Ontario Superior Court of Justice – Divisional Court

McBride v. Pilon

Date: 2002-07-12

Counsel: G. Peter Abrahams, for the plaintiff/appellant; Janet E. Gross, for the defendant/respondent.

(491/100)

Nature of the Proceedings

[1] Then, J.: The plaintiff appeals the decision of Master Polika dated July 14, 2000 granting summary judgment to the respondent under Rule 20 of the Rules of Civil Procedure.

[2] The appellant is seeking to set aside the decision of Master Polika and to restore his action against the respondent.

Background

[3] The underlying action in this matter is a lawsuit by the appellant for professional negligence, breach of duty and/or breach of contract. The respondent is a lawyer and the appellant was his client.

[4] The appellant was suing his former lawyer, Georgeiff. The appellant alleged that the respondent advised him that he had an excellent case against Georgeiff. Notwithstanding this advice, the appellant asserts that the respondent pressured him into settling his lawsuit with Georgeiff. In addition, the appellant alleges that the respondent breached his duty of care to the appellant by not conducting himself in the manner required by a competent solicitor.

[5] This appeal raises issues as to the jurisdiction of the court, the standard of review and the propriety of granting summary judgment in the circumstances of this case where the credibility of the parties is engaged.

Court's Jurisdiction

[6] The Divisional Court has jurisdiction to hear these appeals pursuant to s. 19(1) (c) of the Courts of Justice Act:

"s. 19(1) An appeal lies to the Divisional Court from,

(c) a final order of a master or case management master."

Standard of Review

[7] There is some conflicting authority as to the appropriate standard applicable to the final order of a Master. In Triple D Publishing Inc. v. Barr (1997), 97 O.A.C. 364 (Div. Ct.), Justice Greer, sitting alone, considered a Master's order as a final order (even though the order was arguably interlocutory in circumstances where the parties did not question the Court's jurisdiction to hear the matter).

[8] In the Triple D case, the court cited Marleen Investments Ltd. v. McBride (1979), 1979 1895 (ON SC), 23 O.R.(2d) 125; 13 C.P.C. 221 (H.C.), as the relevant authority in considering the scope of review. In this respect, the rule from Marleen Investments states that an order should not be interfered with unless the Master was "clearly wrong".

[9] However, in Hudon et al. v. Colliers MacAulay Nicolls Inc., [2001] O.J. No. 1588; 147 O.A.C. 163 (Div. Ct.), the court disputed the position that the standard from Marleen Investments applied to a final order of a master in which there was an exercise of discretion or that determined a matter vital to the final issue. In that case, the full panel of Divisional Court, suggested that a distinction be drawn. At paras. 15-16, the court stated:

"On an appeal from a discretionary order of a Master which is final, or which determines a matter vital to the final issue of the case, the judge hearing the appeal is entitled to conduct a rehearing and - after according some deference to the Mater's expertise in the field - to substitute his or her discretion for that of the Master.

"In Marleen Investments itself, Southey, J., recognized such a distinction, and the distinction was confirmed by the Court of Appeal in Stoicevski v. Casement (1983), 1983 1679 (ON CA), 43 O.R.(2d) 436."

[10] The panel of Divisional Court went on, at para. 17 to say:

"To the extent that a different standard may be suggested in Triple D Publishing Inc. v. Barr (1997), 97 O.A.C. 363 (Div. Ct.), we do not think it accurately reflects the law. In Triple D Publishing, although the Master's order in question may well have been interlocutory, the parties did not challenge the jurisdiction of the judge -who was sitting alone - to hear the matter, and the decision of the Court of Appeal in Stoicevski does not appear to have been drawn to her attention."

