



COURT OF APPEAL FOR ONTARIO

CITATION: McGregor v. OSullivan Animal Hospital, 2018 ONCA
    776

DATE: 20180924

DOCKET: C65134

Juriansz, Brown and Huscroft JJ.A.

BETWEEN

Colin McGregor and Alison McGregor

Plaintiffs (Appellants)

and

OSullivan Animal Hospital, Jennifer Duff and
    Jennifer Lund

Defendants (Respondents)

Colin McGregor, acting in person

Ashley Peacock, for the respondents

Charles Sinclair, for David Elmaleh

Heard and released orally: September 20, 2018

On appeal from the judgment of Justice John R. McCarthy
    of the Superior Court of Justice, dated February 6, 2018.

REASONS FOR DECISION

[1]

The appellants appeal from a summary judgment dismissing their action
    against the respondents following a hearing on January 31, 2018. The hearing
    had been scheduled to proceed on February 1, 2018. On January 29, the court
    rescheduled the motion to January 31, 2018. The appellants did not receive the
    email notifying them of the change because they were in an area without
    internet.

[2]

We are satisfied the appellants did not receive adequate notice that the
    motion would be heard on January 31.

[3]

We would have afforded the appellants a full opportunity to make the
    submissions they would have made to the motion judge had they been present, but
    neither side included in their appeal books the material the appellants had
    filed before the motion judge. As a result, it was impossible to determine
    whether remitting the matter to the Superior Court could be avoided.

[4]

In the circumstances, we allow the appeal and set aside the summary
    judgment. The respondents motion may be rescheduled on proper notice to the
    appellants.

[5]

In light of rules 61.05(1) and (2), it was the respondents
    responsibility to ensure the appellants material before the motion judge was
    filed in this court. The appellants included in the Appeal Book the material
    they considered was required for the appeal. The respondents required the
    missing material to support their argument the appeal should not be allowed in
    any event as summary judgment was inevitable. Consequently, we fix costs in
    favour of the appellants in the amount of $1,500 all inclusive.

R.G. Juriansz J.A.

David Brown J.A.

Grant Huscroft J.A.


