ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-4142-SR
DATE: 2013/03/08
BETWEEN:
DEREK STEPHEN SMITH and RICHARD EMIL DISANO
J. Heimpel, for the Plaintiffs
Plaintiffs
- and -
WATERLOO TAXI LIMITED
S. Gadbois, for the Defendant
Defendant
HEARD: February 25, 2013
THE HON. MR. JUSTICE ARRELL
JUDGMENT
Introduction:
[1] The plaintiff Smith owns a taxi license and as a result is a single shareholder of the defendant. The plaintiff Disano is a driver for Smith. Drivers for the defendant must be in an approved pool. The defendant withdrew its approval of the plaintiff Disano as an approved driver on the basis that he was cheating on out of town calls.
[2] The plaintiffs bring this summary judgment motion under Rule 20 for a declaration that the removal of Disano from the approved list of drivers was improper and an order that he be re-instated as an approved driver. If successful, the plaintiffs also seek an order for a trial of an issue regarding any damages they may have sustained.
[3] The defence takes no issue with the jurisdiction of the court to grant the relief requested if it sees fit.
Facts:
[4] The plaintiff Disano has been involved with the defendant as a driver, owner/operator, dispatcher and board member for over 30 years.
[5] All drivers for the defendant must be from an approved pool of drivers. Each owner of a license is a single shareholder in the defendant corporation.
[6] The plaintiff Disano, aged 70, was a former owner/operator of Car #55. In June 2009 he sold his share and license to the plaintiff Smith. As part of the agreement Disano would drive for Smith on a full time basis, which he states was approximately 100 hours per week.
[7] The defendant divides the City of Waterloo into zones and only a certain number of taxis are assigned to each zone per shift.
[8] Out-of-town calls are much more lucrative than in town calls and therefore vigorously sought after.
[9] The defendant operates a computerized dispatch system which dispatches calls to cars based upon their zone location relative to the pickup point for the call at the time of dispatch, for out-of-town calls.
[10] Generally, out-of-town calls are made in advance by a day or more and then dispatched at the required time.
[11] The computer divides the area into zones and records all cars in a particular zone and keeps track of the order in which a car entered the zone.
[12] The computer automatically dispatches the first car to have entered the zone for an out-of-town call in that zone.
[13] Should that driver not accept the call then the computer dispatches the call to the next driver to have entered the zone and so on. This is called the primary call.
[14] If the primary call is not answered by any car in the zone then the computer automatically switches to the designated “backup” zones and goes through the same process based upon the order in which cars entered the backup zone.
[15] If the call is still not accepted then it is offered to all cars and the first to respond gets the call. This is known as “bidding” on the call.
[16] The defendant alleges that Disano was “fed” in advance out-of-town calls by someone in the defendant’s office so that he would be able to position himself in the correct zone at the correct time to ensure that he would get the out-of-town call.
[17] The defendant states that it received complaints from drivers that Disano was getting more than his share of out-of-town calls. Supposedly the defendant investigated its records and came to the conclusion this was correct because Disano allegedly had many more out-of-town calls than any other driver. The defendant then concluded this could only occur if Disano was cheating by knowing in advance where and when the calls would occur so he could position himself in the correct area.
[18] The defendant advised Smith of its conclusion and told him Disano would be removed from the approved list of drivers within two weeks. He was given no real particulars or documentation to support this decision. He was not offered a hearing before the board.
[19] Smith and Disano retained counsel very shortly thereafter who wrote to the defendant requesting full particulars of the allegations and copies of the documents in support. There was no response to the letter. At discoveries the defendant stated it was too busy to answer and one driver was not important enough.
[20] The plaintiffs acknowledge that at the time of the alleged incidents Mr. Disano’s wife, daughter and granddaughter worked in the defendant’s office receiving calls, along with other office staff.
[21] The representative of the defendant was examined for discovery. He was categoric that he had no evidence to suggest that anyone in Disano’s family who was working for the defendant “fed” him calls. He was also unequivocal in stating that the “bid” calls and “back-up” calls could not be associated with any type of cheating. He swore the only issue was cheating on the primary calls.
