ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

RE: Anjum Anjum and Musart Hayee, Plaintiffs

AND:

John Doe and State Farm Mutual Automobile Insurance Company, Defendants

BEFORE: F.L. Myers J.

HEARD: August 19, 2015

COUNSEL:
M. Owen for the plaintiffs
G. Nanua and D. Ioffe for the defendants

endorsement

Background

[1] The plaintiff Anjum was injured in a car accident. He suffered catastrophic injuries. The plaintiff claims that there was another vehicle involved in causing the accident. The other vehicle did not stop. The plaintiff cannot identify the other vehicle, its driver, or owner. He sued his own insurance company to access unidentified motorist coverage under his insurance policy. The defendant denies that there is evidence indicating the involvement of another vehicle; see the explication of this issue by Firestone J. in Azzopardi v. John Doe, 2014 ONSC 4685, O.J. No. 3767.

[2] The parties have already held examinations for discovery. A jury notice has been served. Trial is expected to take up to four to six weeks in light of the severity and complexity of the plaintiff’s injuries.

Civil Practice Court and Directions at a Case Conference

[3] The matter came before me in Civil Practice Court on July 3, 2015, to schedule a motion for summary judgment that was brought by the defendant insurer. The insurer wishes to argue that there is no serious issue requiring a trial on the issue of whether there was a second car involved in the plaintiff’s accident. At that time, the plaintiff’s counsel had either just delivered or had said that he would shortly be delivering expert evidence to show that the accident mechanics were consistent with the involvement of a second vehicle. The insurer had not yet determined whether it was going to respond with competing expert evidence of its own. I raised a concern at that time that if the parties did indeed adduce competing expert evidence, perhaps the motion would be best heard with the cross-examination of the experts conducted in open court. I directed that parties to re-attend at a Case Conference by telephone once they were further along the schedule and could better discuss logistics for the motion.

[4] The Case Conference was held by telephone on August 19, 2015 pursuant to Rules 1.05 and 50.13(1), (5), and (6) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 149. During the call, the insurer’s counsel advised that they do indeed intend to produce two experts’ reports for the motion. Both lawyers agreed that viva voce evidence would be required to resolve the issue. While the insurer’s counsel agreed that oral evidence of the plaintiff and the experts was required, he did not expressly seek a mini-trial or any relief other than the directions for hearing of the motion for summary judgment. The plaintiff submitted that if oral evidence is to be heard, then he is entitled to his full jury trial. He submitted that the case was not appropriate for summary judgment and the court should dismiss the insurer’s motion with costs and send the action to trial.

[5] For the reasons discussed below, I direct that motion for summary judgment be heard with viva voce evidence and in accordance with the other process and scheduling directions set out in the final section of these reasons.

Summary Judgment is Not Bifurcation under Rule 6.1

[6] In Kovach v. Linn, 2010 ONCA 126, O.J. No. 643, leave to appeal to SCC refused, 2010 37855 (SCC), the Court of Appeal confirmed that the Rules provide no jurisdiction to a judge to bifurcate a trial in which a jury notice has been served. Blair J.A. considered the terms of Rule 6.1.01 and found as follows at para. 33:

33. Rule 6.1.01 -- effective January 1, 2010 -- is the first time a rule speaking to bifurcation has been promulgated. It signals that, in the opinion of the Rules Committee at least, the bifurcation of a trial, jury or non-jury, is not generally a good idea unless the parties consent.

[7] At para. 37 of the decision, Blair J.A. continued:

37. In the absence of statutory or rules-based authority to do so, there are sound reasons in principle for adopting the view that a court does not have jurisdiction to bifurcate issues in a jury trial -- or, to put it in the words of Justice Morden in Elcano -- "that the power may not be exercised where one of the parties has served a jury notice" [Emphasis added.]

[8] In my view, summary judgment under Rule 20 is not a bifurcation of issues in a proceeding contemplated under Rule 6.1. There will not be two trials – one for liability and one for damages. If the court decides that there is no serious issue requiring a trial under Rule 20.04, then the parties never get to a full trial. Summary judgment is an alternative process that is provided by the Rules. Instead, there will be a motion at which a judge will decide if a summary disposition of the issue of liability is appropriate, fair, and just. If there is no liability, then the action will be over and there will be no trial at all. If liability is found summarily, then the case will go to trial on damages. If the judge is not prepared to resolve the matter summarily, then she will decide how to deal with the issues under Rule 20.05. Rule 6.1 considerations may well factor into that decision.

