Lana International Ltd. et al. v. Menasco Aerospace Ltd. et al. [Indexed as: Lana International Ltd. v. Menasco Aerospace Ltd.]

50 O.R. (3d) 97

[2000] O.J. No. 3261

Docket No. C33354

Court of Appeal for Ontario

Carthy, Rosenberg and O'Connor JJ.A.

September 7, 2000

Civil procedure -- Summary judgment -- Evidence on motion for summary judgment -- Party may not use own examination for discovery on motion for summary judgment -- Party's own examination for discovery not permitted "other evidence" under rule 20.01(3) -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.01(3), 39.04(2).

Corporations -- Officers -- Liability -- Corporate officer may be personal liability in tort for actions performed in course of duties to corporation that employed him or her.

The plaintiff LI Ltd. purchased eight sets of Boeing landing gear from the defendant MA Ltd., which was a subsidiary of the defendant CI Inc. MA Ltd. manufactured the landing gear under a contract with the defendant Boeing Company. The defendant JC was the president of MA Ltd. After the landing gear had been resold by LI Ltd., they were recalled and LI Ltd. sued for breach of contract, negligence, negligent misrepresentation, and with respect to certain allegedly damaging statements made during the recall of the landing gear. LI Ltd.'s action included claims against JC personally. After his examination for discovery, JC moved for summary judgment to have the claims against him dismissed. In support of his motion, he did not provide his own affidavit but relied upon his own examination for discovery, parts of the examinations of two co-defendants and two affidavits sworn by his lawyer that appended certain documents. The motions judge granted the motion. The motions judge noted that while on the hearing of a motion, rule 39.04(2) precludes a party from using the evidence from his or her own examination for discovery, it was the plaintiff who had failed to establish a genuine issue for trial in the course of its extensive examination for discovery of JC. The motions judge also found that JC's participation in the events was entirely within the scope of his corporate responsibilities and, as a result, he was protected from personal liability. LI Ltd. appealed.

Held, the appeal should be allowed.

The policy underlying rule 39.04 is that parties wishing to rely on their own evidence on a motion ought not to be able to avoid full cross-examination by using their own examination for discovery instead of providing an affidavit. A motion for summary judgment is a motion and rule 39.04(2) was applicable to it. While rule 20.01(3) permits a defendant to move for summary judgment with a supporting affidavit or "other evidence", a party's own examination for discovery is not included within "other evidence". To the extent that there was any uncertainty about which rule applies, the specific provision in rule 39.04(2) took preference over the general provision in rule 20.01(3). Thus, JC was precluded from using his own examination for discovery on the motion for summary judgment and the motions judge erred by using the examination. The error was made by attaching weight to LI Ltd.'s failure to obtain evidence in the course of the discovery of JC. The motions judge also erroneously considered that JC was immun e from personal liability in tort for his actions solely because those actions were performed in the course of his duties to the corporation that employed him. This states the protection from liability for corporate officers and employees too broadly because they can be liable for tortious conduct even when acting in the course of their duties. Accordingly, the appeal should be allowed.

APPEAL from a summary judgment dismissing an action.

Cases referred to ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 1527 (ON CA), 43 O.R. (3d) 101, 168 D.L.R. (4th) 351, 41 B.L.R. (2d) 157, 39 C.C.E.L. (2d) 163, 44 C.C.L.T. (2d) 174 (C.A.); Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.); Kreutner v. Waterloo Oxford Co-operative Inc. (2000), 2000 16813 (ON CA), 50 O.R. (3d) 140 (C.A.) post; ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481, 129 D.L.R. (4th) 711 (C.A.) Statutes referred to Limitations Act, R.S.O. 1990, c. L.3 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.01, 20.02, 21, 31.06(b), 39.04(2), (3) Authorities referred to Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), p. 186

Murray A. MacDonald, for appellants. Paul B. Schabas and Bradley E. Berg, for respondent.

The judgment of the court was delivered by

[1] O'CONNOR J.A.: -- The appellants brought an action making claims against several defendants, including the respondent John Cybulski. After examinations for discovery, Cybulski moved for summary judgment.

