ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-CV-411183CP
DATE: 20140408
BETWEEN:
ELDON FEHR, ANGELA WATTERS, GAETAN LAURIER, LESLIE MICHAEL LUCAS, JAMES PATRICK O’HARA, REBECCA JEAN CLARK, AND LLOYD SHAUN CLARK
Plaintiffs
– and –
SUN LIFE ASSURANCE COMPANY OF CANADA
Defendant
James C. Orr and Megan B. McPhee, for the Plaintiffs
F. Paul Morrison and Glynnis P. Burt, for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: March 28, 2014
PERELL, J.
REASONS FOR DECISION
1. Directions for Hearings in a Proposed Class Action
[1] In September 2010, Eldon Fehr, Angela Watters, Gaetan Laurier, Leslie Michael Lucas, James Patrick O’Hara, Rebecca Jean Clark, and Lloyd Shaun Clark commenced a proposed class action under the Class Proceedings Act, 1992,[1] against Sun Life Assurance Company of Canada.
[2] Almost three years later, at a case conference in the summer of 2013, I scheduled the certification hearing and any summary judgment motions by either party for eight days in June 2014.
[3] In the fall of 2013, only the Defendant, Sun Life, decided to bring a summary judgment motion. It delivered its evidence for the motion, but it did not deliver its voluminous 55-page Notice of Motion until the end of February, 2014.
[4] On March 28, 2014, at a case conference, I cancelled the hearing of the Plaintiffs’ certification motion and of the Defendant’s summary judgment motion, and I made the following direction:
This is a case conference to consider the scheduling and the procedure for the scheduled certification motion and the defendant’s summary judgment motion. The procedural landscape has changed in this action given the Supreme Court of Canada’s judgment about summary judgment and the particularity of the recently served motion for summary judgment, the evidence having been delivered earlier. I am satisfied that the plaintiffs should be provided with an opportunity to file responding material, and I am considering whether there should be additional documentary disclosure from the defendants. In any event, it appears that the timetable for the delivery of motion materials and documents, cross-examinations, and the hearing of the motion must be revised and new directions given. Accordingly, I am cancelling the current timetable and will be rescheduling the motions in a framework to be decided. I am reserving judgment on the further directions and will convene a case conference to detail the timetable.
[5] For the reasons that follow, I make the following new directions for the hearings of the Plaintiffs’ certification motion and the Defendant’s summary judgment motion in this proposed class action:
• The hearing of the Plaintiffs’ certification motion and of the Defendant’s summary judgment motion shall be scheduled to be heard together.
• The Defendant shall have 10 days from the release of these Reasons for Decision to deliver a revised Notice of Motion for summary judgment, as prescribed below.
• The Defendant’s summary judgment motion shall be restricted to requesting an order dismissing the claims of Mr. Fehr, Ms. Watters, Mr. Laurier, Mr. Lucas, Mr. O’Hara, Ms. Clark, and Mr. Clark respectively on the basis that there is no genuine issue requiring a trial because their claims are statute-barred having been commenced after the expiry of the applicable limitation period.
• The Plaintiffs’ shall have 60 days from the release of these Reasons for Decision to deliver any responding material for the summary judgment motion.
• The Plaintiffs shall not be permitted to bring a cross-motion for summary judgment.
• The Defendants shall have 90 days from the release of these Reasons for Decision to deliver any reply material for the summary judgment motion.
• Neither party is required to deliver an affidavit of documents.
• If a party voluntarily delivers an affidavit of documents, there shall be no motion for a further and better affidavit of documents and the production of documents shall be an aspect of the cross-examinations of deponents or witnesses for the certification and summary judgment motions.
• After 180 days from the Release of these Reasons for Decision, either party may convene a case conference for the purpose of establishing a timetable for the completion of cross-examinations, refusals motions, the exchange of factums, and the date for the hearing of the certification motion and of the summary judgment motion.
• Any examinations for the certification motion and for the summary judgment motion shall be restricted to the issues to be determined at the certification motion and the summary judgment motion respectively.
• These directions may be varied in accordance with the exigencies of the case, but any variance shall require court approval.
[6] The purport of these directions is that both the Plaintiffs’ certification motion and a focused summary judgment by the Defendant shall proceed together.
2. The Request for a Further and Better Affidavit of Documents Before the Summary Judgment Motion
[7] The Defendant’s proposed June 2014 summary judgment motion was designed primarily to show that each of the Plaintiffs’ claims is statute-barred as untimely.
[8] However, the June 2014 summary judgment motion also included in its lengthy Notice of Motion the alternative submission that the Plaintiffs have no claim at all on the facts alleged. In other words, the proposed summary judgment motion advanced both a technical defence and also a substantive merits-based defence to the individual Plaintiffs’ claims.
