2019 NLCA 66, 2019 NLCA 66

L.H.E. (appellant) v. D.A.E. (respondent) (18/85) Indexed As: L.H.E. v. D.A.E. 2019 NLCA 66 5 C.A.N.L.R. 95 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Hoegg JJ.A. October 10, 2019

Summary: Ms. E. had applied for a

summary trial and judgment pursuant to rule 17A of the Rules of the Supreme Court, 1986 , to address the issue of liability arising from her claim that her brother, Mr. E., had sexually assaulted her on two instances between 1964 and 1973. Mr. E. raised three defences: (

i) laches, (ii) his youth, i.e. that he lacked the capacity to appreciate the nature and consequences of his actions due to his young age (14 years old), and (iii) statutory barring of the action pursuant to the Limitations Act . The applications judge granted the application for

summary judgment. Mr. E. appealed, arguing that the applications judge erred by failing to determine, as a threshold question, whether this was an appropriate case for

summary adjudication, and by giving judgment without allowing the parties an opportunity to participate fully in a

summary trial. Held: Appeal allowed (Hoegg J.A. dissenting). Welsh J.A. (Fry C.J.N.L. concurring): The applications judge erred by failing to address the threshold question as to whether this case was appropriate for

summary adjudication. At the hearing, counsel for both parties proceeded on the understanding that the applications judge would begin by determining the threshold question and that, if the applications judge determined that the matter was appropriate for

summary trial and judgment, the parties would then have the opportunity to provide additional evidence by means of cross- examination on the affidavits (paragraphs 6-14). Even if the threshold step in the analysis had been addressed, the applications judge did not have what the parties considered to be complete information on which to make a determination as to Mr. E.’s liability. The parties, and Mr.

E. in particular, were denied procedural fairness by the manner in which the judge proceeded, namely by failing to provide for cross-examination on the affidavits as sought by the parties, and by assuming that a factual admission amounted, or led inevitably, to an admission or finding of liability (paragraphs 15-21). Hoegg J.A. (dissenting): The applications judge appropriately exercised his discretion to decide issues which met the threshold requirement for

summary trial and were in the interests of justice to decide; the application had provided an evidentiary basis for Ms. E.’s claims and some of the issues were capable of being dealt with in an attenuated manner contemplated by

summary trial. There was no basis in principle for saying that the applications judge inappropriately exercised his discretion (paragraphs 40-43). The applications judge’s decision that the defence of laches did not apply was in keeping with the law respecting

summary trial procedure. The applications judge’s decision was not procedurally unfair to Mr. E.; moreover, it was correct in law. The defence of laches was not available to Mr. E. in this case because there was no evidentiary foundation to support it (paragraphs 48-55). There was nothing procedurally unfair about the applications judge’s finding that the defence of youth did not apply. Moreover, the

decision of the applications judge was legally correct; the notion that a 14-year-old boy cannot be found to have committed the tort ofsexual battery due to his age has no place in our law (paragraphs 56-63). The evidence respecting the limitations defence was controverted. The applications judge recognized that viva voce evidence involvingcross-examination would be required to resolve the limitation issue. The applications judge properly exercised his discretion to decline todecide the issue (paragraph 64). Cases cited: Welsh J.A.: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 Curtis v.

Smith’s Home Centre Ltd., 2010 NLCA 7, 295 Nfld. & P.E.I.R. 279 Young v. Noble, 2016 NLCA 58, 1 C.A.N.L.R. 197 Hoegg J.A. (dissenting): Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317 (Nfld. T.D.) Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 Young v. Noble, 2016 NLCA 58, 1 C.A.N.L.R. 197 Dalley v. Northern Arm (Town), 2016 NLTD(G) 68 Swain v. Vickers, 2019 NLSC 17 K.M. v. H.M., (SCC), [1992] 3 S.C.R. 6 (S.C.C.) K.K. v. K.W.G., 2008 ONCA 489 Rhyolite Resources Inc. v. Canquest Resource Corp., 1999 BCCA 36 Baldinger v. Banks (1960), 201 N.Y.S. (2d) 629 Tillander v.

Gosselin (1996), (ON SC), [1967] 1 O.R. 203 (Ont. C.A.) Walmsley v. Humeniak, (BC SC), [1954] 2 D.L.R. 232 (B.C. S.C.) Nan-Marine Underwriters, Lloyds of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 Statutes considered: Welsh J.A.: Limitations Act, SNL 1995, c. L-16.1 Hoegg J.A. (dissenting): Limitations Act, SNL 1995, c. L-16.1 Rules considered: Welsh J.A.: Rules of the Supreme Court, 1986, rule 17A Hoegg J.A. (dissenting): Rules of the Supreme Court, 1986, rule 17A

Counsel: Bob Buckingham and Brittany Whelan, for the appellant; Harry G. Mugford, for the respondent. The appeal was heard on May 22, 2019 before Fry C.J.N.L, Welsh and Hoegg JJ.A. The following judgment was filed on October 10, 2019 by Welsh J.A. (Fry C.J.N.L. concurring), with dissenting reasons by Hoegg J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Ms. E. applied for a

summary trial and judgment, pursuant to rule 17A of the Rules of the Supreme Court, 1986 , to address issues of liability arising from a statement of claim she filed in 2009 alleging that, between 1964 and 1973, her brother, Mr. E., had sexually assaulted her. At issue in the appeal is whether the applications judge erred in the manner in which he dealt with the application and resulting orders. BACKGROUND [ 2 ] The applications judge summarized the basis for the application and his conclusion ( 2018 NLSC 174 ): [1] The Applicant is the Respondent’s sister. She is 7 years his junior.

