CITATION: Dickson v. Di Michele, 2014 ONSC 3043

BARRIE COURT FILE NO.: CV-12-1167-A1

DATE: 20140516

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

LISA DICKSON

Appellant (Plaintiff)

– and –

ANNA DI MICHELE and FLORENTINE DI MICHELE

Respondents (Defendants)

-and-

EDDIE’S PIZZA

Third Party

Marc Lemieux, for the Appellant

Daniel Dooley, for the Respondents

No-one appearing for Third Party

HEARD: May 13, 2014

REASONS FOR DECISION

DiTOMASO J.

THE MOTION

[1] The Appellant (“Ms. Dickson”) seeks leave to appeal the decision of The Honourable Mr. Justice Bale dated April 22, 2014. Justice Bale dismissed Ms. Dickson’s motion for leave to have her partial summary judgment motion heard. If leave was granted, she sought summary judgment with respect to the issues of liability and contributory negligence, leaving the issue of damages for trial.

OVERVIEW

[2] This is a simplified rules action arising out of an alleged dog attack. Ms. Dickson claims personal injury damages, including damages for alleged psychological injuries.

[3] She seeks leave to appeal the order of Justice Bale made April 22, 2014 denying leave to Ms. Dickson under rule 48.04 to bring a summary judgment motion on the issue of liability and contributory negligence after she served a trial record. This matter is on the trial list for the May 2014 sittings at Barrie.

THE ISSUE

[4] The issue requiring determination is whether leave to appeal Justice Bale’s order should be granted to Ms. Dickson.

POSITIONS OF THE PARTIES

Position of the Appellant

[5] Ms. Dickson submits that she has satisfied the test for leave to appeal as set out in rule 62.02(4)(a) and (b) of the Rules of Civil Procedure. Having satisfied the test, she submits leave to appeal should be granted.

[6] More specifically, Ms. Dickson submits the following:

(a) The motions judge erred in law and placed undue emphasis on rule 20.04(2)(a) of the Rules of Civil Procedure and failed to properly consider rule 20.01(1) which allows a Plaintiff to move for summary judgment on part of a claim in a Statement of Claim. Numerous decisions including a decision from the Ontario Court of Appeal have permitted “judgment” on the issue of liability (see Szabo v. Walton, [1987] O.J. No. 10000 (ONCA).

(b) The motions judge failed to apply the proper test for granting leave on a summary judgment motion, having regard to the decision Fruitland Juices Inc. v. Custom Farm Service Inc., 2012 ONSC 4902 (Ont. Sup. Ct.).

(c) The motions judge failed to consider whether there were genuine issues requiring a trial with respect to liability and contributory negligence, having regard to the Supreme Court decision, Hryniak v. Mauldin, 2014 SCC 7.

(d) The motions judge placed undue emphasis on rule 6.1.01 of the Rules of Civil Procedure and failed to consider the Court’s inherent jurisdiction to order the bifurcation of a proceeding, having regard to the decision Soulliere v. Robitaille Estate, 2013 ONSC 5073 (Ont. Sup. Ct.). In addition, the motions judge failed to provide the parties with an opportunity to make submissions on this issue.

(e) The motions judge placed undue emphasis on the fact that this action had been set down for trial, even though this fact had no bearing as to whether or not the Plaintiff’s summary judgment motion would result in a less costly and time-consuming trial.

(f) The decision of the motions judge conflicts with case law in Ontario, particularly from the Supreme Court of Canada and the Ontario Court of Appeal.

(g) There is good reason to doubt the correctness of the subject Order and the proposed appeal involves matters of importance, in particular, access to justice.

Position of the Respondents Di Michele

[7] The Respondents submit that Ms. Dickson’s motion should be dismissed on the following grounds:

(a) There is no conflicting decision;

(b) It is not desirable that leave to appeal be granted given a trial is scheduled this month;

(c) The correctness of Justice Bale’s decision is not open to serious debate; and

(d) The issues are not matters of general importance.

