ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-49796
DATE: 2013/19/02
BETWEEN:
Brian McGlynn
Plaintiff
– and –
OLG Slots Operations
Defendant
Brian McGlynn, Self-represented
Alexandre Proulx, for the Defendant
HEARD: January 25, 2013
REASONS FOR DECISION ON MOTION FOR SUMMARY JUDGMENT
KERSHMAN J.
Introduction
[1] This is a motion for summary judgment brought by the defendant against the plaintiff.
[2] The plaintiff issued a Statement of Claim dated November 2, 2010, which reads as follows:
- Plaintiff claims:
a. Damage in the amount of one million dollars.
b. Prejudgment interest. Post-judgment interest at rate allowed.
c. Costs of the action.
- Allegations.
a. The plaintiffs have claim against the defend[a]nts as the result of a robbery on the premises briefcase containing money sensitive documents stolen while playing on slot machine on going by the plaintiffs, bil[l]s of sale affidavi[t]s.
b. Plaintiff reported to OLG security and found nothing although was said it was seen sever[a]l times by different personal working in OLG entertainment center. Also Ottawa Police notified inci[dent] number 08-317515 November six 2008. Found nothing.
c. This theft incapacit[at]ed plaintiffs civil claims going forward.
d. Or[i]ginal documents: Statement cannot be replaced. Large amounts of money and sensitive documents stolen causing incapacita[t]ed pos[i]tion for the plaintiff.
Claiming an order as is just.
[3] Statement of Defence was filed by the defendant.
[4] No examinations for discovery were held. The defendant brought a motion for summary judgment. The motion was returnable before Master Roger on September 16, 2011. His endorsement reads in part as follows:
If the Plaintiff wishes to retain a lawyer, he shall do so by October 14, 2011.
Both parties to disclose their respective sworn affidavit of documents by October 31, 2011.
[5] A case conference by phone was scheduled for February 27, 2012, at 12:00 to confirm the motion.
[6] On February 27, 2012, an endorsement was made by Master Roger, part of which reads as follows:
The defendant has complied with the above but not the Plaintiff. The Plaintiff claims to have difficulties which he claims have prevented him from complying with the above. However, the Plaintiff also says that he could retain a lawyer within the next 30 days if given the opportunity. Consequently, we will adjourn the motion and the following is ordered:
The motion scheduled for the week of March 12 is adjourned.
By April 5, 2012, the Plaintiff shall take all required steps to retain counsel and communicate the identity of counsel to the Defendant.
A case conference is scheduled before me on May 10, 2012, at 15:30.
This endorsement is enforceable without further formality and is to be complied with by the parties unless varied by further order of this court.
[7] Further to the endorsement of February 27, 2012, a case conference was held before Master Roger on May 10, 2012. His endorsement is provided in full and reads as follows:
This case is not proceeding very quickly, having been issued in 2010. I made the following endorsements in the recent past, without much success as the Plaintiff has to date not complied:
Sept 16/11:
If the plaintiff wishes to retain a lawyer, he shall do so by October 14, 2011;
Both parties to disclose their respective sworn affidavit of documents by October 31, 2011;
By November 10, 2011, the defendant shall deliver its motion record, including all required affidavits for the upcoming motion for summary judgment;
Any required cross-examination of any of the parties is to be conducted in Ottawa prior to December 31, 2011 at a time convenient to the parties;
A half day motion for summary judgment is scheduled on the trial list for the week of March 12, 2012. The parties are to call the Ottawa court house trial coordinator the week before to confirm the actual date and time of the motion during that week;
A case conference by phone is scheduled for February 27, 2012 at 12:00 to confirm the Motion;
This endorsement will be emailed to Mr. Proulx who will forthwith mail it to the plaintiff. This endorsement is enforceable without any further formality and is to be complied with by the parties unless varied by further order of this court.
Feb 27/12:
The Defendant has complied with the above but not the Plaintiff. The Plaintiff claims to have difficulties which he claims have prevented him from complying with the above. However, the Plaintiff also says that he could retain a lawyer within the next 30 days if given the opportunity. Consequently, we will adjourn the motion and the following is ordered:
The motion scheduled for the week of March 12 is adjourned.
By April 5, 2012, the Plaintiff shall take all required steps to retain counsel and communicate the identity of counsel to the Defendant.
A case conference is scheduled before me on May 10, 2012, at 15:30.
This endorsement is enforceable without further formality and is to be complied with by the parties unless varied by further order of this court.
At today’s case conference I am advised by Mr. McGlynn that although he hasn’t yet retained a lawyer he is quite confident of retaining a lawyer if not next week then very shortly. He has not delivered any materials in response to the upcoming motion.
The Plaintiff has been provided with many opportunities to retain counsel and prepare documents to oppose the Defendant’s motion for summary judgment. At some point the Plaintiff must either focus some attention on this action or, if not interested, discontinue the action. Consequently, the following is ordered which is peremptory on the Plaintiff (meaning that it must be complied with by the Plaintiff).
