Court of Appeal for Ontario

Citation: Chavdarova v. The Staffing Exchange Inc. (TSE Canada Inc.), 2016 ONCA 874

Date: 2016-11-18

Docket: C61982

Before: Feldman, Lauwers and Miller JJ.A.

Between:

Lyudmila Chavdarova (a.k.a.) Mila Chavdarova

Plaintiff/Respondent

and

The Staffing Exchange Inc. (a.k.a.) TSE Canada Inc.

Defendant/Appellant

Counsel:

Michael A. Polvere, for the appellant

Lyudmila Chavdarova, acting in person

Heard: November 14, 2016

On appeal from the summary judgment order of Justice Douglas K. Gray of the Superior Court of Justice, dated March 14, 2016.

ENDORSEMENT

[1] The appellant appeals from an order dismissing its motion for summary judgment, and granting the summary judgment motion of the respondent. The central question on appeal is whether the motion judge erred in concluding that the relationship between the parties was that of franchisor and franchisee, rather than licensor and licensee. If it is the former then, as the motion judge held, the respondent is entitled to the protections established in the Arthur Wishart Act (Franchise Disclosure), 2000.

[2] For the reasons given by the motion judge we agree that the parties’ relationship was that of franchisor and franchisee. The parties agreed (and the motion judge held) that if their relationship was properly characterized in this way, then the respondent was entitled to rescind her contracts with the appellant on the basis that the appellant did not provide the statutorily mandated disclosure statement. The motion judge found that the respondent properly rescinded the agreements, and the only remaining question is whether the motion judge erred in the remedy that he awarded.

[3] The motion judge awarded the respondent $99,835. The appellant concedes that the respondent is entitled to an award of $33,335, being a refund of the fees paid plus HST. The appellant disputes the remaining award.

[4] It is not clear, on a review of the reasons for judgment and a partial transcript of the hearing, how the motion judge calculated damages and what evidence he relied on. There is some dispute between the parties as to whether the motion judge relied on a supplementary affidavit of documents that may or may not have been properly served, and that he had ruled could not be relied on for the purposes of the two summary judgment motions.

Disposition

[5] In the result, the reasons provided with respect to quantification of damages (in excess of the $33,335 that is conceded) are not sufficient to allow us to meaningfully review this portion of the judgment. We therefore dismiss the appeal with respect to liability and remit the matter back to the motion judge for a determination of the quantum of damages, if any, in excess of the $33,335 conceded.

[6] The respondent is entitled to costs of the appeal set at $4,000, inclusive of disbursements and HST.

“K. Feldman J.A.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”