Court File and Parties

COURT FILE NO.: CV-19-81365 DATE: 20210316 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HUI LING LI, Plaintiff/Responding Party -and- DENIS MICHAUD, DEAN MICHAUD, 8443971 CANADA CORPORATION and 2336789 ONTARIO INC., Defendants/Moving Parties

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: Self-represented Plaintiff/Responding Party J.F. Lalonde, Counsel for the Defendants/Moving Parties

HEARD: March 10 and 11, 2021

Endorsement on motion for summary judgment

[1] On March 11, 2021, after hearing submissions from the moving party, and hearing briefly from the responding party, I indicated that I was dismissing the defendants’ motion for summary judgment with reasons to follow. These are my reasons.

Factual Overview

[2] The defendants bring a motion for summary judgment to dismiss the plaintiff’s action, arguing that there is no genuine issue requiring a trial.

[3] The plaintiff argues that there are triable issues requiring a trial.

[4] The parties have filed numerous conflicting and voluminous affidavits.

[5] The defendants are land developers. They purchased and developed the property adjacent to the plaintiff’s property; they built a small apartment building on the property from approximately September 2017 to June 2018. During the excavation of their property, the defendants removed the roots of a large maple tree that were located on their side of the property line. I assume, for the purposes of this motion, that the large maple tree straddled the property line, with most of it on the plaintiff’s side. Thereafter, the defendants cut all the branches on their side of the property line in order to construct the building. It is not contested that the defendants’ actions led to the destruction of the large maple tree. It is also clear that the defendants’ site plan agreement with the City of Ottawa required that they take certain measures to attempt to preserve and protect the large maple tree.

[6] The plaintiff is self-represented. She brought a simplified procedure action against the defendants seeking special, general, aggravated, and punitive damages. She pleads damages for the intentional destruction of the large maple tree, essentially alleging that the defendants breached their obligations to the City of Ottawa, causing her damages and loss of the maple tree. Alternatively, she pleads that the defendants negligently destroyed the large maple tree, arguing that the applicable by-laws imposed on the defendants a duty of care to retain and protect the large maple tree, and that the defendants breached that duty through their actions and failure to protect the tree as they were required to do. She also pleads trespass and nuisance, seeks general damages for stress caused by the defendants’ conduct, and she also seeks punitive damages for the defendants’ alleged highhanded conduct.

[7] The parties have exchanged pleadings and affidavits of documents. The plaintiff is not entirely satisfied with the defendants’ production of documents, as she alleges that they have not produced relevant videos. The defendants now say that there are no such videos. With regards to examinations for discovery, during the spring and summer 2020, the plaintiff repeatedly asked the defendants to attend at their examination for discovery, as is allowed under Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”). The defendants steadfastly refused to attend, and instead brought this motion for summary judgment. The plaintiff brought a motion seeking the defendants’ attendance at an examination for discovery. That motion was not heard.

[8] On January 28, 2021, while in the midst of this motion for summary judgment (which was then scheduled to be heard on February 16 and 17, 2021), after receiving the plaintiff’s factum, which complained of the defendants’ refusal to attend examination for discovery, defendants’ counsel wrote to the plaintiff to offer that his clients be examined for discovery. From the exchange of correspondence, it seems the plaintiff was more preoccupied with dealing with this voluminous motion, and in any event, she was instructed by court staff to address this issue with the judge at the motion for summary judgment. Although the parties attended case conferences to schedule this motion for summary judgment, the plaintiff probably did not renew her prior requests to examine the defendants for discovery because no order for their examination for discovery was made and no discovery occurred. One of the plaintiff’s arguments is that it is premature to deal with this matter at a motion for summary judgment because examinations for discovery have not yet occurred, to which the defendants respond that on January 28, 2021, they offered to be examined.

Issues

[9] The issue argued on this motion is whether the Plaintiff’s action should be dismissed on the basis that there is no genuine issue requiring a trial.

Applicable Law

[10] A defendant may, after delivering a statement of defence, move with supporting affidavit or other evidence for summary judgment seeking to have all or part of the statement of claim dismissed: r. 20.01(3) of the Rules.

[11] Rule 20.04 provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[12] In Hryniak v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J., writing for the Court, outlined a two-step procedure for deciding a summary judgment motion: see also Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 at para. 24.

[13] First, the motion judge must determine if there is a genuine issue requiring trial based only on the evidence placed before them. There is no genuine issue requiring a trial where the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure: Hryniak at para. 66.

[14] Second, if there appears to be a genuine issue requiring a trial, the motions judge should determine if the need for a trial can be avoided by using the fact finding powers under r. 20.04(2.1), which allows the judge to weigh evidence, evaluate the credibility of a deponent and draw inferences from the evidence and (2.2), which allows the judge to order that oral evidence be presented. Where it would not be against the interests of justice to do so, the judge may exercise his or her discretion to use those powers: Hryniak at para. 66; Royal Bank of Canada at para. 24.

