Tag: Summary Judgment
Further to my blog on Monday, the Court of Appeal also released another interesting decision last week with respect to the tort of conspiracy in the context of a family law proceeding. Leitch v. Novack, 2020 ONCA 257, is an appeal from a summary judgement motion that was brought by the husband’s father, a family trust, and a family company. Summary judgment was brought because the wife sought damages against the moving parties for an alleged conspiracy that they were intentionally withholding payments to the husband in order to reduce his family law obligations.
The motion judge, in 2019 ONSC 794, held that the conspiracy claim was appropriate for partial summary judgment. The conspiracy claims were dismissed even though the wife could still pursue a claim to impute additional income to the husband for the purposes of determining his income at trial. Over a million dollars in costs were later awarded to the husband and the moving parties and there was a subsequent order for security for costs that effectively froze all of the wife’s assets.
The appeal was allowed. The Court found that there was a material risk of inconsistent results because the wife was allowed pursue her claims that additional income ought to be imputed to the husband despite the motion judge’s finding that there was no unlawful conspiracy.
As for the tort of conspiracy, Justice Hourigan confirms and clarifies the application of this doctrine in the context of family law matters. The tort of conspiracy is part of the judicial toolbox to ensure fairness and for deterrence. It is also there for enforcement purposes because the purpose of the conspiracy is to hide income or assets and “a judgment against a co-conspirator will often be the only means which by which a recipient will be able to satisfy judgment” (paras. 46-47).
Justice Hourigan commented that
“a transfer of funds by loan, gift, or otherwise, is not the only way that the alleged co-conspirators could have acted in furtherance of the conspiracy. If the trial judge is satisfied that [the husband] had an entitlement to funds and that a co-conspirator withheld the transfer of funds to him as part of a conspiracy with the understanding that he would receive the money at some future date, the withholding of funds may itself be an act in furtherance of the conspiracy. It is not necessary to establish more than an acted-upon conspiracy to conceal [the husband’s] entitlement.” (para. 51).
The costs awards and the preservation order were also set aside.
This decision is certainly important to keep in mind when advising trustees of discretionary trusts.
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The testators died in 2008. The family realized there was a disagreement about the validity of their parents’ codicils that year but everything seemed to be on hold until Helen brought an application in 2015 to determine the validity of the codicil. In response, Krystyna brought a motion for summary judgment to dismiss Helen’s application on the basis it is statute barred pursuant to the Limitations Act, 2002. This motion was brought by Krystyna because she was interested in maintaining the force and effect of the codicils that gave her certain properties. Thereafter, Helen cross-motioned for summary judgment on her application.
Rule 20.04 of the Rules of Civil Procedure sets out the basis for summary judgment. Summary judgment shall be granted if: (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) if 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. The Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, determined that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.”
With that in mind, Justice Dietrich found that Krystyna’s motion for summary judgment was appropriate for the following reasons (see para. 35):
- There were no material facts in dispute;
- No additional facts would emerge at trial;
- The application of an absolute limitation period was generally a fairly straightforward factual analysis;
- That based on the evidence before her, this matter can be resolved without a trial and that a trial of this narrow issue would be a more expensive and lengthy means of achieving a just result.
The Ontario Court of Appeal agreed with Justice Dietrich’s finding on this point. The panel emphasized how both parties brought summary judgment motions and filed affidavits with exhibits of their own.
In contrast, a similar summary judgment motion was unsuccessful in Birtzu v. McCron, 2017 ONSC 1420, 2019 ONCA 777 (on the issue of costs, only). The Court in Birtzu found that summary judgment was not appropriate and ordered costs against the defendant in any event of the cause (with reasons that were unreported). That said, the defendant was ultimately successful in proving that the plaintiffs were statute barred after a full trial on all issues.
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Doreen So and Celine Dookie
This week on Hull on Estates, Paul Trudelle and Christina Canestraro discuss Cavanagh et al. v Sutherland et al., in which the Ontario Superior Court of Justice addresses questions of fact and law related to motions for summary judgment and mistake of fact.
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In yesterday’s blog, my colleague Umair observed that moving for summary judgment may carry significant risks. This is particularly so where only the moving party seeks to use the process and, where credibility is in dispute, the Court will often be compelled to find that a genuine issue for trial exists.
The situation is quite different, however, when the parties agree to use the summary judgment process to adjudicate a dispute. Where the parties have agreed to have all or part of a claim determined by summary judgment and the Court is satisfied that it is appropriate to grant same, judgment will issue one way or the other.
A collaborative approach to summary judgment may be an advisable manner of adjudication, particularly having regard to the principles of proportionality with regard to the assets in dispute. As a general rule, if counsel agree that the matter can be adjudicated based on an agreed Statement of Fact and transcripts of examinations for discovery, Judgment may be made. The key determination is whether the viva voce evidence of witnesses and the “machinery” of cross-examination before the trier of fact is required for the fair and just adjudication of the case. Note that the Judge may direct the matter to trial even if counsel submit the case on consent for summary judgment (this would be a rare occurence indeed).
