ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-1167SR
DATE: 20140422

BETWEEN:

Lisa Dickson
Plaintiff

– and –

Anna Di Michele and Fiorentine Di Michele
Defendants

Marc Lemieux and John Hammond, for the plaintiff

Daniel Dooley, for the defendants

HEARD: January 29, 2014

Bale J.: –

Introduction

[1] While delivering a pizza to the defendants, the plaintiff was injured in an incident involving the defendants’ dog Rocky. In this action, she claims damages which she says resulted from a “bite or attack” by a dog as those terms are used in the Dog Owners’ Liability Act. The defendants argue that the wound suffered by the plaintiff was a scratch and not a bite. They characterize Rocky’s actions as playful and deny that the incident amounted to an attack. They allege that the plaintiff caused or contributed to any damages that she may have suffered by, among other things, failing to heed “beware of the dog” signs posted on the property.

[2] The incident occurred in November of 2011. The action was commenced in October of 2012. Examinations for discovery were held in July of 2013. The plaintiff set the action down for trial in August of 2013.

[3] The plaintiff now moves under rule 48.04(1) for leave to bring this motion; and, if leave is granted, for summary judgment with respect to the issues of liability and contributory negligence, leaving the issue of damages for trial.

[4] For the reasons that follow, the request for leave is denied and the motion is dismissed.

Positions of the parties

[5] Pursuant to subrule 48.04(1), a party who sets an action down for trial is prohibited from initiating or continuing any motion or form of discovery (with certain defined exceptions), without leave of the court.

[6] The plaintiff’s position is that she was “forced” to set the action down for trial, when she did, by operation of subrule 76.09(1) which requires a plaintiff, in a simplified procedure action, to set the action down for trial within 180 days after a notice of intent to defend or statement of defence is filed. She says that it is difficult or impossible to conduct examinations for discovery and schedule a date for a summary judgment motion, within the 180 day period.

[7] The defendants’ position is that there has been no substantial or unexpected change in circumstances since the plaintiff set the action down for trial and that pursuant to the well-established test, leave to bring a motion for summary judgment should therefore be denied.

[8] With respect to the test for granting leave, the plaintiff does not argue that any new or unexpected change in circumstances has occurred since the action was set down for trial. Rather, she relies upon Fruitland Juices Inc. v. Custom Farm Service Inc.[^1] in which Quinn J. says that “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” and that “so long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial”, leave should be given.

[9] In response, the defendants rely upon the following passage from the decision of Then J. in Theodore Holdings Ltd. v. Anjay Ltd.[^2]

In my view leave should not be granted to the plaintiff to pursue a motion for summary judgment. The facts underlying the proposed motion have been known to the plaintiff before the matter was set down for trial and no new or unexpected change in circumstances have been shown since that date. While it is, of course, appropriate for the court to consider that a successful motion for summary judgment might obviate the need for a trial or substantially lessen the time required for trial, the plaintiff has not demonstrated either that the motion for summary judgment will likely be successful or that such a motion will be dispositive as it is agreed that the issue of the plaintiff's damages will remain outstanding. In circumstances where this action has been on the trial list for almost one year and, where it is not unreasonable to suppose that the matter will proceed to trial in the not too distant future, it is not, in my view, appropriate to bring a motion for summary judgment at this late date.

Analysis

[10] In my view, whether there is a substantial or unexpected change in circumstances or not, when asked to grant leave under subrule 48.04(1) to bring a motion for summary judgment, the court should consider whether the proposed motion is likely to provide a “proportionate, more expeditious and less expensive means to achieve a just result than going to trial.”[^3] In most cases, this would include some consideration of the likelihood of success.

[11] I do not accept the plaintiff’s argument that she was “forced” to set the action down when she did. The action was not in imminent danger of dismissal and there was no indication that the defendants would seek a dismissal on the grounds of delay. In fact, the defendants’ position was to the contrary: they objected to the filing of the notice of readiness for pre-trial conference on the grounds that the case was not ready for pre-trial and that no settlement discussion had been held as required by rule 76.08. The time for setting the action down could easily have been extended on consent.

