

2021 BCSC 2112 Keida v. Canco Cranes and Equipment Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Keida v. Canco Cranes and Equipment Ltd., 2021 BCSC 2112 Date: 20210917 Docket: S212598 Registry: Vancouver Between: John Richard Keida Plaintiff And Canco Cranes and Equipment Ltd. Defendant Before: The Honourable Mr. Justice Brongers Oral Ruling re Application to Strike and Dismiss a Notice of Civil Claim In Chambers Plaintiff appearing on his own behalf, (by telephone): J.R. Keida Counsel for the Defendant: E. Wong Place and Dates of Hearing: Vancouver, B.C. September 10, 2021 Place and Date of Ruling: Vancouver, B.C. September 17, 2021 [1] THE COURT: Introduction [2] Canco Cranes and Equipment Ltd. ["Canco"] applies to strike and dismiss a notice of civil claim filed against it on March 18, 2021, by John Richard Keida ["Mr. Keida"]. In his action, Mr. Keida seeks damages from Canco in relation to events that allegedly took place during a period of time when Mr. Keida was performing work for Canco. [3] Canco applies to strike Mr. Keida's claim and dismiss his action further to Rule 9‑5(1) of the Supreme Court Civil Rules, primarily on the basis that Mr. Keida's pleading does not set out a reasonable claim (Rule 9‑5(1)(a)). Canco's application is also brought under Rules 9‑5(1)(b) to (d), with counsel for Canco asserting that Mr. Keida's claim is unnecessary, scandalous, frivolous, vexatious, prejudicial, embarrassing,

dilatory and an abuse of process. [4] Mr. Keida, who is self‑represented, opposes Canco's application and asks that leave be granted to amend his notice of civil claim to clarify that he is alleging that Canco is vicariously liable for the actions of its employees that are said to have injured him. [5] Three affidavits have been tendered in respect of this application. Two of them were made by Hildred Healey, an employee of Canco who was once Mr. Keida's romantic partner. Mr. Keida made a responding affidavit as well. I have considered the evidence contained in these affidavits with respect to Canco's application to strike on the basis of Rule 9‑5(b) to (d). [6] As for Canco's application based on Rule 9‑5(1)(a), I have only considered Mr. Keida's notice of civil claim, and I accept for the purpose of determining whether Mr. Keida's claim discloses a reasonable cause of action that the factual allegations he makes in his pleading are true. [7] It should also be noted that Canco filed a response to civil claim on April 12, 2021. This was done prior to the filing of the present application to strike. I have not considered the factual allegations contained in Canco's pleading for the purpose of adjudicating this application. [8] As a final introductory comment, I mention that the parties each filed written submissions in addition to those included in the notice of application and

the application response. Mr. Keida objected to Canco's submissions on the basis of Rule 8‑1(16) which prohibits additional written argument unless the application is estimated to take more than two hours. However, he also prepared his own written submissions for consideration in case his objection is dismissed. As this application was ultimately scheduled to be heard as a full day chambers hearing, in my view the rule does not apply here. I have therefore considered both parties' written submissions, which I found helpful in deciding this matter. Background Mr. Keida's Notice of Civil Claim [9] According to his notice of civil claim, Mr. Keida started a romantic relationship with Ms. Healey in January 2008. Ms. Healey worked for Canco as its treasurer. In May 2015, Mr. Keida began to work at Canco as well. Mr. Keida says that he was initially providing consulting services in relation to a corporate ownership reorganization and sale. He then converted Canco's accounting system and acted as a part-time controller. Mr. Keida continued to work with Canco until around March 2019, a point in time which coincided with the breakdown of Mr. Keida's relationship with Ms. Healey. Mr. Keida says that Ms. Healey was his "boss" that he "worked under". Mr. Keida was also cohabiting with Ms. Healey until she left their home in March 2019. [10] Mr. Keida pleads in his notice of civil claim as

