0871768 B.C. Ltd. v. Aestival (Vessel)

0871768 B.C. Ltd. v. Aestival (Vessel)
Court (s) Database
Federal Court Decisions
Date
2014-11-05
Neutral citation
2014 FC 1047
File numbers
T-1625-12
Decision Content
Date: 20141105
Docket: T-1625-12
Citation: 2014 FC 1047
Ottawa, Ontario, November 5, 2014
PRESENT: The Honourable Madam Justice Strickland
ADMIRALTY ACTION IN REM AGAINST
THE SAILING VESSEL “AESTIVAL” AND IN PERSONAM
BETWEEN:
0871768 B.C. LTD.
Plaintiff
and
THE OWNERS AND
ALL OTHERS INTERESTED IN
THE SAILING VESSEL “AESTIVAL”,
THE VESSEL “AESTIVAL”,
ISLAND-SEA MARINE LTD.,
KENNETH W. HIGGS,
EXECUTIVE YACHT SERVICES LTD.
AND MICHAEL GUY COLBECK,
DOING BUSINESS AS
EXECUTIVE YACHT SERVICES AND/OR
EXECUTIVE YACHT SERVICES LTD.
Defendants
JUDGMENT AND REASONS
[1] The Plaintiff, 0871768 B.C. Ltd., as owner of the vessel “Ain’t Life Grand”, brought a motion for summary judgment pursuant to Rule 213(1) of the Federal Courts Rules, SOR/98-106 (Rules) seeking an order against each of the Defendants for: repair and survey fees in the amount of $42,765.74, plus pre-judgment interest on those amounts; damages for the loss of use of the “Ain’t Life Grand”; and, costs. Subsequently, the Plaintiff amended its Notice of Motion so as to have the matter proceed as a summary trial pursuant to Rule 216.
Background and Allegations [2] The Plaintiff is the corporate owner of the “Ain’t Life Grand”, a 49 foot sail boat of fibreglass construction which, at all relevant times, was registered in the Port of Iqaluit, Nunavut, Official No. 818884 (Vessel). Matt Nielsen (Nielsen) and Christopher Thody (Thody) are directors of the corporate Plaintiff and claim damages for loss of use of the Vessel.
[3] The Defendant Island-Sea Marine Ltd. (Island-Sea) is the owner of the steel hull sailing vessel “Aestival”, Official No. 800992. Kenneth W. Higgs (Higgs) is the president of Island-Sea.
[4] The Defendant Michael Guy Colbeck (Colbeck) operates a business providing vessel repair and maintenance services, doing business as Executive Yacht Services (Executive Yacht). He was hired by Island-Sea and/or Higgs to work on and provide services to the “Aestival”.
[5] On or about July 26, 2012 the Vessel was sitting on blocks at the Lynnwood Marina (Marina) in North Vancouver, British Columbia. As a result of a previous accident, it had recently been repaired, repainted and polished by Fraser Fibreglass Ltd. (Fraser Fibreglass). The Vessel was situated next to the “Aestival”, which was also on blocks.
[6] The Plaintiff alleges that on July 26, 2012 Philip O’Donoghue (O’Donoghue), one of the owners and a director of Fraser Fibreglass, was notified by his foreman that there was grinding work being undertaken on the “Aestival”. O’Donoghue immediately went to the Vessel and observed Colbeck standing on the forward port bow of the “Aestival” overseeing grinding work being done by Higgs. The Plaintiff alleges that O’Donoghue observed a cloud of dust and debris emanating from the grinding and that, in the absence of a plastic enclosure, tarp, or other precautionary measure being used by those on board the “Aestival”, dust and debris settled on the Vessel.
[7] The Plaintiff also alleges that on July 27, 2012 O’Donoghue observed Executive Yacht employees sanding the top sides of the hull of the “Aestival”. There was still no protective enclosure or tarp to prevent the spread of airborne dust and debris which again settled on the Vessel.
[8] The Plaintiff alleges that that the grinding and sanding debris that emanated from the work being performed on the “Aestival”, including metal particles, paint and rust, were deposited on the Vessel, including its upper works, fibreglass decks, hull, stainless steel fittings and sails, causing damage.
[9] On August 31, 2012, the Plaintiff filed a Statement of Claim in rem against the sailing vessel “Aestival” and in personam against the other Defendants. The “Aestival” was arrested in September 2012.
