Court File and Parties
COURT FILE NO.: CV-18-590159-0000 and CV-18-590159-00A1 DATE: 20190402 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Afroza Mary Mir, Plaintiff AND: Larry Gordon Brandt, Defendant AND: Keller Williams Referred Urban Realty, Third Party
BEFORE: Kimmel J.
COUNSEL: Alamgir Hussain for the Plaintiff Mohsen Seddigh, for the Defendant Chris Tucker, for the Third Party
HEARD: March 7, 2019
Endorsement
[1] The plaintiff Afroza Mary Mir (“Mir” or the “Purchaser”) is moving for summary judgment on her claim pertaining to an agreement of purchase and sale dated October 11, 2017 (the “APS”) for the purchase and sale of the residential property at 303 Warden Avenue, Toronto M1N 3A3 (the “Property”). The Purchaser was ready, willing and able to close the transaction on the specified closing date of December 20, 2017, but the defendant (“Brandt” or the “Vendor”) did not close. The plaintiff claims specific performance or damages in the alternative for this alleged breach of the APS.
[2] The Purchaser wants to buy this Property because of its proximity to the mosque where her husband is the Imam. She is religious and attends at the mosque regularly and wants to live close by. In addition to being the imam, the Purchaser’s husband is also a real estate agent and he was her agent and the one who submitted the offer on her behalf to buy the Property.
[3] Although there is no formal appraisal or expert evidence in the record as to the fair market value of the Property, either at the time of the scheduled closing or at the time of the hearing, the Purchaser believes that the Property is worth more now than the purchase price specified in the APS, and the Vendor believes that it was worth more at the time of the scheduled closing than the specified purchase price.
[4] The Vendor is a 72 year old widower who had suffered a major brain injury in 2013, prior to the events at issue in this action. According to his daughter who swore an affidavit and was cross-examined in connection with this motion, he is vulnerable because he gets confused, flustered and exasperated, he sometimes has trouble understanding what is happening and what is being asked of him, and is prone to agreeing to things just to be left alone. There is some indication in correspondence that was filed that Brandt’s cognitive health has deteriorated since the action was commenced and that it may be impaired. He has lived in the Property for over 22 years, other than during some lengthy hospital admissions (in 2013 for a head trauma and in 2019 for acute delirium and hypothermia).
[5] The defendant denies that the APS is legally binding. He says that he signed the APS at the urging of his real estate agent, the third party Keller Williams Referred Urban Realty (“Keller Realty”), but instructed the agent not to submit it back to the plaintiff without his further authorization as he was undecided about whether to proceed with the sale. He maintains that he never did provide his consent, approval or authorization to Keller Realty to submit the APS back to the plaintiff. He decided not to proceed with the transaction because the sale price was too low. He maintains that there was no agreement or meeting of the minds and relies in his statement of defence on the doctrines of mistake, undue influence and non est factum. These defences are predicated on his vulnerability and lack of understanding or appreciation that he was signing a binding agreement when he signed and gave the APS to his real estate agent to hold pending further instructions, which make this a case not only about an agent not acting with instructions, but also a case about whether a legally enforceable agreement came into existence.
[6] The defendant also claims-over against the third party Keller Realty, relying on his defences in the main action, and seeks contribution and indemnity in respect of any damages awarded against him in favour of the plaintiff in the main action (or damages from Keller Realty in the alternative).
[7] There is no motion for summary judgment in the third party action. There have been no discoveries in either the main action or the third party action. There is no evidence in the record from any of the representatives of Keller Realty about what they discussed with any of the Vendor, the Purchaser or the Purchaser’s realtor/representative. There is similarly no evidence from the Purchaser’s husband/realtor. It is reasonable to assume that these realtors, or some of them, will be witnesses at the trial of the third party action. It is also reasonable to expect that their testimony will overlap with matters that have been covered in the affidavits filed on this motion. In the circumstances of this case, there is a risk of there being different findings in the third party action and it is not in the interest of justice for summary judgment to be granted in the main action for this reason. The plaintiff’s motion is therefore dismissed, for the more detailed reasons that follow.
