Court File and Parties

CITATION: Lorama Group Inc. v. Lenz, 2015 ONSC 5915

DIVISIONAL COURT FILE NO.: 289/15

COURT FILE NO.: CV-14-497257

DATE: 20150924

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

LORAMA GROUP INC. Plaintiff (Respondent)

– and –

RUBEN LENZ, ADVANCED MICRO POLYMERS INC., JOSEPH GARRIDO, ADVANCED POLYSACCHARIDE TECHNOLOGIES, INC., HERMANN KOCH, BRUNO STIEG and THOMAS ANTHONY Defendants (Moving Parties)

Counsel:

Mark Edward Davis and Greg Beach for the Plaintiff (Respondent)

Kenneth R. Clark for the Defendants (Moving Parties) Joseph Garrido, Advanced Polysaccharide Technologies Inc., Hermann Koch and Bruno Stieg

Dino Mazzorato for the Defendants (Moving Parties) Ruben Lenz and Advanced Micro Polymers Inc.

HEARD at Toronto: In writing

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] The Defendants seek leave to appeal the Order of Justice K. Wright dated May 15, 2015 that dismissed their motion for summary judgment with costs of $30,000 but without prejudice to the Defendants refiling the motion.

[2] The Defendants also seek ancillary relief. They seek an Order that the Court provide to them for the appeal record a copy of the audio recordings of: (a) the oral argument on the summary judgment motion, so that a transcript can be made of the argument; and (b) Justice Wright’s oral Reasons for Decision so that a transcript can be made of the Reasons for Decision.

[3] This is an ill-conceived and misconceived motion for leave to appeal and for the reasons expressed below, I dismiss the motion for leave to appeal. Justice Wright made a procedurally fair decision not to determine the summary judgment motion on its merits. There is no reason to doubt the correctness of that decision or to raise an allegation of a reasonable apprehension of bias, and the proposed appeal does not involve matters of such importance to the parties or to the public that leave to appeal should be granted.

B. FACTUAL AND PROCEDURAL BACKGROUND

[4] Lorama Group Inc. manufactures polysaccharide resins. It developed a novel product for the paint industry and it alleges that its product is confidential and proprietary.

[5] The Defendants Ruben Lenz and Joseph Garrido are former employees of Lorama. In this action, Lorama alleges that Mr. Lenz stole Lorama’s trade secrets and through his corporation; i.e., the Defendant Advanced Micro Polymers Inc. (“AMP”), Mr. Lenz sold polysaccharide resin to Mr. Garrido’s corporation; i.e., the Defendant Advanced Polysaccharide Technologies Inc. (“APT”), which, in turn, sold the resin worldwide. Lorama alleges that Mr. Garrido stole confidential technical information and customer lists.

[6] After pleadings were completed, the Defendants brought a motion for a summary judgment. The request for relief in the Notice of Motion stated:

THE MOTION IS FOR:

(a) an order of summary judgment, dismissing the action, as it has been commenced outside the two-year limitation period set out in the Limitations Act, 2002, S.O 2002, c. 24, Sched, B.;

(b) an order granting the Defendants summary judgment dismissing the claim by the Plaintiff against the Defendants on the basis of acquiescence, delay and estoppel;

(c) costs of the action and this summary judgment motion on a substantial indemnity basis, or alternatively, on a scale that is just; and

(d) such further and other relief as counsel may advise and this Honourable Court may deem just.

[7] On January 16, 2015, the parties attended Civil Practice Court to set a timetable for the summary judgment motion. The case information sheet submitted to the court for the summary judgment motion indicated that it would be a one-day hearing. The form indicated that the Plaintiff’s position was that it was a case for an early trial date instead of a summary judgment motion because discoveries should proceed first, but the Defendants’ position was that the summary judgment motion should proceed “due to the alleged simplicity of limitations issue and costs saving due to limited issues.” [emphasis added]

[8] On the case information sheet under the heading “Issues/Facts in Dispute,” the form stated:

With respect to the limitations defence, the issues are: (a) application of limitation period to alleged ongoing tortious conduct; (b) discoverability (when should misappropriate [sic] of trade secret have been discovered. The existence of trade secret prior to limitation period by defendant for purpose of this motion only.

[9] On January 16, 2015, Justice Mew approved the timetable, and he made the summary judgment motion returnable on May 12, 2015.

[10] The motion came on before Justice Wright on May 12, 2015, but because she was completing another matter, she directed them to Civil Practice Court for a new return date. Based on her review of the file, she regarded the hearing as likely to require three days to argue. The parties attended before Justice Himel, who, however, directed that the motion be rescheduled for one day on May 14, 2015.

