CITATION: Tsekhman v. Spero, 2017 ONSC 7326

COURT FILE NO.: CV-16-556129

DATE: 20171207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SAM TSEKHMAN and ROMAN TSEKHMAN, Plaintiffs

AND:

SHMUEL SPERO, BETH ISRAEL ANSHEI MINSK CONGREGATION also known as ANSHE MINSK CONGREGATION and as ANSCHE MINSK CONGREGATION and as ANSHAI MINSK CONGREGATION and STAN FEDERMAN, Defendants

BEFORE: Cavanagh J.

COUNSEL: H. Richard Bennett, for the Plaintiffs

Marek Z. Tufman, C.S., for the Defendants

HEARD: October 27, 2017

ENDORSEMENT

Introduction

[1] In this action, the Plaintiffs, who are brothers, claim damages for breach of contract in relation to the arrangements for the re-burial of their father’s remains in a plot beside the plot in which their mother’s remains are buried in a cemetery owned and operated by the Defendant Beth Israel Anshei Minsk Congregation (“Minsk Congregation”).

[2] The Plaintiffs allege that the Minsk Congregation breached its agreement to issue and deliver to them, in a timely way, an Interment Rights Certificate pursuant to the Funeral, Burial and Cremation Services Act, 2002 S.O. 2002 c. 33.

[3] The Plaintiffs allege that this breach caused delay with respect to (i) the exhumation of their father’s remains from the Rosh Pina Memorial Park Cemetery in Winnipeg (the “Winnipeg Cemetery”) in which he was buried after his death approximately 35 years ago, (ii) the transportation to and re-burial of their father’s remains in a plot at the Toronto cemetery, and (iii) the fulfillment of ceremonies required by the Plaintiffs’ Jewish faith.

[4] The Plaintiffs allege that as a result of the delay caused by the breach of contract by the Minsk Congregation, they suffered damages for mental distress because they have been denied closure with respect to the passing of their mother and honouring her wishes.

[5] The motion before me is the Plaintiffs’ motion for summary judgment for damages for breach of contract.

[6] For the following reasons, the Plaintiffs’ motion for summary judgment is dismissed.

Procedural Background

[7] In my decision released on March 17, 2017, I granted the Plaintiffs’ motion for summary judgment against the Minsk Congregation and awarded damages to be paid by the Minsk Congregation to each of the Plaintiffs in the amount of $10,000: Tsekhman v. Spero, 2017 ONSC 1718.

[8] In my decision released on June 16, 2017, before I became functus officio, I granted a motion brought by the Defendants to re-open the Plaintiffs’ motion for summary judgment and for leave to continue this motion on the ground that after my decision on the motion for summary judgment was released, evidence of new facts became available that is apparently credible and is such that it would have had an important influence on my decision whether or not to grant summary judgment. I exercised my discretion to re-open the Plaintiffs’ motion for summary judgment, to allow an affidavit delivered by the Defendants to be introduced into evidence, and to allow the Plaintiffs to deliver responding evidence. See Tsekhman et al. v. Spero et al., 2017 ONSC 3763.

[9] The factual background to this motion is in my earlier decisions.

[10] The only issue for me to decide on this motion for summary judgment is whether, given the evidentiary record now before me, the Plaintiffs have satisfied their burden of proving that there is no genuine issue requiring a trial on the question of whether the delay in completing arrangements for the exhumation of their father’s remains from the Winnipeg Cemetery and for re-burial of their father’s remains in a plot at the Toronto cemetery, and the damages for mental distress that the Plaintiffs suffered as a result of such delay, were caused by the breach of contract by the Minsk Congregation in failing to deliver to the Plaintiffs an Interment Rights Certificate on a timely basis.

Analysis

[11] In addition to the evidence that was before me when I first heard the Plaintiffs motion for summary judgment, four further affidavits have been delivered.

[12] I provide below a summary of the material evidence that is included in the additional affidavits. This summary shows how significantly the evidence has changed from what was before me on the motion that I heard on March 9, 2017.

