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Moosa v. Hill Property Management Group Inc., 2010 ONSC 13 (Master) (Rule 1.04 – proportionality)

Judgment Released: February 4, 2010   Link to Judgment

The Court considered the principle of proportionality in the context of a motion for security for costs.  The plaintiffs’ home had been lost to a drug-lab fire caused by a tenant who had leased the home from the defendant property manager who had been hired by the plaintiffs.  The Court canvassed the history of civil justice reform, including the Osborne Report and “Access to Justice”, a 1995 report by Lord Woolf.  The Court determined that its duty was to reduce delay and ensure progress towards an “equality of arms” between the parties.

The Court held that the requests for security, totalling more than $123,000, were excessive in the circumstances and did not make the justice system “more accessible and affordable for Ontarians”.  The defendant home insurer had a policy limit of $168,000.  On the basis of proportionality, the Court held that the plaintiffs should pay the same amount of security for costs to each defendant, despite the defendants’ differing requests, and reduced the security to be posted through to the pre-trial conference to $10,725, including GST, for each defendant.  The Court also considered the defendant property manager’s role in the plaintiffs’ deficiency of assets in Ontario (i.e. the plaintiffs’ only asset was the home that had been lost in the fire) and the fact that security was sought by two sets of counsel.

The Court noted that it did not “regard the mandate of the new Rules to be ‘more of the same’”.  The Court stated its hope that its Reasons would help the bench and bar in dealing with the new Rules to make the civil justice system more accessible and affordable.

Moosa v. Hill Property Management Group Inc., 2010 ONSC 13 (Master) (Rule 1.04 – proportionality)

Sharma v. Timminco Limited, 2010 ONSC 790 (SCJ) (Rule 29.1 – discovery plan; Rule 30.03 – affidavit of documents)

Judgment Released: February 3, 2010   Link to Judgment

The Court noted that Rule 30.03(1) no longer specifies the timing for the delivery of an Affidavit of Documents (the deadline was formerly 10 days after the close of pleadings). Instead, Rule 29.1 requires the parties to prepare a discovery plan which, under Rule 29.1.3, shall be agreed to before the earlier of (a) 60 days after the close of pleadings or such longer period as the parties may agree to and (b) attempting to obtain evidence.

In this proposed class action, the Court ordered production of insurance policies even though the pleadings were not yet closed and examinations for discovery were some distance away, which made the production request “technically…premature”.

Sharma v. Timminco Limited, 2010 ONSC 790 (SCJ) (Rule 29.1 – discovery plan; Rule 30.03 – affidavit of documents)

Jaff v. Cowan, 2010 CanLII 5546 (Rule 48.18 – action not on trial list; Rule 50 – pre-trial conference)

Judgment Released:  February 8, 2010  Link to Judgment

On a motion to set aside an administrative dismissal by a registrar following the plaintiff’s failure to file its settlement-conference brief in the time prescribed by Rule 77.14 (for the plaintiff, 10 days before), the Court noted that Ottawa’s local procedure respecting administrative dismissal was replaced on January 1, 2010 with the province-wide amendments to Rules 48 (status hearings – action not on trial list) and 50 (pre-trial conferences).  The Court noted that “under the new procedure, non compliance by a plaintiff with the pre-trial requirements of Rule 50 may result in an order striking a matter from the trial list and subsequently in a status notice and dismissal of the action by the registrar under Rules 48 and 24.”

Jaff v. Cowan, 2010 CanLII 5546 (Rule 48.18 – action not on trial list; Rule 50 – pre-trial conference)

Cimmaster v. Piccione, 2010 ONSC 846 (Rule 1.04 – proportionality)

Judgment Released:  February 4, 2010  Link to Judgment

An action brought under simplified procedure was tried under ordinary procedure due to the quantum of the defendant’s counterclaim. After a six-day trial, the plaintiff was awarded $9,196.86. The plaintiff sought costs of $67,446.38, having served a Rule 49 offer for $8,000. The Court awarded the plaintiff $60,000 in costs, noting that most of the trial was spent on the defendant’s unsuccessful counterclaim.

The Court rejected the argument that the costs award was disproportionate, noting that the principle of proportionality must be considered in fixing costs but should not result in reduced costs where the unsuccessful party has forced a long and expensive trial.  The Court stated that proportionality properly applies where a successful party has over-resourced a case having regard to what is at stake, but it is “cold comfort” to the successful party – who has spent thousands of dollars responding to a claim that is ultimately defeated – to be told that it should recover a reduced amount of costs based on the “notional concept of proportionality”.

