SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: Raymond Van Eenooghe v. Camella Ross a.k.a. Camella Harrylagan
BEFORE: Justice Cameron
COUNSEL: Alnaz I. Jiwa, for the Applicant/Appellant
Charles A. Ocran, for the Respondent
HEARD: December 12, 2003
E N D O R S E M E N T
This Motion
1This is a motion under Rule 62.04 for leave to appeal to the Divisional Court the adjournment by the motions judge of the Applicant’s motion for summary judgment under Rule 20.04.
Background
2The Applicant has brought a proceeding for custody of the child of the Applicant father and the Respondent mother. The parties were not married.
3The Respondent has brought a counterclaim in the Applicant’s proceedings for custody, support, child support, a 50% interest in the Applicant’s property by way of constructive or resulting trust and an injunction against depleting the Applicant’s property.
Facts
4The Applicant moved under Rule 20.04 for summary judgment dismissing the Respondent’s counterclaims for an interest in property and the injunction. A notice of motion dated October 21, 2003 was served on Respondent’s counsel. That document stated that the motion was returnable on November 6, 2003 and that the Applicant would be using at the hearing:
(a) the Pleadings and proceedings herein;
(b) the affidavit of the Applicant, an unsworn copy of which was attached; and
(c) the transcripts of the Respondent.
5The Applicant’s Motion Record dated October 21, 2003 was served on November 7, 2003. The Notice of Motion provided a return date of November 13, 2003.
6The Respondent served no responding material and did not move to cross-examine the Applicant on his affidavit in the Motion Record.
7The Respondent did, however, file on November 12, 2003 a Motion Record dated November 10, 2003 and returnable on November 14, 2003 containing a cross-motion for:
(a) an order requiring the Applicant to file a financial statement under, inter alia, Rule 70.04; and
(b) an order adjourning the Applicant’s motion “returnable November 14, 2003 pending receipt of the Financial Statement and copies of cross-examination transcripts”.
8The transcripts referred to recorded five days of examination of the Respondent in other aspects of this proceeding between September 19 and October 25, 2003. The Respondent’s evidence is that transcripts of those examinations were given to her lawyer and then taken back from him on the pretext that they contained many errors requiring correction.
9There is no request in the Respondent’s notice of motion for an adjournment to file responding material or to cross-examine on the Applicant’s affidavit or because of illness or legitimate scheduling conflicts.
10There is nothing in the Respondent’s Record on the leave to appeal or in any other material before me or the motions judge or in argument before me that the Respondent’s counsel wished to cross-examine the Applicant.
11The motions judge granted the Respondent’s motion for adjournment with the following endorsement:
The applicant’s motion for summary judgment cannot proceed until the Respondent’s cross-examination on the affidavit filed has been completed. It is inappropriate for the applicant to unilaterally hold the transcripts of completed examinations. The applicant’s position that this motion proceed while he has failed to provide a financial statement is untenable. The motion is adjourned.
12Costs of $1,500 were awarded to the Respondent.
13Applicant’s counsel denies that the Respondent’s motion record was before the motions judge. The case history report does not refer to its filing. There is stapled to that motion record a handwritten back on which there is an initialled stamp indicating that it was filed with the Family Law Registrar on November 12, 2003. The contents of the endorsement of the motions judge persuades me that the Respondent’s motion record was before him.
14There was no argument before me that the motions judge may have misapprehended the facts and assumed the Respondent wanted to cross-examine the Applicant on his affidavit in the motion record for summary judgment.
The Issue
15The issue before me is whether, in respect of the exercise by the motions judge of his discretion to adjourn the summary judgment motion pending delivery of the financial statements and transcripts,
a) there is a conflicting decision and it is desirable that the leave to appeal be granted; or
b) there is good reason to doubt the correctness of the order and the proposed appeal involves matters of such importance that, in my opinion, leave to appeal be granted.
16The broader issue is whether the entitlement to summary judgment under Rule 20.04, on the applicant’s compliance with the requirements of the rule and the voluminous case law on the issue, can be adjourned pending production of documents which a party is required to deliver as part of the action but which have no apparent relevance to the issue in the summary judgment motion.
Discussion
17The procedure and entitlement on a Rule 20.04 motion are summarized in Rule 20, Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423 at paras. 27 and 31 and Meditrust Healthcare Inc. v. Shoppers Drug Mart, [2000] O.J. No. 3762 at paras. 9-11.
18In 645952 v. Guardian Insurance Co. of Canada (1989), 1989 4225 (ON SC), 69 O.R. (2d) 341, O’Driscoll J. dealt with an appeal from the adjournment of a defendant’s motion for summary judgment until the defendant’s undertakings on discovery to produce some documents had been completed. The court determined that the Local Judge of the Supreme Court had no valid legal reason to adjourn the summary judgment motion.
19In the case before me, the Applicant’s original notice of motion served October 21 indicated he would be using the transcripts and proceedings but the notice in the motion record served November 7 removed the reference to the transcripts, but retained “the proceedings”. At the last minute the Respondent sought an adjournment because he had not received the transcripts or the financial statement. The Respondent took no other step to respond to the motion.
20The Respondent complains that it is unfair for the Applicant to say he will use documents but then not make them available to the Respondent and leaves the Respondent waiting for those documents.
21I am not persuaded that there would be anything in the financial statements relevant to the issue of the Respondent’s entitlement to a property interest in the Applicant’s assets. There could be nothing in the Respondent’s answers in the transcript of her five days of examination that she did not already know. The lack of the financial statements and a transcript did not deprive the Respondent of any information necessary to respond to the summary judgment motion or to instruct her counsel on cross-examination of the Applicant. The Respondent did not suggest otherwise. In this hard fought custody and support proceeding the Respondent appears to be using the Applicant’s failure to deliver these documents as a means of denying the summary judgment to which the Applicant may be entitled under Rule 20. I see no prejudice or unfairness to the Respondent.
Conclusion
22The decision of the motions judge appears to conflict with the conclusion in 645952 v. Guardian Insurance. Further, it is desirable that the Divisional Court address the scope of a motions judge’s discretion to adjourn a summary judgment motion in the face of the mandatory requirements of Rule 20.04(2) to consider an apparently complete record and, if satisfied, to grant judgment.
23I grant leave to appeal.
24Costs of this application to the panel hearing the appeal.
Cameron J.
DATE: December 18, 2003