Court File and Parties
NEWMARKET COURT FILE NO.: CV-14-118556-00
DATE: 20190809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Sullivan and Anne Marie Sullivan
Plaintiffs
– and –
Bruce William Taylor, Cynthia Taylor, and Gordon Douglas Taylor
Defendants
Counsel:
Terry Corsianos, for the Plaintiffs
Doug LaFramboise, for the Defendants
Heard: June 14, 2019
REASONS FOR DECISION
DE SA J.:
Background
[1] The plaintiffs and defendants are neighbours. The problems between the parties have spanned a period of years. While the police have laid charges in the past, the Crown has never continued with any of the proceedings.
[2] In the hopes of stopping the abuse, in August of 2012, the plaintiffs commenced an action for $250,000 against the defendants. The plaintiffs claim against the defendants under various heads including:
Punitive and compensatory damages in the amount of $50,000 for Assault and Battery over the course of several years. The defendant, Gordon Taylor, was charged with common assault and the charges were withdrawn.
Punitive and compensatory damages in the amount of $50,000 for Battery with a Weapon – this claim relates to an incident where Anne Sullivan was hit by a tree branch by Gordon Taylor. The criminal charges in relation to this assault have been withdrawn.
Punitive and compensatory damages in the amount of $50,000 for Defamation – pertaining to numerous defamatory statements made against the plaintiffs by the defendants over the course of several years;
Punitive and compensatory damages in the amount of $50,000 for Malicious prosecution relating to a criminal proceeding that was brought against the plaintiff by the defendant Bruce, through laying of a private information which is alleged to have been false.
Punitive and compensatory damages in the amount of $50,000 for Nuisance, Harassment and Trespass – for various incidents of nuisance, harassment and trespass that the defendants collectively have committed against the Sullivans over the course of several years, including 1) constant swearing and yelling at the Sullivans; 2) loud noise and banging late in the night; 3) littering; 4) frivolous calls to the fire department with exaggerated complaints regarding fire use by the Sullivans; and 5) false accusations to the Children’s Aid’s Society regarding excessive alcohol consumption by the Sullivans in front or their minor children which resulted in a visit by a CAS caseworker to the Sullivan household.
[3] The plaintiffs also seek a permanent injunction, enjoining the defendants from 1) trespassing on the plaintiffs’ property; 2) damaging or littering of any sort the plaintiffs property; 3) harassing the Sullivans including any name calling, swearing, yelling or any other abusive or foul language; 4) making any kind of loud noise directed at interfering with the peace of the Sullivans; 5) calling the fire or police departments regarding the Sullivans’ activities unless there is a real emergency.
Position of the Defendants
[4] The defendants have brought a motion for summary judgement asking that the statement of claim be struck. They take the position that the plaintiffs’ action is frivolous and without any merit. In support of the defendants’ position, they point to the fact that the Crown has discontinued any prosecutions relating to the plaintiffs’ allegations of assault and battery.
[5] The defendants also claim that various aspects of the claim are statute barred given that they date back to June or July of 2010, just over 2 years prior to the commencement of the action.
[6] The defendants argue that even if the plaintiffs could establish that the events occurred, the plaintiffs are overstating the damages sought.
[7] The defendants maintain that there has been no real conflict between the parties since the commencement of the action. There has also been similar conduct by the plaintiffs as against the defendants. Yet, they have not sought the same recourse against the plaintiffs.
[8] In light of these facts, the court should exercise its discretion and dismiss the action.
Analysis
[9] Pursuant to Rule 20.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if it is satisfied there is no genuine issue requiring a trial. Animating the interpretation of 20.04(1) is rule 1.04 which requires that the rule be liberally construed to secure the just, most expeditious and least expensive determination of a proceeding on its merits having regard to the complexity of the issues and the amounts involved.
[10] Rule 20.04 aims to avoid protracted litigation in circumstances where such litigation is unnecessary to achieve a just result. The judge in deciding whether to grant summary judgment must ask: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?
[11] A trial is not required if the judge on the motion can 1) achieve a fair and just adjudication; 2) make the necessary findings of fact; 3) apply the law to those facts; and 4) the motion is a proportionate, more expeditious and less expensive means to achieve a just result rather than going to trial. As the Supreme Court explained in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 50:
These principals are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principals so as to resolve the dispute. [Emphasis added]
[12] Even if the responding party files no evidence on the motion, the onus remains on the moving party to demonstrate there is no genuine issue for trial.
[13] The question of whether the evidence available to the court on a summary judgment motion allows for a “full appreciation” of the matter is highly fact dependant and varies on a case by case basis. As the Court of Appeal observed in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at para. 39:
Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the “interest of justice”, the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties. In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools that are now available to the motion judge. In such cases, a just result can only be achieved through the trial process. This pivotal determination must be made on a case-by-case basis. [Emphasis added]
[14] In this case, I am not satisfied that there is no issue requiring a trial.
[15] The statement of claim and affidavit filed on the motion outline a history of abuse over a number of years perpetrated by the defendants. It is not clear to me that the claims lack merit. The fact that the Crown discontinued the related criminal prosecutions has no meaningful bearing on the legitimacy of the claims.
[16] While the defendants dispute the amount of “damages” claimed, quantum of damages is an issue that should be decided by the trial judge.
[17] Moreover, it is not clear to me that any of the claims are statute barred. The conduct was of a continuing nature. In the case of deliberate torts of a continuing nature, where the limitation issue is contested, it is more appropriate for the trial judge to decide the issue: See Georgian Glen Developments Ltd. v. Barrie (City), 2005 CanLII 31997 (ON SC) at para. 19.
[18] I am pleased to hear that there has been no real conflict between the parties since the commencement of the action. However, that does not eliminate the wrongs that have been done, nor is a basis to dismiss the claim.
[19] In light of the above, the motion for summary judgment is dismissed.
[20] The defendants are required to file written submissions on costs within three weeks of the release of the decision. The plaintiffs have one week thereafter to file their costs submissions. The costs submissions are not to be more than 2 pages in length.
Justice C.F. de Sa
Released: August 9, 2019