Court File and Parties
COURT FILE NO.: 18-1171 DATE: 2019-04-05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Sanderson Plaintiff/Responding Party – and – Joan Jay Defendant/Moving Party
COUNSEL: J. Valler, for the Plaintiff/Responding Party C. Salazar and M. Goodman, for the Defendant/Moving Party
HEARD: March 14, 2019
J. Speyer J.
A. Overview
[1] The plaintiff, Mr. Sanderson, and the defendant, Mrs. Jay, have the good fortune to own waterfront property on Lake Simcoe. They are neighbours.
[2] Unfortunately, their once amicable relationship has deteriorated and they are unable to collaboratively resolve the sorts of issues that ordinarily arise between neighbours. Living on the water has become a source of conflict for them, rather than a source of pleasure.
[3] Mr. Sanderson owns the waterfront property situated to the south of Mrs. Jay’s home. He takes the position that a 2011 fence dispute with Mrs. Jay triggered a long-standing campaign by her to make his life difficult.
[4] The specific dispute that caused Mr. Sanderson to initiate an action against Mrs. Jay concerns the installation of their respective docks and boat lifts in May, 2018. Mr. Sanderson’s contractors installed his dock and boat lift on May 9, 2018. They installed his boat lift on the north side of his dock. Hearsay evidence indicates that the contractors were told by a male person on the Jay property that they would move the boat lift themselves if it were installed on the north side. Apparently, installation of the Sanderson boatlift on the north side of the dock interfered with the ability of the Jays to install their dock in a line just north of a line drawn by extending the property line between the two properties out into the lake. This is because of the curve of the shoreline.
[5] The Sanderson boat lift was in fact moved, and reinstalled backwards, in an inoperable condition, on the south side of the Sanderson dock. No one saw that happen. The Jay dock and boat lift were installed, with their boat lift on the north side of their dock. Photographs of the two docks and boat lifts show that they were installed in close proximity to each other. Mr. Sanderson swears that before the fence dispute, there was no issue with respect to the placement of their docks, because Mrs. Jay placed her dock on the north side of her property, but that after the fence dispute, she installed her dock hard against the extended southern boundary of her property.
[6] Mr. Sanderson also swears that Mrs. Jay has, over the course of the last several years, verbally harassed his roofers, snow removal service, and dock installers by yelling at them and calling them names, causing some of them to quit. He also alleges that, at some unspecified time, she permitted her guests to park in his driveway.
[7] Mrs. Jay lives in an all-season house on the lake with her husband. They have lived there since the late 1960’s. Mrs. Jay is 72 years old, and retired. She is a grandparent and an active volunteer in her community and her church. In her affidavit, she denies that she has acted in the manner alleged by the plaintiff. She acknowledges that there was a dispute with him regarding the placement of the fence between them in 2011, and swears that she came to an agreement with Mr. Sanderson about the fence in 2011 and that there have been no fence-related issues since then. She denies that she moved the Sanderson boat lift from the north to the south side of their dock. She has filed an affidavit from her dock installer in which he states that he did not move the Sanderson boat lift. Her affidavit does not disavow knowledge of who moved the boat lift, why it was moved, and any role she may have played in the movement, other than moving it herself.
[8] This dispute has prompted Mr. Sanderson to bring an action for damages based on trespass, nuisance, Rylands v. Fletcher, and infringement of his riparian rights. By a statement of claim issued on July 31, 2018, brought under the simplified procedure provided in Rule 76 of the Rules of Civil Procedure, Mr. Sanderson claims specific, general, punitive, aggravated and exemplary damages in the amount of $50,000. He also seeks declaratory and injunctive orders that would have the effect of keeping Mrs. Jay and her guests off his property.
[9] The defendant moves for summary judgment on the basis that the plaintiff has failed to adduce evidence that could make out any of his claims.
B. The legal principles that govern motions for summary judgment
[10] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 66, the Supreme Court described the proper approach to a motion for summary judgment.
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 (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.
[11] 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." Notwithstanding the expanded fact-finding powers of a motions judge hearing a motion for summary judgment, 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, at para. 50.