[10] A motion on behalf of Island-Sea, Higgs and the “Aestival” for an order under Rule 488 setting aside the arrest was heard by Prothonotary Lafrenière. By Order dated November 13, 2013, the Prothonotary found that as the Plaintiff had a valid in rem claim against the “Aestival”, it was entitled to arrest it pursuant to s. 43(8) of the Federal Courts Act, RSC 1985, c F-7. The Prothonotary also fixed the amount of bail at $58,000.
Procedural History [11] The procedural history relevant to this motion for summary trial is set out below.
[12] On August 8, 2013 the Plaintiff filed a Notice of Motion seeking an order pursuant to Rule 213(1) for summary judgment. In support of that motion, the following affidavits were filed:
Affidavit of Matt Nielsen sworn August 7, 2013 (Neilsen Affidavit #1); Affidavit of Christopher Thody sworn August 7, 2013 (Thody Affidavit #1); Affidavit of Philip O’Donoghue sworn August 7, 2013 (O’Donoghue Affidavit); Affidavit of F.I. Hopkinson sworn August 6, 2013 (Hopkinson Affidavit #1); and Affidavit No. 1 of Kenneth Higgs sworn April 22, 2013 and previously filed on August 2, 2013 in support of the motion to set aside the arrest of the “Aestival” (Higgs Affidavit #1).
[13] On January 9, 2014 the Chief Justice issued a direction setting May 7, 2014 as the date for the hearing of the summary judgment motion and also setting dates by which certain procedural matters were to be effected, including that responding motion records were to be served and filed no later than March 25, 2014.
[14] On March 20, 2014 the transcript of the cross examination of Philip Oldham (Oldham) on his affidavit was filed.
[15] On March 25, 2014 the Defendant Colbeck filed a Motion Record in reply to the summary judgment application. This included the following evidence:
• Affidavit of Michael Colbeck sworn January 29, 2014 (Colbeck Affidavit #1);
• Affidavit No. 2 of Michael Colbeck sworn February 15, 2014 (Colbeck Affidavit #2);
• Affidavit of Philip Oldham sworn January 30, 2014;
• Affidavit of Philip Maier sworn August 16, 2013;
• Affidavit of Arvin Pacris sworn August 16, 2013;
• Affidavit of Shawn Albert sworn October 30, 2013;
• Transcript of cross examination of Philip O’Donoghue on his Affidavit; and
• Affidavit of Kenneth Higgs No. 3, sworn March 25, 2014 in response to a written examination (Higgs Affidavit #3).
[16] On March 25, 2014 the Plaintiff sought to file a Supplemental Motion Record but was advised by the Registry that leave would be required as the document was not addressed in the Chief Justice’s direction. On March 27, 2014 the Plaintiff requested leave and on April 10, 2014 Prothonotary Lafrenière directed that the Supplemental Motion Record be filed. It contained:
Affidavit No. 2 of F.I Hopkinson sworn February 24, 2014 (Hopkinson Affidavit #2); Affidavit No. 2 of Matt Neilsen sworn March 8, 2014 (Neilsen Affidavit #2); Affidavit No.2 of Christopher Thody sworn March 21, 2014 (Thody Affidavit #2); A disk of digital copies of the photographs in Exhibit “A” and Exhibit “B” of the O’Donoghue Affidavit; and A copy of an enlarged photograph from Exhibit “A” of the O’Donoghue Affidavit.
[17] The Defendants “Aestival”, Island-Sea and Higgs (collectively, the Aestival Defendants) did not file a Motion Record in response to the summary judgment application on or before the March 25, 2014 filing requirement.
[18] On March 25, 2014 the Aestival Defendants submitted to the Registry a Motion Record including a Notice of Motion seeking to bring a non-suit and/or no evidence motion in regard to the summary judgment application. In the alternative, seeking direction as to how to proceed further with a non-suit and/or no evidence motion in a summary judgment application.
[19] On April 9, 2014 I issued a Direction stating that the concept of non-suit was not compatible with a motion for summary judgment and that the non-suit motion would not be heard on May 7, 2014. I also indicated that if the Aestival Defendants successfully opposed the motion for summary judgment on the basis that there was a genuine issue for trial, then at trial or summary trial, at the close of the Plaintiff’s case, a non-suit motion may be pursued. The non-suit motion was not filed.
