Endorsement

COURT FILE NO.: CV-09-392904
DATE: 20120202
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2186754 ONTARIO LIMITED, 2186755 ONTARIO LIMITED,
RIDGEWATER DEVELOPMENTS INC. and JOHAN MANNERHEIM

and

THE CORPORATION of the CITY OF TORONTO
and ROBERT STRMOTA

BEFORE: STEWART, J.

COUNSEL:
David M. Goodman , for the Plaintiffs

David A. Weisman , for the Defendant Robert Strmota

HEARD: July 7, 2011

ENDORSEMENT

[ 1 ] When this motion was argued on July 7, 2011, there were several appeals before the Court of Appeal for Ontario which raised issues concerning the appropriate test to be applied in a motion for summary judgment under Rule 20.

[ 2 ] Decisions in Combined Air Mechanical Services Inc . et al. v. Flesch et al and other companion appeals ( 2011 ONCA 764 ) were released on December 5, 2011. Counsel in this matter were invited to make submissions in writing to address whether these decisions have a bearing on the proper disposition of this motion. I now have received and considered those submissions delivered on behalf of the parties.

[ 3 ] This action claims damages against the Defendant Robert Strmota (“Strmota”) for, among other things, fraud relating to the circumstances surrounding the alleged obtaining by Strmota of funds on deposit with the Water Department of The City of Toronto. Credibility determinations will be central to the ultimate resolution of the issues as will the issue of intention and knowledge or belief of Strmota in order to establish the alleged fraud.

[ 4 ] In addition, a release was executed by the parties to purportedly cover all matters in dispute between them when their business relationship was severed. A further issue exists as to whether this release encompasses the grounds which are the subject matter of the action.

[ 5 ] In its decision in Parker v. Casalese (C53395), the Court of Appeal for Ontario observed the following (at paras. 255 and 261):

[255] When a judge is faced with a contested motion for summary judgment in a simplified procedure action that requires exercising the powers in Rule 20.04 (2.1), the judge will not only have to apply the full appreciation test, but will also need to assess whether entertaining the motion is consistent with the efficiency rationale reflected in the simplified procedures under Rule 76.

[261] Moreover, in the context of a simplified procedure action, a summary judgment motion that requires oral evidence from key witnesses offers little or no benefit from an efficiency standpoint as compared to the parties simply proceeding to trial. Indeed, the presiding justice at triage court offered the appellants an early trial date as an alternative to proceeding with their motion. Holding an early summary trial would clearly have been the preferred procedural route in this case.

[ 6 ] Although the Plaintiff may have a strong case upon which to claim entitlement to the funds in question, I am of the view that a full appreciation of the factual record is required to make the necessary findings of credibility and to interpret the release and to apply it to these circumstances. A trial is therefore required.

[ 7 ] I also consider that efficiency is better served in this Rule 76 action by dealing with the issues in dispute by means of a summary trial. In the circumstances, I order that the pre-trial conference and trial of this action be expedited.

[ 8 ] If the subject of costs cannot be resolved by the parties, short written submissions by the Defendant Strmota may be delivered within 20 days of today’s date and by the Plaintiffs within 20 days thereafter.

Stewart, J.

Date: February 2, 2012