Court File and Parties

Court File No.: CV-14-5743-SR Date: 2017 04 24 Corrected: 2017 06 15

Superior Court of Justice - Ontario

Re: Anisur Sikder and Sharmin Sikder, Plaintiffs And: Carol Jesseau, Defendant

Before: Barnes J.

Counsel: Ron Aisenberg, for the Plaintiffs Allen Philip Welman, for the Defendant

Corrected Endorsement

Introduction

[1] Anisur Sikder and Sharmin Sikder (the Sikders) bring this motion for summary judgment against Carol Jesseau (Ms. Jesseau). This action stems from the purchase of a residential property (the property). The Sikders’ insurance company seeks reimbursement for costs incurred to correct deficiencies described in the City of Toronto (City) work order issued for the property. Ms. Jesseau seeks leave to amend her pleadings.

[2] Ms. Jesseau is granted leave to amend her pleadings. I conclude that issues of whether there was consideration for the document Ms. Jesseau signed, which is described as “Warranties and Bill of Sale” (Warranty), and whether the Sikders’ action is statute barred pursuant to sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, S.O., c. 24, Sched B. (Limitations Act) [1] raise genuine issues requiring a trial.

[3] It is in the interest of justice for me to use the additional powers under Rule 20.04(2.1) of the Rules of Civil Procedure [2] to determine whether summary judgment should be granted.

Preliminary Matters

[4] Counsel for the Sikders sent counsel for Ms. Jesseau a “Request to Admit”. There is a dispute as to whether counsel for Ms. Jesseau received all pages of the “Request to Admit”. Upon a review of all the material filed and after considering the submissions of counsel, I am satisfied that there is sufficient evidence to support the facts proffered in the “Request to Admit” and I accept the facts described in the “Request to Admit”.

[5] There were two Orders to Comply issued by the City with respect to the property. One dated October 23, 2009 (the pre-sale Order) and the second dated April 20, 2012 (the post-sale Order). The documents refer to the same inspection date and the same work order number.

[6] Despite the able submissions of counsel for Ms. Jesseau, I am satisfied that the document the Sikders received on April 20, 2012 constitutes a “Work Order” as referenced in the Warranty signed by Ms. Jesseau on March 28, 2012.

Background Facts

[7] On January 21, 2012, the Sikders offered to purchase the property from Ms. Jesseau for C$403,000. The parties signed an agreement of purchase and sale (APS).

[8] Ms. Jesseau held the property in trust for her sister, Mary Jesseau, and her common law partner, George Evanoff. Mary Jesseau is deceased and her partner George Evanoff cannot be located.

[9] On March 28, 2012, Ms. Jesseau signed the Warranty with these terms:

I, Carol Jesseau, being the vendor in the above transaction, hereby warrant as follows:

1. THAT to the best of my knowledge and belief, the subject property has not been insulated with urea formaldehyde foam insulation;
2. THAT no damage has occurred to the property, including the building situate on the subject property, as well as the chattels and fixtures included in the purchase price, since the same were inspected by the purchasers;
3. THAT no work, construction or alterations have been done on the premises, or materials supplied thereto, which could result in a lien being registered under the Construction Lien Act;
4. THAT, as at the date of closing of this transaction, there are no work orders or deficiency notices outstanding and affecting the subject property and, if any should exist, they shall be rectified at my expense forthwith upon demand;
5. THAT the warranties contained in the agreement of purchase and sale, as well as those contained herein, shall survive closing.
6. THAT any work to be done to the subject property by the vendors as stipulated in the Agreement of Purchase and Sale shall be completed prior to closing in a good and workmanlike manner.

BILL OF SALE

IN CONSIDERATION of the closing of the within transaction, the undersigned, being the vendor of the subject property, does hereby sell, transfer and convey to the purchasers the chattels and fixtures included in the purchase price as specified in the Agreement of Purchase and Sale; and I covenant that I am the lawful owner thereof, and that I have the right to transfer and convey the same and that such chattels and fixtures are free of all encumbrances, liens and claims of any kind whatsoever.

[10] The transaction closed on March 29, 2012. Three weeks later, on April 20, 2012, the Sikders received an order to comply from the City. (The post-sale Order). The Order referred to an infraction of the Building Code and a request that the contravention be corrected by May 18, 2012.

