Fruitland Juices Inc. v. Custom Farm Service Inc. et al.

112 O.R. (3d) 453
2012 ONSC 4902

Court and Judge

Ontario Superior Court of Justice
J.W. Quinn J.
August 30, 2012

Civil procedure -- Summary judgment -- Defendant bringing motion for summary judgment after setting action down for trial -- Defendant requiring leave of court under rule 48.04(1) to bring motion -- Defendant not having to show substantial and unexpected change in circumstances in order to bring motion for summary judgment after setting action down for trial -- Motion potentially reducing issues and shortening trial or eliminating need for trial -- Leave granted -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 48.04(1) .

After setting the action down for trial, the defendant brought a motion for summary judgment. The court considered whether leave was required to bring the summary judgment motion and, if so, whether leave should be granted.

Held, leave to bring the summary judgment motion should be granted.

Rule 48.04(1) of the Rules of Civil Procedure encompasses summary judgment motions. The defendant required leave of the court to bring the motion.

The defendant was not required to show "a substantial and unexpected change in circumstances" before leave to move for summary judgment would be granted. So long as the motion, if successful, would be less costly and time-consuming than the trial and would not unduly delay the start of the trial, the defendant was not required to explain its choice of timing. At worst, the motion would delay the fixing of a trial date by one month; at best, it would reduce the issues and shorten the trial and would perhaps eliminate the need for a trial. [page454]

Cases referred to
Gloucester Organization Inc. v. Canadian Newsletter Managers Inc. (1995), 21 O.R. (3d) 753, [1995] O.J. No. 68, 37 C.P.C. (3d) 111, 1995 7144 , 52 A.C.W.S. (3d) 961 (Gen. Div.); Greenspan v. Whiting, [1979] O.J. No. 3128, 12 C.P.C. 73, [1979] 3 A.C.W.S. 192 (Co. Ct.) ; Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, 11 C.P.C. (3d) 236, 35 A.C.W.S. (3d) 168 (Gen. Div.) ; Kovary v. Heinrich (1974), 1974 784 (ON SC) , 5 O.R. (2d) 365, [1974] O.J. No. 2065 (H.C.J.); Singh v. Incardona (1983), 1983 1993 (ON SC) , 43 O.R. (2d) 313, [1983] O.J. No. 3173, 37 C.P.C. 80, 22 A.C.W.S. (2d) 197 (S.C. -- Masters' Chambers); Tanner v. Clark, [1999] O.J. No. 581, 93 O.T.C. 141, 30 C.P.C. (4th) 358, 86 A.C.W.S. (3d) 509 (Gen. Div.) ; Vallender v. Marbella Boutique Imports Ltd. (1977), 1977 1281 (ON SC) , 15 O.R. (2d) 664, [1977] O.J. No. 2209, 3 C.P.C. 238, [1977] 1 A.C.W.S. 512 (H.C.J.); Warren v. Lowery, [1976] O.J. No. 1444, 2 C.P.C. 137, [1977] 1 A.C.W.S. 122 (H.C.J.)

Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194 , rules 20, 20.01(3) , 27.08(2) , 48, 48.01 , 48.02(1) , 48.04(1) , (2)
Rules of Practice, R.R.O. 1980, Reg. 540, rule 246, (1), (4)

Motion by the defendant for summary judgment.

C. Scalzi, for plaintiff/responding party.
Hershel J. Sahian, for defendants/moving parties.

Reasons for Decision

Introduction

[ 1 ] After setting this action down for trial, the defendants moved for summary judgment. Is leave of the court required for such a motion? If so, should leave be granted?

Background

The parties

[ 2 ] The plaintiff owns and operates three vineyards in the Niagara Peninsula. The corporate defendant, Custom Farm Service Inc. ("Custom Farm"), is in the farm-management business. The individual defendant is the sole officer and director of Custom Farm.

The cause of action

[ 3 ] In 1998, Custom Farm and the plaintiff entered into a contract under which the former was to plant the vineyards of the latter and to provide farm maintenance and spraying services.

