Tag: motion for summary judgment
In Drummond v Cadillac Fairview, the Court of Appeal for Ontario considered the issue of the admissibility of hearsay evidence on a motion for summary judgment. The facts in Drummond are quite simple. The plaintiff tripped on a skateboard while shopping at the Fairview Mall in Toronto, owned by the defendant. The plaintiff brought an action for occupier’s liability, supported by an affidavit sworn by him. The defendant, Cadillac Fairview, responded by bringing a motion for summary judgment.
At the hearing of the motion, not only did the judge dismiss Cadillac Fairview’s motion for summary judgment, but it granted summary judgment in favour of the plaintiff (a remedy that the plaintiff was not seeking). Cadillac Fairview appealed and was successful at the Court of Appeal.
In granting the appeal, the Court identified serious concerns regarding the hearsay evidence relied on by the plaintiff in responding to Cadillac Fairview’s summary judgment motion. The plaintiff’s responding affidavit relied heavily on statements purportedly made by his fiancée and his daughter, and two unidentified staff members working at the mall. The trial judge agreed that these statements were hearsay but admitted them nonetheless under the business records exception to the hearsay rule and under Rule 20.02 of the Rules of Civil Procedure.
The Court of Appeal rejected the admission of the hearsay statements. While the Court agreed that Rule 20.02 permitted the admission of affidavit evidence “made on information and belief”, the Court also noted that the Rule permits a trier of fact to draw an adverse inference if a party with personal knowledge of contested facts does not give evidence.
The Court of Appeal found that the information relayed by the plaintiff from his fiancée and his daughter “went to the heart” of his claim. The plaintiff’s failure to have his fiancée or daughter swear their own affidavits with respect to the key facts at issue caused the Court to have considerable reservations about admitting their evidence. The Court of Appeal ultimately held that the finding of liability against Cadillac Fairview was based on an “erroneous admission of hearsay evidence on key, contested issues” and reversed the decision.
On motions for summary judgment, courts will expect the parties to put their best foot forward, including the nature and source of relevant evidence. As can be seen in this case, a party’s failure to do so can have serious consequences.
Thanks for reading.
Litigation surrounding the estate of a deceased person can be protracted and emotional for the parties involved. Unfortunately, given the high costs of litigation, it can also be incredibly costly and onerous for the parties to litigate their dispute all the way to a trial.
Rule 20 of the Rules of Civil Procedure offers one procedural mechanism by which a party can bring an expeditious end to a litigation matter. Pursuant to Rule 20.04, the Court shall grant summary judgment where it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, or the parties have agreed to have all or part of the claim determined by a summary judgment and the Court is satisfied that it is appropriate to grant same.
Rule 20 was amended in 2010 in order to improve access to justice, providing the Court with broader evidentiary powers on a motion for summary judgment. However, as demonstrated by a recent decision, the Court may still conclude that it is not appropriate to grant summary judgment in view of the litigation as a whole.
The Facts in Bazinet v CompuCom Canada Co., e al.
In Bazinet v CompuCom Canada Co., et al., 2017 ONSC 5194, Robert (the “Deceased”) died without a Will. There was a dispute over life insurance proceeds that were available to the Deceased as part of an employee benefits package. The parties had not produced a designation form naming a beneficiary to the insurance proceeds.
The plaintiff, the Deceased’s common-law spouse, claimed that she was entitled to the life insurance proceeds. She asserted that she had witnessed the Deceased signing a beneficiary designation in her favour, and that the Deceased had confirmed that she was the beneficiary of the policy after their separation. The plaintiff’s claim sought declaratory relief against all of the defendants, punitive damages and general damages against the Deceased’s employer CompuCom Canada Co. (“CompuCom”).
The Deceased’s Estate Trustees denied the plaintiff’s claims and advanced a counterclaim on behalf of the Estate, seeking a declaration that there was no designated beneficiary and that the proceeds were thus payable to the Estate. As the plaintiff was the Deceased’s common-law spouse, she was not entitled to a share of the Deceased’s Estate on an intestacy.
The Estate Trustees moved for summary judgment, seeking an order dismissing the plaintiff’s claims against the Estate and granting the declaratory relief sought on their counterclaim. The plaintiff, in turn, requested that partial summary judgment be granted in her favour.
Justice Corthorn’s Decision
In response to the motion for summary judgment, CompuCom argued that the matter was not an appropriate case for summary judgment in the context of the litigation as a whole. CompuCom asserted that findings of credibility were necessary for the determination of the issues, that summary judgment would not be dispositive of the entire proceeding and that a trial was required for the fair and efficient determination of all of the issues.
Justice Corthorn agreed with CompuCom’s position, concluding that summary judgment would not dispose of the entire action, including the plaintiff’s claim for monetary damages. Justice Corthorn also held that there was a risk of duplicative proceedings and inconsistent findings.
Given the nature of the plaintiff’s claims, Justice Corthorn held that a majority of the claims would remain to be determined at trial even if summary judgment was granted in the Estate Trustees’ or the plaintiff’s favour. Justice Corthorn also noted that she was not confident that it would be possible to assess credibility and reliability without the benefit of a trial, with the risk that the trial judge would make different findings of credibility and fact or reach inconsistent conclusions upon hearing the oral evidence of the affiants.
Accordingly, the motion for summary judgment was dismissed. The Court also refused to grant the relief that the plaintiff was seeking in response to the motion.
Proceeding With Caution
Justice Corthorn’s recent decision reiterates the importance of carefully considering whether a motion for summary judgment is appropriate before proceeding. If unsuccessful, the parties incur the cost of an interim motion in addition to the costs of a trial.
In addition, motions for summary judgment can have significant cost consequences. Rule 20.06 of the Rules of Civil Procedure provides the Court with the ability to order payment of costs of motion for summary judgment on a substantial indemnity basis if a party acted unreasonably by making or responding to the motion or acted in bad faith for the purpose of delay.
Thank you for reading,
Umair Abdul Qadir