[11] The parties reappeared before Justice Wright again on May 14, 2015.

[12] The argument of the motion was recorded by a Court Reporter.

[13] As argument began, Lorama raised a preliminary objection that the Defendants, in their factum, had expanded the scope of the summary judgment motion and were seeking a determination on the merits of whether the Defendants had taken confidential information. The Plaintiff protested that the Defendants had raised in their factum the argument (Defendants’ factum paras. 117-129) that there was no genuine issue for trial on the merits of the Plaintiff’s claim. In response to this preliminary objection, the Defendants indicated, however, that the only two issues that were to be argued at the hearing of the motion would be the “limitations issue” and the “estoppel issue,” and Justice Wright so directed.

[14] The argument got underway and proceeded in a bifurcated fashion. The limitation period issue was argued in chief by the Defendants, in response by the Plaintiff, and in reply by the Defendants, and then the Defendants began their argument on the estoppel issue.

[15] Partway through their argument on the estoppel issue, Justice Wright interrupted the Defendants’ argument to point out that the Defendants were arguing the merits issue contrary to the direction that she had made that the merits issue not be argued.

[16] The Defendants asserted that their argument was pertinent to the estoppel issue and that the points being argued were part of the original Notice of Motion. The Plaintiff, however, responded that they were being taken by surprise.

[17] Having heard from both parties, Justice Wright adjourned the May 14, 2015 hearing and told the parties to return the next day for her direction.

[18] On May 15, 2015, without hearing further argument, Justice Wright dismissed the summary judgment motion without prejudice. She ordered the Defendants to pay costs of $30,000 forthwith. Her endorsement on the Motion Record stated:

Motion dismissed without prejudice to the defendants to bring another summary judgment motion if they so choose. – Oral reasons on the record. Costs as a result of the dismissal are payable to the plaintiff, $30,000 forthwith.

Moving forward there are discoveries set for June 2015 – once complete the matter is to return before me to set a schedule to determine the path this action is to move forward. ….

[19] A formal Order was taken out, the operative part of which stated:

1. THIS COURT ORDERS that the motion be dismissed, without prejudice to the defendants’ ability [to] bring another summary judgment motion if they so choose.

2. THIS COURT FURTHER ORDERS that once oral examinations for discovery of all parties, which are currently ordered to be completed by June 30, 2015, have taken place, the matter is to return before Madam Justice Wright to set a schedule and determine the path for this action to move forward.

3. …

4. THIS COURT FURTHER ORDERS that the defendants shall pay the plaintiff costs of the motion in the amount of $30,000, forthwith.

[20] As I shall further describe below, Justice Wright did not authorize a release of the recording of the hearing, including the recording of the oral argument and the recording of her oral reasons.

[21] I shall also explain below that this refusal is insignificant to the immediate motion for leave to appeal and for ancillary relief, because the parties know what they argued and what Justice Wright said by way of oral reasons. The parties prepared a summary of her oral reasons, which were as follows:

The Defendants’ Notice of Motion was limited to only two issues: (1) whether the Plaintiff’s action should be dismissed due to expiry of a limitation period, and 2) whether the Plaintiff is estopped from bringing this action. The Defendants attempted to argue a third issue at the hearing of the motion, namely that there is no genuine issue for trial on the merits. In my view, arguing whether there is a genuine issue for trial on the merits is unfair to the Plaintiff because it is beyond the scope of the Defendants’ Notice of Motion.

The hearing of this motion was set down for only one day, and I advised counsel for the Defendants that arguing whether there was a genuine issue for trial on the merits would require considerably more than the time allotted. Counsel for the Defendants did not limit oral argument to the issues set out in the Notice of Motion, but rather, repeatedly attempted to expand the scope of the motion by arguing there was no genuine issue for trial on the merits. No notice was provided to the Plaintiff regarding a genuine issue for trial on the merits and the Plaintiff was not prepared to argue a genuine issue for trial on the merits. The Plaintiff was unprepared and caught off guard and the landscape changed, and to argue the motion on the merits would require more time than available to the Court. An adjournment would not suffice to remedy any prejudice to the Plaintiff.

