



COURT OF APPEAL FOR ONTARIO

CITATION: R & D Partners v. Mediamix Interactive Inc.,
    2015 ONCA 284

DATE: 20150423

DOCKET: C59647

Doherty, Cronk and Huscroft JJ.A.

BETWEEN

R & D Partners, a division of 4037201 Canada
    Inc.

Plaintiff (Respondent)

and

Mediamix Interactive Inc.

Defendant (Appellant)

Andrew J. MacDonald, for the appellant

Allison A. Thornton, for the respondent

Heard and released orally: April 20, 2015

On appeal from the judgment of Justice H.J. Wilton-Siegel
    of the Superior Court of Justice, dated October 16, 2014.

ENDORSEMENT

[1]

The appellant challenges the partial summary judgment granted by the
    motion judge on various grounds.  As argued, however, the appellants main submission
    is that partial summary judgment in this case, where the action was commenced
    as a simplified proceeding under Rule 76, was not an efficient and
    proportionate way to deal with the issues in dispute between the parties.

[2]

We reject this argument.

[3]

First, there is nothing to prevent a partial summary judgment motion in
    a simplified proceeding in a proper case.  Indeed, in
Combined Air
    Mechanical Services Inc. v. Flesch
, 2011 ONCA 764, 286 O.A.C. 3, at paras.
    254-58, this court expressly recognized that summary judgment motions may be
    appropriate in some Rule 76 actions.  The Supreme Courts decision in
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87 does not deviate from that
    proposition.

[4]

Second, the appellant elected not to file any materials in response to
    the respondents summary judgment motion.  Instead, it brought a motion for
    directions shortly before and returnable on the same day as the summary
    judgment motion, seeking to stay or dismiss the respondents motion.  Leaving
    aside the timeliness of the motion for directions, the result of this
    litigation strategy was that no competing or conflicting evidence was placed
    before the motion judge on the contested issues.  There was simply no evidence
    before him challenging the respondents version of events.

[5]

Third, on the record before the motion judge, the claim in respect of
    which summary judgment was sought was a straightforward collection matter.  The
    defences sought to be advanced by the appellant were based in part on the
    allegations in its pleading.  However, it adduced no evidence to support those
    allegations.  Moreover, in one important respect (namely, the collateral
    agreement argument), the appellants pleading lent no support to the suggested
    defence.  Consequently, there was no evidentiary foundation for rejection of
    the respondents claim.

[6]

Fourth, we note that the motion judge addressed the fact that the
    respondent included other potential claims in its statement of claim.  He
    concluded, at para. 8 of his reasons:

[F]irst, the only facts before the Court respecting any claim
    of the plaintiff relates to its claim for partial summary judgment in respect
    of the tax refund granted in respect of the 2011 year.  As mentioned, there is
    no evidence of any additional claims in fact and the plaintiffs are [
sic
]
    not suggesting that there are any such claims.  If the defendant knows of any
    specific additional claims that the plaintiff is pursuing at this time, it has
    not provided any evidence of such actions.

[7]

We see no error in this conclusion.  The possibility of further
    contingent claims was no barrier to partial summary judgment on the claim
    advanced.

[8]

Finally, given the timing of the motions and the content of the
    appellants motion for directions, the appellant was in no way prejudiced by
    the motion judge addressing the issues raised in the appellants motion for
    directions in the context of the respondents partial summary judgment motion.

[9]

In all these circumstances, we see no disproportionality, unfairness or
    inefficiency in the respondent moving for partial summary judgment on part of
    its claim.

[10]

For
    these reasons, the appeal is dismissed.  The respondent is entitled to its
    costs of the appeal, in the agreed amount of $4,000, inclusive of taxes and
    disbursements.

Doherty J.A.

E.A. Cronk J.A.

Grant Huscroft J.A.