a matter of law that he was initially an independent contractor who provided services to Canco. However, he says that his status later changed at some unspecified point in time from that of a contractor to an employee. [11] Mr. Keida's notice of civil claim alleges that he was mistreated while working at Canco in several ways. [12] First, he says that from 2016 to 2018, Mr. Keida replaced Ms. Healey one day per week at Canco. However, Ms. Healey, who calculated payroll for Canco, paid herself for Mr. Keida's labour. [13] Second, Mr. Keida says that shortly after the end of their relationship in March 2019, Ms. Healey instigated the termination of Mr. Keida from Canco with the consent of Canco's president and owner, Wilfred Bischof, and Canco's vice‑president Patrick Fruendt. This resulted in the cancellation of Canco's extended medical insurance coverage that Mr. Keida has benefitted from effective August 1, 2019. In July 2019, Mr. Keida asked Ms. Healey to arrange to keep him on Canco's medical insurance plan for another month, but she refused. Mr. Keida does not indicate in his pleading whether this insurance coverage was direct or whether he was a beneficiary of Ms. Healey's coverage. [14] Third, Mr. Keida alleges that he was the subject of abuse and bullying at work by Mr. Bischof, Mr. Fruendt, and Ms. Healey. Mr. Keida says that this caused him mental distress requiring

treatment, including medication and hospitalization. [15] Fourth, in August 2019, Mr. Keida requested a letter of reference from Ms. Healey with respect to his work at Canco, a request that was also refused. [16] The notice of civil claim contains additional allegations, notably in relation to Mr. Keida's personal relationship with Ms. Healey, which he characterizes as being one where she dominated and controlled him in a "Svengali‑like" manner. Mr. Keida says that he experienced this treatment both at home and at work. [17] With respect to the relief he is seeking, Mr. Keida seeks damages as follows: (1) $946,400 for pain, suffering and mental distress relating from abuse, negligence, intentional infliction of mental distress and negligent infliction of mental distress; (2) $280,000 in damages for economic loss, pain, suffering and mental distress for the dismissal of Mr. Keida from Canco; (3) approximately $26,000 in damages for fraud and unjust enrichment to compensate for the work Mr. Keida performed to replace Ms. Healey once per week over a two‑year period; (4) $120,000 in damages in respect of Canco's failure to provide a timely letter of reference; and (5) an unspecified amount of damages for breaching duties owed to Mr. Keida as an employee of Canco. Affidavit Evidence [18] In her first affidavit made April 29, 2021, Ms. Healey confirms that she was in a romantic

relationship with Mr. Keida which she says lasted from 2009 until around March 4, 2019. Ms. Healey also sets out the details of litigation that she has been personally engaged in with Mr. Keida since he brought a Supreme Court action against her on March 15, 2019. Mr. Keida's action against Ms. Healey relates to property and compensation issues arising further to the breakdown of their relationship. Ms. Healey responded with a counterclaim and a petition seeking an order for the sale of a jointly owned property. These proceedings were the subject of a settlement agreement dated August 30, 2020. However, Mr. Keida then filed an amended notice of civil claim in his action on February 26, 2021. Ms. Healey has since filed an application to enforce the settlement agreement. [19] Attached to the affidavit are two pleadings in the matter of Keida v. Healey that are of particular note: (1) Mr. Keida's response to Ms. Healey's counterclaim dated February 10, 2020; and (2) Mr. Keida's amended notice of civil claim dated February 26, 2021. These pleadings set out allegations and seek relief against Ms. Healey which are also contained within Mr. Keida's claim against Canco. These include allegations that relate to Ms. Healey having arranged to be paid for Mr. Keida's labour at Canco from 2016 to 2018, the instigation of Mr. Keida's termination at Canco, the removal of Mr. Keida from

Canco's extended medical plan, abuse experienced while working at Canco, and the refusal to provide a letter of reference. Furthermore, the heads and amounts of damages sought by Mr. Keida against Ms. Healey in their personal litigation matter mirror almost precisely those sought by Mr. Keida against Canco. [20] Ms. Healey's second affidavit made August 6, 2021 simply attaches a March 18, 2019 email authored by Mr. Keida in which he states to a third party that he is no longer working as a consultant for Canco, and that he was never an employee of Canco. [21] Mr. Keida's responding affidavit made June 2, 2021 does not contain any factual assertions either. It attaches a number of emails, text messages, letters, affidavits, and a statutory declaration. While most of these communications relate to the personal relationship between Mr. Keida and Ms. Healey, they contain references to events that took place at Canco as well. The Law [22] The legal principles to be applied on an application to strike a notice of civil claim pursuant to Rule 9‑5(1) of the BC Supreme Court Civil Rules are well established and were recently summarized by Madam Justice MacDonald in Gaucher v. British Columbia Institute of Technology, 2021 BCSC 289, at paragraphs 54 to 62. [23] While I will not reproduce this summary, I will highlight the following. The test under Rule 9-5(1) is whether it is "plain and

