COURT OF APPEAL FOR ONTARIO
CITATION: Singh v. Concept Plastics Limited, 2016 ONCA 815
DATE: 20161103
DOCKET: C61374 and C61375
Feldman, Rouleau and Huscroft JJ.A.
BETWEEN
C61374
Jasvir Singh
Plaintiff (Respondent)
and
Concept Plastics Limited
Defendant (Appellant)
AND BETWEEN
C61375
Ranganadan Gounder
Plaintiff (Respondent)
and
Concept Plastics Limited
Defendant (Appellant)
Jayson W. Thomas, for Concept Plastics Limited
Lumi Pungea, for Jasvir Singh and Ranganadan Gounder
Heard: May 16, 2016
On appeal from the orders of Justice Kelly P. Wright of the Superior Court of Justice, dated October 23, 2015, with reasons reported at 2015 ONSC 6598 and 2015 ONSC 6599.
Huscroft J.A.:
[1] Concept Plastics Limited (“Concept”) appeals from the motion judge’s orders granting summary judgment to the respondent employees, Ranganadan Gounder (“Gounder”) and Jasvir Singh (“Singh”).
[2] Both appeals raise similar issues and were heard together. This decision deals with both appeals and differentiates the situations of each respondent where necessary.
[3] I would allow the appeals for the reasons that follow.
Background
[4] This action arises out of Concept’s decision to move its plant from Mississauga to Brantford in 2014. Gounder and Singh were long-term employees of Concept at its Mississauga plant.
[5] Gounder, then 50 years of age, was employed by Concept for 20 years and earned approximately $50,000 per annum plus benefits. Singh, then 51 years of age, was employed by Concept for 24 years and earned approximately $45,000 per annum plus benefits. Both were informed by letter dated November 21, 2013 that Concept would be moving its plant and would cease operations in Mississauga by January 17, 2014. They were invited to continue their employment at the new location or to consider the letter a termination notice. Ultimately, the plant closure did not occur until June 30, 2014. Both worked at the Mississauga plant up to and including that day.[^1]
[6] Gounder and Singh both commenced their actions for damages for wrongful dismissal under the simplified procedure provided in r. 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They then brought motions to dispose of their actions by way of summary judgment under r. 20.
[7] Concept opposed each motion on the basis that there were a number of genuine issues requiring trial, and that the procedural constraints under the simplified procedure – in particular, r. 76.04 – precluded it from putting its best foot forward on the summary judgment motions. Rule 76.04 provides as follows:
76.04 (1) The following are not permitted in an action under this Rule:
Examination for discovery by written questions and answers under Rule 35.
Cross-examination of a deponent on an affidavit under rule 39.02.
Examination of a witness on a motion under rule 39.03. O. Reg. 438/08, s. 53.
(2) Despite rule 31.05.1 (time limit on discovery), no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of two hours of examination, regardless of the number of parties or other persons to be examined.
[8] Concept argued that there were credibility disputes concerning: (1) whether the respondents had requested extension of their employment; (2) whether the respondents were constructively dismissed; and (3) whether the respondents took reasonable steps to mitigate their losses. It argued that summary judgment was unfair in the circumstances.
The motion judge’s decision
[9] The motion judge found that there was no genuine issue requiring a trial and granted summary judgment in favour of both respondents. She found that the November 21, 2013 letter constituted termination of employment without cause, effective January 17, 2014. The motion judge found, further, that on December 31, 2013, the termination date was extended to May 30, 2014, and that the termination date was extended a third time, on June 10, 2014, to June 30, 2014.
[10] The motion judge concluded that the cumulative effect of the notices and updates sent by Concept was to create confusion and uncertainty, and that Gounder and Singh “had no idea” when their employment would end until June 30, 2014. She rejected Concept’s submission that Singh (or any other employee) was driving the decision to extend the termination date. The motion judge found that both Gounder and Singh worked beyond the 13-week period for temporary extension of termination allowed under s. 6 of Termination and Severance of Employment, O. Reg. 288/01 and were entitled to fresh notice that they did not receive in any event.
[11] The motion judge found that an 18-month notice period was reasonable for Gounder and that a 20-month notice period was reasonable for Singh.
[12] Concerning Gounder and Singh’s duty to mitigate their losses by taking reasonable steps to find new employment, the motion judge described herself as “underwhelmed” by their efforts in the first six months following the termination of their employment on June 30, 2014. During this period, it appears that Gounder took no action to find employment and Singh made only three employment-related inquiries, albeit in person. However, the motion judge excused their inactivity on the basis that six months was a reasonable period for each respondent to “get oriented and figure out how to navigate his life forward”.
[13] Although there was evidence that four Concept employees found new employment at Kal-Trading, another plastics company in Mississauga - an opportunity that neither Gounder nor Singh explored - the motion judge declined to draw an adverse inference regarding failure to mitigate against either Gounder or Singh.[^2]
[14] The motion judge stated that she found no evidence to support the submission that Gounder was on a holiday in Fiji when he should have been attempting to mitigate his losses, and did not accept that Singh had income from a trucking business during the mitigation period.
[15] The motion judge found that both Gounder and Singh made satisfactory efforts to find employment from January 2015 onwards, and awarded $84,499.77 in damages to Gounder and $82,652.81 to Singh.
Issues on appeal
[16] Concept does not dispute that the relocation of its operation to Brantford constituted a dismissal for which Gounder and Singh were entitled to reasonable notice. The issues are: (1) whether the motion judge erred in adjudicating by way of summary judgment; and (2) whether the motion judge erred in concluding that Gounder and Singh reasonably mitigated their losses.