[2] Mr. Justice Brennan allowed the motion and dismissed the claims against Cybulski. In my view, he made two errors in doing so:

-- he improperly made use of Cybulski's examination for discovery contrary to rule 39.04(2) which precludes parties from using their own examinations for discovery on the hearing of a motion;

-- he erroneously considered that Cybulski was immune from personal liability in tort for his actions solely because those actions were performed in the course of his duties to the corporation that employed him.

[3] In the result, I would allow the appeal and set aside the judgment.

Facts

(a) The action against Cybulski

[4] This action arises from dealings between the appellants and the defendant, Menasco Aerospace Limited. Menasco was a wholly owned subsidiary of the defendant, Coletec Industries Inc., which manufactured new 737 airplane landing gears under contract for the defendant, The Boeing Company. In particular, the action arises from the purchase of eight sets of Boeing landing gears by the appellants from Menasco between March and July 1990. The appellants resold some of the landing gears to purchasers including the defendant, AAR Allen Inc. Purchasers then sold the landing gears to various airlines. The gist of the action is that Menasco wrongfully sold the landing gears to the appellants in breach of its contract with Boeing, representing that it owned the landing gears and that they were certified and airworthy. The appellants also allege that when the sales were exposed, Menasco wrongfully recalled the landing gears, asserting incorrectly that the gears were not, in fact, certifiable. The appellants say tha t their business reputation was damaged by the manner in which the recall was carried out and by certain statements that were communicated to their customers in the course of the recall.

[5] This action was commenced in 1995. The original statement of claim asserted claims against Cybulski that were similar to the claims against the corporate defendants, including a claim that Cybulski was in breach of contract with the plaintiffs. On a motion under Rule 21, Greer J. ordered that the appellants must plead acts of "specific, independent wrongdoings" by Cybulski and that claims against Cybulski, in his personal capacity, must appear in separate paragraphs in the pleadings.

[6] The appellants amended the statement of claim. In the amended claim, they allege that Cybulski, as group president of Coltec's Menasco Group, authorized the sale of the landing gears to the appellants and subsequently acted wrongfully in retreiving them. The appellants allege that Cybulski acted for personal reasons outside the scope of his employment and that he is personally liable for the actions described. They also allege that he carried out some of the acts in the course of his employment.

[7] The amended statement of claim sets out the claims against Cybulski in separate paragraphs and includes specific allegations that Cybulski:

(a) authorized or directed Menasco to engage in the wrongful act of selling landing gears to the appellants in order to improve his personal position within Menasco, and in doing so he misrepresented to the appellants that Menasco was the owner of the landing gears with full rights to certify and sell them;

(b) acted negligently in failing to enforce the terms of Menasco's agreement with Boeing, in failing to advise the appellants of the agreement and in failing to properly supervise the marketing and sales of the landing gears; and

(c) caused damage to the appellants' business by wrongfully excluding them from the recall process and by making false statements, written and oral, which he knew or ought to have known would be communicated to the airline industry.

[8] In March 1999, the appellants added a further claim that Cybulski, for personal advantage, acting outside the scope of his authority, directed that Menasco cease work on contracts to supply DHC-5 (Buffalo) aircraft parts to the appellants.

(b) Cybulski's defence

[9] The essence of the defence pleaded by Cybulski is as follows:

(a) Cybulski had no knowledge, prior to August 1990, that any improper sales of landing gears were made by Menasco to the appellants. Cybulski learned in early August 1990 that two employees of Menasco, acting without authority, arranged these sales without disclosing them to Cybulski. The employees were subsequently terminated.

(b) The improper sales did not result from Cybulski's negligence. He acted diligently, faithfully and honestly, in the course of his duties, in overseeing Menasco's operations.

(c) Cybulski acted in good faith in his capacity as president of Menasco, on advice of corporate counsel, in requesting the return of the landing gears. In any event, the statements attributed to him are true. No damage was caused by those statements. The statements were made in good faith, without malice and on an occasion of qualified privilege.