Procedural Matters
[8] The plaintiff attended Civil Practice Court (“CPC”) on May 8, 2018 to schedule a summary judgment motion and was told to come back after pleadings closed in the third party action to schedule a motion on notice to all parties. A further attendance was scheduled for August 14, 2018 and because the parties did not appear it was struck off the list. There was a further attendance in CPC with all parties represented on August 28, 2018 and the motion was scheduled for November 23, 2018.
[9] On November 23, 2018 the timetable was extended and the motion was adjourned but only to December 18, 2018 because the plaintiff argued urgency due to mortgage financing that she had arranged. Plaintiff’s counsel did not confirm the motion and it did not proceed on that date. Counsel for the plaintiff and defendant then attended again in CPC again on January 25, 2019 and the summary judgment motion and defendant’s preliminary motion to strike portions of the plaintiff’s affidavit and factum was scheduled for a half day on March 7, 2019.
[10] At the August 28, 2018 attendance, counsel for the third party advised that it was taking no position on the plaintiff’s summary judgment motion since it is not a party to the contract relied on by the plaintiff. After that, apparently the third party was not kept in the loop or consulted about the hearing date or advised of it, and did not receive the motion materials (which refer to and rely upon interactions with its representatives) until a few days before the March 7, 2019 return date. The plaintiff’s Supplementary Factum on this motion dated February 26, 2019 seeks an order against the third party for the return of the deposit that counsel for the third party had not previously been made aware of.
[11] Counsel for the third party attended at the hearing to alert the court to the fact that he had only recently been made aware of the relief being sought against his client (albeit noting that this was likely something his client would take no position on as an interpleader, subject to an issue regarding the amount of interest about which there was no evidence before me). He did, however, raise a concern that findings not be made on the summary judgment motion that could bind the third party in the third party action. He indicated that he expected he would be instructed to participate and respond to anything that factually engages his client. Counsel for the defendant similarly raised a concern that findings not be made on the summary judgment motion that could impact the third party claim.
Defendant’s Preliminary Motions to Strike
[12] There were two preliminary motions by the defendant to strike portions of the plaintiff’s materials that were argued at the outset of the hearing.
Motion to Strike References to Settlement Offers and Negotiations
[13] The first motion was to strike paragraphs 11 to 15 of the plaintiff’s affidavit sworn October 15, 2018 (the “Mir Affidavit”) together with corresponding exhibits 10 to 15 thereto, which are repeated in paragraphs 12 to 17 of her November 1, 2018 factum (the “plaintiff’s original factum”). The defendant contends that these materials inappropriately refer to without prejudice settlement communications between the parties to this proceeding that the plaintiff seeks to rely on as “admissions” by the defendant in support of the summary judgment motion.
[14] Some of the impugned exhibits are marked “without prejudice” and some are not, but it is clear when they are read as a whole that they are part of a series of communications exchanged between the parties for the purposes of settling the very matters in dispute in this litigation. Notably, the communications from plaintiff’s counsel in this sequence of exhibits are all marked “without prejudice” and make specific reference to settlement offers. The corresponding impugned paragraphs in the affidavit and factum simply repeat and/or refer to the contents of these exhibits.
[15] Settlement privilege is a class of privilege. It wraps a protective veil around the efforts of the parties to settle their disputes, and does so by rendering communications made in the course of settlement negotiations inadmissible. It covers all negotiations undertaken for this purpose, whether or not successful and whether or not the words “without prejudice” appear: see Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623.
[16] There are exceptions to settlement privilege, but none were raised or argued. The plaintiff contends that she should be permitted to refer to these communications because they are relevant to the allegation that the plaintiff failed to mitigate. This argument does not assist the plaintiff in her effort to avoid the motion to strike them. Rather, it reinforces the policy behind this exclusionary rule, which is to encourage litigants to settle by allowing them to communicate about settlement without attribution when it comes to dealing with the merits of the case if it does not settle: see Sable. The defendant also points out that these communications, which the plaintiff argued demonstrate her efforts to “mitigate” by negotiating an alternative deal with the defendant, do not constitute mitigation at all; mitigation would be efforts to purchase another property in lieu of the subject Property, not efforts to re-negotiate the purchase of the very Property at issue.
