Five cases decided together raise a number of issues concerning the interpretation of the new Rule 20, including the nature of the test for determining whether or not summary judgment should be granted, the scope and purpose of the new powers that have been given to judges hearing motions for summary judgment, and the types of cases that are amenable to summary judgment.
The grouped appeals are from decisions of the Superior Court of Justice under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which is the rule governing motions for summary judgment. Rule 20 was amended on January 1, 2010 by a package of amendments to the Rules of Civil Procedure. The amendments followed the release of the report of the former Associate Chief Justice of Ontario, the Honourable Coulter A. Osborne, Q.C., entitled Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007). The appeals raise various issues concerning the interpretation and application of the amended Rule 20. A five-judge panel of the Court of Appeal for Ontario, composed of Chief Justice Winkler and Justices Laskin, Sharpe, Armstrong and Rouleau, heard these five appeals on June 21, 22, and 23, 2011.
It is an example of a court taking a cluster of cases and deciding them together to arrive at common principles. The first 39 pages of the judgment are devoted to general analysis and conclusions, before the five cases are even discussed. The court refers to what it calls the full appreciation test:
In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
The court's 111 page judgment will repay close reading. Its conclusions were summarized here:
Three types of cases where summary judgment may be granted.
The first is where the parties agree to submit their dispute to resolution by way of summary judgment.
The second class of case is where the claim or defence has no chance of success. A… judge may use the powers provided by rules 20.04(2.1) and (2.2) to be satisfied that a claim or defence has no chance of success. The availability of these enhanced powers to determine if a claim or defence has no chance of success will permit more actions to be weeded out through the mechanism of summary judgment. However, before the motion judge decides to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence, the motion judge must apply the full appreciation test.
The amended rule also now permits the summary disposition of a third type of case, namely, those where the motion judge is satisfied that the issues can be fairly and justly resolved by exercising the powers in rule 20.04(2.1). In deciding whether to exercise these powers, the judge is to assess whether he or she can achieve the full appreciation of the evidence and issues that is required to make dispositive findings on the basis of the motion record – as may be supplemented by oral evidence under rule 20.04(2.2) – or if the attributes and advantages of the trial process require that these powers only be exercised at a trial.
Finally, we observe that it is not necessary for a motion judge to try to categorize the type of case in question. In particular, the latter two classes of cases we described are not to be viewed as discrete compartments. For example, a statement of claim may include a cause of action that the motion judge finds has no chance of success with or without using the powers in rule 20.04(2.1). And the same claim may assert another cause of action that the motion judge is satisfied raises issues that can safely be decided using the rule 20.04(2.1) powers because the full appreciation test is met. The important element of the analysis under the amended Rule 20 is that, before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.