Court File and Parties

COURT FILE NO.: 17-73065 DATE: 2019/01/11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

GERALD W. McCLELLAND Plaintiff – and – SARAZEN REALTY INC., COLIN SARAZEN and KEITH SENNETT Defendants

COUNSEL: Christopher McLeod and Shauna Cant, for the Plaintiff (Responding Party) Steven J. Greenberg, for the Defendants (Moving Parties)

HEARD: June 26, 2018

RULING ON SUMMARY JUDGMENT MOTION

Corthorn J.

Introduction

[1] For Sarazen Realty Inc. (“SRL”), the collection and distribution of the commission on the 2015 sale, for $29,000,000, of a 100-acre property (“the Property”) has been nothing but problematic. SRL was required to pursue the vendors through litigation for payment of the commission (“the Commission Litigation”). That litigation was resolved by way of a negotiated settlement, pursuant to which the vendors agreed to pay commission totalling $950,000 (“the Settlement” and “the Commission”).

[2] The vendors subsequently attempted to resile from the Settlement. In the fall of 2017, SRL was successful on a motion to enforce the Settlement and, thereafter, on a motion for an order finding the defendants to be in contempt of court (_Sarazen Realty Inc. v. McTaggart_, 2017 ONSC 5281 and _Sarazen Realty Inc. v. McTaggart and Bisson_, 2017 ONSC 7659, respectively).

[3] In the summer of 2017, Gerald McClelland commenced this action for payment of the commission from the sale of the Property. McClelland alleges that at a time when he had an exclusive listing agreement with the vendors (“the MELA”), SRL permitted the defendant, Keith Sennett and another SRL agent (“Gayle”) to enter into an exclusive listing agreement with the Vendors (“the SELA”). An offer was made for the purchase of the Property, the vendors accepted the offer, and the sale closed in 2015.

[4] McClelland alleges that he is responsible for bringing the vendors to SRL. He claims entitlement to the Commission. McClelland’s claim is based in breach of contract, unjust enrichment, and negligence.

[5] The defendants deny that any of the claims advanced by McClelland have merit. SRL counterclaims for McClelland to pay his proportionate share of the expenses incurred in the Commission Litigation. Relying on their primary argument—that the claims lack merit—the defendants bring this motion for summary judgment for an order dismissing the main action in its entirety.

[6] The corporate defendant is referred to in this Ruling as “SRL”. The corporate defendant’s proper name is said by the defendants to be “Sarazen Realty Ltd.” Misnomer is not raised as an issue on the motion.

Background

[7] During the relevant period, McClelland and Sennett were both independent contractors working as real estate agents with SRL. They each entered into an Independent Contractor’s Agreement with SRL. That agreement sets out the terms pursuant to which an independent contractor is entitled to payment of a commission on the sale or purchase of a property.

[8] Colin Sarazen, together with his spouse, owns SRL. Sarazen refers to himself as the “broker of record”.

[9] The vendors of the Property are the Bisson brothers, Marcel and Jean (“the Bissons”). McClelland had known the Bissons for a number of years before 2013—the year in which the MELA was executed.

[10] The MELA provides that “Coldwell Banker Sarazen Realty / Gerry McClelland” is to have the exclusive listing for the sale of the Property from December 30, 2013 to December 30, 2014. The MELA directs that the Property be offered for sale at a price of $38,000,000. The MELA includes a representation and warranty on the part of the Bissons that they are “not a party to any other listing agreement for the Property or agreement to pay commission to any other real estate brokerage for the sale of the [P]roperty.”

[11] It is undisputed that earlier in 2013, Marcel Bisson entered into a listing agreement with another SRL agent, Kaiser Ahmed, for the sale of the Property (“the ALA”). The ALA refers only to the brokerage and does not identify Ahmed on its first page in the same way that McClelland’s name is identified on the first page of the MELA. The ALA is not initialled by Marcel Bisson to identify it as an exclusive listing agreement.

[12] Based on the copy of the ALA included in the record, the listing period for that agreement appears to run from a date in April 2013 to a date in August 2013. It is undisputed that (a) the listing period for the ALA was extended into the fall of 2013, (b) during the totality of that listing the Bissons entered into two agreements of purchase and sale for the Property, and (c) both sales were aborted.

