COURT FILE NO.: CV-18-22
DATE: 20191113
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: I-Land Corp Ltd. v. Lloyd Ffrench
BEFORE: Daley RSJ.
COUNSEL: Steven Sinukoff, for the Plaintiff
Abba Chima, agent for the Defendant
HEARD: August 14, 2019
E N D O R S E M E N T
[1] The Defendant/Plaintiff by Counterclaim moved for summary judgment dismissing the Plaintiff/Defendant by Counterclaim’s action and granting judgment in favour of the Defendant’s Counterclaim.
[2] For the reasons outlined below, the Plaintiff’s action is dismissed. However, the Defendant’s motion for judgment on his Counterclaim is dismissed and the Counterclaim is directed to proceed to trial.
BACKGROUND:
[3] In its Statement of Claim, the Plaintiff, I-Land Corp. Ltd., asserts several claims which are very briefly described in the pleading, with very little articulation of the causes of action.
[4] For the purpose of this decision, the Plaintiff’s claims against the Defendant, Lloyd Ffrench, can be summarized as follows:
(1) The Plaintiff alleges that the Defendant was employed as its maintenance manager, and that while the Plaintiff was engaged in that employment, he stole property with a value of $26,000;
(2) The Plaintiff asserts that the Defendant owes $1,500 with respect to charges for the storage of his vehicle in the Plaintiff’s commercial unit;
(3) The Plaintiff alleges that in August 2017, the Defendant stole the following items from the Plaintiff:
i. forklift with a value of $10,000;
ii. water tank with a value of $1,200;
iii. light fixtures with a value of $1,800; and
iv. electrical boxes with a value of $300.
(4) The Plaintiff asserts that the Defendant installed a defective sump pump causing damage to the Plaintiff’s property in the amount of $3,000;
(5) The Plaintiff asserts that the Defendant used a storage unit and failed to pay the electrical bill and monthly charges for six months, totaling $12,000;
(6) The Plaintiff asserts that the Defendant owes $2,900 with respect to a natural gas bill related to the Plaintiff’s storage unit while used by the Defendant; and
(7) The Plaintiff claims electrical expenses of $1,452 with respect to an electrical bypass repair that cost $8,567.
[5] In response to the Statement of Claim, the Defendant delivered a Statement of Defence and Counterclaim. The Defendant asserted that he and the representative of the Plaintiff entered into a contract in May 2015. Pursuant to this contract, the Defendant would perform maintenance repairs at certain commercial properties owned by the Plaintiff for a period of one year, with an annual payment of $67,000 payable to the Defendant.
[6] The Defendant asserts in his Statement of Defence that the Plaintiff did not pay him for his services, however, the agreement between the parties was extended for “an indefinite period of time”. In his Counterclaim, the Defendant seeks special and general damages in the sums of $200,000 and $25,000 respectively relating to the non-payment by the Plaintiff for the Defendant’s services.
EVIDENTIARY RECORD:
[7] The Defendant filed a 48-paragraph Affidavit outlining his evidence with respect to his Counterclaim for damages regarding non-payment of services rendered to the Plaintiff, as well as the claims asserted by the Plaintiff against him.
[8] The Plaintiff elected to file no evidence in response the Defendant’s motion for summary judgment. Counsel for the Plaintiff submitted that this was not a proper case for summary judgment because there was insufficient evidence to support the motion brought by the Defendant. Counsel for the Plaintiff further submitted that examinations for discovery needed to be conducted before this motion could proceed.
[9] Furthermore, counsel for the Plaintiff took the position that the pleadings outlined the assertions being made on behalf of his client, which was sufficient for this court to consider whether or not the summary judgment motion was properly brought and whether it could be granted.
LEGAL FRAMEWORK FOR SUMMARY JUDGMENT MOTION:
[10] As the parties to this action disagree as to whether or not this is an appropriate case to be determined by a summary judgment motion, the matter must be determined through r. 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which directs that the court, “shall grant summary judgment if… The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[11] Rule 20.04(2)(a) must be read in combination with r. 20.04(2.1) which provides:
In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interests of justice for such powers to be exercised only at trial: 1 weighing the evidence; 2 evaluating the credibility of the deponent; 3 drawing any reasonable inference from the evidence.
[12] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakastanis J. considered the relationship between r. 20.04(2)(a) and r. 20.04(2.1) and made the following comments at para. 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[13] In resolving this motion, I must consider the pleadings and the evidentiary record to determine whether there are any genuine issues requiring a trial. The onus rests with the moving party to establish that there is no genuine issue requiring a trial with respect to a claim or defence. Where the moving party prima facie establishes that there is no genuine issue requiring a trial, the moving party is then entitled to summary judgment at law. To preclude the granting of summary judgment, the responding party then assumes the evidentiary burden to present evidence capable of supporting the positions advanced by that party in its pleading: Correct Group Inc. v. Cameron, 2019 ONSC 3901, at para. 31.
ANALYSIS:
[14] In response to the Defendant’s summary judgment motion seeking to dismiss the main action and to have judgment in the Counterclaim, the Plaintiff’s counsel opposes the motion on the basis that there was insufficient evidence to support the allegations in the Counterclaim, and that examinations for discovery must first be conducted.
