Superior Court of Justice - Ontario

COURT FILE NO.: CV-18-598913

DATE: 20191008

RE: Clive Waugh, Plaintiff

AND:

Bentworth Outdoor Storage Inc., Hy Hershberg, Eshai Hershbert, Yaakov Kozak aka Yan Kosha, Emily J. Pinckard, D Saulnier Auto o/b D Saulnier Auto Parts & Wreckers, Defendants

BEFORE: M.A.Sanderson J.

COUNSEL: Jeffrey Radnoff, for the Plaintiff Mike Cremasco and Andrea LeDrew for the Defendants Bentworth Outdoor Storage Inc. and Hy Hershberg

HEARD: September 24, 2019

ENDORSEMENT

[1] This motion, brought by the Plaintiff/Moving Party “Waugh”, is for an order declaring that Emily Pinckard (“Pinckard”) and/or Bentworth Outdoor Storage Inc. (“Bentworth”) breached her/their undertaking given to the Court on June 3, 2016 and for damages for breach of that undertaking in the amount of $180,963, or for such other amount as this Court deems just. In the alternative, in addition to the declaratory order, Waugh seeks a reference to a Master to calculate the damages caused by that breach of undertaking.

[2] As of June 3, 2016, Waugh was the owner of goods, [including about 36 mostly undriveable vehicles, plus trailers, auto parts, tires etc.] that had been stored outdoors at 205 Bentworth Avenue, Toronto, “205” pursuant to a lapsed storage contract between Waugh and Bentworth.

[3] Waugh initiated this motion as part of an ongoing dispute among Waugh, Bentworth, the principals of Bentworth, Pinckard, Bentworth’s lawyer as of June 3, 2016, and D Saulnier Auto “Saulnier”, the towing company that Bentworth eventually retained to tow some of Waugh’s vehicles from 205.

[4] On this motion, Waugh alleged that Pinckard gave the undertaking in the course of a June 3 2016 hearing before Myers J. during which Waugh was seeking a stay, pending appeal, of an eviction order that Lederer J. had made in Bentworth’s favour against Waugh on April 14, 2016.

[5] Counsel for Waugh submitted on the return of the motion before me that Pinckard’s and/or Bentworth’s breach of the June 3, 2016 undertaking should cause this Court to grant the declaration and damages he is seeking on a summary basis, now.

[6] On the return of the motion for breach of undertaking before me on September 24, 2019, only counsel for Bentworth appeared. No one appeared for Pinckard. Her counsel filed no materials on her behalf. I found that surprising, given that Waugh was seeking a declarative order and damages against Pinckard as well as against Bentworth.

[7] The issues to be resolved on this motion include the following: (1) When Pinckard gave the undertaking was it her personal undertaking or did she give it on behalf of her client Bentworth? Is Bentworth bound by it? (2) What was the specific content and scope of the undertaking given? Was it clear? (3) Was the undertaking breached? (4) If the undertaking was clear and was breached, what legal consequences should be held to flow from that breach? (5) Does this Court have a sufficient record here or is a trial necessary to answer the forgoing questions? (6) Is it appropriate to deal with this motion summarily and/or to grant relief now? (7) If so, what relief should be granted?

[8] Counsel for Waugh generally submitted (1 ) That he is entitled to immediate summary enforcement of the clear undertaking given that Bentworth under supervision would allow Waugh to remove all of his goods, [including all of his vehicles] from 205, on Mondays to Fridays and Sunday between 9AM and 4PM,and that Waugh would have as long as that removal would take; (2) This Court should accept Waugh’s evidence that Bentworth/Pinckard did not allow him to remove his goods; (3) This Court should immediately declare that the undertaking was breached; (4) This court should accept Waugh’s estimate of the value of the goods of which he was deprived, $180,963; (4) Judgment should immediately issue in that amount.

