COURT FILE NO.: CV-17-583285

DATE: 20180627

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Guy Bloor, Plaintiff

AND:

Wesbell Technologies Inc., Defendant

BEFORE: Pollak J.

COUNSEL: Ian D. Hurley, for the Plaintiff

Michael Simaan and Alex Minkin, for the Defendant

HEARD: April 10, 2018

ENDORSEMENT

[1] On this motion for summary judgment, the Plaintiff claims he was employed by the Defendant pursuant to a two (2) year fixed term contract of employment and was terminated from employment, without cause, with seventy-two (72) weeks remaining on the term of the contract. He seeks liquidated damages for breach of contract for the wages and benefits he would have been entitled to, to the end of the term. The Plaintiff argues that this motion could dispose of the entire action, if he is successful.

[2] The Employer, Wesbell, did not bring a cross-motion for the dismissal of the Plaintiff’s claim and notes that if the Plaintiff’s argument that his employment contract was for a fixed term is not successful, a trial will be required to deal with the alternate arguments of the Plaintiff, that he is entitled to an award for damages at common law.

[3] In his Action, as an alternate claim, the Plaintiff challenges the validity of the Termination Clause in the 2016 Employment Agreement which limits his notice period to the minimum entitlements under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), which he has already received. He claims that because of the invalidity of the termination clause, as a result of various potential breaches of the ESA, he is entitled to common law notice. On this motion, the Plaintiff adduces no evidence and makes no argument on what his entitlement would be at common law.

[4] The Plaintiff limits the issues to be determined on the motion as:

(a) Should this action proceed by way of summary judgment?

(b) Is the employment contract for a fixed term?

(c) Is the termination provision void and unenforceable?

[5] The Defendant objects to these issues being heard on this motion and argues that at most the only issue properly before this Court is whether the Plaintiff is entitled to his liquidated damages to the end of the term of the Employment Agreement.

[6] The parties agree that a motion for summary judgment should be granted when there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the summary judgment procedure: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is proportionate, more expeditious and less expensive means to achieve a just result. Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[7] In the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87, wherein the Supreme Court of Canada gave us a roadmap of the approach to follow on a motion for summary judgment. The court held that:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).

If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[8] The Ontario Court of Appeal stated in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 at paras. 35 and 37, that the advisability of a staged summary judgment process must be assessed in the context of the litigation as a whole. The Court noted that in a staged summary judgment process there was a risk that a trial judge would develop a fuller appreciation of the relationships and the transactional context than the motion judge, which can force a trial decision that would be implicitly inconsistent with the motion judge’s finding, even though the parties would be bound by that finding. This process, in such context, would risk inconsistent findings and substantive injustice. At paras. 44-45 the court stated:

Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not “serve the goals of timeliness, affordability and proportionality” (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.

[9] In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Ontario Court of Appeal considered the appropriateness of motions for summary judgment that will determine some of the issues, but will not dispose of the action as a whole. The Ontario Court of Appeal cautioned parties and judges about the limits and problems associated with partial summary judgment motions.

[10] It was held that the motion judge committed an extricable error in principle in failing to consider whether partial summary judgment was appropriate in the context of the litigation as a whole. In particular, the court was concerned about inconsistent findings on the motion and at trial and the fact that the effect of the partial summary judgments did not achieve the intended benefits of proportionality, timelines and affordability. Rather, such motions result in delay, greater expenses, and wasted judicial resources.

[11] The Court explained that partial summary judgment motions tend to defeat the stated objectives of proportionality, timeliness and affordability underlying Hryniak.

[12] It was held that a partial summary judgment motion should be considered a “rare procedure” that is reserved for issues that can be easily bifurcated from the main action and that can be dealt with expeditiously and in a cost-effective manner.

[13] The Court reasoned that this approach is entirely consistent with the Supreme Court’s comments in Hryniak as follows:

“[26] The pre-Hryniak appellate jurisprudence on partial summary judgment limited its availability. At para. 3 of Corchis v. KPMG Peat Marwick Thorne ,2002 CanLII 41811 (ON CA), [2002] O.J. No. 1437 (C.A.), this court applied Gold Chance International Ltd. v. Daigle & Hancock, [2001] O.J. No. 1032 (S.C.J.) to state that:

[P]artial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.