Summary Judgment is a Separate Dispute Resolution Procedure from a Trial

[9] It is important to stress that summary judgment is a separate process that is available when the interests of justice are satisfied. In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court held at para. 27 that “alternative models of adjudication are no less legitimate than the conventional trial” [emphasis added].

[10] At para. 43 of Hryniak, Karakatsanis J. is clear in stating that under the current Rules, as amended by the Rules Committee in 2010, “…a trial as not the default procedure.” She wrote at para. 49:

49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[11] In Rothwell v. Raes, 1988 4636 (ON SC), aff’d [1990] O.J. No. 2298 (C.A.), 1990 6610 (ON CA), Osler J. heard a 74 day trial concerning the plaintiff’s allegation that he contracted debilitating encephalitis from a DPT vaccine. Ultimately, Osler J. decided the case based on general causation. He found that, regardless of the plaintiff’s personal circumstances, the DPT vaccine simply does not cause encephalitis. In concluding his reasons, Osler J. lamented that the plaintiff and his family had to endure the stress and strain of a 74 day trial and bear the inordinate expense of submitting to the full measure of the civil litigation process, only to be found to fail due to the lack of causal relationship between the vaccine and the disease from which he suffered. How could the plaintiffs or the defendants have been prejudiced if the case had been resolved on that single issue without a 74 day trial trudge through the plaintiff’s painful circumstances?

[12] I pause to consider that the plaintiff may find himself deprived of a jury trial on liability by this decision. There is no “right” to a trial in civil matters: Baghbanbashi et al. v. Hassle Free Clinic et al., 2014 ONSC 5934 at para. 20. Parties’ entitlements to a trial or to a jury trial are subject to the terms of the statutes and rules under which these processes are created and governed. Hryniak determined that under Rule 20, where a judge is satisfied that it is in the interests of justice to proceed summarily for all or part of an action, proceeding in that manner better fulfills the goals of the civil justice system than does a slower and more expensive trial. It is interesting to observe that at para. 29 of Hryniak, Karakatsanis J. used an example involving a jury trial as an indication of a disproportionate process.

[13] In Hryniak, the Supreme Court of Canada expressly provided for judges to consider the timeliness and appropriateness of motions for summary judgment in advance of the hearing. At para. 70 of the decision, Karakatsanis J. allowed for directions to be given under Rule 1.05, where appropriate, as to the manner of hearing of the motion.[^1]

[14] Here, the parties accept that oral evidence is required to resolve the issue of whether there is a serious issue requiring a trial concerning whether an unidentified driver was involved in the accident. The issue is the process by which that evidence should be heard. There is no apparent overlap between the evidence concerning the plaintiff’s damages and the evidence of whether there is independent corroboration for the plaintiff’s claim that another car was involved in his accident.

[15] Examinations for discovery have already been held. Much of the feared costs associated with bifurcating lawsuits relates to duplicating preparation time and examination time on multiple examinations for discovery. That too is not an issue here.

[16] In his homage to the civil trial, George Weston Limited v. Domtar Inc., 2012 ONSC 5001, D.M. Brown J. (as he then was) discussed the relationship of summary judgment to bifurcation of actions under Rule 6, at para. 129:

129. Rule 20.01(1) 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 read Sobeys' proposed notice of motion, it conflates "issues" with "claims". Although I have followed counsel's short-hand in referring to the Contract/Fair Dealing Claim and the Accounting Claim, in fact both are simply facets of the single claim for damages pleaded in para. 1(a) of the amended statement of claim. If successful, the motion would not eliminate the plaintiffs' claims for damages; it only would reduce some of the factual issues underpinning those claims. Such an objective, in my view, is not consistent with the purpose of summary judgment motions and would risk expanding Rule 20 into a device drawing the court into multiple reviews of an underlying fact pattern. Further, a review of the amended statement of claim discloses that the Contract/Fair Dealing issues are connected factually with the accounting issues; not a surprising circumstance given the length of the history of dealings between the parties put in play in the action.

[17] At para. 127, Justice Brown rejected the argument that the issues for which summary judgment was sought were discrete from the rest of the issues in the action that was before him. He was plainly concerned that a grant of summary judgment might not dispose of the action and might not really affect the litigation viewed as a whole (the issue that was discussed later in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450). He also was labouring under the full appreciation test which was then the law prior to the Supreme Court requiring a culture shift in Hryniak.