[13] The parties to this action do not agree as to how and when the Bissons’ working relationship with Ahmed came to an end. McClelland alleges that the relationship was formally terminated in October 2013, thus clearing the way for the Bissons and SRL to enter into the MELA. The defendants allege that the ALA was still in force as of December 2013; they rely on the ALA remaining in force until January 2014, as a barrier to SRL being able to accept the MELA.

[14] Whether or not SRL accepted the MELA is another matter about which the parties disagree. McClelland alleges that he followed office protocol by providing a copy of the MELA to a member of SRL’s staff. He understood that the staff member had (a) entered the MELA into the electronic document management system used by SRL, and (b) placed the document in a folder in a filing cabinet at the SRL office. The defendants deny that the MELA was ever provided to a member of the administrative staff. The defendants are unable to identify any mention of the MELA in the electronic document management system. When McClelland attempted to retrieve the MELA from the filing cabinet, no file was found.

[15] McClelland believes that Sennett retrieved the MELA from the cabinet and relied on it when entering into the SELA with the Bissons. Both the ALA and MELA were filled in by hand. The SELA was filled in on either a typewriter or computer. Like the ALA, the SELA refers to the brokerage by name, but not to any individual real estate agent by name, on the first page of the document. The SELA is initialled by each of the Bissons to identify that the listing is exclusive.

[16] The SELA includes the same representation and warranty quoted above in para. 9. The listing period is from December 16, 2014 to April 15, 2015. That listing period overlaps with the listing period of the MELA by approximately two weeks (December 16-30, 2014).

[17] The parties disagree as to the extent, if any at all, to which McClelland was assisted by Sennett during the MELA listing period. Sennett denies that he provided any such assistance. McClelland alleges that it was as a result of his working relationship with Sennett that the latter:

a) was introduced to the Bissons; b) was able to squeeze McClelland out of the picture; c) arranged for the Bissons to enter into the SELA; and d) worked with Gayle to secure the offer that led to the sale of the Property.

[18] Marcel Bisson swore an affidavit in response to the motion. Marcel Bisson expresses, from his and, purportedly, his brother’s perspective, the history of their relationship with McClelland and their understanding of Sennett’s role in assisting McClelland with the sale of the Property. Marcel Bisson’s affidavit concludes with the following paragraph:

Since that time, we have learned that the commission from the sale has been withheld from Gerry. At all times it was our express intention to see most of the commission directed to Gerry, who was our agent. Sennett never told us that he had replaced Gerry as our agent. We would not have agreed to that. We understood that Sennett was simply assisting Gerry with the sale of our Property. What Gerry would pay to Sennett for his assistance, if anything, was between them.

[19] Marcel Bisson describes a number of conversations that occurred between the Bissons and Sennett. His evidence in that regard is supportive of McClelland’s position on the motion and, more generally, the claims advanced by McClelland in the litigation. In a reply affidavit, Sennett denies that the conversations described by Marcel Bisson took place.

[20] The only documentary evidence with respect to the terms of the sale of the Property is found in the Trade Record Sheet (the “TRS”). A copy of that document is attached as exhibit H to the first of three affidavits sworn by Sarazen in support of the motion.

[21] The TRS identifies a Contract Date of December 31, 2014. I note that the MELA expired on December 30, 2014—one day before the Contract Date. The TRS also identifies the following details for the listing; the Conditions Date is March 1, 2015; the Closing Date is June 4, 2015; the purchase price is $27,000,000; and an Initial Deposit of $200,000 together with a Further Deposit of $500,000.

[22] The TRS identifies the Bissons as the “Seller”. Of note, in the context of this action, the “Buyer” is identified as “Keith Sennett in trust (for an undisclosed purchaser)”.

[23] A copy of the agreement of purchase and sale is not included in the record. There is no evidence as to when the offer was originally presented to the Bissons (on or before December 31, 2014) or the extent to which the terms of the agreement and purchase and sale were negotiated before they were finalized. The only evidence with respect to how the agreement of purchase and sale was reached is provided by Sennett.