[20] On April 22, 2014, a case management conference was held to address the Plaintiff’s request to file an Amended Notice of Motion which would amend its motion for summary judgment to one for a summary trial with judgment, and the Aestival Defendants’ failure to file a Motion Record in reply to the motion for summary judgment. As a result, on the same date Prothonotary Lafrenière directed that the Plaintiff was granted leave to file the Amended Notice of Motion and dispensed with the requirement for the Plaintiff to serve and file an Amended Motion Record.
[21] This matter was heard in Vancouver on May 7, 2014. As of the commencement of the hearing, the Aestival Defendants had not filed a Motion Record in response to the motion for summary judgment or the amended motion for summary trial.
[22] At the hearing, upon the conclusion of the Plaintiff’s submissions, counsel for the Aestival Defendants indicated his intent to verbally seek leave to bring a non-suit motion and to file written submissions and a book of authorities in that regard. Further, should the non-suit motion not succeed, to then file the Aestival Defendants’ Submissions on Summary Judgment, their Brief of Authorities on Summary Judgment, and, a Motion Record containing a Notice of Motion by which they sought:
1. An order allowing the vessel defendants leave to file the affidavit of Ken Higgs sworn on the 22nd day of April in these proceedings;
2. In the alternative, an order setting the further filing of affidavit material in response to the Plaintiff’s amended notice of motion dated April 22, 2014 and in compliance with the Rule 214 of the Federal Court Rules;
3. The costs of this motion; and
4. Such further and other relief as this Honourable Court deems just.
[23] I ruled that I would hear counsel for the Aestival Defendants and issue one ruling dealing with all of the issues as identified below.
Issues
Is a non-suit motion permissible? Could non-suit succeed? If not, are the Aestival Defendants permitted to file evidence and written submissions in reply to the motion for summary judgment, as amended to summary trial? Should this matter proceed by way of summary trial? If so, does the Plaintiff’s negligence claim succeed on the merits and, if so, what damages are appropriate? Costs
ISSUE 1: Is a non-suit motion permissible? [24] In my view, the Aestival Defendants’ motion for non-suit is not permissible.
[25] Pursuant to Rule 359, except with leave of the Court, motions must be commenced by notice of motion in the prescribed form. Further, Rule 362(1) requires service and filing of notices of motion and any required affidavits at least three days before the day set out in the notice for the hearing of the motion. The Court may hear a motion on less than three days’ notice if the motion is made on notice and all parties consent, or if the moving party satisfies the Court of the urgency of the motion (Rule 362(2)).
[26] In this instance the Court had directed that a non-suit motion would not be heard on May 7, 2014. The Aestival Defendants take the position that they are, as of right, entitled to bring a non-suit motion. Further, that when the summary judgment motion was amended to a summary trial motion on April 22, 2014, this permitted them to resubmit the non-suit motion and that, therefore, they required a clear ruling given my Direction of April 9, 2014.
[27] I do not agree that the Aestival Defendants are entitled, as of right and without notice, to bring a motion for non-suit at the close of the Plaintiff’s summary trial submissions. The Rules pertaining to service and filing of motions are ignored at the peril of the moving party.
[28] As to my prior Direction of April 9, 2014, it was issued when the matter was still a summary judgment motion and it clearly stated that the concept of non-suit was not compatible with a motion for summary judgment and that the non-suit motion would not be heard on May 7, 2014. The remainder of the Direction was an effort to explain the Court’s refusal based on general concepts.
[29] In hindsight, the Direction should perhaps have been limited to a refusal to hear the subject motion. However, to the extent that the Aestival Defendants found it to be unclear in the context of the subsequent amendment of the Plaintiff’s motion to one of summary trial, they were free to seek clarification from the Court at any time prior to the deadline for filing the Notice of Motion. They did not do so nor did they attempt to file, on the basis of the change in status of that matter, the non-suit motion in advance of the May 7, 2014 hearing date.