Cimmaster v. Piccione, 2010 ONSC 846 (Rule 1.04 – proportionality)

Alymer Meat Packers Inc. v. Ontario, 2010 ONSC 649 (Rule 20 – summary judgment)

Judgment Released:  February 3, 2010  Link to Judgment

On a motion for directions to determine whether the old or new Rule 20 would apply to a motion for summary judgment filed in 2009 but heard in 2010, the Court held that the new Rule 20 would apply. The Court reasoned that the legislature intended the new Rules to have immediate application and Rules 1.04 and 2.03 do not give a judge discretion to apply the old Rules. Further, the Court rejected the argument that Rule 20 affected a substantive right of the parties.  The Court also rejected the argument that the respondent could rely on the old summary judgment test because it was referred to in the Notice of Motion.

Alymer Meat Packers Inc. v. Ontario, 2010 ONSC 649 (Rule 20 – summary judgment)

Rossi v. Vaughan (City) et al, 2010 ONSC 214 (Rule 1.04 – proportionality)

Judgment Released: January 7, 2010   Link to Judgment

On a motion for an order to conduct a forensic examination of the defendant’s business and personal computers, the Court ordered that a party is not entitled, as of right, to conduct such an examination absent evidence of nondisclosure or omission from production by the defendant, and upon a proper consideration of the issue of proportionality required by the new Rules.  The Court refused to compel a “costly” forensic examination of the computers in light of Rule 1.04’s requirement that the court consider proportionality, and where there was no evidence to suggest that the benefits of such an investigation would warrant the cost.  [Editors’ note: the Reasons do not disclose the cost of the forensic examination sought or the amount at issue in the action.]

Rossi v. Vaughan (City) et al, 2010 ONSC 214 (Rule 1.04 – proportionality)

BCP Bank Canada v. Silva and Silva, 2010 ONSC 392 (Rule 20 – summary judgment)

Judgment Released:  January 15, 2010  Link to Judgment

The Court granted summary judgment to a bank against a defaulting mortgagor for the deficiency suffered by the bank following a sale of the subject property. Under Rule 20.04(2), the court is required to grant judgment if it is satisfied that there is no genuine issue requiring a trial. In deciding the motion, a court can weigh evidence, evaluate the credibility of the deponent, and draw reasonable inferences. The Court weighed evidence concerning the calculation of mortgage interest and determined there was no genuine issue requiring a trial as to that issue. The Court also reviewed evidence as to the steps the bank took to list and sell the property, including the appraisals obtained by the bank and the offers to purchase it received. The Court concluded that the bank took reasonable steps to evaluate, list and sell the subject property and that its actions did not fall short of the required standard, concluding that the bank was entitled to judgment.

BCP Bank Canada v. Silva and Silva, 2010 ONSC 392 (Rule 20 – summary judgment)

Shankowsky-Day v. Isaac Estate, 2010 ONSC 121 (Rule 20 – summary judgment)

Judgment Released: January 8, 2010   Link to Judgment

The Court referred to the new Rule 20 and the powers of a motions judge under that Rule and also cited case law under the “old” rule and the principle that “…the bar on a motion for summary judgment is high. The respondent who seeks summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”".

The respondent did not meet its evidentiary burden of showing a genuine issue of fact for trial.  The only issue for the Court’s determination was one of law.  The Court resolved the legal issue in the moving party’s favour and granted summary judgment.

Shankowsky-Day v. Isaac Estate, 2010 ONSC 121 (Rule 20 – summary judgment)

Blenkhorn v. Mazzawi, 2010 ONSC 699 (Rule 1.04 – proportionality, Rule 29.2.03 – proportionality in discovery)

Judgment Released:  January 28, 2010   Link to Judgment

The Court discontinued the claims of two named plaintiffs who were FLA claimants, and the defendants sought to examine the two discontinued plaintiffs as non-parties. The Court considered Rule 1.04(1.1) (proportionality) and Rule 29.2.03 (proportionality in discovery) and refused the request, as it would only add time and expense to the litigation, and the information sought was readily available from the two remaining plaintiffs.

Blenkhorn v. Mazzawi, 2010 ONSC 699 (Rule 1.04 – proportionality, Rule 29.2.03 – proportionality in discovery)

Environmental Health Foundation v. MacGregor, 2010 ONSC 215 (Rule 31.05.1 – time limit for discovery)

Judgment Released:  January 8, 2010  Link to judgment

Two defendants requested security for costs for, among other things, six days of discovery. Based on Rule 31.05.1(1), the Court allowed security for costs for only 14 hours (two days) of discovery. If the parties consented or either party sought and obtained leave to conduct more than seven hours of examination, the defendants could then request a further order for security for costs for the additional hours or days of examination as a term of the order granting additional time for examinations.

Environmental Health Foundation v. MacGregor, 2010 ONSC 215 (Rule 31.05.1 – time limit for discovery)