Judgment Released: August 4, 2010  Link to Judgment   

On a motion for summary judgment to dismiss a wrongful dismissal claim on the basis that the 2 year limitation period had expired, the plaintiff invoked the principle of discoverability under section 5 of the Limitations Act, 2002.  In dismissing the motion, and bearing in mind the “enhanced powers of a judge on a summary judgment motion to weigh evidence, evaluate credibility, draw inferences and order oral testimony”, the Court found that the issue of discoverability was a genuine issue requiring a trial.  The Court noted  “Wrongful dismissal, in my view, raises a particularly difficult issue in the limitation context since it is not a dismissal per se that is actionable but rather dismissal without reasonable notice or salary in lieu of such notice, that is actionable. Accordingly, the limitation period for an action for wrongful dismissal does not necessarily run from the date of actual dismissal. It is activated when the cause of action is discovered – that is, the date that the terminated employee knew or ought to have known that he was discharged without cause and without notice or pay in lieu of notice and that a proceeding would be an appropriate way to get redress. The date of discovery may be later than the date of dismissal.”

Judgment Released: July 29 2010  Link to Judgment

On a motion to set aside an order of the registrar, dismissing the action as abandoned, the Court noted that the notice did not comply with the requirements of the rules as “it is a precondition to the jurisdiction of the registrar to issue an order dismissing an action where a defence has been filed, that a notice setting out the factors in Rule 76.06 (2)  be given to a party at least 45 days prior to the making of the order.” 

In allowing the relief sought and setting aside the dismissal order, the Court cautioned that “This case might otherwise only stand as an historical anomaly, but for the provisions now added to the Rule 48.  If no defence is filed, new Rule 48.15 continues the provision for dismissal but now a period of 180 days runs from when the originating process was issued. As a consequence, counsel will be well advised to diarize a date in advance of the six months anniversary from the start of every matter.  This will facilitate the timely bringing of any motion to extend the time for service, and if necessary, taking  appropriate steps to avoid the registrar’s administrative dismissal.  Given the impact of the two year period contemplated by the Limitations Act to commence a proceeding, and the apparent demise of the doctrine of special circumstances, a failure to take proactive steps before the 180 day point to keep the proceeding alive, may result in unintended and unfortunate consequences in situations where the plaintiff has had no notice of the action until perhaps three years “after the injury, loss or damage had occurred”.

Judgement released:  August 3, 2010  Link to Judgment

Following an unsuccessful motion for summary judgment by the plaintiff, MCAP Leasing, the Court dealt with the issue of costs in light of the amendments to Rule 20.06.  The amount in issue in the case was $118,000 and MPAC argued that the defendant’s Statement of Defence failed to raise genuine issues for trial.  The defendant argued that, having defeated the summary judgment motion, it was entitled to $23,591.06 for costs on a substantial indemnity scale.

The Court stated that “In determining whether a motion for Summary Judgment was reasonably brought, the Court must focus on whether it reasonably appeared to the moving party that there was a genuine issue for trial at the time that the motion was brought, and on the basis of the information known.”  The Court found that based on the pleadings, the outcome of the motion was not “virtually certain” or a foregone conclusion and, for the purposes of Rule 20.06(1), that even though MCAP was unsuccessful, it was not unreasonable for it to have brought the motion. The Court went on to note that MPAC should not be required to pay Lind’s costs on a substantial indemnity scale, but likewise it would not be appropriate to deprive Lind of the partial indemnity costs that follow from its success in defeating the motion.  In fixing Lind’s costs at $15,000 inclusive of fees, HST and disbursements, the Court noted that it must, “step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved… tak[ing] into account the reasonable expectation of the parties concerning the amount of costs.”

Judgment Released: June 8, 2010   Link to Judgment

On a refusals motion under the new Rules, the degree of connection between the question asked and the matters in issue is now relevance, rather than “semblance of relevance”. In most instances, there is no significant difference between the two standards of disclosure.  Regardless of whether the test is relevance or semblance thereof, the approach comes down to this: subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met – the question asked is relevant.

All of this, however, must be filtered through the lens of proportionality, such that what has been requested has to be considered within the context of the particular case, to ensure that it is not overly onerous when measured against what is at stake on a variety of levels. Thus, even if the response to the above question is “yes, the response could assist the trial judge in making a determination regarding a matter in issue,” a second question must be asked: “is there enough at stake, in terms of significance or money, to justify the time and expense of the disclosure sought?”