[30] There is also a question of whether the motion can be entertained in the absence of a non-suit provision within the Rules. The Aestival Defendants acknowledge that there is no specific non-suit rule, but argue that the Court retains an inherent power to control its own process and may dismiss a case in the clearest of cases independent of the summary judgment rules (Melina & Keith II (The) v Gerald’s Machine Shop Ltd, 1999 CanLII 8518 (FCA)). They submit that the non-suit application is akin to a no evidence motion as that term is defined in British Columbia’s Supreme Court Civil Rules, BC Reg 168/2009 (BC Civil Rules). The Aestival Defendants also acknowledge that there is little jurisprudence on this issue but refer to a decision of the Tax Court of Canada, 410812 Ontario Limited v The Queen, 2002 CanLII 11 (TCC) (410812 Ontario), which describes non-suit procedure guidelines in the context of income tax appeals. It was also submitted that non-suit is in keeping with the spirit and intent of the Rules on summary judgment.
[31] In response to this question, I note that in Canadian Union of Postal Workers v Canada Post Corporation, 2011 FC 25 this Court considered, in the context of a contempt proceeding, the availability of non-suit which is not specifically contemplated in the Rules. Having considered what limited case law there is on the point, Justice Bédard concluded that there was nothing to preclude a party from making such a motion.
[32] Justice Bédard then went on to consider the test applicable in a non-suit motion:
[14] The concept of “nonsuit” is well known in civil law and it is useful to be guided by the parameters that have been developed. The applicable tests for this type of motion have been well defined by Sopinka, Lederman & Bryant in The Law of Evidence in Canada, 3rd edition. The authors defined the concept of a motion of nonsuit as follows:
The word “non-suit” is still used, but in relation to a motion by a defendant for a final judgment on the ground that a plaintiff has made out no case against him or her.
[15] The authors described the role of a judge who is faced with a motion for nonsuit as follows, at page 183:
The trial judge, in performing this function, does not decide whether he or she believes the evidence. Rather, the judge decides whether there is any evidence, if left uncontradicted, to satisfy a reasonable person. The judge must conclude whether a reasonable trier of fact could find in the plaintiff’s favour if he or she believed the evidence given in the trial up to that point. The judge does inference that the plaintiff seeks in his or her favour could be drawn from the evidence adduced, if the trier of fact chose to accept it.
[16] The test to be applied to a motion for nonsuit and the burden imposed on the party that is the subject of the motion were also addressed as follows by the Court of Appeal for Ontario in Calvin Forest Products Ltd v Tembec, 208 OAC 336, 147 ACWS (3d) 401 at paragraph 14:
[14] In determining a motion for non-suit, the trial judge must take into consideration the most favourable facts from the evidence led at trial, as well as all supporting inferences. In attempting to set aside the granting of the non-suit, a plaintiff simply has to show that there is evidence which, if believed, would form the basis for a prima facie case. A prima facie case is no more than a case for the defendant to answer (see Hall et al. v. Pemberton (1974), 5 O.R. (2d) 438 (C.A.) and Ontario v. Ontario Public Service Employees Union (1990), 37 O.A.C. 218 at 226 (Div. Ct.)).
[17] In Prudential Securities Credit Corp v Cobrand Foods Ltd, 2007 ONCA 425, 158 ACWS (3d) 792, at paragraph 35, the Court of Appeal for Ontario specified the principles that must guide a judge who is faced with a motion for nonsuit in his or her assessment of the evidence:
On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign “the most favourable meaning” to evidence capable of giving rise to competing inferences. This court discussed this latter principle in Hall et al. v. Pemberton (1974), 5 O.R. (2d) 438 at 438-9, quoting Parfitt v. Lawless (1872), 41 L.J.P. & M. 68 at 71-72.
[Emphasis added]
[33] Justice Bédard concluded that to rule on the motion for non-suit she must determine whether the applicant had submitted a prima facie case in support of each constituent element of contempt. She found it had met that burden.
