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Applications

. 2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar)

In 2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar) (Div Ct, 2021) the Divisional Court held that a matter brought as an application (not a motion for summary judgment in contrast) should have been brought as an action (as there were facts to be determined) and ordered it to trial under R38.10:
[12] An application is not a motion for summary judgment. In Jackson v. Solar Income Fund Inc., 2016 ONCA 908, the Court of Appeal allowed an appeal of an application brought under Rule 14.05(3)(h). The appellant argued that the application judge erred by failing to look beyond the face of a promissory note to the factual matrix. The Court stated,
What is at issue is not the interpretation of the promissory note, but the determination of whether the promissory note was modified by a subsequent agreement such that, despite its clear wording, it is not enforceable on demand. This requires an understanding of the broader factual matrix, which includes the other agreements that may or may not conflict with the promissory note. This cannot be determined simply by reading the promissory note in isolation from the larger transaction of which it appears to be a part, or of understanding what the various agreements together were expected to achieve.

For the same reason, the respondent cannot rely on Rule 14.05(3)(h), which authorizes proceeding by way of application “where it is unlikely that there will be any material facts in dispute.” There are material facts in dispute, in particular, whether there was an agreement to convert the promissory note from a demand note to a note not payable on demand, and the resolution of this dispute requires the trial of an action.
[13] There may be an issue as to whether this principle applies to cases brought under other subsections of Rule 14.05(3). In McKay Estate v. Love (1991), 1992 CanLII 7508 (ON SC), 6 O.R. (3d) 511, the application judge found that the provisions in Rule 14.05 that an application not contain disputed facts is limited to subrule (h). This decision was affirmed on appeal without specific comment on this principle. In a subsequent decision of the Court of Appeal, however, in Maurice v. Alles, 2016 ONCA 287, the Court held that the provisions of Rule 20 apply in the context of an action, but not an application. The court went on to hold that, “where there is conflicting evidence that required credibility determination on central issues the application must be converted to an action”.

[14] A similar conclusion was reached by the Court of Appeal in Gorden Glaves Holdings Ltd. v. Care Corporation of Canada Ltd., 2000 CanLII 3913 (ON CA) at para. 30.

[15] Similarly, in this case I am of the view that the application judge was in error when he concluded that a landlord tenant relationship existed between the appellant and the respondents. This issue was subject to a dispute on the evidence which involved a broad factual matrix and which involved a larger transaction where the terms were in dispute.

[16] This case was, therefore, not one which was amenable to a summary decision on the application. The appeal is therefore allowed and the application is to proceed to trial in accordance with Rule 38.10(b).
. Family and Children’s Services of Lanark, Leeds and Grenville v. Co-operators General Insurance Company

In Family and Children’s Services of Lanark, Leeds and Grenville v. Co-operators General Insurance Company (Ont CA, 2021) the Court of Appeal commented briefly when an application may be converted to an action:
[48] Rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a proceeding may be brought by application where the relief claimed is the determination of rights that depend on the interpretation of a contract. An application will however be converted to an action where there are material facts in dispute, complex issues requiring expert evidence or the weighing of evidence, or other need for discoveries or further pleadings: see Fort William Band v. Canada (Attorney General), 2005 CanLII 28533 (ON SC), 76 O.R. (3d) 228 (S.C.), at paras. 5 and 28-31.
. Lucas v. 1858793 Ontario Inc. (Howard Park)

In Lucas v. 1858793 Ontario Inc. (Howard Park) (Ont CA, 2021) the Court of Appeal judge praises the application process as being more efficient in some cases:
[91] In regard to the application judge’s comment that a suit for damages could drag on for years, I would note that an application is designed as a more stream-lined device than an action to obtain a remedy, avoiding the delays and costs too often associated with productions, discoveries, and the scheduling of trials. And the potential advantage of an application over an action was demonstrated in this case: the Lucases issued their notice of application in March 2019 and obtained their judgment less than 10 months later, in January 2020. An example of the court’s process satisfying the “service guarantee” promised by r. 1.04(1) of the Rules of Civil Procedure to secure “the just, most expeditious and least expensive determination of every civil proceedings on its merits”: Louis v. Poitras, 2020 ONCA 815, at para. 33; 2021 ONCA 49, at para. 22.
. Glegg v. Glass

In Glegg v. Glass (Ont CA, 2020) the Court of Appeal considers a point of local practice with applications under R38:
[29] Rule 38.09.1(1) of the Rules of Civil Procedure requires the party who makes an application on notice to give the registrar, at least three days before the hearing date, a confirmation of application using Form 38B. If no confirmation is given, the application will not be heard except by order of the court: r. 38.09.1(2). Regional practice may modify the content of confirmation form. The modified Form 38B used in the Toronto Region requires counsel to identify the materials that have been filed and will be relied upon for the hearing of the application. As the form states, it “must be attached to the materials being filed and all materials to be relied on at hearing must be filed in one complete package within the required timelines.”[3]

[30] As is apparent from the language on the Toronto Region’s modified confirmation form, the document operates as a device that assists court staff in the Civil Scheduling Unit to identify the materials that should be delivered to the judge hearing an application or motion. The form does not act as some sort of administrative constraint on a judge’s discretion to determine the materials that are in fact relevant to the decision he has to make.
And also the appeal court endorses a broad remedial jurisdiction of the application judge:
[36] I do not accept this submission. The application judge had the authority to make the direction he did. Rule 38.10(1)(a) provides that a judge hearing an application may “grant the relief sought or dismiss or adjourn the application, in whole or in part and with or without terms.” It was open to the application judge to direct the delivery of his reasons to other courts as a term of his dismissal of the application.


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