Judgment Released: March 22, 2010  Link to Judgment

MCAP leased telephone equipment to Lind. Lind discovered that it had been defrauded as to the lease by its comptroller and had received equipment that was inferior than expected.  Lind stopped paying the lease and MCAP sought summary judgment for payments due.  The Court found genuine issues for trial as to (a) whether Lind received the equipment or whether the lease was fundamentally breached by MCAP’s failure to deliver it, and (b) if a fraud was committed, whether MCAP was wilfully blind as to its commission or was in the best position to know that it was occurring and take steps to prevent it.  The Court found that while amendments to Rule 20 broadened a motion judge’s jurisdiction to make findings of credibility, this was not a case in which it was in the interests of justice for it to exercise the powers under Rule 20.04(2.1).  The testimony of more than “a single witness or two” would be required to enable the Court to make the necessary findings of fact.  The broad scope of evidence required for determination of the issues precluded a mini-trial as the most appropriate procedure.

Judgment Released: March 22, 2010  Link to Judgment

The defendant solicitor sought summary judgment in a negligence action brought by the plaintiff client.  The Court stated that the new Rule 20 “…qualif[ies] somewhat the decision in the seminal case of Aguonie v. Galion Solid Waste Material Inc. (1998), 156 D.L.R. (4^th) 222 (C.A.).”  The Court’s task is to “assess the threshold issue of whether there is a genuine issue requiring a trial with respect to a claim or a defence” by taking a hard look at the merits of the action, assessing the evidence on both sides, and giving full weight to the fact that the onus in such a motion is always on the plaintiff.  The Court noted that “even more than under the old rule, the defendant must put his “best foot forward” or risk losing.”  The existence of Rule 20 shows that some means must exist for weeding out inadequate claims, even though the normal and ordinary expectation in a motion for summary judgment is that issues of disputed fact or law will proceed through to a trial.  Summary judgment was granted as the facts and documents suggested that at all times the solicitor met the applicable standard of care, fulfilling his professional obligations to the client, and the client offered no evidence to the contrary.

Judgment Released:  March 29, 2010   Link to Judgment

This appeal overturned the costs portion of a Master’s decision previously summarized on this blog (link to earlier summary).  The defendants had sought to amend their Statement of Defence after producing, late in the action, a key document that might dispose the action in their favour.  The Master granted the amendment upon the defendants paying the plaintiff certain costs on a substantial-indemnity scale.  On appeal, the Superior Court held that since the plaintiff as well as the defendants had long possessed the key document–so that each should have produced it earlier in the litigation–and since the non-disclosure was likely unintentional, the costs sanction ordered by the Master was in error.

Judgment Released:  March 25, 2010   Link to Judgment

In this wrongful dismissal case, the plaintiff sought partial summary judgment on his damages-in-lieu claim.  The parties agreed that a trial was necessary on other aspects of the claim such as entitlement to bonuses.  Under the new Rule 20, a judge has an expanded scope to make determinations of fact and findings of credibility, but the Court held that would not to be the preferable course of action here.  A trial would be in the interest of justice because there will be a trial on related issues in any event, which would overlap with matters at issue in the motion; the witnesses would overlap as well; and the plaintiff would not be seriously prejudiced or disadvantaged by proceeding with a trial.

Judgment Released: February 26, 2010   Link to Judgment

The Court considered the previous Rule 20.04 relating to disposition of a motion for summary judgment, and the decision in Bensusan v. Ali, [2009] O.J. No. 4861, to the effect that a motion for summary judgment is properly heard by a Master. The Court considered the amendments to Rule 20 and, in particular, the relief available under Rule 20.04(2.1), that in hearing a motion for summary judgment, if the determination is being made by a judge, the judge may exercise certain powers, i.e. weigh evidence, evaluate credibility of a deponent, and draw any reasonable inference from the evidence. The Court concluded that the new Rule 20 contemplates motions for summary judgment being heard by a judge, or in the appropriate circumstances adjourned by a master to be heard by a judge. Therefore, motions for summary judgment may now be brought before a judge at the option of the moving party.