[34] Based on this it would appear that, in the normal course, and despite the view by some jurists that it serves no useful purpose (FL Receivables Trust 2002-A v Cobrand Foods Ltd, 2007 ONCA 425 at paras 13-14, Laskin JA; John Sopinka et al, The Trial of an Action, 2d ed (Toronto: Butterworths Canada, 1999) at 151-152), a non-suit motion can be entertained by the Court in the absence of a specific Rule permitting it. In this case, however, the motion was not served and filed at least three days before the day set out in the notice for the hearing of the motion as required by Rule 362(1). Further, the motion is brought in the context of a motion for summary trial and no authority has been cited in support of the proposition that non-suit can, or cannot, be brought in that context. This Court has held that the British Columbia jurisprudence concerning summary trials is instructive (Louis Vuitton Malletier S.A. v Singga Enterprises (Canada) Inc, 2011 FC 776 [Louis Vuitton]; Teva Canada Limited v Wyeth and Pfizer Canada Inc, 2011 FC 1169 at paras 28-29 [Teva Canada]). However, I would note that the BC Civil Rules, relied upon by the Aestival Defendants in support of their position, address summary trial applications under Rule 9-7. Part 12 of the BC Civil Rules deals with trials and Rule 12-5(1), which concerns rules and evidence at trial, states that Rule 12-5 does not apply to summary trials under Rule 9-7, except as provided in that Rule. Neither a no evidence application (Rule 12-5(4)) nor an insufficient evidence application (Rule 12-5(6)) are so specified. Thus, at summary trial under the BC Civil Rules, a no evidence or insufficient evidence application would not be permitted.
[35] In these circumstances, I decline to grant leave to permit the non-suit motion to be heard on short notice. Based on the foregoing, although non-suit motions may be entertained by the Federal Court in the context of a trial, I have some doubt as to whether they are appropriate in the context of a summary trial. However, and in any event, I need not decide that point as for the reasons set out below, the non-suit motion would not succeed in this case.
ISSUE 2: Could non-suit succeed? [36] Even if the Aestival Defendants had brought their motion for non-suit in a timely manner and it was appropriate in the context of a summary trial, it would not succeed in these circumstances. That is because some evidence has been presented by the Plaintiff which, if believed, would form the basis of a prima facie case.
[37] As put otherwise in Brooks-Martin v Martin, 2010 BCSC 1708:
[5] The legal test that must be met by a defendant who makes a motion for non-suit has been stated many different ways by many different courts. Based on the authorities, I would state the rule in this way: In order to succeed on a motion for non-suit, a defendant must persuade the court that there is no evidence which is capable of proving one of the essential elements of the cause of action alleged against the defendant. The court must not weigh the evidence or attempt to make finding of fact or to assess credibility. If an inference which is essential to the plaintiff’s case would be “mere speculation,” the defendant’s “no evidence” motion should be granted. See Fenton v. Baldo 2001 BCCA 95 at paragraphs 25-26; Seiler v. Mutual Fire Insurance Co. 2003 BCCA 696 at paragraph 12; Craigdarloch Holdings Ltd. at paragraphs 14 and 30; and Tran v. Kim Le Holdings Ltd. 2010 BCCA 156 at paragraph 2.
[38] The only basis for the non-suit motion asserted by the Aestival Defendants is the allegation that there is no causal link between the grinding and sanding done on the “Aestival” and the alleged damage to the Vessel. The Aestival Defendants submit that this would require proof that the grinding material was linked to the “Aestival” and their activities. They say that there is simply no factual or expert evidence of such a link.
[39] As will be discussed in greater detail below in the context of the Plaintiff’s claim, there is factual evidence of such a link. For the purposes of the proposed non-suit motion it is necessary to refer only to the following to conclude that there is some evidence of causation:
i) The O’Donoghue Affidavit states that on July 26, 2012, as O’Donoghue approached the Vessel and the “Aestival”, he observed Colbeck and Higgs on the “Aestival” (para 11). Colbeck was standing on the forward port bow of the “Aestival” overseeing grinding work (para 13). O’Donoghue observed a cloud of dust in the air between the two boats and dust and debris settling on the Vessel (para 14). During a resultant conversation concerning the grinding he could see the debris from the grinding continuing to be deposited on the Vessel (para 18). He went to get his camera and on his return there was still work being done on the “Aestival” and he could see grinding dust and debris still emanating from the “Aestival” and landing on the Vessel (para 22). He then climbed on to the Vessel and immediately observed that the deck was covered in sanding and grinding debris (para 24). He took photographs which are attached as exhibits to his affidavit. The following day he witnessed a number of Executive Yacht employees on board the “Aestival” sanding the topsides of the hull, he observed dust and debris emanating from the “Aestival” which settled on the Vessel (paras 29 and 30). On July 28, 2012 he conducted an inspection of the hull and deck of the Vessel and discovered damage to its gelcoat on the deck from grinding debris. The deck was covered with debris containing steel particles and black antifouling paint which had stained the deck’s gelcoat finish. He elaborated on other damage that he observed and again took photographs which are attached as exhibits to his affidavit (paras 33-35).
