Consequences of summary judgment motion in context of litigation as whole must be considered

Defendant vendors refused to close commercial farm real estate transaction, alleging unconscionability, non est factum, collusion and conspiracy against plaintiff purchasers and third party real estate agents. Plaintiffs commenced action for specific performance and damages for breach of agreement in alternative. Plaintiff subsequently moved for judgment enforcing agreement of purchase and sale and granting specific performance. After receiving service of motion, defendants delivered statement of defence and counterclaim and issued third party claim against real estate agents who represented both parties on transaction. Defendants alleged agreement was unconscionable because agents exerted undue pressure on them. Motion judge granted summary judgment declaring agreement of purchase and sale valid but denied remedy of specific performance and ordered trial to determine damages. Motion judge made adverse credibility findings against defendants and found evidence did not establish that transaction was unconscionable. Motion judge also stated that even if there was evidence of misrepresentation by agents, remedy was against agents and not innocent respondents. Defendants appealed. Appeal allowed. While enhanced powers under R. 20.04 of Rules of Civil Procedure are to be used to achieve “a proportionate, more expeditious and less expensive means to achieve a just result”, consequences of motion in context of litigation as whole must be considered. Motion judge erred by failing to consider whether, in granting partial summary judgment, there was risk of duplicative or inconsistent findings at trial of counterclaim and third-party claim. Motion judge also erred by failing to consider whether summary judgment was advisable in context of litigation as whole. Issues were not readily bifurcated and motion judge made credibility findings concerning defendants and their relationship with real estate agents that were at core of counterclaim and third-party claim Motion was required to consider whether oral evidence was required to determine credibility issues. In addition, order did not result in issues ultimately being dealt with in expeditious and cost-effective manner since counterclaim, third party claim and damages determination still had to proceed to trial.

Vandenberg v. Wilken (2019), 2019 CarswellOnt 4881, 2019 ONCA 262, K. Feldman J.A., S.E. Pepall J.A., and L.B. Roberts J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 17154, 2017 ONSC 6665, R. Raikes J. (Ont. S.C.J.).