Moss v. Crane et al., 2013 MBQB 135

• Judge: Mainella, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: June 05, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 135;(2013), 293 Man.R.(2d) 59 (QB)

Moss v. Crane (2013), 293 Man.R.(2d) 59 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JN.046

Danny Moss (plaintiff) v. J. Edward (Ted) Crane and Inkster Christie Hughes LLP (defendants)

(CI 11-01-75381; 2013 MBQB 135)

Indexed As: Moss v. Crane et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Mainella, J.

June 5, 2013.

Summary:

A Master denied the plaintiff's request for leave to file a sur-reply affidavit on a summary judgment motion. The plaintiff appealed.

The Manitoba Court of Queen's Bench dismissed the appeal.

Courts - Topic 589

Judges - Duties - To self-represented party - [See third Practice - Topic 3604.6 ].

Courts - Topic 1127

Masters - Appeals from - Standard of review - A Master denied the plaintiff's request for leave to file a sur-reply affidavit on a summary judgment motion - On the plaintiff's appeal, the Manitoba Court of Queen's Bench stated, "The appeal of the Master's decision to deny leave to the plaintiff to rely on sur-reply evidence is a hearing de novo. See Queen's Bench Rule 62.01(13). While consideration should be given to the Master's decision, no deference is owed. There is no limit on my ability to exercise an independent discretion." - See paragraph 45.

Practice - Topic 3604.6

Evidence - Affidavits - General - Supplementary or reply affidavits - A Master denied the plaintiff's request for leave to file a sur-reply affidavit on a summary judgment motion - On the plaintiff's appeal, the Manitoba Court of Queen's Bench discussed the law of evidence about sur-reply and its applicability to a civil motion - Sur-reply evidence was possible on a civil motion - However, because a party had no right to file sur-reply evidence on a motion under the Queen's Bench Rules or at common law, a sur-reply affidavit was presumptively inadmissible on a civil motion until the court was satisfied that it met the admissibility requirements of the common law and granted the party leave to file it - An analogy to Queen's Bench Rule 70.20(11) in family proceedings was appropriate - A sur-reply affidavit required leave of the court - See paragraphs 18 to 35.

Practice - Topic 3604.6

Evidence - Affidavits - General - Supplementary or reply affidavits - A Master denied the plaintiff's request for leave to file a sur-reply affidavit on a summary judgment motion - On the plaintiff's appeal, the Manitoba Court of Queen's Bench discussed the law of evidence about sur-reply and its applicability to a civil motion - Sur-reply evidence was reserved for "exceptional circumstances" - The common law required a court to carefully examine three issues before granting leave to a party to file sur-reply evidence: (1) was the responding party case-splitting?; (2) what was the purpose of the sur-reply evidence?; and (3) was the sur-reply evidence material? - A final important consideration was that cross-examination of the moving party on its reply affidavit would in most cases reveal whether the sur-reply evidence was truly necessary or admissible such that leave to file should be granted - See paragraphs 36 to 44.

Practice - Topic 3604.6

Evidence - Affidavits - General - Supplementary or reply affidavits - A Master denied the plaintiff's request for leave to file a sur-reply affidavit on a summary judgment motion - The Manitoba Court of Queen's Bench dismissed the plaintiff's appeal - The rules of court did not give the right to file endless affidavits - The plaintiff's sur-reply affidavit did not meet the strict and exceptional requirements of the common law to admit it as evidence on the summary judgment motions - The correct procedure for the plaintiff to challenge the defendant's credibility was not via his sur-reply affidavit - Rather, it was through cross-examination of the defendant on the defendant's affidavits in light of any information gained through discovery - The plaintiff's reticence to cross-examine due to supposed impecuniosity or lack of legal training was not persuasive - There were not two sets of rules of court, one for parties with lawyers and one for self-represented litigants - The plaintiff did not have the right to pick and choose the rules he wished to follow or make up new rules - See paragraphs 46 to 59.