[9] Counsel for Bentworth submitted (1) that this Court has no jurisdiction to apply to Bentworth the same summary procedure available against lawyers to compel them, as officers of the Court, to comply with their undertakings; (2) Any undertaking given by Pinckard was given in her personal capacity and cannot bind Bentworth; (3) In any event, the content and scope of the undertaking given on June 3, 2016 is not clear. For that reason alone, Bentworth cannot be compelled to comply with it; (4) In the alternative, considered in the context in which it was given, the undertaking was not breached; (5) Waugh’s counsel has characterized the relief Waugh is seeking as a declaratory order However, he is not seeking a declaratory order simpliciter. He is also seeking an order compelling immediate payment of $180,963 in damages; (6) Even if Waugh had been seeking a purely declaratory order, this Court would have had the discretion to refuse such an order; (7) In all the circumstances here, to grant the order Waugh is seeking now, would be inappropriate, unwarranted, premature and contrary to the interest of justice.

[10] At the hearing on June 3, 2016 when the disputed undertaking was given, Myers J. dismissed Waugh’s motion for a stay of the eviction order that Lederer J. had granted to Bentworth. on April 14 2016. In refusing to grant the stay, Myers J. commented that Waugh had already been stalling for far too long.

[11] Myers J., in his June 3, 2016 endorsement wrote at paragraph 2:

“The applicant seeks a stay pending appeal with an injunction to prevent the respondent from evicting him…”

[12] His first and primary mention of the undertaking in question was at paragraph 3 of his endorsement as follows:

“The applicant wants his goods. The respondent wants the applicant to remove them. There are propane tanks and other dangerous goods that are uninsured. The respondent’s counsel undertakes to allow the applicant to attend and remove his goods, supervised by the respondent from 9:00 a.m. to 4: p.m. each day, Monday to Friday, and Sunday. There is no real lis between the parties. The applicant just needs time to move his goods. He has had six months (give or take).”

[13] Myers J. wrote at paragraph 4:

“…The goods include dangerous items. The lack of insurance puts the respondent at risk under its own insurance policy. Moreover, there is no evidence that should an untoward event occur Mr. Waugh can afford to pay business interruption costs to the respondent or his other tenants…”

[14] Myers J. wrote at paragraph 6:

“…If I grant the order sought, the respondent’s business is at risk. The new insurance policy does not cover necessary risks like fuels which are in issue. Moreover, it is only valid for 30 days … renewals are subject to the insurer’s consent.”

[15] At paragraph 7, Myers J. characterized the plaintiff’s/applicant’s motion for a stay as “just a stall until the applicant can find an alternative site to his liking or perhaps one he can afford”. He commented “he has stalled the respondent for months already…”

[16] At paragraph 8 Myers commented:

“The applicant can prevent the respondent from removing and selling his goods by doing so himself. The respondent prefers not to incur the removal costs as they will likely exceed the realization proceeds… The applicant won’t sign a lease because he does not like its insurance terms. That is his right. So now he should take his goods and put them somewhere else.” [emphasis added]

He continued: It is time for the applicant to remove his goods or else the respondent can rely on the law that governs how it can do so. [emphasis added]

[17] After reiterating that bringing the motion for a stay of the order of Lederer J. pending appeal was just a “stalling tactic” Myers J. ordered Waugh to pay costs of $8,000 to Bentworth “… In light of the use of these proceedings for delay tactics the applicant is prohibited under Rule 37.16 from bringing any further motions in this application except with leave of a judge.”

[18] At paragraph 11, Myers J. wrote: “The Respondent’s undertaking is not affected by this costs order. I expect it to be fulfilled whether costs are paid now or later.

EVENTS JUNE 3, 2016- JUNE 30, 2016

[19] After the June 3, 2016 order was made, Waugh contacted Bentworth to make arrangements to retrieve his goods. Bentworth sought to arrange for Waugh to safely and expeditiously do so.

[20] By email dated June 3, 2016, Bentworth advised Waugh that it would provide him with a temporary gate code and suggested that Waugh come on Sunday, June 5 to pick up his goods.

[21] By email dated June 4, Waugh advised he wanted access to collect his goods over 2-3 weeks.

[22] Waugh did not attend at 205 on June 5, 2016.

[23] By email dated June 6, 2016 Bentworth provided Waugh with an entry code. Later that day, Waugh advised Bentworth that the code did not work.

