Court File and Parties

Court File No.: CV-22-100-0 Date: 2023/03/10 Superior Court of Justice - Ontario

Re: Fire Team K-9’s Inc., Plaintiff And: Anne Smith and James Smith, Defendants

Before: Justice A. Doyle

Counsel: Lauren C. Blanchet, Counsel for the Plaintiff Kevin Sawyer, Counsel for the Defendants

Heard: March 2, 2023 at Pembroke via Teleconference

Endorsement

[1] The plaintiff commenced an action under the simplified procedure rules pursuant to rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), claiming the return of their service dog, Briggs, which it alleges was stolen by the defendants.

[2] The defendants move for summary judgment against the plaintiff on the grounds that there is no genuine issue requiring a trial as the plaintiff is not the owner of Briggs as evidenced by the documents filed in support of this motion.

[3] The plaintiff argues that:

• Examinations for discovery have not been completed and hence all evidence is not available to the court for a determination; and
• The motion is supported by a very brief affidavit (1.5 pages) which is incomplete, e.g. it does not disclose that the plaintiff is a corporation, that Jeffrey Hinch is the director and president of the corporation and that there are other documents indicating Brigg’s owner is the plaintiff.

[4] For the reasons that follow, the court dismisses the motion.

Brief Background

[5] Jeffrey Hinch, a retired Canadian military veteran, founded the plaintiff Fire Team K-9’s Inc. (“Fire Team”) in 2019 and it was incorporated in May 2019. The purpose of the corporation is to train service dogs who could assist veterans and first responders who may be struggling with various emotional injuries.

[6] Mr. Hinch is the director and president of Fire Team.

[7] The defendant Anne Smith started working for Fire Team in August 2021 and James Smith started volunteering a month later. Briggs, was placed with the Smiths as a foster home and they have not returned Briggs. The defendants indicate that Briggs was gifted to them.

General Legal Principles

[8] Rule 20.04 (1) reads:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) 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 interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[9] As stated in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, there is no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits of the motion. This will be the case where the process (1) allows the court to make necessary findings of fact; (2) allows the court to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[10] A responding party is required to put its best foot forward by setting out relevant evidence with specific facts and coherent evidence supporting the assertion that there is a genuine issue for trial. One cannot simply assert a bald denial.

[11] Of particular relevance in this summary judgment motion is that Rule 76 provides for a streamlined process that eliminates steps in regular actions, for example cross- examinations and written questions are not permitted, a more robust pre-trial conference is a requirement, and it includes a summary trial process with a maximum duration of five days.

Discussion

[12] The court declines to grant summary judgment as a trial is required if a summary judgment motion cannot achieve a fair and just adjudication.

[13] There are issues of credibility that the court must grapple with, and the record is too seriously deficient to enable the court to do so as the discovery of the defendants has not been completed. In addition, because this is governed by the simplified procedure rules, the plaintiff was precluded from cross-examining Anne Smith, the deponent of the only affidavit filed in support of the motion for summary judgment.

[14] The court cannot make the necessary findings of fact and apply the law if it does not have all the facts.

[15] The affidavit in support of the motion gives no factual background as to how the dog came to be in the possession of the defendants.

[16] The defendants rely on the following documents:

• Purebred Dog Certificate of Registration showing a sale date of September 12, 2020, from Janet Labonte to Jeffrey Hinch;
• Non-Breeding agreement which shows the buyer as Jeffrey Hinch;
• An email from infor@petsecure.com to the email address of luckylabsdogs@gmail.com congratulating them on their newest family member and that the owner’s name is Jeffrey Hinch.

[17] The defendants failed to provide the court with a full documentary record to show that ownership of Briggs is a live issue as there are other proper ownership documents including vet records, trainings records, insurance coverage.

[18] In addition, there is some merit in the plaintiff’s argument that Mr. Hinch as an agent of the corporation, can bind the principal if the actions are within the actual, apparent or deemed authority of the agent. Mr. Hinch has signing authority. Also a corporation cannot act or enter into contracts unless an individual acts on its behalf.

[19] Ultimately, the burden is on the moving party to demonstrate that there is no genuine issue requiring a trial and that the burden never shifts. See Hi-Tech Group Inc. v. Sears Canada Inc., (2001) 2001 ONCA 24049, 52 OR (3d) 97 at para. 31.

[20] The defendants have failed to ensure that all the evidence that will be available for trial is before the court.

[21] See Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008 at para. 46-47, the court stated:

[46] Justice Corbett provided a useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. v. Egg Farmers of Ontario, where he stated, at paras. 33 and 34:

As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis: [page781]

(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(2) 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;

(3) 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.

