



COURT OF APPEAL FOR ONTARIO

CITATION: Jog v. Bank of Montreal, 2020 ONCA 721

DATE: 20201112

DOCKET: C67578

Feldman, Simmons and Harvison Young JJ.A.

BETWEEN

Chandrahas Jog

Plaintiff (Appellant)

and

Bank of Montreal

Defendant (Respondent)

Chandrahas Jog, acting in person

Kate McNeill-Keller and Justine Lindner, for the
    respondent

Heard: November 4, 2020 by video conference

On
    appeal from the order of Justice Deena F. Baltman of the Superior Court of
    Justice, dated October 16, 2019.

REASONS FOR DECISION

[1]

The appellant is a former employee of the Bank of Montreal (BMO).
    Following attempts to accommodate him with the assistance of a third-party
    occupational therapist, BMO terminated the appellants employment.

[2]

Following his termination, the appellant commenced an action against BMO
    claiming, among other things, damages for intrusion upon seclusion arising from
    the use and release of information from a cognitive assessment conducted by the
    third party occupational therapist. BMO defended the claim. Ultimately, the
    appellant moved for summary judgment. BMO brought a cross-motion requesting
    that the appellants action be dismissed. The motion judge granted BMOs
    cross-motion. The formal order dismisses the appellants motion for summary
    judgment and his action.

[3]

In our view, the appellants appeal must be allowed because of a want of
    procedural fairness in the court below. Three hours of court time had been set
    aside for the motions. The motion judge called on the self-represented appellant
    first and advised him that he should focus on his response to the cross-motion.
    Without calling on BMO, the motion judge reserved her decision and subsequently
    delivered written reasons commencing as follows:

This is a motion by the Defendant Bank of Montreal (BMO) for
    summary judgment with respect to various claims by a former employee,
    Chandrahas Jog.

[4]

We acknowledge that the issues on the motions were inter-related.
    Nonetheless, we agree with the appellant that, in the circumstances of this
    case, if it was the motion judge's intention to address BMO's cross-motion
    first, as a matter of procedural fairness, it was incumbent on her to either
    call on BMO first or indicate she did not need to hear from BMO in response to
    the appellants motion but call on BMO to make submissions on the cross-motion.

[5]

As the appellant properly points out, the motions were to be heard
    orally, not in writing. The appellant stated at the conclusion of his
    submissions on his motion that he had reserved 20 minutes of his time to
    respond to the cross-motion. Given the issues he was required to address in
    response to the cross-motion and his status as a self-represented litigant, in
    addition to having an opportunity to read the cross-motion material, the
    appellant was entitled to hear BMO's submissions on the cross-motion and to
    have an opportunity to respond to them orally.

[6]

The appeal is allowed and the order below is set aside without prejudice
    to the rights of either party to renew their motion.

[7]

The appellant may submit written submissions on costs within seven days
    of the release of these reasons; the respondent may respond within seven days
    of receipt of the appellants submissions. Any such written submissions on
    costs shall not exceed two pages.

K. Feldman J.A.

Janet Simmons J.A.

A. Harvison Young
    J.A.


