Judgment Released:  July 6, 2010   Link to Judgment

On a motion for summary judgment, “the issue before the court is not how the matter should be resolved, but whether there is a triable issue.”

Here, the plaintiffs’ claim was for declarations nullifying property-standards orders issued by the defendant Town.   The Court granted summary judgment to the Town because the plaintiffs had not timely appealed the declarations, making the claim statute-barred.

Judgment Released:  July 13, 2010   Link to Judgment

Costs of $9,219.87 for an undertakings and refusals motion, where the claim totalled $3.4 million, were not disproportionate.  The unsuccessful party’s failure to submit a costs outline made it difficult for the Court to find that the successful parties over-prepared the motion or that the amount claimed was disproportionate.

Judgment Released: June 3, 2010   Link to Judgment

In a car-accident claim, the defendant drive-in movie theatre sought summary judgment dismissing the claim.  The sole evidence going to the theatre’s liability was an OPP report stating that the movie screen was a “possible distraction” for drivers near the scene of the accident. The Court granted summary judgment on the basis that the plaintiff had no evidence of actual, as opposed to potential, impairment of vision due to the screen.

In considering new Rule 20, the Court noted, among other things, that the Rule plays an important role in the promotion of judicial economy and litigation efficiency by preventing unmeritorious cases or issues from proceeding to trial, and that the the clear legislative intent of the Rules’ amendments is to allow the court to dispose of issues or cases early unless trial is genuinely necessary.

Judgment Released:  April 27, 2010   Link to Judgment

The applicant had obtained judgment for the return of a $250,000 deposit from the respondent and now sought $103,023 in costs. The applicant had made an offer to settle, entitling it to substantial indemnity costs.  The respondent submitted that the quantum sought exceeded substantial indemnity.

 In considering the principle of proportionality, which requires that orders be proportionate to the importance and complexity of the issues and to the amount involved in the proceeding, and considering the discretionary factors for determining costs under Rule 57.01(1), the Court held that the importance of the issues exceeded the amount of the deposit in issue, given the respondent’s stated intention to pursue a multi-million dollar action for breach of contract. The allegations against the applicant included dishonesty, bad faith and deliberate misconduct. Further, the respondent had conducted three non-party examinations and submitted an expert report that required response. Accordingly, the Court awarded $80,000 in costs.

Judgment Released:  February 26, 2010   Link to Judgment

This was a motion in a CCAA matter seeking the return of a deposit in an agreement to purchase property.  Although the motion was for a “final decision”, not for summary judgment, the Court drew an analogy to Rule 20.04(2.2) and held that it would determine whether a trial of an issue was required by weighing the evidence, evaluating credibility, and drawing reasonable inferences from the evidence “unless it is in the interests of justice for such powers to be exercised only at a trial.”  The Court granted the motion, finding that a trial of an issue was not necessary and the evidence as to the underlying facts was “clear, reliable and consistent”.

Judgment Released: June 24, 2010   Link to Judgment

The Court noted that “the recent amendments to the summary judgment rule makes it clear that the intent of the amendments is to allow more latitude to summary judgment judges to make final determinations where a trial is not necessary.”  Here, the Court granted summary judgment to a vendor for sales taxes owing by the purchaser where the evidence was “overwhelming” that their contract was to be exclusive of taxes, that that was the intention of both parties, and there was “no credible evidence that the defendant could have concluded anything different.”

Judgment Released: June 30, 2010   Link to Judgment

The Court held that this summary judgment motion, to enforce a personal indemnity for non-payment of a commercial lease, was “a classic case for the application of the more vigorous procedure available” under the new Rule 20, and that while “some of the[] limp defences may have survived under the old rule” they were all rejected (but for an undisputed set-off) on the basis of the Court’s “new ability to assess the credibility of the supporting material.”

Among other holdings, the Court rejected the defence that the plaintiff’s agent “undertook to never take action in case of default” against the respondents during the oral negotiations over the lease and that the respondents believed they would not be held personally accountable. The Court noted that allowing tenants to walk away from rent obligations “does not make sense” and “flies in the face” of the parol evidence rule. The Court also rejected the defence that the respondents never intended to become indemnifiers despite signing indemnifications, because a claim of non est factum requires due care by the party raising the defence yet the respondents conceded they had not read the documents with sufficient care.  The Court also rejected the defence that the plaintiff acquiesced in the surrender of the lease when the defendants cooperated with certain requests from the plaintiff; the respondents’ claimed lack of receipt or recall of correspondence from the plaintiff on the issue was held to be “weak and unconvincing.”

Judgment Released: June 22, 2010   Link to Judgment

The Court considered a summary-judgment motion based on a limitations defence.  The Court held that, while a limitation dispute may not necessarily be a triable issue where it does not involve a determination regarding material facts in dispute, here there were disputed facts concerning when the injury was discovered and when it exceeded the de minimis range.  

The Court considered whether to hold a mini-trial under Rule 20.04(2.2).  The Court noted that the mini-trial’s purpose was discussed in the Osborne Report: “…there was a clear call during consultations for an expedited mechanism for the resolution of straightforward disputed facts, other than a full trial”, and that while Rule 20.05 already allowed for a speedy trial of an action where summary judgment was refused, that provision was not used with any regularity.  The Court held that, given the complex issues raised by the plaintiff, this was not a case for a mini-trial.

Judgment Released: July 8, 2010   Link to Judgment

The Court noted that new Rule 4.1.01, concerning an expert’s duty, resulted from the Osborne Report, in particular the Report’s recommendations to “establish that it is the duty of an expert to assist the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions for payment [and to require] the expert, in an expert report, to certify that he or she is aware of and understands this duty.”

Judgment Released:  June 23, 2010   Link to Judgment

The Court emphasized that the powers under new Rule 20 to weigh evidence, evaluate credibility, and draw inferences are permissive, not mandatory.