[ 4 ] It is alleged by the plaintiff that, in 2006, because of negligent pesticide spraying, one of the vineyards became diseased, thereby leading to lower yields, higher labour costs and financial losses. [page455]

[ 5 ] At the end of 2006, Custom Farm submitted three invoices to the plaintiff, one for each of the vineyards. Although negligence is alleged only in respect of one vineyard, the plaintiff refused to pay any of the invoices.

The action

[ 6 ] The action was commenced in 2007 and, thereafter, lingered on the vine procedurally (the specifics of which I will omit), such that pleadings were not completed until October of 2010.

[ 7 ] The action includes a counterclaim by Custom Farm for the unpaid invoices.

The motion

[ 8 ] The events leading up to this motion are as follows:

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[page456]

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Discussion

When may a defendant bring a summary judgment motion?

[ 9 ] In accordance with subrule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 , as amended:

20.01(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. [page457]

[ 10 ] There is no time frame anywhere in Rule 20, or elsewhere in the Rules of Civil Procedure , after delivery of a statement of defence, within which a defendant must fit a motion for summary judgment.

Is leave necessary for a summary judgment motion?

[ 11 ] Subrule 48.04(1) of the Rules of Civil Procedure speaks of the need for leave:

48.04(1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

[ 12 ] Subrule 48.04(2) goes on to exempt various motions from the leave requirement of subrule 48.04(1) and confirms that setting an action down for trial does not relieve a party from certain specified obligations under the Rules of Civil Procedure (for example, the requirement of a party to disclose information obtained by that party subsequent to his or her examination for discovery and the duty to respond to a request to admit).

[ 13 ] The wording of subrule 48.04(1) is clear and all-encompassing. It covers "any motion" initiated after an action is set down for trial. Consequently, the defendants need leave to bring their motion for summary judgment.

Is the issue of leave properly before the court?

[ 14 ] The materials first served on behalf of the defendants did not seek leave of the court to bring the motion for summary judgment. Eventually, the notice of motion was amended to request leave, but the defendants did not amend their grounds to address that issue and did not discuss leave in their factum. Nevertheless, the plaintiff was aware that leave was a vibrant issue on the return of the motion and, indeed, delivered a factum on the point.

Should leave be granted?

[ 15 ] The rationale behind subrule 48.04(1), as I see it, is twofold: (1) to discourage actions being set down for trial when they are not ready to be tried; and (2) to avoid delay occasioned by further discoveries or by additional steps in the action once the matter is set down for trial.

[ 16 ] It has been held in numerous cases that "setting a matter down for trial is not a mere technicality of procedure": see, for example, Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, 11 C.P.C. (3d) 236 (Gen. Div.), at para. 10 . [page458]

[ 17 ] Decisions predating the 1985 wholesale change in the rules of court usually refer to the "certificate of readiness" (then Form 38) signed by counsel: Form 38 Certificate of Readiness

I _____________, (solicitor for) the above-named _____________, DO HEREBY CERTIFY that I have completed all proceedings in this action which, in my opinion, need to be taken on behalf of my client (or on my behalf as the case may be) prior to trial. I will not initiate or continue any interlocutory proceedings or any form of discovery without leave of the Court and I represent that my client is (or I am as the case may be) ready to proceed with the trial of this action whenever called upon to do so.

Signature

[ 18 ] The certificate of readiness was served upon the opposite parties and filed with the court. It was "a statement and undertaking to the Court" and it was considered to be "of the highest importance that such statements to the Court be made with the utmost good faith and only when . . . true": see Singh v. Incardona (1983), 1983 1993 (ON SC) , 43 O.R. (2d) 313, [1983] O.J. No. 3173, 37 C.P.C. 80 (S.C. -- Masters' Chambers), at p. 317 O.R., p. 85 C.P.C.

[ 19 ] The delivery of a certificate of readiness was long viewed as "a very serious matter": see Singh v. Incardona, supra, at p. 319 O.R., p. 88 C.P.C., citing Warren v. Lowery, [1976] O.J. No. 1444, 2 C.P.C. 137 (H.C.J.) .