[17] In the materials filed there was some suggestion that the plaintiff was also arguing that the privilege had been waived because of references in the defendant’s affidavit sworn November 20, 2018 (at paragraph 22) to advice he had received from his counsel. However, the advice referenced in that paragraph was about comparable house prices, and does not appear on its face to be “legal” advice, nor does it purport to be about any privileged settlement negotiations. There can be no finding of direct or subject-matter waiver in these circumstances. Understandably, the plaintiff did not pursue this position at the hearing.
[18] In fact, plaintiff’s counsel indicated at the hearing (after pointing out the “relevance” of the settlement communications) that he would not object if the court were to decide to exclude them. I have decided to exclude them and the defendant’s motion is granted. I order that paragraphs 11 to 15, Exhibit 10, p. 39 of Exhibit 11 and Exhibits 12 to 15 of the Mir Affidavit be struck out, and that the corresponding paragraphs 12 to 17 of the plaintiff’s original factum also be struck out. I have not considered them in reaching my decision herein.
Motion to Strike Improper Opinion Evidence and New Damages Evidence/Splitting the Plaintiff’s Case
[19] The second motion was to strike parts of the supplementary affidavit of Jesmin Ara (a law clerk in the plaintiff’s office) contained in the plaintiff’s supplementary motion record delivered in January of 2009 (the “Ara Affidavit”), which (in addition to attaching the transcripts of cross-examinations about which there is no objection) purports to provide new evidence in the form of the law clerk’s observations and arguments about the plaintiff’s mental and physical health (at paragraphs 3 and 4) and about damages with reference to comparable house prices (at paragraphs 5, 6 and 7). It was delivered after the plaintiff cross-examined the defendant’s affiants. The plaintiff did not disclose this new evidence, or the prospect of it, at either of the last two CPC attendances at which a timetable was set, with tight timelines having been imposed at the plaintiff’s request that the defendant adhered to.
[20] Rule 39.02(2) of the Rules of Civil Procedure provides that “a party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing…without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination”.
[21] The defendant argues that, in the absence of consent, the plaintiff’s failure to seek leave to introduce the Ara Affidavit is fatal and for that reason alone it should be struck [1]. The defendant also argues that even if the plaintiff had sought leave it would not have been granted because the plaintiff cannot demonstrate that the affidavit is responding to a matter that arose on cross-examination, has not offered any explanation for the failure to include this evidence in the original motion record and that it creates a procedural unfairness or prejudice given that the summary judgment motion had been proceeding on the specific performance remedy, not the alternative claim for damages.
[22] The issues to be considered when leave is sought to introduce affidavit evidence following cross-examination pursuant to Rule 39.02(2) are summarized by the Divisional Court in First Capital Realty Inc. v. Centrecorp Management Services Limited (2009), 258 O.A.C. 76 (Div. Ct.), at paras. 9-10 as follows:
a. Is the evidence relevant? b. Does it respond to a matter raised on the cross-examination (not necessarily for the first time)? c. Would granting leave to file the evidence result in non-compensable prejudice that cannot be addressed by imposing costs, terms or an adjournment? d. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset? e. Is it in the interests of justice to do so even where these criteria are not met?
(See also Sure Track v. Kaisersingh, 2011 ONSC 7388, at para. 28)
[23] Leave is granted sparingly: see Sure Track, at para. 29.
[24] The defendant did not focus on the relevance of this new evidence in his submissions. He contends that the other criteria are not met.
[25] I am not satisfied that either of the impugned topics in the Ara Affidavit respond to matters raised on cross-examination. The topic of the defendant’s mental and physical health was touched upon in the defendant’s responding material delivered before the cross examinations. The topic of quantification of the plaintiff’s damages does not appear to have been addressed in the record at all before the Ara Affidavit (the plaintiff did not address damages at all and the defendant only did so to show that damages would not be inadequate, as part of the response to the request for specific performance). The plaintiff has not alleged or attempted to show me how this evidence addresses issues raised on the cross-examinations. I was not taken to anything in the cross-examination transcripts about either of these substantive topics, concerning the plaintiff’s mental and physical health and/or quantification of damages (in lieu of specific performance).