[13] The defendants delivered the affidavit of Jonathan Buchwald that was affirmed April 20, 2017. In his affidavit, Mr. Buchwald affirmed:

a. He is the Executive Director of the Congregation - in Winnipeg.

b. He is familiar with the request by the sons of the late Isaac Tsekhman to have the remains of their father exhumed and moved to Toronto.

c. The request to have the remains of the late Isaac Tsekham exhumed and moved to Toronto has been reviewed by the Cemetery Committee of the Congregation Etz Chayim on a number of occasions in the past, and although the Committee was sympathetic to the request, it was made very clear to the sons of the late Isaac Tsekhman that the Committee’s opinion and its final decision was that the request should not be granted.

d. At no point were the Plaintiffs asked by the Cemetery Committee to obtain from a Toronto synagogue or Cemetery any document such as “Interment Rights Certificate” to evidence that the remains of Isaac Tsekhman would be permitted to be buried in Toronto.

[14] In response to Mr. Buchwald’s affidavit, the Plaintiffs delivered the joint affidavit of Sam Tsekhman (“Sam”), Roman Tsekhman (“Roman”), and Ilan Tsekhman (“Ilan”) that was sworn July 12, 2017. In this affidavit, the deponents deposed, among other things, to the following:

a. On or about March 22, 2017, the Minsk Congregation delivered a duly executed Interment Rights Certificate to Sam and Roman.

b. Sam had only one communication with Mr. Buchwald, a phone call on April 20, 2017. Roman and Ilan have never had any communications with him.

c. On April 20, 2017, Sam contacted the Winnipeg Cemetery to follow-up from conversations with Marvin Samphir, President of the Winnipeg Cemetery, referred to in paragraph 24 of their August 4, 2016 affidavit. The intention for this call was to inform the Winnipeg Cemetery that Sam and Roman had obtained the Interment Rights Certificate that was requested of them in the summer of 2015, and to find out what the next steps were in respect of the process of seeking an exhumation of their father’s remains.

d. On this call, Sam spoke with Mr. Buchwald and told him that he and Roman had obtained all the paperwork, the Interment Rights Certificate, that was asked of them previously in 2015 and that they were ready to start the process to exhume their father and to transport his remains to Toronto. Mr. Buchwald told Sam that, apparently, a decision was made not to allow him and Roman to exhume their father. Prior to this phone call, Sam was never given an indication from anyone with the Winnipeg Cemetery that they would be denied the opportunity to exhume their father. Mr. Buchwald told Sam that he could not answer when and why this decision was made because neither he nor Roman are members of the synagogue in Winnipeg associated with the Winnipeg Cemetery.

e. None of Sam, Roman or Ilan ever received any communication, either oral or in writing, from Mr. Buchwald, or from any representative of the Winnipeg Cemetery that (a) the cemetery was either in the process of forming an opinion, or had in fact formed an opinion, on their inquiries for the exhumation of their father, (b) the Winnipeg Cemetery was either in the process of forming a decision or had made a decision in respect of their inquiries for the exhumation of their father, or (c) their inquiries and request for the exhumation of their father should not or would not be granted.

f. In their communications with Marvin Samphir, Shelly Sklover and Rabbi Lander during the summer of 2015, Sam and Roman were in fact asked to obtain a document which would outline precisely where they intended to bury their father. These requests were made during phone calls in the summer of 2015.

g. None of Sam, Roman or Ilan had any knowledge prior to the commencement of this lawsuit, or prior to the April 20, 2017 phone call that Sam had with Mr. Buchwald, that the Winnipeg Cemetery would be taking the position that their inquiries about exhumation should be denied.

h. Since being informed by Mr. Buchwald of the apparent decision of the Winnipeg Cemetery to not allow any exhumation of their father, Sam and Roman are submitting a formal application to the Manitoba Public Health Minister to seek an order authorizing the exhumation of their father from the Winnipeg Cemetery. The deponents appended a copy of their application dated July 12, 2017 as an exhibit to the joint affidavit.

i. The allegation that Sam and Roman knew that the Winnipeg Cemetery made a final or any decision not to exhume their father before they commenced this lawsuit and that they withheld this information from the Court is categorically false.

