Court of Appeal for Ontario

Date: 20210429 Docket: C68635

Tulloch, Nordheimer and Jamal JJ.A.

Between:

Ihab Dia, Faten Zeineddine, Samer Dia (a minor by his litigation guardian Ihab Dia), Anisah Dia (a minor by her litigation guardian Ihab Dia), Ali Dia (a minor by his litigation guardian Ihab Dia), and Mohamed Dia (a minor by his litigation guardian Ihab Dia) Plaintiffs (Appellants)

And:

Calypso Theme Waterpark, Jacques Bui, Jamie Crowder, Khamea Louangrath, Paolo Messina and Shaun Wheeler Defendants (Respondent)

And Between:

Paolo Messina Plaintiff by Counterclaim

And:

Samer Dia and Mohamed Zeineddine Defendants by Counterclaim

Counsel:

Katie Black and Kelli Day, for the appellants Danesh Rana, for the respondent

Heard: April 9, 2021 (by video conference)

On appeal from the order of Justice Heather J. Williams of the Superior Court of Justice, dated April 27, 2020, with reasons reported at 2020 ONSC 2601, and from the costs endorsement, dated August 29, 2020, with reasons reported at 2020 ONSC 5191.

Nordheimer J.A.:

[1] The plaintiffs appeal from the summary judgment granted by the motion judge that dismissed the plaintiffs’ action against the respondent and certain of the respondent’s crossclaims and ordered that the respondent discontinue other crossclaims. [^1]

Background

[2] The claims in this action result from an altercation that occurred on July 3, 2013, at the premises of the defendant, Calypso Theme Waterpark, which is located in Limoges, Ontario, about 35 kilometres east of Ottawa. Two of the appellants, Samer Dia and Anisah Dia, were assaulted by a group of males that, it is alleged, included the four individual defendants. [^2] At the time, Samer was 15 years old and Anisah was 13 years old.

[3] The altercation is said to have started with verbal attacks by the group of males directed towards Samer and Anisah. The events then escalated to a physical assault by the group of males on both Samer and Anisah. Samer claims he was punched, pushed down a set of stairs, and then kicked in the head, rendering him unconscious. Anisah claims she intervened in an effort to stop these males from kicking her brother, when she was beaten and rendered unconscious. These beatings were observed by their seven-year-old brother, Ali, who was only a few feet from the altercation.

[4] Both children were rendered unconscious for a period of time, and claim to have suffered serious bodily harm, including facial contusions and trauma to the back, neck and head.

[5] The police were called. Officers from the Ontario Provincial Police attended at the park. The officers took statements from a number of individuals and filed reports on the incident.

[6] The respondent acknowledges being present at the park at the time of the altercation. Indeed, he identified himself in a group photograph of the males said to have been involved in the assault. Nonetheless, he claims that he had nothing to do with the assault on Samer and Anisah. Instead, the respondent says that he was the subject of a separate assault occasioned by the uncle of Samer and Anisah, that rendered the respondent unconscious.

[7] More than five years after this action was commenced, the respondent brought a motion for summary judgment. Although all of the defendants had filed statements of defence, the respondent and the corporate defendant are the only parties who have continued to defend the action since the pleadings were closed.

The Decision Below

[8] The motion judge began her analysis by stating some of the principles relating to summary judgment, including principles drawn from Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[9] The motion judge concluded that there was no genuine issue requiring a trial in respect of the claim against the respondent and that the claim against him should be dismissed. In reaching this conclusion, the motion judge placed significant reliance on the fact that none of the appellants identified the respondent as one of the men involved in the alleged assault, even in response to the motion.

[10] The motion judge also rejected an argument by the appellants that evidence might be available at trial, such as that of the other individual defendants, that could satisfy the trier of fact that the respondent was involved in the alleged assault. The motion judge found that this argument “has no merit”. She said that on a motion for summary judgment, the responding party may not rely on the prospect of additional evidence that may be tendered at trial; the responding party must put its best foot forward, citing Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff'd 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97.

[11] Finally, the motion judge rejected any concern arising out of the fact that this was a partial summary judgment motion. She found that there was no risk of inconsistent findings being made when the balance of the action is tried. Rather, she said, at para. 32:

My finding that the plaintiffs have failed to identify Mr. Messina as having been involved in the alleged assault does not require me to make any findings in respect of whether an assault took place, if so, what precipitated the assault, who was involved in the assault or the nature and extent of any injuries.

