COURT FILE NO.: CV-13-4607
DATE: 2019 08 14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JASWINDER KHOSA v. HOMELIFE/UNITED REALTY INC., PARVINDER SINGH, GURJINDER SINGH and K & K BROTHERS INC.
BEFORE: Doi J.
COUNSEL: David Milosevic, for the Plaintiff
Pathik Baxi, for the Defendants
HEARD: July 8, 2019
E N D O R S E M E N T
Overview
[1] The Plaintiff seeks to recover an unpaid loan and payments on a lease that secured and serviced the loan. The Defendants deny that the Plaintiff loaned them funds, and claim that the Plaintiff had breached the lease by failing to make required payments. Significant factual and credibility issues are in dispute.
[2] On this motion, the moving Defendants, Gurjinder Singh and K&K Brothers Inc. (“K&K”), seek partial summary judgment to dismiss the Plaintiff’s action against them on the basis that they had no knowledge of the loan or lease that they claim involved only the other co-Defendants, namely Parvinder Singh and/or his realty company, Homelife/United Realty Inc. (“Homelife”), and on the further basis of a limitation defence, as detailed below. The summary judgment motion contemplates the action continuing against Parvinder Singh and Homelife. The Plaintiff opposes this motion and argues that a trial is required on all of the issues that are in dispute.
[3] In my view, this is not a case for granting partial summary judgment. Given the evidentiary record on this motion and the submissions of the parties, I find that a trial is required to allow a fair determination of the conflicting factual and credibility issues by having all of the evidence heard in context. Given the interwoven nature of the evidence and the various issues in dispute, including the limitation issue, I also find that partial summary judgment will not achieve a proportionate, timely and affordable outcome. Accordingly, for the reasons that follow, this partial summary judgment motion is dismissed.
Background
[4] The underlying claim involves a somewhat convoluted set of alleged loan arrangements. They may be stated briefly as follows.
[5] In or around July 2011, the Plaintiff claims to have entered into a loan arrangement with the Defendants by which he mortgaged his home to lend approximately $170,000.00 to Parvinder Singh and Gurjinder Singh. The loan was to finance Homelife (i.e., a real estate brokerage owned by Parvinder Singh) and a mortgage brokerage (i.e., belonging to Gurjinder Singh) that was to operate from Homelife’s business premises. According to the Plaintiff, Parvinder Singh, Gurjinder Singh (i.e., then a shareholder of K&K, who later sold his shares in 2016) and K&K agreed to secure the loan by assigning over the lease to a gas station in Kingston that was owned by K&K. The personally-named Defendants, Gurjinder Singh and Parvinder Singh, are brothers.
[6] The Plaintiff alleges that Parvinder Singh acted for the Defendants and advised that the gas station could be leased for $20,000.00 monthly. Parvinder Singh is also said to have proposed leasing the gas station to the Plaintiff for $15,000.00 monthly, with a further sublease of the gas station to another tenant for $20,000.00 monthly. Under this proposal, the monthly $5,000.00 difference was to be paid to the Plaintiff to secure and service the loan.
[7] The Plaintiff claims that he agreed to the terms of the loan and lease arrangement, as set out above. However, he claims that he received only one single $5,000.00 payment from Parvinder Singh in December 2011. For his part, Parvinder Singh denies making any such payment to the Plaintiff.
[8] The moving Defendants, Gurjinder Singh and K&K, deny having entered into a loan agreement with the Plaintiff. To the extent that Parvinder Singh is alleged to have made representations or loan payments to the Plaintiff, Gurjinder Singh and K&K assert that any such representations were made without their authority and, therefore, did not bind them. Gurjinder Singh specifically denies that he had any business relationship with his brother, Parvinder Singh, and denies that they had any discussions about their respective businesses, except for very rare or limited conversations, if any. As such, Gurjinder Singh and K&K claim to have nothing to do with any loans made by the Plaintiff, and further claim to have no knowledge of any loan arrangements that Parvinder Singh may have made with the Plaintiff.
