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