Philip B. Morrissey

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal claim, arguing the employment contract was frustrated by the plaintiff's total disability.

The plaintiff argued the defendant failed to accommodate his disability after he expressed a desire to return to work.

The court found a genuine issue for trial regarding whether the contract was frustrated or if the defendant breached its duty to accommodate under the Human Rights Code, noting the employer's failure to explore accommodation options.

The motion for summary judgment was dismissed.

Following a motion in which the defendants were successful, the court considered competing submissions regarding costs.

The defendants sought full partial indemnity costs for the motion, while the plaintiff argued that the motion had been precipitated in part by defence counsel’s own error and requested that no costs be awarded or that the plaintiff receive costs despite losing the motion.

The court held that although the defendants were successful, their recovery should be reduced because the circumstances leading to the motion were partly attributable to defence counsel’s error.

The court rejected the plaintiff’s request for costs, finding that the summary judgment motion lacked merit.

Costs were therefore awarded to the defendants but reduced to align with the plaintiff’s counsel’s claimed fees plus full disbursements and applicable HST.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action, arguing that the defendants were deemed to have admitted numerous facts due to their late response to a lengthy Request to Admit under Rule 51.03 of the Rules of Civil Procedure.

The court found that the evidentiary record contained significant unresolved factual disputes, including the length of the plaintiff’s employment, whether the defendants were successor employers under s. 9(1) of the Employment Standards Act, and the calculation of damages and mitigation.

The court held that the delayed response to the Request to Admit did not justify enforcing deemed admissions where the requested admissions concerned contested or potentially incorrect facts and where no prejudice resulted from the delay.

Exercising its discretion under Rule 51.05, the court withdrew any deemed admissions and held that the matter must proceed to trial.