[9] At two recent case conferences, the first a teleconference on March 18, 2014 and the second a conference in court on March 28, 2014, the Plaintiffs histrionically submitted that it would not be procedurally fair or just for the court to permit a summary judgment motion to go forward that would determine the substantive rights of all class members without the delivery of a further and better affidavit of documents from the Defendant.
[10] The Plaintiffs submitted that it was fundamentally unfair to extinguish the proposed Class Members claims on the basis of the Defendant’s meagre and disproportionate production.
[11] Relying on the Court of Appeal’s 1996 decision in Bank of Montreal v. Negin[2] and several other cases that I shall discuss below, the Plaintiffs submitted that they had an absolute right to have an affidavit of documents from the Defendant so that they could put their best foot forward in a summary judgment motion that would determine the fate of the claim of over 230,000 proposed Class Members.
[12] At the March 28, 2014 case conference, on short notice, the Plaintiffs delivered a Notice of Motion for a further and better affidavit of documents from the Defendant and for directions about the scheduling of the pending motions.
[13] The Plaintiffs’ submission of procedural unfairness was incorrect for four reasons.
[14] First, it is not the case that the Defendant’s summary judgment motion will determine the fate of the claims of 230,000 proposed Class Members. The Defendant’s motion is focused on the proposed representative plaintiffs.
[15] Second, it is not the case that the Plaintiffs have an absolute right to a further and better affidavit of documents.
[16] Third, there is no good reason to order that a further and better affidavit of documents be delivered before the summary judgment motion pursuant to the court’s authority under s. 12 of the Class Proceedings Act, 1992 to determine the conduct of the proposed class proceeding. I note here that s. 12 states:
Court may determine conduct of proceeding
- The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.
[17] Fourth, the Plaintiffs’ reliance on Bank of Montreal v. Negin, supra is also wrong.
[18] While the Defendant’s summary judgment motion - if successful - will undoubtedly dispirit the proposed Class Members and may mean that one or more of them will have to step up to replace their fallen compatriots as a possible representative plaintiff, the Defendant cannot achieve a binding determination against putative Class Members through a pre-certification summary judgment motion. The most that the Defendant can achieve is a judgment against one or more of the seven proposed representative plaintiffs.
[19] Given that the action has not been certified as a class proceeding, the Defendant’s summary judgment motion is not based on any certified common issue. A judgment on a common issue is binding on Class Members pursuant to the certification order, and the binding effect of the judgment on the common issues arises from s. 27 (3) of the Class Proceedings Act, 1992, which states:
27 (3) A judgment on common issues of a class or subclass binds every class member who has not opted out of the class proceeding, but only to the extent that the judgment determines common issues that,
(a) are set out in the certification order;
(b) relate to claims or defences described in the certification order; and
(c) relate to relief sought by or from the class or subclass as stated in the certification order.
[20] Putative class members are not class members. In the case at bar, if the Defendant wishes to achieve a judgment binding on the putative Class Members, it would have to consent or succumb to the certification of the action as a class proceeding. Thus, the Plaintiffs’ exaggerated submission that the 230,000 putative Class Members’ claims were at substantive risk is simply wrong.
[21] As noted above, the Plaintiffs’ reliance on Bank of Montreal v. Negin, supra is wrong, and the Plaintiffs are wrong in submitting that they need a further and better affidavit or documents in the circumstances of the case at bar.
[22] Bank of Montreal v. Negin, which was not a class action, was a case decided at a time when the Rules of Civil Procedure automatically required the delivery of an affidavit of documents after the close of pleadings. The automatic delivery of an affidavit of documents in no longer the case under the subsequently amended Rules of Civil Procedure.
[23] Formerly, the affidavit of documents was delivered within 10 days after the close of pleadings. Rule 30.03(1) no longer specifies the timing for the delivery of the affidavit of documents and instead Rule 29.1 sets out the requirement of a discovery plan. Under rule 29.1.03(2), “[t]he discovery plan shall be agreed to before the earlier of, (a) 60 days after the close of pleadings or such longer period as the parties may agree to; and (b) attempting to obtain the evidence.” The parties and the court decide when an affidavit of documents is to be delivered.
