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Careful consideration should be given to whether or not to move for Summary Judgment or to proceed to trial in the normal course.

 

The question of when and whether to move for summary judgment requires a lawyer to advise on the risks and merits associated with such a motion. Some of the considerations that a solicitor must canvas with the client are as follows:

1. The legal costs, since if a summary judgment motion is not successful in spite of the cost consequences which may follow from the summary judgment motion itself, there will most certainly be duplicated costs associated with a trial thereafter.  The costs associated with such a motion can near the same as the costs of a full trial;   
2. Obviously the legal test for summary judgment and whether it applies to the client's particular set of facts and circumstances;    
3. The objective or end goal of the client;    
4. A clear understanding of the client and managing his/her expectations as against the potential outcome; and   
5. A clear understanding of all the potential consequences of the summary judgment, and how he/she will be affected win or lose.

Summary Judgment: Rule 20 amendments

 

Summary judgment motions require an in-depth risk analysis. The summary judgment motion procedure is governed by Rule 20 of the Ontario Rules of Civil Procedure. On January 1, 2010, Rule 20 was substantially amended.  The amendments created new considerations and expanded the powers of the court. 

 

Prior to January 1, 2010, sub rule 20.04(2) stated that: "the court shall grant summary judgment if ... there is no genuine issue for trial with respect to a claim or defence..."

 

The test is whether there is a genuine issue of material fact that requires a trial for its resolution: Aronowicz v. EMTWO Properties Inc., [2010] O.J. No. 475 (Ont. C.A.) at para. 15. The Supreme Court of Canada in Papaschase Indian Band No. 136 v. Canada (Attorney General), [2008] 1 S.C.R. 372 (S.C.C.) at para. 10-11 summarized the purpose of the summary judgment rule which survives the 2010 amendments.

 

The phrase "no genuine issue for trial" was interpreted strictly to mean "no chance of success." Rule 20 was also previously interpreted to preclude the ability of a judge to weigh evidence, draw inferences or assess credibility.

 

Post January 2010, the court enjoys a wider range of powers to dispose of issues on a motion including to require a mini-trial, or issue orders to effectively "case manage" an action through to a trial. A judge now has the power to order a "summary trial" after a summary judgment motion.  The amendments seem to permit a more meaningful review as opposed to changing the actual test for summary judgment itself. 

 

Under Rule 20.02(2) the court shall grant summary judgment if "satisfied that there is no genuine issue for trial with respect to a claim or defence."  Rule 20.02(2.1) describes the powers of a judge on a motion under Rule 20 which states as follows: "in determining under clause 2(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

 

(1) weighing the evidence;

(2) evaluating the credibility of a deponent; and

(3) drawing any reasonable inference from the evidence.

 

The onus is on the moving party to show there is no genuine issue requiring a trial.  A responding party must present its best case or risk losing.  The court is entitled to assume that the parties have respectively advanced their best case, and that the record contains all the evidence that the parties respectively will present at trial.

 

Therefore, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving parties' evidence or risk a successful summary judgment.  

 

Having regard to the new powers of the Court, to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, the moving party must provide a level of proof that demonstrates to the motion judge that a trial is unnecessary to truly, fairly and justly resolve the issues: Healy v. Lakeridge Health Corp., [2010] O.J. No. 417 (Ont. S.C.J.). The motion judge must take a hard look at the evidence to determine whether it raises a genuine issue requiring a trial: Rozin v. Ilitchev (2003), 66 O.R. (3d)( 410 (Ont. C.A.) at para 8. [1]

 

The test for summary judgment motions under the new Rule 20 was discussed in Canadian Imperial Bank of Commerce v. Mitchell, 2010 CarswellOnt 2137 (Ont.S.C.J.). In that case, Quigley J. cited with approval the recent decision of Karakatsanis J. in Cuthbert v. TD Canada Trust, 2010 ONSC 830 (Ont. S.C.J.) and stated as follows: "the changed wording in the Rules, combined with the powers granted to the motions judge to make evidentiary determinations, necessarily permits a more meaningful review of the paper record and expressly permits the motions judge to make evidentiary determinations and credibility findings ... This ... will now override the jurisprudence that sought to prevent a judge from making such determinations.  As a result, consistent with the new principle of proportionality in the rules, cases or issues need not proceed to trial unless a trial is genuinely required. [2]

 

The common theme in the Ontario cases post 2010, seems to focus on the summary judgment rule as a means to dispose of an action where it can be shown that a trial is not necessary. [3]

 

As surmised above, the amendments to the Ontario Rules of Civil Procedure do not change the burden in a summary judgment motion. The moving party still bears the evidentiary burden of showing there is no genuine issue requiring a trial.  Consistent with the established jurisprudence prior to the 2010 amendments, each side must "put its best foot forward." [4]  Therefore, in response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest on the mere allegations or denials of the parties' pleadings, but must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. [5]

 

The Purpose of Rule 20

 

The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. [6]

For this reason, the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is "no genuine issue of material fact requiring trial": Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46 - 47. If the defendant does prove this, the plaintiff must either refute or counter the defendant's evidence or risk summary dismissal: Murphy Oil Co. v. Predator Corp. (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff'd (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30. [7]

 

Ontario Cases Post January 1, 2010

 

Some procedural clarification has come from a few estate summary judgment motions which have been tried post the 2010 amendments.  Moreover, some of the legal principles upon which estate matters can be tried by way of summary judgment, have also been clarified by some of the post 2010 decisions. Still, though in addition to the amendments to the rule bringing a more meaningful, analytical review of the paper record by the court, the risks associated with a summary judgment motion, in my view, continue, given my review of a smattering of the estate cases post 2010. I will comment on seven estate summary judgment motion decisions post 2010, and one more civil case.