obvious" that the action is certain to fail due to a radical defect in the pleading. This defect can relate to a failure to disclose a reasonable cause of action (Rule 9‑5(1)(a)). Alternatively, the defect can relate to the pleading's unnecessary, scandalous, frivolous or vexatious nature (Rule 9‑5(1)(b)). In the further alternative, a pleading can be defective because it will prejudice, embarrass or delay a fair trial (Rule 9‑5(1)(c)). The pleading may also constitute an abuse of process (Rule 9‑5(1)(d)). If any of these grounds are established, the Court may, in its discretion, strike the pleading and dismiss the underlying action. [24] Before doing so, however, the court should consider granting the responding party leave to amend the defective pleading. This, too, is a matter of discretion. As noted by the Court of Appeal in Jones v. Bank of Nova Scotia, 2018 BCCA 381, at paragraph 35: [35] ...The exercise of that discretion may require consideration, including the degree to which the pleadings are deficient, of the extent to which the deficiencies may be addressed by an obvious or straightforward amendment, the apparent merit of the claim that may be made out with amendment and the prejudice that may be incurred by dismissing the claim. [25] The Court of Appeal also said that the exercise of that discretion requires consideration of the factors set out in Rule

1‑3. Analysis [26] I will begin the analysis with a review of whether Mr. Keida's pleading discloses a reasonable claim. [27] Counsel for Canco submits that it does not. Canco argues that the main problem with Mr. Keida's notice of civil claim is that it purports to advance causes of action that relate to an alleged employment relationship between Canco as employer and Mr. Keida as employee but does not set out the necessary material facts to establish the existence of such a relationship. [28] In its written submissions at paragraph 37, Canco also sets out a detailed table which outlines various potential causes of action and their required elements, and argument as to why Mr. Keida's notice of civil claim does not establish any of them. Canco also submits that Mr. Keida's proposed amended notice of civil claim does not cure the defects in the original pleading. [29] In response, Mr. Keida explains that his claim fundamentally has two aspects to it. First, he asserts that Canco is directly liable for his failure to pay him the wages and benefits to which he is contractually entitled as an employee. Second, he asserts that Canco is vicariously liable for the prejudice he suffered as a result of the tortious conduct of three of Canco's employees and officers, namely, Ms. Healey, Mr. Fruendt and Mr. Bischof. [30] Mr. Keida says that he is effectively advancing a case of workplace

abuse similar to those that were the subject of Sulz v. Minister of Public Safety and Solicitor General, 2006 BCCA 582 and Hildebrand v. Fox, 2008 BCCA 434. In his written submissions, Mr. Keida reproduces an article by David Harris titled "Employer Liability and Negligence for Workplace Abuse" (CanLII Connects, January 10, 2018), and requests that the Court produce an opinion in writing for reference in future British Columbia workplace abuse cases. [31] Accepting that I must read the pleadings generously, I am satisfied that Canco has met its high burden to demonstrate that Mr. Keida's notice of civil claim does not disclose a reasonable claim. [32] With respect to Mr. Keida's claim in direct liability, I find that his pleading does not set out sufficient facts that would show the existence of an employment contract that was breached by Canco in a manner that would give rise to a claim for damages by Mr. Keida. As drafted, the pleading confusingly alleges as a bare matter of law that there was initially a contract of service between Mr. Keida and Canco which somehow evolved into a contract of employment over time. However, it does not clearly set out the facts which, if proven, would demonstrate when, how and on what basis such an employment agreement was established and then later breached. As such, no reasonable direct claim against Canco has been pleaded. [33] Mr. Keida's

