Court File and Parties
COURT FILE NO.: Redacted by Court MOTION HEARD: 20160928 REASONS RELEASED: 20161007
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
M.C. Plaintiff
- and-
A.G., T.S., HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and THE ATTORNEY GENERAL FOR ONTARIO Defendants
-and-
N.Inc Third Party
BEFORE: MASTER D. E. SHORT
COUNSEL: Gavin Tighe, for individual defendants (moving parties) Andrew Rogerson, Robert A. Rastorp, Jeremie Beitel, Nikhil Mukerji, student-at-law, for plaintiff (responding party)
REASONS RELEASED: October 7th, 2016,
Reasons for Decision
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
I. Background
[1] This is an action alleging malicious prosecution, emotional distress and employment termination related claims. It is presently scheduled for a jury trial in April.
[2] The plaintiff, originally of the Philippines, arrived in Canada from Taiwan to act as a live-in nanny for the individual defendants’ family on March 4, 2009. At the time their son was four years old.
[3] It is alleged that on or about March 9, 2009 his mother, the defendant A.G., witnessed the plaintiff touching the boy “in the groin area”. On March 10, 2009, the defendants terminated the plaintiff’s retainer as a nanny. The next day, the defendants reported their concerns to the police. The notice of motion filed on behalf of the individual defendants asserts in part:
“7. The police investigated the matter and, based on the results of their own investigation, charged C.O. with sexual assault contrary to section 271 of the Criminal Code;
The Crown proceeded to try M.C. on the above-mentioned charges;
On January 13, 2010, Justice Harper dismissed the criminal charges against M.C.;
On January 9, 2012, on the eve of the two-year limitation period [from the date of acquittal], M.C. commenced the within action against Her Majesty the Queen in Right of Ontario and the Attorney General for Ontario (collectively, the "Crown");
M.C. subsequently amended the statement of claim on or around February 27, 2012;
The amended claim against these Defendants pleads malicious prosecution and intentional infliction of mental suffering as well as alleged wrongful dismissal;”
[4] During her first fortnight in Canada the plaintiff was held in jail for 5 days before arrangements could be made for her to be released on bail.
[5] Now the interaction of various rules of civil procedure, case law and the Limitations Act, 2002 have generated a Byzantine maze which I will endeavour to properly unravel with a view to reaching the first goal of Rule 1.04, namely a just determination of this specific civil proceeding.
[6] This task is somewhat restricted by the need to deliver my decision on an urgent basis as two week jury trial is scheduled to proceed in April of 2017.
II. Defendants’ Motion
[7] The style of Cause reflects the two original Crown defendants. At an earlier point in time the plaintiff’s counsel (who also acted for the plaintiff in obtaining her acquittal) discontinued this action as against the Crown entities leaving only the parents as continuing defendants.
[8] Originally the defendant couple had different counsel who acted for them until after the plaintiff set the matter down for trial. Following that event the defendants’ present counsel was retained.
[9] The pretrial conference with respect to the April trial is scheduled for February.
[10] Counsel for the defendants now moves to have any motion heard for summary judgment with a view to expediting the resolution of this matter.
[11] Because of the impact of various Practice Directions on the involvement of Masters in pre-trial matters, the amended notice of motion seeks three different orders:
An order pursuant to Rule 48.04(1) of the Rules of Civil Procedure, granting leave to these Defendants to bring a motion for full summary judgment or, in the alternative, partial summary judgment to be scheduled at the first mutually available Civil Practice Court session;
An order pursuant to Rule 48.04(1) of the Rules of Civil Procedure, granting leave to these Defendants to bring a motion to amend their Statement of Defence;
An order pursuant to Rule 26.01 and 26.02 of the Rules of Civil Procedure, granting leave to amend the Statement of Defence of these Defendants …";[my emphasis]
[12] The sole amendment sought to the Statement of Defence is the addition of this paragraph:
“55. The defendants state that the plaintiff's claims in the amended statement of claim in regard to wrongful dismissal as set out, inter alia, in paragraph 8 of the Amended Statement of Claim and intentional and negligent infliction of mental and/or emotional suffering as set out, inter alia, in paragraph 20 and 21 of the Amended Statement of Claim are both statute-barred by the Limitations Act, 2002, S. 0. 2002, c. 24, Sched. B, as amended.”
[13] The initial matter to be canvased is whether leave under Rule 48 is even required in the specific factual matrix surrounding this motion.
III. Interpreting Rule 48.04
[14] Rule 48 (with my emphasis added) reads in part:
48.04(1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.