[11] Subsequent investigation by the Sikders’ counsel revealed that on October 23, 2009, the City issued an order to comply (pre-sale order) regarding the same property, referring to the same contravention and with the same order number as the post-sale order.

[12] The Sikders are insured by Chicago Title Insurance Company Canada (Chicago Title). This home policy (the policy) covered expenses incurred to comply with work orders received from the City. On January 28, 2013, the Sikders made a claim to Chicago Title for compensation for the cost of rectifying the contraventions under the policy. Chicago Title accepted the Sikders’ claim.

[13] Chicago Title paid $46,832.68 to complete work required to rectify the contraventions. Chicago Title brings this action, under its subrogated right to recovery, pursuant to s. 278(1) of the Insurance Act, R.S.O. 1990, c.I.8. [3]

[14] Ms. Jesseau has commenced a third party claim against the lawyer who represented her in the transaction to sell the property.

Issues

[15] The issues raised on this motion for summary judgment are:

(1) Was consideration provided for the subsequent agreement (the Warranty)? (2) Is this action statute barred under the provisions of sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. (the Limitations Act)? and (3) Should Ms. Jesseau be granted leave to amend her pleadings?

Was consideration provided for the subsequent agreement (the Warranty)?

[16] The question of whether the Warranty can be enforced is answered by whether there was consideration for that agreement. In this case, the issue of whether consideration was provided for the Warranty creates a genuine issue for trial.

[17] Summary judgment is granted where there is no genuine issue requiring a trial or where the parties consent and the court concludes that it is appropriate to resolve the issue by way of a summary judgment: See Rule 20.04(2) of the Rules of Civil Procedure. The court may weigh evidence, evaluate credibility and draw reasonable inferences from the evidence: Rule 20.04 (2.1) of the Rules of Civil Procedure.

[18] A two-step analytical framework is applied: (1) the court examines the existing record to determine whether there is a genuine issue requiring a trial and (2) if the court concludes that there is a genuine issue requiring a trial, the court will determine whether it is in the interest of justice to amplify the evidentiary record by employing the additional powers described in Rule 20.04(2.1) of the Rules of Civil Procedure: See Hryniak v. Mauldin, 2014 SCC 7 at para. 66.

[19] The Warranty is an agreement between the parties. An agreement is unenforceable between the parties unless consideration has been provided for the agreement:

Valuable consideration in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the other party, or some forbearance, detriment, lost responsibility, given, suffered, or undertaking by the other.”: see John D. McCamus, The Law of Contracts, 2d ed. (Toronto: Irwin Law, 2012), at p. 215 – 22.

[20] Examples of consideration include: Forbearance in suing: See Quick Credit v. 1575462 Ontario Inc., 2010 ONSC 7227, at para. 21 aff’d 1575462 Ontario Inc. v. Quick Credit, 2012 ONCA 221; an act which avoids future litigation: See Select Restaurant Plaza Corp v. Pavillion Royale Inc. at para. 87; when the subsequent agreement clarifies an existing agreement and confers the benefit of “clarity of agreement” on the parties: See Richcraft Homes Ltd. v. Urbandale Corp., 2016 ONCA 622, [2016] O.J. No. 4298; 2016 ONCA at paragraph 47.

[21] It is agreed that the warranty is a subsequent agreement which altered the APS and therefore it requires its own consideration. The APS is the first agreement between the parties. The Warranty is the subsequent agreement. If the Warranty is simply a promise to perform a pre-existing duty [under the APS] it is unenforceable for want of consideration i.e. agreeing to perform a pre-existing duty does not constitute consideration: See Gilbert Steel Ltd. v. University Construction Ltd. (1976), 12 O.R. (2d) 19 (C.A.), at p. 24.

[22] The Sikders submit that the Warranty clarifies the APS for the parties and this clarification confers a mutual benefit on the parties. This mutual benefit constitutes consideration and therefore the Warranty is enforceable. Ms. Jesseau is liable under the Warranty and therefore there is no genuine issue requiring a trial.

[23] The Sikders rely on Richcraft Homes Ltd. v. Urbandale Corp. 2016 ONCA 622. In Richcraft the parties had an ongoing business relationship which was governed by a Limited Partnership Agreement. The parties signed a subsequent agreement in 2005. One of the issues the court considered is whether there was consideration offered for the 2005 agreement.