Practice - Topic 3604.6

Evidence - Affidavits - General - Supplementary or reply affidavits - A Master denied the plaintiff's request for leave to file a sur-reply affidavit on a summary judgment motion - The Manitoba Court of Queen's Bench dismissed the plaintiff's appeal - The Master reached the correct decision - The plaintiff's sur-reply affidavit offended the requirements of the common law - The plaintiff was improperly case-splitting by advancing new issues in his sur-reply affidavit, such as reference to documents obtained during discovery - The sur-reply affidavit also reasserted and revisited many facts the plaintiff had previously made - Finally, there was nothing material in the sur-reply affidavit to the issues on the summary judgment motions - Much of the affidavit was irrelevant - After considering the reasons of the Master and exercising the court's independent discretion, the court concluded that the plaintiff's sur-reply affidavit was not admissible on the hearing of the summary judgment motions - See paragraphs 60 to 64.

Cases Noticed:

Moss (Bankrupt), Re (2010), 251 Man.R.(2d) 286; 478 W.A.C. 286; 2010 MBCA 39, leave to appeal dismissed (2010), 413 N.R. 390 (S.C.C.), refd to. [para. 3].

Gant v. Hobbs, [1912] 1 Ch. 717, refd to. [para. 18].

Patten et al. v. Bernard et al., [1967] 1 O.R. 18 (C.A.), refd to. [para. 24].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61, refd to. [para. 24].

B.F. Goodrich Canada Ltd. v. Mann's Garage Ltd. (1959), 21 D.L.R.(2d) 33 (N.B.Q.B.), refd to. [para. 25].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 27].

R. v. Melnichuk (L.), [1997] 1 S.C.R. 602; 209 N.R. 321; 99 O.A.C. 218, refd to. [para. 27].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 38 O.R.(3d) 175 (C.A.), affd. [1993] 3 S.C.R. 866; 250 N.R. 98; 129 O.A.C. 283, refd to. [para. 27].

McPhee v. British Columbia (Minister of Transportation and Highways) et al. (2005), 210 B.C.A.C. 80; 348 W.A.C. 80; 38 B.C.L.R.(4th) 328; 2005 BCCA 139, refd to. [para. 27].

Mack v. Century Insurance Co. et al. (1984), 46 C.P.C. 139 (B.C.C.A.), refd to. [para. 28].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161, refd to. [para. 28].

Erco Industries Ltd. v. Allendale Mutual Insurance Co. (1987), 25 O.A.C. 130; 62 O.R.(2d) 766 (C.A.), refd to. [para. 28].

R. v. Parkin (1922), 66 D.L.R. 175 (Man. C.A.), refd to. [para. 28].

R. v. Biddle (E.R.), [1995] 1 S.C.R. 761; 178 N.R. 208; 79 O.A.C. 128, refd to. [para. 29].

R. v. Barnes, [1982] O.J. No. 168 (C.A.), refd to. [para. 29].

Bodnarchuk v. RBC Life Insurance Co. et al., [2009] Man.R.(2d) Uned. 76; 2009 MBQB 241 (Master), revd. (2010), 253 Man.R.(2d) 7; 2010 MBQB 85, revd. (2011), 262 Man.R.(2d) 225; 507 W.A.C. 225; 2011 MBCA 18, refd to. [para. 31].

Ali Arc Industries LP et al. v. S & V Manufacturing Ltd. et al. (2011), 265 Man.R.(2d) 1; 2011 MBQB 95 (Master), refd to. [para. 32].

Beatty v. Megill-Stephenson Co. (1993), 86 Man.R.(2d) 40 (Q.B.), refd to. [para. 43].

Jacobson Estate v. Freed et al. (1994), 97 Man.R.(2d) 197; 79 W.A.C. 197 (C.A.), refd to. [para. 45].

