Bodnarchuk v. RBC Life Insurance Date:, 2011 MBCA 18

Citation: Bodnarchuk v. RBC Life Insurance Date: 20110211 Co. et al., 2011 MBCA 18 Docket: AI 10-30-07397 IN THE COURT OF APPEAL OF MANITOBA Coram : Chief Justice Richard J. Scott Madam Justice Freda M. Steel Mr. Justice Richard J. Chartier B E T W E E N : WAYNE CURTIS MICHAEL BODNARCHUK ) ) (Plaintiff) Respondent ) S. Z. Raber and ) C. P. McNicol - and - ) for the Appellant ) ASSANTE FINANCIAL MANAGEMENT ) LTD. ) T. J.

Lach ) for the Respondent (Defendant) Appellant ) ) - and - ) Appeal heard: ) November 30, 2010 RBC LIFE INSURANCE COMPANY, ) WILLIAM CAREY carrying on business under ) the firm name and style W.R. CAREY ) Judgment delivered: CORPORATION and the said WILLIAM ) February 11, 2011 CAREY ) ) (Defendants) ) SCOTT C.J.M. 1 This appeal concerns the exercise of judicial discretion by the motions court judge in response to an application by the appellant (Assante) for

summary judgment pursuant to Queen’s Bench Rule 20. The motions court judge concluded that Assante had raised a primary case for dismissal of the respondent’s (Bodnarchuk) claim for damages for wrongful dismissal, but that Bodnarchuk, in response, had succeeded in demonstrating that his claim for damages, with one exception, had a “real chance of success.” Assante’s motion was otherwise dismissed. The Facts 2 Bodnarchuk was employed as a financial advisor and sales representative from 1992 to 2003.

In September 2002, Assante acquired the business operations of his former employer, and Bodnarchuk stayed on in the same position. One of the major issues between the parties with respect to Bodnarchuk’s claim for wrongful dismissal is whether he was an employee or independent contractor. In May 1999, Bodnarchuk executed a Shareholder Advisor Agreement (SAA) with Assante’s corporate predecessor. The SAA contained detailed provisions covering all aspects of Bodnarchuk’s engagement, including termination of the agreement with or without cause and the compensation to be paid to Bodnarchuk in such an eventuality.

More particularly, the SAA also provided that upon termination, no additional compensation was payable beyond that set forth in the agreement. 3 Prior to Assante’s arrival, Bodnarchuk had carried out his business activities from his home, where he kept his client

records. Beginning near the end of 2002, Bodnarchuk began to suffer from an illness or injury which he claims made it exceedinglydifficult for him to satisfy his employment responsibilities with Assante, for which he received medical treatment. 4 Issues soon arose between Assante and Bodnarchuk concerning the latter’s performance, which Bodnarchuk saysexacerbated his medical problem. In August/September 2003, Assante gave Bodnarchuk a number of options; in the result, he elected(Bodnarchuk says he was ordered) to move his practice to Assante’s Taylor Avenue branch office.

But the difficulties continued, andeventually, in October 2003, Bodnarchuk agreed to enter into a Client Transfer Agreement (CTA) with a fellow Assante shareholderadvisor. The agreement was executed on May 31, 2004, with an effective date of December 5, 2003. Pursuant to the CTA, Bodnarchuksold and assigned his book of business to the other advisor. Bodnarchuk asserts that he was only giving temporary custodianship of hisaccounts to the other advisor and that he did not intend to resign.

Notwithstanding, on December 3, 2004, Bodnarchuk executed aresignation letter, which he alleges he was coerced into signing as a result of undue pressure. 5 It is common ground that the payments required to be made under the CTA (and the SAA) were made by Assante, subjectonly to Bodnarchuk’s claim that the actions of Assante reduced the value of his book of business and hence the amount of Assante’spayout. 6 On April 5, 2007, Bodnarchuk sued Assante, RBC Life Insurance Company (RBC Life) and others. The claim againstRBC Life relates to its denial of Bodnarchuk’s claim for long-term disability benefits.

