COURT OF APPEAL FOR ONTARIO

Page: 96
exhibit, documents showing that the respondent homeowners‟ payments for the
construction work were payable to “Greenline”, which was a business name registered to
Manor Arms. In addition, he filed affidavits from various sub-contractors indicating that
they had been hired and paid by Greenline.
[239] In their affidavits, the respondent homeowners acknowledged that Scarfo
demolished the existing homes and began construction of the new ones. They denied any
negligence or damage in the construction process and said that, in any event, the
appellants‟ recourse was only against Scarfo, not them. The respondent homeowners filed
as exhibits two applications for building permits to construct the new homes, which
identified the applicant for the permits as Scarfo personally. Although the form includes a
section asking for the name of any corporate applicant, this section was not filled in.
[240] The respondents did not file an expert report contradicting the appellants‟ expert.
Rather, in addition to generally denying any damages, the respondent Scarfo asserted that
the appellants‟ estimate of the cost of repairs was excessive.
[241] When the motion was first brought, it was governed by rule 76.07. Rule 76.07
permitted a party in a simplified procedure action to move for summary judgment after
the close of pleadings. Rule 76.07(3) stipulated that the test for summary judgment was
not that in rule 20.04. Instead, rule 76.07(9) provided the following test:
76.07 (9) The presiding judge shall grant judgment on the
motion unless,