Judgment Released: December 4, 2012  Link to Judgment

In dealing with costs in this Simplified Procedure matter, and following a finding in favour of the Plaintiff for the tort of passing off with a damages award of $10,000, the Plaintiff sought costs in the amount of $40,452.22. The Court held the Plaintiff was entitled to its costs, because it was ultimately successful in the action. However, the Court held that the costs requested made no allowance for the fact that the action was a Simplified Procedure matter and the amount claimed for costs was disproportionate and excessive, relative to the damages ultimately awarded. The Court awarded $15,000 in costs to the Plaintiff, noting that that is an amount that the unsuccessful party could reasonably have expected to pay in this proceeding.

Judgment Released: December 4, 2012  Link to Judgment

In a solicitor’s negligence claim seeking up to $400,000 in damages, the plaintiff brought a motion pursuant to Rule 31.05.1 seeking leave of the Court to continue his examination of the defendant solicitor for an additional three to five hours. The defendant’s prior examinations had taken place over three separate days in 2009, 2011 and 2012. The Court considered the factors on the motion to be: the amount in issue; the complexity of the issues; the amount of time that ought reasonably to be required; and the financial position of each party. The Court also considered other reasons that should be taken into account in the interest of justice. The Court concluded that a further brief examination was required and ordered an additional of 2.5 hours of discovery, for a total of approximately 11 hours, rather than the standard 7 hours allowed under the Rules. The Court awarded partial costs in the amount of $3,000.00, inclusive of HST and disbursements in favour of the plaintiff.

Judgment Released: April 30, 2012  Link to Judgment

The Divisional Court denied leave to appeal the decision of a Superior Court decision where the Judge denied a motion for a further and better affidavit of documents. The Superior Court Justice denied the motion because, regardless of whether or not the original affidavit of documents was deficient, the Court found the moving party had all documents appearing in any way relevant.  In denying leave, the Divisional Court held that the Superior Court Justice’s order was, among other things, proportional under Rule 1.04(1.1).

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.

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.

Judgment Released: March 29, 2011  Link to Judgment

A justice of the Superior Court certified a class action and granted partial summary judgment to the plaintiffs, on the same day. The defendant appealed both decisions. The defendant asked a justice of the Divisional Court to adjourn its motion for leave to appeal the certification until its appeal on summary judgment had been decided. The Divisional Court justice refused the request, holding that certification matters come first, since certification frames the proceedings, and without the certification order there can be no summary judgment.

Judgment Released: October 28, 2011   Link to Judgment

In determining the relevance of documents to be produced, a court may look to a forensic report on which the Statement of Claim is based. Such an approach would not mean that the scope of relevance was being determined by something other than the pleadings.

Judgment Released: April 13, 2012  Link to Judgment

The Court of Appeal upheld a grant of partial summary judgment sought by a condo corporation against a condo owner who had failed to pay condo fees. While there were several other disputes between the parties (which the trial judge ordered to be dealt with by a trial of issues rather than by summary judgment), there was no authority for the proposition that the requirement to pay condo fees under the Condominium Act was somehow suspended, and the Act explicitly provides that condo fees are payable regardless of any other disputes.

Judgment Released: April 17, 2012   Link to Judgment

It remains an open question whether the Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, applies to summary judgment motions under the Family Law Rules.

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.