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Civil Litigation - Summary Judgment - Evidence - Oral (Mini-Trial) [R20.04(2.2)]. Ntakos Estate v. Ntakos [oral evidence]
In Ntakos Estate v. Ntakos (Ont CA, 2022) the Court of Appeal considered a court's discretion to hear oral evidence in deciding whether there is a genuine issue for trial when hearing a summary judgment motion:[39] In addition, I see no merit to the appellants’ argument that the motion judge should have allowed them to conduct a viva voce cross-examination of Gus. On a motion for summary judgment, r. 20.04(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, gives a motion judge the power to order oral evidence. However, this is an exercise of discretion: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 68. In this case, it was open to the motion judge to decide that oral evidence was not required for him to determine that the appellants failed to put forward evidence that the settlements were obtained fraudulently or that they were unaware of the fraudulent conduct alleged in the 2019 proceedings until the release of the 2018 Tax Court decision. . Royal Bank of Canada v. 1643937 Ontario Inc.
In Royal Bank of Canada v. 1643937 Ontario Inc. (Ont CA, 2021) the Court of Appeal considered the doctrine concerning summary judgment:(1) The Framework for Summary Judgment
[23] At the heart of this appeal is the motion judge’s approach to summary judgment and, specifically, her treatment of the evidence and record before her. Absent an error of law, a misdirection, or the creation of an injustice through a decision that is clearly wrong, a motion judge’s determination of these questions is generally entitled to considerable deference on appeal: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 81-84. However, here, appellate intervention is required, as the motion judge fell into error and misdirected herself because she failed to determine whether summary judgment was appropriate, having regard to the entire evidentiary record and the Hryniak analytical framework.
[24] This determination required the motion judge to follow the analytical approach set out in Hryniak, at para. 66, which is summarized as follows:1. First, the motion judge should have determined if there was a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
2. Second, if there appeared to be a genuine issue requiring a trial, the motion judge should have determined if the need for a trial could be avoided by using the enhanced powers under r. 20.04(2.1) – which allowed her to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence – and under r. 20.04(2.2) to order that oral evidence be presented by one or more parties. [25] While summary judgment is an important tool for enhancing access to justice and achieving proportionate, timely, and cost-effective adjudication, there is no imperative on the court to use it in every case: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 49; Lesenko v. Guerette, 2017 ONCA 522, 416 D.L.R. (4th) 349, at para. 30. As affirmed by the Supreme Court in Hryniak, at para. 28, the overarching goal remains to have “a fair process that results in a just adjudication of disputes.”
[26] Indeed, notwithstanding the parties’ agreement that the action and counterclaims could be determined by summary judgment, it is still incumbent on the motion judge to decide whether it is appropriate to grant summary judgment: Rules of Civil Procedure, r. 20.04(2)(b).
[27] In determining whether summary judgment is appropriate, motion judges are required to engage with the Hryniak analytical framework process, as described above, look at the evidentiary record, determine whether there is a genuine issue requiring a trial, and assess, in their discretion, whether resort should be taken to the enhanced powers under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure. To do otherwise runs the risk that, in an effort to dispose of a case in a summary fashion, motion judges will not properly analyze the evidence: Trotter, at para. 49. Unfortunately, that is what occurred here.
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[39] Since the evidence adduced by the appellants was capable of supporting an allegation of misrepresentation and was unchallenged by the respondent in cross-examination, it was incumbent upon the motion judge to explain why she rejected the evidence: Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 124, leave to appeal refused, [2016] S.C.C.A. No. 207; Trotter, at para. 54; Lesenko, at para. 19. Her conclusory statements were insufficient. While she recited the evidence, she did not weigh it, evaluate it, or make findings of credibility as she was required to do in this case. She could not simply prefer one position over another without providing an explanation that is sufficient for appellate review: Gordashevskiy v. Aharon, 2019 ONCA 297, at para. 6.
[40] Rather, she was required to undertake a credibility analysis pursuant to the expanded judicial powers under r. 20.04(2.1) of the Rules of Civil Procedure to weigh the evidence, evaluate the credibility of the appellants’ deponents, and draw reasonable inferences: Trotter, at para. 54. Further, if the motion judge determined she could not assess credibility solely on the written record, she should have considered whether oral evidence or a trial were required: Trotter, at para. 55.
[41] While summary judgment may have been appropriate had the motion judge carried out the requisite analysis under r. 20.04(2.1) of the Rules of Civil Procedure and exercised her powers to hear oral evidence pursuant to r. 20.04(2.2), she did not seek to do so. . 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. . 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.
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[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.
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