COURT OF APPEAL FOR ONTARIO

Page: 99
[247] The appellants appealed with leave to this court.
4. Issues
[248] The overarching issue raised by the appellants is whether the Divisional Court
erred in the way it applied the test for summary judgment under the amended Rule 20.
The appellants say that if the court had properly applied the new test, it would have
recognized that there was no genuine issue requiring a trial and would have granted
summary judgment on all issues. Alternatively, had the court determined that some issues
could not be decided on the motion, the court ought to have granted partial summary
judgment or ordered the hearing of oral evidence to resolve those issues.
[249] The appellants argue that the respondent Scarfo‟s personal liability can and should
be decided on the existing record. They submit that the evidence of his liability is
compelling. The respondent homeowners admit they hired Scarfo personally. As well,
Scarfo personally signed the building permit forms and has provided no explanation for
why, if his company were in fact the builder, it was not named anywhere on the
application forms. According to the appellants, any conflict in the evidence on this issue
cannot survive the court‟s new powers under rule 20.04(2.1) to weigh the evidence,
evaluate credibility, and draw reasonable inferences from the evidence.
[250] As for the respondent homeowners‟ liability, the appellants submit that they are
liable for the work carried out by their hired contractor on the legal theory that an owner