



COURT OF APPEAL
    FOR ONTARIO

CITATION: Singh v. Concept Plastics Limited, 2016 ONCA 815

DATE: 20161103

DOCKET: C61374 and C61375

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

C61374

Jasvir Singh

Plaintiff (Respondent)

and

Concept Plastics Limited

Defendant (Appellant)

AND BETWEEN

C61375

Ranganadan
    Gounder

Plaintiff (Respondent)

and

Concept Plastics Limited

Defendant (Appellant)

Jayson W. Thomas, for Concept Plastics Limited

Lumi Pungea, for Jasvir Singh and Ranganadan Gounder

Heard: May 16, 2016

On appeal from the orders of Justice Kelly P. Wright of
    the Superior Court of Justice, dated October 23, 2015, with reasons reported at
    2015 ONSC 6598 and 2015 ONSC 6599.

Huscroft J.A.:

[1]

Concept Plastics Limited (Concept) appeals from the motion judges
    orders granting summary judgment to the respondent employees, Ranganadan
    Gounder (Gounder) and Jasvir Singh (Singh).

[2]

Both appeals raise similar issues and were heard together. This decision
    deals with both appeals and differentiates the situations of each respondent
    where necessary.

[3]

I would allow the appeals for the reasons that follow.

Background

[4]

This action arises out of Concepts decision to move its plant from
    Mississauga to Brantford in 2014. Gounder and Singh were long-term employees of
    Concept at its Mississauga plant.

[5]

Gounder, then 50 years of age, was employed by Concept for 20 years and
    earned approximately $50,000 per annum plus benefits. Singh, then 51 years of
    age, was employed by Concept for 24 years and earned approximately $45,000 per
    annum plus benefits. Both were informed by letter dated November 21, 2013 that Concept
    would be moving its plant and would cease operations in Mississauga by January
    17, 2014. They were invited to continue their employment at the new location or
    to consider the letter a termination notice. Ultimately, the plant closure did
    not occur until June 30, 2014. Both worked at the Mississauga plant up to and
    including that day.
[1]

[6]

Gounder and Singh both commenced their actions for damages for wrongful
    dismissal under the simplified procedure provided in r. 76 of the
Rules of
    Civil Procedure
,

R.R.O. 1990, Reg. 194
. They then brought
    motions to dispose of their actions by way of summary judgment under r. 20.

[7]

Concept opposed each motion on the basis that there were a number of
    genuine issues requiring trial, and that the procedural constraints under the simplified
    procedure  in particular, r. 76.04  precluded it from putting its best foot
    forward on the summary judgment motions. Rule 76.04 provides as follows:

76.04 (1) The
    following are not permitted in an action under this Rule:

1. Examination for
    discovery by written questions and answers under Rule 35.

2. Cross-examination
    of a deponent on an affidavit under rule 39.02.

3. Examination of a
    witness on a motion under rule 39.03.  O. Reg. 438/08, s. 53.

(2) Despite rule
    31.05.1 (time limit on discovery), no party shall, in conducting oral
    examinations for discovery in relation to an action proceeding under this Rule,
    exceed a total of two hours of examination, regardless of the number of parties
    or other persons to be examined.

[8]

Concept argued that there were credibility disputes concerning: (1)
    whether the respondents had requested extension of their employment; (2) whether
    the respondents were constructively dismissed; and (3) whether the respondents
    took reasonable steps to mitigate their losses. It argued that summary judgment
    was unfair in the circumstances.

The motion judges decision

[9]

The motion judge found that there was no genuine issue requiring a trial
    and granted summary judgment in favour of both respondents. She found that the
    November 21, 2013 letter constituted termination of employment without cause,
    effective January 17, 2014. The motion judge found, further, that on December
    31, 2013, the termination date was extended to May 30, 2014, and that the
    termination date was extended a third time, on June 10, 2014, to June 30, 2014.