[12] On this motion for summary judgment, I am entitled to assume that the parties have advanced their best case, and that the record before me contains all the evidence that the parties would present at trial. It is trite law that each side must "put its best foot forward” in a motion for summary judgment: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32; Ramdial v. Davis, 2015 ONCA 726, 341 O.A.C. 78, at para. 27; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11; Chernet v. RBC General Insurance Company, 2017 ONCA 337, 11 M.V.R. (7th) 1, at para. 12; 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, at para. 49.
[13] The moving party, Mrs. Jay, bears the burden of producing sufficient evidence to support a conclusion that there is no genuine issue requiring a trial.
C. Is there a genuine issue requiring a trial?
[14] In order to determine whether the evidence filed on this motion permits me to fairly and justly adjudicate the dispute between the parties, it is necessary to understand what is in dispute. The disputed material facts in this case, about which conflicting evidence has been adduced by the parties are:
- Did Mrs. Jay enter on Mr. Sanderson’s property in May 2018, and move his boat lift to the south side of his dock, causing damage to the boat lift and rendering it inoperable?
- As a result of Mrs. Jay’s actions, is Mr. Sanderson unable to access the water with his boat without encroaching on the riparian rights of his neighbour to the south?
- Has Mrs. Jay entered on Mr. Sanderson’s property and come close to his property for the purpose of harassing him, his family, invitees, contractors and agents during the year preceding July 31, 2018? She is alleged to have attempted to frustrate the work of contractors, including the persons who installed Mr. Sanderson’s dock in May, 2018, and to have caused her guests to park in Mr. Sanderson’s driveway.
- Has Mrs. Jay waged a deliberate campaign to cause distress to Mr. Sanderson?
Mr. Sanderson’s affidavit alleges that Mrs. Jay did each of these things. Mrs. Sanderson, in her affidavit, denies them all.
[15] The record consists of contradictory affidavit evidence. The disputed issues of fact in this case are significant.
[16] This is a simplified procedure action, and Rule 76.04 of the Rules of Civil Procedure provides that neither party is permitted to cross-examine on the affidavits filed on the motion. The problematic nature of motions for summary judgment in the context of simplified procedure actions has been noted by the Ontario Court of Appeal. In Singh v. Concept Plastics Ltd., 2016 ONCA 815, the court stated, at para. 23:
Although summary judgment is available in the context of actions brought under the simplified procedure, as this court stated in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 256:
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.
[17] Copeland J., in Cornacchia v. Rubinoff, 2018 ONSC 2732, recently noted, at para. 40:
Concept Plastics does not hold that summary judgment will never be available on a simplified procedure matter due to the unavailability of cross-examination on the affidavits filed for the motion. Rather, in Concept Plastics the Court of Appeal signaled the need for caution in considering summary judgment motions in simplified procedure matters, due to the unavailability of cross-examination. Where a motions judge is considering a summary judgment motion in a simplified procedure matter, the judge should consider if there is unfairness as a result of the unavailability of cross-examination. If the motions judge grants the motion, the judge should explain why and how the potential unfairness due to the unavailability of cross-examination is addressed by the materials filed on the motion: see Concept Plastics at paragraphs 24-25.
[18] Charney J. considered a similar situation in Diao (Litigation guardian of) v. Zhao, 2017 ONSC 5511 and concluded, at para. 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.
[19] Resolution of the disputed facts in this case requires a trial. In 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, at para. 47, the Ontario Court of Appeal “cautioned that in the summary judgment and mini-trial context, motion judges must take great care ‘to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters’: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44”. It is not possible in this case to fairly and properly evaluate the credibility and reliability of the affiants in the absence of cross-examination. There has been no cross-examination of the plaintiff. The cross-examination of the defendant occurred notwithstanding Rule 76.04, and is not properly before me on the motion. Consequently, I have disregarded that cross-examination. Other witnesses who provided affidavits have also not been cross-examined. This state of affairs reflects the nature of a simplified procedure action. The credibility and reliability of all of the witnesses who provided affidavits is critical to a proper resolution of the disputed factual issues, and it is impossible to fairly evaluate that evidence when it had not been tested by cross-examination.