[24] At para. 10 of his first affidavit, Sennett says, “As a result of my efforts and those of Roxroy Gale [ sic ], a purchase and sale agreement was signed which resulted in the property being sold on June 23, 2015.” A similarly worded statement is made by Sarazen at para. 9 of his first affidavit. The spelling of Sennett’s colleague’s name is “Gayle” in the promotional materials Sennett says were prepared during the SELA listing period.

[25] In addition, at para. 11 of his second affidavit, Sennett says, “The agreement of purchase and sale presented by myself was accepted by the Bissons on December 31, 2014.” There is no evidence from either Sennett or Sarazen as to when the Bissons were presented with the offer that led to the agreement of purchase and sale. It is not known whether the offer was presented (i.e., on or before December 31, 2014, or on a date thereafter).

[26] Is it a coincidence that the “Contract Date” of December 31, 2014 is the day following the date on which the listing period for the MELA ended? If so, the 14-day overlap, in the respective listing periods of the MELA and the SELA, may not be relevant to the outcome of this litigation. If not, then that 14-day overlap may be relevant to the outcome of this litigation.

[27] The TRS addresses how it was intended that commission would be paid on the closing of the transaction. There are two components to the commission: the “Listing Portion” and the “Selling Portion”. Each portion is set at two per cent, for a total commission of four per cent.

[28] The allocation of the commission is detailed with precision. Of the Listing Portion, Sennett is to receive 47.56 per cent and Gayle 42.93 per cent. Of the Selling Portion, the same two individuals are to receive the same two percentages. Sennett expected to be paid a commission of $513,648 (0.4756 x 0.04 x $27M) and Gayle, $462,564 (0.4283 x 0.04 x $27M).

[29] At the bottom of the single-page TRS, three blank lines are provided for “Additional Comments”. That portion of the document is filled out as follows: “G. McClelland REFERRAL FEE OF 19% OF THE LISTING PORTION”. By my calculation, the “referral fee” amounts to $102,600 (0.19 x 0.02 x $27M).

[30] The commission and referral fee calculated above total $1,078,812. That amount is $1,188 less than four per cent of $27,000,000 ($1,080,000). The arithmetic discrepancy is not relevant to the outcome of this motion.

[31] It is undisputed that Sennett prepared the TRS. Yet, there is no affidavit evidence from Sennett with respect to the document–the TRS is exhibit H to Sarazen’s first affidavit. Sarazen’s evidence with respect to the TRS is limited to the following:

There was never any written agreement between Mr. Sennett and Mr. McClelland to pay a commission to Mr. McClelland at any time in relation to the sale of the property at 2564 10 th Line Road, Ottawa. There was an offer to pay a referral fee which is reflected in the trade record sheet which is attached as exhibit “H”. Mr. McClelland refused to accept a referral fee in any event and claims to be entitled to a full commission.

[32] Sarazen was not cross-examined on that portion of his affidavit, other than for confirmation that the TRS was prepared by Sennett. There was no cross-examination of Sennett on the TRS.

[33] McClelland addresses the TRS in his second affidavit. He denies having seen a copy of the document prior to May 2018, when a copy of the TRS was first provided to him by Marcel Bisson. McClelland’s evidence, based on information (from Marcel Bisson) and belief, is that the TRS “came from files in the possession of Sarazen and/or Sennett”. McClelland was cross-examined as to what he generally understood about trade record sheets. He was not cross-examined about the specific contents of the TRS or when he first became aware of the document.

[34] In his affidavit, Marcel Bisson does not address the TRS in any way at all—including the production of a copy of the document to McClelland.

[35] Within that framework, the defendants bring their motion for summary judgment. They request that McClelland’s claim be dismissed in its entirety. In the alternative, Sarazen and SRL request that the claim against them in negligence be dismissed.

[36] In his response, McClelland originally requested that the defendants’ motion be dismissed and that summary judgment be granted in his favour. During argument, McClelland’s counsel was asked whether that position was being maintained. A number of days subsequent to the hearing, the court was advised that McClelland is no longer requesting summary judgment in his favour. McClelland’s request for relief is therefore restricted to an order dismissing the motion for summary judgment in its entirety.

The Issues

[37] The issues to be determined on the defendants’ motion are:

1. Is there a genuine issue requiring a trial with respect to a claim or a defence?
2. If the answer to Issue No. 1 is “yes”, can the issue or issues requiring a trial be resolved through the exercise of one or more of the powers given to the court pursuant to r. 20.04(2.1) of the _Rules of Civil Procedure, R.R.O. 1990, Reg. 194_?

