Court File and Parties
CITATION: Diao v. Zhao, 2017 ONSC 5511
COURT FILE NO.: CV-15-122696-SR
DATE: 20170920
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ZHOU CHENG DIAO also known as JOSEPH DIAO minor by his Litigation Guardian, LI DIAO, Plaintiffs
AND:
DAVID ZHAO, QIANG ZHAO and SHAOHONG FENG, Defendants
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: Elena E. Mazinani, Counsel for the Plaintiff Andrew Jia, Counsel for the Defendants
HEARD: September 15, 2017
ENDORSEMENT
[1] The plaintiff, Zhou Diao, and the defendant, David Zhao, were high school friends. On February 26, 2014 they were walking home from high school with two other friends. While walking through a parking lot the defendant pushed the plaintiff from behind, and the plaintiff fell forward and injured his mouth. Three of his teeth were fractured requiring root canal treatment and restoration.
[2] The reasons for this push are disputed by the parties, an issue I will return to in these reasons. Briefly, the plaintiff takes the position that the push was unprovoked, the defendant states that he was responding to being teased by the plaintiff.
[3] The plaintiff commenced this action against the defendant and his parents under the simplified procedure provided in Rule 76 of the Rules of Civil Procedure on May 6, 2016. The plaintiff claimed damages in the amount of $100,000.
Motion for Summary Judgment
[4] On July 28, 2017, the plaintiff brought a motion for summary judgment pursuant to Rule 20.01 of the Rules of Civil Procedure. In his factum he argues that the court should decide the issues of liability and damages on the basis of the material filed by the plaintiff in support of his motion, and argues that the defendant has failed to show that there is a genuine issue requiring a trial.
[5] The defendant’s factum argues that the defendant has not submitted sufficient evidence to prove either liability or damages, and in the alternative that there are genuine issues of both liability and damages requiring a trial.
[6] On September 7, 2017 the plaintiff’s counsel filed a confirmation of motion indicating that the motion would proceed on a hearing of all issues.
[7] At the commencement of the hearing of the motion on September 15, 2017 plaintiff’s counsel advised the court that she was seeking an adjournment of her motion for summary judgment so that she could cross-examine the defendant. She explained that she had been expecting the defendant to file an affidavit in response to the plaintiff’s motion, and had anticipated that she would be able to cross-examine the defendant to support the plaintiff’s motion. The defendant did not, however, file a personal affidavit. Instead, the defendant relies on an affidavit sworn by a law clerk, who has no personal knowledge of the facts, but attaches as an exhibit an undated statement prepared and signed by the defendant explaining his side of what happened.
[8] This statement, which was requested by the high school around the time of the accident, had been in the possession of the plaintiff for some time. It was an exhibit in an earlier affidavit signed by the plaintiff on October 28, 2016, and is referred to, but not attached, to the plaintiff’s July 28, 2017 affidavit in support of the current summary judgment motion.
[9] The defendant opposed the adjournment request, pointing out that the initial evidentiary onus on a motion for summary judgment is on the moving party. The responding party has no obligation to file a personal affidavit in response to a motion for summary judgment. Whether he does so is a matter of litigation strategy. Even if the defendant had filed a personal affidavit, this proceeding was commenced under the simplified procedure provided in Rule 76, and Rule 76.04(1) does not permit cross-examination of a deponent on an affidavit filed in support of a motion for summary judgment in the context of a Rule 76 proceeding.
[10] At the conclusion of the argument I reserved my decision and advised the parties that I would either grant the adjournment or dismiss the motion for summary judgment without deciding the merits of the case.
[11] I have decided that it would be inappropriate to adjourn the motion, and that the motion for summary judgment should be dismissed. Simply stated, given the state of the record, this is not an appropriate case in which to grant summary judgment for either side. A motion for summary judgment is not the most expeditious and least expensive means to achieve a just result in this case.
[12] In order to explain my conclusion I will first summarize the general principles applicable to motions for summary judgment, and then consider the inadequacies in the motion records presented in this case.
Analysis – Motions for Summary Judgment
[13] Rule 20.01 of the Rules of Civil Procedure provides:
The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[14] Rule 20.04(2.1) sets out the powers of the court on a motion for summary judgment:
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.
[15] These powers have been extensively reviewed by the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
[16] Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” Hryniak supra, at para. 50. In Hryniak the Supreme Court held (at para. 49) that there will be no genuine issue for trial when the summary judgment 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.”
[17] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of 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.
[18] The motion judge is entitled to assume that the record contains all of the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial.
[19] Pursuant to Rule 20.02(1) affidavits may be made on information and belief, but 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.
