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Civil Litigation - Summary Judgment - Evidence

. 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.


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