Court File and Parties

COURT FILE NO.: CV-20-00653609

DATE: 20210423

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MUNIR TARBHAI

AND:

ELEMENT FLEET MANAGEMENT

BEFORE: Mr. Justice Chalmers

COUNSEL: C. Justice for the Plaintiff

T. Weisberg for the Defendant

HEARD: April 23, 2021

ENDORSEMENT

[1] The Plaintiff requested a case conference to schedule a Summary Judgment motion and to establish a timetable for the action. It is quite early in the proceeding. The Statement of Claim was served on December 22, 2020. The Statement of Defence was delivered on January 29, 2021. On February 4, 2021, counsel for the Plaintiff wrote to counsel for the Defendant to request a mediation date. On February 19, 2021, counsel for the Defendant stated that the case was not ready for mediation and proposed a discovery plan. Plaintiff’s counsel then proposed a date for a summary judgment motion in June/July 2021. The Defendant takes the position that this is not an appropriate case for summary judgment. It was at this point that Plaintiff’s counsel requested the case conference.

[2] The usual procedure to be followed to obtain a date for a summary judgment motion is to proceed to Civil Practice Court for long motions or Short Motion Triage for motions of less than two hours. It is my view that the practice of by-passing the usual routes by requesting a case conference is not to be encouraged. Given that the case conference had been scheduled and counsel were before me, it was my view that the most efficient manner of proceeding was to continue with the case conference rather than send counsel to CPC or Short Motion Triage.

[3] Counsel for the Plaintiff argued that this was a straightforward action which could be efficiently dealt with by way of a summary judgment motion. This is a wrongful dismissal action and the only matters in issue are reasonable notice and mitigation. Counsel for the Defendant argued that the case is not appropriate for summary judgment. The Plaintiff is seeking general and punitive damages which cannot be determined on a motion. In addition, there is an issue of the Plaintiff’s start date and mitigation.

[4] It is my view that only the most straightforward of wrongful dismissal cases are appropriate for summary judgment. Here there is a factual issue of when the Plaintiff is deemed to have started at the Defendant company. There may be conflicting evidence with respect to the issue of mitigation. In addition, the claims for general and punitive damages cannot be determined on a motion. Although the Plaintiff’s solicitor stated that he would waive those claims for the purpose of the motion, those claims are currently pleaded and before the court. It is my view that a summary trial is more appropriate in this particular case.

[5] I schedule a two-day summary trial for the week of September 27, 2021. I establish the following timetable:

a. Parties will exchange Affidavits of Documents by April 30, 2021;

b. Examinations for Discovery to be completed by June 30, 2021;

c. Motions with respect to undertakings and refusals shall be heard by July 31, 2021, subject to the availability of the court;

d. The Plaintiff is to set the action down for trial by August 15, 2021;

e. Mediation is to be completed by August 31, 2021; and

f. Summary trial the week of September 27, 2021.

[6] The pre-trial conference will be scheduled by the court office after the action is set down for trial.

[7] I am not seized.

Date: APRIL 23, 2021