In order for an appellate court to review a decision, there must be adequate reasons to permit appellate review. Otherwise, the judgment may be set aside. The Ontario Court of Appeal’s May 21, 2014 decision in Barbieri v. Mastronardi exemplifies this. It is also interesting in that it recognizes the deferential attitude prescribed by Hyrniak v. Mauldin to reviewing motion judges’ summary judgment decisions, while also noting that this cannot lead to deference when an appellate court cannot determine the basis of a motion judge’s decision.

The case arose from the claim of a purchaser of a house (the plaintiff-respondent) against the vendor (the defendant-appellant) for damages resulting from the appellant’s failure to disclose that the house had been a marijuana grow-up. The appellant admitted he had not disclosed this fact but submitted he was not obliged to as the resulting problems had been remedied. Of great controversy was whether there was mould in the house at the time of closing.

On a partial summary judgment motion, the motion judge found the appellant liable. (It was agreed that a trial was required to determine damages.) His judgment read in full:

Pursuant to rule 20.04(4), partial summary judgment is to issue in favour of the Plaintiff against the Defendant, Mastronardi on the issue of liability (a declaration) and that the action proceed to trial solely on the issue of damages.

I am persuaded that the defendant failed in his duty to the Plaintiff, to advise her or her representative that the house had been used for a substantial period of time by a tenant as a “grow up”, that the structure had suffered damage as a result of the activity carried out, and that his son had made repairs to the structure to remedy the damage caused.

It is my view that, even if the repairs had reversed all of the damage done to the structure, the Plaintiff would have a valid claim for the stigma that had attached to the subject property.

The evidence before me is sufficient to enable me to reach a just result on the issue of liability. It is not sufficient to enable me to reach a just assessment of damages. That would require consideration of further evidence relative to the extent to which the structure was repaired, the likely cost of future further repairs, the diminution of the value of the property and any other loss or damage that flows from the Defendant’s default.

I give no special directions with respect to the further conduct of the action.

Having regard to the outcome of this motion. I refer the costs of the motion, including any costs already referred to me, to the judge presiding at the trial on the issues of damages.

The Court of Appeal held this was insufficient to permit meaningful appellate review. There was no evidence the motion judge had grappled with the issues raised by the appellant in his defence. The Court held:

[18]       The motion judge concludes that the appellant is liable to the respondent, but his endorsement offers no legal analysis and contains no findings of fact. He declares that the appellant “failed in his duty” to the respondent, without explaining how he reached that conclusion. The nature of the duty, whether in negligence or contract, is not identified.

[19]       More importantly, the motion judge reaches no conclusion with regard to the critical factual issue, namely whether there was mould in the Property at the time of closing. There was conflicting evidence on the point and the determination of that issue was vital in the analysis of whether the appellant was liable to the respondent for any damages. Similarly, there is no consideration of whether the appellant was aware of the existence of mould as at closing.

[20]       Having failed to reach any conclusion on the critical issue of the existence of mould in the Property at the time of closing, the motion judge goes on to find that, even if the problems in the house had been completely remediated, the respondent would still “have a valid claim for the stigma that had attached to the subject property.”

[21]       Again the motion judge provides no analysis as to how he reached this conclusion. There was no expert or other evidence before him that the fact that the Property was used as a grow-op meant that it had been stigmatized. …

[22]       In order to allow for meaningful appellant review, the decision of the court must, at a minimum, provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion:  R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24, 55; and Crudo Creative Inc. v. Marin (2007), 90 O.R. (3d) 213 (Div. Ct.).

[23]       The motion judge’s endorsement does not contain necessary findings of fact and is so lacking in analysis that it impedes meaningful appellate review.  While decisions of motion judges on summary judgment motions attract significant deference  (see Hryniak v. Mauldin, 2014 SCC 7, at para. 81), there cannot be deference in circumstances where the appellate court cannot understand the legal basis for the decision or the factual finding made in support thereof.


[24]      Given the inadequacy of the endorsement of the motion judge, we cannot conduct a meaningful review of his decision.

[25]      In these circumstances, we have no alternative but to grant the appeal and set aside the declaration of the motion judge that the appellant is liable to the respondent.

[Emphasis added]