She has alleged that when she was 7 years of age the Respondent sexually assaulted her on two occasions by performing oral sex upon her. In addition, she has alleged that the Respondent continued to sexually assault her until she was 16 years of age. … [2] The Respondent has admitted to the two allegations of oral sex in his examination for discovery.

There is a dispute regarding additional instances of sexual assault alleged by the Applicant. … [4] The Respondent argues that there are issues pertaining to the Respondent’s ability to understand the nature and consequences of his actions – since he was 14 years of age at the time that the incidents occurred. The Respondent further argues that he did not occupy a position of trust and, as such, that the action should be statute barred pursuant to

section 5 (

a) of the Limitations Act , S.N.L. 1995, c. L- 16.1 . In addition, the Respondent pleads that the doctrine of laches applies insofar as he says that there have been inordinate delays in getting this matter to trial. [5] For the reasons that follow, I find that a

summary judgment order is appropriate on the issue of liability. There are, however, other issues that may impact upon the Respondent’s liability and I find that those issues are best resolved by the leading of viva voce evidence in a trial. … [8] There is no question that the Respondent sexually assaulted the Applicant when she was 7 years of age since he has admitted having performed oral sex on the Applicant on two occasions. The Applicant has met the burden of showing that, on a prima facie basis, the action will succeed.

The Respondent has the burden to establish that there is a genuine issue for determination. Since the assault and battery have been admitted, the Respondent is obligated to advance a reason why the Applicant should not have a

summary judgment on that issue since the Respondent’s admission is, prima facie , determinative of that issue. [9] Whether or not the Respondent also assaulted the Applicant until she was 16 years of age in the manner earlier described is not an issue that goes to liability – it is an issue that goes to quantum of damages. It is impossible to decide, from opposing affidavits, whether, and to what extent, these second series of assaults occurred. It will be necessary to hear from the parties, and others, to decide whether the Applicant is able to prove that portion of her claim.

However, that inquiry is made solely for the purpose of deciding what ought to be the quantum of damages to which the Applicant is entitled, and not to decide whether or not liability exists. [ 3 ] The judge then addressed the question of the potential operation of a limitation period: [11] There is some conflicting testimony on this issue for the parties. It is best resolved at trial. If the Applicant, at trial, is unable to convince the trial judge that she fits within one of the three subsections of

section 8 of the [ Limitations Act ], then the result will be that while there may have been a finding of this Court on the issue of liability, her ability to recover any monetary compensation in respect of same will have been lost. That will effectively put an end to the litigation since the action will be found to have been statute barred. [ 4 ] Finally, the judge concluded: [25] The Application for

summary judgment on the issue of liability is granted subject to the caveat that unless the Applicant can bring herself within one of the exceptions set out in section 8(2) (a)-(

c) of the Limitations Act , her action will be deemed statute barred and she

will be unable to proceed further with her action. [26] I order that a trial proceed with respect to the issues of the applicability of sections 5 and 8 of the Limitations Act . [27] I order that a trial proceed with respect to the quantum of damages, but only if the Applicant falls within the exceptions noted in section 8(2) (a)-(

c) of the Limitations Act . [28] The Applicant shall have her costs, calculated under Column III, in any event of the cause. ISSUES [ 5 ] At issue is whether the applications judge erred by failing to determine, as a threshold question, whether this was an appropriate case for

summary adjudication, and by giving judgment without allowing the parties an opportunity to participate fully in a

summary trial. ANALYSIS [ 6 ] Ms. E. applied for a

summary trial and judgment pursuant to rule 17A. Rule 17A.01(1) provides: A plaintiff or defendant may, ... apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or part of the claim in the statement of claim, as the case may be. [ 7 ] Pursuant to rule 17A.02, evidence may be adduced by affidavit, by answers to interrogatories, or by evidence taken in examination for discovery. Regarding cross-examination on affidavits, rule 17A.02 provides:

(3) Deponents in affidavits may be cross-examined and re-examined, provided at least three days notice is given to the party submitting the affidavit to produce the deponent for cross-examination. …

(5) The Court may draw an adverse inference from the failure of a party to cross-examine on, or file affidavit evidence in reply to, an affidavit used on an application under this rule. [ 8 ] Rule 17A.03(2) authorizes a judge to dispose of an application by way of

summary judgment: Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment in favour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or (

b) it would be unjust to decide the issues on the application. [ 9 ] The objective in proceeding in a civil matter by way of

summary trial and judgment is discussed in Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 . Karakatsanis J., for the Court, explained: [4] … In my view, 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. [5] To that end, I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. [ 10 ] Similarly, in Curtis v. Smith’s Home Centre Ltd., 2010 NLCA 7 , 295 Nfld. & P.E.I.R. 279 , this Court commented on the circumstances when a

summary trial may be a suitable procedural approach to litigation: [9] The trial judge may find that even though there is a genuine issue for trial disclosed in the statement of claim, such a genuine issue may nevertheless be decided in a