[9] The Plaintiff states that the moving Defendants’ claims are untrue. The Plaintiff asserts that Parvinder Singh was intimately involved in K&K’s business, and over the years had acted for K&K as its agent by arranging for all of the successive lessees that had operated the gas station, by assisting with issues that arose at the gas station, by negotiating lease payments with the Plaintiff, and by providing the Plaintiff with financial information regarding the gas station which is said to have formed the basis for the lease-security arrangement for the loan. The Plaintiff’s claim is substantiated to a degree by Sarabjit Kalkat, who was a K&K shareholder at the material times when the Plaintiff purportedly entered into the loan arrangement involving the gas station lease. In his evidence, Mr. Kalkat confirmed that Parvinder Singh had acted on behalf of K&K by finding lessees for the gas station and by arranging for terms to lease the gas station. Similarly, Gurjinder Singh gave evidence which confirmed that Parvinder Singh had helped K&K by identifying potential new tenants for the gas station and by generally assisting with other matters related to the gas station.
[10] Parvinder Singh states that he had acted for K&K to find lessees for the gas station. Importantly, he testified that he acted for K&K as its intermediary in dealings with the Plaintiff by giving him revenue information for the gas station based on figures that K&K had provided. However, Gurjinder Singh and K&K both take the position that Parvinder Singh had not been authorized to act on their behalf in dealing with the Plaintiff.
[11] According to the moving Defendants, the Plaintiff entered into a lease to operate the gas station but had failed to make the required payment of first and last month’s rent when the payment came due under the terms of the lease. As a result, they claim that the lease was assigned from the Plaintiff to Parvinder Singh, who later transferred the lease interest to a numbered company that he controlled. Gurjinder Singh gave evidence that Parvinder Singh had assigned the lease without involving him or K&K, who were unaware of the terms that Parvinder Singh may have raised or negotiated with the Plaintiff to make the assignment. Once Parvinder Singh made the assignment, Gurjinder Singh claims that he and K&K both opted to honour that arrangement.
[12] The moving Defendants state that Parvinder Singh lacked sufficient funds to pay K&K the first and last month’s rent as required under the assigned lease. This apparently led Gurjinder Singh to arrange for funds in the amount of the rent payment due under the lease to be paid to K&K on Parvinder Singh’s behalf. While the Defendants claim that Gurjinder Singh and Parvinder Singh maintained discrete businesses that were wholly unrelated, the Plaintiff points to Gurjinder Singh’s involvement in helping Parvinder Singh make the above-mentioned rent payment to K&K as evidence of the integrated nature of the brothers’ business affairs. More broadly, the Plaintiff claims that the brothers were intimately involved with each other’s business interests and that both had worked jointly to arrange for the Plaintiff to lend the $170,000.00 to them.
Earlier Motion for Summary Judgment
[13] On or about June 3, 2015, the Defendants brought a motion for summary judgment to dismiss the entire claim against them by arguing that the Plaintiff’s action was statute barred by the Limitations Act, and was entirely without merit. Herold J. granted summary judgement to dismiss the entire claim based on his finding that the 2 year limitation period had expired on September 12, 2013 and left the action statute-barred.
[14] On January 5, 2016, the Court of Appeal granted the Plaintiff’s appeal and overturned the summary judgment. In doing so, the Court of Appeal found that the motion judge had not addressed whether the alleged $5,000.00 payment by Parvinder Singh to the Plaintiff in December 2011 had extended the limitation period: Khosa v. Homelife/ United Realty Inc., 2016 ONCA 3 at paras 6-7.
Test for Summary Judgment
[15] The test for granting summary judgment is well-established.
[16] Pursuant to Rule 20.01(3), a defendant may move for summary judgment to dismiss all or part of a claim. Rule 20.04(2)(a) provides that the court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial with respect to all or part of the claim. Summary judgment is a significant alternative model of adjudication by which the court may exercise fact-finding powers (i.e., the power to weigh evidence, evaluate credibility, and draw inferences), as may be required, in order to eliminate unmeritorious claims that have no chance of success at trial: Hryniak v. Mauldin, 2014 SCC 7 at para 45.
[17] In deciding a motion for summary judgment, the court should apply a two-step process. First, the court should determine whether there is a genuine issue requiring a trial based only on the evidence on the motion, without using the fact-finding powers. There will be no genuine issue requiring a trial if summary judgment provides the court with the evidence required to adjudicate the dispute fairly and justly, and in timely, affordable and proportionate fashion. Where there is no genuine issue requiring a trial, summary judgment must be granted under Rule 20.04(2)(a).
