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Lawless v. Anderson, 2010 ONSC 2723 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released:  May 13, 2010   Link to Judgment

In a medical malpractice action, the defendant brought a motion for summary judgment to dismiss the plaintiff’s claim as statute-barred, on the basis that the one-year limitation period prescribed in the Health Professions Procedural Code had not been complied with.  In granting the defendant’s motion, the Court stated that one consequence of the new powers exercisable by a motion judge under new Rule 20 is an enhanced ability to determine discoverability issues because the fact-finding restrictions under old Rule 20 had been removed, or at least “significantly loosened”.  The Court reviewed and assessed the plaintiff’s evidence on examination for discovery and determined that she knew the material facts relating to her claim within the one-year timeframe set out in the Health Professions Procedural Code, and that she further knew she had until the first anniversary of the surgery to commence a lawsuit.   The Court granted the motion, concluding that there was no genuine issue requiring a trial on the issue of discoverability, and accordingly the action was statute-barred.

Lawless v. Anderson, 2010 ONSC 2723 (S.C.J.) (Rule 20 – summary judgment)

Lees v. Willoughby, 2010 ONSC 2589 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released:  May 3, 2010   Link to Judgment

The Court dismissed the defendant’s motion for summary judgment on the basis of an expired limitation period.  When considering whether or not the discoverability rule applied in the circumstances of the case,  the Court noted that the expanded powers of assessment given to it under the new Rule 20.04(1) should be balanced against the cautious approach established in the case law.  The Court found that, based on the record before it, there were too many issues at play and there was no “bright line” moment of the plaintiff’s discovery of his alleged loss.  As such, the Court found that the issue of what the plaintiff knew of both his injury and the criteria for his cause of action should be tried.

Lees v. Willoughby, 2010 ONSC 2589 (S.C.J.) (Rule 20 – summary judgment)

Parker v. Casalese, 2010 ONSC 2866 (Div. Ct.) (Rule 20 – summary judgment)

Judgment Released: May 18, 2010   Link to Judgment

The Divisional Court granted leave to appeal a dismissal of a summary-judgment motion heard under the new Rules.  The summary-judgment motion judge’s ruling read in full as follows: “This motion is dismissed.  Submissions regarding costs may be exchanged & delivered to me within one month.  There are numerous conflicts in the evidence and I am satisfied that they can be justly resolved only after a trial.” The Divisional Court found good reason to doubt the correctness of the ruling in question as there were no appropriate reasons as to why the motion was dismissed. 

The Court noted that the application of the new Rule 20 was “very important to the legal profession.  It changes much of what was previously followed in summary judgment motions.  It gives the profession and judges much more guidance on what the results of such motions might look like, whether judgment is granted or not.  It allows the judge hearing the motion, if not granted, to set timetables, give directions on evidence and trial procedure”, noting that “none of this was followed by the Motions Judge hearing the motion for summary judgment.”

Note: this blog’s summary of the Divisional Court’s ruling on the merits, released October 21, 2010, is available here.

Parker v. Casalese, 2010 ONSC 2866 (Div. Ct.) (Rule 20 – summary judgment)

Beasley and Scott v. Barrand, 2010 ONSC 2095 (O.S.J.) (Rule 53.03 – expert witnesses)

Judgment Released: March 22, 2010 and April 7, 2010  Link to Judgment

In a personal injury action, the defendants sought to have three reports admitted pursuant to Rule 53.03. The reports were prepared in relation to the plaintiff’s claim for insurance benefits, years in advance of the amendments to the Rules. The Court found that even though an Expert’s Acknowledgment had subsequently been signed by each of the proposed experts, the forms appeared to have been executed without the author reading or obtaining any understanding of the content. The Court found that almost all of the preconditions of Rule 53.03(2.1) had been breached by the proposed reports. In denying the defendants’ application, the Court also noted that, to avoid the risk of misleading the jury, the plaintiff would be required to lead evidence respecting the statutory accident benefits system, the function of medical examiners retained in the context of accident benefit claims, and how those roles differ from doctors retained by parties to provide fair, objective and non-partisan opinions to the Court on the issues set out in the pleadings.

