Court File and Parties

Court File No.: CV-17-575349 Date: 2018-06-26 Superior Court of Justice – Ontario

Re: James Joseph Walsh, Plaintiff And: Janina Joseph-Walker and Avenue Developments Inc., Defendants

Before: Pollak J.

Counsel: Mark Russell, for the Plaintiff Michael Suria, for the Defendants

Heard: April 9, 2018

Endorsement

[1] The Plaintiff, James Joseph Walsh ("Mr. Walsh"), brings this motion for summary judgment seeking repayment of debts he asserts are owing, and admitted to be owing, by the Defendants, Janina Joseph-Walker (“Ms. Joseph-Walker”) and Avenue Developments Inc. (“Avenue”).

[2] The personal defendant, Ms. Joseph-Walker, is the sole director and controlling mind of Avenue, the defendant owing amounts pursuant to the Bills of Exchange Act, R.S.C., 1985, c. B-4 (the “Act”). She considered the Plaintiff to be a friend.

[3] The claim is for payment of dishonoured bills in the total amount of $403,000, of which $353,000 is outstanding, as well as unsecured debt of $100,000 and special damages claimed by the Plaintiff. The Plaintiff is a lawyer at the law firm Walsh & Associates (the "Firm"). The Firm is not a Plaintiff. Consequently, Mr. Walsh cannot make a claim for payment of legal fees owing to the firm.

[4] The Defendant, Avenue, was a client of the firm.

[5] In the recent case of Vinette v. Delta Printing Ltd., 2017 ONSC 182, at paras. 11-15, this court summarized our law regarding the proper summary judgment analysis:

[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.

[Footnotes omitted.]

[6] The Defendants deny that Ms. Joseph-Walker:

(a) personally agreed to repay the loan on behalf of Avenue;

(b) personally agreed to pay all of the interest, penalties, costs and other expenses incurred by the plaintiff in relation to a mortgage obtained by the Plaintiff;

(c) signed a promissory note for $190,000 plus interest at 10% per annum;

(d) is in default with respect to the $231,000 loan; and

(e) agreed to grant the Plaintiff a mortgage against the property in the principal amount of $190,000, at an interest rate of 10% per annum.

[7] A significant amount of the relevant evidence in this action is in direct conflict. The Plaintiff’s position is that these conflicts can be resolved by this Court by applying the law on dishonoured bills of exchange and by the court finding that Ms. Walsh has admitted owing the amounts claimed by the Plaintiff.

[8] The Defendant’s evidence is, however, that the debts are not due, because they were subject to the parties’ agreement pertaining to the repayment terms. As well, the personal Defendant denies that she agreed to pay for the carrying costs the Plaintiff is claiming.

[9] The Plaintiff submits that none of the Defendant’s allegations are credible or constitute a valid defence to enforcement of the Defendant’s Promissory Note. He relies on the Act.

[10] The Plaintiff argues that although the personal Defendant claims that she was pressured into signing the Promissory Note when the Plaintiff attended at her house, her “evidence is not credible and is contradicted by the emails she sent.”

[11] I do not accept the submission that the Defendants’ evidence must be rejected as I do not agree that her evidence is clearly contradicted by the emails that the Plaintiff relies on. It is important to note that the terms of the parties’ agreements are in dispute. I find that the terms of their agreements are genuine issues requiring a trial. These terms may be a defence to the Plaintiff’s arguments on the applicability of the provisions of the Act.

[12] When I consider the principles developed by our courts to be applied on summary judgment, I find that the evidence of the personal Defendant raises genuine issues that require a trial.

[13] I have considered the issue of the appropriateness of a “mini trial”.

[14] I find that it is not appropriate to conduct a mini trial. In my view, it will more efficient, leading to a just result, for the parties to proceed to trial. The resolution of the conflicts in evidence will be central to the determination of this action.

[15] For these reasons, the motion is dismissed.

[16] There is one further practical issue. The Supreme Court of Canada in Hryniak v. Mauldin, et al, 2014 SCC 7, [2014] S.C.R. 87, at para. 78 also held, at para. 78, that:

“Where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge.”

In my view, this is an appropriate case for me to follow the Supreme Court’s direction. I must, however, qualify this to recognize the practical reality of our court's ability to schedule trials in a timely and expeditious manner. I will not be seized of this trial if the effect of my unavailability would be to delay the hearing of the trial between the parties. If it is possible to do so without adverse delay or consequences to the parties, I seize myself of the trial of this matter as directed by the Supreme Court of Canada.

Costs

[17] 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 Defendants’ submissions are to be delivered by 12:00 p.m. on July 6, 2018, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on July 13, 2018. Any reply submissions are to be delivered by 12:00 p.m. on July 18, 2018.

Pollak J. Date: June 26, 2018