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Articles and Publications

August 2016

Featured Case: Summary Judgment in Third Party Claims  

Alive & Viable on Claims for Contribution & Indemnity

Michael Blinick
Michael Blinick,
Partner

Sean Valentine
Sean Valentine,
Associate Lawyer

 

By Michael Blinick and Sean Valentine


In a recent motion for summary judgment, McCague Borlack LLP successfully argued for the dismissal of Third Party and Fourth Party actions against its clients as it was determined that there were no genuine issues requiring a trial. While the facts of the case were unique, clients can take heed in the fact that summary judgment is available in claims for contribution and indemnity when the proper facts present themselves.

Background

In Beckford v. Bathia1, the Plaintiff sued the Defendant Bathia for damages arising from a motor vehicle accident. The Defendant then commenced a Third Party Claim against the Ministry of Transportation of Ontario (“MTO”) and alleged that dust and/or debris was present in the laneway and caused and/or contributed to the accident. The MTO then issued a Fourth Party Claim against its contractor Brennan Paving & Construction Ltd. (“Brennan”) as the MTO had retained Brennan to perform maintenance and general repair work to the highway.

Availability of Summary Judgment on Third Party Actions

Prior to addressing the factual record, the Court addressed the Court of Appeal for Ontario's decision of Baywood Homes Partnership v. Haditaghi2, where it was held that summary judgment was appropriate when it would lead to a fair and just result and would serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole [Justice Diamond's emphasis]. In this instance, summary judgment was found to be the most proportionate, timely and cost effective approach in the context of the litigation as a whole as the issue to be determined was narrow and the only issue to be determined by the trial of fact in the main action would be whether the Defendant was liable for rear-ending the Plaintiff's vehicle (and any resulting damages) the presence of debris and/or dust was irrelevant to this.3 For this reason, the summary judgment motion was allowed to be heard on its merits.

"Lead Trump or
Risk Losing
"

Obligation to “Lead Trump or Risk Losing” and Credibility

On a motion for summary judgment, the obligation on the parties is to tender all available evidence that would be available to a trial judge. While there is certainly an obligation upon moving parties to present a record that satisfies their legal and evidentiary burden to convince a motion judge that there is no genuine issue requiring a trial, this is not to be confused or conflated with the underlying onus upon a claimant to prove their claim. A claimant can never resile from this underlying onus4 and must “lead trump or risk losing”. This is demonstrated by tendering evidence capable of satisfying the underlying, and ultimate, legal onus at the trial of the action.5

The Defendant chose to only rely upon his own word on the summary judgment motion, and tendered evidence that conflicted with the independent and impartial factual record. Based on this, the Defendant's evidence was found to not be credible as it was tendered with selective hindsight, and was deemed self-serving.6 There was no evidence to effectively corroborate the Defendant's testimony.

Conclusion

As the Defendant failed to lead independent evidence to support his allegations of negligence beyond the Defendant's evidence and as his evidence was found to not be credible, summary judgment was granted on behalf of the MTO and Brennan and the dismissal of the Third and Fourth Party Claims was granted.

Justice Diamond's decision offers guidance on several important points:...

Justice Diamond's decision offers guidance on several important points:

  1. Summary judgment is available and may be successful to dismiss claims for contribution and indemnity in the proper factual circumstances;

  2. Summary judgment may be available on a claim for contribution and indemnity when the disposition of the claim would not risk duplicative proceedings, inconsistent findings of fact or the issue at hand is independent of the questions to be answered and the conclusions to be drawn in the main action; and

  3. Despite the moving party's obligation to present a record that satisfies their legal and evidentiary burdens on a motion for summary judgment, a claimant is not availed of their underlying onus to prove the merits of their claim. They must demonstrate that they have evidence capable of satisfying their underlying, and ultimate, legal onus at the trial of their claim and effectively “lead trump or risk losing”.

Effective moving counsel should heed to the above recommendations in advancing a motion for summary judgment and look for the proper factual circumstances when determining whether to proceed with such a motion. In turn, counsel representing a claimant should understand that on motion for summary judgment, it must still be demonstrated that the claimant has evidence capable of satisfying their legal onus at the trial of their claim.


1 2016 ONSC 5115. [Beckford].
2 2015 ONCA 450.
3 Beckford, supra note 1 at para. 15.
4 Beckford, supra note 1 at para. 29.
5 Beckford, supra note 1 at para. 30.
6 Beckford
, supra note 1 at para. 20, 22, and 23.


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