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Re Estate Daniel O’Donnell, 2010 ONSC 2276 (S.C.J.) (Rule 1.04(1.1) – proportionality)

Judgment Released:  April 17, 2010  Link to Judgment

In advocating a “common sense” method for correcting clerical errors in the date of death in a Certificate of Appointment, the Court held that the principle of common sense is expressly articulated in the new Rule 1.04(1.1) by providing that a court “shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”.   Considering the principle of proportionality in Rule 1.04(1.1) and in balancing the nature of the issue to be corrected, the status of the proceeding and the amount in issue against the importance of integrity of the Certificate of Appointment system, the Court held that filing an affidavit would be sufficient to direct the Estates Registrar to correct the Certificate, without the need for a motion.

Re Estate Daniel O’Donnell, 2010 ONSC 2276 (S.C.J.) (Rule 1.04(1.1) – proportionality)

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.

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

Brand Name Marketing v. Rogers, 2010 ONSC 1159 (Master) (Rule 1.04 – proportionality, 31.06 – scope of examination)

Judgment Released: March 10, 2010  Link to Judgment

The Court concurred with Wood v. 156 Kingston Residences Corp., 2010 ONSC 1250 (Master), that where an examination for discovery took place under the old Rules, the old “semblance of relevance” test should apply on a refusals motion brought after January 1, 2010.  The Court noted that “equality of arms”, as a component of proportionality, and practicality dictate that the same discovery standard should apply to both parties.  The Court further noted that while the tests of the new Rules should apply as much as possible, a reopening of matters which occurred in the old Rules environment should not be invited.

Brand Name Marketing v. Rogers, 2010 ONSC 1159 (Master) (Rule 1.04 – proportionality, 31.06 – scope of examination)

Hino Motors Canada v. Kell, 2010 ONSC 1329 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: March 23, 2010   Link to Judgment

The Court dismissed the plaintiff’s summary-judgment motion relating to monies owed from the sale of trucks as there were genuine issues requiring a trial.  The action had been ordered tried together with another expedited action where the same monies were at issue.  In a successful partial summary-judgment motion in the other action as to the monies, the motions judge stayed execution pending a resolution of all claims between the parties.  The facts relating to both summary-judgment motions were integral to the facts the trial judge will address in resolving the outstanding issues.  Rule 20 is meant to increase efficiency but it was inefficient for three different judges to deal with overlapping facts. Consequently, the Court did not consider it helpful to specify what material facts were not in dispute or to specifically define the issues to be tried.

Hino Motors Canada v. Kell, 2010 ONSC 1329 (S.C.J.) (Rule 20 – summary judgment)

Combined Air v. Flesch, 2010 ONSC 1729 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: April 8, 2010   Link to Judgment

The defendants sought summary judgment against the plaintiff, their former employer, to dismiss a claim for breach of restrictive covenants.  In hearing the motion, the Court ordered a “mini-trial” under Rule 20.04(2.2).  The Court invited the defendants to call a witness to shed light on evidence going to whether the defendant’s new employer was in fact in competition with the defendant.  The witness appeared and testified.  In granting the summary-judgment motion, the Court noted that it had the viva voce evidence of that witness before it to rely on.

Combined Air v. Flesch, 2010 ONSC 1729 (S.C.J.) (Rule 20 – summary judgment)