SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: 1196303 Ontario Inc., Plaintiff

AND:

Glen Grove Suites Inc., Spendthrift Developments Limited, Firm Capital Mortage Fund Inc., Nelly Zagdanksi and Linda Darer, estate trustees of Sylvia Hyde, deceased, 1297475 Ontario Inc., Montreal Trust Company of Canada and Royal Trust Corporation of Canada, Defendants

BEFORE: D. M. Brown J.

COUNSEL: F. Tayar, for the Plaintiff

M. Simaan, for the Defendants, Nelly Zagdanksi and Linda Darer, estate trustees of Sylvia Hyde, deceased, Glen Grove Suites Inc. and Spendthrift Developments Ltd.

HEARD: January 31, 2012

REASONS FOR DECISION

I. When should one bring a motion to strike out an affidavit filed on a motion or application ?

[ 1 ] If a party to a motion or application objects to the admissibility of an affidavit filed by the opposite party, when should the objecting party move to strike out the affidavit which it contends is offending? Often litigants bring a motion to strike before the hearing, invariably before a judge who will not be hearing the substantive motion. In my view that is not the proper practice to follow – as a general rule a motion to strike should be brought at the hearing of the main motion on which one party seeks to adduce the affidavit in dispute.

II. Background facts

[ 2 ] The genesis of this litigation lies in the mists of the 1990s when some mortgages went sour. The court appointed the plaintiff, 1196303 Ontario Inc., as the receiver and manager of the interests of some investors in the mortgages. The investors had lent money to companies owned by Edwin Hyde. 119 petitioned Mr. Hyde into bankruptcy; he died in 2004. His wife, Sylvia Hyde, owned all of the shares in the defendants 1297475 Ontario Inc., Glen Grove Suites Inc. and Spendthrift Developments Limited.

[ 3 ] In 2002 Sylvia, through 129, offered to buy 119’s proof of claim in her husband’s bankruptcy. After some negotiations 119 accepted the offer. In a consent order made October 4, 2004 Farley J. approved the settlement. The Settlement Order required 129 to pay the settlement over two years and contemplated that the owner of the Glengrove property would provide a mortgage and guarantee.

[ 4 ] 129 did not perform the settlement. 119 commenced this action in 2005 against Sylvia, 129, Glen Grove and Spendthrift to enforce the settlement. 129 did not defend the action, and on May 30, 2005 the plaintiff obtained judgment against 129.

[ 5 ] Five years then passed. Finally, in July of 2010, the plaintiff indicated it intended to bring a motion for summary judgment on the settlement against Sylvia, Glen Grove and Spendthrift. [1] Sylvia brought a cross-motion for summary judgment dismissing the action as against her. This Court imposed a timetable which contemplated that the motion would be heard in November, 2010.

[ 6 ] In late September, 2010 Sylvia delivered a responding affidavit. The plaintiff alleges that Sylvia’s 2010 evidence is inconsistent with evidence she gave in a 2005 affidavit in opposition to a motion for certificates of pending litigation. The plaintiff sought to cross-examine Sylvia on her 2010 affidavit; delays ensued. The motion was adjourned to January, 2011, but did not proceed.

[ 7 ] By early 2011 concerns had arisen about Sylvia’s competency. The parties attended before this Court on a scheduling appointment in February, 2011. The judge’s endorsement read, in part: “The alternative for Mr. Tayar if Mrs. Hyde is not produced shortly is to move to strike the affidavit.”

[ 8 ] By March, 2011 Sylvia’s counsel was taking the position that notwithstanding the concerns about her competency and her inability to undergo cross-examination, he intended to rely on her 2010 affidavit. On March 7, 2011, Mr. Simaan, Sylvia’s counsel, wrote to Mr. Tayar stating that “I can now confirm that Mrs. Hyde is no longer able to give me instructions on this case.”

[ 9 ] In April, 2011 the Court ordered the production of medical evidence concerning Sylvia’s mental condition; it was not produced until October, 2011. Sylvia died last fall. Nelly Zagdanski and Linda Darer were appointed as her estate trustees.

III. Positions of the parties

[ 10 ] Counsel informed me that the plaintiff initially had sought to bring this motion to strike at the same time as the hearing of the main motions for summary judgment. Sylvia objected to that procedure, contending that the motion to strike should be heard separately. As a result of that dispute, a judge of this court scheduled a separate hearing for the motion to strike.

[ 11 ] The plaintiff submitted that Sylvia’s 2010 affidavit ought to be struck out on the grounds that she was incompetent when she swore the affidavit, refused to attend for cross-examination on the affidavit, and now is not available for cross-examination. Sylvia’s estate trustees take the position that her 2010 affidavit should be admitted into evidence on the summary judgment motions, with any issues regarding its reliability, either because of her cognitive problems or failure to submit to cross-examination, to be dealt with as matters of the proper weight to be accorded to the affidavit, rather than its admissibility. The estates trustees contend that the affidavit is both necessary and reliable.

IV. Analysis

[ 12 ] As a general rule the proper time and place to request a court to strike out, in whole or in part, an affidavit filed in support of a motion or application is on the return of the main motion or application. I reach this conclusion for two reasons.