Analysis

[12] In my view, the conclusion reached by the motion judge reflects both errors of law and palpable and overriding errors of fact. Given the nature of the claim here, and the type of evidence that was placed before the motion judge, summary judgment was an entirely inappropriate avenue to pursue. In addition, the fact that the motion was brought more than five years after the action was commenced was another factor that ought to have weighed into the calculus as to whether a motion for summary judgment was appropriate.

[13] The evidentiary record on this motion was far from ideal. In terms of that evidence, the respondent did not file an affidavit. Rather, he filed a series of affidavits from a “legal assistant and trained paralegal” in his lawyer’s office. The first affidavit appended, as exhibits, the transcript of the respondent’s examination for discovery; various witness statements and reports taken from the police file; transcripts of, and an exhibit to, the examinations for discovery of two of the appellants; the respondent’s requests to admit and the appellants’ responses to those requests; and accounts of legal expenses incurred by the respondent in defending criminal charges. The second affidavit appended, as exhibits, two photographs of the respondent. The third affidavit appended a third photograph of the respondent. The appellants did not file any evidence in response to the summary judgment motion.

[14] The motion judge, correctly, found that the respondent could not rely on his own examination for discovery on the summary judgment motion. This conclusion is clear from the provisions of r. 39.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and from the decision of this court in Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 50 O.R. (3d) 97 (C.A.), at para. 37.

[15] This then left the motion judge with a record that consisted of the photographs of the respondent, the material from the police file, the requests to admit and responses, the accounts of legal expenses, and the examinations for discovery of two of the appellants.

[16] The motion judge was asked to, but did not, draw an adverse inference from the fact that the respondent did not file an affidavit. In declining to do so, she said, at para. 24:

I am not, however, prepared to draw a negative inference against Mr. Messina on this basis. Mr. Messina attempted to provide evidence of his personal knowledge by filing his discovery transcript. Having refused to allow him to do so, I will not penalize him further for not having provided evidence of his personal knowledge; his error was in attempting to rely on evidence on which he could not be cross-examined, not in attempting to avoid filing evidence of his personal knowledge.

[17] This stated reason for not drawing an adverse inference fails to take into account the fundamental rationale for the express provision in r. 20.02(1) that permits an adverse inference to be drawn, that is, an attempt by the moving party to avoid cross-examination. The fact that the respondent did not make himself available for cross-examination, in a case such as this, is precisely the type of situation where an adverse inference would have been properly drawn. After all, this case is largely, if not entirely, an identification case. The respondent sought to have the action dismissed against him on the basis that he was not part of the assault on the two children, without providing the appellants with any real opportunity to test that contention. The fact that the respondent would not affirmatively attest to his non-involvement ought to have been a matter of significant concern to the motion judge.

[18] The remaining evidence did not establish that there was no genuine issue for trial regarding the central question whether the respondent was part of the assault. The motion judge seems to have proceeded on the basis that the material from the police file, including witness statements, were properly before the court. They were not. Apparently, the parties thought that the statements and reports were admissible hearsay under r. 20.02(1) which reads:

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, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.

[19] The problem with that approach is that it ignores the requirement, expressly provided for in subrule 39.01(4), that an affidavit based on information and belief (i.e. hearsay) must state the source of the information and the fact of the belief. The legal assistant’s affidavit did not satisfy that requirement, nor could it have, because the legal assistant was not in a position to properly form a belief as to the accuracy of the information contained in the witness statements and the police reports.

[20] With that information removed from the record, it left the motion judge simply with the photographs of the respondent, the examinations for discovery of two of the appellants, the requests to admit and responses, and the accounts of the respondent’s legal expenses, which were of no probative value by themselves. None of that evidence provided any foundation for the motion judge to conclude that no genuine issue for trial existed. Put simply, there was insufficient evidence on which the motion judge could reach “a fair and just determination on the merits”: Hryniak, at para. 49.

[21] While that would be sufficient, by itself, to require the appeal to be allowed and the summary judgment set aside, there are other aspects of the decision that should be addressed.

[22] One is that it is evident that the motion judge reversed the onus or burden of proof from the respondent, who was the moving party, to the appellants as responding parties. For example, the motion judge said, at para. 25:

The plaintiffs argue that Mr. Messina has not proven that he was not involved in the alleged assault. He is not required to do so. Mr. Messina's burden on this motion is to satisfy me that there is no issue requiring a trial in respect of the plaintiffs' claim against him because the plaintiffs cannot prove that he was involved in the alleged assault. He has met that burden. [Emphasis in original.]

