Disposition before Trial

Disposition before Trial Presented By Andrew J. Heal January 13, 2011

© Heal & Co. LLP | Construction Lawyers | www.constructionlawyer.ca

Q: What's the difference between a good lawyer and a bad lawyer? A: A bad lawyer can let a case drag out for several years. A good lawyer can make it last even longer.



Under the Ontario Rules, three main pre-trial attacks on a proceeding •  motion to strike (Rule 21) •  dismissal for delay (Rule 24) •  summary judgment (new Rule 20)


motion to dismiss for delay brought by defendant motion to strike or for summary judgment can be brought by any party most of my comments from a defendant’s perspective


motion to strike (Rule 21)


is it plain and obvious the plaintiff’s case cannot succeed? is the plaintiff without legal capacity to sue?


must bring the motion promptly the whole idea is to bring the proceeding to an early halt must prepare a factum not inexpensive


example 1: no duty of care owed •  where the overall scheme of the legislation mandates that a public

authority owes a duty of care to the public as a whole, rather than a specific individual, insufficient proximity

•  “Rule 21.01(1)(b)… a party may move before a judge… to strike out a pleading on the ground it discloses no reasonable cause of action or defence”


example 2: plaintiff without legal capacity to sue •  eg. Even taking the claims as pleaded by the plaintiff as true for

the purposes of this motion, the plaintiff is without legal capacity to sue.

•  “Rule 21.01(3)(b)… A defendant may move before a judge to have an action stayed or dismissed on the ground that …(b) the plaintiff is without legal capacity to commence or continue the action…”


determining an issue before trial is attractive can the parties agree on facts to determine an issue of law?


a legal issue with a novel aspect is not suitable for determination under Rule 21 where “factual considerations arise” damages evidence still had to be led at a trial, no real cost savings, and factual inferences were being made from the pleadings PDC 3 Partnership v. Bregman + Hamman [2001] O.J. No. 422 (CA) you can’t use Rule 21 to decide an admissibility question or whether to move for summary judgment BDO Dunwoody v. Buckingham Securities (2008) O.R. (3d) 207 (SCJ)


three tips on a motion to strike •  tactically, does it seriously undermine the

plaintiff’s case? •  are you making the plaintiff’s pleading better? •  don’t focus unduly on dismissing the whole

action, attack parts where possible


motion to dismiss for delay (Rule 24)


can be brought when statement of claim not served in the prescribed time where more than six months after pleadings closed plaintiff has had action struck off trial list and has not moved for leave to put it back on within 30 says


is the default intentional and contumelious is there inordinate delay put in the evidence of the affected parties •  Armstrong v. McCall 2006 CarswellOnt 3134


has a witness died? how long has it been since the events in question? has the plaintiff demonstrated necessary witnesses have a sufficient recollection of events •  Baranick .v Counsel Trust 2007 CarswellOnt 3287, affirmed 2008

ONCA 142 (CA)


moving party must not be in default do you need to show actual prejudice or presumption of prejudice?


three tips for motions to dismiss for delay •  always prepare and serve your sworn affidavit of

documents •  are you really asking for case management or a

timetable? •  what is the real prejudice?


motion for summary judgment (Rule 20)


new and improved for 2010 and beyond!


“I was only ruined but twice. Once when I lost a lawsuit, and once when I won.” •  Mark Twain


can move after delivery of pleadings plaintiff can move with leave where special urgency shown


must show there is no genuine issue requiring a trial for its resolution •  now there is limited weighing of evidence,

evaluating credibility and making inferences •  is the forensic machinery of a trial required


can be brought at any time before or after discoveries •  get admissions at discovery •  avoid the discovery cost, and move before

discovery •  but there will be cross examinations


Key elements to new Rule 20.04(2.1) •  (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.


need factums whole process expensive if unsuccessful, risk costs but no longer substantial indemnity costs don’t do it if you are essentially not saving much time or money, have the trial


Old law... some of which may still apply


Where a court is satisfied there is no genuine issue for trial with respect to a claim or defence, must grant summary judgment •  Irving Ungerman v. Galanis (1991) 4 O.R. (3d) 545 (CA)


to oppose, must show “real chance of success” at trial •  “The appropriate test to be applied on a motion for summary judgment is

satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is a proper question for consideration by the court.”

