Summary judgment is a powerful procedural mechanism, allowing a party to file a motion to resolve a case early in the proceedings if there are no genuine issues for trial. In FactR Limited v. R.R.I.C.H. Construction, 2024 ONSC 4792, the Ontario Superior Court recently demonstrated the enhanced fact-finding powers afforded to judges when determining summary judgment motions involving contractual breaches and conversion of property. In FactR Limited v. R.R.I.C.H. Construction, the plaintiffs sought to recover money loaned to two defendants (the “Contract Defendants”) through invoicing factoring agreements (the “Agreements”), as well as an additional defendant for their alleged role in improperly converting a cheque payable to the plaintiffs (the “Fraudulent Defendant”). The motion judge ultimately ruled in favour of the plaintiffs, granting summary judgment and concluding there were no genuine issues requiring a trial. At the hearing for the summary judgment motion, the plaintiffs tendered evidence demonstrating the Contract Defendants’ … Read More
Recognition and Enforcement of a CIETAC Arbitral Award Allowed as Partial Summary Judgment
In Shanghai Investment Co. Ltd. V. Lu et al. 2024 ONSC 2762, the Ontario Superior Court of Justice (Commercial List), allowed a foreign arbitral award to be recognised and made enforceable as a partial summary judgment. The Plaintiff, Shanghai Lianyin Investment Co Ltd. (“SLIC”) sought the recognition and enforcement of a CAD $233 million arbitral award rendered under the rules of the China International Economic and Trade Arbitration Committee (“CIETAC”) against the Defendant Zheng Yao Lu (“Lu”) as a threshold matter; and a declaration that the other defendant, Lichun Guo (“Guo”) held her interest in two properties in Ontario on behalf of Lu, and that SLIC could enforce its award against these properties. The court found that the CIETAC award should be recognised and made enforceable as both of the following requirements under Articles IV and V of the New York Convention (incorporated in the International Commercial Arbitration Act, 2017, S.O. 2017, c. … Read More
Arbitration and Summary Judgment – Is Summary Judgment Available in Arbitration Matters?
In the arbitration preceding the Ontario Superior Court of Justice (“OSCJ”) decision, Optiva Inc. v, Tbaytel, 2021 ONSC 2929 (CanLII), the respondent successfully brought a motion for summary judgment before a sole arbitrator. The applicant then appealed the arbitrator’s award to the OSCJ, arguing, among other things, that the arbitrator could not, absent consent of the applicant, proceed by way of summary judgment. The OSCJ disagreed with the respondent’s position, instead affirming that the “arbitrator could elect to proceed by summary judgment absent the consent of [the applicant]”. The court cited, as authority for its conclusion, section 20(1) of the Arbitration Act, which states: 20 (1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act. The OSCJ opined that “summary judgment should be available to the parties in an arbitration subject to the requirement” that the process: Allows the arbitrator to … Read More
Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge
Summary Judgment – Emerging Burdens of the Summary Judgment Motion Judge[i] David Alderson[ii], Senior Counsel – Commercial Litigation, at Gilbertson Davis LLP, co-counsel for the 13 plaintiffs (one of which was Mauldin), that responded to the appeal to the Supreme Court of Canada in Hryniak v. Mauldin[iii], that responded below to the appeal in the Ontario Court of Appeal, and that obtained summary judgment in the Ontario Superior Court of Justice, being the judgment which was appealed, has written two chapters of the Annual Review of Civil Litigation[iv], which if read together comprise a seven year survey of the appellate cases across Canada considering Hryniak and summary judgment. The chapter entitled Sentinels of the Hryniak Culture Shift: Four Years On[v], included in the Annual Review of Civil Litigation 2018[vi] covers appellate cases for the first four years following the Supreme Court of Canada decision. The second chapter Emerging Burdens of the Summary Judgment Motion … Read More
Dominican Republic Vacation Claim Examined in Di Gregorio v. Sunwing Vacations Inc.
In Di Gregorio v. Sunwing Vacations Inc., the appellants purchased a vacation package to attend the Dreams Punta Cana Resort and Spa through their travel agent, Sunwing Vacations Inc. (“Sunwing”). While on vacation, the balcony railing gave way resulting in the appellants sustaining injuries. The motion judge was found to have erred in not conducting a jurisdictional analysis pursuant to Club Resorts Ltd. v. Van Breda. The Court of Appeal stated that the relevant connecting factor is that the claim pleaded was based on an Ontario contract. The alleged tortfeasors do not need to be party to the contract, as all that is required is that a “defendant’s conduct brings it within the scope of the contractual relationship and that the events that give rise to the claim flow from the contractual relationship” as stated in Lapointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP. The Court of … Read More
A Successful Constructive Dismissal Claim in Hagholm v. Coerio Inc.
