Friday, August 22, 2014

Civil Summary Judgment

Density Group Limited v. HK Hotels LLC, 2014 ONCA 605:


[53]       As noted above, the Supreme Court's decision in Hryniak greatly expands the use of the summary judgment process for the resolution of civil disputes.

[54]       The decision makes it clear that the new fact-finding powers available to judges under Rules 20.04 (2.1) and (2.2) are discretionary and presumptively available: para. 45.

[55]       The Court directs that deference is owed to motion judges on summary judgment motions:

[81] In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference.  When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law, should not be overturned, absent palpable and overriding error [citation omitted].

[82] Similarly, the question of whether it is in the "interest of justice" for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors.  Such a decision is also a question of mixed fact and law which attracts deference.

[83] Provided that it is not against the "interest of justice", a motion judge's decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

[56]       The Supreme Court recognizes at para. 60 of its decision that it may not be in the "interest of justice" to grant summary judgment in favour of a single defendant if the matter must still go to trial: 

… [I]f 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.

[57]       On the other hand, summary judgment may be appropriate even if some claims must still proceed to trial, as was the case in Hryniak itself. The Court recognizes that "the resolution of an important claim against a key party could significantly advance access to justice": para. 60.

[58]       The Court also notes that "[p]rompt judicial resolution of legal disputes allows individuals to get on with their lives": para. 25. 

Friday, August 15, 2014

Happy Day

Judges limited to issues properly before them

Iskander v. BMO Nesbitt Burns Inc., 2014 ONCA 582:

[2]          On his own motion, the application judge determined that there was no basis in law for BMO to withhold tax. He erred in so holding. That issue was not before him and this was not the appropriate forum to make that determination:Tax Court of Canada Act, R.S.C. 1985, c. T-2. S. 12.

Friday, August 8, 2014

Cutest of cute

Bai Yun and Yun Zi - photographer unknown

Contract interpretation a question of mixed fact and law

In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 the Supreme Court has changed a long held view that contractual interpretation raises a question of law. The Court does so on the basis, in part, that when the rule was created jurors were often illiterate. 

Some might wonder at how illiterate an English commercial jury of the 1700s was?  Indeed, some might suggest such juries might have greater literary expertise than a typical modern Canadian jury. 

Regardless the change has been made:

[43]                          Historically, determining the legal rights and obligations of the parties under a written contract was considered a question of law (King v. Operating Engineers Training Institute of Manitoba Inc., 2011 MBCA 80, 270 Man. R. (2d) 63, at para. 20, per Steel J.A.; K. Lewison, The Interpretation of Contracts (5th ed. 2011 & Supp. 2013), at pp. 173-76; and G. R. Hall,Canadian Contractual Interpretation Law (2nd ed. 2012), at pp. 125-26). This rule originated in England at a time when there were frequent civil jury trials and widespread illiteracy. Under those circumstances, the interpretation of written documents had to be considered questions of law because only the judge could be assured to be literate and therefore capable of reading the contract (Hall, at p. 126; and Lewison, at pp. 173-74).


[50]                          With respect for the contrary view, I am of the opinion that the historical approach should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.

Wednesday, August 6, 2014

Implied term of contract

First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2014 ONCA 573:

[49]   Fifth, the application judge effectively implied a term where the normal conditions for doing so are not met. A court may imply a term in a contract where doing so is necessary to give effect to the intention of the parties and to give business efficacy to the agreement: see M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, at paras. 27-29. Further, it must be obvious that the parties intended the contract to include such a term before a court will imply it.