Rule 20 – Motions for Summary Judgment

[38] On a motion for summary judgment, the court is to first determine if there is a genuine issue requiring a trial. That determination must be made based only on the evidence as presented. An analysis of the factual record is carried out. If there is a genuine issue requiring a trial the court must next determine if the need for trial can be avoided by using the enhanced powers set out in rr. 20.04(2.1) and (2.2).

[39] The parameters for the second step were explained at para. 66 of the Supreme Court of Canada decision in _Hryniak v. Mauldin_, 2014 SCC 7, [2014] 1 S.C.R. 87: “There will be no genuine issue requiring a trial if the summary judgment process provides [the motion judge] 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).”

[40] The moving party bears the burden of satisfying the court, through the evidentiary record, that there is no genuine issue requiring a trial (_Sanzone v. Schechter_, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30).

Position of the Parties

a) The Moving Parties

[41] The defendants request that McClelland’s action be dismissed in its entirety. The defendants submit that McClelland’s claim does not raise any genuine issues requiring a trial; the claims advanced are said by the defendants to be entirely lacking in merit.

[42] First, the defendants submit that there was no breach by SRL of the Independent Contractors Agreement between the brokerage and McClelland:

• The MELA is not a listing agreement that entitles McClelland to a commission related to the sale of the Property. It was never presented to and approved by the brokerage. The latter is said to be a specific requirement for entitlement to a commission; and
• Pursuant to section 2 of the standard wording of an exclusive listing agreement, a commission is only payable to an agent who brings in the offer that leads to the sale of the property. McClelland did not bring in the offer that led to the sale of the Property.

[43] Second, the defendants originally argued that the claim based on unjust enrichment is not properly plead in the statement of claim. They subsequently abandoned that position. The defendants acknowledge that the unjust enrichment claim is sufficiently plead so as to be identifiable from the statement of claim.

[44] Regardless, and for reasons including the two points listed in para. 42, above, the defendants deny that they have been unjustly enriched as a result of the events leading to and including the sale of the Property. They submit that the evidence on the motion does not support the claim made in unjust enrichment.

[45] Third, the defendants raise issue estoppel as a defence to the claims. They rely on the outcome of the Commission Litigation as both (a) determinative of entitlement to the Commission, and (b) precluding McClelland from entitlement to any portion of the Commission.

[46] Fourth, and lastly, SRL and Sarazen submit that there is no evidence upon which to base a finding of negligence against one or both of them. SRL and Sarazen argue that even if McClelland’s claims based in breach of contract and unjust enrichment are permitted to proceed, the claim against them in negligence must be dismissed because:

• The evidence does not support a finding that a duty of care existed between one or both of SRL and Sarazen and McClelland; and
• Even if such a duty of care is found to exist, McClelland has not put forward any evidence as to the standard of care that one or both of SRL and Sarazen were required to meet in fulfilling that duty.

[47] In the absence of the latter evidence in particular, the defendants submit that the claim in negligence must fail.

b) The Respondent

[48] McClelland’s position is that the claims advanced and the evidence on the motion raise genuine issues requiring a trial. He submits that the evidence of both Sarazen and Sennett give rise to credibility issues. The credibility issues are so significant that they cannot be resolved through the exercise of one or more of the powers listed in r. 20.04(2.1). As a result, the motion for summary judgment must be dismissed.

Issue No. 1 – Genuine Issue Requiring a Trial

[49] Based on the pleadings and the record on this motion, I am satisfied that McClelland’s claims in breach of contract, unjust enrichment, and negligence raise genuine issues requiring a trial. The issues raised include factual issues arising from the evidence. Some of those issues are discussed under Issue No. 2 below. The factual issues raised are more numerous than those discussed below.

[50] SRL and Sarazen differentiate the claim in negligence against them from the balance of the claims made. They argue that in the absence of evidence (expert or otherwise) with respect to the existence of a duty of care and the standard of care to be met, the claim in negligence must fail.