[12] Rule 20.01 provides that a plaintiff may move for summary judgment “on all or part of the claim in the statement of claim” and that a defendant may move for summary judgment “dismissing all or part of the claim in the statement of claim.”

[13] Rule 20.04(2) provides that summary judgment shall be granted if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” Of note, the rule does not provide that summary judgment is available where there is an issue not requiring a trial but rather, only where there are no issues requiring a trial “with respect to a claim or defence.” Accordingly, the summary judgment procedure is only available for the determination of an issue or issues where the determination of those issues would be dispositive with respect to a claim or defence.

[14] In this case, the order requested by the plaintiff would not be a “judgment”. There is no claim or defence in respect of which it can be said that there is no genuine issue requiring a trial. The plaintiff has only one claim (the claim for damages arising from the incident involving the defendants’ dog) and she acknowledges that there is a genuine issue requiring a trial with respect to that claim (the issue of damages). With respect to her request that summary judgment be granted on the issue of contributory negligence, it goes without saying that the apportionment of fault cannot be determined except in the context of a determination of the defendants’ liability to the plaintiff.

[15] What the plaintiff is, in effect, asking the court to do is to bifurcate the proceeding by ordering separate hearings on the issues of liability and damages. In considering whether a bifurcation of a proceeding is something that may be ordered on a motion for summary judgment, the court must consider rule 6.1.01 which came into effect at the same time as the 2010 amendments to the summary judgment rules. Under rule 6.1.01, “with the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.” In this case, the plaintiff does not have the defendants’ consent.

[16] This issue was addressed by D.M. Brown J. in George Weston Ltd. v. Domtar Inc.[^4] where he made the following observation:

Rule 20.01 authorizes a motion for summary judgment on “part of the claim in the statement of claim”. Rule 6.1.01 addresses when separate hearings may be held on “issues”. As I have read [the moving party’s] proposed notice of motion, it conflates “issues” with “claims”.

[17] The plaintiff claims psychological damages, including post-traumatic stress disorder, accompanied by nightmares. Counsel for the defendant wishes to challenge the plaintiff’s position that she suffered trauma as a result of a frightening dog attack. This being the case, the evidence of the incident itself, upon which a finding of liability would be based, would need to be explored again at trial for the purpose of determining damages.

[18] The action has already proceeded through documentary and oral discoveries. On the date that this motion was heard, a pre-trial conference was only a couple of weeks away and the action is scheduled for trial in May of this year.

[19] I do not see any material savings resulting from the proposed summary judgment motion. More likely, even if successful, the motion would increase the overall costs of the proceeding.

[20] The defendants argue that in the circumstances of this case, a summary trial would be the preferred procedure. I agree. The plaintiff argues that a summary trial would not be appropriate because there are complicated issues of damages and the times provided under rule 76.12 for examinations and argument would be insufficient. This argument ignores subrule 76.12(2) which provides that the trial judge may extend the times provided in subrule 76.12(1).

[21] For the reasons given, I find that in this case, the proposed motion for summary judgment would not provide a proportionate, more expeditious or less expensive means to achieve a just result than a trial. The request for leave to bring the motion is therefore denied.

Costs

[22] The defendants request costs on a substantial indemnity basis. However, despite the result, I cannot say that the plaintiff acted unreasonably or in bad faith. Costs will therefore be fixed on a partial indemnity basis in the amount of $5,000.

[23] Under rule 57.03, the costs of a contested motion are ordinarily to be paid within 30 days. However, in this case, based upon information relating to the plaintiff’s circumstances contained in the motion record and the fact that a trial of the action is imminent, I order that the costs be payable by the plaintiff to the defendants in any event of the cause.

“Bale J.”

Released: April 22, 2014

[^1]: 2012 ONSC 4902 at para. 28.

[^2]: (1993), 18 C.P.C. (3d) 160 at para. 16, as quoted by Pollak J. in Canadian Gasket & Supply Inc. v. Industrial Gasket & Shim Co., [2009] O.J. No. 3913, 2009 CarswellOnt 5684 at para. 17.

[^3]: The goals of a summary judgment motion as articulated in Hryniak v. Mauldin, 2014 SCC 7 at para. 4.

[^4]: 2012 ONSC 5001 at para. 129.