Court Of Appeal Summaries (July 27 ' 31, 2020)

• Published date: 06 August 2020
• Subject Matter: Employment and HR, Insurance, Litigation, Mediation & Arbitration, Immigration, Family and Matrimonial, Contract of Employment, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Family Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, General Immigration
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Please find below our summaries of the civil decisions of the Court of Appeal released during the week of July 27 to 31, 2020.

In Manthadi v. ASCO Manufacturing, the Court reviewed in detail the difference between the common law and the Employment Standards Act relating to the determination of whether a party purchasing a business is a successor employer and the proper notice period for wrongful dismissal.

In Le Treport Wedding & Convention Centre Ltd. v. Co-operators General Insurance Company, the Court reviewed in detail the policy wording of an "All risks" insurance policy before determining that a flood arising out of the great Toronto rainstorm of July 8, 2013 was a "flood" within the meaning of the policy.

In M.A.A. v. D.E.M.E. , a child abduction case, the Court reviewed in detail the law relating to the making of a custody and access order under s. 23 of the Children's Law Reform Act in the context of a refugee claim made by the mother and her children. The Court determined that the application of the international immigration law principle of non-refoulement meant that a removal order under s. 40 of the CLRA could not be made in the face of a pending refugee claim.

Finally, in Arconti v. Fenton, the Court confirmed that a client cannot sue his or her lawyer in negligence after being convicted (in this case, of securities law offences), when their appeal from their conviction on the basis of ineffective assistance of counsel was rejected by the appellate court. To allow such a claim would be an abuse of process and collateral attack on the conviction.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

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CIVIL DECISIONS

Manthadi v. ASCO Manufacturing , 2020 ONCA 485

[Doherty, Juriansz and Paciocco JJ.A.]

Counsel:

John S. Contini, for the appellant

Jonathan Pinkus, for the respondent

Keywords: Contracts, Employment, Wrongful Dismissal, Successor Employers, Civil Procedure, Simplified Procedure, Summary Judgment, Employment Standards Act, 2000, S.O. 2000, c. 41, s. 9(1) Rules of Civil Procedure, Rule 76, Bardal v. The Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, rev'd on other grounds, 2014 SCC 7, Singh v. Concept Plastics Limited, 2016 ONCA 815, Hryniak v. Mauldin, 2014 SCC 7, Howard v. Benson Group Inc. (The Benson Group Inc.) , 2016 ONCA 256, leave to appeal refused, [2016] S.C.C.A. No. 240, Ceccol v. Ontario Gymnastic Federation (2001), 55 O.R. (3d) 614 (C.A.), Addison v. M. Loeb Ltd. (1986), 25 D.L.R. (4th) 151 (Ont. C.A.), Sorel v. Tomenson Saunders Whitehead Ltd. (1987), 39 D.L.R. (4th) 460 (B.C.C.A.), Debenham v. CSI-Maximus (2003), 26 C.C.E.L. (3d) 32 (Ont. C.A.), Minott v. O'Shanter Development Co. (1999), 168 D.L.R. (4th) 270 (Ont. C.A.), Love v. Acuity Investment Management Inc. , 2011 ONCA 130, leave to appeal refused, [2011] S.C.C.A. No. 170,

facts:

The respondent was initially employed on February 7, 1981, by one of the third parties to this action, 63732 Ontario Limited ("637"). On or about November 2, 2017, the appellant purchased the assets of 637 along with the business name "ASCO". The respondent worked for ASCO for approximately one month when she was placed on layoff on December 13, 2017, and never recalled. She sued ASCO for wrongful dismissal under the simplified procedure, and ASCO brought a third party claim against 637.

In the Agreement of Purchase and Sale (APS) between the appellant and 637, the appellant obtained a warranty from 637 stating, among other things, that 637 had provided notice of termination and paid severance to all its employees. 637 also agreed to indemnify the appellant against all claims arising from a breach of its warranties.

The respondent's evidence was that 637 presented her with a Settlement and Release Agreement (SRA), and advised her that the business was being sold and she would be offered continued employment with the appellant. In the Settlement and Release Agreement, the respondent acknowledged receiving written notice her employment would terminate on November 24, 2017, and that she would be paid $5,900 "representing 8 weeks gross compensation in full satisfaction of all claims ... including all severance pay, termination pay or other compensation howsoever arising". She released 637 from all liability "in connection with the Employee's employment with 637, including without limitation the cessation of such employment."

