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Simon Shields, LLB

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Civil Procedure - Summary Judgment - Only Available in Actions

Limitations - Oppression Remedy

Corporations - Oppression Remedy - Limitations

Maurice v. Alles (Ont CA, 2016)

In this case the Court of Appeal held that the R20 summary judgment procedures were not normally available in the context of an application, as opposed to an action. Here however the hearing judge's ruling granting summary judgment below was upheld nonetheless as an inconsequential procedural irregularity. The case stands for the proposition that any application seeking this remedy should be first converted to an action:
[25] Generally, a party who has participated in a process in the court below without complaint cannot object to that process on appeal: Harris v. Leikin Group Inc., 2014 ONCA 479 (CanLII), 120 O.R. (3d) 508, at para. 53; see also Marshall v. Watson Wyatt & Co. (2002), 2002 CanLII 13354 (ON CA), 57 O.R. (3d) 813 (C.A.), at paras. 14-15. I nonetheless think it is important to address the issue of the availability of a summary judgment motion on an application under Rule 14, especially given the increased prevalence and importance of summary judgment motions since the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87.

[26] The parties have brought one relevant decision to our attention. In Essex Condominium Corp. No. 5 v. Rose-ville Community Center Assn. (2007), 51 C.P.C. (6th) 89 (Ont. S.C.), Pomerance J. held that summary judgment was not available in the context of an application to wind up a corporation under the Corporations Act, R.S.O. 1990, c. C.38.

[27] Similarly, in Ravikovich v. College of Physicians & Surgeons (Ontario), 2010 CarswellOnt 6643 (S.C.), Ferrier J. concluded that summary judgment is not available in a judicial review application because the remedy is only available for actions and an action is a proceeding that is not an application.

[28] I agree with the analysis of the issue in both cases, ....
Additionally the court engaged in an extended discussion of the application of the general two-year limitation period to a corporate oppression remedy claim, here where ongoing oppression was alleged [paras 36-55].

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