ii) Higgs Affidavit #1 confirms that on July 26, 2012 Higgs was on board the “Aestival” (para 4) and used a hand held grinder for 11 minutes to assist in the proper fitting of the hull and so the teak gunwale would fit properly where it joins the upper hull of that vessel which is of steel construction (para 6). The affidavit further confirms that Colbeck failed to erect the required tarping of the work area (para 10). Higgs stated his belief that the alleged damage to the Vessel did not give rise to any surface deficiencies but that the alleged damage was from the actions of Colbeck (para 14).
iii) The report of marine surveyor Oldham, made on behalf of Colbeck, states that steel particles from grinding will embed into fibreglass gelcoat, oxidise and result in an unsightly condition.
[40] Accordingly, the Plaintiff has put forward some evidence and made out a prima facie case with respect to causation, the only element of negligence that the Aestival Defendants challenged in their non-suit submissions.
[41] It was also suggested by the Aestival Defendants that the causal link could not be established without expert evidence. The Plaintiff submits that expert evidence of causation is not required. In this regard the Plaintiff relies on R v Burns, [1994] 1 SCR 656 at 666 which held that the general rule is that expert evidence is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of the judge and jury, as well as R v Mohan [1994] 2 SCR 9 (Mohan).
[42] In Mohan, the Supreme Court of Canada stated as follows:
(b) Necessity in Assisting the Trier of Fact
[21] In R. v. Abbey, supra, Dickson J., as he then was, stated, at p. 42:
With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.)
[22] This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher (Village of) v. Smith, [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". More recently, in R. v. Lavallee, supra, the above passages from Kelliher and Abbey were applied to admit expert evidence as to the state of mind of a "battered" woman. The judgment stressed that this was an area that is not understood by the average person.
[43] I agree with the Plaintiff that in this case where there is eye witness testimony that grinding and sanding occurred on the “Aestival” and that dust and debris from those actions was seen to be settling on the Vessel, and given the evidence of the Aestival Defendants’ own surveyor that steel particles from grinding will embed and cause the unsightly marking of fibreglass gelcoat, expert evidence is not required to establish causation on a prima facie basis for the purpose of the proposed non-suit motion.
[44] Based on the foregoing, the motion for non-suit, even if leave had been granted permitting it to proceed, would not have succeeded.
ISSUE 3: Are the Aestival Defendants permitted to file evidence and written submissions in reply to the motion for summary judgment, as amended to summary trial? [45] Non-suit rules may require that when a defendant makes a non-suit motion after the plaintiff has entered its evidence, that the defendant must elect whether to call evidence. If the defendant elects to call evidence, the non-suit motion is typically not decided until the close of the defendant’s case. If the defendant elects not to call evidence, the non-suit motion can be decided immediately and the defendant forfeits the right to call evidence.
[46] This was the procedure considered by the Tax Court in 410812 Ontario, above, at para 34. There, the Court indicated that where a party moves for non-suit, counsel for that party should be put to an election of whether to call evidence before the Court rules on the motion. If the election is made to call evidence, the judge should reserve on the motion until all of the evidence is in. If the election is to call no evidence, the Court should immediately rule on the non-suit. If the judge dismisses the motion on the basis that there is some evidence supporting the appellant’s (plaintiff in this matter) case, two results should flow: (i) counsel who brought the motion for non-suit should be held to his or her election and should not, after losing the motion, be entitled to withdraw the election and call evidence; and, (ii) counsel should then be entitled to argue that, notwithstanding the judge’s ruling that there is some evidence supporting the appellant’s case (or the case of whoever has the onus), the evidence is insufficient to satisfy the onus. This is the distinction between no evidence, which is a question of law, and insufficient evidence, which is a question of fact.
[47] In this case, despite the existing summary judgment motion, as amended to summary trial, the Aestival Defendants did not respond by putting forward evidence by way of a responding Motion Record, as required by Rule 213(4). They submitted before me and in their written submissions pertaining to non-suit that they believed, if they were unsuccessful on the non-suit motion, that they then would be at liberty to file additional affidavit material in response to the amended summary trial motion to establish that there is a genuine issue for trial. In that regard, they would have it that the summary trial motion would be adjourned, given the late amendment of the Plaintiff’s Notice of Motion, to accommodate this.
