Judgment Released: June 8, 2010   Link to Judgment

On a refusals motion under the new Rules, the degree of connection between the question asked and the matters in issue is now relevance, rather than “semblance of relevance”. In most instances, there is no significant difference between the two standards of disclosure.  Regardless of whether the test is relevance or semblance thereof, the approach comes down to this: subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met – the question asked is relevant.

All of this, however, must be filtered through the lens of proportionality, such that what has been requested has to be considered within the context of the particular case, to ensure that it is not overly onerous when measured against what is at stake on a variety of levels. Thus, even if the response to the above question is “yes, the response could assist the trial judge in making a determination regarding a matter in issue,” a second question must be asked: “is there enough at stake, in terms of significance or money, to justify the time and expense of the disclosure sought?”

Judgment Released: July 15, 2010   Link to Judgment

The plaintiff sued for injuries sustained when his bike hit a metal stump on a strip of grass running between a sidewalk and the defendants’ house.  The court granted summary judgment to the defendant as there was no genuine issue that requires a trial.  The area where the plaintiff fell is not owned by the defendants and there was no evidence that the defendants were “occupiers” within the exceptions discussed in the relevant caselaw.  There was therefore no triable issue concerning liability of the Defendants as adjoining property owners.

Judgment Released: July 19, 2010   Link to Judgment

The plaintiff had won a judgment against the defendant’s company but could not collect on it when the defendant’s company declared bankruptcy and transferred assets to a new corporation one month after the judgment was granted.  The plaintiff sued the defendant for, among other things, oppression, and sought summary judgment.  The Court denied summary judgment because “the relatively complicated analysis of why [the defendant] did what he did and, in particular, why he put [his company] into bankruptcy cannot be resolved herein and cannot be adequately or fairly conducted via the confines of a “mini-trial” under new Rule 20.04(2.2).”

The Court also exercised its discretion under Rule 20.05(2)(o) and (p) and directed the defendant to pay into court an amount to cover the earlier judgment and the partial costs of the upcoming trial. The Court was concerned that further steps may be taken by the defendant to move assets out of reach and unfairly prejudice the plaintiff, who may well prevail at trial.

Judgment Released:  June 7, 2010   Link to Judgment

Where the defendants claimed to have spent $2,129.45 on their unsuccessful motion for summary judgment, it was disproportionate to then claim $9,546.28 in costs for successfully resisting the plaintiffs’ motion for leave to appeal the plaintiffs’ costs award on the summary-judgment motion. 

The principle of proportionality should not have led the plaintiffs to expect to pay a small fraction of $2,129.45 if they were unsuccessful in their motion for leave to appeal.  However, it was reasonable for the plaintiffs to expect that, because the defendants had spent a modest amount of time in their motion for summary judgment and the amount at stake in the motion for leave to appeal was small ($9,800), the costs would not exceed the cost of a standard motion of this kind (approximately $3,500).

Judgment Released: July 7, 2010   Link to Judgment

The plaintiffs moved to transfer a case from the Superior Court to Small Claims Court given the increase in the latter’s monetary jurisdiction from $10,000 to $25,000.  The Court rejected the motion because the defendant did not consent, and consent of all parties is required for transfer under s. 23(2) of the Courts of Justice Act.  In addition, in this case, the litigation had progressed substantially and the defendant would have been put through the unnecessary expense of those prior steps if the transfer was granted. 

The Court also held that both a Master and a Judge have the jurisdiction to hear a motion for transfer.

Judgment Released: June 28, 2010   Link to Judgment

The three plaintiffs sought total costs of $23,371.91 after successfully resisting a motion to dismiss their action, in which each plaintiff is seeking damages of $200,000.  The defendant did not disclose the costs it incurred in bringing its motion.  In the absence of such evidence, the Court found it “difficult to find” that the plaintiffs’ lawyers over-prepared in resisting the motion or that the amount they claimed was disproportionate, under Rule 1.04(1.1), to what the motion required.

Judgment Released:  July 26, 2010  Link to Judgment

The action was brought under Rule 76 in March 2008.  A notice of dismissal was issued on July 28, 2008, and the action was dismissed by the Registrar on November 12, 2008, for failure to set the action down for trial within 150 days from filing of the first defence.  A motion to set aside the Registrar’s dismissal was brought in March 2010.  In setting the dismissal aside, the Court noted that “…since January 1, 2010, defended Rule 76 cases are now governed by Rule 48.14, which provides that dismissal orders are not to be made by the Registrar unless more than two years has passed from the filing of the first defence. This action has only recently passed that deadline. The proposition that Gagne [Gagne v. Toronto Police Services Board, [2008] O.J. No. 1474] and Miller Thomson [Miller Thomson Pouliot LLP v. 2088343 Ontario Ltd., [2009] O.J. No. 3750] establish that a stricter test applies to setting aside dismissal orders in Rule 76 actions must be tempered by the obvious policy change reflected in the January 1, 2010 Rules amendments.”

Judgment Released: April 22, 2010  Link to Judgment

Five judges of the Court of Appeal heard an appeal of a Divisional Court decision which expanded the ability of plaintiffs to audio-record defence medical examinations.  In reaching its ruling, the Divisional Court had referred to the Osborne Report and the concerns raised therein about expert evidence in civil actions.  In the course of allowing the appeal, Armstrong, Laskin, and Sharpe JJ.A., noted that the Osborne Report did not recommend the routine recording of defence medical examinations.  Lang and Gillese, JJ.A., dissenting, noted on the same topic that while the Osborne Report did not address the recording of defence medicals as an issue one way or the other, “[i]n any event, the Osborne Report recommendations were not meant to be exhaustive.  In addition, the law is a continually evolving process.”

Judgment Released:  July 14,2010 Link to Judgment

The Court granted summary judgment in favour of the defendant on the basis that the applicable limitation period had expired.  The Court stated  that “[t]he objective and purpose of Rule 20 is to screen out claims that, in the opinion of the court, based on the evidence presented, ought not to proceed when they cannot survive a good hard look at the merits of the action.”  The Court acknowledged that it is not appropriate for a motions judge to resolve the case by way of summary judgment where questions of discoverability of the cause of action are central, but held that this principle only applies where there are material facts in dispute regarding the commencement of the limitation period.  The Court went on that where there is no dispute regarding the material facts, the requirements of Rule 20 have been satisfied, and the motions judge can make any findings necessary regarding the limitation issue. In this case, the Court found that the material facts were not in issue and the evidence, including that of the plaintiff, established when the plaintiff knew his cause of action arose and that the limitation period had expired before the plaintiff commenced his claim.

Judgment Released: June 1, 2010  Link to Judgment

In a wrongful dismissal action, the plaintiff brought a motion for summary judgment which was unopposed by the defendant employer.  In finding in favour of the plaintiff that reasonable notice in the circumstances (the plaintiff was employed by the defendant for 21 years) was 16 months and awarding wages in lieu of notice plus replacement cost of benefits, for a total award of $98,467.12, the Court noted that although the motion was unopposed by the defendant, the Court must still examine the entire record before it on a motion under Rule 20.