



COURT OF APPEAL FOR ONTARIO

CITATION: Khosa v. Homelife/United Realty Inc., 2016 ONCA 3

DATE: 20160106

DOCKET: C60735

Pepall, Pardu and Roberts JJ.A.

BETWEEN

Jaswinder Khosa

Plaintiff

Appellant

and

Homelife/United Realty Inc., Parvinder
    Singh, Gurjinder Singh and K & K Brothers
    Inc.

Defendants

Respondents

Douglas G. Edward, for the appellant

Pathik Baxi, for the respondents

Heard and released orally: January 5, 2016

On appeal from the judgment of Justice Casimir Herold of
    the Superior Court of Justice, dated June 3, 2015.

ENDORSEMENT

[1]

The appellant appeals from the June 3, 2015 summary judgment in which
    Herold J. dismissed the appellants action against the respondents.  He
    dismissed the action, which was commenced on October 17, 2013, based on a
    finding that the limitation period expired at the very latest on September 13,
    2013.

[2]

The appellant submits that the motion judge erred  in granting summary
    judgment in the absence of any cross-examinations or examinations for
    discovery.  He argues that the motion judge ignored the appellants sworn
    statement that he received from the respondents a cash payment of $5,000 on
    December 2, 2011, which served to extend the limitation period.  This evidence
    was contradicted by the respondent Singh and as such, there was a genuine issue
    requiring a trial.

[3]

The appellant requested an adjournment of the summary judgment motion to
    conduct cross-examinations on the affidavits filed by the respondents.  He also
    had not filed a factum. The motion judge exercised his discretion to refuse the
    request.  The motion had been served nine months earlier, had been adjourned
    twice before, and on two prior occasions, timetables for cross-examinations and
    other steps in the proceedings had been ordered and not maintained. Moreover,
    the date of the motion had been scheduled for three hours and had been made
    peremptory on all parties.  The respondents were prepared to proceed.  The
    motion judge was satisfied that he could reach a fair and just determination on
    the merits in the absence of cross-examinations.

[4]

The appellant was afforded ample opportunity to conduct
    cross-examinations but opted not to do so.  Scheduling timetables are not
    ordered to be ignored.   It was open to the motion judge to refuse an
    adjournment in the circumstances.

[5]

That said, the motion judge still had to be satisfied that there was no
    genuine issue requiring a trial and that a fair and just determination on the
    merits could be reached.  See
Hryniak v. Maudlin
, 2014 SCC 7.

[6]

The appellant argues that the respondents paid $5,000 to the appellant
    on December 2, 2011, and that the payment served to extend the limitation
    period.  The respondents deny any indebtedness to the appellant and deny making
    any such $5,000 payment.

[7]

The respondents acknowledge that the extension of the limitation period
    issue was raised before the motion judge.  Further, the motion judge alluded to
    it in his reasons refusing the adjournment request.  However, the motion judge
    failed to make any findings on this issue and failed to resolve the material
    contradictions in the evidence, including whether the $5,000 payment was made.

[8]

In these circumstances, we are of the view that the appeal must be
    allowed and the summary judgment dismissing the action set aside.

[9]

The costs order below is set aside and in substitution, as agreed by the
    parties, the appellant is to pay the respondents $2,500 inclusive of
    disbursements and HST.

[10]

There
    will be no order of costs for the appeal.

S.E. Pepall J.A.

G. Pardu J.A.

L.B. Roberts
    J.A.