[24] While on June 6, Bentworth first advised Waugh that it would provide access Monday to Thursday 10 a.m. to 3:00 p.m., within hours it clarified that advice, and provided Waugh with an entry code that would have given Waugh access Sunday to Friday 9:00 a.m. to 4:00 p.m. At the same time, Bentworth made it clear to Waugh that he could not have unrestricted unsupervised access. Bentworth asked Waugh to email before he came, so that someone could be there.

[25] Hirshberg, a Bentworth principal, advised Pinckard that Bentworth could not give Waugh unrestricted access since Waugh was no longer a tenant and he did not have insurance.

[26] On June 6, 2016 Pinckard wrote:

“Bentworth wants to ensure that the removal of contents is done in an orderly and safe manner. We therefore ask that you wait until we have made arrangements for this to be done and we will notify you of how and when we propose to deal with removing the items. I expect to have a letter to you tomorrow outlining the coordination of removing contents … For the moment I can assure you that your belongings are not in jeopardy. Bentworth will not move or dispose of any of the contents without notifying you in advance.”

[27] On June 7, 2016 Waugh advised Pinckard that he was “in the late stages of finalizing a deal on a new place to move to and he believed it would be completed “as early as today June 7…” [Counsel for Bentworth submitted that Waugh never produced any documentary evidence to corroborate that statement.]

[28] Pinckard informed Waugh by letter dated June 8, 2016 of “our proposed method” of removing vehicles and contents thereof stored at Bentworth:” Due to Bentworth’s safety concerns (vehicles stored close together and contain dangerous materials and other hazards) the vehicles were to be towed from storage unit into an open area before they could be emptied of their contents… The larger vehicles would be towed out one at a time … Bentworth anticipates that between 6-8 cars or 3-5 trucks will be removed from the storage space each day … Once the vehicles have been towed out … the contents will be removed. At that point in time you will have access to the contents. Bentworth hopes you can assist by opening the vehicle doors. If you are not able or willing to open the vehicle doors, they will be forced open. At that time, you will be allowed the opportunity to collect your belongings from inside the vehicles. Your removal of items should be expeditious and tidy… Bentworth asks you come … with a vehicle or trailer capable of carrying the contents….… as per order of Justice Myers, removal of your belongings must be supervised and will be restricted to the hours specified in the order. Bentworth will notify you the day before particular vehicles are being removed… If after notice is provided you do not attend the vehicles will be removed from the site along with its contents without further notice to you. We will give you the opportunity to come and collect your things… but we will not hold up the eviction process should you fail to attend at the property… lastly please be advised the owners and staff of Bentworth will be observing a Jewish holiday on Sunday, June 12 and Monday June 13. There will be no access… on those days... [Emphasis added]

[29] On June 9, Pinckard wrote “you are eligible to take the content only. Not the vehicles. We will notify you in advance or when the first vehicle will be towed out… you may retrieve your belongings in accordance with the process set out in our letter…”.

[30] It is not clear whether the reference to not being allowed to remove vehicles was only from the storage unit to the open area at 205, or whether Bentworth was at that time purporting to prohibit Waugh from removing his vehicles altogether. Waugh seems to have understood that he could use his own tow truck to remove his vehicles from the open area at 205. He was ultimately allowed to bring a tow truck and other equipment into 205 to remove vehicles and contents.

[31] By email dated June 9, Waugh advised he had tow trucks ready to start towing “as I said, I plan to move it all out to vacate the space starting right away.”

[32] In his affidavit, Waugh deposed he attended at 205 on June 12 to organize his belongings and that he intended to start moving them the following Tuesday. During his cross-examination however, he said that he did not attend that day (Waugh transcript pp 50-51).

[33] On June 13, Bentworth confirmed the access code so Waugh could attend at 205 on Tuesday, June 14, 2016.

[34] On his cross-examination, Waugh said he did not know whether he attended on June 14 (p. 53-55). If he did, he did not remove any of his goods. He said at page 60 he did not attend on June 14.

[35] During his cross-examination, Waugh said he could not recall whether he attended at 205 on June 15 (p.57).

