McGregor v. O’Sullivan Animal Hospital
Because the appellants did not receive adequate notice of the rescheduled motion and the appeal record lacked the materials necessary to determine whether summary judgment was inevitable, the Court of Appeal set aside the summary judgment, remitted the matter for a rescheduled motion on proper notice, and awarded...
Source-derived case information.
- Citation
- 2018 ONCA 776
- Parties
- Plaintiff (appellant): Colin McGregor; Plaintiff (appellant): Alison McGregor; Defendant (respondent): O'Sullivan Animal Hospital; Defendant (respondent): Jennifer Duff; Defendant (respondent): Jennifer Lund
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 24 September 2018
- Procedural Posture
- Civil / Appeal From Summary Judgment (court of Appeal)
- Outcome
- Appeal allowed; summary judgment set aside; matter remitted for rehearing on proper notice; costs awarded to appellants.
- Legal Topics
- Summary Judgment, Notice of Hearing, Service and Rescheduling, Remittal, Record and Appeal Book Obligations
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Colin McGregor
Plaintiff (appellant)
Alison McGregor
Plaintiff (appellant)
O'Sullivan Animal Hospital
Defendant (respondent)
Jennifer Duff
Defendant (respondent)
Jennifer Lund
Defendant (respondent)
Procedural Posture
Civil / Appeal From Summary Judgment (court of Appeal)
Legal Issues
- 1 Whether appellants received adequate notice of the rescheduled summary judgment motion
- 2 Whether summary judgment should be set aside or allowed despite missed attendance
- 3 Whether the absence of material in the appeal books prevents the appellate court from disposing of the appeal without remitting the matter
Ratio Decidendi
Because the appellants did not receive adequate notice of the rescheduled motion and the appeal record lacked the materials necessary to determine whether summary judgment was inevitable, the Court of Appeal set aside the summary judgment, remitted the matter for a rescheduled motion on proper notice, and awarded costs against the respondents for failing to file required materials under Rule 61.05(1) and (2).
Court Disposition
Appeal allowed; summary judgment set aside; matter remitted for rehearing on proper notice; costs awarded to appellants.
Orders
- Summary judgment set aside.
- Respondents' motion may be rescheduled on proper notice to the appellants.
Full Case Text
Judgment text and source record
1 paragraphs
McGregor v. O’Sullivan Animal Hospital Collection Decisions of the Court of Appeal Date 2018-09-24 Neutral citation 2018 ONCA 776 Docket numbers C65134 Judges Juriansz, Russell G.; Brown, David M.; Huscroft, Grant Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: McGregor v. O’Sullivan Animal Hospital, 2018 ONCA 776 DATE: 20180924 DOCKET: C65134 Juriansz, Brown and Huscroft JJ.A. BETWEEN Colin McGregor and Alison McGregor Plaintiffs (Appellants) and O’Sullivan 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.”