The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.

[47] As may be noted from Justice Corbett's summary, Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing. [Footnotes omitted]

[22] The defendants request that Jeffrey Hinch should be added as a party plaintiff so that this is not an issue at trial. This relief has not been sought specifically in their notice of motion and hence the court is not prepared to grant an amendment to add a party without the consent of the plaintiff. I agree with the defendants that this is not a misnomer case.

[23] Hryniak expounded on the merits of summary judgements as they can be a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[24] In addition, the plaintiff brought this claim under the simplified procedure which is an expeditious and efficient process in litigating disputes and contemplates a shortened trial process.

[25] Rather than complete the examinations for discovery of Ms. Smith, the defendants brought this motion.

[26] Even though Ms. Smith was ill and the parties could not agree on accommodations, a motion could have been brought for directions. The simplified procedure anticipates that the matter will proceed to a summary trial after a full and meaningful pre-trial.

[27] This motion has caused delay and extra expenses.

[28] As stated in Manthadi v. ASCO Manufacturing, 2020 ONCA 485, a summary judgment is only appropriate under exceptional circumstances as the summary trial is usually more efficient. The Court of Appeal stated that:

[33] In Combined Air, a five-judge panel of this court indicated, while a motion for summary judgment could be appropriate in some Rule 76 proceedings, such cases would be exceptional: at paras. 254, 256; see also Singh v. Concept Plastics Limited, 2016 ONCA 815, 2017 C.L.L.C. 210-011, at para. 23. This was for two reasons.

[34] First, it will often be more efficient to simply proceed to a summary trial as contemplated by the Rules: Combined Air, at para. 254. The court observed that the simplified procedure rules are designed to get the parties to trial with a minimum of delay and costs. One of the key objectives of the simplified procedure rules is to limit the extent of pretrial proceedings. Discovery is restricted and cross-examination on affidavits and examinations of witnesses on motions are not allowed. The summary trial procedure is designed to reduce the length of the trial.

[35] This court directed that a judge faced with a contested motion for summary judgment in a simplified procedure action will “need to assess whether entertaining the motion is consistent with the efficiency rationale reflected in the simplified procedures”: Combined Air, at para. 255.

[36] On appeal, the Supreme Court’s foundational summary judgment decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, did not specifically address how summary judgment applies in a simplified procedure case. However, the court did affirm that the motion judge must assess, among other things, “the relative efficiencies of proceeding by way of summary judgment, as opposed to trial” and the impact of summary judgment on the litigation as a whole when determining whether it is in the interests of justice to exercise their fact-finding powers and grant summary judgment: Hryniak, at paras. 58, 60.

[37] Second, the simplified procedure rules, which are designed to allow the matter to be determined in an expedited fashion, also constrain the parties’ ability to marshal evidence on a summary judgment motion and meet their obligation to put their best foot forward.

[38] In this case, ASCO submits it was hampered because it could not cross-examine Ms. Manthadi on her affidavit supporting the motion and did not have the evidence of the third party, 637. Ms. Manthadi responds that ASCO could have examined Ms. Manthadi and the third parties for discovery (though the parties had initially agreed to proceed without discoveries). These submissions illustrate that summary judgment motions should be discouraged where they would simply require the parties to prepare for and deal with additional procedures, expending resources and time that would have enabled them to proceed to a summary trial.

[39] As this court observed in Combined Air, at para. 4, “the inappropriate use of Rule 20 has the perverse effect of creating delays and wasting costs associated with preparing for, arguing and deciding a motion for summary judgment, only to see the matter sent on for trial.” The risk of this perverse consequence is greater in simplified procedure cases.

[29] Accordingly, this motion is dismissed.

[30] The examinations of Ms. Smith must be completed by April 30, 2023. If the parties cannot agree if there should be an accommodation, they may seek directions from the court.

[31] By May 30, 2023, the parties must arrange for a pre-trial conference date in accordance with Rule 76.10 with the trial coordinator’s office. At the pre-trial the parties will discuss, along with all the requirements under Rule 76.10, the issues for trial and whether any amendments to the pleadings are necessary.

[32] The plaintiff as the successful party of the motion is presumptively entitled to costs. If the parties cannot agree on the costs, the plaintiff may file a two-page costs’ submissions along with a bill of costs and offers to settle by March 23 2023. The defendants may file their two-page costs submission along with a bill of costs and offer to settle by April 6, 2023. The plaintiff may file a one-page reply by April 13, 2023.

Justice A. Doyle Released: March 10, 2023