Royal Bank of Canada v. Hussain et al.

[Indexed as: Royal Bank of Canada v. Hussain]

Ontario Reports

Court of Appeal for Ontario,

MacPherson, Simmons and Lauwers JJ.A.

August 22, 2016

133 O.R. (3d) 355 | 2016 ONCA 637

Case Summary

Civil procedure — Pre-trial conference — Rules 50.09 and 50.10 of Rules of Civil Procedure prohibiting judge who conducted pre-trial conference from presiding on summary judgment motion in absence of written consent of parties — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 50.09, 50.10.

The motion judge, who had previously conducted a pre-trial conference, granted the plaintiff's motion for summary judgment and dismissed the defendant's counterclaim. The defendant appealed.

Held, the appeal should be allowed.

A judge hearing a motion in a proceeding should be insulated from knowledge of statements made at a pre-trial conference, so that litigants are assured that information revealed in the pre-trial will not be used against them at the hearing. Although neither rule 50.09 nor rule 50.10 of the Rules of Civil Procedure contains language expressly prohibiting a pre-trial judge from presiding on a summary judgment motion, those rules must be read as prohibiting a judge who conducts a pre-trial conference from presiding on a summary judgment motion in the absence of the written consent of the parties.

Cases referred to

Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135, [1994] O.J. No. 343, 111 D.L.R. (4th) 589, 70 O.A.C. 101, 26 C.P.C. (3d) 368, 46 A.C.W.S. (3d) 14 (C.A.); Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), (2), 20, 50, 50.03 [rep. by O. Reg. 438/08, s. 47], 50.04 [rep. by O. Reg. 438/08, s. 47], 50.09, 50.10, (1), (2)

Authorities referred to

Osborne, Coulter A., Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ministry of the Attorney General, 2007)

APPEAL from the judgment of Parayeski J. of the Superior Court of Justice dated November 20, 2015 for the plaintiff.

Alamgir Hussain, in person.

Amanda Jackson, for Royal Bank of Canada. [page356]

The judgment of the court was delivered by

SIMMONS J.A.: —

A. Introduction

[1] Following a summary judgment motion, the motion judge granted judgment to the Royal Bank of Canada for amounts owing to the bank by the appellant and his spouse and dismissed a counterclaim filed by the appellant and his spouse.

[2] The appellant raises numerous issues on appeal.

[3] The main issue on appeal is whether, absent the written consent of the parties, rules 50.09 and 50.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 prohibit a judge who conducts a pre-trial conference from presiding on a summary judgment motion.

[4] For the reasons that follow, I would answer yes to that question, allow the appeal and set aside the summary judgment.

[5] We did not call on the bank to respond to any of the other issues raised by the appellant. In all the circumstances, it is unnecessary that I address them.

B. Background

[6] The bank issued a statement of claim against the appellant and his spouse in May 2009 claiming amounts owing on various loan facilities. After obtaining an order setting aside a default judgment, the appellant and his spouse delivered a statement of defence and counterclaim.

[7] On December 1, 2014, the motion judge conducted a pre-trial conference. On November 20, 2015, the motion judge heard the bank's summary judgment motion. On December 18, 2015, the motion judge issued reasons for decision, granting summary judgment to the bank for the amounts the bank claimed was owing by the appellant and his spouse, and dismissing their counterclaim. On March 9, 2016, the motion judge issued a costs endorsement, awarding the bank $62,500 in costs.

C. Rules 50.09 and 50.10

[8] Subject to certain exceptions, rule 50.09 prohibits communication to a judge presiding on a motion "with respect to any statement made at a pre-trial conference":

50.09 No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in an order under rule 50.07 or in a pre-trial conference report under rule 50.08.

(Emphasis added) [page357]

[9] Rule 50.10(1) prohibits a pre-trial judge from presiding "at the trial of the action or the hearing of the application, except with the written consent of all parties". Rule 50.10(2) clarifies that rule 50.10(1) does not prohibit a hearing judge from holding conferences before or during the hearing "that may assist in the just, most expeditious and least expensive disposition of the proceeding":

50.10(1) A judge who conducts a pre-trial conference shall not preside at the trial of the action or the hearing of the application, except with the written consent of all parties.

(2) Subrule (1) does not prevent a judge before whom a proceeding has been called for hearing from holding a conference either before or during the hearing to consider any matter that may assist in the just, most expeditious and least expensive disposition of the proceeding without disqualifying himself or herself from presiding at the hearing.

D. Relevant Legislative History of Rule 50

[10] The predecessor rules to rules 50.09 and 50.10 were last amended in 2010, by O. Reg. 438/08, s. 47, following recommendations for the general reform of Rule 50 made in the Osborne report arising out of the Civil Justice Reform Project: see Civil Justice Reform Project: Summary of Findings and Recommendations (2007) (Hon. Coulter A. Osborne, Q.C.) ("Osborne report"), at pp. 101-102. The full text of the predecessor rules prior to the 2010 amendments is included in Appendix "A".

[11] In addition to language changes, the 2010 amendments permitted the parties to an action to consent in writing to a pre-trial judge hearing an action or application. They also permitted a trial judge or application hearing judge to conduct certain conferences without disqualifying himself or herself, a provision now contained in rule 50.10(2).