summary way without the need for a full trial under Rule 17A.03. This jurisdiction of a judge conducting a

summary trial is fundamental to the purpose of Rule 17A governing

summary trials by facilitating decision-making on contentious but straightforward issues between litigants without incurring unnecessarily burdensome trial costs. [ 11 ] In Hryniak , the Court also addressed the importance of assessing whether

summary trial and judgment is appropriate when considered in the context of the litigation as a whole: [58] … Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of

summary judgment, as opposed to trial. … It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. … … [60] The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant

summary judgment against a single defendant. Such partial

summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be

the most proportionate, timely and cost effective approach. [ 12 ] An application under rule 17A engages a two-step process. The analysis begins with a threshold question, that is, “whether the case is appropriate for

summary adjudication” ( Young v. Noble , 2016 NLCA 58 , 1 C.A.N.L.R. 197 , 411 D.L.R. (4th) 223 , at paragraph 23 ). In Young v. Noble , Green C.J.N.L. explained: [27] It is important to appreciate, however, that the threshold question that can, on these authorities, be determined in advance of the

summary trial proper is truly a threshold question directed to determine whether, on the matters raised in the application, the case appears to fall within the

summary trial rule, whether the applicant has provided some evidentiary basis for the assertions made and whether the nature of the case is such that it is potentially capable of being dealt with in the attenuated manner contemplated by a

summary trial, bearing in mind the comments of the Supreme Court of Canada in Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 (S.C.C.) about the salutary uses of such a procedure to ensure access to justice in appropriate cases. [28] Such a threshold question is distinct from another similar question that may arise in the course of the

summary trial itself: whether, even if the applicant fails to establish that there is no genuine issue for trial, the court should, nevertheless, on the

summary trial record, determine the legal and factual issues that have been raised. That requires a determination, within the language of rule 17A.03(2) of the Rules of the Supreme Court, 1986 , whether the judge “is unable on the whole of the evidence before the Court … to find the facts necessary to decide the questions of fact or law” and whether “it would be unjust to decide the issues” by way of

summary trial. Even though a judge may have decided, on a preliminary threshold screening as described above, that the

summary trial procedure should be proceeded with, this latter inquiry is, of necessity, still at large and may have to be addressed and dealt with at the

summary trial hearing itself. [ 13 ] Depending on the circumstances and the submissions of the parties, the threshold question may be dealt with either in advance of or at the same hearing as when the second step, a

summary trial, is conducted ( Young v. Noble , supra , at paragraph 26 ). Further, rule 17A.03(2) permits judgment to be granted on “an issue or generally”. The two-step approach referenced in paragraph 12, above, applies in either case. Depending on the circumstances, bifurcation of the issues may or may not support proceeding under rule 17A in a given situation. [ 14 ] In this case, the applications judge erred by failing to address the threshold question.

This was important because it follows from a review of the transcript that, at the hearing, counsel for both parties were proceeding on the understanding that the judge would begin by determining the threshold question, that is, whether this was an appropriate case for a

summary trial and judgment. Counsel understood that, if the judge decided that the matter was appropriate for a

summary trial and judgment, they would then have the opportunity to conduct cross-examinations on the affidavits. Both referred to the two-step approach to a rule 17A application and advised the judge that they intended to provide additional evidence by means of cross-examination if a

summary trial proceeded. [ 15 ] However, the judge failed to give counsel the opportunity to conduct cross-examinations, although rule 17A.02(3) specifically provides for that option. Nor did he give any reason for that omission. Rather, he proceeded to grant

summary judgment, apparently pursuant to rule 17A.03(2). The judge did not explain why he concluded that the case was appropriate for

summary trial and judgment, nor did he advise counsel that he would proceed to determine some of the issues by

summary trial without hearing further from them. [ 16 ] Rule 17A.02(3) authorizes a judge to grant judgment on an issue or generally unless (a) [he was] unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or (

b) it would be unjust to decide the issues on the application. [ 17 ] The judge did not address these two exceptions. Regarding the first, adequacy of the evidence, the parties were denied the opportunity, which both sought, to provide further evidence by means of cross-examination on the affidavits. In the result, even if the threshold step in the analysis was cleared, the judge did not have what the parties considered to be complete information on which to make a determination on Mr.

E.’s liability. [ 18 ] Indeed, in the circumstances of this case, careful consideration of the evidence and of the case law and its application on the facts would be necessary in order to determine liability as alleged in the statement of claim against Mr. E. While case law may support the conclusion that a child of fourteen could be held liable for the tort of assault and battery as alleged here, liability will depend on an assessment of the facts.

However, in light of the position of the parties, the judge’s decision not to provide the opportunity for cross- examination on the affidavits resulted in his proceeding in the absence of all the potentially relevant evidence. It is clear from the submissions before the judge that cross-examination on the affidavits was part of Mr.

