|
Civil Litigation - Summary Judgment - Evidence (Mini-Trial). Tan v. Yu
In Tan v. Yu (Div Court, 2024) the Divisional Court briefly notes the evidentiary duties of parties in a summary judgment motion:[28] .... Each party in a summary judgment motion “must put its best foot forward”, and “the court is entitled to assume that the record contains all the evidence the parties would present at trial”: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5. . Boltyansky v. Joseph-Walker
In Boltyansky v. Joseph-Walker (Ont CA, 2024) the Divisional Court dismissed an appeal against an order granting "provisional summary judgment ... against them in a mortgage action".
Here the court considers an argument related to a "future contingent evidentiary record":[15] We also reject the appellants’ related submission that summary judgment was based on a “future contingent evidentiary record”, a characterization the appellants based on the prospect that “more expansive” evidence could emerge from the Fraud Action. In spite of being given the benefit of opportunities for discovery that delayed the summary judgment motion, the appellants have offered no realistic, non-speculative basis for their assertion that evidence could emerge during the Fraud Action to support their fraud theory against the respondents. They are not entitled to waylay access to summary judgment based on the speculative hope that future evidence might materialize. The appellants had an obligation to put their best foot forward during the summary judgment motion: Combined Air Mechanical Services Inc. et al. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 15; Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, 52 B.L.R. (5th) 51, at para. 9. But they failed to raise any realistic prospect that the respondents were complicit in the alleged fraud. The motion judge was entitled to proceed on the evidence before her. . Ang v. Lin
In Ang v. Lin (Ont CA, 2024) the Ontario Court of Appeal dismissed a summary judgment appeal, here on grounds that the trial court considered the 'genuine issue required for trial' evidence required under the R20.04 'mini-trial' provisions:[5] The motion judge reviewed and applied the relevant governing principles concerning motions for summary judgment, including the court’s enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, and concluded, correctly in our view, that he could determine this matter on the basis of the record filed and that there were no genuine issues requiring a trial.
[6] We disagree that there were any conflicting factual issues that required a trial for determination. The motion judge had to determine the straightforward factual issues of what the amount of anaesthetic was actually administered to the appellant and whether the respondent caused the alleged damages claimed by the appellant. The motion judge preferred the respondent’s uncontroverted evidence about the amount of anesthetic administered, namely, two cartridges totalling 3.6 cubic centimetres/millilitres, and that he did not damage the appellant’s teeth and gums or cause any damage to the appellant. The motion judge noted that the appellant had not met her burden to prove that the damages were caused as alleged. In particular, she produced no admissible evidence from the other dentists who subsequently saw her that there were injuries to her teeth and damage to her gums. . Athanassiades v. Rogers Communications Canada Inc.
In Athanassiades v. Rogers Communications Canada Inc. (Ont CA, 2024) the Ontario Court of Appeal dismisses an action against Rogers Communication for "damages allegedly arising from Rogers’s failure to provide him with internet service and its subsequent collection attempts" under causes of action: "1) spoliation, 2) intentional infliction of mental suffering, 3) defamation and 4) breach of contract." The defendants responded with a summary judgment motion, which resulted in two causes of action being dismissed (which were final judgments) and an order for a 'mini-trial' (an interlocutory order, here under R20.04(2.2)). The plaintiff then appealed to the Court of Appeal before the mini-trial was conducted. The court's legal officer then raised a concern about 'bifurcation' (which I interpret as a concern about 'multiplicity' [CJA s.138]).
The court cites the appellant's 'appeal route' position [CJA 6(1)(b) and 6(2)] in this unusual summary judgment context, as follows:[8] The only part of the notice of appeal that explicitly differentiates between the different aspects of the Order is in the section dealing with this court’s jurisdiction. There, the appellant states that the court has jurisdiction over the appeal based on s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, because the dismissal of the claims for intentional infliction of mental suffering and spoliation are final orders. He also relies on s. 6(2) of the Courts of Justice Act to explain why this court can hear the appeal as a whole.
....
C. Analysis
[10] Section 6 of the Courts of Justice Act establishes this court’s jurisdiction. Pursuant to s. 6(1)(b), the court has jurisdiction to hear appeals from final orders, unless the final order falls within the Divisional Court’s monetary jurisdiction of $50,000 or less, or the appeal otherwise lies to the Divisional Court by statute. Pursuant to s. 19(1)(b) of the Courts of Justice Act, appeals from interlocutory orders lie to the Divisional Court, with leave of that court. Section 6(2) of the Courts of Justice Act allows this court to hear combined appeals that fall within the court’s jurisdiction and the jurisdiction of the Divisional Court:The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. [11] This appeal raises unusual jurisdictional and procedural concerns. There is no doubt that the aspects of the Order dismissing the claims for spoliation and intentional infliction of mental suffering are final. However, these orders were made in the context of a motion for summary judgment that has not yet been completed. Indeed, the mini-trial dealing with the claims for defamation and breach of contract has not yet taken place. The motion judge’s order that these issues be dealt with by way of a mini-trial is interlocutory. Therefore, the proposed appeal arises from a mix of final and interlocutory orders, in circumstances where the motion for summary judgment, which was meant to deal with all four causes of action, has not been completed.
