) ) MARK C. STEVER Plaintiff – v. –, 2013 ONSC 6395

CITATION : Stever v. Rainbow International Carpet Dyeing & Cleaning Co., 2013 ONSC 6395 DIVISIONAL COURT FILE NO.: 274/13 COURT FILE NO. : CV-12-445000 DATE: 20131025 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) MARK C.

STEVER Plaintiff – and – RAINBOW INTERNATIONAL CARPET DYEING & CLEANING CO., FREDERICK ROSEN, CLIFF ALBERTI and JOHN APPEL Defendants )) )) )) )) )))))))) David Keith Alderson , for the Plaintiff Tariq Remtulla , for the Defendants, Rainbow International Carpet Dyeing & Cleaning Co. and John Appel No One appeared for the Defendant, Frederick Rosen The Defendant, Cliff Alberti, was noted in default ) ) ) HEARD: July 24, 2013 LEDERER J. : [ 1 ] This is a motion, brought by the plaintiffs, seeking leave to appeal the order of a judge made in the context of a

summary judgment motion. The action was commenced on January 26, 2012. During August 2012, the defendants attended at motions scheduling court to set a date for the

summary judgment motion. The motion was to be heard on June 10 and 11, 2013. [ 2 ] On December 3, 2012, the plaintiff brought a motion to set aside the date on the basis that it was premature. The motion should not be heard until discoveries had been completed. The motion was refused and the date left in place. [1] Dissatisfied with this result, the plaintiff moved, on March 12, 2013, for leave to appeal. It was argued that, without discovery, the plaintiff was in no position to “put his best foot forward” on the motion for

summary judgment. The motion for leave to appeal was dismissed. [2] The requirements of rule 62.02(4) were not met. There was no conflicting decision and no good reason to doubt the correctness of the order. [3] [ 3 ] Undeterred, the plaintiff, on June 7, 2013, brought a motion to strike the Statements of Defence on the basis that the defendants had not engaged in the discovery process. In the alternative, an order was sought to dismiss the motion for

summary judgment or to have that motion adjourned sine die until the defendants agreed to engage in the discovery process. The Master, who was to deal with the motion, ruled that she was without jurisdiction to grant the requested relief. [ 4 ] The plaintiff did not give up. At the outset of the

summary judgment motion, he sought to have it adjourned until the defendants delivered affidavits of documents and agreed to submit to examination-for-discovery. The motion judge refused, deciding instead to hear the motion for

summary judgment on its merits. Following the submissions of counsel, the judge held that the motion was premature. He adjourned the motion. He ordered the defendants to provide an Affidavit of Documents, to attend at examinations-for- discovery and that new evidence that came from the discoveries could be relied on for the purposes of the motion. [4] [ 5 ] It is this order that the plaintiff seeks leave to appeal. [ 6 ] Motions for

summary judgment are intended to expedite the resolution of disputes where this can be accomplished without reliance on the trial process. They are not intended to be an inherent part of every action, a step to be taken on the way to trial and are

not, properly utilized, to be the subject of tactical considerations. (If we bring a motion and take up more time and money maybe the other side will settle.) Motions of this kind are designed, where they can, to arrive at a resolution. They are not to be refused by an overly-technical reliance on a narrow set of operating principles. In short, the judge remains in control of the process. Where it is apparent that the action, or an issue within the action, can be resolved on a motion for

summary judgment, it should be. [ 7 ] The judge who considered the request for leave to appeal the initial refusal to stay the motion for

summary judgment understood that taking up time with an appeal would detract from the purpose of arriving at a speedy resolution: …Concerns regarding the proportionality of the process and the most efficient use of limited judicial resources underlie a motion to stay a

summary judgment motion. A further expenditure of resources to determine whether this particular

summary judgment motion should proceed is not desirable. The plaintiff will have ample opportunity at the

summary judgment motion to address whether the judge is in a position to obtain a full appreciation of the evidence and the issues. [5] [ 8 ] The Master who was to hear the motion to strike the Statements of Defence speculated that it was brought for “strategic reasons”. (It should be said that the judge who heard the motion for

summary judgment, “on reflection”, did not agree.) [6] [ 9 ] For their part, the defendants do not appear to have been interested in respecting the purpose behind a

summary judgment motion and acting to move this action to an expeditious end: …the non-production by the Defendants at this stage, and the fact that they have put forward a legal assistant from their counsel’s law firm as their sole affiant in support of

summary judgment, makes me pause. The Defendants seek to end the case having produced nothing and having proffered no witnesses. [7] [ 10 ] The merits of the motion for

summary judgment having been argued, the plaintiff did not feel constrained by the fact that, at long last, he had an order providing that discoveries would take place before the issue of