[24] The 2005 agreement clarified an unclear term in the Limited Partnership Agreement. The parties had a long-term business relationship which was of value to both parties:

“[Certainty in contractual relations] in order to create certainty and to avoid future costly disputes, enures to the parties’ mutual benefit, and is something of value that flows from and to each contracting party. This serves as a functional form of consideration” Richcraft at para. 46 and 47.

[25] The conclusion in Richcraft was not reached in a factual vacuum. There was an evidentiary basis upon which the court could conclude that the clarification provided by the 2005 document will enure to the benefit of the parties. There was clear evidence of the ongoing business relationship between the parties.

[26] The Seller in the APS is Ms. Jesseau and the Buyers are the Sikders. Clause 8 of the APS authorizes the Buyer to examine title to the property to determine if there are any outstanding work orders etc. affecting the property and the Seller agrees to provide any authorizations required for this purpose.

[27] Clause 10 states that subject to Clause 8, if the Buyer makes a valid objection to title or an outstanding work order etc. that the Seller is unable or unwilling to remove and the Buyer unwilling to waive, the APS is terminated. Absent the said valid objection or outstanding work order etc. the Buyer is “conclusively deemed to have accepted the Seller’s title to the property”.

[28] In Schedule A to the APS the Seller “warrants that there are no outstanding work orders, liens or encumbrances registered against the property, and if so shall be complied with at his expense, on or before closing. (Schedule A. clause).

[29] The Sikders submit that the Schedule A clause contradicts the following clause in Schedule B (Schedule B clause):

“Buyer acknowledges that the Seller makes no representation or warranty whatsoever with respect to the fitness, condition, zoning, lawful use or description of the property comprising the listing information, nor with respect to any contents, fixtures or chattels forming part of the Agreement of Purchase and Sale. The Buyer specifically acknowledges that same is being sold to the Buyer on an “as is” basis without regard for its state of repair, location of structures or fences. The Buyer further acknowledges that the property will remain subject to any judicial, municipal or any other governmental by laws, agreements, restrictions or orders affecting or regarding its condition or use including deficiency and other notices or work orders”.

[30] The Sikders submit that these clauses are inconsistent because in the Schedule A clause, the Seller warrants that there are no outstanding work orders and in the Schedule B clause, the Buyer agrees to accept the property in an “as is” condition and that all existing work orders against the property will survive closing.

[31] Ms. Jesseau submits that there is no inconsistency because the words “registered against the property” in the Schedule A clause, is a reference only to orders affecting the property that are registered against the property in the Land Titles System. It was understood by all the parties that at the time of closing there were no outstanding work orders affecting the property registered in the Land Titles System.

[32] Ms. Jesseau submits that the Schedule B clause states the intent of the parties that the Sellers purchase the property in an “as is” condition and on the understanding that any outstanding work orders at the time of closing shall remain after closing. The effect of the two clauses is that the Seller’s warranty applies only to the orders on title and the Buyers’ acknowledgement refers to orders not registered on title.

[33] This disagreement raises questions on what the words “registered against the property” mean. Did the parties use these words to restrict reference to only those work order(s) registered against the property in the Land Titles System? Or was it a reference to any work order(s) issued by the municipality? This disagreement about the intent of the parties warrants further amplification of the record, either under the additional powers via Rule 20.04 (2.1) of the Rules of Civil Procedure or at trial.

[34] If the words “registered against the property” are given the broader interpretation suggested by the Sikders then the inconsistency between the Schedule A clause and the Schedule B clause is apparent. In effect, the Seller warrants in the Schedule A clause that there are no work orders affecting the property and despite this warranty, the Buyer acknowledges, in the Schedule B clause, that after the sale the property will remain subject to the work orders the Seller warrants do not exist. Under these circumstances, the Sikders’ argument that the Warranty clarified the provisions of the APS is a valid one.

[35] If the words “registered against the property” are only a reference to orders registered on title then the Buyers’ acknowledgement in the Schedule B clause will be limited to those orders that are not registered on title and there will be no inconsistency.

[36] Clause 4 of the Warranty states that Ms. Jesseau has responsibility for rectifying any pre sale work orders that become apparent after closing. These work orders are to be rectified by Ms. Jesseau forthwith upon demand.