[11] The standard enunciated by the panel in Hudon, infra, was most recently adopted in the case of Madonia et al. v. Mulder et al., [2002] O.T.C. Uned. 88; [2002] O.J. No. 487 (Sup. Ct.). In that case, McCombs, J., relied on the decision in Hudon and, at para. 2 stated:

"The Master's order is a final order made in the exercise of her discretion. On appeal, I am entitled to conduct a rehearing, and, with some deference to the Master's expertise, substitute my discretion for hers. "

[12] In my view, the standard described in Hudon and Madonia applies in this case. In this respect, the Master determined a matter that was vital to the final issue in the case and consequently, the court is entitled to conduct a rehearing and substitute its own discretion for that of the Master.

Issues as to the propriety of summary judgment

1. Did the issue identified by Master Polika depend on a determination or assessment of credibility that should have been left to trial?

2. Were there other genuine issues for trial supported by the evidence?

3. Did Master Polika err by drawing an adverse influence against the appellant?

Conclusions

[13] The determination of whether the appellant was pressured raised an issue of credibility. In the absence of detailed facts or other evidence supporting the allegations of the appellant, this issue of credibility is not a genuine issue for trial.

[14] As with the first issue, the other questions raised by the appellant as potential "genuine issues" are not supported by the evidence. Therefore, the Master was correct in his determination that there were no genuine issues for trial and in granting the motion for summary judgment.

[15] The Master did not err in his consideration of the question of the implied undertakings. The assertion that the Master drew an adverse inference against the appellant is unsupported, hypothetical and without merit.

Law and Analysis

The applicable test on a motion for summary judgment

[16] The Master describes the test applicable on a motion for summary judgement which counsel for both parties agreed was the appropriate test in his reasons at para. 3 as follows:

"It was also accepted that on a motion for summary judgment pursuant to Rule 20.01(3) of the Rules of Civil Procedure that not only was there an onus upon the defendant to show that there exists no genuine issue for trial but that the plaintiff must 'lead trump or risk losing"' that is the plaintiff had an obligation to put his 'best foot forward' (see Rule 20.02(1)."

[17] The Master's formulation condenses the test as set out by the Supreme Court of Canada in Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1; [1999] S.C.J. No. 60. This test has been commented upon recently by the Ontario Court of Appeal in Hi-Tech Group Inc. v. Sears Canada Inc., 2001 24049 (ON CA), [2001] O.J. No. 33; 141 O.A.C. 56 (C.A.), where Morden, J.A., on behalf of the Court explains the test more fully at paras. 28-31:

"There is one further matter on which I shall comment and I do so with respect. It may be seen from the reasons of the motions judge that he applied the test governing a motion for summary judgment set forth in Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423, at 434-35; 178 D.L.R.(4th) 1. This test, which is framed as a two-part test, involves the moving party (1) 'showing that there is no genuine issue of material fact requiring trial' and 'therefore summary judgment is a proper question for consideration' and (2), if this showing is made, the responding party must then 'establish his claim as being one with the real chance of success'.

"In support of the first part of the test the Supreme Court cites, in addition to its own recent decision in Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165; 115 Man.R.(2d) 241, two decisions of this court: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R.(4th) 257, at pp. 267-68; 20 R.P.R.(3d) 207 (Ont. C.A.) and Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R.(3d) 545, at pp. 550-51; 83 D.L.R.(4th) 734 (C.A.). It may be inferred from this that the court approved these decisions and considered them to be consistent with its approach.

"These two Ontario decisions, Dawson more fully than Irving Ungerman, make it clear that: (1) the legal or persuasive burden is on the moving party to satisfy the court that there is no genuine issue for trial before summary judgment can be granted (this is what rule 20.04(2) says); and (2), by reason of rule 20.04(1), there is an evidential burden, or something akin to an evidential burden (because the motions judge does not find facts), on the responding party to respond with evidence setting out 'specific facts showing that there is a genuine issue for trial'. Failure of the responding party to tender evidence does not automatically result in summary judgment. The 'evidential burden' is described by this court (Catzman, Austin, and Borins, JJ.A.), in Lang v. Kligerman, 1998 4866 (ON CA), [1998] O.J. No. 3708, in paras. 8 and 9 and by the High Court (Griffiths, J.), in Kaighin Capital Inc. v. Canadian National Sportsmen's Show (1987), 1987 4376 (ON SC), 58 O.R.(2d) 790, at p. 792; 17 C.P.C. The short point is that the motions judge, having considered all of the evidence and the parties' submissions on it, must be satisfied that there is no genuine issue for trial before he or she may grant summary judgment. This is the legal burden resting on the moving party and it never shifts. I do not think that Guarantee Co. of North America intended to detract from this." (My emphasis)

