CITATION: Parker et al. v. Casalese et al., 2010 ONSC 2866
DIVISIONAL COURT FILE NO.: 141/10
COURT FILE No.: 09-CV-382681
DATE: 20100518
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MARIE PARKER, KATHERINE STILES and SIAMAK KHALAJABADI,
Plaintiffs
– and –
ERIC CASALESE, GERARDA DINA BIANCO CASALESE, PINO SCARFO, ANTONIETTA DI LAURO and MAURO DI LAURO,
Defendants
Faren Bogach, Counsel for the Plaintiffs, Moving Party on the Motion for Leave
Mark A. Klaiman, Counsel for Pino Scarfo, one of the Defendants and a Respondent on the Motion
Charles Wagman, Counsel for the other Defendants, Respondents on the Motion
HEARD at Toronto: APRIL 29, 2010
ENDORSEMENT: GREER j.:
[1] On April 29, 2010, I heard a Motion for Leave to Appeal in this matter. I endorsed the Record, “The Motion for Leave is granted for reasons to follow”. These are my reasons.
[2] The Plaintiffs move for Leave to Appeal from the Order of Mr. Justice Matlow (“the Motions Judge”) dated March 5, 2010, dismissing the Plaintiffs’ Motion for Summary Judgment under Rule 76.07 of the Rules of Civil Procedure. This Rule was repealed on January 1, 2010, so that the Motion proceeded under the new Rule 20, which had been significantly amended.
[3] The Endorsement of the Motions Judge is brief. It reads in full:
This motion is dismissed. Submissions regarding costs may be exchanged & delivered to me within one month.
There are numerous conflicts in the evidence and I am satisfied that they can be justly resolved only after a trial.
[4] Costs submissions were made in accordance with the Motions Judge’s reasons on April 6, 2010. The Motions Judge’s Order on Costs reads as follows:
The responding parties are entitled to recover their respective costs of the motion from the moving parties fixed at the amount set out below, payable forthwith:
Scarfo (represented by Mr. Klaiman) $6,000.00 and
Caralese (sic), Caralease (sic), Di Lauro, Di Lauro (represented by Mr. Wagman) $6,000.00
The cross-motion by Scarfo is referred to the trial judge.
I exercise my discretion to award costs as above by reference to the partial indemnity scale. Any greater quantum would, in my view, be beyond all reasonable expectations of the parties.
Ground of Relief
[5] The Plaintiffs list the following grounds for relief in their Motion Record:
The Motions Judge did not identify what the conflicting evidence was or why a trial was required to resolve any such conflict;
The Motions Judge erred in law by failing to give adequate reasons for his decision;
The Motions Judge erred in law by failing to apply the correct legal test for summary judgment, either under the old Rule 76.07 or the new Rule 20;
Since Rule 20 was significantly amended on January 1, 2010, the profession would benefit from an appellate court’s consideration of the interpretation and application of the new language or Rule 20;
The amendments to Rule 20 were designed to make summary judgment more easily attainable, and that by failing to identify what the “conflicts in evidence” were and failing to say why such conflicts constituted genuine issues requiring a trial, calls into question the legal test and the application of the new Rule 20;
There are conflicting decisions in Ontario concerning the proper legal test, interpretation and application of the new Rule 20 and it is desirable that leave to appeal he granted;
There is good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that leave to appeal should be granted.
Test for Leave to Appeal
[6] Rule 62.02(4) is a two-part test. It states that Leave to appeal shall not be granted unless either part a) or part b) is found by the Judge to apply. It reads:
Leave to appeal shall not be granted unless,
a) There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
Some background facts
[7] The litigation in this matter arose out the construction by the Defendant, Pino Scarfo (“Scarfo”) of two new homes between the property owned by the Plaintiff Parker and the property owned by the Plaintiffs Stiles and Khalajabadi. The two new homes are owned by the Defendants Casalese and Di Lauro. The Plaintiffs claim that each of their properties was damaged when the new construction took place. The application for a permit to demolish the old home and build the new homes was issued in the name of Scarfo.
