Court of Appeal for Ontario

Date: 2021-06-09 Docket: C67947

Before: Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.

Parties

Between:

Francesco De Palma Plaintiff (Appellant)

and

Canadian Federation of Independent Business Defendant (Respondent)

Counsel: Andrew Monkhouse and Samantha Lucifora, for the appellant Nafisah Chowdhury, for the respondent

Heard and released orally: June 7, 2021 by video conference

On appeal from the order of Justice Janet Leiper of the Superior Court of Justice, dated December 20, 2019.

Reasons for Decision

[1] This is an appeal from a motion for summary judgment dismissing the appellant’s claim for constructive dismissal, among other relief.

[2] The appellant was employed by the Canadian Federation of Independent Business, the respondent, for approximately 20 years when his sales of new memberships for the respondent began to decline. When the respondent raised the matter with the appellant, the appellant stated that he no longer wished to be involved in selling new memberships because of his age, health, and tenure with the respondent. Discussions ensued, and eventually the appellant’s insurer approved him for Long Term Disability benefits. Approximately 19 months later, the appellant brought a claim for constructive dismissal against the respondent, along with other heads of relief.

[3] The respondent then brought a motion for summary judgment, seeking to dismiss all of the appellant’s claims in his Statement of Claim pursuant to r. 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Following an application of the court’s powers under r. 20.04(2.1), the motion judge was satisfied that there was no genuine issue requiring a trial with respect to the appellant’s claims. Therefore, the respondent succeeded on their motion for summary judgment, obtaining the dismissal of the appellant’s action.

[4] The appellant appeals on the basis of four alleged errors made by the motion judge.

[5] First, the appellant argues that the motion judge erred by failing to consider each of his claims set out in the Statement of Claim, instead focusing solely upon the claim involving constructive dismissal. These include the claims for intentional infliction of mental distress, violation of human rights, and punitive damages. We do not agree.

[6] While the motion judge did focus upon the constructive dismissal claim, she was correct to do so, as she found constructive dismissal was “at the heart” of the appellant’s claim. We agree with that assessment. If there was no constructive dismissal of the appellant, there could be no intentional infliction of mental distress and no possibility for punitive damages. Accordingly, it was not necessary for the motion judge to go on and consider those other heads of relief.

[7] In light of her conclusions relating to the “heart” of the matter, nor was there any reason for the motion judge to go on and specifically address the suggestion that the respondent had breached the Human Rights Code, R.S.O. 1990, c. H.19, by failing to accommodate the appellant’s disability. In fact, as found by the motion judge, the constructive dismissal claim could not succeed because the respondent was “reasonabl[y] request[ing] information to design a plan for accommodation”. Therefore, the respondent was making active efforts to attempt to accommodate the appellant’s disability. All secondary claims flowed from the constructive dismissal claim and, as such, it was truly the only live issue before the motion judge. She squarely dealt with that issue in her reasons.

[8] Second, the appellant claims that the motion judge erred in failing to grant him his requested adjournment of the motion for summary judgment. We see no error in the motion judge’s refusal to grant this request. There was no evidentiary foundation placed before the motion judge that would have supported a late-in-the-day adjournment. In these circumstances, we defer to the motion judge’s exercise of discretion.

[9] Third, the appellant argues that the motion judge erred in her approach to the question of summary judgment. In essence, the appellant claims that summary judgment was not appropriate in the circumstances. We do not agree.

[10] The motion judge correctly stated the law relating to summary judgment. We agree with her assessment that the matter turned largely on documentary evidence, where the communications between the parties were carefully catalogued. For the reasons stated by the motion judge, those communications revealed that the respondent did not constructively dismiss the appellant. Rather, the respondent was making efforts to determine how to accommodate the appellant in the workplace, which efforts were frustrated by the appellant’s refusal to comply with the respondent’s requests. This was therefore an entirely appropriate case for summary judgment.

[11] Fourth, and finally, the appellant argues that the motion judge erred because she failed to pronounce upon the outcome of his employment status. The motion judge was not asked to do so. It does not fall to the appellant to allege an error in failing to address something that he did not raise at the motion.

Conclusion

[12] The appeal is therefore dismissed.

[13] Costs will be paid to the respondent in the amount of $20,000, all inclusive.

“Fairburn A.C.J.O.” “A. Harvison Young J.A.” “M. Jamal J.A.”