Court of Appeal for Ontario

Date: 2019-11-22 Docket: C66383

Judges: Pepall, Tulloch and Benotto JJ.A.

Between

Alireza Jamshidi Plaintiff (Appellant)

and

Dependable Mechanical Systems Inc., Pegasus General Contracting Ltd., and 4R HVAC Inc. Defendants (Respondents)

Counsel

Kevin Marshall, for the appellant

Daniel E. Attwell, for the respondents

Heard and released orally: November 14, 2019

On appeal from: the order of Justice Anne Mullins of the Superior Court of Justice, dated November 29, 2018, with reasons reported at 2018 ONSC 7101.

Reasons for Decision

[1] The appellant appeals from an order of November 29, 2018, in which the respondents obtained declarations that the appellant was not entitled to commissions or any increased compensation for changes in his employment.

[2] Before this court, the appellant objects to the order for partial summary judgment and argues that he had inadequate time to advance his case before the motion judge.

[3] The respondents employed the appellant as Business Development Manager from May 12, 2014 until January 14, 2016, when the appellant was terminated. He subsequently sued for various relief.

[4] In February 2018, counsel for the respondents advised counsel for the appellant that they were proceeding with a motion for partial summary judgment returnable in October 2018 to determine the terms of the appellant's employment contract. The appellant did not object to the procedure at the time; most of his claim stood to be resolved by the motion; and the parties proceeded with cross-examinations. Before the motion judge, the appellant did not request more time or seek an adjournment. The parties attended a pre-trial conference before another judge and two attendances before the motion judge, one of which included a mini-trial with oral evidence. We are unable to conclude that the motion judge erred in granting partial summary judgment.

[5] The appellant also complains that the motion judge erred in failing to consider the doctrine of quantum meruit. Quantum meruit was not pleaded and was not advanced in the appellant's factum or in oral argument before the motion judge. Given these facts and the lack of an evidentiary record addressing quantum meruit, the interests of justice would not be advanced by permitting this argument to be considered on appeal: Wasauksing First Nation et al. v. Wasausink Lands Inc. et al. (2004), 184 O.A.C. 84 (C.A.), at p. 106.

[6] We also see no reason to interfere with the motion judge's costs award.

[7] The appeal is dismissed. The appellant shall pay costs fixed in the amount of $2,500 to the respondents inclusive of disbursements and applicable tax.

"S.E. Pepall J.A."

"M. Tulloch J.A."

"M.L. Benotto J.A."