[22] The representative of the defendant agreed on discoveries that the total number of out-of-town calls Disano received during the period under investigation, being February to July, 2010, was 49. In his subsequent affidavit, after being served with this motion, he changed that number to 63.
[23] The defendant did not invite the plaintiffs to any type of a hearing to review both sides of the issue, however, Disano, as a result of being a past board member, would have been well aware of the informal appeal process to the board that by tradition was available. Instead he retained counsel who requested the documents and information on which the suspension was based. A not unreasonable position so that he would be aware of the case he might have to meet if he did informally appeal to the board. However, such information was never received making any appeal to the board somewhat futile.
[24] The defendant alleges it received 25 complaints about the plaintiff, mainly from other drivers. There is nothing in writing from them and no evidence before me from a single complainant.
[25] The defendant further alleges that Disano was warned by letter in 2009 by the president of the defendant, Robert Kennedy, in the presence of Tony Araccjo. The defendant has not produced a copy of the letter, nor any affidavit from either Kennedy or Araccjo. Disano categorically denies any such warning and denies ever receiving such a letter. I accept his version as the only direct evidence on the issue.
[26] The defendant attempted to change its’ evidence from discoveries by way of its’ affidavit to this motion, yet never advised the plaintiffs after discoveries of any specific changes it wished to make to its discovery evidence pursuant to the rules.
[27] The defendants affidavit came 2 ½ years after the incident, and raised for the first time instances where Disano was allegedly observed in the office reviewing the dispatch book; supervisors allegedly determined he altered his normal driving patterns so as to place his taxi closest to the pre-booked call; log in at different times and then drive directly to the call; a couple of drivers knew from their own customers of an out-of-town request which they relayed to the office, however, when they subsequently went to the call Disano was already there; a staff person allegedly observed Disano’s wife write down particulars of pre-booked out-of-town calls and put the paper in her purse; a person observed Disano’s daughter call him with out-of-town calls. Significantly, none of this “information and belief” evidence was ever relayed to the plaintiffs on discoveries and indeed most was categorically denied. As well, not one of these people has sworn an affidavit to support these very serious and significant allegations. No explanation whatsoever was advanced before me as to why there was no direct evidence from these individuals. I am entitled and I do draw an adverse inference from this unexplained omission of direct evidence.
[28] The plaintiff Disano, on the other hand, has categorically denied these allegations specifically, and given plausible explanations where appropriate. As well, his evidence has not changed in any way from when examined under oath at discoveries. The plaintiff has also filed very specific affidavits from his wife and daughter directly answering and denying the allegations involving them.
[29] I conclude that the evidence of Disano is much more persuasive than that of the defendant and where they disagree I accept the plaintiff’s evidence.
[30] The defendant produced documentation regarding out-of-town calls. Counsel for the defendant did not dispute the following analysis. This evidence would appear to show the following:
Total out-of-town calls for all drivers
Total for Disano
Primary calls for Disano
Feb. 2010
273
9
4
Mar. 2010
209
9
6
April 2010
278
6
3
May 2010
275
10
3
June 2010
247
14
6
July 2010
254
11
5
[31] This evidence was put directly to the defendant on discoveries who agreed that the proportion of out-of-town calls Disano received each month as primary was not high enough to be of concern to the defendant and was not evidence that Disano was being “fed” out-of-town calls. Indeed the calls received by Disano, even on the highest numbers for all calls presented by the defendant just recently by way of some electronic spread sheet, amount to only 1.3 more out-of-town calls per month than the next closest driver. These new numbers do not break down which of those calls were primary, as do the above and as such I find the additional evidence produced of little value.
The Law:
[32] R.20, as amended, now states that the court shall grant summary judgment if there is “no genuine issue requiring a trial”. As well the motions judge may weigh the evidence and make evidentiary determinations on credibility and draw reasonable inferences from the evidence.
R.20.04 (2.0) Rules of Civil Procedure
Combined Air Mechanical Services Inc. et al v. William Flesch et al (2011) ONCA 764
[33] The touchstone of proportionality was introduced as a guiding interpretative principle under the Rules.
