Court File and Parties

Court File No.: CV-18-00606902 Date: 2021-02-09 Ontario Superior Court of Justice

Re: Lakefield Properties Ltd., Plaintiff And: The Otonabee Region Conservation Authority et al., Defendants

Before: F.L. Myers J.

Counsel: M Schafler and Kristjan Surko, for the plaintiff D. Schmuck, for the Safe Harbour defendants E Nicholl, for The Otonabee Region Conservation Authority

Heard: February 9, 2021

Endorsement

[1] The parties attended Civil Practice Court this morning pursuant to the endorsement of Chalmers J. dated December 9, 2020. The Safe Harbour defendants sought to schedule a motion for summary judgment before Chalmers J. He endorsed that the parties should attend a scheduled mediation and then, if no settlement was reached, attend CPC today to schedule the motion.

[2] The plaintiff opposes the scheduling of the motion for numerous reasons, including, principally, that the motion is for partial summary judgment. Mr. Schmuck argues that Chambers J. has already determined that the motion is to be scheduled today.

[3] However, on December 10, 2020, the day after the parties were before my colleague, the Court of Appeal released their decision in Malik v. Attia, 2020 ONCA 787.

[4] At para. 62 of that case Brown J.A. wrote:

[62] When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties: (i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties; (ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly; (iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[5] Whether Chalmers J. has already determined that I am to proceed with scheduling today, on being asked to schedule the motion, I still must consider the three issues listed by Brown JA.

[6] Mr. Schmuck argues that since his two defendants will be released from the action in full if they succeed on the motion, this is not really partial summary judgment. That argument has been conclusively rejected by the Court of Appeal in Mason v. Perras Mongenais, 2018 ONCA 978.

[7] The action concerns a claim by the plaintiff that its valuable land was re-designated a floodplain by the Conservation Authority and Township and stripped of its commercial value due to wrongful acts by the government defendants and acts of the Safe Harbour defendants altering their own lands upstream from the plaintiff.

[8] Mr. Schmuck says that his clients developed their land in accordance with approvals duly obtained from the government defendants. They say they owed no duty of care to their neighbours if lawful compliance with their development approval led the government to re-classify the plaintiff’s land. Moreover, Mr. Schmuck says that there are numerous other upstream landowners who have also made changes to their land. There is no way for the plaintiff to prove that it was the changes made by the Safe Harbour defendants that caused whatever ills the plaintiff may be suffering.

[9] Mr. Schmuck says that the claims against the Safe Harbour defendants are completely discrete from the plaintiff’s claims against the government for their waffling about the designation of the plaintiff’s lands, possible misrepresentations, and negligence in how they have allowed redevelopment by others (including Safe Harbour) to negatively impact the plaintiff’s land.

[10] Mr. Schmuck also makes the point that I have no evidence at all in front of me. He argues that it would be inappropriate for me to make triage decisions based solely on how counsel pitch their cases in CPC.

[11] Mr. Schafler for the plaintiff advises that the government defendants have committed to try to get him a final position on whether the plaintiff’s land is designated as being in a floodplain by the end of April. He says that the action may be moot (subject to costs) if they decide that the plaintiff’s land is not in a floodplain. Accordingly, he asks that the parties not spend money on Mr. Schmuck’s motion for two months to allow the government to complete its review.

[12] In addition, Mr. Schafler argues that there are common issues between the claims against the two sets of defendants. In both claims, a key issue is what caused the re-designation of the plaintiff’s land to a floodplain. Whether the cause was a legal or an illegal act by the Safe Harbour defendants, or if the cause was upstream changes by others, or if the cause is too amorphous to be pinpointed, the claims against both sets of defendants will be significantly affected.

[13] Moreover, both sets of defendants rely on the Limitations Act, 2002. The Safe Harbour defendants have raised this issue on their proposed motion. The government defendants are content to wait for trial. The issue of when the plaintiff discovered its claims as described in ss. 4 and 5 of the Limitations Act, 2002, is common to both sets of defendants and involves at least some overlapping facts.

[14] Justice Brown’s third point above says:

Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[15] As written, it seems to call for a determination of whether there actually will or will not be inconsistent findings on the motion and at trial. Of course, one cannot know that with certainty until both proceedings are heard. Moreover, Brown JA intended that these questions were to be considered during scheduling triage. Whether at a 9:30 appointment on the Commercial List or in CPC, a triage judge is not expected to have much, if any, actual evidence before her or him. Necessarily one is dealing with considerations of likelihood and risk based on common sense and experience.

[16] The Court of Appeal’s decision in Perras Mongenais also assists on this point. In that case, at paras. 40 and 41, the Court of Appeal ruled that I had erred in determining that there is no “bright line rule” precluding motions for partial summary judgment in “every case that might possibly have a risk of duplication or inconsistent verdicts”. I had read Hryniak as calling for a weighing of relative risks and benefits of summary judgment. However, the Court of Appeal decided that there is no weighing to be conducted. There is rather, a bright line rule that partial summary judgment is not available when there is any risk at all of duplication of findings or inconsistent verdicts at a proposed motion and the trial. Put another way, the facts and causes of action on which partial summary judgment is sought cannot be said to be discrete or readily bifurcated from the claims against the remaining defendants if a risk exists of duplication or inconsistent verdicts. See: Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34.

[17] The existence of the common issue concerning the limitation period therefore must result in the motion being refused. There is certainly a risk of duplication and inconsistent verdicts when the same facts and issues are brought in both the proposed motion and the trial.

[18] The issue of what caused the re-designation of the plaintiff’s land also strikes me as one with at least a risk of overlap and inconsistency. At the motion, the Safe Harbour defendants may succeed in establishing that its land was not the cause of the plaintiff’s losses. But to defend itself at trial, the governments may blame Safe Harbour for illegal dumping on its land among other things.

[19] I also do not see how forcing everyone into an expensive process of partial summary judgment is more affordable than waiting a couple of months and then, if the action continues, running it all together.

[20] I understand that the Safe Harbour defendants have evidence that the existence of the plaintiff’s claim is impairing their credit. It wants the action against it ended as soon as possible.

[21] Civil litigation is about money. Participating always involves a cost benefit analysis. If a defendant cannot withstand the delays in the current system, it always remains free to settle. But what it cannot do is decide to be aggressive to impose delay, costs, and risk of unjust duplication and inconsistent verdicts on the other parties and the court.

[22] Safe Harbour may not bring its proposed motion for summary judgment at this time. If the parties need assistance scheduling next steps, a case conference with a judge is always available to them.

F.L. Myers J. Date: February 9, 2021