[18] If there appears to be a genuine issue requiring a trial, the second step calls for the court to determine whether a trial can be avoided by using the fact-finding powers under Rules 20.04(2.1) and (2.2) to weigh evidence, evaluate credibility, and draw inferences, provided that their use is not against the interest of justice. Using these powers will not be against the interest of justice if they will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: Hryniak at para 66.
[19] The focus for summary judgment is on whether a trial is required:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the 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.
Hryniak at para 49.
[20] Pursuant to Rule 20.02(2), a responding party to a summary judgment motion cannot rest solely on allegations or denials in its pleadings, but must show specific facts in affidavit materials or other evidence setting out a genuine issue requiring a trial. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26 and 33; aff’d 2014 ONCA 878. The motion record is to contain all of the evidence that the parties would present if the matter proceeded to trial. A party who fails to adduce such evidence risks losing.
[21] Notably, where credibility is important on a summary judgment motion, the court must take great care to ensure that the use of decontextualized affidavit and transcript evidence does not lead to substantive unfairness that likely would not arise during a full trial when the trial judge may determine credibility after seeing and hearing all the evidence; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.
[22] A motion for partial summary judgment is a rare procedure. It is confined to the clearest of cases because of the risk that it will cause delay, raise duplicative or inconsistent findings of fact at trial, and frustrate the objective of using summary judgment to achieve proportionate, timely and affordable justice: Hryniak at para. 60; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 360 at para 14. The Court of Appeal has sounded a note of caution in considering the application of partial summary judgment:
When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits; Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para 34.
See also Mason v. Perras Mongenais, 2018 ONCA 978 at para. 22. In addition, it may not be in the interests of justice to grant partial summary judgment if other claims will proceed to trial in any event, as granting partial summary judgment will run the risk of duplicative proceedings or inconsistent facts; Ibid. Courts may also decline to grant partial summary judgment where it is possible that the trial judge “will develop a fuller appreciation of the relationships and the transactional context than the motions judge” that could give rise to a risk of inconsistent findings and substantive injustice; Baywood at para. 37; Butera at paras. 23-35.
Analysis
Knowledge or Involvement by the Moving Defendants
[23] As explained above, the Plaintiff seeks damages stemming from a $170,000.00 Ioan and a companion lease arrangement which is said to have been secured the loan. On this summary judgment motion, the moving Defendants, Gurjinder Singh and K&K, seek to dismiss the action against themselves by inviting the court to find that the loan grounding the Plaintiff’s claim had been transacted solely by Parvinder Singh and/or Homelife without any knowledge or involvement by the other Defendants. As explained below, I am unable to make this finding based on the record before the court.
[24] Having considered the evidence on this motion, I find that the nature of the parties’ business relationships, if any, constitutes a central and material issue that requires a trial. The nature of the business relationships goes to the key prongs of the Plaintiff’s claim for damages stemming from the purported loan. There is a clear conflict in the evidence and the positions of both sides as to how the business relationships, if any, were structured by the various Defendants. There is also a clear conflict in the evidence and positions as to the nature and character of the services or assistance that Parvinder Singh gave to Gurjinder Singh and/or K&K, if any. All of this is directly relevant to establishing the nature and character of the loan that the Plaintiff purportedly made to the Defendants, and to quantifying his ensuing losses. I appreciate that the position asserted on this motion by the moving Defendants is that Gurjinder Singh and K&K had no apparent knowledge of any representations that Parvinder Singh purportedly made to the Plaintiff without their authority. However, it is clear from the parties’ respective positions that any business relationships and interactions between the brothers, Gurjinder Singh and Parvinder Singh, and any business they transacted with the Plaintiff, are controversial and will be crucial issues in this litigation.