48.06 (1) A defended action shall be placed on the appropriate trial list by the registrar sixty days after the action is set down for trial or, if the consent in writing of every party other than the party who set the action down is filed earlier, on the date of filing.
[15] In this case, it is acknowledged that there was not a formal consent by previous counsel to the action being set down for trial. However, there was a spirit of cooperation with respect to the completion of the trial scheduling form by both sides. That does not constitute the specific consent to an immediate placement without the normal sixty day waiting period prescribed by the rule.
[16] I acknowledge this interpretation has not been universally adopted within our court. Cases seem to have regarded a consent to setting the matter down, as triggering a need for leave as a precondition of any further motions.
[17] In 2015, my colleague Master Muir carefully reviewed the current state of this area of the law in Arunasalam v. State Farm Mutual Automobile Insurance Co., 2015 ONSC 5235; 2015 CarswellOnt 13228; 257 A.C.W.S. (3d) 548; 78 C.P.C. (7th) 413.
[18] There he observed that there is a difference of opinion amongst the masters as to the interpretation of this rule. The more limiting interpretation is based upon the decision of Justice DiTomaso in Grainger (Litigation Guardian of) v. Grainger, 2009 CarswellOnt 1943 (SCJ). However the more recent jurisprudence would seem to support my view. In this respect there is further support from decisions of Justice Perell in Fromm v. Rajani, [2009] O.J. No. 3671 (SCJ) and the decision of Justice Stinson in Ananthamoorthy (Litigation Guardian of) v. Ellison, 2013 ONSC 340.
[19] In both of those latter situations, those justices held no leave was required to bring the motion but then refused to allow the motion for the actual relief sought.
[20] While my belief is that technically no leave is required, in light of the uncertainty as to the proper treatment of the actions of previous counsel I intend to address whether in those circumstances leave ought to be granted. Before dealing with that key issue I need to address some other contextual factors.
IV. Interpreting Rule 48.07
[21] Even if no leave is required, the first factor to be considered in carrying out my responsibilities as a Master is provided in Rule 48.07 which simply reads:
CONSEQUENCES OF ACTION BEING PLACED ON TRIAL LIST
48.07 Where an action is placed on a trial list,
(a) all parties shall be deemed to be ready for trial; and ….
(c) the trial shall proceed when the action is reached on the trial list unless a judge orders otherwise.
[22] I interpret this provision as requiring me to do nothing that would delay the trial, unless I have a clear mandate from a judge.
V. Motions to “the court”
[23] The judges of the Superior Court have an extremely heavy workload dealing with both civil and criminal matters. Understandably, they have determined that where the rules provide that a matter may be dealt with by “the court” those matters ought to be addressed in the Toronto area by Masters, such as myself.
[24] Effective July 1 of 2015, a Consolidated Practice Direction For Civil Actions, Applications, Motions, and Procedural Matters in the Toronto Region came into force. Paragraph 11 of that Practice Direction reads:
"11. Motions to be Heard by Masters. A master has jurisdiction to hear any motion in a civil proceeding except those specified rule 37.02(2). Masters' motions must be made to a master. Unless the relief requested in the motion is within the exclusive jurisdiction of a judge, a motion returnable by attendance or in writing must be made to "the Court" and heard by a master. Judges may refuse to hear any motion that is within the jurisdiction of a master."
[25] It is therefore not uncommon to see this standard form of endorsement in instances where a party seeks relief before a judge that is available “from the court.”:
“It is a policy of the Court that it is important that Masters' motions be heard by the masters. It is respectful to the Masters that their jurisdiction be preserved for them. It recognizes their expertise and efficiency. As importantly, adjourning motions to the proper court also prevents queue jumping and forum shopping.
I order that this matter be adjourned to be heard by a Master.”
[26] In light of the inconsistencies in interpreting Rule 48.01, it is consistent with the above directions that the defendants apparently moved before me for an order granting them leave to bring a motion for leave to bring a summary judgment motion, before a judge.
[27] However in the somewhat unique circumstances of this case, this strict adherence to jurisdictions has created additional potential delays. For example, when the parties appeared before me on the first return date of this motion, (which was served in June and was first returnable on August 16) it became clear that additional materials and positions were being asserted, to which the plaintiff wished to respond with appropriate and further materials.
[28] My endorsement of August 16, 2016 read in part:
“Adjourned to Wednesday, September 28 (half day)… This matter is fixed for trial… April 18, 2017. A motion for summary judgment is sought in interim. In circumstances, I am suggesting that Motion. Date should be obtained forthwith from Civil Practice Court, so as to preserve the trial date.”