[48] At the hearing I declined to grant an adjournment. It had taken considerable time and effort to set the summary trial date. The Registry’s summary of recorded entries indicates that the Aestival Defendants had not been responsive to efforts to set a date and, ultimately, a Direction was issued by the Court advising that if a date was not agreed, one would be set. Further, in my view, it would have been unfair to the other parties who had prepared for and attended at the summary trial motion to adjourn in these circumstances.
[49] The Aestival Defendants also had ample opportunity to file a response to the summary judgment motion and made a strategic decision not to do so. In that regard, the Direction of the Chief Justice set out the dates by which the Defendants were to file motion records in response to the summary judgment motion. The Aestival Defendants declined to do so and, instead, made a decision to attempt to file a motion for non-suit in the summary judgment motion, which was declined by the Court. The subsequent Direction issued by Prothonotary Lafrenière granted leave to the Plaintiff to serve and file the Amended Notice of Motion by which the motion for summary judgment was amended to summary trial and dispensed with the requirement of the Plaintiff to serve and file an Amended Motion Record. The only change to the Notice of Motion was to the following sentence: “An Order pursuant to Rule 213 (1) for a summary trial with judgment in favour of the Plaintiff against each and all of the Defendants […]”.
[50] The Aestival Defendants argue that because of this amendment, they were again free to file a responding Motion Record. Whether or not, in the prevailing circumstances, this was so, the Aestival Defendants would have had to file their responding motion record by April 28, 2014 in accordance with Rule 213(4). This is because the Direction permitting the Plaintiffs to file and serve an amended Notice of Motion was issued on April 22, 2014 and the Amended Notice of Motion was filed on the same date. The hearing of this matter had previously been scheduled for May 7, 2014 and this was not altered by the amendment or the Direction. Rule 213(4) requires a party served with a motion for summary judgment or trial to serve and file a responding motion record not later than 10 days before the hearing date which would have been April 28, 2014. Therefore, I do not see how this argument assists the Aestival Defendants as they still had not filed a Motion Record in response to the amended summary trial Notice of Motion as of the date of the hearing.
[51] Given the foregoing, I am of the view that the Aestival Defendants clearly made a decision to call no evidence by declining to file a Motion Record responding to the motion for summary judgment, or a Motion Record responding to the motion as amended to summary trial. They are now bound by that decision with respect to the filing of evidence regardless of any implicit election in connection with the non-suit motion.
[52] Accordingly, the Motion Record of the Aestival Defendants, entitled “Motion Record Rule 214(2) Of the Vessel Defendants”, containing a Notice of Motion dated May 7, 2014 seeking an order granting leave to file Higgs Affidavit #1, submitted during this proceeding shall not be filed and the request is denied. I would note that, in any event, the subject affidavit is already before the Court as part of the Plaintiff’s Motion Record. Similarly, the Aestival Defendants’ alternate request, as contained in that Notice of Motion, for an order permitting further filing of affidavit material in response to the Plaintiff’s Amended Notice of Motion, is also denied.
ISSUE 4: Should this matter proceed by way of summary trial?
Summary Judgment and Summary Trial
Jugement et procès sommaires
Motion and Service
Requête et signification
Motion by a party
213. (1) A party may bring a motion for summary judgment or summary trial on all or some of the issues raised in the pleadings at any time after the defendant has filed a defence but before the time and place for trial have been fixed.
Requête d’une partie
213. (1) Une partie peut présenter une requête en jugement sommaire ou en procès sommaire à l’égard de toutes ou d’une partie des questions que soulèvent les actes de procédure. Le cas échéant, elle la présente après le dépôt de la défense du défendeur et avant que les heure, date et lieu de l’instruction soient fixés.
[…]
[…]
Obligations of moving party
(3) A motion for summary judgment or summary trial in an action may be brought by serving and filing a notice of motion and motion record at least 20 days before the day set out in the notice for the hearing of the motion.
Obligations du requérant
(3) La requête en jugement sommaire ou en procès sommaire dans une action est présentée par signification et dépôt d’un avis de requête et d’un dossier de requête au moins vingt jours avant la date de l’audition de la requête indiquée dans l’avis.