[20] This adverse inference is particularly appropriate in cases in which a party is relying on a doctor’s clinical notes in a motion for summary judgment. A party should not be permitted to “shield its expert from cross-examination through the use of an ‘information and belief’ affidavit of someone completely unqualified to testify on the issue”, Suwary v. Women’s College Hospital, [2008] O.J. 883 (S.C. at para. 30) and Dupont Heating & Air Conditioning Limited v. Bank of Montreal, [2009] O.J. No. 386 (S.C. at para. 51 and cases cited therein). See also: Ghaffari v. Asiyaban, 2013 ONSC 387 at para. 18:
The clinical notes and records and the consultation note of Dr. Azadian in no way comply with the requirement on a summary judgment motion to place before the court expert evidence in a form that conforms with the Rules and the Evidence Act. At the very least, these records should have been put into an affidavit from the psychiatrist that could then have been cross-examined upon.
[21] Where summary judgment is refused or is granted only in part, Rule 20.05 provides “the court may make an order specifying what material facts are not in dispute and defining the issues to be tried and order that the action proceed to trial expeditiously” and to give directions or impose such terms as are just.
[22] It is now well settled that “both parties on a summary judgment motion have an obligation to put their best foot forward”, Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753 at para. 9. Given the onus placed on the moving party to provide supporting affidavit or other evidence under Rule 20.01, “it is not just the responding party who has an obligation to ‘lead trump or risk losing’”, Ipex Inc. v Lubrizol Advanced Materials Canada, 2015 ONSC 6580 at para. 28.
[23] A plaintiff bringing a motion for summary judgment does not thereby reverse the onus of proof or alleviate his onus to prove the liability alleged or damages claimed. See for example, Sanzone v. Schechter, 2016 ONCA 566, at paras. 30-32, which confirms the initial evidentiary obligation borne by the moving party (in that case the defendant) on a summary judgment motion.
[24] While Rule 20.04 provides the court hearing a summary judgment motion with “enhanced forensic tools” to deal with conflicting evidence on factual matters, the court should employ these tools and decide a motion for summary judgment only if it can do so fairly: Eastwood Square Kitchener Inc. v Value Village Stores, Inc., 2017 ONSC 832 (at paras. 4 -6, and cases cited therein).
[25] Where a proceeding is commenced under the simplified procedure provided in Rule 76, the process must take into account the effect of Rule 76.04(1), which does not permit cross-examination of a deponent on an affidavit filed in support of the motion for summary judgment. This may make it more difficult for the court hearing the motion to fairly resolve factual conflicts: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at para. 243; Singh v. Concept Plastics Limited, 2016 ONCA 815 at paras. 22 – 24; and Bogatyreva v. Ricky3 Holdings Ltd., 2014 ONSC 3516 at paras. 27, 28 and 37. In such cases a summary trial may be the more expeditious and less expensive means to achieve a just result.
The Affidavit Evidence Filed By The Parties In This Case
[26] The plaintiff has filed affidavit evidence to support his position on the questions of liability and damages.
[27] With respect to the issue of liability, the plaintiff, who is now an adult, has sworn an affidavit setting out his position with respect to what happened on the date of the incident. In this affidavit he denies insulting or teasing the defendant and states that the defendant’s actions were entirely unprovoked.
[28] So far so good.
[29] His affidavit also includes correspondence between his father and the defendant’s father, in which the defendant’s father apologized for the injury caused by the defendant. The plaintiff takes the position that this apology is an admission of liability on behalf of the defendant.
[30] This latter evidence is not admissible. The Apology Act, 2009, SO 2009, c. 3, s.2 provides:
- (1) An apology made by or on behalf of a person in connection with any matter,
(a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter;
(c) shall not be taken into account in any determination of fault or liability in connection with that matter.
[31] In addition, pursuant to s. 2(3) of the Apology Act:
[E]vidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any civil proceeding … as evidence of the fault or liability of any person in connection with that matter.
[32] Accordingly, those portions of the plaintiff’s affidavit relying on the defendant’s father’s apology are inadmissible and cannot be taken into account to determine liability.
[33] With respect to the issue of damages, nowhere does the plaintiff’s factum quantify the damages sought. That is unusual for a plaintiff’s motion for summary judgement. If there is no genuine issue for trial the quantum of damages should be clearly set out. When pressed on the issue, counsel for the plaintiff proposed a method for calculating the amount of damages, including future care. That method was without any evidentiary foundation in the motion record. When asked for the evidence to support the proposed method of calculation, she referred to the affidavit of the plaintiff. Nowhere in that affidavit does the plaintiff actually quantify the amount of past or future care.
