Court File and Parties

COURT FILE NO.: CV-20-00651888

DATE: 20210601

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: INDELL CORPORATION Plaintiff

AND:

AXIOM REAL-TIME METRICS INC. Defendant

AND:

MMC MARKETING Third Party

BEFORE: Mr. Justice Chalmers

COUNSEL: A. Schorr, for the Plaintiff/Moving Party R. Stern, for the Defendant/Responding Party S. Barclay, for the Third Party

HEARD: May 31, 2021

ENDORSEMENT

[1] The Plaintiff is a landlord of two units leased to the Defendant. The Defendant sublet one of the units to the Third Party. The two units were damaged as a result of water/flooding. The Plaintiff states that pursuant to the terms of the lease, the Defendant/tenant was contractually required to obtain insurance for the units and to indemnify the Plaintiff/landlord with respect to damage to the units. The Plaintiff brings a motion for summary judgment.

[2] The Defendant requests this case conference to determine whether this is an appropriate case for summary judgment. Counsel argues that summary judgment will not result in the disposition of the entire action. He states that the third-party action will continue and that there is a risk of inconsistent findings. The Plaintiff argues that this is not a partial summary judgment motion because, if successful the Plaintiff’s action will be fully disposed of. He notes that the Third Party did not defend the main action. He also argues that in terms of proportionality, the amount in issue is less than $100,000 and that summary judgment is the most expeditious method of resolving the matters in issue.

[3] The Court of Appeal in Malik v. Attia, 2020 ONCA 787, at para. 62 set out the questions to be considered in determining whether a motion for partial summary judgment ought to proceed:

a. how dividing the case into several parts will prove cheaper for the parties;

b. how will partial summary judgment get the parties in and out of the court system more quickly; and

c. how partial summary judgment will not result in inconsistent findings.

[4] The Plaintiff is bringing a motion for summary judgment, which if successful, will completely dispose of the Plaintiff’s action. Based on the submissions of Plaintiff’s counsel, this action involves the interpretation of the lease. There are few, if any, factual matters in dispute and therefore the risk of inconsistent findings is not significant. I also note that as of the date of the case conference, the Third Party had not delivered a defence to the main action. Pursuant to R. 29.05(5), the Third Party will be bound by any order or determination made in the main action between the Plaintiff and Defendant.

[5] I am not prepared to find, on the limited record before me that this matter is not appropriate for summary judgment. It is my view that summary judgment is appropriate to achieve the objectives of proportionate, timely and affordable justice. If the Plaintiff is successful, the Plaintiff will be out of the court system and the main action will be at an end. Summary judgment is also the most proportionate method of resolving the dispute in light of the fact that the Plaintiff’s damages are less than $100,000. I am also satisfied that there is no significant risk of inconsistent findings of fact.

[6] My decision to allow the matter to proceed to a summary judgment motion, does not bind the motions judge, who may conclude, on a more complete record, that the matter is not appropriate for summary judgment.

[7] The summary judgment motion is scheduled to proceed on June 28, 2021 for a half-day. At the time the motion was scheduled, the Third Party had not yet retained counsel. A request was made for an adjournment of the motion to allow the Third Party to review the file and seek instructions. Counsel for the Defendant also requested an adjournment to conduct cross-examinations. I grant the request for an adjournment of the motion. The motion is adjourned to November 10, 2021 for a half-day. The date of June 28, 2021 is vacated.

[8] Counsel stated that they expect to be able to agree on a timetable for the completion of materials, the cross-examinations and the delivery of facta. If the parties are unable to come to an agreement with respect to the timetable, a further case conference may be scheduled before me.

DATE: JUNE 1, 2021