Court File and Parties

COURT FILE NO.: CV-13-495082 DATE: 2020-12-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

VINAY NAGPAL Plaintiff – and – IBM CANADA LTD. Defendant

COUNSEL: Michael N. Freeman for the Plaintiff Jennifer Dolman for the Defendant

HEARD: December 17, 2020

SCHABAS J.

Endorsement

[1] On July 30, 2019, over 16 months ago, I dismissed a summary judgment motion in this matter brought by the defendant IBM Canada Ltd. (“IBM”). IBM had sought a dismissal of the action on the grounds that the plaintiff, Vinay Nagpal (“Mr. Nagpal”), had either resigned or abandoned his employment, or that Mr. Nagpal’s illness and refusal or inability to return to work frustrated the contract of employment. Mr. Nagpal did not object to IBM’s use of Rule 20 seeking summary judgment. Further, IBM agreed that if I was to dismiss its motion, then it would be open to me to conclude that Mr. Nagpal had been wrongfully dismissed and to grant summary judgment in his favour, which was in fact my conclusion. See my Reasons for Judgment in Nagpal v. IBM Canada Ltd., 2019 ONSC 4547.

[2] At the conclusion of my Reasons I noted, at para. 55, that Rule 20.04 provides that where quantification of damages is the only remaining issue the Court “may order a trial of that issue or grant judgment with a reference to determine the amount.” As no submissions were made on damages, I indicated that I would remain seized of this matter, subject to the scheduling needs of the Court, to address damages and costs, if necessary.

[3] In a case conference with counsel following the release of my Reasons, I was advised that IBM had appealed my decision. Although there was discussion about the desirability of determining damages prior to the appeal so that all issues could be before the Court of Appeal, the parties did not subsequently seek to arrange a procedure for determining damages with me.

[4] Over a year later, on December 17, 2020 I, convened a case conference at the request of Mr. Nagpal at which time I was advised that negotiations on a resolution of the damages had not been successful and that the Court of Appeal would be hearing the appeal of my Reasons for Judgment on February 16, 2021. I was advised that the appeal had been expected to be heard this month but was delayed due to the COVID-19 pandemic.

[5] Despite the pending appeal, Mr. Nagpal seeks directions on determining damages, noting that his termination occurred over seven years ago, and the action itself is also over seven years old. Counsel for Mr. Nagpal expressed concern over the continuing lack of resolution and the impact it is having on his client’s wellbeing, and wishes to move expeditiously. As I noted in my Reasons at para. 28: “There appears to be no dispute that during the events in 2013, Mr. Nagpal was indeed unwell and that his mental health challenges continued for several years thereafter.”

[6] Having regard to the fact that the appeal is to be heard in mid-February, Mr. Nagpal proposes, in order to avoid further delay, that he provide his evidence on damages in written form by January 30, 2021 and that IBM respond by March 15, 2021, leading to a hearing before me in April 2021. Of course, if the appeal is decided against Mr. Nagpal, then IBM would not need to respond. Although counsel did not say so, implicit in this approach would be that if the appeal is not decided by March 15, 2021, then the schedule for IBM’s response would be postponed.

[7] Counsel for IBM objected to this approach. Without getting into details of the settlement discussions, she advised that the main stumbling block to a resolution is Mr. Nagpal’s claim for moral damages, which he seeks in addition to damages in lieu of notice. IBM takes the position that Mr. Nagpal is not entitled to moral damages, which would require a finding that the employer acted unfairly, in bad faith, or misled the employee or was unduly insensitive to him: see Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 SCR 362, at paras. 57-59.

[8] Further, IBM’s counsel submits that it should be entitled to call viva voce evidence regarding its treatment of Mr. Nagpal and to effectively have a trial of this issue, as contemplated by Rule 20.04(3).

[9] Rule 20.04(3) does indeed contemplate that where “the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.” However, the Rule does not neatly apply in these circumstances.