Obligations of responding party
(4) A party served with a motion for summary judgment or summary trial shall serve and file a respondent’s motion record not later than 10 days before the day set out in the notice of motion for the hearing of the motion.
Obligations de l’autre partie
(4) La partie qui reçoit signification de la requête signifie et dépose un dossier de réponse au moins dix jours avant la date de l’audition de la requête indiquée dans l’avis de requête.
Summary Judgment
Jugement sommaire
Facts and evidence required
214. A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial.
Faits et éléments de preuve nécessaires
214. La réponse à une requête en jugement sommaire ne peut être fondée sur un élément qui pourrait être produit ultérieurement en preuve dans l’instance. Elle doit énoncer les faits précis et produire les éléments de preuve démontrant l’existence d’une véritable question litigieuse.
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Summary Judgment
Procès sommaire
Motion record for summary trial
216. (1) The motion record for a summary trial shall contain all of the evidence on which a party seeks to rely, including
(a) affidavits;
(b) admissions under rule 256;
(c) affidavits or statements of an expert witness prepared in accordance with subsection 258(5); and
(d) any part of the evidence that would be admissible under rules 288 and 289.
Dossier de requête en procès sommaire
216. (1) Le dossier de requête en procès sommaire contient la totalité des éléments de preuve sur lesquels une partie compte se fonder, notamment :
a) les affidavits;
b) les aveux visés à la règle 256;
c) les affidavits et les déclarations des témoins experts établis conformément au paragraphe 258(5);
d) les éléments de preuve admissibles en vertu des règles 288 et 289.
Further affidavits or statements
(2) No further affidavits or statements may be served, except
(a) in the case of the moving party, if their content is limited to evidence that would be admissible at trial as rebuttal evidence and they are served and filed at least 5 days before the day set out in the notice of motion for the hearing of the summary trial; or
(b) with leave of the Court.
Affidavits ou déclarations supplémentaires
(2) Des affidavits ou déclarations supplémentaires ne peuvent être signifiés que si, selon le cas :
a) s’agissant du requérant, ces affidavits ou déclarations seraient admissibles en contre-preuve à l’instruction et leurs signification et dépôt sont faits au moins cinq jours avant la date de l’audition de la requête indiquée dans l’avis de requête;
b) la Cour l’autorise.
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Adverse inference
(4) The Court may draw an adverse inference if a party fails to cross-examine on an affidavit or to file responding or rebuttal evidence.
Conclusions défavorables
(4) La Cour peut tirer des conclusions défavorables du fait qu’une partie ne procède pas au contre-interrogatoire du déclarant d’un affidavit ou ne dépose pas de preuve contradictoire.
[53] For the reasons set out above, the Aestival Defendants’ materials entitled “The Vessel Defendants Submission on Summary Judgment” and “The Vessel Defendants Brief of Authorities on Summary Judgment”, both dated May 7, 2014 and tendered on the Court at the hearing on that date, shall not be filed by the Registry.
[54] It is of note, however, that these documents address summary judgment and submit that the Plaintiff cannot succeed as it cannot establish that the Aestival Defendants have no genuine issue for trial.
[55] While it is correct that, in a summary judgment matter, the Court is to determine if there is a genuine issue for trial, in a summary trial the Court actually tries the issues raised by the pleadings and weighs the evidence contained in the affidavits to determine certain issues or the full matter and judgment can be given (Society of Composers, Authors and Music Publishers of Canada v Maple Leaf Sports & Entertainment, 2010 FC 731 at paras 13-17, 40-47 [Society of Composers]; Inspiration Management, (1989), 36 BCLR (2d) 202 at para 40; Teva Canada, above, at para 32(a)).
[56] In this case, the amendment of the Notice of Motion from one of summary judgment to summary trial changed the purpose of the motion from a determination of whether there was a genuine issue for trial, to a determination of the outcome of the claim. The Aestival Defendants’ submissions are, therefore, and in any event, not relevant to the question of whether this matter should proceed by way of summary trial which, in my view, it should.
[57] Justice Hughes canvassed the relevant Federal Court jurisprudence on summary trial in Teva Canada, above, at paras 28-37, appeal allowed on other grounds, 2012 FCA 1