Ontario Civil

Civil Practice and Procedure

Summary judgment

Requirement to show no triable issue

Resolution of credibility issues required trial

Plaintiff widened her driveway and placed fence. Plaintiff then put house on market and entered into agreement of purchase and sale. Defendant’s moved fence onto plaintiff’s driveway, claiming that plaintiff moved it when she replaced it. Plaintiff sold house, but for less than had been agreed upon with original purchasers. Plaintiff sued defendants for inducing breach of contract, nuisance and trespass. Defendants brought motion for summary judgment. Motion dismissed. Action involved issues of credibility, which could not be resolved on this record. Resolution of issues required trial. Case involved large number of witnesses. If issues raised on this motion were not resolved in defendant’s favour after hearing oral evidence, further evidence would have to be heard on issue of whether purchasers breached their agreement with plaintiff.

Himidan v. 2546579 Ontario Inc. (2018), 2018 CarswellOnt 9127, 2018 ONSC 3537, Schreck J. (Ont. S.C.J.).

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