•  Guarantee v. Gordon Capital [1999] 3 SCR 423 at 27


“We note that it is neither necessary nor appropriate in this case to address the effect of the recent amendments to the Rules of Civil Procedure regarding summary judgment procedures.” •  New Solutions v. Gauthier 2010 ONCA 328 (July

2010)


Motions judge properly granted summary judgment on limitations issue, open to make the finding of knowledge on ample evidence from the appellant himself •  Liu v. Silver 2010 ONCA (November 2010)


New law


“The radical change introduced by the New Rule 20 was to arm judges with greater powers in performing their review of the evidence.” •  Lawless v. Anderson 2010 OJ No. 2017


[28] Unless the parties agree under Rule 20.04(2)(b), a summary judgment motion does not create a new general power to fashion a flexible individually crafted trial process, involving a combination of affidavit, transcript or oral evidence for the purpose of determining all or part of the claim. The test for summary judgment under Rule 20.04(2)(a) – whether there is a genuine issue that requires a trial for its resolution as first articulated in Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.) – has not changed. Both the analytical review and the availability of oral evidence under Rules 20.04 (2.1) and (2.2) have considerably broadened the motions judge’s tools on a summary judgment motion. Nonetheless, although a motions judge may weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence, the judge does so for the purpose of determining whether a trial is required to resolve a genuine issue. In other words, although a summary judgment motion may, if the motions judge so directs or if the parties agree, resemble a summary trial, the task of the judge hearing a summary judgment motion is different: See Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.) The motions judge must take "a hard look" at the evidence to determine whether it raises a genuine issue requiring a trial. In short, summary judgment is not, as the... argument might seem to suggest, a substitute for trial. •  Valemont v. Philmor 2010 ONSC 1685


The policy implications for the rule change was underscored in the Supreme Court of Canada decision of Canada (Att.Gen.) v. Lameman [2008] 1 SCR 72 at 10:

•  “Trying unmeritorious claims imposed a heavy price in terms of time and the cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

•  Jagosky v. Huntsville 2010 ONSC 4590


The amended Rule expressly overrules jurisprudence that prevented a motions judge from making evidentiary determinations and permits a more meaningful review of the paper record.

•  Jagosky v. Huntsville 2010 ONSC 4590


do you have to serve an affidavit of documents, or delay the hearing of the motion until one is served?


to oppose judgment •  consider must offer affidavit evidence in response •  cannot be mere denials •  “best foot forward” •  consider use of Rule 39.03


seek in the alternative, •  partial summary judgment •  an order defining what material facts are not in

dispute •  a mini trial (Rule 20.04(2.2))


summary judgment remains the exception not the rule, but… “A summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter was allowed to proceed.” •  Canada (Attorney General) v. Lameman 2008 SCC 14


Rule 20.04(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.


can you get summary judgment on a matter where the material fact is a “state of mind” or intention? •  eg. a malicious prosecution defence


can you get summary judgment on a matter where the issue is when the plaintiff knew or ought to have known of the claim? •  eg. a limitation defence


“The amended Rule does not place a limit on fact finding. Such a limitation was the product of case law under the former Rule. Now the limitations are twofold: is there a genuine issue requiring a trial and is it in the interest of justice for the enhanced powers to be exercised only at a trial. The presence of a genuine issue of material fact should not necessarily result in a refusal to grant summary judgment. Instead it may result in an order for the presentation of oral evidence pursuant to Rule 20.04(2.2)”

•  CPL Insurance v. Sears 2010 OJ No. 3987


•  Examples of mini trials •  bifurcating liability and damages (if one is agreed

upon) •  Ponzi scheme: Den Haag v. Correia 2010 OJ No.

4316 •  late in the game (Rule 48 leave) - yes- Georgian

Windpower and - no - Valemont •  not successful where contentious, contradictory

evidence: CPL v. Sears (but costs in the cause) •  no interlocutory appeal during mini trial

•  Thomas v. Bank of NS 2010 ONSC 4228


three tips for summary judgment •  is the motion the application of settled law to

essentially undisputed facts? •  almost always cross examine •  best if you can prove the facts out of the mouth of

the opponent’s deponent, or documentary evidence


if you lose, appeal to Divisional Court if you win, appeal to Court of Appeal standard of review:

•  “The judge is not to find facts but, rather, to examine the evidence to see if it is reasonably capable of raising a genuine issue for trial. The reasons, however, should be examined in their context”. Mastercraft Group Inc. Investment Collections Actions (Re) (1995), 123 D.L.R. (4th) 161 at p. 168 (OCA) cited with approval in Garland v. Consumers’ Gas Company [2001] O.J. No. 4651 at para. 96,reversed on other grounds [2004] S.C.C. No. 21.


Conclusion precedent motion records and facta are available references: •  Dispositions Without Trial (2d) Robert van Kessel

(2007) •  Summary Judgment, Page and Pinos (2002)


Documents

Disposition before Trial