(d) Cybulski acted in good faith, within the scope of his authority as president of Menaso, with respect to any actions taken relating to the Buffalo parts claim.

[10] Cybulski also pleaded that the claim regarding oral statements made by him in the course of the recall process and the claim regarding the Buffalo parts contract are statute- barred pursuant to the Limitations Act, R.S.O. 1990, c. L.3.

(c) Summary judgment motion

[11] After the examinations for discovery, Cybulski moved for summary judgment seeking to have the claims against him dismissed. Cybulski did not provide his own affidavit in support of the motion. Instead, he relied upon his own examination for discovery, the examinations for discovery of representatives of the appellants and parts of the examinations for discovery of two co-defendants, Menasco and Boeing. Cybulski also filed two affidavits of Elizabeth Hall, a lawyer with the law firm representing him in this action. Ms. Hall's affidavit appended certain documents referred to in Cybulski's examination for discovery and other documents that had been produced by the appellants in the action. Ms. Hall did not testify to any of the events giving rise to the claims against Cybulski nor to any of the facts that would support the pleas set out in his statement of defence. In addition, Cybulski filed the cross-examination on an affidavit, introduced by the appellants on the motion.

[12] In the course of his submissions to the motions judge, Cybulski's counsel relied extensively on answers given by Cybulski during his examination for discovery.

[13] The motions judge allowed the motion and dismissed the claims against Cybulski. The motions judge found that he had the "complete record" before him and that the evidence did "not show a genuine issue for trial in respect of the allegations pleaded against Mr. Cybulski personally." In reaching this conclusion, the motions judge said that rule 39.04(2) made the evidence of Cybulski's examination for discovery unavailable to him as the moving party. However, the motions judge held that he should consider the failure of the plaintiffs (now the appellants) to establish a genuine issue for trial in the course of the extensive examination for discovery of Cybulski.

[14] The motions judge also found that Cybulski participated in the events that gave rise to the appellants' causes of action entirely within the scope of his corporate responsibilities and that, as a result, Cybulski was protected from liability.

Analysis

[15] There are two issues:

(a) Did the motions judge err in making improper use of the examination for discovery of Cybulski?

(b) Did the motions judge err in concluding that, because Cybulski's actions or omissions occurred when he was acting entirely within his corporate duties, he was immune from personal liability for allegations of tortious conduct?

(a) Use of Cybulski's examination for discovery

[16] Rule 39.04(2) precludes parties using their own examination for discovery in evidence on a motion. The rule reads as follows:

39.04(2) On the hearing of a motion, a party may not use in evidence the party's own examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the party unless the other parties consent.

[17] Cybulski first argues that rule 39.04(2) does not apply to motions for summary judgment because of rule 20.01(3) which reads:

20.01(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. [See Note 1 at end of document]

(Emphasis added)

[18] Cybulski argues that the "other evidence" referred to in rule 20.01(3) includes evidence taken on discovery, including that of the defendant moving party. I do not accept this argument. The language of rule 39.04(2) is clear and unlimited. It applies to "the hearing of a motion". A motion for summary judgment under rule 20.01 is "a motion". There is no language in rule 39.04(2) limiting the types of motions to which the rule applies. By way of contrast, rule 39.02(4), which addresses issues relating to cross-examinations on motions, specifically excludes motions for summary judgment. Rule 39.04(2) does not.

[19] Moreover, rule 39.04(2) is specific, precluding parties from using their own discoveries on a motion. Rule 20.01(3), on the other hand, is general, permitting the use of "other evidence." To the extent that there is any uncertainty about which rule applies to the use by parties of their own discoveries, the specific provision, Rule 39.04(2), should take precedence over the general: Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at p. 186.

[20] The policy underlying rule 39.04(2) is that parties wishing to rely on their own evidence on a motion ought not to be able to avoid full cross-examination by using their own examination for discovery instead of providing an affidavit. [See Note 2 at end of document]

[21] This policy, it seems to me, is particularly important in the context of a motion for summary judgment where a party, if successful, may achieve the ultimate prize -- success in the action. Although parties moving for summary judgment are not required by the rules to provide their own affidavits, there is a strong incentive to do so. Parties who have personal knowledge of contested facts and who fail to provide an affidavit face the prospect of having an adverse inference drawn against them (rule 20.02).

