COURT OF APPEAL FOR ONTARIO

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is liable for direct damages caused to an adjacent property where a property owner
excavates and interferes with the right of natural support of an adjacent property. They
rely on Barber v. Leo Contracting Co. Ltd., [1970] 2 O.R. 197 (C.A.), for this theory of
liability.
[251] On the issue of damages, the appellants emphasize that there is no evidence to
contradict their expert‟s report, which states that the failure to take precautionary
measures during the excavation resulted in damage to their properties as described in the
report. The appellants also argue that the quantum of damages is not seriously challenged
and the new Rule 20 does not permit the respondents to rest on bald denials.
5. Analysis
(1) How should Rule 20 be applied in the context of an action under Rule
76?
[252] As indicated, the appellants brought their motion just as significant changes to the
rules related to simplified procedure and summary judgment were being implemented.
Under the now-revoked rule 76.07, the motion judge had broader powers than did a judge
hearing summary judgment motions under the former Rule 20. Under rule 76.07, a judge
was allowed to make determinations of fact including determinations of credibility: see
Newcourt Credit Group Inc. v. Hummel Pharmacy Ltd. (1998), 38 O.R. (3d) 82 (Div.
Ct.), at p. 86. The motion judge was to grant summary judgment unless the judge was