Fridays With Rogers Partners
At our muffin meeting this morning, Ankita Abraham discussed an appeal of a Master’s order dismissing a summary judgment motion.
The case of Gates v. Gates, 2019 ONSC 5416, arose out of a motor vehicle accident. The defendant argued that the plaintiff missed the limitation period.
The Master dismissed the motion, stating that the question of the limitation period should be determined on a full evidentiary record at trial. Both parties appealed.
Justice MacLeod stated that partial summary judgment in favour of a plaintiff gives rise to different considerations than complete summary judgment in favour of a defendant. If a plaintiff is granted summary judgment, there is a risk of contradictory findings at trial if causation and the threshold remain live issues.
The plaintiff provided evidence that she did not know the defendant could be liable for the accident until a defendant in a separate action counterclaimed against him.
Justice MacLeod stated that the defendant presented no evidence to undermine this suggestion and did not meet the onus of demonstrating that summary judgment was appropriate.
Justice MacLeod agreed with the Master that the determination of the limitation period should be left to trial.
Micah Pirk O’Connell addressed the decision in Smith v. Brockton (Municipality), 2019 ONSC 5275.
The case dealt with an intended appeal of an individual damages assessment in a class action.
The class member brought a preliminary motion on several issues, including a request for a law firm to represent him on the appeal, a medical evaluation for the appeal due to an alleged failure by the arbitrator to provide accommodations, a bifurcated appeal, and an advance award of $40,000.
Justice Perell rejected all of these requests.
On the issue of bifurcation, the class member wanted to first argue fairness and access to justice issues and, if unsuccessful, he then wanted to pursue a “regular type of appeal” based on errors of law, errors of fact and law, and misinterpretation of evidence.
Justice Perell stated that, to bifurcate an appeal, there needs to be extraordinary circumstances. He declined to order bifurcation because there were intertwined issues in both proposed appeals.
