COURT OF APPEAL FOR ONTARIO

Page: 104
(iii)
(iv)
(v)
(vi)
If the respondent homeowners are vicariously liable,
did their liability extend to the damage that did not
naturally flow from the excavation, such as damage
caused by cement splatter and faulty grading?
Was there pre-existing damage as alleged by the
respondent Scarfo?
Should any weight be given to Scarfo‟s affidavit
evidence that the cost of any repairs are significantly
lower than the expert‟s estimates?
If the court were to conclude there was pre-existing
damage or that the respondent homeowners were not
vicariously liable for all of the alleged damage, how
could the court adjust the award in the absence of
itemized amounts in the expert report?
[260] The appellants argue that the motion judge could have decided the matters that are
clear and ordered the hearing of oral evidence under rule 20.04(2.2) to resolve any of the
remaining issues. However, the full appreciation test and the efficiency rationale of Rule
76 tell against resolving this case by way of summary judgment. While the full
appreciation test could arguably be met in relation to the liability issues, it could not be
met in relation to the causation and quantum of damages issues. The motion judge did not
have the benefit of any testing of the various assertions of the affiants or the expert.
[261] Moreover, in the context of a simplified procedure action, a summary judgment
motion that requires oral evidence from key witnesses offers little or no benefit from an
efficiency standpoint as compared to the parties simply proceeding to trial. Indeed, the
presiding justice at triage court offered the appellants an early trial date as an alternative