[10]

The motion judge concluded that the cumulative effect of the notices and
    updates sent by Concept was to create confusion and uncertainty, and that Gounder
    and Singh had no idea when their employment would end until June 30, 2014.
    She rejected Concepts submission that Singh (or any other employee) was
    driving the decision to extend the termination date. The motion judge found
    that both Gounder and Singh worked beyond the 13-week period for temporary
    extension of termination allowed under s. 6 of
Termination and Severance of
    Employment
, O. Reg. 288/01 and were entitled to fresh notice that they did
    not receive in any event.

[11]

The motion judge found that an 18-month notice period was reasonable for
    Gounder and that a 20-month notice period was reasonable for Singh.

[12]

Concerning Gounder and Singhs duty to mitigate their losses by taking
    reasonable steps to find new employment, the motion judge described herself as
    underwhelmed by their efforts in the first six months following the termination
    of their employment on June 30, 2014. During this period, it appears that Gounder
    took no action to find employment and Singh made only three employment-related inquiries,
    albeit in person. However, the motion judge excused their inactivity on the
    basis that six months was a reasonable period for each respondent to get
    oriented and figure out how to navigate his life forward.

[13]

Although there was evidence that four Concept employees found new
    employment at Kal-Trading, another plastics company in Mississauga - an
    opportunity that neither Gounder nor Singh explored - the motion judge declined
    to draw an adverse inference regarding failure to mitigate against either
    Gounder or Singh.
[2]

[14]

The motion judge stated that she found no evidence to support the
    submission that Gounder was on a holiday in Fiji when he should have been
    attempting to mitigate his losses, and did not accept that Singh had income
    from a trucking business during the mitigation period.

[15]

The motion judge found that both Gounder and Singh made satisfactory
    efforts to find employment from January 2015 onwards, and awarded $84,499.77 in
    damages to Gounder and $82,652.81 to Singh.

Issues on appeal

[16]

Concept does not dispute that the relocation of its operation to Brantford
    constituted a dismissal for which Gounder and Singh were entitled to reasonable
    notice. The issues are: (1) whether the motion judge erred in adjudicating by
    way of summary judgment; and (2) whether the motion judge erred in concluding
    that Gounder and Singh reasonably mitigated their losses.

[17]

In respect of the summary judgment issue, Concept argues that there were
    numerous conflicts in the evidence that raised genuine issues requiring a trial
    that were not referred to or resolved, and that the reasons provided by the
    motion judge failed to address the unfairness to Concept caused by r. 76.04(1),
    which precluded both cross-examination of the respondents on their affidavits
    and the examination of witnesses.

[18]

Gounder and Singh argue that summary judgment was appropriate because
    there were no factual matters in dispute that were material to the decision on
    the central legal issues, and that r. 76.04(1) did not preclude Concept from
    putting its best foot forward on the motion. Gounder and Singh submit that
    Concept had ample opportunity to ask relevant questions on discovery and that
    the motion judges reasons were sufficient.

[19]

In respect of the mitigation issue, Concept argues that neither Gounder
    nor Singh reasonably mitigated their losses, as neither provided a reasonable
    explanation for his failure to seek employment actively during the six months
    following the termination of his employment. Concept argues, further, that
    summary judgment was inappropriate given issues in dispute concerning the
    availability of Gounder for mitigation, Singhs work as a truck driver, and the
    availability of alternative employment at Kal-Trading. Gounder and Singh contend
    that the motion judge was correct to find that they properly mitigated their
    losses.

Analysis

[20]

In my view, the motion judge failed to assess the fairness of deciding
    this matter by way of summary judgment in the context of the simplified rules
    procedural constraints under Rule 76.04.

[21]

It was central to Concepts case that Gounder and Singh were well aware
    of their termination date, and as a result Concept should have been credited
    with providing notice as of December 31, 2013
.

Concepts evidence was that it extended the original January
    17, 2014 termination date to June 30, 2014 in response to a request from a
    group of employees that included Gounder and Singh. Moreover, Concept alleged
    that Gounder and Singh, as senior employees, were at all times aware of the
    developments concerning the move, having both assisted with the move and
    elected to stay until the end of June 2014. In short, there could be no
    confusion as to the date when their work was going to end.