summary judgment would be dealt with. On this motion, leave to appeal was requested on the grounds that the motion judge, upon finding that the defendants did not satisfy the evidentiary obligations, erred in law in failing to dismiss the motion for

summary judgment. The defendants had failed to put “their best foot forward” [8] . The plaintiff says it was an error for the judge to provide the defendants with an opportunity to correct the deficiencies in their litigation strategy. It is the moving parties’ obligation to satisfy the judge that he or she has the “full appreciation” of the evidence and issues before him or her that is a necessary prerequisite to granting

summary judgment. [9] The plaintiff relied on the idea that, “[a] party who moves for

summary judgment must be in a position to present a case capable of being decided on the paper record before the court.” [10] If the moving party fails to present such as case, the plaintiff believes the motion must be dismissed. [ 11 ] As a general rule, I would agree. To begin with, the Rules of Civil Procedure [11] envisage motions for

summary judgment being supported by affidavit material or other evidence: 20.01

(1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for

summary judgment on all or part of the claim in the statement of claim. [Emphasis added] [ 12 ] The moving party cannot avoid contributing to an understanding that there is a “genuine issue requiring a trial” [12] by failing to provide an affidavit, not being subject to cross-examination and still expect to succeed on a motion for

summary judgment. This is the sort of tactical consideration that detracts from the proper use of the authority of the court to grant

summary judgment. [ 13 ] The plaintiff relied on Belende v. Patel [13] . The purchasers of land, pursuant to a power of sale, were sued by the previous owner of the property, the mortgagor who had gone into default. The purchasers moved for

summary judgment saying that their title could not be questioned as a result of the operation terms of the Mortgages Act which served to protect them as bona fide buyers. [14] The mortgagor believed they were not. He alleged that the purchasers had colluded with the bank in the illegal purchase of the property.

The purchasers had knowledge of a pending motion brought by the mortgagor to deal with his right to redeem which, he argued, was continued by the failure of the mortgagee (who I take to have been the bank) to provide a statement, in writing, of the amount that was owing. [15] The motion judge referred to the absence of any material being filed by the purchasers in support of their motion for

summary judgment: Their Motion was based on no evidence, as they did not file any supporting affidavits to attest to the documents upon which they relied. [The mortgagor] did file affidavit evidence which contained allegations against the Purchasers, which was not tested in cross-examination or contradicted by the Purchasers. They have not met their obligation to satisfy the court that there are no genuine issues for trial. [16] [ 14 ] The plaintiff also referred to Fasken v.

Times/System International APS. [17] Understanding that it was for her company, the plaintiff had picked up a shipment from a customs broker. The police were advised that the goods had been obtained by her company, without authority. She was arrested and taken into custody. After she agreed to return the shipment she was released. The plaintiff sued for false imprisonment. The defendant, the company to whom the goods were consigned, brought a motion for

summary judgment. The court concluded that it was free to draw inferences that the plaintiff was unable to provide the facts necessary to support her claim: The plaintiff submitted no evidence other than the pleadings contained in her statement of claim and the cross-examination of Constable Poffley on his affidavit.

In my view, the Court is free to draw the inference that the plaintiff is unable to attest to such facts as are required to make out her claim from her failure to submit affidavit material as required by r. 20.04(1) of the Rules of Civil Procedure . [18] [ 15 ] The rule, these and other cases, as well as the obligation of the parties to “put their best foot forward”, demonstrate the importance that evidence be provided so that, when the motion comes to court, a proper and expeditious decision can be made. If the process of

summary judgment motions commonly allowed a party that had failed to provide the evidence that was required, to go back and try again, the decision of what evidence was to be included would become a strategic consideration for the moving party. It would remove the openness a

summary procedure, by its nature, requires and would take away from the fundamental goal of an efficient, but

proper, decision being made without the need to go to trial. [ 16 ] Having said this, there will be circumstances where it is apparent to the judge hearing the motion that the goals of a

summary judgment motion are readily achievable, but the prerequisites are not satisfied. What happens then? [ 17 ] In this case, the

summary judgment motion asserts that a consideration of the applicable limitation period demonstrates the action is out of time. The agreement, which is the foundation of the relationship between the parties, was signed in 1995. In December 2001, the plaintiff ceased performing his obligations under the agreement. During July 2003, the corporate defendant purported to terminate the agreement. The plaintiff did not accept the termination. Between July 2003 and October 2009, there was no communication between the parties.

During October 2009, the corporate defendant became aware that the plaintiff was using its trademarks. It wrote demanding that he stop. The plaintiff refused and, in November 2011, the defendants commenced an action in Federal Court for trade-mark infringement. Only then, on January 26, 2012, did the plaintiff commence this action.

