



COURT OF APPEAL FOR ONTARIO

CITATION: Jamshidi v. Dependable Mechanical Systems Inc.,
    2019 ONCA 923

DATE: 20191122

DOCKET: C66383

Pepall, Tulloch and Benotto JJ.A.

BETWEEN

Alireza Jamshidi

Plaintiff (Appellant)

and

Dependable Mechanical Systems Inc., Pegasus
    General Contracting Ltd., and 4R HVAC Inc.

Defendants (Respondents)

Kevin Marshall, for the appellant

Daniel E. Attwell, for the respondents

Heard and released orally: November 14, 2019

On appeal from the order of Justice Anne Mullins of the Superior
    Court of Justice, dated November 29, 2018, with reasons reported at 2018 ONSC
    7101.

REASONS FOR DECISION

[1]

The appellant appeals from an order of November 29, 2018, in which the respondents
    obtained declarations that the appellant was not entitled to commissions or any
    increased compensation for changes in his employment.

[2]

Before this court, the appellant objects to the order for partial
    summary judgment and argues that he had inadequate time to advance his case
    before the motion judge.

[3]

The respondents employed the appellant as Business Development Manager
    from May 12, 2014 until January 14, 2016, when the appellant was terminated. He
    subsequently sued for various relief.

[4]

In February 2018, counsel for the respondents advised counsel for the
    appellant that they were proceeding with a motion for partial summary judgment
    returnable in October 2018 to determine the terms of the appellants employment
    contract. The appellant did not object to the procedure at the time; most of
    his claim stood to be resolved by the motion; and the parties proceeded with
    cross-examinations. Before the motion judge, the appellant did not request more
    time or seek an adjournment. The parties attended a pre-trial conference before
    another judge and two attendances before the motion judge, one of which
    included a mini-trial with oral evidence. We are unable to conclude that the motion
    judge erred in granting partial summary judgment.

[5]

The appellant also complains that the motion judge erred in failing to
    consider the doctrine of
quantum meruit
.
Quantum meruit
was
    not pleaded and was not advanced in the appellants factum or in oral argument before
    the motion judge. Given these facts and the lack of an evidentiary record
    addressing
quantum meruit
, the interests of justice would not be
    advanced by permitting this argument to be considered on appeal:
Wasauksing
    First Nation et al. v. Wasausink Lands Inc. et al.
(2004), 184 O.A.C. 84
    (C.A.), at p. 106.

[6]

We also see no reason to interfere with the motion judges costs award.

[7]

The appeal is dismissed. The appellant shall pay costs fixed in the
    amount of $2,500 to the respondents inclusive of disbursements and applicable
    tax.

S.E. Pepall J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


