Stever v. Rainbow International Carpet Dyeing & Cleaning Co. et al.
[Indexed as: Stever v. Rainbow International Carpet Dyeing & Cleaning Co.]
Ontario Reports
Ontario Superior Court of Justice,
Herman J.
March 14, 2013
115 O.R. (3d) 138 | 2013 ONSC 1574
Case Summary
Civil procedure — Summary judgment — Stay of motion for summary judgment — Defendants bringing pre-discovery motion for summary judgment based on limitations defence — Plaintiff moving unsuccessfully for stay of defendants' motion — Motion judge requiring plaintiff to put best foot forward and holding that stay of summary judgment [page139] motion should only be granted in clearest of cases — Leave to appeal motion judge's order dismissed — Case relied on by motion judge for test to be applied on motion for stay of summary judgment motion not in conflict with other cases — No reason existing to doubt correctness of motion judge's decision.
The defendants brought a motion for summary judgment based on their limitations defence. There had been no discovery when the motion was heard. The motion judge found that a party seeking a stay is required to put its best foot forward to say there is a genuine issue requiring a trial or why the matter is too complicated for the motion judge to ascertain the full appreciation of the case; that the court then ought to determine whether the matter is complicated, what are the issues, the nature of the evidence and law to determine the issues, and whether the case can be determined without the necessity of a full trial; and that only in the clearest of cases should the court impose a stay. The plaintiff's motion was dismissed. The plaintiff sought leave to appeal.
Held, leave to appeal should be denied.
The case relied on by the motion judge for the test applicable on a motion to stay a summary judgment motion was not in conflict with other cases. It was also not desirable to grant leave to appeal. Concerns regarding the proportionality of the process and the most efficient use of limited judicial resources underlie a motion to stay a summary judgment motion. A further expenditure of resources to determine whether this particular summary judgment motion should proceed was not desirable. There was no reason to doubt the correctness of the motion judge's decision. The determination of whether a summary judgment motion without discovery is appropriate is case specific. It is not a matter of general importance such that leave to appeal should be granted.
Cases referred to
Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764, 286 O.A.C. 3, 97 C.C.E.L. (3d) 25, 14 C.P.C. (7th) 242, 13 R.P.R. (5th) 167, 211 A.C.W.S. (3d) 845, 93 B.L.R. (4th) 1, 10 C.L.R. (4th) 17; George Weston Ltd. v. Domtar Inc.; 1318214 Ontario Ltd. v. Sobeys Capital Inc. (2012), 112 O.R. (3d) 190, [2012] O.J. No. 4123, 2012 ONSC 5001, 354 D.L.R. (4th) 121, 30 C.P.C. (7th) 252, 220 A.C.W.S. (3d) 301 (S.C.J.); Ghaffari v. Asiyaban, [2012] O.J. No. 2402, 2012 ONSC 2724 (S.C.J.), consd
Other cases referred to
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 62.02(4)
APPLICATION for leave to appeal an order dismissing a motion for a stay of a summary judgment motion.
David Alderson and Robert Kalanda, for plaintiff.
Tariq Remtulla, for defendants Rainbow International Carpet Dyeing & Cleaning Co. and John Appel.
[1] Endorsement of HERMAN J.: — The plaintiff seeks leave to appeal the order of Goldstein J. dated January 23, 2013 (2013), 2013 ONSC 241, 114 O.R. (3d) 473, [2013] O.J. No. 313 (S.C.J.). [page140] The motion judge dismissed the plaintiff's motion for a stay of the defendants' motion for summary judgment.
[2] The plaintiff submits that both branches of the test for granting leave to appeal apply: (i) there is a conflicting decision and it is desirable that leave be granted; and (ii) there is good reason to doubt the correctness of the order and the proposed appeal involves matters of such importance that leave should be granted (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 62.02(4)).
[3] The defendants' motion for summary judgment is scheduled for June 2013. It is based solely on the defendants' limitations defence. There had been no discovery when the motion judge heard the motion.
Conflicting Decisions
[4] The plaintiff argues that the motion judge's decision conflicts with the decision of the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764 and the decision of D.M. Brown J. in George Weston Ltd. v. Domtar Inc.; 1318214 Ontario Ltd. v. Sobeys Capital Inc. (2012), 2012 ONSC 5001, 112 O.R. (3d) 190, [2012] O.J. No. 4123 (S.C.J.).
[5] The motion judge referred to both decisions in his reasons. However, in reaching his decision, he relied primarily on the three-part test articulated by J.E. Ferguson J. in Ghaffari v. Asiyaban, [2012] O.J. No. 2402, 2012 ONSC 2724 (S.C.J.). It is that three-part test that the plaintiff submits is in conflict with the decisions in Combined Air and Domtar.
[6] In Ghaffari, the judge set out the following test a party must meet in order to obtain a stay of a summary judgment motion [at para. 14]:
(i) the court should look at the motion for summary judgment and the reasonable chances of success in determining whether a stay is appropriate. The party seeking the stay should put their best foot forward as they would on a motion for summary judgment to say there is a genuine issue requiring a trial or why the matter is too complicated for the motion judge to ascertain the full appreciation of the case;
(ii) the court then ought to determine whether the matter is complicated; what are the issues; the nature of the evidence and law to determine the issues; and whether the case can be determined without the necessity of a full trial; and
(iii) only in the clearest of cases should the court impose a stay. [page141]
Different approaches
[7] The plaintiff submits that the approach used by the motion judge, relying on the test in Ghaffari, conflicts with the approach in Domtar.
