This decision concerned a motion brought by Sears Canada to strike certain allegations contained in the statements of claim of three separate plaintiffs. The plaintiffs were alleging that Sears had adopted a corporate policy or practice of terminating employees for just cause as a means of evading its statutory and common law obligation to provide reasonable notice or pay in lieu thereof. Sears’ position was that the allegations were an abuse of court process and would prejudice and delay the trial by making discovery assume potentially monstrous proportions. Sears argued that the circumstances leading to the termination of other employees was not relevant.
Sears presented a number of cases mainly in the insurance policy context in which motions to strike were granted on the basis that the allegations would lead to wholesale investigations of all the personnel files of a defendant (Gnanasegaram v. Allianz Insurance Co. of Canada) or would amount to an open ended fishing expedition into the defendant’s claims history (Howells v. Manufacturers Life Insurance Co.).
The plaintiffs argued that the allegation of systemic practice was relevant to their claim of bad faith. They made reference to a number of cases in which allegations of systemic wrong were not struck but allowed to continue on the basis that they could be relevant to an analysis of bad faith.
The court found that the plaintiffs presented the more compelling cases. Sears’ cases were distinguished on the basis that most were from the insurance policy context and that, based on each case’s unique factual situation, the number of “similar” cases may have been hard to identify. However, in the case at hand there were less than 200 cases to be examined that were potentially relevant and that the actual production would likely involve much less than 200 files.
The court found that the case at hand largely turned on whether there was a risk of limitless discovery or discovery of monstrous proportions. It finds that because parameters can be placed on the discovery process and because there are less than 200 potentially relevant files, a “wait and see” approach should be adopted and that oppressiveness or delay should be resolved only if such issues actually arise. Accordingly, Master Sproat dismissed the motions brought by Sears against the multiple plaintiffs.