[37] Clause 5 states that the warranties in the APS and the Warranty will remain in force after the transaction has closed. Thus, the Warranty alters the APS and creates more onerous obligations for Ms. Jesseau. Consideration is required: Gilbert Steel at page 24.

[38] There is a dispute between the Sikders and Ms. Jesseau on what they intended the words “registered against the property” to mean. Was it a reference only to work orders registered on title or was it a reference to all work orders? This is central to the inconsistency analysis.

[39] The Sikders submit that they benefited and thus received consideration from the warranty in 3 other ways:

1. The Warranty states that its provisions survive closing. Therefore, they are protected from a potential argument from Ms. Jesseau that the Schedule A clause warranty merged upon closing and therefore she was under no obligation to rectify any pre-sale work orders that may come to light after closing. If the schedule A and B clauses are inconsistent, the Sikders benefit from the clarification because any argument that the inconsistency renders the clauses unenforceable will be defeated.
2. Under the Schedule A clause the limitation period to commence an action is two years after the transaction closed (March 29, 2012) or from the date of the receipt of the work order (April 20, 2012). The Warranty extends the limitation period because the limitation period begins to run when a demand is made: see s. 5(3) and (4) of the Limitations Act.

[40] The Sikders submit that Ms. Jesseau benefited and thus received consideration from the warranty in 2 other ways:

1. The Sikders had the right to terminate the APS by giving the warranty, Ms. Jesseau avoided: (a) The potential termination of the APS (b) Potential litigation
2. The Warranty provided an after closing solution which allowed Ms. Jesseau to rectify any work orders at her expense, presumably enabling her to save money by retaining her own contractors.

[41] The difficulty with the Sikders’ arguments is that while the various benefits can be deduced from the provisions of the APS and the Warranty, these deductions are made in the absence of a sufficient evidentiary record of the circumstances surrounding the execution of these documents. The Sikders invite the court to find that there was consideration in the face of an insufficient evidentiary record.

[42] In Select Restaurant Plaza Corporation, the parties entered into a Lease agreement in August 2000 which charged a monthly rent of $52,000.00. A subsequent agreement (The Receiver’s lease) charged a lower rent of $40,000.00 per month but introduced an additional amount payable, calculated as a percentage of the tenant’s (Pavillion) sales. This was a new lease.

[43] The Receiver’s lease was signed as a part of a resolution to a dispute between the parties. Pavillion was threatening to vacate the premises. Pavillion may have had a valid argument for terminating the Receiver’s lease on one month’s notice and could have terminated the lease on one month’s notice or vacated the premises and taken a stand on the issue.

[44] The Receiver’s lease made good business sense to both parties. Pavillion was in a precarious financial situation. If Pavillion became insolvent the Receiver would have to evict Pavillion and sustain the costs of the default and find a new tenant. The new percentage rent structure based on Pavillion’s gross sales created a lower rent for Pavillion and a potential higher rent for the Receiver as the recipient of a percentage of Pavillion’s gross sales. This created a benefit for both parties.

[45] Pavillion was already disputing the terms of the August 2000 agreement and the Receiver’s lease provided the parties with the certainty of a long term lease; resolved any doubts on issues of the “calculation of the base for realty taxes and common area maintenance costs, option exercise notice and dispute resolution procedures which might have arisen under the August 2000 Agreement”. In all the circumstances it was in the parties’ business interest to avoid litigation. The existence of the Receiver’s lease “forestalled the cost of litigation and the costs of a departing or bankrupt tenant.” Forestalling potential litigation is a consideration for the Receiver’s lease: See Select Restaurant, at paragraphs 82 to 87.

[46] In Quick Credit, the defendant, 1575463 Ontario Inc., carrying on business as Yorktown Auto Collision, owed Quick Credit $263,168.19. Quick Credit obtained a default judgment against 1575463 Ontario Inc. for this amount plus post-judgment interest. Loreto and Garbriele Ceccarelli signed a guarantee to repay the loan. Loreto and Garbriele did not repay the loan.

[47] There was evidence before the court of several meetings which were held in an effort to get Loreto and Gabriele Ceccarelli to honour the terms of the guarantee and to repay the loan. These efforts were unsuccessful.

