PWC brought a motion for summary judgement. At issue in the motion was only the plaintiffs' alleged damages. The plaintiffs and defendants each submitted affidavits containing estimates of the damages, with a liquidator for the plaintiffs, Mr. Krys, estimating just over 2.4 billion dollars and the defendant's expert, Dr. Marais, estimating that the plaintiffs were financially better off for not having been aware of the fraud in April 2007.
It was argued by the plaintiffs that with competing experts the issue should not be decided by summary judgement. Justice Newbould described such an argument in this case as being "overblown". He cites the Supreme Court of Canada's decision in Hryniak v. Mauldin, in which they wrote that there is no genuine issue for trial and summary judgement must be made if the summary judgement process "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result."
Justice Newbould described such an argument [...] as being "overblown |
In his view, he had sufficient evidence in front of him to evaluate the evidence and fairly decide the single issue of what damages would have been suffered had PWC discovered the fraud during their audit in April 2007, rather than it being discovered in 2008. He considered the evidence and criticisms put forward by the affidavits and the cross-examinations of the witnesses and ultimately agreed with the findings of the defendants' expert, Dr. Marais.
Most counsel believed that it would be impossible to obtain summary judgment to dismiss a claim when there were competing accounting experts touting complicated theories of damages arising from a complex fact situation with a very large quantum claimed. Justice Newbould stripped away the clutter and felt confident that he could determine the quantum of damages and dismissed the claim having determined that the plaintiff did not suffer any damages. This decision gives hope to all that summary judgment may be considered more often as a means of ending long and expensive disputes at an early stage even where the damage claim is large and the issues are complex requiring expert evidence.