E.’s attempt to put his best foot forward in response to the application. [ 19 ] Finally, I am not satisfied that the judge, as part of the “interest of justice inquiry”, considered the consequences of the application “in the context of the litigation as a whole” ( Hryniak , at paragraph 60 ). Viewing this case as a whole, consideration should have been given to whether this was an appropriate case for

summary adjudication on any issue, particularly (1) given Mr. E.’s position that the affidavits, without cross-examination, would not provide adequate evidence for a determination on liability; and (2) in light of the issues surrounding the potential application of the Limitations Act, SNL 1995, c. L-16.1 , and the doctrine of laches , which also require evidence; and (3) given the judge’s concession that viva voce evidence will be required to resolve some issues. That assessment was especially relevant in a case such as this given the caution expressed in Hryniak that “partial

summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice” (at paragraph 60). [ 20 ] In

summary, the parties, and Mr. E. in particular, were denied procedural fairness by the manner in which the judge proceeded. By failing to provide for cross-examination on the affidavits as sought by the parties, and by assuming that a factual admission amounted, or led inevitably, to an admission or finding of liability, and by failing to consider whether this was a proper case for a

summary trial that would achieve a fair and just adjudication, the judge failed to properly apply the law and the

summary trial rule.

Accordingly, his decision must be set aside in its entirety. [21] If another application for

summary trial is brought, the above principles must be applied. If the matter goes to trial, all questionsof fact and law will be for the judge to determine. For clarity, I would add that I do not adopt any of the analysis set out in Hoegg J.A.’sdissent, but leave the issues to be considered anew by the judge who will deal with the matter. Costs [22] In the court appealed from, the judge ordered that Ms. E. should have her costs “in any event of the cause”. The judge did notgive his reasons for that order. [23] In light of the above considerations and Mr. E’s success on the appeal, I would order the costs, in the court appealed from and onthe appeal, to be costs in the cause.

SUMMARY AND DISPOSITION [24] In the circumstances, the applications judge erred in the application of the rule regarding

summary trial. The manner in which heproceeded denied the parties, and Mr. E. in particular, procedural fairness. [25] Accordingly, I would allow the appeal and set aside the decision of the applications judge, with costs, in the court appealed fromand on the appeal, to be costs in the cause. Dissenting Reasons by Hoegg J.A.: INTRODUCTION [26] I differ from my colleague with respect to errors made by the Applications Judge and the appropriate disposition of the appeal. [27] I begin by saying that the Judge misspoke when he stated that “a

summary judgment order is appropriate on the issue ofliability”. Liability was not established. Liability could not be established because the limitations issue was not decided in Ms. E.’sfavour. Despite his words, the Judge understood this, saying at paragraph 5 of his decision: “There are, however, other issues that mayimpact upon the Respondent’s liability and I find that those issues are best resolved by the leading of viva voce evidence in a trial”. Thisstatement shows that the Judge did not intend his words to mean that he had decided liability in the case. [28] My colleague says the Judge erred by: (1) failing to determine the appropriateness of Ms. E.’s application for

summary trial as athreshold issue, and (2) denying the parties the opportunity to participate fully in a

summary trial by failing to give counsel theopportunity to conduct cross-examinations. [29] I do not agree that the Judge failed to determine the threshold issue. [30] Ms. E. applied for a determination of her case by way of

summary trial pursuant to rule 17A. As required by the rule and thejurisprudence, she put forward an evidentiary basis for her position and Mr. E. put forward an evidentiary basis for his position that heought not to be found liable in a

summary trial. The Judge decided the threshold issue by finding that Ms. E. had put forward anevidentiary basis for her positions and deciding that it was appropriate to deal with some of the presenting issues by way of

summarytrial (see paragraphs 5 and 7-8 of his decision). [31] With respect to the cross-examination issue, I agree that the Judge did not order the affiants to be cross-examined during thehearing of the application. However, this was neither an error nor a breach of procedural fairness. Rather, it was the proper course ofaction on this

summary trial application as credibility was the focus of the parties’ requests to cross-examine the affiants. The Judgeaddressed the requests by remitting the factually controversial issues to full trial where the affiants could be examined and cross-examined. In other words, he acceded to the parties’ requests respecting cross-examination. [32] In my view, the Judge properly exercised his discretion to decide the issues he decided and to remit the issues that required cross-examination to resolve.

His decisions were a proper exercise of his discretion, are correct in law, and they are not affected by hismisstatement about general liability. They advance the litigation in accordance with the purpose and objectives of

summary trial. ANALYSIS [33] I agree with my colleague’s statements of the law respecting the purpose and objectives of

summary trial – proportionality,expeditiousness, and economy of process which achieves a just and fair result – as set out in Hryniak and Curtis. [34] In Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317 (Nfld. T.D.),Green J. set out the procedure to be applied on

summary trial applications. These procedures have been consistently relied on in thisjurisdiction, with minor refinements when indicated, and they are entirely consistent with the Supreme Court of Canada’s ruling inHryniak. [35] Young v. Noble is also relevant to this matter. The

summary trial application in Young v. Noble involved a General DivisionApplications Judge’s decision that a separate hearing be held to determine the appropriateness of hearing the

summary trial applicationbefore actually hearing the merits of the application. The applicant appealed that ruling to this Court, where a Judge of this Courtdismissed his application on the basis that it was premature. The applicant sought a review of that judge’s decision before a panel ofthree of this Court. Green C.J.N.L. heard and dismissed that application. In doing so, he described the appropriateness of dealing with a

claim by

summary trial as a threshold issue, and stated that it could be determined in advance of a

summary trial proper (paragraph 27), and upheld the decision of this Court’s Judge to dismiss the applicant’s challenge to the General Division Applications Judge’s ruling as not meeting the test for reconsideration. He distinguished the threshold issue from whether an application raises a genuine issue for trial, and described it as whether, on the matters raised in the particular application. … the case appears to fall within the