 

 

(i) Smith Estate v Rotstein [8]

 

Will Challenges

 

Justice Brown's decision in Smith Estate v. Rotstein was instructive from the perspective of answering the question of whether summary judgment is available in Will challenge proceedings. 

 

It was argued that the availability of summary judgment is especially limited in probate cases, because a probate judgment operates in rem and the court's responsibility to the testator requires judicial inquisitorial features "which command a full evidential record."  [9]

 

At paragraph 34 of the judgment, the court, in clarifying the question noted: "about a decade ago some questions existed about the availability of summary judgment in will challenge cases, especially after an Order Giving Directions has been made.  Those questions no longer exist. First, a common practice has emerged to include a provision in an Order Giving Directions, that a party may bring a motion for summary judgment. More importantly, subsequent case law clarifies that summary judgment is available in Will challenge cases.  As was recently clarified by the Court of Appeal in Travica v. Mailloux [10] "the rules contemplate the possibility of summary disposition in contentious estate matters."

 

Justice Brown opined that while it is true that a probate judgment operates in rem, that distinction simply signals that a motions court should adhere to the directions given by appellate courts, that it gives the record a "hard look" before granting summary judgment. [11]

 

Moreover, Justice Brown had a look at the Ettore [12] decision of Cullity J. which stressed the need for a "full evidential record" on a motion for summary judgment in contested Will cases.  Nevertheless, the general case law concerning summary judgment motions has also stressed the need for the parties to "lead trump" and the court expects that on a motion for summary judgment, of whatever nature, the parties will adduce all the evidence one could expect to see at trial. [13]

 

Justice Brown helpfully states at paragraph 37 of his judgment as follows:  "New Rule 20.04(2.1), which expands the powers of the motions judge to weigh evidence, highlights the need for a full evidential record in all cases by providing that judges may exercise their enhanced powers "unless it is in the interest of justice for such powers to be exercised only at a trial". Lack of completeness of the evidentiary record, then, may play a factor in any summary judgment motion - probate or otherwise - in deciding whether or not to send the matter to trial." [14]

 

The conclusion of the analysis of Justice Brown confirms the availability of summary judgment in Will challenge proceedings.

 

Notice of Objection

 

Justice Brown also addressed the issue of Notices of Objection and the availability of a summary judgment motion at paragraph 40 of this judgment. His Honour states:  "In a contested will case a motion for summary judgment may be brought before or after a motion for an order giving directions under Rule 75.06. In the latter case, an order giving directions typically requires the parties to exchange pleadings, and those pleadings, in turn, define the claims, issues and material facts in support thereof. A summary motions judge can then assess whether material facts are in dispute by referring to the issues and material facts contained in the pleadings." [15]

 

"In the present case Himel J. permitted Mr. Smith's summary judgment motion to proceed before Ms. Rotstein moved for an order giving directions. As a result, the only "pleading" of the objector, so to speak, is her notice of objection. Yet the notice of objection in this case provides the court with little guidance about the real nature of the reasons the objector challenges the issuance of a certificate of appointment. In saying that I am not being critical of counsel who drafted the notice; it contains the standard "boilerplate" one sees in typical notices of objection. A practice has developed amongst the Estates Bar of filing boilerplate notices of objection; I think it is an unhealthy practice. Form 75.1, the Notice of Objection, requires an objector to indicate her reason for objecting to the issuance of a certificate and continues: "such as lack of testamentary capacity, undue influence or unfitness to act as estate trustee". Although such language simply illustrates the types of objections which can be made, in practice objectors tend to go no further than to include some, or all, of those general objections in their notice." [16]

 

"Use of such boilerplate, in my view, is inadequate and does not comply with the requirement of Rule 75.03(1) to state the "nature...of the objection". For example, for the objector in the present case to state in her notice that one of the reasons for opposing the issuance of a certificate is that "the deceased was subjected to undue influence" is, with respect, meaningless. Undue influence by whom? When? By what conduct? Answers to those questions would more properly flesh out the "reason" for the objection, as required by Form 75.1 and, as well, identify the "claim" in respect of which summary judgment might be sought. While I will not take into account on this motion the vagueness of the reasons set out by Ms. Rotstein in her notices of objection, I strongly anticipate that in future summary judgment motions under New Rule 20 the failure of an objector to provide detailed reasons for his or her objection may well operate as a factor in a court's assessment of whether a genuine issue requiring a trial exits." [17]

 

To conclude therefore, Justice Brown confirms that a summary judgment motion under Rule 20 may proceed on the basis of a Notice of Objection.

