Failure to cite correct test for summary judgment sufficient to doubt correctness of decision

Ontario civil | Appeal

LEAVE TO APPEAL

Failure to cite correct test for summary judgment sufficient to doubt correctness of decision

This was motion for leave to appeal dismissal of motion for summary judgment. Plaintiffs’ action arose from deaths of two victims in collision following high speed vehicle chase by officers of police service. Plaintiffs alleged that police officers were negligent. They alleged that defendants Ontario, Quebec and Canada were vicariously liable, as employers of police officers and owners of police cruisers. Ontario and Quebec brought motions for summary judgment. Motions were dismissed. Motions judge found that determination of vicarious liability would more appropriately be considered with full evidentiary record. Motions judge held that it could not be concluded that plaintiffs’ position was clearly untenable and that interests of justice required trial. Plaintiffs’ motion to further amend pleadings was granted. Leave to appeal granted. Motions judge applied test for motion to strike out claim instead of test for summary judgment, which put decision in conflict with leading decision of Court of Appeal. Motions judge’s review of evidentiary record was problematic. Decision appeared to be in conflict with case law that required responding party to put best evidentiary foot forward. Failure to cite correct test for summary judgment was sufficient to doubt correctness of decision. Motions judge’s review of evidentiary record was problematic and provided additional reason to doubt correctness of decision. With respect to decision to allow amendment, motions judge’s decision conflicted with decision of Supreme Court of Canada. There was good reason to doubt correctness of decision.
Kassian Estate v. Canada (Attorney General) (Feb. 14, 2013, Ont. S.C.J., Robert N. Beaudoin J., File No. Ottawa 10-47481) Leave to appeal from 222 A.C.W.S. (3d) 906 was allowed.  226 A.C.W.S. (3d) 923.

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