[36] On June 16, Waugh believed he did not attend.

[37] Pinckard wrote:

“…The contents cannot sit here any longer. They need to be removed whether we remove them or you remove them. We prefer you remove them. Unfortunately, the latter appears to be taking too long and there is no end in sight for Bentworth. Bentworth as you know is within its right to remove and dispose of all your belongings and vehicles so long as they allow you access to the property between 9-4 Sun-Fri to collect whatever items you can. [emphasis added]

On a without prejudice basis Bentworth propose to allow you access between Sun-Fri until June 30, 2016 in order to collect all of your belongings on the following terms:

(1) payment of $8,000 costs award;

(2) payment of May and June rent in amount of $2,260;

(3) premises must be left clear of all vehicles content garbage by June 30;

(4) $5,000 to be paid into trust to be held as deposit for liquidated damages…”

[38] On Friday, June 17, 2016 Waugh retained a lawyer Mr. Reju who sent a letter to Pinckard, requesting, among other things, that Waugh be given another two weeks to remove his goods.

[39] Waugh said on cross-examination that he did not attend the property on Sunday, June 19, Monday, June 20, or Tuesday, June 21 (transcript page 82).

[40] On June 21, 2016 Pinckard sent a letter to Waugh’s lawyer advising that Bentworth would start removing Waugh’s vehicles from 205 on June 22, 2016.

[41] The Motion Record contains a draft letter from Pinckard to K. Galts Ross Barristers containing the following: “We believe your client is simply kicking up dust by asserting that the access code does not work. He is stalling which is consistent with his pattern of behaviour over the past 8 months… Mr. Waugh has had over 2 weeks since the date of Justice Myers’ order to remove his personal belongings. The undertaking to allow Mr. Waugh access was given to allow him time to collect sentimental items such as the records and childrens’ items he referred to in Court. He has had more than enough time and it is time to move on with the eviction process. Bentworth intends to begin moving Mr. Waugh’s vehicles as per the order on Wednesday… If Mr. Waugh continues to obstruct this process we intend to bring a motion for an order declaring that Mr. Waugh no longer have access to the property altogether. Should such action be necessary…we intend to move…swiftly…” [It is not clear whether that letter was sent.]

[42] Bentworth arranged for Saulnier to start removing Waugh’s vehicles and contents from 205 on June 22, 2016.

[43] Hirshberg and his partner Ungerman were present to supervise.

[44] On June 22 and 23, 2016 Waugh attended at 205 with a tow truck, a tractor trailer, a pick-up truck and another trailer.

[45] Throughout June 22 and June 23, Waugh and Saulnier towed Waugh’s vehicles and their contents off of 205.

[46] Waugh alleges that Saulnier took some of his vehicles and their contents away without his consent.

[47] Hirshberg said no one prevented Waugh from keeping any of his vehicles or their contents. The record contains numerous pictures taken on June 22 and 23 that Hirshberg said show Waugh directing Saulnier as to which of his vehicles he wanted Saulnier to take away and discard. Hirshberg also said that after Waugh’s vehicles were towed from 205, Waugh was allowed to park those vehicles he wanted to keep on Caledonia Street and to pick them up over the next seven days.

[48] Saulnier was not a party to this motion. There was no affidavit evidence from Saulnier about the events on June 22 and 23, 2016 or about the instructions given to Saulnier by Bentworth or Waugh about disposal or retention of any vehicles.

PROCEDURAL HISTORY AFTER JUNE 3, 2016

[49] Although Myers J. invited the parties to reattend before him if they wished his further assistance, they did not do so.

[50] Almost two years after the June 3, 2016 undertaking was given, on May 31, 2018 Waugh issued the Statement of Claim herein, claiming $1,000,000 in damages for conversion or alternatively negligence or wrongful disposition of his property. Waugh pleaded that Bentworth made it impossible for him to remove his goods in accordance with the order of Myers J. dated June 3, 2016 and that Bentworth removed and disposed of them without his consent or authorization. Waugh also made claims against Pinckard, the principals of Bentworth and Saulnier.

[51] Waugh did not specifically mention the Breach of Undertaking given on June 3, 2016, nor did he seek declaratory relief in respect thereof.