 

Partial Summary Judgment

 

On the issue of the general availability of partial summary judgment in Will challenge proceedings, Smith v. Rotstein also confirms the jurisdiction of the court. 

 

In other words, this summary judgment motion did not relate to prior testamentary documents, whatever the outcome of the summary judgment motion, the parties were prepared to litigate in the ordinary course the validity of certain other testamentary documents.  In this way, the summary judgment motion sought to narrow the scope of the triable issues in the overall proceedings. 

 

However, the respondent on the summary judgment submitted that the form of partial summary judgment is not available. 

 

Justice Brown did not accept this proposition and states at paragraph 46 as follows: 

 

Where an objection to a will involves multiple "claims" regarding its invalidity, I see no reason why partial summary judgment could not be granted dismissing some of the claims provided the result was consistent with the purpose of Rule 20 in removing a discrete issue from the list of those to be tried, thereby shortening the trial. Whether or not to grant partial summary judgment would require an exercise of judicial discretion in the particular circumstances of a case. For example, in Slater v. Slater[18], supra., the court granted summary judgment in respect of some, but not all, issues set out in an order for directions regarding the validity of a will - summary judgment was granted dismissing claims that the will was executed under undue influence or without testamentary capacity, but not granted in respect of a claim of lack of due execution of the will" [19]

 

Despite the view of Justice Brown, it was submitted by the respondent that the court lacks the jurisdiction to grant partial summary judgment on the basis of the following reasons:

 

(i) Since Mr. Smith applied for probate of the Will and the four codicils, the law requires that they be read together;

(ii) The law of republication prevents any grant of partial summary judgment; and,

(iii) Mr. Smith effectively seeks a grant of partial probate on this motion which is not available where there is a will and several codicils. [20]

 

Justice Brown addressed each of these three arguments at paragraphs 49 - 62 of his judgment concluding that the court enjoys the jurisdiction to entertain the motion for partial summary judgment. [21]

 

At paragraphs 176 through 181, Justice Brown reviews in some depth the proof required on undue influence claims, as well as claims where suspicious circumstances have been raised.

 

On the powers of the motion judge, Justice Brown states as follows: 

 

"I would note that on January 1, 2010, Rule 20 was amended to specify that a motions judge could exercise the power of "drawing any reasonable inference from the evidence" in determining whether there was a genuine issue requiring a trial: Rule 20.04(2.1) 3. In my view that amendment did not signal that under Old Rule 20 a motions judge could not draw any inferences of fact - in Guarantee and Papaschase the Supreme Court of Canada clearly stated that a motions judge could make inferences of fact based on the undisputed facts before the court, as long as the inferences were strongly supported by the facts. What Rule 20.04(2.1) 3 adds, in my view, is, the power of the motions judge to draw inferences from disputed facts." [22]

 

And in support of Justice Brown's conclusion, he further states as follows

 

"Finally, guidance on this issue can be found in the recent decision of the Court of Appeal in Travica v. Mailloux, which dismissed an appeal from a motion granting summary judgment dismissing a will challenge. The objector had alleged that suspicious circumstances surrounded the execution of the will and codicil, particularly because of a "presumption of undue influence" that arose between the testatrix and the executor/beneficiaries in light of their status as her lawyer and doctor. In dismissing the appeal Sharpe J.A. wrote:

 

The motion judge concluded that there was an absence of evidence of suspicious circumstances and no triable issue as to the validity of the will. I see no error in the reasons of the motion judge that would justify the intervention of this court. The respondents gave detailed explanations of the circumstances the appellant contends are "suspicious" and, significantly, the appellant offered no evidence to the contrary. In the absence of any evidence to challenge the substantial body of evidence led by the respondents to support the validity of the will, I see no basis for concluding that the motion judge erred in concluding that there remained no triable issue and that it was appropriate to award summary judgment declaring the impugned will to be valid." [23]

 

Appeal Decision

 

The decision in Smith Estate v. Rotstein on the issue of whether the motion judge erred in granting partial summary judgment in respect of some, but not all, testamentary instruments, in contravention of the general rule of probate, was upheld at the Court of Appeal. Indeed, the Court of Appeal concluded:  "In this case, there is not a scintilla of evidence that the validity of the 1987 will and the first two codicils are invalid due to lack of testamentary capacity, lack of knowledge, undue influence or suspicious circumstances.  There is no credible reason to suggest that the will and the first two codicils should not be admitted to probate.  The appellant has no interest in either the third or fourth codicils.  There is no basis to set aside the partial probate on the ground that codicils three and four had not proceeded to probate at the same time as the will and the first two codicils.  Whether they fit into a pre-existing category of exception to the General Rule of Probate is of no consequence." [24]

 

... "In my view, the motion judge appreciated the distinction made by counsel for the appellant.  However, contrary to the appellant's position, he concluded that it was appropriate to order partial summary judgment in the circumstances of this case.  I am unable to say that he erred in so doing." [25]

 

Accordingly the appeal on this question was dismissed. 

