COURT FILE NO.: CV-16-522-00 DATE: 2017 05 16
Superior Court of Justice – Ontario
RE: Jacqueline Barrett, Plaintiff Peel Housing Corporation, Yvonne Gale, and The Corporation of the Regional Municipality of Peel, Defendants
BEFORE: Bloom, J.
COUNSEL: Gaetana Campisi for the Moving Parties, Peel Housing Corporation and The Corporation of the Regional Municipality of Peel, Jacqueline Barrett, Responding Party, self-represented,
HEARD: April 12, 2017 and May 9, 2017
E N D O R S E M E N T
I. Introduction
1The Moving Parties seek summary judgment dismissing the action as against them as disclosing no genuine issue requiring a trial. Alternatively, they seek security for costs.
II. Facts
2On September 21, 2010 the Responding Party commenced an action seeking damages for physical injury resulting from inhaling noxious arsenic fumes seeping from the apartment unit inhabited by the Defendant Gale into her own unit; both units were alleged to be in an apartment building owned by the Defendant, Peel Housing Corporation also known as “Peel Living.”
3The Moving Parties have adduced expert medical evidence that there is no specific indication in the Responding Party’s medical condition of exposure to arsenic. Included in this evidence are the reports of Doctor R. Qureshi dated June 17, 2010 and of Dr. Aaron Thompson dated September 30, 2011; both of these reports were produced by the Plaintiff on discovery and are subject to an admissibility argument by her.
4In answer to the medical evidence relied upon by the Moving Parties, the Responding Party has not adduced the affidavit evidence of her family doctor, Dr. George D’Onofrio, despite orders by Justices Mackenzie and Barnes to produce such an affidavit from him and to permit the Moving Parties to cross-examine on it. Instead she has produced only her own affidavit attaching reports of Dr. D’Onofrio.
5The Plaintiff on examination for discovery on July 10, 2014 testified that she had been coming and going from Jamaica for the past three years; that she owned a house there; that she owned no residence in Canada; and that she stayed at different places when in Canada. The Plaintiff conceded in oral argument that she is impecunious, and that she does not spend much time in Ontario anymore.
6The Moving Parties have accumulated costs in the proceeding at bar of $70,744.32 on a substantial indemnity basis, and $44,585.94 on a partial indemnity basis.
III. Issues
7The motion at bar raises two distinct issues: (1) whether the Plaintiff’s claim raises a genuine issue requiring a trial; and (2) whether an order for security for costs ought to be made against the Plaintiff.
8In addressing the first issue, I must also determine the admissibility of the reports of Dr. D’Onofrio, Dr. Qureshi, and Dr. Thompson.
IV. Governing Principles
9I will now set out the governing principles regarding both issues.
A. Summary Judgment
10The applicable portion of Rule 20.04 is:
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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).
11In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 66 Justice Karakatsanis for the Supreme Court stated:
[66] 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 20.04(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.
12In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paras. 40 to 58 the Court provided guidance which is applicable to the case at bar:
- The Types of Cases that are Amenable to Summary Judgment
40 Speaking generally, and without attempting to be exhaustive, there are three types of cases that are amenable to summary judgment. The first two types of cases also existed under the former Rule 20, while the third class of case was added by the amended rule.
41 The first type of case is where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment. Rule 20.04(2)(b) permits the parties to jointly move for summary judgment where they 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." We note, however, that the latter wording - "the court is satisfied" - affirms that the court maintains its discretion to refuse summary judgment where the test for summary judgment is not met, notwithstanding the agreement of the parties.
42 The second type of case encompasses those claims or defences that are shown to be without merit. The elimination of these cases from the civil justice system is a long-standing purpose well served by the summary judgment rule. As stated by the Supreme Court of Canada in Canada (A.G.) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 10:
The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.
43 As we shall discuss further below, 5 the amended Rule 20 has given the motion judge additional tools to assess whether a claim or defence has no chance of success at trial.
44 Moreover, the amended Rule 20 now permits a third type of case to be decided summarily. The rule provides for the summary disposition of cases other than by way of agreement or where there is "no chance of success". The prior wording of Rule 20, whether there was a "genuine issue for trial", was replaced by "genuine issue requiring a trial". This change in language is more than mere semantics. The prior wording served mainly to winnow out plainly unmeritorious litigation. The amended wording, coupled with the enhanced powers under rules 20.04(2.1) and 20.04(2.2), now permit the motion judge to dispose of cases on the merits where the trial process is not required in the "interest of justice".
