Court of Appeal’s ‘new departure and fresh approach’ to Ontario’s summary judgment rule

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Nostalgic followers of Ontario’s summary judgment jurisprudence will be pleasantly surprised to see a reference to Henry J.’s 1990 decision in Pizza Pizza Ltd. v. Gillespie, but those anticipating a broad expansion of the summary procedure will be disappointed.  That decision had been the high point of summary judgment in Ontario.  Since then, it has been hard to bring the motion because of the restricted view of its application, and because of the onerous costs consequences for bringing a failed motion for summary judgment.  New lawyers will only have known the more restrictive regime, but today’s ruling provides a necessary historical overview.

Most interestingly for the author of this site, the reasoning tracks very closely the comments on summary judgment by Henderson and Akazaki, at page 6 of the OBA Submission to the Civil Justice Reform Project, available in this site’s November 8 post or on the OBA site.  In that monograph, the authors had commented:

‘Relaxation of the threshold test to the point where it permits judgment to be granted in cases where there are genuine (not spurious) issues of credibility undermines the primacy of the trial system and brings in the administration of justice into disrepute.’

The Court of Appeal, in its ruling, agreed.  It decided not to relax the standard of review or indeed to make more available the summary judgment procedure.  Rather, the court considered its role to explain more clearly when the procedure should be used, and when it should not be used.  The court observed that “The trial judge’s role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute” (para. 47).  The court used the opportunity of a special sitting to release a decision aimed at providing guidance to the profession in determining which cases are appropriate for summary judgment, and which ones are not.  Indeed, the decision provides a specific admonition to the Bar, “The Obligation on Members of the Bar,” at para. 68, in stating that counsel bear the obligation to formulate an appropriate litigation strategy.  ”It is not in the interests of justice to deprive litigants of a trial,” the court observed, “simply because of the costs incurred by the parties in preparing and responding to an ill-conceived motion for summary judgment.”

What types of case are appropriate for summary judgment?  As expected, there is a caveat that the list is not exhaustive.  However, count on the courts to look for these three types of cases:

1. where the parties agree it is appropriate to determine an action by summary judgment
2. where claims and defences shown to be devoid of merit
3. where the motion judge is satisfied that the issues can be fairly and justly resolved by exercising power under rule 20.04(2.1) to weigh evidence, evaluate credibility or draw reasonable inferences from the evidence

The oral evidence option under rule 20.04(2.2) does not provide for a “mini trial” to make findings of fact, but only to allow a judge to satisfy herself that there are no genuine issues of fact requiring trial.  The Court of Appeal favoured the position stated in the 2010 motion ruling of Karakatsanis J. (then a judge of the Superior Court), in Valemont Group Ltd. v. Philmor Goldplate Homes Inc. in which she held that the oral evidence procedure was intended to allow the motion judge to determine whether trial was necessary, based on conflicting documentary record, and not intended to be a substitute for a trial.

The most significant part of the “new departure and fresh approach” is the introduction of a “full appreciation test,” whereby a motion judge must be satisfied that the cut and thrust of a plenary trial would not yield a different result than on summary judgment.  This test is the “benchmark” for determining whether or not a trial is required.  Cases involving multiple findings of fact based on conflicting evidence will require the “full appreciation” of the evidence, through a plenary trial.  In contrast, document-driven cases with limited testimonial evidence permit motion judges to achieve full appreciation and make dispositive findings.

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