Horgan v. Tanktek Environmental Services Ltd.

Horgan v. Tanktek Environmental Services Ltd.

The motion judge's dismissal of the appellants' motion without inviting or permitting submissions and his conclusion that the motion could not proceed due to procedural technicalities breached natural justice; because the partial summary judgment depended on that dismissal, both orders must be set aside and the matter remitted to a different motion judge.

Citation
2009 ONCA 109
Parties
Plaintiff/appellant: Theresa Lynn Horgan; Plaintiff/appellant: Michael David Horgan; Defendant/respondent: Tanktek Environmental Services Ltd.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
4 February 2009
Procedural Posture
Civil / Appeal From Motion Judge Order Dismissing Motion to Add Parties and Granting Partial Summary Judgment; Remitted to a Different Motion Judge
Outcome
Appeal allowed; orders of the motion judge set aside; matter remitted to the court below to be dealt with by a different motion judge; costs awarded to appellants fixed and prior costs order set aside.
Legal Topics
Motion to Add Parties, Rule 37.10.1, Rule 48.04(1), Partial Summary Judgment, Natural Justice, Limitations Issue
Source Language
English
Civil Procedure Appeals Costs Administrative Law Motion to Add Parties Rule 37.10.1 Rule 48.04(1) Partial Summary Judgment +2 more

Case Brief

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Parties

Theresa Lynn Horgan

Plaintiff/appellant

Michael David Horgan

Plaintiff/appellant

Tanktek Environmental Services Ltd.

Defendant/respondent

Procedural Posture

Civil / Appeal From Motion Judge Order Dismissing Motion to Add Parties and Granting Partial Summary Judgment; Remitted to a Different Motion Judge

Legal Issues

  1. 1 Whether the motion judge properly refused to permit the appellants' motion to add parties for failure to file a confirmation form under r.37.10.1
  2. 2 Whether leave under rule 48.04(1) was required and whether the motion judge could rule on that without inviting submissions
  3. 3 Whether dismissing the motion without permitting submissions breached natural justice and fair procedure

Ratio Decidendi

The motion judge's dismissal of the appellants' motion without inviting or permitting submissions and his conclusion that the motion could not proceed due to procedural technicalities breached natural justice; because the partial summary judgment depended on that dismissal, both orders must be set aside and the matter remitted to a different motion judge.

Court Disposition

Appeal allowed; orders of the motion judge set aside; matter remitted to the court below to be dealt with by a different motion judge; costs awarded to appellants fixed and prior costs order set aside.

Orders

  • Orders of Flynn J. dismissing the motion to add parties and granting partial summary judgment are set aside
  • Matter remitted to the court below to be dealt with by a different motion judge