[20] Notwithstanding that the facts of this case are disputed, if the evidence adduced by the plaintiff, taken at its highest, fails to establish a cause of action that has been pleaded, no genuine issue for trial will exist in relation to that cause of action. In Ford Motor Co. of Canada Ltd. V. Ontario Municipal Employees Retirement Board (1997), 36 O.R. (3d) 384, at pp. 394-5, Osborne J.A. held that partial summary judgment will be appropriate in:
Actions where the evidence establishes that there is no genuine issue for trial in respect of a discrete claim. … [T]he result of summary judgment for “part of” a claim is consistent with the purpose of Rule 20; the partial summary judgment removes a discrete issue from the issues to be tried and thus shortens the trial.
See also: D.G. Sportsdome Inc. v. D.G. Sports Inc., 2010 ONCA 234 at paras. 37-38, leave to appeal refused [2010] S.C.C.A. No 218.
[21] The plaintiff has pleaded multiple causes of action, and it is necessary to examine each of them, to determine whether each presents a genuine issue for trial.
(a) Trespass
[22] Trespass is “the act of entering upon land, in the possession of another, or placing or throwing or erecting some material object thereon without the legal right to do so”. See: Mann v. Saulnier, (1959), 19 D.L.R. (2d) 130 (N.B.S.C.), at p. 132. Philip H. Osborne, in The Law of Torts, 4th ed. (Toronto: Irwin Law, 2011), at pp. 296-298 describes the elements of the trespass as follows:
- The intrusion onto the land must be direct;
- The interference with land must be intentional or negligent; and
- The defendant’s interference with the land must be physical.
[23] It is the position of the plaintiff that the defendant trespassed on his land when she moved, or caused to be moved, his boat lift from the north to the south side of his dock. Even if an inference is available from the circumstantial evidence in this case that the defendant moved or caused the boat lift to be moved, the plaintiff has adduced no evidence that she, or anyone directed by her, entered onto his land to move the boat lift. His dock is not his land. He has no ownership interest in the lake bed on which the dock rests. The dock is personal property, not land. His dock was clearly accessible by boat, and there is no evidence whatsoever, that entry onto his land was required to access and move the boat lift.
[24] The claim based on trespass presents no genuine issue for trial. It is dismissed.
(b) Nuisance
[25] While the categories of private nuisance are not closed, the Supreme Court of Canada, in St. Pierre v. Ontario (Minister of Transportation and Communications), [1987] 1 S.C.R. 906, at paras. 7 and 10 approved the test of nuisance set out in Fleming, The Law of Torts (4th ed., 1971), at p. 346:
The paramount problem in the law of nuisance is, therefore, to strike a tolerable balance between conflicting claims of landowners, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other. Reconciliation has to be achieved by compromise, and the basis for adjustment is reasonable use. Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to hear, having regard to the prevailing standard of comfort of the time and place. Reasonableness in this context is a two-sided affair. It is viewed not only from the standpoint of the defendant’s convenience, but must also take into account the interest of the surrounding occupiers. It is not enough to ask: Is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, is he using it reasonably, having regard to the fact that he has a neighbour?
The Supreme Court, at para. 10, also approved the definition provided by Street, The Law of Torts (6th ed., 1976), at p. 219:
A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.
[26] The Supreme Court again examined the elements of private nuisance in Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at para. 19.
The elements of a claim in private nuisance have often been expressed in terms of a two-part test of this nature: to support a claim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances.
At para. 22, the court noted that “a substantial injury to the complainant’s property interest is one that amounts to more than a slight annoyance or trifling interference. And at para. 23, “[n]uisance may take a variety of forms and may include not only actual physical damage to land but also interference with the health, comfort or convenience of the owner or occupier". When a substantial interference is found to exist, compensation will be justified only if the interference, assessed in light of all of the relevant circumstances, is unreasonable. See: Antrim, at paras. 24-25.
[27] It is the position of the plaintiff that a “sustained campaign of harassment” by the defendant has interfered with his enjoyment of his property. In support of this position, he relies on the evidence contained in his affidavit, and in the affidavit of his dock installer, that in May of 2018, the plaintiff yelled at the installers when they were putting in his dock and boat lift. He contextualizes this interaction by reliance on two earlier altercations he says occurred between the defendant and his contractors, sometime since 2011. In his statement of claim and in his factum, the plaintiff does not rely on the tort of harassment as a basis of liability, but instead argues that the defendant’s harassment of him amounts to private nuisance. In oral argument, he took the position that the defendant’s acts, together with the moving of his boat lift, cumulatively amounted to substantial interference with his use and enjoyment of his land.