[34] The plaintiff does attach the clinical notes and “treatment plans” of his dentist, but the dentist herself has not sworn an affidavit. Even the clinical notes do not support the position of the plaintiff. The notes indicate that the plaintiff fractured teeth #12, 11 and 21, and required root canal treatment and restoration. There is no invoice for this surgery. The notes indicate that tooth #21 needs to be extracted due to infection, and the estimated cost is $6,584. The notes indicate that the crowns for teeth #12 and 11 will need to be changed “every ten to fifteen years” at the cost of $985 per crown. Finally, the dentist’s notes indicate that “there is a risk of infection and/or root fracture in the future” and that if that happens teeth #12 and 11 will have to be extracted at $6,584 per tooth. There is no indication what the level of risk may be. Clearly the latter two risks (replacing the crowns on teeth #11 and 12 or extracting teeth #11 and 12) are, to some extent, mutually exclusive. This is not sufficient for a court to assess the likelihood of future care costs.
[35] The plaintiff attached no invoices to his affidavit. An affidavit filed on behalf of the defendant does attach as an exhibit the plaintiff’s health insurer’s detailed account of dental services claimed and reimbursed by the insurer as of July 20, 2016. According to that document the total claimed by the plaintiff for dental services as of that date was $6,658.[^1]
[36] $6,658 is well within the monetary jurisdiction of the Small Claims Court. Indeed, even if all three teeth were extracted it would be within the monetary jurisdiction of the Small Claims Court, and the costs consequences of Rule 57.05(1) could apply to any decision rendered by this court.
[37] The defendant has also filed affidavits. The first affidavit dated August 9, 2017 is from a lawyer in the defendant’s counsel’s law firm. The lawyer’s affidavit attaches statements prepared by the two other students who were with the plaintiff when the incident occurred. The lawyer’s affidavit also refers to the defendant’s own signed statement to the school, although does not attach that statement as an exhibit under the mistaken belief that the defendant’s statement was already an exhibit to the plaintiff’s affidavit. That was an understandable mistake – the defendant’s statement was in fact an exhibit to the plaintiff’s original affidavit dated October 28, 2016, but was not attached to the plaintiff’s revised affidavit dated July 28, 2017, although the statement is referred to in the body of the July 28, 2017 affidavit.
[38] The lawyer’s affidavit filed on behalf of the defendant also includes the above referenced copy of the account of dental services reimbursed by the plaintiff’s health insurer, and copies of the plaintiff’s report cards to show that his grades did not decline.
[39] So far so good, although a judge hearing a summary judgment motion may draw an adverse inference under Rule 20.02(1), because the defendant and the other two students did not provide their evidence directly. That is a risk that the defendant decided to take.
[40] The balance of the lawyer’s affidavit is inadmissible legal argument. She purports to argue that the exhibits to the plaintiff’s affidavit do not prove the statements in his affidavit, that expert evidence is necessary to prove the plaintiff’s damages claim, that the plaintiff’s evidence does not prove that the defendant is liable, and that there are genuine issues requiring a trial. These may all be good legal arguments, but legal arguments have no place in an affidavit. Legal argument should be confined to the defendant’s factum.
[41] Finally, the defendant has filed an affidavit of a law clerk that includes the signed but unsworn statement of the defendant setting out his account of the incident and how he came to push the plaintiff. The law clerk’s affidavit explains that the defendant had assumed that this statement, which was included in the plaintiff’s October 28, 2016 affidavit, was also included in the plaintiff’s July 28, 2017 affidavit, and only recently discovered that the exhibit was missing from the latter.
Adjournment Request
[42] As indicated above, plaintiff’s counsel has requested this adjournment because she wants to cross-examine the defendant in support of the motion for summary judgment.
[43] That is not how a motion for summary judgment works in a proceeding commenced under Rule 76.
[44] As with any motion for summary judgment, if the plaintiff is the moving party, he must put forward all the affidavit or other evidence he requires to support the motion for summary judgment.
[45] The defendant must then decide whether and how to respond to the plaintiff’s evidence. The defendant has several options: he may file a personal affidavit setting out his evidence of the events at issue; he may do nothing, and simply take the position that the plaintiff has failed to meet his initial onus; or, he may file affidavits based on information and belief, but risks an adverse inference being drawn for failure to provide an affidavit from the person having personal knowledge.
[46] Under Rule 76.04(1) 2, cross-examination of the deponent on an affidavit in support of a motion is not permitted in an action commenced under the simplified procedure of Rule 76. This includes an affidavit in support of a motion for summary judgment: see Combined Air Mechanical Services Inc. v. Flesch, at para. 243 and Singh v. Concept Plastics Limited, at paras. 22 – 24.