Judgment Released: July 15, 2010   Link to Judgment

The plaintiff sued for injuries sustained when his bike hit a metal stump on a strip of grass running between a sidewalk and the defendants’ house.  The court granted summary judgment to the defendant as there was no genuine issue that requires a trial.  The area where the plaintiff fell is not owned by the defendants and there was no evidence that the defendants were “occupiers” within the exceptions discussed in the relevant caselaw.  There was therefore no triable issue concerning liability of the Defendants as adjoining property owners.

Judgment Released: July 19, 2010   Link to Judgment

The plaintiff had won a judgment against the defendant’s company but could not collect on it when the defendant’s company declared bankruptcy and transferred assets to a new corporation one month after the judgment was granted.  The plaintiff sued the defendant for, among other things, oppression, and sought summary judgment.  The Court denied summary judgment because “the relatively complicated analysis of why [the defendant] did what he did and, in particular, why he put [his company] into bankruptcy cannot be resolved herein and cannot be adequately or fairly conducted via the confines of a “mini-trial” under new Rule 20.04(2.2).”

The Court also exercised its discretion under Rule 20.05(2)(o) and (p) and directed the defendant to pay into court an amount to cover the earlier judgment and the partial costs of the upcoming trial. The Court was concerned that further steps may be taken by the defendant to move assets out of reach and unfairly prejudice the plaintiff, who may well prevail at trial.

Judgment Released:  June 7, 2010   Link to Judgment

Where the defendants claimed to have spent $2,129.45 on their unsuccessful motion for summary judgment, it was disproportionate to then claim $9,546.28 in costs for successfully resisting the plaintiffs’ motion for leave to appeal the plaintiffs’ costs award on the summary-judgment motion. 

The principle of proportionality should not have led the plaintiffs to expect to pay a small fraction of $2,129.45 if they were unsuccessful in their motion for leave to appeal.  However, it was reasonable for the plaintiffs to expect that, because the defendants had spent a modest amount of time in their motion for summary judgment and the amount at stake in the motion for leave to appeal was small ($9,800), the costs would not exceed the cost of a standard motion of this kind (approximately $3,500).

Judgment Released: July 7, 2010   Link to Judgment

The plaintiffs moved to transfer a case from the Superior Court to Small Claims Court given the increase in the latter’s monetary jurisdiction from $10,000 to $25,000.  The Court rejected the motion because the defendant did not consent, and consent of all parties is required for transfer under s. 23(2) of the Courts of Justice Act.  In addition, in this case, the litigation had progressed substantially and the defendant would have been put through the unnecessary expense of those prior steps if the transfer was granted. 

The Court also held that both a Master and a Judge have the jurisdiction to hear a motion for transfer.

Judgment Released: June 28, 2010   Link to Judgment

The three plaintiffs sought total costs of $23,371.91 after successfully resisting a motion to dismiss their action, in which each plaintiff is seeking damages of $200,000.  The defendant did not disclose the costs it incurred in bringing its motion.  In the absence of such evidence, the Court found it “difficult to find” that the plaintiffs’ lawyers over-prepared in resisting the motion or that the amount they claimed was disproportionate, under Rule 1.04(1.1), to what the motion required.

Judgment Released:  July 26, 2010  Link to Judgment

The action was brought under Rule 76 in March 2008.  A notice of dismissal was issued on July 28, 2008, and the action was dismissed by the Registrar on November 12, 2008, for failure to set the action down for trial within 150 days from filing of the first defence.  A motion to set aside the Registrar’s dismissal was brought in March 2010.  In setting the dismissal aside, the Court noted that “…since January 1, 2010, defended Rule 76 cases are now governed by Rule 48.14, which provides that dismissal orders are not to be made by the Registrar unless more than two years has passed from the filing of the first defence. This action has only recently passed that deadline. The proposition that Gagne [Gagne v. Toronto Police Services Board, [2008] O.J. No. 1474] and Miller Thomson [Miller Thomson Pouliot LLP v. 2088343 Ontario Ltd., [2009] O.J. No. 3750] establish that a stricter test applies to setting aside dismissal orders in Rule 76 actions must be tempered by the obvious policy change reflected in the January 1, 2010 Rules amendments.”