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Civil Litigation - Summary Judgment - Evidence - Best Foot Forward. Eyelet Investment Corp. v. Zhou
In Eyelet Investment Corp. v. Zhou (Ont CA, 2026) the Ontario Court of Appeal dismisses a plaintiff-developer's breached APS appeal, this brought against orders which "dismissed the appellant’s motion for summary judgment and dismissed the claim on the basis that the appellant had failed to mitigate its damages".
Here the court considers the summary judgement principle that the parties must 'put their best feet forward':[20] The appellant also argues that in light of the motion judge’s finding that the evidence it tendered on the issue of mitigation was insufficient, she erred in proceeding by way of summary judgment.
[21] This ground of appeal has no merit. Before the motion judge, both parties agreed the matter was appropriately determined by summary judgment. It is well-established that the parties to a summary judgment must put their best foot forward. A judge hearing a summary judgment motion is entitled to proceed on the basis that all of the relevant evidence has been placed before the court and there would be nothing further if the issue were to go to trial: Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438, at para. 7. The fact that the appellant may have failed to put its best evidentiary foot forward does not retrospectively make proceeding by summary judgment inappropriate. The motion judge made no error in proceeding by summary judgment. . Tan v. Yu
In Tan v. Yu (Div Court, 2024) the Divisional Court briefly notes the evidentiary duties of parties in a summary judgment motion:[28] .... Each party in a summary judgment motion “must put its best foot forward”, and “the court is entitled to assume that the record contains all the evidence the parties would present at trial”: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5. . Tiwari v. Singh
In Tiwari v. Singh (Ont CA, 2023) the Court of Appeal considered the evidentiary duties of a party to a summary judgment motion:[10] On the motion for summary judgment, the appellants had an obligation to put their best foot forward: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97. As found by the motion judge, they failed to do so. We agree with the motion judge that this was an appropriate case for summary judgment. . 1000425140 Ontario Inc. v. 1000176653 Ontario Inc.
In 1000425140 Ontario Inc. v. 1000176653 Ontario Inc. (Ont CA, 2024) the Ontario Court of Appeal briefly considered summary judgment motions:(1) The Test on a Motion for Summary Judgment
[23] The motion judge correctly noted that, “on a motion for summary judgment, each party is required to put their best foot forward. They are not permitted to sit back and suggest that they would call additional evidence at trial. The court proceeds on the basis that the parties have each advanced their best case and that the record contains all the evidence that would be led at trial.” See Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1 at para. 56, aff’d on other grounds, [2014] 1 S.C.R. 8; Canada (Attorney General) v. Lameman, [2008] 1 S.C.R. 372, 2008 SCC 14, at para.11.
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