



COURT OF APPEAL FOR ONTARIO

CITATION: Royal Bank of Canada v. Hussain, 2016 ONCA 637

DATE: 20160822

DOCKET: C61633

MacPherson, Simmons and Lauwers JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff (Respondent)

and

Alamgir Hussain
and
    Jesmin Ara

Defendants (Appellant)

Alamgir Hussain, in person

Amanda Jackson, for the Royal Bank of Canada

Heard: June 30, 2016

On appeal from the judgment of Justice D. Parayeski of
    the Superior Court of Justice, dated November 20, 2015.

Simmons J.A.:

A.

Introduction

[1]

Following a summary judgment motion, the motion judge
    granted judgment to the Royal Bank of Canada for amounts owing to the Bank by
    the appellant and his spouse and dismissed a counterclaim filed by the
    appellant and his spouse.

[2]

The appellant raises numerous issues on appeal.

[3]

The main issue on appeal is whether, absent the written consent of the
    parties, rules 50.09 and 50.10 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, prohibit a judge who conducts a pre-trial conference from
    presiding on a summary judgment motion.

[4]

For the reasons that follow, I would answer yes to that question, allow
    the appeal and set aside the summary judgment.

[5]

We did not call on the Bank to respond to any of the other issues raised
    by the appellant. In all the circumstances, it is unnecessary that I address
    them.

B.

Background

[6]

The Bank issued a statement of claim against the appellant and his
    spouse in May 2009 claiming amounts owing on various loan facilities. After
    obtaining an order setting aside a default judgment, the appellant and his
    spouse delivered a statement of defence and counterclaim.

[7]

On December 1, 2014, the motion judge conducted a pre-trial conference.
    On November 20, 2015, the motion judge heard the Banks summary judgment
    motion. On December 18, 2015, the motion judge issued reasons for decision,
    granting summary judgment to the Bank for the amounts the Bank claimed was
    owing by the appellant and his spouse, and dismissing their counterclaim. On March
    9, 2016, the motion judge issued a costs endorsement, awarding the Bank $62,500
    in costs.

C.

Rules 50.09 and 50.10

[8]

Subject to certain exceptions, rule 50.09 prohibits communication
    to a judge presiding on a motion with respect to any statement made at a
    pre-trial conference:

50.09
No communication shall be made
to the judge or officer presiding at the hearing of the proceeding or a motion
    or reference in the proceeding with respect to any statement made at a pre-trial
    conference,
except as disclosed in an order under rule
    50.07 or in a pre-trial conference report under rule 50.08
. [Emphasis
    added.]

[9]

Rule 50.10(1) prohibits a pre-trial judge from
    presiding at the trial of the action or the hearing of the application, except
    with the written consent of all parties. Rule 50.10(2) clarifies that rule
    50.10(1) does not prohibit a hearing judge from holding conferences before or
    during the hearing that may assist in the just, most expeditious and least
    expensive disposition of the proceeding:

50.10 (1) A judge who conducts a pre-trial conference
shall not preside
at the trial of the action or the
    hearing of the application,
except with the written
    consent of all parties
.

(2) Subrule (1) does not prevent a judge before whom a
    proceeding has been called for hearing from holding a conference either before
    or during the hearing to consider any matter that may assist in the just, most
    expeditious and least expensive disposition of the proceeding without
    disqualifying himself or herself from presiding at the hearing.

D.

Relevant Legislative History of Rule 50

[10]

The
    predecessor rules to rules 50.09 and 50.10 were last amended in 2010, by O.
    Reg. 438/08, s. 47, following recommendations for the general reform of Rule 50
    made in the Osborne Report arising out of the Civil Justice Reform Project: see
Civil Justice Reform Project: Summary of Findings and Recommendations
(2007) (Hon. Coulter A. Osborne, Q.C.) (Osborne Report), at pp. 101-02. The
    full text of the predecessor rules prior to the 2010 amendments is included in
    Appendix A.

[11]

In
    addition to language changes, the 2010 amendments permitted the parties to an
    action to consent in writing to a pre-trial judge hearing an action or
    application. They also permitted a trial judge or application hearing judge to
    conduct certain conferences without disqualifying himself or herself, a
    provision now contained in rule 50.10(2).

[12]

The
    Osborne Report recognized, at pp. 98-99, that rule 50.04, the predecessor to
    rule 50.10, was aimed at the important purpose of protecting settlement
    discussions at pre-trial. However, the report concluded that parties should
    nonetheless be able to consent to a pre-trial judge hearing the proceeding
    because of efficiencies that could be achieved at trial, based on the pre-trial
    judges familiarity with the facts, expertise and other factors. This would be
    particularly helpful in cases where settlement issues and trial management
    issues could be dealt with separately:

Efficiencies at trial may also be achieved by having the
    pre-trial judge preside at the trial. Pre-trial judges often become familiar
    with the facts and issues in a case, and time would be wasted having to get a
    new trial judge up to speed, particularly in complex cases. The pre-trial judge
    may have expertise in a given area of law that may assist in the resolution of
    the case. Continuity by the same judicial official can also help ensure that
    trial management orders made at the pre-trial are fulfilled and that the trial
    proceeds as planned. However, under rule 50.04, a judge who conducts the
    pre-trial conference shall not preside at trial.

