Court File and Parties

Court File No.: CV-21-00665437 Date: 2023-06-06 Superior Court of Justice - Ontario

Re: Daniel White, Plaintiff And: Ownersbox 3.0 Inc., Defendant

Before: Justice Papageorgiou

Counsel: M. Cohen, for the Plaintiff B. Skolnik, for the Defendant

Heard: June 6, 2023

Endorsement

[1] This is a case brought by an employee, Mr. Daniel White (“the plaintiff”), for wrongful termination.

[2] He brought a motion for summary judgment which was returnable before me today.

[3] Both parties are represented by counsel.

[4] The defendant, Ownersbox 3.0 Inc. (“the defendant”) did not file any materials and seeks an adjournment which the plaintiff opposes.

[5] If the adjournment is granted, the plaintiff seeks terms.

[6] For the reasons that follow, in the exercise of my discretion, I am granting the adjournment with terms.

Chronology

[7] The plaintiff says that he commenced employment with the defendant on March 1, 2021 and was terminated after two months on May 13, 2021.

[8] He commenced his action on August 9, 2021. The defendant did not file a defence within the required time period and the plaintiff noted it in default in November 2021. The noting of default was subsequently set aside on consent January 1, 2022 with costs to the plaintiff in the amount of $750.

[9] The summary judgment motion was scheduled on September 9, 2022 by Centa J. who wrote:

The parties are urged to take a hard look at their cases after the cross-examinations are completed. If there are any significant issues of credibility, particularly but not only related to the probationary period and the inducement issue, they should consider whether or not the motion for summary judgment should be converted to a summary trial.

[10] Justice Centa imposed a timetable which required the plaintiff to deliver his materials by October 31, 2022, the defendant to deliver theirs by November 31, 2022, cross examinations to occur by February 28, 2023, the plaintiff’s factum to be delivered by April 15, 2023 and the defendant’s factum to be delivered by April 31, 2023.

[11] The plaintiff delivered his affidavit material in accordance with the timetable, but did not deliver his factum until May 29, 2023. I note that this was not in compliance with the Court ordered timetable.

[12] Plaintiff’s counsel says that he waited to serve his factum because he expected to receive materials; if that was the case he could have preserved the return date by simply inquiring of the defendant’s counsel, even if strictly speaking there was no requirement for him to do so.

The reasons for the requested adjournment/analysis

[13] Counsel the defendant candidly says that he had failed to diarize the matter. He does not criticize the plaintiff’s counsel, and takes full responsibility, but points out that his own inadvertence was compounded by the fact that he did not hear from the plaintiff’s counsel and did not hear anything from the plaintiff’s counsel until he received the plaintiff’s factum on May 29, 2023. Had he heard anything he would have immediately sought to defend the motion.

[14] He says it has always been his client’s intention to defend the summary judgment motion, and that intention is borne out by the fact that his client set aside a default judgment, did file a defence and then did agree to a timetable for the exchange of materials.

[15] He strenuously argues that it will be unfair to hear this motion, in the absence of any materials from his clients, given their intention to defend and his own personal default in failing to file materials.

[16] He points out that this is not an ordinary wrongful dismissal case where the employer must prove that the employee was wrongfully terminated in accordance with the test set out in the caselaw for non-probationary employees. Rather because the plaintiff was a probationary employee, the standard to be met by the employer in justifying a dismissal is that: (a) the employer make a good faith determination that the employee is unsuitable for permanent employment; and (b) that the probationary employee was given a fair and reasonable opportunity to demonstrate their suitability: Nogribianko v Select Wine Merchants Ltd., 2017 ONCA 540.

[17] Where an employer does not meet the threshold requirement, and the employee is dismissed, the employee is entitled to his or her reasonable notice period.

[18] He argues that there is a real defence here and again, that it would be unfair to have a disposition on the merits without his client having the opportunity to have his side heard.

[19] Counsel for the plaintiff argues that there will be prejudice to his client occasioned by the delay and that there is caselaw that directs that employment claims are to be dealt with by the courts expeditiously.

[20] However, this case is not a case where there have been excessive delays. It relates to a dismissal which occurred approximately two years-ago, with the claim commenced approximately one and one half years ago.

[21] The plaintiff became re-employed in February 2022, and so there is no issue raised that he cannot afford his ongoing expenses and requires the proceeds of this lawsuit, if successful, to meet these expenses.

[22] The plaintiff’s counsel relies upon the decision of Perell J. in Lei v. Punniyansingam, 2021 ONSC 7251 which also involved a motion for summary judgment in a case involving a failure by a defendant to close a real estate transaction.

