COURT OF APPEAL FOR ONTARIO

CITATION: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753

DATE: 20161018

DOCKET: C61766

Strathy C.J.O., LaForme and Benotto JJ.A.

BETWEEN

Christopher Mazza

Plaintiff (Appellant)

and

Ornge Corporate Services Inc. formerly known as Ornge Peel Ltd., Ornge, and Ornge Global Real Estate Inc.

Defendant (Respondents)

Alfred Schorr, for the appellant

Jeffrey Goodman and Edward O’Dwyer, for the respondent

Heard: October 11, 2016

On appeal from the judgment of Justice Sean F. Dunphy of the Superior Court of Justice, dated December 22, 2015.

ENDORSEMENT

[1] The appellant entered into Minutes of Settlement with the trustee in bankruptcy of his former employer, releasing the bankrupt estate from his claim for termination of employment and from all other claims that could have been raised in the bankruptcy. He then brought similar claims against affiliated companies, asserting they were liable, as common employers, for the termination of his employment. He also asserted claims for interference with economic relations and conspiracy to injure, alleging that they conspired to use the bankruptcy process to defeat his legitimate claims.

[2] His claims were dismissed on the respondent’s motion for summary judgment.

[3] The motion judge found that the common employer argument could not succeed. There was no evidentiary basis for it, and the Employment Agreement and other documents executed by the appellant were, when properly interpreted, inconsistent with any joint liability of the alleged common employers.

[4] The appellant argues that the motion judge should not have considered the common employer issue because the respondent had admitted, for the purpose of argument on the effect of the release given to the trustee, that the Ornge defendants were common employers. He also asserts that the issue was not pleaded or raised in the notice of motion.

[5] We reject this submission. In their statement of defence the respondents denied that they were common employers. On the summary judgment motion, they argued that even if they were common employers, they were entitled to the benefit of the release given by the appellant to the trustee.

[6] We also reject the appellant’s submission that the motion judge erred in requesting additional submissions on the common employer issue. Having found that this was an appropriate case for summary judgment, the motion judge was entitled to give appropriate directions to ensure that the parties’ submissions were properly focused on the issues raised by the evidence. He was entitled to ask the parties for further submissions on the issue of whether the common employer argument could succeed in light of the provisions of the Employment Agreement and the Master Management Agreement. The parties filed submissions in response to this request and, as the motion judge noted, neither party took the position that further evidence or argument was required to fairly deal with the issue.

[7] We see no unfairness in either the procedure adopted by the motion judge. Nor do we see error in his analysis of the factual and legal issues. The common employment claim involved the interpretation of the Employment Agreement, the Master Management Agreement, and the Minutes of Settlement in the context of the factual matrix, including the inter-corporate relationships of the Ornge business, in which the appellant played a pivotal role and wore many hats.

[8] The motion judge’s interpretation of those agreements is entitled to deference, in the absence of a palpable and overriding error in the assessment of the evidence or an extricable error of law: see Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, 2 S.C.R. 633, at paras. 50-55. The appellant has demonstrated neither. The motion judge correctly held that the appellant’s common employer claim was not supported by the facts as the appellant adduced no evidence in support of that claim. As well, that claim was precluded by motion judge’s interpretation of the agreements – an interpretation that was reasonable. The Employment Agreement identified only one employer and contained an express release of claims against affiliated corporations.

[9] The motion judge did not misapply the burden of proof as the appellant asserts. He simply applied the well-established rule that both parties on a summary judgment motion have an obligation to put their best foot forward: See Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32, aff’d 214 ONCA 878. The appellant did not swear an affidavit on the motion. He simply relied on an affidavit filed by his wife. Considering that the appellant was one of the architects of the corporate structure and the senior officer of the corporate entity, the motion judge was entitled to draw an adverse inference from his failure to adduce personal evidence.

[10] In the circumstances, it is unnecessary to address the appellant’s submission concerning the effect of the release in light of s. 129 of the Courts of Justice Act, R.S.O. 1990, c C.43. This submission was not raised in the court below, and it is based on the argument that the respondents were common employers, an argument the motion judge properly rejected.

[11] The appellant did not pursue his argument that the motion judge erred in concluding that the conspiracy claim was a collateral attack on the bankruptcy process. Having filed a proof of claim and having settled his claim with the trustee, it was not open to him to challenge the validity of the bankruptcy in a subsequent proceeding.

[12] The appeal is therefore dismissed, with costs payable to the respondent in the agreed amount of $12,500 inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.”

“H.S. LaForme J.A.”

“M.L. Benotto J.A.”