[24] It may be noted that under the current Rules, under rule 20.05(2), if the summary judgment motion is refused or granted only in part and the action is ordered to proceed to trial, the court has the authority to schedule; to give directions; and to impose terms. Rule 20.05(2)(a) states that the court may order that each party deliver, within a specified time, an affidavit of documents in accordance with the court’s directions. This rule, in effect, acknowledges that an affidavit of documents is not a prerequisite for a summary judgment motion but may follow an unsuccessful or partially unsuccessful summary judgment motion.[3]
[25] Further, it may also be noted that for class actions, an affidavit of documents is uncommon before the certification motion, for the obvious reason that the scope of documentary discovery will depend upon what questions, if any, are certified at the certification motion.
[26] In the case at bar, at the March 28, 2014 case conference, the Plaintiffs conceded that the affidavit of documents would not have been an issue but for the Defendant’s summary judgment motion. They also acknowledged that the affidavit of documents was not necessary for the purposes of the certification motion, which is procedural in nature and not an exploration of the merits of the Class Members’ claims.
[27] Bank of Montreal v. Negin was an appeal by the defendants in actions brought by the Bank of Montreal. In that case, on the appeal of the summary judgment, the defendants submitted that the bank’s motion for summary judgment ought to have been dismissed because the bank had not served an affidavit of documents before bringing its motion.
[28] This ground of appeal was rejected by the Court of Appeal because the appellants had all the documents they needed to resist the bank’s motion, but Justice McKinlay did agree with the appellants’ submission that responding parties to a motion for summary judgment should not be deprived of information to which they were entitled under the Rules of Civil Procedure and information that they needed to show that there was a genuine issue for trial. She stated at paragraph 3 of her judgment for the Court:
- On the first issue, the motions judge stated that the only reason for the respondents' wishing to have the affidavit of documents was to buttress or substantiate their affidavits on the motion for summary judgment, and that this is not appropriate on a summary judgment motion. I do not agree with that, as a general proposition. Important evidence is often only in the possession of the party moving for summary judgment. If the responding party were denied the opportunity of reviewing relevant documents in the possession of an opposing party before examination on affidavits to be used on a motion for summary judgment, he would be deprived of information to which he is entitled under the Rules of Civil Procedure. In addition, it would mean that on a motion for summary judgment the responding party is not entitled to know the full evidence on which the opposing party bases its case. In this case, however, all relevant documents were before the court.
[29] In the case at bar, unlike the situation in Bank of Montreal v. Negin, there is no entitlement under the Rules of Civil Procedure at this juncture of the action for an affidavit of documents, but, like the situation in Bank of Montreal v. Negin, in the case at bar, given the precise focus of the Defendant’s motion that targets only Messrs. Fehr, Laurier, Lucas, O’Hara, Clark and Mesdames Watters and Clark, it seems that the Plaintiffs have all the documents on which Sun Life bases its case. If there is anything relevant missing for the summary judgment motion, the Plaintiffs have the recourse of appropriate questioning by cross-examining the Defendant’s deponents or witnesses for the certification motion or for the summary judgment motion. There is no reason to think that the Plaintiffs will be deprived of the documents they need to put their best foot forward in resisting the Defendant’s summary judgment motion.
(Decision continues with remaining sections exactly as in the source, including paragraphs [30]–[78], headings, footnotes, and closing text.)
Perell, J.
Released: April 8, 2014
COURT FILE NO.: 10-CV-411183CP
DATE: 20140408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELDON FEHR, ANGELA WATTERS, GAETAN LAURIER, LESLIE MICHAEL LUCAS, JAMES PATRICK O’HARA, REBECCA JEAN CLARK, AND LLOYD SHAUN CLARK
Plaintiffs
‑ and ‑
SUN LIFE ASSURANCE COMPANY OF CANADA
Defendant
REASONS FOR DECISION
Perell, J.
Released: April 8, 2014
[1] S.O. 1992, C.6.
[2] (1996), 31 O.R. (3d) 230 (C.A.).
[3] Markowa v. Adamson Cosmetic Facial Surgery Inc., 2012 ONSC 1012 at para. 226.
[4] 2010 ONSC 6688.
[5] 2011 ONSC 3529.
[6] R.S.O. 1990, c. L.12.
[7] [2002] O.J. No. 3742 (S.C.J.).
[8] 2014 SCC 7.
[9] (1999), 1999 14820 (ON SC), 45 O.R. (3d) 235 (Gen. Div.).
[10] [1999] O.J. No. 3272 (S.C.J.).
[11] 2012 ONSC 6285.
[12] 2013 ONSC 1216.
[13] 2014 ONSC 660.
[14] 2011 ONCA 764.
[15] [2003] O.J. No. 102 (S.C.J.), and [2004] O.J. No. 1367 (S.C.J.).
[16] [2003] O.J. No. 102 at para. 28 (S.C.J.).
[17] 2014 ONSC 2073.