Court File and Parties
COURT FILE NO.: CV-15-205-00 DATE: May 19, 2016
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ARNOLD HENNESSY HOLDINGS INCORPORATED Plaintiff/Moving Party
– and –
FLAPPERLESS INCORPORATED and PHILIP HENNESSY Defendants
Counsel: G. Edward Lloyd, for the Plaintiff/Moving Party S. Daniel Baldwin, for the Defendants
HEARD: May 19, 2016 at Kingston
BEFORE: MacLeod-Beliveau, J.
Endorsement on Motion
[1] The plaintiff brings this motion to set a timetable in relation to the plaintiff’s motion for summary judgment set to be heard Friday, September 2, 2016.
[2] The defendants refuse to agree to a timetable without having received the plaintiff’s Affidavit of Documents as set out in Rule 30.03. The defendants have voluntarily delivered their Affidavit of Documents. There is no discovery plan in place.
[3] The plaintiff relies on its motion materials and one case, Fehr v. Sun Life Assurance Company of Canada, 2014 ONSC 2183 by Perell, J. The defendants filed no materials whatsoever.
[4] This case is about the plaintiff’s claim against the defendants on account of a breach of contract and non-payment of royalties in relation to a licensing agreement between the parties for certain patents and technology of a toilet flushing mechanism invented by Arnold Hennessy, now deceased.
[5] Rule 30.03 used to require each party in an action to serve and file an Affidavit of Documents on the other within 10 days after the close of pleadings. After the January 1, 2010 amendments to the Rules, this requirement was removed. Now the parties are required to agree to a discovery plan as in Rule 29.
[6] The Supreme Court of Canada decision in Hryniak v. Mauldin 2014 SCC 7 has directed the courts to recognize that motions for summary judgment to determine an action are as valid as a traditional trial, and provide a more timely and cost effective solution for many litigants.
[7] Absent an Affidavit of Documents, I must consider if the defendants’ ability to put their best foot forward on the motion for summary judgment has been compromised. The claim is for breach of contract and royalty payments due and owing. I see nothing in the claim or materials filed that would compromise the defendants, given the Court’s broad powers in Rule 20. Fehr v. Sun Life Assurance Company of Canada stands for the proposition that there is no entitlement under the Rules for one party to seek an Affidavit of Documents from another in the face of a pending motion for summary judgment and in the absence of a discovery plan. (See 1870553 Ontario Inc. v. Kiwi Kraze Franchise Co. Ltd., 2015 ONSC 42, Emery J., para. 42).
[8] Justice Emery followed Fehr v. Sun Life Assurance Company of Canada and reiterated the new approach to motions for summary judgment (See paras. 32-41). I can see no valid reason on the facts of this case not to follow Fehr and 1870553 Ontario Inc. v. Kiwi Kraze Franchise Co. Ltd.
[9] In a result, the plaintiff will not be required to serve an Affidavit of Documents prior to the delivery of the responding materials to the motion for summary judgment.
[10] The following timetable for the motion for summary judgment to be heard Friday, September 2, 2016 shall be as follows:
- The defendants’ responding materials shall be served on or before June 10, 2016.
- Cross-examinations shall be held on or before July 8, 2016.
[11] This timetable allows time for the transcripts to be produced and factums of the parties to be prepared and served as provided for in the Rules. The court notes the defendants have had the plaintiff’s summary judgment materials since February 24, 2016.
[12] If the parties are unable to agree on costs, I will receive written submissions by June 10, 2016, after which time, I will determine costs based on the materials filed.
The Honourable Madam Justice Helen MacLeod-Beliveau
Released: May 19, 2016