[12] This raises three related concerns that led to the decision to dismiss the appeal.
[13] The first concern is jurisdictional. This court does not have jurisdiction to hear the interlocutory aspects of the Order, absent an order granting leave to appeal from the Divisional Court. Mr. Athanassiades relies on s. 6(2) of the Courts of Justice Act as authority for this court to hear the appeal. However, this court has established that, where an appeal lies to the Divisional Court and leave is required from that court, in the normal course, the appellant must first obtain leave from the Divisional Court before seeking to combine an appeal that lies to the Divisional Court with an appeal that lies to this court as of right: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at paras. 15-16; Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55; Brown v. Hanley, 2019 ONCA 395, at paras. 19 and 20. In some exceptional cases, where an appellant has failed to obtain leave from the Divisional Court, this court has granted leave as part of the appeal: Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), at para. 9; Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 289; P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at paras. 37-39. However, these are exceptional cases where this court has found that leave would inevitably have been granted because the final issues that were decided are so intertwined with the interlocutory issues raised on appeal. This is not such a case. On the contrary, as discussed below, the focus of the appeal is on the interlocutory aspects of the decision and not on the final aspects.
[14] The second concern relates to the manner in which Mr. Athanassiades has framed his appeal. In theory, despite the fact that this court does not have jurisdiction over the interlocutory aspects of the appeal, we could proceed to hear an appeal from the aspects of the Order that are final. However, in the circumstances of this case, such an approach is impracticable because the crux of Mr. Athanassiades’s complaint is not the dismissal of his claims for intentional infliction of mental suffering and spoliation per se, but rather the manner in which the motion judge approached the motion for summary judgment, with particular emphasis on the terms of his direction of a mini-trial.
[15] The third concern is one of procedure and judicial economy. Rule 20 of the Rules of Civil Procedure sets out the procedures to be followed on a motion for summary judgment. Rule 20.04(2) requires motion judges to grant summary judgment if they are satisfied that there is no genuine issue for trial. Rules 20.04(2.1) and (2.2) set out the motion judges’ factfinding powers on a motion for summary judgment. This includes the authority to hear oral evidence. Accordingly, the motion judge’s direction that there be a mini-trial and further submissions on the claim for breach of contract is part of the motion for summary judgment proceeding. This appeal was therefore launched before the motion for summary judgment was even completed.
[16] It is singularly impractical and a waste of judicial resources to hear an appeal from a motion for summary judgment that has not yet been completed. This leads to an unnecessary and wasteful fragmentation of summary judgment proceedings that are designed to resolve disputes in a timely and cost-effective manner. If Mr. Athanassiades loses after the completion of the motion for summary judgment, this would be the sensible point in time to appeal the full outcome of the motion for summary judgment. If Mr. Athanassiades succeeds on the balance of the issues left to be decided on the motion for summary judgment, he can then decide whether to proceed to trial on the remaining issues or whether to appeal with respect to the aspects of his claim that were dismissed before proceeding to trial. This is a far more efficient way of proceeding.
[17] Awaiting the outcome of the mini-trial also potentially avoids concerns over partial summary judgment. As this court has cautioned on several occasions, courts should only grant partial summary judgment in the “clearest of cases”, in part to avoid inconsistent or duplicative findings: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 at para. 34; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561 at para. 4; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 26-29. At this point, given that the mini-trial has not been decided, the issue of partial summary judgment has not yet crystallized. It is unknown whether the motion for summary judgment will dispose of all causes of action or whether the motion judge will dismiss Rogers’s motion for summary judgment in relation to those causes of action and refer one or both of them to a full trial. There may well be concerns over granting partial summary judgment in this case, but it is not possible to properly decide or address that issue until the completion of the mini-trial.
[18] The appeal was therefore dismissed because the court does not have jurisdiction over the interlocutory aspects of the Order, because the grounds of appeal do not properly distinguish between the final and interlocutory aspects of the Order, and because the motion for summary judgment has not been completed.
[19] Absent some truly exceptional circumstances, which are not present in this case, parties ought not to appeal to this court before a motion for summary judgment has been completed. Although it would be unwise to state categorically that such an appeal should never be brought, the circumstances under which it would be advisable are not readily apparent. In any event, any such appeal must be brought with proper regard to the respective jurisdictions of this court and the Divisional Court. . Athanassiades v. Rogers Communications Canada Inc.
