Court File and Parties
CITATION: Lewis v. Lavern Heideman & Sons Limited, 2016 ONSC 4017
COURT FILE NO.: 15-2166
DATE: 2016/06/16
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Glen Lewis, Plaintiff/Appellant
AND
Lavern Heideman & Sons Limited, Defendant/Respondent
BEFORE: Aston J., Taylor J., and Labrosse J.
COUNSEL: Jaye E. Hooper, for the Plaintiff/Appellant
Christopher McClelland, for the Defendant/Respondent
HEARD: June 16, 2016
Reasons for Decision
Taylor J. (Orally)
[1] This is an appeal by the plaintiff from the interlocutory order of The Honourable Mr. Justice Patrick Smith dismissing a motion for partial summary judgment in an action for wrongful dismissal.
[2] The issues in the case include whether the termination of the plaintiff’s employment was for just cause, the amount of notice to which the plaintiff is entitled if the dismissal was without cause, mitigation, defamation, breach of fiduciary duty, breach of the duty of good faith and intentional infliction of mental distress.
[3] The Notice of Motion sought a declaration that the plaintiff was wrongfully dismissed and a determination that the plaintiff was entitled to 36 months’ salary in lieu of notice plus the value of lost benefits for the period of notice.
[4] The motion judge gave written reasons for dismissing the motion and addressed the principles enunciated in the leading case of Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87. On appeal the plaintiff complains that the motion judge failed to correctly apply the principles from Hryniak.
[5] At paragraphs 81 to 83 of Hryniak, Karakatsanis J. stated:
In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.
Similarly, the question of whether it is in the "interest of justice" for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.
Provided that it is not against the "interest of justice", a motion judge's decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.
[6] In our view, this appeal involves issues of mixed law and fact and there is no extricable question of law. As such the findings of the motion judge should not be overturned absent palpable and overriding error.
[7] In our view, the motion judge addressed the issues that were before him. The motion judge could have decided some of the issues on the motion for summary judgment but he was not required to do so. We may not have come to the same conclusions that he did but his decision is entitled to deference.
[8] As noted by the motion judge at paragraph three of his reasons, the plaintiff is also seeking damages for mental distress, long-term disability benefits and defamation which are issues which will require a trial for their resolution. In our view, it was an appropriate factor to take into consideration that, in this case, a trial will be required regardless of the decision made on the motion for partial summary judgment.
[9] On appeal, counsel for the appellant referred to the failure of the motion judge to address the issue the enforceability of the employment contract. It is submitted there were no material facts in dispute on that issue. However the Notice of Motion did not identify this as a discrete issue. We find this forms part of the issue of just cause which is to be dealt with by the trial judge.
[10] The motion judge was alive to the cases which have held that summary judgment is available for cases of wrongful dismissal and that summary judgment is not reserved for exceptional cases. However, in his view, in this case, there are factual disputes on multiple issues which will require a trial for their resolution. He was concerned about the possibility of duplicative proceedings and/or possible inconsistent findings. These were appropriate considerations.
[11] In essence, the appellant seeks to have this court rehear the motion for partial summary judgment and substitute its opinion for that of the motion judge. That is not the function of this court.
[12] For these reasons the appeal is dismissed.
Taylor J.
Aston J.
Labrosse J.
Date: June 16, 2016
CITATION: Lewis v. Lavern Heideman & Sons Limited, 2016 ONSC 4017
COURT FILE NO.: 15-2166
DATE: 2016/06/16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: Glen Lewis, Plaintiff/Appellant
AND
Lavern Heideman and Sons Limited, Defendant/Respondent
BEFORE: Aston J., Taylor J., and Labrosse J.
COUNSEL: Jaye E. Hooper, for the Plaintiff/Appellant
Christopher McClelland, for the Defendant/Respondent
Taylor J.
Aston J.
Labrosse J.
Released: June 16, 2016