Monday, December 12, 2011

Perhaps proper to postpone a summary judgment hearing because the record in the file needs to evolve?

Asset Engineering LP v. Pagotto, 2011 ONCA 777 is a very ordinary summary judgment appeal case, except... it hints that sometimes it may be proper to allow for summary judgment to be adjourned to allow for discovery and production. To have such happen diligence in demanding documents and examination is necessary but the side comment (below) in the case may be very important:

[11]         While there may be circumstances where it would be wise to postpone a summary judgment hearing because the record in the file needs to evolve to a certain point in the ordinary course, this is not one of those circumstances, in our view.  The appellants could have required the Topolinski defendants to plead and deliver their affidavits of documents, or they could have examined the Topolinski personnel under Rule 39, which provides for an examination of "any person" on a motion.  The appellants had ample opportunity to take these steps, but did not.  Here, the appellants filed their own affidavits setting out their version of the alleged facts – which they were able to do because they were involved in the negotiations in the Topolinksi Group themselves.  In the result, their "best foot" was well put forward notwithstanding the absence of Topolinski evidence or documents to the contrary.

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