Judgment Released: February 22, 2010   Link to Judgment 

 A landlord sought partial summary judgment from a tenant in respect of rental arrears. There were other issues in dispute between the parties, however, the landlord alleged that there was no issue requiring a trial with respect to its claim for arrears as the tenant was in default within the meaning of the lease agreement.  The tenant claimed that there were several issues requiring a trial, including the claim for arrears as the tenant had brought a separate claim against the landlord, including in relation to the manner of the landlord’s termination of the lease.  The Court agreed and refused summary judgment, finding that the claim for arrears was central to the dispute between the parties and one of several genuine issues “…so intertwined that it would be wrong to grant the landlord summary judgment for rent…in isolation from the other issues that must be decided at a trial”.  The Court noted that in granting or refusing summary judgment, the court must also consider whether the circumstances are proper to deprive the other party of its right to a trial.

Judgment Released:  March 17, 2010  Link to Judgment

The Court considered the costs of an action where the trial had focused on the recovery of a $20,000 deposit. The action was litigated under the ordinary procedure due to a $125,000 counterclaim which was not seriously in issue at trial.  The plaintiffs sought $28,000 in costs and the defendants submitted that $9,000 was more in line with the proportionality requirement.   Taking into account the principle of proportionality, among other factors, the Court awarded $15,000.

Judgment Released: March 16, 2010   Link to Judgment

In deciding a summary judgment motion under the old Rule 20, heard in December 2009, the Court noted that the new Rule 20 “no doubt will render much of the former jurisprudence obsolete and will enable motions judges hearing summary judgment motions to act much more like trial judges, in appropriate cases, where the record permits.”

Judgment Released: February 17, 2010   Link to Judgment

In interpreting new Rule 31.06(1) on a refusals motion, the Court cited a passage from the Osborne Report reading in part that “the ‘semblance of relevance’ test ought to be replaced with a stricter test of ‘relevance.’  This step is needed to provide a clear signal to the profession that restraint should be exercised in the discovery process and…to ‘strengthen the objective that discovery be conducted with due regard to cost and efficiency.’ … This reform is not targeted at lawyers who make reasonable discovery requests, but rather at those who make excessive requests or otherwise abuse the discovery process.”  Here, the Court applied the ‘relevance’ test where the refusals took place in May 2008 but the motion was heard in January 2010.

Judgment Released: February 12, 2010   Link to Judgment

Note: this decision has been overruled in part [link to summary of subsequent decision]

The Court considered the principle of proportionality on a motion to amend a Statement of Defence where the plaintiff sought its costs arising from the amendment.  The amendment was sought after the defendants located and produced two key documents which they claimed necessitated the amendment.  The motion was brought after the matter had been rescheduled for trial and the plaintiffs alleged the amendment would require them to “start the lawsuit all over again”.  The Court weighed the ability to amend a pleading “at any stage” under Rule 26.01 with the new Rule 1.04(1.1) concerning proportionality and noted that the defendants’ cost of proceeding and being permitted to rely on their new defence, as opposed to possibly paying the anticipated cost of resolving the matter, might be “relatively economical”.  The Court allowed the amendment on condition of the plaintiff being paid $16,051.87 for its costs arising from the amendment.

Judgment Released: February 12, 2010   Link to Judgment

[Note: this decision has been affirmed, but the Court of Appeal held that "it is neither necessary nor appropriate in this case to address the effect of the recent amendments to the Rules of Civil Procedure regarding summary judgment procedures."  (link to summary of appellate decision)]

The Court held that the new Rule 20 did not change the test for summary judgment, namely, whether there is a genuine issue of material fact that requires a trial for its resolution.  However, the cases that restricted a judge in assessing credibility, weighing evidence or drawing factual inferences have been superseded.  Nonetheless, a judge taking those steps does so to determine whether a trial is required to resolve a genuine issue.  Although a summary judgment motion may, if the motions judge so directs, resemble a summary trial, the task of the motions judge is different.  The new Rule 20 provides the motions judge with more tools to determine if the summary judgment test is met.

Judgment Released: February 10, 2010   Link to Judgment

The Court held that, considering the goals of proportionality, defence counsel who co-operates with completing a trial scheduling form to allow the plaintiff to get its action to trial ought not to be strictly held to have “consented to the action being placed on a trial list” under Rule 48.04.  Here, the Court allowed the defendants’ motion for initial medical examinations of the plaintiff after the action was listed for trial.  The Court noted that having medical evidence from both sides available to the trial judge would help establish “equality of arms” between the parties.

Judgment Released: February 16, 2010   Link to Judgment

On a summary-judgment motion, the Court held that new Rules 20.04(2.1) and (2.2) permit cross-examination on affidavits to take place viva voce before the hearing judge. The Court found that procedure appropriate and expeditious here, where the motion was based on a signed release and where there were serious issues of credibility. The Court noted that the oral evidence could also be used, where appropriate, on a motion to be heard at the same time to strike a notice to set aside a Mareva order.

Judgment Released: February 12, 2010   Link to Judgment

The plaintiff sought summary judgment for $81,000 worth of unpaid haulage work. The defendant did not dispute the non-payment but claimed to have done $80,000 worth of unpaid work for the plaintiff and sought a set-off. The Court held that it could “exercise the powers enumerated in Rule 20.04(2)(a) if, and to the extent that, the fair exercise of those powers does not genuinely require a trial.” On the one point at issue not already admitted by the defendant—the nature of the parties’ relationship as to the $80,000 job—the Court found the defendant’s position implausible in part due to a lack of any supporting documentation and granted summary judgment.

Judgment Released: February 11, 2010   Link to Judgment

The plaintiffs claimed to be the beneficiaries of a Sikh temple and sought summary judgment for its sale. The Court noted that “virtually every thing referred to in the pleadings is in dispute” and considered the parties’ competing evidence as to ownership. The evidence included several affidavits, cross-examinations on affidavits, the form in which title to the temple was originally taken, minutes of meetings of the temple’s trustees, and versions of the temple’s constitution. The Court found “a very serious and genuine issue that needs to be tried with respect to whether it was ever intended initially, and if so, whether that initial intention has been superseded, to vest any proprietary interest in any of the original persons involved in the purchase of the property” and denied summary judgment, awarding the respondents $3,500 in costs.