[17] In respect of the summary judgment issue, Concept argues that there were numerous conflicts in the evidence that raised genuine issues requiring a trial that were not referred to or resolved, and that the reasons provided by the motion judge failed to address the unfairness to Concept caused by r. 76.04(1), which precluded both cross-examination of the respondents on their affidavits and the examination of witnesses.
[18] Gounder and Singh argue that summary judgment was appropriate because there were no factual matters in dispute that were material to the decision on the central legal issues, and that r. 76.04(1) did not preclude Concept from putting its best foot forward on the motion. Gounder and Singh submit that Concept had ample opportunity to ask relevant questions on discovery and that the motion judge’s reasons were sufficient.
[19] In respect of the mitigation issue, Concept argues that neither Gounder nor Singh reasonably mitigated their losses, as neither provided a reasonable explanation for his failure to seek employment actively during the six months following the termination of his employment. Concept argues, further, that summary judgment was inappropriate given issues in dispute concerning the availability of Gounder for mitigation, Singh’s work as a truck driver, and the availability of alternative employment at Kal-Trading. Gounder and Singh contend that the motion judge was correct to find that they properly mitigated their losses.
Analysis
[20] In my view, the motion judge failed to assess the fairness of deciding this matter by way of summary judgment in the context of the simplified rules procedural constraints under Rule 76.04.
[21] It was central to Concept’s case that Gounder and Singh were well aware of their termination date, and as a result Concept should have been credited with providing notice as of December 31, 2013. Concept’s evidence was that it extended the original January 17, 2014 termination date to June 30, 2014 in response to a request from a group of employees that included Gounder and Singh. Moreover, Concept alleged that Gounder and Singh, as senior employees, were at all times aware of the developments concerning the move, having both assisted with the move and elected to stay until the end of June 2014. In short, there could be no confusion as to the date when their work was going to end.
[22] Rule 76.04(1) establishes significant limitations on Concept’s ability to prove its case. Gounder and Singh’s affidavit evidence conflicted with Concept’s, but r. 76.04(1) precluded Concept from cross-examining them on (1) whether they had requested an extension of their employment; and (2) whether they were aware of all of the relevant developments concerning the move.
[23] Although summary judgment is available in the context of actions brought under the simplified procedure, as this court stated in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 256:
Given that Rule 76 limits discoveries and prohibits cross-examination on affidavits and examinations of witnesses on motions, the test for granting summary judgment will generally not be met where there is significant conflicting evidence on issues confronting the motion judge.
[24] The problem noted by the court in Combined Air was present in this case. Concept referred to r. 76.04(1) at several points in its factums and explained how the rule limited its ability to adequately respond to the summary judgment motions. However, the motion judge's reasons neither referred to these submissions nor explained why the constraints imposed by the rule did not prejudice Concept in its ability to respond to the motions. This was an error.
[25] Gounder and Singh contend that Concept overstates the effect that r.76.04(1) had on its case, noting that it had the opportunity to ask relevant questions on discovery. I do not agree. Concept had limited discovery under the simplified procedure prior to the affidavits filed in support of a motion for summary judgment. As stated above, credibility was a central issue on the motion, and the positions set out by Gounder and Singh in their motions clearly conflicted with Concept's evidence on the main points at issue. As this court said in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44, in motions for summary judgment where credibility is important:
Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.
[26] In this case, the motion judge failed to make credibility findings and failed to explain how she resolved the conflicts in the evidence. Her conclusion that Gounder and Singh had no idea when their employment would end and were entitled to fresh notice failed to address Concept’s position.
[27] Similar difficulties attend the motion judge’s conclusions on the issue of mitigation.
[28] The motion judge found there was no evidence to support Concept’s submission that Gounder was in Fiji, and so unavailable to mitigate, but failed to address inconsistent statements he made on examination for discovery. There was conflicting evidence as to whether Singh was employed as a truck driver during the mitigation period, which Singh and another man denied in their affidavits. However, Concept was not permitted to cross-examine them on their affidavits. The motion judge stated simply that she did not accept Concept’s submission that Singh had another source of income from a trucking business during the mitigation period, but failed to address the conflicting evidence.
[29] Although there was evidence that four former Concept employees had found employment at Kal-Trading, the motion judge said that she was unwilling to draw an adverse inference against either Gounder or Singh on this point because she had no details to allow her to make a meaningful comparison. It is not clear whether the motion judge drew an adverse inference from Concept’s failure to call someone from Kal-Trading, even though the rules precluded it from being able to compel non-parties to testify on the motion.
[30] Finally, neither Gounder nor Singh offered an explanation for failing to seek employment actively during the first six months following the termination of their employment at Concept. Even assuming that a brief “cooling-off” or “grace” period may be warranted following a wrongful dismissal in some cases, there was no evidence on the summary judgment motion that a six-month suspension of the mitigation duty was warranted in this case.
Disposition
[31] For these reasons, I would allow the appeals and dismiss the motions for summary judgment.
[32] I would award Concept costs on each appeal in the agreed amount of $5,000, inclusive of taxes and disbursements, and leave costs on the motions for summary judgment to be determined by the motion judge.
Released: November 3, 2016 “KF”
“Grant Huscroft J.A.”
“I agree K. Feldman J.A.”
“I agree Paul Rouleau J.A.”
[^1]: A dispute concerning whether Gounder and Singh may have worked beyond this date is not relevant for purposes of this appeal. [^2]: In her decision related to Singh, the motion judge erroneously stated that only two former employees found work at Kal-Trading in Mississauga.