[15] It was further submitted on behalf of the Plaintiff that a judge hearing a motion for summary judgment must have an adequate evidentiary record so that the judge can have confidence that the court can find the necessary facts and apply the relevant legal principles so as to resolve the issue in dispute.
[16] Counsel for the Plaintiff further submitted that where there is conflicting evidence on key issues, there is a need to have the matter resolved by the hearing of oral evidence or at a trial.
[17] The Plaintiff clearly made a purposeful and strategic decision not to offer any evidence in response to this summary judgment motion. The only evidence offered is from the Defendant by way of his Affidavit.
[18] It was asserted by counsel for the Plaintiff that productions and disclosure by Affidavits of Documents had not been completed, and as such, this was not a proper case for summary judgment. In the event a party facing a summary judgment motion complains of lack of proper disclosure, steps should have been taken to compel production prior to the return of a summary judgment motion: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, aff’d 2014 ONCA 878, at para. 3. There has been no motion by the Plaintiff to seek productions or to compel examinations for discovery of the Defendant.
[19] Rule 20.02(2) provides that a party responding to a summary judgment motion “may not rest solely on the allegations or denials in that party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.”
[20] Where a party responding to a summary judgment motion chooses not to adduce evidence by affidavit, the court is entitled to draw an adverse inference against that party: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9.
[21] In Sweda Farms (ONSC), Corbett J. stated the court’s considerations on examining a summary judgment motion:
[32] Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.
[33] As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:
The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
If the court cannot grant judgment on the motion, the court should:
a. Decide those issues that can be decided in accordance with the principles described in 2), above;
b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
[22] Although the Plaintiff has elected not to file any affidavit evidence and not to put its best foot forward through its own evidence, contrary to r. 20.02(2), the court must examine the whole record submitted in order to determine whether the moving party has established a prima facie case that there is no genuine issue requiring trial. Therefore, I have considered the Defendant’s Affidavit filed in support of his motion to determine if there is any evidence which would support the Plaintiff’s position in disputing the summary judgment motion.
[23] In his lengthy and detailed Affidavit filed in support of his motion, the Defendant offers uncontradicted evidence with respect to each allegation made by the Plaintiff in its Statement of Claim upon which it seeks judgment against the Defendant. The Defendant was not cross-examined on this Affidavit, and as such, I have accepted the untested and undisputed evidence of the Defendant as the only evidence available on this motion.
[24] There is no evidence contained in the Defendant’s Affidavit that directly or indirectly supports the allegations made in the Plaintiff’s Statement of Claim, and as such, the Defendant’s Affidavit does not contain any evidence that would support the Plaintiff’s position on this motion.
[25] I have further concluded that it is open to me to draw an adverse inference against the Plaintiff that any evidence that it could have offered would not have been supportive of its position, either with respect to its own claim against the Defendant and in respect of the Counterclaim. I do draw such an adverse inference.
[26] So far as the Defendant’s motion to dismiss the Plaintiff’s action is concerned, I have concluded that given the absence of evidence from the Plaintiff, the adverse inference drawn from the Plaintiff’s failure to adduce evidence, and having considered the uncontradicted evidence adduced by the Defendant, there is no genuine issue in the main action requiring a trial.
[27] As such, the Plaintiff’s action is dismissed.
[28] As to the Defendant’s motion seeking judgment on his Counterclaim, the evidence offered by the Defendant, in regard to the damages he seeks in his Counterclaim, is confusing and asserts a combination of written and oral agreements with a representative of the Plaintiff. In my view, the Counterclaim must proceed to trial as the evidentiary record is not adequate enough to fairly and safely determine the questions of liability and damages on the Counterclaim: James v. Miller Group Inc., 2014 ONCA 335. Furthermore, given the nature of the evidence adduced, I have concluded that the additional powers afforded under rr. 20.04(2.1) and (2.2) are not reasonably applicable in this case.
[29] As such, the Defendant’s Counterclaim shall proceed to trial as a simplified procedure trial in accordance with the requirements of r. 76.
[30] Further, the Counterclaim will proceed to trial on both the issues of liability and damages. I also order that the trial proceed as a summary trial in accordance with the requirements of r. 76.12. The parties are ordered to conduct the litigation in respect of the Counterclaim in accordance with the terms and conditions of r. 76. In due course, a pre-trial conference shall be scheduled as provided for in r. 76.10.
[31] In conclusion, the Plaintiff’s claim against the Defendant is dismissed, and the Defendant’s Counterclaim shall proceed as outlined above.
[32] Counsel shall file costs submissions no longer than two pages, along with the costs outline, within 15 days from the date of release of this decision. No reply submissions shall be delivered.
Dated: November 13, 2019
Daley, RSJ.
DATE: November 13, 2019
COURT FILE NO.: CV-18-22
DATE: 20191113
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: I-Land Corp Ltd. v. Lloyd Ffrench
BEFORE: Daley, J.
COUNSEL: Steven Sinukoff, for the Plaintiff
Abba Chima, agent for the Defendant
ENDORSEMENT
Daley, RSJ.
DATE: November 13, 2019