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Mark v. Bhangari, 2010 ONSC 4638 (S.C.J.) (Rule 20.06 – Costs on Summary Judgment)

Judgment Released: August 25, 2010   Link to Judgment

The Defendants’ motion for summary judgment arose in a personal injury claim by the Plaintiff, who injured his wrist on property allegedly owned by the Defendants, and claimed they were therefore liable under the Occupiers Liability Act.  Following examinations for discovery, the parties obtained a survey of the property which showed the Defendants were not the owners of the property in question.  The Defendants’ brought a motion for summary judgment, relying on the survey, which was successful.  The Court then dealt with the issue of costs.  As the successful parties, the Defendants sought $37,317.67 in costs, on a partial indemnity basis.

The Court noted that it has broad discretion when determining the issue of costs: “Prior to January 2010, the former rule indicated that if a party moved for summary judgment unsuccessfully, the general outcome was that substantial indemnity costs would be ordered against it.  The new rule 20.06 states that the court may fix costs of a motion for summary judgment on a substantial indemnity basis if the court is of the view that a party acted unreasonably by making or responding to the motion or if a party acted in bad faith.”  In this case, the Court did not view the conduct of the Plaintiff as being unreasonable or in bad faith, although the Court noted that “After it became clear that the area was, in fact, owned by [another party] which is not a party to the action, the solicitor for the plaintiff ought to have given serious consideration to the chances of success of the action against [the Defendants].  This did not occur and legal fees were expended in drafting the Summary Judgment motion materials.”  Bearing in mind what the unsuccessful Plaintiff might reasonably have expected to pay, should he be unsuccessful, and considering the relevant factors set out in Rule 57.01, the Court awarded the Defendants costs on a partial indemnity basis of $25,000.

Mark v. Bhangari, 2010 ONSC 4638 (S.C.J.) (Rule 20.06 – Costs on Summary Judgment)

Ravenda v. 1372708 Ontario Inc., 2010 ONSC 4559 (S.C.J.) (Rule 29.1 – Discovery Plan)

Judgment Released: August 25, 2010 Link to Judgment

Both parties brought motions for various requests for relief including amendments to pleadings, production of documents, examinations for discovery, and the imposition of a Discovery Plan. The parties had exchanged draft Discovery Plans prior to the motion, but could not reach an agreement.   Ravenda took the position that the Court did not have jurisdiction to order a Discovery Plan pursuant to Rule 29.1 which, the Court admitted, did not specifically give any authority to a Court to impose a Discovery Plan.  The Court found however, that “…despite this obvious oversight in Rule 29.1, this court clearly has the jurisdiction to make orders regarding all of the matters that could possibly be included in a Discovery Plan. That jurisdiction is contained in other parts of the Rules of Civil Procedure, including but not limited to Rule 30, 31, 32, 33 and 35.  Therefore, at the very least, the authority to make an order on any matter that might be included in a Discovery Plan is derived from these other rules.”  The Court went on, citing TELUS Communications Company v. Sharp, 2010 ONSC 2878, where Master Short found that the Court had the authority to impose a Discovery Plan upon an unwilling party by reason of Rule 1.04.  The Court accepted the logic in TELUS and noted that “The most efficient manner to deal with a situation in which the parties cannot agree on a Discovery Plan is for the court to impose upon the parties a comprehensive Discovery Plan that contains a complete set of all procedural orders that apply to the action.”   The form of Discovery Plan imposed by the Court is attached as Schedule A to the Reasons.

Ravenda v. 1372708 Ontario Inc., 2010 ONSC 4559 (S.C.J.) (Rule 29.1 – Discovery Plan)

Jagosky v. Corporation of the Town of Huntsville, 2010 ONSC 4590 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released:  August 20, 2010  Link to Judgment

The Town of Huntsville brought a motion for summary judgment on the basis that the Plaintiffs’ claims did not present a genuine issue for trial because, among other things, they were statute barred under the Limitations Act, 2002.  In granting the motion and dismissing the Plaintiffs’ claims the Court noted that the new amended summary judgment rule expressly overrules jurisprudence that prevented a motions judge from making evidentiary determinations and permits a more meaningful review of the paper record.  Further, in discussing the burdens on each party on a summary judgment motion, the Court further noted that  “Rule 20.02(2) provides that, in response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.”  The Court went on to note that “The burdens have not changed: the moving party must show that the claim does not raise a genuine issue requiring a trial and the responding party must put forward evidence in support of its position.  A responding party must still “lead trump or risk losing” and “put its best foot forward” by setting out specific facts and coherent evidence that is organized to show a genuine issue.”