 

There was also an appeal with respect to the motion judge's cost award. Leave to appeal was granted in respect of the cost award. [26] In respect of the disposition of the cost appeal, the court set aside the cost award and referred the issue of quantum of the fees claimed to the motion judge for re-assessment.

 

There is a further costs endorsement [27] with respect to the cost of the appeal for which I do not intend to comment on, as the costs treatment of summary judgment motions are not the subject matter of this newsletter.

 

 

(ii) Botnick et al v. The Samuel and Bessie Orfus Family Foundation et al (the "Orfus Estate") [28]

 

The Orfus Estate saw the executors of the Estate of Bessie Orfus bringing a motion for summary judgment seeking the following relief:

 

(a) to set aside and expunge the amended notice of objection of Sharon Gerstein and to dismiss Sharon's will challenge proceedings; 

(b) a declaration that the Primary and Secondary last wills and testaments of the late Bessie Orfus dated May 31, 2004 (the 2004 Wills) are valid;

(c) a declaration that the Codicil to the Secondary Will dated December 13, 2004 (the Codicil) is valid; and,

(d) an order directing that a certificate of appointment of estate trustee with a will be issued to Elaine Orfus, Rachel Wardinger and Myer Botnick in respect of the Primary will, upon the filing of the usual application for a certificate of appointment of estate trustee." [29]

 

This is a case where there was a Notice of Objection and an Amended Notice of Objection which set out the following objections:

 

(a) lacked testamentary capacity at the time the 2004 Wills and Codicil were executed;

(b) did not know and approve of the contents of the 2004 Wills and Codicil; and,

(c) was unduly influenced by Elaine to procure the execution of the 2004 Wills and Codicil. [30]

 

Accordingly the questions for the Court were to decide whether there was a genuine issue requiring a trial of the following issues:

 

(a) did Bessie Orfus have testamentary capacity on:

(i) May 31, 2004; and/or

(ii) December 13, 2004?

(b) did Bessie Orfus know and approve of the contents of:

(i) the 2004 Wills executed by her on May 31, 2004; and/or

(ii) the Codicil executed by her on December 13, 2004? and

(c) did Elaine Orfus unduly influence Bessie Orfus such that:

(i) the 2004 Wills executed by her on May 31, 2004 are invalid; and/or

(ii) the Codicil executed by her on December 13, 2004 is invalid? [31]

 

The Court noted that there were extensive records and affidavits filed as well as several witnesses examined and several transcripts of evidence filed.

 

The Court granted summary judgment concluding that there were no genuine issues requiring a trial with respect to the three questions raised and granted summary judgment.

 

In this case, the respondent argued that summary judgment is reserved only for "loser" cases that have no chance of success. [32] 

 

Moreover, counsel for the respondent argued that there were "serious issues" raised by the Amended Notice of Objection. 

 

The Court did not agree with the respondent's characterization of the summary judgment test. 

 

The Court noted that the mere fact that a party raised serious issues is not enough.  The issues in question must be serious issues of material fact, the resolution of which requires a trial, i.e., the forensic machinery of the trial process. [33]

 

Will Challenges

 

Also, counsel for the respondent argued that summary judgment is not appropriate in Will challenge cases where capacity and undue influence are in issue.  Recall, this is the same position taken with respect to the arguments raised in the Smith v Rotstein summary judgment motion referenced above.  Again, in this case, Justice Penny did not agree.  Justice Penny states: "In every case, the test is the same. The Court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial: Smith v. Rotstein (2010), 56 E.T.R. (3d) 216 (Ont. S.C.), aff'd 2011 ONCA 491 (CanLII), 2011 ONCA 491." [34]

 

Notice of Objection

 

In the end, the summary judgment succeeded in setting aside and expunging the Notice of Objection, declaring the Wills and Codicils valid and directing that a Certificate of Appointment of Estate Trustee with a Will issue.

 

Interim Appeal concerning when Summary Judgment may be pursued

 

In Re Orfus Estate, prior to Summary Judgment motion,leave to appeal from an interim order was sought by the respondent before the Divisional Court on the basis of the Order of Justice Wilson dated July 12, 2010, in which the responding parties were given leave to bring their summary judgment motion before an order for directions had been made.  Recall, I suggested that certain procedural issues were raised by some of the post 2010 summary judgment motions and this is one such procedural issue that was clarified. On the motion, the moving party asserted that there was good reason to doubt the correctness of the order since the judge making the order, lacked the jurisdiction to make it. 