[22]

Rule 76.04(1) establishes significant limitations on Concepts ability
    to prove its case. Gounder and Singhs affidavit evidence conflicted with
    Concepts, but r. 76.04(1) precluded Concept from cross-examining them on (1)
    whether they had requested an extension of their employment; and (2) whether
    they were aware of all of the relevant developments concerning the move.

[23]

Although summary judgment is available in the context of actions brought
    under the simplified procedure, as this court stated in
Combined Air

Mechanical
    Services Inc. v. Flesch
, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 256:

Given that Rule 76 limits discoveries and
    prohibits cross-examination on affidavits and examinations of witnesses on
    motions, the test for granting summary judgment will generally not be met where
    there is significant conflicting evidence on issues confronting the motion
    judge.

[24]

The problem noted by the court in
Combined
    Air

was present in this case. Concept referred to r.
    76.04(1) at several points in its factums and explained how the rule limited its
    ability to adequately respond to the summary judgment motions.
However,
the motion judge's reasons neither referred to these submissions nor
    explained why the constraints imposed by the rule did not prejudice Concept in
    its ability to respond to the motions. This was an error.

[25]

Gounder and Singh contend that Concept overstates the
    effect that r.76.04(1) had on its case, noting that it had the opportunity to
    ask relevant questions on discovery. I do not agree. Concept had limited
    discovery under the simplified procedure prior to the affidavits filed in
    support of a motion for summary judgment. As stated above, credibility was a
    central issue on the motion, and the positions set out by Gounder and Singh in their
    motions clearly conflicted with Concept's evidence on the main points at issue.
    As this court said in
Baywood Homes Partnership v. Haditaghi,
2014 ONCA 450, 120 O.R. (3d) 438, at para. 44, in motions for summary
    judgment where credibility is important:

G
reat 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.

[26]

In this case,
the motion judge failed to make
    credibility findings and failed to explain how she resolved the conflicts in
    the evidence. Her
conclusion that Gounder and Singh had no idea when
    their employment would end and were entitled to fresh notice failed to address Concepts
    position.

[27]

Similar difficulties attend the motion judges conclusions on the issue
    of mitigation.

[28]

The motion judge found there was no evidence to support Concepts submission
    that Gounder was in Fiji, and so unavailable to mitigate, but failed to address
    inconsistent statements he made on examination for discovery. There was conflicting
    evidence as to whether Singh was employed as a truck driver during the
    mitigation period, which Singh and another man denied in their affidavits.
    However, Concept was not permitted to cross-examine them on their affidavits. The
    motion judge stated simply that she did not accept Concepts submission that
    Singh had another source of income from a trucking business during the
    mitigation period, but failed to address the conflicting evidence.

[29]

Although there was evidence that four former Concept employees had found
    employment at Kal-Trading, the motion judge said that she was unwilling to draw
    an adverse inference against either Gounder or Singh on this point because she
    had no details to allow her to make a meaningful comparison. It is not clear
    whether the motion judge
drew an adverse inference from Concepts
    failure to call someone from Kal-Trading, even though the rules precluded it
    from being able to compel non-parties to testify on the motion.

[30]

Finally, neither Gounder nor Singh offered an explanation for failing to
    seek employment actively during the first six months following the termination
    of their employment at Concept. Even assuming that a brief cooling-off or
    grace period may be warranted following a wrongful dismissal in some cases,
    there was no evidence on the summary judgment motion that a six-month suspension
    of the mitigation duty was warranted in this case.

Disposition

[31]

For these reasons, I would allow the appeals and dismiss the motions for
    summary judgment.

[32]

I would award Concept costs on each appeal in the agreed amount of
    $5,000, inclusive of taxes and disbursements, and leave costs on the motions
    for summary judgment to be determined by the motion judge.

Released:  November 3, 2016 KF

Grant
    Huscroft J.A.

I
    agree K. Feldman J.A.

I
    agree Paul Rouleau J.A.





[1]

A dispute concerning whether Gounder and Singh may have worked
    beyond this date is not relevant for purposes of this appeal.



[2]
In her decision related to Singh, the motion judge erroneously stated that only
    two former employees found work at Kal-Trading in Mississauga.