[15] In response to the joint affidavit delivered on behalf of the Plaintiffs, the Defendants delivered the affidavit of Marvin Sandy Samphir affirmed July 27, 2017. In this affidavit, Mr. Samphir affirmed, among other things:

a. He serves as the President of the Board of Directors of the Congregation Etz Chayim in Winnipeg. The Winnipeg Cemetery is owned by this congregation.

b. He is informed by Shelley Sklover, the funeral director of the Etz Chayim Congregation who reports to the Cemetery Committee and believes that on January 26, 2015 she spoke by telephone with Stan Federman [an intermediary who I understand represented the Plaintiffs] who told her that arrangements had to be made by the Cemetery to exhume the remains of Isaac Tsekhman. She spoke with the then Rabbi of the congregation of this conversation with Mr. Federman. Ms. Sklover had not heard from or spoken to Sam or Roman Tsekhman until she received a call from Sam Tsekhman in late April 2017. She never indicated to Mr. Federman or to anyone else that any documents needed to be submitted by the Toronto Cemetery.

c. A meeting of the Cemetery Committee of the Winnipeg Cemetery was held on May 11, 2015 and the committee decided that it could not proceed with any disinterment until all steps were taken to comply with all the provincial and municipal requirements. The committee resolved to retain legal counsel to determine the impact of disinterment on the Winnipeg Cemetery.

d. At no time did anyone discuss with or communicate to Mr. Federman or to Sam or Roman Tsekhman any need for any document from a cemetery in Toronto setting out the permission to reinter the remains of Isaac Tsekhman, or any particular location where the re-interment would take place.

e. In or about May 2015 Mr. Samphir spoke with Sam Tsekhman, as the Rabbi had asked him to speak to him to convey the committee’s views. He indicated that no exhumation of any remains could be undertaken without an order from the provincial authorities, and he explained it to Mr. Tsekhman that he should get advice from his lawyer or whoever else in Winnipeg could advise him as to what was involved. He recalls that Mr. Tsekhman appeared to be frustrated, “threaten to commence legal proceedings”, and told Mr. Samphir that he would get back to him. He has not spoken to Sam Tsekhman since.

f. The joint affidavit of Sam, Roman and Ilan Tsekhman sworn July 12, 2017 was the first notification to the congregation or the Cemetery Committee of the application to the Government of Manitoba for the exhumation of the remains of Isaac Tsekhman.

g. Mr. Samphir never informed the Tsekhmans that they were required to provide any document whatsoever from Toronto proving that there was a place for the remains of Isaac Tsekhman to be re-interred. He is advised by Shelley Sklover and believes that she also did not provide any such information to the Tsekhmans.

[16] The Plaintiffs delivered a further affidavit from Roman Tsekhman sworn August 19, 2017. He provided evidence of, among other things, the following:

a. The Plaintiffs’ application to the Manitoba Public Health Minister was sent to the Winnipeg Cemetery and to Congregation Etz Chayim on July 28, 2017 by the Plaintiffs’ lawyer, Mr. Draimin. In his letter, Mr. Draimin asked the congregation to execute a Consent to Disinterment of Isaac Tsekhman.

b. In response, a letter from Mr. Samphir was sent asking for certain revisions to be made to the form of application and advising that, provided that such changes are made and provided other subsidiary logistical items are addressed, Etz Chayim congregation would be prepared to give its consent to disinter Isaac Tsekhman.

c. On August 4, 2017 Mr. Draimin received a follow-up email from Mr. Buchwald inquiring about a response and confirming that the congregation was prepared to accommodate the urgency of the matter.

d. On August 9, 2017, Mr. Draimin sent a response letter to Mr. Buchwald with a revised schedule to the application and, in addition, he addressed all the subsidiary and procedural issues of implementation raised in the previous correspondence.

