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 appellant’s 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 appellant’s action be dismissed. The motion judge granted BMO’s cross-motion. The formal order dismisses the appellant’s motion for summary judgment and his action.
[3] In our view, the appellant’s 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 appellant’s 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 appellant’s 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.”