PIXIU Solutions Inc. v. Canadian General-Tower Limited

[Indexed as: PIXIU Solutions Inc. v. Canadian General-Tower Ltd.]

Ontario Reports

Ontario Superior Court of Justice,

Sloan J.

March 13, 2015

125 O.R. (3d) 397 | 2015 ONSC 1669

Case Summary

Civil procedure — Summary judgment — Trial judge issuing judgment in favour of plaintiff in bifurcated action and ordering trial of issue of damages — Order for trial of issue not precluding defendant from bringing motion for summary judgment on damages issue.

The trial judge issued judgment in favour of the plaintiff at the liability stage of a bifurcated action and ordered a trial of the issue of damages. The defendant brought a motion for summary judgment, setting out what it believed the plaintiff's damages to be. The plaintiff brought a motion to dismiss or stay the summary judgment motion. [page398]

Held, the plaintiff's motion should be dismissed.

An order for the trial of an issue does not preclude either party from bringing a summary judgment motion.

Cases referred to

Burnie v. Canadian Cancer Society Manitoba Division, 1997 CanLII 22744 (MB CA), [1997] M.J. No. 137, [1997] 6 W.W.R. 344, 9 C.P.C. (4th) 54, 1997 CarswellMan 126, 70 A.C.W.S. (3d) 446 (Q.B.); Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 20, 75

MOTION by the plaintiff for an order dismissing or staying the defendant's summary judgment motion.

Wayne R. Bumstead, for plaintiff.

Michael Bordin, for defendant.

[1] SLOAN J.: — This action was bifurcated in 2013. The liability portion of the trial came before me and a judgment issued in favour of the plaintiff on December 10, 2013.

[2] Paragraphs 2 and 3 of my judgment provided as follows:

This court orders and adjudges that there be a trial of an issue to determine the amount of the plaintiff's damages suffered as a result of any of the defendants breaches of the supply agreement since January 1, 2013 and the plaintiff be granted judgment for those damages.

This court orders and adjudges that the parties exchange affidavits of documents and conduct examinations for discovery with respect to the assessment of the plaintiff's damages.

[4] The defendant has filed material in a summary judgment motion setting out how it has calculated what it believes the plaintiff's damages are.

[5] In response, the plaintiffs have a brought a motion seeking a dismissal of the summary judgment motion or, alternatively, that it be stayed on the basis, that since there is an order that there be a trial of an issue, the defendants cannot avail themselves of the summary judgment procedure.

[6] All of the cases referred to by the plaintiff arise out of disputed estates. In Ontario, the procedure for estate litigation is, for the main part, set out in Rule 75 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[7] Some, if not all, of the cases note that estate litigation commences by way of application as opposed to a statement of claim. [page399]

[8] Counsel advised the court that there were no Ontario Court of Appeal decisions that were on point.

[9] The plaintiff, however, points to the Manitoba Court of Appeal decision in Burnie v. Canadian Cancer Society Manitoba Division, 1997 CanLII 22744 (MB CA), [1997] M.J. No. 137, 1997 CarswellMan 126 (Q.B.).

[10] The court, at para. 13, stated, "But once a trial of an issue has been ordered, whether by consent or otherwise, it is no longer open to the respondents to move for summary judgment, even if rule 20 was interpreted to cover an action commenced by application as well as by a statement of claim."

[11] The court goes on, at para. 14, to state: "Once a trial of an issue has been ordered it is both too late in the day and inconsistent with the order directing an issue to be tried to move for summary judgment on the basis that there is no genuine wine issue for trial."

[12] In addition to the fact that all of the cases the court was referred to were estate litigation, many were decided before amendments to Rule 20 and all were decided before the Supreme Court of Canada 2014 decision in Hryniak v Maudlin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7.

[13] Every action, whether it is commenced by application or statement of claim, will ultimately end in a trial if it is not settled or disposed of in some other manner such as a motion for summary judgment.

[14] What makes an order for the trial of an issue, which is often done on consent, so different from an ordinary action that it would preclude either party from bringing a summary judgment motion?

[15] In this case, the parties essentially agreed that there would be two trials of two issues. Once the liability issue was disposed of, that left the damages issue to be decided.

[16] There was certainly no argument or thought put into the order, ordering the trial of an issue for damages, it simply flowed naturally once the plaintiff was successful on the liability portion of the action.

[17] There was certainly no argument or discussion at the time of the original order about whether or not the summary judgment procedure provided for in the Rules was available to either party.

[18] If the action had never been bifurcated, either party could have availed themselves of the summary judgment procedures. To say that the parties cannot avail themselves of the summary judgment procedures because the action was bifurcated and a somewhat routine and standard order was made for the trial of an issue makes little if any sense. [page400]

[19] In the Hyrniak decision, the Supreme Court of Canada stated the following at the following paragraphs [at paras. 2-5]:

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Summary judgment motions provide one such opportunity[.]

In my view, a trial is not required if the summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

[20] To accede to the plaintiff's argument, both parties would be precluded from using the summary judgment procedures even if at some date after the order was made the evidence in favour of one or the other was absolutely overwhelming.

[21] This would make no sense in the above-described circumstances. It could allow a better financed litigant to force the other party into a less than fair settlement because it could not afford to go to trial.

[22] I therefore dismiss the plaintiff's motion to dismiss or stay the defendant's summary judgment motion; however, under the circumstances of this case and the allegation that the plaintiff wishes to examine an executive of the defendant who has not filed an affidavit on the summary judgment motion, the parties shall comply with para. 3 of my previous judgment before the summary judgment motion can be heard.

[23] If the parties are unable to agree on costs, Mr. Bumstead shall forward his brief submissions on costs to me by March 20, 2015. Mr. Bordin shall forward his brief response to me by March 27, 2015. Mr. Bumstead shall then forward his reply, if any, to me by April 1, 2015. Cost submissions may be sent to my attention by e-mail, care of Kitchener.Superior.Court@ontario.ca

Motion dismissed.

End of Document