Court File and Parties

COURT FILE NO.: CV13-0534 DATE: March 20, 2017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

2015004 ONTARIO INC., DONALD EDMUND BLAIR, TARA LYNN BLAIR, and SHANGRI-LA LODGE & MARINA Plaintiffs (Moving Parties)

– and –

J.G. RIVET INSURANCE BROKERS LIMITED, WENDY PLANTE, NOVEX INSURANCE COMPANY, INTACT INSURANCE COMPANY, NON-MARINE UNDERWRITERS, MEMBERS OF LLOYD’S, LONDON, ENGLAND under Contract BA 1000382, SEAN MURPHY in his quality as Attorney in Canada for the NON-MARINE UNDERWRITERS, MEMBERS OF LLOYD’S LONDON, ENGLAND and THE STANDARD INSURANCE BROKERS LTD. Defendants (Responding Parties)

Counsel: Neville C. Johnston, for the Plaintiffs (Moving Parties) Pasquale Santini, for the Defendants (Responding Parties)

MOTION and CROSS-MOTION HEARD AT BROCKVILLE: February 17, 2017

Ruling on Cross-Motion

PEDLAR J.

[1] This is a summary judgment motion that was brought by the defendant, The Standard Insurance Brokers Ltd. (Standard) against the plaintiffs herein (the Blairs) for an order dismissing the Blairs’ claim against Standard in its entirety.

[2] It was agreed between the parties that this motion would be heard, in the economy of time and expense and convenience to the court, immediately following the hearing of the motion wherein the Blairs sought to amend their Statement of Claim. That motion was heard and reasons have now been released allowing the relief sought by the Blairs to permit them to add claims for negligent misrepresentation and punitive damages based on bad faith by the defendant, Standard.

[3] In responding to the motion for summary judgment, the Blairs have referred to the Ontario Court of Appeal decision in 147619 Canada Inc. v. Chartrand, [2006] O.J. No. 1877. At paragraph 2 of that decision, the court states, in part:

“2. …Whether or not the appellant’s evidence is sufficient to avoid the plaintiff’s motion for summary judgment remains to be seen. However, that issue should be resolved on the basis of the amended pleadings and a proper record. The motion judge in effect collapsed the motion to amend and the motion for summary judgment into one. In our view, he should have allowed the appellant to amend his pleadings and determined the summary judgment motion on the basis of those amended pleadings and the proper record.”

[4] In this case, the parties have agreed, as stated above, that both motions can be argued on the same day sequentially and that process was adopted for the reasons noted above. While it is clear that the defendants have not yet had a chance to file their Statement of Defence to the Amended Statement of Claim, the parties appear to be content that all of the relevant issues and evidence that would be raised on a subsequent summary judgment motion following the completion of pleadings have been raised at the time the motion was argued for amendment of the Statement of Claim and therefore they have proceeded with the cross-claim by the defendant, Standard, for dismissal of the Blairs’ action on this summary judgment motion.

[5] This motion for summary judgment is brought under Rule 20.01(3) of the Rules of Civil Procedure which does permit a defendant “after delivering a Statement of Defence” to move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the Statement of Claim. One of the factors leading to the agreement between the parties is that they are seeking to avoid extra cost and inconvenience to their clients, as well as the court’s schedule which is under constant pressure. I therefore rule that, for the purpose of this motion only and, consistent with Rule 1.04(1), which states that the Rules of Practice shall be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”, the motion for summary judgment can be heard as proposed.

[6] All issues that the defendant, Standard, would raise in their of Statement of Defence and in a separate appearance for a motion for summary judgment by them against the Blairs are before the court on this motion following the hearing of the motion regarding amendment of the Statement of Claim. This is another example of an attempt by the parties to deal with the very troubling issue of access to justice in our court system, particularly as it relates to civil cases and the length of time and number of proceedings involved, to have them resolved on their merits.

[7] The factual basis for this motion has been dealt with in my ruling regarding the amendments to the Statement of Claim herein.

[8] In the motion regarding the amendment to the pleadings, I also dealt with the issue of discoverability under the Limitations Act as well as the issue of negligent misrepresentation and the five requirements under the Queen v. Cognos Inc., [1993] 1 S.C.R. 87 case to be met by the Blairs.

[9] Although it was not addressed as a specific issue in the previous ruling, it was clear that there are numerous significant issues of credibility arising from the affidavits and transcripts of examinations for discovery of the Blairs and the defendant, Wendy Plante, regarding their business dealings in this matter.

[10] The burden of proof on a motion for summary judgment is on the moving party. The Blairs rely on a decision of the Ontario Superior Court of Justice of 917488 Ontario Inc. v. Sam Mortgages Ltd., [2013] O.J. No. 1706, which states at paragraph 19:

“[19] This is a motion for summary judgment under Rule 20.01(1) of the Rules of Civil Procedure, alleging there is no genuine issue for trial. As the law currently stands, whether a matter may proceed by way of summary judgment requires a consideration of whether the material filed on the motion allows for a full appreciation of the issues and evidence, or whether a trial is required. That determination is made bearing in mind the parties’ responsibility to put their best foot forward on a motion for summary judgment and to lead all facts and evidence that show there is a real issue to be tried.”