45 The threshold issue in understanding the application of the powers granted to the motion judge by rule 20.04(2.1) is the meaning to be attributed to the phrase "interest of justice". This phrase operates as the limiting language that guides the determination whether a motion judge should exercise the powers to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence on a motion for summary judgment, or if these powers should be exercised only at a trial. The phrase reflects that the aim of the civil justice system is to provide a just result in disputed matters through a fair process. The amended rule recognizes that while there is a role for an expanded summary judgment procedure, a trial is essential in certain circumstances if the "interest of justice" is to be served.
46 What is it about the trial process that certain types of cases require a trial for their fair and just resolution? In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the majority decision of Iacobucci and Major JJ., at para. 14, quotes a passage from R.D. Gibbens in "Appellate Review of Findings of Fact" (1991-92), 13 Advocates' Q . 445, at p. 446, which refers to the trial judge's "expertise in assessing and weighing the facts developed at trial". The quoted passage states: "The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence." The passage further notes that the trial judge gains insight by living with the case for days, weeks or even months. At para. 18, Iacobucci and Major JJ. go on to observe that it is the trial judge's "extensive exposure to the evidence, the advantage of hearing testimony viva voce , and the judge's familiarity with the case as a whole" that enables him or her to gain the level of appreciation of the issues and the evidence that is required to make dispositive findings.
47 As these passages reflect, the trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses. As expressed by the majority in Housen, at para. 25, the trial judge is in a "privileged position". The trial judge's role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute. The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence.
48 The trial dynamic also affords the parties the opportunity to present their case in the manner of their choice. Advocates acknowledge that the order in which witnesses are called, the manner in which they are examined and cross-examined, and how the introduction of documents is interspersed with and explained by the oral evidence, is of significance. This "trial narrative" may have an impact on the outcome. Indeed, entire books have been written on this topic, including the classic by Frederic John Wrottesley, The Examination of Witnesses in Court (London: Sweet and Maxwell, 1915). As the author instructs counsel, at p. 63:
It is, perhaps, almost an impertinence to tell you that you are by no means bound to call the witnesses in the order in which they are placed in the brief.
It will be your task, when reading and noting up your case, to marshall your witnesses in the order in which they will best support your case, as you have determined to submit it to the [trier of fact].
49 In contrast, a summary judgment motion is decided primarily on a written record. The deponents swear to affidavits typically drafted by counsel and do not speak in their own words. Although they are cross-examined and transcripts of these examinations are before the court, the motion judge is not present to observe the witnesses during their testimony. Rather, the motion judge is working from transcripts. The record does not take the form of a trial narrative. The parties do not review the entire record with the motion judge. Any fulsome review of the record by the motion judge takes place in chambers.
50 We find that the passages set out above from Housen, at paras. 14 and 18, such as "total familiarity with the evidence""extensive exposure to the evidence", and "familiarity with the case as a whole", provide guidance as to when it is appropriate for the motion judge to exercise the powers in rule 20.04(2.1). In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: 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?
51 We think this "full appreciation test" provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the "interest of justice" requires a trial.
52 In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge's direction by hearing oral evidence on discrete issues.
53 We wish to emphasize the very important distinction between "full appreciation" in the sense we intend here, and achieving familiarity with the total body of evidence in the motion record. Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them.
54 The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.
55 Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record - as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) - the judge cannot be "satisfied" that the issues are appropriately resolved on a motion for summary judgment.
56 By adopting the full appreciation test, we continue to recognize the established principles regarding the evidentiary obligations on a summary judgment motion. The Supreme Court of Canada addressed this point in Lameman, at para. 11, where the court cited Sharpe J.'s reasons in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, in support of the proposition that "[e]ach side must 'put its best foot forward' with respect to the existence or non-existence of material issues to be tried." This obligation continues to apply under the amended Rule 20. On a motion for summary judgment, a party is not "entitled to sit back and rely on the possibility that more favourable facts may develop at trial": Transamerica, at p. 434.
57 However, we add an important caveat to the "best foot forward" principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.
58 Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.
13Rules 20.02 and 39.01 (4) provide as follows:
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.
39 . 01
Contents — Motions
(4) An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit. R.R.O. 1990, Reg. 194, r. 39.01 (4) .
B. Security for Costs
14Rule 56.01 addresses security for costs:
WHERE AVAILABLE
56 .01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(a) the plaintiff or applicant is ordinarily resident outside Ontario;
(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;
(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or
(f) a statute entitles the defendant or respondent to security for costs. R.R.O. 1990, Reg. 194, r. 56.01 (1) .