[8] In Domtar, D.M. Brown J. cited the three-part test in Ghaffari. He did not explicitly reject the approach, but he went on to propose "[a] case management approach to dealing with concerns about lengthy, complex summary judgment motions brought on the Commercial List" (paras. 47-60). He included a list of factors for a judge to consider when the judge is faced with a request to schedule a lengthy summary judgment motion before the parties have embarked upon or completed discoveries.
[9] In my opinion, the decisions do not conflict. Firstly, it is clear from the reasons in Domtar that the proposed case-management approach is to be carried out within the context of the Toronto Commercial List and the management of cases on that list. The decision of the motion judge involved a regular civil motion. In his reasons, the motion judge pointed out the differences between the case-management process on the Commercial List and the treatment of routine civil matters.
[10] Secondly, although the judge in Domtar did not apply the three-part test in Ghaffari, the factors he articulated are not substantially different. In both cases, the court was concerned with determining whether a summary judgment motion was appropriate in the circumstances.
[11] The plaintiff concedes that the second part of the Ghaffari test is, in effect, used in Domtar, although in different language. In both decisions, the nature and complexity of the issues and the evidence are key factors for the judge to consider.
[12] The plaintiff submits, however, that there are other aspects of the three-part test and the motion judge's reasons that conflict with Domtar and Combined Air.
"Best foot forward"
[13] The first prong of the test in Ghaffari includes the requirement that "the party seeking the stay should put their best foot forward".
[14] The plaintiff argues that this requirement is contrary to the statement at para. 57 in Combined Air. I do not agree.
[15] The Court of Appeal does not suggest that the "best foot forward" requirement does not apply in a summary judgment motion. Rather, the court says that, in some cases, given the nature and complexity of the issues, the responding party should first have the benefit of production of documents and discovery. [page142]
[16] The plaintiff argues that he was in no position to put his "best foot forward" without discovery. The plaintiff intended to raise discoverability in response to the limitations issues. In the opinion of the motion judge, the facts with respect to discoverability were largely within the knowledge of the plaintiff, notwithstanding the lack of discovery. There was nothing to stop the plaintiff from "simply setting out sworn evidence of when and how the impugned conduct was discovered". However, the plaintiff's affidavit did not address the issue of discoverability.
[17] The motion judge was aware that affidavits are not always an appropriate substitute for discovery but he was satisfied that in the case before him, an adequate record could be built to enable the judge on the summary judgment motion to make a decision.
"Only in the clearest of cases"
[18] The plaintiff argues that the third prong of the test -- "only in the clearest of cases" -- is in conflict with Domtar because in Domtar, the judge explicitly rejected the abuse of process approach (at para. 49).
[19] The plaintiff submits that "only in the clearest of cases" is akin to an abuse of process test. I do not agree. Rather, as the motion judge indicated, the purpose of this criterion is to encourage litigants to take a hard look at the merits by setting the bar high. This is not inconsistent with the proposition in Domtar that a cottage industry in motions to strike out should not be encouraged. At the same time, a procedural device should exist to deal with summary judgment motions that are "patently premature or inappropriate" (para. 47) (emphasis added).
Extent of review
[20] The plaintiff submits that the decisions conflict with respect to the extent of the review undertaken by a judge on such a motion.
[21] In particular, the plaintiff argues that the motion judge's review of the record was in conflict with the statement in Domtar, at para. 47, that the court on such a motion should not be required to engage in a [at para. 48] "detailed review" of the merits of the summary judgment motion.
[22] It is clear from both decisions that some review of the record is required. Nowhere does the motion judge indicate that such a review need be "detailed". Both judges express a concern about the potential for two judges reviewing the same record. [page143]
Conclusion
[23] I conclude that the decisions are not in conflict. Firstly, the Domtar decision should be read in the context of the case-management process available on the Commercial List. Secondly, while the decisions may articulate the test differently, the overall approaches are not substantially different.
[24] It is also, in my opinion, not desirable to grant leave to appeal. Concerns regarding the proportionality of the process and the most efficient use of limited judicial resources underlie a motion to stay a summary judgment motion. A further expenditure of resources to determine whether this particular summary judgment motion should proceed is not desirable. The plaintiff will have ample opportunity at the summary judgment motion to address whether the judge is in a position to obtain a full appreciation of the evidence and the issues.
Reason to Doubt the Correctness
[25] The plaintiff also submits that there is reason to doubt the correctness of the decision. His primary argument is that the judge did not consider the complicating facets of the case, and in view of the case's complexity, there should be no summary judgment motion without the benefit of discovery.
[26] The plaintiff submits that there are multiple findings of fact required, which include the dates of discovery of each cause of action, whether the defendants willfully concealed or misled the plaintiff, whether the franchise agreement was renewed and whether there was an implied contract. However, the only issue that will be before the summary motion judge is the limitations defence. In the opinion of the motion judge, a record could be built without discovery which would be sufficient for the purpose of the summary judgment motion.
[27] The proposition in Combined Air that there may be cases in which the nature and complexity of the issues demand that discovery happen prior to the summary judgment motion does not mean that discovery must happen in every case nor does it mean that discovery is necessary in this case.
[28] There is, in my opinion, no reason to doubt the correctness of the motion judge's determination as it applies to the circumstances in this particular case. Furthermore, the determination of whether a summary judgment motion without discovery is appropriate is case specific. It is not a matter of general importance such that leave to appeal should be granted. [page144]
Conclusion
[29] In my opinion, neither of the two grounds on which leave may be granted apply. Leave to appeal is therefore denied.
[30] I would encourage the parties to resolve the matter of costs. If they are unable to do so, the defendants should provide written submissions within 14 days of the release of these reasons. The plaintiff has a further 14 days within which to respond. The cost submissions will not exceed three pages in length, plus a costs outline.
Application dismissed.
End of Document