summary trial rule, whether the applicant has provided some evidentiary basis for the assertions made, and whether the nature of the case is such that it is potentially capable of being dealt with in the attenuated manner contemplated by a

summary trial, bearing in mind the comments of the Supreme Court of Canada in Hryniak about the salutary use of such a procedure to ensure access to justice in appropriate cases. ( Young v. Noble , at paragraph 27 .) I do not read Young v. Noble as standing for the proposition that a two-step procedure is always required. [ 36 ] Butler J. in Dalley v. Northern Arm (Town), 2016 NLTD(G) 68 also considered the issue of bifurcated proceedings on

summary trial applications. In Dalley, Justice Butler decided that some of the issues in respect of which the applicant had put forward a sufficient evidentiary basis could be decided by

summary trial, but dismissed issues in respect of which the applicant had not put forward a sufficient evidentiary (or legal) basis. She then set the matters that could be decided by

summary trial for hearing by

summary trial, effectively bifurcating the

summary trial application. Although appropriate in that case, Dalley does not stand for the proposition that the appropriateness of deciding issues by

summary trial must be determined in advance of

summary trial. This was recognized by Justice Butler in her comments at paragraph 51 of her decision: Although the case before me has ultimately resulted in two hearing dates (as contemplated by the Practice Note), I conclude that there is not a “one size fits all” procedure for

summary trial applications under Rule 17A . As previously stated herein, there may be cases where, on the basis of the evidentiary record before it, a Court could conclude that the threshold test is met and be comfortable moving immediately into the

summary trial hearing (see for example Jamestown Lumber Co. v. Vision Packaging Supplies Ltd., 2007 NLTD 8 ). In other circumstances, the Court may (even when appropriateness is not challenged) require time to consider the evidentiary record before ruling on the threshold issue, a fact that could result in a reserved decision and potentially a subsequent date for the

summary trial hearing itself as was the case in Rowsell v. MacKinnon. [ 37 ] In Hryniak , the Supreme Court stated the appropriateness issue as whether the “interests of justice” are furthered by deciding issues which would or could significantly advance the litigation in a proportionate, timely, and cost effective way ( Hryniak , at paragraph 60 ). The Supreme Court did not describe this consideration as a threshold or distinctly separate issue, or suggest that it be decided separately from or outside of the

summary trial application. [ 38 ] It is well-established that on a rule 17A application for

summary trial, the applicant must set out an evidentiary basis for deciding the issues the applicant seeks to have decided. It goes without saying that there must always be a justiciable issue for which there is a legal basis. The respondent is then required to put his or her best foot forward by setting out an evidentiary and legal basis for why the applicant’s application should not succeed. In short, both parties must put “their best feet forward” in support of their respective positions. In this way, both parties are able to argue the appropriateness of having the presenting issues decided by way of

summary trial within the context of the evidence presented and the applicable law. This is an efficient and fair procedure in keeping with the purpose and objectives of

summary trial. The fact that a judge can exercise his or her discretion to decide that a matter is not appropriate for

summary trial can be, but is not necessarily, a separate first step. That a bifurcated process is appropriate in a particular case does not mean that the appropriateness issue must always or even usually be decided separately. Deciding appropriateness within the context of the

summary trial can be just as appropriate and defensible. I would go further, however, and say that while approaching a

summary trial application from a two-step perspective or holding bifurcated proceedings are options, they are not standard practice. Nor should they be, because it is better to decide the appropriateness (or threshold) issue in the context of all of the evidence and argument presented on a

summary trial application. It is better because it may be more efficient and economical of process which is the point of

summary trials. It is also a fairer process because it gives the judge a more complete picture of the case with all of its issues and nuances. For a recent example of the two issues being decided at the

summary trial application ( see Swain v. Vickers , [2019’ N.J. No. 28). [ 39 ] As well, it is not standard practice to conduct cross-examinations of witnesses at

summary trials. While rule 17A.02(3) provides for the availability of cross-examination at a

summary trial, cross-examination is not the general rule. Evidence on a

summary trial application is adduced in an attenuated way (by affidavit, by filing discovery evidence, and by filing answers to interrogatories, as per rule 17A(1)(a)(

b) and (c)) in keeping with the efficiency objective of

summary trial. While it may be necessary or desirable to cross- examine an affiant to clarify a matter or for another reason, it is not generally permissible to cross-examine an affiant on credibility issues in a

summary trial application ( Marco , at paragraph 76 ,

part 6). Whether the Case was Appropriate for

Summary Trial [ 40 ] It is suggested that Ms. E.’s application for

summary trial ought to have been denied on the basis that her claim was inappropriate for

summary trial, and that the hearing before the Judge should have only dealt with the first step of the two-step process which applies to rule 17A

summary trial applications. The issue raised is whether it was appropriate to proceed to decide some

summary trial issues without first or separately, deciding the threshold issue. [ 41 ] As indicated in paragraph 29 above, the Judge decided that Ms. E. had put forward an evidentiary basis for her position, and that the nature of the case allowed for some issues being dealt with by

summary trial. This was a decision on the threshold issue. [ 42 ] My colleague says that a review of the hearing transcript shows that counsel were of the understanding that, if the judge determined the case appropriate for