[51] For the purpose of this motion, and even in the absence of expert evidence, I find that the claim in negligence has the potential to succeed. For example, at para. 21 of the statement of claim, McClelland alleges that “Sarazen Realty and Sarazen were negligent in the operation of the brokerage and the supervision of Sarazen Realty agents.” McClelland’s evidence with respect to the MELA, if accepted, may be sufficient to support a finding of negligence (i.e., the alleged existence and disappearance of the document).

[52] I turn to Issue No. 2 and whether any of the genuine issues requiring a trial are capable of determination on this motion.

Issue No. 2 – Potential Resolution on Motion

[53] For the reasons that follow, I find that none of the genuine issues requiring a trial are capable of resolution through the exercise of the powers listed in r. 20.04(2.1). I also find that a mini-trial pursuant to r. 20.04(2.2) is not an appropriate method by which to attempt to resolve any of the genuine issues requiring a trial.

[54] The parties are required to put their best foot forward on a motion for summary judgment. It is patently obvious that the defendants did not do so on this motion. I say “patently obvious” because one only need read the Sennett and Sarazen affidavits to conclude that the evidence falls short of the standard to be met.

[55] The shortcomings in the evidence are too numerous and too significant to permit resolution of any issue on this motion. What follows is a discussion of some of deficiencies in the evidence.

a) Office Protocol

[56] I start with the defendants’ position that McClelland was required, pursuant to the terms of the Independent Contractor’s Agreement and office protocol, to provide SRL with a copy of the MELA for acceptance and approval. The existence of that requirement is significant to the defendants’ position that the MELA was not presented for acceptance and approval and would, in any event, not have been approved because of the continuing listing period under the ALA.

[57] Both Sennett and Sarazen refer to the Independent Contractor’s Agreement as the primary basis for that requirement or obligation. They do so in a general way; they do not identify which, if any, of the terms of that agreement support their argument. It is not clear from the document alone which of the terms the defendants rely on in support of this argument.

[58] The individual defendants do not address in any detail the existence of the office protocol upon which the defendants rely. They do not identify the source of the protocol—for example, an office procedures manual, a training guide, or any other document. They do not explain how, if at all, the protocol was communicated to McClelland as being significant other than as the completion of an administrative task.

b) The TRS

[59] It is undisputed that Sennett completed the TRS. Yet in none of his affidavits does he address that document. The TRS is an exhibit to the Sarazen affidavit. No explanation was offered by the defendants as to why there is no first-hand evidence from Sennett with respect to the TRS. Sarazen’s evidence, limited as it is, is not the best evidence available with respect to the TRS.

c) Opinion Evidence and Conclusory Statements

[60] I turn next to the nature of some of the contents of the various Sarazen and Sennett affidavits. In the first of their respective affidavits, both Sennett and Sarazen make statements that can, at best, be described as opinion evidence and are better-described as findings or conclusions on matters that are within the exclusive purview of the motion judge: see, for example, paras. 15, 17, 19, and 20 of Sennett’s first affidavit and paras. 13 and 17 of Sarazen’s first affidavit.

d) Evidence Based on Information and Belief

[61] A number of the statements made in the Sennett and Sarazen affidavits, respectively, are clearly based on information provided by another individual (frequently each other). The statements are not identified as containing information provided by a third party. Nor are the statements accompanied by the affiant’s stated belief as to the truth of the information received.

[62] To the extent that a party might choose to rely on hearsay evidence in support of a motion for summary judgment, it is difficult to comprehend why the moving parties made that choice. The reason why the defendants presented evidence in this manner is not readily apparent from the record.

[63] The defendants rely on second-hand evidence with respect to another contentious issue—whether the relationship between Ahmed and the Bissons continued to operate as a bar to SRL accepting the MELA in December 2013. In para. 7 of his first affidavit, Sennett refers to the ALA and the first of two aborted deals for the sale of the Property said to have been reached during the listing period of the ALA. There is no evidence from Sennett that he was in any way involved with Ahmed or the latter’s efforts to sell the Property. Sennett does not identify the source of the information with respect to the ALA, nor does he state his belief as to the truth of that information.

[64] Reference is made to Ahmed and/or the ALA in other affidavits filed by the moving parties. A number of the relevant paragraphs include evidence based on information and belief and are not identified as such. See, for example, para. 7 of Sennett’s first affidavit.

e) “Adoption” of Evidence and Joint Affidavit

[65] The defendants rely on (a) Sarazen’s single-paragraph affidavit sworn in April 2018, and (b) an affidavit sworn jointly by Sarazen and Sennett in May 2018.

