Deavitt v. Greenly 2017 Ont Div Ct
Farmers brought an action against neighbouring land owners and the City alleging that, because there was a run-off of bio solids, presumably obtained from a wastewater treatment plant, onto the farmers’ lands, the neighbours and the City were liable for trespass, negligence, and nuisance. The motions judge dismissed a motion for summary judgment that the defendants brought. He decided that he was unable to have a full appreciation of the evidence and therefore the matter had to go to trial. The Divisional Court allowed the appeal and dismissed the farmers’ action. The “full appreciation” test was long gone as a result of the Hyrniak Supreme Court of Canada decision. Now, a motions judge must first determine, based only on the evidence, whether there is a genuine issue requiring a trial. If the judge concludes that there is such a genuine issue, the judge must then determine if the trial can be avoided by using fact-finding powers available to the judge under the Rules. In this case, the farmers had put forward almost no evidence to support their allegations – other than their own observations. Assuming that they had put their “best foot forward”, as they were required to do, they had no evidence to show that there was a genuine issue for trial.
Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.