e. On August 11, 2017, Mr. Buchwald sent an email to Mr. Draimin asking him to send the application in its entirety that he is planning to submit so that the congregation can give it one final review. On August 17, 2017, Mr. Draimin sent Mr. Buchwald the amended application along with the Cemetery’s consent form.

f. On August 17, 2017, Mr. Buchwald sent an email to Mr. Draimin which attached the signed Consent for Disinterment on behalf of the Winnipeg Cemetery and the Congregation Etz Chaim. Mr. Buchwald who consented to the disinterment and reinterment of the body of Isaac Tsekhman.

g. On August 18, 2017, Mr. Draimin sent an email to the Director Vital Statistics in Manitoba enclosing amendments to the application and the executed Consent to Disinterment of the Winnipeg Cemetery.

[17] At the beginning of the hearing of this motion I was provided, on consent of the parties, with a copy of an email from a representative of the Manitoba government to the Plaintiffs’ lawyer advising that the application for the Order Authorizing Disinterment had been approved and that the process for completing the required approvals was underway and would take 6 to 8 weeks, and that as soon as the signed Order Authorizing Disinterment is received by the government office, it would be forwarded to the Plaintiffs’ lawyer.

[18] The Plaintiffs make two submissions on the basis of the record of evidence that is now before me.

[19] First, they submit that the Affidavit of Mr. Buchwald has been contradicted and undermined by the Affidavit of Mr. Samphir and, since the Buchwald affidavit was the sole evidence upon which the motion for summary judgment was re-opened, the original judgment should be restored.

[20] The Plaintiffs submit that the Buchwald affidavit was presented as evidence of the following:

a. The Winnipeg Cemetery will never exhume the remains of Isaac Tsekhman.

b. The Winnipeg Cemetery communicated this fact to the Plaintiffs.

c. The Plaintiffs always knew that the Winnipeg Cemetery had said that it will never exhume the remains of their father.

d. The Plaintiffs’ lawsuit was doomed to fail because the remains of their father were never going to be exhumed.

e. The Plaintiffs perpetrated some sort of fraud by deliberately suppressing the truth.

[21] The Plaintiffs submit that the Buchwald affidavit was untrue and misleading in material respects because:

a. It is clear from the Samphir affidavit that no final decision was ever made by the Winnipeg Cemetery to deny exhumation, and the Plaintiffs were never informed of any such final decision.

b. If any decision was made, it was only a provisional one, because of the evidence that the Winnipeg Cemetery will only exhume once the provincial legal requirements were satisfied and an order was made under The Public Health Act of Manitoba.

c. Mr. Samphir’s evidence is that he spoke with Sam Tsekhman in or about May 2015 to convey the views of the Cemetery Committee and that he indicated to Mr. Tsekhman that no exhumation could be undertaken without an order from the provincial authorities.

d. Mr. Buchwald actually signed the Plaintiffs’ application and gave his consent to the disinterment and reinterment.

[22] I accept the Plaintiffs’ submission that, based upon the Samphir affidavit, no final decision had been made by the Winnipeg Cemetery to deny exhumation, and Mr. Buchwald’s affidavit containing evidence that such a decision had been made was incorrect. However, based upon the joint affidavit of Sam, Roman and Ilan Tsekhman sworn July 12, 2017, Mr. Buchwald’s evidence that he told the sons of the late Isaac Tsekhman “that the Committee’s opinion and its final decision [in response to the request that the remains of Isaac Tsekhman be exhumed and moved to Toronto] was that the request should not be granted” was also correct. According to Sam Tsekhman’s evidence, Mr. Buchwald told him on April 20, 2017 “that apparently a decision was made to not allow Roman and I to exhume our father Itshok”.

[23] I also accept the Plaintiffs’ submission that there is no evidence that they knew before the April 20, 2017 telephone conversation between Sam and Mr. Buchwald that the Winnipeg Cemetery had decided not to exhume the remains of Isaac Tsekhman. There is, therefore, no evidence that the Plaintiffs knew before they brought their motion for summary judgment that the remains of their father would not be permitted to be exhumed from the Winnipeg Cemetery for re-burial at the Toronto cemetery.