[29] Apparently, an application was made to CPC on September 13, 2016 by counsel for the defendants together with a proposed timetable which would contemplate the motion being heard on December 19, 20 or 21 of this year.
[30] The presiding judge’s endorsement reads
“…request by the defendant to fix summary judgement date. Action has been set down for trial and trial date is fixed for April 18, 2017. 7 days. I therefore order a Chambers appointment per para 72 of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 to determine if this motion should be scheduled”
[31] Paragraph 72 of Hryniak v. Mauldin, infra referred to in the endorsement, provides as follows (with my emphasis added):
[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.
[32] Ten days later, on September 23rd. Counsel attended at 9:30 Case Management Conference. The resulting endorsement reads:
Counsel are attending before Master Short on September 28, 2016 to argue whether leave to bring summary judgment should be granted. As of today the first available SJ date is January 9. However, I do not set a SJ date today, given that Master Short, has not ruled, and there is concern about bringing a full day summary judgment motion in January with a pretrial scheduled for February, and a trial in April. Counsel should attend CPC court after Master Short’s decision.
[33] The unfortunate result is that nearly two months have been lost and the available time prior to the scheduled pre-trial has been markedly compressed.
[34] In such circumstances, these reasons are at best, abbreviated and delivered a week after the matter was argued. I would have wanted a more succinct and structured determination. However, inasmuch as I am not deciding the prime issue at this point, but rather only whether or not it ought to be permitted to be argued, they will have to suffice.
VI. Amendment to Pleading
[35] Rule 26 uses the word shall in considering amendments sought to pleadings. It reads:
GENERAL POWER OF COURT
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[36] Rule 26.02 further provides that, at the present stage of this action, a party may amend the party’s pleading, “with leave of the court”.
[37] The amendment seeks to assert that both the wrongful dismissal claim and intentional and negligent infliction of mental and/or emotional suffering are statute-barred by the Limitations Act since all those claims were first pleaded against the moving defendants more than two years prior to their being brought into the action.
[38] A master has the jurisdiction to allow the amendment sought. What is the appropriate test for leave in this case?
[39] I agree with the defendants’ counsel’s observation that general rule is that a court shall grant leave to amend pleadings at any stage of an action, unless prejudice would result that could not be compensated for by costs or an adjournment.
[40] Will raising a limitation defence at this stage give rise to undue prejudice?
[41] In Godoy v. 475920 Ontario Ltd., 2007 CarswellOnt 5850; [2007] W.D.F.L. 4410; 160 A.C.W.S. (3d) 899 Justice Lederer dealt with a request to amend to add a clear limitation defence on the eve of trial. His reasons commence:
“The law, in its efforts to be just, may not always seem to be fair. I fear that for the plaintiffs this is one of those times.”
[42] The Court of Appeal (at 2008 CarswellOnt 7156) upheld his decision to dismiss the action as statute barred by virtue of the eleventh hour amendment to plead an effective limitation period.
[43] The moving parties rely on this decision to assert in their factum that:
- As a matter of justice courts should not deprive a defendant of an affirmative defence, and accordingly they have permitted defendants to amend their pleadings to add the affirmative defence of a limitation period where doing so will dispose of a plaintiff's action.
[44] I am not asked to determine the consequence of the proposed defence. I am however guided by Justice Lederer’s desire to seek a just and fair result when granting leave.
[45] However I must also respect Rule 1.05 which addresses Orders on terms and with my emphasis provides that:
“When making an order under these rules the court may impose such terms and give such directions as are just.”
[46] I understand that the parties discussed the possibility of making such an amendment on consent, if costs relating to the preparation of the fresh Reply were offered. While that deal was never made, I am imposing as a first term of my making an Order permitting the amendment sought to the Statement of Defence that the Defendants pay $1500 to the plaintiff with respect to those anticipated costs flowing from the amendment.
[47] I am further referring to a judge (at a later stage in this matter) the question of the entitlement of the plaintiff to any additional cost claims flowing from the amendment in the event the plaintiff’s action is ultimately dismissed on a limitations ground, since the plaintiff has carried her case forward as far as she has, without any limitation concern being raised.
[48] Thus for the above reasons I am prepared to grant leave for the requested amendment to the defendants’ pleading. I now need to reflect upon the impact of the Limitations Act provisions with a view to assessing whether leave to bring Summary Judgment motions prior to trial, if required, ought to be granted. As well, I need to consider the appropriate term to impose with respect to consequences of the permitted amendments, even if leave is not required. That analysis begins with a consideration the applicable statutory provisions.
