COURT OF APPEAL FOR ONTARIO

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whether this document might be some evidence of competition warranting a trial and
directed the presentation of oral evidence so that he might make a finding on the point.
7. Conclusion
[111] After ordering the presentation of oral evidence under rule 20.04(2.2), the motion
judge exercised the powers granted by rule 20.04(2.1) to make a finding that this
evidence actually supported the respondents‟ position that CRSC was not in competition
with Combined Air. Having made this finding, the motion judge effectively concluded
that, in the end, Combined Air‟s action had no chance of success. The motion judge did
not err in ordering oral evidence or limiting the oral evidence to a discrete and narrow
issue. Moreover, after augmenting the written record with oral evidence on this issue, the
motion judge did not err in granting summary judgment. Having regard to the full
appreciation test, it was entirely appropriate for the motion judge to use the rule
20.04(2.1) powers to make a finding on this limited contentious factual issue.
[112] For these reasons, the appeal is dismissed. The parties may make brief written
submissions on the costs of the appeal.