An example of a collaborative motion for summary judgment is the decision in Rammage v. Estate of Roussel (2016 ONSC 1857). In this case, Alfred Roussel (“Alfred”) and Ruth Roussel (“Ruth”) were married in 1997. Each had two children from previous relationships. In 1998, Alfred and Ruth executed wills by which they gave their respective estates to each other and provided for an equal division amongst their four children on the death of the surviving spouse (the “1998 Wills”). Alfred died 2009 leaving his estate to Ruth. Ruth decided to prepare a new will in 2010 leaving the entirety of her estate to her two children. Ruth later died in 2013.
Alfred’s children took issue with the fact that Ruth’s estate passed entirely to her beneficiaries and not them and litigation ensued.
As there was no direct written or oral confirmation that the 1998 Wills were mutual, Alfred’s children had to rely on extrinsic evidence to support the existence of a binding legal contract. Justice Reid considered the context and the agreed evidence. In finding that the deceased made a mutual will, the Court considered: (i) the 1998 Wills were made in context of 13 years of cohabitation including a commitment of marriage, (ii) Alfred had been the breadwinner for many years, (iii) Alfred and Ruth had acted throughout their marriage as if they had a family consisting of four children, (iv) the obituary was indicative of a unified family and (v) Alfred and Ruth had told the four children they would be left everything once both had passed.
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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.
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Umair Abdul Qadir
The recent decision of the Ontario Superior Court Justice in Tait Estate v. Singh 2016 ONSC 6472 concerns whether it was in the “interest of justice” to make a determination in the Defendants’ late-stage summary judgment motion.
This case involves a medical malpractice claim. The Plaintiff sued the deceased’s medical providers in her capacity as Estate Trustee and pursuant to section 61(1) of the Family Law Act (the “FLA”) as the deceased’s common law spouse. A trial was scheduled to begin on November 7, 2016.
The Defendants served a notice of motion for summary judgment returnable on July 19, 2016. The motion was adjourned to October 3, 2016, approximately one month before the trial was scheduled to begin. The scope of the motion was limited to the discrete issue of whether the Plaintiff’s claim pursuant to the FLA should be dismissed.
On hearing the motion, the court acknowledged that while Rule 20 of the Rules of Civil Procedure does not impose a time period in which a motion for summary judgment may be brought, nothing could be gained from making a determination in the summary judgment motion. It was the motion judge’s view that it would be more appropriate to litigate the issue at trial, and accordingly dismissed the motion with the issue of costs to be determined at a later date.
This ruling is an important reminder that consideration should be given to the appropriate timing to proceed with a motion for summary judgment. Failure to take the timing of a motion into consideration could lead to an unfavourable cost award.
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In a judgment released this week, Taylor-Reid v. Taylor 2016 ONSC 4751, the Ontario Superior Court has once again demonstrated just how difficult it is to set aside a Will on the basis that it was procured by undue influence.
The Deceased died September 22, 2011. He was survived by his second wife, Shirley and his two children, Andrea and Kenneth.
The Deceased left a Will that named Shirley as the sole beneficiary of his Estate. Prior to the Deceased’s death, he transferred various assets held solely in his name or jointly with Andrea to Shirley. He also changed his several beneficiary designations from Andrea to Shirley.
Almost two years after the death of the Deceased, Andrea commenced an action against Shirley on the grounds that the Deceased’s Will (and various beneficiary designations in favour of Shirley) were invalid as a result of Shirley’s undue influence. The basis of Andrea’s claim was solely on allegations that Shirley “verbally or implicitly” threatened to leave the Deceased or divorce him immediately if he did not comply with her demands to make the Will, change the beneficiary designations, transfer the assets to her solely, and completely exclude Andrea from his Estate.
To support her claim, Andrea argued that there were suspicious circumstances surrounding the making of the Will and the beneficiary designations benefitting Shirley thereby giving rise to a presumption of undue influence.
The Court held that the principle of suspicious circumstances only becomes relevant when a Will is being challenged on the basis of knowledge and approval or lack of testamentary capacity. Accordingly, no presumption of undue influence arises where a party seeks to set aside a Will solely on the ground of undue influence.
Shirley brought a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure claiming that Andrea’s claim disclosed no genuine issue to be tried. In granting the motion for summary judgment, the Court concluded that Andrea’s claim of undue influence must be unsuccessful because Andrea failed to put forward any corroborating evidence (required by section 13 of the Evidence Act, R.S.O. 1990, c.E.23).