ANALYSIS

Leave to Appeal Required

[8] An Appeal lies with the Divisional Court from an interlocutory Order of a Judge of a Superior Court of Justice with leave.[^1]

Test on Motions for Leave to Appeal

[9] The test for leave to appeal is governed by rule 62.02(4) of the Rules of Civil Procedure, which sets out two independent grounds upon which leave to appeal an interlocutory Order may be granted:

(a) there is a conflicting decision by another Judge or Court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the Judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the Judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should to be granted.[^2]

[10] Leave to appeal may be granted if either of the above grounds is satisfied. The test on motions for leave to appeal under rule 62.02(4) of the Rules of Civil Procedure consists of two disjunctive branches and, in turn, each branch has two conjunctive requirements.[^3]

[11] In terms of the first requirement of the first branch of the test on motions for Leave to Appeal under Rule 62.02(4)(a), a decision will be a “conflicting decision” within the meaning of Rule 62.02(4)(a) of the Rules of Civil Procedure if a party can demonstrate a difference in the principles chosen by a Judge to guide the exercise of his or her discretion.[^4]

[12] In terms of the second requirement of the first branch of the test on motions for Leave to Appeal under rule 62.02(4)(a), where these conflicting decisions on the interpretation of a matter of law are of general importance, the matter should be referred to the Divisional Court to resolve any apparent conflict.[^5]

[13] In terms of the first requirement of the second branch of the test on motions for Leave to Appeal under Rule 62.02(4)(b), a moving party does not have to convince the Court that the decision it seeks to appeal from is wrong or even probably wrong. It is sufficient for the moving party to show the Court that there is good reason to doubt the correctness of the decision. Thus, the Court should ask itself whether the correctness of the decision in question is open to very serious debate and, if so, is it a decision that warrants resolution by a higher level of judicial authority.[^6]

[14] In terms of the second requirement of the second branch of the test on motions for leave to appeal under rule 62.02(4)(b), “matters of such importance” are not matters of particular importance relevant only to the litigants. General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice.[^7]

[15] Again, the issue on this motion is whether the Ms. Dickson has met the test for leave to appeal to the Divisional Court of Justice Bale’s decision.

The First Test – rule 62.02(4)(a) – conflicting decisions/desirability that leave to appeal be granted.

[16] Ms. Dickson’s motion for leave seeking partial summary judgment and the motion for summary judgment were heard by Justice Bale on January 29, 2014. His decision was released on April 22, 2014 and can be found in the Appellant’s motion record at Tab 2.

[17] Ms. Dickson submits that the motion judge’s decision is not an accurate interpretation regarding the various uses of Rule 20 wherein many cases Rule 20 has been employed to determine liability apart from the assessment of damages. Counsel on behalf of Ms. Dickson cited the numerous authorities referenced in his Factum where summary judgment was granted on the issue of liability with the quantum of damages being referred to trial as a genuine issue for trial. It is submitted that the motions judge failed to apply the proper test for granting leave on a summary judgment motion and failed to consider whether there were genuine issues requiring a trial with respect to liability and contributory negligence, having regard to the Supreme Court of Canada decision in Hryniak v. Mauldin 2014 SCC 7. Further it is submitted that the motions judge placed undue emphasis on rule 6.1.01 of the Rules of Civil Procedure and failed to consider the court’s inherent jurisdiction to order the bifurcation of the proceeding, having regard to the decision in Soulliere v. Robitaille Estate, 2013 ONSC 5073 (Ont. Sup. Ct.). As well, the motions judge failed to provide the parties with an opportunity to make submissions on this issue.

[18] Also, it is submitted that he placed undue emphasis on the fact that this action had been set down for trial, even though this fact would have no bearing as to whether or not Ms. Dickson’s summary judgment motion would result in a less costly and time consuming trial.

[19] On the motion for leave, Ms. Dickson did not argue that there was any new or unexpected change in circumstances that had occurred since the action was set down for trial. The motions judge reasoned that whether there is a substantial or unexpected change in circumstances, when asked to grant leave under sub-rule 48.04(1) to bring a motion for summary judgment, the court should consider whether the proposed motion is likely to provide a “proportionate, more expeditious and less expense means to achieve a just result than going to trial”. The motions judge also reasoned that, in most cases, this would include some consideration of the likelihood of success on the motion.[^8]

[20] The Respondents submit that the Appellant sought leave to bring a motion for summary judgment on the issues of liability and contributory negligence only after the matter had been set down for trial. That trial is now scheduled to be heard at the May 2014 Sittings at Barrie.

