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Healey v. Lakeridge Health Corporation, 2011 ONCA 55 (Rule 20 – summary judgment)

Judgment Released: January 21, 2011   Link to Judgment

A five-justice panel of the Court of Appeal dismissed an appeal of one of the first reported decisions applying the new Rule 20 (summarized on this blog here).  

The action arose following a TB outbreak at the defendant hospital.  The hospital informed Durham Public Health, who issued notices to persons who had recently visited the hospital advising them to be tested for TB.  Among other claims, a class of persons who had received the notices but ultimately tested negative for TB claimed for mental distress as a result of receiving the notices.  The motions judge dismissed the claim on summary judgment.  The hospital did not owe the class members a duty of care, nor did their injuries meet the threshold of a recognizable psychiatric illness, and any injury would be too remote.  The Court of Appeal held that there was a duty of care but agreed with the motion judge on the threshold for damages and the remoteness issue.

While the motion judge’s application of the new Rule 20 was raised as a ground of appeal, the Court of Appeal held that “given the nature of the issues, the extensive evidentiary record provided the motion judge with a sufficient basis to decide that there was no genuine issue for trial.  In these circumstances, it is unnecessary to consider the effect of the recent amendments to Rule 20.  I leave that question to another day without commenting on the motion judge’s analysis of those amendments.”

Healey v. Lakeridge Health Corporation, 2011 ONCA 55 (Rule 20 – summary judgment)

Gallant v. Thames Valley District School Board, 2011 ONSC 869 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: February 7, 2011   Link to Judgment

The parents of a youth who committed suicide sued a teacher and a school board for allegedly failing to notify them of an essay written by the youth which might have foreshadowed the suicide.  The defendants sought summary judgment on the ground that public policy precludes survivors of a person who has committed suicide from proceeding with a claim for damages against those who are alleged to have caused or contributed to the damages.  The plaintiffs responded that the precedent supporting that defence was outdated, distinguishable on its facts, and relied upon jurisprudence that was subsequently overturned on appeal. 

The Court denied the motion.  It held that the defendants had not put their best foot forward with respect to the material fact of whether or not the teacher knew or ought to have known there was a risk the youth was contemplating suicide. There was no evidence of how the teacher discharged her duty to take care for the youth’s safety. The Court noted that neither defendant filed an affidavit in support of the motion for summary judgment. The defendants relied on an affidavit of a solicitor from the Defendants’ law firm and who had no personal knowledge of any material facts. In contrast, the plaintiff relied on the affidavit of the mother of the youth who had such knowledge.

The Court ruled that the issue of whether the teacher discharged her duty of care to the youth must be determined on a complete evidentiary record.  The Court also held that the public policy underlying the precedent supporting the defendants’ defence may have evolved, and community views on suicides may have changed over the past 25 years, so the matter should be determined upon a complete evidentiary record and not on a summary judgment motion.

Gallant v. Thames Valley District School Board, 2011 ONSC 869 (S.C.J.) (Rule 20 – summary judgment)

Shahbazloo v. Zhao, 2011 ONSC 60 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: January 7, 2011   Link to Judgment

The Court refused to award costs on a substantial indemnity under Rule 20.06 following a summary-judgment motion. The Court found the defendant’s motion for summary judgment and motion to dismiss for non-compliance with undertakings were unreasonable but did not rise to the level of bad faith. The defendant’s record-keeping was inaccurate; all previous undertakings had in fact been complied with. Although the motions were not complicated or lengthy, given the circumstances and nature of the undertakings dealt with, the Court ordered all-inclusive costs of $5,000.

Shahbazloo v. Zhao, 2011 ONSC 60 (S.C.J.) (Rule 20 – summary judgment)

Gardner v. Hann, 2011 ONSC 162 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: January 7, 2011   Link to Judgment

On a Rule 20 motion for summary judgment, the Court confirmed that the “well-known basic principles set down by court cases decided under the predecessor Rule remain applicable under the amendment.” While the “January 2010 amendments to Rule 20 allow the court a broader authority than allowed under the predecessor Rule”, the burdens have not changed. The moving party must satisfy the court that there are no issues of fact required to be tried and the responding party must demonstrate there is a real chance of success at trial.

Gardner v. Hann, 2011 ONSC 162 (S.C.J.) (Rule 20 – summary judgment)

Earle v. Lausberg, 2011 ONSC 864 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: February 4, 2011   Link to Judgment

The Court held that “[w]ith the expanded powers of the court under the amended rules, discoverability issues are no longer beyond the scope of summary judgment.”

Earle v. Lausberg, 2011 ONSC 864 (S.C.J.) (Rule 20 – summary judgment)

Clarke v. Hassan, 2011 ONSC 467 (S.C.J.) (Rule 29.1 – discovery plan, Rule 53.03 – expert witnesses)

Judgment Released: January 20, 2011   Link to Judgment

The third party brought a motion for several heads of relief, including concerning a discovery plan and an expert’s report.  

The discovery plan, agreed to by the plaintiff, specified that the plaintiff would be produced for discovery by the third party on a given date and would provide a sworn Affidavit of Documents on that date, but that “documents will be provided no later than five days prior to examinations for discovery”.  At the discovery, the plaintiff’s Affidavit of Documents listed over 300 documents which had not been produced before the discovery. The Court called this an “unacceptable lapse in good judgment”, potentially requiring further attendances for discovery and increasing the costs of the discovery process for the third party. 

The plaintiff “insist[ed] on only producing or advising of experts 90 days before the pre-trial Conference in accordance with Rule 53.03(2)”. The Court stated that a party should not “sit on an expert’s report”, and that the practice in civil litigation is for a party to provide a copy of an expert opinion very soon after it is obtained. Strict reliance on the minimum time limits in the Rules of Civil Procedure will not permit the smooth administration of justice, as “[t]he failure to produce expert reports on a timely basis produces requests for adjournments that, in the interests of justice, must often be granted”.

Clarke v. Hassan, 2011 ONSC 467 (S.C.J.) (Rule 29.1 – discovery plan, Rule 53.03 – expert witnesses)

Small Claims Court, Simplified Procedure and Proportionality

Small Claims Court, Simplified Procedure and Proportionality discusses the changes, effective January 1, 2010, to the Ontario Rules of Civil Procedure and cases that have arisen out of the amendments to the Rules that relate to the monetary jurisdiction of the Small Claims Court, the amendments to the Simplified Procedure regime and proportionality.  The paper also discusses cases dealing with awards of costs and transferring cases between Simplified Procedure and the Small Claims Court.

Tiffany Soucy, co-Editor of the FMC Blog on the Amendments to the Rules of Civil Procedure will be speaking at the Ontario Bar Association Civil Litigation Institute 2011 CPD Program, The New Rules: One Year On on Friday, February 5, 2011.

Small Claims Court, Simplified Procedure and Proportionality