[15] However, the onus on a motion for summary judgment is a moving onus. In Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 24 and 30, Justice Brown indicates:

Rule 20.01(3) requires a defendant to “move with supporting affidavit material or other evidence” on a summary judgment motion. The respondent dentists, as the moving parties, bore the burden of persuading the court, through evidence, that no genuine issue requiring a trial existed: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 111 O.A.C. 201 (Ont. C.A.), at para. 16; Connerty v. Coles, 2012 ONSC 5218, [2012] O.J. No. 4313 (Ont. S.C.J.), at para. 9. They were not entitled to rely merely on the allegations in their statement of defence; the respondents were required to put their best evidentiary foot forward.

… First, the evidentiary burden on a moving party defendant on a motion for summary judgment is that set out in rule 20.01(3) — “a defendant may . . . move with supporting affidavit material or other evidence.” As explained in Connerty, at para. 9, only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.

[16] At a summary judgment motion, the moving party defendant bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial; it must put its best foot forward by adducing evidence on the merits: Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10, 442 D.L.R. (4th) 257 at para. 61 citing Sanzone at paras. 30-32, leave to appeal refused, [2016] S.C.C.A. No. 443. It is only after the defendant has met their burden that the onus shifts to the responding party to show that the claim has a real chance of success and that there are genuine issues requiring a trial: Rescon Financial Corporation v. New Era Development (2011) Inc., 2018 ONCA 530, at para. 21; Mayers v. Khan, 2017 ONCA 524, at para. 4.

[17] Moreover, the efficacy of bringing or of granting a motion for summary judgment in a simplified procedure action that already allows for a summary trial must be questioned (for an outline of procedure on simplified procedure trials, see s. 76.12). This bears some similarity to the efficacy of granting partial summary judgment or judgment on some of the claims. Both should be questioned and granted cautiously.

[18] Indeed, in Hryniak, Justice Karakatsanis stated, at para. 60, that:

… if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest 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. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

[19] In Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135 at para. 14, Justice Paciocco elaborated on the above: “In Hryniak, at para. 60, Karakatsanis J. recognized that partial summary judgment may “run the risk of duplicative proceedings or inconsistent findings of fact” at trial. There is also the risk that partial summary judgment can frustrate the Hryniak objective of using summary judgment to achieve proportionate, timely and affordable justice. If used imprudently, partial summary judgment can cause delay, increase expense, and increase the danger of inconsistent findings at trial made on a more complete record”.

[20] The latter comment of Justice Paciocco seems apt for assessing the benefits of using a summary judgment motion in a simplified procedure action, when a summary trial could otherwise be available. In such circumstances, excepting clear cases, it is difficult to see when a motion for summary judgment would be a more proportionate, timely, and cost-effective means of resolving a simplified procedure action than would be proceeding by summary trial.

[21] Indeed, the efficacy of summary judgment motions in simplified procedure actions was specifically addressed by the Court of Appeal decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, as follows:

First, summary judgment motions in simplified procedure actions should be discouraged where there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross-examination, or where oral evidence is clearly needed to decide certain issues. Given that Rule 76 limits discoveries and prohibits cross-examination on affidavits and examinations of witnesses on motions, the test for granting summary judgment will generally not be met where there is significant conflicting evidence on issues confronting the motion judge. While the motion judge could order the hearing of limited oral evidence on the summary judgment motion under rule 20.04(2.2), in most cases where oral evidence is needed, the efficiency rationale reflected in the rule will indicate that the better course is to simply proceed to a speedy trial, whether an ordinary trial or a summary one: see rules 76.10(6) and 76.12.

Second, we are not saying that a motion for summary judgment should never be brought in a simplified procedure action. There will be cases where such a motion is appropriate and where the claim can be resolved by using the powers set out in rule 20.04 in a way that also serves the efficiency rationale in Rule 76. For example, in a document-driven case, or in a case where there is limited contested evidence, both the full appreciation test and the efficiency rationale may be served by granting summary judgment in a simplified procedure action: at paras. 256-257.

Analysis

[22] On a motion for summary judgment, the moving party defendant initially bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial; it must put its best foot forward by adducing evidence on the merits. It is only after the moving party defendant has met that evidentiary threshold that the onus shifts to the responding party plaintiff to show that the claim has a real chance of success and that there are genuine issues requiring a trial.

[23] Here, the defendants’ evidence does not reach that evidentiary threshold.

[24] For example, defendants’ evidence does not demonstrate that there is no genuine issue requiring a trial regarding the defendants’ compliance with the requirements of their site plan agreement with the City of Ottawa to protect the large maple tree. The site plan agreement incorporates the August 2017 report from defendants’ arborist. The measures outlined in that report required the defendants to take certain steps to attempt to preserve and protect the large maple tree. The defendants provided no evidence that they conducted any of the exploratory excavation suggested by their expert, despite this requirement being in the arborist’s report. It is also not established in their evidence that they cut all the roots with a hand saw rather than as a result of their excavation with mechanized equipment. This is material because the plaintiff pled that these regulatory requirements imposed a duty of care on the defendants, which they breached.