[25] It is clear to me that the issue of the Defendants’ business relationships cannot be fairly resolved on this summary judgment motion because of the conflicting evidence. A trial is required to make the necessary factual findings about their business relationships, and how the Plaintiff came to make the purported loan. There also are serious credibility issues that cannot be resolved without a trial. The Plaintiff strongly challenges the credibility of the Defendants’ account of the loan and lease arrangements, and points to representations allegedly made by Parvinder Singh acting for the Defendants as to the loan terms and the assignment of security in the form of the gas station lease. The Defendants categorically deny that any representations by Parvinder Singh were made on behalf of Gurjinder Singh and/or K&K, who both claim to have no knowledge or involvement whatsoever with any of Parvinder Singh’s representations that allegedly led the Plaintiff to extend a loan for the purpose of financing their business interests. In their submissions, both sides also noted the conflicting and irreconcilable evidence in the affidavits and cross-examination transcripts that were filed on this motion.
[26] In the circumstances, it is quite apparent that there are a number of inter-related factual issues in dispute. In my view, a proper determination of these issues will require credibility findings that cannot be made without hearing viva voce evidence. Although the written record on this motion is extensive, I find that it would be unjust and unfair to make any such findings solely on the basis of the written record before the court.
[27] I find that the narrative with respect to how the Plaintiff’s alleged loan to the Defendants came about, and how the Plaintiff came to be involved with the gas station, is critical to this case and requires evidence from live witnesses in order for the court to properly understand these important facts. Both sides to this case clearly have their own incompatible versions of what transpired. The Plaintiff claims to have been misled about the nature of the loan that he gave, as well as the mechanism by which his lease interest would enable the loan to be repaid. The moving Defendants deny the existence of a loan, and claim that the Plaintiff executed a simple lease to operate a gas station and defaulted on the lease after not making the first and last month’s payments under its terms.
[28] In my view, a proper and just determination of the parties’ respective business arrangements and relationships will require the court to consider the whole of the evidence in its proper context in order to establish how the loan transaction and the lease arrangements arose, if at all. These are central and pivotal issues for the claim that, in my view, require viva voce evidence from witnesses to enable the court to gain a fulsome appreciate of the relationships and transactional context in order to make the necessary credibility and reliability findings. These matters cannot be resolved properly on the basis of conflicting affidavits, cross-examination transcripts and other documents that are before the court on this motion. In the circumstances, the cautionary note by the Court of Appeal in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para 44 is particularly relevant to this case:
What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party's legal counsel, which may include voluminous exhibits, can obscure the affiant's authentic voice. This makes the motion judge's task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.
[29] Applying this reasoning, I find that the credibility and reliability issues cannot be resolved on the conflicting and decontextualized evidence in the motion record. To do so may well cause this action to be impacted by the kind of substantive unfairness mentioned in Baywood Homes that would not otherwise result at trial where the court would have the ability to make findings with the benefit of a fulsome evidentiary record.
[30] Under the second step of the summary judgment analysis, I find that this is not a case for employing the court’s fact-finding tools at a mini-trial. Partial summary judgment would not dispose of the entire case, and at least a portion of the claim (i.e., the claim against Parvinder Singh and Homelife) would inevitably be left for trial, which is undisputed. Given the interwoven nature of the issues and evidence in this case, I find that partial summary judgment will not lead to the kinds of procedural efficiencies that otherwise would make it appropriate to grant: Butera at paras 30 and 38. To prove his claim against Parvinder Singh and Homelife, the Plaintiff would still need to adduce evidence at trial to prove the terms of the alleged loan and the assignment of the gas station lease, along with companion evidence detailing the parties’ business arrangements and relationships, respectively. It follows that conducting a mini-trial would run the risk of duplicative proceedings, inconsistent findings and potential delay of the sort that appellate courts repeatedly have cautioned is inappropriate for summary judgment; Butera at paras 25 and 30-34; Hryniak at para 60; Baywood at para 34; see also Hamilton (City) v. Thier + Curran Architects Inc., 2015 ONCA 64; Mason v. Perras Mongenais, 2018 ONCA 978; Healthy Lifestyle v. Chand Morningside Plaza Inc., 2019 ONCA 6.
[31] In any event, I find that it would not be in the interest of justice to use my expanded fact-finding powers in this case. As explained above, the credibility issues are not confined to only a few limited witnesses on discrete points but broadly span the evidence of witnesses on both sides. As such, there will likely be a number of witnesses that the court would need to hear from on a range of topics in order to determine appropriately the material issues in dispute. Given the conflicting and irreconcilable nature of this likely evidence, I conclude that the requisite fact-finding in this case should be conducted by having the court hear a complete narrative from witnesses testifying in person at trial, instead of relying on affidavits and transcripts and discrete oral testimony in a fragmented manner. I also find that a proper determination of credibility in this case cannot be done by way of a written record or a mini-trial involving only a few witnesses. In my view, this case calls for a careful weighing of all the evidence as a whole that will require a trial to permit the court to arrive at a fair and just decision.
