Judgment Released: December 4, 2012  Link to Judgment

In a solicitor’s negligence claim seeking up to $400,000 in damages, the plaintiff brought a motion pursuant to Rule 31.05.1 seeking leave of the Court to continue his examination of the defendant solicitor for an additional three to five hours. The defendant’s prior examinations had taken place over three separate days in 2009, 2011 and 2012. The Court considered the factors on the motion to be: the amount in issue; the complexity of the issues; the amount of time that ought reasonably to be required; and the financial position of each party. The Court also considered other reasons that should be taken into account in the interest of justice. The Court concluded that a further brief examination was required and ordered an additional of 2.5 hours of discovery, for a total of approximately 11 hours, rather than the standard 7 hours allowed under the Rules. The Court awarded partial costs in the amount of $3,000.00, inclusive of HST and disbursements in favour of the plaintiff.

Judgment Released: May 8, 2012  Link to Judgment

The Ontario Court of Appeal dealt with an appeal where summary judgment had been granted by the Court below, prior to the release of Combined Air.  The OCA noted that the Court in Combined Air indicated that the “full appreciation” test would likely be met in cases that are largely driven by documents, in which testimonial evidence and contentious factual issues are limited, and the test is unlikely to be met in cases in which there are multiple factual issues involving conflicting evidence from a number of witnesses and a voluminous evidentiary record. 

Nevertheless, the OCA upheld the decision of the motion judge in this case, finding that, despite the voluminous evidentiary record and conflicting evidence from a number of witnesses, the Combined Air formulation of the summary judgment test was met. The OCA found that the record enabled the application judge to have a “full appreciation” of the evidence and issues required to make the findings he did.  The OCA noted that the voluminous evidentiary record in this case was due to the complexity of the transactions and the relationships among the parties however, relatively few documents bear on the one issue on which the case turns: whether one of the defendants was retained by the plaintiff as its agent to help the plaintiff purchase the property in question.  The OCA went on to note that despite the conflicting evidence from a number of witnesses, most of the points of disagreement were minor or about issues that were not material.  Further, while the motion judge was aware that credibility findings should not be made on a summary judgment motion (which he avoided), he was still able decide that a trial was not required to determine the central issue in dispute by concluding that the testimony in favour of the plaintiff’s position would be insufficient in law to establish the agency relationship asserted by the plaintiff “given the strength of the documentary evidence, together with the evidentiary record as a whole, in contradicting [the plaintiff's witnesses] in their assertion.” The OCA concluded that this was a determination the motion judge was entitled to make; in the face of the facts established by the documentary and other evidence, it was open to the motion judge to conclude that the plaintiff could not obtain judgment in its favour at trial as the plaintiff simply could not fulfill its burden of proof.

Judgment Released: March 29, 2011  Link to Judgment

A justice of the Superior Court certified a class action and granted partial summary judgment to the plaintiffs, on the same day. The defendant appealed both decisions. The defendant asked a justice of the Divisional Court to adjourn its motion for leave to appeal the certification until its appeal on summary judgment had been decided. The Divisional Court justice refused the request, holding that certification matters come first, since certification frames the proceedings, and without the certification order there can be no summary judgment.

Judgment Released: April 17, 2012   Link to Judgment

It remains an open question whether the Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, applies to summary judgment motions under the Family Law Rules.

Judgment Released: March 29, 2012   Link to Judgment

Under Rule 20, the determination of whether there is a “genuine issue requiring a trial” is a legal determination and the standard of review is correctness.  This is also the case on a question of mixed fact and law where it is said that the motion judge applied an incorrect standard, failed to consider a required element of a legal test, or any similar error in principle.  If the motion judge correctly applied the legal test, any factual determinations made by the motion judge will be reviewed on the deferential standard of palpable and overriding error.

Judgment Released: December 2, 2011  Link to Judgment

Rule 4.1 confirms that an expert’s duty of impartiality prevails over any duty owed to the parties who retained the expert. The new procedures in Rule 53.03(2.1) requiring the execution of an Acknowledgement of Expert’s Duty applies only to trials, not to class action certification motions; however, “one could make the case” that it would be good practice on a certification motion to include the matters set out in Rule 53.03(2.1) in an expert’s report.

