PRACTICE |
Costs |
ITV Technologies, Inc. v. WIC Television Ltd.
T-1459-97
Stinson T.O.
12/1/00
22 pp.
Assessment--Plaintiff's application for summary judgment dismissed with costs in any event of cause and forthwith--Charges for expert opinions disallowed as premature--Threshold for summary judgment includes "best foot forward" principle, requiring respondent in summary judgment proceeding to produce sufficient evidence to show cause genuine issue for trial--Not sufficient for respondent to merely state more, better evidence available at trial: evidence must be led in summary judgment proceeding--Intent of motion for summary judgment for reference to determine damages subsequent to hearing--Scheme of Federal Court Rules, 1998, rr. 153 to 162 providing for evidence led specifically for reference--Therefore Sweetman affidavit concerning damages premature; costs thereof cannot be assessed at this stage--Goldstein affidavit addressing substantive issues of liability--Generally purpose of summary judgment to remove matters from trial system having no genuine factual dispute for trial and to grant judgment accordingly--Use of expert opinions, in context of r. 20 of Ontario Rules of Civil Procedure, appears to require Court to assess competing allegations of fact, but without assistance of experts, on basis summary judgment as tool to expedite identification of genuine issues for trial not compromising right of parties to test allegations via full hearing at trial, including cross-examination of factual, expert witnesses--Kirkbi AG v. Ritvik Holdings Inc. (1998), 150 F.T.R. 205 (F.C.T.D), in context of old R. 432.2(2) emphasizing importance in summary judgment proceedings of direct evidence of material facts--In F. Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology Inc. (1999) 1 C.P.R. (4th) 88 (F.C.T.D.) Court maintaining consistent approach in context of Federal Court Rules, 1998--Comparing test in this Court against that posed by Ontario r. 20 and noting narrower test in this Court may be attributable to fact Ontario not having equivalent to Federal Court Rules, 1998, r. 216(3), permitting summary judgment if genuine issue exists, if Court able on whole of evidence to find facts necessary to decide questions of fact, law--Neither case addressing use of experts--Individual cases in which expert opinion led in summary judgment proceeding considered--Not addressing allowability of experts at summary judgment stage, but rather timing for testing of opinions relative to application in determination of substantive issues of litigation--Establishment of conflicting expert opinions as opposed to conflicting factual allegations appeared to satisfy Court as to onus on respondent in summary judgment proceeding--Not implicit confirmation of need for experts in summary judgment proceedings--R. 215 (and predecessor, R. 432.2) emphasizing necessity of setting out material facts, not necessity for expert evidence to assist Court in assessing conflicting versions of fact to confirm whether genuine issue for trial existing--Role of expert evidence set out in R. v. Mohan, [1994] 2 S.C.R. 9: generally, whether evidence helpful to trier of fact--In summary judgment process Court not trier of fact--Although rr. 43, 279 to 281 read with Tariff A3, contemplating full oral testimony by expert at trial, in ordinary circumstances no role for experts in summary judgment proceedings--That Goldstein affidavit helpful not establishing allegations of fact could not have been addressed by defendant, relative to threshold to be met in summary judgment proceeding, by other means than expert evidence--Relevance, necessity in terms of substantive issues in litigation not decided in disallowing costs for both experts--Only determined costs not relevant in context of ordinary threshold for summary judgment proceedings--Federal Court Rules, 1998, SOR/98-106, rr. 43, 153-162, 215, 216, 279-281--Federal Court Rules, C.R.C., c. 663, R. 432.2 (as enacted by SOR/94-41, s. 5)--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.