R.1.04 (1.).
Combined Air Mechanical, supra
[34] The purpose of the new Rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.
Combined Air Mechanical, supra, para 38
[35] A responding party to a motion for summary judgment may not rest on the mere allegation of the party’s pleadings, but must set out in affidavit material or other evidence the specific facts and coherent evidence showing a genuine issue for trial. It is not sufficient to say that more or better evidence will or might be available at trial while there is an onus on the moving party to establish that there is no genuine issue for trial, the respondent must “lead trump or risk losing.”
Pizza Pizza Ltd. v. Gillespie et al (1990) 1990 4023 (ON SC), 75 O.R. (2d) 225
Combined Air Mechanical, supra
[36] The onus is on the moving party to show there is no genuine issue requiring a trial. Once that onus has been met it shifts to the responding party to show its’ position has a real chance of success.
New Solutions Extrusion Corp. v. Gauthier [2010] ON SC 1037
[37] Each party must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. The court is entitled to assume that the record contains all the evidence which the parties would present at trial.
New Solutions Extrusion Corp. v. Gauthier, supra. para 12
[38] The court must have a full appreciation of the evidence and the issues that are required to make dispositive findings by way of summary judgment in the particular case before it.
Combined Air Mechanical, supra
Analysis:
[39] I have concluded that in weighing the evidence I prefer that of the plaintiffs for reasons already given.
[40] The inference I draw from that evidence appears inescapable. The defendant had no grounds whatsoever in suspending Disano as a driver. It acted on verbal complaints, rumour and innuendo. It conducted no investigation. It presented no evidence or grounds to the plaintiff for the actions it took and when asked for such evidence refused to provide it. The evidence presented by the defendant on Discoveries is significantly different than what was alleged in its responding affidavit without presenting any plausible explanation for the significant sworn contradictory evidence. Little, if any direct evidence has been produced by the defendant to support its allegations with no explanation for this omission. This is contrary to the plaintiff’s direct evidence. I draw an adverse inference from such an omission.
[41] I conclude that I have a full appreciation of the evidence and issues in this case. I assume the best evidence has been put forward. It is obvious that the evidence of the plaintiffs is superior and in fact there appears to be no evidence in support of the defendant’s positions and therefore no genuine issue for trial. The defendant has “no real chance of success” and a trial is unnecessary.
Conclusion:
[42] The plaintiffs will have judgment. Disano will be re-instated as an approved driver. The matter will be adjourned to the next assignment court to fix a date for the trial of damages only.
[43] The parties agreed costs should follow the cause and that I should set them. The plaintiffs are entitled to their costs. They have been totally successful. No offers have been brought to my attention. The plaintiffs are entitled to substantial indemnity costs because of their total success and because of the personal allegations put forth against the defendant Disano, and his family by innuendo, that they were cheating or in other words committing fraud. I found no grounds to support such allegations.
[44] The plaintiffs seek the costs for the entire action to date, as is to be expected. They claim just over $44,000.00 inclusive of taxes and disbursements. I find such an amount to be excessive on a case that involved a half day hearing before me, discoveries, I assume of not much more than a day and preparation. The plaintiffs’ law firm spent some 40 hours on discoveries close to 55 hours preparing for this motion; 55 hours preparing pleadings and productions. That amount of time, in my view and taking into account proportionality, is excessive.
[45] I also conclude that some of the preparations done to date will in reality be useful for the damages aspect of the case and should properly be assessed then.
[46] As noted by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. He further stated in para. 24, “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
[47] I conclude that a “fair and reasonable amount” of costs which should be payable by the defendant to the plaintiffs within 30 days is $25,000.00.
ARRELL, J.
Released: March 8, 2013
COURT FILE NO.: 11-4142-SR
DATE: 2013/03/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEREK STEPHEN SMITH and RICHARD EMIL DISANO
Plaintiffs
- and -
WATERLOO TAXI LIMITED
Defendant
REASONS FOR JUDGMENT
ARRELL, J.
Released: March 8, 2013