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Dentec Safety Specialists Inc. v. Degil Safety Products Inc., 2012 ONSC 6871 (Rule 76 – simplified procedure)

Judgment Released: December 4, 2012  Link to Judgment

In dealing with costs in this Simplified Procedure matter, and following a finding in favour of the Plaintiff for the tort of passing off with a damages award of $10,000, the Plaintiff sought costs in the amount of $40,452.22. The Court held the Plaintiff was entitled to its costs, because it was ultimately successful in the action. However, the Court held that the costs requested made no allowance for the fact that the action was a Simplified Procedure matter and the amount claimed for costs was disproportionate and excessive, relative to the damages ultimately awarded. The Court awarded $15,000 in costs to the Plaintiff, noting that that is an amount that the unsuccessful party could reasonably have expected to pay in this proceeding.

Dentec Safety Specialists Inc. v. Degil Safety Products Inc., 2012 ONSC 6871 (Rule 76 – simplified procedure)

2186080 Ontario Inc. v. 1009558 Ontario Limited, 2012 ONSC 2593 (Div. Ct.) (Rule 1.04 – proportionality)

Judgment Released: April 30, 2012  Link to Judgment

The Divisional Court denied leave to appeal the decision of a Superior Court decision where the Judge denied a motion for a further and better affidavit of documents. The Superior Court Justice denied the motion because, regardless of whether or not the original affidavit of documents was deficient, the Court found the moving party had all documents appearing in any way relevant.  In denying leave, the Divisional Court held that the Superior Court Justice’s order was, among other things, proportional under Rule 1.04(1.1).

2186080 Ontario Inc. v. 1009558 Ontario Limited, 2012 ONSC 2593 (Div. Ct.) (Rule 1.04 – proportionality)

George Weston Limited v. Domtar Inc.; 1318214 Ontario Limited v. Sobeys Capital Incorporated, 2012 ONSC 5001, (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: September 3, 2012  Link to Judgment 

Following the Ontario Court of Appeal’s decision in Combined Air Mechanical Services Inc. (summarized on this Blog), in two separate cases, the Court dealt with a motion to strike a pending motion for summary judgment.  In Combined Air, the Ontario Court of Appeal noted that a  party faced with a premature or inappropriate motion for summary judgment should have the option of moving to stay or dismiss the motion, where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery.  Justice David Brown has noted that, as a result of that comment by the Court in Combined Air, motions to strike motions for summary judgment have followed.

The decision in George Weston begins with a discussion of Combined Air and considerations relating to summary judgment motions.  Specifically, the new rule 20 was intended to eliminate unnecessary trials, not to eliminate all trials.  The decision reviewed the “hallmarks” of a case that, generally speaking, requires the full appreciation of the evidence through a trial, including: (a) a voluminous motion record; (b) evidence from a large number of witnesses; (c) multiple defendants against whom different theories of liability are advanced; (d) the need to make numerous findings of fact to decide the motion; (e) conflicting evidence on key issues requiring credibility determinations; and/or (f) the absence of reliable documentary yardsticks against which to assess credibility.

Further, cases where summary judgment may be appropriate include: (a) document-driven cases with limited testimonial evidence; (b) cases with limited contentious factual issues; (c) cases where the record can be supplemented at the motion judge’s discretion by hearing oral evidence on discrete issues; (d) limited and uncontentious documentary evidence; (e) limited number of witnesses; and/or (f) where no dispute exists respecting the governing legal principles.

The Court in George Weston encouraged counsel to approach the amendments to the Rules like a box of “Lego-like building blocks”, which should enable counsel to approach the construction of a trial in a wide variety of ways other than the traditional trial, including the use of evidence (in whole or part) by way of affidavit; the use of pre-hearing affidavits and examination transcripts; placing limits on the length of examinations of trial; submitting written opening statements; and the use of agreed statements of facts.

In respect of the motion to strike the pending motion for summary judgment in the George Weston case, the Court noted that the motion for summary judgment was the first step that had been taken since the pleadings in the action had closed, several years before.  A timetable was negotiated and consented to respecting the hearing of the motion and materials were filed by both parties in respect of the motion for summary judgment, including lengthy records and multiple expert reports, when the responding party then brought a motion to strike the motion for summary judgment.  While the Court had strong reservations about whether the case was an appropriate one for summary judgment, the Judge was not prepared to strike the motion at the expense of the time and resources that had been expended preparing for the motion and, in order to satisfy the requirements of the “full appreciation test”, the Court ordered a “modified trial plan” and timetable – which incorporated traditional examinations for discovery as well as use of the materials already prepared in contemplation of the summary judgment motion – in preparation for the final adjudication of the matter.

In respect of the Sobeys motion, the Court noted that the materials filed by the parties clearly indicated that a trial was required for the Court to have a full appreciation of the case. While the parties estimated a summary judgment motion would take three to four days, another three to four weeks was estimated to be required for the trial of the remaining issues.  The Court concluded that hearing the summary judgment motion would not result in “the just, most expeditious and least expensive determination” of the proceeding on the merits and thus refused to schedule the summary judgment motion requested. Instead the Court gave directions respecting the litigation going forward.

George Weston Limited v. Domtar Inc.; 1318214 Ontario Limited v. Sobeys Capital Incorporated, 2012 ONSC 5001, (S.C.J.) (Rule 20 – summary judgment)

Oakdale Kitchens Inc. v. Williams & Partners, 2011 ONSC 6417 (Div. Ct.) (Rule 30.02 – scope of documentay discovery)

Judgment Released: October 28, 2011   Link to Judgment

In determining the relevance of documents to be produced, a court may look to a forensic report on which the Statement of Claim is based. Such an approach would not mean that the scope of relevance was being determined by something other than the pleadings.