In Athanassiades v. Rogers Communications Canada Inc. (Ont CA, 2024) the Ontario Court of Appeal dismisses an action against Rogers Communication for "damages allegedly arising from Rogers’s failure to provide him with internet service and its subsequent collection attempts."
Here the court, facing a summary judgment motion - held that a mini-trial [under RCP R20.04(2.2)] was required:[2] After the parties exchanged affidavits of documents and conducted discoveries, Rogers brought a motion for summary judgment. Based on the parties’ affidavits and transcripts from cross-examinations, the motion judge dismissed Mr. Athanassiades’s claims for spoliation and intentional infliction of mental suffering because he was satisfied that these claims did not raise genuine issues for trial. The motion judge also found that he could not decide the claim for defamation without viva voce evidence and that he required further submissions on the claim for breach of contract. On this basis, the motion judge directed that these issues be decided by way of a mini-trial pursuant to r. 20.04(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. . 2275518 Ontario Inc. v. The Toronto-Dominion Bank
In 2275518 Ontario Inc. v. The Toronto-Dominion Bank (Ont CA, 2024) the Ontario Court of Appeal considered it's ancillary evidence summary judgment powers [R20.04 (2.1-2.2) - 'Summary Judgment - Disposition of Motion - Powers'], focussing on the power of the court to hear evidence on non-parties:[7] TD Bank’s summary judgment motion came before the motion judge in December 2022. He had concerns based on the record before him that there was at least one genuine issue requiring a trial and concluded that he could not fairly determine the motion without resort to the enhanced powers under r. 20.04(2.1) or (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (the “Rules”). He also concluded that it would be in the interests of justice for him to hear oral evidence in a “mini-trial” to determine if a fair and just determination of the issues was possible without a trial.
....
[9] In his decision on the summary judgment motion, the motion judge thoroughly outlined his reasons for concluding that it was necessary and proper to exercise the enhanced powers under r. 20.04(2.1) and (2.2). He also found, for several reasons, that the appellants’ defence of misrepresentation did not raise a genuine issue requiring a trial.
....
(1) The motion judge did not err by permitting a non-party to give oral evidence at the mini-trial
[33] The appellants first argue that the motion judge erred by ordering that Stanleigh, a non-party, testify during the mini-trial proceeding in violation of r. 20.04(2.2). The appellants submit that a motion judge’s jurisdiction to order oral evidence on a mini-trial is limited to ordering evidence from only the parties themselves. They say that a mini-trial is not intended to be a trial that includes a parade of witnesses testifying about multiple issues.
[34] The appellants’ submission must be rejected. Rule 20.04(2.2) reads as follows:(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [Emphasis added.][2] [35] Rules 1.04(1) and (1.1) provide important guidance concerning the proper interpretation of the Rules:
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[36] Further, I note that the principles of statutory interpretation apply equally to regulations, such as the Rules of Civil Procedure, subject to the proviso that they must also be read in the context of the enabling statute: Ayr Farmers Mutual Insurance Company v. Wright, 2016 ONCA 789, 134 O.R. (3d) 427, at para. 27. The modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting from Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. See also Ayr Farmers, at para. 26.
[37] As can be seen from the text of r. 20.04(2.2), it contains no limitation such as the one advanced by the appellants, restricting the jurisdiction of the court to order evidence on a mini-trial from non-parties. On its face, the rule states that oral evidence can be “presented” by one or more parties. It does not state that evidence can only be given by parties.
[38] Significantly, an interpretation permitting the court to order that a party may present oral evidence from a non-party is entirely consistent with the direction of the Supreme Court in Hyrniak, at paras. 63 and 66, where it stated that a motion judge should invoke their power to resolve disputes when it allows the judge to reach a fair and just adjudication on the merits in a manner proportional to what is at stake in the litigation. Although the court stated that “this is more likely to be the case when the oral evidence required is limited” it also said “there will be cases where extensive oral evidence can be heard … avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure”: at para. 63. The clear purpose of r. 20.04(2.2), as shown by the authoritative caselaw interpreting it, is to permit a motion judge to order the parties to present oral evidence from appropriate sources where it is likely to allow the judge to reach a fair and just adjudication on the merits in a proportionate manner.
[39] Considering the text, context and purpose of r. 20.04(2.2), I see no basis for interpreting it in the restrictive manner advanced by the appellants. I would dismiss the first ground of appeal. . Bell v. Amini
In Bell v. Amini (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against a successful summary judgment ruling, here focussing on whether the evidentiary record was sufficient:[13] The motion judge referred to and applied the correct test for summary judgment as set out in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
[14] After the motion judge considered the powers available to her under r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, she concluded that she could “make a just decision on the evidentiary record” before her. This evidence, per the motion judge, was sufficient to demonstrate that comments made by the appellant led to a breakdown of the solicitor-client relationship. As explained by Karakatsanis J. in Hyrniak, the exercise of powers available to motion judges on summary judgment applications attracts deference on appeal: Hyrniak, at paras. 81-84. The findings made by the trial judge were available to her on the record. We see no basis on which to interfere with the motion judge’s decision. . Quantum Dealer Financial Corporation v. Toronto Fine Cars and Leasing Inc.
