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Civil Litigation Cases - Practice. Canada One Family Network v. Cach Platform Inc. [query: only arguments advanced oral submissions need be considered?]
In Canada One Family Network v. Cach Platform Inc. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a commercial tenant's appeal, this brought against "an order terminating Canada One’s lease with Cach, granting Cach possession of the Property, ordering that Canada One pay Cach any arrears of rent and rent up to the date that Cach gained possession of the property and declaring that Ms. Zhu had no signing authority or control over Cach’s bank account at the Royal Bank and declaring that Wah Hui Lam, the principal of Cach had sole signing authority and control regarding that bank account".
Here the appeal court would limit appeal grounds to that "based on the evidence that was brought to the attention of the judge" - as opposed to that on record [para 29-31]:[25] Cach takes the position that this was not a motion for partial summary judgment. None of the material filed in support of the motion requested partial summary judgment and it was not referred to as a motion for summary judgment when it was scheduled by Koehnen J. The fact that Myers J. referred to it as a motion for partial summary judgment does not mean that is what it was. Rather, it was a motion for injunctive relief and for relief under Part III of the Commercial Tenancies Act.
[26] Regardless of how this motion is characterized, Myers J. made a finding that the Order was a final order. This finding has not been appealed. Therefore, it is appropriate to examine whether the motion judge should have made a final order in the circumstances of this case. The concerns with doing so are same as the ones that have been highlighted by the Court of Appeal with reference to partial summary judgments.
[27] The motion judge found that the record before him was uncontested. Subsequent to the argument of this appeal the panel found that there was a transcript of a cross-examination of Ms. Zhu that was not filed or adverted to during the hearing of the appeal, but that was before the motion judge. The transcript was referred to by Cach during its submissions but not by Canada One during its submissions. The panel wrote to counsel requesting that they make submissions on the issue of whether the transcript, which did contain answers from Ms. Zhu contesting some of the key facts asserted by Cach, meant that the motion judge erred when he found that the record before him was uncontested.
[28] The Appellants’ submitted that the motion judge did err and that this error was material. In doing so they pointed to those portions of the transcript that they assert contest the facts put forward by Cach.
[29] The problem with this submission is that the Appellants did not refer the motion judge to those portions of the transcript during the hearing before him. As put by the Divisional Court in Cannon v. Geritz, 2022 ONSC 6867 (Div. Ct.):[37] A determination of whether a judge committed a reversible error can only be made by examining whether that judge rendered a decision and made appropriate decisions based on the evidence that was brought to the attention of the judge. To suggest otherwise is to invite litigation chaos and uncertainty. If judges are required to look for additional language in a document that has not been clearly brought to their attention by a litigant with respect to an issue that was not put in issue on the motion, the decision-making process would be endless. That result runs contrary to the goals of our adversary system. (emphasis added). [30] In Wasyluk v. Simcoe (County), 2023 ONCA 781, the Court of Appeal states the following:[15] When reviewing a trial judge’s reasons for palpable and overriding error, this court must consider the reasons as a whole in the context of the issues raised and the arguments made. Faraj v. Fellowes, [2022] ONCA 254, at para. 45. It is not enough for an appellant to point to an ambiguity, inconsistency, omission, or other shortcoming in some aspect of the trial judge’s reasons. Appeal courts do not exist to grade the reasons of trial judges. Appellate courts must determine, on a fair and full reading of the record as a whole, whether the appellant has demonstrated reversible error. When the alleged error targets the fact-finding process at trial, deference sounds the loud key-note for appellate review. [31] In my view, it was not a reversible error for the motion judge not to consider evidence that was never brought to his attention during the hearing before him. I note again that this evidence was also not adverted to by counsel during the appeal before us.
[32] My view on this is not changed by the fact that the Appellants did not have a lawyer. To put the onus on a motion or trial judge to dig through the record to find material that may support the position of a self-represented litigant is to risk distorting the adversarial process by turning the judge into an advocate for the self-represented litigant. That is not and cannot be the judge’s role: College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, 93 O.R. (3d) 139, at paras. 57-59.
[33] Thus, I find that the motion judge did not err when he found that evidence before him was uncontested. The issues before him were urgent and he was in a position to make the findings he did in an efficient and cost-effective way. This fostered justice, rather than impeding it.
[34] The real concern is the danger of inconsistent findings at trial. This concern was discussed by Myers J., particularly with reference to the question of which lease was the valid lease. In addition, there is the question of who the owners of Cach actually were. While the motion judge did not specifically find that the five-year lease was the only valid lease, as Myers J. noted, he proceeded on this assumption. He also made findings that Mr. Lam was the only director of Cach and that the only person entitled to control it. If found to be binding these findings could prejudice the Appellants’ damages claim at trial.
[35] The question then becomes whether it is an error for a judge to make a final order on an uncontested record because of the possibility that at trial the record may in fact be contested. In my view it is not. First, if a trial judge chooses to make a different factual finding than the motion judge did, it will be easy to explain why. Second, as the law on summary judgment motions make clear, a party to a summary judgment motion must put their best foot forward or risk losing. In this case, the Appellants lost because of their failure to advert to any admissible evidence or to point the motion judge to any documents in support of their position. In the face of this failure, it would be an injustice not to grant urgent relief when the only evidence brought to the attention of the motion judge was in support of the relief being granted.
[36] Thus, even if the Appellants are correct and the Order is an order for partial summary judgment, the motion judge did not err in granting the Order. . Brown v. Brown
In Brown v. Brown (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against the refusal of a "request to rely on late-served documents at the trial", this in a context of non-compliance with case management directions by the requester.
Here the court usefully comments on the practice issue of labelling or numbering exhibits to "distinguish between documents tendered but not admitted into evidence, and the documents received in evidence":[12] Nothing turns on the mis-labelling of some of the Appellant’s documents on the Exhibit List. The optimal approach would have been to identify those documents as “lettered” Exhibits, rather than “numbered” exhibits, to distinguish between documents tendered but not admitted into evidence, and the documents received in evidence. See: 1162740 Ont. Ltd. v. Pingue (2017), 2017 ONCA 52 (CanLII), 135 OR (3d) 792 (CA) – the comments of the Court of Appeal in Pingue respecting documents not marked as numbered exhibits apply equally to documents found inadmissible: they should be marked in some fashion so that a reviewing court can identify – from the record – the documents in issue on the evidentiary ruling. ....
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