[24] I have decided that it would not be proper for me to restore the judgment that was made in my decision released March 17, 2017 based upon the Plaintiffs’ challenges to the Buchwald affidavit. The evidentiary record before me now includes four additional affidavits, including the Buchwald affidavit, and I must decide the Plaintiffs’ motion for summary judgment on this complete record, which was put before me on consent of the parties.

[25] The Plaintiffs’ second submission is that the Interment Rights Certificate was required as part of the application to the minister appointed under The Public Health Act of Manitoba in support of an order authorizing disinterment and, therefore, the delay on the part of the Minsk Congregation in providing this certificate, in breach of contract, caused the delay in obtaining the order for disinterment and caused the damages suffered by the Plaintiffs.

[26] The Plaintiffs rely upon sections 91(1) and (2) of The Public Health Act of Manitoba in support of their submission that the Interment Rights Certificate was required. These provisions provide:

92(1) No person shall, for any purpose, disinter a body buried in the cemetery, building, structure or other place, unless he or she obtains an order from the minister authorizing the disinterment.

92(2) On receiving an application made in accordance with the regulations, the Minister may, if he or she considers it appropriate to do so, make an order for disinterment of a body. Two signed copies of the order must be issued to the person applying.

The Plaintiffs emphasize that an order authorizing the disinterment of a body is a matter of discretion, and that the Minister must consider it to be appropriate to make such an order. The Plaintiffs submit that, in the circumstances, they were entitled to put the best possible evidence before the Minister in support of their application, which included the Interment Rights Certificate.

[27] The Plaintiffs also rely upon the Dead Bodies Regulation issued under The Public Health Act. Section 9(1) of this regulation provides that an application for an order for disinterment under subsection 92(2) of The Public Health Act must be sworn by the applicant and include a specified list of information. This list includes “the name and location of the cemetery, building, structure or other place in which the body will be re-interred”, and “any additional information that the minister may require”.

[28] The Plaintiffs submit that this regulation requires the Applicant to prove that there is a right to re-inter the body, and that this proof must be provided through the Interment Rights Certificate. In support of this submission, the Plaintiffs rely on s. 93(2) of The Public Health Act that provides that “[a] person who disinters a body, or causes the body to be disinterred, under an order made under subsection 92(2) must dispose of the body only in the manner authorized by the order”. The Plaintiffs submit that an inference should be drawn from this provision that the certainty provided by issuance of an Interment Rights Certificate is necessary in order for the Minister to issue an order under section 92(1) authorizing the disinterment.

[29] The Plaintiffs submit that the Minsk Congregation did not accept that they had a right to re-inter the remains of their father before the issuance of the Interment Rights Certificate, and that the Plaintiffs acted reasonably in insisting upon the issuance of the Interment Rights Certificate before proceeding with their application to the Minister appointed under The Public Health Act.

[30] The Minsk Congregation submits:

a. The Plaintiffs’ case is based on the allegation that the Winnipeg Cemetery was ready to exhume the remains of their father and assist in their removal to Toronto for re-burial, and that the only thing that stood in their way was the breach of contract by the Minsk Congregation in failing to issue an Interment Rights Certificate as required by the Winnipeg Cemetery. The Minsk Congregation points to the evidence from Mr. Samphir that there was never any requirement by the Etz Chayim congregation and its Cemetery committee “to provide any document whatsoever from Toronto proving that there was a place for the remains of Itshok Tsekhman to be re-interred”.

b. It is clear from the evidence of both parties that the Interment Rights Certificate is not and was not required either by the Winnipeg congregation or by the Minister appointed under The Public Health Act of Manitoba in order for an order to be obtained authorizing the disinterment under section 92(1) of this statute.

c. The original motion for summary judgment proceeded on completely incorrect evidence with respect to what was required by the Winnipeg congregation, and that there was a failure to advise that no formal application of any kind had been made to the Etz Chayim congregation or, indeed, to the Manitoba Minister of Health with respect to disinterment of the remains of the Plaintiffs’ father.

d. There is no requirement under the Manitoba legislation or regulations thereunder that an Interment Rights Certificate is necessary and required by the Manitoba Minister of Health in order to issue an order authorizing the disinterment.

e. The plot designated for the re-interment of the Plaintiffs’ father was available when the action was commenced, and it remains available. Any delay that the Plaintiffs experienced was caused only by their own inaction by not applying for the order authorizing the disinterment as required by Manitoba law.

f. The motion for summary judgment must fail and the action itself should be dismissed.