[66] In the former document Sarazen says, “I adopt all of the assertions made in the responding affidavit of Keith Sennett in answer to the affidavits of Gerald McClelland and Marcel Bisson both sworn on April 16, 2018 as they relate to myself and the company.” Sennett’s responding affidavit is six pages and 37 paragraphs in length.

[67] How is the court or, for that matter anyone, to know, without cross-examination of Sarazen on every assertion made in the April 2018 Sennett affidavit, which of those assertions Sarazen “adopts” in relation to himself and the company? What does Sarazen mean by the verb “adopts”? Is he attempting in some way to swear to the truth of statements made by Sennett about SRL and Sarazen? Why does Sennett make “assertions” on behalf of Sarazen and SRL, when Sarazen, as a part-owner of SRL, is in a better position than Sennett to provide the relevant evidence?

[68] The affidavit sworn jointly by Sarazen and Sennett in May 2018 is problematic. It is three pages and ten paragraphs in length. At para. 1, the affiants say, “We have reviewed the [May 2018 McClelland affidavit] and make the following response.” Yet in paras. 5 and 10 of the joint affidavit, statements are made in the first person singular.

[69] At para. 5, the statement made is, “I point out that the [MELA] was never given to the brokerage nor was [it] ever accepted by our firm for listing.” Who is making that statement—Sarazen or Sennett? Why is evidence in the first person singular included in a joint affidavit?

[70] The statement made in the first person singular at para. 10 of the joint affidavit is troublesome for more than one reason. That statement relates to a conversation with an SRL employee, Brandy Dagenais. She is the individual to whom McClelland says he gave the MELA for data entry and filing purposes. Paragraph 10 of the joint affidavit reads as follows:

Mr. McClelland only worked at the Bank Street branch of our firm for the entire time he worked with our firm. Firstly, Brandy Dagenais did not work at the Bank Street branch in September 2014. She did not start there until April 2015 as part time and September 2015 as full time. Furthermore, I have spoken to Ms. Dagenais about the assertion by Mr. McClelland in paragraph 7 of his affidavit that she was asked by Mr. McClelland to pull the file and check the file cabinet for his Bisson file. She states categorically that Mr. McClelland at no time asked her to look for this file. There never was a file.

[71] Who had the conversation with Ms. Dagenais? Was it Sarazen, Sennett, or both of them? In any event, much of the evidence in para. 10 is based on information and belief. Once again, the affiant’s stated belief of the truth of the information is lacking.

[72] The hearsay nature of the information set out in para. 10 of the joint affidavit relates to a contentious issue—whether McClelland gave the MELA to a member of the SRL staff for data entry and filing. The existence (or not) of the MELA within the data entry system as of December 16, 2014 (the date on which SELA listing period commenced) is a contentious issue.

[73] On cross-examination, Sarazen testified that Ms. Dagenais is still an employee of SRL. They relied on hearsay evidence rather than first-person evidence from Ms. Dagenais. They chose to rely on something other than the best evidence available.

f) Sennett Speaks for SRL

[74] I turn to Sennett’s affidavit evidence generally. It is important to emphasize that, on cross-examination, Sarazen’s evidence was that Sennett does not (a) have a management role in SRL, (b) supervise any of the other independent contractor real estate agents with SRL, or (c) have an ownership stake in SRL. Yet, throughout his affidavits, Sennett speaks, without qualification, to:

• What the brokerage did or did not do with respect to the MELA;
• What “we” (meaning Sennett and the brokerage) or “SRL and I” were aware of with respect to McClelland, the Bissons, and the MELA;
• SRL’s knowledge, independent of Sennett’s, with respect to McClelland, the Bissons, and the MELA; and
• “Findings” that he and SRL have as to whether the MELA existed prior to April 2017, when it is alleged that SRL first became aware of the documents.