[22] Immediately after Justice Wright delivered oral reasons, counsel for the Defendants objected that the Defendants had been denied procedural fairness because they had not had an opportunity to argue that the Plaintiff had not suffered any actual prejudice or to submit that the prejudice could be remedied short of a dismissal of the Defendants’ summary judgment motion. In this last regard, the Defendants’ counsel asked that the dismissal order be varied to allow argument to continue with the Defendants undertaking to only deal with issues raised in the Plaintiff’s factum. This request was denied by Justice Wright without reasons.

[23] Within days, the Defendants decided to seek leave to appeal the dismissal of their summary judgment motion, and on May 22, 2015, the Defendants completed the standard form to order a transcript of a court proceeding. The Plaintiff consented to the order.

[24] In the order form, the Defendants asked for the recording for “Thursday May 14, 2015 and Friday May 16, 2015” and for the Reasons for Decision. I assume that the reference in the order form to May 16, 2015 was meant to refer to May 15, 2015.

[25] On May 27, 2015, the Court Reporter advised the Defendants’ counsel that Justice Wright had not approved the release of the recording for transcription purposes.

[26] The parties prepared a summary of Justice Wright’s oral reasons and both parties filed affidavits setting out what had transpired leading up to the motion for leave to appeal now before the Court.

C. GROUNDS OF APPEAL

[27] The Defendants submit six grounds of appeal; namely:

(1) Did Justice Wright err in law by not permitting transcription of the Reasons for Decision for the motion for which leave to appeal is sought?

(2) Did Justice Wright err in law in not providing reasons as to what prejudice, if any, the Plaintiff was suffering by the Defendants’ attempt to argue the “merits issue”?

(3) Did Justice Wright err in law in not providing reasons as to what prejudice, if any, the Plaintiff was suffering by the attempt by the Defendants to argue the “estoppel issue”?

(4) Did Justice Wright err in law by declining to use the powers provided to the Court, e.g. under Rules 20.04(2.1) and (2.2), to decide if there was a genuine issue for trial, by failing to provide the Plaintiff with the ability to make submissions regarding procedural remedies short of dismissing the summary judgment motion that would have enabled the Plaintiff to mitigate any potential prejudice as a result of any argument by the Defendants that may have been outside of the Notice of Motion?

(5) Did Justice Wright err in law by providing the Defendants with an opportunity to make their argument regarding the “estoppel issue” before dismissing the motion?

(6) Did Justice Wright err in law by failing to decide the limitation period issue - a severable and fully-argued issue in respect of which no prejudice had been asserted by the Plaintiff?

D. DISCUSSION AND ANALYSIS

1. The Test for Leave to Appeal of an Interlocutory Order

[28] The dismissal of a summary judgment motion is an interlocutory order, and the test for leave to appeal from an interlocutory order of a motions judge is set out in rule 62.02(4) of the Rules of Civil Procedure, which reads:

62.02(4) Leave to appeal shall not be granted unless,

(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 be granted.

[29] In order for leave to be granted under rule 62.02(4)(b), the moving party must show both: (a) good reason to doubt the correctness of the order; and also (b) a matter of general importance. In order to show that that there is good reason to doubt the correctness of the order, the moving party need not show that the order is wrong or probably wrong, but rather, that the soundness of the order is open to very serious debate; Ash v. Lloyd's Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.) at pp. 284-5; Oberlander v. Canada (Attorney General), [2004] O.J. No. 1574 (S.C.J.) at paras. 8-9; Brownhall v.Canada (Ministry of Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91 (S.C.J.) at para. 30; Walker v. Woodstock District Chamber of Commerce, [2000] O.J. No. 1994 (S.C.J.); Judson v. Mitchele, 2011 ONSC 6004.

[30] In order to show that a matter is of general importance, the moving party must show that the matter is of importance to the public or to the development of the law or to the administration of justice and that the importance of the order transcends the importance of the matter to the particular parties: Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.) at p. 112; Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.) at p. 575; Brownhall v. Canada (Ministry of Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91 (S.C.J.) at para. 29.

2. Desirability of the Appeal and the Importance of the Matters in Issue

[31] In my opinion, apart from the $30,000 costs order made against the Defendants, an appeal of Justice Wright’s order is not particularly important to the parties.

[32] I say this because assuming leave were granted and the appeal were successful, the costs award would be set aside, and Justice Wright or some other judge would become seized of the action to complete the Defendants’ summary judgment motion. But the order under appeal already provides for the resumption of the summary judgment motion if the Defendants so choose; so, practically speaking, the importance of this appeal to the parties is just the costs order made by Justice Wright.

[33] I will address the various proposed grounds of appeal below on their merits, but in my opinion, the issues raised on this appeal are not matters of importance to the public or to the development of the law or to the administration of justice.

