


COURT OF APPEAL FOR ONTARIO

CITATION: De Palma v. Canadian Federation of Independent
    Business, 2021 ONCA 406

DATE: 20210609

DOCKET: C67947

Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.

BETWEEN

Francesco De Palma

Plaintiff (Appellant)

and

Canadian Federation of Independent Business

Defendant (Respondent)

Andrew Monkhouse and Samantha Lucifora, for the
    appellant

Nafisah Chowdhury, for the respondent

Heard and released orally: June 7, 2021 by
    video conference

On appeal from the order of Justice Janet Leiper of the
    Superior Court of Justice, dated December 20, 2019.

REASONS FOR DECISION

[1]

This is an appeal from a motion for summary judgment dismissing the
    appellants claim for constructive dismissal, among other relief.

[2]

The appellant was employed by the Canadian Federation of Independent
    Business, the respondent, for approximately 20 years when his sales of new
    memberships for the respondent began to decline. When the respondent raised the
    matter with the appellant, the appellant stated that he no longer wished to be
    involved in selling new memberships because of his age, health, and tenure with
    the respondent. Discussions ensued, and eventually the appellants insurer
    approved him for Long Term Disability benefits. Approximately 19 months later,
    the appellant brought a claim for constructive dismissal against the
    respondent, along with other heads of relief.

[3]

The respondent then brought a motion for summary judgment, seeking to
    dismiss all of the appellants claims in his Statement of Claim pursuant to r.
    20.01(3) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.
    Following an application of the courts powers under r. 20.04(2.1), the motion
    judge was satisfied that there was no genuine issue requiring a trial with
    respect to the appellants claims.

Therefore, the respondent succeeded
    on their motion for summary judgment, obtaining the dismissal of the
    appellants action.

[4]

The appellant appeals on the basis of four alleged errors made by the
    motion judge.

[5]

First, the appellant argues that the motion judge erred by failing to
    consider each of his claims set out in the Statement of Claim, instead focusing
    solely upon the claim involving constructive dismissal. These include the
    claims for intentional infliction of mental distress, violation of human
    rights, and punitive damages. We do not agree.

[6]

While the motion judge did focus upon the constructive dismissal claim,
    she was correct to do so, as she found constructive dismissal was at the
    heart of the appellants claim. We agree with that assessment. If there was no
    constructive dismissal of the appellant, there could be no intentional infliction
    of mental distress and no possibility for punitive damages. Accordingly, it was
    not necessary for the motion judge to go on and consider those other heads of
    relief.

[7]

In light of her conclusions relating to the heart of the matter, nor
    was there any reason for the motion judge to go on and specifically address the
    suggestion that the respondent had breached the
Human Rights Code
,
    R.S.O. 1990, c. H.19, by failing to accommodate the appellants disability. In
    fact, as found by the motion judge, the constructive dismissal claim could not
    succeed because the respondent was reasonabl[y] request[ing] information to
    design a plan for accommodation. Therefore, the respondent was making active
    efforts to attempt to accommodate the appellants disability. All secondary
    claims flowed from the constructive dismissal claim and, as such, it was truly
    the only live issue before the motion judge. She squarely dealt with that issue
    in her reasons.

[8]

Second, the appellant claims that the motion judge erred in failing to
    grant him his requested adjournment of the motion for summary judgment. We see
    no error in the motion judges refusal to grant this request. There was no
    evidentiary foundation placed before the motion judge that would have supported
    a late-in-the-day adjournment. In these circumstances, we defer to the motion
    judges exercise of discretion.

[9]

Third, the appellant argues that the motion judge erred in her approach
    to the question of summary judgment. In essence, the appellant claims that
    summary judgment was not appropriate in the circumstances. We do not agree.

[10]

The
    motion judge correctly stated the law relating to summary judgment. We agree
    with her assessment that the matter turned largely on documentary evidence,
    where the communications between the parties were carefully catalogued. For the
    reasons stated by the motion judge, those communications revealed that the
    respondent did not constructively dismiss the appellant. Rather, the respondent
    was making efforts to determine how to accommodate the appellant in the
    workplace, which efforts were frustrated by the appellants refusal to comply
    with the respondents requests. This was therefore an entirely appropriate case
    for summary judgment.

[11]

Fourth,
    and finally, the appellant argues that the motion judge erred because she
    failed to pronounce upon the outcome of his employment status. The motion judge
    was not asked to do so. It does not fall to the appellant to allege an error in
    failing to address something that he did not raise at the motion.

[12]

The
    appeal is therefore dismissed.

[13]

Costs will be paid to the respondent in the amount of $20,000, all
    inclusive.

Fairburn A.C.J.O.

A. Harvison Young
    J.A.

M. Jamal J.A.

