Court of Appeal for Ontario

Date: September 24, 2018 Docket: C65134

Justices: Juriansz, Brown and Huscroft JJ.A.

Between

Colin McGregor and Alison McGregor Plaintiffs (Appellants)

and

O'Sullivan Animal Hospital, Jennifer Duff and Jennifer Lund Defendants (Respondents)

Counsel

Colin McGregor, acting in person

Ashley Peacock, for the respondents

Charles Sinclair, for David Elmaleh

Heard and released orally: September 20, 2018

On appeal from: the judgment of Justice John R. McCarthy of the Superior Court of Justice, dated February 6, 2018.

Reasons for Decision

[1] The appellants appeal from a summary judgment dismissing their action against the respondents following a hearing on January 31, 2018. The hearing had been scheduled to proceed on February 1, 2018. On January 29, the court rescheduled the motion to January 31, 2018. The appellants did not receive the email notifying them of the change because they were in an area without internet.

[2] We are satisfied the appellants did not receive adequate notice that the motion would be heard on January 31.

[3] We would have afforded the appellants a full opportunity to make the submissions they would have made to the motion judge had they been present, but neither side included in their appeal books the material the appellants had filed before the motion judge. As a result, it was impossible to determine whether remitting the matter to the Superior Court could be avoided.

[4] In the circumstances, we allow the appeal and set aside the summary judgment. The respondents' motion may be rescheduled on proper notice to the appellants.

[5] In light of rules 61.05(1) and (2), it was the respondents' responsibility to ensure the appellants' material before the motion judge was filed in this court. The appellants included in the Appeal Book the material they considered was required for the appeal. The respondents required the missing material to support their argument the appeal should not be allowed in any event as summary judgment was inevitable. Consequently, we fix costs in favour of the appellants in the amount of $1,500 all inclusive.

R.G. Juriansz J.A.

David Brown J.A.

Grant Huscroft J.A.