[26] I am equally troubled by the fact that the plaintiff has offered no explanation whatsoever (reasonable, adequate or otherwise) for why the evidence was not included at the outset.
[27] The defendant also argued that the plaintiff elected to proceed on an evidentiary record for this summary judgment motion that only addressed the remedy of specific performance and should not be permitted to split her case by coming after the cross-examinations with damages evidence purporting to address how much more it would cost the plaintiff to purchase an alternative or substitute property. This does appear to create a procedural unfairness. However, the procedural unfairness of the plaintiff splitting her case does not, in my view, equate with the type of prejudice that is not compensable by terms, costs or an adjournment. The defendant conceded during argument that there is no prejudice beyond costs and an adjournment and that it cannot be said that the prejudice is non-compensable. Instead, it was argued that the plaintiff’s inefficiencies have been costly to the defendant and if the court is otherwise satisfied that leave should be granted to allow the Ara Affidavit, or any part of it, then the defendant wants his costs thrown away and a term that any adjournment be peremptory to the plaintiff.
[28] The plaintiff, rather than asking for leave or attempting to satisfy the court of the leave requirements, asked for an adjournment and for time to respond to the suggestion that leave is required and objected to the request for costs. I will address the plaintiff’s adjournment request in more detail in the next section of my reasons.
[29] However, quite apart from the leave requirements, the unqualified opinions, observations and argument of a law clerk about the plaintiff’s cognitive capacity and physical abilities over the course of these proceedings is inadmissible opinion evidence and I order that those paragraphs 3 and 4 of the Ara Affidavit be struck. I would not have granted leave on these paragraphs in any event but their inadmissibility trumps the need to consider the leave criteria.
[30] Despite the plaintiff’s apparent and flagrant disregard for (or ignorance of) the leave requirements, and although two of the four criteria for leave are not satisfied on the record before me, I might have considered it to be nonetheless in the interests of justice to grant the plaintiff leave to allow the other impugned paragraphs 5, 6 and 7 of the Ara Affidavit to remain in the record. I might have considered doing so on terms that included an adjournment (peremptory to the plaintiff), an opportunity for the defendant to respond and the payment of costs by the plaintiff to the defendant, if that had not been overshadowed by the concern about partial summary judgment and my decision (detailed below) on that. By providing these indications about what I might have done I do not intend, and should not be taken, to offer any view or endorsement of the sufficiency of, or the ultimate weight that would be given to, the evidence being tendered by the plaintiff in these paragraphs of the Ara Affidavit.
Plaintiff’s Request to Adjourn
[31] Separate and apart from the adjournment that might have been a consequence of the court granting leave in respect of the new evidence intended to support the plaintiff’s alternative claim for damages, after the preliminary motions to strike were argued plaintiff’s counsel advised that he was seeking an adjournment of the summary judgment motion in any event because his client and her husband were away and he expects to have additional evidence from them. He also advised that he had injured his leg and his mother was in the hospital so he did not want to proceed with the motion.
[32] However, having regard to the concern about partial summary judgment in this case, I determined that it would not be just, expeditious or proportionate to adjourn this motion for a third time and set a fourth return date without addressing that concern. It is my considered view that if this case is not suitable for summary judgment then that should be decided now so the parties can get on with the litigation. Thus, I directed counsel to address only the question of partial summary judgment so that I could decide that before ruling on the plaintiff’s request for a further adjournment.
Concerns Raised Regarding Partial Summary Judgment
[33] The requests by the defendant and the third party for the court’s direction that no findings made on the summary judgment motion would be binding in the third action is a red flag for a concern about partial summary judgment in a case like this one where a derivative third party action that is not part of the motion will continue if the plaintiff succeeds on the summary judgment motion.
