Court File and Parties
CITATION: Ste-Croix v. Al-Hashimi, 2018 ONSC 7480
DIVISIONAL COURT FILE NO.: 45/18 DATE: 20181212
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, A.J. O’MARRA and McCARTHY JJ.
BETWEEN:
MARY STE-CROIX
Jean-Alexandre De Bousquet and Daria Chyc, for the Plaintiff (Respondent)
Plaintiff (Respondent)
– and –
AL-HASHIMI and JAWAD DENTISTRY PROFESSIONAL CORPORATION
David Mayzel, for the Defendant (Appellant)
Defendant (Appellant)
HEARD at Toronto: December 12, 2018
Oral Reasons for Judgment
SWINTON J. (Orally)
[1] This is an appeal from the order of Morgan J. dated December 12, 2017 granting summary judgment in a wrongful dismissal action under the Simplified Rules for the net amount of $22,084.00 plus costs.
[2] The appellant does not take issue with the motion judge’s finding respecting the notice period. The respondent concedes that the costs order must be set aside because the motion judge failed to hear cost submissions.
[3] The question for this Court is whether the motion judge erred in granting summary judgment, given this is a Rule 76 proceeding.
[4] The motion judge considered whether it was appropriate to proceed by summary judgment, although he did not refer explicitly to Rule 76 or the Court of Appeal decision in Singh v. Concept Plastics Ltd., 2016 ONCA 815. He concluded that there were no genuine issues of credibility, and that he could fairly determine the issues of notice and mitigation on the record before him. We see no error in his conclusion that this was an appropriate case for summary judgment.
[5] The appellant claims it was unfairly disadvantaged because it could not cross-examine the respondent.
[6] The record indicates that the appellant had an opportunity to pursue cross-examination of the respondent and in fact, the motion for summary judgment had been adjourned once to allow for cross-examination.
[7] The appellant raises the issue that the respondent failed to appear on a scheduled date, but the appellant had been late in providing responding material in accordance with the agreed procedure for the motion, and it would have been unfair to proceed to the examination in the absence of responding materials.
[8] The motion judge stated in para. 23 of his reasons:
There is no reason here that I cannot come to a just and fair determination of the issues on the basis of the record before me. If this matter were to go to a full trial, we would have the witnesses take the stand and do little more than reiterate what they have already stated in affidavit form. The Plaintiff might describe in more detail the content of her conversation with some of the prospective employers she approached, but this would be mostly superfluous information that does not really advance the analysis of the fundamental issues here. Accordingly, this case is an appropriate one for summary judgment.
We see no error in this observation.
[9] This brings us back to the issue of whether it was an error to determine the issue of mitigation on a summary judgment motion. In our view, the motion judge correctly held that there is no real issue of credibility here; rather, the issue is the reasonableness of the mitigation efforts made by the respondent (see para. 22 of the Reasons).
[10] The motion judge did consider the appellant’s evidence challenging the reasonableness of the respondent’s mitigation efforts. He concluded that her efforts were reasonable (see para. 17). His conclusion was reasonable, given the evidence.
[11] In conclusion, we see no error in the motion judge’s determination that this was an appropriate case for determination by summary judgment, and there was no error of law or fact respecting the mitigation issue. We would dismiss the appeal on the merits.
[12] However, we would allow the appeal in part and set aside para. 3 of the order dealing with costs and remit the issue of costs to the motion judge to determine after receiving submissions from the parties.
[13] I have endorsed the Appeal Book and Compendium as follows: “This appeal is allowed in part. Paragraph 3 of the order dated December 12, 2017 is set aside, and the issue of costs is remitted to the motions judge to determine after receiving submissions from the parties. Costs to the respondent fixed at $10,000, all in.”
___________________________ Swinton J.
I agree
A.J. O’Marra J.
I agree
McCarthy J.
Date of Reasons for Judgment: December 12, 2018
Date of Release: December 14, 2018
CITATION: Ste-Croix v. Al-Hashimi, 2018 ONSC 7480
DIVISIONAL COURT FILE NO.: 45/18 DATE: 20181212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, A.J. O’MARRA and McCARTHY JJ.
BETWEEN:
MARY STE-CROIX
Plaintiff (Respondent)
– and –
AL-HASHIMI and JAWAD DENTISTRY PROFESSIONAL CORPORATION
Defendant (Appellant)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: December 12, 2018
Date of Release: December 14, 2018