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Precious Metal Capital Corp. v. Smith, 2012 ONCA 298 (Rule 20 – summary judgment)

Judgment Released: May 8, 2012  Link to Judgment

The Ontario Court of Appeal dealt with an appeal where summary judgment had been granted by the Court below, prior to the release of Combined Air.  The OCA noted that the Court in Combined Air indicated that the “full appreciation” test would likely be met in cases that are largely driven by documents, in which testimonial evidence and contentious factual issues are limited, and the test is unlikely to be met in cases in which there are multiple factual issues involving conflicting evidence from a number of witnesses and a voluminous evidentiary record. 

Nevertheless, the OCA upheld the decision of the motion judge in this case, finding that, despite the voluminous evidentiary record and conflicting evidence from a number of witnesses, the Combined Air formulation of the summary judgment test was met. The OCA found that the record enabled the application judge to have a “full appreciation” of the evidence and issues required to make the findings he did.  The OCA noted that the voluminous evidentiary record in this case was due to the complexity of the transactions and the relationships among the parties however, relatively few documents bear on the one issue on which the case turns: whether one of the defendants was retained by the plaintiff as its agent to help the plaintiff purchase the property in question.  The OCA went on to note that despite the conflicting evidence from a number of witnesses, most of the points of disagreement were minor or about issues that were not material.  Further, while the motion judge was aware that credibility findings should not be made on a summary judgment motion (which he avoided), he was still able decide that a trial was not required to determine the central issue in dispute by concluding that the testimony in favour of the plaintiff’s position would be insufficient in law to establish the agency relationship asserted by the plaintiff “given the strength of the documentary evidence, together with the evidentiary record as a whole, in contradicting [the plaintiff's witnesses] in their assertion.” The OCA concluded that this was a determination the motion judge was entitled to make; in the face of the facts established by the documentary and other evidence, it was open to the motion judge to conclude that the plaintiff could not obtain judgment in its favour at trial as the plaintiff simply could not fulfill its burden of proof.

Precious Metal Capital Corp. v. Smith, 2012 ONCA 298 (Rule 20 – summary judgment)

George Weston Limited v. Domtar Inc.; 1318214 Ontario Limited v. Sobeys Capital Incorporated, 2012 ONSC 5001, (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: September 3, 2012  Link to Judgment 

Following the Ontario Court of Appeal’s decision in Combined Air Mechanical Services Inc. (summarized on this Blog), in two separate cases, the Court dealt with a motion to strike a pending motion for summary judgment.  In Combined Air, the Ontario Court of Appeal noted that a  party faced with a premature or inappropriate motion for summary judgment should have the option of moving to stay or dismiss the motion, where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery.  Justice David Brown has noted that, as a result of that comment by the Court in Combined Air, motions to strike motions for summary judgment have followed.

The decision in George Weston begins with a discussion of Combined Air and considerations relating to summary judgment motions.  Specifically, the new rule 20 was intended to eliminate unnecessary trials, not to eliminate all trials.  The decision reviewed the “hallmarks” of a case that, generally speaking, requires the full appreciation of the evidence through a trial, including: (a) a voluminous motion record; (b) evidence from a large number of witnesses; (c) multiple defendants against whom different theories of liability are advanced; (d) the need to make numerous findings of fact to decide the motion; (e) conflicting evidence on key issues requiring credibility determinations; and/or (f) the absence of reliable documentary yardsticks against which to assess credibility.

Further, cases where summary judgment may be appropriate include: (a) document-driven cases with limited testimonial evidence; (b) cases with limited contentious factual issues; (c) cases where the record can be supplemented at the motion judge’s discretion by hearing oral evidence on discrete issues; (d) limited and uncontentious documentary evidence; (e) limited number of witnesses; and/or (f) where no dispute exists respecting the governing legal principles.

The Court in George Weston encouraged counsel to approach the amendments to the Rules like a box of “Lego-like building blocks”, which should enable counsel to approach the construction of a trial in a wide variety of ways other than the traditional trial, including the use of evidence (in whole or part) by way of affidavit; the use of pre-hearing affidavits and examination transcripts; placing limits on the length of examinations of trial; submitting written opening statements; and the use of agreed statements of facts.

In respect of the motion to strike the pending motion for summary judgment in the George Weston case, the Court noted that the motion for summary judgment was the first step that had been taken since the pleadings in the action had closed, several years before.  A timetable was negotiated and consented to respecting the hearing of the motion and materials were filed by both parties in respect of the motion for summary judgment, including lengthy records and multiple expert reports, when the responding party then brought a motion to strike the motion for summary judgment.  While the Court had strong reservations about whether the case was an appropriate one for summary judgment, the Judge was not prepared to strike the motion at the expense of the time and resources that had been expended preparing for the motion and, in order to satisfy the requirements of the “full appreciation test”, the Court ordered a “modified trial plan” and timetable – which incorporated traditional examinations for discovery as well as use of the materials already prepared in contemplation of the summary judgment motion – in preparation for the final adjudication of the matter.

In respect of the Sobeys motion, the Court noted that the materials filed by the parties clearly indicated that a trial was required for the Court to have a full appreciation of the case. While the parties estimated a summary judgment motion would take three to four days, another three to four weeks was estimated to be required for the trial of the remaining issues.  The Court concluded that hearing the summary judgment motion would not result in “the just, most expeditious and least expensive determination” of the proceeding on the merits and thus refused to schedule the summary judgment motion requested. Instead the Court gave directions respecting the litigation going forward.

George Weston Limited v. Domtar Inc.; 1318214 Ontario Limited v. Sobeys Capital Incorporated, 2012 ONSC 5001, (S.C.J.) (Rule 20 – summary judgment)