[34] This concern about partial summary judgment was raised in the defendant’s December 18, 2018 factum in response to the motion, as one of the grounds for dismissing it.
Analysis Regarding Partial Summary Judgment
[35] Rule 20.04(2) of the Rules of Civil Procedure provides that summary judgment shall be granted whenever there is no genuine issue requiring a trial.
[36] There will be no genuine issue requiring a trial when a motion judge can reach a “fair and just determination on the merits”. The Supreme Court of Canada has outlined that this will be the case when the process (1) allows for the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: see Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
[37] The Supreme Court of Canada’s framework for determining summary judgment motions requires that the judge be confident that the court has the evidence to make the factual findings required to adjudicate the dispute (by applying the law to the facts) and reach a fair and just determination on the merits. The question to ask is whether there is a genuine issue “requiring a trial” and whether it is in the interests of justice for the motion judge to use the fact-finding powers. This is to be considered in light of the goals of timeliness, affordability and proportionality: see Hryniak, at para. 57.
[38] The procedure to be followed on a motion for summary judgment prescribed by the Supreme Court in Hryniak is in two stages:
a. the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in Rule 20.04(2.1) of the Rules of Civil Procedure; and b. if there appears to be a genuine issue requiring a trial, Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure permit the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence to determine if the need for a trial can be avoided, provided that the use of those powers is not against the “interest of justice” (or conversely, that it is not in the “interest of justice” for these powers to be exercised only at trial): Hryniak, at para. 66.
[39] The Court of Appeal for Ontario has repeatedly reinforced this in a recent line of cases dealing with circumstances of partial summary judgment where the granting of the motion will not finally dispose of the entire case. In Mason v. Perras Mongenais, 2018 ONCA 978, the Court of Appeal stated at para. 44:
[N]othing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to “a fair process and just adjudication”: Hryniak at para. 33. Certainly there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule. [Emphasis added.]
[40] I find that there is a genuine issue requiring a trial based on the evidence in the record before me. The plaintiff’s position on liability (taken at its highest) is that the APS is an accepted offer that forms a binding contract. This does not account for the defences raised both in the pleadings and in the record. The defences challenge both the formation of the contract (mistake, duress and non est factum) and raise concerns about breaches of fiduciary duty by the third party realtor, the manner of acceptance of the offer and whether the defendant’s realtor could bind him to a contract without the authority to do so. These can conceptually be seen as defences that raise the spectre of an unconscionable contract, which also go to its enforceability. The circumstances of this case will require, among other things, further evidence from the third party (some of which may be relevant to the assessment of the credibility of the defences raised) and further evidence as to the defendant’s health and cognitive ability (vulnerability), the credibility of which is expected to be challenged by the plaintiff and possibly by the third party as well.
[41] While there is some evidence before me, in my view the record is not sufficient to make the necessary findings of fact and apply the law to decide these issues and, given their nature, I believe a trial would be required to so: see Swampillai v. Royal & Sun Alliance Insurance Company of Canada, 2019 ONCA 201, at paras. 7 and 8. Without the necessary evidence, the fact-finding powers under Rules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure do not assist me in avoiding the need for a trial even if I was prepared to deal with them in the main action alone (which I am not).
[42] Furthermore, neither the plaintiff nor the defendant argued in their written submissions anything about the effect of a third party exerting duress on, or coercing, the Vendor, or taking advantage of his vulnerability, on the validity of the contract between Vendor and Purchaser. Nor did they provide argument or authorities on the legal effect of the agency relationship between the Vendor and the third party realtor. If I was going to decide the plaintiff’s summary judgment motion I would have asked for further evidence and submissions on these points, which are relevant to the third party claim as well.
[43] In addition to the deficiencies in the record, the overlap of the factual and legal issues between the main action and the third party action is inescapable. The third party is directly implicated in all of the defences. The entire third party claim is derivative of the main action and the defendant argues that if the defences do not succeed as against the plaintiff then those same arguments will be the basis for his claim against the third party. The suggestion that findings could be made on the summary judgment motion that would not be binding in the third party action is not only highly impractical but legally unsustainable. The court needs the evidence and submissions of the third party in order to reach a fair and just determination of these overlapping issues on their merits: see D’Onofrio v. Advantage Car & Truck Rentals Limited, 2017 ONCA 5, 135 O.R. (3d) 260, at paras. 45, 50 and 51. This is not one of those rare cases where the liability of the defendant can be clearly bifurcated from the third party claim: see Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561.