[47] If the plaintiff wants to cross-examine the defendant, the plaintiff wants a summary trial, not a motion for summary judgment. This point was made by the Ontario Court of Appeal in Combined Air, at paras. 256 and 261:
First, summary judgment motions in simplified procedure actions should be discouraged where there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross-examination, or where oral evidence is clearly needed to decide certain issues. Given that Rule 76 limits discoveries and prohibits cross-examination on affidavits and examinations of witnesses on motions, the test for granting summary judgment will generally not be met where there is significant conflicting evidence on issues confronting the motion judge. While the motion judge could order the hearing of limited oral evidence on the summary judgment motion under rule 20.04(2.2), in most cases where oral evidence is needed, the efficiency rationale reflected in the rule will indicate that the better course is to simply proceed to a speedy trial, whether an ordinary trial or a summary one: see rules 76.10(6) and 76.12.
Moreover, in the context of a simplified procedure action, a summary judgment motion that requires oral evidence from key witnesses offers little or no benefit from an efficiency standpoint as compared to the parties simply proceeding to trial
[48] This point was recently confirmed by the Ontario Court of Appeal in Concept Plastics at para. 23.
[49] The plaintiff was not prejudiced by the filing of the law clerk’s affidavit on August 31, 2017, because the only item in that affidavit is the defendant’s written statement, which was in the possession of the plaintiff for over a year, was an exhibit in the plaintiff’s original October 26, 2016 affidavit, and was expressly referenced in the July 26, 2017 iteration of the plaintiff’s affidavit. The plaintiff can hardly complain that the defendant has put before the court a document that the plaintiff himself references in his affidavit.
[50] In addition, the plaintiff filed a Confirmation of Motion form on September 7, 2017, one week after receiving the August 31, 2017 affidavit. Nothing has changed between September 7, 2017 and the morning of September 15, 2017, when the motion was to be argued and counsel for the plaintiff first advised counsel for the defendant that she would be requesting an adjournment.
[51] Counsel for the plaintiff explained that it was her intention to ask the court for leave to cross-examine the defendant before the plaintiff’s motion was heard, and to proceed by way of “mini-trial” under Rule 20.04(2.2). She had not advised the defendant’s counsel of this intention prior to the morning the motion was to be heard, and the defendant was not present in court for these proceedings.
[52] In any event, counsel for the plaintiff’s intention to ask the court for leave to cross-examine the defendant in court before her motion for summary judgement is heard is effectively an admission that there are genuine issues requiring a trial.
[53] A party bringing a motion for summary judgment must understand that they are taking the position that the court can decide the case on the basis of the record filed by the moving party without the need for a trial. Adjournments should not be requested because the moving party discovers that its motion record is inadequate and wants a “do-over” or wants to proceed by “mini-trial” rather than summary judgment.
[54] It is apparent to me that the court cannot fairly deal with the issues raised in this motion for summary judgment on the basis of the present record. Both parties have come to court thinking that they could rely on inadmissible affidavit evidence. The plaintiff takes the position that its motion for summary judgment should not be heard until after it cross-examines the defendant. The defendant takes the position that there are genuine issues requiring a trial. The evidence advanced in support of the plaintiff’s claim for damages is inadequate. There are factual disputes that require cross-examination by both sides.
[55] The defendant argues that what the plaintiff really wants is a summary trial in accordance with Rule 76.12 of the Rules of Civil Procedure. I agree with this assessment.
Conclusion
[56] Accordingly, this court orders that:
(a) the plaintiff’s request for an adjournment is denied, and the plaintiff’s motion for summary judgment is dismissed.
(b) either party may proceed by way of summary trial on the issues of liability and damages in accordance with Rule 76.12.
Costs
[57] Given my decision to dismiss the motion for summary judgment the defendant is presumptively entitled to costs. At the end of the hearing on the motion, the defendant indicated that he would be seeking $10,173.59 costs on a substantial indemnity basis. I advised the parties that I would give them an opportunity to review my reasons and make submissions on costs before I make any order with respect to costs.
[58] Accordingly, if the parties cannot agree on costs, the defendant may provide me with costs submissions within ten days of the release of this decision, and the plaintiff within ten days thereafter. All submissions should be a maximum of three pages, not including costs outline.
Justice R.E. Charney
Date: September 20, 2017
[^1]: The affidavit of Patricia Sim states: “The dental expenses from Green Shield Canada from the Date of Loss to June 30, 2016 show $7,613.60 in dental expenses”. When I review the relevant exhibit I see a total of $7,133.00. Of that amount $350.00 is for foot orthotics, and $125.00 is for prescription glasses, which is how I calculate $6,584.00.