Jan 14
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The Summary Judgment Motion: A Procedural Tool in Civil Litigation

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Summary judgment motions are a procedural tool that can be utilized by either party in certain situations to obtain an order from the court without going through the lengthy and formal trial process.

A summary judgment motion can lead to a cost-effective and timely resolution if used appropriately. It is best to use them in situations where material facts are not in dispute or where the issue to be determined is of a technical nature. For example, cases where the main defence is under the Limitations Act, 2002 are often brought before the Courts as summary judgment motions.

While a summary judgment motion is less formal than a trial, there are still many procedural steps involved. A motion record, affidavit, factum, and book of authorities need to be filed. In addition, opposing parties will usually cross-examine the affidavit evidence submitted. If the motion is not successful, this can add to the overall cost and length of the trial process. In situations where the parties have entirely or mostly contradictory versions of events, a summary judgment motion is not likely to be successful.

The Current Legal Test

The current legal test comes from the decision in Hryniak v Mauldin, 2014 SCC 7. The test is set out as follows for Judges hearing summary judgement motions:

  1. Determine whether there is a genuine issue requiring a trial without using the fact-finding powers under the Rules of Civil Procedure (the “Rules”). There will be no genuine issue requiring a trial where the summary judgement motion provides the judge with the evidence necessary to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
  2. If there is a genuine issue requiring a trial, determine whether the need for a trial can be avoided using the fact-finding powers under Rules 20.04(2.1) and (2.2). The use of these new powers will not be against the interest of justice if they will lead to a fair and just result and will promote the goals of timeliness, affordability and proportionality.  

A Brief History/Timeline on Developments Over the Last 8 Years

Prior to 2010, when the Rules were amended, the Rules surrounding summary judgement motions required that there be “no genuine issue for trial” and the Rules were interpreted narrowly. Summary judgement motions were historically only available in situations where a claim or defence had no chance of being successful, making it extremely challenging to obtain summary judgement.

Here are some of the significant changes from legislation and case law to summary judgement motions over the last 8 years:

Year Case or Legislation Impact
2010 Amendment of Rules of Civil Procedure

(Rule 20.04(2.1 and 2.2))

  • Relaxed the rule from “no genuine issue for trial” to “no genuine issue requiring a trial”
  • Provided judges with more powers to weigh evidence, determine credibility, draw reasonable inferences and hear oral evidence
  • Signaled a cultural shift towards increasing access to justice by promoting proportionality, fair access to affordable, timely and just adjudication of disputes, and reducing undue process and unnecessarily lengthy trials
2014 Hryniak v Mauldin, 2014 SCC 7
  • The Supreme Court of Canada clarified the goal of the changes to legislation and recognized the need to interpret the Rules broadly
  • Set out the current legal test as outlined above
  • Led to an increase in summary judgement motions. The Civil Practice Court was established in Toronto to manage the increased volume of motions
  • Promoting proportional procedures that can be adjusted to meet the needs of each case
  • A mini trial can be used where in the interests of justice
2016 Meridian Credit Union Limited v Baig, 2016 ONCA 150
  • The Court of Appeal confirmed that orders can be granted in favour of the responding party even where the responding party has not brought a cross-motion for summary judgement
2017 Butera v Chown, Cairns LLP, 2017 ONCA 783
  • Cautioned against the use of partial summary judgement motions because they undermine the objectives from Hryniak v Mauldin
  • Summary judgement motions while less formal than a trial still require several steps and materials to be filed. This can add to the overall cost of litigation if a trial is still required

 

Strategies for Bringing and Responding to Summary Judgement Motions

  1. Have organized written materials.

Parties are required to put all of the available evidence before the court. This includes affidavits, exhibits to affidavits, cross-examination transcripts, discovery transcripts and factums. Evidence is led primarily by written affidavit evidence and oral evidence is only permitted with leave of the Court. It is critical that your written materials are well-organized in order to assist the Court and put you best argument forward.

  1. Be mindful of the costs and timing of bringing a summary judgement motion.

Due to the fact that there are several steps involved in bringing the motion, a failed motion can increase overall costs and delay getting to trial. If chances of success are limited it may not be worthwhile to pursue.

  1. Partial Summary Judgement Motions can be used to narrow the issues in dispute.  

Although recent case law has stated that the use of partial summary judgement motions can undermine the objectives identified in Hryniak v Mauldin, in some circumstances it may be beneficial to bring a summary judgement motion to determine one or some of the issues in dispute. It is imperative to weigh the costs and potential benefits of a partial summary judgement motion in order to determine if it is likely to benefit your case.

Conclusion

Summary judgement motions or partial summary judgement motions can be used to obtain an order from the court in a timely and cost-effective manner. However, they must be used with caution because failed motions can increase the overall cost of proceedings and delay getting to trial. Experienced lawyers can assist in deciding whether a motion is likely to be successful and can assist with weighing the costs and potential benefits.

Please contact Michael Paiva for more information about summary judgement motions, or if you require assistance with a civil litigation matter.