DIVISIONAL COURT FILE NO.: DC-14-00000216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Eldon Fehr Plaintiff
– and –
Sun Life Assurance Company of Canada Defendant
COUNSEL:
Won J. Kim and Megan B. McPhee, for the Plaintiff
Glynnis P. Burt and C. Daniel Wolski, for the Defendant
HEARD: June 5, 2014
HARVISON YOUNG J.
1The plaintiffs bring a motion for a stay of the case management direction of Justice Perell dated April 8, 2014 (the “Order”). This order arises from the March 28, 2014 case conference, and set a timetable for the delivery of materials ahead of the certification and summary judgment motions which had been returnable in June 2014 and which had been cancelled by him at the case conference. The plaintiffs have sought leave to appeal that decision and it is scheduled to be heard later in June, 2014.
2The plaintiffs summarize the rationale for their request for a stay as follows at para. 9 of their factum:
They cannot put their best foot forward in opposing summary judgment without receipt of a complete affidavit of documents; and if they respond and proceed with cross examinations as ordered by Justice Perell, they may be precluded from supplementing their opposing materials pursuant to Rule 39.02 of the Rules of Civil Procedure. Such prejudice threatens irreparable injury that cannot be compensated by costs. The Plaintiffs accordingly request a brief stay so they do not need to submit their opposing materials on summary judgment (due June 9) until their motion for leave to appeal, particularly concerning their request for a further and better affidavit of documents, is resolved following the June 26 hearing in this Court.
3Although the plaintiffs characterize this as a request for a “brief” stay, their notice of motion seeks a stay of the Order “pending leave to appeal the Decision, and if leave is granted, pending the outcome of all related appeals of the Decision”. As Ms. Burt for the defendant noted, there is no way of knowing at this point how brief or long these periods might be.
4Having reviewed the materials and authorities filed, and heard the submissions of counsel, I conclude that the plaintiffs have not satisfied the test for a stay on any of the elements of the test as articulated in RJR-Macdonald Inc. v. Canada, [1994] S.C.R. 311 at para. 43 (the “RJR test”).
Serious Issue to Be Tried
5The question of whether there is a serious issue to be tried in the context of this motion is, in essence, whether there is a serious issue in relation to the test for leave to appeal.
6Mr. Kim for the plaintiffs argues that the motions judge erred in declining to order the defendant to provide an affidavit of documents prior to the summary judgment motion. He submits that neither the rules nor the recent Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7 support the motion judge’s Order, and that it runs contrary to case law requiring a responding party to put its “best foot forward” on summary judgment – to “lead trump or risk losing” – a principle that has been held to apply with equal force to motions under the new summary judgment rules.
7The defendant submits that there is no serious issue to be tried in this case because the plaintiffs are unlikely to satisfy the test for leave to appeal under Rule 62.02(4) in the context of such a discretionary case management decision, which is to be accorded a high level of deference.
8I agree with the defendant in the circumstances of this case. The motion judge’s decision that affidavits of documents were not to be required was made within a context of case management that was continuing and which provided for further and continuing case management as the matter unfolds. In addition, the motion judge specifically considered the plaintiffs’ submission, made here, that an affidavit of documents was necessary at this stage. He found that given the precise focus of the defendant’s summary judgment motion (relating only to limitation period defences in relation to representative plaintiffs), it appeared to him that the plaintiffs had everything they needed for the motion upon which the defendant was basing their case. He also noted, however, that
…[i]f there is anything relevant missing for the summary judgment motion, the Plaintiffs have the recourse of appropriate questioning by cross-examining the Defendant’s deponents or witnesses for the certification motion or for the summary judgment motion. There is no reason to think that the Plaintiffs will be deprived of the documents they need to put their best foot forward in resisting the Defendant’s summary judgment motion. (Reasons for Decision, para. 29).
9The Order also contemplates further case conferences at the instance of either party:
After 180 days from the Release of these Reasons for Decision, either party may convene a case conference for the purpose of establishing a timetable for the completion of cross-examinations, refusals motions, the exchange of factums, and the date for the hearing of the certification motion and of the summary judgment motion. (Reasons for Decision, para. 5).
10The motion judge carefully considered the plaintiffs’ submissions that a further and better affidavit of documents before the summary judgment motion was necessary. He also considered the authorities to which the plaintiffs referred him. He concluded that, in the circumstances of this case, it would be unnecessary and disproportionate to so order. He carefully distinguished the cases relied on by the plaintiffs including Bank of Montreal v. Negin (1996), 31 O.R. (3d) 230 (C.A.) and Fairview Donut Inc. v. The TDL Group Corp., 2010 ONSC 6688. He referred approvingly to Justice Himel’s approach in Natural Resource Gas Ltd. v. IGPC Ethanol Inc., 2011 ONSC 3529. He also expressed his view that the request for a further and better affidavit of documents was a “tactical maneuver to overmatch the Defendant’s tactical maneuver of a focused summary judgment motion” (Reasons for Decision, para. 38). The motion judge, carefully considering the particular circumstances and evidence before him, was of the view that this tactic would imperil rather than ensure the fair and expeditious determination of the proceeding (Reasons for Decision, para. 42).