[32] Given the relatively complex factual circumstances of this case, I find that allowing it to proceed to trial would afford the most efficient and effective means for the court to hear the evidence and decide the issues in dispute. In making this finding, I am mindful of the importance of promoting timeliness, affordability, and proportionality in determining this case. In this regard, counsel have advised that the parties previously agreed to combine their recent cross-examinations for this motion with their examinations for discovery on the underlying action, with a view to expediting their trial preparations in an efficient manner. Accordingly, the parties now appear largely ready to proceed to trial.
[33] For these reasons, the moving Defendants’ motion for partial summary judgment is dismissed.
Limitation Issue
[34] The circumstances of this case also give rise to a genuine issue requiring a trial with respect to the limitation issue raised by the Defendants. For the reasons that follow, I find that it would not be fair or just to use my expanded fact-finding powers to determine the limitation issue.
[35] Section 4 of the Limitations Act sets out the basic two year limitation period, which applies from the date a claim is discovered within the meaning of the Act. Pursuant to ss. 5(1) of the Act, a claim is discovered on the earlier of when the plaintiff first knew or ought to have known with reasonable diligence that injury, loss, or damage was caused or contributed to by an act or omission of a defendant and that a legal proceeding would be an appropriate means to seek a remedy. Under ss. 5(2) of the Act, there is a rebuttable presumption that a claim is discovered on the day that the act or omission on which the claim is based took place. The onus in on the plaintiff to rebut this presumption.
[36] In this case, the limitation issue hinges on discoverability, being when the Plaintiff actually knew or reasonably ought to have known enough facts on which to base his claim. Once he did, the claim was discovered and the limitation period began to run: Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369 at 25-26 and 32; Lawless v. Anderson 2011 ONCA 102 at para 23. Determining discoverability calls for a fact-based analysis.
[37] The moving Defendants submit that the Plaintiff discovered his claim against them by no later than September 12, 2011 when he assigned the gas station lease over to 2291833 Ontario Inc. (i.e., the numbered company for which Parvinder was the owner and president). Their position is consistent with the finding made by Herold J. in his June 3, 2015 endorsement (i.e., on the first summary judgment motion) that the Plaintiff had discovered the claim by September 12, 2011. In turn, the motion judge held that the two year limitation period for bringing this action had expired on September 13, 2013 (i.e., several weeks before the Plaintiff commenced this action on October 17, 2013), at the very latest. Accordingly, the motion judge granted summary judgment to dismiss the claim as being statute-barred.
[38] In overturning the summary judgment, the Court of Appeal noted that the appellant Plaintiff had given evidence that the Defendants had provided him with a cash payment of $5,000.00 (i.e., reflecting a monthly payment owed to him by the sub-tenant under the sublease, that was over and above the monthly lease payment owed to K&K under the head lease) on December 2, 2011. On this basis, the Plaintiff argued that this payment operated to extend the limitation period for bringing his claim to that date: Khosa v. Homelife/United Realty Inc., 2016 ONCA 3 at para 2. The Defendants disputed the Plaintiff’s position by denying any indebtedness to him and denying the alleged $5,000.00 payment. In light of this contradictory evidence, the Court of Appeal found (at paras 2 and 5-7) that the $5,000.00 payment raised a genuine issue for trial.
[39] On this second summary judgment motion, the moving Defendants now assert a more nuanced position that any payment given to the Plaintiff would have been made solely by Parvinder Singh without knowledge or involvement by Gurjinder Singh and K&K. However, Parvinder Singh clearly gave evidence that he did not make a $5,000.00 payment to the Plaintiff in December 2011, as the Plaintiff alleges.
[40] Given this conflicting evidence over the alleged $5,000.00 payment to the Plaintiff in December 2011, this matter raises a genuine issue for trial. In addition to the issue of whether the alleged payment was made and, if so, by or for whom, I find that it may well have implications for the parties’ alleged business relationships, if any, that directly go to the strength of the Plaintiff’s claim arising from the purported loan and lease arrangement. In my view, the payment matter raises significant credibility and factual issues that likely will have an important bearing on the outcome of this claim.
