Court File and Parties

ONSC 329 DIVISIONAL COURT FILE NO.: 492/15 DATE: 20170116 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: James Dick Construction Limited et al., Plaintiffs/Responding Parties - and - Courtice Auto Wreckers Limited et al., Defendants/Moving Parties

BEFORE: Swinton J.

COUNSEL: Jamieson Halfnight and Anne Juntunen, for the Plaintiffs/Responding Parties David Bierstone, for the Defendants/Moving Parties Courtice Auto Wreckers Limited and Courtice Industries Inc.

HEARD at Toronto: in writing

ENDORSEMENT

[1] The Courtice defendants seek leave to appeal the order of Dow J. dated September 9, 2015, in which he refused their motion for summary judgment and decided that the building loss claims should proceed to trial with the other related proceedings. They argue that the law is clear with respect to the application of covenants to insure, and there was no issue of fact requiring a trial respecting the negligence of Industries.

[2] The motions judge considered and applied the principles enunciated in Hyrniak v. Mauldin. He did not decide the covenant to insure issue; rather he held that the building loss claim involved other issues that required the weighing of evidence and the assessment of credibility. He was also concerned about the possible impact of granting summary judgment to the tenant on the trial judge’s ability to make findings of fact. He concluded that summary judgment as claimed for the two defendants was not a proportionate and more cost-effective means to achieve a just result, and that the issues were more appropriately resolved at trial.

[3] In my view, the moving parties have not satisfied either part of the test in rule 62.02(4). With respect to the first branch, the issue before the motions judge was whether it was appropriate to grant summary judgment in favour of the Courtice defendants. That required him to apply rule 20.04 and the principles in Hyrniak. The moving parties have not shown that he erred with respect to the principles to be applied in a summary judgment motion.

[4] In my view, his decision is not inconsistent with Sanofi Pasteur Ltd. v. UPS SCS Inc. (2014), 2014 ONSC 2695, 119 O.R.(3d) 789 (S.C.J.), aff’d (2015), 2015 ONCA 88, 124 O.R. (3d) 81 (C.A.), which applies similar principles concerning summary judgment in a different set of circumstances.

[5] The motions judge did not make a legal determination with respect to the application of the covenant to insure, noting the plaintiffs’ argument that the covenant would not apply because of the reckless nature of Wreckers’ action in turning off the sprinklers. He concluded that summary judgment was not the most proportionate, timely or cost-effective manner to determine the covenant to insure claims. Thus, the decisions put forward on covenants to insure are not conflicting decisions within the meaning of the rule.

[6] As to the second branch of the test, I do not have good reason to doubt the correctness of the decision. He exercised his discretion, based on his assessment of the claim and in the entire context of the litigation, to send the matter on to trial.

[7] Most significantly, even if there were good reason to doubt the correctness of the decision, the moving parties have not shown that the appeal raises issues of general importance affecting the administration of justice that go beyond the interests of the parties.

[8] The motion for leave to appeal is dismissed. Costs to the responding parties are fixed at $5,000.00.

Swinton J.

Date: January 16, 2017