 

Indeed, at paragraph 3 of the judgment, Justice Sachs sets out the following submissions of the moving party: "In making the Order the motion judge relied on and applied the decisions of Himel J. and Brown J. in Smith Estate v. Rotstein. (the decision of Brown J. is reported at [2010] O.J. No. 1527 (Ont. S.C.J.) and the decision of Himel J. was released on October 31, 2008 and is unreported). The Moving Party argues that to the extent that these decisions hold that an order for directions is required before a summary judgment motion can be brought in a contested estate proceeding, those decisions are wrong." [35]

 

The moving parties' submissions were as follows: "... First, she argues that a Superior Court Judge sitting on an estates matter has no inherent jurisdiction to order that a matter proceed by way of summary judgment. Second, she submits that a judge would not have any jurisdiction under the ordinary summary judgment rule (Rule 20) since Rule 20 can only be used once pleadings have been exchanged, which, in an estates matter, is normally provided for in the order for directions. Furthermore, Rule 20 only applies to "actions" and this proceeding is not an action. Third, she takes the position that the sole source of a judge's jurisdiction to order a summary judgment motion in an estates matter is under Rule 75.06 (3) which provides that "on an application or motion for directions, the court may direct....(d) procedures for bringing the matter before the court in a summary fashion, where appropriate." Thus, except as part of an order for directions, a court has no jurisdiction to order that a matter proceed by way of summary judgment motion." [36]

 

However, the Honourable Madam Justice Sachs rejected the moving parties' submissions.

 

Jurisdiction

 

Her Honour's reasons were as follows:

 

"I reject the Moving Party's submissions for a number of reasons. First, to the extent that the Court of Appeal has dealt with this issue, their decision would suggest that a Superior Court Judge does have jurisdiction to hear a motion for summary judgment without a specific direction that this be done under Rule 75.06(3). 

                               

I am not persuaded that the respondents' failure to have the order for directions amended deprived the court of jurisdiction to grant summary judgment. The rules contemplate the possibility of summary disposition in contentious estate matters, and in the circumstances of this case, the failure to amend the order amounts to nothing more than a procedural defect that caused no prejudice to the appellant. (Para. 7)." [37]

 

As to the issue of whether or not a Superior Court judge has jurisdiction to hear or order a summary judgment motion without an order for directions, Justice Sachs decided that indeed such jurisdiction exists, as is supported by the case referenced Re Chappas.

 

Moreover Justice Sachs confirms that a Superior Court Judge does possess the inherent jurisdiction to manage proceedings including its own process as is supported by Brown J. in Abrams v. Abrams, 2010 ONSC 2703 (Ont. S.C.J.). Leave to appeal from that decision was dismissed by Ferrier J. (2010 ONSC 4714 (Ont. Div. Ct.). [38]

 

Justice Sachs further notes: "While that power is not absolute, in this case, a Superior Court judge, who had the jurisdiction to make an order for directions also decided that she had the jurisdiction to order the hearing of a summary judgment motion without such an order. Summary judgment motions are clearly contemplated by the Rules for estate matters. Thus, to the extent that the Moving Party has a complaint it is about a matter of procedure, not a matter of jurisdiction. Furthermore, with respect to the procedure, I am not satisfied that the Moving Party is prejudiced by the Order. The prejudice asserted is an inability to obtain certain disclosure prior to the hearing of the motion so that the motion can be heard on a full evidentiary record. In my view, all of the necessary disclosure can be obtained through the summary judgment process." [39]

 

(iii) Diament v. Ockrant [40]

 

This is another summary judgment motion which was successful.  The applicant sought damages for fraud, breach of fiduciary duty, breach of trust and fraudulent misrepresentation.  It is not a case where significant facts were found to be in dispute.  The respondent was the attorney for personal care and property for the deceased.  Monies were withdrawn from the deceased's property for the personal benefit of the respondent.  The respondent claimed that the monies were gifted.  A number of interim Orders were made with respect to the respondent providing an accounting of monies taken during the attorneyship.

 

In this case, the Court granted summary judgment concluding that the respondent put his own interests before those of the grantor of the Power of Attorney; that the respondent failed to advise the grantor of his conduct and action; that the respondent took advantage of the grantor's vulnerability as elderly relatives; that the respondent was obliged to have kept accurate and complete accounts which he did not; that the respondent did not adequately account despite Court Orders requiring him to do so; that the respondent made false representations; did not fulfill his obligations and that he breached his fiduciary obligations, committing a fraud in doing so.  For all of these reasons, summary judgment was granted.   The Court stating that there was no issue requiring a trial as the issues related to breach of fiduciary duty or fraud, and granted judgment in the amount of in or about $800,000.00.

 

(iv) Wells v Hodgson [41]

 

In this case, the respondent moved for summary judgment on the basis that there was no genuine issue between the parties that required a trial.  The Court granted summary judgment, stating that the case for summary judgment is prima facie made out on the evidence and the applicant had shown absolutely no triable issue.

 

There was no significant analysis of the test for summary judgment, nor of any procedural issues.  What is interesting is that the conclusion reached by the Court supported the success of the motion on the basis that a prima facie case was made out on the evidence with no significant response by the applicant showing that a triable issue existed.