[11] The Blairs also rely on an Ontario Superior Court of Justice Divisional Court decision in Stever v. Rainbow International Carpet Dyeing & Cleaning Co., [2013] O.J. 2729, where the following statements are made:

“1. Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431, at para 50 (Ont CA) requires that a judge achieve a full appreciation of the issues and the evidence in granting summary judgment. This requires the moving party to put its best foot forward. 2. The courts have generally found that, given these elements of the summary judgment test, the “best evidence” rule must be adhered to by including in the record affidavit evidence, and, potentially, cross-examination transcripts. In fact, this court found in Wynn v. Belair Direct, [2003] O.J. No. 3531, 2003 CarswellOnt 3433, at para 66, “summary judgment could not be granted on the evidence of the law clerk employed by the plaintiff’s counsel and be based on evidence of attached documents given to the plaintiff by the defendant.” That kind of nominal affiant is really no affiant at all.”

[12] The Blairs point out that the only affidavit delivered by Standard on its motion for summary judgment is an affidavit by its lawyer’s secretary. There is no affidavit by any officer, director or employee of Standard as to any aspect of the issues. There is, however, the transcript of the examination for discovery of an officer of Standard.

[13] The Blairs ask that the court draw an adverse inference from the failure of Standard to deliver an affidavit by one of its officers, directors or employees based on the assumption that Standard is shielding itself from cross-examination as to the critical issues on its motion for summary judgment and arising from the Amended Statement of Claim. It should be noted that there are likely to be additional questions surrounding the issues of negligent misrepresentation and the claim for punitive damages based on bad faith, given that the examination of Gordon McCool, who gave evidence on behalf of Standard, the CEO and former sales manager, took place on May 12, 2016, before the report of Todd Rissel, dated July 22, 2016, was received by the Blairs.

[14] It is also pointed out by the Blairs that they have served and filed that expert report of Todd Rissel as to the duty of care in the preparation and distribution of data regarding insurance values and the alleged breach by Standard of that duty by grossly failing to meet industry standard. There has been no expert report served and filed by Standard in response at the time of this motion.

[15] In view of the rulings in the motion regarding the amendments to the Statement of Claim, the test regarding duty of care, negligent misrepresentation, bad faith, and discoverability under the Limitations Act, have all been ruled on in favour of those amendments and, therefore, in favour of the Blairs’ right to continue to trial in the absence of a clear finding that there is no reasonable prospect of success, which by inference means there is clearly a triable issue in this case.

[16] The Blairs also point out that there is a jury notice filed and that they wish to proceed to have a jury decide the case. I do note that the credibility issues, which are significant, have only been demonstrated at this point in the proceedings to relate to issues between the Blairs and Ms. Plante. Had Standard filed an affidavit in support of their motion, there may have been some additional issues of credibility come from a potential cross-examination on that affidavit material. I am not in a position to speculate on that issue.

[17] With regards to the disposition of a motion for summary judgment, the Rules of Practice state as follows:

“Rule 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. O. Reg. 285/01, s. 6; O. Reg. 438/08, s. 13(2). Rule 20.04(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring 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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13(3).”

[18] In dealing with the expanded powers of the court under Rule 20 related to summary judgment motions, the Supreme Court of Canada in the case of Hryniak v. Mauldin, [2014] SCC 7, stated as follows at paragraph 4:

“ . . . .In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.”

[19] A paragraph 66 of the Hryniak decision, the court states as follows:

“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 her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she 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). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest 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.”

[20] I find that there is a genuine issue requiring trial in this case. I am not able, using the summary judgment process provided for under Rule 20.04(2)(a) to fairly and justly adjudicate the dispute, which will require not only the assessment of credibility of the Blairs and Wendy Plante, but also the expert opinions that have been filed will quite possibly be challenged by further contradictory expert evidence coming from witnesses yet to be determined on behalf of Standard.

[21] I am not able to avoid the need for a trial by using the new powers under Rules 20.04(2.1) and (2.2), as I find those powers should only be exercised in this case through a process of trial, not this motion for summary judgment or a mini-trial. To attempt to avoid a trial by using those provisions would indeed be against the interest of justice and would not lead to a fair and just result. The motion for summary judgment brought by Standard is dismissed with costs.

[22] With regards to costs, I reviewed the sealed Bill of Costs of the Blairs, submitted following argument. It has only been opened after both rulings on the separate motions for amending the pleadings and the motion for summary judgment have been decided. The Bill of Costs relates to both pleadings. I find the amounts claimed to be reasonable in view of the number of issues and complexity of the law involved. Based on that finding, the outcome of both motions and the inequality of the parties to sustain the cost of these proceedings and particularly these types of motions, I grant the Blairs their costs of these two motions on a substantial indemnity basis in the total of $22,168.82, payable forthwith by the defendant, Standard Insurance Brokers Ltd.

[23] I thank counsel for their assistance in both of these motions.

The Honourable Mr. Justice K. E. Pedlar

Released: March 20, 2017