Restriction on Use of Summary Judgment Where Key Issues Turn on Credibility

Bianca Thomas, B.Sc.(Hons.), J.D.Appeals, Real Estate Litigation, Summary Judgment0 Comments

Since the Supreme Court of Canada’s landmark decision in Hryniak v Mauldin, 2014 SCC 7, summary judgment has been lauded as an effective tool to enhance access to justice and achieve cost-effective results for litigants. Indeed, in recent years, summary judgment motions have become more common, making trials in civil litigation a rare occurrence. But has the pendulum begun to swing now in the opposite direction?

The Court of Appeal’s recent decision in Lesenko v Guerette, 2017 ONCA 522, challenges the limits of summary judgment, and outlines that it may not be appropriate in cases where key issues turn on the credibility of the parties.

In Lesenko, a husband, his wife, and his sister decided to sell their respective homes and buy a house together. The sister sold her home, and some of those sale proceeds went to pay for the entire purchase price of the subject property. The sister was not listed though in the agreement of purchase and sale as a buyer. The husband and wife claimed to have paid a large amount of money for materials and labour which went toward the renovation of the house, and they also claimed to have worked on the property. The sister moved out and claimed that the funds were provided pursuant to an oral agreement, wherein each individual would have one-third ownership in the property.

The sister brought a successful motion for summary judgment. Justice Hebner held that the sister had an interest in the property for the full purchase price, plus an additional $30,000.00 for her contribution to renovating the property.

The husband and wife appealed the decision. The Ontario Court of Appeal allowed the appeal, holding that given the important issues which turned on credibility in this case, the failure to make findings on credibility was an error. If credibility cannot be assessed on a written record, then that is an indication that oral evidence or a trial is required. The Court commented that there was little explanation as to why the motion judge rejected the husband and wife’s version of circumstances, when there was a great deal of affidavit evidence in their favour. The Court went on to opine that the motion for summary judgment was premature and should not have been brought until the positions of the parties and the issues were well defined.

If you are involved in a real estate dispute, would like to know whether your case may be a good candidate for summary judgment, or would like to know whether to appeal a decision from a summary judgment motion, contact us for an initial consultation.


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About the Author
Bianca Thomas, B.Sc.(Hons.), J.D.

Bianca Thomas, B.Sc.(Hons.), J.D.

Bianca Thomas is an associate at Gilbertson Davis. She maintains a broad litigation practice, and has an interest in commercial and business disputes (including oppression remedy claims and fraud litigation), and cross-border litigation.

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