[52] Bentworth’s Statement of Defence was filed on July 6, 2018.

[53] Now, more than three years after the undertaking was given on June 3, 2016 and more than two years after his Statement of Claim was filed, Waugh is seeking to summarily enforce the undertaking.

[54] It is not clear whether Waugh obtained leave to bring this motion as was stipulated by Myers J. in his June 3, 2016 endorsement, or if Archibald J. was advised of that stipulation when he was asked to set September 24, 2019 as the return date for this motion.

Analysis

THE MOTION AGAINST BENTWORTH

IS A MOTION AGAINST BENTWORT PROPERLY BEFORE THIS COURT?

(1) CAN PINCKARD’S UNDERTAKING BIND BENTWORTH?

[55] As noted earlier, Pinckard filed no evidence on this motion on the nature of the undertaking or on her discussions with her client Bentworth at the time she gave the undertaking.

[56] Counsel for Bentworth submitted the undertaking given by Pinckard was Pinckard’s personal undertaking. This is relevant because if it was, Bentworth cannot be bound by it.

[57] Counsel for Bentworth acknowledged that when Myers J. used the following words in his endorsement at paragraph 3: ”The respondent’s counsel undertakes to allow the applicant to attend and remove his goods,” Myers J. could be held to have been implying that Pinckard was not giving a personal undertaking, because she did not control the Bentworth storage facility from an operational standpoint, and it would not have been within her power to fulfill it.

[58] It is not clear from the endorsement of Myers J. dated June 3, 2019 whether he was of the view that the undertaking in question was intended to be Pinckard’s personal undertaking to be an undertaking given in her capacity as an agent of Bentworth.

[59] On the record before me it is not feasible to resolve this issue. A trial is needed.

(2) CAN THE PROCEDURE AVAILABLE TO FORCE LAWYERS TO COMPLY WITH THEIR UNDERTAKINGS GIVEN AS OFFICERS OF THE COURT BE USED AGAINST BENTWORTH, A NON LAWYER ?

[60] Counsel for Bentworth submitted that whether or not Pinckard’s undertaking given on June 3, 2016 could bind Bentworth, the summary procedure available to force Pinckard to comply with her undertaking as an officer of the court is not available to force Bentworth to do the same. Summary enforcement of lawyers’ undertakings is only available against lawyers because they are officers of the Court.

[61] In Thomas Gold Pettingill LLP v. Ani-Wall Concrete Forming Inc. 2012 ONSC 2182 Perell J. wrote at paragraph 49:

“The Courts summary jurisdiction to enforce lawyer’s undertakings is rooted in the idea that the court should secure higher standards of conduct honesty and integrity from its officers…”

[62] I accept that submission. In my view Waugh cannot use access to the extraordinary procedure available to force lawyers to comply with their undertakings as officers of the court against non-lawyer parties such as Bentworth.

CONTENT OF UNDERTAKING-WAS THE UNDERTAKING CLEAR?

[63] Counsel for Bentworth submitted that in any event, the undertaking given on June 3, 2016 cannot be enforced now because its content and scope is unclear.

[64] Counsel for Waugh submitted in effect that Myers J. clearly ordered that Waugh must be permitted to obtain all his belongings and that he could have as many days as he thought he needed to remove them from 205.

[65] Counsel for Bentworth submitted that viewed in context it was obvious that Myers J. was not giving Waugh as much time as Waugh would like to remove his goods from 205. He could not continue to stall. He must remove the goods quickly.

[66] It is also evident from Hirshberg’s affidavit and cross-examination transcript that the principals of Bentworth thought it would cost them more to remove and dispose of Waugh’s goods than they were worth. They were of the view that most of Waugh’s goods were “junk.”

[67] During his cross-examination on his affidavit, Hirshberg said at page 29 of the transcript “Our primary preference would be that Clive [Waugh]would take his own goods because there was so much junk that basically nobody would take, which means we would be responsible to load it, dispose of it and pay the disposal. So we would rather that he would have taken it all for the entire period that we gave him the opportunity to do so.