[25] The cases relied upon by the defendants to argue that they have no liability at law for the destruction of the large maple tree are factually different from the circumstances of this case. None involved the compliance, lack of compliance, or negligent compliance with the by-laws of a city or the negligent compliance with a site plan agreement. Centrum Land Corp. v. Institute of Chartered Accountants of Ontario, 1988 4823 (ON SC), 64 O.R. (2d) 289, (1988 H.C.J.) dealt with property rights and did not address whether a duty of care and negligence could apply. In Koenig v. Goebel, 1998 13635 (SK KB), 162 Sask.R. 81 (1998 Sask. Q.B.), at para. 25, the court specifically remarked that it was not deciding this issue because neither party had raised the issue of whether an adjoining property owner owes a duty of care to the other owner regarding bordering trees sufficient to constitute an action in negligence. In Demenuk v. Dhadwal, 2013 BCSC 2111, though there was a bylaw scheme, it was neither clear, nor enforced, leading the trial judge to conclude at para. 44 that no municipal practice or standard about how to preserve the trees existed at the time. Furthermore, a city employee testified at trial that the city had not considered how the construction of the building might damage neighbouring trees.

[26] Although the plaintiff is not a party to the site plan agreement and therefore lacks privity of contract to seek its enforcement, statutory or regulatory requirements such as those in this action, might establish a standard of reasonable conduct and might provide evidence of negligence: The Queen (Can.) v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, 143 D.L.R. (3d) 9, pp. 221-222. Here, contrary to the cases relied upon by the defendants, the plaintiff pled that these regulatory requirements created a duty of care which was breached by the defendants. This was not argued by the defendants on this motion because they assumed and argued that the plaintiff had not pled negligence. I therefore cannot properly decide this legal issue on this motion. In addition, as indicated above, the defendants’ affidavits do not establish that there is no genuine issue requiring a trial with regards to their compliance with the site plan agreement and related regulatory requirements such that the defendants failed to put their best foot forward.

[27] As a result, the above legal issue cannot fairly and justly be resolved at this time. This is even more so considering that examinations for discovery have not been held and that this action is a simplified procedure action where a summary trial, a timely, affordable and proportionate procedure is contemplated and available under the Rules.

[28] Indeed, the defendants are not helped on this motion by the fact that they refused to attend and be examined for discovery until about two weeks before the initial return date of this motion, when they received the plaintiff’s factum and realized that their conduct could impact the outcome of this motion.

[29] In addition, even if the defendants had met their initial burden, the plaintiff’s evidence on this motion raises issues requiring a trial. For example, the plaintiff’s evidence raises issues requiring a trial about the defendants’ alleged negligence in protecting the large maple tree. It also remains an issue requiring a trial whether trespass occurred, and whether the defendants are liable for such trespass, because the facts are highly contested whether employees or persons otherwise acting under the defendants’ control, instructions, or authority trespassed on the plaintiff’s property.

[30] A partial summary judgment, in the circumstances of this case, would frustrate the Hryniak objective of using summary judgments to achieve proportionate, timely and affordable justice, as such a ruling could cause delay, increase expenses, and might cause additional delay in the event of an appeal. More importantly, it could increase the danger of inconsistent findings at trial made on a more complete record.

[31] Ultimately, there are conflicting allegations and disputes between the parties on almost everything, and exercising the fact finding powers under r. 20.04(2.1) of the Rules would not be in the interests of justice because the Rules for simplified procedure actions allow a comparatively timely, affordable and proportionate procedure that would more fairly and justly resolve these conflicting issues between the parties.

[32] As a result, this action should not be dismissed on a motion for summary judgment. It would not be fair to do so since all the required evidence is not before the court and because the defendants have failed to meet their onus of showing the absence of a genuine issue requiring a trial.

[33] In order to resolve this case fairly and proportionately, the parties shall attend a case conference before a master at the earliest convenient date to determine if the parties might agree to proceed before the Small Claims Court, or to determine how they will proceed to a summary trial before this Court. If they continue before this Court, the next steps would likely include examinations for discovery and agreeing on the trial procedure contemplated by the Rules, as well as the evidence required for trial. Clear limits will have to be imposed by the master on both parties relating to the size of the materials they may file for trial, as the materials filed on this motion by both sides were out of proportion and much too voluminous.

Conclusion

[34] The defendants’ motion for summary judgment is dismissed.

[35] If the parties are unable to agree on the costs of this motion within the next 20 days, then brief written submissions, not exceeding three pages and five enclosures, shall be sent to my attention by the plaintiff by April 6, 2021 and by the defendants by April 12, 2021. I ask the parties to kindly advise me if they resolve the issue of costs but I will nonetheless assume that the issue of costs has been resolved if I do not receive any written submissions, or hear differently, within the next 30 days.

Mr. Justice Pierre E. Roger Date: March 16, 2021