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In Biancaniello, Romano, Prinova Technologies Inc. v. DMCT LLP, Collins Barrow, a recent decision by the Divisional Court, the dismissal of a motion for summary judgment was upheld despite the presence of a Release that appeared to bar the action in question. The Defendants sought summary judgment on the basis that the action was barred by execution of a broadly-worded Release as part of the settlement of a prior action between the same parties.
Under the Release previously signed by the Plaintiffs in 2008, they agreed to release and discharge the Defendants:
“of and from all manner of actions, causes of actions, suits, debts, duties, accounts, bonds, covenants, contracts, claims and demands which against each other they had, now have or hereafter may, can or shall have for or by reason of any cause, manner or thing whatsoever existing to the present time with respect to any and all claims arising from any and all services provided by [the Defendants] to [the Plaintiffs] through to and including December 31, 2007 and, without limiting the generality of the foregoing, with respect to any and all claims, counterclaims or defences that were pleaded or could have been pleaded in the action commenced in the Ontario Superior Court of Justice, as court file No. 08-CV-349246 PD3” (para 7).
The motions judge determined that the Release did not bar a negligence claim that had arisen in 2011, three years after the Release had been executed, notwithstanding its broad language and seemingly all-encompassing nature. The Ontario Superior Court of Justice had noted that the alleged negligence of the Defendants had not yet been adjudicated and should not have been subject to the Release that referred to claims “existing to the present time“, being 2008.
The Divisional Court recognized that a negligence claim may have been contemplated by the parties at the time that the Release was executed. However, the nature of the negligence claim (and the significant tax liabilities resulting from same, in the approximate amount of $1,200,000.00) was unknown by the parties at the time of the 2008 settlement. Justices Wilton-Siegel, Corbett, and Baltman found that the negligence claim was not barred by the Release, as it lacked any reference to the relevant transaction, language specifically releasing against claims resulting from “potential or undiscovered negligence”, and was limited in its scope through the reference to causes existing only at present, when the damages, in fact, resulted at a later time.
Although the motion for summary judgment and subsequent appeal did not involve an estate or trust, this decision is nevertheless relevant within the context of estate litigation, in which so many disputes are settled outside of court and settlements formalized by execution of Minutes of Settlement and Full and Final Mutual Releases. When assisting clients in settling disputes, it is important to adequately consider claims that could potentially arise in the future and whether the terms of the release should explicitly refer to and waive such causes of action.
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Will Challenges may often be driven by emotion rather than logic. The historic approach of the courts (until relatively recently) to give a challenger to the validity of a Will his or her costs further entrenched the perception that estate litigation was firmly in the category of cases that were notoriously difficult to have dealt with by way of a motion for summary judgment.
That may be changing. The changes to Rule 20 as they relate to summary judgment make summary judgment available to a greater extent than was previously the case. "No genuine issue requiring a trial" has given rise to the "full appreciation" test. Simply put, if the matters in issue and the evidence produced on the motion satisfy a Judge that he or she would not gain a more full appreciation of the matters at issue at a trial, then summary judgment should be granted.
Of course, estate litigation entails more than will challenges. Dependant support cases may also be susceptible to summary judgment, especially in cases where the Estate takes the position that the purported "dependant" does not fit within such category. While the question of whether a person fits within the category of "spouse" under Part V of the SLRA is a notoriously triable issue, Blanchard v. Bober (89 ETR (3d) 36) was an Ontario Superior Court of Justice case where an adult child claiming support was found not to be a dependant on a motion for summary judgment because he was placed "for valuable consideration in a foster home by a person having lawful custody" and therefore no longer qualified as a "child" within the meaning of the Act.
David Morgan Smith
In a very significant, just released decision (encompassing five appeals heard together this past summer), Combined Air Mechanical Services Inc. v. Flesch, a five judge panel of the Ontario Court of Appeal has interpreted the amended summary judgment rule. Prior to the amendment to Rule 20, summary judgment was available in two types of cases: (i) When the parties agree that summary judgment is appropriate and (ii) cases where the claims or defences have no merit.
This decision introduces a third category: (iii) where a trial is not required "in the interests of justice." This third category of cases introduces the "full appreciation test". Under the test, the motion judge decides whether, in the interests of justice, he or she can fully appreciate the evidence and issues by summary judgment or whether a full trial is required. In other words, is a trial necessary to enable the court to fully appreciate the evidence and issues in the case? If there are multiple witnesses, multiple facts in dispute, or voluminous documents, a summary judgment motion cannot substitute a trial. If there are few witnesses or limited facts in dispute, a summary judgment motion may be successful.
The court found that "simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute."
Before deciding if the court will use its expanded powers under Rule 20.04(2.1) to weigh evidence, evaluate credibility and draw reasonable inferences, the motion judge must apply the full appreciation test. The motion judge will decide if the motion record (which can be supplemented by oral evidence under Rule 20.04(2.2)) fully satisfies him or her that the issues are dealt with appropriately by summary judgment.
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