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Demers v. Cousineau, 2010 ONSC 3370 (Master) (Rule 20 – summary judgment)

Judgment Released: June 8, 2010   Link to Judgment

A summary judgment motion on a point of law is to be granted if the law is so clear that there is no genuine issue requiring a trial.  There is discretion under Rule 20.04(4) to determine the point of law even if there is a genuine issue, but that discretion may only be exercised by a judge.  For a master to grant judgment dismissing an action, he or she must be satisfied that the law is clear and there can be no chance of success.

Demers v. Cousineau, 2010 ONSC 3370 (Master) (Rule 20 – summary judgment)

Cunningham v. Moran, 2010 ONSC 4310 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: August 27, 2010   Link to Judgment

In discussing the new Rule 20, the Court noted that it would “lead Ontario jurists to once again carefully consider the metes and bounds of its summary dispute resolution procedures.”  The Court further noted that “[o]ften those who argue against a wider interpretation of Rule 20 frame their worries in terms of “access to justice” concerns. The opponents argue that litigants should have their “day in court”. However, what are often overlooked are the “access to justice” concerns that arise on the part of the party that must expend enormous sums of money and years of litigation to defend themselves against claims of little or no merit through full blown trials and appeals often extending over years, if not decades. There are also access to justice concerns of plaintiffs who are delayed justice by defences of little or no merit, but which the defendant sought to be resolved at a trial. Have these parties not been equally victimized? Has not their “access to justice” been impaired, if not denied? As is the case in many aspects of the law, our Courts must find the correct balance between these two competing interests. Not every lawsuit merits a full blown trial accompanied by tens of thousands of dollars in expense and years, if not decades, of heartache. The provisions of Rule 20 are meant to promote judicial economy and litigation efficiency by preventing unmeritorious cases or issues from proceeding to trial.”  The Court further referred to the principle of proportionality, which involves a careful consideration of the importance and complexity of the issues involved and the amount in dispute in the proceeding, and that the courts of British Columbia were leaders in dealing with the balancing of those competing interests.

Cunningham v. Moran, 2010 ONSC 4310 (S.C.J.) (Rule 20 – summary judgment)

Zerucelli v. Parravano, 2010 ONSC 5293 (S.C.J.) (Rule 76 – simplified procedure)

Judgment Released:   September 29, 2010   Link to Judgment

The matter was set down for trial in 2009, when oral discovery was not permitted under simplified procedure (Rule 76).  The plaintiff brought a motion to exercise the oral discovery rights under the new Rule 76.   The Court granted the motion, permitting discovery and required the parties to prepare and agree to a discovery plan.  The Court held that even where the amount at issue is relatively small, permitting discovery could have the desirable effect of bringing the case towards settlement and making the trial shorter and more manageable.

Zerucelli v. Parravano, 2010 ONSC 5293 (S.C.J.) (Rule 76 – simplified procedure)

Parker v. Casalese, 2010 ONSC 5636 (Div. Ct.) (Rule 20 – summary judgment)

Judgment Released:  October 21, 2010   Link to Judgment

The Divisional Court heard an appeal of a summary-judgment motion under the new Rules where the judge’s reasons denying the motion read in full as follows: “This motion is dismissed. Submissions regarding costs may be exchanged and 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 claim asserted that houses were negligently constructed by the defendant P, resulting in damage to the plaintiffs’ nearby homes.  The plaintiffs also claimed against the new owners of the homes that P built.  The plaintiffs were the moving parties on the motion for summary judgment.

The Divisional Court noted that “Rule 20.05 now grants a motions judge additional powers, in the event that a summary judgment motion is unsuccessful or partially successful, to give directions specifying what material facts are not in dispute and what issues remain to be tried, and to impose terms on the parties in relation to, inter alia, time limits for the exchange of evidence and examinations at trial.”  The Divisional Court was “of the view that the reasons given by the motions judge were inadequate.  In particular, he made no reference to the test for summary judgment as set out in Rule 20, and there is nothing to indicate whether he appreciated the fact that the standard is different and more flexible under the new Rules.”

However, the Divisional Court denied the appeal, finding that despite the sparseness of the reasons, the record supports the motions judge’s conclusions.  It noted, among other factors, that there was conflicting evidence as to whether P was personally liable and that viva voce evidence and cross-examination would help determine the issue; that the record did not differentiate between work that may have resulted in liability to the owner defendants and work that would not have; that the amounts in the plaintiffs’ damages report, even if uncontested, were not usefully broken down; and that there was evidence that the damage claimed was pre-existing.

The Divisional Court “also consider[ed]” the fact that there was no cross-examination before the motion.  It concluded that in the circumstances “it is reasonable to think that, despite the new rules, this is a case that is more appropriately dealt with by a trial, though perhaps one that is summary in nature.”

This blog’s summary of the judgment granting leave to appeal to the Divisional Court is located here.

Parker v. Casalese, 2010 ONSC 5636 (Div. Ct.) (Rule 20 – summary judgment)