(2) Subrule (1) applies with necessary modifications to a party to a garnishment, interpleader or other issue who is an active claimant and would, if a plaintiff, be liable to give security for costs. R.R.O. 1990, Reg. 194, r. 56.01 (2) .
15In a leading textbook on civil procedure, Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 2d ed (Markham, Ontario: LexisNexis Canada Inc., 2014) at paras. 10.182 to 10.188 the learned authors set out the following principles governing the application of Rule 56.01:
10.182 On a motion for an order for security for costs, the initial onus is on the party moving for security to show that the other party falls within one of the circumstances for which an order may be made; then the responding party may avoid the order by showing that security is unnecessary because it has sufficient exigible assets in Ontario or that is should be permitted to proceed to trial despite its inability to pay costs.
10.183 On a motion for security for costs, the court has a broad discretion in deciding whether ordering security for costs is just in the circumstances.
10.185 The merits of the plaintiff’s case is a relevant factor in the exercise of the court’s discretion to make an order for security for costs. If the plaintiff shows a real possibility of success, then the court may conclude in the circumstances of the case, justice demands that he or she not be required to post security. Other relevant factors include…the likelihood that an order to post security will impede the plaintiff from pursuing his or her claim. …
10.186 A party may rely on his or her impecuniosity as a ground to resist a motion for security for costs… Impecuniosity includes the inability to raise sufficient funds for the purposes of litigation, including any obligation to post security for costs. Where impecuniosity is shown, to avoid having to post security for costs, the plaintiff needs only to demonstrate that his or her claim is not plainly devoid of merit. Conversely, where the plaintiff fails to show that he or she is impecunious, then to avoid posting security, he or she will have to demonstrate a stronger case on the merits or some other reason to justify the court not ordering that security be posted.
10.188 A litigant who relies on impecuniosity bears the onus of proof on this point and must do more than adduce some evidence of impecuniosity and must satisfy the court that he or she is genuinely impecunious with full and frank disclosure of his or her financial circumstances. There is a high evidentiary burden to demonstrate impecuniosity, and if full disclosure is not made, impecuniosity will not be a factor in the exercise of the court’s discretion.
V. Application of Governing Principles to Case at Bar
16I will address the first issue, whether the Plaintiff’s claim raises a genuine issue requiring a trial.
17The Plaintiff relies upon the reports of Dr. D’Onofrio to establish her injury by noxious arsenic fumes. The Moving Parties argue that those reports are inadmissible because they were denied the right to cross-examine Dr. D’Onofrio in accordance with the orders of Justices Mackenzie and Barnes.
18I find that the reports of Dr. D’Onofrio are inadmissible. They cannot be relied upon by the Plaintiff; allowing her to so would be to flout the orders of Justices Mackenzie and Barnes.
19Further, I also rely upon Rule 20.02 (1) to draw an adverse inference against the Plaintiff based on her failure to provide the evidence of Dr. D’Onofrio. The inference I draw is that his evidence would not support the Plaintiff’s position on the summary judgment motion.
20The Plaintiff argues that I must treat the reports of Dr. Qurershi and Dr. Thompson in the same manner as I have her affidavit evidence of the reports of Dr. D’Onofrio. I disagree. The reports of Dr. Qurershi and Dr. Thompson were produced to the Moving Parties by the Plaintiff on discovery; they were not tendered in evidence on the motion in a manner breaching a court order so as to render them inadmissible. Moreover, because they were provided by the Plaintiff on discovery, I do not draw an adverse inference from the Defendants’ failure to produce affidavit evidence from the two doctors.
21Since she has tendered no admissible medical evidence to support her claim, there is no genuine issue requiring a trial of the Plaintiff’s action. Moreover, the reports of Dr. Qureshi and Dr. Thompson are consistent with the absence of injury caused by exposure to arsenic; this evidence thus also supports the finding that there is no genuine issue requiring a trial.
22In accordance with the principles reviewed above, the Plaintiff was obligated to put her best foot forward on this motion, and could not sit back, relying on the possibility that her factual position would improve at trial.
23I, therefore, grant the summary judgment motion, and dismiss the Plaintiff’s action as against the Moving Parties.
24In view of that finding, I need not address the motion for security for costs.
VI. Costs
25If the parties cannot agree on costs, I will receive written submissions of no more than 3 pages, excluding a bill of costs. The Moving Parties are to serve and file their submissions within two weeks of release of this endorsement; the Responding Party is to serve and file her submissions within two weeks of service of those of the Moving Parties. There shall be no reply.
Bloom, J.
DATE: May 16, 2017