



COURT OF APPEAL FOR ONTARIO

CITATION: Smith v. Waterloo Taxi Limited, 2014
    ONCA 37

DATE: 20140117

DOCKET: C56864

Epstein, Tulloch and Pardu JJ.A.

BETWEEN

Derek Stephen Smith and Richard Emil Disano

Plaintiffs (Respondents)

and

Waterloo Taxi Limited

Defendant (Appellant)

Steven D. Gadbois, for the appellant

Justin Heimpel, for the respondents

Heard: December 13, 2013

On appeal from the judgment of Justice
Harrison
    S. Arrell

of the Superior Court of Justice,
    dated March 8, 2013, with reasons reported at 2013 ONSC 1466.

ENDORSEMENT

[1]

Waterloo Taxi Limited appeals from a decision granted on a summary
    judgment motion concluding that it had wrongfully removed Richard Emil Disano
    from its roster of approved drivers.

[2]

Waterloo terminated Disano because it alleged that he was covertly
    getting access to confidential information so that he could position his car to
    be the primary responder to highly sought-after pre-booked out-of-town calls. 
    It alleged that with the advance knowledge of the pick-up location for such
    calls, he would station himself nearby, and therefore get the first chance at
    the fares.

[3]

Waterloo Taxi initially based the termination on the ground that Disano
    was getting a disproportionately large number of these out-of-town calls
    compared to other drivers.  However, as the action progressed it became clear
    that Waterloo Taxis initial allegations about the number of out-of-town calls
    to which Disano was the primary responder were not borne out by the evidence.  Waterloo
    Taxi therefore sought out other evidence to support its case.

[4]

Waterloo Taxi filed an affidavit based on information and belief
    containing new allegations, for example, that Disano had come into the dispatch
    office and looked at the dispatch book.  It also stated that it had information
    from Janet Musclow, who worked in the dispatch office with Disanos wife that
    on a minimum of 10-20 occasions she saw Disanos wife write down information
    about pre-booked out-of-town trips on a scrap piece of paper and put it in her
    purse.  Waterloo Taxi relied on this new evidence to suggest a substantial
    pattern of cheating.  The problem with this new approach, once again lay in the
    numbers: there was simply no evidence that Disano was the primary responder in
    a disproportionately high number of out-of-town calls.

[5]

Moreover, Disano answered these new allegations with direct evidence. 
    For example, his wife swore an affidavit denying the conduct attributed to her,
    describing how she had not even worked the same shifts as Musclow, and therefore
    that the latter could not have seen what she purported to have seen.

[6]

The appellant submits that the motion judge erred by discounting the
    evidence provided on information and belief in its affidavit.  This was a
    simplified procedure action under Rule 76.  Since cross-examinations on
    affidavits are not permitted in these actions, reliance on information and
    belief does not have the effect of shielding the source of the information from
    cross-examination.  The appellant argues that for this reason, no adverse
    inference should be drawn from reliance on hearsay evidence.

[7]

However, rule 20.02(1) specifically provides that on a summary judgment
    motion the court may, if appropriate, draw an adverse inference from the
    failure of a party to provide the evidence of any person having personal
    knowledge of contested facts.

[8]

Rule 20.04(2.1) provides that, in determining whether there is a genuine
    issue for trial, a judge may weigh the evidence, evaluate the credibility of a
    deponent and draw any reasonable inference from the evidence.

[9]

There is no suggestion here that the motion judge did not apply the
    correct test for deciding whether to grant summary judgment.  Rather, the
    complaint is about the way he weighed the evidence.  Under these circumstances,
    the deferential standard of palpable and overriding error applies:
Combined
    Air Mechanical Services Inc. v. Flesch
, 2011 ONCA 764, 108 O.R. (3d) 1, at
    para. 71.

[10]

Given
    the seriousness of the allegations of cheating and their centrality to the
    litigation, the motion judge did not err in his treatment of Waterloos Taxi
    evidence and in preferring the Disanos direct, specific responding evidence,
    particularly in the context of ultimately undisputed evidence that the
    proportion of primary calls received by Disano was not high enough to be of
    concern.

[11]

We
    see no basis to interfere with the motion judges conclusion that he could
    fully appreciate the evidence and issues on the basis of the motion record, or
    in the manner in which he weighed the evidence.

[12]

For
    these reasons, the appeal is dismissed with costs to the respondents fixed at
    $10,000 inclusive of H.S.T. and disbursements.

Gloria Epstein J.A.

M. Tulloch J.A.

G.
    Pardu J.A.