[10] First, the issue remaining from my judgment is the amount to which the responding party is entitled, not the moving party. Second, the Rule is in any event discretionary, and leaves to the judge, if he or she chooses, to direct “a reference to determine the amount” of damages. References, which are provided for in Rule 55, are typically dealt with by a referee and involve simply addressing issues of quantum. However, as IBM rightly points out, in this case a judge must first determine whether Mr. Nagpal is entitled to moral damages. Accordingly, the reference process is not applicable or appropriate.

[11] But does this mean IBM is now entitled to the trial of an issue which would involve calling evidence about Mr. Nagpal’s termination of employment and effectively revisit the issues decided on the summary judgment motion? I think not.

[12] Rule 1.04(1) of the Rules of Civil Procedure provides that the rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Rule 1.04(1.1) states that in “applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” Further, Rule 1.04(3) requires that “[w]here matters are not provided for in these rules, the practice shall be determined by analogy to them.”

[13] These guiding principles are relevant here.

[14] Having chosen to invoke the summary process under Rule 20, IBM must accept that the remaining issue of damages should also be decided following the same summary process, if appropriate and possible to do so. To do otherwise would permit IBM to effectively retry a case it moved to resolve, either way, under Rule 20. Such a trial would cause more delay, add significant expense, and would be disproportionate to the importance and complexity of the issues and the amount involved.

[15] It would also be unfair to Mr. Nagpal, who defended the summary judgment motion and obtained judgment in his favour, to now be required to endure a trial process to determine an entitlement to moral damages if they can be determined more expeditiously. Indeed, it is likely that had IBM not sought summary judgment, the case would have been tried by now and a determination would have been made on the moral damages issue.

[16] It is also relevant that this is an employment case. The Supreme Court has remarked on the power imbalance between the employer and an employee who is seeking compensation for the termination of his employment: see, e.g. Wallace v. United Grain Growers Ltd., [1997] 3 SCR 701, at paras. 91-95. Often these are “David and Goliath” struggles in which Mr. Nagpal cannot afford to continue the litigation and gets worn down by the cost and passage of time. As I have noted above, it is now over seven years since Mr. Nagpal’s employment was terminated. He has responded to a summary judgment motion, and is now responding to IBM’s appeal.

[17] As the Supreme Court observed in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 5, the “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” In my view, therefore, the summary judgment process should continue in this case, and the approach proposed by counsel for Mr. Nagpal should be adopted.

[18] This does not preclude the court from hearing oral evidence, as sought by IBM. Pursuant to Rule 20.04(2.1) and (2.2), the Court may hear oral evidence in order to weigh evidence, evaluate credibility and to draw inferences. However, as the Court of Appeal stated in Hryniak, quoted with approval by the Supreme Court at para. 61, “it is the motion judge, not counsel, who maintains control over the extent of the evidence to be led and the issues to which the evidence is to be directed”. The Supreme Court noted, at para. 63, that “this power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action.”

[19] The procedure recommended by the Supreme Court is set out at para. 66 of Hryniak as follows:

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. [emphasis in original]

[20] This is the process that should be followed here. If at the hearing on damages I determine that I cannot “fairly and justly adjudicate the issues” based on the record before me and that there is a genuine issue requiring a trial, I will consider whether I can avoid ordering a trial by exercising the powers in Rule 20.04(2.1) and (2.2), which includes hearing oral evidence.

[21] This leaves only directions on the filing of materials. As the appeal of my Reasons for Judgment is pending and will be heard relatively soon, IBM should not be put to the effort of preparing evidence unless the appeal is dismissed. However, as Mr. Nagpal has proposed, in order to advance the damages issue, he shall deliver his evidence respecting damages by January 30, 2021 which is in advance of the hearing of the appeal. If the appeal is dismissed, IBM shall deliver responding evidence four weeks after the Court of Appeal decision is released and reply evidence, if any, shall be delivered by Mr. Nagpal within two weeks of receiving IBM’s material.

[22] Should the appeal be allowed, then these directions will be moot. However, if the appeal is dismissed, counsel shall promptly contact my assistant to schedule a further case conference to obtain a hearing date and further directions.

Paul B. Schabas J.

Date: December 21, 2020