Andrew Rogerson, and litigation lawyer Robert Rastorp, have won a significant case which clarifies important legal issues. They successfully represented the plaintiff in Ontario’s Superior Court of Justice in an action alleging malicious prosecution, emotional distress and employment termination related claims.
The defendant was seeking summary judgment without a full trial (or, alternatively, other procedural orders). Our client (who was originally from the Philippines) was a live-in nanny for the family of the defendants whose son was 4 years old. The mother accused our client of molesting the son and her position was terminated. The police were notified, and our client was charged with sexual assault. However, the charges were dismissed by the court.
Our client later made a claim for malicious prosecution, inflicting mental suffering, and wrongful dismissal. However, an issue arose in relation to the 2-year limitation period (the period during which time a claim can lawfully be made). Furthermore, the defendants applied for summary judgment against our client.
During her first fortnight in Canada, our client was held in jail for 5 days before arrangements could be made for her to be released on bail. This led to the judge commenting that he found it difficult to contemplate a litigant in more unique “circumstances” than our client encountered at the outset of her time in Canada.
He was satisfied on the evidence, and because of the unusual circumstances surrounding the case, that the limitation period could run from a time later than the date of our client’s acquittal (the relevant start date of the limitation period).
The defendants were not allowed to apply for summary judgment. Whilst the court may use its enhanced fact-finding powers on an application for summary judgment, it must not do so if it is in the “interest of justice” for them to be exercised only at trial. However, the “interest of justice” is not defined in the Rules, but one issue is whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication.
The judge defined “just” as being based on, or behaving according to what is morally right and fair – and he interpreted it liberally. On that basis, he found that as our client elected a jury trial he was not convinced that it would be just or fair in the circumstances of this case to deny her the opportunity by allowing summary judgment.
Adopting a proportionate approach, the judge stated: “The plaintiff has spent her entire time in Canada embroiled with our court system. I find it unfair to further extend her costs and risks, such that exercising my discretion I am imposing as a term of the amendments sought that no motion for summary judgment may be brought prior to trial by the moving party.”
What does this mean?
This ruling has far-reaching implications for cases involving procedural issues, including applications for summary judgment. It clarifies the importance to be attached to fairness, and indicates that the courts are willing to interpret the meaning of ‘just’ liberally.
Contact Us now at (416) 504 2259 to talk to an asset protection lawyer. Rogerson Law Group provides family litigation services in the entire Greater Toronto area including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, Hamilton, Sudbury, North Bay and Barrie with offices located in Downtown Toronto and Barrie.