In Quantum Dealer Financial Corporation v. Toronto Fine Cars and Leasing Inc. (Ont CA, 2023) the Court of Appeal, in allowing an appeal from a successful summary judgment, considered the evidence jurisdiction of a summary judgment motion judge:[44] On a summary judgment motion, the motion judge may exercise certain fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O., Reg. 194, which provides:(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. [Emphasis added] [45] In my view, the motion judge drew unwarranted inferences supporting liability (i.e., knowledge of and participation in Diego’s wrongdoing) based on his mere rejection of their evidence. The motion judge also erred in his treatment of the evidence as a whole. To a certain extent, he considered the evidence of the “Guillen Defendants”/“GD” as a package, rather than considering whether the evidence against each of them established the torts of knowing assistance and/or knowing receipt. When he did turn his mind to the evidence of the individual appellants, his rejection of their evidence was sometimes anchored in unwarranted assumptions about human behaviour. This was particularly the case with Claudia, who was the single most important witness in this narrative of events.
....
[80] Returning to r. 20.04(2.1), on a summary judgment motion, the judge enjoys a wide discretion to weigh the evidence, evaluate the credibility of the witnesses, and draw reasonable inferences. However, for the reasons described above, a number of critical inferences drawn by the motion judge were not reasonable, and some of his credibility findings were based on unwarranted assumptions. For these reasons, the disposition cannot stand. . Tiwari v. Singh
In Tiwari v. Singh (Ont CA, 2023) the Court of Appeal considered the basis of affidavits used in summary judgment motions:[7] ... Finally, we note that there is nothing improper per se in relying on information and belief on a motion for summary judgment: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.02(1). . Tiwari v. Singh
In Tiwari v. Singh (Ont CA, 2023) the Court of Appeal considered the evidentiary duties of a party to a summary judgment motion:[10] On the motion for summary judgment, the appellants had an obligation to put their best foot forward: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97. As found by the motion judge, they failed to do so. We agree with the motion judge that this was an appropriate case for summary judgment. . Rosehaven Homes Limited v. Aluko
In Rosehaven Homes Limited v. Aluko (Ont CA, 2022) the Court of Appeal drew a distinction between the requirements of admitting an expert report in a summary judgment motion, and admitting one at trial (under R53):[8] First, the appellants argue that the motion judge erred in admitting and relying on Rosehaven’s rule 53.03 litigation expert report (“Rosehaven’s expert report”) concerning the value of the Property. Rosehaven’s expert report assessed the Property’s value at $1,510,000.00 as of April 13, 2017 and at $1,050,000.00 as of June 4, 2019 (the date of the agreement of purchase and sale under which the Property was resold). In his reasons, the motion judge observed that the appellants did not provide a litigation expert report. Rather, Mr. Aluko attached as an exhibit to his affidavit filed on the summary judgment motion a draft report obtained by one of the appellants’ prospective lenders (the “Draft Report”), which was clearly marked “Draft Copy – Not To Be Relied Upon”.
[9] Beginning with the admissibility issue, the appellants argue that rule 53.03 governs the exchange of expert reports prepared for trial. Relying on Karami v. Kovari, 2019 ONSC 637, at para. 29, they say the motion judge erred in admitting Rosehaven’s expert report on a summary judgment motion. In addition, the appellants point out that the author of Rosehaven’s expert report failed to sign a Form 53 Acknowledgment of Expert’s Duty and failed to enumerate the instructions received from Rosehaven concerning preparation of the report. The appellants say these are mandatory requirements prescribed by rule 53.03(2.1) to support the admissibility of a litigation expert’s report.
[10] We are not persuaded that the motion judge erred in admitting Rosehaven’s expert report as evidence on the summary judgment motion. Rosehaven’s expert report was appended as an exhibit to an affidavit sworn by one of its co-authors. The deponent stated: “I confirm that I adopt and agree with the contents of the Reports[2] as drafted.”
[11] The fact that rule 53.03 sets out rules for the exchange of expert reports for the purposes of a trial does not undermine the ability of a party to introduce expert evidence on a motion, provided that the rules relating to the admissibility of evidence, in general, and expert evidence, in particular, are respected. This case is distinguishable from Karami, because, in that case, the expert’s report was not verified by an affidavit from the expert. Moreover, the motion judge in Karami was not satisfied that the expert had been properly qualified: Karami, at paras. 27 and 29.
|
