Cornacchia v. Rubinoff illustrates the difficulties of moving for summary judgment on limitations defences in simplified procedure actions. This is because there are no cross-examinations on affidavits under simplified procedure. The court denied the motion on the basis that the simplified procedure did not permit the findings of fact required by the limitations defence:
[3] An important factor in the argument on the motion is that the underlying claim was commenced under the simplified procedure provided in rule 76. As a result, pursuant to rule 76.04(1), cross-examination on the affidavits filed on the motion is not permitted. A further implication of the fact that the underlying action is brought under the simplified procedure rules, is that it can be expected to be a relatively short trial.
[4] For reasons that I will explain, I find that the combination of two procedural aspects of this motion lead me to conclude that the limitation period issue in this case is not an appropriate issue for summary judgment, either in favour of the defendant, or in favour of the plaintiff. I find that in the absence of cross-examination on the affidavits filed on the motion, particularly the plaintiff’s affidavit, the record on this motion does not allow me to make the necessary findings of fact and credibility to fairly dispose of the motion.
[30] I find that the absence of cross-examination on the affidavits filed in the motion, raises concerns for my ability to make the necessary findings of fact and credibility to dispose of the motion, for the following reasons.
[31] In order to assess the subjective branch of the analysis – when the plaintiff first knew that the four criteria in s. 5(1)(a)(i) to (iv) were met – the court must make factual findings about what information the plaintiff knew when, and his subjective belief about that information in relation to the criteria in s. 5(1)(a)(i) to (iv).
[32] This assessment involves making findings of credibility about the plaintiff’s evidence on the motion. I note that counsel for the defendant was clear during the course of argument that she was relying on both the subjective and objective branches of the Limitations Act analysis.
[40] Concept Plastics does not hold that summary judgment will never be available on a simplified procedure matter due to the unavailability of cross-examination on the affidavits filed for the motion. Rather, in Concept Plastics the Court of Appeal signaled the need for caution in considering summary judgment motions in simplified procedure matters, due to the unavailability of cross-examination. Where a motions judge is considering a summary judgment motion in a simplified procedure matter, the judge should consider if there is unfairness as a result of the unavailability of cross-examination. If the motions judge grants the motion, the judge should explain why and how the potential unfairness due to the unavailability of cross-examination is addressed by the materials filed on the motion: see Concept Plastics at paragraphs 24-25.
