[24] However, the motion judge operated on the mistaken understanding that both parties agreed to proceed by way of motion for summary judgment. Because of this mistaken assumption, the motion judge did not determine whether it would be fair and just to proceed in summary fashion. Nor did he acknowledge that the appropriateness of summary judgment was in dispute. The failure to engage with a party’s position is an error in principle: Singh v. Concept Plastics Limited, 2016 ONCA 815, at para. 24.
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