Vrande v. Butkowsky,

• Jurisdiction: Ontario
• Judge: Weiler, Blair and Rouleau, JJ.A.
• Neutral Citation: 2010 ONCA 230
• Citation: (2010), 260 O.A.C. 323 (CA),2010 ONCA 230,99 OR (3d) 641,319 DLR (4th) 132,[2010] OJ No 1239 (QL),260 OAC 323,85 CPC (6th) 205,260 O.A.C. 323,319 D.L.R. (4th) 132,(2010), 260 OAC 323 (CA),99 O.R. (3d) 641,[2010] O.J. No 1239 (QL)
• Date: 13 January 2010
• Court: Court of Appeal (Ontario)

Van de Vrande v. Butkowsky (2010), 260 O.A.C. 323 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.120

Robertus (Bob) Van de Vrande (plaintiff/respondent) v. Dr. Irwin Butkowsky (defendant/appellant)

(C51074; 2010 ONCA 230)

Indexed As: Van de Vrande v. Butkowsky

Ontario Court of Appeal

Weiler, Blair and Rouleau, JJ.A.

March 30, 2010.

Summary:

The defendant was a court appointed assessor in a custody dispute between the plaintiff and the defendant. The plaintiff commenced a small claims action against the defendant alleging, inter alia, negligence. The defendant brought a motion seeking summary judgment. A motion judge granted the motion, finding that the defendant, in his capacity as a court appointed assessor, was immune from suit pursuant to the doctrine of expert witness immunity. Alternatively, the action was commenced outside of the applicable two year limitation period.

The Ontario Divisional Court allowed the plaintiff's appeal and set aside the motion judge's order. The defendant appealed.

The Ontario Court of Appeal allowed the appeal and reinstated the motion judge's dismissal of the claim.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or appropriate - [See first Practice - Topic 9758 ].

Practice - Topic 9758

Small Claims - Pleadings - Amendment or striking of - A party argued that a motion for summary judgment was available under the Small Claims Court Rules (Ont.) - He argued that the absence of explicit reference to such a motion in the Rules was a gap and such a motion could be read into the Rules pursuant to rule 1.03(2) and s. 25 of the Courts of Justice Act - The Ontario Court of Appeal held that the failure to provide for summary judgment motions was not a gap in the Rules, but rather a deliberate omission - It was not up to the court to read in such a provision, particularly given that rule 12.02 specifically allowed a party to bring a motion to strike any document, including a claim, before trial - Conceptually, rule 12.02 was situated somewhere between the rules 20 and 21 of the Rules of Civil Procedure - It was not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in rule 20 of the Rules of Civil Procedure where the responding party had to put his "best foot forward" - It was more akin to a rule 21 motion, although it was worded more broadly and did not have the same prohibition on the filing of affidavit evidence - It was a motion that was brought in the spirit of the summary nature of Small Claims Court proceedings and involved an analysis of whether a reasonable cause of action had been disclosed or whether the proceeding should be ended at an early stage because its continuation would be "inflammatory", a "waste of time" or a "nuisance" - Rule 12.02 motions would often be brought and responded to by self-represented litigants who lacked the extensive training of counsel - The test to be applied on such a motion ought to reflect this, and avoid the somewhat complex case law that had fleshed out the Rules of Civil Procedure - See paragraphs 8 to 21.

Practice - Topic 9758

Small Claims - Pleadings - Amendment or striking of - The defendant, a psychiatrist, was a court appointed assessor in a custody dispute between the plaintiff and the defendant - The plaintiff alleged that the defendant took on a role of mediator in the dispute - He commenced a small claims action against the defendant alleging, inter alia, negligence - The defendant brought a motion seeking "summary judgment" - Applying rule 12.02 of the Small Claims Court Rules, the motion judge found that the plaintiff's claim arose in the course of the defendant's work as a court-appointed assessor, he was therefore immune from suit pursuant to the doctrine of expert witness immunity and, as such, the claim had virtually no chance of success and ought to be struck - Alternatively, the claim had no chance of success because it was commenced outside of the applicable two year limitation period - The Ontario Court of Appeal held that the motion judge correctly referred to and applied rule 12.02 in deciding the issue before her - Although at one point she erroneously referred to the motion as one for summary judgment, that was likely due to the defendant having mislabeled his motion in that way - However, that error did not undermine the motion judge's analysis and conclusion - Based on the materials properly before her, there was no basis to interfere with her findings and conclusions - The claim could properly be viewed as a "waste of time" and struck pursuant to rule 12.02(1)(c) - See paragraphs 22 to 26.

Statutes Noticed:

Courts of Justice Act Regulations (Ont.), Rules of the Small Claims Court, rule 1.03(2) [para. 8]; rule 12.02 [para. 15].

Rules of the Small Claims Court - see Courts of Justice Act Regulations (Ont.).

Counsel:

Lisa E. Hamilton and Jay A. Skukowski, for the appellant;

Walter R. Wellenreiter, for the respondent.

This appeal was heard on January 13, 2010, before Weiler, Blair and Rouleau, JJ.A., of the Ontario Court of Appeal. Rouleau, J.A., released the following decision for the court on March 30, 2010.