BARRIE COURT FILE NO.: CV-13-28

DATE: 20220712

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MRB LAW LIMITED PARTNERSHIP, WILL DAVIDSON LLP and 2025443 ONTARIO LIMITED

Plaintiffs

– and –

INTACT INSURANCE COMPANY And AXA INSURANCE (CANADA)

Defendants

David Morin, Counsel for the Responding Party Plaintiffs

Anthony Bedard and Alex Sharpe, Counsel for the Moving Party Defendants

HEARD: April 26, 2022

Madam Justice S.J. Woodley

REASONS FOR DECISION

Overview

[1] This is a motion by the Defendants (Intact) for a preliminary determination regarding admissibility of evidence. Specifically, Intact askes the Court to rule on whether a party should be permitted to file subjective extrinsic evidence in the context of a motion for summary judgment on the interpretation of an insurance policy. Intact claims the evidence is irrelevant and should be struck from the record prior to the summary judgment motion being heard.

[2] Intact argues that if the evidence is not struck at this preliminary stage, the summary judgment motion will become needlessly complex thus causing significant delay, substantial costs, and the requirement for considerable court resources.

[3] The Plaintiffs (Will Davidson) argue that striking the evidence prior to the hearing of the summary judgment motion will restrict the motion judge’s ability to determine the summary judgment motion, result in an influx of similar motions, and will cause summary judgment motions to become needlessly complex, expensive, resulting in increased significant delay and a waste of judicial resources.

Facts

[4] On March 19, 2012, a fire burned Will Davidson’s Oakville law office. At the time of the fire, the premises were insured under a policy of insurance underwritten by the Defendant AXA Insurance which is now Intact.

[5] According to Will Davidson, the insurer, Intact, paid out under every head of coverage except the loss of income (business interruption) endorsement.

[6] On March 14, 2014, Will Davidson, commenced an action against Intact, for coverage under the policy.

[7] By their Statement of Defence, Intact, denied that Will Davidson suffered the damages alleged in the Statement of Claim.

[8] Despite best efforts the parties advise there is no prospect of settlement of this claim which Will Davidson allege totals approximately $1,700,000.00 plus interest and costs.

[9] Examinations for discovery were conducted in February of 2020.

[10] On September 30, 2021, Will Davidson, served Intact with a motion for summary judgment. In support of the motion, Gary Will swore an affidavit (“Affidavit”) which describes his experience after the fire and his dealings with Intact, including how he perceives that Intact reacted to the three kinds of income loss: increased expenses, loss of billings, and loss of new business.

[11] In November of 2021, counsel for Intact wrote to object to the Affidavit on various grounds.

[12] On January 14, 2022, counsel for Intact wrote again claiming the Affidavit was inadmissible and sought 78 out of 93 paragraphs struck.

[13] In January of 2022, Wills Davidson requested the Court to provide a hearing date for their summary judgment motion. Intact opposed the request so it could bring the within motion to strike.

[14] On February 3, 2022, Regional Senior Justice Edwards issued the following Direction:

The motion to strike portions of the Plaintiffs’ affidavit is to be heard no later than June 1, 2022 (the Court will make best efforts to accommodate any date the parties can agree upon).

Once that motion is heard, and determined, the Long Motion request for the Plaintiff will be granted and it will be added to the running long motions list, not to be called before August 1, 2022.

This will give ample time for the responding party to file responding materials, and for the Plaintiff to amend any material already served, depending on the outcome of the motion to strike.

[15] On April 26, 2022, the within motion came before me for hearing on the short motions list.

Issues

[16] The issues on this motion are:

i. Is leave required under Rule 48.04(1) to bring the motion to strike?; and

ii. Should the Affidavit be struck before the hearing of the summary judgment motion?

Analysis

i. Is Leave Required?

[17] To the extent that leave may be required pursuant to Rule 48.04(1), such leave was granted by Regional Senior Justice Edwards by his Direction dated February 3, 2022.

ii. Should the Affidavit be Struck at this Preliminary Stage?

[18] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, outlines when a court may grant summary judgment. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada stated that Rule 20 was amended to improve access to justice. The reforms changed the test for summary judgment from whether a case presents “a genuine issue for trial” to whether there is a “genuine issue requiring a trial” (at para. 43).

[19] The new powers in Rule 20 allow motion judges to weigh evidence, evaluate credibility, draw reasonable inferences, and call oral evidence. These new powers expand the number of cases in which there will be no genuine issue requiring a trial, thereby establishing that a trial is not the default procedure and eliminating the presumption of substantial indemnity costs against a party that brings an unsuccessful motion for summary judgment.

[20] Karakatsanis J., writing for the court, laid out the test to apply when determining whether a summary judgment motion may be granted, 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.

[21] In determining whether there is a genuine issue requiring a trial, the Court of Appeal for Ontario’s decision in Hryniak suggested that “summary judgment would most often be appropriate when cases were document driven, with few witnesses and limited contentious factual issues, or when the record could be supplemented by oral evidence on discrete points” (at para. 48).

[22] The SCC affirmed that the ONCA’s suggestions are helpful observations but should not be taken as delineating firm categories of cases where summary judgment should and should not apply; summary judgment may be appropriate in a complex case, with a voluminous record if there is no genuine issue requiring a trial. At para. 49, the SCC further explained that a case where there is no genuine issue requiring a trial will be a 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.”

[23] When summary judgment allows the judge to find the necessary facts and resolve the dispute, proceeding to trial is generally not proportionate, timely, or cost effective. Alternatively, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute.

[24] The focus is not what kind of evidence could be adduced at trial, but rather whether a trial is required. The evidence simply must be such that the motions’ judge is confident that she can fairly resolve the dispute fairly and justly.

[25] The onus is on the moving party to establish a prima facie case that there is no genuine issue requiring a trial. The onus then shifts to the responding party to show that there is a genuine issue requiring a trial. Both parties must put their best foot forward and cannot simply advise that further or better evidence may be available at trial.

[26] Having considered the caselaw surrounding Rule 20 and the ongoing guidance provided by the SCC in the application of Rule 20, I am of the view that the Defendants’ motion must fail. The Defendants seek to strike evidence that the Plaintiffs claim is necessary to the determination of the motion without allowing the motion’s judge to determine admissibility. If the relief were granted, such relief would effectively reverse the progress and expansion of Rule 20, cause an influx of interim motions to pre-determine admissibility, and result in wasted time, increased costs and expenses, and increased demand for judicial resources.

[27] The issue of admissibility and relevancy is best left to the judge hearing the summary judgment motion. To order otherwise, in the circumstances of this case, is contrary to the administration of justice.

[28] Summary judgment is intended to be a proportionate, more expeditious, and less expensive means to achieve a just result. Such a result cannot be reached if the judge hearing the motion is stripped of her opportunity to hear, weigh, and determine the admissibility and relevance of the evidence sought to be proffered.

Disposition

[29] For the reasons detailed above, the following order shall issue:

a) The motion to strike portions of the Affidavit of Gary Will prior to the hearing of the Plaintiffs’ summary judgment motion is dismissed; and

b) Subject to any offer to settle that may affect costs, the Plaintiffs are the successful party and are entitled to their costs. If an agreement relating to costs cannot be made, the Plaintiffs may serve and file their costs submissions restricted to three pages with a Bill of Costs and Costs Outline attached, together with any relevant Offers to Settle within 30 days of the date herein. The Defendants may serve and file their costs submissions subject to the same restrictions within 45 days. Any reply is limited to one page to be served and filed within 50 days from the date herein.

Madam Justice S.J. Woodley

Released: July 12, 2022