Malleck v. Batten, 2015 ONSC 887
COURT FILE NO.: CV-14-61266
DATE: 2015/03/03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Brandon Malleck and Lindsay Malleck (née Nelson), Plaintiffs
(Responding Parties)
AND:
John Batten and Jennifer Nesbitt, Defendants (Moving Parties)
BEFORE: Justice Patrick Smith
COUNSEL: Matthew Mayo, for Plaintiffs (Responding Parties)
Lindsey Park, for the Defendants (Moving Parties)
HEARD: January 29, 2015
ENDORSEMENT
Brief Factual Overview
[1] This is a motion brought by the plaintiffs for summary judgment.
[2] The action arises from a residential real estate transaction. The plaintiffs allege that the defendants breached the agreement of purchase and sale by failing to close the transaction thereby causing them to incur financial loss and damages.
[3] The Statement of Claim in this action was served and filed on July 16, 2014.
[4] The defendants represented themselves and filed a Statement of Defence.
[5] The plaintiffs maintain that the Statement of Defence fails to present a defence to any of the claims set out in the Statement of Claim and ask that summary judgment be granted in their favour.
[6] The defendants are now represented by legal counsel who advised the court that she was recently retained and intends to bring a motion to amend the Statement to Defence on the basis that the defendants have a valid defence to the action.
The Law
[7] Rule 20 was amended in 2010 to improve access to justice. The amendments change the summary judgment process from a narrow focus to dismiss unmeritorious claims or defences to their current status as a legitimate alternative means for adjudicating and resolving legal disputes.
[8] The current rules offer significant new tools to judges, which allow them to adjudicate more cases through summary judgment motions.
[9] The new powers in Rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences.
[10] Summary judgment motions must be granted whenever there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of a case on the motion. 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. (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Aronowicz v. Emtwo Properties Inc., 2010 ONCA 96, 98 O.R. (3d) 641)
[11] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before the Court, without using the new fact‑finding powers.
[12] Under Rule 20.04(2)(a), there will be no genuine issue requiring a trial if the summary judgment process provides the judge hearing the motion with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
[13] If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[14] On a summary judgment motion the moving party has the onus of first showing that there are no issues of material facts that constitute a triable issue. (Royal Bank of Canada v. Tie Domi Enterprises Ltd., 2011 ONSC 7297, 38 C.P.C. (7th) 317 [Royal Bank v. Domi])
[15] The responding party must then demonstrate to the Court that there is a genuine issue requiring a trial and “adduce evidence of material facts that require a trial in order to assess credibility, weigh evidence and draw factual inferences.” (Royal Bank v. Domi)
Analysis
[16] After reviewing the material contained in the motion records of the parties and the evidence before the Court, I am satisfied that there may be a number of triable issues present in this case and that the motion for summary judgment is premature.
[17] Counsel for the defendants has summarized some of possible triable issues as follows:
• whether any breaches by the defendants were waived by the plaintiffs;
• whether the plaintiffs voided the agreement of purchase and sale;
• whether any damages were suffered by the plaintiffs; and
• whether the plaintiffs failed to mitigate damages.
[18] Without the parties having exchanged affidavits of documents or engaged in questioning, the provisions of Rules 20.04(2.1) and (2.2) do not assist me in determining if a trial can be avoided and in making a fair and just determination of the case on its merits.
Ruling
[19] The plaintiffs’ motion is dismissed.
[20] The plaintiffs were unsuccessful; however, they cannot be faulted for bringing the motion based upon the woefully deficient Statement of Defence.
[21] Counsel for the defendants was recently retained and has indicated that she intends immediately to bring a motion to amend the Statement of Defence. Under the circumstances, I find that it would be unjust to award costs to either party.
Mr. Justice Patrick Smith
Date: March 3, 2015
COURT FILE NO.: CV-14-61266
DATE: 2015/03/03
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Brandon Malleck and Lindsay Malleck (née Nelson), Plaintiffs (Responding Parties)
AND
John Batten and Jennifer Nesbitt, Defendants (Moving Parties)
BEFORE: Mr. Justice Patrick Smith
COUNSEL: Matthew Mayo, for the Plaintiffs (Responding Parties)
Lindsey Park, for the Defendants (Moving Parties)
ENDORSEMENT
P. Smith J.
Released: March 3, 2015