The action against Assante alleges wrongfuldismissal, negligence, negligent misrepresentation, intentional infliction of mental suffering and emotional shock. It is also asserted thatAssante, as agent for RBC Life, breached its duty to Bodnarchuk, contributing to denial of the disability benefits. 7 In November 2009, Master Ring, pursuant to Assante’s application for

summary judgment, dismissed Bodnarchuk’s actionagainst Assante in its entirety. This decision was appealed. On April 20, 2010, the Queen’s Bench motions court judge allowedBodnarchuk’s appeal and dismissed Assante’s motion for

summary judgment, with the exception of Bodnarchuk’s claim for intentionalinfliction of mental suffering and emotional shock, which was dismissed. 8 Assante then appealed to this court. While it does not take issue with the dismissal of its

summary judgment applicationwith respect to Bodnarchuk’s claims framed in agency or negligence, Assante does argue that Bodnarchuk’s claim for wrongfuldismissal ought to be summarily dismissed. Simply stated, Assante alleges that whether Bodnarchuk was its employee or waswrongfully dismissed need not be decided. This is for two reasons, either one of which should result in

summary judgment in its favour. The first is that at law (see Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362), general damages for wrongful dismissal,on the facts, are not available. The second is that, in any event, Bodnarchuk’s claim to have suffered damage, including the allegedreduction in the value of his book of business, cannot survive the good hard look required on a

summary judgment motion, given thepaucity of evidence to support it. In the result, there is no arguable claim for damages. Standard of Review and the Test for

Summary Judgment 9 Queen’s Bench Rule 20, which governs motions for

summary judgment, provides: . . . . . Available to defendant 20.01(3) A defendant may, after filing and serving a statement of defence, and at any time prior to the action being set down for trial,move with supporting affidavit material or other evidence for

summary judgment dismissing all or part of the claim in the statement ofclaim. . . . . . Where no genuine issue 20.03(1) Where the court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the court shall grantsummary judgment accordingly. . . . . . 10 Both parties properly rely on the recent decision of this court in Homestead Properties (Canada) Ltd. v. Sekhri et al., 2007MBCA 61, 214 Man.R. (2d) 148, with respect to both the standard of review and the approach to be taken by a motions court judgewhen considering a motion for

summary judgment (at para. 13): The applicable standard of review with respect to errors of law is correctness. For errors of mixed fact and law, or of fact alone, thestandard is palpable and overriding error, unless an error of mixed fact and law involves an error relating to an extricable principle oflaw, in which case the standard of correctness applies to that extricable legal question: Housen v. Nikolaisen et al., 2002 SCC 33, [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, at paras. 8, 10, 37. Moreover, the granting ordenying of a motion for

summary judgment is in a judge’s discretion, and that discretion should not be overturned unless the judge hasmisdirected himself or if his decision is so clearly wrong as to amount to an injustice (Elsom v. Elsom, (SCC), [1989]1 S.C.R. 1367; 96 N.R. 165, at 1375; see also R. v. Regan (G.A.), 2002 SCC 12 , [2002] 1 S.C.R. 297; 282 N.R. 1; 201N.S.R. (2d) 63; 629 A.P.R. 63; 2002 SCC 12, at para. 117). 11 This statement on the applicable standard of review for

summary judgment motions has more recently been updated and

elaborated upon by this court in Towers Ltd. v. Quinton’s Cleaners Ltd. et al., 2009 MBCA 81, 245 Man.R. (2d) 70, a decision that willbe applied later in this decision (see para. 35) 12 Returning to Homestead Properties, with respect to the test for

summary judgment (at para. 14): …. The test is to the same effect regardless of whether the moving party is the plaintiff or the defendant. When the defendant moves, ashere, he must prove, on a prima facie basis, that the plaintiff’s action must fail. If he meets that burden, then the plaintiff has the burdento establish that there is a genuine issue for determination. He must show that his claim is “one with a real chance of success” (seeHercules Management Ltd. et al. v.

Ernst & Young et al., (SCC), [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, at para. 15, see also Hydro Electric Board (Man.) v. Inglis (John) Co. et al. (1999), (MB CA), 142 Man.R. (2d) 1; 212 W.A.C. 1 (C.A.)). If he fails to do so,

summary judgment dismissing the claim will follow. 13 Thus, an application for

summary judgment, whether by plaintiff or defendant, is a two-step process. See HomesteadProperties, Perth Services Ltd. v. Deloitte Haskins & Sells et al., 2005 MBCA 14, and Beavis v. PricewaterhouseCoopers Inc., 2010MBCA 69, 87 C.P.C. (6th) 392. Firstly, the moving party (in this case, Assante) must demonstrate on a prima facie basis that the claimor defence, as the case may be, should fail. If this first hurdle is not met by the applicant, that is the end of the matter. In this instance,the motions court judge found, correctly in my view, that Assante had met this burden.