[75] It is clear that much of Sennett’s evidence is based on information from another individual (primarily Sarazen) and is not identified as such. In any event, why is Sennett speaking for SRL and Sarazen at all?

g) McClelland’s Evidence

[76] The defendants are not alone in having presented evidence that falls short of the “best foot forward” standard.

i) Documents not Properly Before the Court

[77] McClelland includes in his responding record a copy of the affidavit of documents sworn in January 2018 on behalf of SRL and a copy of document no. 1 from Schedule “A” therein (“Diary notes of Keith Sennett”).

[78] The affidavit of documents is a sworn statement by Paul Tasse, the general manager of SRL. It is, however, only evidence to the extent of the seven numbered paragraphs in the substantive portion of the affidavit. For McClelland to rely on the contents of any of the documents listed in Schedule “A”, something more was required. For example:

• The diary notes could have been presented to Sennett on cross-examination (a) for the purpose of identification, and (b) to be made an exhibit on the cross-examination and, therefore, the motion; or
• If the notes are business records, then they could have been the subject of a notice pursuant to s. 35 of the _Ontario Evidence Act, R.S.O. 1990, c. E. 23_ and dealt with accordingly.

[79] The copies of Sennett’s diary notes included in McClelland’s consolidated motion record are not evidence for the purpose of this motion.

ii) The TRS

[80] McClelland’s evidence with respect to the TRS is perplexing. He denies having seen the document before he received a copy of it from Marcel Bisson in May 2018. Yet, document no. 42 in Schedule “A” of the SRL affidavit of documents is (a) dated December 31, 2014, and (b) described as “Tade [ sic ] Record Sheet”. Based on McClelland’s experience in the real estate field, from that entry alone, he would have known that document no. 42 was a trade record sheet.

[81] Second, the uncontradicted evidence of Sennett and Sarazen (in their joint affidavit) is that a copy of the SRL affidavit of documents and copies of all Schedule A documents listed therein were served on McClelland in February 2018.

[82] Third, and most perplexing, the TRS is an exhibit to Sarazen’s March 12, 2018 affidavit. The uncontradicted evidence of Sennett and Sarazen (again, from their joint affidavit) is that their motion record, including the March 12, 2018 Sarazen affidavit, was served on McClelland on March 14, 2018.

[83] McClelland’s affidavit in response to the first of the Sennett and Sarazen affidavits, was sworn on April 16, 2018. In that affidavit, McClelland does not make a general statement about having reviewed the Sennett and Sarazen affidavits; nor does he identify specifically to which paragraphs in either of the Sennett or Sarazen affidavits the paragraphs in his affidavit are intended to respond.

[84] In the circumstances, it is not necessary for me to make findings about when McClelland first became aware of the TRS.

h) Summary

[85] There are deficiencies in the parties’ respective affidavit evidence and issues with the quality of the evidence in addition to those discussed in this ruling. There is, however, no need for the purpose of this motion, to elaborate further. The evidentiary record is such that it is not possible, through the exercise of the powers set out in r. 20.04(2.1) to resolve the genuine issues requiring a trial. The substantive and evidentiary issues are such that a mini-trial is not a cost-effective, efficient method by which to attempt to resolve any of the genuine issues requiring a trial.

Disposition

[86] The defendants’ motion is dismissed in its entirety.

Costs

[87] McClelland is successful in opposing the motion for summary judgment. I order that the defendants pay McClelland his costs of the motion. The only issues that remain to be determined are the scale upon which costs shall be fixed and the quantum of costs to be paid.

[88] The parties’ respective bills of costs were filed, in sealed envelopes, at the conclusion of the motion. I shall, if necessary, rely on those documents with respect to the quantum for costs.

[89] In the event the parties are unable to agree upon one or both of the scale for and quantum of costs, they shall make submissions as follows:

a) The submissions shall be limited to a maximum of four pages; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size; d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages; e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this ruling is released; and f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.

[90] If no submissions are delivered pursuant to subparagraph (e) above, there will be no further order with respect to costs.

Madam Justice Sylvia Corthorn

Released: January 11, 2019

COURT FILE NO.: 17-73065 DATE: 2019/01/11

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: GERALD W. McCLELLAND Plaintiff – and – SARAZEN REALTY INC., COLIN SARAZEN and KEITH SENNETT Defendants

RULING ON MOTION FOR SUMMARY JUDGMENT Madam Justice Sylvia Corthorn

Released: January 11, 2019