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Civil Litigation - Summary Judgment - Evidence - General. 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. . 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). . Caplan v. Atas [see the main link for numbered case cites]
In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'. In this quote the court usefully addresses the law of summary judgment:(a) Summary Judgment Principles
[106] The principles applicable on motions for summary judgment are set out in Hryniak v. Mauldin[29] and Sweda Farms v. Egg Farmers of Ontario.[30]Prior to Hryniak, the test for summary judgment was: can a full appreciation of the evidence and issues required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?[31] Under this test, generally, in cases where there must be multiple findings of fact on the basis of testimony from a number of witnesses, and/or where there is a voluminous record, a motions judge will not be able to come to a “full appreciation” of the case without a trial. However, that does not mean that a substantial record, or numerous witnesses, will always preclude summary judgment. The focus is on the relationship of the record to the contested issues that have to be decided.[32]
The length and complexity of the statement of claim is of little significance on a motion for summary judgment. The plaintiffs must show that there is evidence to support their allegations.[33] A party may not rest on allegations in its pleadings on a motion for summary judgment. The party must “put its best foot forward” or “lead trumps or risk losing”.[34] [35] [107] Hryniak dispenses with the trial as the measuring standard against which a motion for summary judgment is measured:Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it. As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;[36]
(3) If the court cannot grant judgment on the motion, the court should:
(a) Decide those issues that can be decided in accordance with the principles described in 2), above;
(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;[37]
(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion. The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a “full appreciation” of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.[38]
[108] Two points from this summary bear emphasis for these motions for summary judgment. First, the parties must put their “best foot forward” on these motions. They must adduce evidence and may not rest on the allegations set out in their pleadings. The plaintiffs have adduced a voluminous record to support their motion. Atas has adduced no evidence in her defence of these motions. This does not mean the plaintiffs should win the motion, solely because of Atas’ failure to place any evidence before the court. It is still for the plaintiffs to prove on a balance of probabilities that there are no issues for trial.
[109] Second, a point seldom discussed in the vast jurisprudence respecting summary judgment, the court is entitled to presume have placed before it “in some form” all of the evidence that will be available for trial. The court does not presume that the evidence on the motion is the “best evidence” or in the form of the evidence that would be tendered at a trial. Quite the contrary, hearsay evidence may be tendered in affidavits on information and belief on a motion for summary judgment, evidence that would not generally be admissible in this form at a trial unless a successful Khan application was brought.[39]
[110] It is expected that there will be fewer witnesses on a motion for summary judgment, and that some evidence may be presented in the form of will-says and other hearsay evidence that places a party’s case before the court in “summary” form: one of the tasks of the motions court will be to consider whether it is necessary to hear directly from witnesses whose evidence has been tendered in hearsay form, either through the use of the extended powers on a summary judgment motion, or by directing that the action, or some aspect of it, be tried.
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