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CIVIL PROCEDURE - Summary judgments - No triable issue - To dismiss action

Friday, February 12, 2021 @ 6:17 AM  


Lexis Advance® Quicklaw®
Appeal by the plaintiff from the summary dismissal of his negligence action against the respondents and the dismissal of his cross-motion for summary judgment. The appellant was previously employed by the respondent Mann Engineering. His wrongful dismissal action was dismissed, and Mann was awarded costs of $76,866. Mann Engineering commenced garnishment proceedings and obtained an enforcement order against the appellant’s employer in 2016. In 2017, after the employer became aware of the enforcement order, it had the order set aside based on mistake. The employer terminated the appellant’s employment one month later. In his claim against the respondents, the appellant alleged that but for the improper obtaining of the enforcement order, his employer would not have concluded the appellant misled it and would not have fired him.

HELD: Appeal dismissed. The appellant’s negligence action was properly dismissed on the basis the evidence did not give rise to a triable issue on the question of whether Mann Engineering, while pursuing the garnishment proceedings, owed a duty of care to the appellant. There was no prima facie duty of care. The evidence did not establish the requisite proximity between the appellant and Mann Engineering. There was no relationship between them other than the relationship of a judgment creditor using the garnishment proceedings to realize on the debt owed by a judgment debtor. There was nothing in the relationship that justified placing an obligation on Mann Engineering to take reasonable steps to protect the appellant’s ongoing employment from any possible negative consequences flowing from its conduct of the garnishment proceedings. There was evidence before the motion judge from which it could be inferred the employer’s belief the appellant had acted dishonestly throughout the garnishment proceedings was the reason for his dismissal. Any error the motion judge made in describing the elements of the tort of abuse of process or misapprehension of the evidence in the context of his abuse of process analysis did not assist the appellant given the appellant did not advance a claim based on the tort of abuse of process.

Hoang v. Mann Engineering Ltd., [2020] O.J. No. 5496, Ontario Court of Appeal, D.H. Doherty, P.D. Lauwers and B. Miller JJ.A., December 16, 2020. Digest No. TLD-February82021010