[ 20 ] The governing rule, prior to 1985, was Rule 246 of the Rules of Practice, R.R.O 1980, Reg. 540, which provided, in part:

246(1) Where a statement of defence or answer has been delivered, and pleadings are closed, any party who has delivered a pleading and is ready for trial may serve upon every other party who has delivered a pleading and file, with proof of service, a certificate of readiness according to form 38. . . . . .

(4) Except by leave of the court, a party who has delivered a certificate of readiness, shall not initiate or continue any interlocutory proceedings or any form of discovery.

[ 21 ] I would have thought that the certificate of readiness was superfluous to subrules 246(1) and (4). In the certificate, counsel was saying nothing more than that he or she was in compliance with, and agreed to be bound by, those subrules.

[ 22 ] The Rules of Practice were replaced by the Rules of Civil Procedure , effective January 1, 1985. Rule 246 became part of Rule 48 and, in the process, the certificate of readiness was [page459] abolished. Mention of trial readiness, however, found in subrule 246(1), was continued in rule 48.01 , which said (and says today): "After the close of pleadings, any party to an action . . . who is ready for trial may set the action down for trial, together with any counterclaim or crossclaim." Subrule 48.02(1) described how an action was set down for trial " . . . by serving a notice of readiness for trial (Form 48A) on every party . . . and a trial record . . . and forthwith filing the notice and trial record with proof of service". The notice of readiness for trial stated:

Notice of Readiness for Trial

The (identify party) is ready for trial and will forthwith set this action down for trial at (place).

Any party may have this action placed on the trial list (a) sixty days after the action is set down, or (b) immediately on the filing of the consent in writing of every party other than the party delivering this notice.

The party who has set the action down for trial and any party who consents to this action being placed on a trial list must not initiate or continue any motion or form of discovery without leave of the court except as provided in subrule 48.04(2) of the Rules of Civil Procedure . When this action is placed on a trial list, a pre-trial conference in the action will proceed as scheduled and the trial will proceed when the action is reached on the trial list, unless the court orders otherwise.

[ 23 ] Like the certificate of readiness, the notice of readiness for trial strikes me as repetitious of the obligations under the Rules of Civil Procedure .

[ 24 ] In 1991, the notice of readiness for trial was revoked and subrule 48.02(1) was amended to require only that a party who wishes to set an action down for trial "may do so by serving a trial record . . . and forthwith filing the trial record with proof of service".

[ 25 ] Consequently, currently the notion of trial readiness is captured by rule 48.01 , under which, as I have mentioned, any party who "is ready for trial" may set the action down for trial and, pursuant to subrule 48.02(1) , this is accomplished by delivering a trial record. When a lawyer sets an action down for trial, the lawyer is telling the world that he or she "is ready for trial". Ready means ready. The act of setting an action down for trial carries the same weight and importance as service of the former "certificate of readiness" and "notice of readiness for trial".

[ 26 ] Very often, when leave is sought under subrule 48.04(1) , it is because a party finds that he or she is not ready for trial and, effectively, desires to re-open the case. That is not the situation here. The defendants are not moving for relief to assist them with a missed step in the action, with an imperfectly taken [page460] step or to implement a fresh view of how their litigation should be conducted. The defendants are not suggesting that they are unready for trial. At worst, their motion will delay the fixing of a trial date by one month (a relatively insignificant period of time in the circumstances of this case). At best, it will reduce the issues and shorten the trial or, perhaps, eliminate the need for a trial.