summary trial, they would then have the opportunity to cross-examine the affiants during the

summary trial. I do not agree with this analysis of the transcript. The transcript shows that counsel for the parties argued the appropriateness of

summary trial, or the threshold issue, as well as the issues sought to be determined in the

summary trial, in the context of all of the evidence presented in the application. The issue of sexual battery, as well as the legal issues of laches and the “defence of youth”, were argued before the Judge. At the conclusion of the hearing the Judge indicated he would review all of the submitted

material and decide accordingly. He did not give any impression that he would only be deciding the threshold issue. He said “I take allof your submissions under advisement and will give you a written decision in due course”. In the end, he decided it was appropriate todecide the issue of sexual battery, and the legal issues respecting the defences of laches and youth, and remit the issues respecting thesecond category of sexual battery and the limitations of actions defence to trial. This was a discretionary decision. [43] In my view the Judge appropriately exercised his discretion to decide issues which met the threshold requirement for

summarytrial and were “in the interests of justice” to decide, because the applicant had provided an evidentiary basis for her claims and becausesome issues in the case were capable of being dealt with in the attenuated manner contemplated by

summary trial (Hryniak, at paragraph60 and Young v. Noble at paragraph 27). I see no basis in principle for saying that he inappropriately exercised his discretion. The Judge’s Decisions [44] Mr. E. admitted to his sexual battery of Ms. E when she was seven years old. Despite his admission, he argued he should not befound liable for it. In this regard he made three arguments: (1) that the defence of laches should bar Ms. E.’s action; (2) that Mr. E. wasonly 14 when the earlier assaults occurred; and (3) that Ms. E.’s claim was barred by the provisions of the Limitations Act. The Judgedismissed Mr.

E.’s defences of laches and youth, saying they had no application to the case. He decided that Mr. E.’s limitations defenceshould be decided at a full trial where viva voce evidence could be heard and Mr. E. would be able to cross-examine Ms. E. on herfactual assertions that she argued would exempt her claim from being barred by the provisions of the Limitations Act. The Judge alsodecided that allegations respecting the second category of assaults required a trial to resolve. The Sexual Battery [45] Ms. E. supported her application with affidavit evidence, Mr. E.’s discovery evidence, and other documentation.

The evidenceprovided concerned two categories of sexual battery which she alleged Mr. E. had committed upon her. The first category involved Mr.E. performing oral sex on her on two occasions when she was seven years old and he was 14. The second category involved less seriousallegations that he had tried to grab her and force her jeans down, etc. when she was a teenager and Mr. E. was in his early twenties. [46] Mr. E. put his best foot forward by submitting a lengthy affidavit and other documentation. In Mr.

E.’s affidavit, he specificallyadmitted the earlier serious sexual battery, saying “[I] acknowledge that I had two (2) instances of sexual contact … of me performingoral sex on the applicant”. He also acknowledged at his discovery that the two oral sex incidents alleged by Ms. E. occurred. As well,he admits to their occurrence at paragraph 24 of his factum. However, Mr. E.’s affidavit and discovery evidence challenged his sister’sallegations of the less serious sexual battery which had taken place in her teenage years. [47] The Judge approached his decision respecting sexual battery by stating that Ms.

E. had to satisfy the threshold issue by puttingforward an evidentiary basis for her position. He found that she had done so, and therefore a

summary judgment order was appropriatewith respect to that part of her claim, saying at paragraph 8 of his decision: Since the assault and battery have been admitted, the Respondent is obligated to advance a reason why the Applicant should not havesummary judgment on that issue since the Respondent’s admission is prima facie, determinative of that issue. The Defence of Laches [48] In K.M. v.

H.M., (SCC), [1992] 3 S.C.R. 6, the Supreme Court of Canada formulated the following test fordetermining whether the defence of laches ought to apply to an incest case (at page 80): …in light of the plaintiff's knowledge, can it reasonably be inferred that the plaintiff has acquiesced to the defendant's conduct?

Theanswer to that question depends on the circumstances of each case, but it would require particularly compelling evidence to demonstratethat an incest victim had "acquiesced" to the sexual assaults made against her. [49] At pages 77-78 of K.M., Justice La Forest discussed the doctrine of laches, saying: […] A good discussion of the rule and of laches in general is found in Meagher, Gummow and Lehane, supra, at pp. 755-765, where theauthors distill the doctrine in this manner, at p. 755: It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he candemonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (

a) acquiesced in the defendant's conductor (

b) caused the defendant to alter his position in reasonable reliance on the plaintiff's acceptance of the status quo, or otherwisepermitted a situation to arise which it would be unjust to disturb. Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediatelyobvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches.

Rather, the doctrineconsiders whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the actionunreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine. [50] In K.K. v. K.W.G., 2008 ONCA 489, the Ontario Court of Appeal applied K.M. in deciding whether the doctrine of lachesdefeated a child’s civil claim against a parent in an incest case. The parent claimed that the doctrine of laches should defeat her child’sclaim.

At paragraphs 49-50, Cronk J.A. wrote: In my view, just as the delayed discovery rule should be liberally applied to avoid too ready a recognition of a limitation period defencein an incest case, so too should the courts be reluctant to allow a defendant in an incest case — including the 'bystander' parent — toescape liability for breach of fiduciary duty by invocation of the doctrine of laches.