[48] Eventually, Authentic Group Inc. assumed the debt in a promissory note. The promissory note was signed by Loreto and Gabriele Ceccarelli who are directors of Authentic Group Inc. Authentic Group Inc. never paid the debt. One of the arguments advanced was that there was no consideration provided for the promissory note. Justice Perrell determined that Quick Start’s forbearance in suing Loreto and Gabriele on their personal guarantees constituted consideration for the promissory note: See Quick Start, paragraphs 4, 5, 6, 9-13, 17-21.

[49] Unlike in Quick Start, Select Restaurant and Richcraft, the current record does not provide a sufficient evidentiary basis to find consideration for the Warranty.

[50] In this case, the requisition addressing work orders had been issued and answered. There were no disputes. The terms of the APS were to merge on closing. The parties intended to close. There were no areas of confusion in need of clarification. There was no ongoing relationship between the parties. The transaction was a one off event. There is no evidence the Warranty was signed to clarify the APS or to resolve a dispute between the parties. There was no threat to terminate the APS. No potential of termination of the APS. There was no threat, potential or actual, of litigation. Ms. Jesseau was the only signatory to the Warranty. There was no evidence that either Ms. Jesseau or any other party decided to forgo litigation because the Warranty was signed.

[51] Further amplification of the record is required to answer questions relating to the intention of the parties, for example, why was the Warranty signed? Was it necessary as a condition for closing the transaction? Or some other purpose?

[52] Ms. Jesseau already asserts that she did not appreciate, understand or know what she was signing. Was it the intention of the parties that Ms. Jesseau take on a more onerous contractual obligation? How does this more onerous contractual obligation benefit Ms. Jesseau in the absence of any objections or disputes and in circumstances where her obligations under the APS merge on closing? etc. These are some of the questions that raise the issue of consideration as a genuine issue requiring a trial.

[53] The state of the record leaves several relevant questions about the intentions of the parties unanswered. The issue of whether consideration was provided for the Warranty is a genuine issue requiring a trial.

Is this action statute barred under the provisions of the Limitations Act?

[54] The issue of whether this action is statute barred under the Limitations Act is a genuine issue requiring a trial.

[55] Ms. Jesseau submits that the Warranty is unenforceable and therefore the limitation period runs two years from the date the transaction was closed: See s. 4 of the Limitations Act. The transaction closed on March 29, 2012. The Sikders received the work order on April 20, 2012. This action was commenced on December 19, 2014 and therefore it is out of time.

[56] The Sikders submit that the Warranty is enforceable. It is a demand obligation and therefore the limitation period begins to run when the demand was made: See Limitations Act, subsections 5(3) and 5(4); Bank of Nova Scotia v. Williamson 2009 ONCA 754, at paras. 18 and 19.

[57] The demand to rectify was made on March 26, 2013 and the claim was commenced on December 19, 2014, less than two years after the demand was made and therefore within the limitation period.

[58] The enforceability of the Warranty has a direct impact on whether this action is statute barred. Therefore, the issue of whether the action is statute barred is a genuine issue requiring a trial.

The additional powers under Rule 20.04 (2.1)

[59] The issue of liability in this action would be conclusively resolved by a final determination of whether the Warranty is enforceable. Amplification of the record by viva voce evidence is required to enable the court to conclusively assess the circumstances surrounding the signing of the APS and the Warranty.

[60] A resolution of this issue will either resolve the action on a final basis or leave only damages as an issue for trial. The quantum of the amount in dispute is approximately $50,000.00. Under all these circumstances it is in the interest of justice for me to utilize the additional fact finding powers under Rule 20.04(2.1) of the Rules of Civil Procedure. Therefore, the parties shall contact the trial coordinator within 30 days to set a date for the court to hear viva voce evidence on the circumstances surrounding the signing of the APS and the Warranty.

Should Ms. Jesseau be granted leave to amend her pleadings?

[61] Ms. Jesseau seeks to amend her pleadings: See Rule 26 of the Rules of Civil Procedure [4]. There is no evidence that the Sikders will suffer any prejudice if the proposed amendments are granted: see Kennedy v. Kennedy (1911), 24 O.L.R. 183 (Ont. H.C.J.). Therefore, Ms. Jesseau is granted leave to amend her pleadings as described in her notice of motion.

[62] If the parties are unable to agree on costs, the parties shall file a 2 page costs outline within 15 days from the date of the final disposition of this motion.

Barnes J.

