DATE: 2002-04-19 DOCKET: C36414
COURT OF APPEAL FOR ONTARIO
ROSENBERG, FELDMAN JJ.A. and GILLESE J. (Ad hoc)
B E T W E E N :
GEORGE CORCHIS SR., LORETTA JEANNE CORCHIS, VALTEN INCORPORATION and ANDERTON ESTATES LIMITED
Claudio Martini for the respondents
Plaintiffs/Respondents
- and -
KPMC PEAT MARWICK THORNE, THORNE ERNST & WHINNEY, THORNE RIDDELL and WALLACE ROBSON
Joseph M. Steiner, for the appellants
Defendants/Appellants
Heard: March 1, 2002
On appeal from the partial summary judgment of Justice Nancy L. Backhouse dated May 16, 2001
GILLESE J. (Ad hoc):
[1] On the evidence advanced by Mr. Corchis on the summary judgment motion, he made three payments to the respondents all on the same basis, for the same purpose and as part of the same plan. The three payments were made from Mr. Corchis’ share of the proceeds of a complex tax loss utilisation transaction for which the respondent had provided accounting advice.
[2] Mr. Corchis’ evidence was that his goal was to place $500,000 with the respondents and that the funds were to be held in trust for him. Thus, on his own evidence, the fourth payment is but one part of an overall transaction.
[3] The fourth payment is not clearly severable from the rest of the case nor is it supported by a self-contained, self-supporting set of uncontroverted evidence. It cannot be clearly separated from the other payments as, according to Mr. Corchis, all were made subject to his same instructions. As Campbell J. said in Gold Chance International Ltd. v. Daigle & Hancock 2001 CarswellOnt 899 (Sup. Ct.), partial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim. Permitting this possibility in proceedings where there are common facts, issues and parties does not advance the administration of justice. As a result, entitlement to the fourth payment is a matter to be left to the trial judge.
[4] I am of the view, as well, that even excluding evidence of Mr. Robson’s cross- examination, the plaintiffs failed to meet the burden of proof in demonstrating that there was no genuine issue for trial in respect of the fourth payment. Taking a hard look at the evidence advanced on the summary judgment motion, it is my view that it is inadequate to discharge the onus that rests upon the plaintiffs on a motion for summary judgment. I note that despite the large sums in question and Mr. Corchis’ experience as a businessman, he offered no explanation for why he would take money from interest bearing certificates of deposit as the certificates matured and place them in trust with a body that did not provide such services and without any instructions on the manner in which the funds were to be held. The fourth payment was made payable to “Thorne Ernst & Whinney”; there was no indication on the face of the bank draft that the payment was made in trust. There was no documentary evidence of any sort to support the plaintiffs’ contention that the payments were made in trust or the terms upon which the funds were to be invested. There was no evidence that Mr. Corchis made any inquiries about the funds in question or on how they were to be invested until five years after the payments had been made. No explanation was offered for why Mr. Corchis failed to make any attempt to retrieve the funds in question for that five year period.
[5] In Hi-Tech Group Inc. v. Sears Canada Inc. (2001), 2001 24049 (ON CA), 52 O.R. (3d) 97 (C.A.), Morden J.A. writing for the court at paragraph 30 states that “Failure of the responding party to tender evidence does not automatically result in summary judgment.” Thus, even if it is accepted that the evidence from Mr. Robson’s cross-examination was properly excluded with the result that Mr. Corchis’ evidence was uncontradicted, the court must be satisfied that the moving party has met the burden of demonstrating that there is no genuine issue for trial. On the evidence proffered by the plaintiffs, in my view, that burden has not been discharged.
[6] Despite having made that determination, it is important to note that the appellant, as the responding party to the motion for summary judgment, had an obligation to “lead trump or risk losing”. The motions judge was entitled to assume that no other additional evidence would be lead at trial apart from that which was before her. The appellant tendered no evidence independent of that of Mr. Robson. Its obligation was to tender evidence of specific facts showing a genuine issue for trial. Once paragraphs 7 and 8 of the Robson affidavit were struck, it is hard to see how that obligation was met.
[7] Thus, it appears that the appeal was necessitated, at least in part, due to the failure of the appellant to have tendered all the requisite evidence on a summary judgment motion. As a consequence, I am of the view that the matter of costs of the motion and appeal are better left to the trial judge.
[8] Accordingly, I would allow the appeal and set aside the partial summary judgment. I would reserve the costs of the motion and appeal to the trial judge.
“Eileen E. Gillese J.”
“I agree M. Rosenberg J.A.”
“I agree K. Feldman J.A.”
Released: April 19, 2002