[23] That statement is simply wrong in law. In the circumstances of this case, the respondent was required to prove that he was not involved in the assault. That is the only way he could show that there was no genuine issue for trial as regards the claim against him. It was not up to the appellants to prove the contrary, at least not until the respondent had first met his evidentiary burden.

[24] This error appears to have arisen from the motion judge’s misunderstanding of the body of case law regarding the obligation of parties on both sides of a motion for summary judgment to “put [their] best foot forward”. The obligation on the responding party is often captured by the expression “a respondent on a motion for summary judgment must lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.), at p. 557.

[25] The fact that both sides to a motion for summary judgment may bear evidentiary burdens does not alter where the onus or burden of proof originates. On this point, I repeat the explanation of the burden of proof enunciated by Brown J.A. in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, leave to appeal refused, [2016] S.C.C.A. No. 443, where he said:

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.

[26] The motion judge erred in skipping over the respondent’s initial burden and moving straight to the appellants’. In doing so, she improperly shifted the burden of proof onto the appellants to prove their case before the respondent had proven his. The motion judge also erred in her application of the decision in Sweda Farms. While the decision in that case does say that the court is entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial, the case also notes that “[t]here are exceptions to this principle”: Sweda Farms, at para. 27. An exception that presents itself in this case is the possibility of a "blame game" developing, as I explain in para. 28 below, or that the plaintiffs might call one or more of the investigating police officers that would provide evidence that was not reasonably available on the motion.

[27] Finally, this case once again points out the risks associated with granting partial summary judgment. The motion judge said that she was not required to decide who was involved in the assault. As I have already pointed out, that is precisely what she was required to do, at least insofar as it involved the respondent. That was the central issue in the action.

[28] The motion judge also said that there was no risk of inconsistent findings being made when the balance of the action is tried. Quite the contrary is true. At the trial, if the appellants call one or more of the defendants, which they are entitled to do, there is every prospect that a finger pointing or blame game will result. It does not appear that the motion judge gave any consideration to this possibility. The risk of inconsistent findings is, therefore, very much alive in this case. While the motion judge referred to this court’s decision in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, she failed to heed the caution expressed by Pepall J.A., at para. 34: “A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action”.

[29] I will add one final observation. As I mentioned at the outset, this summary judgment motion was brought more than five years after this action was commenced. The fundamental purpose of summary judgment is to provide “proportionate, cost-effective and timely dispute resolution”: Hryniak, at para. 67. An unsuccessful summary judgment motion adds both expense and delay to a proceeding. As also observed in Hryniak, at para. 32, summary judgment motions “can also slow down the proceedings if used inappropriately.”

[30] In this case, the proceeding has already taken more time to get to trial than it ought to have. It is unclear from the record why this has occurred, but this motion has only exacerbated the situation. In such cases, I suggest that motion judges ought to stand back and consider whether the pursuit of a summary judgment motion is likely to achieve its fundamental purpose. Given the nature of this case, and the state of the evidence that was before the motion judge, it would have been more helpful if the motion judge had simply worked with the parties to move the matter directly onto trial. Alternatively, she might have exercised her authority, under r. 20.04(2.2), to order oral evidence to be presented, but she did not.

Conclusion

[31] I would allow the appeal, set aside the judgment below, and, in its place, grant an order dismissing the summary judgment motion. The appellants are entitled to their costs of the appeal fixed in the amount of $20,000 inclusive of disbursements and HST. If the parties cannot agree on the disposition of the costs below, they may make written submissions on that issue. The appellants shall file their written submissions within 10 days of the release of these reasons and the respondent shall file his submissions within 10 days thereafter. Each side’s submissions shall be limited to five pages (excluding bills of costs) and no reply submissions shall be filed without leave.

Released: April 29, 2021 “M.T.” “I.V.B. Nordheimer J.A.” “I agree. M. Tulloch J.A.” “I agree. M. Jamal J.A.”

[^1]: I note that the decision in this case led to an order being formally signed as opposed to a judgment as it ought to have been styled given the relief that was obtained. I also note that the formal order improperly contained a declaration that was not sought in the motion and was, in any event, unnecessary. [^2]: The claim appears to have been discontinued against the defendant, Jacques Bui.