11In addition, the motion judge considered the proportionality principles as recently endorsed by the Supreme Court in Hryniak v Mauldin 2014 SCC 7, referring specifically to the statement of Karakatsanis J. that a culture shift is required in the legal community to create an environment promoting timely and affordable access to the civil justice system, and that this requires simplifying pre-trial procedures, moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The motion judge stated that his direction that the parties not be obliged to exchange affidavits of documents for the summary judgment motion was “designed to be proportionate and to tailor the procedures to the needs of this particular case”.
12Although I recognize that the threshold for this first limb of the RJR test is a low one, I do not think it is likely that the plaintiffs will succeed on their leave motion. I am not satisfied that the plaintiffs have pointed to any conflicting decisions. In any event, I would think it unlikely that the judge hearing the motion will find it desirable to grant leave to appeal in these circumstances involving a discretionary case management order setting out the procedural direction, by a case management judge very familiar with the issues and the parties (Rule 62.02(4) (a). For similar reasons, it appears to me to be unlikely that the judge hearing the leave application will find reason to doubt the correctness of this essentially discretionary decision, but even if he or she did, the particular circumstances of this discretionary case management direction in this specific class action are unlikely to be considered as matters of public importance (Rule 62.02(4)(b). In short, I do not think that the plaintiffs have cleared even the low “serious question to be tried” bar.
Irreparable Harm
13I am unable to accept that the plaintiffs have established any irreparable harm in complying with the Order. This summary judgment motion is limited to only the proposed representative plaintiffs and the rest of the proposed class is not in issue at this point. Contrary to the submission at para. 50 of the Plaintiff’s factum, the filing of responding material as contemplated by the Order would not render the pending appeal nugatory or moot and the plaintiffs have not satisfied the court why this would be so. If the plaintiffs are successful on a appeal and the defendant is required to make additional documentary production, there is nothing in the order preventing the plaintiffs from filing supplementary material. The Order specifically contemplates the variation or supplementation of the Order based on the exigencies of the case as it unfolds.
14Filing materials and continuing litigation which an appeal is pending does not constitute irreparable harm: Noble v. Noble, [2002] O.J. No. 2997 at para. 17 (S.C.J.). Any costs incurred are easily quantifiable and can be compensated by costs awards, among other things: Baxter v. Canada (Attorney General), [2005] O.J. No. 2165 at para. 11 (S.C.J.).
Balance of Convenience
15The balance of convenience does not, in my view, favour granting a stay. The Order sets out a timeline for the delivery of reply materials on the summary judgment motion and also contemplates (without setting a schedule) that cross-examinations will take place thereafter. As noted earlier in these reasons, the Order also provides that the parties may seek another case conference 180 days after the release of those reasons (October 8, 2014) to deal with unresolved matters.
16There are 27 affiants to be cross-examined on the certification motion and the summary judgment motion. Many of these (e.g. the 17 sales advisors and the two experts) will be unaffected by the evidence filed with respect to the summary judgment motion. Granting this stay would unnecessarily delay the completion of these cross-examinations. Such delay will necessarily further delay the hearing of the certification motion and the summary judgment motion. In the event that leave to appeal is granted and successful, all parties would benefit in that the action could proceed to certification and summary judgment with adjustments. If leave is not granted, the defendant will not be significantly prejudiced by waiting some additional time for the plaintiffs responding materials. But if leave is granted, a number of months could pass before a decision was reached. In short, granting a stay will ensure significant delay. Without a stay, the motion judge’s framework permits and encourages the action to move forward.
Conclusion
17In conclusion, I would dismiss the motion for a stay as sought by the plaintiffs. While I have found that there is no serious issue to be tried, I recognize that the bar is a low one, and in the circumstances of this case, I would not grant the stay even if these circumstances met that bar, given the second and third limbs of the RJR test.
18The application for a stay is therefore dismissed. The parties agreed that costs of this motion should be fixed in the amount of $5,000.00, payable by the unsuccessful party to the successful party. Accordingly, the plaintiffs will pay costs in the amount of $5,000.00 to the defendant.
Harvison Young J.
Released:
CITATION: Fehr v. Sun Life Assurance Company of Canada, 2014 ONSC 3447
DIVISIONAL COURT FILE NO.: DC-14-00000216
DATE: 20140616
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Eldon Fehr Plaintiff
– and –
Sun Life Assurance Company of Canada Defendant
REASONS FOR JUDGMENT
Harvison Young J.
Released: June 16, 2014