 

(v) Grey v. Boyd [42]

 

In this case, the moving party brought a summary judgment for the following relief:

 

(a) the Applicant William Grey be denied any bequests to him in the purported Will of the late Dorothy Boyd; 

 

 

 

with alternative relief as follows:

 

(a) the issue of whether the Applicant shall be denied any bequests to him in the purported Will pursuant to the Succession Law Reform Act, section 12(1), and; 

 

 

 

Will Challenges

 

In support of the motion, the respondent relied on the cases of Slater v Slater [45] and Ettore v Ettore. [46]

 

The position of the responding party is that Rule 20.01 is restricted in its scope to proceedings commenced as actions and not to applications.  Again, this is one of the procedural issues raised by the summary judgment motions in Estates which have been tried post-2010.  Additionally, as was raised as a procedural issue in Smith v Rotstein the responding party submitted that issues regarding the validity of a Will are best resolved by way of proof in solemn form, that is, upon the hearing of viva voce evidence and cited the cases of Knox v Trudeau (2001), 38 E.T.R. (2d) 67 (Ont. S.C.) and Oestreich v Brunnhuber (2001) 38 E.T.R. (2d) 82 (Ont. S.C.J.)  in support. [47]

 

The responding party also submitted that the alternative relief sought by the moving party, already set out in an Order giving Directions of Justice Lack on consent, addressed all of the issues in the proceedings and that the central issue regarding the validity of the purported Will ought to be heard with all of the other issues raised as they were interconnected and to avoid a multiplicity of proceedings. [48]

 

The position of the responding party was that there is a genuine issue for trial as it relates to witnesses and statute, namely the Succession Law Reform Act.

 

In this case, Justice Shaughnessy did not grant summary judgment and his reasoning is set out in paragraphs 36 through 44 as follows:

 

[36] There are a significant number of common law cases which suggest that the testator should sign the purported Will before, not after, either of the witnesses subscribe to it. (Feeney's Canadian Law of Wills, section 4.23; Sills et al v Daley (2002), 64 O.R. (3rd) 19). There is also case law which states that that the SLRA requires strict compliance with its provisions (Ettore v Ettore Estate, 2004 CanLII 22087 para. 37). However, the statutory provision of s. 4 of the SLRA does not provide for this requirement. Therefore, I find that the development of the common law may not circumscribe the statutory requirements of the SLRA which has no provision that the testator must sign the Will first. This is clearly an issue of mixed fact and law which should proceed through the steps required by the Rules of Civil Procedure to a trial.

[37] There is also authority, prior to the amendment to Rule 20, which provides that summary judgment ought not to be granted where there has been an order for trial of issues. In Knox v Trudeau (2001), 38 E.T.R. (2nd) 67 para 11 and 13, Justice Pardue stated that:

 

"disputes about testamentary capacity and undue influence do not lend themselves to resolution by a court by means other than a trial, with oral evidence. The state of mind of a testator is an amorphous thing, and subtleties in the behavior and condition of the testator in light of all the surrounding circumstances can swing the balance one way or the other.

 

I conclude that where an order for trial of issues has been made pursuant to Rule 75.06, there is no authority.... permitting a litigant to seek summary judgment based on the insufficiency of the Plaintiff's case, as revealed by examinations under oath.

 

[38] There is also the decision of Justice Haley in Oestreich v Brunnhuber (2001) 38 E.T.R. (2nd) 82 at para 32 where it is stated that:

 

the procedure leading to a declaration by the court that a will is the last will of a person is more than a matter between the parties. It is a declaration that can be relied on by all the world and therefore commands full evidence before the court when any issue of validity has been raised

...

[40] Whether the Applicant, William Grey, is a witness to the purported Will is a genuine issue requiring a trial, and likewise is the application of s. 12 (4) of the SLRA. If William Grey is a witness, then the application of s. 12 (1) and (3) are genuine issues requiring a trial. The matters most relevant to the issue of s. 12(3) and undue influence relate to context and how the purported Will was made and the independent evidence of Dr. Murray and the Reverend Bishop.

[41] I find that the genuine issues requiring a trial involve both fact and law. I am not satisfied that I can weigh the evidence, evaluate the credibility of the deponents or draw reasonable inferences on the evidence based solely on the affidavits submitted or the examinations conducted. Indeed, I find that it is necessary in the interest of justice that the judicial assessment of the evidence be exercised at a trial with viva voce evidence as directed in the order of Justice Lack dated April 27, 2010. Certainly at this stage of the proceeding the evidence of Dr. Murray and the Reverend Bishop, while perhaps contradictory in part, is nevertheless compelling on such issues of testamentary capacity and/or undue influence. I find that their evidence and the Applicant's affidavit satisfy me that there are genuine issues requiring a trial.

[42] The entire issue as to when summary judgment is appropriate has now been significantly clarified in the recent decision of Combined Air Mechanical Services Inc v Flesch 2011 ONCA 764. As detailed in this decision there are three types of cases amendable to summary judgment (although the list is not exhaustive) (reference paragraphs 40 to 44 inclusive):

 

(a) cases where the parties agree that it is appropriate to determine an action by way of summary motion;

(b) cases where the claims or defences are shown to be without merit;

(c) cases where the "interests of justice" do not require the issues to be resolved at trial.