failure to properly set out the facts that would establish the existence of an actual employment relationship with Canco also undermines his vicarious liability claim against the corporate defendant. It is true that Mr. Keida pleads generally that he "found Canco to be a toxic work environment which was fertile ground for abuse and infliction of mental distress." He also sets out some examples of allegedly tortious personal interactions he had with Canco's treasurer, vice‑president, and president. However, in the absence of a factual matrix that would show that Mr. Keida was an actual employee of Canco, in my view there can be no reasonable vicarious cause of action against Canco in its capacity as their employer for the acts and omissions of these individuals. [34] Furthermore, the importance of including within the notice of civil claim the facts that would show that Mr. Keida was a Canco employee and what his actual terms of employment were should have been readily apparent to Mr. Keida, especially after he was served with Canco's application to strike which put him on notice of their absence in his pleading. Yet Mr. Keida did not attempt to remediate this deficiency in his proposed amended notice of civil claim. Instead, this document merely clarifies that the legal basis for his tort claim against Canco is in relation to its alleged vicarious liability for the acts of Ms.

Healey, Mr. Fruendt, and Mr. Bischof. [35] In sum, I find that neither Mr. Keida's notice of civil claim nor his proposed amended notice of civil claim set out a reasonable claim against Canco. Accordingly, the pleading warrants being struck under Rule 9‑5(1)(a). [36] Even if I had not reached this conclusion, however, I find that the notice of civil claim is unnecessary, scandalous, frivolous, vexatious and amounts to an abuse of the process of the court and should be struck in any event pursuant to Rule 9‑5(1)(b) and Rule 9‑5(1)(d). [37] I have reached this conclusion after having reviewed the affidavits of Ms. Healey and Mr. Keida. They detail the acrimonious and bitter personal litigation between them that followed the breakdown of their romantic relationship in March 2019. That litigation was apparently settled in August 2020, yet Mr. Keida is now attempting to revive it. He has done so by first filing an amended notice of civil claim in his personal action against Ms. Healey on February 26, 2021. A few weeks later, on March 18, 2021, he then filed the notice of civil claim against Canco that is the subject of this application. The foundation of Mr. Keida's claim against Canco is essentially the same as that aspect of his claim against Ms. Healey in relation to issues that arose while they both worked at Canco. [38] In my view, it is apparent that Mr. Keida has filed a

claim against Canco in order to continue to litigate issues that are the subject of his existing personal litigation with Ms. Healey, litigation that was apparently settled. By attempting to frame these issues as a claim against Canco, Mr. Keida is effectively trying to ensure that he is able to circumvent the effect of his settlement agreement with Ms. Healey, if necessary. [39] Indeed, it is evident from the scope and tone of Mr. Keida's allegations about Ms. Healey that the thrust of his claim is directed at her alleged mistreatment of him during the relationship, which is said to have extended from their home into their shared workplace. As such, I find that Mr. Keida's notice of civil claim is unnecessary, vexatious and an abuse of process. [40] I therefore find that Mr. Keida's claim against Canco has been brought "for an improper purpose including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights" (Freshway Specialty Foods v. Map Produce LLC, et al, 2005 BCSC 1485, at paragraph 49, quoting from the indicia of vexatious actions set out in Re Lang Michener v. Fabian (1987), 1987 CanLII 172 (ON SC), approved by the British Columbia Court of Appeal in Dempsey v. Peart, 2004 BCCA 395). As such, it warrants being struck pursuant to Rule 9‑5(1)(b). [41] Finally, I also find that Mr.

Keida's claim against Canco violates "principles of judicial economy, consistency, finality, and the integrity of the administration of justice" (Gaucher v. British Columbia Institute of Technology, 2021 BCSC 289, at paragraph 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 37; and Roeder v. Lang Michener Lawrence & Shaw, 2007 BCCA 152 at para. 22). As such, it is an abuse of process and deserves to be struck pursuant to Rule 9‑5(1)(d). Conclusion and Disposition [42] For all of these reasons, I order that the plaintiff's notice of civil claim is struck and dismissed without leave to amend. [43] With respect to costs, both parties requested the possibility of providing written submissions after judgment. If the parties are unable to agree to costs, they are at liberty to make such submissions through the registry. If necessary, the schedule for the exchange of such submissions shall be as follows: Canco's submissions are to be filed within two weeks of today. Mr. Keida's response thereto is to be filed no later than two weeks after receipt of Canco's submissions, and Canco's reply, if any, shall be filed no later than one week after receipt of Mr. Keida's submissions. "Brongers, J."