Jagosky v. Corporation of the Town of Huntsville, 2010 ONSC 4590 (S.C.J.) (Rule 20 – summary judgment)

Morrison et al v. Hooper and v. Young et al, 2010 ONSC 4394 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released:   August 12, 2010  Link to Judgment

The Court granted summary judgment, dismissing a counterclaim in a case arising from a motor vehicle accident as having no genuine issue requiring a trial.  The counterclaim alleged that the children of the Plaintiff, who was living independently at the time of the accident, had a duty of care to the Defendants/Plaintiffs by counterclaim.  The Court adopted the reasoning in Healey v. Lakeridge Health Corporation, (posted on this Blog) that the changed wording of the new Rule 20 was to provide a more permissive test for when summary judgment should be granted.  The Court cited the statement in Healey that in assessing whether there was a genuine issue requiring a trial, the Court must consider whether a trial is genuinely necessary, “not because it is to be given some preferred status in the administration of justice, but because the issues to be resolved cannot be truthfully, fairly and justly be resolved without the forensic machinery of a trial”.

Morrison et al v. Hooper and v. Young et al, 2010 ONSC 4394 (S.C.J.) (Rule 20 – summary judgment)

Georgian Windpower Corporation and Nanticoke 80WP Inc. v. Stelco Inc., 2010 ONSC 4442 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released:    August 12, 2010  Link to Judgment

Stelco brought a motion for summary judgment which, among other things, the Plaintiffs moved to strike on the basis that Stelco’s proposed use of the summary judgment rule to reduce the  issues for trial was an improper use of Rule 20.  In dismissing the Plaintiffs’ motion, the Court found that the use of Rule 20 to reduce the issues for trial was directly contemplated by the new Rules, and the expanded powers given to the Judge hearing the motion for summary judgment have the intention of weeding out cases not requiring a trial, or narrowing which issues actually proceed to trial.  

The Plaintiffs also requested an order directing a “mini-trial” with oral evidence on the issue of liability.  In dismissing that motion, the Court noted that Rule 20.04 provides that the judge who hears the motion for summary judgment may make an order respecting the presentation of oral evidence, but that it would be premature to direct such evidence before the motion for summary judgment was heard.

Georgian Windpower Corporation and Nanticoke 80WP Inc. v. Stelco Inc., 2010 ONSC 4442 (S.C.J.) (Rule 20 – summary judgment)

Osprey Capital Partners v. Gennium Pharma Inc., 2010 ONSC 2338 (Master) (Rule 31.05.1 – time limit for discovery)

Judgment Released: April 26, 2010   Link to Judgment

The plaintiff brought a motion under Rule 31.05.1(1) for leave to examine each of the three defendants for seven hours, as opposed to the new general rule of seven hours for all defendants collectively.  The Court considered the factors for granting such leave set out in Rule 31.05.1(2).  Among other findings, the Court noted that (a) in determining the amount of money at issue, the court should review the pleadings to determine if the damages have a reasonable bearing to the impugned conduct; (b) in determining the complexity of the issues, the court must take a hard look at the pleadings and other evidence to determine what is in issue, and that in many cases the Court can make that determination without the moving party providing evidence of complexity; and (c) the factor of the amount of time reasonably required for discovery is closely related to the factors of the complexity of the issues and the amount of money in issue. 

Further, the Court noted that counsel need not first attempt to complete discovery before seeking additional time; that counsel are not required, in a discovery plan, to advise adverse counsel of key documents and issues; and that the fact that there are multiple parties to be examined (whether multiple plaintiffs sue one defendant or one plaintiff sues multiple defendants) is not per se a factor which favours additional discovery time.  Here, the complexity of the issues resulted in the plaintiff being granted the order sought.

