Feeling ‘Crabby'?: Ontario Court Of Appeal Clarifies Scope Of Expanded Fact-Finding Powers On Summary Judgment

Under what circumstances can a motion judge decide a contested factual issue using the expanded fact-finding powers under rule 20.04(2.1) of the Rules of Civil Procedure (the “Rules”) without oral evidence? That was one of the issues before the Ontario Court of Appeal in a recent decision,2212886 Ontario Inc. et al. v. Obsidian Group Inc. et al., 2018 ONCA 670. In that case, the Court set aside a partial summary judgment, finding that it was not “in the interest of justice” to determine a key contested factual issue on the basis of a paper record alone.

Background: The dispute arose when the plaintiffs (respondents on the appeal), William and Kirsten Porteous (“William” and “Kirsten”), who had been operating a Crabby Joe’s Tap and Grill franchise in Brantford, Ontario, attempted to rescind a franchise agreement (the “Agreement”) they had entered into with the defendant franchisors, Obsidian Group Inc. and Obsidian Inc. Under the Arthur Wishart Act (“AWA”), the