 

[43] The Court of Appeal in the Combined Air Mechanical case establishes the "full appreciation test" which the Court states is a useful benchmark for deciding whether or not a trial is required in the interest of justice. Accordingly, the Court of Appeal states that "a motions 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?" (para.50)

[44] Applying the "full appreciation test" to this particular case I find that the multiple findings of fact on conflicting evidence emanating from a number of witnesses and a voluminous record, makes a summary judgment motion an inadequate substitute for the trial process. I find that as the motion judge I cannot achieve a full appreciation of the evidence and issues that is required to make dispositive findings. Therefore, I find the full appreciation test is not met and the "interest of justice" requires a trial. In support of this finding I adopt the analysis at paragraphs 53 and 54 in the Combined Air Mechanical case. In particular, I find that the attributes of the trial process are necessary to fully appreciate the issues posed by this case. The full appreciation test requires me to do more than to simply read transcripts of cross-examinations put before me. The record does not permit me to adequately assess all the evidence. I find that to meet the full appreciation test it is necessary to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to make findings of fact first hand at trial.[49]

 

The analysis employed by Justice Shaughnessy in his reasons for not granting summary judgment specifically includes in his reasoning that viva voce evidence is required as directed by the interim motions judge and relies on the decision in Combined Air Mechanical Services Inc. v Flesch 2011 ONCA 764, establishing the "full appreciation test".  Justice Shaughnessy concluded that a summary judgment motion in the circumstances of this case involving questions of fact and law would make for an inadequate substitute for the trial process.  Justice Shaughnessy indeed is of the view that the full appreciation test requires the motion judge to do more than simply read the transcripts of cross-examinations. Justice Shaughnessy's analysis is interesting and though admittedly not having thought about it in too much depth, I am unclear as to whether it can be said that Justice Shaughnessy has applied a different test, but the outcome for the reasons given can only result in the concern that a lawyer and a client must consider very seriously the risks and the consequences as well as the outcome in any decision to proceed by way of summary judgment.

 

(vi) Robb Estate v Robb [50]

 

Similarly in Robb Estate v Robb, summary judgment was not successful.  In this case, Justice Parayeski was not satisfied that there was no genuine issue requiring a trial with respect to a claim or defence.  Not a great deal of analysis is given and the only insight as to the reasons for no success that can be gleaned is found in paragraph 23 of the judgment which states as follows:

 

"Rule 20.04(2) mandates the granting of summary judgment if the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. This Court is not so satisfied based upon the evidence before it. This is so notwithstanding the exercise of the powers granted to it under subsection 2.1. The issues requiring trial include, but are not necessarily limited to, determining the meaning and effects, if any, of the notes signed by William Sr., the interpretation of the trust agreement, especially in light of the will's silence regarding real property, whether Scott has met the onus required of him as defined in the Pecore case (supra), and the evidentiary value, if any, of Mr. Harvey's affidavit." [51]

 

(vii) Optech Inc. v Sharma [52]

 

Finally, in this civil motion for summary judgment, the Court neither granted summary judgment, nor ordered a mini-trial for reasons set out at paragraphs 71 through 73 of the judgment as follows:

 

[71] Having examined the elements of Optech's claim and the evidence filed by the parties, I conclude that I would "need more" in order to be able to adjudicate Optech's claim with the degree of certainty required by the law. Specifically, as I have detailed in this section of my Reasons, viva voce evidence would be required in order to determine whether Mr. Sharma played an influential or decision-making role in Optech's purchase of services from Aviation, to evaluate the innocent explanations advanced by the defendants for why Optech payments to Aviation found their way into 151 Ontario, and to consider why Mr. and Ms. Sharma received the benefit of some of those payments for the work they did for 151 Ontario.

[72] I am not prepared to order a "mini-trial" under Rule 20.04(2.2) to assist me in assessing the credibility of the witnesses and exercising my fact-finding powers under Rule 20.04(2.1). Optech had the opportunity to request a mini-trial at the April 20, 2010 Motions Scheduling Court before Himel J. The endorsement of that attendance noted that no viva voce evidence would be required. While, notwithstanding that endorsement, I retain the discretion to order a mini-trial, the failure of Optech to request that viva voce evidence be heard on the return of the motion weighs heavily in my decision not to order a mini-trial. For our system of scheduling summary judgment motions in the Toronto Region to work, requests for the use of viva voce evidence on a summary judgment motion must be made in advance of the hearing, either at the initial Motions Scheduling Court or thereafter well in advance of the hearing once the need for viva voce evidence becomes apparent. If parties do not make their requests in advance, our scheduling system will collapse under its own weight and unacceptable delays will attach to the adjudication of summary judgment motions.

[73] For these reasons I am not satisfied that there is no genuine issue requiring a trial with respect to Optech's claim against the defendants (or the defendants' defence thereto). I refuse Optech's motion for summary judgment in respect of its secret commissions claim, but I will make certain directions below about the trial pursuant to Rule 20.05. I am not seized of this proceeding.[53]

 

CONCLUSIONS

 

Summary judgment motions come with the inherent risk of wasted costs of the motion which, if not successful, will mean that the matter will be sent to trial with the result that some costs will be duplicated.