[31] I have reviewed the evidence that was before me when the Plaintiffs’ motion for summary judgment was first brought. The Plaintiffs provided the following evidence in paragraphs 24, 25, 27, 28, 29, and 38 of their affidavit sworn August 4, 2016:

24. We contacted Rosh Pina Cemetery in Winnipeg to inquire about the exhumation of Father and the transfer of his body and casket to Toronto. We had discussions with the authorities at Rosh Pina Cemetery, including its President Mr. Marvin Samthir (sic) its secretary and director Ms. Shali Sklover and its affiliated Rabbi Lander. We were informed that before Rosh Pina Cemetery would exhume Father, they required formal written authorization from us that we have the rights to inter Father in the particular burial plot next to Mother at Bathurst Lawn in Ontario. In particular, they told us we needed proof of precisely where Father is to be interred before the Board of Directors of Rosh Pina Cemetery can begin the process of exhumation of Father and proceed with his transportation to Toronto, Ontario. We were told that the necessary paperwork would be issued by the cemetery in Ontario or by the person from whom we bought the plot in Ontario”.

25. We made numerous inquiries of the Defendants and we asked for the required paperwork. Rabbi Spero finally responded and met with us in or around September, 2015. Rabbi Spero presented to us letters which confirm that we have rights to both burial plots at the Anshei Minsk section of Bathurst Lawn.

26. Rabbi Spero presented two other letters, each dated July 9, 2015. Both letters refer to the plot next to Mother’s and the letters confirm that plot 64 is being reserved for Father. The first letter states, among other things, that:

“This letter confirms that in the Beth Israel Anshei Minsk Congregation Cemetery, Section 41, in Bathurst Lawn Memorial Park, Row D Plot 64 is reserved for Isaac Tsekhman. This reservation is conditional to a continuous membership in good standing being maintained with the Beth Israel Anshei Minsk Congregation…”

I, Sam, signed the letter on, and I dated it, September 18, 2015.

28. The second letter dated July 9, 2015 states the same things as does the first letter. However, the second letter added the following sentences:

“… The plot reservation is thru the year 2016. At the end of 2016 if no burial has taken place the reservation ends and the synagogue is free to assign Row D plot 64 to whomever it chooses with no claims whatsoever to the synagogue…”

Both Rabbi Spero and I signed the letter on, and dated it, September 18, 2015.

29. We understood that the letters to not comply with the requirements set out in the Funeral, Burial and Cremation Services Act 2002 (Ontario) (the “FBCSA”). We understood that a more detailed form known as an “Interment Rights Certificate” is required before the Rosh Pina Cemetery will exhume Father and send him to Toronto.

30. The Defendants’ failure to issue an Interment Rights Certificate has prejudiced our ability to abide by the traditional laws and customs of Judaism which requires an unveiling ceremony of the burial gravestone monument to take place within 11 months after a deceased person is buried. The Defendants’ failure to issue an Interment Rights Certificate has prejudiced our ability to honour Mother’s wishes which is vitally important to our family. Mother’s wishes were the whole basis for the Agreement we entered into with the Defendants immediately upon Mother’s death.

[32] In the Plaintiffs’ Factum that was filed on the first motion for summary judgment, the Plaintiffs submitted at paragraph 8 that the Winnipeg Cemetery “will not allow Tsekhman to exhume Father until Tsekham produces an Interment Rights Certificate from Minsk Congregation”.

