Chan v. Gray, 2012 ONSC 6787

Introduction

1On April 12, 2012, Perell J. (Chan v. Gray, 2012 ONSC 2068) granted summary judgment against the appellant in the amount of $45,000 plus costs on a substantial indemnity basis in the amount of $17,000.73. He dismissed the appellant’s cross motion in which the appellant had sought a dismissal of Mrs. Chan’s claim.

2Mr. Gray has appealed from that order. His fundamental submission is that there are genuine issues of material fact which can only be resolved by a trial judge.

3In support of her motion for summary judgment, the respondent provided an affidavit sworn January 5, 2012, attached to which are sixteen exhibits. There was no cross examination on that affidavit, and accordingly the motions judge was entitled to draw an inference that it was credible and reliable.

4Mr. Gray’s affidavit was sworn December 28, 2011 and consists of 77 paragraphs and 3 exhibits. Mr. Wagman conducted a cross examination on January 6, 2012 and the transcript consists of 122 pages.

JUDGMENT UNDER APPEAL

Judgment Under Appeal

5In his Reasons for Decision, the motions judge reviewed the respondent’s account of the facts and the appellant’s account of the facts. He considered the appellant’s defences, namely, that he was a gratuitous bailee of $40,000 in cash and the doctrine of ex turpi causa. Beginning at para. 33, the motions judge referred to the decision of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 and the motions judge concluded that there was no genuine issue requiring a trial. He applied the full appreciation test, articulated in para. 50. He went on to make findings of fact based on the affidavit of the respondent and to make findings of credibility against the appellant. He concluded that a trial was not necessary to make those findings of fact and it was an appropriate case for summary judgment.

STANDARD OF REVIEW

Standard of Review

6The determination of whether there is “a genuine issue requiring a trial” is, according to the Court of Appeal, in Combined Air at para. 69 and 70, a legal determination which gives rise to a standard of review of correctness.

ANALYSIS

Analysis

7Pursuant to Rule 20.04, the Court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial. In determining whether there is a genuine issue requiring a trial, the Court is to consider the evidence submitted and may weigh the evidence and evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial.

8In Combined Air, the Court of Appeal held there are three types of cases that are amenable to summary judgment. The first is where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment. The second type encompasses claims or defences that are shown to be without merit. The third type allows the motions judge to dispose of cases on the merits where the trial process is not required in the interest of justice. According to the Court of Appeal, the third type of case involves those where the motion judge can achieve “the full appreciation of the evidence and issues that is required to make dispositive findings” by way of summary judgment without a trial.

9The motions judge relied on the third category. As indicated, Rule 20.04(2.1) permits a judge on a motion for summary judgment to consider and evaluate the credibility of a deponent. In this case, the judge accepted the evidence of the respondent which he was entitled to do. On the other hand, he made a series of findings leading to the conclusion that the evidence of the appellant was neither credible nor reliable. Among other things, the motions judge found that the appellant had lied when he said the additional funds were not part of the purchase price. He had falsely accused the respondent of being a tax cheat. He had written cheques to the respondent that he did not honour and he told the respondent he had used the funds to purchase a term deposit when he had not done so.

10We are not persuaded that the motions judge erred in granting summary judgment on the claim. Indeed, the evidence demonstrated that the version of the facts advanced by Mr. Gray was unbelievable as it was full of apparent contradictions and fabrications. The motions judge was readily able to apply the full appreciation test to the evidence and the issues and appropriately granted summary judgment. In this case, there was no genuine issue requiring a trial.

11Given the appellant’s conduct, the costs award on a substantial indemnity basis was reasonable. The appeal is dismissed.

COSTS

Costs

12I have endorsed the back of the Appeal Book and Compendium, “The appeal is dismissed. The appellant shall pay the respondent costs on a partial indemnity basis fixed at $5,000.”