[ 27 ] Many decisions in this area of the law recite the need for "a substantial and unexpected [See Note 1 below] change in circumstances" after the action is set down for trial before leave will be warranted: see, for example, Kovary v. Heinrich (1974), 1974 784 (ON SC) , 5 O.R. (2d) 365, [1974] O.J. No. 2065 (H.C.J.), at p. 366 O.R. [See Note 2 below]

[ 28 ] The requirement for a substantial and unexpected change in circumstances is not a helpful or logical test where the motion for which leave is requested seeks summary judgment. The primary purpose of such a motion is to spare the parties and the legal system the expense and intrusion of an unnecessary trial or, at least, unnecessary issues within the trial. A party is not obliged to bring a summary judgment motion at the earliest opportunity; neither must there be a precipitating event such as a change in circumstances. So long as the motion, if successful, will be less costly and time-consuming than the trial, and will [page461] not unduly delay the start of the trial, I do not see why the moving party must explain his or her choice of timing. [See Note 3 below] In other motions (such as to add parties, raise new issues or amend pleadings), the explanation for a delay in so moving is relevant, as is the issue of prejudice to the opposing party. However, none of that is relevant or required in a motion for summary judgment, at least in the circumstances of this case. A summary judgment motion brought at any time is a potential blessing for the administration of justice.

[ 29 ] Mr. Sahian, for the defendants, asks me to consider that most of the oft-cited cases in this branch of the law pre-date the usage of litigation timetables and registrar dismissal orders. However, whether an action is set down for trial to meet a court-ordered or rules-based deadline or whether it is set down "voluntarily", in accordance with counsel's own grand design, is not relevant; in both instances, one is deemed to be ready for trial even if one is not. As far as rule 48.01 is concerned, it is the act of setting a matter down for trial, not the motivation for doing so, that is determinative.

[ 30 ] One final note -- the action contains a counterclaim and, without an order to that effect, the Rules of Civil Procedure do not appear to contemplate setting a counterclaim down for trial in the absence of the action (the order of June 23, 2011 could have provided, under the authority of subrule 27.08(2) , that, if the plaintiff did not set the action down before March 30, 2012, the defendants would be at liberty to set the counterclaim down and that the counterclaim would "proceed as a separate action"). In other words, the defendants could not have set the counterclaim down for trial and left the action to be dismissed by the registrar. Of course, it still would have been necessary to seek leave to bring a summary judgment motion in respect of the counterclaim.

Conclusion

[ 31 ] The defendants are granted leave to bring their motion for summary judgment. Costs are reserved until the disposition of that motion.

Order accordingly.

Notes

Note 1: In Hill v. Ortho Pharmaceutical (Canada) Ltd., ibid., the court used the phrase "substantial or unexpected" instead of "substantial and unexpected". I do not know what to make of that discrepancy.

Note 2: As discussed in Singh v. Incardona, supra, at p. 319 O.R., p. 88 C.P.C., subsequent to Kovary v. Heinrich, supra, exceptions arose "to avoid the effect of a solicitor's slip": see Vallender v. Marbella Boutique Imports Ltd. (1977), 1977 1281 (ON SC) , 15 O.R. (2d) 664, [1977] O.J. No. 2209 (H.C.J.) or "where information has come to the knowledge of a party's solicitor which he did not possess before delivering his certificate of readiness it has been set aside to permit him to conduct an examination for discovery": see Greenspan v. Whiting, [1979] O.J. No. 3128, 12 C.P.C. 73 (Co. Ct.) . Thereafter, the relaxation of the criteria for leave continued. In Tanner v. Clark, [1999] O.J. No. 581, 93 O.T.C. 141 (Gen. Div.), at paras. 25-26 , the court followed the reasoning in Gloucester Organization Inc. v. Canadian Newsletter Managers Inc. (1995), 21 O.R. (3d) 753, [1995] O.J. No. 68, 1995 7144 (Gen. Div.) , at para. 9 , and eschewed the rigid "substantial and unexpected change in circumstances" test for leave, holding that "the relevant principles to be considered and the weight to be given to leave motions will vary depending upon the nature of the leave requested and the circumstances of the case". Thus, where "serious matters affecting substantive rights" are involved, "the merits of the requested relief become a fundamental consideration to ensure the case is fully canvassed at trial". Accordingly, it was suggested in Tanner v. Clark that a lower threshold for leave is to be utilized where substantive rights are in play rather than merely interlocutory issues.

Note 3: And, when arguing leave, I do not see the need for the moving parties to satisfy any threshold regarding the merits of the proposed motion for summary judgment. It would be for the responding party to show that the proposed motion is utterly devoid of merit.