[18] With respect, the succinct formulation of the test by the Master is not necessarily in error, however, in my opinion the passages quoted from Hi-Tech, above, are a more precise (if longer) explanation of the test to be applied on a motion for summary judgment.

A question of credibility must be a "genuine" issue of credibility

[19] In applying the correct test, a decision-maker in a motion for summary judgment must not resolve issues of credibility, draw inferences from conflicting evidence or from evidence that is not in conflict when more than one inference is reasonably available. In this respect, Borins, J.A., for the Court of Appeal, commented in Aguonie v. Galion Solid Waste Material Inc. et al. (1998), 1998 954 (ON CA), 107 O.A.C. 114; 38 O.R.(3d) 161 (C.A.), at p. 173.

"Evaluating credibility, weighing evidence, and drawing factual inferences are all functions reserved for the trier of fact."

[20] However, the mere existence of an issue of credibility will not itself necessarily defeat a motion for summary judgment. An issue of credibility must also be genuine. If the issue of credibility is not genuine, then a court may render summary judgment. The Court of Appeal commented on this point in Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 1991 7275 (ON CA), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.). At 551-552 of that decision, Morden, A.C.J.O., said:

"It is safe to say that 'genuine' means not spurious and, more specifically, that the words for trial assist in showing the meaning of the term. If the evidence on a motion for summary judgment satisfies the court that there is not a genuine issue of fact which requires a trial for its resolution, the requirements of the rule have been met. It must be clear that a trial is unnecessary. The burden is on the moving party to satisfy the court that the requirements of the rule have been met. Further, it is important to keep in mind that the court's function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists.

"It is a sensible general proposition that, if there is an issue of credibility, a trial is required and summary judgment should not be granted … the proposition that an issue of credibility precludes the granting of summary judgment applies only when what is said to be an issue of credibility is a genuine issue of credibility." (My emphasis)

[21] Accordingly, in my view, the current state of the law is that an issue of credibility must be genuine or it will not preclude summary judgment.

The use of self-serving evidence in determining the "genuineness" of credibility

[22] An additional passage from the Supreme Court decision in Guarantee, supra, with respect to self-serving evidence is also germane to the issues in this case. In commenting on the decision of the lower court, the Supreme Court, at para. 31 said:

"We would add that the trial judge's ruling on this point is entirely consistent with previous decision holding that a self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence. See Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 1994 7367 (ON SC), 22 O.R.(3d) 25 (Gen. Div. ), Confederation Trust Co. v. Alizadeh, [1998] 1998 O.J. No. 408 (QL) (Gen. Div.)."

[23] Therefore, the state of the law on this issue appears to be that self-serving affidavit evidence alone is insufficient to establish credibility. With this test in mind it is now possible to consider the issues pertaining to summary judgment raised in the instant case.

Issue # 1 - Did the issue identified by Master Polika depend on a determination or assessment of credibility that should have been left to trial?

