Speed and civil justice are not two things that usually go together, but a motion for summary judgment can be a fast track to resolution when used appropriately.
The summary judgment rule in Ontario’s Rules of Civil Procedure grants judges enhanced fact-finding powers, allowing them to decide cases finally without the need for a full trial. In a landmark 2014 decision, the Supreme Court of Canada also encouraged a broad interpretation of the rule in the pursuit of “proportionality and fair access to the affordable, timely and just adjudication of claims.”
Even partial summary judgment — where a judge decides certain key issues based on a limited record — can move parties a long way towards a final resolution, by narrowing the issues in dispute and encouraging the parties to settle those that remain.
In the recent case of Paradigm Change Consulting Inc. v. Boparai, the Court of Appeal for Ontario upheld a lower court judge’s decision to grant partial summary judgment in favour of an elderly couple against a former mortgage broker.
The facts
The elderly couple at the heart of the case initially provided more than $1 million to the mortgage broker for his company to invest in various schemes, before reinvesting some of the proceeds in a North Bay condo development that was ultimately never built.
After the mortgage broker’s licence was revoked for fraudulent dealings, the couple — who are related to him by marriage — eventually launched an action against him to recover their funds and obtained a Mareva injunction over his assets, preventing the sale of the North Bay project.
On the motion for summary judgment, an Ontario Superior Court judge granted partial summary judgment, ordering the mortgage broker and his companies to pay the couple approximately $1.6 million after finding that he had engaged in a fraudulent scheme to defraud them of their money. The judge also continued the Mareva injunction, preventing the sale of the North Bay property.
That prompted an appeal by the now-former mortgage broker, who argued that the lower court judge had overstepped the mark on summary judgment by deciding matters, including issues of credibility, that should have been left to a trial judge with the benefit of a complete record.
The results
A unanimous panel of three Appeal Court judges sided with the elderly couple, finding that there were no triable issues concerning the amounts she awarded to them, particularly considering the mortgage broker’s admission that he owed the couple money.
In addition, the panel said that the motion judge had acted within her powers under Rule 20 of the Rules of Civil Procedure, which allowed her to:
- weigh the evidence;
- evaluate the credibility of a defendant;
- draw any reasonable inference from the evidence.
“She found that Mr. Boparai ‘engaged in fraudulent misrepresentation in his dealings with [the respondents]’ and that the respondents suffered damages as a result of his actions. Those findings were open to the motion judge on the record,” the Appeal decision reads.
There was equally little basis to interfere with the motion judge’s decision to continue the Mareva injunction, the Appeal Court panel added, concluding that the decision was “amply justified” by her findings regarding the mortgage broker’s past fraudulent conduct and the couple’s potential vulnerability to him in the event the injunction was lifted.
The case will now move to trial on the remaining issues, including the amount of any punitive damages and prejudgment interest owing to the couple.
The lessons
I’m a big fan of the time and cost savings that come with a well-executed motion for summary judgment in appropriate cases, so it’s always encouraging to see the Court of Appeal endorsing a lower court judge’s full use of their powers under that rule.
In truth, the appeal here was a bit of a Hail Mary from the mortgage broker’s point of view. Once he had admitted that he owed the opposing party money, it was always going to be an uphill battle for him to win at the first instance, let alone on appeal, where higher judges give deference to the lower court’s findings of fact.