[28] Taking the plaintiff’s evidence at its highest, it is incapable of making out the elements of private nuisance in a fashion that could justify compensation. If the defendant yelled at the plaintiff’s dock installers when they installed his dock and boat lift, her conduct, no doubt annoying, did not amount to a substantial interference with the plaintiff’s property interest. It did not prevent the installers from putting the plaintiff’s dock and boat lift where he chose. The fact that on a few occasions over the previous seven years the plaintiff may have yelled at other contractors does not elevate such conduct from an unpleasant annoyance to a substantial interference.
[29] There being no genuine issue for trial in relation to claim based on nuisance, the motion for summary judgment succeeds in relation to that aspect of the claim.
(c) Rylands v. Fletcher
[30] While the plaintiff pleads reliance on the rule in Rylands v. Fletcher in his statement of claim, he has not pursued this claim in his factum or oral argument on this motion. He has adduced no evidence of any of the elements of this claim. He has adduced no evidence that Mrs. Jay made a non-natural or special use of her land, that she brought something on to her land that was likely to do mischief if it escaped, that the thing in fact escaped, or that his property was damaged as a result of the escape. There is no genuine issue for trial in relation to the claim based on Rylands v. Fletcher, and the motion for summary judgment succeeds in relation to that aspect of the claim.
(d) Interference with riparian rights
[31] The owner of property that adjoins a lake is a riparian owner. Riparian rights were explained in Gerald V. Leforest and Associates, Water Law in Canada – The Atlantic Provinces (Ottawa: Queen’s Printer, 1973), as follows:
A riparian owner has a right of access over the shoal waters of a lake to the deeper waters where navigation practically begins. No one, not even the Crown, can erect any structure on the shore or otherwise permanently obstruct a riparian owner’s right of access. For example, a permanent boom of logs in front of a riparian owner’s land or a neighbouring wharf that blocks his access would entitle him to a right of action.
The riparian owner’s right of access exists in a direct line from every point along the whole frontage of his land on the water. It is, therefore, no answer to an action for damages for obstruction of the right that the owner can get to and from the water from another part of the land. [Emphasis added.]
See: Corkum v. Nash, [1990] N.S.J. 423 (S.C.), at para. 45; Day v. Valade, 2017 NSSC 175, at para. 23.
[32] The plaintiff and the defendant are both riparian owners. They both have a right of access to navigable waters from every point along the whole frontage of their land.
[33] It is the position of the plaintiff, as described in the statement of claim, that as a result of the defendant’s actions in moving his boat lift to the south side of his dock, he cannot access the water from his lands, and is required to encroach on the rights of his neighbour to the south to access the water with his boat. He pleads that the defendant has interfered with his riparian rights.
[34] The defendant’s statement of defence responds to this claim by denying that she, or her dock installer, moved the plaintiff’s boat lift. She does not dispute that the placement of the defendant’s boat lift on the south side of his dock encroaches on the rights of his neighbour to the south.
[35] I am satisfied that there is a genuine issue for trial regarding this aspect of the plaintiff’s claim. There is no direct evidence that the defendant moved the plaintiff’s boat lift herself, or what role she may have played in its movement. However, facts may be proved by circumstantial evidence, and in this case there is circumstantial evidence of her participation in the moving of the boat lift. First, there is no dispute that the boat lift was moved. The movement of the boat lift from the north to the south side of the plaintiff’s dock serves only one purpose, and that is to permit the defendant to install her dock in a line with the south boundary of her property, when the property line is projected over the water. There is evidence, albeit hearsay, in the affidavit of Raymond Rankine, the owner of the marine service that installed the plaintiff’s dock and boatlift in 2018, that his employees told him that “the neighbour to the north had stated that he was going to move the lift himself” [emphasis added]. There is no way to discern who Mr. Rankine’s employee was referring to, but Mrs. Jay’s nephew uses her dock and boat lift to access and store his boat. An alternative explanation is that Mr. Rankine reported the gender of the neighbour to the north incorrectly. Mrs. Jay’s affidavit denies that she moved the boat lift herself, but is silent as to any role she played in directing that it be moved, or aiding someone else to move it. There is an available inference on the evidence that the plaintiff’s boat lift was moved to facilitate the defendant’s ability to place her dock where she wanted it to be, in accordance with the stated intention of someone who was on her property, and that therefore the boat lift was moved at her direction.