The Court discussed the rationale behind the new Rule 53.03, and the concerns that existed prior to the amendment, including the problem of “hired guns” and “opinions for sale”. The Court noted that the Rule has been amended to eliminate the practice of tendering evidence of questionable value, particularly when it has been created in another proceeding, at the insistence of a party not before the Court, to address matters beyond the scope of those at the pending trial. The Court acknowledged that historically, courts have allowed experts retained outside the four corners of the litigation to attend and give expert evidence at trial but stated that those cases predate the amendments to Rule 53, noting that while there may be cases where the court would relieve against non-compliance to ensure a fair adjudication of the issues, such experts should still comply with Rule 53.03.

Beasley and Scott v. Barrand, 2010 ONSC 2095 (O.S.J.) (Rule 53.03 – expert witnesses)

Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 15816 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: March 30, 2010  Link to Judgment

The plaintiff bank sought summary judgment for the defendant’s non-payment under a line of credit.  The defendant admitted the non-payment but claimed the bank induced his breach by, among other things, failing to cancel his line of credit when it should have, thereby allowing him to inadvertently draw it down.  The defendant claimed this conduct amounted to an agreement to delay the collection what he owed, which raised genuine issues requiring a trial.  The Court granted summary judgment as the defendant’s position was one which had not only no evidentiary support proffered by him, but which was not contractually possible under the governing documentation.  The Court held that it would have mattered little whether the test to be applied was the old test of “genuine issue for trial” or the new test of a “genuine issue requiring a trial” because in either case the defendant  failed to satisfy the test in the face of the plaintiff’s uncontradicted proof of its debt claim.  The Court also noted that the new Rule 20 would “happily” override prior jurisprudence that sought to prevent a judge from making evidentiary determinations and findings of credibility.

Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 15816 (S.C.J.) (Rule 20 – summary judgment)

Re Estate of Ruth Smith; Smith v. Rotstein, 2010 ONSC 2117 (S.C.J.) (Rule 20 – summary judgment)

Judgment released: April 15, 2010   Link to Judgment

Where a motion for summary judgment was prepared and argued before January 1, 2010, and reasons were released after that date only because of constraints on the Court’s calendar, the motion was decided under the old Rule 20.  To do otherwise would be unfair to the parties and require a further hearing on the effect of the new Rule 20.

Re Estate of Ruth Smith; Smith v. Rotstein, 2010 ONSC 2117 (S.C.J.) (Rule 20 – summary judgment)

J. & P. Leveque Bros. v. Ontario, 2010 ONSC 2312 (S.C.J.) (Rule 31.05.1 – time limit for discovery)

Judgment Released:   April 18, 2010  Link to Judgment

The plaintiff sought leave to exceed the seven-hour time limit on examinations for discovery under Rule 31.05.1(1). In granting leave, the Court held that cost-efficient access to justice, expeditious justice, and effective representation are factors to be balanced by all participants in the litigation process.  The Court held that Rule 31.05.1(1) permits seven hours of actual discovery on the record, not inclusive of breaks, adjournments or unreasonable interference by opposing counsel that unduly shortens the time available to the examining party. In addition, the Court emphasized the need for flexibility and held that where the time limit agreed upon in a discovery plan under Rule 29 has expired and counsel is at a crucial point in their examination, further time to a maximum of one hour would not be unreasonable.  The Court noted that in cases involving multiple parties, counsel must adhere to their agreement with respect to the total length of examinations, i.e. leeway of one hour past the allotted time for the examination of one party would not be unreasonable provided it is recovered from the same examining party’s examination of another party to the litigation.

J. & P. Leveque Bros. v. Ontario, 2010 ONSC 2312 (S.C.J.) (Rule 31.05.1 – time limit for discovery)