[ 13 ] First, issues of the admissibility of evidence or the weight to be given to evidence on a motion or application fall for determination by the judge hearing the motion or application. When one party seeks to determine legal rights relying only on a written record, such as those used on motions or applications, the hearing judge must act as the “gate-keeper” on issues of competency and admissibility that arise from the written record in the same manner as he or she would when sitting as a trial judge. Competency is a threshold issue in respect of the receipt of the evidence of a witness. As to any consideration of admissibility in light of other principles of evidence, where, as in this case, one party relies on the principled exception to the hearsay rule in support of the admissibility of an affidavit, the hearing judge may be required to take into account a variety of factors, possibly considering other evidence filed on the motion or application, to determine the issue of admissibility.

[ 14 ] Similarly, a motions or application judge must remain alive to issues about reliability and credibility arising from evidence filed on a motion or application. Sometimes the written record gives rise to disputes on material facts, and the Rules of Civil Procedure empower both a motions judge and application judge to direct a trial of issues in those circumstances. [2] On motions for summary judgment the “new” Rule 20 clearly reposes in the motions judge the power to weigh evidence and evaluate the credibility of a deponent. [3]

[ 15 ] In light of the duty of the motions or application judge to determine issues of competency and admissibility, as well as to ascertain whether disputed issues of credibility arise or, in the case of summary judgment motions, possibly determine issues of credibility, it is important that the hearing judge be asked to consider all evidentiary issues concerning competency, admissibility and weight. In my view it would be inappropriate for a judge who will not hear the motion to purport to bind the hearing judge by determining on a limited and incomplete record issues concerning the receipt or admissibility of evidence prior to the hearing of the motion or application.

[ 16 ] This view accords in large part with that expounded by the learned authors of The Law of Civil Procedure in Ontario, First Edition , where they write:

Typically, a motion to strike paragraphs from an affidavit is made at the same time as the primary motion. The general rule is that it is for the court that hears the motion to determine whether material should be struck from an affidavit, and a pre-emptive motion should be brought only in the clearest cases. [4]

I query whether the court should hold out the opportunity of bringing a pre-emptive motion to strike in “the clearest cases” because inevitably the clarity of a case depends on who is the beholder, and advocates paid to promote one side of a case are not dispassionate beholders.

[ 17 ] Which brings me to the second reason for stating that the proper time and place to bring a motion to strike out an affidavit is on the return of the main motion or application. It remains a fundamental objective of Ontario’s civil litigation system to secure the most expeditious and least expensive determination of every civil proceeding on its merits. Unnecessary interlocutory motions stand as a major impediment to securing that objective. At the same time judicial resources in this Court are scarce, so limited judicial time should be used, as much as possible, to determine the merits of a matter, not to put out unnecessary interlocutory brush fires.

[ 18 ] As I have written before, civil litigation in the Toronto Region is plagued with a disease – the cult of the interlocutory motion. The attitude of far too many in the local bar is why waste time litigating the merits of a matter when the shiny apple of an interlocutory motion beckons. I stress that this is a Toronto problem; most counsel who practice outside of this city have put in place co-operative mechanisms which minimize the resort to interlocutory motions.

[ 19 ] But, as long as the cult of the interlocutory motion continues to weave its spell in the Toronto Region, in my view the courts of this Region should not take any steps to encourage or condone the bringing of unnecessary interlocutory motions, especially on process-related matters. So, while the learned authors of The Law of Civil Procedure in Ontario would leave open the door a crack to pre-emptive motions to strike out affidavits in “the clearest cases”, in my view to open the door a crack would be to invite the local bar to drive the proverbial Mack truck through it. Although the process of civil litigation knows no absolutes and always requires some built-in flexibility, I think the better general rule is that pre-emptive motions to strike out affidavits, in whole or in part, should only be brought in the rarest and most extraordinary of cases, with the general rule applicable to 99.9% of the cases being that such motions should be brought before the judge hearing the main motion or application.

[ 20 ] In the present case the moving party actually wanted to argue the motion to strike at the return of the main motions but, as a result of the position taken by Sylvia, this pre-emptive motion was scheduled at the direction of the court. Given that the parties prepared for this motion at the direction of the court, I have heard their argument. I will reserve my decision. I seize myself of this matter and I will hear the main motions. I will release my decision on this motion at the start of the hearing on the main motions once I have had an opportunity to review all the materials for the main motions.

[ 21 ] Counsel should consult with a view of selecting a convenient date so that the main motions are heard no later than the end of April, 2012. The main motions have been outstanding for far too long; they must be argued in the next few months. If counsel cannot agree upon a date by February 10, 2012, they shall book a 9:30 appointment before me for the following week. Costs of today’s motion will be reserved to the hearing of the main motions.

D. M. Brown J.

Date : January 31, 2012

[1] The plaintiff has brought its motion under Rules 20 and 51.06.

[2] Rules of Civil Procedure , Rules 37.13(2)(b) and 38.10(1)(a).

[3] Rule 20.04(2.1). See also, Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764.

[4] Paul Perell and John Morden, The Law of Civil Procedure in Ontario, First Edition (Toronto: LexisNexis, 2010), page 560.