I recognize that this rule is intended to
    protect settlement discussions at pre-trial
. In complex cases, it may be
    advisable to separate the settlement and trial management parts of the
    pre-trial so that a pre-trial judge dealing with trial management issues may
    serve as trial judge. In any event, I recommend that rule 50.04 be amended to
    permit the pre-trial judge to serve as trial judge, where the parties consent. Virtually
    all those consulted saw no impediment to the trial judge dealing with motions
    and trial management issues, similar to what arbitrators do in arbitration
    proceedings. Having the trial judge involved earlier in long complex cases
    will, in my view, enhance the efficiency of the process. [Emphasis added.]

E.

Discussion

[13]

The Bank acknowledges that the motion
    judge presided over a pre-trial in this proceeding. Nonetheless, the Bank
    submits that the motion judge was not prohibited from hearing the summary judgment
    motion.

[14]

As a starting point, the Bank contends
    that this situation does not fall squarely within the prohibition contained in
    the
Rules
.
Nothing
    was communicated to the motion judge about the pre-trial conference; rather, he
    presided over the conference. Rule 59.09 therefore does not strictly apply. And
    the proceeding under appeal is not a trial or an application hearing as
    described in rule 59.10.

[15]

Further, the Bank points out that the appellant
    did not raise at the motion the objection now raised on appeal.

[16]

And finally, the Bank says no
    substantial wrong or miscarriage of justice resulted from the motion judge
    presiding on the summary judgment motion  the Banks case is overwhelming and
    the motion judges decision is correct.

[17]

I would not accept the Banks submissions.

[18]

R
ule
    50.09 reflects the intention that a judge hearing a motion in a proceeding
    should be insulated from knowledge of statements made at a pre-trial
    conference. It is designed to reassure litigants that any information revealed
    in the pre-trial will not be used against them at a hearing, in order to
    encourage a full and frank exploration of settlement prospects at an early
    stage of the proceeding.

[19]

Having regard to rule 50.10(1), absent
    written consent from the parties, a judge who conducts a pre-trial should not
    be the judge who determines the merits of the issues in a proceeding. Particularly
    with the expanded powers available to motion judges under the amended Rule 20,
    presiding on a summary judgment motion must be viewed as akin to presiding at a
    trial or the hearing of an application: see
Hryniak v. Mauldin
,
2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 36 and 45. The
    rationale for prohibiting communications to a judge about statements at a
    pre-trial and for prohibiting a pre-trial judge from presiding at a hearing
    that could determine some or all of the issues in a proceeding is well-established
    and well-known. As explained in the Osborne Report, it is to protect settlement
    discussions at a pre-trial conference.

[20]

And as stated by Carthy J.A. in

Bell
    Canada v. Olympia & York Developments Ltd.
(1994), 17 O.R. (3d) 135
    (C.A.), at pp. 144-45, the prohibition also protects the integrity and
    usefulness of the pre-trial conference system:

Pre-trials were designed to provide the court with an
    opportunity to intervene with the experience and influence of its judges to
    persuade litigants to reach reasonable settlements or refine the issues. None
    of that would be possible without assurance to the litigants that they can
    speak freely, negotiate openly, and consider recommendations from a judge, all
    without concern that their positions in the litigation will be affected.

[21]

Although neither rule 50.09 nor rule
    50.10 contains language expressly prohibiting a pre-trial judge from presiding
    on a summary judgment motion, the rules are to be liberally construed, and
    where matters are not provided for in the rules, the practice shall be
    determined by analogy to them: rules 1.04(1) and (2).

[22]

Having regard to these factors, rules
    50.09 and 50.10 must be read as prohibiting a judge who conducts a pre-trial
    conference from presiding on a summary judgment motion in the action, except
    with all parties written consent.

[23]

Further, although ordinarily, in a
    civil case, a failure to object in the court below to a procedural flaw is
    given considerable weight on appeal, in this case, the parties failure to
    object to the pre-trial judge hearing the motion for summary judgment is not a
    relevant consideration. This is because rules 50.09 and 50.10 effectively preclude
    a judge who conducts a pre-trial from hearing the merits of a proceeding,
    absent the written consent of the parties.

[24]

This case highlights the need for
    parties to remind a judge who has been scheduled to dispose of an action or
    application on the merits that the judge previously presided at the pre-trial
    conference. That way, the judge will have the opportunity to determine if the
    parties are willing to provide their written consent to the judge presiding at
    the hearing, in accordance with rule 50.10(1).

[25]

Finally, I would reject the Banks
    claim that the strength of its case should govern the outcome of this appeal.
    The purpose of rules 59.09 and 59.10 is to protect the efficacy of pre-trial
    conferences in facilitating settlements. In all the circumstances, upholding
    the result in this case would sanction ignoring the
Rules
and undermine public confidence in the administration of
    justice.

F.

Disposition

[26]

Based on the foregoing reasons, I would
    allow the appeal and set aside the summary judgment in its entirety. Although
    the appellants spouse did not appeal, the summary judgment should not stand in
    respect of either defendant.

[27]

I would award costs of the appeal to
    the appellant on a partial indemnity scale fixed in the amount of $1500,
    inclusive of disbursements and applicable taxes.

Released: AUG 22 2016

Janet Simmons J.A.

I agree. J.C. MacPherson J.A.

I agree. P. Lauwers J.A.



Appendix A

Prior to their amendment in 2010, the predecessor
    provisions to rules 50.09 and 50.10 were found in rules 50.03 and 50.04, and
    read:

50.03 No communication shall be made to the judge or officer
    presiding at the hearing of the proceeding or a motion or reference in the
    proceeding with respect to any statement made at a pre-trial conference, except
    as disclosed in the memorandum or order under rule 50.02.

50.04 A judge who conducts a pre-trial conference shall not
    preside at the trial of the action or the hearing of the application.