[21] Rule 48.04(1) of the Rules of Civil Procedure provides that any party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

[22] The motions judge considered and applied the test for granting leave under rule 48.04 as outlined in Fruitland Juices Inc. v. Custom Farm Service Inc. et al[^9] and Theodore Holdings Ltd. v. Anjay Ltd.[^10] referred to by the Respondents.[^11]

[23] The Respondents cited the decision Theodore Holdings where leave to bring a summary judgment motion was denied. In that case, the Plaintiff sought leave to bring a summary judgment motion that did not encompass the Plaintiff’s claim for damages and, as in the case at bar, a successful summary judgment motion would not have been dispositive of the action.

[24] Then J. in declining to grant leave to hear the summary judgment motion stated the law as follows:

In my view leave should not be granted to the plaintiff to pursue a motion for summary judgment. The facts underlying the proposed motion have been known to the plaintiff before the matter was set down for trial and no new or unexpected change in circumstances have been shown since that date. While it is, of course, appropriate for the court to consider that a successful motion for summary judgment might obviate the need for a trial or substantially lessen the time required for trial the plaintiff has not demonstrated either that the motion for summary judgment will likely be successful or that such a motion will be dispositive as it is agreed that the issue of the plaintiff’s damages will remain outstanding. In circumstances where this action has been on the trial list for almost one year, and, where it is not unreasonable to suppose that the matter will proceed to trial in the not too distant future it is not, in my view, appropriate to bring a motion for summary judgment at this late date.[^12]

[25] In Fruitland Juices Inc., the court considered when leave should be granted to hear a summary judgment motion. In Fruitland Juice Inc., the proposed motion, if successful, would have disposed of the need for a trial in its entirety. Quinn J. summarized the law as follows:

The requirement for a substantial and unexpected change in circumstances is not a helpful or logical test where the motion for which leave is requested seeks summary judgment. The primary purpose of such a motion is to spare the parties and the legal system the expense and intrusion of an unnecessary trial or, at least, unnecessary issues within the trial. A party is not obliged to bring a summary judgment motion at the earliest opportunity; neither must there be a precipitating event such as a change in circumstances. So long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial, I do not see why the moving party must explain his or her choice of timing. In other motions (such as to add parties, raise new issues or amend pleadings), the explanation for a delay in so moving is relevant, as is the issue of prejudice to the opposing party. However, none of that is relevant or required in a motion for summary judgment, at least in the circumstances of this case. A summary judgment motion brought at any time is a potential blessing for the administration of justice.[^13]

[26] I find that the decision of the motions judge is not in conflict with the ruling in Fruitland Juices Inc. Rather, the motions judge exercised his discretion differently in the facts of this particular case. Neither do I find that the decisions in Fruitland Juices Inc. and Theodore Holdings Ltd. are not in conflict with each other.

[27] Further, in Allen v. Prince Edward (County)[^14] the motions judge considered the law regarding requests for leave under rule 48.04 to have a summary judgment motion heard and concluded that leave can be granted if either (a) there has been a substantial and unexpected change in circumstances since the matter has been set down for trial, or (b) that (i) there is merit to the relief requested (the summary judgment motion in that case) and (ii) any resulting prejudice to the opposing party can be compensated by costs. The motions judge went on to state that granting leave under rule 48.04 is a discretionary remedy and that this discretion must be exercised having regard to the general principles set out in rule 1.04 that “the Rules shall be construed liberally, secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[28] Other judges, as did Justice Bale at para. 19, have found that when a summary judgment motion or other motion would likely increase the overall cost of the proceeding or would not result in materially shortening the trial, leave to have the motion heard pursuant to rule 28.04 should be denied.[^15]

[29] I agree with the submissions made on behalf of the Respondents that the decision of the motions judge in this case does not conflict with the law of rule 48.04 motions and that Justice Bale exercised his discretion appropriately.

