Summary Judgement (SCSM)

Van de Vrande v. Butkowsky, 2010 ONCA 230 (CanLII)

[1] ROULEAU J.A.: -- Rule 12.02 of the Rules of the Small Claims Court, O. Reg. 258/98 allows a party to bring a motion to strike out or amend a document. Pursuant to this rule, the appellant, Dr. Irwin Butkowsky, brought a motion for summary judgment in an action brought against him by the respondent, Robertus Van de Vrande. The trial judge granted the motion, finding that the appellant was immune from suit and that the action was brought beyond the applicable limitation period. The Divisional Court set aside the order, finding that the trial judge had erred by making findings of fact on the motion.

[2] The appellant appeals from the order of the Divisional Court. In so doing, he raises the question of the availability of a motion for summary judgment under the Small Claims Court Rules. For the reasons that follow, I have concluded that the procedure of a motion for summary judgment is not available under the Small Claims Court Rules but that the motion judge's decision is nonetheless sustainable under rule 12.02. Facts

[5] The Divisional Court set aside the motion judge's order. Applying the jurisprudence emanating from Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, it found that, on a motion for summary judgment, the motion judge was not entitled to make findings of fact. She therefore erred in granting summary judgment pursuant to the doctrine of expert witness immunity, as doing so required rejecting the respondent's argument that the appellant had gone beyond his role as assessor and was therefore not entitled to such immunity. Similarly, in granting summary judgment because the action was commenced after the applicable limitation period, the motion judge erred in finding that the cause of action had not become discoverable prior to the coming into force of the Limitations Act, 2002 on January 1, 2004. Issues

[6] The appellant raises the following two grounds of appeal: (1) whether a motion for summary judgment is available under the Small Claims Court Rules; (2) whether the trial judge erred in finding that the two-year limitation period in the Limitations Act, 2002 was applicable and that the appellant was immune from suit as an expert witness.

[7] For the reasons that follow, I would allow the appeal. Analysis (1) Availability of a motion for summary judgment