 

If a client's goal is to limit costs, then proceeding by way of summary judgment is particularly risky.

 

The risk likely increases where the determination of the issues require credibility findings.  That said, it appears that two of the successful cases post the 2010 amendments to Rule 20, for instance, Smith v Rotstein and the Orfus Estate where  admittedly, numerous affidavits, examinations and witnesses provided evidence and in circumstances where a summary judgment might otherwise be deemed a waste of costs as seemingly leading to dismissal, this did not happen.

 

The difference in outcome of the proceedings and the treatment by the motions judge makes it very difficult to pre-determine or predict the likelihood of success on a summary judgment motion.

 

Though my review of some of the post-2010 summary judgment decisions did not include an analysis of the costs treatment, it should be noted that Rule 20 no longer comes with the punitive costs provision which means that the costs consequences of a motion remain the same as with any other litigation.  The costs of a summary judgment motion may well approach the costs of a summary trial, or indeed regular trial.  If the chance of success on all issues raised is not particularly high, perhaps a summary judgment motion may be less dangerous from an economic perspective where there are issues which, if narrowed, may resolve the entirety of the litigation.

 

2. Rule 49 of the Rules of Civil Procedure

 

The purpose of a Rule 49 Offer to Settle under the Rules of Civil Procedure, is to encourage parties to make offers to settle.  The rule provides several encouragements;  the chief of these is that if the result at the hearing shows that it would have been better for the recipient of the offer to have accepted it, then the party that made the offer will secure a better order as to costs than would otherwise have been the case.  Because of these costs consequences, a party has an incentive to compromise by making a reasonable offer and the recipient must take the offer seriously.  Other encouragements include the relative modest formal requirements and an enforcement procedure for accepted offers.

 

In reviewing the costs endorsement on the Smith Estate v Rotstein appeal, at paragraph 16, I learned that indeed Rule 49 does not apply to appeals. "We do not accept the respondent's submission concerning the application of Rule 49 or Rule 49-like consequences.  Rule 49 does not apply to appeals.  This court has, on an earlier occasion, said that an offer to settle an appeal prior to argument may be taken into account when fixing costs: see Douglas Hamilton Design Inc. v. Mark reflex, (1993), 66 O.A.C. 44.  However, this power of the court is exercised only on rare occasions." [54]

 

OSGOODE Professional Development, Advising the Elderly Client: Remarriages and Common Law Arrangements: Estate Claims by Spouses

February 15, and 16, 2012, 

Kimberly A. Whaley, Speaker

Info: http://www.osgoodepd.ca/cle/2011-2012Fiscal/2012_elder_law/index.html

 

OSGOODE Professional Development, Advising the Elderly Client: End of Life Decision Making

February 15, and 16 2012, 

Mark Handelman, Speaker 

Info: http://www.osgoodepd.ca/cle/2011-2012Fiscal/2012_elder_law/index.html

 

 

NAELA: Seattle Elder Law Conference: Topics - TBA

April 26-28, 2012,

Kimberly A. Whaley, Speaker

Info: http://www.naela.org/Public/Meetings_and_Events/Calendar....

  

Panel Discussion: Legal and Medical Issues concerning Capacity and Substitute Decision-making

Speaker: Kimberly Whaley, Whaley Estate Litigation,  

Speaker: Ian Hull, Hull & Hull LLP, and

Speaker: Jasmine Sweatman, Sweatman Law

 

Panel Discussion: Jurisdictional issues related to incapable persons residing/visiting in both the USA and Canada 

Speaker: Archie Rabinowitz, Fraser Milner Casgrain LLP

Speaker: Kimberly Whaley, Whaley Estate Litigation

 

Cross Border Planning: US Citizens in Canada and Americans with family members in Canada - opportunities and risks. Canadians with property and/or kids in the US, and Canadian Family Estate Planning with US Family Members - Tips and Traps

Speaker - Rachel Blumenfeld, Miller Thomson LLP

 

Panel Discussion: Emerging International Elder Law Issues and why they matter to you.

Speaker: Jan Goddard, Jan Goddard & Associates.

Speaker: Jane Barratt, International Federation Ageing, and 

Speaker: Laura Watts, Elder Caring Inc.

 

Panel Discussion:  Following the Money: A Cross Border Case of Fraud and Recovery

Speaker: Peter Schmiedel, Fischel & Kahn, Ltd.; and

Speaker: Heather Mountford, Jan Goddard and Associates

 

B'Nai Brith - Public Policy: Tataryn Ontario , Summary Trial

June 5, 2012, 

Kimberly A. Whaley, Speaker

Info: http://www.bnaibrith.ca/index.html 

 

CLC CBA Vancouver, Blended Family Presentation: When Once is not Enough: Predatory Marriages

August 12-14, 2012,

Kimberly A. Whaley, Speaker

Info:  http://www.cba.org/CBA/sections_elder/main/

 

LSUC: The Administration of Estates 2012

September 13, 2012, Web repeat October 23, 2012

Chair, Kimberly A. Whaley

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