[30] At para. 19 in his Reasons for Decision, Justice Bale stated:

[19] I do not see any material savings resulting from the proposed summary judgment motion. More likely, even if successful, the motion would increase the overall costs of the proceeding.

[31] Justice Bale was entitled in all the circumstances of the motion for leave before him to make this finding.

[32] Further, he was entitled to exercise his discretion to find that a summary trial would be the preferred procedure. He concluded for reasons given that in this case, “the proposed motion for summary judgment would not provide a proportionate, more expeditious or less expensive means to achieve a just result than a trial. The request for leave to bring the motion is therefore denied.”[^16]

[33] I conclude that the decision of Justice Bale does not conflict with the law regarding rule 48.04 motions and that he exercised his discretion appropriately.

[34] Further, I find that it is not desirable to grant leave to appeal in the circumstances of this case based on the following reasons:

(a) If leave to appeal is granted the motion for summary judgment will be heard on the issue of liability only. A trial would still be required to determine damage. The Order appealed from does not impact the substantive right of Ms. Dickson to have her matter tried;

(b) Justice Bale’s order denying leave was an exercise of his judicial discretion. He applied this discretion judicially in light of the legal test and the facts of this case;

(c) If leave is granted, an appeal to the Divisional Court will likely not be heard for several months. If the appeal is allowed, a determination on the summary judgment motion will need to be made. There could be further appeals of that decision. However, and of considerable significance, a trial in this action to determine all of the issues is on the trial list to begin this month. In the circumstances of this case I find it would be more desirable for the matter to proceed to trial and a final determination be made of all the issues at the same time.

[35] I am satisfied that Ms. Dickson has not satisfied the first branch of the test on a motion for leave to appeal under rule 62.02(4)(a).

The Second Test – rule 62.02(4)(b) – reason to doubt correctness/general importance

[36] It is submitted that there is reason to doubt the correctness of Justice Bale’s order and this appeal concerns matters of general and public importance. It is submitted that Justice Bale applied the incorrect test for leave to bring a summary judgment motion under rule 48.04. He applied the test for whether or not a trial is required and not for leave to bring the motion. I do not agree.

[37] To the contrary, I find that Justice Bale applied the law in accordance with rule 48.04 case-law. There is no reason to doubt the correctness of his decision. Justice Bale exercised his discretion and denied leave for several reasons, including:

(a) the Appellant was not “forced” to set the matter down for trial when she did (para. 10);

(b) the Appellant was seeking partial summary judgment over an “issue” and not with respect to a “claim” and that the summary judgment procedure is only available for the determination of an issue or issues where the determination of those issues would be dispositive with respect to a claim or defence (paras. 12-13);

(c) the Appellant was asking the court to bifurcate the proceedings to have separate hearings on the issues of liability and damages (para. 15);

(d) evidence of the incident itself, upon which a finding of liability would be based, would need to be explored again for the purpose of determining damages (para. 17);

(e) he did not see any material savings resulting from the proposed summary judgment motion. More likely, even if successful, the motion would increase the overall costs of the proceeding (para. 19); and

(f) a summary trial would have been a more appropriate procedure (para. 20).[^17]

[38] At para. 21, Justice Bale found correctly that in this case, “the proposed motion for summary judgment would not provide a proportionate, more expeditious or less expensive means to achieve a just result than a trial”.

[39] Regarding the circumstances when summary judgment is available and when bifurcation should be ordered, there is no reason to doubt the order of Justice Bale. Justice Bale correctly relied upon the decision of Justice D.M. Brown in George Weston Limited v. Domtar Inc. which held:

[129] Rule 20.01(1) authorized a motion for summary judgment on “part of the claim in the statement of claim”. Rule 6.1.01 addresses when separate hearings may be held on “issues”. As I read Sobey’s proposed notice of motion, in conflates “issues” with “claims”…. If successful, the motion would not eliminate the plaintiffs’ claims for damages; it only would reduce some of the factual issues underpinning those claims. Such an objective, in my view, is not consistent with the purpose of summary judgment motions and wold risk expanding Rule 20 into a device drawing the court into multiple reviews of an underlying fact pattern. [^18]

[40] Further, Justice Bale did not err in law by considering whether the proposed motion resulted in a proportionate, more expeditious and less expensive means to achieve a just result. Whether he cited Hryniak or rule 1.04, the result is the same. He turned his mind to whether on a rule 48.04 motion, the summary judgment motion would be proportionate, more expeditious and a less expensive means to achieve a just result.