Once a prima facie claim or defence has beenshown, the onus shifts to the respondent (in this case, Bodnarchuk) to establish that the claim or defence has a real chance of success; inother words, that there is a genuine issue for trial. At this stage, the court must take a good hard look at the merits of the claim. SeeBlanco et al. v.

Canada Trust Co. et al., 2003 MBCA 64, 173 Man.R. (2d) 247 at para. 24, and Homestead Properties. 14 As we have seen, the motions court judge, at the second stage, found in favour of Bodnarchuk, except with respect to theclaim for intentional infliction of mental suffering and emotional shock, which he has not appealed. 15 The key question on this appeal then is whether the motions court judge erred in the exercise of her discretion in concludingthat Bodnarchuk had demonstrated that his claim for damages for wrongful dismissal has a real chance of success.

Assante’s Argument 16 The motions court judge dealt with the two arguments advanced by Assante before this court (see para. 8) as follows (atpara. 38): Assante has submitted that even if Bodnarchuk was found to be an employee who was wrongfully dismissed, that no compensation isowed to him. This assertion was based upon the fact that Bodnarchuk received the same payments under the CTA as he would have beenentitled to under the provisions of the SAA when dealing with the termination of an advisor without cause. (Sain affidavit at paragraph29, Exhibits A and L).

Bodnarchuk has submitted that Sain’s actions served to reduce the value of his book of business in terms of theway he exercised meetings with certain of Bodnarchuk’s clients. Perhaps more importantly, Bodnarchuk has asserted that there couldwell be entitlement to general damages for pain and suffering by reason of the manner in which the dismissal was undertaken byAssante.

These issues will require a determination by the court. 17 With respect to the first error argued by Assante, namely, that general damages for pain and suffering are not available as amatter of law for wrongful dismissal at trial, both counsel rely on the leading decisions of Wallace v. United Grain Growers Ltd., (SCC), [1997] 3 S.C.R. 701, Fidler v.

Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, and Honda. 18 There can be no doubt that the motions court judge was in error when she appeared to accept that a claim for “generaldamages for pain and suffering” could be advanced in a wrongful dismissal proceeding. But her reasons (see para. 16 herein) should notbe looked at in isolation and must be considered in context; being that it is the concluding paragraph in the

section of the judgment inwhich the only issue under consideration was whether Bodnarchuk was an employee or independent contractor. In my opinion, havingregard to her reasons as a whole, the motions court judge could not have intended her remark to be a finding that as a principle of lawthere is an entitlement to general damages for pain and suffering in proceedings such as this. 19 In its factum, Assante, relying heavily upon the Supreme Court decision in Honda, argued that normal distress and hurtfeelings resulting from dismissal are not compensable. See Honda, at para. 56.

But during the course of oral submissions, counsel forAssante conceded, and rightly so, that general damages can be awarded stemming from a wrongful dismissal in two instances; firstly, forso-called “Wallace damages” (Honda, at paras. 57-58): … [W]here the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example,untruthful, misleading or unduly insensitive” (para. 98 [of Wallace]). …. At least since that time, then, there has been expectation by both parties to the contract that employers will act in good faith in themanner of dismissal.

Failure to do so can lead to foreseeable, compensable damages. …. The other instance is an application of the time-honoured principle in Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145, that (id., atparas. 54-55): … [D]amages are recoverable for a contractual breach if the damages are “such as may fairly and reasonably be considered either arisingnaturally … from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of bothparties” (p. 151 [of Hadley]). ….

Thus, in cases where parties have contemplated at the time of the contract that a breach in certain circumstances would cause the plaintiffmental distress, the plaintiff is entitled to recover …. …. 20 Assante’s more substantial argument is that, given the paucity of medical or other evidence to substantiate Bodnarchuk’sbroad and amorphous complaints of illness and chronic fatigue, there is no reasonable prospect of his claim for general damagessucceeding.

Indeed, the medical records indicate that the onset of symptoms occurred at the end of 2002 after a viral illness, beforeBodnarchuk’s difficulties with Assante even arose. As the motions court judge herself concluded (at para. 60): I am satisfied after reviewing the evidence and hearing the positions of counsel that Assante has proven, on a prima facie basis, thatBodnarchuk’s action must fail. In reviewing the medical evidence presented with respect to this matter, I also do not accept thatBodnarchuk has established that there is a genuine issue for determination.

