DATE: 20010119

DOCKET: C34533

COURT OF APPEAL FOR ONTARIO

RE: LAURIE McGILL (Plaintiff/Respondent) –and– BROADVIEW FOUNDATION (Defendant/Appellant)

BEFORE: FINLAYSON, ABELLA and FELDMAN JJ.A.

COUNSEL: Jeffrey E. Goodman, for the appellant

Robert G. Tanner, for the respondent

HEARD: January 15, 2001

RELEASED ORALLY: January 15, 2001

On appeal from the judgment of Madam Justice Frances P. Kiteley dated June 5, 2000.

E N D O R S E M E N T

[1] Broadview Foundation appeals the decision of Madam Justice Kiteley of the Superior Court of Justice wherein the motions judge granted summary judgment for the plaintiff for wrongful dismissal pursuant to rule 76.06(14) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended and ordered a trial on the issue of damages.

[2] In her reasons, the motions judge stated:

[4] The plaintiff has filed an affidavit. The defendant has filed four affidavits: two from individuals who had been involved in the events on May 20th and the supervisor and the Director. As a result of Rule 76.05, there has been no cross-examination on any of the affidavits.

[6] I agree with Mr. Goodman [counsel for Broadview] that the evidence discloses significant differences as to: (a) what events occurred on May 20th; (b) the steps taken by the employer to address the problems; (c) whether the plaintiff initially agreed with the Director’s course of action; (d) whether the plaintiff herself and through her counsel took the position that she would not return to the workplace unless two other employees were terminated; and (e) whether, if the plaintiff did not actually make that ultimatum, the Director was entitled to draw that inference based on statements which she made and which her lawyer made in correspondence. I agree that a court cannot arrive at a determination on each of those issues without cross-examination.

[3] Rule 76.06(14) reads as follows:

On a motion for summary judgment under this rule, the presiding judge shall grant judgment unless,

a) the judge is unable to decide the issues in the action in the absence of cross-examination; or

b) it would otherwise be unjust to decide the issues on the motion.

[4] The purpose of rule 76.06 is to allow the parties to bring forward a relatively inexpensive application for summary judgment. Evidence to be considered includes the affidavits of the parties, any supporting material that can properly be placed before the court and the affidavits of witnesses. Summary judgment can only be granted when all of the evidence reviewed in total upon applying the principles of justice and fairness demonstrates a clear case wherein the motions judge may enter judgment. In circumstances where the case is not clear or where it dictates that justice and fairness would suggest otherwise, it is appropriate for the judge to refer the matter to trial.

[5] In our view, having regard to her inability to make findings with respect to the circumstances which gave rise to the termination of the plaintiff, the motions judge should not have granted summary judgment. In doing so, she ignored the evidence of the employer Broadview and relied exclusively on the narrow defence of the plaintiff that the production of a doctor’s certificate was dispositive of the issue of whether her termination was for cause. The significance of the certificate could only be determined in the circumstances of the termination and, since she was unable to do that on conflicting evidence, she should not have made a finding.

[6] The motions judge acknowledged the conflict in the evidence by directing a trial of an issue to resolve the assertion that the plaintiff was entitled to aggravated damages arising from the bad faith of the employer in wrongfully terminating her. She stated:

[13] The issues arising with the plaintiff’s claim for damages are not nearly so clear. The plaintiff had been employed with the defendant as a Registered Nurse for approximately 3 years. On the basis of the factors in Bardal v. The Globe and Mail, 1960 294 (ON SC), [1960] O.J. No. 149 and the allegation contemplated in Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701 that the employer acted in bad faith and consequently, her damages should be enhanced, the plaintiff claims damages in lieu of notice calculated as 8 months or $24,575.68 plus prejudgment interest.

[7] It is thus apparent that by bifurcating the proceedings in this particular case, little was gained because, in ordering a trial of an issue before herself on damages, she left open the problem of the resolution of the conflicting evidence.

[8] In these circumstances, the judgment below should be set aside. The appeal is allowed and a trial is ordered.

[9] The costs of this appeal and the proceedings below are to be determined by the new trial judge.

Signed: “G.D. Finlayson J.A.”

“R.S. Abella J.A.”

“K. Feldman J.A.”