) ) THE BANK OF NOVA SCOTIA Plaintiff – v. –, 2013 ONSC 4701

CITATION : The Bank of Nova Scotia v. Douglas P. Shields, 2013 ONSC 4701 COURT FILE NO.: 13-57013 DATE: 2013/07/11 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) THE BANK OF NOVA SCOTIA Plaintiff – and – DOUBLAS P. SHIELDS and PATRICIA A. SHIELDS Defendants ) ) ) ) ) ) ) ) ) Meghan E.W. O’Halloran, for the Plaintiff Self Represented ) ) ) HEARD: July 9, 2013 REASONS FOR JUDGMENT Kershman J. [ 1 ] This motion is brought by the Plaintiff for

summary judgment against the Defendants jointly and severally for liquidated damages in the amount of $46,033.24 based on a Scotialine Visa, together with prejudgment and post judgment interest thereon at the contractual rate of 11% per annum from March 8, 2013 to the date of payment. [ 2 ] A Statement of Defence was filed in the action. No affidavit materials were filed by the Defendants on the

Summary Judgment motion and they did not appear at the motion. [ 3 ] The Court finds that the facts are as set out at paras. 2-14 of the Plaintiff’s factum. [ 4 ] A Statement of Defence was filed by the Defendants stating that they have no knowledge of any of the allegations in the Statement of Claim. [ 5 ] The Statement of Defence goes on at para. 4 to say the following: 4. January 2010 my pay was reduced to 75% of 100%. April 28/2012 went on LTD which is 65% of my 100% pay. August 2012 our daughter wrote off our car and the amount left owing for us to pay was $6200 and we had no vehicle. ISSUE: IS THIS AN APPROPRIATE CASE FOR

SUMMARY JUDGMENT The Law

Test for

Summary Judgment [ 6 ] In Combined Air , the Court of Appeal for Ontario clarified the terms of the scope of the amended Rule 20 of the Rules , which govern motions for

summary judgment. The court introduced a “full appreciation test” and provided guidance on the circumstances in which it would be appropriate for a court to resolve issues on a motion for

summary judgment. [ 7 ] At paras. 38-39, of Combined Air , the court stated: “[t]he guiding consideration is whether the

summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. … This pivotal determination must be made on a case-by-case basis.” [ 8 ] The full appreciation test is set out in Combined Air , at para. 50, as follows: In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of

summary judgment, or can this full appreciation only be achieved by way of a trial? [Emphasis added.] Motion for

Summary Judgment: Application of the “Full Appreciation Test” - Analysis [ 9 ] On a motion for

summary judgment, the judge must use the full appreciation test before deciding whether to weigh the evidence, evaluate credibility, or draw reasonable inferences from the evidence. [ 10 ] In the court’s view, the full appreciation of the evidence and the issues can be achieved by way of

summary judgment in this case. A trial is not required in the interests of justice. [ 11 ] The court has reviewed the Statement of Defence and does not find any genuine issues requiring a trial. [ 12 ] The court finds that the allegations as set out in the Statement of Defence are without merit. They are only bald statements. Furthermore, the Defendants have failed to provide any responding materials on this motion. [ 13 ] The Defendants have not put their best foot forward with respect to the existence or non-existence of the material issues to be tried as required by Combined Air , at para. 56.

The Defendants are not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. [ 14 ] There is no conflicting evidence before the court. The attributes of the trial process are not necessary to enable this court to fully appreciate the evidence and the issues in this case. The court can accurately weigh and draw inferences from the evidence without the benefit of a trial narrative, without the ability to hear the witnesses and without the assistance of counsel. [ 15 ] The court finds that there are no material facts in dispute.

Even if there are facts in dispute, they do not reach the level of material facts in dispute and as such, do not raise a genuine issue necessitating a trial. [ 16 ] The Plaintiff shall have judgment against the Defendants jointly in the amount of $46,033.24 together with pre-judgment and post-judgment interest thereon at the contractual rate of 11% per annum from March 8, 2013 to the date of payment.

Costs [ 17 ] The Plaintiff was successful on the motion and should be entitled to its costs. [ 18 ] The court fixes the Plaintiff’s costs payable by the Defendants jointly and severally on a partial indemnity basis at $2,250.00 inclusive of HST and disbursements. The Defendants are required to pay these costs prior to taking any further steps in this litigation. [ 19 ] The Plaintiff shall be entitled to take out the order on this motion without having the Defendants approve the order as to form and content. [ 20 ] Order accordingly. Kershman J. Released: July 11, 2013

CITATION : The Bank of Nova Scotia v. Douglas P. Shields, 2013 ONSC 4701 COURT FILE NO.: 13-57013 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: THE BANK OF NOVA SCOTIA Plaintiff – and – DOUBLAS P. SHIELDS and PATRICIA A. SHIELDS Defendants REASONS FOR JUDGMENT KERSHMAN J. Released: July 11, 2013