Usually when your bookkeeper steals $350,000 from your company and you sue to recover the money, there is not much of a defence.
The trend in Ontario is now to apply under rule 20 of the Rules of Civil Procedure for summary judgment. This is an excellent tool because, whereas in ordinary motions, judges are predisposed to require more and more evidence, in summary judgment, judges require less and less.
Under the summary judgment jurisdiction, summary judges have ‘enhanced fact-finding powers.’ Where a particular judge in an ordinary proceeding, might be picky and supercilious in evidential requirements, summary judges have to ask themselves a question that hints at the answer: Are you confident that a trial is not needed. In other words, all the important facts are established. If you are: you must make a final order. Case closed (most of the case closed).
The answer before the 2010 changes to Rule 20 was invariably: I am not satisfied that a trial is not needed. since January 2010 the answer has tended to be: I am satisfied a trial is not needed.
Lawyers acculturated to ‘more and more’ evidence, benefit from judicial economy under rule 20.
The problem is usually never the ‘right’ and ‘wrong’ of the situation, the problem is usually quantifying the loss. This is the same in personal injury summary judgment as it is in shareholder disputes or straight-up theft.
Although you would think that tracing stolen monies would be easier, in Steele, the victim’s expert placed the amount at $455k whereas the defendant’s expert placed it at $104k.
The judge sent the quantum question to a trial before himself.
Take-away: make sure your quantum proof is comprehensive, a contested plaintiff expert report was not sufficient in this case. But even if it’s not, a quantum trial is cheaper than a full trial.
Steele Industrial Supplies Inc. v. Elliott, 2019 ONSC 3904 (CanLII)