[8] The Plaintiffs hired Egberts Engineering Limited to prepare a Report for them on the damages which allegedly had been caused by this new construction. The estimates as to the cost to repair the damages to Parker’s property is $37,000 and to the property owned by Stiles and Khalajabadi is $50,000. The Defendants had no engineer or expert examine the properties or respond to the damages claimed. The evidence as to damages, which was before the Motions Judge was uncontroverted.
[9] The Defendants Casalese and Di Lauro simply deny any negligence and say that the Plaintiffs should look to Scarfo, who in turn says they purchased their homes from his brother Antonio. Scarfo says his unincorporated business was the builder of the homes and that the Co-Defendants deposited monies during the on-going construction into a “Greenline account.”
[10] The action, itself, was started under the Simplified Rule, so there were no discoveries. The Plaintiffs moved for Summary Judgment under what was then rule 76.07, which was revoked by O.Reg.438/08 s.55. By the time the Motion was heard by the Motions Judge, the new Rule 20 governing Summary Judgments was in force.
Sufficiency of Reasons
[11] The Plaintiffs say that decision of the Motions Judge was one sentence in length, simply saying that there were “numerous conflicts of evidence”, which can only be resolved at Trial. There is no explanation as to what these conflicts were or how they arose in the proceeding. The Motions Judge appears to have ignored the uncontroverted engineering evidence as to the damages, although he could have fixed those damages, granted summary judgment on the damages, and then sent the issue to trial of who, and in what proportion, that person or persons was or were liable for the damages. There is no mention as to whether any of the parties was sworn in at the hearing to give viva voce evidence. There is no analysis at all to support the decision made by the Judge.
[12] Even the reasons for awarding the Defendants $12,000 in Costs is not fully explained. There is nothing about the submissions for counsel for the Plaintiffs, nothing about the original amount being asked for by each of the two groups of Defendants, nothing about whether it is inclusive of GST and disbursements.
[13] The standard for measuring the adequacy of judicial reasons if set out by Madam Justice Weiler in Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 CarswellOnt 4196, 2007 ONCA 487, 50 C.C.L.I. (4th) 213, 227 O.A.C. 51 (O.C.A.) in paras. 10 – 14. She states the following in paras. 10 and 11:
The standard for measuring the adequacy of reasons is derived from the decision of the Supreme court of Canada in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, 162 C.C.C. (3d) 298 (S.C.C.). Its ratio is equally applicable, with necessary modifications, in the civil context: Canadian Broadcasting Corp. Pension Plan v. BF Realty Holdings Ltd. (2002), 2002 44954 (ON CA), 214 D.L.R. (4th) 121 (Ont. C.A.)
In Sheppard, Binnie J. described the three functions of reasons for judgment at the trial level at para. 24. They are: 1) explaining to the losing party why he or she lost; 2) enabling informed consideration as to whether to appeal; and 3) enabling interested members of the public to see whether justice has been done. A shorthand way of describing reasons that fulfill these functional requirements is to say that the reasons permit meaningful appellate review.
[14] Madam Justice Weiler further adds in para.13 that it is not sufficient for a judge to provide, “Standing alone, conclusory and generic reasons, in the sense that they could apply equally to any other case,..”, as they leave nothing there for appellant review.
[15] Further, in Baker v .Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, the Court states in para. 43, that the duty of procedural fairness will require the provision of a written explanation for a judge’s decision. Simply put, the losing party must know why the relief being asked for was not granted by the court.
[16] The Defendants simply say that Leave should not be granted as the Motion Judge’s reasons are sufficient.
New Rule 20
[17] The new Rule 20 respecting summary judgment motions came into effect at the beginning of 2010. Subrule 20.04(2)(a) 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. It then reads in (2.1):
In determining under clause 2(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule 2.1 order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[18] The powers of the court, on summary judgment motions, are set out in Rule 20.05(1) as follows:
Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously.