Master Polika's decision

[24] The Master determined, at para. 14 of his reasons, that the issue centered on the factual issue of whether the respondent pressured the appellant to settle. In analyzing this issue the Master relied on the test set out by Rosenberg, J.A., in Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), 1998 4831 (ON CA), 111 O.A.C. 201; 164 D.L.R.(4th) 257 (C.A.). The following passage from Dawson accurately describes only the first part of the test to be applied on a motion for summary judgment. In that case at 304, the Court of Appeal stated:

"Similarly, where a defendant has moved for summary judgment dismissing a plaintiff's claim, if there is evidence capable of supporting the claim, summary judgment is precluded. There must, of course, be legal validity to the claim. However, it must be remembered that any evidentiary dispute arising from the record must be in respect to material facts and must be genuine: Rogers Cable TV Ltd.; Royal Bank of Canada v. Feldman; Blackburn v. Lapkin. If the moving party can demonstrate that the dispute is not genuine, as defined by the caselaw, it has satisfied its onus and is entitled to obtain summary judgment."

[25] The Master then considered the evidence presented to him on the motion. Though the Master did not identify it as such, this stage of his analysis accords with the second step of the test where "the responding party assumes the evidentiary burden of presenting evidence which is capable of supporting the position advanced", Lang et al. v. Kligerman et al., [1998] O.A.C. Uned. 374; 1998 4866 (ON CA), [1998] O.J. No. 3708 (C.A.), at para. 9.

[26] The Master noted that the appellant had not addressed conflicts in the evidence and had not addressed other evidence that was contrary to the appellant's later statements. As an example, the Master quoted from the appellant's letter of complaint to the Law Society of Upper Canada and noted that there was no mention in the complaint of the pressure to settle. Ultimately, Master Polika concluded that this issue did not raise a genuine issue for trial.

Analysis of Issue # 1

[27] In my view, the Master does not appear to make any qualitative comment on the evidence. He simply noted the state of the law, that self-serving statements cannot by themselves make a dispute genuine. In this respect, the Master specifically did not err by assessing or weighing the evidence.

[28] Moreover, the Master applied the appropriate rule correctly in this case. The only evidence relied upon by the appellant appears to be his own statements. This raises the issue of credibility.

[29] However, the credibility of such statements is only a genuine issue for trial if they are supported by detailed facts and other evidence. There are no detailed facts or other evidence supporting the appellant's statements. Therefore, the respondent has satisfied the first step of the test and met the legal or persuasive burden on the moving party to satisfy the court that there is no genuine issue for trial before summary judgment can be granted.

[30] Consequently, in the second step of the test there is an evidential burden placed on the appellant to "establish his claim as being one with the real chance of success". There is no evidence that this evidential burden was met.

[31] Thus, the Master was correct in this determination that there was no genuine issue for trial and therefore this ground of appeal must fail.

Issue # 2 -- Were there additional genuine issues for trial supported by the evidence?

[32] The appellant raises two additional issues and suggests they were both genuine issues for trial. The issues identified to be determined were:

i) whether the respondent contacted the witnesses for the appellant in a timely fashion; and,

ii) whether the appellant had properly prepared himself for the pre-trial before Justice Eberle.

[33] In my view, the only evidence in support of these issues as being matters of factual dispute are once again the allegations of the appellant. As with issue 1, such unsupported allegations and statements do not satisfy the legal requirements for a "genuine issue". As a result, there were no additional genuine issues for trial supported by the evidence. This ground of appeal also fails.

Issue # 3 - Did Master Polika err by drawing an adverse influence against the appellant?

[34] In his reasons, Master Polika indicated the course of action he would have taken in this matter in the event that he was incorrect with respect the first issue raised.

[35] However, since it has been held that the Master was correct on the first two issues what might have happened had plaintiff failed to abide by undertakings is both speculative and hypothetical. In addition, what the Master would have done does not appear to have any bearing on the outcome of this case. Because the course of action described by the Master is hypothetical, so too was any potential adverse inference that might have arisen should those events have come to pass. In this respect, there is no evidence that Master Polika drew an adverse inference against the appellant on the basis of failure to comply with undertakings. There is no merit to this ground of appeal.

[36] For all these reasons, Master Polika was correct in his determination that there was no genuine issues for trial and in granting summary judgment. The appeal must be dismissed with costs fixed in the amount of $2,000 payable forthwith.

Appeal dismissed.