Court of Appeal for Ontario

Citation: Khosa v. Homelife/United Realty Inc., 2016 ONCA 3 Date: 20160106 Docket: C60735

Before: Pepall, Pardu and Roberts JJ.A.

Between:

Jaswinder Khosa Plaintiff Appellant

and

Homelife/United Realty Inc., Parvinder Singh, Gurjinder Singh and K & K Brothers Inc. Defendants Respondents

Counsel: Douglas G. Edward, for the appellant Pathik Baxi, for the respondents

Heard and released orally: January 5, 2016

On appeal from the judgment of Justice Casimir Herold of the Superior Court of Justice, dated June 3, 2015.

ENDORSEMENT

[1] The appellant appeals from the June 3, 2015 summary judgment in which Herold J. dismissed the appellant’s action against the respondents. He dismissed the action, which was commenced on October 17, 2013, based on a finding that the limitation period expired at the very latest on September 13, 2013.

[2] The appellant submits that the motion judge erred in granting summary judgment in the absence of any cross-examinations or examinations for discovery. He argues that the motion judge ignored the appellant’s sworn statement that he received from the respondents a cash payment of $5,000 on December 2, 2011, which served to extend the limitation period. This evidence was contradicted by the respondent Singh and as such, there was a genuine issue requiring a trial.

[3] The appellant requested an adjournment of the summary judgment motion to conduct cross-examinations on the affidavits filed by the respondents. He also had not filed a factum. The motion judge exercised his discretion to refuse the request. The motion had been served nine months earlier, had been adjourned twice before, and on two prior occasions, timetables for cross-examinations and other steps in the proceedings had been ordered and not maintained. Moreover, the date of the motion had been scheduled for three hours and had been made peremptory on all parties. The respondents were prepared to proceed. The motion judge was satisfied that he could reach a fair and just determination on the merits in the absence of cross-examinations.

[4] The appellant was afforded ample opportunity to conduct cross-examinations but opted not to do so. Scheduling timetables are not ordered to be ignored. It was open to the motion judge to refuse an adjournment in the circumstances.

[5] That said, the motion judge still had to be satisfied that there was no genuine issue requiring a trial and that a fair and just determination on the merits could be reached. See Hryniak v. Maudlin, 2014 SCC 7.

[6] The appellant argues that the respondents paid $5,000 to the appellant on December 2, 2011, and that the payment served to extend the limitation period. The respondents deny any indebtedness to the appellant and deny making any such $5,000 payment.

[7] The respondents acknowledge that the extension of the limitation period issue was raised before the motion judge. Further, the motion judge alluded to it in his reasons refusing the adjournment request. However, the motion judge failed to make any findings on this issue and failed to resolve the material contradictions in the evidence, including whether the $5,000 payment was made.

[8] In these circumstances, we are of the view that the appeal must be allowed and the summary judgment dismissing the action set aside.

[9] The costs order below is set aside and in substitution, as agreed by the parties, the appellant is to pay the respondents $2,500 inclusive of disbursements and HST.

[10] There will be no order of costs for the appeal.

“S.E. Pepall J.A.” “G. Pardu J.A.” “L.B. Roberts J.A.”