[27] Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi,2014 ONCA 450,120 O.R. (3d) 438 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche,2016 ONCA 922,133 O.R. (3d) 561.Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.

[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.

[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives Hryniak.

[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is always the possibility of an appeal.

[31] Second, a motion for partial summary judgment may be very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

[34] When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.” [emphasis added]

[14] Having regard to these cautions, at the hearing of this motion, the Court raised the issue of the propriety of this motion for summary judgment with the parties at the hearing, specifically in light of the fact that the Plaintiff is not proceeding with all his claims on this motion and as the the Defendant disagrees with the issues that should be considered by this Court. The Plaintiff submits that the Court should hear and consider his issues because this was the most cost effective and expeditious way to proceed. The Defendant disagrees.

[15] In this regard it is necessary to review the facts and issues raised in this motion. For the reasons that follow, I find that the cautions set out by out Court of Appeal are applicable and that this is not an appropriate motion for summary judgment.

[16] Both parties seek to limit the issues that have been put before the Court. The Defendant, who does not agree with the Plaintiff, seeks to limit the issues to a consideration of the Plaintiff’s first argument that the contract is for a fixed term requiring payment for the balance of the term of the fixed contract. The Plaintiff wants to adjudicate only on the issues I have referred to above, leaving issues for trial arising out of his alternative arguments.

[17] The difficulty with both of these approaches is that as all arguments of the Plaintiff and Defendant are not before the Court on this motion, requiring a trial of the remaining issues if the Plaintiff is not wholly successful on his main argument, or, even if the Plaintiff is partially successful on his argument regarding the validity of the termination clause. The issue of damages will remain for trial.

[18] On the first issue raised by the Plaintiff regarding the existence of a fixed term contract, and his entitlement to payment to the end of that term, this Court must interpret the employment contract. A well-established principle of contractual interpretation is that the contract must be interpreted as a whole. Both parties seek to rely on evidence to explain the context in which the contract was negotiated. These facts may potentially be relevant with respect to the alternative claim on the determination of the validity of the termination clause, its interpretation, and the period of reasonable notice. These are issues which may remain for adjudication at trial, depending on the findings of this Court. These are not, in my view, issues which are “easily capable of segregation so that a bifurcation of the trial on certain issues is appropriate” as required by our Court of Appeal in the Butera case.

[19] Further I do not find that the objectives of the summary judgment motion set out in Hryniak would be satisfied by proceeding with this motion as I cannot find that this motion for summary judgment would be a “proportionately more expeditious and less expensive means to achieve a just result”.

[20] The Court of Appeal has stated in the Aird & Berlis LLP v. Oravital Inc., 2018 ONCA 164 case that the motions judge has the obligation of ensuring that the summary judgment procedure is appropriate, even if the parties asked the court to accept the position that the procedure is appropriate. Further, in this case it should be emphasized that there was no agreement between the parties with respect to the appropriateness of the procedure. Rather, each

party urged the Court to consider different issues. For all of these reasons, in accordance with the guidance set out by the Court of Appeal, I dismiss the motion for summary judgment.

[21] There is one further practical issue. The Supreme Court of Canada in Hryniak also held, at para. 78, that:

“Where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge.”

In my view, this is an appropriate case for me to follow the Supreme Court’s direction. I must, however, qualify this to recognize the practical reality of our court's ability to schedule trials in a timely and expeditious manner. I will not be seized of this trial if the effect of my unavailability would be to delay the hearing of the trial between the parties. If it is possible to do so without adverse delay or consequences to the parties, I seize myself of the trial of this matter as directed by the Supreme Court of Canada.

Costs

[22] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendants submissions are to be delivered by 12:00 p.m. on July 6, 2018, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on July 13, 2018. Any reply submissions are to be delivered by 12:00 p.m. on July 18, 2018.

Pollak J.

Date: June 27, 2018