[34] I say this because Justice Wright made no new substantive or procedural law and if she erred, it was an error in the application of the existing substantive or procedural law. If there was an appeal, it would be an error correcting appeal and not make or change the existing law.

[35] As will be seen from the discussion below, the Defendants make much of alleged violations of their rights to natural justice and their entitlement to make their case and to have a decision on the limitation period issue that was fully argued, but these protests do not survive analysis. And what is left for the appeal, if anything, is not of importance to the public since there is no dispute about the underlying law which will not change whatever the outcome of the appeal.

[36] I, therefore, conclude that it is not desirable that leave to appeal be granted and that the proposed appeal does not involve matters of such importance that leave to appeal should be granted.

[37] On these grounds alone, the motion for leave to appeal should be and is dismissed. I will nevertheless go on to consider the substance of the various proffered grounds of appeal.

3. The Alleged Failure to Release the Recording of the Oral Reasons for Decision

[38] The Defendants submit that in not permitting transcription of the Reasons for Decision for the summary judgment motion, Justice Wright committed a breach of natural justice because the parties have a fundamental right to have access to the Reasons for Decision.

[39] To borrow from Shakespeare, the Defendants “doth protest too much, methinks.”

[40] The Defendants know precisely why Justice Wright dismissed the summary judgment motion, and they know why she ordered them to pay costs of $30,000. There is no mystery to be solved. The parties had agreed and Justice Wright had directed that only two issues, the limitation period issue and the estoppel issue, were to be argued at the hearing of the summary judgment motion, but the Defendants were using the estoppel issue or the basket clause of their notice of motion as a pretence to obtain an issue estoppel about the merits issues of whether the Plaintiff’s property was confidential and whether the Defendants had taken any confidential property. The Defendants were breaching their undertaking and Justice Wright’s direction, and she put a stop to it.

[41] The Plaintiff had understood that for the purposes of the summary judgment motion, the Defendants had conceded that the Plaintiff’s property was confidential, but now the Defendants were restricting and compartmentalizing their concession to just the limitation period issue, which took the Plaintiff by surprise.

[42] Perhaps, the Plaintiff should not have been taken by surprise, but it was taken by surprise, and Justice Wright appreciated that the Plaintiff had been tactically outmanoeuvred and that the summary judgment motion had become unfair in the circumstances.

[43] The Defendants, in both of their factums delivered for this motion, spend a great deal of ink to submit that it is preposterous to think that the Plaintiff was taken by surprise and that the Plaintiff did not have an opportunity to meet the case being made against it. This whole argument misses the point that it was the Defendants who had promoted a summary judgment motion “due to the alleged simplicity of limitations issue and costs saving due to limited issues.” Whether or not the Plaintiff was or ought not to have been taken by surprise, the issues being argued in the parties’ factums and at the hearing were no longer limited issues.

[44] Notwithstanding the agreement of the parties and the direction of the motions judge, the Defendants were changing the rules of engagement and ambushing the Plaintiff. Justice Wright put a stop to it. To borrow again from Shakespeare, the Defendants have been “hoist[ed] with their own petard.” They caused the palpable procedural unfairness of attempting to take the Plaintiff by surprise and their manoeuver blew up in their face.

[45] The Defendants know precisely that it was surprise and the emerging procedural unfairness of the summary judgment motion that justified; i.e., that provided the reason for the dismissal of the summary judgment motion. When the Defendants brought their summary motion judgment they had defined a neat issue, the limitation period issue, which apparently would have been dispositive of the case, but they have only themselves to blame for being a procedural pig and attempting to get a march on the Plaintiff. The Defendants’ failed tactical and strategic manoeuver wasted everybody’s time and merited and justified a costs award against them.

[46] In urging that leave to appeal be granted because Justice Wright did not permit the release of the recording of the hearing of the motion, the Defendants rely on the line of authorities that a judgment or order can be set aside because of a judge’s failure to provide adequate reasons. Upon analysis, however, the Defendants’ genuine complaint is not that Justice Wright’s Reasons were inadequate but rather that the circumstances of this case raise a reasonable apprehension of bias to disqualify Justice Wright and to overturn the decision that she made.

