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Hinds v. Group 4 Security, 2012 ONCA 207 (Rule 20 – summary judgment)

Judgment Released: March 29, 2012   Link to Judgment

Under Rule 20, the determination of whether there is a “genuine issue requiring a trial” is a legal determination and the standard of review is correctness.  This is also the case on a question of mixed fact and law where it is said that the motion judge applied an incorrect standard, failed to consider a required element of a legal test, or any similar error in principle.  If the motion judge correctly applied the legal test, any factual determinations made by the motion judge will be reviewed on the deferential standard of palpable and overriding error.

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Hinds v. Group 4 Security, 2012 ONCA 207 (Rule 20 – summary judgment)

Shakur v. Mitchell Plastics, 2012 ONSC 1780 (S.C.J.) (Rule 57.05 – costs of action brought in wrong court)

Judgment Released: March 16, 2012   Link to Judgment

Rule 57.05(1), stating that a plaintiff in a Superior Court action who recovers less than the monetary jurisdiction of the Small Claims Court might not recover costs, applies even where the monetary jurisdiction of the Small Claims Court increases during the pendency of the action. A plaintiff should not recover costs if they continue a Superior Court action where it is clear that the action now comes within the monetary jurisdiction of the Small Claims Court following an increase in that jurisdiction.

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Shakur v. Mitchell Plastics, 2012 ONSC 1780 (S.C.J.) (Rule 57.05 – costs of action brought in wrong court)

Dennis v. Ontario Lottery And Gaming Corporation, 2011 ONSC 7024 (Div. Ct.) (rule 4.1 – duty of expert witness; rule 53.03 – expert witnesses)

Judgment Released: December 2, 2011  Link to Judgment

Rule 4.1 confirms that an expert’s duty of impartiality prevails over any duty owed to the parties who retained the expert. The new procedures in Rule 53.03(2.1) requiring the execution of an Acknowledgement of Expert’s Duty applies only to trials, not to class action certification motions; however, “one could make the case” that it would be good practice on a certification motion to include the matters set out in Rule 53.03(2.1) in an expert’s report.

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Dennis v. Ontario Lottery And Gaming Corporation, 2011 ONSC 7024 (Div. Ct.) (rule 4.1 – duty of expert witness; rule 53.03 – expert witnesses)

Laiken v. Carey, 2011 ONSC 7629 (Div. Ct.) (rule 20 – summary judgment)

Judgment Released: December 22, 2011   Link to Judgment

Romano v. D’Onofrio (2005), 77 O.R. (3d) 583 (C.A.), which holds that novel causes of action are best determined on a fully developed record at trial rather than on a summary judgment motion, remains good law after Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

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Laiken v. Carey, 2011 ONSC 7629 (Div. Ct.) (rule 20 – summary judgment)

Bolohan v. Hull, 2012 ONCA 121 (rule 48.14 – action not on trial list)

Judgment Released: February 22, 2012   Link to Judgment

The test for dismissal under the status hearing provisions of Rule 48.14 is that the plaintiff bears the burden of demonstrating that there is an acceptable explanation for litigation delay and that, if the action is allowed to proceed, the defendant will suffer no non-compensable prejudice. The focus of the inquiry is the plaintiff’s conduct, but the conduct of the respondent in the litigation can have a bearing on the assessment of the reason for the delay and on the exercise of the court’s discretion under Rule 48.13. Rule 24, which addresses motions to dismiss for delay, has no bearing on Rule 48.14 status hearings. 

A party seeking to dismiss an action at a Rule 48.14 status hearing does not usually present affidavit evidence. The usual practice is for the initial status hearing to proceed on the basis of oral submissions. If the judicial officer conducting the status hearing forms the view, on the basis of the oral submissions, that the action is vulnerable dismissal for delay, ordinarily a full hearing will be ordered on affidavit evidence.

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Bolohan v. Hull, 2012 ONCA 121 (rule 48.14 – action not on trial list)

CIA Inspection Inc. v. Dan Lawrie Insurance Brokers Ltd., 2011 ONCA 706 (rule 1.04 – proportionality)

Judgement Released: November 7, 2011   Link to Judgment

In upholding an award of partial indemnity costs said to be “virtually the same” as a substantial indemnity award, the Court of Appeal held, among other things, that “while the trial judge did not specifically refer to R. 1.04(1), and while there may be some disproportionality in the amount of costs awarded, the trial judge’s reasons make it clear he had the proportionality principle in mind.”

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CIA Inspection Inc. v. Dan Lawrie Insurance Brokers Ltd., 2011 ONCA 706 (rule 1.04 – proportionality)

Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (rule 20 – summary judgment)

Judgment Released: December 5, 2011   Link to Judgment

The Court of Appeal has now released its omnibus decision on the new summary-judgment rule.

Three types of cases are amenable to summary judgment:

(1) cases where the parties agree to summary judgment;

(2) cases where the claims or defences are without merit; and

(3) cases where the interests of justice do not “require” that the issues be resolved at a trial.

The third category is a result of the new Rule 20 and its change in the text of the rule from “genuine issue for trial” to “genuine issue requiring a trial”. The Court introduced the “full appreciation test”, which asks whether  “the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”  The “full appreciation test” will be used to determine whether, in the interests of justice, the issues raised in an action require the unique forensic machinery of a trial, or whether instead, the issues can be appropriately resolved with summary judgment, using the motion judge’s new expanded powers under rule 20.04(2.1).