The considerations identified by La Forest J. in M. (K.) as arguing against a "rigorous application" of a limitations statute in an incestcase, listed above, apply with equal force to consideration of a laches defence in an incest case. These considerations relate to the nature

and effects of incest and sexual abuse. The policy considerations germane to such offences apply whether a limitation period or a lachesdefence is raised. Moreover, limitations statutes and laches defences are animated by "similar policy imperatives" and the requisiteinquiries under both "very close[ly]" mirror each other. M. (K.) at p. 79. … [51] The defence of laches is an equitable defence. While it may defeat an equitable claim, it is not a defence to a legal claim (seeK.M. at 77). It is not available in a common law action alleging a common law wrong and seeking a common law remedy (RhyoliteResources Inc. v.

Canquest Resource Corp., 1999 BCCA 36, at para. 31). [52] The Judge referred to the test set out in K.M. at paragraph 22 of his decision. He also referred to the reasoning in K.K. He foundthat Mr. E. had put forward no evidence to show that Ms. E. had acquiesced to the sexual assaults against her, and that given Mr. E.’sobligation to do so, the Judge decided that the defence of laches did not defeat Ms. E.’s claim. [53] I have reviewed Mr. E.’s affidavit, and it does not assert so much as a modicum of evidence which could support Ms. E.’s.acquiescence to Mr. E.’s sexual battery of her, or that she gave Mr.

E. any reason to alter his position respecting her claim. There isnothing in Mr. E.’s affidavit touching on laches which needed clarification or resolution by cross-examination. He was required tosupport his position with affidavit evidence, and he did not do so. [54] In any event, Ms. E.’s claim is a common law claim based on an intentional tort and she is seeking the common law remedy ofdamages. Ms. E. alleged breach of fiduciary duty and trust in her claim. The defence of laches can apply to such a claim but it is notavailable to Mr.

E. in this case because there is no evidence supporting it. [55] The Judge’s decision that the defence of laches did not apply is in keeping with the law respecting

summary trial procedure. Itwas argued by Mr. E. before the Judge, and he decided it did not apply. His decision was not procedurally unfair to Mr. E. Moreover, itis correct in law. It would be inefficient and uneconomical of process, not to mention in breach of longstanding

summary trial law topermit Mr. E. to re-litigate an issue in respect of which no evidentiary foundation has been shown. The Defence of Youth [56] Mr. E. also advanced the argument, at

summary trial and in this Court, that because he was only 13 or 14 years old when heassaulted his seven-year-old sister, he may have lacked the capacity to appreciate the nature and consequences of his actions, andtherefore should not be liable for them. Counsel referred to this argument as “the defence of youth” during argument. [57] In deciding that the “defence of youth” had no application, the Judge stated: [18] There is no affidavit evidence before me that would substantiate the position advanced by Respondent’s counsel on the issue of theRespondent’s capacity.

It is incumbent upon the parties to bring to the attention of the trial judge all facts that may bear on the eventualdecision to grant, or not grant, a

summary judgment. If the Respondent seriously contends that he did not appreciate the nature andconsequences of his actions due to his age, lack of understanding, or some other infirmity, it is his duty to bring forward the evidencethat he relies upon in support of that position.

Conjecture of counsel with respect to the Respondent’s capacity, or lack thereof, isinsufficient. [19] The fact that the Respondent admitted to two separate instances of sexual assault in two different locations of the house, at twodifferent times, satisfies me that he did, indeed, appreciate the nature and consequences of his actions and that this was no one-timerandom misadventure. The second instance, at least, would have had to have been planned, deliberate and intentional. It must beremembered that the acts were committed by a 14 year old on a 7 year old victim.

I do not agree that the Respondent’s intellectualcapacity is an issue which must be resolved by virtue of a full-blown trial. [58] The defence of youth to a civil claim of sexual battery is, practically speaking, unknown to law. Even a very young child can befound liable for a civil claim (see Baldinger v. Banks (1960), 201 N.Y.S. (2d) 629, where a six-year-old child was found liable forpushing and injuring another child). However, in Tillander v.

Gosselin (1996), (ON SC), [1967] 1 O.R. 203), a three-year-old who had injured another child by pulling him out of a carriage was found not liable, nor was a five-year-old child found liablefor shooting a playmate in the eye with an arrow (Walmsley v. Humeniak, (BC SC), [1954] 2 D.L.R. 232 (B.C.S.C.)). The issue with age as a defence to a civil claim is whether the defendant is capable of forming the intent required to commit theoffensive conduct. At age 14, Mr. E. was well above the typical age of child defendants who have been excused from civil liability.

Moreover, he was well above the age at which a youth can be found criminally liable for such conduct. [59] The Supreme Court of Canada spoke on the issue of sexual battery in Nan-Marine Underwriters, Lloyds of London v. Scalera,2000 SCC 24, [2000] 1 S.C.R. 551, at paras. 43-44). In Scalera, McLachlin J. stated at para. 2: … “[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate”. The law of battery protects thisinviolability, and it is for those who violate the physical integrity of others to justify their actions.

Accordingly, in my respectful view,the plaintiff who alleges sexual battery makes her case by tendering evidence of force applied directly to her. “Force”, in the context ofan allegation of sexual battery, simply refers to physical contact of a sexual nature, and is neutral in the sense of not necessarilyconnoting a lack of consent.