From this, it is not hard to see the basis for the motion judge’s observation that: …[t]he Defendants have put forward a strong argument that the limitation period has passed, based on the pleadings and the limited record. [19] On the other hand: In my view, however, it is dangerous for a motions judge to grant

summary judgment and dispense with a party’s rights in a final way in the absence of any evidence from the moving party… [20] He noted: …[T]he Plaintiff’s position is that the ultimate limitation period has not elapsed, and that the discoverability doctrine is engaged, if the franchise contract between the parties was renewed and is ongoing due to a course of conduct by the parties over time.

Given this position, some evidentiary record appears necessary. [21] [ 18 ] The motion judge recognized that the defendant might not have any evidence that would sustain the position of the plaintiff: It may be, of course, that there is simply no evidence anywhere – including in the Defendants’ files – that supports the Plaintiff’s claim.

The terms of the renewed contract that the Plaintiff submits were put in place, which include the Plaintiff being permitted to continue to run his franchise without paying any royalties to the Defendants, suggests that the Defendants may turn out not to have anything in their possession that supports the Plaintiff. [22] But he could not be sure: Likewise, the fact that the Plaintiff apparently has not heard from the personal Defendant John Appel since 1995 suggests that his limitation defense may turn to be a cogent one. [23] [ 19 ] In adjourning the motion to allow for discoveries to be completed, the judge was doing nothing more than seeking to be certain that the evidence was as it seemed, that is, the limitation period had long since expired. [ 20 ] The plaintiff submits that it was not open to the motion judge to do this.

In his view, the judge’s concern was an admission that, on the record, as presented, he could not have a full appreciation of the case. In such circumstances, the defendants had not “put their best foot forward”, no new evidence should be received, the motion should have been dismissed and the action left to proceed to trial. [ 21 ] This position loses sight of the purpose of a motion for

summary judgment. It proposes that, if determining whether there is evidence directed to a narrow point that may resolve the action, it should, nonetheless, be left to proceed to trial rather than be certain that there is a purpose in doing so. This is the blind adherence to an operating principle without considering the impact on the overall goal. The injunction to put your best foot forward is directed to the risk of losing if you fail to do so.

You may lose, but it does not mean you will lose. [ 22 ] In the circumstances, the judge exercised his discretion to allow a point that was raised through the submissions to be fully canvassed to see if, in the result, the action would be resolved without the need to proceed to trial. The court is loath to question an exercise of discretion. There is no reason to do so here. [ 23 ] Motions for leave to appeal are brought and considered pursuant to rule 62.02(4).

Leave to appeal will only be granted where there is a conflicting decision or where there is good reason to doubt the correctness of the order being questioned. Where the former is relied on, the judge must go on to decide whether it is desirable for leave to be granted. If the latter is the basis for the motion, a determination must be made that the proposed appeal involves matters of such importance that, in the opinion of the judge, leave should be granted. [24] [ 24 ] This was an exercise of the discretion of the motion judge to control the process for which he was responsible.

If there are cases which appear to conflict, it is because the circumstances were different or the judges involved saw them differently. There is no reason to doubt the correctness of what the motion judge has done. This is not a matter of such importance that leave to appeal should be granted. It is not desirable that the order requested be made. It would take up more time and any benefit attributable to the motion for

summary judgment would be lost. It would be better if discoveries were completed and the motion renewed to determine if a trial is necessary. [ 25 ] For the reasons reviewed herein, the motion is dismissed. [ 26 ] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following

terms: 1. On behalf of the defendants, within fourteen days of the release of these reasons; such submissions are to be no longer than four pages, double-spaced, exclusive of any Bill of Costs or Cost Outline and case law that may be provided; 2. On behalf of the plaintiff, within ten days thereafter; such submissions are to be no longer than four pages, double-spaced, exclusive of any Bill of Costs or Cost Outline and case law that may be provided; and, 3. If necessary, on behalf of the defendants, in reply, within five days thereafter; such submissions are to be no longer than two pages, double-spaced.

LEDERER J. Released: 20131025 CITATION : Stever v. Rainbow International Carpet Dyeing & Cleaning Co., 2013 ONSC 6395 DIVISIONAL COURT FILE NO.: 274/13 COURT FILE NO. : CV-12-445000 DATE: 20131025 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEDERER J. BETWEEN: MARK C. STEVER Plaintiff – and – RAINBOW INTERNATIONAL CARPET DYEING & CLEANING CO., FREDERICK ROSEN, CLIFF ALBERTI and JOHN APPEL Defendants JUDGMENT LEDERER J. Released: 20131025