In this case, the Plaintiffs brought an action with respect to an altercation that occurred at the premises of the Defendant, Calypso Theme Waterpark. One of the Defendants acknowledged being present at the park at the time of the altercation but claims that he had nothing to do with the assault of the Plaintiffs. Instead, he claims to have been the subject of a separate assault occasioned by the uncle of the Plaintiffs.
More than five years after this action was commenced, the Defendant brought a motion for summary judgment. Although all of the Defendants had filed statements of defence, the Defendant in question and the corporate Defendant were the only two parties who continued to defend the action since the pleadings were closed.
Motions Judge’s Decision
Justice Williams of the Ontario Superior Court referenced the principles from Hryniak v. Mauldin, 2014 SCC7, concluding that there was no genuine issue requiring a trial in respect of the claim against the Defendant and that the claim against him should be dismissed.
Justice Williams relied on the fact that the Plaintiffs did not identify the Defendant as one of the individuals involved in the assault. The Plaintiffs argued that evidence might be available at trial that would identify the Defendant, such as that of the other individual Defendants, but the motion judge was not satisfied. Justice Williams stated that on a motion for summary judgment, the responding party may not rely on the prospect of additional evidence that may be tendered at trial; the responding party must put their best foot forward.
Finally, the motion judge rejected any concern with respect to the fact that this was a partial summary judgment motion. She found that there was no risk of inconsistent findings being made when the balance of the action was tried.
The Appeal – Key Takeaways
Justice Nordheimer stated that the motion judge’s decision reflected both errors of law and fact. Justice Nordheimer argued that summary judgment was an inappropriate avenue to pursue given the nature of the claim. Further, the fact that the motion was brought five years after the commencement of the action was a factor that ought to have been weighed when determining whether the motion for summary judgment was appropriate.
The Court of Appeal overturned the summary judgment decision for multiple reasons. Justice Nordheimer began his analysis by arguing that the evidence before the Court was not proper.
The moving Defendant used affidavits from his lawyer’s assistant and clerk to put his discovery transcript into evidence and to put in a number of statements given to police. The affiants were not in a position to give statements arising from information and belief because they could not form a belief about the accuracy of the witness statements. Further, attaching the discovery transcript of the moving Defendant was improper because r. 39.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that the Defendant could not use his evidence in support of his motion. Justice Nordheimer stated that an adverse inference should have been made against the Defendant for not submitting an affidavit in his name.
With the discovery transcript and hearsay evidence removed from the record, there was insufficient evidence on which the motion judge could reach a fair and just determination on the merits.
Justice Nordheimer’s second reason for overturning the summary judgment was that the motion judge reversed the burden, requiring the Plaintiff to prove that the moving Defendant was not one of the assaulting parties. The motion judge should have looked to the Defendant to prove that he was not an assaulting party, and the evidence properly before the Court did not satisfy that burden.
Justice Brown in Sanzone v. Schechter, 2016 ONCA 566 stated the following with respect to the evidentiary burden:
First, the evidentiary burden on a moving party defendant on a motion for summary judgment is that set out in rule 20.01(3) – “a defendant may… move with supporting affidavit material or other evidence.” As explained in Connerty, at para. 9, only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.
The motion judge erred in skipping over the moving Defendant’s initial burden and moving straight to the Plaintiffs’. In doing so, she improperly shifted the burden of proof onto the Plaintiffs to prove their case before the moving Defendant had proven his.
The third reason for overturning the summary judgment was because the decision granted partial summary judgment when it should not have been granted. Allowing the result to stand would allow the remaining Defendants to point the finger at the moving Defendant.
Finally, the motion was brought five years after the action was commenced. Given the length of time that had passed, Justice Nordheimer argued that the motion judge should have dismissed the motion and assisted the parties in moving the matter to trial.
Justice Nordheimer allowed the appeal, set aside the judgment, and granted an order dismissing the summary judgment motion.