[68] Myers J. wrote: “It is time for the applicant to remove his goods”. He mentioned if Waugh didn’t act quickly “the respondent can rely on the law that governs how he can do so.”

[69] It was implicit in his endorsement that Myers J. was allowing Waugh to remove and retain his goods primarily because Bentworth had agreed he could. That is why Myers J. wrote do so. “There was no lis.” It appears that if there had been no agreement, Myers J. might not have been prepared to make the order that he did.

[70] It was also clear that Waugh must remove his goods under Bentworth supervision immediately and safely. Until the goods were removed, Bentworth’s business and other customers were “at risk”.

[71] I glean from the context in which the endorsement was written that Myers J. was not giving Waugh permission to stall indefinitely. He was not intending that Waugh must be allowed simply to remove his goods in his own way, in his own time, on his own terms. He was not granting an indefinite extension of Lederer J’s eviction order if Waugh continued to stall.

[72] While it is clear that Waugh must move quickly it is not clear on the evidence on the motion or from the wording of the endorsement whether the undertaking was intended to cover all of Waugh’s goods, including all of his vehicles. To the extent there was evidence at all, the evidence relevant to this issue was conflicting. I cannot confidently resolve this issue on the record before me.

[73] In any event, given my other reservations about granting the relief sought here, there is little to be gained by attempting to determine the scope of the undertaking now.

WAS THE UNDERTAKING BREACHED?

[74] In determining whether there was a breach of the undertaking it is also necessary to decide whether Waugh’s conduct between June 3 and June 23, 2016 constituted sufficient reason for Bentworth to act as it did on June 22 and 23, 2016 and thereafter.

[75] It is also necessary to determine whether Bentworth breached the undertaking by preventing Waugh from removing and retaining any of his vehicles.

[76] Waugh alleged that said some of his vehicles and their contents were removed by Saulnier against his will, in violation of the undertaking.

[77] Counsel for Bentworth submitted that before June 22, 2016 Waugh did not bring a tow truck or other equipment to take away his goods as he had promised. After June 3, 2016, Waugh continued to stall and when, before June 22 he did not cooperate in the safe and expeditious removal of his goods, it was necessary to hire Saulnier to clear 205 of Waugh’s goods. Even then, Waugh was allowed to keep whatever goods he wanted to keep, including any vehicles he wanted to keep.

[78] There was much conflicting evidence on what happened between June 3, 2016 the date of the stay motion and June 30, 2016 and particularly on whether Bentworth prevented from retrieving any of his vehicles and their contents on June 22 and 23, 2016 and during the following week.

[79] It is clear that at one point in time before June 22, 2016 Pinckard did advise: “you are eligible to take content only – not vehicles. It is not clear whether she was simply restricting Waugh’s access to the storage unit given that the vehicles were crammed together and needed to be brought to the open at 205 before Waugh could safely tow them away, or whether she was saying he would never be allowed to take those vehicles.

[80] Even if at one point she advised that Waugh could not take his vehicles, Waugh admitted on cross-examination that he was allowed to remove and retain/take/keep many of his vehicles on June 22 and thereafter.

[81] Whether he could have kept all of them is a contested fact. There was conflicting evidence on that issue.

[82] Hirshberg deposed that Waugh was allowed to keep all vehicles and their contents that he wanted to keep. Saulnier removed only those vehicles and contents that Waugh said he did not want to keep. In fact, Waugh assisted Saulnier in loading any vehicles he did not wish to keep. The record contains numerous pictures taken throughout June 22 and 23 including photos Hirshberg submitted depicted Waugh directing Saulnier to remove vehicles.

[83] I accept the submissions of Counsel for Bentworth that given the conflicting evidence, a trial is needed to determine whether the undertaking was breached.

TO GRANT THE RELIEF SOUGHT WOULD BE INAPPROPRIATE, UNWARRANTED, COUNTERPRODUCTIVE, AND CONTRARY TO THE INTEREST OF JUSTICE

[84] Counsel for Bentworth submitted that even if the undertaking here could be of a nature that it could bind Bentworth, and even if it were open for Waugh to invoke the summary procedure available against lawyers to enforce their undertakings given as officers of the Court, in all the circumstances here, to grant the order sought would be inappropriate and contrary to the interests of justice. This Court always has a discretion to refuse declaratory relief and it should do so here.

