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Civil Litigation Dicta - Summary Judgment - Contrasted with Simplified Procedure. Elbassiouni v. Brenn
In Elbassiouni v. Brenn (Ont CA, 2023) the Court of Appeal considered an appeal of a successful summary judgment order emanating from a simplified procedure action, here where the issues were breach of ancillary warranties within an APS ('deficiencies'). In these quotes the court responds to the appellant's argument that the case was not an appropriate one for summary judgment:[9] This was an appropriate case for summary judgment. It involved a straightforward real estate transaction. In terms of liability, it involved an interpretation of warranties that were drafted in a manner very favourable to the respondent. The motion judge found there was nothing to contradict the respondent’s assertion of her genuine belief. He also found that it was even “[m]ore problematic” that the appellant’s failed to adduce any admissible evidence that they suffered damages as a result of the alleged breaches. On the admissible evidence before him, it was open to the motion judge to reach these conclusions. We are also satisfied that they are explained sufficiently in his reasons. . Duraisami v. Yaworski
In Duraisami v. Yaworski (Ont CA, 2023) the Court of Appeal considered the appellate argument that the trial judge erred in holding the case was appropriate for summary judgment, here given that it had been commenced under the R76 simplifed procedure:[8] The appellants argue that the motion judge erred in finding that the claims of the respondent were appropriate for summary judgment. This argument focuses on the fact that the respondent’s claim was brought under the simplified procedure in rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appellants argue that because of the restricted ability to cross-examine on a motion and minimal efficiency gains in a summary judgment motion in a rule 76 action, summary judgment was not appropriate, citing this court’s decisions in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at paras. 254-57; Manthandi v. ASCO Manufacturing, 2020 ONCA 485, 63 C.C.E.L. (4th) 163, at paras. 33-37; Singh v. Concept Plastics Limited, 2016 ONCA 815, at para. 23. The appellants further argue that there were credibility issues in this matter that were not appropriately determined on summary judgment.
[9] We disagree. The motion judge was alive to the issue of whether it was appropriate to decide this action by summary judgment, given that it was a rule 76 proceeding. His reasons are clear that he considered the appropriate legal analysis, referring to this court’s decisions in Combined Air and Manthadi. We see no palpable and overriding error in his finding that the action was document driven and that the relevant facts were undisputed. This summary judgment motion did not turn on findings of credibility. There was no prejudice to the appellants from the matter being determined by summary judgment.
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