There is no “real chance of success” after a review of themedical evidence which I am satisfied failed to disclose a connection between the illness suffered by Bodnarchuk and the actions ofAssante. Indeed, the records provided have demonstrated that the onset of his health issues occurred in advance of the wrongful actionsalleged to have been done by Assante.

Further, Bodnarchuk failed to expressly attest in his affidavit to a connection between Assante’sactions and his illness. [emphasis added] See as well (at paras. 63-64): … [T]he medical history provided was indicative of Bodnarchuk sustaining some type of viral illness in the fall of 2002 which resultedin many of the other medical difficulties he encountered. As indicated, there was no substantive medical connection drawn by thedoctors involved between that illness and the actions of Assante.

I am satisfied that Bodnarchuk has failed to adduce evidence to support the element of the tort of intentional infliction of mental sufferingrelated to a visible and provable injury. …. 21 Assante asserts that the very same reasoning negates any claim for general damages for wrongful dismissal.

The motionscourt judge therefore committed palpable and overriding error in failing to recognize that there was no tangible evidence linkingBodnarchuk’s ill health with anything that Assante did or failed to do. 22 The other branch of Assante’s appeal concerns the claim for damages for the alleged diminution of Bodnarchuk’s book ofbusiness - and consequently the payout due to him following his termination under the formula contained in

Article 7.06 of the SAA -due to the action of Assante’s manager with his former clients. Assante points out that the only relevant evidence from Bodnarchuk onthis issue is the following brief reference in his affidavit filed in response to Assante’s application: …. David Sain [his manager at the time] also assumed overall responsibility of my Assante accounts and personally met with clients allof which I believe directly led to some of them leaving Assante.

The loss of clients in turn reduced the value of my book of businessunder the Shareholder Advisor Agreement dated May 6, 1999, in the event of my termination from Assante. [emphasis added] 23 In specific answer to this assertion, Assante filed a supplementary affidavit from David Sain, in which he affirmed: …. I did not advise the plaintiff at any time as to how to promote himself, nor did I take over responsibility for his Assante accounts.

Asstated above, I did meet with a single client in order to assist the client in redeeming an investment, which client’s request the plaintiffhad ignored. …. 24 As we have seen, the motions court judge declined to grant

summary judgment to Assante on this issue, concluding that itrequired a determination at trial in light of what she considered to be a credibility issue between Bodnarchuk and Sain. The court’scaution in this respect ignores, Assante says, the critical distinction between Bodnarchuk’s “belief” (without any supporting factual basis)as opposed to Sain’s unequivocal and fact-based denial. Once again, Assante argues, the motions court judge committed palpable andoverriding error.

Bodnarchuk’s Submissions 25 With respect to the claim for general damages arising out of his wrongful dismissal, it is asserted that Bodnarchuk’s claim(in reality, for mental distress by reason of the manner of his dismissal) constitutes a genuine issue for trial.

Summary judgment is notavailable when there are questions of fact to be resolved between the parties. This is especially so when the credibility of the party is acritical factor in the dispute. See Goldstein v. Freed & Freed International Ltd., [2000] M.J. No. 99 (Q.B.) (QL), aff’d 2000 MBCA 91,and Irving Ungerman Ltd. v. Galanis (1991), (ON CA), 4 O.R. (3d) 545 (C.A.). Reliance is placed upon thereferences from Honda earlier referred to. 26 Bodnarchuk emphasizes, quite correctly in my view, that while Honda clarifies the underlying principle for awardingdamages (to damages awarded for reasonably foreseeable consequences arising from the breach of contract), the circumstances when

damages arising from the manner in which the dismissal occurred will be awarded are no different from those in Wallace (Honda, atpara. 58): …. In Wallace, the Court held employers “to an obligation of good faith and fair dealing in the manner of dismissal” (para. 95) andcreated the expectation that, in the course of dismissal, employers would be “candid, reasonable, honest and forthright with theiremployees” (para. 98). At least since that time, then, there has been expectation by both parties to the contract that employers will act ingood faith in the manner of dismissal.