[41] Depending upon how the evidence unfolds, the Plaintiff may argue that the alleged $5,000.00 payment extends the period in which he reasonably would have discovered his claim if, for example, it led him to believe that the parties were living up to their bargain, whatever that may have been. In any such scenario, it may be open for the Plaintiff to assert that he would not reasonably have discovered his claim until some later point in time. To this end, I accept that this alleged payment may arguably extend the limitation period to permit a finding that the claim was brought in timely fashion. Of course, it is also possible that the evidence may point away from any such conclusion.
[42] To be clear, I am not making any finding as to the Defendants’ limitation defence, which is an issue featuring conflicting evidence. In my view, this issue should be left for trial where the court may arrive at a just and reasonable determination by having the benefit of a fulsome and comprehensive evidentiary record. For the purpose of determining this summary judgment motion, I find that the alleged $5,000.00 payment raises a genuine issue requiring a trial as to what the parties knew, what business arrangement they had, if any, and whether the Defendants may invoke a limitations defence based on the discoverability of the Plaintiff’s claim against them.
[43] I also find that this is not a case to employ fact-finding tools to decide the limitation issue at a mini-trial. For essentially the same reasons given above, I find it unlikely that the limitation issue could be fairly and justly determined based on the paper record and evidence of only a few limited witnesses addressing discrete factual points. Moreover, the summary judgment sought by the moving Defendants may not dispose of the entire case, and thus may not confer the sort of procedural efficiencies that would otherwise make it appropriate to consider summary judgment: Butera at paras 30 and 38. This is particularly true in light of the interrelated nature of the evidence related to the limitation issue that is also tied inextricably to the central issue of whether a loan was agreed upon and how the gas station lease arrangement was established.
[44] Summary judgment on the limitation issue may still require the Plaintiff’s claim against Parvinder Singh and Homelife to continue to trial, when the court likely would need to hear evidence as to the alleged loan and lease, along with the parties’ business arrangements and relationships, respectively. To decide these issues properly, I expect that the trial judge likely would need to hear from multiple witnesses on evidentiary points that likely would span essentially the entire case. I find, therefore, that a mini-trial would run the risk of duplicative proceedings, inconsistent findings and potential delay of the sort that appellate courts repeatedly have cautioned is inappropriate for summary judgment; Butera at paras 25 and 30-34. In light of the fairly complex factual circumstances of this case, and the need to promote timeliness, affordability and proportionality, I also find that a trial would afford the most efficient and effective means for the court to decide the limitation issue along with the other issues in dispute. My finding on this point is bolstered by the parties’ decision to expedite their discoveries, which has enabled them to now be largely ready to proceed to trial, as set out above.
[45] For these reasons, I conclude that that the moving Defendants have not met the test for partial summary judgment by asserting that the claim against them is statute barred.
Conclusion
[46] Based on all of the foregoing, the motion for partial summary judgment is dismissed.
[47] The Plaintiff was entirely successful on this motion and is entitled to his costs. Having regard to the overall nature of this motion, I award costs to the Plaintiff on a partial indemnity scale in the fixed amount of $10,000.00, inclusive of taxes and disbursements. In my view, this is a fair and proportional amount in view of the importance of the motion and its moderate overall complexity that featured a somewhat complex business arrangement against fairly established legal principles: ss. 131(1) of the Courts of Justice Act; Rule 57.01(1); Anderson v St. Jude Medical Inc., 2006 85158 (ON SCDC), [2006] OJ No 508 (Div Ct), at para 22. Given the history of this case and the Court of Appeal decision, I accept that neither side acted in wholly unreasonable fashion despite jurisprudence tending to militate against pursuing a motion for partial summary judgment in cases involving disputed factual and credibility issues. I add that this award of costs does not capture duplicative preparation time arising from the Plaintiff’s decision to retain new counsel prior to this motion, and reflects a discount for time related to cross-examinations of affiants given the parties’ agreement to combine them with their examinations for discovery.
[48] I thank counsel for their able submissions.
Doi J.
DATE: August 14, 2019