The Court held that in “deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.”

The Court also observed that “it is not necessary for a motion judge to try to categorize the type of case in question. In particular, the latter two classes of cases we described are not to be viewed as discrete compartments. For example, a statement of claim may include a cause of action that the motion judge finds has no chance of success with or without using the powers in rule 20.04(2.1). And the same claim may assert another cause of action that the motion judge is satisfied raises issues that can safely be decided using the rule 20.04(2.1) powers because the full appreciation test is met. The important element of the analysis under the amended Rule 20 is that, before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.

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Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (rule 20 – summary judgment)

Mehdi-Pour v. Minto Developments Inc. et al, 2011 ONSC 3571 (Divisional Court) (Rule 20 – summary judgment)

Judgment Released:  June 8, 2011  Link to Judgment

On an appeal to the Divisional Court from an order of a Master on a motion for summary judgment, where the Master dismissed the plaintiffs’ claim, the plaintiffs/appellants argued that the Master exceeded his jurisdiction under Rule 20.04 as the motion required a decision on a point of law respecting causation. The Divisional Court noted that while Rule 20.04 requires a Master who determines that the only genuine issue for trial is a question of law to adjourn the motion to a judge, the Rule does not mean that a Master cannot apply settled legal principles to the facts of the case, nor does it mean that a Master cannot find that there is no genuine question of law requiring trial. In dismissing the appeal, the Court concluded that the Master had the jurisdiction to apply the legal test for causation to the record before him in determining the motion for summary judgment.

The Court went on to note that the Master, when appropriate, can draw an adverse inference from the failure of a party to lead evidence on the motion.  In this case, the Master drew such an inference respecting, among other things, the plaintiffs’ failure to obtain an expert report responding to the expert report relied on by the defendants which directly challenged the basis of the plaintiffs’ claim and, after taking a hard look at the evidence, the Master concluded that the plaintiffs had not led appropriate evidence to support the elements of their claim at trial.

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Mehdi-Pour v. Minto Developments Inc. et al, 2011 ONSC 3571 (Divisional Court) (Rule 20 – summary judgment)

Loat v. Howarth, 2011 ONCA 509 (O.C.A.) (Rule 20 – summary judgment)

Judgment Released: July 12, 2011  Link to Judgment  

In the context of an employment dispute, the plaintiff moved for partial summary judgment in relation to unpaid wages and termination pay allegedly owing to him by the defendant employer.  The motions judge dismissed the plaintiff’s motion for summary judgment finding that there were facts in dispute and a genuine issue for trial.  The plaintiff appealed a portion of the dismissal of the motion on the basis that there was no genuine issue for trial respecting his claim for unpaid wages.  

In dismissing this aspect of the appeal, the Court of Appeal found that the motions judge correctly noted that there was a genuine issue for trial as the record before the Court established that many of the material facts concerning the question of the plaintiff’s unpaid wages were disputed, and that the resolution of this core issue will require credibility-based findings based on viva voce evidence.

The plaintiff’s further basis for appeal of the dismissal of the motion for summary judgment was that it was open to the motions judge to order or conduct the trial of an issue to resolve the unpaid wages claim, and the plaintiff alleged that the failure to do so constitutes a reversible error.  The Court of Appeal rejected that assertion, noting that the decision of whether to order or conduct the trial of an issue is a discretionary one and, in the circumstances of the case and given the allegations of the parties, it was within the motions judge’s discretion to decline to direct or conduct the trial of an issue on the unpaid wages claim.  Further, the motion judge’s decision in that regard attracts deference from the Court of Appeal.

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Loat v. Howarth, 2011 ONCA 509 (O.C.A.) (Rule 20 – summary judgment)

Cusimano v. D.A.D. Construction Inc., 2011 ONSC 5707 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released:  September 29, 2011   Link to Judgment

On a motion for summary judgment, the parties agreed that the applicable test on a Rule 20 motion was that articulated by Pepall J. in Canadian Premier Life Insurance Co. v. Sears Canada Inc., [2010] O.J. No. 3987 (S.C.J.) at para. 70, as follows:

  • -The court must be satisfied that there is no genuine issue requiring a trial.
  • -To be satisfied, the court may weigh the evidence, evaluate the credibility of a deponent, draw any reasonable inference from the evidence, and order that oral evidence be presented.  By implication, these powers may involve the making of factual findings including a finding of a material fact.
  • -The motions judge should take a hard look at all of the evidence to determine whether there is a genuine issue requiring a trial.
  • -The burden of proof to establish that there is no genuine issue requiring a trial is on the moving party.
  • -The respondent may not rest solely on the allegations or denials in its pleading.
  • -Each side should put its best foot forward.
  • -The Rule should be interpreted broadly so as to achieve the objectives of reduction of delay and costs, access to justice, and flexibility.  At the same time, it must be acknowledged that elimination of trials is not an objective.  At its core, justice is the ultimate objective.  It is not to be sacrificed in the interests of speed and economy.  That said, Rule 20 clearly contemplates that justice, speed and economy are not mutually exclusive attributes.
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Cusimano v. D.A.D. Construction Inc., 2011 ONSC 5707 (S.C.J.) (Rule 20 – summary judgment)