Failure to do so can lead to foreseeable, compensable damages. …. 27 Reference is made by counsel for Bodnarchuk to a number of cases, Simmons v. Webb (2008), 84 C.C.E.L. (3d) 196 (Ont.S.C.J.), Bru v. AGM Enterprises Inc., 2008 BCSC 1680, and Chapell v. Canadian Pacific Railway Company, 2010 ABQB 441, 29 Alta.L.R. (5th) 380, where general damages were awarded for the distress caused by the bad-faith activity of the employer in the manner ofdismissal.

It is also noted, see Chapell, at paras. 99-102, that while medical reports are helpful, they are not always required to establisha claim in this regard. 28 Simply stated, Bodnarchuk’s position is that the assertions made in his extensive affidavit confirm the bad-faith treatmenthe received at the hands of Assante, which included being forced to sign a letter of resignation against his will and without legal advicewhile he was, to the knowledge of Assante, vulnerable due to his ongoing illness.

In such circumstances, it can reasonably be argued thatit would have been contemplated at the time the contract was entered into that this behaviour could cause Bodnarchuk severe distress,entitling him to damages. 29 Concerning Bodnarchuk’s claim that Assante reduced the value of his book of business, it is noted that Assante does notallege that the motions court judge applied the wrong legal test, or that there is no evidence to support the conclusion that there is agenuine issue for trial. 30 The motions court judge’s conclusion involves inferences to be drawn from the facts presented in affidavit form – for whichthe standard of review is palpable and overriding error – as well as the exercise of judicial discretion – for which the standard of reviewrequires a high degree of deference by this court.

Counsel argues that it is not this court’s function on a

summary judgment motion toresolve factual disputes on affidavit evidence, but simply to determine whether or not a genuine issue for trial existed. 31 It is acknowledged that while Bodnarchuk must put “his best foot forward” in response to Assante’s application forsummary judgment so as to demonstrate there is a genuine issue for trial, he is not required to provide all of the evidence that might becalled at trial. To this I note straightaway that even if this may technically be true, it is a risky practice.

If the evidence falls short ofdemonstrating that there is a genuine issue for trial, then that is the end of the matter; it is simply too late to “cooper up” the case. AsSteel J.A. noted in Bridgwater v. Stanhope et al., 2009 MBCA 126 (at para. 7): …. … Rule 20 should not be used as a means to avoid a trial on viva voce evidence simply because the plaintiff’s case is weak. Sincean order pursuant to this rule takes away a party’s right to a full trial, it must be used with care, good sense and practicality. On the otherhand, the objective of the

summary judgment process is to screen out claims that in the opinion of the court, based on evidence furnishedas directed by the rule, ought not to proceed to trial because they cannot survive the “good hard look.” It is not sufficient for theresponding party to say that more and better evidence will or may be available at trial. Parties should not have to be put through a trialunless a genuine issue arises as to their liability.

Decision 32 The critical issue before this court is whether the motions court judge exercised her discretion correctly after givingBodnarchuk’s action for wrongful dismissal a “good hard look” when she concluded that there was an arguable case for trial. Theanswer to this question requires consideration of the nature and extent of the burden upon a responding party to a

summary judgmentapplication once the moving party has demonstrated a prima facie case (in this instance, that Bodnarchuk’s action should fail). 33 In the past decade, this court has written extensively on this very issue.

In Blanco, Freedman J.A., for the court, consideredwhat was meant by a “real chance of success” when the burden had shifted to the respondent and wrote (at para. 24): The “real” chance of success which the responding parties may have to show they have means that, on the basis of the evidence beforethe motions judge, they must show that there is a triable issue which realistically could result in a judgment in their favour. They mustshow that their claim has an “air of reality” to it.

Once the moving party has met its initial burden, more than a theoretical possibility ofsuccess is required for the plaintiffs to defeat the

summary judgment motion. There must be sufficient evidence on the record to enablethe court to conclude that the plaintiffs have a real chance of success. See Manitoba Hydro Electric v. Inglis (John) Co. et al. (1999), (MB CA), 142 Man.R. (2d) 1; 212 W.A.C. 1 (C.A.). 34 In Manitoba Hydro Electric Board v. John Inglis Co. Limited et al., 2000 MBQB 218, MacInnes J., as he then was,explained (at para. 20): … [O]n a

summary judgment motion I am to review all of the evidence before me. That includes considering credibility, where possible,not for the purpose of weighing the evidence to determine whether the plaintiff will or will not succeed in its litigation, that is, whetherits case passes muster on a balance of probabilities, but rather to determine whether the case has a realistic chance of success. And, inthis context, “real” is not intended to establish a level of probability.