The Court therefore orders as follows:
- The Plaintiff shall make all reasonable efforts to retain counsel if this is what he wishes to do but, in any event, the Plaintiff shall serve on the Defendant at the latest by August 24, 2012:
(a) his sworn affidavit of documents with a copy of all documents referred to therein; and
(b) any responding affidavit(s) he wishes to deliver in answer to the Defendant’s motion for summary judgment.
Any required cross-examination shall be scheduled by either party to occur at the latest by September 11, 2012.
The Defendant may deliver a supplementary motion record by September 4, 2012 to update the record as required.
A half-day motion for summary judgment is hereby scheduled before a judge on the trial list for Friday, October 5, 2012. The parties are required to call the trial coordinator the week before to confirm the date.
This endorsement is enforceable without any further formality and shall be complied with by the Plaintiff unless varied by further order of this court.
The above is made peremptory (which means that it must be complied with) on the Plaintiff because this matter has been adjourned on a number of times on request of the Plaintiff. The above provides more than ample time for the Plaintiff to do what he must to be ready for the motion (despite his stated difficulties) and this endorsement shall be provided to the motion judged if the Plaintiff ever seeks an adjournment for not being ready when the motion returns. The Plaintiff is hereby warned and put on notice that the motion judge might very well consider this endorsement when deciding the issue of any adjournment and that the motion may proceed even if the Plaintiff is not ready, considering the many and ample opportunities provided to the Plaintiff to be ready. The Plaintiff is as well warned that his continued failure to comply with court orders may result in his action being dismissed on that ground when the motion returns should he fail to comply yet again.
Costs of all case conferences are in the cause.
[8] The matter was before James J. on October 12, 2012. At that time the plaintiff requested an adjournment. The following endorsement was made:
Parties present. Plaintiff requests an adjournment. He says he is very ill, bleeding internally from diverticulitis and has a note from his doctor dated Oct. 11/12 indicating that the Plaintiff is unable to attend legal proceedings until Jan., 2013 because of medical reasons. Mr. Proulx for the defendant strongly opposes the request for the adjournment. He points to the fact that the Plaintiff has not filed responding material despite having months to do so and that time lines have been set 3 times by Master Roger and they have not been complied with. The Plaintiff has indicated he intends to retain counsel but does not, just as he has again today said he hopes to do so but still no one has agreed to act. Mr. Proulx notes that Master Roger has been emphatic in directing that the Plaintiff has an obligation to cooperate in moving this action forward. In the circumstances, I am reluctantly granting the requested adjournment to Jan 25/13 at 10 am for ½ day. Motion is peremptory to the Plaintiff. Responding material must be filed/served at least 10 days in advance of the hearing. I have attempted to emphasize to the Plaintiff that he has responsibilities as a litigant and that even if he is not well, he needs to take steps to secure representation. Costs of the adjournment and costs thrown away reserved to the motions judge.
[9] The motion for summary judgment was heard on January 25, 2013. At that time the plaintiff sought an adjournment. After hearing arguments on the adjournment, the court gave oral reasons as to why the adjournment was refused and why the motion would proceed on that day. After giving reasons for refusing the adjournment the plaintiff advised the court that he was ill and wanted to go to the hospital. Having considered the evidence in relation to the previous adjournments and the plaintiff’s previous history of health issues, the court advised the plaintiff that it would recess the matter briefly (5 to 10 minutes) and would return to hear the matter. After the brief recess, the matter proceeded. The plaintiff was not in attendance. He was paged three times but did not appear. The motion proceeded.
Issue: Should summary judgment be granted in favour of the defendant?
Defendant’s Position on the Motion for Summary Judgment
[10] The defendant argues that no evidence was provided by the plaintiff in response to the motion for summary judgment.
[11] The defendant argues that the plaintiff did not provide affidavit material or other evidence setting out specific facts showing that there was a genuine issue requiring a trial as required by Rule 20.02 of the Rules of Civil Procedure, R.R.O., Reg. 194 (the “Rules”). See: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.).
[12] The defendant further argues that Rule 20 permits a motions judge to decide the action on a summary judgment motion when the judge is satisfied that there is no factual or legal issue raised by the party that requires a trial for its fair and just resolution. See: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1.
[13] Lastly, the defendant argues that each side must put its best foot forward with respect to the existence or non-existence of the material issues to be tried. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. See: Combined Air, at para. 56.
Plaintiff’s Position on the Motion for Summary Judgment
[14] The plaintiff did not submit any affidavit materials in accordance with Rule 20.02(2).
