1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Webb v. Jones, 2011 ONSC 2479 (Rule 30.02 – scope of documentary discovery)

Judgment Released: April 19, 2011   Link to Judgment

The court, citing Black’s Law Dictionary, 7th edition, defined a document as relevant “if it has probative value; if it is logically connected to and tending to prove or disprove a matter in issue. In other words, it must have persuasive value concerning an alleged fact.”  It held that a plaintiff’s pre-accident medical condition is relevant when it relates to similar complaints made after and attributed to his accident, noting that “this does not entitle the defence to go on a fishing trip through the plaintiff’s medical history; however, it does entitle the defence to target specific types of complaints and question whether these arise from a pre-existing condition.”

Webb v. Jones, 2011 ONSC 2479 (Rule 30.02 – scope of documentary discovery)

Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67 (Rule 20 – summary judgment)

Judgment Released: January 24, 2011   Link to Judgment

This was a motion before a single justice of the Court of Appeal for leave to extend time to perfect an appeal.  The issue was whether the underlying appeal was of “so little merit” that an extension need not be granted.  The underlying appeal concerned whether a motions judge may use the new powers under rule 20.04(2.1) of weighing evidence, evaluating credibility and drawing inferences as though they were exercising the powers and jurisdiction of a trial court judge, rather than using the powers as tools to determine whether there was a genuine issue requiring a trial.  

The Court discussed the history of the new Rule 20, its resemblance to Rule 18A (now 9-7) of the British Columbia rules of court, and noted the “two streams of jurisprudence” that have developed on the issue.  One stream, advanced by Karakatsanis J. (as she then was), holds that “it is not the role of the motions judge to make findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment. This change in the Rule does [not] substitute a summary trial for a summary judgment motion. Although a summary judgment motion may, if the motions judge so directs, resemble a summary trial, the test and the decision are different.”  The second stream is the “arguably more expansive reading of the new Rule 20 [] adopted by Perell J. in Healey v. Lakeridge Health Corp., 2010 ONSC 725” which “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.”  Similarly, another recent decision held that “[c]onsistent with the language of Rule 20, a motions judge is not precluded from making findings of fact for the purpose of deciding the action on the basis of the evidence presented on a motion for summary judgment.”

The Court noted that the Court of Appeal has not yet commented on the scope and meaning of the amended rule, or the extent to which it is open to a judge on a summary judgment motion to make findings of fact for the purpose of deciding the action based on the evidence presented on a motion for summary judgment.  As such, it could not be said that the underlying appeal was of “so little merit” that the extension need not be granted.  

Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67 (Rule 20 – summary judgment)

Elliott v. Industrial Alliance, 2011 ONSC 2116 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: April 5, 2011   Link to Judgment

The costs of an abandoned summary judgment motion under new Rule 20.06, which eliminates the presumption in favour of substantial indemnity costs, should be approached as follows:

(1)   The respondent on the motion for summary judgment is presumed to be entitled to costs payable forthwith on a partial indemnity basis under Rule 37.09, however this presumption may be displaced in the court’s discretion.

(2)   The moving party may ask the court to make some other order, such as no costs or partial costs, payment other than forthwith, or costs in the cause.  Where any such request is made, the onus will rest with the moving party.

(3)   The respondent on the motion may ask the court to order costs on a substantial indemnity basis.  If it does so it may, in addition to any other grounds for the request, seek to establish under Rule 20.06 that the moving party acted unreasonably by making the motion or acted in bad faith for the purpose of delay.  In such an instance, the onus will rest with the respondent.

Elliott v. Industrial Alliance, 2011 ONSC 2116 (S.C.J.) (Rule 20 – summary judgment)