The respondent was one of twenty of 637's employees who were employed by the appellant. The terms of her employment with the appellant and the capacity in which she was employed by the appellant are disputed. The appellant's position was that it hired the respondent, along with nineteen other 637 employees for general labour work to pack and unpack the purchased assets for the move to the appellant's place of business. The appellant also says it "did not assume the continuity of 637's employees" or "recognize 637's employees' prior years of service rendered with 637." The respondent said she was offered and accepted employment by the appellant on an indefinite basis. She stated she understood that the appellant would recognize her years of service with 637 and that she continued to work as a welder without interruption. However, she agreed that she assisted the appellant with moving the purchased assets to a new location from December 4, 2017, onward until she was laid off.

On these facts, the motion judge granted the respondent's motion for summary judgment. She held that the respondent "had been continually employed from 1981 to 2017, a period of 36 years", concluded that the proper notice period was 20 months, and awarded the respondent $66,391.40 for damages for wrongful dismissal plus $11,958.96 for costs.

issues:

1. Was summary judgment appropriate?
2. Did the motion judge err in holding that the respondent was entitled to damages in lieu of reasonable notice of termination?
3. Did the motion judge err in assessing the quantum of damages in lieu of reasonable notice?

holding:

Appeal allowed.

reasoning:

1. No. In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, rev'd on other grounds, 2014 SCC 7, a five-judge panel of the Court indicated, while a motion for summary judgment could be appropriate in some Rule 76 proceedings, such cases would be exceptional. This was for two reasons. First, it will often be more efficient to simply proceed to a summary trial as contemplated by the Rules. The simplified procedure rules are designed to get the parties to trial with a minimum of delay and costs. One of the key objectives of the simplified procedure rules is to limit the extent of pretrial proceedings. Discovery is restricted and cross-examination on affidavits and examinations of witnesses on motions are not allowed. The summary trial procedure is designed to reduce the length of the trial. A judge faced with a contested motion for summary judgment in a simplified procedure action will need to assess whether entertaining the motion is consistent with the efficiency rationale reflected in the simplified procedures. While the Supreme Court's foundational summary judgment decision in Hryniak v. Mauldin, 2014 SCC 7, did not specifically address how summary judgment applies in a simplified procedure case, the Supreme Court did affirm that the motion judge must assess, among other things, "the relative efficiencies of proceeding by way of summary judgment, as opposed to trial" and the impact of summary judgment on the litigation as a whole when determining whether it is in the interests of justice to exercise their fact-finding powers and grant summary judgment:

Second, the simplified procedure rules, which are designed to allow the matter to be determined in an expedited fashion, also constrain the parties' ability to marshal evidence on a summary judgment motion and meet their obligation to put their best foot forward. In this case, the appellant submitted it was hampered because it could not cross-examine the respondent on her affidavit supporting the motion and did not have the evidence of the third party, 637. The respondent countered with the argument that the appellant could have examined the respondent and the third parties for discovery (though the parties had initially agreed to proceed without discoveries). These submissions illustrated that summary judgment motions should be discouraged where they would simply require the parties to prepare for and deal with additional procedures, expending resources and time that would have enabled them to proceed to a summary trial. As the Court observed in Combined Air, "the inappropriate use of Rule 20 has the perverse effect of creating delays and wasting costs associated with preparing for, arguing and deciding a motion for summary judgment, only to see the matter sent on for trial." The risk of this perverse consequence is greater in simplified procedure cases. The motion judge in this case did find that the motion for summary judgment was "the most proportionate, most expeditious, and least expensive method of adjudication of the issues". But apart from expressing that conclusion, the bulk of her analysis was directed to her ability to decide the issues. She held that she was able to decide the issues because she took the view that the matters in dispute were not material. However, the factual disputes that the motion judge could not and did not resolve on the record before her were genuine issues requiring a trial. This was a case in which the parties had agreed to proceed without any discoveries but where cross-examination on the general assertions in both parties' affidavits was necessary to resolve the competing evidence. Allowing the matter to...