Court Denies Summary Judgment in “Private Issuers” Class Action

July 3, 2015

On June 29, 2015, Justice Perell released his decision in Mayotte v Ontario, 2015 ONSC 4196, denying what in effect were cross motions for summary judgment in this certified class action. There were “numerous genuine, novel, and profound issues for trial, and it [was] not in the interests of justice to determine this matter summarily for either side.”

The action is seeking damages of $75 million for breach of contract and unjust enrichment on behalf of current and former members of the “Private Issuers Network”, which signed contracts with the Province of Ontario over a given period to issue driver’s licences and register vehicles. They allege their compensation by Ontario has for years been inadequate, unfair, unreasonable, and not comparable to that paid to Private Issuers in other provinces with similar systems.

In denying the summary judgment motions, Justice Perell made several noteworthy comments on the contemporary application of summary judgment, some of which can be particularly instructive to class proceedings. He reaffirmed that even post-Hryniak, summary judgment is not always the correct course of action:

In Hryniak v. Mauldin, 2014 SCC 7, although the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course. Indeed, where there are genuine issues for trial and the lower court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily[.]

The common issues trial in this action is scheduled to begin in September 2015, which clearly factored into Justice Perell’s analysis in denying the motions, stating “[t]he parties are ready for an imminent trial, and, in my view, it would not be in the interests of justice to decide this class action summarily.”

Justice Perell also shed light on what the motion judge owes to the various stakeholders in a motion for summary judgment before such a motion should be granted:

The point is not that the court cannot decide the dispute between the parties summarily and come to a fair and just result. The point is that the court cannot give the winner the vindication it seeks from access to justice, the loser the solace of having had its day in court, and the appellate court the evidentiary record it will need to determine the correctness of the decision by a summary determination of the dispute between the parties. And, because the court cannot deliver all of justice, the appearance of justice, and the catharsis of justice by a summary determination, therefore, the court ought to dismiss the competing requests for a summary judgment.

Koskie Minsky LLP was involved in the hearing of the motion on behalf of the Plaintiff.

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