[22] The argument that rule 39.04(2) does not apply to motions for summary judgment runs contrary to the policy that discourages parties from avoiding a full cross-examination by not providing an affidavit on matters about which they have personal knowledge.

[23] Counsel for Cybulski relies upon this court's decision in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.) to support his argument that rule 39.04(2) does not apply to summary judgment motions. In particular, he points to the passage at p. 265 where Borins J.A. said:

In contrast, a motion for summary judgment under Rule 20 permits the motions judge to consult not only the pleadings, but affidavits, cross-examination of the deponents, examinations for discovery, admissions and other evidence to determine whether there is a genuine factual dispute between the parties.

(Emphasis added)

[24] I do not think that this passage helps the argument. It is taken from a part of the reasons where Borins J.A. is setting out a general overview of the procedures and law relating to motions for summary judgment. Borins J.A. makes no reference to rule 39.04(2). Rule 39.04(1) does permit the use of discoveries of parties adverse in interest. I do not read the reference to "examinations for discovery" in the passage quoted above to mean that all examinations for discovery, including those specifically precluded by rule 39.04(2) should be considered on a motion for summary judgment.

[25] The cases relied upon by Cybulski which preceded the introduction of rule 39.04(2) in 1996 are of no assistance.

[26] In my view, rule 39.04(2) applies to all motions, including motions for summary judgment.

[27] I turn now to the way in which the motions judge used Cybulski's examination for discovery. It is important to note that this is not a case where there is a complete lack of evidence linking Cybulski to the allegations in the statement of claim. Cybulski was president of Menasco at the time of the allegedly improper sales, presumably with the overall responsibility for the company's operations, he was responsible for directing the recall, he signed the letters containing the allegedly defamatory statements and he issued the direction to cancel the Buffalo parts contract. [See Note 3 at end of document]

[28] Cybulski's defences, to a significant extent, are denials of the allegations made against him; in some instances, a denial that he did the acts alleged, in others, a denial that he did the acts with the state of mind or for the purposes alleged. The appellants examined Cybulski for discovery at length and apparently did not obtain any answers that supported their allegations.

[29] In his reasons, the motions judge accepted that rule 39.04(2) limited the use that Cybulski could make of his own discovery. He said that rule 39.04(2) ". . . makes that evidence [Cybulski's discovery] unavailable to him, as the moving party . . ." However, the motions judge did not interpret the rule to preclude any use being made of Cybulski's discovery. Rather, he was of the view that, in deciding the motion, he should consider the appellants' (plaintiffs') "failure to establish a genuine issue for trial in the course of very extensive examination of the defendant Cybulski."

[30] While this latter comment could be viewed as nothing more than a gratuitous observation pointing out that the appellants, in his view, did not have any evidence to support their allegations, I think that it played a much larger role than that in the motions judge's determination to grant summary judgment.

[31] In analyzing the evidence, the motions judge referred to Cybulski's examination for discovery on several occasions. For example, in addressing the appellants' claim asserting that Cybulski, for personal advantage, acting outside the scope of his corporate authority, maliciously directed that Menasco cease work on the Buffalo parts contract, the motions judge said:

Nothing about that directive would make it a personal act rather than a corporate one. No evidence is offered to suggest it was anything but a corporate decision. In the apparent hope that he would make an admission that could raise a genuine issue for trial, plaintiffs' counsel questioned Mr. Cybulski closely on this matter at discovery, and he asserted that he was following the directions of a company lawyer. Rule 39.04(2) renders that evidence unavailable to Mr. Cybulski, but I note that the plaintiffs' hope remained unfulfilled. They were unable to point to any admission to show a genuine issue for trial in respect of this allegation.

