Estates Associates Inc. v. 1645112 Ontario Ltd., 2012 ONCA 75 is another summary judgment case arising under the amended Rule 20.
Once again, a weak case was held to be sufficient to avoid summary judgment. Indeed, the Court of Appeal appears to have searched the record for evidence helpful to the respondent even where such evidence was not drawn to the motion judge's attention.
This comment is not a criticism of the Court's ruling; rather, counsel should be aware that the change in the R 20 test seems to have been a change without material effect. Summary judgment will only be granted in the clearest cases.
The Court holds:
[8] While the appellant may have failed to identify the relevant evidence before the motion judge, the record does contain evidence that McCowan made representations to Iqbal as to the value of the mortgaged properties. In addition, there is evidence in the record that could support a finding that McCowan's conduct constitutes a representation as to the value of the mortgaged properties. The test applied by the motion judge recognizes that false representations can be by conduct.
3 comments:
I am not sure that I agree that the test has been changed with no material affect.
It has been widely held as in King v. Dawe 2011 ONSC 6842 that the court is entitled to the assumption that all parties have provided the court with all of the evidence on which they intend to rely and that the record contains all of the evidence that the parties would present if there were a trial. The full appreciation test in Combined Air doesn't mess with that finding at all but rather builds on it. The test requires that the court determine whether a full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by way of summary judgment.
Also, Combined Air allows for a party resisting summary judgment to move to have the summary judgment stayed if there is not enough evidence before the court to determine if there is a genuine issues for trial on summary judgment.
The test has changed and incorporates considerations like in Dawe, but expands on them.
This just-released decision is an interesting one and seems to be on topic.
2012-02-03 Fadaiazad v. The Cooperators General Insurance Company, 2012 ONSC 838 (CanLII)
[1] This is a motion for summary judgment.
[19] In my view, this matter would be better left to proceed by way of a summary trial. The plaintiff has acted to have this matter dealt with under Rule 76 of the Rules of Civil Procedure; which is to say, he has acted to have this action handled with expedition. Ultimately, this is not a document-driven case, but one that depends on credibility, particularly that of the plaintiff. Can he explain the apparent inconsistencies in the price he paid for the car and the different odometer readings? It may be that affidavits providing the court with sworn evidence explaining the position of the plaintiff could have been produced. Perhaps he would have been cross-examined and a more complete record produced. This could not be said to recognize the “efficiency rationale” to which the plaintiff had committed by bringing the action under the rubric of Rule 76 of the Rules of Civil Procedure. This is underscored by the fact the court is being asked to accept the hearsay evidence of “Eric”, “Mike”, “Pennzoil” and others without any way of coming to an understanding of the reliability of this evidence other than the statements of the Claims Representative and the Claims Investigator that they “believe” it. Again, the plaintiff could have asked to cross-examine the Claims Representative and the Claims Investigator or sought to examine “Mike”, “Eric”, a representative of “Pennzoil” or others to determine if the information they “believed” should be accepted by the court. I would be hard-pressed to understand how proceeding in that way would respond to the “efficiency rationale” of a summary trial.
[20] In his submissions, counsel for the defendant submitted that proceeding by way of summary judgment would create efficiencies such that a two-day trial would be reduced to a two-hour motion. It is not at all clear that this is so. The intent of a summary trial is that evidence-in-chief will be provided by affidavit, supplemented by an oral examination of not more than ten minutes. A party is to complete all its cross-examinations within fifty minutes (see: Rule 76.12(1) of the Rules of Civil Procedure). Given this guidance, it is difficult to understand why a summary trial of this matter would last two days. This is particularly so if the defendant planned to refer to the hearsay evidence of “Eric”, “Mike”, “Pennzoil” and others, but rely on the Claims Representative and the Claims Investigator to demonstrate its reliability, rather than provide affidavits from these people and call them as witnesses at the trial.
[21] The problem is that the defendant is relying on the obligation of the plaintiff, as the responding party, to put “his best foot forward” when confronting a motion for summary judgment. This would have required the plaintiff to file affidavits and cross-examine the Claims Representative, the Claims Investigator and perhaps other parties. The plaintiff, either by design or through ignorance of the process, is relying on the procedure of a summary trial to get this proceeding to a speedy and economical resolution. He should not be faulted because he did not fall prey to the bait the defendant set, perhaps unintentionally, by bringing this motion.
[22] This case should have been left to proceed to a summary trial. It would recognize the “efficiency rationale” to which the Court of Appeal referred and allow the judge to hear the evidence to better assess the credibility of the plaintiff and the reliability of the information apparently provided by “Eric”, “Mike”, “Pennzoil” and whoever else the defendant relies on.
[23] The motion is dismissed.
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