[15] In terms of “other evidence” as set out in Rule 20.02(2), the plaintiff at the adjournment motion argued that there was an incident report which was written on by himself and/or his wife and that it was provided to the defendant. The court reviewed the court file and was unable to locate any such incident report. The defendant did acknowledge receiving it. Even if the document was received, it was not filed with the court and there is no affidavit of service of the same. The court has reviewed the document and finds that even if the document was properly submitted as “other evidence”, that evidence is not of such a magnitude as to respond to the motion for summary judgment to be considered “other evidence” to be relied upon by the plaintiff.
The Law
Test for Summary Judgment
[16] In Combined Air, the Court of Appeal for Ontario clarified the terms of the scope of the amended Rule 20 of the Rules, which govern motions for summary judgment. The court introduced a “full appreciation test” and provided guidance on the circumstances in which it would be appropriate for a court to resolve issues on a motion for summary judgment.
[17] At paras. 38-39, of Combined Air, the court stated: “[t]he 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. … This pivotal determination must be made on a case-by-case basis.”
[18] The court then laid out three types of cases that are amenable to summary judgment:
Where the parties agree that summary judgment should be used, although the court still has discretion to refuse summary judgment: at paras. 41 and 72.
Where claims or defences are shown to be without merit or have no chance of success. The motion judge must use the full appreciation test before deciding whether to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence: at paras. 42-43 and 73.
Where the trial process is not required in the “interests of justice”. This power arises from the phrase “genuine issue requiring a trial” combined with the enhanced powers under Rules 20.4(2.1) and 20.4(2.2). The motions judge is to assess whether he or she should exercise the powers to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence, or whether these powers should be exercised only at trial: at paras. 44-50 and 74.
[19] The full appreciation test is set out in Combined Air, at para. 50, as follows:
In 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? [Emphasis added.]
[20] The types of cases that would, and would not, be amenable to summary judgment were identified in Combined Air, at paras. 51 and 52:
In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.
In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge's direction by hearing oral evidence on discrete issues.
[21] At para. 53 of Combined Air, the court stated that the motions judge must assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case.
Motion for Summary Judgment: Application of the “Full Appreciation Test”
[22] On a motion for summary judgment, the judge must use the full appreciation test before deciding whether to weigh the evidence, evaluate credibility, or draw reasonable inferences from the evidence.
[23] In the court’s view, the full appreciation of the evidence and the issues can be achieved by way of summary judgment in this case. A trial is not required in the interests of justice.
[24] The court has reviewed the allegations in the Statement of Claim seeking damages of one million dollars and does not see any triable issue.
[25] The court finds that the claims as set out in the Statement of Claim are without merit. There are only bald statements which do not merit a trial.
[26] The plaintiff has not put its best foot forward with respect to the existence or non-existence of the material issues to be tried as required by Combined Air, at para. 56. The plaintiff is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial.
[27] There is no conflicting evidence before the court. The attributes of the trial process are not necessary to enable this court to fully appreciate the evidence and the issues in this case. The court can accurately weigh and draw inferences from the evidence without the benefit of a trial narrative, without the ability to hear the witnesses and without the assistance of counsel.
[28] In the court’s view, there do not appear to be any material facts in dispute. Even if there are facts in dispute, they do not reach the level of material facts in dispute and as such, do not raise a genuine issue necessitating a trial.
[29] The court finds that, based on the contents of the Statement of Claim and the lack of responding material to the motion for summary judgment, it is not in the interests of justice to require a trial.
[30] The defendant shall succeed on its motion for summary judgment. This court is satisfied that there are no genuine issues requiring a trial.
[31] The alternative claim as set out in the Amended Notice of Motion for an order dismissing action for delay will not be dealt with on this motion.
Costs
[32] The defendant was successful on the motion and should be entitled to its costs. The defendant submitted a Costs Outline seeking costs on a partial indemnity basis.
[33] The issue in the Statement of Claim was that the plaintiff was seeking one million dollars in damages alleging a lost wallet/briefcase on the defendant’s premises.
[34] The plaintiff’s conduct tended to lengthen unnecessarily the duration of the proceedings in that:
the plaintiff was in breach of three court orders;
the plaintiff failed on several occasions to respond to the defendant’s summary judgment motion; and
the plaintiff failed to provide evidence to support the allegations made in the statement of claim with any evidence.
[35] As such, the court fixes the defendant’s costs payable by the plaintiff on a partial indemnity bases at $3,750.00 inclusive of HST and disbursements. The plaintiff is required to pay these costs prior to taking any further steps in this litigation.
[36] The defendant shall be entitled to take out the order on this motion without having the plaintiff approve the order as to form and content.
Kershman J.
Released: February 19, 2013
COURT FILE NO.: CV-10-49796
DATE: 2013/19/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian McGlynn
Plaintiff
– and –
OLG Slots Operations
Defendant
REASONS FOR DECISION ON MOTION FOR SUMMARY JUDGMENT
Kershman J.
Released: February 19, 2013