[12] The Osborne report recognized, at pp. 98-99, that rule 50.04, the predecessor to rule 50.10, was aimed at the important purpose of protecting settlement discussions at pre-trial. However, the report concluded that parties should nonetheless be able to consent to a pre-trial judge hearing the proceeding because of efficiencies that could be achieved at trial, based on the pre-trial judge's familiarity with the facts, expertise and other factors. This would be particularly helpful in cases where settlement issues and trial management issues could be dealt with separately:

Efficiencies at trial may also be achieved by having the pre-trial judge preside at the trial. Pre-trial judges often become familiar with the facts and issues in a case, and time would be wasted having to get a new trial judge up to speed, particularly in complex cases. The pre-trial judge may have expertise in a given area of law that may assist in the resolution of the case. [page358] Continuity by the same judicial official can also help ensure that trial management orders made at the pre-trial are fulfilled and that the trial proceeds as planned. However, under rule 50.04, a judge who conducts the pre-trial conference shall not preside at trial.

I recognize that this rule is intended to protect settlement discussions at pre-trial. In complex cases, it may be advisable to separate the settlement and trial management parts of the pre-trial so that a pre-trial judge dealing with trial management issues may serve as trial judge. In any event, I recommend that rule 50.04 be amended to permit the pre-trial judge to serve as trial judge, where the parties consent. Virtually all those consulted saw no impediment to the trial judge dealing with motions and trial management issues, similar to what arbitrators do in arbitration proceedings. Having the trial judge involved earlier in long complex cases will, in my view, enhance the efficiency of the process.

(Emphasis added)

E. Discussion

[13] The bank acknowledges that the motion judge presided over a pre-trial in this proceeding. Nonetheless, the bank submits that the motion judge was not prohibited from hearing the summary judgment motion.

[14] As a starting point, the bank contends that this situation does not fall squarely within the prohibition contained in the Rules. Nothing was communicated to the motion judge about the pre-trial conference; rather, he presided over the conference. Rule 50.09 therefore does not strictly apply. And the proceeding under appeal is not a trial or an application hearing as described in rule 50.10.

[15] Further, the bank points out that the appellant did not raise at the motion the objection now raised on appeal.

[16] And finally, the bank says no substantial wrong or miscarriage of justice resulted from the motion judge presiding on the summary judgment motion -- the bank's case is overwhelming and the motion judge's decision is correct.

[17] I would not accept the bank's submissions.

[18] Rule 50.09 reflects the intention that a judge hearing a motion in a proceeding should be insulated from knowledge of statements made at a pre-trial conference. It is designed to reassure litigants that any information revealed in the pre-trial will not be used against them at a hearing, in order to encourage a full and frank exploration of settlement prospects at an early stage of the proceeding.

[19] Having regard to rule 50.10(1), absent written consent from the parties, a judge who conducts a pre-trial should not be the judge who determines the merits of the issues in a proceeding. Particularly with the expanded powers available to [page359] motion judges under the amended Rule 20, presiding on a summary judgment motion must be viewed as akin to presiding at a trial or the hearing of an application: see Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, at paras. 36 and 45. The rationale for prohibiting communications to a judge about statements at a pre-trial and for prohibiting a pre-trial judge from presiding at a hearing that could determine some or all of the issues in a proceeding is well established and well known. As explained in the Osborne report, it is to protect settlement discussions at a pre-trial conference.

[20] And as stated by Carthy J.A. in Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135, [1994] O.J. No. 343 (C.A.), at pp. 144-45 O.R., the prohibition also protects the integrity and usefulness of the pre-trial conference system:

Pre-trials were designed to provide the court with an opportunity to intervene with the experience and influence of its judges to persuade litigants to reach reasonable settlements or refine the issues. None of that would be possible without assurance to the litigants that they can speak freely, negotiate openly, and consider recommendations from a judge, all without concern that their positions in the litigation will be affected.

[21] Although neither rule 50.09 nor rule 50.10 contains language expressly prohibiting a pre-trial judge from presiding on a summary judgment motion, the rules are to be "liberally construed", and where matters are not provided for in the rules, "the practice shall be determined by analogy to them": rule 1.04(1) and (2).

[22] Having regard to these factors, rules 50.09 and 50.10 must be read as prohibiting a judge who conducts a pre-trial conference from presiding on a summary judgment motion in the action, except with all parties' written consent.

[23] Further, although ordinarily, in a civil case, a failure to object in the court below to a procedural flaw is given considerable weight on appeal, in this case, the parties' failure to object to the pre-trial judge hearing the motion for summary judgment is not a relevant consideration. This is because rules 50.09 and 50.10 effectively preclude a judge who conducts a pre-trial from hearing the merits of a proceeding, absent the written consent of the parties.

[24] This case highlights the need for parties to remind a judge who has been scheduled to dispose of an action or application on the merits that the judge previously presided at the pre-trial conference. That way, the judge will have the opportunity to determine if the parties are willing to provide their written consent to the judge presiding at the hearing, in accordance with rule 50.10(1). [page360]

[25] Finally, I would reject the bank's claim that the strength of its case should govern the outcome of this appeal. The purpose of rules 50.09 and 50.10 is to protect the efficacy of pre-trial conferences in facilitating settlements. In all the circumstances, upholding the result in this case would sanction ignoring the Rules and undermine public confidence in the administration of justice.

F. Disposition

[26] Based on the foregoing reasons, I would allow the appeal and set aside the summary judgment in its entirety. Although the appellant's spouse did not appeal, the summary judgment should not stand in respect of either defendant.

[27] I would award costs of the appeal to the appellant on a partial indemnity scale fixed in the amount of $1,500, inclusive of disbursements and applicable taxes.

Appeal allowed.

APPENDIX "A"

Prior to their amendment in 2010, the predecessor provisions to rules 50.09 and 50.10 were found in rules 50.03 and 50.04, and read:

50.03 No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in the memorandum or order under rule 50.02.

50.04 A judge who conducts a pre-trial conference shall not preside at the trial of the action or the hearing of the application.

End of Document