Judgment Released: February 22, 2012   Link to Judgment

The test for dismissal under the status hearing provisions of Rule 48.14 is that the plaintiff bears the burden of demonstrating that there is an acceptable explanation for litigation delay and that, if the action is allowed to proceed, the defendant will suffer no non-compensable prejudice. The focus of the inquiry is the plaintiff’s conduct, but the conduct of the respondent in the litigation can have a bearing on the assessment of the reason for the delay and on the exercise of the court’s discretion under Rule 48.13. Rule 24, which addresses motions to dismiss for delay, has no bearing on Rule 48.14 status hearings. 

A party seeking to dismiss an action at a Rule 48.14 status hearing does not usually present affidavit evidence. The usual practice is for the initial status hearing to proceed on the basis of oral submissions. If the judicial officer conducting the status hearing forms the view, on the basis of the oral submissions, that the action is vulnerable dismissal for delay, ordinarily a full hearing will be ordered on affidavit evidence.

Judgment Released: December 5, 2011   Link to Judgment

The Court of Appeal has now released its omnibus decision on the new summary-judgment rule.

Three types of cases are amenable to summary judgment:

(1) cases where the parties agree to summary judgment;

(2) cases where the claims or defences are without merit; and

(3) cases where the interests of justice do not “require” that the issues be resolved at a trial.

The third category is a result of the new Rule 20 and its change in the text of the rule from “genuine issue for trial” to “genuine issue requiring a trial”. The Court introduced the “full appreciation test”, which asks whether  “the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”  The “full appreciation test” will be used to determine whether, in the interests of justice, the issues raised in an action require the unique forensic machinery of a trial, or whether instead, the issues can be appropriately resolved with summary judgment, using the motion judge’s new expanded powers under rule 20.04(2.1).

The Court held that in “deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.”

The Court also observed that “it is not necessary for a motion judge to try to categorize the type of case in question. In particular, the latter two classes of cases we described are not to be viewed as discrete compartments. For example, a statement of claim may include a cause of action that the motion judge finds has no chance of success with or without using the powers in rule 20.04(2.1). And the same claim may assert another cause of action that the motion judge is satisfied raises issues that can safely be decided using the rule 20.04(2.1) powers because the full appreciation test is met. The important element of the analysis under the amended Rule 20 is that, before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.“

Judgment Released: July 12, 2011  Link to Judgment  

In the context of an employment dispute, the plaintiff moved for partial summary judgment in relation to unpaid wages and termination pay allegedly owing to him by the defendant employer.  The motions judge dismissed the plaintiff’s motion for summary judgment finding that there were facts in dispute and a genuine issue for trial.  The plaintiff appealed a portion of the dismissal of the motion on the basis that there was no genuine issue for trial respecting his claim for unpaid wages.  

In dismissing this aspect of the appeal, the Court of Appeal found that the motions judge correctly noted that there was a genuine issue for trial as the record before the Court established that many of the material facts concerning the question of the plaintiff’s unpaid wages were disputed, and that the resolution of this core issue will require credibility-based findings based on viva voce evidence.

The plaintiff’s further basis for appeal of the dismissal of the motion for summary judgment was that it was open to the motions judge to order or conduct the trial of an issue to resolve the unpaid wages claim, and the plaintiff alleged that the failure to do so constitutes a reversible error.  The Court of Appeal rejected that assertion, noting that the decision of whether to order or conduct the trial of an issue is a discretionary one and, in the circumstances of the case and given the allegations of the parties, it was within the motions judge’s discretion to decline to direct or conduct the trial of an issue on the unpaid wages claim.  Further, the motion judge’s decision in that regard attracts deference from the Court of Appeal.

Judgment Released: October 4, 2011  Link to Judgment

On a refusals motion, the Court referred to Rule 29.2.03 (proportionality in discovery) and the principles articulated by Justice Perell in Ontario v. Rothmans Inc., including that while under the former case law the Rules provided for questions “relating to any matter in issue” and the scope of discovery was defined with wide latitude, the amendment to the Rule from “relating to any matter in issue” to “relevant to any matter in issue,” suggests a modest narrowing of the scope of examinations for discovery.