VII. Limitations Issues
[49] The Limitations Act, 2002 defines the “Basic Limitation Period”:
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. (my emphasis)
[50] The Limitations Act, 2002 addresses discoverability on these terms (with my emphasis added):
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[51] I find it difficult to contemplate a litigant in more unique “circumstances” than this plaintiff encountered at the outset of her time in Canada.
[52] Two days after this motion was argued before me, the Court of Appeal released its decision in Arcari v. Dawson, 2016 ONCA 715. There Hoy A.C.J.O., Lauwers and Benotto JJ.A. dealt with a case where the plaintiff pedestrian was injured when she was struck by a vehicle as she crossed the street. She sued the driver of the vehicle and later moved to add the respondent municipalities as defendants to the action. The motion judge dismissed her motion on the basis that her claim against the respondents was statute-barred.
[53] After the action was commenced the appellant hired a new lawyer. The appellate court’s endorsement notes:
“…When he attended at the accident scene, it was "obvious" to him, given what he asserted in oral argument to be his unique professional experience, that the design and safety features (or lack thereof) at the crosswalk were contributing factors to the 2009 accident. The appellant accordingly moved to add the respondents, the City of Kitchener and the Regional Municipality of Waterloo, as defendants.
[5] The motion judge observed that the appellant's expert "attended at the accident scene within one year where all of the design features or deficiencies were there to be seen, noted and reported or." The motion judge found that the respondents' alleged negligence "was as close to within the "actual knowledge" of the [appellant's] lawyer and engineer as it can come". In his view, it was not a case in which discoverability and due diligence could play a role in extending the limitation period. He concluded that the appellant ought to have known that an act or omission of one of the respondents had contributed to her injuries….”
[54] Following a review of the provisions of the Limitations Act that I have set out above, the court observes:
[9] When a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known of the matters described in clause 5(1 )(a) is a question of fact: Lima v. Moya, 2015 ONSC 324, at para. 76, affd on appeal 2015 ONSC 3605 (Div. Ct.), at para. 19.
[10] When a plaintiff's motion to add a defendant is opposed on the basis that her claim is statute-barred, the motion judge is entitled to assess the record to determine whether, as a question of fact, there is a reasonable explanation on proper evidence as to why she could not have discovered the claim through the exercise of reasonable diligence. If the plaintiff does not raise any credibility issue or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim through the exercise of reasonable diligence, the motion judge may deny the plaintiff's motion (Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648 (C.A.), at paras. 18, 19, 24).
[55] While the present motion does not relate to adding a defendant late, the addition of the limitation defence pleading raises a similar question as to discoverability.
[56] In rejecting the appellants arguments the court stated:
[14] There is no basis to interfere with the motion judge's finding of fact that the appellant ought to have known that an act or omission of one of the respondents had contributed to her injuries. …
[15] …. As is stated in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 2d ed. (Markham, Ont.: LexisNexis, 2014), at para. 2.284: "it is incumbent upon the plaintiff to lead some evidence of the steps he or she took to ascertain the identity of the responsible party and provide some explanation as to why the information was not obtainable with due diligence before the expiry of the limitations period." We also reject the appellant's submission that merely retaining an engineer was sufficient to discharge the due diligence responsibility and postpone the limitation period indefinitely.
[16] The appellant raised no credibility issue or issue of fact relevant to discoverability that would merit consideration on a summary judgment motion or at trial.
[57] In the present case the plaintiff seeks to assert such discoverability issues at a jury trial and not to have them addressed on a summary judgment motion at this stage.
[58] Of importance to my conclusion based upon the law as it presently stands is the Court of Appeal’s observation:
[17] Although a motion to add defendants is not a motion for summary judgment, the goal of "a fair process that results in just adjudication of disputes" that is "proportionate, timely and affordable" is relevant in this context as well: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28. It may well be that this court should interpret Pepper in light of Hryniak and re-evaluate the suggestion that Pepper sets a strong default rule in favour of committing the issue of discoverability to trial. We leave that matter for another day. [my emphasis]
[59] Such “another day” is not one that a Master on a motion such as this can create.
[60] One of the cases the defendant referred to in this regard was the decision in: Aletkina v. Hospital for Sick Children, 2014 ONSC 6263. There the court addressed an appeal from Master McAfee on a pleadings motion relating to the application of a Limitations Act period.
