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Wright v. United Parcel Service Canada Ltd., 2012 ONSC 1995 (Div. Ct.) (Rule 20 – summary judgment)

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.

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Wright v. United Parcel Service Canada Ltd., 2012 ONSC 1995 (Div. Ct.) (Rule 20 – summary judgment)

Update Regarding Rule 20 Motions for Summary Judgment

Today, June 21, 2011, and tomorrow, the Ontario Court of Appeal  (Chief Justice Winkler, Justices Laskin, Sharpe, Armstrong and Rouleau JJ.A.) will hear a combined appeal of, among others, the decisions in Combined Air Mechanical Services v. Flesch  (summarized on this blog), Mauldin, Fred et al v. Cassels Brock & Blackwell LLP  (summarized on this blog) and Bruno Appliance and Furniture v. Cassels Brock & Blackwell LLP  relating to summary judgment motions under Rule 20.   

The editors will continue to watch for the release of this decision from the Court of Appeal.

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Update Regarding Rule 20 Motions for Summary Judgment

Pirbhai v. Singh et al., 2011 ONSC 1366 (S.C.J.) (Rule 76 – simplified procedure, Rule 1.04 – proportionality)

Judgment Released:  March 2, 2011 Link to Judgment

The Court granted the plaintiff  judgment against the defendants in the sum of $33,465.77 as damages for breach of contract, deceit and misrepresentation regarding the purchase of a Lexus (described by the Court as “the most expensive Lexus motor vehicle in the world”) and the further sum of $50,000 for punitive damages. In awarding the plaintiff his costs fixed in the amount sought ($131,211.74, all-inclusive) and a further award of $2,000 for the costs hearing, the Court reasoned that a high costs award is appropriate in some cases to dissuade abuse of the justice system. The Court rejected the submission that the costs awarded should be proportionate to the amount recovered noting “I see nothing wrong with costs being awarded in an amount sufficiently high to discourage liars, fraudsters and cheats from seeking refuge in the legal system. A trial should be an unpleasant experience for such litigants.”  Further, the Court rejected the argument that the plaintiff should be penalized for not having brought the claim under Rule 76, reasoning that at the time the claim was brought, in July of 2000, the monetary threshold of Rule 76 was $25,000 and the plaintiff was thus free to bring the claim under the ordinary regime.  Further, the Court noted that since the statement of claim was amended mid-trial, once the fraud of the defendants had come to light, such an amendment would have been a difficult issue to try in the simplified procedure regime.

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Pirbhai v. Singh et al., 2011 ONSC 1366 (S.C.J.) (Rule 76 – simplified procedure, Rule 1.04 – proportionality)

Anjay Limited v. Hindu Maha Sabha (Mississauga), 2010 ONSC 7224 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: December 30, 2010  Link to Judgment

The plaintiff chargee moved for summary judgment to, among other things, foreclose the defendant’s equity in the subject property and obtain possession of the property.  The Court described the matter as “far from a straightforward commercial relationship”.  The Court acknowledged the amendments to Rule 20 but found that the amendments would not provide the Court with jurisdiction to “simply prefer and accept the evidence of the plaintiff”.  The defendants alleged the plaintiff had promised not to take certain steps to enforce their rights and the Court acknowledged that the defendants had an “arguable” defence of promissory estoppel.  A trial was required to appropriately determine, on additional evidence, what took place between the parties.

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Anjay Limited v. Hindu Maha Sabha (Mississauga), 2010 ONSC 7224 (S.C.J.) (Rule 20 – summary judgment)

Thirukumar v. Aravinthan et al., 2010 ONSC 4839 (S.C.J.) (Rule 20 – summary judgment)

 Judgment Released:  September 3, 2010  Link to Judgment

In an action relating to default under a mortgage, the Court dismissed a motion and cross-motion for summary judgment brought by the parties.  The Court noted that, despite its expanded powers to decide summary judgment motions, it remains the motion judge’s task to determine whether there is a genuine issue requiring a trial.  Noting that the test for summary judgment remains the same as the test set out by the Court in Irving Ungerman Ltd. v. Galanis, and agreeing with the analysis in Healey v. Lakeridge Health Corporation (summarized on this Blog), the Court stated that “the moving party must provide a level of proof that demonstrates that a trial is unnecessary to truly, fairly and justly resolve the issues”.  In dismissing both motions, the Court noted that the parties provided “diametrically opposed” versions of events and even with the power to weigh evidence and evaluate the credibility, the versions of events differed to such a significant degree that the “forensic machinery” of a trial would be required to resolve the issues.