Oakdale Kitchens Inc. v. Williams & Partners, 2011 ONSC 6417 (Div. Ct.) (Rule 30.02 – scope of documentay discovery)

Carleton Condominium Corporation No. 396 v. Burdet, 2012 ONCA 234 (Rule 20 – summary judgment)

Judgment Released: April 13, 2012  Link to Judgment

The Court of Appeal upheld a grant of partial summary judgment sought by a condo corporation against a condo owner who had failed to pay condo fees. While there were several other disputes between the parties (which the trial judge ordered to be dealt with by a trial of issues rather than by summary judgment), there was no authority for the proposition that the requirement to pay condo fees under the Condominium Act was somehow suspended, and the Act explicitly provides that condo fees are payable regardless of any other disputes.

Carleton Condominium Corporation No. 396 v. Burdet, 2012 ONCA 234 (Rule 20 – summary judgment)

Shakur v. Mitchell Plastics, 2012 ONSC 1780 (S.C.J.) (Rule 57.05 – costs of action brought in wrong court)

Judgment Released: March 16, 2012   Link to Judgment

Rule 57.05(1), stating that a plaintiff in a Superior Court action who recovers less than the monetary jurisdiction of the Small Claims Court might not recover costs, applies even where the monetary jurisdiction of the Small Claims Court increases during the pendency of the action. A plaintiff should not recover costs if they continue a Superior Court action where it is clear that the action now comes within the monetary jurisdiction of the Small Claims Court following an increase in that jurisdiction.

Shakur v. Mitchell Plastics, 2012 ONSC 1780 (S.C.J.) (Rule 57.05 – costs of action brought in wrong court)

Laiken v. Carey, 2011 ONSC 7629 (Div. Ct.) (rule 20 – summary judgment)

Judgment Released: December 22, 2011   Link to Judgment

Romano v. D’Onofrio (2005), 77 O.R. (3d) 583 (C.A.), which holds that novel causes of action are best determined on a fully developed record at trial rather than on a summary judgment motion, remains good law after Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

Laiken v. Carey, 2011 ONSC 7629 (Div. Ct.) (rule 20 – summary judgment)

CIA Inspection Inc. v. Dan Lawrie Insurance Brokers Ltd., 2011 ONCA 706 (rule 1.04 – proportionality)

Judgement Released: November 7, 2011   Link to Judgment

In upholding an award of partial indemnity costs said to be “virtually the same” as a substantial indemnity award, the Court of Appeal held, among other things, that “while the trial judge did not specifically refer to R. 1.04(1), and while there may be some disproportionality in the amount of costs awarded, the trial judge’s reasons make it clear he had the proportionality principle in mind.”

CIA Inspection Inc. v. Dan Lawrie Insurance Brokers Ltd., 2011 ONCA 706 (rule 1.04 – proportionality)

Mehdi-Pour v. Minto Developments Inc. et al, 2011 ONSC 3571 (Divisional Court) (Rule 20 – summary judgment)

Judgment Released:  June 8, 2011  Link to Judgment

On an appeal to the Divisional Court from an order of a Master on a motion for summary judgment, where the Master dismissed the plaintiffs’ claim, the plaintiffs/appellants argued that the Master exceeded his jurisdiction under Rule 20.04 as the motion required a decision on a point of law respecting causation. The Divisional Court noted that while Rule 20.04 requires a Master who determines that the only genuine issue for trial is a question of law to adjourn the motion to a judge, the Rule does not mean that a Master cannot apply settled legal principles to the facts of the case, nor does it mean that a Master cannot find that there is no genuine question of law requiring trial. In dismissing the appeal, the Court concluded that the Master had the jurisdiction to apply the legal test for causation to the record before him in determining the motion for summary judgment.

The Court went on to note that the Master, when appropriate, can draw an adverse inference from the failure of a party to lead evidence on the motion.  In this case, the Master drew such an inference respecting, among other things, the plaintiffs’ failure to obtain an expert report responding to the expert report relied on by the defendants which directly challenged the basis of the plaintiffs’ claim and, after taking a hard look at the evidence, the Master concluded that the plaintiffs had not led appropriate evidence to support the elements of their claim at trial.

Mehdi-Pour v. Minto Developments Inc. et al, 2011 ONSC 3571 (Divisional Court) (Rule 20 – summary judgment)

Cusimano v. D.A.D. Construction Inc., 2011 ONSC 5707 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released:  September 29, 2011   Link to Judgment

On a motion for summary judgment, the parties agreed that the applicable test on a Rule 20 motion was that articulated by Pepall J. in Canadian Premier Life Insurance Co. v. Sears Canada Inc., [2010] O.J. No. 3987 (S.C.J.) at para. 70, as follows:

  • -The court must be satisfied that there is no genuine issue requiring a trial.
  • -To be satisfied, the court may weigh the evidence, evaluate the credibility of a deponent, draw any reasonable inference from the evidence, and order that oral evidence be presented.  By implication, these powers may involve the making of factual findings including a finding of a material fact.
  • -The motions judge should take a hard look at all of the evidence to determine whether there is a genuine issue requiring a trial.
  • -The burden of proof to establish that there is no genuine issue requiring a trial is on the moving party.
  • -The respondent may not rest solely on the allegations or denials in its pleading.
  • -Each side should put its best foot forward.
  • -The Rule should be interpreted broadly so as to achieve the objectives of reduction of delay and costs, access to justice, and flexibility.  At the same time, it must be acknowledged that elimination of trials is not an objective.  At its core, justice is the ultimate objective.  It is not to be sacrificed in the interests of speed and economy.  That said, Rule 20 clearly contemplates that justice, speed and economy are not mutually exclusive attributes.
Cusimano v. D.A.D. Construction Inc., 2011 ONSC 5707 (S.C.J.) (Rule 20 – summary judgment)