Combined Air Mechanical Services Inc. v. Flesch

Combined Air Mechanical Services Inc. v. Flesch

The Court held that the 2010 amendments to Rule 20 permit judges to weigh evidence, assess credibility and draw inferences on summary judgment motions and to order limited oral evidence under rule 20.04(2.2), but only after applying the ‘full appreciation test’ to determine whether those powers can produce a fair and just adjudication without a trial; the court applied that framework to the five appeals and (i) dismissed Combined Air’s appeal, (ii) affirmed summary judgment for the Mauldin group but set aside the Bruno summary judgment, (iii) dismissed the Misek appeal re prescriptive easement, and (iv) dismissed the Parker appeal upholding the need for trial, while ordering case...

Citation
2011 ONCA 764
Parties
Plaintiff (appellant): Combined Air Mechanical Services Inc.; Plaintiff (appellant): Dravo Manufacturing Inc.; Plaintiff (appellant): Combined Air Mechanical Services; Defendant (respondent): William Flesch; Defendant (respondent): WJF Investments Inc.; Defendant (respondent): Service Sheet Metal Inc.; Defendant (respondent): James Searle; Plaintiffs (respondents): Fred Mauldin et al.; Defendant (appellant): Cassels Brock & Blackwell LLP; Defendant (appellant): Gregory Jack Peebles; Defendant (appellant): Robert Hryniak; Plaintiff (respondent): Bruno Appliance and Furniture, Inc.; Plaintiff (respondent): 394 Lakeshore Oakville Holdings Inc.; Defendant (appellant): Carol Anne Misek; Defendant (appellant): Janet Purvis; Plaintiffs (appellants): Marie Parker; Katherine Stiles; Siamak Khalajabadi; Defendant (respondent): Eric Casalese; Defendant (respondent): Gerarda Dina Bianco Casalese; Defendant (respondent): Pino Scarfo; Defendant (respondent): Antonietta Di Lauro; Defendant (respondent): Mauro Di Lauro; Amicus Curiae: Attorney General of Ontario (amicus); Amicus Curiae: The Advocates’ Society (amicus); Amicus Curiae: Ontario Bar Association (amicus); Amicus Curiae: Ontario Trial Lawyers Association (amicus); Amicus Curiae: The County and District Law Presidents’ Association (amicus)
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
5 December 2011
Procedural Posture
Civil / Appeal From Superior Court Orders Applying Amended Rule 20 and Rule 76
Outcome
The Court articulated and applied the ‘full appreciation test’ for amended Rule 20 and disposed of the five appeals: Combined Air appeal dismissed; Mauldin judgment affirmed; Bruno Appliance summary judgment set aside and dismissed; 394 Lakeshore appeal dismissed; Parker appeal dismissed (trial ordered under rule...
Legal Topics
Summary Judgment, Rule 20 Amendments, Oral Evidence on Motions (rule 20.04(2.2)), Full Appreciation Test, Prescriptive Easement, Restrictive Covenants and Non Competition, Civil Fraud, Vicarious Liability, Case Management (rule 20.05), Costs (rule 20.06)
Source Language
English
Civil Procedure Property Law Contract Law Tort Law Professional Liability Costs Summary Judgment Rule 20 Amendments +8 more

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Parties

Combined Air Mechanical Services Inc.

Plaintiff (appellant)

Dravo Manufacturing Inc.

Plaintiff (appellant)

Combined Air Mechanical Services

Plaintiff (appellant)

William Flesch

Defendant (respondent)

WJF Investments Inc.

Defendant (respondent)

Service Sheet Metal Inc.

Defendant (respondent)

James Searle

Defendant (respondent)

Fred Mauldin et al.

Plaintiffs (respondents)

Cassels Brock & Blackwell LLP

Defendant (appellant)

Gregory Jack Peebles

Defendant (appellant)

Robert Hryniak

Defendant (appellant)

Bruno Appliance and Furniture, Inc.

Plaintiff (respondent)

394 Lakeshore Oakville Holdings Inc.

Plaintiff (respondent)

Carol Anne Misek

Defendant (appellant)

Janet Purvis

Defendant (appellant)

Marie Parker; Katherine Stiles; Siamak Khalajabadi

Plaintiffs (appellants)

Eric Casalese

Defendant (respondent)

Gerarda Dina Bianco Casalese

Defendant (respondent)

Pino Scarfo

Defendant (respondent)

Antonietta Di Lauro

Defendant (respondent)

Mauro Di Lauro

Defendant (respondent)

Attorney General of Ontario (amicus)

Amicus Curiae

The Advocates’ Society (amicus)

Amicus Curiae

Ontario Bar Association (amicus)

Amicus Curiae

Ontario Trial Lawyers Association (amicus)

Amicus Curiae

The County and District Law Presidents’ Association (amicus)

Amicus Curiae

Procedural Posture

Civil / Appeal From Superior Court Orders Applying Amended Rule 20 and Rule 76

Legal Issues

  1. 1 What is the scope of the judge’s powers under amended Rule 20 (weigh evidence, assess credibility, draw inferences)?
  2. 2 When is it appropriate to order viva voce/oral evidence under rule 20.04(2.2)?
  3. 3 What is the proper test for deciding summary judgment motions under amended Rule 20 (the full appreciation test)?

Ratio Decidendi

The Court held that the 2010 amendments to Rule 20 permit judges to weigh evidence, assess credibility and draw inferences on summary judgment motions and to order limited oral evidence under rule 20.04(2.2), but only after applying the ‘full appreciation test’ to determine whether those powers can produce a fair and just adjudication without a trial; the court applied that framework to the five appeals and (i) dismissed Combined Air’s appeal, (ii) affirmed summary judgment for the Mauldin group but set aside the Bruno summary judgment, (iii) dismissed the Misek appeal re prescriptive easement, and (iv) dismissed the Parker appeal upholding the need for trial, while ordering case...

Court Disposition

The Court articulated and applied the ‘full appreciation test’ for amended Rule 20 and disposed of the five appeals: Combined Air appeal dismissed; Mauldin judgment affirmed; Bruno Appliance summary judgment set aside and dismissed; 394 Lakeshore appeal dismissed; Parker appeal dismissed (trial ordered under rule...

Orders

  • Combined Air appeal dismissed; costs to be briefed in writing.
  • Mauldin v. Hryniak: Mauldin summary judgment affirmed; Bruno Appliance summary judgment set aside and dismissed; trial management orders under Rule 20.05 issued for remaining actions; parties to file submissions on disposition of the $950,000 letter of credit proceeds and costs.