[19] Subrule 20.05(2)(a) to (p) sets out what directions and terms the judge may give if he or she orders the action to proceed to trial. It is a comprehensive list meant to govern the procedure before trial and to assist the judge who is to conduct the trial.
[20] The Plaintiffs say that the Motions Judge failed to make any reference at all to the new Rule 20. There is nothing about any material facts in the reasons given. There is no defining of any issues to be tried.
[21] The Plaintiffs further say that there are conflicting decisions in Ontario on how summary judgment motions are to proceed. They refer to Cuthbert v. TD Canada Trust, 2010 ONSC 830, where summary judgment was granted. There the Judge explains the changes under the new rule and said the court must now explain why there is “no genuine issue requiring a trial.” She also says in para. 15 that the Judge must take a good hard look at the evidence, evaluate it, draw inferences and make a finding on credibility in order to determine whether there was a genuine issue of a material fact. None of this was done by the Motions Judge.
[22] Cockshutt v. Computer Facility Services Inc., 2010 CarswellOnt 1768, 2010 ONSC 1789, was a partial summary judgment motion where it was not granted. There the judge did a thorough summary of the evidence and came to the conclusion that a trial would be in the interest of justice, finding that it would not be preferable in the case to make findings of fact and findings of credibility. The matter was then sent to trial.
[23] It is the position of the Defendants that there are no conflicting decisions in Ontario, which fall within the meaning of subsection 62.02(4)(a). The say that there was no mini-trial held when the summary judgment motion was heard.
Analysis under Rule 62.02(4)
[24] I do not agree with the Plaintiffs that the two summary judgment cases cited are conflicting decisions of this Court. Both seem to me, to be following the new Rule 20 in the reasons set out by each Judge. I agree with the Defendants that the Plaintiffs have not met the test in subrule 62.02(4)(a).
[25] I find, however, that the Plaintiffs have met the test in subrule 62.02(4)(b). In my view, there is good reason to doubt the correctness of the order in question, given that there are no appropriate reasons as to why the Plaintiffs lost on the summary judgment motion. It is not sufficient to make a generalized statement, which could apply to any case before the Court. What are the “numerous conflicts”? There is also good reason to doubt the correctness of the Costs Order made by the Motions Judge. Again, there is no analysis as to how the Motions Judge reached the magic figure of $12,000 on the partial indemnity scale/basis.
[26] In my view the proposed appeal involves matters of such importance that leave should be granted. Firstly, it is important in the administration of justice that losing parties know why they lost when a judge makes a decision and renders reasons. The three functions of reasons for judgment, as set out in Sheppard, and cited in Diamond, supra, have not been met. In addition, it is of great importance to the legal profession to have clear and comprehensive reasons to present to their clients. Even the winning party should know why he or she won.
[27] The application of the new Rule 20 is also very important to the legal profession. It changes much of what was previously followed in summary judgment motions. It gives the profession and judges much more guidance on what the results of such motions might look like, whether judgment is granted or not. It allows the judge hearing the motion, if not granted, to set timetables, give directions on evidence and trial procedure. None of this was followed by the Motions Judge hearing the motion for summary judgment.
[28] Leave is granted to appeal the decision for the reasons as noted above. The Costs of this motion are reserved to the Panel hearing the Motion.
Greer J.
Released: May 18, 2010
CITATION: Parker et al. v. Casalese et al., 2010 ONSC 2866
DIVISIONAL COURT FILE NO.: 141/10
COURT FILE No.: 09-CV-382681
DATE: 20100518
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MARIE PARKER, KATHERINE STILES and SIAMAK KHALAJABADI,
Plaintiffs
– and –
ERIC CASALESE, GERARDA DINA BIANCO CASALESE, PINO SCARFO, ANTONIETTA
DI LAURO and MAURO DI LAURO,
Defendants
ENDORSEMENT
Greer J.
Released: May 18, 2010