[47] There is indeed strong authority that it is an error in law for a judge to fail to provide an explanation of his or her decision that is sufficiently intelligible to permit appellate review. See: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. The adequacy of reasons for decision is determined having regard to their functions which are to inform the parties of the decision, provide public accountability, and permit meaningful appeal or judicial review. Reasons are adequate if they are responsive to the case's live issues and the parties' key arguments. Their sufficiency is measured not in the abstract, but as they respond to the substance of what was in issue. Reasons that set out the conclusion without explaining why the conclusion was reached are not adequate: Daneshvar v. National Dental Examining Board of Canada, [2002] O.J. No. 2487 (Div. Ct.). There is, however, no obligation on a judge to answer each and every argument made by counsel: R. v. Newton, [2006] O.J. No. 1008 (C.A.). There is no obligation on a trial judge to record every aspect of the deliberation process: R. v. Walle, 2012 SCC 41 at para. 46. However, for meaningful appellant review, the decision of the court must, at a minimum, provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion: R. v. Sheppard, supra at para. 24; Barbieri v. Mastronardi, 2014 ONCA 416.

[48] As I already explained above, there is nothing mysterious about the “what” and the “why” of Justice Wright’s Reasons for dismissing the summary judgment motion and there is no reason to doubt the adequacy of her Reasons for Decision.

[49] I do not know why Justice Wright did not permit a release of her oral Reasons for Decision, although it may be that because the reason was that the Defendants’ request was for both the oral Reasons for Decision and also for the lawyer’s oral argument, the latter of which is typically not recorded when both parties are represented by counsel, but I do know that the Defendants know precisely why their summary judgment motion was dismissed with costs. As I have already explained, the Defendants know why Justice Wright decided and the rationale for her decision. In my opinion, her Reasons are legally adequate.

[50] However, relying on Cojocaru v. B.C. Women’s Hospital and Health Care, 2013 SCC 30, which was a serious medical misadventure professional negligence action where one issue was whether a trial judge's decision should be set aside because his reasons incorporated large portions of material prepared by the plaintiffs, the Defendants argue that Justice Wright’s refusal to release her oral Reasons is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not set her mind to the facts and the issues and decide them impartially and independently.

[51] The Defendants’ reliance on the Cojocaru decision and their reliance on Sorger v. Bank of Nova Scotia (1998), 1998 3715 (ON CA), 39 O.R. (3d) 1 (C.A.), which is a case about a judge descending from impartial adjudicator into the area to usurp the function of the advocates, reveals that their objection is not about the adequacy of Justice Wright’s Reasons but their genuine objection is that Justice Wright’s decision, and alleged lack of reasons for it, raises a reasonable apprehension of bias to dismiss the summary judgment motion was biased and that the Defendants have been denied natural justice.

[52] In their factum, the Defendants submit that Justice Wright did not perform her sworn duty to review and consider the evidence with an open mind and this is a matter of fundamental importance, not only to the parties, but to the public. In their reply factum, the Defendants assert that it is a court’s duty to decide, and a court’s duty to hear argument prior to deciding a case and that Justice Wright did not do this thus breaching the Defendants’ fundamental rights under the adversarial system, and, therefore, leave must be granted to remedy the denial of the Defendants’ fundamental rights.

[53] With respect, there is no merit to any of these arguments. In Cojocaru v. B.C. Women’s Hospital and Health Care, supra, Chief Justice McLachlin summarized the approach to determining whether a litigant’s right to an impartial and independent trial of the issues has been violated; i.e., whether there was bias or a reasonable apprehension of bias; she stated at para. 22:

22. The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized as follows. The claim is procedural, focussing on whether the litigant's right to an impartial and independent trial of the issues has been violated. There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.

[54] In the case at bar, the record does not establish any reasonable apprehension of bias or any breach of the Defendants’ fundamental rights, which fundamental rights do not include their breaching of undertakings made to the court in order to ambush their opponent.

[55] In Cojocaru, supra at para. 75, Chief Justice McLachlin stated: “To rebut the presumption of judicial integrity, the defendants must establish that a reasonable person apprised of all the circumstances would conclude that the trial judge failed to consider and deal with the critical issues before him in an independent and impartial fashion.” In the case at bar, there is no reason to think that the Defendants would be able to rebut the presumption of judicial integrity. All is not fair in love, war, and civil litigation, and no objective observer would perceive a reasonable apprehension of a biased decision in the case at bar or that the Defendants’ fundamental rights have been violated.

[56] The Defendants submit that the Court; i.e., Justice Wright had an obligation to decide the severable limitation period issue that was fully argued before her, and that she could and should have fully decided the matter. The Defendants submit that judges have no right to control what comes before them and that judges must decide the cases that are brought before them one way or the other and not shirk their duty in doing so. I agree that judges do not get to decide what cases come before them, and I agree that judges have a duty to decide cases independently and impartially, but judges are under no obligation to decide cases when it would be procedurally unfair to do so.

