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Civil Litigation Dicta - Summary Judgment versus Other Procedures. Ontario Securities Commission v. Money Gate Mortgage Investment Corporation
In Ontario Securities Commission v. Money Gate Mortgage Investment Corporation (Ont CA, 2020) the Court of Appeal considered the appropriateness of summary judgment procedures, here in receivership proceedings in a motion seeking 'advice and directions' of the court. The court addresses the use of summary judgment in both the context of receivership proceedings and in a motion other than one for summary judgment:[8] It is important, given the exigencies of receivership proceedings, that a court supervising the receivership decide issues on a summary basis, rather than pursuant to the costlier and more time consuming process of a trial, in cases where a summary process can determine the merits of a dispute fairly and justly. The motion judge did not err, in deciding that this matter could be dealt with summarily, by borrowing from the approach applied on motions for summary judgment, an approach designed to ensure that a case is disposed of without a trial only where to do so will result in its fair and just determination.
[9] The factual findings the motion judge made were available on the record and her rejection of the appellant’s argument of invalidity based on an unfulfilled condition of consent was free of legal error.
[10] The principles that inform when a court should decline to grant what would be a partial summary judgment ought to be applied in the receivership context with due consideration for the time sensitive and multi-stakeholder nature of a receivership proceeding. The motion judge did not infringe any principle against granting partial summary judgment in the context of this case.
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[13] The OSC has the power to apply to the Superior Court for the appointment of a receiver of a company where the appointment is in the best interests of the company’s creditors, security holders, or subscribers, or is appropriate for the due administration of Ontario securities law: Securities Act, R.S.O. 1990, c. S.5, ss. 129 (1) and (2).
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[41] First, the summary judgment process is designed to be a means to adjudicate and resolve disputes without undue process and protracted trials, and thus avoid unnecessary expense and delay: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. A receivership signals that creditors and other stakeholders are in need of protection. Unnecessary expense and delay can further imperil their positions.
[42] Second, summary judgment is designed to be a fair and just process to resolve a dispute and apply the relevant legal principles to the facts as found: Hryniak, at para. 28. The interests of the third party—the stranger to the receivership—are therefore respected.
[43] Third, the dividing line between a case that can be disposed of summarily and one where there should be a trial—the genuine issue requiring a trial test—has been the subject of authoritative jurisprudence and is dealt with regularly by Superior Court judges. The same is true of the surrounding features of the test which address how the record is developed and whether it is adequate to make summary judgment the proportionate, expeditious and less expensive means of achieving a fair result. It is preferable to use an established test than to try to construct a new one. In motions seeking a final decision that are not formally motions for summary judgment, the summary judgment procedure provides useful assistance by analogy: Polywheels Inc. (Re), 2010 ONSC 1265, at paras. 6-7.
[44] I therefore conclude that the motion judge did not err in entertaining the matter although it was raised by a motion for advice and directions, and in analogizing it to a motion for summary judgment.
[45] Nor was there unfairness to the appellant in the motion judge proceeding this way. The Money Gate receiver had been directed to hold the Sale Proceeds pending a distribution motion. The Money Gate receiver’s material on the motion described the history of the 254 Mortgage, noted the appellant’s position that it was asserting a claim to the Sale Proceeds, and set out the receiver’s position that the appellant was aware of and supported 254 borrowing funds and providing a second mortgage. It was clear that the receiver was seeking a final disposition of the appellant’s claim by motion, not by a trial. It was equally clear that the appellant was required, if it wished to oppose the receiver’s request, to support its position as to the merits of its claim and the appropriate process to determine it, on the basis of evidence, which it had the opportunity to file.
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