[36] I am also satisfied that there is a genuine issue for trial regarding the issue that underlies the dispute between the plaintiff and the defendant, and that is the boundary of their respective riparian rights. The plaintiff’s affidavit includes photographs that evidence the size and shape of the properties in question. They are narrow, and situated on a small bay. By installing her long dock in line with the property line between her and the plaintiff, the defendant appears to have compromised the plaintiff’s ability to access navigable water without, as he swears in his affidavit, interfering with the riparian rights of his neighbour to the south.
[37] The defendant has not adduced any evidence of her entitlement to install her dock as she did in 2018. In oral argument, her counsel emphasized that she installed it directly to the north of a line that extends her property line into the lake. The defendant assumes that this is how her entitlement to place her dock is determined, but provides no authority to support that position. Her position assumes that the plaintiff has no right to place his boat lift on the north side of his dock, because her dock installation in 2018 leaves insufficient room for him to do that, as evidenced by the photographs included in the plaintiff’s affidavit.
[38] In Day v. Valade, the riparian right of access was held to entitle a property owner to place a boat in the lake at any point along their shoreline and to travel directly out from the shore to reach navigable water. A wharf and dock installed on an adjacent property that obstructed the property owner from doing so, would amount to a breach of their riparian rights. The trial judge in Day v. Valade found that a direct line out from the shore refers to a line that travels in a direction that is perpendicular to the shore, and rejected the argument that such a line refers to an extension of the property line.
[39] The defendant has adduced no evidence as to where a line perpendicular to the shore at the point of the boundary between her land and the plaintiff’s land at the waterline would be drawn. She has adduced no evidence as to where navigable waters begin, so as to justify her installation of a very long dock. She has failed to meet her burden to demonstrate that there is no genuine issue requiring a trial. There are factual issues to be determined as to her involvement in the moving of the defendant’s boat lift, and as to where she may lawfully install her dock.
[40] On this motion for summary judgment, the onus is on the moving party, Mrs. Jay, to lead evidence that there is no genuine issue of material fact requiring a trial. She has not met her onus in relation to the claim that she interfered with the riparian rights of Mr. Sanderson.
D. If there is a genuine issue requiring a trial, can the need for a trial can be avoided by using the powers under rr. 20.04(2.1) and (2.2)?
[41] Rules 20.04(2.1) and (2.2) provide:
(2.1) [Powers] 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.
(2.2) [Oral Evidence (Mini-Trial)] 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.
[42] If credibility cannot be assessed on a written record, that should be a sign that oral evidence or a trial is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55; 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, at para. 41. Resolution of the disputed factual issues in this case requires oral evidence.
[43] While I have the ability to order that oral evidence be heard on the motion for summary judgment, whether that should occur turns on whether the summary judgment process provides a timely, affordable and proportionate procedure by which to adjudicate this dispute. The Ontario Court of Appeal made this point in Combined Air, at paras. 256 and 261, as follows:
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.
[44] I have considered whether I should exercise the jurisdiction conferred by Rule 20.04(2.2) to hear oral evidence within the summary judgment motion. I find that in the circumstances of this case, proceeding to hear oral evidence within the summary judgment motion would not be an efficient or proportionate process by which to achieve a just result. Because this is a simplified procedure claim, the trial is expected to be relatively short. It is more efficient to order that the matter proceed to a simplified trial under Rule 76 than to conduct cross-examination within a summary judgment motion. This case requires a summary trial, not a motion for summary judgment.
E. Conclusion
[45] It is ordered that:
- The claims based on trespass, nuisance, and Rylands v. Fletcher are dismissed.
- The motion for summary judgment in relation to the claim based on interference with riparian rights is dismissed.
- The claim based on interference with riparian rights will proceed to a simplified trial conducted in accordance with Rule 76 of the Rules of Civil Procedure.
- There will be no order as to costs, because the parties have each achieved mixed success on the motion.
J. Speyer J.