Rather, it is to denote a realistic rather than theoretical prospect ofsuccess; in other words, the plaintiff’s case, when held up to scrutiny in light of all of the evidence available for consideration on themotion, must have an air of reality to it and not be merely the product of wishful, fanciful or imaginative thinking on the part of the

plaintiff. 35 Another significant factor, as noted in Homestead Properties, is the deference due by an appellate court to a discretionaryorder such as this one. This reality was addressed head on in Towers Ltd. Freedman J.A., for the court, after first noting that the twocritical decisions on an application for

summary judgment were whether the moving party had made out a prima facie case and, if so,whether the responding party had met the shifted burden of establishing there was still an issue for trial, wrote (at para. 24): …. Each of those two decisions required the judge to apply his judicial experience and expertise to all the relevant facts and applicablelaw and then to make a judgment as to whether the required burden of proof had been met.

He then went on to note (at para. 25): A discretionary decision such as described above is reviewed on appeal according to a highly deferential standard, often described in thisway; see Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367; 96 N.R. 165 (at p. 1375): ... [A]n appellate court will be justified in intervening in a trial judge’s exercise of his discretion only if the trial judge misdirects himselfor if his decision is so clearly wrong as to amount to an injustice. ...

Thus, the result of this “judicial reasoning process is a decision with which an appellate court ought not to interfere except in the clearestof cases” (at para. 27). 36 Finally, and most importantly for our purposes (at para. 28): The standard for intervention in a discretionary decision is very high. It is not enough that the appellate judges think the trial (ormotions) judge simply reached a wrong result; there rarely is, in truly discretionary matters, a “right” or “wrong” result.

It is not enoughthat the appellate judges would have decided differently; they are to respect, and not replicate, the unique role of trial judges. Assumingthere have been no reversible errors on fact or law, the appellate judges are not to usurp the trial judge’s role in discretionary matters,barring a decision so “clearly wrong” as to yield a truly unjust result. 37 Thus it can readily be seen that the burden on an appellant before this court in a Rule 20

summary judgment application is ahigh one indeed. Applying the above principles to the facts before us, I conclude as follows. 38 First, with respect to the claim for damages, I believe, not without reservations, that this aspect of Bodnarchuk’s claimshould be permitted to proceed to trial.

The supporting medical evidence for this claim is demonstrably not strong; but I cannot say thatthe experienced motions court judge erred in fact or in principle or that her decision is “so ‘clearly wrong’ as to yield a truly unjustresult” in her determination that there was a sufficient prospect of success, based on Bodnarchuk’s factual assertions. The fact that Imight well have exercised the discretion differently is of little moment.

As we have seen in Bridgwater, Rule 20 is not a shortcut to denya plaintiff with an apparently real case of his/her day in court. 39 But, I come to the opposite conclusion with respect to Bodnarchuk’s claim with respect to the asserted diminution of hiscompensation under the SAA by virtue of the alleged reduction in his book of business. Here, in my opinion, the motions court judgeerred in failing to appreciate that there was, simply, no hard evidence to support Bodnarchuk’s assertion.

Unlike the claim for damages,where some factual detail was provided, the court has only Bodnarchuk’s “belief” of the impact of David Sain’s alleged actions,decisively negated by Sain’s complete denial in his subsequent affidavit. As was stated by Helper J.A. in Atlas Acceptance Corp. Ltd. etal. v. Lakeview Development of Canada Ltd. et al. (1992), (MB CA), 78 Man.R. (2d) 161 (C.A.) (at para. 35): It is not enough for a party opposing a motion for

summary judgment to avert to evidence that may be forthcoming at trial to support itsclaim. The affidavit evidence must establish that the evidence upon which the party relies does in fact exist and, if accepted, willestablish the claim presented. …. 40 In the result, there is, at best, only a “theoretical possibility” that this latter claim might succeed.

I am left with theconclusion that the motions court judge either failed to apply the mandated “good hard look” or erred in principle in concluding thatthere was any air of reality left with respect to this aspect of the claim. 41 Accordingly, the appeal is allowed with respect to this latter claim, but is otherwise dismissed. As success is divided, therewill be no award of costs to either party. C.J.M.

I agree: J.A. I agree: J.A.