[32] In this passage, it seems to me that the motions judge is not simply saying "by the way, the plaintiffs do not have evidence to support their allegation." Rather, he is attaching weight to the appellants' failure to obtain evidence in the course of the examination for discovery of Cybulski. The difference may be subtle, but is nonetheless real. Attaching weight to that failure is one way of using the answers given on that discovery.

[33] The notion that the motions judge used Cybulski's examination for discovery in arriving at his conclusion that there was no genuine issue for trial is supported by a comment he made in the opening paragraph of his reasons. He said:

An extensive record has been produced, with thousands of questions put to many witnesses at examinations for discovery and in cross-examination on affidavits filed. I am satisfied that the complete record is before me.

(Emphasis added)

[34] Other than Cybulski's examination for discovery, there was little, if any, direct evidence to support many of the positions asserted in the statement of defence. A good example is Cybulski's defence to the appellants' allegation that he was negligent in permitting the unauthorized sales to occur. Cybulski argues that the uncontradicted evidence is that he was not negligent. That's not quite the case. There is some evidence; he was president of the company when the company made the allegedly unauthorized sales. The uncontradicted evidence on which Cybulski relies is that given on his discovery where he testified that he acted diligently, he delegated the day-to- day operations and that the sales were contrary to established policy. Without the use of his own discovery, Cybulski, who carried the burden on the motion for summary judgment, did not introduce direct evidence denying allegations of negligence.

[35] Rather than treating the record before him as "complete," the motions judge, in my view, should have disregarded Cybulski's discovery and addressed his mind to whether he should draw an adverse inference against Cybulski under rule 20.02 [See Note 4 at end of document] because of his failure to provide an affidavit setting out the facts of which he had personal knowledge which supported his defences. The fact that the motions judge proceeded as if he had a "complete record" when he did not reinforces the concern that he attached weight to Cybulski's denials of the appellants' allegations on his examination for discovery.

[36] Cybulski's examination for discovery differed from what may have occurred had he provided his own affidavit giving the same evidence. On his discovery, he was not subject to cross- examination going solely to his credibility. Had he provided an affidavit, he would have been. As a practical matter, in many cases, this difference, a cross-examination going solely to credibility, may not be great. Nonetheless, the intent of rule 39.04(2) is clear. Parties to a motion who wish to use their own evidence must provide an affidavit and be subject to a full cross-examination.

[37] The language of rule 39.04(2) is clear; parties may not use their own discovery on a motion. The language is not limited as to the type of use which is prohibited. I see no reason to interpret the rule other than in accordance with its clear language. In my view, parties are precluded from using their own discoveries on a motion for any purpose, including attaching weight to the failure of adverse parties to obtain evidence that supports their position. To use an examination for discovery in this manner is to "use in evidence the party's own examination for discovery."

[38] Interpreting the rule to preclude all uses is consistent with the policy underlying rule 39.04(2) of preventing parties from avoiding a full cross-examination on a motion by using their own examination for discovery.

[39] I recognize that interpreting rule 39.04(2) to foreclose any use of a party's own discovery encourages parties to provide affidavits, and could result in two pre-trial examinations of the same party; a cross-examination on an affidavit in addition to an examination for discovery. Repetition, however, can be avoided if counsel take a reasonable approach when a situation involving the prospect of two examinations arises. There are a number of alternatives. One would be, on consent, to approach an examination for discovery as a cross-examination on an affidavit attesting to the facts in the pleading. Another would be to append the discovery to an affidavit and submit the deponent to a cross- examination resisting repetitive questions. A further alternative would be to bring the motion for summary judgment before discovery and to seek on that motion an order, if unsuccessful, to treat the cross-examination on the affidavit as all, or a portion of, the examination for discovery. I do not think that an interpretation of rule 39.04(2) which precludes any use by parties of their own examinations for discovery on a motion need result in extra examinations, expense or delay.

[40] In summary, I am satisfied that the motions judge erred in using the discovery of Cybulski in arriving at his conclusion that there was no genuine issue for trial.

(b) Corporate duties

[41] In the first paragraph of his reasons, the motions judge set out the legal principle upon which he then analyzed each of the claims against Cybulski. He said:

His participation in the events which gave rise to the plaintiffs' cause of action was entirely within the scope of his corporate responsibility and he is protected from personal liability.