[44] The Supreme Court of Canada’s description of the “interest of justice” inquiry in the Hryniak case at paras. 58-60 directs the court to consider the consequences of the motion in the context of the litigation as a whole in deciding whether the court’s Rule 20.04(2.1) of the Rules of Civil Procedure fact-finding powers should be exercised only at trial. The Supreme Court used the example that if some of the claims against some of the parties will proceed to trial in any event, “it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.”
[45] This concern about inconsistent findings at trial when a summary judgment motion is not dispositive of the entire case is precisely what the Court of Appeal has repeatedly said is not appropriate for summary judgment: see Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438; Hamilton (City) v. Their + Curran Architects Inc., 2015 ONCA 64, 45 C.L.R. (4th) 1; Butera; Mason; and Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6.
[46] I find that it is in the interest of justice that the powers that are available to a judge to resolve the factual (including credibility) issues that have been raised in respect of the claims in both the main action and third party action should only be used at trial. Furthermore, this motion has already been adjourned a number of times and all parties intend to rely on further evidence. Summary judgment has not been demonstrated to be a proportionate, more expeditious and less expensive means to achieve a just result. After one and a half years, there is an unsatisfactory record. We do not allow for summary judgment motions by installment. This is creating an inefficient, rather than more efficient, process for the resolution of this dispute.
[47] These overarching concerns render it unnecessary for me to rule on the plaintiff’s request for an adjournment since the reasons for that adjournment were to allow for further steps and evidence that would not remedy the fatal problem of partial summary judgment dealing only with the plaintiff’s claim, but would exacerbate it.
Plaintiff’s Request for Certificate of Pending Litigation
[48] The relief sought by the plaintiff on this motion included a request for an order for a certificate of pending litigation, presumably in the alternative. This was not addressed in either of the facta filed by the plaintiff and there is nothing in the record that I can find, or was directed to, that would support the granting of such an order. That is not to say that it would not be granted on a proper record, particularly since the summary judgment motion has been dismissed, but I am not in a position to decide this issue on the record before me. If the plaintiff seeks such an order, she will have to bring a proper motion and demonstrate to the court that she can satisfy the requirements of s. 103 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 42 of the Rules of Civil Procedure.
Disposition
[49] The outcome of each of the three motions before me is as follows:
a. the defendant’s motion to strike portions of the Mir Affidavit, Exhibits and original factum is granted; b. the defendant’s motion to strike portions of the Ara Affidavit is granted in part; c. the plaintiff’s motion for summary judgment on the claim for breach of the APS is dismissed; and d. the plaintiff’s motion for a certificate of pending litigation is adjourned.
Rule 20.05(2) Directions and Terms
[50] Having dismissed the plaintiff’s summary judgment motion, I am exercising my discretion under Rule 20.05(2) of the Rules of Civil Procedure to provide directions and terms that are intended to allow the parties to make the best use of their efforts to date and to proceed to trial as expeditiously as possible, as follows:
a. If any party intends to amend their pleading, or if the third party wishes to defend the main action, they are to provide a draft proposed amended pleading to any adverse party and seek that adverse party’s consent for leave to amend by no later than April 30, 2019; with or without consent, leave to do so is to be sought by a motion to the court to be delivered by no later than May 14, 2019 and heard (or read, if on consent) on the earliest available date taking into account counsel’s and the court’s availability; b. If the defendant will not agree to the registration of a certificate of pending litigation or agree to satisfactory terms to address the plaintiff’s concerns about a sale of the Property, and if the plaintiff intends to pursue her request for a certificate of pending litigation, the plaintiff shall deliver a motion with an appropriate supporting record for such by no later than May 30, 2019 to be heard by a master on the earliest available date, taking into account counsel’s and the court’s availability; c. Any motion to appoint a litigation guardian for the defendant or any other pre-discovery motion by any party shall be delivered by May 30, 2019 and heard on the earliest available date, taking into account counsel’s and the court’s availability; d. the parties shall deliver their respective affidavits of documents within 30 days after pleadings are closed following any pleading amendments for which leave is granted and responses thereto have been delivered (or if no amendments are sought, then pleadings will be deemed closed for this purpose on May 14, 2019; e. The affidavits or any other evidence filed on this summary judgment motion (and not struck out) and any cross-examinations on the motion may be used at trial in the same manner as an examination for discovery and will be treated as such; f. Any further examinations for discovery in the main action (covering matters not covered in (e) above) and the examinations for discovery in the third party action shall be completed by no later than 90 days after the date for delivery of any affidavits of documents specified in (d) above; or such later date as all parties may agree to or the court may order, with each party to be examined by any adverse party for no more than 4 hours; g. Any discovery or other pre-trial motions shall be delivered within 60 days of the last party’s examination for discovery, to be heard on the earliest available date taking into account counsel’s and the court’s availability; h. The main action and third party action shall be set down for trial by no later than 120 days after the court’s decision on the pre-trial motions (or within 120 days after the date specified in (g) above for bringing such motions if none are brought); i. Each party will provide a list of intended witnesses and a summary of their anticipated evidence at trial to the others as part of their pre-trial brief; and j. The parties shall comply with the Rules concerning any expert reports that they may seek to rely upon which might be on topics such as, without limitation, the defendant’s mental and physical health and vulnerability at the time of the APS or at any other relevant time, the fair market value of the Property at the time of the APS or at any other relevant time, and/or the availability of other comparable properties from and after the signing of the APS;
[51] None of the parties have had an opportunity to make submissions concerning these terms and directions. If there are concerns about them, a case conference can be arranged before me so that they can be addressed and I will consider whether it is appropriate to amend them after having heard from counsel, keeping in mind the overall objective of streamlining these proceedings so that a trial can be scheduled expeditiously.
[52] While I have had a preview of some of the evidence that will likely be presented at trial, I do not feel that in a case like this, involving an incomplete record for summary judgment, that I need to remain seized of it for trial. I do not believe that I am in any different position than any other judge in terms of the eventual adjudication of the case as a whole. In my view, the rationale for the suggestion by the Supreme Court of Canada in Hryniak for a summary judgment motion judge to remain seized of the case when the motion is dismissed does not apply in this case.
Costs
[53] Cost submissions were not made when the motions were argued. I am aware of at least one earlier endorsement in December of 2018 that reserved the defendant’s costs thrown away of the first adjournment to the motion judge.
[54] I encourage the plaintiff and defendant to try to reach an agreement on the costs of these motions. If an agreement cannot be reached, I will allow them to make brief written cost submissions. Although counsel for the third party did attend the motion, given that he essentially took no position (except to reserve his current position) and did not file any material, in my view the third party’s costs of this attendance should be in the cause of the third party action, and I so order.
[55] If the court has not been advised that the plaintiff and defendant have reached an agreement on costs by April 15, 2019 then they shall exchange their respective costs outlines with a brief submission as to costs (of no longer than 3 pages double spaced) on or before April 30, 2019 and they each may respond to the other’s costs outline and submission in a reply (of no longer than 1.5 pages double spaced) to be exchanged on or before May 10, 2019. All costs outlines and submissions should be served on the opposing parties and delivered to my attention at Judges’ Administration, Superior Court of Justice at 361 University Avenue (Room 170), Toronto, Ontario M5G 1T3. If no costs submissions have been delivered to the court by May 10, 2019, and in the absence of the parties having requested and been granted an extension for making their costs submissions, the costs will be deemed to have been settled.
KIMMEL J. Date: April 2, 2019
[1] Although the defendant would allow for the filing of the transcripts of the cross-examinations that are exhibits to the Ara Affidavit, which are not required to be attached to an affidavit in order to be filed in any event.