[61] In that case Justice D.L. Corbett sitting on the Divisional court observed:
[11] Ms Aletkina argues that the running of the limitation period was suspended to 2011 because of her mental illness. HSC argues that Ms Aletkina was not under a legal disability and thus the limitations period was not suspended and the proposed new claims are out of time.
[12] The Master took a good, hard look at Ms Aletkina's claim that she was under a legal disability that suspended the running of the limitations period. The voluminous materials filed on the motion establish clearly that Ms Aletkina does suffer from a mental illness, and one that has been described as "severe" by her treating psychiatrist. Nowhere in the volumes of material is there an opinion that this mental illness renders her under a legal disability. And while it may be true that Ms Aletkina was slow taking steps related to this litigation because of her mental health issues, receiving accommodation for health reasons is not the same thing as being unable to appreciate that she had the claims she now wishes to assert.
[62] Ultimately the court agreed with the master’s conclusion on the facts before her, observing:
The Master did not erroneously apply the test for summary judgment. Rather, the Master took a hard look at the evidence filed on the motion and concluded that there is no arguable basis that the trial judge could conclude that the running of the limitations period was suspended until 2011.
[63] In the present case I am not satisfied, based on the evidence before me, and the unusual circumstances of this case, that there is no possible argument that a complete consideration of all the available actual evidence might not lead to a determination that the limitation period, for at least some of the causes of action asserted, ran from a later point in time than the date of the acquittal.
[64] Much of the argument before me related to the tests to be applied in determining whether a claim for malicious prosecution could ever be established in this case. The defendants assert that based on the existing caselaw they are likely to succeed on the portion of the relief they seek, with respect to this cause of action.
[65] In Pate v. Galway-Cavendish (Township), 2011 ONCA 329; 280 O.A.C. 230; 342 D.L.R. (4th) 632; Ontario Court of Appeal considered the nature of the threshold for claims against individuals.
[66] The panel consisting of J.M. Simmons, E.A. Cronk and J.L. MacFarland JJ.A. addressed that area referring at para 27 of their reasons to the test for malicious prosecution as set out in Nelles v. Ontario, [1989] 2 S.C.R. 170 at pp. 192-93:
“There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:
(a) the proceedings must have been initiated by the defendant;
(b) the proceedings must have terminated in favour of the plaintiff;
(c) the absence of reasonable and probable cause; and
(d) malice, or a primary purpose other than that of carrying the law into effect.”
[67] Having regard to my ultimate conclusion much of that argument has been rendered moot at this stage as a result of my approach which has largely been guided by the decision in Hryniak.
VIII. Hryniak v. Mauldin
[68] In view of that conclusion, I turn to whether I ought to prevent the Defendant bringing the motions for summary judgment which they seek to bring. In considering the utility of such summary judgment motions, I need to be guided by a close reading of the guidance of Justice Karakatsanis in the Supreme Court of Canada’s seminal decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; [2014] S.C.J. No. 7; 2014 SCC 7.
[69] In determining the general principles to be followed with respect to summary judgment, the court began with the values underlying “timely, affordable and fair access to justice.” In this regard the court deals with “Access to Civil Justice: A Necessary Culture Shift. I have considered and annotated the following extracts from portions of the Supreme Court’s judgment:
- This appeal concerns the values and choices underlying our civil justice system, and the ability of ordinary Canadians to access that justice. Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.
24 However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes. The cost and delay associated with the traditional process means that, as counsel for the intervener the Advocates' Society (in Bruno Appliance) stated at the hearing of this appeal, the trial process denies ordinary people the opportunity to have adjudication. And while going to trial has long been seen as a last resort, other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.
25 Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law.
27 A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
28 This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible - proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[70] I take further guidance from the Court’s recognition of the need for a degree of flexibility that takes into account the nature of the claims in issue:
29 There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.
31 Even where proportionality is not specifically codified, applying rules of court that involve discretion "includes ... an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation": Szeto v. Dwyer, 2010 NLCA 36, 297 Nfld. & P.E.I.R. 311, at para. 53.
[71] I have long championed the broad use of proportionality to seek to optimize the process to suit the dispute. Dealing with motions such as those contemplated by the defendants Justice Karakatsanis notes:
32 This culture shift requires judges to actively manage the legal process in line with the principle of proportionality. While summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately. While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client's limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.
33 A complex claim may involve an extensive record and a significant commitment of time and expense. However, proportionality is inevitably comparative; even slow and expensive procedures can be proportionate when they are the fastest and most efficient alternative. The question is whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication.
