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Civil Litigation - Summary Judgment - Evidence - Ancillary Powers [R20.04(2.1)]. Ang v. Lin
In Ang v. Lin (Ont CA, 2024) the Ontario Court of Appeal dismissed a summary judgment appeal, here where the motion judge considered the R20.04(2.1) 'ancillary evidentiary' factors towards the 'no genuine issue required for trial' criterion:[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. . 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.
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[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.
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(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.
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