Court of Appeal for Ontario
Doherty, Cronk and Huscroft JJ.A.
BETWEEN
R & D Partners, a division of 4037201 Canada Inc.
Plaintiff (Respondent)
and
Mediamix Interactive Inc.
Defendant (Appellant)
Andrew J. MacDonald, for the appellant
Allison A. Thornton, for the respondent
Heard and released orally: April 20, 2015
On appeal from the judgment of Justice H.J. Wilton-Siegel of the Superior Court of Justice, dated October 16, 2014.
ENDORSEMENT
1The appellant challenges the partial summary judgment granted by the motion judge on various grounds. As argued, however, the appellant’s main submission is that partial summary judgment in this case, where the action was commenced as a simplified proceeding under Rule 76, was not “an efficient and proportionate way to deal with the issues in dispute between the parties”.
2We reject this argument.
3First, there is nothing to prevent a partial summary judgment motion in a simplified proceeding in a proper case. Indeed, in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 286 O.A.C. 3, at paras. 254-58, this court expressly recognized that summary judgment motions may be appropriate in some Rule 76 actions. The Supreme Court’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 does not deviate from that proposition.
4Second, the appellant elected not to file any materials in response to the respondent’s summary judgment motion. Instead, it brought a motion for directions shortly before and returnable on the same day as the summary judgment motion, seeking to stay or dismiss the respondent’s motion. Leaving aside the timeliness of the motion for directions, the result of this litigation strategy was that no competing or conflicting evidence was placed before the motion judge on the contested issues. There was simply no evidence before him challenging the respondent’s version of events.
5Third, on the record before the motion judge, the claim in respect of which summary judgment was sought was a straightforward collection matter. The defences sought to be advanced by the appellant were based in part on the allegations in its pleading. However, it adduced no evidence to support those allegations. Moreover, in one important respect (namely, the collateral agreement argument), the appellant’s pleading lent no support to the suggested defence. Consequently, there was no evidentiary foundation for rejection of the respondent’s claim.
6Fourth, we note that the motion judge addressed the fact that the respondent included other potential claims in its statement of claim. He concluded, at para. 8 of his reasons:
[F]irst, the only facts before the Court respecting any claim of the plaintiff relates to its claim for partial summary judgment in respect of the tax refund granted in respect of the 2011 year. As mentioned, there is no evidence of any additional claims in fact and the plaintiffs are [sic] not suggesting that there are any such claims. If the defendant knows of any specific additional claims that the plaintiff is pursuing at this time, it has not provided any evidence of such actions.
7We see no error in this conclusion. The possibility of further contingent claims was no barrier to partial summary judgment on the claim advanced.
8Finally, given the timing of the motions and the content of the appellant’s motion for directions, the appellant was in no way prejudiced by the motion judge addressing the issues raised in the appellant’s motion for directions in the context of the respondent’s partial summary judgment motion.
9In all these circumstances, we see no disproportionality, unfairness or inefficiency in the respondent moving for partial summary judgment on part of its claim.
10For these reasons, the appeal is dismissed. The respondent is entitled to its costs of the appeal, in the agreed amount of $4,000, inclusive of taxes and disbursements.
“Doherty J.A.”
“E.A. Cronk J.A.”
“Grant Huscroft J.A.”