[41] There is no reason no doubt the correctness of his finding that he did not “see any material savings resulting from the proposed summary judgment motion. More likely, even if successful, the motion would increase the overall cost of the proceeding”.[^19]

[42] In coming to this conclusion, Justice Bale considered the following:

[17] The Plaintiff claims psychological damages, including post-traumatic stress disorder, accompanied by nightmares. Counsel for the Defendant wishes to challenge the Plaintiff’s position that she suffered trauma as a result of a frightening dog attack. This being the case, the evidence of the incident itself, upon which a finding of a liability would be based, will need to be explored again at trial for the purpose of determining damages.

[43] I find that Justice Bale was correct in concluding that a summary judgment motion would not produce any cost savings in this proceeding. The same number of witnesses and the same facts would be required to be considered at trial, even if a determination of liability were to be made on a summary judgment motion.[^20]

[44] Further, Justice Bale’s ruling denying leave to bring a summary judgment motion does not deal with matters of general importance. The ruling does not have an overreaching impact on the state of the law. Rather, it is a matter relevant as between the parties. Therefore, I find that the Appellant has not satisfied the second test set out in rule 62.02(4)(b).

CONCLUSION

[45] Accordingly, for these reasons, the Appellant’s motion for leave to appeal the order of Justice Bale dated April 22, 2014 to the Divisional Court is hereby dismissed.

[46] I heard submissions in respect of costs.

[47] The Respondents are the successful parties in respect of this motion and are entitled to their costs on a partial indemnity scale. A Costs Outline was submitted by counsel for the Respondents. Costs are sought in the amount of $5,547.40 all inclusive.

[48] Counsel for the Appellant submits that $1,500 would be an appropriate amount for costs and that the time spent in respect of this motion was excessive. I disagree in respect of those submissions. The amount of time was appropriate given the issues involved and regarding the preparation of a detailed Factum and Brief of Authorities on behalf of the Respondents. By comparison, on behalf of the Appellant extensive materials were also produced.

[49] I find that the total costs claimed by the Respondents in the amount of $5,547.40 is fair, reasonable and proportional.

[50] Accordingly, the Appellant Lisa Dickson shall pay to the Respondents Anna Di Michele and Fiorentine Di Michele the sum of $5,547.40 all-inclusive for costs within the next 30 days.

DiTOMASO J.

Released: May 16, 2014

[^1]: Section 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c.C.43 [^2]: Rule 62.04(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^3]: Curle v. Gustafson, [2013] O.J. No. 3878 (SCJ) at para. 5 [^4]: Kassian Estate v. Canada (Attorney General), 2013 ONSC 892, [2013] O.J. No. 846 (SCJ); at para. 6. [^5]: Kassian Estate supra [^6]: Brownhall v. Canada (Minister of National Defence) 2006 7505 (ON SC), [2006] O.J. No. 672 (SCJ) [^7]: Almeida v. Almeida, [2012] O.J. No. 3174 (SCJ) at para. 18 [^8]: Reasons for Decision at para. 10 [^9]: Fruitland Juices Inc. v. Custom Farm Service Inc. et al 2012 ONSC 4902 [^10]: Theodore Holdings Ltd. v. Anjay Ltd. (1993) 18 C.P.C. (3d) 160 [^11]: Reasons for Decision paras. 8 and 9 [^12]: Theodore Holdings supra at paras. 14 and 15 [^13]: Fruitland Juices Inc. supra at para. 28 [^14]: Allen v. Prince Edward (County), 2012 ONSC 2137 at para. 9-10 [^15]: Reasons for Decision para. 19 [^16]: Reasons for Decision para. 21 [^17]: Reasons for Decisions paras. 10, 12, 13, 15, 17, 19 and 20 [^18]: George Weston Limited v. Domtar Inc., 2012 ONSC 5001 [^19]: Reasons for Decision para. 19 [^20]: Reasons for Decision, paras. 19-21