Osprey Capital Partners v. Gennium Pharma Inc., 2010 ONSC 2338 (Master) (Rule 31.05.1 – time limit for discovery)

Daimler Chrysler v. 1377738 Ontario Inc., 2010 ONSC 931 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: February 9, 2010   Link to Judgment

Rule 20.06(1), addressing costs awards under the new summary-judgment rules, states that “[w]here, on a motion for summary judgment, the moving party obtains no relief, the court shall fix the opposite party’s costs of the motion on a substantial indemnity basis and order the moving party to pay them forthwith unless the court is satisfied that the making of the motion, although unsuccessful, was nevertheless reasonable.”  This new provision “allows more latitude then before.”

Daimler Chrysler v. 1377738 Ontario Inc., 2010 ONSC 931 (S.C.J.) (Rule 20 – summary judgment)

SIPGP No.1 Inc. v. Eastern Construction Company Limited, 2010 ONSC 2695 (Master) (Rule 1.04 – proportionality)

Judgment Released: May 7, 2010   Link to Judgment

A costs order under section 86 of the Construction Lien Act is made in the court’s discretion and may be made on a substantial indemnity basis subject to section 86(2), stating that the costs allowed to a party shall not exceed what would have been incurred had that party taken the least expensive course.  Under section 67(3) of the Construction Lien Act, the Rules apply to Construction Lien Act proceedings except where inconsistent.  The Court held that Rule 1.04(1.1), to the extent that it is mandatory, is inconsistent with and impinges on the discretion granted in section 86.  The Court held that proportionality is nonetheless a non-binding factor which can be considered in exercising its discretion as to costs, similar to the limitation set out in section 86(2).  The Court stated that costs should be proportionate to the importance and complexity of the issues and the amounts involved.

SIPGP No.1 Inc. v. Eastern Construction Company Limited, 2010 ONSC 2695 (Master) (Rule 1.04 – proportionality)

Healey v. Lakeridge Health Corporation, 2010 ONSC 725 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: January 29, 2010   Link to Judgment

By introducing the new Rule 20, the Civil Rules Committee sought to remedy the problem that: (1) the former test was regarded as too strict with the result that the rule was not achieving its purposes; and (2) the utility of the rule was being impaired by case law that had held that a motions judge could not assess credibility, weigh evidence, or find facts on a motion for summary judgment.  The Court noted that, semantically, there is not much difference between the old standard of “no genuine issue for trial” and the new standard of “no genuine issue requiring a trial”, and explained that the purpose of the change was (1) to make summary judgment more readily available; and (2) to recognize that with the court’s expanded forensic powers, although there may be issues appropriate for trial, these issues may not require a trial because the court has the power to weigh evidence on a motion for summary judgment. 

New Rule 20.04(2.1) envisions that the motions judge may use the powers of a trial judge unless it is in the interest of justice for such powers to be exercised only at a trial.  The reference therein to the interests of justice suggests that the motions judge will have to assess whether the search for truth and justice requires the forensic machinery of a trial.  The moving party must provide a level of proof that demonstrates that a trial is unnecessary to truly, fairly, and justly resolve the issues.  The Court also noted that it is important to precisely identify the issues to be resolved because the nature of the particular issues to be resolved both qualitatively and quantitatively will be relevant to determining whether a trial is necessary.

Healey v. Lakeridge Health Corporation, 2010 ONSC 725 (S.C.J.) (Rule 20 – summary judgment)

Wahid v. Malinovski, 2010 ONSC 3249 (S.C.J.) (Rule 29.1 – discovery plan)

Judgment Released: July 7, 2010   Link to Judgment

The Court dismissed an appeal of a Master’s order to produce documents.  New Rule 29.1.05 gives the Court the discretion to refuse to grant discovery-related relief if the parties fail to produce or update a discovery plan.  However, the new Rules do not “hamstring” the Court’s discretion under Rule 30.04(5) to order the production of documents for discovery.  Here, Rule 29.1.05 was not engaged because although the Master made no mention of a discovery plan in her endorsement, the parties had signed one shortly before the motion. Further, even if there was no discovery plan such that the defendant’s motion was technically premature, it was still within the court’s discretion to order early production.

Wahid v. Malinovski, 2010 ONSC 3249 (S.C.J.) (Rule 29.1 – discovery plan)