Constructive dismissal occurs when an employee is indirectly and effectively dismissed from the position or terms he/she had previously agreed formed the employment. Without the consent of the employee, a substantial alteration is presented that fundamentally changes the terms of the agreed upon contract. Hagholm v. Coerio Inc. represents a successful claim for constructive dismissal. The respondent had entered into her employment on the understanding that she could work from home three days a week. When this condition was changed, the respondent claimed constructive dismissal and ceased coming to work. The Motion Judge, on a motion for summary judgment, found that there was constructive dismissal because this was an essential term and the appellant arbitrarily withheld a bonus from the respondent. The Court of Appeal also confirmed that the respondent was not required to mitigate her damages for the appellant’s breach of contract in these circumstances. Also in this case, the … Read More
An Illegal By-Law in Perelli v. The Town Corporation of Richmond Hill
Matthew Stroh represented the plaintiff in Perelli v. The Corporation of the Town of Richmond Hill, 2017 ONSC 6062, who was successful on a motion for summary judgment declaring that The Corporation of the Town of Richmond Hill (“the Town”) By-Law 135-14 is illegal. From December 1, 2010 to November 30, 2014, the plaintiff was employed as an elected municipal councillor for Ward 2 of the Town. Upon the completion of his term, the plaintiff was entitled to severance pay, but only received a deducted amount due to the Town By-Law 135-14 (“the By-Law”) that authorized said deduction. The deduction represents the amount charged in postage by the plaintiff to the Town’s corporate account in conducting a survey. Justice Sutherland of the Ontario Superior Court of Justice found the By-Law to be invalid due to lack of statutory authority and void for bad faith. The By-Law was enacted without the plaintiff … Read More
Entire Agreement Clause Upheld in Manorgate Estates Inc. v. Kirkor Architects and Planners
Entire Agreement Clauses are meant to prevent negotiations that occurred prior to the contract being formed from influencing the Court’s interpretation of the terms set out in the final contract. In other words, past discussions are to have no bearing on the understanding of the contractual terms. In theory, a fully integrated agreement of this kind supplants any earlier oral or written agreements. There is competing jurisprudence in which Entire Agreement Clauses have been both effective and ineffective. However, Manograte Estates Inc. v. Kirkor Architects and Planners is a recent Ontario Court of Appeal decision where an Entire Agreement Clause was effective. In Manograte Estates Inc. v. Kirkor Architects and Planners, the Ontario Court of Appeal upheld the Motion Judge’s decision that the Entire Agreement Clause in the relevant agreement, regarding architectural consulting for a construction project, operated as a complete defence to the appellants’ claim of alleged negligent misrepresentation. The Entire Agreement Clause … Read More
Summary Judgment Granted in Multiple Proceedings Surrounding Enforcement of Italian Judgment
The case of King v Lang Michener, 2017 ONSC 1917 (one of three related actions), began with a transaction that went awry. The Plaintiff, Gregory King, a lawyer at Aylesworth and later Gowling Lafleur Henderson LLP, acted in a transaction relating to a new hotel in China with an Italian company, Sincies Chiementin SpA (“Sincies”), and various other foreign individuals and businesses. Mr. King received a 5% interest in the hotel, and Aylesworth was to receive payment for legal fees. Sincies went bankrupt, and one of its assets, a $600,000.00 USD deposit, vanished. Sincies’ trustee in bankruptcy eventually sued Mr. King, among others, in Italy, to try to recover the money. Mr. King did not defend the Italian proceedings. The Italian court ruled against him, and ordered him to pay the deposit. Mr. King did not pay the judgment on the grounds that the Italian court lacked jurisdiction. Sincies’ trustee then … Read More
Restriction on Use of Summary Judgment Where Key Issues Turn on Credibility
Since the Supreme Court of Canada’s landmark decision in Hryniak v Mauldin, 2014 SCC 7, summary judgment has been lauded as an effective tool to enhance access to justice and achieve cost-effective results for litigants. Indeed, in recent years, summary judgment motions have become more common, making trials in civil litigation a rare occurrence. But has the pendulum begun to swing now in the opposite direction? The Court of Appeal’s recent decision in Lesenko v Guerette, 2017 ONCA 522, challenges the limits of summary judgment, and outlines that it may not be appropriate in cases where key issues turn on the credibility of the parties. In Lesenko, a husband, his wife, and his sister decided to sell their respective homes and buy a house together. The sister sold her home, and some of those sale proceeds went to pay for the entire purchase price of the subject property. The sister … Read More