COURT OF APPEAL FOR ONTARIO
Epstein, Tulloch and Pardu JJ.A.
BETWEEN
Derek Stephen Smith and Richard Emil Disano
Plaintiffs (Respondents)
and
Waterloo Taxi Limited
Defendant (Appellant)
Steven D. Gadbois, for the appellant
Justin Heimpel, for the respondents
Heard: December 13, 2013
On appeal from the judgment of Justice Harrison S. Arrell of the Superior Court of Justice, dated March 8, 2013, with reasons reported at 2013 ONSC 1466.
ENDORSEMENT
1Waterloo Taxi Limited appeals from a decision granted on a summary judgment motion concluding that it had wrongfully removed Richard Emil Disano from its roster of approved drivers.
2Waterloo terminated Disano because it alleged that he was covertly getting access to confidential information so that he could position his car to be the primary responder to highly sought-after pre-booked out-of-town calls. It alleged that with the advance knowledge of the pick-up location for such calls, he would station himself nearby, and therefore get the first chance at the fares.
3Waterloo Taxi initially based the termination on the ground that Disano was getting a disproportionately large number of these out-of-town calls compared to other drivers. However, as the action progressed it became clear that Waterloo Taxi’s initial allegations about the number of out-of-town calls to which Disano was the primary responder were not borne out by the evidence. Waterloo Taxi therefore sought out other evidence to support its case.
4Waterloo Taxi filed an affidavit based on information and belief containing new allegations, for example, that Disano had come into the dispatch office and looked at the dispatch book. It also stated that it had information from Janet Musclow, who worked in the dispatch office with Disano’s wife that on a minimum of 10-20 occasions she saw Disano’s wife write down information about pre-booked out-of-town trips on a scrap piece of paper and put it in her purse. Waterloo Taxi relied on this new evidence to suggest a substantial pattern of cheating. The problem with this new approach, once again lay in the numbers: there was simply no evidence that Disano was the primary responder in a disproportionately high number of out-of-town calls.
5Moreover, Disano answered these new allegations with direct evidence. For example, his wife swore an affidavit denying the conduct attributed to her, describing how she had not even worked the same shifts as Musclow, and therefore that the latter could not have seen what she purported to have seen.
6The appellant submits that the motion judge erred by discounting the evidence provided on information and belief in its affidavit. This was a simplified procedure action under Rule 76. Since cross-examinations on affidavits are not permitted in these actions, reliance on information and belief does not have the effect of shielding the source of the information from cross-examination. The appellant argues that for this reason, no adverse inference should be drawn from reliance on hearsay evidence.
7However, rule 20.02(1) specifically provides that on a summary judgment motion the “court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.”
8Rule 20.04(2.1) provides that, in determining whether there is a genuine issue for trial, a judge may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.
9There is no suggestion here that the motion judge did not apply the correct test for deciding whether to grant summary judgment. Rather, the complaint is about the way he weighed the evidence. Under these circumstances, the deferential standard of palpable and overriding error applies: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 71.
10Given the seriousness of the allegations of cheating and their centrality to the litigation, the motion judge did not err in his treatment of Waterloo’s Taxi evidence and in preferring the Disano’s direct, specific responding evidence, particularly in the context of ultimately undisputed evidence that the proportion of primary calls received by Disano was not high enough to be of concern.
11We see no basis to interfere with the motion judge’s conclusion that he could fully appreciate the evidence and issues on the basis of the motion record, or in the manner in which he weighed the evidence.
12For these reasons, the appeal is dismissed with costs to the respondents fixed at $10,000 inclusive of H.S.T. and disbursements.
“Gloria Epstein J.A.”
“M. Tulloch J.A.”
“G. Pardu J.A.”