ABI Biotechnology Inc. v. Apotex Inc. et al. (2008), 231 Man.R.(2d) 259; 437 W.A.C. 259; 2008 MBCA 146, refd to. [para. 45].

Ridout v. Ridout (2006), 205 Man.R.(2d) 146; 375 W.A.C. 146; 2006 MBCA 59, refd to. [para. 55].

Manitoba Agricultural Services Corp. v. Domenco (2007), 220 Man.R.(2d) 214; 407 W.A.C. 214; 2007 MBCA 125, refd to. [para. 55].

Fegol v. National Post Co. et al. (2007), 212 Man.R.(2d) 294; 389 W.A.C. 294; 2007 MBCA 27, refd to. [para. 55].

Moss v. Olson, [1994] M.J. No. 573 (Q.B.), refd to. [para. 56].

Moss v. Canada, [1997] T.C.J. No. 712, refd to. [para. 56].

Laurentian Trust of Canada Inc. et al. v. Moss, [1998] Man.R.(2d) Uned. 3 (Q.B. Master), refd to. [para. 56].

Moss (Bankrupt), Re (1998), 125 Man.R.(2d) 294 (Q.B. Bktcy.), refd to. [para. 56].

Moss v. Canada, [1999] T.C.J. No. 671, refd to. [para. 56].

Moss v. Canada, [1999] F.C.J. No. 656 (C.A.), refd to. [para. 56].

Moss v. Canada, [1999] T.C.J. No. 670, refd to. [para. 56].

Moss (Bankrupt), Re (2001), 158 Man.R.(2d) 41; 2001 MBQB 199, refd to. [para. 56].

Moss (Bankrupt), Re (2003), 172 Man.R.(2d) 199; 2003 MBQB 82 (Bktcy.), refd to. [para. 56].

Moss (Bankrupt), Re, [2004] Man.R.(2d) Uned. 32; 2004 MBCA 39, refd to. [para. 56].

Moss v. Keith G. Collins Ltd. - see Moss (Bankrupt), Re.

Moss (Bankrupt), Re (2004), 198 Man.R.(2d) 95; 2004 MBQB 265 (Reg.), refd to. [para. 56].

Moss (Bankrupt), Re, [2004] Man.R.(2d) Uned. 32; 2004 MBCA 70, refd to. [para. 56].

Moss (Bankrupt), Re, [2005] Man.R.(2d) Uned. 121; 2005 MBQB 203 (Reg.), refd to. [para. 56].

Moss Estate (Bankrupt), Re, [2005] Man.R.(2d) Uned. 27; 2005 MBQB 46, refd to. [para. 56].

Moss Estate (Bankrupt), Re (2005), 192 Man.R.(2d) 305; 340 W.A.C. 305; 2005 MBCA 59, refd to. [para. 56].

Collins (Keith G.) Ltd. v. Moss, [2011] Man.R.(2d) Uned. 51; 2011 MBQB 123, refd to. [para. 56].

Moss Estate v. Moss - see Collins (Keith G.) Ltd. v. Moss.

Moss v. Canada, [1992] T.C.J. No. 812, refd to. [para. 57].

Moss (Bankrupt), Re (2001), 157 Man.R.(2d) 310; 2001 MBQB 195, refd to. [para. 57].

Moss v. Canada, [2001] T.C.J. No. 592, refd to. [para. 57].

Moss v. Canada, [2008] F.T.R. Uned. 541; 2008 FC 768, refd to. [para. 57].

Moss v. Canada, 2005 TCC 139, refd to. [para. 57].

Director of Child and Family Services (Man.) v. J.A. et al. (2004), 190 Man.R.(2d) 298; 335 W.A.C. 298; 2004 MBCA 184, refd to. [para. 57].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N. and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), p. 1166 [para. 26].

Counsel:

D. Moss, appeared in person;

Stephen F. Vincent, for the defendants.

This appeal was heard by Mainella, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on June 5, 2013.