COURT OF APPEAL FOR ONTARIO
RE:
TRUONG DO and ANNA HONG (Plaintiffs) (Respondents) - and - KITCHENER-WILMOT HYDRO INC. (Defendant) (Appellant) - and - CUONG THE LUONG (Third Party)
BEFORE:
LASKIN, FELDMAN and ARMSTRONG JJ.A.
COUNSEL:
Patricia Forte for the appellant
Craig Parry for the respondents
HEARD:
September 12, 2003
RELEASED ORALLY:
September 12, 2003
On appeal from an order of Justice Barry H. Matheson of the Superior Court of Justice dated September 20, 2002.
ENDORSEMENT
1In granting summary judgment dismissing the counterclaim, the motions judge erred in two ways. First, he appeared to reverse the onus of proof on a motion for summary judgment. Thus, for example, he held that "There would have to be some evidence or information that the plaintiffs were aware of the activities of the third parties before there could be some cause of action brought against them." And, later, he held that "The defendant has failed to convince the court that it has a valid counterclaim". Yet it was the respondents who had the burden of showing that there was a genuine issue of material fact requiring trial. The respondents, however, failed to meet their onus because they filed no evidence addressing the appellant's allegations in the counterclaim.
2Second, the motions judge effectively treated the motion as one brought under rule 21.01(1). In doing so, however, he failed to give effect to the well-recognized principle that unless it is plain and obvious the claim cannot succeed it should be permitted to go to trial. Although it might be said that the counterclaim puts forward a rather novel claim, we are not persuaded that it is destined to fail.
3Therefore, the appeal is allowed, the judgment is set aside and the respondents' motion for summary judgment is dismissed. The appellant is entitled to its costs of the appeal and the motion, which we fix in the amount of $5,000, inclusive of disbursements and G.S.T.
"John Laskin J.A." "K. Feldman J.A." "Robert P. Armstrong J.A."