Executive Summary: Key Legal and Evidentiary Issues

• Essex Condominium Corporation #30 sought leave to bring a motion for summary judgment after previously setting the action down for trial.
   
• Rule 48.04(1) of the Rules of Civil Procedure bars a party who has set an action down for trial from initiating a motion without leave of the court.
   
• Justice Hebner applied the flexible approach from Fulop v. Corrigan alongside the summary-judgment-specific test in Fruitland Juices Inc. v. Custom Farm Service Inc. and Loops L.L.C. v. Maxill Inc.
   
• Defendants argued that discordant expert opinions on the cause and timing of the pool's cracking required cross-examination at a full trial.
   
• An undisclosed intra-defendant agreement, revealed only in a February 2026 pre-trial memorandum, is now the subject of a separate production motion returnable October 2, 2026.
   
• Leave was granted, and the plaintiff was awarded costs of $10,000 payable within 30 days.
   

Facts of the case

Essex Condominium Corporation #30 ("ECC #30") is the condominium corporation for a 12-storey building with an atrium and an elevated pool above a parking garage. On November 23, 2018, resident Lillyan Meyer crashed her vehicle into the exterior corner of the atrium, shattering the glass walls, some of which fell into the pool. The building manager drained the pool that same day to remove the glass. While the pool was drained and being refinished, a crack was found in the concrete bottom; it was repaired and the finishing work completed. On April 6, 2019, the manager began refilling the pool but stopped before the deep end was full because new cracks and leaks appeared.

The pool was eventually repaired at a cost to the plaintiff of $258,798.25 not covered by insurance. On February 20, 2025, an appraisal award quantified the plaintiff's damages at a replacement cost value of $271,179.73 and an actual cash value of $242,985.73. ECC #30 held two relevant policies: one with Economical Mutual Insurance Company covering April 1, 2018 to April 1, 2019, and one with Aviva Insurance Company of Canada covering April 1, 2019 to April 1, 2020. The defendants crossclaimed against each other, and Leendert John Meyer and Johnathon Trout Meyer, as litigation administrators for the Estate of Lillyan Meyer, were also named.

The action was set down for trial in March 2025. A pre-trial was scheduled for February 9, 2026 after an assignment court appearance on June 11, 2025. The plaintiff served its motion for summary judgment, along with a request for leave, on November 11, 2025; that motion has been scheduled for November 12, 2026, contingent on leave being granted. No trial date has yet been set.

Policy and legislative provisions at issue

The central provision is Rule 48.04(1) of the Rules of Civil Procedure, which states that a party who has set an action down for trial "shall not initiate or continue any motion or form of discovery without leave of the court." The motion before Justice Hebner did not resolve the underlying insurance coverage dispute but addressed only whether the plaintiff could proceed with a summary judgment motion despite having already set the matter down for trial.

The plaintiff's framing of the substantive issues included whether the motor vehicle accident caused all or part of the loss, whether the Meyer estate is liable, and whether Economical and Aviva are each obligated to indemnify the plaintiff. The defendants framed the issues around the cause and timing of the cracks and leaks discovered on April 6, 2019, and whether exclusions or limitations in the policies affect coverage. A separately scheduled motion, returnable October 2, 2026, will address the plaintiff's request for production of an intra-defendant agreement first disclosed in a February 2, 2026 pre-trial memorandum filed on behalf of the Estate of Meyer. That memorandum described a prior arrangement in which Economical funded repairs of $90,970 and $3,381 and pursued a subrogated demand against Meyer's automobile insurer, which acknowledged responsibility for the loss; ECC #30's $5,000 deductible was waived, and Economical received reimbursement of $80,198.35 on September 8, 2020, which the Estate characterized as full payment for the motor vehicle accident damages. The terms of that agreement have not yet been disclosed to the plaintiff.

Reasoning and analysis

Justice Hebner noted that the purpose of Rule 48.04(1), as described in Cromb v. Bouwmeester, is to ensure matters are not set down for trial until they are trial-ready, to prevent delays from further discovery once trial time is booked, and to protect against the loss of trial time from late interlocutory steps. In Fulop v. Corrigan, Justice Perell described a flexible, discretionary approach requiring justification such as a substantial or unexpected change in circumstances or necessity in the interests of justice, guided by factors including what the moving party knew when the trial record was passed, whether circumstances have changed, the purpose and nature of the relief sought, prejudice to the opposing party, and the likely success of the underlying motion.

Justice Hebner distinguished the test for summary judgment motions specifically, relying on Fruitland Juices Inc. v. Custom Farm Service Inc., in which Justice Quinn held that a substantial or unexpected change in circumstances is not a helpful test for leave to bring a summary judgment motion; a party need not justify its timing so long as the motion, if successful, would be less costly and time-consuming than trial and would not unduly delay the trial's start. This approach was echoed in Loops L.L.C. v. Maxill Inc., where Justice Tranquilli framed the test as whether the interlocutory step serves the interests of justice, though she ultimately dismissed leave in that case because she was not persuaded a partial summary judgment motion would prove cheaper.

Applying this framework, Justice Hebner found no substantial or unexpected change in circumstances since the matter was set down, but held that this was not determinative for a summary judgment leave motion. She found the plaintiff's mistaken reference to the appraisal award's date did not assist the plaintiff, since the award predated the trial being set down. The disclosure of the intra-defendant agreement in February 2026 also did not change the analysis, as that issue was being addressed through the separate production motion and had no bearing on whether summary judgment was the more efficient route. On the defendants' argument that discordant expert evidence on the cause and timing of the cracking required viva voce testimony at trial, Justice Hebner disagreed, noting experts could be cross-examined on their reports ahead of the motion, with a mini-trial available as a remedy if the motions judge later found viva voce evidence necessary. She also observed that the existing appraisal narrowed the remaining issue toward what, if anything, each policy covered.

Ruling and overall outcome

Justice Hebner granted Essex Condominium Corporation #30 leave to proceed with its motion for summary judgment, finding no reason the motion could not resolve the matter and emphasizing that reducing a potential two-week trial to one or two days would conserve scarce court time. As the successful party on the leave motion, the plaintiff was awarded costs, assessed by the court at $10,000, payable by the defendants within 30 days. The plaintiff had not submitted a costs outline, while the defendant Aviva had claimed partial indemnity costs of $8,344; Justice Hebner noted the plaintiff's costs would likely be somewhat higher given the additional work involved in preparing the motion materials and reply.