[85] He cited Harrison v. Antonopoulos, 2002 CanLII 28725 (ON SC) as follows:

“[28] Declaratory relief, being only a declaration of parties' rights, is mainly sought in commercial matters to help parties define their rights, and as a means to settle matters amicably where reasonable people would otherwise disagree on their mutual obligations and wish to resolve the matter in order to avoid future disputes. In other words, a cause of action need not be extant at the time a party requests declaratory relief. Because declaratory relief is in essence a request for an advance ruling, courts have discretion to refuse such relief…”

[86] He submitted that counsel for Waugh is seeking to obtain immediate procedurally unusual relief, an advance ruling under the guise of a declaratory ruling. He is seeking to invoke a procedure that would allow him to circumvent the usual procedures designed to promote litigation fairness.

[87] Waugh did not seek to immediately enforce the undertaking. He did not seek to appear further before Myers J.

[88] Instead, Waugh waited for three years from the date the undertaking was given before launching this motion. Any damage that may have resulted from any breach of undertaking would have crystallized long ago. By now, little could be gained from summary enforcement, even if it were otherwise warranted.

[89] I accept that submission.

[90] I have also considered that when Waugh issued the Statement of Claim herein approximately two years after the undertaking was made, he did not specifically seek a declaration against Bentworth that the undertaking had been breached or make any claim for summary relief in respect thereof.

[91] On this motion Waugh seeks to have Bentworth immediately pay him $180,963 in damages. The only evidence provided by Waugh in support of that claim is Waugh’s list of all his goods stored at 205 and Waugh’s own estimate of their value.

[92] Waugh does not now allege that Bentworth converted all of the items on that list. Waugh conceded that Bentworth allowed him to keep some of the goods included on that list. He did not delineate which of the goods on the list he had been allowed to keep nor did he remove their estimated value from his claim for damages.

[93] I also note that Waugh’s estimate of the value of his goods $183,963 was greatly at odds with the $8,100 valuation contained in Bentworth’s record.

THE MOTION EVEN IF GRANTED WOULD NOT HAVE BEEN DISPOSITIVE OF THE ACTION

[94] There is one additional reason why to make the order sought now would be inappropriate.

[95] Had Waugh resorted to the Rules of Practice to seek summary relief against Bentworth he would have applied for partial summary judgment. If he had, the considerations that pertained in Mason v. Perras Mongenais, 2018 ONCA 978 would have applied here.

[96] In that case, the Ontario Court of Appeal considered the risks inherent in granting partial summary judgment where, as here, there were multiple defendants and bases for potential liability.

[97] The Court wrote:

“[22] In my view, the motion judge erred in principle in granting partial summary judgment, in the context of this litigation as a whole. In doing so, the motion judge failed to heed the advice given by this court in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, about the risks associated with granting partial summary judgment. Those risks were repeated in this court’s decision in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561. As Pepall J.A. said in Butera, at para. 34:

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.

[23] The potential liability of the respondent to the appellant is not an issue that can be readily bifurcated from the rest of the appellant’s claim. The nature of the appellant’s claim is such that it is inextricably linked to the claim against the other defendants…,

[37] Further, the result of the motion judge’s conclusion is that one side of that tripartite arrangement has been removed from review and consideration at the trial. That result appears to directly conflict with the “interest of justice” element of the summary judgment approach laid out in Hryniak. In particular, I point to the following observation of Karakatsanis J. at para. 60:

For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice…

39] Further, there does not appear to be any advancement achieved in terms of the action as a whole by rendering partial summary judgment in this case…Granting summary judgment therefore saves little evidence or time at trial. The trial will not be significantly shortened…

[40] The motion judge also appears to recognize that there is a risk of inconsistent findings at trial…

[41] …. Butera addresses, in a comprehensive fashion, the problems that arise when partial summary judgment is sought. Indeed, the decision here invokes all of the concerns identified in Butera in that respect, including delay, added expense, the unproductive use of scarce judicial resources, and the reality of a limited record.