[23] Justice Perell refused the adjournment. In my view, that case is distinguishable for a number of reasons:

• First, the action had been commenced in 2017 and the defendant had changed lawyers twice.
• The date for summary judgment motion was scheduled on June 30, 2021. On July 7, 2021, his then counsel advised that he was no longer available for the summary judgment motion due to the breakdown of his relationship with his client. He requested a new date for the summary judgment motion to permit his client to retain yet another new lawyer.
• On August 3, 2021, the parties attended at Civil Practice court and advised of the former lawyer attended and advised of the circumstances of his firm no longer representing the defendant. He sought an adjournment. Justice Chalmers refused to adjourn the motion and the defendant’s materials were ordered to be delivered by September 10, 2021.
• There was much correspondence which passed between the defendant’s former lawyer who was seeking to get off the record and requesting an adjournment to permit the defendant to obtain new counsel which the plaintiff rejected.
• When the motion returned, the defendant’s former lawyer appeared again seeking an adjournment.

[24] At para 19, Perell J. found that the defendant’s:

“Estrangement from his lawyers of record and his failure to obtain counsel for the summary judgment motion appear to be no more than a delaying tactic. It is now the end of October 2021 and [the defendant] has known about the prospect of a summary judgment motion since June, and he has known that he has a need to engage new counsel or appear as a self-represented litigant since August. He has known about Justice Chalmers’ ruling about having this hearing for several months and could have attended today and shown that he was actively engaged in finding new counsel. I, therefore, decline to adjourn the summary judgment motion.”

[25] These are not the facts here. It is not the actual defendant who has failed to provide materials; rather, his counsel has made a mistake through inadvertence. I have no basis to conclude in all the circumstances that what has occurred is a “delaying tactic.”

[26] Further, had the plaintiff’s counsel filed his factum in accordance with the court-ordered timetable, in April as ordered, this would have alerted the defendant’s counsel to his own default and inadvertence and there still would have been time for the defendant to file materials and conduct cross examinations, subject of course to the plaintiff’s agreement, and/or a variation to the court ordered timetable. It is difficult to imagine that a court would have refused to amend the timetable given counsel’s admission that he made a mistake.

[27] As well, there is no urgency here because the plaintiff is now gainfully employed.

[28] In my view, it would be unfair and unjust for this Court to penalize the defendant for his own lawyer’s admitted default. Rule 1.04 of the Rules of Civil Procedure directs that these rules “shall be liberally construed to the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[29] In all the circumstances, I am granting the adjournment, but I am also converting this matter to a summary trial for the following reasons.

[30] Counsel for the defendant submitted that his materials would show that there are credibility issues, in particular, because of the test applicable when an employer terminates a probationary employee. Justice Centa was already live to this issue when he ordered the timetable.

[31] While I have not seen the materials, I do note that the test involves a determination as to whether the employer made a “good faith assessment of the suitability” of the employee for permanent employment. In my view, the consideration of this issue is likely more suited to the summary trial process and it would only cause further delays if this matter proceeds to summary judgment and the judge determines that there are genuine issues which require a trial.

[32] Therefore, I order as follows:

• This matter shall proceed as a summary trial during the week of April 29, 2024 for two days.
• The parties shall exchange affidavits of documents by the end of June 2023.
• Discoveries shall take place by the end of August 2023.
• The plaintiff may, if he wishes, submit an amended affidavit for the summary trial by the end of September 2023.
• The defendant shall serve its affidavit materials by the end of October 2023.
• If the plaintiff wishes to provide any reply materials, these shall be served by the end of November 2023.
• The matter shall be peremptory on the defendant and if any issues arise, the parties may schedule an urgent case conference before me through my assistant polly.diamante@ontario.ca. In order to ensure that there is no derailment of this trial because of undertakings and refusals, I am directing the parties may address any such issues directly with me on an urgent basis.
• The defendant shall pay costs to the plaintiff in the amount of $5,000 as costs thrown away within 14 days. I note that defendant’s counsel thinks that this amount is excessive, but in my view it appropriately reflects the fact that defence counsel defaulted and the waste of time that plaintiff’s counsel has now incurred related to his factum and the current attendance.
• As requested, the plaintiff shall have leave to amend his Statement of Claim to include an alternate claim for negligent misrepresentation within 15 days and the defendant may deliver an amended Reply within 15 days thereafter.
• The parties shall exchange case law which they seek to rely upon in respect of the summary trial by the end of February 2024. I note that at the hearing we discussed the parties exchanging factums, but having considered this further, it should simply be the caselaw since the evidence will not all yet be known until the time of the trial and cross examinations occur.
• The parties shall also exchange written opening statements by the end of March 2024.
• The parties shall contact the court office to obtain a date for a pre-trial.
• If there is any need to amend this timetable, and the parties agree to such amendments, they may do so without the need for a further Court Order.

Justice Papageorgiou Date: June 6, 2023