[72] In this respect I adopt a definition on “just” as being based on or behaving according to what is morally right and fair.
[73] Rule 20.04 now reads in part:
20.04 (2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[74] Justice Karakatsanis comments on the application of these provisions:
44 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.
45 These new fact-finding powers are discretionary and are presumptively available; they may be exercised unless it is in the interest of justice for them to be exercised only at a trial; Rule 20.04(2.1). Thus, the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication.
[75] While Hryniak clearly promoted summary determination in a greater range of case types, I note that the reason also stress the need to evaluate the need for a just assessment of an appropriate method of reaching a fair determination of the lis:
- I will first consider when summary judgment can be granted on the basis that there is "no genuine issue requiring a trial" (Rule 20.04(2)(a)). Second, I will discuss when it is against the "interest of justice" for the new fact-finding powers in Rule 20.04(2.1) to be used on a summary judgment motion. Third, I will consider the power to call oral evidence and, finally, I will lay out the process to be followed on a motion for summary judgment.
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.
50 These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
- Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[76] Here the plaintiff elected a jury trial and I am not convinced that it would be just or fair in the circumstances of this case to deny this plaintiff access to that forum.
[77] The trial is scheduled to be held in six months. The plaintiff has spent her entire time in Canada embroiled with our court system. I find it unfair to further extend her costs and risks, such that exercising my discretion I am imposing as a term of the amendments sought that no motion for summary judgment may be brought prior to trial by the moving party.
[78] I am emboldened in this position by the Supreme Court’s caveats:
The Interest of Justice
52 The enhanced fact-finding powers granted to motion judges in Rule 20.04(2.1) may be employed on a motion for summary judgment unless it is in the "interest of justice" for them to be exercised only at trial. The "interest of justice" is not defined in the Rules.
53 To determine whether the interest of justice allowed the motion judge to use her new powers, the Court of Appeal required a motion judge to ask herself "can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?" (para. 50).
73 A motion for summary judgment will not always be the most proportionate way to dispose of an action. For example, an early date may be available for a short trial, or the parties may be prepared to proceed with a summary trial. Counsel should always be mindful of the most proportionate procedure for their client and the case.
IX. Original Judgment
[79] The 2010 reasons of Justice C.M.Harpur, given at the original trial read in part:
I am dismissing the charges against Ms. M.C. . …
I accept her evidence without hesitation that; she did not have any sexual purpose in the touchings …. I found her evidence to be consistent, given perhaps with some hesitation on occasion, but as much attributable to language as it was to any attempt to evade.
I accept Mr. Rogerson's submission. concerning the patent unlikelihood of this young woman engaging in sexual touchings of her three- year-old charge within several feet of the mother of that charge who was in every position to observe what she was doing. …
I am in no better position than anyone else to say where the line is drawn between appropriate maternal vigilance and unreasonable alarm. I have to say that I inclined to think in this case that Ms. G. engaged in the latter, that she was alarmed without appropriate reason.
Regardless of which it is, it is abundantly clear that the implications for Ms. M.C. were utterly disastrous and, in my view, she was a woman who committed no crime.”
X. Disposition
[80] Having determined leave, would not be given to bring the summary judgment motions sought, if rule 48.04 (1) applied, and acknowledging that there are conflicting decisions on the question, I have determined that leave should be denied using my discretion under rule 1.05 as a condition of allowing the amendment to the statement of defence sought.
[81] Allowing the amendment has the effect of fully recasting this matter, notwithstanding that a trial date is imminent.
[82] When making an order the court may impose such terms and give such directions as are just. The plaintiff, in my view, has been found to be an innocent individual who has been placed under a cloud since her arrival in Canada. Applying proportionality and the above detailed contextual analysis is my conclusion that the interests of justice are best served by not jeopardizing the plaintiffs scheduled jury trial.
[83] In the circumstances, I find that success has been divided. Costs with respect to the necessary pleading amendment, fixed at $1500 shall be payable by the defendants forthwith as a condition of their amendment. Any other costs, including the costs of this motion shall be reserved to the trial judge in the cause.
[84] I am obliged to all counsel for their careful and skilled advocacy on this matter.
R. 158/DS
Master D.E. Short
NOTE: Because of the nature of the charges and my desire to endeavour to avoid potential long term prejudice to ANY of those involved in this fact situation, I have redacted the action number attached to the civil proceeding and replaced the names of individual litigants with initials to as to minimize the possibility of computer search engines identifying them in the future.