[42] ...Proceeding summarily also does not achieve the fundamental purposes of the summary judgment process, that is, to provide a “more expeditious and less expensive means to achieve a just result”: Hryniak, at para. 49.

[44] … nothing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to “a fair process and just adjudication”: Hryniak at para. 33. Certainly there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule.”

[98] In Avila v. Couto, 2019 ONSC 400 Kimmel J. wrote at paragraph 32:

“[32] The Supreme Court of Canada’s description of the “interest of justice” inquiry in the Hryniak case at paras. 58 – 60 directs the court to consider the consequences of the motion in the context of the litigation as a whole in deciding whether the court’s Rule 20.04(2.1) fact-finding powers should be exercised only at trial. The Supreme Court used the example that if some of the claims against some of the parties will proceed to trial in any event, “it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.”

[33] This underscores the concern about inconsistent findings at trial when a summary judgment motion is not dispositive of the entire case. This is precisely what the Court of Appeal has repeatedly said is not an appropriate case for summary judgment. (See Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438; Hamilton (City) v. Their + Curran Architects Inc., 2015 ONCA 64, 45 C.L.R. (4th) 1; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561; Mason v. Perras Mongenais, 2018 ONCA 978, and Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6.”

[99] In Butera v. Chown, Cairns LLP, 2017 ONCA 783 Pepall JA wrote:

“[27] Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561. Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.

[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.

[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.

[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.

[31] Second, a motion for partial summary judgment may by very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

[34] 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.”

[100] Even if Waugh had been successful in establishing that the undertaking could bind Bentworth [which he has not], was sufficiently clear [which he has not], was breached [which he has not] and even if Waugh’s entitlement to damages had been sufficiently documented and proven against Bentworth and or Pinckard, [which has not happened here], even if the Court had been in a position to declare that the undertaking had been breached and had awarded damages against either or both of Pinckard and Bentworth, that would not have disposed of all the issues raised in the Statement of Claim. Levels of fault, contribution and apportionment issues would need to be addressed.

[101] There would be a possibility of an appeal of the disposition of this motion causing consequent delays to the main action.

[102] In his Statement of Claim Waugh sought relief against a number of parties other than Bentworth and Pinckard. They were not parties to this motion. Even if Waugh had been entirely successful against Bentworth and Pinckard on this motion, it would not have been dispositive of the claims against the other parties named in the Statement of Claim or against Bentworth and Pinckard for Waugh’s claims for other than breach of undertaking. Even if successful on the motion the action would still have continued on.

[103] Where, as here, there are genuine issues requiring a trial, including what happened on June 22 and 23, 2016, whether Bentworth allowed Waugh to retain the vehicles that he wished to keep and, where on the conflicting affidavit evidence before me on this motion I cannot confidently make that determination, I would have dismissed any partial summary judgment motion and ordered that a trial is necessary.

[104] In summary little would be gained in terms of achieving the objectives outlined in Hyrniak if this Court were to grant the order Waugh is seeking now. Such an order would overall be counterproductive to those objectives, because it would cause extra expense, delay and the spectre of inconsistent findings made on insufficient evidence.

[105] For all these reasons the motion must fail against Bentworth.

THE MOTION AGAINST PINCKARD

[106] Many of the same considerations that apply to Waugh’s motion against Bentworth apply to Waugh’s motion against Pinckard. Even if this court were to have held that Pinckard gave a personal undertaking, a trial would still have been necessary to determine whether the undertaking was breached and to assess damages.

[107] To grant the relief sought in all the circumstances here would not have advanced the Hyrniak objectives.

DISPOSITION

[108] The Motion is therefore dismissed against both Bentworth and Pinckard.

[109] The parties may make submissions on costs not to exceed five pages each within 10 days of the release date of this endorsement. I would ask counsel to specifically address whether leave was given to Waugh to bring this motion by a judge of this Court before it was initiated and whether Archibald J. was advised that Waugh needed leave of the court to bring this motion at the time that he set the date for it to return.

M.A. Sanderson J.

Date: