Judgment Released: April 13, 2011   Link to Judgment

After dismissing the defendant’s motion for summary judgment, the Court considered the defendant’s secondary relief for an order for a mini-trial. The Court held that a mini-trial was not appropriate because “there is no single issue, other than the larger issue of liability, on which a ruling would be dispositive of the case.”

Judgment Released:  April 13, 2011 Link to Judgment

On a motion for summary judgment the Court noted that the January 2010 amendments to the Rules created two key changes. First, the court is to grant summary judgment if satisfied that there is no genuine issue requiring a trial.  Secondly, a judge hearing a motion for summary judgment is provided with enhanced powers. He or she may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.  The purpose of the change from “no genuine issue for trial” to “no genuine issue requiring a trial” in the test for summary judgment was to make summary judgment more readily available and 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. The Court went on to note that despite these amendments, the purpose of Rule 20 is not to deny the parties due process or intended to deprive plaintiffs and defendants their day in court absent demonstrated compliance with its requirements.  The purpose of the Rule is to weed out cases at the pre-trial stage when it can be demonstrated clearly that a trial is unnecessary (Court’s emphasis).

Judgment Released: April 5, 2011   Link to Judgment

The Court allowed the Plaintiff’s motion to transfer an action, seeking damages of $31,000, from Simplified Procedure to Small Claims Court following the amendments to the monetary jurisdiction of that Court (and thereby limiting the Plaintiff’s claim to $25,000), despite the objections of one Defendant that prejudice would result because the action was “too advanced” to be transferred. Despite having prepared (but not delivered) an affidavit of documents, mediated, listed for trial and pre-tried the action, the Court agreed that there was little disruption to the trial strategy at that stage by a transfer.  The Court ordered that the Plaintiff pay the Defendant $2,800 of the $13,000 it had incurred in costs of the litigation to date, on the basis that those costs may not have been incurred had the action been transferred in January 2010 and noting that Rule 19.05 of the Small Claims Court Rules will limit the Defendant’s recovery of costs going forward.

Judgment released: June 8, 2011   Link to Judgment

The new Rule 20 expands the court’s power to weigh evidence but does not go so far as to permit hearsay evidence to be admitted.

Today, June 21, 2011, and tomorrow, the Ontario Court of Appeal  (Chief Justice Winkler, Justices Laskin, Sharpe, Armstrong and Rouleau JJ.A.) will hear a combined appeal of, among others, the decisions in Combined Air Mechanical Services v. Flesch  (summarized on this blog), Mauldin, Fred et al v. Cassels Brock & Blackwell LLP  (summarized on this blog) and Bruno Appliance and Furniture v. Cassels Brock & Blackwell LLP  relating to summary judgment motions under Rule 20.   

The editors will continue to watch for the release of this decision from the Court of Appeal.

Judgment released: June 8, 2011   Link to Judgment

In this appeal to a judge of the Superior Court, the Court used Rule 1.04(1.1) as an alternative ground for upholding a Master’s ruling that certain questions asked on discovery were not relevant.

Judgment released: June 9, 2011  Link to Judgment

Generally, the bringing of a summary judgment motion does not suspend the obligation to serve an affidavit of documents.  The moving party must disclose all relevant documents so that the opposing party has all relevant information and is in a position to put forward all its relevant evidence in order to defend the motion. 

However, where the motion for summary judgment is brought to determine the application of a limitation period, the circumstances may dictate otherwise. Here, the issue on summary judgment was whether a limitation period for libel applies.  The Court found it would cause hardship to the defendants to require all documentary evidence produced prior to arguing the motion for summary judgment.  There would be unnecessary delay and expense caused to the moving party in a situation where the documents being sought are not relevant to the motion. Should the motion fail, the responding party would be in a position to receive the moving party’s affidavit of documents as they proceed on the road to a trial of the action. The Court deferred service of the moving party’s affidavit of documents, relying on the principle of proportionality and Rule 2.03, as well as the conduct of the parties since the action was commenced.

Judgment Released: May 18, 2011   Link to Judgment 

The court rejected the plaintiff’s submission that the moving defendant’s summary-judgment motion was premature and should not be heard until after the plaintiff had received the other defendant’s affidavit of documents and discovered him. The action started on September 9, 2010 and the pleadings closed in December 2010. The plaintiff knew about the moving defendant’s position and her intent to bring a summary-judgment motion since shortly after its claim was served. The plaintiff had more than sufficient time to require the other defendant’s affidavit of documents and to discover him in the action. Having failed to do so, it cannot complain that the summary-judgment motion is premature.

Judgment Released: May 18, 2011   Link to Judgment 

The requirements of Rule 20 of the Rules of Civil Procedure should not be read into a motion under s. 47 of the Construction Lien Act. Section 47 does not restrict the court’s jurisdiction and/or discretion as does Rule 20; the section allows an order to be made “upon any proper ground and subject to any terms and conditions that the court considers appropriate in the circumstances.”

Judgment Released: May 20, 2011   Link to Judgment

Even before the principle of proportionality was incorporated into the Rules of Civil Procedure, it was an was an intrinsic component of the Construction Lien Act by virtue of section 67(1) (“[t]he procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question”) and section 86(2) (“[w]here the least expensive course is not taken by a party, the costs allowed to the party shall not exceed what would have been incurred had the least expensive course been taken”). Read together these provisions express the expectation that lien proceedings will be streamlined and proportionate to the matters in issue.