SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-58702

DATE: August 19th, 2014

RE: Konga v. Konga

BEFORE: MASTER MACLEOD

COUNSEL:
Golsa Ghamari for the Plaintiff, Moving Party

Andrew Lenz for the Defendant, Responding Party

ENDORSEMENT

[1] This motion for summary judgment was before Justice Warkentin on June 24th, 2014 and she adjourned it to my list today to be spoken to. As was clear from her endorsement there were issues concerning the record that needed to be addressed and whether the motion should proceed before a master.

[2] In the interim the Plaintiff served an amended motion record and the Defendant served additional responding material. The responding motion record had been sent to the wrong address in the correct building and it did not reach the counsel for the plaintiff until yesterday at which time she determined she needed to cross examine. Counsel for the defendant was not aware of this fact and had been preparing to argue the motion today or at least to speak to it. In fact he believed the motion had been confirmed in accordance with the draft confirmation form he had been sent by opposing counsel.

[3] Counsel for the moving party did not in fact confirm the motion and accordingly it was struck from the list. The fact that it was not confirmed was partly inadvertence because Ms. Ghamari was not conscious of the relatively new requirement to confirm a motion three days before the hearing date. (Rule 37.10.1). Another factor was the fact that the responding motion record had been sent to the wrong address and only arrived yesterday.

[4] Both parties appeared this morning and requested an order to add the matter to my list. I granted leave. Had I not done so then the mechanism to bring the motion back on would have been a notice of return of motion which is essentially the same thing as bringing a new motion. A motion that is struck from the list because it is not confirmed may also be treated as abandoned.

[5] The immediate question before the court is whether there should be a consequence for failing to follow Justice Warkentin’s direction and for permitting the motion to be struck from the list. Mr. Lenz asks that the motion be dismissed. The larger question is whether the motion should be rescheduled and whether time and energy should be invested in reconstituting the motion, cross examining on the affidavits and arguing the motion. Alternatively the court could direct the parties to proceed with production and discovery and set a timetable.

[6] The affidavit served by the defendant appears to acknowledge that there was a loan between the parties and is therefore at odds with his complete denial in the statement of defence. The affidavit goes on however to deny that the loan is payable due to a combination of setoffs and frustration. Clearly it is appropriate to explore this issue in cross examination but in reality the cross examination will cover exactly the same ground as the discovery. Moreover in a case such as this where the contractual relationship between these brothers is almost entirely oral it is extremely unlikely there would be summary judgment in advance of discovery.

[7] Both the Court of Appeal in Combined Air[1] and Justice Brown in George Westin[2] speak of the inherent jurisdiction of the court to defer or refuse to schedule a summary judgment motion where it is premature or disproportionate. In this case, given the issues of credibility, it is inefficient to order cross examination in advance of discovery and to further delay the action while running up more costs on a potentially futile summary judgment motion.

[8] Given that there have been two attempts to argue this motion that have failed to be dealt with on the merits for procedural reasons, it is more appropriate for the court in the exercise of its case management function to move the action forwards to resolution on the merits. A trial of this action could probably be completed in two or three days. In any event, production and discovery should be completed before there is any further attempt to devise a summary process or to analyze whether or not a trial can be shortened or avoided.

[9] Accordingly the court orders as follows:

a. The motion for summary judgment is dismissed as premature and for failure to follow the procedural direction of Justice Warkentin.

b. The defendant will be entitled to costs thrown away on the motion in any event of the cause. The amount of those wasted costs is to be agreed upon or fixed by the trial judge once it is apparent what if any utility there has been to the materials and work done in response to the motion.

c. The action will be case managed.

d. The parties shall exchange affidavits of documents by September 19th, 2014.

e. The parties shall complete discovery by October 17th, 2014 and unless otherwise agreed discovery is limited to one day.

f. The action shall be set down for trial before the end of this year.

g. I may be spoken to if the parties are of the view that mediation prior to setting the action down is not useful.

h. I may also be spoken to for an early trial date.

i. At the request of the defendant, when the trial takes place, it shall be designated bilingual and shall be before a bilingual judge.

Master MacLeod

[1] 2011 ONCA 764 @ para. 57

[2] 2012 ONSC 5001