Ungerman Ltd.v. Galanis (1991), 50 O.A.C. 176 (CA)

MLB headnote and full text

Irving Ungerman Limited and Karl Ungerman Limited (plaintiffs) v. Sam Galanis and Linda Haut (defendants)

Sam Galanis (plaintiff by counterclaim/respondent) v. Irving Ungerman Limited, Karl Ungerman and Linda Haut (defendants by counterclaim/appellants)

(No. 673/90)

Indexed As: Ungerman (Irving) Ltd. et al. v. Galanis and Haut

Ontario Court of Appeal

Morden, A.C.J.O., Brooke and Catzman, JJ.A.

September 6, 1991.


The defendant Galanis applied for sum­mary judgment on his counterclaim. The plaintiffs brought a counter-motion for summary judgment on their claim in the action. The motions court judge, in a deci­sion reported in 13 R.P.R.(2d) 102, allowed Galanis’ application and dismissed the plain­tiffs’. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal and substituted an order dismissing Galanis’ application.

Courts – Topic 103

Stare decisis – Authority of judicial deci­sions – English and American authorities – American decisions – Civil Procedure Rule 20.04(2) was derived from rule 56(c) of the U.S. Federal Rules of Civil Pro­cedure – The Ontario Court of Appeal referred to an American judicial decision concerned with rule 56(c) when interpret­ing the meaning of rule 20.04(2) – See paragraph 17.

Practice – Topic 5708

Judgments and orders – Summary judg­ments – Bar to application – Existence of issue to be tried – Civil Procedure Rule 20.04(2) provided that if “no genuine issue for trial” existed, summary judgment will be granted – The Ontario Court of Appeal stated that “it is now possible to avoid a trial or shorten the proceeding on satisfy­ing the court that there is no need for a trial because there is no genuine issue of fact requiring one” – If the evidence sat­isfies the court that there is no issue of fact requiring a trial for its resolution, the requirements of the rule are met – The court’s function is not to resolve issues of fact, but to determine if issues of fact exist – Generally, if there is a genuine issue of credibility, a trial is required and summary judgment should not be granted – See paragraphs 14 to 18, 22, 24, 26.

Statutes – Topic 1626

Interpretation – Extrinsic aids – Other statutes – Similar statutes in other juris­dictions – The Ontario Court of Appeal, in interpreting Civil Procedure Rule 20.04(2), looked at the American rule from which rule 20.04(2) was derived – See para­graphs 15 to 17.

Words and Phrases

Genuine issue to be tried
– The Ontario Court of Appeal discussed the meaning of the phrase “genuine issue to be tried”, as found in Civil Procedure Rule 20.04(2) – See paragraphs 16, 22.

Cases Noticed:

209991 Ontario Ltd. v. Canadian Imperial Bank of Commerce et al. (1988), 24 C.P.C.(2d) 248, refd to. [para. 10].

Engl v. Aetna Life Insurance Co. (1943), 139 F.2d 469, refd to. [para. 17].

Millichamp v. Jones, [1982] W.L.R. 1422 (Ch.D.), refd to. [para. 37].

Statutes Noticed:

Federal Rules of Civil Procedure (U.S.), 1938, rule 56(c) [paras. 15, 17, 21, 24, 39].

Rules of Civil Procedure (Ont.), reg. 560/84, rule 1.04(1) [para. 19]; rule 20 [paras. 1, 12, 21, 38]; rule 20.01(1), rule 20.01(3) [paras. 12-13]; rule 20.04(2) [paras. 2, 14]; rule 20.05(1) [para. 40]; rule 20.06(1) [para. 41]; rule 21, rule 22 [para. 18].

Rules of Practice (Ont.), R.R.O. 1980, reg. 540, rule 33 [para. 12]; rule 42 [para. 13]; rule 58 [paras. 12-13].

Rules of the Supreme Court (Eng.), Order 86 [para. 39].

Authors and Works Noticed:

Moore, Federal Practice (2nd Ed. 1987), vol. 6, p. 56-391 [para. 22]; 56-519 [para. 24]; 56-521 to 56-522 [para. 25]; 56-778 et seq. [para. 39].

Wright, Miller and Kane, Federal Practice and Procedure (2nd Ed. 1983), vol. 10A, pp. 93-95 [para. 16]; 97-107, 176-177 [para. 21]; 297-302 [para. 39]; 574-575 [para. 22].


James A. Hodgson, for the appellants, Irving Ungerman Limited and Karl Un­german Limited;

A.M. Rock, Q.C., and Paul Martin, for the respondent, Sam Galanis;

Donna MacFarlane, for the respondent, Linda Haut.

This appeal was heard before Morden, A.C.J.O., Brooke and Catzman, JJ.A., of the Ontario Court of Appeal on June 19 and 20, 1991. The decision of the court of appeal was delivered by Morden, A.C.J.O., and released on September 6, 1991.


Ungerman (Irving) Ltd. et al. v. Galanis and Haut

(1991), 50 O.A.C. 176 (CA)

Ontario Court of Appeal
Reading Time:
15 minutes
Brooke, Catzman, Morden 

Morden, A.C.J.O.
: The appellants, Irving Ungerman Limited and Karl Ungerman Limited, appeal from a summary judgment against them granted by Sutherland, J., under rule 20 of the
Rules of Civil Procedure
. His reasons are reported at 13 R.P.R.(2d) 102.

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