[42] In separately addressing each of the appellants' four claims, the motions judge returned to this principle. For example, in dismissing the claims of negligence, he said:

. . . in my view the acts and omissions complained of relate exclusively to his corporate duties. They are exactly what is protected from liability by the law's treatment of a corporation as a legal person. Salomon v. Salomon & Co. Ltd. [cite omitted]

[43] As I read the motions judge's reasons, he proceeded on the premise that if a corporate officer or employee performs a tortious act entirely in relation to or within the scope of his corporate duties, he would, for that reason alone, be immune from liability. In my view, this states the protection from liability for corporate officers and employees too broadly.

[44] Officers and employees can be liable for tortious conduct even when acting in the course of their duties: ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 1527 (ON CA), 43 O.R. (3d) 101 at p. 113, 168 D.L.R. (4th) 351 at p. 364 (C.A.). In ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481, 129 D.L.R. (4th) 711 (C.A.), Finlayson J.A. described the protection at p. 491 as follows:

Absent allegations which fit within the categories described above, officers and employees of limited companies are protected from personal liability unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the company so as to make the act or conduct complained of their own.

(Emphasis added)

[45] The appellants have alleged that Cybulski is liable because his actions were themselves tortious. The allegations, although somewhat inelegantly pleaded, include that Cybulski is personally liable for negligent misrepresentation, negligence, defamation, and maliciously inducing a breach of contract.

[46] Cybulski is not immune from liability in tort simply because the tortious acts alleged were done within the scope of his corporate responsibilities. In order for a court to dismiss these claims against Cybulski on a summary judgment motion, it is necessary that the court be satisfied that there is no genuine issue for trial as to whether the evidence justifies the allegations of tortious conduct.

[47] In my view, the motions judge erred in extending an overly broad protection from liability in tort to Cybulski.

Disposition

[48] In summary, I am of the view that the motions judge made two errors in the course of disposing of the motion. Cybulski argues that there are defences (limitation periods, qualified privilege and justification are examples) on which the motions judge dismissed the appellants' action that are unaffected by these errors. However, I am unable to unravel the effect of errors on the decision reached by the motions judge so as to safely conclude that he would have reached the same result had he not made the errors to which I have referred.

[49] I have given careful thought as to whether this court is able to dispose of the summary judgment motion on the merits. I am not prepared to do so. There is some evidence linking Cybulski to the acts or omissions alleged in the statement of claim. Cybulski's factum in this court relied heavily upon references to his examination for discovery. His oral argument relied on using his discovery in the same way the motions judge used it. It would be preferable to have the motion decided, if indeed it is renewed, by a court which has the benefit of argument based on a proper evidentiary record.

[50] In the result, I would allow the appeal with costs and set aside the judgment. It is open to Cybulski to bring a fresh motion for summary judgment. If he does, and if he produces an affidavit in support of that motion, the parties should co- operate so that he may incorporate, where appropriate, his examination for discovery and thereby avoid unnecessary repetition of the examination that has already taken place.

[51] After argument of this appeal, the court was advised that the motions judge had made a cost order in favour of Cybulski. I would set aside that cost order and award costs of that motion to the appellants on a party and party basis.

Order accordingly.

Notes

Note 1: Rule 20.01(1) contains similar wording for motions for summary judgment brought by plaintiffs.

Note 2: Rule 31.06(1)(b) prohibits cross-examination going solely to credibility on a discovery. It reads as follows: "A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relating to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that ... (b) the question consititutes cross-examination, unless the question is directed solely to the credibility of the witness ...".

Note 3: I note that the presence of this evidence differentiates this case from the recent decision of this court in Kreutner v. Waterloo Oxford Co-operative Inc., delivered August 18, 2000 [reported 2000 16813 (ON CA), 50 O.R. (3d) 140 post]. In that case, this court concluded there was no evidence to support the plaintiff's allegations.

Note 4: Rule 20.02 provides: "An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but on the hearing of the motion an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts."