Superior Court of Justice – Ontario

Court File No.: CV-21-507
Date: 2025-04-23

Between:
Michelle Fraser (Plaintiff)
and
Mathew Pearson (Defendant)
and
Gary Stanoulis, Andrew Unger, Stewart Title Guaranty Company (Third Parties)

Before: S. Mathai
Counsel:

• Jeffrey Klein, Counsel for the Plaintiff
• Justin Anisman, Counsel for the Defendant
• Samuel Mosonyi, Counsel for Stewart Title Guaranty Company
• Abigail Korbin, Counsel for Andrew Unger
• Abigail March, Counsel for Gary Stanoulis

Heard: 2025-04-14

Case Management Endorsement

Introduction

[1] The plaintiff, Ms. Fraser, commenced a motion for summary judgment as against the defendant, Mr. Pearson. The parties attended triage court on April 1, 2025, to schedule the long motion. At triage court, R.S.J. Edwards assigned me to case manage the action.

[2] A case conference was held on April 14, 2025. The purpose of the conference was to determine whether to permit the motion for summary judgment and, if so, to set a timetable for the motion.

Background of Action

[3] Ms. Fraser was the proposed purchaser of three adjacent residential properties. A separate agreement of purchase and sale was finalized for each of the properties. The cumulative purchase price was $1,800,000. The deal was scheduled to close on February 26, 2021. Mr. Pearson was the vendor for all three properties. None of the three transactions closed because Mr. Pearson was not able to provide a separate deed for each property.

[4] There does not appear to be much dispute as to why Mr. Pearson could not provide the separate deeds contemplated by the agreement of purchase and sale. Mr. Pearson bought the first of the three properties in 2011 and the second in 2013. Mr. Stanoulis acted for Mr. Pearson on both purchases. In 2016, Mr. Pearson purchased the last of the three properties. Mr. Unger acted for Mr. Pearson on this purchase.

[5] Although the three properties are described as whole lots and have individual municipal addresses, there was a by-law registered on title in 1961 that de-registered a plan of subdivision and merged the three properties into one property. This appears to be what prevented Mr. Pearson from being able to provide Ms. Fraser with three separate deeds at the date of closing.

[6] Two months after the failed closing, Mr. Pearson sold the three properties for $1,765,000. The new purchaser applied for and received a severance. The new purchaser then sold the three separate properties to different owners.

[7] Ms. Fraser seeks damages as against Mr. Pearson for various out-of-pocket expenses. She also seeks the difference between the sale price for the properties and the market value of the properties on the date of closing. Ms. Fraser’s appraisal report values the three properties at $2,095,000 on the date of breach.

[8] Mr. Pearson commenced third party claims against Mr. Unger, Mr. Stanoulis and the title insurer, Stewart Title Guaranty Company (“Stewart”). Stewart has denied coverage of the claim.

[9] I am advised that all parties, with the exception of Ms. Fraser, have delivered affidavits of documents. Discoveries have not commenced.

Parties’ Positions

[10] Ms. Fraser argues that summary judgment is appropriate in this case because the issues of liability and damages are relatively straightforward. Mr. Pearson contests both liability and damages. With respect to liability, Mr. Pearson argues that there is some evidence that Ms. Fraser was unable to close with respect to one property because Ms. Fraser was unable to secure financing. Ms. Fraser denies that there was an issue with respect to obtaining financing. If Ms. Fraser’s summary judgement is permitted to proceed, then Mr. Pearson intends to seek summary judgment against Mr. Unger, Mr. Stanoulis and Stewart. This will require Mr. Pearson to file expert evidence with respect to the standard of care owed by his counsel at the time he purchased the three properties. In turn, Mr. Stanoulis and Mr. Unger anticipate filing responding expert reports.

[11] Stewart argues that a summary judgment motion is not appropriate because there will be conflicting appraisal reports. They note that Ms. Fraser’s report appraises the three properties at nearly $300,000 higher than the ultimate sale price. Stewart also intends to obtain a municipal planning expert report to provide evidence on the severance process, which it argues is relevant to damages. Ms. Fraser argues that Stewart’s objections are premature as it is not yet known whether there will be any conflicting expert evidence.

Is Summary Judgment Appropriate?

[12] For the reasons that follow, I find that summary judgment is not appropriate at this early stage of the action.

[13] In evaluating whether a motion for summary judgment should be scheduled by a case management judge, I adopt the analytical framework articulated by Brown J. (as he then was) in George Weston Limited v. Domtar Inc. , 2012 ONSC 5001 , 112 O.R. (3d) 190. In that case, the learned justice articulated two sets of factors that ought to be considered by a case management judge when determining whether to permit a summary judgment motion to be scheduled. The first set of factors applies to a request to schedule a summary judgment motion prior to discovery:

Accordingly, where a judge faces a request to schedule a lengthy summary judgment motion before the parties have embarked upon or completed discoveries, factors to take into account would include,

(i) the nature and complexity of the issues raised in the action;

(ii) the extent of the record the parties are likely to develop if a summary judgment motion proceeds prior to the completion of productions and discoveries;

(iii) whether a record so built through a summary judgment motion will offer a less complete picture of the case than the responding party could present at trial and, if it would, in what respects;

(iv) would the responding party to the summary judgment motion enjoy the equivalent access to key documents as would exist through the documentary discovery process?

(v) would the responding party be able to examine the representative of the party which it would have selected for purposes of examination for discovery?

(vi) whether the most efficient means of developing a record capable of satisfying the full appreciation test given the nature and complexity of the issues in play is to proceed through the normal route of discovery; and

(vii) whether the most efficient means of satisfying the full appreciation test would be to develop a modified discovery plan, incorporating elements of traditional discovery and the preparation of a summary judgment record, with a view to proceeding to a non-conventional trial which would ensure the just, most expeditious and least expensive determination of the case on its merits.

[14] Brown J. also articulated several factors to be considered when a party requests to schedule a summary judgment motion after the completion of discovery:

Where a request is made to schedule a lengthy summary judgment motion following the completion of the production and discovery process concerns about the appropriateness of such a motion relate not so much to the quality of the record developed in light of the nature and complexity of the issues -- the parties will have availed themselves of the discovery rights accorded by the Rules -- but (i) to whether any "upside" exists to spending client money and judicial time conducting a motion-based review of a case's merits when the parties can set the action down for and proceed to trial; and (ii) to whether the summary judgment process, in the circumstances of the case, will provide an appropriate means for effecting a fair and just resolution of the dispute [See Note 42 below] by allowing the trier of fact to gain a full appreciation of the issues before the court. Put another way, the focus of the case-management analysis should be on (i) whether the proposed summary judgment motion will assist the efficient resolution of the proceeding or (ii) whether the issues raised by the action are suitable for disposition by way of a summary judgment motion.

[15] Importantly, I do not view Brown J.’s decision as creating two hermetically sealed sets of factors. Whether the motion is sought pre- or post- discovery, the focus of the analysis should remain on whether the issues raised by the action can be resolved by way of a summary judgment motion and whether the proposed summary judgment motion will assist in the efficient resolution of the proceeding. When summary judgment is sought before discoveries are complete, the inquiry should also focus on quality of the record that would be developed in the absence of discoveries.

[16] In this case, I am not concerned that any of the parties would be disadvantaged by moving forward with a summary judgment motion despite discoveries not being completed. I come to this conclusion for two reasons: (1) none of the parties argued that discoveries were necessary to assist in putting together a proper record; and (2) if Ms. Fraser’s summary judgment were to proceed, then all the issues, including the third-party actions, would be “in play”. In this way, cross-examinations on affidavits would likely mirror discoveries and the key documents would likely be disclosed as exhibits to affidavits or through undertakings asked during cross-examinations.

[17] The larger concern with permitting summary judgment is the reality that there will be conflicting expert evidence on the main issues. Based on the positions of the parties, expert evidence will be required to determine the standard of care owed by Mr. Unger and Mr. Stanoulis. I would be surprised if there were no conflict between Mr. Pearson’s expert evidence and the expert evidence led by Mr. Unger and Mr. Stanoulis. Similarly, it is likely that there will be conflicting appraisal evidence. As detailed above, Stewart takes the position that Ms. Fraser’s appraisal far exceeds the value of the three properties in February 2021, as evidenced by the final sale price.

[18] I accept that there is no universal rule that summary judgment is not appropriate in the face of conflicting expert evidence ( Tishenko v. Walper , 2021 ONSC 5026 ; Ozimkowski v. Raymond , 2018 ONSC 5779 , appeal dismissed, 2019 ONCA 435 ; Morales v. Laguardia , 2024 ONCA 869 ). However, this court has also routinely found that, in general, a case will not be amenable to summary judgment when it involves resolving conflicting expert opinions on central issues (see Paul v. Oliver Fuels Limited , 2012 ONSC 978 , at para. 44 ; Frame v. Watt , 2016 ONSC 718 , at para. 33 ; Muralla v. Qazi , 2017 ONSC 2339 at para. 20 ; Maracle v. Mascarin , 2016 ONSC 537 , at para. 32 ; Hengeveld v. Ontario , 2022 ONSC 7155 , at para. 41 ; Marrocco v. Heft , 2017 ONSC 654 at para. 60 ). At this stage and given the nature of the proposed expert evidence and the centrality of that evidence to the dispute, I find that the main issues in conflict between the parties are not likely amenable to resolution by way of summary judgment.

[19] There is some weight to Ms. Fraser’s argument that it is too early to determine whether there will be any conflict in the expert evidence. When determining whether to permit a motion for summary judgment to proceed, the court will always be required to ascertain, in the absence of a complete record, whether it is likely that the case is amenable to summary judgment. This invariably requires the court to anticipate the type of evidence that may be led on the contested issues. Despite the difficulty of this exercise, it is incumbent on a case management judge to engage in this very analysis to ensure that an action is brought to a determination in the most just, expeditious and least expensive manner. If this exercise is neglected, then the parties may proceed down a rabbit hole without much gain. This is not in the parties’ best interests. However, after discovery is complete, and if the exchange of expert reports demonstrates that summary judgment may be appropriate, then any party can return and request the scheduling of a summary judgment motion.

[20] Finally, as a matter of completeness, I also considered whether it would be appropriate to permit Ms. Fraser to proceed with a partial summary judgment that only addresses Mr. Pearson’s liability to Ms. Fraser. I note that Ms. Fraser did not explicitly make such a request.

[21] The Court of Appeal has directed courts to ask three questions when determining whether to grant a partial summary judgment motion: (i) does dividing the determination of the case into several parts make the litigation less expensive for the parties; (ii) will partial summary judgment get the parties’ case in and out of the court system more quickly; and (iii) will partial summary judgment result in inconsistent findings by the multiple judges who will touch the divided case (see Malik v. Attia , 2020 ONCA 787 , at para. 62 , and Feltz Design Build Ltd. v. Larson , 2022 ONCA 150 , at para. 18 ). There is no reason why these same questions cannot inform a decision about whether to schedule a partial summary judgment.

[22] If partial summary judgment were to proceed on liability alone, then I would have no concern about inconsistent findings. However, I do not believe that a partial summary judgment motion would make the litigation less expensive, nor do I believe that it would lead to a quick resolution of the entire action. The main issue in this proceeding is not Mr. Pearson’s liability to Ms. Fraser, although that is contested. Rather, the main issues are the damages owed (if any) and the third-party liability (if any). At this stage, it appears that those issues likely need to proceed to trial.

[23] To conclude, I have decided not to schedule Ms. Fraser’s summary judgment motion. Instead, I direct the parties to consult and develop an expedited trial preparation plan to submit to me by 5:00 p.m. on May 12, 2025. If the parties cannot agree to an expedited trial preparation plan, then they can schedule another case conference.

S. Mathai
Date: 2025-04-23