Court File and Parties

CITATION: Griva v. Griva, 2016 ONSC 1820

COURT FILE NO.: CV-11-438440

DATE: 20160315

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SLOBODAN GRIVA

AND:

MILENA GRIVA

BEFORE: Mr. Justice Stephen Firestone

COUNSEL: R.M. Ben, for the Plaintiff

V. Krkachovski for the Defendant

HEARD: March 14, 2016

ENDORSEMENT

[1] This endorsement addresses the important question of whether the court can refuse, and if so under what circumstances, a party’s request to schedule a motion for summary judgment.

[2] For the reasons that follow, I have determined that based on the factual matrix of this particular case it would not be appropriate to schedule and allow to proceed the plaintiff’s requested motion for partial summary judgment.

Procedural history

[3] This is a tort action for the recovery of damages following serious injuries sustained by the plaintiff Slobodan Griva (“Slobodan”) in a motor vehicle collision which took place on January 19, 2011. At the time of the collision Slobodan was a sleeping passenger in a tractor trailer being driven by his wife, the defendant Milena Griva (“Milena”) which jackknifed and overturned in the state of Indiana.

[4] As a result of the collision the plaintiff’s injuries include incomplete tetraplegia, a spinal fracture at C4-C5, a herniated disc at C4-C-5, spastic myelopathy, and sphincter dysfunction.

[5] The statement of claim (“claim”) was issued on November 1, 2011. The statement of defence (“defence”) and jury notice were filed on April 16, 2013. Examinations for discovery have been completed. The trial record was filed by the plaintiff on February 10, 2014. Mediation has taken place. A trial date of October 3, 2016 is fixed for 20 days. The pre-trial conference is scheduled for June 29, 2016.

[6] On March 1, 2016 the plaintiff attended Civil Practice Court (“CPC”) before McEwen J. At that time he requested for the first time that a motion for partial summary judgment be scheduled.

[7] McEwen J. in his endorsement indicated that this motion had “unusual elements.” He did not assign a motion date but rather directed that a case conference take place before me. The case conference pursuant to Rule 50.13 took place before me on March 14, 2016.

Analysis

[8] Rule 50.13(1) stipulates that “[A] judge may at any time, on his or her own initiative or at a party’s request, direct that a case conference be held before a judge or a case management master.”

[9] Regarding the powers afforded to the judge or case management master at a case conference, Rule 50.13(6) provides that “[A]t the case conference, the judge or case management master may, if notice has been given and it is appropriate to do so or on consent parties,

(a) make a procedural order;

(b) convene a pre-trial conference;

(c) give directions; and

(d) in the case of a judge,

(i) make an order for interlocutory relief, or

(ii) convene a hearing [emphasis added].

[10] Rule 50.13 is to be read and applied in conjunction with Rule 1.05 which states “[W]hen making an order under these rules the court may impose such terms and give such directions as are just.”

[11] Plaintiff’s counsel advised that it seeks partial summary judgment regarding the issues of contributory negligence (the plaintiff’s alleged failure to use a harness restraint system) and non-pecuniary general damages. The defendant objects to the scheduling of this motion for partial summary judgment.

[12] Irrespective of whether this motion is scheduled, the case will be proceeding to trial on October 3, 2016 regarding the special damages claims being advanced. These include the plaintiff’s claims for past and future care costs and loss of income. Plaintiff’s counsel advised that given the plaintiff’s financial needs and the fact that an advance payment has not been made, he brings this motion in order to secure some financial compensation prior to trial. Such financial need is disputed by the defendant.

[13] In Hryniak v. Mauldin, 2014 SCC 7, Justice Karakatsanis clarified the scope of the court’s power on a motion for directions, which, in my view, includes all directions given and procedural orders made at a case conference ordered by the court on its own initiative under rules 1.05 and 50.13.

[14] At para 72, Justice Karakatsanis states:

72 I agree with the Court of Appeal (at paras. 58 and 258) that a motion for directions also provides the responding party with the opportunity to seek an order to stay or dismiss a premature or improper motion for summary judgment. This may be appropriate to challenge lengthy, complex motions, particularly on the basis that they would not sufficiently advance the litigation, or serve the principles of proportionality, timeliness and affordability.

[15] In this case the requested motion for partial summary judgment will not resolve the damages issues in their entirety. The plaintiff’s other damages claims will still be proceeding to trial. Those additional damage claims are based on the same factual matrix and evidentiary record as the general damages claim for which the plaintiff now seeks partial summary judgment.

[16] In this case to allow some of the damages claims to be determined by way of summary judgment and others to proceed to trial would risk inconsistent factual findings and a duplication of evidence from not only the plaintiff but also from the many other experts who will give evidence both on this summary judgment motion and at trial regarding the injuries sustained and the effect of those injuries. A complete evidentiary record is necessary in order to properly assess the plaintiff’s claim for general non-pecuniary damages.

[17] In Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at para 33, the court confirmed that the motions judge must “assess the advisability of the summary judgment process in the context of the litigation as a whole.” In Hryniak the Supreme Court at para. 60 specifically stated that “`the interest of justice’ inquiry goes further and also considers the consequences of the motion in the context of litigation as a whole.”

[18] Given the Supreme Court’s pronouncement at para. 72 in Hryniak, these considerations are equally applicable to all procedural orders and directions made by the court at a case conference in exercising its gate-keeping role.

[19] I adopt the reasoning of Myers J. in 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982, where at para. 17 he states in part: “[W]here a party advances a small number of discrete issues that may resolve the entire case, it is much easier to conclude that a thorough investigation of those issues may be the most proportional process even though the issues may be complex or have some facts in dispute.” At para. 59 of Hryniak, Justice Karakatsanis wrote: “[W]hat is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.”

[20] Given that the trial of this matter is fixed for October 3, 2016 it would not serve the principles of “proportionality, timeliness and affordability” to now, shortly before trial, schedule such a motion for partial summary judgment; especially because that, given the complexity of the issues, the judge hearing the motion would likely reserve his or her decision.

[21] In addition, Rule 48.04 (1) provides that “… [a]ny party who has set an action down for trial and any party who has consented to the action being placed on the trial list shall not initiate or continue any motion or form of discovery without leave of the court.” The plaintiff set this matter down for trial on February 10, 2014.

[22] For the reasons given it would not serve the principles of proportionality, timeliness and affordability to schedule the requested motion for partial summary judgment.

Firestone J.

Date: March 15, 2016