[18] In this case, it seems to me that the issue of liability is discrete, factually and legally, from the issue of damages. Moreover, if summary judgment is determined on the motion, the result will be dispositive of all or part of the claim. The action will either be dismissed or allowed. The real issue will be whether the judge has confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. If the summary process allows the judge to make the necessary findings of fact and to apply the law to the facts, I fail to see how it will not also be proportionate, more expeditious, and more affordable than a full trial.

[19] In Yusuf v. Cooley, 2014 ONSC 6501, Justice Lederer declined to take an issue from a jury on summary judgment. At para. 27, he ruled,

27. It is generally understood that, within the boundaries set by the legislation, there is a right to have the facts and the damages decided and set by a jury. It may be that, where there is no genuine issue requiring a trial, it will be found that there is no need for a jury, but it cannot be that a mini-trial is to be used to have a factual issue, integral to an understanding of the case as a whole, decided by a judge with the remainder of the findings of fact being left to a jury. To my mind, such a hybrid procedure would be contrary to the interests of justice.

[20] In that case, Lederer J. was clear that it was not possible to understand the context of the case by looking at only one part of the narrative. If what he was saying in para. 27 is that an issue should not be decided summarily where what remains will then be a disembodied question without context or which would require the same evidence to be repeated before the jury, then I agree with his conclusion. I do not take him to be saying more. He expressly allows that summary judgment may lie where there is no genuine issue for trial even if a jury notice has been delivered. Liability in this case is not integral to understanding damages. Motor vehicle damages cases are often heard by juries without liability being a live issue.

[21] In discussing summary judgment under the amended provisions of Rule 20, the Court of Appeal has emphasized that hearing oral evidence on discrete, dispositive issues lends itself to proceeding summarily. In one of the cases heard with Hryniak, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at para. 104, the Court held:

104. The issue was narrow and discrete. The only question was whether the fact that CRSC was listed as a bidder along with other HVAC subcontractors was capable of proving that CRSC competed with Combined Air. That discrete issue could be resolved by hearing a limited number of witnesses (here, only one witness) testify for a relatively short period of time. The explanation was likely to have a significant impact on whether the summary judgment motion was granted.

[22] In my view therefore, this is a case in which a motion for summary judgment should be scheduled and in which the court should provide directions to help keep the process efficient, affordable, proportionate and fair to all parties.

Directions

[42] Accordingly, I make the following directions:

[a] The insurer’s motion for summary judgment will be heard by a judge for three (3) days on a date to be fixed by the Trial Coordinator for Short Trials;

[b] The defendant will deliver its experts’ reports by affidavits by September 30, 2015;

[c] The plaintiff may deliver reply reports by affidavits, limited to true reply evidence, by October 14, 2015;

[d] Written statements of argument of no more than 20 pages double spaced shall be exchanged and filed one week before the motion commences;

[e] At the hearing, the plaintiff Anjum shall give oral testimony. His examination-in-chief shall be limited to the issue of the cause of the accident and shall take no more than one hour. The cross-examination of the plaintiff Anjum shall take no more than three (3) hours;

[f] The evidence-in-chief of two experts from each side shall be given by affidavits which shall attest to exhibited reports that comply with Rule 53.03. Each expert may be examined in chief for 15 minutes as a warm-up. Cross-examination of each expert shall be limited to 3 hours;

[g] Argument will proceed immediately following the evidence and shall be limited to issues raised in the parties’ respective statements of law as filed;

[h] The judge hearing the motion maintains the discretion to add or delete witnesses and to amend any or all time limits set in this schedule;

[i] The parties may seek amendments to these directions by scheduling a further Case Conference with me. Any contact to my office shall be made in accordance with Rule 1.09;

[j] All materials to be delivered shall be served and filed electronically in accordance with The Guide Concerning e-Delivery of Documents in the Ontario Superior Court of Justice.[^3]

F.L. Myers J.

Date: September 3, 2015

[^1]: Rule 50.13 has recently been promulgated which allows for directions to be given at a Case Conference. The parties had notice from July 3, 2015, that the court was convening the Case Conference to consider whether oral evidence would be required at the motion.

[^2]: While I highlight counsels’ agreement, I do not ignore that neither sought expressly the directions that I grant. In fact, the plaintiff argues that he is entitled to a trial on all issues. I am exercising case management discretion based on the substance of their agreement rather than accepting the conclusions that the plaintiff draws.

[^3]: The guide to e-filing can be found on the Court’s website at http://www.ontariocourts.ca/scj/practice/practice-directions/edelivery-scj/