[57] The Defendants are going to get their day in court, either by bringing back their summary judgment motion or by proceeding to a trial, and they are going to be heard, and they will get a decision one way or the other. Justice Wright did not shirk her duty. The irony of the Defendants’ argument is that had she not done what she did and had she granted the Defendants a judgment dismissing the Plaintiff’s action, it would have been the Plaintiff who would have had a right of appeal (without leave) on the arguable grounds that it had been denied natural justice. It is fundamental to the litigation process as a matter of fairness and due process that a party is entitled to advance notice of the case that he or she must meet and a fair opportunity to meet that case: Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74 (C.A.); Hart v. Roman Catholic Episcopal Corp., 2010 ONSC 4709; 2183164 Ontario Inc. v. Gillani, 2013 ONSC 1456 (Div. Ct.). The Defendants will get their opportunity for a fair hearing but without denying the Plaintiff its reciprocal opportunity to meet the Defendants’ case.

[58] In my opinion, the matter of the absence of the audio recording of Justice Wright’s Reasons, which Reasons are obviously known to the parties, provides no good reason to doubt the correctness of the order she made.

4. The Alleged Absence of Reasons for Concluding that the Plaintiff would Suffer Prejudice by the Defendants’ Attempt to Argue: (a) the Merits Issue or (b) the Estoppel Issue?

[59] The Defendants argue that Justice Wright erred in law in not providing reasons as to what prejudice, if any, the Plaintiff was suffering by the Defendants’ attempt to argue; (a) the merits issue; and (b) the estoppel issue.

[60] For the reasons already expressed, I do not think there is any merit to these proposed grounds of appeal. Once again, the Defendants know what was decided and the rationale for the decision.

[61] The prejudice to the Plaintiff was intrinsic and it was obvious. It was just as obvious that, apart from having to pay costs, there was no prejudice to the Defendants who can now bring back their summary judgment motion without ambushing the Plaintiff.

[62] Justice Wright dismissed the motion with costs but, practically speaking, what she did is to adjourn the motion with costs thrown away. The effect of the order was an adjournment because the dismissal was without prejudice to bringing the motion on again when it could be fairly argued.

[63] There was nothing to argue about and nothing to decide about the presence or absence of prejudice, which was obvious.

[64] In my opinion, the matter of the alleged absence of reasons for concluding that the Plaintiff would suffer prejudice by the Defendants’ attempt to argue (a) the merits issue, or (b) the estoppel issue, provides no good reason to doubt the correctness of the order Justice Wright made.

5. The Alleged Failure to Use the Court’s Summary Judgment Powers

[65] The Defendants ask as a ground for appeal whether Justice Wright erred in law by declining to use the powers provided to the Court, e.g. under Rules 20.04(2.1) and (2.2), to decide if there was a genuine issue for trial.

[66] More precisely, the Defendants submit that Justice Wright erred in law by failing to provide the Plaintiff with the ability to make submissions regarding procedural remedies short of dismissing the summary judgment motion that would have enabled the Plaintiff to mitigate any potential prejudice as a result of any argument by the Defendants that may have been outside of the Notice of Motion.

[67] For the reasons already expressed, I do not think there is any merit to these proposed grounds of appeal. The summary judgment process does not sacrifice substantive or procedural justice on the altar of a party’s self-perceived entitlement to a quick and inexpensive resolution of the litigation. There is no good reason to doubt the correctness of the order of Justice Wright.

6. Interrupting the Estoppel Issue Argument and Not Deciding the Limitation Period Argument

[68] As grounds of appeal the Defendants ask: (a) Did Justice Wright err in law by providing the them with an opportunity to make their argument regarding the “estoppel issue” before dismissing the motion?; and (b) Did Justice Wright err in law by failing to decide the limitation period issue - a severable and fully-argued issue in respect of which no prejudice had been asserted by the Plaintiff?

[69] For the reasons already expressed, I do not think there is any merit to this proposed ground of appeal. There is no good reason to doubt the correctness of the order of Justice Wright.

7. The Request for Ancillary Relief

[70] Given my conclusions above, leave to appeal is refused and the matter of the request for ancillary relief is moot.

E. CONCLUSION

[71] The motion for leave to appeal is dismissed.

[72] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Lorama’s submissions within twenty days of the release of these Reasons for Decision followed by Defendants’ submissions within a further twenty days.

Perell, J.

Released: September 24, 2015