[33] In my Reasons for Decision released March 17, 2017, I addressed the submission made by the Defendants that the letter dated July 9, 2015 sent by Rabbi Spero on behalf of the Minsk Congregation contains the information that was required by the Winnipeg Cemetery in order for it to begin the process of exhumation of the Plaintiffs’ father and proceed with his transportation to Toronto. I did not accept this submission, and wrote in my reasons that if the letter was sufficient, the Plaintiffs would not have been pressing for issuance and delivery of the Interment Rights Certificate. I concluded that the only reasonable inference from the evidence is that an Interment Rights Certificate was required by the Winnipeg Cemetery and, at paragraph 25 of my reasons, I drew this inference.

[34] The evidence before me now with respect to the issue of causation of the Plaintiffs’ damages for mental distress because of the delay in having their father’s remains disinterred from the Winnipeg Cemetery and reinterred at a plot at the Toronto Cemetery is materially different than was the evidence that was before me when I first heard the Plaintiffs’ motion for summary judgment. The inference that I drew then is no longer available for me to make on the more complete evidentiary record that is now before me.

[35] I disagree with the Plaintiffs’ submission that, under The Public Health Act of Manitoba, or the regulations made thereunder, an Interment Rights Certificate was required in order for the Plaintiffs to apply for and obtain an order authorizing the disinterment of the remains of Isaac Tsekhman. The Minsk Congregation had provided information to the Plaintiffs through the letter dated July 9, 2015 that, in my view, was sufficient for the Plaintiffs to complete an application for an order authorizing the disinterment. I disagree that Plaintiffs have proven that the absence of the Interment Rights Certificate would have affected the Minister’s exercise of discretion in any way. The Plaintiffs acknowledged on the first motion for summary judgment that the Minsk Congregation had admitted that plots 64 and 65 were reserved and designated for the Plaintiffs’ parents, and that the Minsk Congregation is ready to accept the body of Isaac Tsekhman and to have it buried in Plot 64. There is no evidence before me to support the inference that the Plaintiffs ask me to draw that this information would not be sufficient for the Minister, and that the Interment Rights Certificate was required. I decline to draw such an inference.

[36] On the evidence before me, I conclude that the Plaintiffs have not met their burden of proving that the failure of the Minsk Congregation to provide the Interment Rights Certificate was a cause of any delay in completing the arrangements for the disinterment and reinterment of the remains of Isaac Tsekhman. The Plaintiffs, who had not taken steps to apply for an order for disinterment when this motion for summary judgment was first brought, would, I find, have been in the same position with respect to the process for obtaining such an order and completing the arrangements for the disinterment and reinterment of their father’s remains as the position in which they would have been if there had been no breach of contract. Therefore, the breach of contract by the Minsk Congregation in failing to deliver the Interment Rights Certificate in a timely way did not cause the damages for mental distress that the Plaintiffs experienced.

[37] Because of my conclusion on the issue of causation, the Plaintiffs’ motion for summary judgment must be dismissed.

[38] The Defendants submit that if the motion for summary judgment is dismissed, the Plaintiffs’ action must fail. They submit that even though no motion has been brought by the Defendants for summary judgment dismissing the action, I have jurisdiction to do so without such a motion having been brought: Whalen v. Hillier, 2001 CanLII 24070 (Ont. C.A.) at paras. 1-4 and 29.

[39] The Plaintiffs’ Statement of Claim contains many paragraphs in the prayer for relief seeking remedies against the Defendants. Many, if not all, of these claims appear to have been resolved or, as a result of this decision, adjudicated. Nevertheless, given the breadth of the Plaintiffs’ claims, I decline to exercise my jurisdiction to dismiss the Plaintiffs’ action without a motion having been brought for this relief and without hearing full submissions from the parties.

Disposition

[40] The Plaintiffs’ motion for summary judgment is dismissed.

[41] If the parties are unable to resolve costs, the Defendants may make written submissions within 20 days. The Plaintiffs may make responding submissions within 15 days of receipt of the Defendants’ submissions. The defendants, if so advised, may make brief reply submissions within five days thereafter.

Cavanagh J.

Date: December 7, 2017