COURT FILE NO.: CV-09-393892
DATE: 20120723
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SAULE Y. ALTAIBAYEVA, Plaintiff
- and -
GEORGE ONYEWUCHI, Defendant
BEFORE: Justice S. M. Stevenson
COUNSEL: Adrienne L. Boudreau, for the Plaintiff
James C. Morton, for the Defendant
DATE HEARD: July 18, 2012
E N D O R S E M E N T
Introduction
[1] The Plaintiff, Saule Y. Altaibayeva, (“Altaibayeva”) obtained a judgment for the sum of $99,925.00 on December 10, 2004 in a Maryland court jointly and severally against the Defendant George Onyewuchi (“Onyewuchi”) along with his spouse, his company and former school which Onyewuchi operated in Maryland.
[2] Altaibayeva commenced an action by way of Statement of Claim in this Court on December 21, 2009 for a declaration recognizing and enforcing the Maryland judgment and for payment of the outstanding amount. Onyewuchi responded to that claim by filing a Statement of Defence dated January 25, 2010.
[3] Altaibayeva has brought a motion for summary judgment on the basis that there is no genuine issue requiring a trial. Onyewuchi opposes the motion as he submits that there are genuine issues requiring a trial, and in particular, Onyewuchi has pleaded that the action is time barred by virtue of the Limitations Act.
Issue
(i) Should summary judgment be granted to Altaibayeva in accordance with the relief sought in the Notice of Motion or should the summary judgment motion be dismissed?
Relevant Statutory Provisions
[4] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 governs motions for summary judgment. Rule 20.01(1) prescribes when a plaintiff may bring a motion for summary judgment:
20.01(1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim…
[5] Rule 20.04 (2.1) prescribes the court’s powers on a motion for summary judgment:
20.04(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 trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
The Law on Summary Judgment
[6] In the recent Ontario Court of Appeal decision of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 the summary judgment rule was clarified. At paragraphs 37 and 38, the Court of Appeal stated that:
¶37 …the amended rule permits the motion judge to decide the action where he or she is satisfied that by exercising the powers that are now available on a motion for summary judgment, there is no factual or legal issue raised by the parties that requires a trial for its fair and just resolution.
¶38 However, we emphasize that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.
[Footnote omitted.] [Emphasis original.]
[7] The Court of Appeal went on to state at paragraphs 41 to 44 of the Combined Air decision, that there three types of cases amenable to summary judgment: where parties agree that it is appropriate to determine an action by way of a motion for summary judgment; those claims or defences that are shown to be without merit and the disposition of cases on the merits where the trial process is not required in the “interest of justice”.
[8] In a summary judgment motion, the court must apply the “full appreciation test” as set out in Combined Air, at para. 50:
[I]n deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
[9] The Court of Appeal also confirmed the requirement that all parties put their "best foot forward" on a motion for summary judgment. At para. 56, the Court stated:
By adopting the full appreciation test, we continue to recognize the established principles regarding the evidentiary obligations on a summary judgment motion. The Supreme Court of Canada addressed this point in Lameman, at para. 11, where the court cited Sharpe J.'s reasons in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, in support of the proposition that ‘[e]ach side must 'put its best foot forward' with respect to the existence or non-existence of material issues to be tried.’ This obligation continues to apply under the amended Rule 20. On a motion for summary judgment, a party is not ‘entitled to sit back and rely on the possibility that more favourable facts may develop at trial’: Transamerica, at p. 434.
Disposition
[10] Altaibayeva contends that there is no genuine issue requiring a trial as no limitations defence is available to Onyewuchi because Altaibayeva did not discover that Onyewuchi resided in Ontario until December 2009. From 2005 to 2009, Altaibayeva only suspected that Onyewuchi might be living somewhere in Canada. Counsel for Altaibayeva submits that this evidence is uncontested.
[11] Altaibayeva also submits that numerous attempts were made to locate Onyewuchi by her U.S. counsel through phone calls and review of public, legal, business and real estate records, without success. The only information that was obtained was confirmation that Onyewuchi’s residence, where he had been served with the Maryland court papers, had been sold. Altaibayeva also contends that Onyewuchi took no steps to inform anyone that he resided in Canada or that he was Canadian. No Canadian address was provided to the Maryland court.
[12] Further, she submits that the evidence provided by Onyewuchi on this motion does not prove where he resided after the Maryland judgment was granted and no evidence in the form of documentation is attached to his Affidavit to prove that he, in fact, resided in Mississauga. Altaibayeva also contends that the period of time in which he resided in Mississauga that he refers to in his Affidavit was the period of time prior to the judgment and is not relevant.
[13] Altaibayeva further submits that the statements made by Onyewuchi in his Affidavit are only bald statements and there is no evidence to show that Altaibayeva or her lawyers could have found him earlier.
[14] Onyewuchi contends that there is no evidence before the court explaining why Altaibayeva or her lawyers could not have conducted their searches in Canada in 2005 when Altaibayeva first suspected that Onyewuchi may be in Canada. Additionally, there was no duty on Onyewuchi to tell Altaibayeva where he was residing. He was not hiding, he did not flee Maryland and searches would have located him as he had a landline and a credit search could have been conducted. Onyewuchi submits that it took four years before the claim was issued in Ontario when Altaibayeva knew that he resided in Canada.
[15] He further submits that there are issues of credibility that need to be addressed at a trial and a summary judgment motion is not appropriate when facts are in dispute and credibility is in issue. Discoverability is an issue as Altaibayeva knew Onyewuchi was residing in Canada in 2005 and it was up to Altaibayeva to exercise due diligence.
[16] Based on the evidence before me, I am not prepared to grant summary judgment. Clearly the issue of discoverability is central to the limitation issue in this case and the facts concerning when Altaibayeva discovered that Onyewuchi was in Canada or in Ontario are in dispute. There is also a dispute as to whether Altaibayeva could have located Onyewuchi earlier and viva voce evidence will have to be heard so that credibility can be assessed.
[17] Additionally, there have been no cross-examinations on the Affidavits and even though this claim was commenced in 2009, there have been no examinations for discovery. This would have greatly assisted the court, but without examinations having been conducted, all the court is left with are Affidavits with conflicting evidence upon which to make its decision.
[18] I do not have a full appreciation of the evidence and issues that is required for me to make dispositive findings on the limitation issue. I am not able to weigh and draw inferences based solely on Affidavits which have been untested by cross examination.
[19] I agree with counsel for Onyewuchi that there are material facts in dispute and credibility issues that would be best determined at trial. There is clearly conflicting evidence on the issue of discoverability and there is a genuine issue requiring a trial.
Order
[20] I therefore order the following:
i) The motion for summary judgment brought by the Plaintiff is dismissed.
ii) Counsel provided me with their submissions on costs and their respective Bill of Costs. Counsel for the Defendant advised the Court that his client was seeking $3,000.00 on a partial indemnity scale. Given the success of the Defendant, upon my review of his Bill of Costs and applying the factors in Rule 57 of the Rules of Civil Procedure, I order the Plaintiff to pay to the Defendant the sum of $3,000.00, inclusive of HST and disbursements. As the Plaintiff was seeking $22,821.00 in costs on this motion; I find that she could have reasonably expected to pay the sum of $3,000.00 if unsuccessful.
___________________________
Stevenson J.
DATE: July 23, 2012