Released: April 24, 2017 Corrected: June 15, 2017

Schedule A

Limitations Act, 2002

S.O. 2002, chapter 24 Sections 4 and 5

Basic Limitation Period

Basic limitation period 4 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. 2002, c. 24, Sched. B, s. 4.

Discovery 5 (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). 2002, c. 24, Sched. B, s. 5 (1).

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. 2002, c. 24, Sched. B, s. 5 (2).

Demand obligations (3) For the purposes of subclause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made. 2008, c. 19, Sched. L, s. 1.

Same (4) Subsection (3) applies in respect of every demand obligation created on or after January 1, Schedule A

Schedule B

Courts of Justice Act

R.R.O. 1990, REGULATION 194 RULES OF CIVIL PROCEDURE RULE 20 SUMMARY JUDGMENT

WHERE AVAILABLE

To Plaintiff 20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (1). (2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just. R.R.O. 1990, Reg. 194, r. 20.01 (2).

To Defendant (3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (3).

Evidence on Motion 20.02 (1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. O. Reg. 438/08, s. 12. (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. O. Reg. 438/08, s. 12.

FACTUMS REQUIRED 20.03 (1) On a motion for summary judgment, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party. O. Reg. 14/04, s. 14. (2) The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing. O. Reg. 394/09, s. 4. (3) The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing. O. Reg. 394/09, s. 4. (4) Revoked: O. Reg. 394/09, s. 4.

DISPOSITION OF MOTION

General 20.04 (1) Revoked: O. Reg. 438/08, s. 13 (1). (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. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).

Powers (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:

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).

Oral Evidence (Mini-Trial) (2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13 (3).

Only Genuine Issue Is Amount (3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount. R.R.O. 1990, Reg. 194, r. 20.04 (3); O. Reg. 438/08, s. 13 (4).

Only Genuine Issue Is Question Of Law (4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge. R.R.O. 1990, Reg. 194, r. 20.04 (4); O. Reg. 438/08, s. 13 (4).

Schedule C

Insurance Act

R.S.O. 1990, CHAPTER I.8

Subrogation 278. (1) An insurer who makes any payment or assumes liability therefor under a contract is subrogated to all rights of recovery of the insured against any person and may bring action in the name of the insured to enforce those rights. R.S.O. 1990, c. I.8, s. 278 (1).

Schedule D

Courts of Justice Act

R.R.O. 1990, REGULATION 194 RULES OF CIVIL PROCEDURE RULE 26 AMENDMENT OF PLEADINGS

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. R.R.O. 1990, Reg. 194, r. 26.01.

WHEN AMENDMENTS MAY BE MADE 26.02 A party may amend the party’s pleading, (a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action; (b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or (c) with leave of the court. R.R.O. 1990, Reg. 194, r. 26.02.

HOW AMENDMENTS MADE 26.03 (1) An amendment to a pleading shall be made on the face of the copy filed in the court office, except that where the amendment is so extensive as to make the amended pleading difficult or inconvenient to read the party shall file a fresh copy of the original pleading as amended, bearing the date of the original pleading and the title of the pleading preceded by the word “amended”. R.R.O. 1990, Reg. 194, r. 26.03 (1). (2) An amendment to a pleading shall be underlined so as to distinguish the amended wording from the original, and the registrar shall note on the amended pleading the date on which, and the authority by which, the amendment was made. R.R.O. 1990, Reg. 194, r. 26.03 (2). (3) Where a pleading has been amended more than once each subsequent amendment shall be underlined with an additional line for each occasion. R.R.O. 1990, Reg. 194, r. 26.03 (3).

SERVICE OF AMENDED PLEADING

Service on Every Party to Action and Related Actions 26.04 (1) An amended pleading shall be served forthwith on every person who is, at the time of service, a party to the main action or to a counterclaim, crossclaim or third party claim in the main action, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 26.04 (1). (2) Proof of service of an amended pleading other than an originating process shall be filed forthwith after it is served. R.R.O. 1990, Reg. 194, r. 26.04 (2).

Amended Originating Process (3) Where an amended pleading is an originating process, (a) it need not be served personally on a party who was served with the original pleading and responded to it; and (b) it shall be served personally or by an alternative to personal service under rule 16.03 on an opposite party who has not responded to the original pleading, whether or not the party has been noted in default. R.R.O. 1990, Reg. 194, r. 26.04 (3).