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Thirukumar v. Aravinthan et al., 2010 ONSC 4839 (S.C.J.) (Rule 20 – summary judgment)

Girao v. Cunningham, 2010 ONSC 4607 (Master) (Rule 4.1.01 – duty of expert; Rule 53.05 – expert witnesses)

Judgment Released:  August 27, 2010  Link to Judgment

[Note: this decision is currently under appeal.]

In a motor-vehicle injury case, the plaintiff had undergone several medical examinations, but none to date by defence experts.  The defendant sought an order for three defence medicals; the plaintiff resisted any defence medicals, given the volume of already-existing medical reports. 

The Court granted the defendant’s motion, but noted that the new Rules regarding experts mean that the plaintiff was entitled to expect a different approach to defence medical examinations by doctors appointed by an insurer due to the duties now set out in Rule 4.1.01 and 53.03.  The Court quoted from the discussion on these Rules in Beasley v. Barrand, 2010 ONSC 2095, including that the Rules are aimed at “reining in the growing use of and reliance upon the evidence of experts at trial.”  The Court ordered counsel for the defendant to provide the Endorsement to their experts, who would have to acknowledge receiving and reading the Endorsement in their Acknowledgement of Expert’s Duty.

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Girao v. Cunningham, 2010 ONSC 4607 (Master) (Rule 4.1.01 – duty of expert; Rule 53.05 – expert witnesses)

Romspen Investment Corporation v. Woods, 2010 ONSC 30005 (Master) (Rule 31.06 – scope of examination)

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?”

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Romspen Investment Corporation v. Woods, 2010 ONSC 30005 (Master) (Rule 31.06 – scope of examination)

Dudgeon v. Canadian Career College, 2010 ONSC 3598 (Rule 20 – summary judgment)

Judgment Released: June 22, 2010   Link to Judgment

The Court considered a summary-judgment motion based on a limitations defence.  The Court held that, while a limitation dispute may not necessarily be a triable issue where it does not involve a determination regarding material facts in dispute, here there were disputed facts concerning when the injury was discovered and when it exceeded the de minimis range.  

The Court considered whether to hold a mini-trial under Rule 20.04(2.2).  The Court noted that the mini-trial’s purpose was discussed in the Osborne Report: “…there was a clear call during consultations for an expedited mechanism for the resolution of straightforward disputed facts, other than a full trial”, and that while Rule 20.05 already allowed for a speedy trial of an action where summary judgment was refused, that provision was not used with any regularity.  The Court held that, given the complex issues raised by the plaintiff, this was not a case for a mini-trial.

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Dudgeon v. Canadian Career College, 2010 ONSC 3598 (Rule 20 – summary judgment)

McCullough v. Riffert, 2010 ONSC 3891 (Rule 4.1.01 – duty of expert)

Judgment Released: July 8, 2010   Link to Judgment

The Court noted that new Rule 4.1.01, concerning an expert’s duty, resulted from the Osborne Report, in particular the Report’s recommendations to “establish that it is the duty of an expert to assist the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions for payment [and to require] the expert, in an expert report, to certify that he or she is aware of and understands this duty.”

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McCullough v. Riffert, 2010 ONSC 3891 (Rule 4.1.01 – duty of expert)

Bruce v. MacQuarie Premium Funding Inc., 2010 ONSC 2236 (CanLII) (Master) (Rule 1.04 – proportionality; Rule 39.02 – cross-examination on an affidavit)

Judgment Released: April 15, 2010  Link to Judgment

On a motion to compel re-attendance to answer questions refused on a cross-examination on an affidavit, the Court rejected the argument that the new Rules concerning proportionality and the scope of relevance in discovery narrow the scope of cross-examinations on an affidavit under Rule 39.02.  The Court noted that the new Rules encourage the court and counsel to take a reasonable and practical approach to procedural issues, particularly surrounding discovery and production, but do not eliminate Rule 39.02 and the surrounding case law establishing that the scope of cross-examination on an affidavit must be relevant to the issues raised by the motion and the affidavit material.  Proportionality is not a substitute for the test of relevance but it is the “boundary line” to keep the court and counsel considering issues of cost, time and prejudice. Proportionality is not intended as a shield to cross-examination on an affidavit.

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Bruce v. MacQuarie Premium Funding Inc., 2010 ONSC 2236 (CanLII) (Master) (Rule 1.04 – proportionality; Rule 39.02 – cross-examination on an affidavit)