If the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiffconsented or that a reasonable person in his position would have thought that she consented. … (Emphasis added.) In addition to the defence of consent, Justice McLachlin went on to reference the defences of negligence and lack of intention to a claimof sexual battery. [60] In this case, the defence of consent was not argued by Mr. E.; nor could it be, as Ms. E. was only seven years old. In any event,review of Mr.

E.’s affidavit evidence shows that he put forward no evidence whatsoever that could support a defence of negligence orlack of intention to do what he did, or that he was incapable of appreciating the nature and consequences of his actions. If Mr. E. wished

to rely on a defence of negligence or lack of intention, he was required to put forward evidence for why he mistakenly or unintentionally did what he did. He did not do so. In fact, he admitted doing what he did without reservation. Again, it would be contrary to

summary trial law to permit Mr. E. to relitigate an issue in respect of which he had not put forward an evidentiary foundation in his response to Ms. E.’s application. Moreover, the evidence in Mr. E.’s own affidavit and discovery evidence supports that Mr. E. knew exactly what he was doing and he intended to do what he did. [ 61 ] Mr. E. argued his “defence of youth” before the Judge. The Judge decided it had no application. There was nothing procedurally unfair about his deciding the issue. Moreover, it is legally correct.

The notion that a 14-year-old boy, in the circumstances of this case, cannot be found to have committed the tort of sexual battery for holding down and splaying the legs of his seven-year-old sister and performing oral sex on her on two different occasions in two different places has no place in our law. [ 62 ] On the other hand, Mr. E. disputed Ms. E.’s allegations that Mr. E. sexually assaulted her during her teenage years in the manners she asserted. The Judge appreciated that cross-examination with respect to the credibility of Ms.

E.’s second category of sexual battery claims would be required, saying that it was not possible for him to decide whether these assaults had occurred on the basis of the controverted evidence before him. Accordingly, he remitted the second category of assaults to trial where cross-examination could take place, saying “It will be necessary to hear from the parties, and others, to decide whether the applicant is able to prove that portion of her claim” (at paragraph 9). This is a procedurally fair decision in keeping with

summary trial law. [ 63 ] The Judge stated that the issue of the second category of assaults went solely to damages. While I agree that evidence respecting the alleged “second category” of assaults goes to damages in the sense that all claims involve damages (although sexual battery is actionable per se ), Ms. E.’s claims respecting the second category of assaults, if proved, could also establish additional independent intentional sexual batteries, separate and apart from the earlier sexual batteries. The Limitations Defence [ 64 ] The evidence respecting the limitations defence was controverted. Mr.

E. put forward evidence in his affidavit which seriously challenged the credibility and reliability of Ms. E.’s evidence respecting whether she fell within one of the exceptions to the application of the limitation period set out in the Limitations Act to her claim. The Judge recognized this, saying that viva voce evidence involving cross-examination was necessary to resolve the issue. He properly exercised his discretion to decline to decide it and remit that issue to trial. Again, his decision in this regard is in keeping with

summary trial law and procedurally fair.

SUMMARY [ 65 ] No cross-examination was indicated respecting the early sexual battery, or the defences of laches or youth. There was no risk of duplicate proceedings or inconsistent findings on these issues, and the Judge’s decision to decide them was not unfair to Mr. E. as he had had put forward no evidence whatsoever supporting his positions respecting them. The Judge recognized Mr. E.’s request to cross- examine Ms. E. on the credibility of her claims respecting the second category of sexual battery and the limitations issue.

These were the issues which required testing and clarification by way of cross-examination and t he Judge properly exercised his discretion to remit determinations respecting the second series of assaults and the limitations issue for trial. It cannot be said that the judge failed to give the parties the opportunity to cross-examine the affiants. The judge did exactly that by remitting the factually controversial issues to full trial. [ 66 ] To be clear, the Judge decided that Mr. E. had committed the tort of sexual battery against Ms. E., and that the defences of laches and youth did not defeat her claim.

He did not decide liability for her case or whether her claim regarding the second category of sexual battery was established. His decisions were grounded in the evidence and law, and procedurally fair. They advanced the litigation in keeping with the purpose and objectives of

summary trial, and were “in the interests of justice” ( Hyniak, at paragraph 60). To permit the issue of sexual battery and the defences of youth and laches to be reargued in a full trial would be inefficient, unnecessary, unfair to Ms. E., and contrary to well established law respecting the conduct of

summary trials. [ 67 ] In conclusion, the Judge did not fail to determine the appropriateness of deciding Ms. E.’s application for

summary trial. Rather, he properly exercised his discretion to decide the issues he could decide and remit the issues he could not decide to trial. The integrity of his decisions is not affected by his misuse of the word liability. [ 68 ] I would therefore order that the trial proceed on the following basis: (1) that the early sexual battery was established; (2) that the defences of laches and youth do not apply; (3) that Ms. E.’s allegations respecting the second category of sexual battery remain to be proved unless withdrawn by Ms. E.; and (4) that the limitations issue remains to be decided.

Damages also remain to be decided, if appropriate. COSTS [ 69 ] Like my colleague, I would order costs in the cause in the court below. However, I would order column three costs on this appeal to Ms. E.

Appeal allowed (Hoegg J.A. dissenting).