Court File and Parties

Court File No.: CV-16-551335 Date: 2018-05-22 Superior Court of Justice - Ontario

Re: The Livestock Financial Protection Board, Plaintiff/Defendant by Counterclaim And: Michael Leslie Harrington, Defendant/Plaintiff by Counterclaim

Before: Pollak J.

Counsel: Christopher P. Thompson, for the Plaintiff/Defendant by Counterclaim Robert Zochodne, for the Defendant/Plaintiff by Counterclaim

Heard: March 29, 2018

Endorsement

[1] This is a motion by the Plaintiff, the Livestock Financial Protection Board (the "Board"), for summary judgment for an amount owing by the Defendant Michael Leslie Harrington ("Mr. Harrington").

[2] The Defendant admits he owes $164,451.82, plus pre- and post-judgment interest, and legal costs to the Plaintiff, but counterclaims that a representative of the Board, Jim Wideman, conspired with a third party livestock dealer, Harry Dick, to put undue influence and duress on the Defendant, to sell his livestock to the third party. He claims that as a result of the undue influence and duress of Mr. Dick, he sold his livestock herd, and therefore lost his ability to continue working as a livestock farmer, which resulted in his inability to pay the amount he admits he owes to the Plaintiff.

[3] The Defendant alleges, from his interactions with Mr. Wideman, that he was intent upon putting the Defendant out of business.

[4] The Plaintiff submits that there is no genuine issue requiring a trial of the Counterclaim.

[5] The Plaintiff argues that the Counterclaim should be dismissed for several reasons:

(i) it is barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, as it was not commenced until May 19, 2016, which is more than two years from discovery of the claim on April 4, 2014;

(ii) even if the court accepts the factual allegations as true, they do not satisfy the requirements for the tort of civil conspiracy.

(iii) the evidence supporting the factual allegations is based on alleged statements made to the Defendant by the third party livestock dealer, Mr. Dick, who repeated statements made to him by the Board's representative Mr. Wideman. On this motion, the evidence of Mr. Dick is that he denies the allegations. The Board's representative Mr. Wideman also denies the allegations. He was not cross-examined. Further, there is no evidence by Mr. Dick.

[6] The Plaintiff therefore submits that there is no genuine issue requiring a trial for the Defendant's Counterclaim.

[7] I agree with the submission that the Counterclaim is barred as the limitations period has expired.

[8] Further, the Plaintiff argues that, with respect to the conspiracy claim, the unlawful act is the alleged exertion of undue influence and duress on Mr. Harrington to enter into the contract. There is no allegation that Mr. Wideman participated in the exertion of undue influence and duress on Mr. Harrington. There is no allegation that Mr. Wideman spoke with Mr. Harrington or applied any pressure on Mr. Harrington. As well, there is no allegation that Mr. Wideman specifically encouraged the unlawful act (i.e. the alleged exertion of undue influence and duress on Mr. Harrington through frequent telephone calls), or entered into an agreement for carrying out the unlawful act.

[9] The Plaintiff emphasizes that the exertion of undue influence and duress on Mr. Harrington are alleged "frequent" telephone calls. It is submitted that an allegation of frequent telephone calls, on its own, is insufficient to establish undue influence and duress which do give rise to liability on the Board for the tort of civil conspiracy.

[10] I agree with this submission.

[11] Finally, the Plaintiff submits that Mr. Wideman's direct unchallenged evidence should be preferred to the vague hearsay evidence provided in support of the counterclaim. I agree with this submission as well.

[12] In the case of Vinette v. Delta Printing Limited, 2017 ONSC 182, the court summarized the law regarding summary judgment as follows:

[11] As currently worded and as interpreted by the Supreme Court of Canada the rule now imposes a three part inquiry.

[12] The first question is whether there is a genuine issue at all? For a plaintiff there will be no genuine issue if the plaintiff has all the evidence to prove its case and the defendant has insufficient evidence to contradict it and any legal defences raised by the defendant are without merit.

[13] If there does appear to be a genuine issue then the second stage of the inquiry is to determine if the issue can be resolved without a trial. The rule provides mechanisms to do so. For example, if the genuine issue is an evidentiary issue then pursuant to Rule 20.04(2.1) and (2.2) the motions judge may weigh the evidence and make findings of credibility and, if it is necessary, may conduct a mini-trial. If it is a pure question of law then the judge may decide the question pursuant to Rule 20.04(4). If the only issue is the quantum of damages judgment can be granted with a reference under Rule 20.04(3).

[14] Finally, if a trial is necessary then the court may narrow the issues and give directions for an expedited trial under Rule 20.05. The Supreme Court has now mandated that there be a culture shift. Summary judgment should be granted whenever it is just to do so. No longer is the full forensic machinery of a trial to be regarded as the default process. Part of the analysis is a proportionality analysis because defaulting to a trial that may be unaffordable and disproportionate to the issues in dispute has significant implications for access to justice.

[15] Proportionality of course is not the same as expediency. It is important to remember that the primary objectives of Rule 20 are to weed out cases that have no merit or to determine cases that can justly be determined without a trial. The rule is not designed to substitute judicial guesswork or scepticism for the rules of evidence or the hard work of fact finding. Summary judgment is not to be granted inappropriately simply because the judge feels a party is unlikely to succeed at trial. It is only appropriate in cases where the tools available on a summary judgment motion permit the judge to reach a decision fairly and justly. Conversely however the motions judge should not shirk his or her responsibility for making hard decisions simply because it is safer or easier to permit the matter to proceed to trial.

[13] I find that on the basis of the evidentiary record, there are no genuine issues requiring a trial. I find that as directed by the Supreme Court of Canada I can make a fair decision based on the record before me. I find that the Plaintiff has met its burden of proving it is entitled to judgment against the Defendant in the amount of $164,451.82 and that the Defendant’s counterclaim should be dismissed.

Costs

[14] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Plaintiff’s submissions are to be delivered by 12:00 p.m. on May 31, 2018, and the Defendant’s submissions are to be delivered by 12:00 p.m. on June 7, 2018. Any reply submissions are to be delivered by 12:00 p.m. on June 14, 2018.

Pollak J.

Date: May 22, 2018